- Aggravating and mitigating factors
- Sentencing options relating to organized crime
- Alternatives to imprisonment
- The death penalty and organized crime
- Backgrounds of convicted offenders
- Confiscation in practice: responding to the movement of criminal assets
Published in May 2018
Regional Perspective: Pacific Islands Region - added in November 2019
Regional Perspective: Eastern and Southern Africa - added in April 2020
This module is a resource for lecturers
Excerpts of legislation
Example of purposes and principles of sentencing
New Zealand: Sentencing Act of 2002, Section 7
Purposes of sentencing or otherwise dealing with offenders
(1) The purposes for which a court may sentence or otherwise deal with an offender are:
(a) To hold the offender accountable for harm done to the victim and the community by the offending; or
(b) To promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c) To provide for the interests of the victim of the offence; or
(d) To provide reparation for harm done by the offending; or
(e) To denounce the conduct in which the offender was involved; or
(f) To deter the offender or other persons from committing the same or a similar offence; or
(g) To protect the community from the offender; or
(h) To assist in the offender's rehabilitation and reintegration; or
(i) A combination of 2 or more of the purposes in paragraphs (a) to (h).
Source: New Zealand Legislation
Examples of legislation on forfeiture of assets and confiscation
Denmark: The Civil Criminal Code Act Amended by Act No. 886 of 30 October 1992
(1) The proceeds gained from any criminal act, or a sum equivalent thereto, may, either wholly or in part, be confiscated. Where there is no means of establishing the size of such an amount, a sum thought to be equivalent to the proceeds gained may be confiscated.
(2) The following objects may also be confiscated where this must be regarded as necessary in order to prevent further offences, or where additional special circumstances make further offences likely:
- Objects which have been used, or were intended to be used, in a criminal act;
- Objects produced by a criminal act; and
- Objects with respect to which a criminal act has otherwise been committed.
(3) In place of confiscation of the objects referred to in subsection (2) above, a sum may instead be confiscated which is equivalent to their value or a part thereof.
(4) In place of confiscation under subsection (2) above, arrangements concerning the objects may instead be decided upon for the purpose of preventing further offences.
(5) When an association is dissolved by judgement, its capital, documents, protocols etc. may be confiscated.
(1) Any person who, in contravention of the legislation on euphoriant drugs, supplies such drugs to a considerable number of persons, or in return for a large payment, or in any other particularly aggravating circumstances, shall be liable to imprisonment for any term not exceeding 6 years. If the supply relates to a considerable quantity of a particularly dangerous or harmful drug, or if the transfer of such a drug has otherwise been of a particularly dangerous character, the penalty may be increased to imprisonment for any term not exceeding 10 years.
(2) Similar punishment shall apply to any person who, in contravention of the legislation on euphoriant drugs, imports, exports, buys, distributes, receives, produces, manufactures or possesses such drugs with intention to supply them as mentioned in subsection (1) above.
European Union: Directive 2014/42/Eu of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union
Article 2. Definitions
For the purpose of this Directive, the following definitions apply:
- 'proceeds' means any economic advantage derived directly or indirectly from a criminal offence; it may consist of any form of property and includes any subsequent reinvestment or transformation of direct proceeds and any valuable benefits;
- 'property' means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property;
- 'instrumentalities' means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences;
- 'confiscation' means a final deprivation of property ordered by a court in relation to a criminal offence;
- 'freezing' means the temporary prohibition of the transfer, destruction, conversion, disposal or movement of property or temporarily assuming custody or control of property;
- 'criminal offence' means an offence covered by any of the instruments listed in Article 3.
Article 4. Confiscation
- Member States shall take the necessary measures to enable the confiscation, either in whole or in part, of instrumentalities and proceeds or property the value of which corresponds to such instrumentalities or proceeds, subject to a final conviction for a criminal offence, which may also result from proceedings in absentia.
- Where confiscation on the basis of paragraph 1 is not possible, at least where such impossibility is the result of illness or absconding of the suspected or accused person, Member States shall take the necessary measures to enable the confiscation of instrumentalities and proceeds in cases where criminal proceedings have been initiated regarding a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, and such proceedings could have led to a criminal conviction if the suspected or accused person had been able to stand trial.
Article 8. Safeguards
- Member States shall take the necessary measures to ensure that the persons affected by the measures provided for under this Directive have the right to an effective remedy and a fair trial in order to uphold their rights.
- Member States shall take the necessary measures to ensure that the freezing order is communicated to the affected person as soon as possible after its execution. Such communication shall indicate, at least briefly, the reason or reasons for the order concerned. When it is necessary to avoid jeopardising a criminal investigation, the competent authorities may postpone communicating the freezing order to the affected person.
- The freezing order shall remain in force only for as long as it is necessary to preserve the property with a view to possible subsequent confiscation.
- Member States shall provide for the effective possibility for the person whose property is affected to challenge the freezing order before a court, in accordance with procedures provided for in national law. Such procedures may provide that when the initial freezing order has been taken by a competent authority other than a judicial authority, such order shall first be submitted for validation or review to a judicial authority before it can be challenged before a court.
- Frozen property which is not subsequently confiscated shall be returned immediately. The conditions or procedural rules under which such property is returned shall be determined by national law.
- Member States shall take the necessary measures to ensure that reasons are given for any confiscation order and that the order is communicated to the person affected. Member States shall provide for the effective possibility for a person in respect of whom confiscation is ordered to challenge the order before a court.
- Without prejudice to Directive 2012/13/EU and Directive 2013/48/EU, persons whose property is affected by a confiscation order shall have the right of access to a lawyer throughout the confiscation proceedings relating to the determination of the proceeds and instrumentalities in order to uphold their rights. The persons concerned shall be informed of that right.
- In proceedings referred to in Article 5, the affected person shall have an effective possibility to challenge the circumstances of the case, including specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived from criminal conduct.
- Third parties shall be entitled to claim title of ownership or other property rights, including in the cases referred to in Article 6.
Where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Directive, Member States shall take the necessary measures to ensure that the confiscation measure does not prevent those victims from seeking compensation for their claims.
Source: European Union
South Africa: Prevention of Organized Crime Act 121, 1998
Preservation of property
38. Preservation of property orders
(1) The National Director may by way of an ex parte application apply to a High Court for an order prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with any property.
(2) The High Court shall make an order referred to in subsection (1) if there are reasonable grounds to believe that the property concerned
(a) is an instrumentality of an offence referred to in Schedule 1;
(b) is the proceeds of unlawful activities; or
(c) is property associated with terrorist and related activities.
(3) A High Court making a preservation of property order shall at the same time make an order authorising the seizure of the property concerned by a police official, and any other ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order.
(4) Property seized under subsection (3) shall be dealt with in accordance with the directions of the High Court which made the relevant preservation of property order.
Source: South African Government
Examples of post-conviction mandatory and optional forfeiture of property
Israel: Combating Criminal Organizations Law, 5763-2003, Chapter Three: Forfeiture of Property after Conviction in Criminal Proceedings
Post-conviction mandatory forfeiture, except on special grounds:
5. Where a person has been convicted of an offense under sections 2, 3 or 4, the court shall order, unless it decides not do so on special grounds that it shall detail, that in addition to any penalty, the following property shall be forfeited:
(1) Property connected with the offense found in the possession of the convicted person, under his control or in his account;
(2) Property of the convicted person which is equal in value to the property connected with the offense.
Post-conviction optional forfeiture of property financed or gratuitously given to another person by the convicted person:
6. Where no property as stated in section 5 is found for the grant of a forfeiture order under the section in question or to realize the forfeiture order in full, the court may grant a forfeiture order or direct that the order be realized from the property of another person, the acquisition of which was financed by the convicted person or which he transferred to the other person without consideration; the court shall not order as stated with respect to property which the convicted person financed or transferred to that other person prior to the commission of the offense for which he was convicted and with regard to which the forfeiture order was made, unless it has been proved that the financing or transfer were performed with the object of avoiding the forfeiture of the property.
Post-conviction optional forfeiture of property connected with an offense
7. Where a person has been convicted of an offense under sections 2, 3 or 4, the court may order the forfeiture of property connected with the offense, even if it is not found in the possession of the convicted person, under his control or in his account.
Post-conviction forfeiture of property of a person heading a criminal organization
8. Where a person has been convicted of an offense under the opening passage of section 2(a) for heading a criminal organization, the court may order that in addition to any penalty, the following property shall be forfeited:
(1) Property of the convicted person connected with another offense committed within the framework of the criminal organization headed by the convicted person, or equal in value to such property;
(2) Property of the criminal organization headed by the convicted person; where the court makes a forfeiture order under this paragraph, it shall take into account, inter alia, the scope of the criminal activities of the criminal organization. Forfeiture of property under this paragraph shall be done at the application of a District Attorney.
Presumption regarding property of the convicted person
9. Property found in the possession of the convicted person, under his control or in his account is presumed to be his property, unless proven otherwise.
Application of prosecutor to forfeit property - specification in the indictment
10. The application of a prosecutor to forfeit property under this Chapter, and the details of the property for which forfeiture is requested or the value of the property with respect to which the forfeiture order is requested shall be mentioned in the indictment; when additional property is discovered, the forfeiture of which is requested, the prosecutor may amend the indictment at any stage of the proceedings prior to delivery of the sentence.
Right of argument
11. (a) Notice of an application of a prosecutor for forfeiture of property shall be delivered to the convicted person, as well as to the owner of the property, the person in whose possession, under whose control or in whose account the property is situated, and to any person claiming a right to the property (in this Law referred to as a "person claiming a right to the property"), if he may be traced with reasonable diligence in the circumstances of the case.
(b) The court may order the publication of an application for forfeiture of property in a newspaper or in any other manner that it determines; such publication shall not prejudice the right of a person claiming a right to the property to file an application to amend or cancel the forfeiture order under section 28.
(c) The court shall not order the forfeiture of property under this Chapter except after having given the person claiming a right to the property, if known, an opportunity to state his case.
Proof of facts and conditions required for forfeiture
12. Proof of the facts and conditions for forfeiture under this Chapter, after conviction in criminal proceedings, shall be performed to the level required in a civil trial.
Transfer of hearing on forfeiture to civil proceedings and forfeiture within the framework of such proceedings
13. (a) Where the court considers that an examination of the arguments on forfeiture is likely to impede the continuation of the hearing in criminal proceedings, it may, on grounds to be recorded, determine that the hearing on forfeiture shall take place in civil proceedings in a District Court.
(b) Forfeiture of property in civil proceedings after the hearing has been transferred, as stated in subsection (a), from the court which convicted the person in the criminal proceedings, shall be performed under the provisions of this Chapter, mutatis mutandis, and the provisions of Chapter Four shall not apply.