- 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.
This module is a resource for lecturers
Case Study (Cen Zahangyao)
The defendant Cen Zahangyao colluded with a person overseas, Mr. Ayazi and co-defendant Mr. Wu Zheng in order to smuggle saker falcons (national key protection animals) out of China to other countries. After some negotiations, Wu Zheng took responsibility for booking cargo space and arranging customs documents. Cen Zhangyao promised to pay 3,000 yuan for the smuggling of every saker falcon.
Ayazi entrusted others to transport the falcons to Cen Zhangyao and after receiving the falcons, Cen transferred them to a place near the airport and handed them over to Wu Zheng. Then, Wu Zheng handed the falcons to Zhang Hao, who booked the cargo space and declared the falcons to customs officials as glass goblets. As agreed in advance, custom officers Zhu Qianwei and Qian Wenbin did not carry out an inspection. The falcons were to be transported to Qatar when they were discovered by other customs officers who opened and checked the cargo box.
Investigation showed that from 2007 to 2008, defendants Cen Zhangyao, Wu Zheng, Zhang Hao, Qian Wenbin engaged in the smuggling of 82 saker falcons.
On 24 March 2009, based on the criminal facts and circumstances of the defendants and the degree of harm to the society, the Intermediate People's Court of Ningbo City rendered the guilty verdict for all perpetrators. Cen Zahangyao received the most severe sentence - a death penalty of 2nd instance (death sentence with a two-year reprieve), deprival of political rights for life and confiscation of all personal property. Cen Zhangyao confessed his crime and sought redemption.
A few years after this sentence, the eight amendment to the criminal law of China adopted on 25 February 2011 abolished the death penalty for the crime of smuggling of rare animals, plants and products made thereof.
- Death penalty for crimes against wildlife
- What is the UN policy on the use of death penalty?
- What punishment philosophy underpins this punishment approach?
Case Study (Smuggling of migrants from Morocco to Spain)
On 22 May 2016, the defendant endeavoured to cross from Morocco to Spain through the border point of Beni-Enzar (Morocco). He was driving a vehicle with a fraudulent license plate. The vehicle had two hidden compartments: one behind the rear seat and one in the front of the vehicle, just under the dashboard, between the glove compartment and the engine. Following a search operation, law-enforcement agents discovered two migrants in the hidden compartment at the front of the car and one migrant hiding in the rear cubicle. The three migrants were not in possession of the necessary documentation to legally enter and stay in Spain.
The sentence was based on the defendant's guilty plea, in which he agreed to have committed the crimes of migrant smuggling and falsification of documents. The defendant also admitted that his conduct included aggravating circumstances, notably the endangerment of the life and safety of migrants. In respect of the aggravating circumstance of endangering the life and safety of migrants, and following prior jurisprudence (e.g. STS 887/2005, STS 1025/2012), the following elements were used as indicators that paragraph 3 of Article 318 bis of the Criminal Code could be triggered: (i) reduced dimensions of the hidden compartments where the migrants were transported, (ii) lack of ventilation, (iii) inhalation of contaminated air due to closeness to the engine, (iv) impossibility of moving.
Additionally, the prosecutor emphasized that the defendant was a recidivist for the same type of crime. He had finished serving his previous sentence (four-year imprisonment) shortly before committing the offense he was tried for. With a prior criminal record for migrant smuggling, the defendant was remanded in custody on 23 April 2015 for crimes related to the case under analysis until he was convicted to 6-year imprisonment for migrant smuggling and additionally given a fine for falsification of documents.
- Sentencing considerations in a smuggling of migrants case
- Aggravating circumstances
- What purposes of sentencing were likely used by the judge in this case?
- What were the aggravating and mitigating factors?
- How and why were incarceration and financial sanctions combined in this case?
Case Study (Butler vs. the United Kingdom)
A British national, Francis J. Butler, asked H. to carry cash from the United Kingdom to Spain for real estate transactions he intended to make in that country. The courier did not make it to Spain because he was stopped by British customs under the Drug Trafficking Act 1994. Driving a rented car, H. was stopped in Portsmouth by a British Customs and Excise officer. When asked how much cash he was carrying, H. answered "£500." A subsequent search of the car turned up £240,000. H. stated that the sum in question belonged to a friend who was meeting him in Spain. The money was seized in civil confiscation proceedings as it was determined that, based on circumstantial evidence, the money was directly or indirectly the proceeds of drugs trafficking and/or was intended for use in drug trafficking.
Francis Butler is a heavy gambler on horses and often held large sums of money in cash for this purpose. Apart from his winnings, he also inherited a large sum in cash from his father in 1990 and in 1992 realized a substantial profit on the sale of a house, which he bought and had refurbished. The applicant stated that he has never been convicted of any drugs related offences and maintained the confiscation of the assets carried by H. was illegal.
Francis Butler contacted the Customs and Excise authorities to reclaim the money and attended voluntarily for interview on 4 October 1996 together with his solicitor. On that occasion, the applicant was told that he was not under arrest. He answered the questions put to him and gave permission to examine his bank accounts as well as his account with his bookmaker.
An order for the detention of the applicant's money was granted by Portsmouth Magistrates' Court on 19 September 1996 on application of the Customs and Excise authorities pursuant to section 42(2) of the Drug Trafficking Act 1994. The Portsmouth Magistrates' Court made an order for the confiscation of the sum in question and ordered the applicant to pay the costs of the hearing.
The applicant's appeal was heard before Portsmouth Crown Court on 2 and 3 October 1997. The court upheld the forfeiture order and made an order that the applicant pay a further amount towards costs. The Court had already noted that the proceedings before Portsmouth Magistrates' Court and the Crown Court afforded the applicant ample opportunity to contest the evidence against him and to dispute the making of a forfeiture order. Finding the case inadmissible, the Court disagreed with the applicant's contention that confiscating his money was equivalent to a criminal sanction, and found it to be a preventive order designed to take out of circulation money that was presumed to be connected to the international trade in illicit drugs.
In Butler v The United Kingdom, the applicant filed a complaint to the European Court of Human Rights in which he argued that by having to prove that his money was not intended for drug trafficking beyond a reasonable doubt his right to be presumed innocent had been violated, considering that the public authorities only had to satisfy the standard of proof of a balance of probabilities for the same aspect. The Court noted that the proceedings before Portsmouth Magistrates' Court and the Crown Court afforded the applicant ample opportunity to contest the evidence against him and to dispute the making of a forfeiture order, and considered the applicant's complaint manifestly ill-founded and inadmissible.
Case related files
- Legality of non-conviction-based confiscation as a preventive measure
- What are the grounds for non-conviction-based confiscation, also called civil forfeiture, in general? How are they different or similar in this case?
- What crime did the applicant commit and was charged for? What are the functions of preventive confiscation?
- Why did the applicant fail to present evidence in support of the legitimate origin of seized cash?
- Was the applicant infringed in his right to be presumed innocent since he was compelled to bear the burden of proving beyond reasonable doubt (the criminal standard) that the money at issue was unconnected with drug trafficking, whereas the authorities were only required to prove on a balance of probabilities (the civil standard) that the money taken from him directly or indirectly represented any person's proceeds of drug trafficking or was intended by any person for use in drug trafficking?
Case Study (Sani Abacha's assets)
On 30 September 1999, the Federal Republic of Nigeria opened investigation of the parents and relatives of the late Sani Abacha who were accused of misappropriating, under false pretences, funds belonging to the Central Bank of Nigeria, issuing bank checks, bank transfer orders and cash withdrawals. Some of misappropriated funds were transferred to accounts opened with Swiss banks, either directly or through companies. Under investigation were Maryam Abacha, widow of Sani Abacha, Mohammed Abacha, son of Sani Abacha, Abdulkadir Abacha, brother of Sani Abacha, Ahmadu Daura, Bagudu and Gwarzo. The persons named above were charged with theft, breach of trust, involvement in a criminal conspiracy and money-laundering acts.
In its decision of 7 February 2005, the Federal Supreme Court of Switzerland also concluded that the greater part of these assets, worth some USD 458 million, was clearly the proceeds of crime and could therefore be returned to Nigeria without the latter having to issue a confiscation order. This course of action permits the assets in question to be returned quickly to the country to which they are owed, and is also progressive in an international context. Switzerland is the first country in which Abacha funds were deposited to return these assets to Nigeria on the basis of an official decision.
Part of worldwide settlement with recovered funds were to be used to fund projects in the health, education, water, electricity and road sectors and were monitored by the World Bank
Case related files
- Suisse, Tribunal fédéral suisse, 07 février 2005, 1A.215/2004. Juricaf.
- Federal Office of Justice (2005). Abacha Assets to be Handed Over to Nigeria. Press Release. February 2.
- World Bank (2006). Utilization of Repatriated Abacha Loot, Results of the Field Monitoring Exercise. Report Prepared by the World Bank with Cooperation from the Federal Ministry of Finance.
- Enrico Monfrini (2008). The Abacha Case. Article published in Recovering Stolen Assets, Mark Pieth ed., Peter Lang, Bern, 2008.
Confiscation and return of stolen assets directly and indirectly owned by a foreign public official
- Discuss the importance of the return of stolen assets to developing countries. How can one ensure that recovered assets are not just siphoned off again through corrupt acts?
Case Study (R (on the application of Coll) (Appellant) v Secretary of State for Justice (Respondent)  UKSC 40. On appeal from  EWCA Civ 328)
In the UK, it is often a condition of release from prison for certain medium or high-risk prisoners that they must live at "Approved Premises" (APs). There are 94 APs for men, distributed around England and Wales, including several in London. There are only 6 APs for women, who constitute 5% of the prison population, and none of them is in London or in Wales. This means that women are much more likely than men to be placed in an AP which is far from their homes and communities.
In 2004, the appellant, Ms. Coll, was sentenced to life imprisonment for murder with a tariff of 11 years and 3 months, which was due to expire in November 2015. She has since been released on licence. As a condition of that release, she was required permanently to live in Approved Premises in Bedford, not to leave to live elsewhere even for one night, without the prior approval of her supervising officer, and thereafter to reside as directed by that officer.
In 2013, Ms. Coll brought proceedings in connection to the limited provision of approved premises for women in England and Wales. She sought a declaration that the current provision of APs amounted to unlawful sex discrimination, contrary to the Equality Act 2010 (EA) and her rights protected by articles 8 and 14 of the European Convention on Human Rights, and that the Secretary of State had acted in breach of the public sector equality duty (PSED) under section 49 EA by failing to have due regard for the need to eliminate discrimination against women in the provision of APs. In part she argued that the prison system is "largely designed by men for men" and that women have been marginalised within it."
In a landmark ruling, the Supreme Court held that the current distribution of APs constituted unlawful sex discrimination against women. The Supreme Court noted that although in principle the different provision made for men and women might be justified, "the Ministry of Justice has never properly addressed its collective mind to the problem of providing sufficient and suitable places in APs for women which achieve, so far as practicable, the policy of placing them as close to home as possible."
- Whether there is unlawful sex discrimination
- Do you agree that placing the appellant in an AP far from home constituted an unlawful sex discrimination?
- In principle, can different provisions made for men and women be justified?
- What remedy would you recommend in this case (e.g., replacing one or more of the current, relatively large women's APs with a larger number of smaller units, more widely spread; closing one or more of the existing women's APs and replacing them with APs closer to the areas where large numbers of serious women offenders have their homes and families; re-designating one of the men's APs in London for women and one of the women's APs for men to make up the loss of male places; or considering alternative forms of accommodation for women released on licence)?
- Should governments make a positive shift in support of gender specific provisions?