Confiscation as criminal law (or what)? On how the ill-advised discussion about 'the' legal 'nature' of confiscation obfuscates what really needs to be discussed
| Autor | Christoph Burchard |
| Cargo | Goethe University Frankfurt am Main, Germany |
| Páginas | 211-241 |
LATIN AMERICAN LEGAL STUDIES Volume 4 (2019), pp. 211-242
CONFISCATION AS CRIMINAL LAW (OR WHAT)?
ON HOW THE ILL-ADVISED DISCUSSION ABOUT
“THE” LEGAL “NATURE” OF CONFISCATION
OBFUSCATES WHAT REALLY NEEDS TO BE
DISCUSSED
Christoph BurChard*1
Abstract
Conscation –especially of the proceeds of crime– has turned
into a key instrument in international, European and Ger man
efforts to curb serious crime (e.g. organized, but also economic
crime). Central to the controversies about the legitimacy of con-
scation is its disputed legal nature: Is it criminal law (or what)?
By drawing on a major 2017 reform of the German conscation
regime as a case study, this article illustrates that the discussions
about the but punitive or but non-punitive (e.g. preventive) ra-
tionales of conscation are ill-advised as they do not account for
the nor mative openness of conscation. These discussions – as
they are prompted especially by constitutional criminal law and
its doctrines – obfuscate the unsettling political questions that are
foundational to modern developments. E.g. if a commonwealth
can still and indeed must afford unrestrictable fundamental rights
(like the presumption of innocence) in order to pre-empt the rise
of an authoritarian regime, even if this means that serious crime
goes widely unchecked and can hence possibly undermine the
democratic state. This article will not answer such questions. But
it will bring them to the fore so that we have a frank debate about
the very policy, polity and politics framework of the administra-
tion of “criminal” (or what?) justice in the age of conscation.
Key words: Conscation of the proceeds of crime; 2017 Reform of the German conscation
regime; Constitutional Criminal Law; Normative openness of conscation.
I. INTRODUCTION
“Crime must not pay!” – This international battle-cry fosters the introduction
and intensication of conscation (especially of the proceeds of crime) worldwide1.
*1 Goethe University Frankfurt am Main, Germany (burchard@jur.uni-frankfurt.de). Article received
on November 9, 2018, and accepted for publication on January 10, 2019.
1 See how this policy was discussed in the U.S. already in the eighties, Weiner (1981), p. 225 et seq.
For a more recent assessment of this worldwide established policy see Manes (2016), p. 143.
Christoph Burchard
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LATIN AMERICAN LEGAL STUDIES Volume 4 (2019)
It also underlies the major conscation reform in Germany in 2017,2 and current
legislative proposals at the EU level.3 The most controversial types conscations (like
extended and non-conviction based conscations) challenge many of the founda-
tional principles of criminal law and procedure, like the “guilt principle” (“Schuld-
prinzip” in Ger man), the presumption of innocence, or the onus of the prosecution
to establish facts beyond a reasonable doubt.4 Yet (criminal) policy makers (seem to)
accept these “costs” (the infringement upon these foundational principles), because
they consider conscation an important and effective tool to curb serious (especially
organized) crime.
My reections will start from this premise, i.e. that conscation is a functionally
sound instrument against serious crime and criminals. Not because I nd conclusive
empirical data to that end,5 but because legislators and (criminal) policy makers enjoy
the prerogative to make determinations on inconclusive factual premises6 (at least until
this determination is arbitrary or proven wrong in fact). This starting point prompts a
preliminary word of caution: Just as criminal law, conscation is no readily available
panacea against (serious) crime. Although I hence –for the sake of the argument
alone– commence from the premise that conscation is instrumental in bringing
serious crime to justice, I neither promote it as the singular or a singularly effective
means to do so nor do I say that the ends justify the means. Even if conscation
would be benecial or even necessary in the ght against serious crime, its individual
types and procedural compositions may very well be illegitimate. Necessity does not
imply legitimacy7 (but note that the reverse holds true as well in that a functional logic
of necessity does not necessarily imply its illegitimacy).
When looking to the German and European debates about the legitimacy of
conscation, its controversial legal “nature” –e.g. as a criminal sanction, an adminis-
trative measure or a civil law injunction– is at the heart of things (see infra at B I). In
2 See part A. I. of the report attached to the reform proposal of the German government, BR-Druck-
sache 418/16, 12 august 2016, available at http://dipbt.bundestag.de/dip21/brd/2016/0418-16.
pdf, p. 46. In the scholarship Meyer (2017), p. 351; Köhler (2017), p. 498.
3 See § 1. of the Explanatory Memorandum to the recent proposal for a regulation on the mutual recogni-
tion of freezing and conscation orders, COM/2016/0819 nal - 2016/0412 (COD), of 21 December
2016; see also the Communication from the Commission to the European Parliament and the Council
“Proceeds of organised crime: ensuring that “crime does not pay”” (COM/2008/0766 nal).
4 See saliger (2017d), 1024 et seq.; sChilling and hüBner (2018) p. 54 et seq.; BouCht (2014), p.
221 et seq.; Cassella (2015), p. 24 et seq.
5 See BouCht (2017), p. 105, on the scarce and inconclusive empirical evidences in this area.
6 See, in the case law of constitutional courts, in specic reference to criminal sanctions, e.g. German
Federal Constitutional Tribunal (BVerfG), Decision from 9.3.1994, BVerfGE 90, 145. See in general
in the constitutional doctrine BiCKenBaCh (2014). In particular on the prerogative of the legislator in
criminal matters cf. lagodny (1996), p. 173 et seq.
7 In fact, in the usual proportionality test used by the constitutional and supreme courts in order to
assess the legitimacy of legal norms, the stage of the necessity test is not the nal one. In the last step
(proportionality stricto sensu or balancing) one can still consider illegitimate the norm, although one
acknowledges that is appropriate and necessary to achieve the legitimate aim set forth by the legisla-
tor, cf., ex multis, BaraK (2012), p. 317 et seq.
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