Confiscation of Illegal Assets in the Spanish Civil Code. Historical and Conceptual Analysis
| Autor | Mateo G. Bermejo |
| Cargo | Universidad Nacional de San Juan, Argentina |
| Páginas | 191-209 |
LATIN AMERICAN LEGAL STUDIES Volume 4 (2019), pp. 191-210
CONFISCATION OF ILLICIT PROFITS IN
THE SPANISH PENAL CODE. HISTORICAL AND
CONCEPTUAL ANALYSIS
Mateo G. BerMejo*1
Abstract
The historical and conceptual analysis of the conscation of the
proceeds of crime in Spanish legislation shows that it has emer-
ged from the shadows of legal policy to become an important
institution which has been the subject of dynamic change. Thus,
it has evolved from its traditional consideration as an accessory
penalty or an accessory consequence of a penalty, to its current
consideration as an institution halfway between criminal and ci-
vil law. In just a few years, many articles of the Criminal Code
have been affected by this change, making some of the princi-
ples of criminal law such as culpability and proportionality, or
of criminal procedure such as the presumption of innocence,
inapplicable. This extraordinary evolution bears testimony to the
difculties suffered by the scientic and leg al subsystem to con-
form to inputs from the political system which is committed to
complying with international and EU organisms with a perma-
nent legal harmonization oriented towards facing the challenges
of complex criminal acts motivated by economic reasons.
Key words: Criminal Law, Conscation, Illicit Prots, Spanish Penal Code.
I. INTRODUCTION
Although criminology and criminal law studies promoted the investigation of
criminal sanctions and their repercussions on criminal recidivism and criminality
during the 60s and 70s of the 20th century, conscation of the proceeds of crime
remained largely unattended. Explanatory theories of crime did not deal with the
economic incentives and the dimension of benets.1
*1 Universidad Nacional de San Juan, Argentina (mateobermejo@yahoo.com.ar). Article received
on September 24, 2018 and accepted for publication on December 7, 2018. Translated by Beatriz
Larraín.
1 See alBrecht (2001), p. 56. In effect, the idea of depriving offenders of the economic benets
of their crime was not adopted as criminal policy in Europe until recent times. See Van Duyne,
Groenhuijsen y schuDelaro (2005), p. 120. Regarding the scarce attention that seizure of prots
has received until recently in Germany, despite existing legislation in §§ 73-73d of the StGB, hetzer
(1994), p. 181.
Mateo G. Bermejo
192
LATIN AMERICAN LEGAL STUDIES Volume 4 (2019)
In fact, until the second half of the 20th century, most criminal justice systems
contemplated the conscation of the instruments or effects of crime, but they did
not expressly regulate the conscation of the prots derived.2 Thus, for example, in
England, lack of regulation of the conscation of prots led to the impossibility of
conscation.3
In Spain, conscation has been present in positive law, from its origin, as an ac-
cessory penalty, affecting the instruments and effects of crime but not the prots ob-
tained illegally.4 However, despite the absence of specic regulation, case law solved
the problem by considering the proceeds as the effect of the crime and conscating
them as such.5
It is also probable that historical circumstances combined so that conscation
arose in the legal-criminal scene as a relevant instrument in the design of criminal
policy. On the one hand, during the second post-war an increasing regulation of
victim-less crimes, especially crimes whose object of protection are collective legal
rights, revealed that the preventive effectiveness of civil reparation was null in these
cases.6 The hypothesis that the rise of economic theories of crime created condi-
tions of possibility for considering the role of economic benets as an incentive to
commit crimes is also plausible. At the same time, the emergence of crime characte-
rized by high levels of instrumental rationality, such as cases of economic crime and
organized crime,7 created the need for preventive instruments appropriate to their
particularities. Likewise, criminological ndings have shown that not only organized
crime (the most extreme variant of crimes motivated by economic benets), but also
the majority of crimes, are committed with the intention of obtaining economic
benets,8 which may be considered evidence that has laid the foundations for the
generalization of the conscation of the proceeds of crime as an instrument of cri-
minal policy.
Thus, from the end of the 80s of the XX century, as a result of the adoption of
international norms of great signicance, several States began to review their regula-
2 See stessens (2002), pp. 3 and 4.
3 English common law powers do not contemplate seizure of economic benets of crime. Special
statutory powers have been created in order to accompany a judicial decision with a conscation
order. See allDriDGe (2001-2002) p. 283. In effect, to avoid the problems of criminal policy that the
impossibility to seize prots from illegal activities created, English Parliament gave courts the power
to seize prots from drug trafcking through the Dr ug Trafcking Offences Act 1986, later replaced by
the Drug Trafcking Act 1994. Bowles, Faure & Garoupa (2000), pp. 544, 545.
4
cerezo DoMínGuez (2004), p. 17.
5
cerezo DoMínGuez (2004), p. 43.
6
stessens (2002), p. 4. Also Bowles, Faure & Garoupa (2000), p. 543.
7 For that reason, it is said that criminal policy is currently oriented towards the investigation, seizure
and conscation of criminal assets. This is a fundamental concern in the legislative policy of the
European Union and in the international context, as the Vienna Convention, the Convention on the
Council of Europe and European Directives show; see choclán MontalVo (2001), pp. 331, 332.
8 With regards to these criminological ndings, see KilchlinG (2001), pp. 264, 265.
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