EU Developments in Non-Conviction-Based Confiscation

The EU has a long history of directives concerned with confiscating proceeds of crime. Post-conviction confiscation, as the term implies, requires a criminal conviction before confiscation can occur. In this regard, such confiscation is unproblematic (though there are separate practical difficulties). More controversial, however, is the use of non-conviction-based confiscation (NCBC), whereby property can be confiscated absent criminal conviction and on the civil standard of proof. While NCBC has been adopted in some EU countries (notably Italy, Ireland, and the UK) and has withstood constitutional challenge, there has been resistance to adoption of an EU Directive on NCBC. This chapter will examine different NCBC models and EU developments and proposals, including Directive 2014/42/EU (where an initial draft included NCBC, but this was ultimately dropped in the final version) and Regulation Regulation 2018/1805 (with different types of confiscation), before questioning the effectiveness of the non conviction based confiscation approach