DOES THE INSTITUTE OF CIVIL ASSET CONFISCATION HAVE THE POTENTIAL TO REPLACE PREVIOUS LEGAL MEASURES THAT IMPLEMENT THE PRINCIPLE OF "CRIME DOES NOT PAY"?

Abstract

There is a widespread belief in society that a person who commits a criminal offence will eventually face the negative consequences of his or her unlawful actions, through the imposition of appropriate penal measures designed to influence the person and prevent him or her from committing further offences. In a legal society, the principle of “crime does not pay” is understood as the notion that the responsibility for breaking the law outweighs the benefits of breaking the law, making it unprofitable to commit criminal acts. Thus, in order to effectively implement this principle and protect the rights of society and citizens, it is necessary to use effective legal measures and instruments that not only deter persons from committing criminal acts, but also cause them appropriate harm that outweighs the benefits derived from committing a crime.

In 2010, the Presidency of the Republic of Lithuania set clear and tough targets for combating crimes from which individuals benefit financially. It was concluded that one of the most effective ways to combat corruption, economic, financial, and other crimes from which individuals benefit is to make them uneconomic and unprofitable. In other words, the State sought to establish a legal framework that would make it disproportionately unprofitable for individuals to commit criminal offences and to implement the principle of “crime does not pay”. In order to make crimes unprofitable, the Lithuanian legal system, based on the guidelines established by the European Union and the practice of foreign countries, introduced the institutes of confiscation of assets, extended confiscation of assets, and article on illicit enrichment, the primary purpose of which was to fight against corruption crimes.

This article examines the legal instruments for implementing the principle “crime does not pay”. The analysis of national and foreign legal literature, the work of legal scholars, and the jurisprudence of the courts has shown that the legal instruments of confiscation of assets, extended confiscation of assets, and the illicit enrichment norm do not work in practice. The paper reveals the reasons why these legal instruments, despite their noble purpose, have not achieved the objectives set by the legislator and the Presidency of the Republic of Lithuania in the fight against crime. One of the main reasons for the ineffectiveness of the legal instruments examined in practice is the excessive complexity of proving the illicit origin of the property to be confiscated and the inability of the law enforcement authorities to link this property to specific criminal offences committed by individuals.

In this regard, new measures have been sought for a long time to achieve this objective, and in 2020 the Law on Civil Asset Forfeiture of the Republic of Lithuania was adopted. The introduction of a new legal instrument in the Lithuanian legal system was expected to fill in the gaps in the previous legal regulation in order to make the confiscation of offenders' assets more effective. It has therefore become important to examine the potential of a relatively new legal institute – the civil confiscation of assets to achieve the objective of principle “crime does not pay”. Following the example of foreign countries, civil confiscation of assets was introduced in Lithuania in order to effectively combat the increasing complexity of criminal offences and the concealment of illegally obtained assets. This article examines the stages of civil asset forfeiture and why this legal instrument is more effective than the previous ones.  In order to examine the potential of civil confiscation to replace previous legal instruments, the institute is assessed in the context of the fundamental legal principles – the presumption of innocence, the right to property and the principle of proportionality. The national regulation of civil confiscation of property is compared with the legal regulation of foreign countries – Italy, the United Kingdom, Germany, France and Bulgaria, the similarities and differences between them are sought, and the functioning of the institute in practice is analysed. On the basis of the foreign legislation and the case law of the European Court of Human Rights, the compliance of civil confiscation of property with the aforementioned fundamental principles of law was assessed, and it was concluded that the institute in question does not contradict the presumption of innocence and the principle of the right to own property.

However, although civil confiscation is considered to be a more effective legal instrument than the previous ones for the preventive confiscation of illegally-originating assets, due to the lower standard of proof and the ensuring of public interest, there is a risk that, for the same reasons, the rule of probability of evidence in civil confiscation may be abused by the public authorities, thus violating the principle of proportionality. In other words, civil confiscation may become an end in itself for the authorities. However, it was concluded that, for those countries that apply civil confiscation in their law systems, the introduction of a strict regulation defining clear limits to the powers of the authorities would avoid unjustified confiscation of assets that violates the principle of proportionality and infringes the individual's property rights.