Criminal Asset Forfeiture and Extended Confiscation
Reconciling Efficacy with Fundamental Rights Under
Abstract: This article examines the instruments of extended confiscation and non-conviction based confiscation in the context of Directive (EU) 2024/1260, which must be transposed into Polish law by November 23, 2026. The author traces the evolution of European standards governing criminal asset forfeiture, analyzes landmark jurisprudence of the European Court of Human Rights (Raimondo, Gogitidze) and the Polish Constitutional Tribunal, and identifies practical defense mechanisms against prosecutorial asset seizure.
I. Introduction
Directive (EU) 2024/1260 on asset recovery and confiscation represents a watershed moment in the European debate concerning the permissible boundaries of state interference with property rights in the context of organized crime. With a transposition deadline of November 23, 2026, Member States—including Poland—must now grapple with legal instruments that have heretofore operated primarily within common law jurisdictions and in nations confronting endemic organized crime, most notably Italy.
The prospect of prosecutorial asset seizure absent a criminal conviction engenders legitimate concern among business proprietors and their legal advisors. It bears emphasis, however, that extended confiscation did not emerge ex nihilo. Rather, its doctrinal foundations were forged over decades through the jurisprudence of the European Court of Human Rights, the recommendations of the Financial Action Task Force, and the successive conventions promulgated by the Council of Europe. A rigorous examination of these sources illuminates both the ratio legis underlying contemporary reform and the constitutional constraints that cabin its application.
II. The Evolution of Confiscation Instruments in European Law
A. The 1990 Council of Europe Convention
The genealogy of European regulation governing criminal asset forfeiture commences with a deceptively straightforward proposition articulated in the preamble to the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime: among the “modern and effective methods” of combating serious criminality is “depriving criminals of the proceeds of crime.” This seemingly axiomatic principle, however, demanded careful reconciliation with constitutional guarantees of due process and property rights.
The 1990 Convention defined confiscation as “a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property.” As the Explanatory Report elucidates, the drafting experts discerned significant variations among signatory states regarding the adjudicatory body empowered to order forfeiture—ranging from criminal courts to administrative tribunals to separate judicial authorities conducting civil proceedings “entirely distinct from those in which the guilt of the offender is determined.” The latter category came to be denominated “in rem proceedings.”
B. The 2005 Warsaw Convention
The 2005 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism advanced considerably further. Article 3(4) introduced the requirement that States Parties “provide for the possibility of requiring that an offender demonstrate the lawful origin of alleged proceeds or other property liable to confiscation, to the extent that such a requirement is consistent with the principles of domestic law.” Concurrently, Article 5 expanded the scope of confiscation to encompass property that had been converted or transformed, property acquired from lawful sources but commingled with criminal proceeds, and derivative benefits including interest, investment returns, and other accretions.
C. FATF Standards
The Financial Action Task Force, in its Recommendation 4, articulated the principle that “countries may consider adopting measures that allow such proceeds or instrumentalities to be confiscated without requiring a criminal conviction, or which require an offender to demonstrate the lawful origin of the property alleged to be liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law.”
III. The Italian Preventive Confiscation Paradigm
Italian anti-mafia legislation constitutes the natural reference point for assessing the compatibility of prosecutorial asset seizure with Convention requirements. Law No. 575 of 1965, as amended by Law No. 646 of 1982 (the Rognoni-La Torre Act), established a mechanism for the seizure and confiscation of property belonging to persons suspected of membership in mafia-type organizations where “sufficient circumstantial evidence exists, such as a substantial discrepancy between lifestyle and declared or apparent income,” indicating that the property derives from criminal activity.
This model exhibits three characteristics of considerable analytical significance. First, confiscation proceeds within a framework distinct from criminal prosecution and does not require a prior conviction. Second, the burden of demonstrating the lawful provenance of property rests upon the person whose assets are subject to seizure. Third, measures may be applied not only to the suspected individual but also to family members and associated persons.
The Italian Constitutional Court has repeatedly pronounced upon the constitutional validity of this mechanism. In Judgment No. 27 of 1959, it observed that preventive measures find justification in the imperative of guaranteeing “the orderly and peaceful conduct of social relations”—not solely through the criminalization of prohibited acts, but equally through provisions designed to prevent their commission. In Judgment No. 23 of 1964, the Court clarified that preventive measures “do not relate to the commission of a specific prohibited act, but rather to a pattern of conduct defined by law as indicative of social dangerousness.”
IV. The Jurisprudence of the European Court of Human Rights
A. Doctrinal Framework
Over the past three decades, the European Court of Human Rights has developed a coherent jurisprudential line concerning the confiscation of property associated with criminal activity. The seminal authorities include AGOSI v. United Kingdom (1986), Raimondo v. Italy (1994), and Gogitidze and Others v. Georgia (2015).
B. Raimondo v. Italy
In Raimondo, the Court examined the Italian system of preventive measures as applied to a building contractor suspected of membership in a mafia-type organization. The applicant was subjected to police supervision, and his property was seized and partially confiscated—notwithstanding his ultimate acquittal in parallel criminal proceedings. The Court held that seizure constituted “a provisional measure intended to ensure that property which appears to be the fruit of unlawful activities carried out to the detriment of the community may subsequently be confiscated if necessary.” It emphasized that “in view of the extremely dangerous economic power of an organisation such as the Mafia, it cannot be said that the taking of such a measure at this stage of the proceedings was disproportionate to the aim pursued.”
Regarding confiscation proper, the Court determined that the measure served a legitimate general interest—namely, “ensuring that the use of the property in question would not procure for the applicant, or the criminal organisation to which he was suspected of belonging, advantages to the detriment of the community.” The confiscation was adjudged proportionate, “all the more so since it in fact entails no additional restrictions in relation to seizure.”
C. Gogitidze and Others v. Georgia
The Gogitidze case concerned a senior Georgian public official whose property—together with that of family members—was confiscated in administrative proceedings absent any criminal conviction. In this judgment, the Court undertook a comprehensive analysis of international confiscation standards, observing that “common European and universal legal norms support: first, asset confiscation in connection with serious offences such as corruption, money laundering, drug-related crime and so forth, without the prior existence of a criminal conviction; second, the burden of proving the lawful origin of property alleged to have been illicitly acquired may lawfully be shifted to defendants in non-criminal forfeiture proceedings, including civil in rem proceedings; third, confiscation measures may be applied not only to direct proceeds of crime but also to assets, including any income and other indirect benefits, obtained through conversion or transformation of direct criminal proceeds or through commingling with other assets; and finally, confiscation measures may be applied not only to persons directly suspected of offences but also against third parties who hold title acquired without the requisite good faith.”
The Court nevertheless underscored that procedural safeguards assume cardinal importance. In Gogitidze, the applicants were afforded the opportunity to present arguments before domestic courts, and the proceedings were adversarial in character. The Court further examined whether the findings of domestic tribunals were arbitrary—concluding that the courts “duly examined the prosecutor’s submissions in the course of evidential proceedings, taking into account numerous supporting documents,” and that analysis of the applicants’ financial circumstances “confirmed the existence of a substantial discrepancy between their income and their assets.”
V. The Polish Constitutional Perspective
A. The Constitutional Tribunal’s Pronouncement in SK 10/04
The judgment of the Polish Constitutional Tribunal of September 6, 2004 (SK 10/04), although addressing provisional security measures in criminal proceedings rather than extended confiscation per se, furnishes significant interpretive guidance for assessing the constitutional compatibility of prosecutorial asset seizure under Polish law.
The Tribunal observed that “security over property, irrespective of whether its purpose is to guarantee a debtor’s solvency in civil proceedings or the enforceability of pecuniary sanctions in criminal proceedings, cannot be evaluated as an unconstitutional restriction upon ownership or other property rights.” It emphasized that “even ownership is not an absolute right and—pursuant to Article 64(3) of the Constitution—may be subject to limitations, provided they are prescribed by statute and do not impinge upon the essence of the property right.”
Regarding the presumption of innocence, the Tribunal determined that a security measure “is not a sanction imposed upon the accused, but merely a means of guaranteeing the reality of any eventual sanction pronounced by final judgment.” It drew an instructive parallel with civil procedure, noting that “even in civil proceedings concerning pecuniary claims entirely unconnected with any criminal liability or even tortious conduct, security measures are likewise employed.”
B. Implications for Extended Confiscation
What proves decisive for the prospective constitutional assessment of extended confiscation is the distinction between provisional measures and definitive deprivation of property. The Tribunal repeatedly accentuated the “temporary, almost provisional character of security” and its nature as “merely a temporary restriction upon the disposition of ownership or other property rights.” Extended confiscation, by contrast, effects a permanent deprivation of property—thereby demanding more robust justification under proportionality analysis.
VI. Directive 2024/1260: The New Legal Architecture
A. Extended Confiscation Under Article 14
The Directive establishes harmonized frameworks for extended confiscation and non-conviction based confiscation (NCBC). Its material scope encompasses an extensive catalogue of offences: from participation in criminal organizations, through human trafficking, corruption, and money laundering, to environmental crimes and violations of EU restrictive measures.
Extended confiscation, pursuant to Article 14, applies where a national court “is satisfied that the property is derived from criminal conduct,” and where “a direct link between the property and the offence is not necessary if the court concludes that part of the person’s property was obtained through other unlawful conduct.” The prerequisite is that the offence be punishable by deprivation of liberty for a maximum of at least four years.
B. Unexplained Wealth Confiscation Under Article 16
Particularly consequential is Article 16, which introduces confiscation of unexplained wealth. Such confiscation becomes available where: the criminal offence is liable to give rise to substantial economic benefit; and the national court “is satisfied that the identified property is derived from criminal conduct committed within the framework of a criminal organisation and that such conduct gives rise to substantial economic benefit.” In undertaking this assessment, the court may consider that “the value of the property is substantially disproportionate to the lawful income of the affected person.” Member States may provide that unexplained wealth confiscation shall be pursued only where the property has been previously frozen.
C. Non-Conviction Based Confiscation Under Article 15
The NCBC catalogue under Article 15 encompasses circumstances where the offender: has died; has absconded or is absent; suffers from illness precluding participation in proceedings; or where the limitation period prescribed by national law is less than fifteen years and has expired following the initiation of criminal proceedings.
VII. Procedural Safeguards and Defense Strategies
A. Directive Safeguards
The Directive establishes an elaborate system of procedural protections. Persons affected by freezing or confiscation orders possess rights to: information concerning the order; an effective remedy; access to legal counsel; and a fair trial. Confiscation may not be ordered where it would be “disproportionate to the offence or the accusation,” and Member States may provide for non-application of confiscation in cases of “undue hardship.”
B. Avenues of Challenge
From the perspective of defense practice, several vectors of challenge to criminal asset forfeiture merit consideration:
Constitutional objections. Notwithstanding the ECtHR’s approbation of in rem confiscation mechanisms, Polish constitutional standards may impose additional requirements. Argumentation should center upon the proportionality of interference with property rights (Article 64 in conjunction with Article 31(3) of the Constitution), demonstrating that the measure is excessive relative to the pursued objective in the particular case. Invocation of the principle of legal certainty (Article 2 of the Constitution) may also prove apposite with respect to indeterminate criteria such as “judicial satisfaction” or “disproportionality to lawful income.”
Preliminary references. National courts may address questions to the CJEU concerning the interpretation of the Directive in light of the EU Charter of Fundamental Rights. Article 17 of the Charter protects property rights; Article 48, the presumption of innocence; Article 47, the right to an effective remedy. Of particular significance may be examination of the relationship between NCBC and the presumption of innocence in circumstances beyond those enumerated in Article 54(1)(c) of the UN Convention against Corruption.
Challenging factual determinations. As the ECtHR emphasized in Gogitidze, domestic courts must “duly examine the prosecutor’s submissions in the course of evidential proceedings.” Defense efforts should concentrate upon demonstrating: the absence of sufficient indicia of criminal provenance; the existence of alternative lawful sources of property; errors in asset or income valuation; and methodological deficiencies in establishing “disproportion.”
Protection of third parties. The Directive requires that confiscation against third parties be available only where such persons “knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation.” The burden of proof in this regard rests with the prosecution. In assessing good faith, relevant considerations include: whether the third party acted in accordance with law and commercial practice; whether requisite registration procedures were completed; and whether the transaction reflected market values.
Procedural objections. The ECtHR consistently emphasizes the significance of procedural safeguards. In Raimondo, it found a Convention violation occasioned by delay in removing registry entries following revocation of confiscation. In Gogitidze, it examined whether applicants were afforded the opportunity to present arguments. Violations of the right to be heard, inadequate reasoning, or excessive duration of proceedings may constitute independent grounds for challenge.
VIII. Practical Considerations for Asset Protection
Implementation of the Directive will generate novel challenges for both law enforcement authorities and legal practitioners. From a defense perspective, proactive documentation of asset legitimacy assumes critical importance—particularly given the heightened risk of prosecutorial asset seizure at early procedural stages.
The experience of jurisdictions that have long employed analogous mechanisms indicates that effective defense requires, above all, comprehensive documentation of income sources—not merely from recent years, but throughout the entire period during which assets were accumulated. Documents of particular significance include: tax returns; employment and service contracts; business activity documentation; gift and inheritance agreements with supporting materials; banking records; and documentation of individual asset acquisition transactions.
For business proprietors, the maintenance of accounting records permitting reconstruction of flows between business and personal assets is essential. For persons holding public office—already subject to asset declaration requirements—the critical imperative is consistency between declaration contents and actual asset status, together with the capacity to document every accretion.
Entrepreneurs should additionally consider implementing anti-money laundering procedures and undertaking legal due diligence to identify potential risk areas related to financing source transparency.
IX. Conclusion
Criminal asset forfeiture and extended confiscation manifest the evolution of European criminal law toward enhanced efficacy in combating organized crime—at some cost to traditional procedural guarantees. The jurisprudence of the European Court of Human Rights indicates, however, that this restriction encounters definite limits delineated by the proportionality principle and the requirement of genuine procedural safeguards.
Polish courts, in applying new provisions governing prosecutorial asset seizure, must preserve equilibrium between effective recovery of criminally-derived property and protection of individual rights. The quality of evidential proceedings and the genuine availability of defense against arbitrariness will prove determinative. As the ECtHR observed in Gogitidze: confiscation proceedings cannot be deemed arbitrary where they rest upon “thorough analysis of the financial situation” and where “discrepancies between income and assets were properly documented.”
The task confronting practitioners in this domain encompasses both vigilance over proper transposition of the Directive and effective advocacy for clients in concrete proceedings—deploying the full arsenal of remedies available under domestic, European Union, and international law. In this context, strategic legal counsel and lawful asset protection undertaken in anticipation of potential enforcement actions assume heightened significance.
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.
