Confiscation in Criminal Law

Confiscation as a legal consequence of a criminal offense is becoming in­creas­ingly important worldwide, particu­larly in the fight against economic crime. The increasing relevance of this kind of confiscation goes hand in hand with the in­creasing flexibility of traditional criminal law principles. This flexibility is readily apparent, for example, in the possibility – currently provided for in the criminal law of several countries – of ordering non-conviction-based confiscation. Thus, the questions of whether confiscation constitutes a punishment and whether it should be viewed as criminal in nature are of central importance. Given the complexity of these issues, a variety of mod­els of asset recovery have been developed, with some advocating civil law regulation, some administrative law regulation, and some regulation by means of criminal law. This diversity of opinion has far-reaching consequences when specific questions regarding the legitimate application of this instrument arise.
One goal of this project is to investigate the foundations of confiscation. The aim here is not only to describe and evaluate the various models but also to analyze the institutions of punishment and property ownership in their moral-philosophical and legal-theoretical dimensions. A second goal is to use this in-depth investigation to de­velop concrete standards for the regulation of confiscation and the interpretation of confiscation norms under substantive and procedural criminal law. In so doing, controversial questions, such as the following, will be ad­dressed: How should the exact amount of offense proceeds to confiscate be calculated (gross or net)? What is the basis for and what are the consequences of differentiating among various types of assets subject to confiscation (proceeds, products, instrumentalities, and objects of crime)? And what are the prerequisites for confiscation in the absence of a criminal conviction?