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Expansión: Putting a stop to the funding of organised crime

| News | Crimminal Law

Abril Gascón conducts a legal analysis in Expansión on the growing role of the Asset Recovery and Management Office in the fight against organised crime.

EXPANSIÓN - 21 April 2017.

Five years had to elapse between the time Spanish lawmakers proposed the need to create an entity specifically aimed at ascertaining the assets of investigated parties and subsequent management of the confiscated items and the opening of the Asset Recovery and Management Office in 2015 through approval of Royal Decree 948/2015, of 23 October, whereby the Government gave effect to the fifth final provision of Constitutional Law 1/2015, of 30 March, amending Constitutional Law 10/1995, of 23 November, on the Criminal Code, which also established the need to create what was then called the Asset Recovery Office, and which was simply the transposition of Directive 2014/42/EU of the European Parliament and of the Council, of 3 April 2014, on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union.

At that time, the idea was to create an administrative body with functions limited to locating and recovering property, objects, instrumentalities and proceeds from criminal activities committed by criminal organisations. It was in the 2015 reform that lawmakers opted to extend its powers to include the administration and management of said assets.

The aim of this extension is to help in some way to lighten the workload of judicial bodies, mainly relating to the ever-complex management of assets which, once confiscated, remain under their custody, as the system in force at the time had shown, on many occasions, that it was unable to effectively and efficiently combat organised crime.

This new Office is being progressively implemented in Spain, with the procedures before the National High Court currently concentrating in practice their most significant sphere of action. One particularly noteworthy aspect of the Asset Recovery and Management Office is that it may, under certain circumstances, act on its own initiative without it being necessary for the judge or court hearing the case, or the public prosecutor, to expressly request its assistance. In the cases in which it does not act on its own account, it must receive a certified copy of the judicial ruling or decree of the public prosecutor’s office requiring this intervention in order to undertake the asset investigations aimed at locating and recovering the property of the investigated parties or defendants.

Once the assets are located and recovered, the Office has the duty to maintain and manage them and, within such powers it may, following an authorisation from the competent judge or court, realise the confiscated asset or property early, or use it on a provisional basis. This power to make use of the property should be interpreted in the light of the regulation provided on confiscation in Articles 367 bis to septies of the Criminal Procedure Act, with it being necessary to distinguish between judicial property that may legally be traded from that which may not be traded by law (narcotics, forgeries etc), which must be destroyed subject to the corresponding legal requirements.

Before realising goods that may be legally traded (real estate, vehicles, jewellery, works of art etc.),  it will be necessary to have an appraisal by the Office itself, providing no prior appraisal has been recorded, together with the issuance of a financial analysis report.

Realisation of the confiscated goods may consist in delivery to a non-profit entity or the public authorities, the assignment of said task to a specialised person or entity, or an auction, as regulated in the Ruling of the Secretary of State for Justice implementing the asset management procedure conducted by the Office.

Unsurprisingly, the relatively recent regulation is a continuation of the repairing and restoring spirit that guided the previous legislation. Therefore, the product obtained from the management and realisation of the proceeds of crime will be applied, firstly, to compensate the victims, depositing the amount obtained in the accounts of the court hearing the case.

Consequently, the Asset Recovery and Management Office is not only a means of managing assets obtained from criminal activity over the necessary time until their realisation, but it is also a remedy to quickly and efficiently cut the sources of funding of organised crime, thus preventing this criminal activity being carried out under another structure and with the product of those same assets.

For any further information, please contact:

Abril Gascón Alarma
abril.gascon@AndersenTaxLegal.es

 

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