presentation by stefano betti & alexandra iliopoulou, bascap at the wco and oecd regional policy...
TRANSCRIPT
Stefano Betti - Senior Policy Advisor Alexandra Iliopoulou - Policy & Legal Advisor
WCO – OECD REGIONAL POLICY DIALOGUE 7-8 November 2016
Brussels v
Increasing the effectiveness
of prosecution and penalties
• Is prosecution in the “public interest” ? • Making choices at times of budgetary
constraints • Offering reduced penalties may be key
Prosecutorial discretion
Judges' room for manoeuvre • Minimum and maximum applicable
penalties (civil law systems) • Sentencing guidelines (common law
systems) • The role of the jurisprudence • Case study on IP crime and extradition:
dual criminality
“What bothers us most is when they take the money out of our pokets. One prefers to stay in jail with the money rather being free without money. This is what counts most.”
Gaspare Mutolo, heard by the Italian Anti-mafia
Parliamentary Committee, February 1993
UNICRI / ICC-BASCAP
REPORT
Confiscation of the Proceeds of IP Crime: a modern tool for deterring counterfeiting and piracy
• Deter criminality by affecting the balance of risk and reward.
• Disrupt and prevent funding of further IP and other forms of crime.
• Re-use the confiscated proceeds for crime prevention initiatives.
How POC laws tackle IP crime
Analysis of model provisions of effective POC legislation
Country case studies 1. The UK Proceeds of Crime Act 2. Unexplained wealth laws in Australia 3. The Italian anti-mafia legislation 4. POC legislation in Switzerland
Covers the process of identifying, tracing, freezing or seizing, confiscating, and returning proceeds of crime to its victims, enforcement agencies, or the State.
1. Legal framework 2. Institutional framework 3. International cooperation
Inventory of key legislative provisions and best practices
• Non-conviction based confiscation regime. • Reversal burden of proof as to the origin of the
property. • Extended powers of confiscation (extended
confiscation). • Allow confiscation of assets transferred to third
parties (third-party confiscation).
Legal framework to effectively implement POC legislation
• Strengthen the institutional structure of law enforcement.
• Improve the knowledge and expertise of investigators and prosecutors.
• Promote and improve cooperation between police forces and prosecutorial investigators.
Institutional framework to effectively administer POC legislation
• Establish appropriate mechanisms to facilitate mutual legal assistance in response to request by foreign States.
• Improve collaboration with foreign counterparts through appropriate law enforcement agencies and international bodies.
International cooperation mechanisms
• Creating deterrence is a multi-faceted effort • Higher penalties in legislation is one element • Look at the broader criminal justice system • Proceeds of crime legislation • Mindsets and preconceptions may render criminal
sanctions ineffective
Some concluding tips
Stefano Betti Senior Policy Advisor
Alexandra Iliopoulou Policy and Legal Advisor