Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018, in force since 19 December 2020
With a mechanism recalling the supranational blacklisting, the Italian law-maker introduced with Legislative Decree no. 90/2017 national measures of asset freezing aimed to prevent and fight financing terrorism. This is a new tool to trace the money trail which potentially crosses the Mediterranean Sea to finance ISIL or other terrorist organizations. This paper moves from analysis of the recent regulation and puts national asset freeze in the broader context of preventive measures with ban effect. Then, it focuses on its compatibility with the principles of domestic preventive system, highlighting the most critical issues: on the one hand, the justiciability deficit, on the other hand, the uncertain assessment of dangerousness. The lack of guarantees of listed persons pushes to wonder whether this domestic regulation has accomplished an adequate and lawful balancing between security and liberty.
Initial Considerations Concerning the “Proposal for a Regulation of the European Parliament and of the Council on the Mutual Recognition of Freezing and Confiscation Orders
The proposal of EU Regulation, 21-12-2016, for the mutual recognition of all types of seizure and confiscation (extended, third-party and non-conviction based), - issued within the framework of criminal proceedings and accompanied by the related safeguards -, has a significant impact in terms of European criminal policy, above all on account of the legislative instrument chosen (even if this raises several doubts) and for the imposition of mutual recognition with respect to forms of non-conviction based confiscation, not covered by Directive n. 42/2014 (only cases involving escape and illness) and not adopted by the Member States, overcoming doubts over applicability of Framework Decision 783/2006. This would be an epochal development in terms of the efficiency of judicial cooperation, although concerns only forms of confiscation adopted in a "criminal procedure", concept not always clear because Member States adopt hybrid proceedings in this sector. The reference model adopted by the European legislator is autonomous confiscation under art. 76 a) c. 1 StGB (already in force) and, above all, § 4 of the German draft bill on the reform of criminal asset recovery BReg418 / 16. The Regulation could moreover represent a challenge to provide for a complete judicialisation within the criminal law of proceedings seeking to enforce forms of non-conviction based confiscation, in order to guarantee mutual recognition.
The key question of fundamental rights protection in the matter of asset freezing in the fight against terrorism has once again been submitted before the European Court of Justice, after the Council of Europe appealed the General Court’s judgments annulling the Council decisions, keeping Hamas and the Liberation Tigers of Tamil Eelam on the European fund-freezing list. Moreover, it is also interesting to compare the international preventive measure of asset freezing directed against certain persons and entities for the purpose of combating terrorism with the Italian non-conviction based confiscation applicable towards individuals included in the blacklists. This comparison reveals that the national confiscation, as a judicial measure, guarantees procedural rights and fair trial standards better than asset freezing