Extended Confiscation and Civil Asset Forfeiture: A Legislative Impact Assessment of Two Anti-Corruption Proposals

Abstract

Among the “10 Measures Against Corruption” proposed by the Federal Public Prosecution Service (MPF), two stand out for their focus on the patrimonial effects of crime: extended confiscation and civil asset forfeiture. In line with the MPF, this study argues that Criminal Law must address the forms of criminality inherent to complex modern societies, particularly crimes affecting transindividual legal interests. However, the analysis also highlights the risks of these measures being declared unconstitutional. Extended confiscation imposes, in an almost arithmetic manner, the forfeiture of the difference between the total assets of the individual and those whose lawful origin can be demonstrated, which may be interpreted as a reversal of the burden of proof in criminal proceedings and a violation of the presumption of innocence. Conversely, the study argues that civil asset forfeiture may constitute a legally viable alternative, given its civil nature and its reparatory, rather than punitive, character. Nevertheless, it emphasizes the need to safeguard the rights of bona fide third parties to ensure the constitutionality of such measures.