MUTUAL COOPERATION AND CRIMINAL EFFICIENCY UNDER REGULATION (EU) 2018/1805 FOR THE MUTUAL RECOGNITION OF FREEZING AND CONFISCATION MEASURES

The present work is concentrated on the analysis of Regulation n. 2018/1805 and the "problems" created or the solutions that he tried to give in the internal regulations in the field of criminal cooperation and efficiency to the system of mutual recognition and collaboration between EU member states in the procedural criminal sector


INTRODUCTION
The principle of mutual recognition of decisions by judicial authorities of EU member states, codified in art. 82, § 1 TFEU 1 with respect to "any kind of judgment and judicial decision" (paragraph 2 letter a), was first adopted in the conclusions of the historic Tampere European The adoption of this Regulation represents a doubly significant event, because the principle of mutual recognition is affirmed in this sensitive sector, following the path already traced by the Framework Decision n. 783/2006/JHA 7 and also because the mutual recognition is imposed with a legislative provision directly applicable as a regulation, adopted with the ordinary legislative procedure on the basis of art. 82,par. 1 TFEU 8 . It is specified in recital n. 13 the cardinal principle of mutual recognition according to which although such measures may not exist in the legal system of a member state, the member state concerned should be able to recognize and implement such measures issued by another member state.
In approving the Directive n. 42/2014 aimed at pursuing the harmonization of confiscation measures, the Parliament and the Council had, in fact, invited the European Commission (EC) to a further analysis effort to present a legislative proposal on mutual recognition of freezing and confiscation orders at the earliest possible opportunity" (...), as well as to identify a model of actio in rem shared in respect of common traditions: "to analyse, at the earliest possible opportunity and taking into account the differences between the legal traditions and the systems of the Member States, the feasibility and possible benefits of introducing further common rules on the confiscation of property deriving from activities of a criminal nature, also in the absence of a conviction of a specific person or persons for these activities 9 .
With the Regulation in question, the path of mutual recognition was chosen, independently of the harmonization.
In the second direction, however, as stated in art. 41 this Regulation is binding in its entirety and directly applicable in member states in accordance with the Treaties.
As shown in recital n. 11 "to ensure the effectiveness of mutual recognition of freezing and confiscation orders, the rules on recognition and enforcement of such provisions should be established by a legally binding and directly applicable Union act". Directive's ultimate purpose, which is based, in fact, on art. 82, § 2, as well as on art. 83, § 1 TFEU 11 , is to pursue "the adoption of minimum standards" to approximate the regimes of member states on freezing and confiscation of assets, thus fostering mutual trust and effective cross-border cooperation. R. Curso Dir. UNIFOR-MG, Formiga, v. 11, n. 1, p. 107 -146, jan/jun. 2020 possible subsequent confiscation; highlighting the close link between freezing and confiscation (recital 27). Reference is made to the same art. 7 to the need to introduce a specific regulation for the correct management of "frozen" assets in order to guarantee their conservation, a problem that will be accentuated following the entry into force of Regulation, especially where the object of confiscation will be represented by a company, with respect to which the continuation of economic activity should be guaranteed if it is a viable economic reality, capable of being on the market in conditions of legality. This problem is less widespread in other jurisdictions where it is difficult to seize and then confiscate companies 12 because of the reluctance of public prosecutors to confiscate companies that are active and able to guarantee work and produce profit, but difficult to manage once seized and confiscated.
The Directive allows the "competent authorities" to adopt the freezing without demanding that it be pronounced or the confirmation of provisions of the competent authorities by the judicial authority itself. The Directive is satisfied with guarantees to contemplate the mere possibility of confirmation by the judicial authority, but not the obligation (article 8 (4)). Without prejudice to the fact that in recital no. 31 and in art. 8 n. 3 it is envisaged in guarantee terms a continuous verification of the requirements that justify the freezing (seizure), as well as the delimitation of its duration.
The Directive has been implemented by 25 countries: extending the scope of the mandatory confiscation of profits and the instruments of the crime, also in light of the broad notion of profit provided for by the Directive (as happened in the Austrian legal system that extended the confiscation pursuant to § 19 to StGB also to the surrogates) 13  general confiscation of property, a form of confiscation not provided for by the Directive, but known in this system in the context of the fight against serious criminal phenomena such as, lastly, the arms trafficking (article 222-66 introduced by article 26 of LOI No. 2016-731 du 3 juin 2016); o introducing also the confiscation without condemnation, at least in the hypothesis of escape and illness as happened in the Austrian system ( § 445), or beyond the hypotheses foreseen in the Directive in case of death of the offender, of extinction of the crime, of lack of responsibility as occurred in the Spanish legal system (el decomiso sin sentencia, article 127 ter of criminal code, Ley organica 1/201512).
Harmonization should be a precondition for mutual recognition, not least because several member states have not limited their application to Eurocrimes.

LEGAL BASIS AND SCOPE OF REGULATION (REFERRAL).
The use of a Regulation directly applicable in member states pursuant to art. 288 TFEU is a choice inspired by the need for appreciable efficiency, representing the only instrument which, removed from the acceptance by member States, entails an immediate and uniform application 14 .
Regarding the legal basis under consideration 15 , it seems appropriate to remember that some perplexity arises about the fact that we end up thus giving a direct competence in matters of criminal procedure to European legislator, even if only for the purpose of vertical cooperation; a choice that assumes a strong political value considering the impact in terms of criminal policy of the Regulation under examination and the effect of dragging mutual recognition on substantive issues, apart from the fears in terms of protection of fundamental rights 16 to which EU legislator seeks to respond in the direction of harmonization of the guarantees of criminal proceedings in member states, through numerous directives recently adopted and referred to in recital no. 18 of the current draft Regulation requires respect. In any case, the perplexities considered or in any case the audacity of the choice made in the adoption of this Regulation seems to be very clear to the European legislator if he feels the need to specify in recital n. the legal form of this act should not constitute a precedent for the future legal acts of the Union in the field of mutual recognition of judgments and judicial decisions in criminal matters 17 . The choice of legal form of future Union legal acts should be carefully assessed on a case-by-case basis, taking into account, among other factors, the effectiveness of the legal act and the principles of proportionality and subsidiarity 18 . This clarification is declined after having stressed that this Regulation is adopted in full compliance with the principle of European (Community) subsidiarity, in the sense that, as underlined in recital n. 51, this intervention is inspired by this principle enshrined in article 5 TEU because the objective of this Regulation, namely mutual recognition and enforcement of freezing and confiscation orders, cannot be achieved in sufficient measure by member states but, due to its scale and effects, it can be better achieved at Union level; without prejudice to the fact that this Regulation is limited to what is necessary to achieve this objective, in compliance with the principle of proportionality as set out in the same article (recital 51).
Regulation should cover all crimes, on the contrary with what is explicitly stated in recital n.
14, from the Directive 42/2014 which refers only to serious transnational crimes, the so-called "Eurocrimes" (the ten serious crimes indicated in article 83, paragraph 1) insofar as it is based on art. 83 TFEU (even if the Directive is also based on article 82, paragraph 2, as well as on article 83, § 1, and article 3 extends the definition of crime to the criminal offense envisaged by others legal instruments if the latter specifically provide that this Directive applies to the offenses harmonized in them. It is stated in the recital in question that the offenses covered by this Regulation should not therefore be limited to particularly serious crime which has a transnational dimension, since article 82 TFEU does not impose such a limitation for measures which define rules and procedures to ensure recognition of mutual judgments in criminal matters. Article 3 of the Regulation contains the list of serious crimes punished by imprisonment of a maximum duration of at least three years, for which the verification of the double criminality of the facts is not 114 LIAKOPOULOS, D. Mutual cooperation and criminal efficiency under regulation (EU) 2018/1805 for the mutual recognition of freezing and confiscation measures. required, borrowing a choice for the first time adopted by the European legislator with art. 2, § 2, of the Framework Decision n. 2002/584/JHA of the European Arrest Warrant 19 and this list is the same as that foreseen in other instruments on mutual recognition (thirty-two types of offense), to which is added the offense specified in point (y) of the list, included following the introduction of common minimum standards for the fight against fraud and counterfeiting of non-cash means of payment. In the case of offenses not included in the list, recognition may be refused if the alleged crime is not a criminal offense in the state that must execute the provision (article 3, paragraph 2) on the principle of double criminality (while the Framework Decision 783/2006/JHA presupposes the so-called "double confiscability") 20 .

MUTUAL RECOGNITION OF SEIZURE ORDERS.
Directive No. 2014/41/EU in its general framework, appears largely loyal to the approach followed by the EU legislator 21 . However, the Investigation European Order in criminal matters (IEO) does not apply to seizure for confiscation purposes, which therefore remains governed by Framework Decision 2003/577/JHA 22 pursuant to art. 39 will be replaced by the Regulation in question for those member states bound by it as of 19 December 2020.
Regulation, while admitting as foreseen in Directive 42/2014, that the seizure order (freezing) may be ordered by a non-judicial authority, and in particular article 8 a) ii) another competent authority designated as such by the issuing state and having jurisdiction in the criminal sphere to order the freezing of assets or to carry out a freezing order in accordance with national law, in any case it claims that before being transmitted to the enforcement authority, the provision of freezing it is validated by a court or a public prosecutor in the issuing state. In the same terms it is pronounced recital no. 22 of Regulation 23 . It is not required, however, as it would have been desirable in terms of guarantees, that any seizure pronounced by the public prosecutor is validated by the judge.
Regulation includes the conditions for the issue and transmission of a freezing provision provided for in art. 6 of Directive 2014/41/EU, so as to apply the same conditions both to freezing for probative purposes and to that for the purpose of confiscation. Furthermore, in order to simplify the procedure with respect to Framework Decision 2003/577/JHA, the issuance of freezing provision should take place using a standard model and no longer a "certificate" accompanying the national decision to be executed.

MUTUAL RECOGNITION OF CONFISCATION ORDERS.
The the extended confiscation powers expressly indicated, but do not prejudice the adoption of further powers).
In practice, however, a rather narrow interpretation of the Framework Decision 783/2006/JHA 25 has been established on the basis of which it would not allow the mutual recognition of the confiscation measures contemplated by the same Directive 42/2014, as emerges from the impact study carried out from the EC in preparation of the Proposal in examination (Inception Impact Assessment). It is true that for the purposes of cooperation in this matter, the 1990 Strasbourg Convention continued to be used for the laundering, research, seizure and confiscation of the proceeds of crime (or bilateral agreements), which allows cooperation also in relation confiscation orders without conviction, as specified in the Explanatory Report, provided that the proceedings are conducted by the judicial authority and are of a criminal nature, in the sense of involving instruments or proceeds of crime.

783/2006/JHA.
Also in relation to confiscation (article 2 (8) b), it is specified in Regulation that a "specific issuing authority" can be considered as a "specific authority" designated as such by the issuing state and which is competent in criminal matters to perform a confiscation order, but it is specified that the provision must be "issued by a court in accordance with national law".
In relation to the object of confiscation covered by the principle of mutual recognition, it should be noted that the Regulation includes, unfortunately, not only the proceeds of the crime and their equivalent value, in whole or in part (article 2, a)), but also the tools and above all also "the value of such instrumental good", which as highlighted elsewhere assumes a punitive purpose and not that interdictory character that should be the ablation tool's and which poses problems of constitutionality, where the relative confiscation is applied in violation of the principle of proportion and guilt as a fundamental criterion of commensurate sentence. Among other things, in the concept of instrumental goods we also include the good destined to be used, so we could even consider that this form of confiscation is also based on the presumption of illicit The definition of the notion of income coincides with the broad definition provided by Directive n. 42/2014, the comments of which are referred to (article 2, no. 4 "income": any economic advantage derived, directly or indirectly, from offenses, consisting of any asset and including subsequent reinvestments or transformations of direct proceeds and any economic advantage assessable).
Interesting to highlight that pursuant to art. 18, n. 5 if the issuing authority has issued a confiscation order, but not a freezing order, the executing authority may, as part of the measures referred to in paragraph 1" (ie the "measures necessary for its execution at same as a national confiscation order issued by an authority of the executing state") to decide to freeze the assets concerned on its own initiative, in accordance with its national law, with a view to the subsequent enforcement of the confiscation order.
This provision fits well into the debate concerning the possibility of pronouncing a confiscation order in the absence of a prior seizure order, essentially providing that if the prior execution condemnation sine qua non of confiscation is considered in the executing state, it will be possible to proceed with the seizure even in the absence of a request from the issuing state.

PROCEEDINGS IN CRIMINAL MATTERS.
Pursuant to art. 1 of the original Regulation Proposal, the mutual recognition of confiscation orders was imposed only in relation to all the measures taken in the context of a criminal procedure ("within the framework of criminal proceedings"), while in the approved version it is required only that these are cases in "criminal matters", while continuing to specify that they cannot be administrative or civil proceedings.
It is certainly referred to the confiscation orders without conviction that can be enacted in a original more restrictive version of the proposal, the Explanatory Memorandum makes reference to hypotheses of actio in rem pure, as when the offender cannot be identified, provided that the confiscation was always a "measure imposed by a court following proceedings in relation to a criminal offense"; this last expression was to be interpreted not in the restrictive sense envisaged by the Directive, namely the hypothesis in which a criminal trial has begun but cannot be pronounced condemnation, but precisely as a hypothesis of real actio in rem, of a procedure autonomous in relation to assets related to a crime.
In particular, the Italian representation has requested an extension of the scope of Regulation also in relation to confiscation orders without conviction pronounced in a civil or administrative procedure, recalling the notion of "criminal matter" adopted in Directive 2011/99 of the 13.12.2011 27 on the Order of European Protection of Victims (to allow the recognition of protection orders of victims of crime taken by a judicial authority not only criminal, but also civil or administrative).
Following the agreement of 8 December 2017, the Board amended art. 1.1 of EC proposal, extending the scope of application of the principle of mutual recognition from the mere sector of freezing and confiscation measures disposed "in the context of a criminal proceeding" to that much wider than the disposed provisions "in the framework of a proceeding in criminal matters" (proceeding in criminal matter). Recital (13) of the Proposal states that the Regulation should apply to all freezing and confiscation orders issued in the context of criminal proceedings (the term "criminal action" is used in the proposal of the 2017 version), with the warning that proceedings in criminal matters is an autonomous concept of EU law, rather it is specified in the final version of EU Law Regulation interpreted by the European Court of Human Rights (ECtHR), without prejudice to ECtHR jurisprudence; this reference seems appropriate also because the adoption of a Regulation in a more direct and immediate manner will call into question the Court of Justice of the European Union (CJEU) pursuant to art. 267 TFEU as an interpreter in its original capacity, intended to resolve the interpretative doubts of member states in its application. Always based on recital n. 13 the term "proceeding in criminal matters" therefore contemplates all types of freezing provisions and confiscation orders issued as a result of proceedings related to a crime and not only the measures that fall within the In the definitions referred to in art. 2 is specified at number 2) which is considered "confiscation order": a final sanction or measure imposed by a court pursuant to a proceeding related to a crime, which results in the permanent deprivation of an asset of a natural person or law, while in the proposal reference was made to "a proceeding for a crime".
With this change, then, as it emerges in recital (13) and as it emerges in the press release of 8 December 2017 on the orientation reached by the Council on the proposed regulation, it is proposed, among other things, to ensure that mutual recognition covers a wide range of seizures, including those taken without conviction and including certain systems of preventive confiscation, provided there is a link with a crime.
We continue, however, to exclude mutual recognition for measures "issued in the framework of a civil or administrative procedure", as established in art. 1 of Regulation; category in which the measures of expropriation of goods not connected to crimes are certainly included. Although we can highlight a slight but significant difference in language between the version of recital n. 13 in the proposed Regulation and in the final version, as soon as it was approved: the proposal states: the freezing measures and the confiscation orders issued in civil or administrative proceedings are excluded from the scope of this Regulation"; in the final version "freezing and confiscation orders issued in civil or administrative proceedings should be excluded from the scope of this Regulation.
In reality, the underlying problem that remains is to establish what is meant by proceeding in criminal matters, that is, if any procedure aimed at applying forms of confiscation of proceeds or instruments of the crime can be included, regardless of the internal qualification of the procedure in question and from the relevant legislation used in member states. In particular, within the category of hybrid measures that characterize the adoption of expanded forms of confiscation and without conviction, there are procedures defined by the internal "civil" or "administrative" legislator or intended for the adoption of forms of confiscation included "in the civil or administrative matters", but which fall perfectly within the definition of "proceedings related to a crime" as they relate to the profits or instruments of offense, such as the proceeding to apply the LIAKOPOULOS, D. Mutual cooperation and criminal efficiency under regulation (EU) 2018/1805 for the mutual recognition of freezing and confiscation measures.
In any case, the manifest will of the United Kingdom to comply with the Regulation leads to the view that the British Government considers that the confiscation under the Proceeds of Crime However, this proceeding refers to assets considered by the Court of illegal origin as the proceeds of crime ("property which is, or represents, property obtained through unlawful conduct"). Moreover, as is the italian case in the application of prevention confiscation, it is envisaged that it is possible to begin the civil procedure following an acquittal in criminal court, as reiterated in R (Director of Assets Recovery Agency) v. Taher case 30 , precisely in consideration of the different standard of test; the supreme court, as stated in the Serious Organized Crime Agency v. Hymans 31 , states that an acquittal in criminal trial does not definitively establish that the defendant has not committed the offense, but only proves that the tests were insufficient to satisfy the required burden of proof; even death prevents the proceeding in rem against the assets of allegedly illicit origin, as stated in Serious Organized Crime Agency v. Lundon case 32 , or the "the use of public law powers, by the state, in civil courts" 34 and on which compliance with the guarantee principles of criminal matters, also in light of the European Convention on Human Rights (ECHR). The supreme court, however, believes that it is not a criminal sanction, but having "restitutionary nature" 35 because it does not have the right to hold the proceeds of crime, and therefore the principle of non-retroactivity does not apply; or, above all, as reiterated in Gale v. Serious Organized Crime Agency case 36 , resuming the Walsh v. Director Asset Recovery Agency 37 , it is believed that the use of the standard of civil proof of a balance of probabilities, in civil recovery proceeding in order to ascertain the illicit conduct does not violate the presumption of innocence ex art. 6, par. 2, ECHR 38 .
On the other hand, Ireland did not join the Regulation probably fearing to have to adopt penalties in the proceeding for the adoption of civil forfeiture, introduced with the Proceeds of Crime Act 1996 and the Criminal Assets Bureau Act 1996 ("CAB"), which allow the initiation of a procedure for the application of confiscation, without the need to ascertain a crime, provided there is "belief evidence" or reasonable grounds for suspecting that a person is the owner or possesses goods obtained directly or indirectly from criminal activities; this presumption can be refuted by the recipient of the measure because he is responsible for proving the legitimacy of his assets, with a substantial inversion of the burden of proof 39 .
Thus, in this proceeding, it is not so much the use of relative evidence and the greater use of documentary evidence that is contested, but above all the violation of respect for the presumption law. The Irish supreme court, however, believes that the 1996 Act does not violate the constitutional prohibition against retroactive application of the sentence (article 7 ECHR), because the acquisition of assets obtained through the crime was illegal before the entry into force of such an act and does not become illegal because of him; there has been no unjust inversion of the burden of proof as the recipient of the measure has the possibility of refuting the presumption of illegal origin of the goods; the act does not violate the prohibition of selfincrimination as the evidence obtained in civil procedure cannot be used in a subsequent criminal trial; the act does not violate the right to private property since the state has a legitimate interest in the removal of illicit proceeds; the proceedings for confiscation under the 1996 act are not criminal but civil 40 .
Returning to Regulation, some perplexity raises the fact that recital no. 13 states that the proceeding in criminal matters may also include criminal investigations carried out by the police and other law enforcement agencies; it is not considered that Regulation can refer to forms of freezing and confiscation not adopted in a judicial proceeding but in the investigation phase, because this does not seem absolutely acceptable in a rule of law representing already the seizure, and the more confiscation, the form of limitation of a citizen's right, such as the right of property guaranteed by art. 1 of ICHR Protocol and art. 17 of the Charter of Fundamental Rights of the European Union (CFREU) 41 .
Among other things, the definition of confiscation contained in art. 2, n. 2 of Regulation refers to a measure taken by a judicial authority and also the freezing pursuant to art. 2, n. 8, ii) even if not adopted by the judicial authority, to be transmitted, it must be validated by a court or a public prosecutor in the issuing state, as examined (the problem remains that the validation of the public ministry is considered sufficient in the absence of judicial control).
The definition of the object of confiscation seems to be not coordinated with the change in definition of the reference procedure adopted with the 2017 reform and implemented in the final version of Regulation, where the proceeds and instruments of the crime are included, not only where they can be confiscation by virtue of "one of the confiscation powers provided for in Directive 2014/42/EU" (letter c), but also d) subject to confiscation under other provisions relating to the powers of confiscation in the absence of a final conviction provided for by the legislation of the issuing state following a proceeding for a crime. This expression of "proceeding for a crime" and not "connected to a crime" is rather ambiguous, even if we do not speak of a criminal trial; not to contrast with art. 1 that allows the mutual recognition of confiscation orders taken "in a proceeding in criminal matters" and with the same art. 2 where in defining the concept of confiscation refers to a provision taken in a "proceeding related to a crime", the expression "following a proceeding for a crime" should refer to the final conviction and not to the confiscation order, or simply it must be interpreted as a mere proceeding connected to a crime and not aimed at ascertaining the crime. Moreover, in English version this problem does not arise because the most correct expression of "proceeding in relation to a criminal offense" is used both in the definition of confiscation and in the definition of the object 42 .
In the accompanying report to the original Regulation proposal, an example is given by the German law draft now in force aimed at implementing Directive 2014/42/EU, which provides for "autonomous" confiscation which allows an asset to be confiscated in the absence of conviction if, on the basis of all the circumstances of the case, the court is convinced that the asset is the result of crime and the person receiving the confiscation order cannot be prosecuted or condemned for that crime. In reality, in German legal system a form of autonomous confiscation, such as that at the base of the model of confiscation without condemnation called for by Regulation, was already partly foreseen. With the reform law on the subject (previously mentioned, Gesetzes zur Reform der strafrechtlichen Vermögensabschöpfung vom 13.04.2017, BGBl. I S. 872) in the implementation of Directive 42/2014, an extension of possibilities for autonomously applying the confiscation, as will be discussed below, and further discipline has been introduced in the field of terrorism and organized crime, introducing a legal mechanism allowing for the application of confiscation without condemnation of assets of suspected criminal LIAKOPOULOS, D. Mutual cooperation and criminal efficiency under regulation (EU) 2018/1805 for the mutual recognition of freezing and confiscation measures.

JURISPRUDENCE.
The notion of proceeding in criminal matters, as connected with a crime, accepted in Regulation, recalls the notion of procedure also in re accepted by the Explanatory Report of the 1990 Strasbourg Convention which includes any proceedings carried out by a judicial authority and which criminal nature, in the sense of covering instruments or proceeds of crime.
On the contrary, it does not seem possible to refer to the notion of criminal matter of ECtHR and to the relative criteria for establishing the criminal nature of a procedure and a measure, because apart from the not always completely consistent and unequivocal use of these criteria in the same jurisprudence of ECtHR, the latter has always substantially excluded the traceability of the proceedings for the application of forms of confiscation without condemnation from the confiscation of prevention to the English civil recovery or other forms of civil forfeiture.
The autonomous notion of "criminal matter", to which the guarantees provided for by ECHR apply, is founded by ECtHR on the parameters developed starting from Engel v. Netherlands sentence of 8 June 1976 44 : the official formal qualification or determination of the membership order 45 ; the "nature" of infringement with particular reference to its forms of typification and the procedure adopted; the nature of sanction and degree of severity of the sanction 46 , considered as the sole criterion in Engel case 47 . The sub-criteria adopted to establish the nature of proceeding are not so significant because ECtHR limits itself to claiming that the procedure is applied by a Recommendations and the two relevant Council of Europe Conventions of 1990 and 2005 concerning confiscation of the proceeds of crime (ETS No. 141 and ETS no. 198 (...), the court observes that common European and even universal legal standards can be said to exist which encourage, firstly, the confiscation of property linked to serious criminal offences such as corruption, money laundering, drug offences and so on, without the prior existence of a criminal conviction (...)" 56 .
ECtHR, already in Labita case 57 , has recognized the compatibility with ECHR of the prevention measures only because it is based on an assessment of social hazard of the recipient, thus considering that the prevention measures are not in contrast with ECHR principles against individuals suspected of belonging to mafia even before their conviction, since they tend to prevent the carrying out of criminal acts, in consideration of an assessment of danger of the subject who is the recipient, as a justifying assumption of an ablative intervention though not criminal-instrumental to the protection of public interests.
From the recognition of the preventive and non-punitive nature of anti-mafia confiscation, it follows the failure to violate the right to property (article 1 of the 1st Additional Protocol of ECHR), the presumption of innocence (article 6, § 2) 58 and the principle of legality (article 7), where it is possible to apply it retroactively 59 .
In one of the first cases on the matter, the Commission, in applying these parameters, cites in Deweer v. Belgium sentence of 27 February 1980, in which it is reiterated that the criminal prosecution can be defined as the official notification issued by the competent authority of the reproach of having committed a criminal infringement, and, as stated in Guzzardi v. Italy case of 6 November 1980, the comparison of art. 5, par. 1 a) with art. 6, par. 2 and art. 7, paragraph 1, shows the purposes of ECHR, that you cannot have a conviction without a legal assessment of a criminal or, possibly, disciplinary infringement; however, the use of these terms for preventive and security measures is not compatible with the principle of strict interpretation (with the prohibition of analogy), which must be observed in "criminal matters". A preventive measure, it is specified, is not intended to repress an infringement, but is based on indices that denote the propensity to commit a crime. confiscation is a measure of prevention, which has a function and a distinct nature from that of criminal sanction: while the latter tends to repress the violation of a criminal law and therefore its application is subject to the ascertainment of a crime and guilt of the accused, the prevention measure does not imply a crime and a conviction 60 , but tends to prevent the commission from subjects deemed dangerous. It is denied that the suspect assumes the status of accused, it is noted that the preventive proceeding is independent of criminal proceedings and does not imply a guilty judgment, it is denied that confiscation constitutes "in essence" a criminal sanction relevant to ECHR. The anti-mafia confiscation presupposes only a preliminary declaration of social danger, based on the suspicion of belonging to a mafia-type association of the affected subject (and was subject to the application of a personal preventive measure) and, therefore, has no repressive but preventive function aimed at preventing illicit use of the property affected. It is also considered that the severity of the measure is not a sufficient criterion for determining whether it is a criminal sanction, underlining that confiscation is not an exclusive measure of criminal law, but it is widely used, for example, in administrative law. Member states' law of the Council of Europe 159/2011), as this legislation does not respect the principle of legality/taxability in determining the categories of recipients of generic danger and the same content of measure of personal prevention (the law, although being accessible, it does not guarantee the predictability of measure, whose application is left to the excessive jurisprudential discretion).
In Gogitidze case the ECtHR does not qualify "penalty" a form of confiscation without condemnation (civil proceeding in rem), provided in the order of Georgia to allow the removal of proceeds of public corruption, without involving an accusation in criminal; ECtHR considers this form of confiscation a form of regulation of the use of property ex art. 1, Prot. n. 1, ECHR, which assumes a preventive or compensatory nature, citing ECtHR jurisprudence in support of prevention confiscation 61 . The compensatory aspect consists in reconstituting the economic situation of the offended party in the same situation before the crime (the unjustified enrichment of public official) or in any case, in the absence of a offense, in restituting what has been illicitly acquired to the state 62 . We pursue the general interest in ensuring that the use of goods in question does not benefit the appellant at the expense of community 63 .
Notwithstanding ECtHR also highlights in Gogitidze case a deterrent, general prevention purpose of the measures in question, which consists in preventing unjustified enrichment by means of corruption as such, by sending a clear signal to public officials already involved in corruption and their criminal acts, even if they manage to escape the criminal justice system, will not provide them or their families any benefit.
On the other hand, ECtHR only in the Welch case acknowledged the criminal nature of a form of enlarged confiscation of the English legal system on the basis of a series of aspects from which the punitive foundation of this sanction, along with the preventive one, would emerge in the light of the substantial notion of punishment expressed by the jurisprudence of ECtHR and the above criteria, which make it possible to look at the realities of the situation 64 . First of all, it is noted that confiscation is connected to a crime and presupposes, in fact, a conviction for drug trafficking. In relation to the nature and purpose of the measure, it is noted that the sanction in question was introduced with the act of 1986 to overcome the inadequacy of the previous forfeiture instruments, allowing the courts to subtract profits that had been converted into other capital assets; legislation that gives such extensive powers of confiscation also pursues the aim of punishing the offender. Preventive and reparative purposes can coexist with the punitive one and can be considered as elements of a real punishment. In several judgments of English courts this sanction is considered a penalty, even if this criterion is not considered decisive, as is the severity of the penalty. The decisive aspects are: the presumptions that all goods purchased in the six years preceding the proceeding represent the proceeds of drug trafficking unless the offender proves the opposite; the fact that the confiscation order is directed against profits involved in drug 61  trafficking and is not limited to current enrichment or profit; the discretion of the judge to consider the degree of guilt of the accused in setting the amount to be confiscated; and the possibility of applying a custodial sentence in the event of the convicted person's insolvency.
They are all elements that provide a strong indication of a punitive regime 65 .
In Phillips v. Royaume-Uni case and correspondingly in Grayson & Barnham case, however, ECHR articulates its reasoning in a more complex way, because on the one hand it is recognized that the confiscation provided for by the Drug Trafficking Act 1994 represents a "penality" for the purposes of ECHR in relation to the recognition of the right to property, representing an interference pursuant to the second paragraph of that right 66 . On the other hand, for some reasons, however, the criminal nature of the procedure aimed at its application is denied because ECtHR considers that it does not involve the imputation of a crime pursuant to art. 6, § 2, ECHR4 67 , or rather a "new charge" in addition to that object of condemnation for the application of confiscation under consideration. On the basis of the criterion of classification of the proceeding by national legislation, it is noted that the confiscation procedure does not imply a new charge in criminal matters against the defendant, does not blame him for any additional violation, but is part of the proceeding to establish the sanction (sentencing process) that follows the sentence 68 ; in relation to the further criteria of the nature of the procedure and the type and severity of the sentence it is noted that even if it is true that the presumptions provided for by the legislation in question lead to the national court presuming that the defendant has been involved in other crimes, the subject of the conviction with reversal of the burden of proof against the accused and substitute prison sentence in the event of non-compliance, the purpose of the proceedings is not the conviction or the acquittal of the accused for other crimes, but is aimed to allow the court to set the amount to be confiscated, similarly to a procedure aimed at establishing the extent of the custodial sentence. Although it is assumed that he has benefited from drug trafficking in the past, this is not reflected in his "criminal record". within the meaning of article 6 § 2, but also because the guarantees of article 6 § 2 govern the criminal proceedings entirely and not only in the examination of merits of accusation 69 , the presumption of innocence applies only in connection with "the particular offense" charged and does not apply in relation to the imputation of elements such as character and conduct within and for the purpose of determining the penalty, except that it is of such a nature and degree to entail a new charge under the autonomous concept of criminal matters of ECHR (...) 70 . In this direction in Butler v. Royaume-Uni case ECtHR denies the link to the notion of criminal matters of the English civil recovery (seizure and confiscation of the drug trafficking cash contemplated in Part II of DTA 1994) a form of confiscation without conviction, reiterating that it is a regulation of the use of the property corresponding to the general interest, in this case represented by the fight against the trafficking of drugs 71 ; and also in this context it is recognized that the use of presumptions is justified in criminal and especially in civil matters 72 .
In similar terms, in Van Offeren-the Netherlands case is then decided, in relation to an enlarged form of confiscation under art. 36 of the Dutch criminal code, specifying also in this case that the procedure for the application of confiscation only concerns the measure of sanction and does not concern the guilt, judged in the main proceedings. This is not a criminal matter pursuant to art. 6 of ECHR in the light of the criteria developed by ECtHR 73 . ECtHR considers that confiscation is applied in a separate procedure (in order to avoid prolonging the duration of the process), which is directly related to the main proceeding, as only following a conviction is the procedure for ruling confiscation; in these circumstances it is reiterated that "the confiscation order procedure" can be considered as a part of the "sentencing process" according to national legislation. It follows that, according to the criterion of qualification of the procedure under the national legislation, it is not a criminal matter. In relation to the second and third criteria, the nature of proceedings and the type and severity of the sentence, ECtHR notes that, in a proceeding aimed at the application of confiscation, the accusation must establish "prima facie case" that the accused has profited from the crime of the conviction and other similar crimes. It is up to the convicted person to refute prosecution's hypothesis by demonstrating, according to civil law, that the profits in question have not been obtained from crimes for which he was convicted 131 LIAKOPOULOS, D. Mutual cooperation and criminal efficiency under regulation (EU) 2018/1805 for the mutual recognition of freezing and confiscation measures.
R. Curso Dir. UNIFOR-MG, Formiga, v. 11, n. 1, p. 107 -146, jan/jun. 2020 or from other crimes of the same nature. The purpose of proceedings is not to pronounce a conviction or acquittal for other crimes, but to determine the amount of profits obtained by the convicted person from or through drug trafficking or related crimes. In this way ECtHR considers that the purpose of proceeding is similar to that aimed at determining the amount of the pecuniary sentence or the duration of custodial sentence, and does not entail a new "accusation" pursuant to art. 6 § 2 of ECHR.
The proceedings taken into consideration by the ECtHR fall, however, perfectly in the broad definition of "proceeding in criminal matters" of the Regulation in question, since they are always proceedings related to a crime; the problem remains of the guarantees that these proceedings must take in order to be included in the scope of the Regulation, as will be discussed below. Apart from the concerns, examined elsewhere, on the consistency of the ECtHR jurisprudence on the matter, which continues to deny the guarantees of criminal matters to particularly invasive forms of confiscation connected to crimes.

FORMS OF CONFISCATION SUBJECT TO MUTUAL RECOGNITION.
In addition, confiscation without conviction will fall within the scope of Regulation (article 127 ter, Ley organica 1/2015) 74 which, as mentioned, was introduced in a much wider form than the model provided for in Directive no. 42/2014 (which, in fact, only provides for the "minimum" confiscation powers, allowing member states to adopt wider ones), that is, in the case of death of the offender or of extinction of the crime or lack of responsibility of the author. The application of this form of confiscation presupposes the verification of an illegal patrimonial situation by the criminal court in an adversarial procedure; proceedings against those who have been formally accused or against the accused (a notion that also includes the person under investigation, "acusado o contra el imputado 75 ") in relation to which there are reasonable indications of criminal 74 This regulation was introduced by the Organic Law 1/2015, of March 30, which modified the LO 10/1995 and reformed the Penal Code; Law 41/2015 of 5 October amended the law of criminal procedure to speed up criminal justice and strengthen the process and finally, through the Royal Decree 948/2015 of 23 October, the Office for Recovery and Management was regulated confiscated assets (Asset Management). With these reforms we want to "give the financial investigation and confiscation the prominence they deserve in the fight against the economic aspect of serious crime, carried out by criminal organizations and groups, thus ensuring their financial strangulation" (Preamble II). 75 En relación con el término "imputado", debe tenerse presente que a través de la LO 13/2015, de 5 de octubre, de modificación de la Ley de Enjuiciamiento Criminal para el fortalecimiento de las garantías procesales y la regulación de las medidas de investigación tecnológica, se ha sustituido el término imputado en la LECr por "investigado o encausado" según la fase procesal (Vid. Preámbulo apartado V y Artículo único, apartado vigésimo). El término "investigado" "servirá para identificar a la persona sometida a investigación por su relación con un delito; en tanto que con el término "encausado" se "designará, de manera general, a aquél a quien la autoridad judicial, una vez concluida la instrucción de la causa, imputa formalmente el haber participado en la comisión de un hecho delictivo concreto" (Preámbulo, apartado V). For further details see: S. GIRARDO PÉREZ, Actuaciones policiales en el àmbito de la ley de seguridad ciudadana, Punto Rojo Libros, Madrid, 2016. Moreover, the constitutional court considers that the imposition of comiso ampliado does not compromise the right to presumption of innocence (the presumption of innocence acts as the right of the accused to not suffer a conviction unless the test is reached of guilt beyond reasonable doubt) because the ascertainment of guilt is not called into question in respect of this principle: once the guilt is proven, the presumption of innocence is no longer involved; rather, in imposing confiscation, particular attention must be paid to the rest of guarantees of criminal trial and to the need for the right to effective judicial protection (SSTC 219/2006, FJ 9 y 220/2006. The constitutional court deems the circumstantial evidence of the criminal origin of the assets to be confiscated (STC 219/2006, FJ 9;220/2006, FJ 8). In the same direction the supreme court pronounced with the sentence no. 338/2015, considering that the same canon of certainty cannot be claimed when it comes to verifying compliance with the presumption of innocence and when it comes to determining the factual assumption that allows the application of confiscation 77 .
Not only but also the extended confiscation can be applied without condemnation ( form of confiscation cannot be applied in case of acquittal for the predicate offenses (TS 17/12/14, EDJ 2014/255414) 78 . In Spanish legal system, always in implementation of Directive n. 42/2014, to ensure the effective application of confiscation the legislator intervened with L 41/2015 also in procedural matters governing the intervention in criminal trial of third parties whose rights are compromised by a provision of confiscation and, above all, a new procedure of autonomous confiscation, which will allow to apply the confiscation without conviction (arts 803 ter e) to 803 ter u) LECr). To this end, the new Título III ter of Book IV of the LECr (Ley de Enjuiciamiento Criminal para la agilización de la justicia penal y el fortalecimiento de las guaranas procesales-"BOE" 6 octubre) was introduced, with the heading de la intervención de terceros afectados por el decomiso y of the procedimiento de decomiso autónomo.
The autonomous procedure pursuant to art. 803 ter e) 2 LECr, may be carried out when the prosecutor confines himself to the prosecution only to request confiscation, expressly reserving its application to this autonomous procedure and, therefore, only after the final conviction; this proceeding may start on the initiative of public prosecutor, furthermore, when, despite the existence of a punishable offense, the perpetrator has died or is not prosecuted because he is contumacious or not imputable. This autonomous procedure also presents itself as a sort of hybrid where, on the one hand, article 803 ter g (Procedimen) provides that the rules governing the verbal judgment governed by title III of Book II of the "Ley de Enjuiciamiento Civil" are applicable and do not contradict the rules established in this chapter. On the other hand, with art. 803 ter h (Exclusividad of the Ministerio Fiscal en el ejercicio de la acción) is entrusted to the public prosecutor the exclusive competence to exercise the action on subject, and pursuant to art. 803 ter f ss. jurisdiction is established in the court or tribunal which pronounced the sentence, or who initiated the suspended proceedings or which, in any case, would have been competent if the trial was not possible due to the circumstances examined above, as contemplated by art. 803. In conclusion, reference is made to a criminal judge. By virtue, again, of art. 803 ter r (Recursos y revisión de la sentencia firme) the procedural rules of the appeal applicable to the shortened criminal trial will 78  R. Curso Dir. UNIFOR-MG, Formiga, v. 11, n. 1, p. 107 -146, jan/jun. 2020 be applicable to the decomposed procedure, and therefore we return to a criminal procedure; for the destination of assets pursuant to art. 803 ter p the provisions of law and criminal code apply.
The procedure is carried out against those involved in their relationship with the assets to be confiscated (also with reference to third parties with a claim, article 803 ter j Legitimación pasiva y citación a juicio). Article 803 ter m (Escrito de contestación a la demanda de decomiso) basically establishes that the adversarial procedure is activated only after the protest of the interested parties to the request for confiscation, presented by the public prosecutor and communicated to them, otherwise in the absence of dispute the competent judge can to pronounce the provision of definitive confiscation. In article 803 ter p (Efectos de la sentencia de decomiso) it is specified that the content of the outcome of the autonomous confiscation procedure will not be considered binding in the eventual subsequent judicial proceedings against the defendant, nor the eventual autonomous confiscation will be subject to judicial action in any subsequent criminal proceedings against the defendant. StPO-Abtrennung der Einziehung, 436 StPO-E) 81 and law does not provide otherwise 82 . In this proceeding, as discussed elsewhere, the criminal judge must ascertain all the facts and evidence that are significant for the final decision 83 ; the proceeding remains criminal with the relative standard of proof. This form of autonomous confiscation, therefore, even where enlarged, is not applied on the basis of the mere suspicion ("bloße Verdacht") of the illicit origin of the assets to be confiscated 84 , but the conviction of judge is required without limitation ("uneingeschränkte richterliche Überzeugung") and that is the positive conviction of the illicit origin of goods, in compliance with the rule "in dubio pro reo" ("ganz hohe Wahrscheinlichkeit") as claimed by the constitutional court and the German supreme court in relation to the previous Erweiterter Verfall 85 . It is considered possible to apply this form of confiscation in the absence of a conviction precisely because it is considered that it is a criminal subtraction of profits aimed at the removal of an illicit allocation of assets and to restore the legal order, with a preventive function.
Since it is still a form of confiscation applied in a criminal proceeding (connected to a crime), Regulation will certainly also cover the confiscation hypothesis introduced with the reform for the terrorism and organized crime sector (crimes such as money laundering, child pornography, trafficking of human beings, drugs, weapons, etc.), and that is a form of confiscation without condemnation of the assets of suspected criminal origin, independently of the evidence of a specific crime, § 76a, sub-par. 4, considered by the same German doctrine as a kind of actio in rem ("Verfahren gegen die Sache") 86 . The court can proceed with the confiscation of assets whose illicit origin is convinced in the hypothesis in which the assets are seized in a trial against persons suspected of the listed crimes, but the subject subjected to such provision cannot be prosecuted or condemned. This proceeding is certainly in criminal matters since it not only relates to proceeds of crime, but takes place before the proceeding judge or, in case of non-prosecution, the judge LIAKOPOULOS, D. Mutual cooperation and criminal efficiency under regulation (EU) 2018/1805 for the mutual recognition of freezing and confiscation measures.
R. Curso Dir. UNIFOR-MG, Formiga, v. 11, n. 1, p. 107 -146, jan/jun. 2020 (criminal) who would have been competent where the action was exercised ( § § 435 and following of StPO), and above all, by virtue of § 437 StPO, the conviction of the judge about the illicit origin of the assets to be confiscated 87  This form of confiscation does not fall within the confiscation models provided for by Directive no. 42/2014 (except to refer to the confiscation of assets intended for the realization of the offense), it may, however, fall within the scope of Regulation which only claims that it is a provision of confiscation pronounced in a proceeding in criminal matters as in the case in question concerning assets related to a criminal or terrorist organization and especially in defining the assets that may fall within the object of confiscation. Art. 2 of Regulation refers in addition to the proceeds or instruments of the offense, or to the assets that can be confiscated through the application in the issuing state of one of the confiscation powers provided for in Directive 2014/42. Also to assets that can be confiscation under other provisions relating to the powers of confiscation, including confiscation in the absence of a final conviction, provided by the law of the issuing state following a proceeding for a crime.
Rather, however, certainly in the model provided for by art. 5 of Directive, the enlarged confiscation laid down in the Austrian legal system ( § 20b, paragraph 2, öStGB), where it presupposes the conviction for the most serious crimes (or for money laundering, criminal association or crimes for terrorism purposes), the connection time between the consumption of the offenses and the purchase of assets and the weakening of the illicit origin in accordance with the provisions of art. 5 of Directive (if it is reasonable to assume that they derive from an unlawful act and their legitimate origin cannot be justified).
In line with the indications emerging from the Directive, the general confiscation of French law, conceived as a penalty against property, is aimed at serious crimes related to organized crime (such as the most serious cases of drug trafficking article 222-49, § 2 code pénal and laundering 94 ) and in particular affects the "association de malfaiteurs" 95 , presupposes a conviction, but allows the confiscation of all or part of the assets without the limits set by Directive, not requiring any proof of illicit 96 , nor much less the disproportion or the temporal correlation 97 . Moreover, this model of confiscation, even if potentially effective, seems to be difficult to comply with the principles of punishable taxation, since the parameters for determination of the same are not predetermined the only limit is the amount of assets to be confiscated and with the principle of guilt understood as a parameter of proportionality of the same sentence.
The capital punishment, Vermögenstrafe of the German legal system, was in fact declared unconstitutional by the BverfGE 98 sentence, for violation of the principle of taxation (article 103, letter 2 GG). However, even this form of general confiscation of assets may fall within the broad scope of Regulation falling within a form of confiscation pronounced in criminal matters and which affects assets that are subject to confiscation under other provisions relating to the powers of confiscation from the law of the issuing state following a proceeding for a crime (article 2, paragraph 2, no. 3 Regulation); even if one could consider that this discipline does not respect the principles of criminal matters referred to in recital n. 16 and n. 18 of Regulation, starting from the principle of proportionality of the sentence sanctioned by art. 49, par. 3 ECHR, expressly referred to in art. 1, lett. 2 where the obligation to respect the fundamental rights and 139 LIAKOPOULOS, D. Mutual cooperation and criminal efficiency under regulation (EU) 2018/1805 for the mutual recognition of freezing and confiscation measures. the juridical principles enunciated in art. 6 TEU 99 (the principle of proportionality is also expressly referred to in recital 15).
Another form of enlarged confiscation is provided for in the French legal system for offenses punished with a sentence equal to or greater than five years, capable of producing a direct or indirect profit 100 ; following the conviction it is possible to confiscate all the goods in relation to which the owner cannot justify the licit origin according to article 131-21, par. 5, as amended by

GUARANTEES OF CRIMINAL MATTERS (POSTPONEMENT).
Regulation not only reiterates that fundamental rights and legal principles set out in article 6 of the Treaty on European Union (TEU) must be respected, but also recalls when the crime is committed through a minor with respect to which the accused cannot justify the basis of his authority (article 321-6-1), and 7 to 200,000 fine, when the offenses in question are trafficking in human beings, extortion or criminal association, or drug trafficking, even in cases of normal relationships with one or more drug users. They are increased to ten years imprisonment and a fine of 300,000 euro in the case of a crime referred to in the previous paragraph, is committed by one or more minors. It is therefore required, even in the last version, that the confiscation order be taken with the guarantees of criminal matter. Recital no. 18 states, in fact, that 99 A. HATJE, J.P. TERHECHTE, P.C. MÜLLER-GRAFF, Europarechtswissenschaft, ed. Nomos, Baden-Baden, 2018.
(...) the essential guarantees applicable to the criminal proceedings envisaged by CFREU should apply to the criminal proceedings but which are covered by this Regulation.
The Regulation, in short, requires, for the purpose of mutual recognition, that the confiscation order is taken in compliance with the right to due process provided for in art. 6 ECHR and in articles 47 and 48 of CFREU 101 , as well as compliance with relevant legislation at European level starting from CFREU on the essential guarantees applicable to criminal proceedings. ECtHR must establish that this is a crime proceeds (or instrument) and in a proceeding in which all the guarantees of criminal matters provided for in member state apply.
Not only that, but notwithstanding, that in the Explanatory Memorandum of Regulation proposal it is recalled that ECtHR has repeatedly considered compliant with art. 6 ECHR and the right to property pursuant to art. 1 of the Additional Protocol of ECHR forms of confiscation without conviction based on presumptions, provided they are refutable and "if effective procedural safeguards are respected" in line with Directive 2016/343 on the presumption of innocence (which in recital 22 accepts use of presumptions) m on the other the same Directive 2016/242 requires respect for the right to silence, as an important aspect of the presumption of innocence (recital 24). And, then, the evidence of illicit origin of the estate cannot be founded on the silence of the accused or prevented or to give it probative dignity, as it normally happens in the application of forms of enlarged confiscation, including the confiscation or prevention measure in relation to which the jurisprudence demands the full explanation of how the assets have been economically formed. In this way the adoption of Regulation should represent an incentive for the adoption of a model of the heritage process in compliance with the penalties, starting from the standard of criminal evidence concerning the illicit origin of assets, if the mutual recognition of the forms of enlarged confiscation provided for in the internal legal systems, both confiscation and of prevention.