Presentation by Stefano Betti & Alexandra Iliopoulou, BASCAP at the WCO and OECD Regional Policy Dialogue, 7-8 November 2016, Brussels. For more information see www.oecd.org/gov/risk/oecdtaskforceoncounteringillicittrade.htm

1. Stefano Betti - Senior Policy Advisor
Alexandra Iliopoulou - Policy & Legal Advisor
WCO – OECD REGIONAL POLICY DIALOGUE
7-8 November 2016
Brussels
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Increasing the effectiveness
of prosecution and penalties

3. “MORE SEVERE PENALTIES WILL
PROVIDE A HIGHER DETERRENT
AGAINST IP CRIME/ ILLICIT TRADE”
TRUE ?

4. • Is prosecution in the “public interest” ?
• Making choices at times of budgetary
constraints
• Offering reduced penalties may be key
Prosecutorial discretion

5. 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

6. • Early release or parole
• Life behind bars is not the same for
everybody
The penitentiary regime

7. “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

8. UNICRI /
ICC-BASCAP
REPORT
Confiscation of the
Proceeds of IP Crime:
a modern tool for deterring
counterfeiting and piracy

9. • 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

10. 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

11. 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

12. • 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

13. • 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

14. • 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

15. “ FOR EVERY COMPLEX PROBLEM THERE IS AN
ANSWER THAT IS CLEAR, SIMPLE AND WRONG ”
H.L. Mencken

16. • 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

17. Stefano Betti
Senior Policy Advisor
Alexandra Iliopoulou
Policy and Legal Advisor
Stefano.betti@bascap.com Alexandra.iliopoulou@bascap.com