Confiscation and asset recovery: better tools to fight bribery and corruption crime

There is a global trend represented by the widespread application of confiscation of criminal proceeds, particularly those obtained as a result of corruption offences. Focusing on the Italian law, this article tries to address the following three questions: 1) Why are confiscation and asset recovery so important to fight bribery and corruption crime? In other words, what is the legitimate purpose of these measures? 2) How can confiscation of the proceeds of corruption offences be accomplished? and 3) Are effective confiscation regimes constitutional or do they infringe upon individual rights and liberties? The article concludes that confiscation is a key tool for tackling corruption crime since it reduces the incentive to commit bribery by removing from bribe-givers or bribe-takers the fruits of their illicit acts. However, the ‘‘traditional’’ method of confiscation, which is limited to the property involved in the particular offence for which the defendant was convicted, is inadequate to deprive criminals who engaged in corruption offences of their ill-gotten gains. More powerful instruments, such as extended confiscation or non-conviction-based confiscation, are required for that purpose. These instruments are constitutional as long as they merely put wrongdoers back to the economic position they occupied before committing the crime. Such legal instruments serve as remedial measures and not as punishments, and thus their imposition does not trigger those special safeguards that the Constitution and human rights require for criminal prosecutions.