CHAPTER 32 FINANCE-ORIENTED STRATEGIES OF ORGANIZED CRIME CONTROLMICHAEL KILCHLINGI. Introduction“Crime should not pay.” This traditional aim of crime control has gained new atten-tion, particularly since the rise of organized crime policies in the United States in the late 1980s and the subsequent adoption of such policies in most parts of the world by the early 1990s. In the decades before, the aim had been more or less buried as a con-sequence of the rehabilitative paradigm in Western societies. For a long time, criminal policy was predominantly characterized by the idea of penal intervention as a (posi-tive) treatment for individuals. Even in jurisdictions in which medieval roots of con-fiscation had survived, such as the confiscation générale in France, these provisions had lost their relevance and were more or less neglected in court practice. Judicial attention was mostly concentrated on the fair and adequate punishment of individual offenders, whereas the extent of profit obtained through a particular crime was considered as a sentencing criterion at best, be it as an aggravating factor or in other ways. Beyond this, the issue was of little interest, neither in the micro perspective of prosecutors or judges in their every day routine nor in the macro perspective by criminal policy. The where-abouts of proceeds derived from crime was normally seen as a matter of private law, and responsibility lay with the victims who had to sue the offender (post criminal convic-tion) by means of a private claim. Advanced strategies and instruments, such as asset recovery and recovery assistance in favor of (individual) victims, that today accompany seizure and confiscation, were more or less unknown.It is certainly not just by coincidence that the development of proceeds-oriented crime control goes hand in hand with the about-face in penal doctrine that nowadays seeks to introduce, or reintroduce, direct criminal responsibility of legal entities. In a corporate context, the focus on financial intervention is even more obvious than in the
656MICHAEL KILCHLINGcatalogue of sanctions, or measures, to be imposed on natural persons. Nevertheless, in the specific context of organized crime, the concept of proceeds-oriented crime con-trol significantly differs from the traditional perspective of confiscation as mirrored in our initial reference. As a means for tackling organized crime specifically, confiscation policies are based on a totally different concept and implemented through new and very specific strategies and instruments. With regard to its particular preventive element, proceeds-oriented crime control mainly addresses organizations (criminal as well as legal) no matter who supports or operates them from behind the scenes—persons or legal bodies, or perhaps both.Ironically, forms of confiscation that had primarily been used as a politically moti-vated weapon in many penal codes of the communist states of the former Eastern bloc were just about to be abolished (as a signal of the new rule-of-law era to start at the beginning of the 1990s) when their promotion by the United States and other inter-national actors as “the” new and promising tool in the fight against organized crime emerged. Based on a set of continuously growing international treaties and agreements, governments were forced into reintroducing instruments that had just been disqualified as legal wrongs of the old system (see Plywaczewski and Filipkowski 2004; Krajewski 2005). This was particularly true for those countries interested in joining the European Union, which, out of its own political interests, was (and still is) one of the key promot-ers of organized crime-related confiscation policies.II. The Purpose of Finance-related Strategies of Organized Crime ControlWhereas confiscation has sometimes been promoted by policymakers, namely in the United Kingdom, as the “new big idea” that characterizes 21st-century crime con-trol policies (Friedman 2003. p. 1), the concept appears more as part of a traditional rationale of criminal law in continental Europe, at least in major jurisdictions such as France and Germany. In these countries we find, for example, traditional instruments such as the confiscation générale,1 that can be translated as total confiscation (Kletzlen and Godefroy 1997, p. 273) based on which criminals who had fallen from grace could be deprived of all their wealth in both pre-revolutionary and post-revolutionary France (see Ehrhard 1934). In jurisdictions such as Germany the various versions of the criminal code have provided for detailed regulations on forfeiture since 1871; although replaced by a completely revised system in 1969, the basic principles of the 19th century still prevail (see Eser 1969, 1993). In either case, the term “crime should not pay” did not necessarily have such an explicit finance-related or economically focused meaning than the one that finally emerged in the context of organized crime control.