Helsingin yliopisto, Helsinki 2006
Väitöskirja, joulukuu 2006.
The 2002 revision of the Finnish criminal legislation added a new chapter to the penal code. This new tenth chapter includes norms relating to criminal forfeiture and makes reference both to general issues relating to forfeiture and to detailed norms on seizure of criminal proceeds by the state. The chapter also introduces two notable novelties to the Finnish legislation: Firstly, rules on extended confiscation of proceeds of crime have been included in the chapter. Confiscation can, according to these rules, be carried out if there is reason to believe that property stems from criminal activities that are not trivial. Secondly, confiscation must now be called for either by the prosecutor or the complainant. According to the old law, the court was competent to decide on confiscation ex officio.
The aim of this dissertation is to examine the prerequisites for confiscation and extended confiscation of proceeds of crime. The study belongs to the field of procedural dogmatics. It also, however, includes some criminal law aspects. The dissertation is concerned primarily with effective law in Finland, but uses Norwegian, Swedish and Danish material for comparative purposes.
The outset of the study is the competence of general courts to decide on matters of forfeiture. Claims on forfeiture are brought before the courts through legal action either by the prosecutor or the complainant. The concept of legal action has not been defined in law, but the dissertation concludes that an action consists of four elements: claims, grounds, a complainant and a defendant.
The study, furthermore, takes the view that the court is bound by the claim for forfeiture and the grounds for this as they are presented in the legal action. In other words, the court cannot confiscate other or more than what is claimed in the action for forfeiture. Additionally, the court has to reach its decision in the matter on the grounds that the complainant has brought before the court in the action. The court is, however, not restricted by the action in questions of law (jura novit curia).
The study also examines the prerequisites stemming from criminal law for confiscation and extended confiscation of proceeds of crime. In addition, the circumstances that pose hinders for confiscation, also in cases where aforementioned prerequisites are at hand, are examined. One of the most significant impediments to confiscation is the priority of compensatory damages over confiscation when damages have been inflicted as a result of the crime. Furthermore, issues relating to alterations of the legal action, to res judicata and to the possibility of bringing new, additional actions for forfeiture before the court are examined.
The study also analyses the scope of persons competent to bring an action for forfeiture before the court. The outset is that the prosecutor competent to bring criminal charges before the court also is competent to bring an action for forfeiture before the court in the matter. Thus, the study concludes that the right of institution of criminal proceedings includes a right to institute proceedings for forfeiture. The complainant has a secondary right of action in relation to the prosecutor.
The responsibility is, in matters of normal confiscation of proceeds of crime, allocated objectively. Proceeds are confiscated from the person, who has received the benefit. In cases of extended confiscation of proceeds of crime, the allocation of the responsibility is somewhat more unclear. The law permits confiscation of property both from the offender and, if the property has been transferred, from persons close to the offender. By the latter expression, the law refers to persons with close, either personal or economic ties to the offender.
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© Helsingin yliopisto 2006
Viimeksi päivitetty 16.11.2006