Stefano Betti - Senior Policy Advisor Alexandra Iliopoulou - Policy & Legal Advisor

WCO – OECD REGIONAL POLICY DIALOGUE 7-8 November 2016

Brussels v

Increasing the effectiveness

of prosecution and penalties

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

TRUE ?

• Is prosecution in the “public interest” ? • Making choices at times of budgetary

constraints • Offering reduced penalties may be key

Prosecutorial discretion

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

• Early release or parole • Life behind bars is not the same for

everybody

The penitentiary regime

“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

UNICRI / ICC-BASCAP

REPORT

Confiscation of the Proceeds of IP Crime: a modern tool for deterring counterfeiting and piracy

• 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

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

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

• 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

• 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

• 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

“ FOR EVERY COMPLEX PROBLEM THERE IS AN ANSWER THAT IS CLEAR, SIMPLE AND WRONG ”

H.L. Mencken

• 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

Stefano Betti Senior Policy Advisor

Alexandra Iliopoulou Policy and Legal Advisor

Stefano.betti@bascap.com

Alexandra.iliopoulou@bascap.com