Latin American Legal Studies

Abstract

Confiscation – especially of the proceeds of crime – has turned into a key instrument in international, European and German efforts to curb serious crime (e.g. organized, but also economic crime). Central to the controversies about the legitimacy of confiscation is its disputed legal nature: Is it criminal law (or what)? By drawing on a major 2017 reform of the German confiscation regime as a case study, this article illustrates that the discussions about the but punitive or but non-punitive (e.g. preventive) rationales of confiscation are ill-advised as they do not account for the normative openness of confiscation. These discussions – as they are prompted especially by constitutional criminal law and its doctrines – obfuscate the unsettling political questions that are foundational to modern developments. E.g. if a commonwealth can still and indeed must afford unrestrictable fundamental rights (like the presumption of innocence) in order to pre-empt the rise of an authoritarian regime, even if this means that serious crime goes widely unchecked and can hence possibly undermine the democratic state. This article will not answer such questions. But it will bring them to the fore so that we have a frank debate about the very policy, polity and politics framework of the administration of “criminal” (or what?) justice in the age of confiscation.