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VI. OBJECTS OF CONFISCATION MEASURES
The most widespread objects of confiscation measures are the
instrumentalities
used to commit corruption
offences and the
proceeds
derived from commission thereof (both direct and indirect, as
well as any profit
gained therefrom). For the purposes of this study, the corruption offences will include money laundering (see
the section on Corruption offences triggering confiscation for more details).
The obligation for countries to take measures on confiscation of such objects as the instrumentalities used to
commit and proceeds derived from crimes is set forth in all relevant international instruments: paragraph 1
of Article 31 of the UN Convention against Corruption, paragraph 3 of Article 19
of the CE Criminal Law
Convention on Corruption, Article 4 of the Directive 2014/42/EU of the European Parliament and of the EU
Council on the freezing and confiscation of instrumentalities and proceeds of crime in
the European Union
and others.
Within the framework of the study, it is worth mentioning that,
in some ACN countries, the legislation still
contains the punitive concept of confiscation, whereupon the property of convicted individuals that they
purchased on lawful grounds and from legitimate sources is also classified as the object of confiscation
measures. The ‘Typology on measures of confiscation’ section has more detail.
The objects of confiscation measures, in most cases, are determined predominantly through the ‘property’
term that requires common understanding. In accordance with Article 2 of the 2003
UN Convention against
Corruption, ‘property’ means assets of every kind, whether corporeal or incorporeal, movable or immovable,
tangible or intangible, and legal documents or instruments evidencing title to or interest in such assets.
Similar definition is provided in Article 1 of the Warsaw Convention and paragraph 2 of Article 2 of the
Directive 2014/42/EU. Paragraph 12 of the Preamble of the Directive notes that definition of ‘property’
includes legal documents or instruments evidencing title or interest in such property. Such documents or
instruments could include, for example,
financial instruments, or documents that may give rise to creditor
claims and are normally found in the possession of the person affected by the relevant procedures.
The typical definition for property in the context of confiscation may be the one set forth in Article 132-1 of
the Criminal
Code of
Moldova
, pursuant to which, the property means financial means, any type of material
or immaterial, movable or immovable, tangible or intangible values (assets) as well as
acts and other legal
instruments in any form, including electronic or digital form that confirm a legal title or right including any
share (interest) in these values (assets).
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