Directive 2014/42/EU, is provided in Article 97-a of the Criminal Code of
Macedonia
(confiscation of the
derivative proceeds).
The volume of ‘direct’ and ‘derivative’ proceeds depends on the legal framework in effect in every country
of the ACN. In some countries, courts may confiscate all, with no exception, proceeds, advantages, saved
resources, privileges, or income acquired through a transaction stained by corruption offence; whereas in
other countries, some of the advantages can be considered to be linked to an offence directly. Moreover, the
assets, considered as the direct proceeds in some countries, can be classified as derivatives in others.
Not all ACN countries have clearly distinguished the direct and derivative proceeds of crime in their
legislation. However, in general, the legislative provisions enable confiscation of both types of proceeds,
though the notion of the derivative proceeds may have a diverse meaning. According to paragraph 6 of
Article 112 of the Criminal Code of
Romania
, assets and money obtained from exploiting the assets subject
to confiscation and the assets produced by such, with certain exceptions, shall also be confiscated. According
to part 2 of Article 72 of the Criminal Code of
Lithuania
, confiscation of property should be applied only
in relation to property that is an instrument or means of committing a crime or the result of a crime; in the
latter case it refers to property directly or indirectly obtained as a result of the commission of a crime. In its
response to the questionnaire,
Montenegro
referred to paragraph 5 of Article 113 of its Criminal Code, as
the governing definition for the derivative proceeds of crime; however, this provision envisages confiscation
of the gain originated from an offence and transferred to third persons, which, seemingly, may not be
regarded as the derivative proceeds of crime, but, rather as the direct proceeds transferred to third persons.
Some countries of the ACN neither have a concept of derivative proceeds of crime in their respective
legislations, nor is confiscation of such proceeds possible in practice; or the scope of such confiscation is
restricted. For example, in accordance with paragraph 1 of Article 52 of the Criminal Code of
Kyrgyzstan
,
only the portion of profit, derived from criminal proceeds, that was generated as the result of its legalization
(laundering) is subject to confiscation. After the changes made to the Criminal Procedure Code of
Kyrgyzstan, which will enter into force on 1 January 2019, money, valuables and other property, when this
property was gained as the result of a crime, has been partially or fully transformed or converted will be
subject to confiscation (paragraph 3 of part 1 of Article 96 CPC).
Nonetheless, despite the existence of the norms on confiscation of the derivative proceeds of corruption in
the legislation of most of the ACN countries, examples of the practical application of such confiscation were
merely presented in the questionnaire (
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