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70-1 of the Criminal Code of Latvia provides the possibility of extended confiscation of property obtained
by criminal means from third persons. In particular, in case of committing a crime connected with obtaining
financial or other benefits, property of third parties in permanent family, economic or other relations with
the offender, the value of which does not correspond to the legitimate income of such
persons and who
cannot prove that they have legally acquired said property, can also be recognized as property obtained by
criminal means.
Despite some differences in the language of legislation in various countries of the ACN, in the majority of
them, it is possible to point out at least two conditions required to confiscate the property acquired through,
or as the result of commission of, a corruption crime and transferred to third parties formally or de facto:
Objective criterion – confiscation is allowed, if the property has been transferred
to third persons free of
charge or suspiciously cheap – for an amount that does not correspond to the actual /market/ value, or, if the
property has been formally transferred at the market price, but to affiliated persons and without the actual
payment; and
Subjective criterion – third person knew or ought to have known that the property had been acquired through
or as the result of a crime, or knew that the purpose of the transfer was to avoid confiscation.
The confiscation of the proceeds and property of corruption offences, which have been formally transferred
from suspected, accused persons to the nominal owners – informed third persons (usually relatives and
affiliates, both natural and legal persons), with the purpose to avoid tracing,
seizure and subsequent
confiscation, is an important instrument in effective fight against corruption and money laundering.
However, the questionnaire data demonstrates that the majority of ACN countries rarely practice such
measures, while sustainable judiciary practice on applying these measures does not exist.
According to the questionnaire, in a number of ACN countries, for example, in
Armenia
, the legislation
does not provide for such instrument at all, and the possibility to apply it is not acknowledged by judiciary
practice either. In
Turkey
, confiscation of property is possible only if it is owned by the accused person.
Extending the confiscation regime to third party property, subject to adherence to the
respective clear-cut
grounds and guarantees, would allow these countries to fill the gaps in the national legislation and block the
yet available opportunities for persons, who committed corruption offences, to avoid confiscation of
criminally obtained proceeds with assistance from the informed third persons. A number of EU countries are
classified as such countries, including
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