Lithuania
stipulates that the property may not be confiscated from a third person, if
this person was not aware and could not have been aware that such property represented the instrumentalities
or proceeds of crime, if it was not acquired through a fictitious transaction or by certain categories of persons
(paragraph 4 of Article 72), which does not fully correspond to the minimum standards specified in Article
6 of the Directive 2014/42/EU. The legislation of
Romania
contains a similar approach and only with respect
to instrumentalities used to commit a crime; applied criterion – if third party ‘was not aware of the purpose
of use’ (paragraph 3 of Article 112 of the Criminal Code of Romania).
Standards to protect the fights of bona fide third party are yet to be implemented into the legislation of
Latvia
. Third party rights are specified in Article 360 of the Criminal Procedure Code, and, according to this
Article, if criminally acquired property has been found on a third person, such property shall be returned, on
the basis of ownership, to the owner or lawful possessor thereof, and, if criminally acquired property has
been returned to the owner or lawful possessor thereof, the third person who acquired such property, or
pledge, in good faith has the right to submit a claim, in accordance with civil procedures, regarding
compensation for the loss, including against an accused or convicted person. Hence, essentially, such third
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parties are not in the position to exercise their rights in the criminal procedure, provided that the ‘good faith’
conditions, clearly defined by the law, are adhered to.
In
Georgia
and
Kyrgyzstan
, safeguards for the bona fide third party rights are provided for in the civil law.
In accordance with the criminal law of
Kazakhstan
, the money and other property, which the convicted
person has transferred into the ownership of other persons, is subject to confiscation (paragraph 5 of Part II
of Article 48 of the Criminal Code) without any substantiation of the relation of other persons to this fact
and the circumstances of such transfer, which may engender serious problems in applying this principle from
the standpoint of the right to possession property.
It should be noted that the legislation of some countries of the ACN does not envisage, totally or precisely,
the safeguards for ‘innocent owners’, whose property has been used by participants of a criminal act as the
instrumentality to commit this act (for example, when a person provides his country house to his friend who
used the house to discuss a corruption transaction), without them knowing about the criminal purpose for
which their property has been used (such countries as Latvia, Azerbaijan, Kyrgyzstan, and others).
Consequently, in order to ensure a proper respect to the rights of bona fide third parties in the course of
confiscation of property, it is necessary that the safeguards against abuse: (a) cover, in terms of volume, the
confiscation of both the criminal proceeds and the instrumentalities of crime, (b) are based the material
criteria clearly specified in the law or formed by judicial practice (both objective and subjective – they are
provided in the introduction of the ‘Objects of confiscation measures’ section), and (c) include the procedural
rights (being communicated about the measures taken in regard to property, participation in the process, the
right to be heard, adduce arguments for its own benefit, the right to appeal the confiscation decision).
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