Lithuania
, the prosecutor bears the burden of proof in the confiscation
procedure. In February 2010, in its No. ABV-32-1 compilation of judicial practice on applying the
confiscation under Article 72 of the Criminal Code of Lithuania, the Supreme Court of Lithuania noted that
the courts shall motivate the source of origin of a property to be confiscated. The fact that an offender derived
a benefit from committing a crime, as well as the amount such benefit, are circumstances to be prove. Since
the Criminal Procedure Law of Lithuania does not contain the special standards of proving for the purposes
of criminal confiscation, the circumstances thereof are to be established based on the common rules of
proving (testimony of witnesses and accused, expert examination, and so on). The evidence to support the
benefit of crime must be procured lawfully and considered in a court judgment (judgement of the Supreme
Court on the case No. 2K-459/2004). In the process of special confiscation, the following is subject to prove:
1) existence of the property that served as the instrumentality of a crime or the result therefrom; 2) relation
between the property and the crime (if such property is the instrumentality of crime, it should be proven that
the commission of crime would have been impossible or much harder without such instrumentality); 3)
possibility of confiscation of the property when it is transferred to other persons. The burden of proof may
be shifted in part in the process of extended criminal confiscation. Thus, as per Article 72-3 of the Criminal
Code of Lithuania, one of the conditions for applying the extended confiscation is the failure of an offender,
in the process of criminal procedure, to substantiate the legitimacy of acquired property.
In
Estonia
, the burden of proof in the process of special confiscation lies with the prosecution, with the
criminal procedure standards of proving being applied. Thus, the prosecutor must provide evidence that a
particular property has been used or intended to be used as an instrumentality of crime, or has been the object
of encroachment, or has been acquired through a crime. No evidence has a predetermined force. In the cases
on extended criminal confiscation, within Article 83-2 of the Criminal Code of Estonia, the burden of proof
may be transferred. In accordance with this provision, upon conviction of a person for a crime, the court, to
the extent set forth by this Code, is in the position to confiscate a part or all of the assets of convicted person,
if such assets belonged to convicted person at the time of conviction and if the nature of crime, difference
between legitimate incomes and financial situation, expenses and lifestyle of the person, or any other fact
may suggest the person acquired such assets through committing a crime or on account of criminally obtained
property. The confiscation is not applied to the assets, which the person proved not to have been derived
criminally. Within the administrative confiscation, the burden of proof largely lies with the authorities in
Estonia.
38
See the Questionnaire on the 'Confiscation of instrumentalities and proceeds of corruption offenses' thematic study, filled out by
the relevant authorities of Romania; answer to question No. 53.
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