In accordance with paragraph 4 of Article 106 of the Criminal Code of
Moldova
, special confiscation can
be also applied in the event when perpetrator is not sentenced to criminal punishment.
Procedure for the special non-conviction-based confiscation in
Montenegro
and
Croatia
is not established
by the Criminal Code or Criminal Procedure Code, but by special law regulating matters of confiscation of
the proceeds of crime by court’s decision, which is made according to the rules of criminal proceeding.
According to Article 10 of the Law of Montenegro on Seizure and Confiscation of Proceeds from Crime
(non-conviction-based confiscation), there are two grounds for special non-conviction based confiscation:
1) if a person, who is the subject of a criminal proceeding, dies before the date of completion of the criminal
proceeding, or 2) if the proceeding cannot be continued due to the circumstances hindering criminal
prosecution for long. At that, the proceeds of crime can be confiscated provided for a probability based on
the evidence, which constitutes the basis of the case, that criminal proceeding would result in conviction, if
the person would be alive (property is confiscated from inheritors as well) and there would be no
circumstances hindering criminal prosecution (property is confiscated from a person criminal prosecution
cannot be continued against). It should be noted that provisions of the Law apply only to the crimes listed in
Article 2 thereof, which however include both corruption offences and corruption money laundering
(legalisation).
According to Article 2 of the Act of Croatia on the Proceedings for the Confiscation of Pecuniary Benefit
Resulting from Criminal Offences and Misdemeanours, if criminal proceeding cannot be started due to
offender’s death or other circumstances excluding a possibility of criminal prosecution, then at the proposal
of a prosecutor, victim and civil plaintiff, the court is obliged to take measures in accordance with Article 6
of the Law, if the amount of probable pecuniary gain resulting from corresponding crime makes not less than
5 000.00 Croatian kunas (around EUR 670). Decision on instituting criminal proceedings in such case shall
be made by a judge of the court that would have an authority to hear criminal proceedings on their merits.
According to Article 6 of the said Act, after the judge brings the proceedings, the court is to hold hearing,
when adversary is to be examined and other evidence is to be presented.
In the event of establishing the commission of a crime by a person and obtaining of pecuniary gain as a result
thereof, the court is to issue an indictment that the person has committed crime; that as a result of such crime,
a pecuniary gain has been obtained; what particular property or rights form this pecuniary gain from crime
or its money equivalent; then holds that property or the rights are to be transferred to and become the property
of the state, or holds that the adversary is to transfer particular property or rights to the state, or make payment
of their money equivalent within 15 days from the effective date of the court ruling. Both decision to
commence the proceedings and decision for confiscation can be appealed.
Legislation of
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