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Extended confiscation is imposed in Lithuania during the criminal proceeding provided that the following
conditions are met:
1)
The offender has been convicted of a less serious, serious or grave intentional crime (punishment by
imprisonment of 3 years) from which he or she obtained, or could have obtained, pecuniary gain;
2)
The offender holds the property acquired during the commission, after the commission of an act or
within the period of five years prior to commission of the acts prohibited by the Criminal Code,
value of which does not correspond to the legitimate income of the offender, and the difference is
greater than 250 minimum living standards, or transfers such property to other persons within the
period specified herein;
3)
The offender fails, in the course of criminal proceedings, to provide proof of the legitimacy of
acquisition of the property.
Moreover, it is to be noted that under the conditions described in paragraph 3 of Article 72-3 of the Criminal
Code, property of informed third persons, both natural and legal, may also
be subject to confiscation, namely
if:
1)
The property has been transferred under a fake transaction;
2)
The property has been transferred to offender’s family member or close relatives;
3)
The property has been transferred to a legal person, and the offender, his family members or close
relatives is/are the legal person’s director, member of its governing body or participant holding at
least 50% of interest (shares, etc.);
4)
The person transferring the property or persons holding senior positions in the legal person and being
entitled
to represent it, to make decisions on behalf of the legal person or to control the activities of
the legal person, were aware, or ought to have been aware and could have been aware that this
property has been obtained through crime or with illicit funds of the offender.
Where the property or its part, which is subject to confiscation, has been concealed, consumed, belongs to
third persons or for other reasons cannot be taken, or confiscation of this property would not be appropriate,
the court shall recover from the offender or [informed] third persons the amount of money equivalent to the
value of such property (paragraph 5 of Article 72-3 of the Criminal Code). When rendering a decision on
imposing extended confiscation, the court is to specify the property subject to confiscation or the monetary
equivalent of such property or its part (paragraph 6 of Article 72-3 of the Criminal Code).
The court rules on extended confiscation by a conviction, judgment to close criminal proceeding and an
endorsement of release, or by an order on exemption of the convicted person from serving the sentence. A
decision on confiscation may also be a part of ruling of the district court approving the decision of the Parole
Board on application of such exemption from serving the sentence by the convicted person.
Upon issuing a
decision on confiscation in any form, the court shall send it to a bailiff for execution (paragraph 4 of Article
342 of the Criminal Procedure Code of Lithuania).
In accordance with Article 94 of the Criminal Procedure Code of Lithuania, the decision on confiscation is
to be made by a prosecutor or pre-trial judge, who closes criminal investigation before the trial. Paragraph 3
of Article 94 specified that if the matter of imposing confiscation is to be considered upon closing of the
criminal case before the trial, criminal investigation is closed by pre-trial judge, who approves the decision
of the prosecutor on closing the investigation. When imposing of confiscation or extended confiscation is
being decided, the court hearing is held attended by a prosecutor and a person whose property is confiscated.
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Other people may also attend the hearing. In the end of the proceedings, the court rules on the confiscation
of property or rejection of confiscation. The decision may be appealed.
In accordance with Article 83-2 of the Criminal Code of
Estonia
, when the court convicts a person for crime,
it may,
as stipulated by the Code, confiscate part or all assets of the convicted person, if they are owned by
him or her on the date of ruling and if nature of crime, difference between legitimate income and financial
situation, expenses and lifestyle of the person, or other fact, constitutes a ground to assume that the person
acquired such assets through crime or by use of property acquired through crime (hereinafter to be referred
to as criminal assets). Confiscation is not imposed on the assets person confirms that they have not been
acquired through crime on.
Until 10 January 2017, extended confiscation in Estonia could have been applied only in case of conviction
of a person for a crime for a term of not less than 1 year of imprisonment, however,
such limitation is
overruled as of today. Nevertheless, for application of such type of confiscation it is required for such
possibility to be clearly stipulated in a sanction of the Criminal Code article itself (applied, in particular, to
such offences as accepting, giving bribe, active and passive bribery in the private sector, misuse of funds or
fraud by an official, as well as for money laundering).
If criminal assets are intermingled with other assets, such assets are considered the ones partially acquired
through crime and are subject to confiscation in relative proportions. The court may confiscate the assets
owned by a third person on the date of the decision if: 1)
they have been acquired, fully or in their
predominant part, through crime, as a gift or any other way at the value, which is considerably lower the
market value; or 2) third person knew that they had been transferred in order to avoid confiscation.
Extended confiscation cannot be imposed on assets of third persons, which have been acquired: 1) earlier
than 10 years from the date of a crime of the first degree; or 2) earlier than 5 years from the date of crime of
the second degree. It is also to be noted that in case of conviction of a legal person for crime, the court may
confiscate part or all assets of such legal person held on the date of decision, if nature of crime constitutes
grounds to presume that main activity of the legal person is aimed at committing crimes
and its assets have
been acquired through crime
Extended confiscation was introduced in the
Latvian
legislation on 1 August 2017. According to Article 70-
11 of the Criminal Code, the property that is obtained by criminal means is subject to confiscation. When
committing a crime with the nature of obtaining financial or other benefit, property, the value of which does
not correspond to the legitimate income of the person and the person cannot prove that it was acquired
legally, can be considered as property obtained by criminal means. This also applies to the property of third
persons in
permanent family, economic or other relationship with the offender.
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