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Romania,
Article 112-1 of the Criminal Code regulates matters of imposing extended criminal
confiscation. Such confiscation is possible in case of conviction of a person for such corruption offences and
money laundering that could bring pecuniary gain and for which the law stipulates punishment of
imprisonment for 4 years or more.
Extended confiscation is ordered if the following conditions are cumulatively met: a) the value of assets
acquired by a convicted person within a time period of five years before and, if necessary, after the time of
perpetrating the offence, until the issuance of the document initiating the proceedings, clearly exceeds the
revenues obtained lawfully by the convict; b) the court is convinced that the relevant assets originate from
criminal activities such as those provided in par. (1).
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See OECD/WGB (2014), Phase 3 Report on Estonia, page 23, https://www.oecd.org/daf/anti-
bribery/EstoniaPhase3ReportEN.pdf
.
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Upon determining the difference between legal income and value of acquired assets, their value on the date
of acquisition and expenses borne by a convicted person and his or her family members are also to be
considered. If the assets subject to extended confiscation have not been found, then money and other property
within the limits of equivalent value thereof are subject to confiscation. Property and money acquired through
use of such assets and it produced are also subject to confiscation. At the same time, according to paragraph
8 of Article 112-1 of the Criminal Code of Romania, confiscation shall not exceed the value of assets
acquired during the period stipulated by law that are above lawfully obtained income of the convicted person.
In
Croatia,
extended confiscation is applied to corruption offences, which pertain to the competence of the
Office for the Prevention of the Corruption and Organised Crime, provided for the offences resulted in
pecuniary gain. In accordance with Article 78 of the Criminal Code of Croatia, if the person, who is accused
of committing crimes enlisted in this Article, owns or previously owned a property, which does not
correspond to legitimate incomes of that person, yet fails to plausibly explain the legitimacy of sources the
property has been acquired from, it is presumed that such property constitutes the proceeds of crime. In
accordance with paragraph 3 of Article 78 of the Criminal Code, if the pecuniary gain from crime has been
intermingled with lawfully acquired property, all property is subject to confiscation within the appraised
value of the pecuniary gain. The benefit received from property consisting of legally acquired property
intermingled with the material gain from crime is also subject to confiscation in the same way and using the
same method. In accordance with paragraphs 4 and 5 of Article 78 of the Criminal Code, such pecuniary
gain is also subject to confiscation from family member, irrespective of legal ground he or she holds it under,
and irrespective of whether he or she cohabits with the offender. It is subject to confiscation from any other
person irrespective of legal ground he or she holds it under, unless such person provides plausible evidence
that it had been acquired in good faith and at reasonable cost.
In accordance with the new legislation of
Poland
coming into force on 27 April 2017, in case of conviction
for the crime, which resulted in, even if indirectly, pecuniary gain of considerable value, or pecuniary gain
acquired or that could have been acquired, and leading to imprisonment for a term of not less than 5 years,
if it has been committed in a context of organised criminal group or association aiming to commit the crimes,
the property acquired by a convicted person or the convicted person was entitled to during a period from 5
years prior to committing crime and till the date of decision, is to be deemed as proceeds of crime, only if
the offender or other person concerned does not provide evidence of an opposite (paragraph 2 of Article 45
of the Criminal Code of Poland).
Analysis of the legislation of eight ACN countries, which apply the extended criminal confiscation, allows
to reduce the conditions of its application to followings:
1)
It is applied primarily upon conviction of a person for committing corruption offences and money
laundering of particular severity and/or resulting in pecuniary gain;
2)
It is applied to the property of a convicted person and informed third persons;
3)
It is applied in cases when value of the property is disproportionate to the legal income of a person
(in some countries difference is to exceed the limit stipulated by law);
4)
Property acquired within the time limits stipulated by law is considered;
5)
A presumption of criminal origin of property is raised with reversal of the burden of proving the
opposite upon the convicted person or third persons concerned;
6)
All property is subject to confiscation unless it is proved that it has been acquired with use of a legal
income of a person.
The main conditions for extended confiscation in ACN countries are outlined in the table below.
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