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Albania
effective since 2010, the burden of proof lies with the party of defence, and this party in
particular has an obligation to prove the legitimacy of sources of the property originates from (Article 21 of
the Law). That said, it is unclear whether the prosecutor must exhaustingly prove that the legitimate source
of origin has not been found, or put forward the assumption thereof before court
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. In the latter case, the
burden of proof will be reversed upon the defendant, which can be viewed as violation of the fairness of the
process.
It should be specifically noted that among all of the ACN countries, which submitted the questionnaire, only
the legislation of Georgia envisages the application of the ‘balance of probabilities’ standard of evidence in
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See Technical paper on Comparative analysis between the provisions on forfeiture in the Albanian criminal code and the new
Albanian Anti-Mafia Law provisions on civil forfeiture, and their applicability with regard to offences of money laundering and the
financing of terrorism, Project against corruption in Albania (PACA), ECD/04/2010, page 18.
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the civil forfeiture procedure. Elements similar to this standard can be found in the extended criminal
confiscation procedures of Estonia, Croatia, and Montenegro.
With respect to legal remedies in the process of confiscation of corruption assets, the majority of ACN
countries referred to common rules of the criminal procedure that specify the rights of trial participants
(Azerbaijan, Armenia, Kyrgyzstan, Latvia, Moldova), the right of accused person for a defence (Lithuania,
Montenegro), the right to adduce their arguments and evidence, and the adversary character of the judicial
process in general (Lithuania, Serbia, Slovenia, Estonia), the right to appeal the court’s decision with regard
to unjustified confiscation (Lithuania, Ukraine).
These legal remedies must consist of safeguards, such as the right for legal counsel, the right to be informed
about the measures on freezing and confiscation of property, as well as the right to appeal such measures in
court, the right for procedural remedy identical to that of adversary party, the right for personal attendance
at the time of confiscation and the right to represent oneself in such procedure by adducing arguments and
evidence, the right for a justified decision on confiscation by the court (all property arguments of the party
must be responded to, the right to appeal the decision on confiscation in appeal proceedings, the right to
recover damage in case of violation of the rights of a person in the confiscation procedure.
The Directive 2014/42/EU puts a special emphasis on the legal remedies and safeguards for participants of
confiscation procedure, as Article 8 (Safeguards) of the Directive addresses these issues in full. For example,
the Article speaks about the legal remedy and fair trial for such participants, including a proper
communication on the measures on freezing of the assets and the grounds to postpone such communication
(more details about the context of third parties in Section 3. Objects of confiscation measures and subsection
f. Third party rights).
The freezing order shall remain in force only for as long as it is necessary to preserve the property with a
view to possible subsequent confiscation. Member States shall provide for the effective possibility for the
person whose property is affected to challenge the freezing order before a court, in accordance with
procedures provided for in national law. Frozen property which is not subsequently confiscated shall be
returned immediately. The conditions or procedural rules under which such property is returned shall be
determined by national law.
Member States shall take the necessary measures to ensure that reasons are given for any confiscation order
and that the order is communicated to the person affected. Member States shall provide for the effective
possibility for a person in respect of whom confiscation is ordered to challenge the order before a court.
Persons whose property is affected by a confiscation order shall have the right of access to a lawyer
throughout the confiscation proceedings relating to the determination of the proceeds and instrumentalities
in order to uphold their rights. The persons concerned shall be informed of that right. In proceedings referred
to extended confiscation, the affected person shall have an effective possibility to challenge the
circumstances of the case, including specific facts and available evidence on the basis of which the property
concerned is considered to be property that is derived from criminal conduct.
According to paragraph 9 of Article 8 of the Directive, third parties shall be entitled to claim title of
ownership or other property rights, including in the cases of confiscation from a third party referred to in
Article 6.
As noted previously, there should be at least two conditions to confiscate the property acquired through or
as the result of a corruption crime, or money laundering, and transferred to third parties formally or de facto:
Objective criterion – the property has been transferred to third persons free of charge or suspiciously cheap
– for an amount that does not correspond to the actual /market/ value, or, if the property has been formally
transferred at the market price, but to affiliated persons and without the actual payment; and
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Subjective criterion – third person knew or ought to have known that the property had been acquired through
or as the result of a crime, or knew that the purpose of the transfer was to avoid confiscation.
Exactly such conditions (with due account for regulatory considerations in each individual country) must be
proven by the prosecutor in the criminal confiscation procedure and by the plaintiff in the civil forfeiture
procedure, while third persons may avoid confiscation, if they dispose such conditions are present in the
confiscation procedure.
Section 3. Objects of confiscation measures and subsection f. Third party rights have more detailed
information about confiscation of property from third persons and their legal remedy therewith.
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