Detailed safeguards for such cases are provided in the legislation of
Montenegro
, for example. According
to paragraph 5 of Article 113 of the Criminal Code of Montenegro, criminal proceeds may be confiscated
from a third person only if these proceeds have been transferred to such person free of charge or if such
person knew, could or should have known that this pecuniary gain has been acquired through a criminal
offence. When the property rights of bona fide third persons are affected in the process of criminal
proceedings, the Criminal Procedure Code of Montenegro provides such persons, whose property has been
subjected to measures of confiscation, with the right to request for retrial regarding the decision on the
confiscation, or to file an appeal against such decision (Articles 483 and 484 of the Criminal Procedure
Code).
Similar provision is framed in paragraph 3 of Article 75 of the Criminal Code of
Slovenia
, but, nonetheless,
the ‘free of charge transfer of property’ criterion is supplemented by the criterion of ‘transfer of property for
a sum of money that does not correspond to its actual value’, while the responsibility ‘to know about criminal
origin of property’ is excluded from the subjective part (basis – third person knew or ought to have known).
This means that the property acquired by a third person is not subject to confiscation, unless this third person
is proved mala fide. That said, the prosecution bears the burden of proving the mala fide
The Criminal Code of
Croatia
is less comprehensive in this aspect, as it envisages only that the proceeds of
price shall be confiscated from the third person, who received these proceeds, subject to such proceeds being
acquired mala fide (paragraph 1 of Article 77 of the Criminal Code). The lack of precise criteria of ‘bona
fide’ in the law may engender problems in practical application of this norm both in terms of effective
confiscation of property from third persons and in terms of respect for their rights.
As per paragraph 4 of Article 96-2 of the Criminal Code of
Ukraine
, the property is subject to confiscation
from a third party, if this third party has acquired such property from a suspected, accused or other person
free of charge, at the market value or for an amount significantly higher or lower than the market value, and
knew, should or could have known that such property had been an instrumentality to commit or the proceed
of a crime. The mentioned information must be ascertained, in respect of a third person, in a judicial
proceeding based on a sufficient evidence. The special confiscation may not be applied to the property owned
by a bona fide purchaser. Using this language allows the objective criterion to preserve its content, as it
covers the acquiring of property free of charge or at any value.
In
Estonia
, criminal proceeds may be confiscated from a third party, subject to the following two conditions:
1) if such proceeds have been acquired, in full or in the essential part, on account of the offender, as a present
or in any other manner for a price which is considerably lower than the normal market price; 2) if the third
party knew that the assets were transferred to the person in order to avoid confiscation.
The Criminal Code of
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