Autor: Georgian Rădășanu

Publicat în: Revista Dreptul nr. 7/2021

Rezumat disponibil onlineaici.

Particular hypothesis of extended confiscation in the case of third parties

Abstract: On 2 November 2020, it was published in the Official Journal of Romania, Part I, No 1019, the Law No 228/2020 for the amendment and completion of some normative acts in the criminal field in order to transpose some directives of the European Union (hereinafter, the Law No 228/2020), an act that modifies and completes both Law No 286/2009 regarding the Criminal Code and Law No 135/2010 on the Code of Criminal Procedure.

Among the changes made by the legislator in the Criminal Code is the introduction of the extended confiscation in the case of third parties (which I will generically call „third party acquirers”) so that, taking into account this newly introduced hypothesis, this study aims, in a first stage, to address the issue, starting from the evolution of the institution of extended confiscation from the perspective of the european and national legislative framework, then continuing with a brief analysis of the changes made by Law No 228/2020. Finally, the article examines the possibility of ordering the extended confiscation security measure in the case of third parties in relation to the relevant doctrine and jurisprudence in this matter.

In a second stage, the present study aims to examine from a procedural perspective the guarantees imposed by Directive (EU) 2014/42 and which the Romanian legislator, in order to respect the right to a fair trial, provides to the third party acquirer during the criminal proceedings, with a closer look at the existence of an effective remedy for the decisions of the courts of appeal which order for the first time the measure of extended confiscation. Also, this part analyzes the possible quality that the acquiring third party has during the criminal process.

Finally, before drawing conclusions on those analyzed, it will also be shown how the other Member States have provided/transposed into their national legislation the particular hypothesis of extended confiscation in the case of third parties.

Keywords: extended confiscation; Directive 2014/42/EU; third party; right to property; right to a fair trial; European Court of Human Rights; deprivation of property; Constitutional Court;the right of access to a court;