Autor: Flaviu CIOPEC

Publicat în: Revista de Științe Juridice nr. 1/2015

Disponibil onlineaici.

The judge’s margin of appreciation in ruling upon extended confiscation in a criminal trial

Abstract: The institution of extended confiscation has inevitably entailed the change of some classical concepts of criminal law, being the expression of a particular way of achieving penal repression, in the context of the fight against organized crime and corruption. The extended confiscation mechanism implies resorting to vague notions, such as “the judge’s conviction” or “obvious disproportion” and using a lower evidentiary standard (indirect or circumstantial evidence) for proving the crime activities which led to the obtainment of goods whose legal source cannot be pointed out. Also, an essential role will be played by legal reasonable presumptions, such as the person’s living standard. All these elements represent important challenges, to which the judge is confronted, since he is called for to preserve a balance between the guarantee of fundamental rights and the public interest for an efficient penal repression. Redefining the criminal law judge’s margin of appreciation thus represents an outstanding concern and justifies the highlight of certain coordinates in this sense

Keywords: extended confiscation; the judge’s margin of appreciation; the court’s conviction; extralegal presumptions; evidentiary standard.