Opinion on the introduction of the institute of civil confiscation in the in the legislation

The Institute for European Policy and Reform (IPRE) has issued an opinion, which reviews the current confiscation mechanism applied to goods resulting from criminal activity and unjustified assets.

IPRE experts ascertain that, the existing instruments of confiscation are mainly related to the criminal proceedings and can be applied outside the criminal investigation, only in case when NIA finds unjustified assets and only in respect to persons holding public office or positions of public dignity, with regard to the differences identified during the period of holding the respective mandates.

In this context, IPRE experts consider it necessary to include in the national legal framework the form of civil confiscation, in those cases when the criminal case does not conclude with a conviction, but the confiscation could be still applied in case the illegal nature of the assets has been established.

For this, IPRE experts recommend to consider the following legal components to describe the civil confiscation:

1. The application of confiscation shall not be limited in time nor related to any specific offenses, as is the case for extended confiscation.
2. It shall be still the task of the authorities to prove the illegal nature of the assets, but the verification is to be made based on the individual’s obligations to declare – the income or assets within the framework of the tax and integrity legislation. Any difference between the declarations filed and the existing real assets will be considered illegal property and confiscated via the civil confiscation, unless the individual proves the legality of the assets.
3. The instrument of civil confiscation shall not be placed framework of the criminal law, in order to avoid any limitations imposed by criminal law related to non-retroactivity. Instead, civil confiscation would be an integral part of administrative proceedings.
4. Civil confiscation may be executed by the State Fiscal Service, NIA and the Ministry of Finance. The civil confiscation mechanism is to implemented following a court decision.
5. The norms regarding the civil confiscation shall be inserted in the Fiscal Code, with separate references to the related normative acts, such as the the Criminal Code, the legislation regarding NIA, CARA etc.
6. NIA, CARA, Office for the Prevention and Fight Against Money Laundering could be assigned to ensure an effective instrument of civil confiscation of assets.

For more details read the Opinion  here.

This opinion was drafted during September 23-29, in the framework of the project “Strengthening the resilience against the systemic kleptocracy in the Republic of Moldova”, implemented by IPRE and with the financial support of Soros Foundation Moldova. The content of the document represents the view of the IPRE experts responsible for drafting it and does not necessarily reflect the opinion of Soros Foundation Moldova.