Irrespective of the nature of the crimes committed when establishing cross-border groups with the mere appearance of lawfulness, financial gain seems to be the main triggering factor. 

Over time, it was determined that such organisations are increasingly acquiring assets in Member States other than those in which they are based, and in third-party countries, so the sums recovered from the proceeds of crime in the European Union (EU) fall well below the estimated proceeds themselves.

In this context, it was established at European level that an efficient method of fighting against these criminal activities involves stipulating severe legal consequences, by the freezing and confiscation of the proceeds of such crimes. To that end, adopting rules to harmonise the freezing and confiscation regimes in Member States facilitates mutual trust and effective cross-border cooperation; such a method was implemented by adopting Directive 2014/42/EU of the European Parliament and of the Council.

Extended confiscation is also provided by national laws, and is conditional upon the moment when the crime is committed and the time when the property which might be the subject of such confiscation is acquired, namely after 22 April 2012, as set forth by the Constitutional Court.

Confiscation against third parties involves cases where the third parties knew, or should have known, on the basis of concrete facts, that the transfer was intended to avoid confiscation. Neither European laws, nor harmonised national laws differentiate between individuals and entities; however, they specify that this type of confiscation should not be prejudicial to bona fide third parties.

For the purpose of confiscation, be it special or extended, “freezing” is required in certain cases.

“Freezing”, as defined in the Directive, means the temporary prohibition of the transfer, destruction, conversion, disposal or movement of property, or temporarily assuming custody or control of property.

The setting forth of this procedure was determined by another practice whereby suspected or accused persons transfer property to a knowing third party with a view to avoiding confiscation, so as to benefit from their property once they have served their sentences.

The responsibility for the management of frozen property lies with the National Agency for the Management of Seized Assets (ANABI), established further to Law No. 318/2015; its Organisation and Operating Regulation was approved by Government Decision No. 358/2016.

According to a press release from the Ministry of Justice, the principle “crime does not pay” can be enforced by ANABI, as of 2017, independently albeit in cooperation with the Division for Enforcement and Special Cases of the National Agency for Tax Administration, operating since 2015.

Considering that these measures risk affecting the rights of those who are not suspected or formally accused of having committed any crimes, namely third parties who are not subject to criminal prosecution, European law also provides guarantees meant to protect fundamental rights, i.e.: the right to a fair trial, service of the judgment setting forth the seizure and confiscation supported by grounds, the possibility of filing an appeal before a higher court, the summons, and the right to benefit from defence, the right to be heard, to ask questions, and supply evidence before the handing down of a final judgment.

Mircea TEIS, Senior Associate specialising in Criminal Law with Țuca Zbârcea & Asociații