A confiscation order obliges a convicted person to pay to the State the advantage he obtained through criminal conduct. It is not a punishment but a measure aimed at restoring the financial position, and in practice it is often the most burdensome part of a criminal case.
Statutory basis
Article 36e of the Criminal Code allows the court to estimate the unlawfully obtained advantage and to impose an obligation to pay. The claim is dealt with in separate proceedings brought after or alongside the criminal case. Where the conviction concerns an offence carrying a fine of the fifth category, the estimate may extend to advantage from other offences for which sufficient indications exist, which is what makes the measure so wide-ranging.
How it works in practice
The prosecutor bases the claim on a financial report, most often a cash comparison in which unexplained expenditure and asset growth are set against known lawful income. The defence attacks the method and the individual items: costs directly related to the offence must be deducted, and income shown to be lawful must be removed from the calculation. The court can reduce the amount on grounds of limited capacity to pay, although in practice that argument is usually left to the enforcement stage.
Where it goes wrong
Defendants concentrate on the criminal case and leave the confiscation proceedings until later, by which time the financial report stands largely unchallenged. Records that would show lawful income – loans within the family, sales of a car, work abroad – are hard to reconstruct years afterwards. A second point is attachment: assets are frozen early in the investigation, and challenging that attachment is a separate step that does not happen automatically.
Related terms
Suspended sentence, summons and suspect.
Is a confiscation claim pending or have your assets been frozen? Our criminal lawyers examine the calculation and conduct the proceedings.
