Although the confiscation project still admissible at the stage of the preparatory procedure has not yet been published, the idea itself has already sparked discussions and is given a different opinion.
The Ministry of Justice considers that the extended confiscation introduced in 2017, is not a sufficient tool to combat money laundering and terrorism. On a wave of regulations to help stop the pandemic, he wants to introduce preventive confiscation.
one from the arguments that are to support it, it is that it will be possible to confiscate the illegal alcohol needed for disinfection at the in-rem stage. Confiscation expanded, already functioning in Polish law, is to be introduced preventively, without a final judgment.
It is intended to cover the property of persons against whom no criminal proceedings are pending but who are unable to demonstrate the legal origin of the property. Law enforcement authorities will no longer have to demonstrate the transfer of assets, or that this property was used to commit crimes or was acquired illegally.
The legislature wants to shift the burden of proving that his assets come from legal sources.
In the event of the entry into force of these solutions, it is sufficient, for example, that a person who is in possession of, as he may later prove to be, the perpetrator of the crime and can then be exposed to the risks associated with the obligation to demonstrate the origin of his entire property, under the security of his acquisition by the State, also as a result of the mistakes of the authorities
The fuses of this solution are not yet known, but attention is already paid to some of its worrying aspects.
Entrepreneurship Council appeal: interference with private property law before a court judgment inadmissible
The Enterprise Council which they form Polish Confederation Lewiatan, ABSL, Federation of Polish Entrepreneurs, KIG, Polish Business Council, Employers of the Republic of Poland, Association of Polish Banks, BCC and Association of Polish Crafts, warns that if these solutions enter into force, it is sufficient that a person who may be in contact with – as he may later turn out – the perpetrator of the crime, and can then be exposed to the risks associated with the obligation to demonstrate the origin of his entire property, under the security of his acquisition by the state, also as a result of mistakes of organs.
- This could be a blade against honest entrepreneurs. The right to dispose of their assets in the context of such a high discretion of the solutions adopted and unfavourable external conditions resulting from the coronavirus pandemic may further increase the uncertainty associated with the conduct of business activities," the Entrepreneurship Council urged.
The Ministry of Justice wants to introduce preventive confiscation, despite the fact that the Polish penal code already applies a confiscation extended on the basis of which the court can rule against the forfeiture of the non-proprietary or equivalent of the undertaking.
Property for which the perpetrator has taken over or received any title during the period 5 years before the offence is committed, the benefit of the offence shall be considered to be obtained and therefore forfeit. If this property was transferred to a person third under any title, such property is also forfeited.
State authorities therefore already have very effective tools to confiscate assets of persons who have acquired or acquired assets illegally from perpetrators of crimes.
- We share the view that there can be no consent to criminal concealment of goods. However, a criminal becomes a person only after a final conviction. Until then, the suspect is considered innocent. Only real criminals or persons who benefit from other persons' criminal activities should be of interest in the judicial system, while tools to combat crime should be proportionate and minimise the risk of abuse and confusion of state authorities. Meanwhile, it is justified to fear that the new rules could be used against entrepreneurs who acted in good faith, but someone in their surroundings proved to be a criminal.
In the opinion of the Entrepreneurship Council, it is necessary to refrain from further changes. The confiscation of assets and the prosecution's actions are contrary to Article 46 The Constitution of the Republic of Poland (the ‘accuracy of things may occur (...) only on the basis of a final judgment of the court’) There must be no preventive repression of citizens, unacceptable in a democratic legal state.
Preventive confiscation and EU law
This type of confiscation of property according to every probability derived from the crime is applied in Italy and praised by Roberto Alfonso, Attorney General of Milan, who stated: the prosecution needed an effective tool to fight organised crime. It was considered that the most effective solution was to hit the mafia bosses' assets, regardless of who actually owns them. This solution worked very well.
A ruling from the European Court of Human Rights 2015 on Gogitiga and others v Georgia. The Court allowed preventive confiscation in it, stressing the importance of combating organised crime and money laundering. One of the conditions for the application of the tool, as highlighted in the ruling, is to be proportionate and to guarantee that the entity can defend its rights.
The Ministry of Justice emphasises that the solution will be that the seizure of property will be decided by the court, not the prosecution. “And we have no reason to believe that Polish independent judges will want to bring down anyone who has made a fair profit,” says Marcin Warchoł, Deputy Minister of Justice.
In addition, the project is intended to adapt the Polish legal order to the entry into force 18 December 2020 Union Regulation (EU) 2018/1805, on the mutual recognition of freezing orders and confiscation orders.
The Ministry of Justice has an argument here that will help to push through the idea because it claims that it would be difficult to follow, for example, Italian orders in our country, since the native procedure does not know the solutions used in Italy.
The question is: does Poland need a tool modeled to solve the Italians fighting the mafia?