Once again, the Enterprise Council calls for the implementation of the preventive confiscation project to be discontinued.
The preventive confiscation tool will shake one from the pillars of law in Poland, that is the presumption of innocence, functioning under Article 42(3) The Basic Act: “Everyone is considered innocent until his fault is established by a final judgment.” The proposed law is intended to introduce the possibility of taking over part of the property if the prosecutor considers that it comes from criminal activity.
The occupied property will be recovered after proving that it has legal origin. What is more, the asset occupied may belong to a person to whom no proceeding is pending – it is enough that he or she will somehow be associated with the person to whom the investigation will be carried out.
The rules on preventive confiscation are contrary to the Constitution of Poland, including the principle of presumption of innocence
Therefore, members of the Enterprise Council are protesting, i.e. signatories to the reactivated Enterprise Council: Business Centre Club, Federation of Polish Entrepreneurs, Polish Confederation Lewiatan, National Chamber of Commerce, Polish Business Council, Employers of Poland, Association of Business Services Leaders (ABSL) and Association of Polish Crafts. Entrepreneurs mention the weaknesses of the proposed law and once again appeal not to introduce it.
From the perspective of entrepreneurs, introducing a preventive confiscation may mean destabilising legal trade, increasing the cost and risk of doing business, including among the smallest entrepreneurs – the Council's position states. – It can also be a deterrent to foreign entrepreneurs to investing in Poland and lead to a decrease in investment attractiveness of Poland.
The risk of loss of assets, including assets acquired in good faith from a fraudulent counterparty, will be borne by all trading parties, causing a decrease in confidence and increasing the cost of the current risk assessment, as well as creating additional barriers in the negotiation and contract process. This will translate into a further slowdown in economic development, already affected by pandemic effects COVID-19.
Moreover, the provisions on preventive confiscation are contrary to the Constitution of the Republic of Poland, including the principle of presumption of innocence (it would be the traders who would demonstrate the legality of the origin of the property) and the constitutional standards for ruling the forfeiture which according to Article 46 The fundamental law requires a final judgment of the court.
In addition, if the law were to cover property acquired prior to its entry into force, we would be in violation of the prohibition of retroactive action, i.e. one the fundamental principles of criminal law. As a result, the bill would bring many unrepeated damages that would not offset illusory profits. The fight against crime cannot be at the expense of honest citizens.