On June 22, President Traian Basescu pleaded for measures allowing authorities to confiscate illegally obtained wealth alienated during criminal investigations to “deceive” authorities.
On June 27, Basescu asked the lawmakers to transpose into national legislation Decision 212/2005 of the Justice and Home Affairs Council (JHA) on the seizure of illegally-obtained property, and find a way to eliminate the presumption that the wealth was obtained legally.
The Justice Ministry says that, although Romania has a coherent and comprehensive legislative framework, developed in accordance with international standards on confiscation of proceeds from criminal activity, this framework has certain shortcomings, compared to the European requirements. Specifically, article 3 of the JHA Decision, on extended powers of confiscation, has not been transposed.
The ministry further says that extended confiscation is required in at least one of the three cases provided by article 3 section 2 letters a-c of the Decision. In all instances, it allows the seizure of property originating in criminal activity but not directly connected to the crime of which the person has been convicted. Letter (a) concerns property deriving from activities carried out during a period prior to conviction, while letter (b) says the property has been derived from “similar” criminal activity. Letter (c) says confiscation may be ordered when “the value of the property is disproportionate to the lawful income of the convicted person.”
As per its accession treaty, Romania must transpose the entire community acquis into its national legislation. The JHA Decision sets a deadline of March 15, 2007 for transposition.
In the ministry’s opinion, the failure to transpose this instrument in its entirety is partly caused by the Decision’s clash with the constitutional principle whereby wealth is presumed to have been obtained legally. The ministry’s act attempts to solve this problem through tight regulation, in line with both constitutional requirements and European Union demands.
According to the act, a prosecutor would only have to prove that a person was involved in criminal activity during a certain period of time. Then, the judge can presume that the property is the result of criminal activity undertaken by the convicted person during a prior period considered reasonable by the court. This would shift the burden of proof onto the convicted person, who must provide evidence that the property was obtained legally. If the court finds that the property’s value is disproportionate to the person’s legal income, it can order its confiscation.
Article 44 of Romania’s Constitution, concerning “the right to private property” states (section 8): “Legally-obtained wealth may not be confiscated. Wealth is presumed to have been obtained legally.”
The draft revised Constitution, put forward by President Basescu, eliminates the final part of the section, to read: “Legally-obtained wealth may not be confiscated.” The Constitutional Court ruled this and other changes unconstitutional.
In a dissenting opinion, Constitutional Court judge Iulia Motoc wrote that eliminating the provision would not violate an individual’s right to property. She added that the presumption of legally-obtained wealth actually breaches international treaties to which Romania is party: the November 8, 1990 Council of Europe Convention on laundering, search, seizure, and confiscation of the proceeds from crime, and the UN Convention of December 12, 2000 against transnational organized crime.