The Adjustment of Special Seizure to the European Criminal Law

AuthorMonica Pocora, PhD
PositionAssistant Professor. "Danubius" University of Galati
Pages89-96

Page 89

Special seizure is regulated by the Romanian criminal legislation as the only patrimonial and preventive safety measure, which ordering in rem not in personam, like of the other safety measures.

In French criminal legislation, confiscation of a thing is a complementary penalty and it meets both in enumerations of penalties privative and restrictive of rights, and also in complementary penalties. Also, in French legislation there is the possibility that seizure measure to be ordered separately, without any main penalty, similar with Romanian legislation. Special seizure is caracterized by ones authors, like a safety measure more than a penalty (Desportes Fr., 1998, p. 647). In the same time, another part of doctrine, like as criminal law itself, characterized as a complementary penalty (Robert, 1999, p. 75).

French criminal law assigned to safety measures a very modest role, has the nature of safety measures, some complementary measures like as confiscation of dangerous assets, nature recognized by law case also to the other complementary measures, like interdiction of being in some localities, retraction of driving license, interdiction of exercising some professions (Phillipe, 1994, pp. 109-110).

Especially, special seizure regulate the „seizure penalty is mandatory for some assets qualified by law or by regulation, as dangerous or harmful". As well, confiscation isPage 90ordering on asset which served or was intended to serve for commit crime or by asset which is its product, except objects which could gave back to injured person. Actually, seizure can take place to any mobile object indicated by law or by regulation which punish a certain category of crimes.

In Belgian criminal doctrine is making differences between seizure as a penalty and seizure as a safety measure, measure which refers to dangerous objects which must be retracted from circulation even these not belong to perpetrator. In terms of custom seizure, this has a mixed nature, both as penalty and as restoring measure over the injury to authorities' tax. Law on customs and duties provides the possibility of vehicles confiscation removed from customs taxes, or payment equivalent amount of that vehicle. (Hennau, 1995, pp. 355-358).

Italian legislation classify the safety measures in personal safety measures and economic safety measures (bail for good behaviour and seizure) (Fiandaca, 1995, p. 765).

The objective of special seizure is removing of dangerous assets which are dangerous by themselves or in connection with committing criminal acts stipulated by law.

Special seizure is optional when is left to judge assessment and is mandatory when referring to assets which constitutes the crime price, assets whose production, use, ownership or alienation is a crime, even was not pronounced a sentence. Mandatory seizure is not regarding to assets which are the crime price, if these belong to a person who has nothing to do with the act (Padovani, p. 445).

Dutch criminal law proceeds an extension of the seizure proceedings about assets resulting for committed crimes for them commission has been an conviction decision, on assets confiscation resulting from similar acts on which are solid evidence that would have been committed by the same person, without need that for those acts have been even started a criminal procedure. In this case, connection between the suspect and the crime from which resulting unlawful benefits is enough to order special seizure. Dutch law does not specify whether the suspect of committing such illicit behaviour has the opportunity to bring evidences to dismantle these solidly indices invoked by the judicials, but in practice was noted that such evidence was admitted such proofs, at least to decrease the amount were to be confiscated (Golobinek, 2007, p. 56).Page 91

German criminal legislation provides that seizure measure, can ordered by the court on authors assets, on instigators or accomplices, when there is assumption that the assets were a result of committing unlawful acts, or were received for committing crime. When assets, for some reasons cannot be seized, special seizure will be ordered by equivalent amount.

Unlike the situation enshrined by Dutch Criminal Code, in...

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