Part Three
SPECIAL PROCEEDINGS
Chapter XXII
PROCEEDINGS FOR CONFISCATION OF PROCEEDS FROM CRIME
Applicable Provisions of the Code
Article 537
The provisions of Articles 538 through 543 of this Code shall apply in the proceedings for the confiscation of proceeds from crime, and unless these provisions specify something special, the other provisions of this Code shall apply mutatis mutandis.
Duty to Determine the Proceeds from Crime
Article 538
The proceeds from crime are determined in criminal proceedings ex officio.
The authority conducting proceedings is required to collect evidence and examine circumstances of importance for determining the proceeds from crime during the proceedings.
If an injured party has submitted a restitution claim whose subject matter excludes the confiscation of proceeds from crime, the proceeds from crime shall be determined only in the part which is not encompassed by the restitution claim.
Confiscating Proceeds from Crime from Other Persons
Article 539
When the confiscation of proceeds from crime from other persons may be considered, the person to whom proceeds from crime were transferred free of charge or with compensation obviously not commensurate with the true value, or a representative of a legal person, shall be summoned for questioning in the preliminary proceedings and at the trial. This person shall be cautioned in the summons that the proceedings shall be conducted even in his absence.
The representative of a legal person shall be examined at the trial after the defendant. The same procedure shall apply to the other person referred to in paragraph 1 of this Article, unless he has been summoned as a witness.
The person referred to in paragraph 1 of this Article, i.e. the representative of a legal person, is authorised to propose evidence in connection with the determination of the proceeds from crime, and to examine the defendant, witness, expert witness and professional consultant with the permission of the panel president.
The exclusion of the public from the trial does not relate to the person referred to in paragraph 1 of this Article, i.e. the representative of a legal person.
If the court determines only during the trial that proceeds of crime may be confiscated, it shall adjourn the trial and summon the person referred to in paragraph 1 of this Article, i.e. the representative of a legal person.
Temporary Measures for Securing Claims
Article 540
When proceeds from crime may be confiscated, the court shall order temporary measures of securing claims, acting ex officio, according to the provisions of the law which regulates the proceedings of enforcement and securing claims. In this case, the provisions of Article 257 paragraphs 2 to 4 of this Code shall apply mutatis mutandis.
Decision of the Confiscation of Proceeds from Crime
Article 541
The court may impose the confiscation of proceeds from crime in the judgment of conviction or in a ruling on the imposition of the security measure of compulsory psychiatric treatment.
The court shall evaluate the proceeds from crime at its discretion, if its determination would cause disproportionate difficulties or considerably delay the proceedings.
The court shall specify in the summary judgment or ruling which object or amount of money is being confiscated.
A certified copy of the judgment, or ruling, is also delivered to the person referred to in Article 539 paragraph 1 of this Code, as well as the representative of a legal person, if the court has imposed the confiscation of proceeds from crime from that person, or legal person.
Analogous Application of Provisions on the Appeal against a First Instance Judgment
Article 542
The provisions of Article 434 paragraphs 4 and 5, Article 444 and Article 449 of this Code shall apply mutatis mutandis in respect of an appeal against a decision on the confiscation of proceeds from crime.
Motion to Reopen Criminal Proceedings
Article 543
A physical person or a representative of a legal person (Article 539 paragraph 1) may submit a motion for the reopening of criminal proceedings in respect of the decision on the confiscation of proceeds from crime.
(a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.
(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.
2.
(a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.
1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.
1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.
3. Communications between a sentenced person and the Court shall be unimpeded and confidential.
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.