CONFISCATION OF MATERIAL GAIN
Grounds for Confiscation of Material Gain
(1) No one may retain material gain obtained by criminal offence.
(2) The gain referred to in paragraph 1 of this Article shall be seized on conditions provided herein and by decision of the court determining commission of a criminal offence.
Conditions and Manner of Seizure of Material Gain
(1) Money, items of value and all other material gains obtained by a criminal offence shall be seized from the offender, and if such seizure should not be possible, the offender shall be obligated to hand over other assets corresponding to the value of assets obtained through commission of criminal offence or deriving there from or to pay a pecuniary amount commensurate with obtained material gain.
(2) Material gain obtained by a criminal offence shall also be seized from the legal entity or natural person it has been transferred to without compensation or with compensation that is obviously inadequate to its actual value.
(3) If material gain is obtained by an offence for another, such gain shall be seized.
Protection of the Injured Party
(1) If in criminal proceedings a property claim of the injured party is accepted, the court shall order seizure of material gain only if it exceeds the adjudicated amount of the property claim.
(2) The injured party who in criminal proceedings has been directed to institute civil action in respect of his/her property claim, may request compensation from the seized material gain if he/she institutes a civil action within six months from the day the decision referring him/her to litigation becomes final.
(3) The injured party who does not file a property claim during criminal proceedings may request compensation from the seized material gain if he has instituted civil action to determine his claim within three months from the day of learning of the judgement ordering seizure of material gain, and not later than three years from the day the order on seizure of material gain became final.
(4) In cases referred in paragraphs 2and 3 of this Article, the injured party must, within three months from the day the decision accepting his property claim became final, request to be compensated from the seized material gain.
PROCEEDINGS FOR CONFISCATION OF PROCEEDS FROM CRIME
Applicable Provisions of the Code
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
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
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
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
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
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
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.
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.