Modificãrile aduse în materia confiscãrii de prevederile legii nr. 278/2006
Modifications to the Institution of Confiscation, in view of Law no. 278/2006

Summary/Abstract: Due to numerous critiques brought by the penal literature, but also to frequent problems encountered in the practice of law, the institution of confiscation has been largely modified by Law no. 278/2006 on the modification of the penal code. The study commences with the identification of novel elements for each case in which confiscation can take place. Thus, in relation with the first case provided for by art. 118(1) a) - “goods produced through the perpetration of a criminal act”- , the author shows that the single element of innovation is the replacement of the term “belongings” with “goods”, adjustment that is also present in all the other hypothesis of confiscation. Although he considers it just a terminological preference on the part of the law-maker, the author appreciates the adjustment, as the term “goods” has already been consecrated in the special part of the Romanian penal code, under offences against patrimony. The hypothesis regulated under letter b) of art. 118(1) stipulates the confiscation of “goods that have been utilized in any way for the perpetration of a crime, if they belong to the perpetrator”. The element of novelty is represented by the necessity that the goods are effectively utilized for the perpetration of the offence, request that was absent from the past regulation. However, even if the text seems to limit the sphere of incidence of the measure, it actually enlarges it, permitting confiscation whenever the good has been utilized in any way in the committing of the offence. Therefore, in theory, possible objects of confiscation could be the buildings owned by a person who has been prosecuted for procurement, if acts of prostitution have taken place in those buildings. The text also brings about the possibility of confiscating goods that belong to another person than the offender, if that person was aware of the purpose with which the goods were used. Without denying the formal correctness of this thesis, the author considers it redundant, as no concrete case can be imagined where the person in question, knowing the aim of utilizing the good, is not a participant at the perpetration of the crime- in other words, an offender. Concluding the investigation of this hypothesis, the study welcomes the legislator’s initiative of not permitting confiscation on these grounds in the case of offences carried out through the mass media. The third confiscation hypothesis, regulated by art. 118(1) c) of the penal code- is a premiere, not being existent prior to the amendment. According to letter c), “goods produced, modified or adapted with criminal purpose (…)” will be confiscated “(…) if they have been utilized in the perpetration of the crime, and belong to the perpetrator”. This hypothesis is, the study maintains, only specie of the confiscation provided for by letter b). According to letter d), confiscation can also be applied to “goods that have been given to determine the perpetration of an ac

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