Consideratii privind confiscarea extinsa
Some Remarks on Extended Confiscation

Summary/Abstract: Through Law no. 63/2012 a recent amendment to the Criminal Code was brought forth into Romanian law, namely, a new safety measure – the extended confiscation. By this regulation, the legislator transposed into national law completely Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property. The new safety measure is not to be confused with the existing special confiscation. This is because on one side, goods produced or acquired thorough the commission of the offence, as the court established in its conviction sentence, will be subject of the special confiscation. On the other side, assets which the court reasonably believes to arise from the activities of the same nature, activities that are not subject of the sentence will fall within the scope of extended confiscation. The main hinder to the implementation of extended confiscation in the Romanian law was represented by the compatibility of this new institution and the legal presumption established by Article 44, section 8 of the Constitution, concerning the legality of acquirement. In fact, between the two there is no de plano incompatibility. This is because a relative legal presumption can be rebutted not only by evidence but by simple assumptions. In relation to extended confiscation, the legal norm provides the judge the parameters within he can build a rebuttable presumption. Basically, in this scenario, the first step is the finding that the defendant has committed an offence likely to procure him a material benefit; the next step is establishing that the defendant’s assets and incomes are clearly higher than any legal ones identified; and third, by taking into account other elements already proved in the case, the judge – through a simple assumption – can conclude that at least a part of the defendant’s assets derives from criminal activities of the same nature as the one or ones for which he was convicted. This simple assumption may by itself rebuttal the legal simple presumption enshrined by Article 44, section 8 of the Constitution. Regarding the conditions which need to be fulfilled in order to apply this measure, it must be underlined that it part of the safety measures. Therefore, all the general conditions of the safety measures must be fulfilled, as well as the special ones, provided by Article 1182 from the Criminal Code. In this case, it will not suffice for the defendant to commit only an act that corresponds to an offence description and which is unlawful. In addition, the act must be fulfilling all the cumulative conditions of an offence, as a court already established when pronouncing a conviction judgment for that act. This means, among others, that the measure may be ordered only by the court and not by the prosecutor during the prosecution stage. As for the existence of a state of danger (one of the general conditions required for safety measures), we consider

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