The impact of the recognition and enforcement of the European confiscation order on the third parties of good faith
The impact of the recognition and enforcement of the European confiscation order on the third parties of good faith

Author(s): Elise Nicoleta Valcu
Subject(s): Law, Constitution, Jurisprudence, Criminal Law, EU-Legislation
Published by: Societatea de Stiinte Juridice si Administrative
Keywords: confiscation order; good faith third party; non-recognition; state of execution; fundamental rights; procedural guarantees;
Summary/Abstract: This study aims to bring to the attention of specialists the laudable approach of the Union co-legislator on the adoption of Regulation (EU) 2018/1805 on orders of unavailability and confiscation, a legal step taken to harmonize the legislation on the subject of analysis. The research methods used in our study are: a) the logical-concretized method by using the union and national framework norms in the matter of confiscation; b) the comparative method - in order to perform a comparative analysis of the main institutions of material and procedural law. We note, however, that the provisions of this Regulation are in accordance with the obligation to respect fundamental rights and legal principles enshrined in Article 6 of the Treaty on European Union (TEU2 in the sense that fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms constitute general rules of Union law. The Union norm that represents the theme of this study aims at ensuring the effectiveness of the recovery process of the assets derived from the commission of crimes, respecting the fundamental rights, especially of the third parties in good faith. Specifically, we refer to those exceptional situations, when there are good reasons to believe that, based on specific and objective evidence, the recognition and enforcement of a confiscation order would lead to a manifest violation of a relevant fundamental right of a third party of good faith. For such a situation, the judicial authority of the executing State must reconsider the automatic recognition of the confiscation order, relevant being the fundamental rights, in particular, the right to an effective remedy, the right to a fair trial and the right to defence and not least the right to the guarantee of private property.

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