Confiscarea extinsă. Confiscarea specială. Confiscarea de la terţi
Extended confiscation. Confiscation. Third party confiscation

Summary/Abstract: The present study is a summary of the lecture given by the author at the “Three Years from the new Criminal Codes” conference organized in Cluj-Napoca on 3-4 March 2017 under the auspices of the Faculty of Law in Cluj. Chronologically, aspects such as the regulation in the Romanian system of the institution of extended confiscation and the conditions provided by the law in order to order this are presented; afterwards, the analysis is focusing on the elements that characterize the institution in the regulation of the Criminal Code of 1969 and the current Criminal Code respectively. This comparative presentation of the same institution in the two Codes tries to underline the elements of difference, which theoretically should not have occurred, given that the provisions of European law have been transposed by the same Law no 63 of 2012 in both the criminal legislation in force at that time and in the current Criminal Code, in force since 1 February 2014. The importance of reporting possible items of distinction is highlighted in the next section, when problems from the case law of the court courts and of the Constitutional Court on the subject of the more lenient law are presented. A distinct section is dedicated to the analysis of third party confiscation; the subject of discussion is Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union and the status of its transposition in the domestic law. As a conclusion, the author points out - despite official communications - that the transposition of the Directive is far from being achieved, which is also highlighted by the ongoing infringement procedure. The correct and complete transposition of the provisions of the European instrument requires a recalibration either of the entire system of Criminal Law sanctions or at least a redefinition of the safety measures in the sense proposed in the preamble of the Directive. However, the various proposed and circulated draft laws focus only on particular amendments regarding extended confiscation and try to regulate the transient application of the new provisions in order to avoid censorship of the Constitutional Court, but completely omit to regulate the element of maximum relevance required by the Directive, namely third party confiscation.

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