A mechanism is necessary for seizing illegally gained property even if someone wasn’t lawfully convicted

Criminals are hurt more when their money and property is taken than when they are punished by imprisonment, which is why a mechanism for seizing illegally gained property is necessary even if someone was not lawfully convicted.

That was recommended at the first-panel Analysis of the work of responsible institutions in conducting financial investigations – suggestions for future solutions, within the final regional conference “Financial Investigations in Serbia, Bosnia and Herzegovina and Montenegro”, organized by the Centre for Monitoring and Research (CeMI).

Head of the Legal Department at CeMI, Bojan Bozovic, thinks that the better thing is for the criminal to be free but without property than in prison, with the property gained illegally.

“Of course, the ideal thing would be to fulfil both those conditions”, pointed out Bozovic.

He stated that the study visits and the parallel experience exchange leads to conclusions that “in this region, we obviously do not have enough number of verdicts when it comes to financial investigations”.

“Study visits and exchanging experiences at the regional conference are of key significance, not only to talk about this subject of comparative analysis and legal regulations but to establish communication, contacts and future cooperation related to these subjects”, said Bozovic.

While leading financial investigations and also during the entire procedure, as he said, standards of the European Convention on Human Rights and its protocols.

“Without it, everything would be taken to another extreme”, pointed out Bozovic.

A judge at the High Court in Podgorica, Suzana Mugosa, said that in that court exist six cases related to the permanent seizing of property.

“Regarding data on temporary measures of security, in 2015 one measure on prohibition for property management was ordered, while in 2016 there were five of them and in 2017, nine of those measures”, said Mugosa.

Practice shows, as she said, that it is more efficient and expedient to preserve the property by ordering certain temporary measures of security, “since some of these measures make possible for the holder to use the property, while that is not possible with temporary seizing”.

“This is significant because in case it does not come to a conviction or to a final seizing of property, the holder has the right to a compensation, which in case if he was using it the whole time, would be significantly smaller or would not exist at all. That is why we think that ordering of this measure is more efficient and secure”, clarified Mugosa.

She said that the possibility of permanent seizing of a property was limited because the condition for it is a lawful conviction for a criminal act for which seizing property was allowed.

“In case it comes to an acquittal or if the charges are denied, a property cannot be taken away. We think that it is necessary to discuss the possibility of seizing property because of some other type of proceeding, not just criminal”, said Mugosa.

Deputy Public Prosecutor at the High State Prosecutor’s Office in Belgrade, Darko Djurovic, said that when it comes to the prosecution, great cooperation in Serbia has been developed with units for financial investigations in the Ministry of Internal Affairs.

“That cooperation really is good. We know that conducting financial investigations is a hard job. We all know that it needs to be handled delicately, considering the great damage it can cause to the state if it does not end with seizing property”, said Djurovic.

Prosecutor from the Prosecutor’s Office in Bosnia and Herzegovina, Hajrudin Mujanovic, said that at the level of that state, it has come to a change in the Criminal Procedure Code, after the Constitutional Court declared certain regulations to be unconstitutional, and they were related to the length of conducting a criminal investigation.

“New regulations declare that the investigation cannot be longer than six months for criminal acts up to ten years, i.e. one year for criminal acts for criminal acts that carry a punishment over ten years in jail. Although, the main prosecutor can extend the investigation in more complicated cases for one more year. However, that is a short deadline”, explained Mujanovic.

He pointed out that in Bosnia and Herzegovina the administration is slow.

“When it comes to cooperation with the surrounding states related to financial investigations, the biggest annoyance is tardiness, so the conclusion is it is necessary to act more quickly”, said Mujanovic.

A judge at the High Court in Belgrade, Special Department for the Fight Against Organized Crime and Corruption from Serbia, Zoran Ganic, said that the results of a financial investigation should be expressed through forming of a quality and comprehensive indictment.

“For the indictment to be of quality it has to be comprehensive. A financial investigation needs to be followed by a criminal investigation at the same time if conditions for that exist. The conditions, in most cases, do exist”, said Ganic.

He thinks that the criminals are much more hurt when you take their money or property away than when you sentence them.

“Also, citizens are generally not interested in whether they serve one, two or three years, but in taking away what they stole from the state. A mechanism should exist for seizing property even if someone was not lawfully convicted, even if it was obvious that the property was gained illegally”, said Ganic.

A judge at the Court of Bosnia and Herzegovina, Tatjana Kosovic, said that at the level of that state a Law on the origin of property is missing.

“For years there have been talks about this law and it is necessary to pass it as soon as possible, resolve the legislation, form the Directorate for Property Management at the state level. That was regulatory and legislatively solved in Republika Srpska”, said Kosovic.

According to her, it is necessary for a financial investigation to follow a criminal one.

“The biggest problem is a lack of legislation and the nonexistence of an agency that would deal with protecting temporarily seized property. In the previous period, about 40 to 50 million marks were seized but that is only on paper and those are just verdicts. Because we do not have an institute for the implementation and we especially do not have institutions to secure that property with temporary measures, so it can rest while the proceeding finishes”, explained Kosovic.

She thinks that it is necessary to solve the question about the existence of a central register of all bank transactions and accounts, that would be given only with a court order.

“Because now, if we are looking for certain information, we have to ask every bank which that person is connected with. That is a long period necessary for acquiring that information”, said Kosovic.

Regional conference is part of the project ““Strengthening investigation and prosecution capacity in the Western Balkans countries – Financial investigations as a tool to combat organized crime and corruption”, which CeMI is implementing on cooperation with partner organizations the Association for Democratic Initiatives from Sarajevo and Transparency Serbia from Serbia and is financed by the Royal Netherlands Embassy.

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