The Directorate shall: 1) manage the seized/confiscated proceeds from crime, objects resulting from the commission of a criminal offence (Article 87 of the
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Note: This is a true translation of the original Law Original title: ZAKON O ODUZIMANJU IMOVINE PROISTEKLE IZ KRIVI NOG DELA —Službeni glasnik Republike Srbije” br.97/08 Translation date: December 2008. Prepared by: Javna ustanova / Public Agency Jugoslovenski pregled /Yugoslav Survey Deanska 8, Beograd; Phone/Fax: + 381 11 / 32 33 610, 32 32 295; 32 41 953, 32 40 291;P.O.B. 80 www.pregled-rs.rs Ł www.survey-rs.rs Ł e-mail: info@pregled-rs.rs
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LAW ON SEIZURE AND CONFISCATION OF THE PROCEEDS FROM CRIME I BASIC PROVISIONS Article 1 This Law shall govern the requirements, the procedure and the authorities responsible for tracing, seizing/confiscating and ma naging the proceeds from crime. Article 2 Provisions of this Law shall apply to the following criminal offences: 1) Organised crime; 2) Showing pornographic material and child pornography (Article 185, paragraphs 2 and 3 of the Criminal Code); 3) Against economy (Article 223 paragraph 3, Article 224 paragraph 2, Article 225 paragraph 3, Article 226 paragraph 2, Artic le 229 paragraphs 2 and 3, Article 230 paragraph 2, and Article 231 paragraph 2 of the Criminal Code); 4) Unlawful production, keeping and distribution of narcotics (Article 246 paragraphs 1 and 2 of the Criminal Code); 5) Against public peace and order (Article 348 paragraph 3, and Article 350 paragraphs 2 and 3 of the Criminal Code); 6) Abuse of office (Article 359 paragraph 3, Article 363 paragraph 3, Article 364 paragraph 3, Article 366 paragraph 5, Article 367 paragraphs 1 through 3, 5 and 6, and Article 368 paragraphs 1 through 3, and 5 of the Criminal Code); 7) Against humanity and other goods protected by international law (Article 372 paragraph 1, Article 377, Article 378 paragraph 3, Article 379 paragraph 3, Articles 388 through 390, and Article 393 of the Criminal Code). Provisions of this Law shall apply to criminal offences provided under Article 185 paragraphs 2 and 3, Article 230 paragraph 2, Art icle 348 paragraph 3, Article 350 paragraphs 2 and 3, Article 366 paragraph 5, Article 367 paragraphs 1 through 3, 5 and 6, Article 368 paragraphs 1 through 3, and 5, Article 372 paragraph 1, Article 377, Article 378 paragraph 3, Articles 388 through 390, and Article 393 of the Criminal Code if the material gain acquired from crime, that is, the value of objects acquired from crime exceeds the amount of one million five hundred thousand dinars.
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Article 3 The following terms in this Law shall mean: 1) “Assets” shall denote goods of any kind, tangible or intangible, movable or immovable, estimable or of inestimably great value, and instruments in any form evidencing rights to or interest in such good. Assets shall also denote revenue or other gain generated, directly or indirectly , from a criminal offence as well as any good into which it is transformed or which it is mingled with. 2) “Proceeds from crime” shall denote assets of an accused, cooperative witness or bequeather being manifestly disproportionate to his/her lawful income. 3) “The accused” shall denote a suspect, a pe rson against whom cr iminal proceedings are instituted or a person convicted for a criminal offence constituted under Article 2 of this Law. 4) “Bequeather” shall denote a person against whom, due to his/her death, criminal proceedings are not instituted or ar e discontinued, whereas it has been demonstrated in criminal proceedings against other persons that he/she had committed a criminal offence under Article 2 of this Law together with the persons concerned. 5) “Legal successor” shall mean an inher itor of a convicted person, cooperative witness, bequeather or inheritors thereof. 6) “Third party” shall mean a natural person or a legal entity to which the proceeds from crime have been transferred. 7) “Owner” shall refer to an accused person, a cooperative witness, a bequeather, and a legal successor or a third party. 8) “Confiscation” shall denote temporary or permanent seizure of the proceeds from crime from the owner. Article 4 Unless otherwise stipulated by provisions of this Law, the Criminal Procedure Code provisions shall be applied by analogy. II COMPETENT AUTHORITIES Article 5 The authorities competent to trace, seize/conf iscate and manage the proceeds from crime shall include the public prosecutor, the court, Financial Intelligence Unit of the Ministry of Internal Affairs, and the Directorate for mana gement of seized an d confiscated assets. Jurisdiction of the public prosecutor and th e court in the proceedings specified in paragraph 1 of this Article shall be determined pursuant to jurisdiction of the court for the criminal offence wherefrom the assets concerned are derived.
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) Finantial Intelligence Unit Article 6 The Financial Intelligence Unit (hereinafter “Unit”) is a specialised organisational unit of the Ministry of Internal Affairs responsible for detecting the proceeds from criminal offences, and performing other ta sks in accordance with this Law. The tasks specified in paragraph 1 of this Article are undertaken by the Unit ex officio or at the order of the public prosecutor and the court. Government and other authorities, organisations and public services are required to extend assistance to the Unit. Article 7 Minister of Internal Affairs shall pass a sepa rate act on the internal organisation and job classification in the Unit. Minister of Internal Affairs shall assign Head of the Unit upon acquiring an opinion from the Republic Public Prosecutor. b) Directorate for Management of Seized and Confiscated Assets Article 8 The Directorate for Management of Seized and Confiscated Assets (hereinafter “Directorate”) is hereby established as a body within the Ministry of Justice to perform the tasks provided for under this Law. The Directorate shall perform tasks ex officio under the competence thereof or at the order of the public prosecutor and the court. Government and other authorities, organisations and public services are required to extend assistance to the Directorate. Article 9 The Directorate shall: 1) manage the seized/confiscated proceeds from crime, objects resulting from the commission of a criminal offence (Article 87 of the Criminal Code), material gain obtained by a criminal offence (Articles 91 and 92 of the Criminal Code) and assets given as pledge in criminal proceedings; 2) conduct professional assessment of the seized proceeds from crime; 3) store, safeguard and sell provisionall y the seized proceeds from crime and administer funds thus obtained in accordance with the law; 4) maintain records of assets managed in term s of paragraph 1, subparagraph 1 of this Article, including the records on court pr oceedings deciding on such property; 5) participate in extending mutual assistance; 6) participate in training of civil servants and magistrates on seizure of the proceeds from crime; 7) perform other tasks in accordance with this Law.
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The Directorate shall perform tasks under paragrap h 1 of this Article also in relation to material gain deriving from commercial felony and/or misdemeanour. Article 10 The Directorate shall have th e capacity of a legal person. The seat of the Directorate shall be in Belgrade. The Directorate may establish separate organisational units outside its seat. Article 11 The Directorate shall be mana ged by a Director, to be appointed and released from office by the Government at the mo tion of the Minister of Justice. A person meeting general requirements for service in government authorities, who has graduated from the Law School or the Facult y of Economy, and who has minimum of nine years of professional service may be appointed a Director. The Director shall have the status of a civil servant in accordance with regulations on civil servants. The Director may not be a me mber of any political party. Provisions of regulations governing matters of conflict of interest shall apply to the Director. The Director shall be accountable for the wo rk of the Directorate and his work to the Minister of Justice. Article 12 Regulations on public administration shall appl y to the functioning, internal organisation and job classification in the Directorate, whereas regulations on general administrative procedure shall apply to administrative matters. Regulations on civil servants and appointees shall apply to the rights and duties of the Directorate staff. Article 13 Funds for the Directorate operations shall be secured from the Budget of the Republic of Serbia and other revenues, in accordance with Law. Article 14 Supervision of the Directorate operations shall be conducted by the Ministry of Justice. III PROCEDURE ) Financial Investigation Article 15 Financial investigation shall be instituted against the owner when reasonable grounds exist to suspect that he/she po ssesses considerable assets deriving from a criminal offence.
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b) Temporary Seizure of Assets Article 21 If there is a risk that subsequent seizure of the proceeds from crime could be hindered or precluded, the public prosecutor may file a motion for temporary seizure of assets. The motion referred to under paragraph 1 of this Article shall contain data on the owner, description and legal qualification of a criminal offence, designation of assets to be seized, proof of assets, circumstances establishing reasonable grounds to suspect that assets derive from a criminal offence, and reasons justifying the need for temporary seizure of assets. The motion specified under paragraph 1 of this Article shall be decided upon, depending on the phase of proceedings, by the investigatin g judge, president of the trial chamber and/or the trial chamber conduc ting the main hearing. Article 22 Should there be a risk that the owner will make use of the proceeds from crime before the court decides on the motion referred to in Ar ticle 21, paragraph 1 of this Law, the public prosecutor may issue an order banning the use of assets, and on temporary seizure of movable assets. The measure specified in paragraph 1 of this Article shall be in force until ruling of the court on the prosecutor’s motion. The order specified in this paragraph 1 of this Article shall be enforced by the Unit. Article 23 Prior to the ruling on the motion for temporary seizure of assets the court shall schedule a hearing to which the owner, his/her defence counsel and/or attorney, if any, and the public prosecutor shall be summoned. The summons shall be delivered to the known address and/or seat of the person specified in paragraph 1 of this Article with a caution that the hearing will be held irrespective of his/her appearance. If the summons has been delivered directly to the owner or his/her defence counsel and/or attorney, it will be considered that the delivery to the owner has been thereby duly performed. If the summons cannot be delivered in the manner specified under paragraph 2 of this Article, the court shall assign an ex officio lawyer to the owner fo r the purposes of the proceedings on the temporary seizure of assets. Article 24 The hearing referred to in Article 23, paragraph 1 of this Law shall be held within five days from the day of filing of the motion for temporary seizure of assets. A hearing once commenced shall be concluded without being discontinued. The public prosecutor shall present evidence on assets in possession of the owner, circumstances regarding reasonable grounds to suspect that the proceeds derive from a criminal offence and circumstances indicating a risk that subse quent seizure thereof would be hindered or prevented. The owner and his/her defence counsel and/or attorney shall challenge contentions of the public prosecutor.
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Article 25 On conclusion of the hearing the court shall pass a decision sustai ning or rejecting the motion for temporary seizure of assets. The decision on temporary seizure of assets shall contain information on the owner, description and legal qualification of criminal offence, information on assets being seized, circumstances giving rise to reasonable grounds to suspect that the assets derive from a criminal offence, reasons justif ying the need for temporary seiz ure of assets and the duration of seizure. The court may by decision referred to in pa ragraph 2 of this Article leave the owner a part of the assets if sustenance of the owner or persons he/she is obliged to support in compliance with the provisions of the Law on Enforcement Procedure would be brought into question. The court shall deliver the decision referred to in paragraph 1 of this Article to the owner, his/her defence counsel and/or attorn ey, the public prosecuto r and the Directorate. Article 26 The decision referred to in Article 25, paragraph 1 of this Law may be appealed within three days from the day of delivery of the decision. The appeal shall not stay enforcement specif ied in Article 25, paragraph 2 of this Law. The pre-trial chamber and/or a higher instance court shall decide on the appeal against the decision. Article 27 Temporary seizure of assets may be in force until ruling on the motion for permanent seizure of assets. The court may reconsider the decision thereof in case of death of the owner or if circumstances emerged that would question whethe r temporary seizure of assets was justified. c) Permanent Seizure of Assets Article 28 After legal entry into force of indictment and not later than one year following the final conclusion of criminal proceedings the public prosecutor shall file a motion for permanent seizure of the proceeds from crime. The motion under paragraph 1 of this Article shall contain information on the defendant and/or the cooperative witness, description and legal qualification of the criminal offence concerned, designation of assets to be sei zed, evidence on assets in possession of the defendant and/or cooperative witness and lawful income thereof, circ umstances indicating a manifest disproportion between assets and in come, and grounds justifying the need for permanent seizure of assets. The motion against the legal successor shall contain evidence that he/she has inherited the proceeds from crime, and the motion against the third party shall contain evidence that the proceeds from crime were transferred without compensation or with compensation that is not commensurate with an actual value in order to deter seizure. The chamber holding the main hearing and/or president of such trial chamber shall decide on the motion specified in paragraph 1 of this Article. The proceedings for permanent seizure of assets shall be a matter of urgency
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Article 29 Should the request under Article 28, paragraph of this Law be filed during the first- instance proceedings the court shall summon the owner to the main hearing to state whether he/she will challenge the motion. If the owner who was duly summoned fails to appear at the main hearing or fails to give a statement on the motion or he/she states that he/she will not challenge the motion, a decision on the motion shall be passed within the judgement. The decision on the motion may be contested in the appeal against the judgement. Should the owner state that he/she challenges the motion the decision shall be taken in separate proceedings. The court shall by a judgement rejecting the indictment or acquittin g of charges refuse the motion for permanent seizure of assets and revoke the decision on temporary seizure of assets. The court may transmit the data on assets of the owner’s to the relevant tax authority. Article 30 When the owner states that he/she is challenging the motion specified in Article 28, paragraph 1 of this Law or if the motion has been filed after the final conclusion of criminal proceedings, the court shall conduct the main hearing to ru le on the motion. Prior to the hearing referred to in paragraph 1 of this Article the court shall schedule a preparatory hearing within 30 days from the day of finality of a convicting judgement or from the day of the filing of the motion by the public prosecutor, to make evidence proposals. Article 31 The court shall summon to the preparatory hear ing the owner, his/her attorney, if any, and the public prosecutor. The summons shall be sent to a known address and/or seat of the person summoned, with a caution that the hearing will be held irrespective of his/her attendance. If the summons has been delivered directly to the owner or his/her attorney, it will be considered that the delivery to the owner ha s been thereby duly performed. In case the summons cannot be delivered in this manner, the court shall assign an ex officio lawyer to the owner for the purposes of the proceedings on the permanent seizure of assets. The summons will be delivered to the owner allowing minimum eight days between delivery of summons and the date of hearing. The court shall by means of summons invite the persons referred to in paragraph 1 of this Article to present facts at the preparatory hearing and propose evidence their motion is based on or which they use to challe nge the motion of the adverse party. Following the presentation of evidence referred to in para graph 4 of this Article, the court shall schedule the main hearing within the period of three months from the day the preparatory hearing was conducted on. If circumst ances exist giving rise to an assumption that some evidence cannot be collected within the mentioned period or if evidence should be provided from abroad, the day of the main hearing may be postponed for the maximum of another three months. Upon expiry of the period of six months the main hearing shall be conducted irrespective of failure to collect some evidence. Article 32 The court shall summon to the main hearing the owner, his/her attorney if any, the public prosecutor and other persons required to attend. The summons shall be delivered to a 10
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known address and/or the seat of the person summoned, with a caution that the hearing shall be held irrespective of their appearance. The summons shall be delivered to the ow ner allowing minimum 15 days between the delivery date and the date of the hearing. Should the public prosecutor fail to attend the hearing the latter shall be postponed. President of the Chamber shall so notify the competent public prosecutor. Article 33 The main hearing shall commence with presentation of the contents of the public prosecutor’s motion. A hearin g once commenced shall be co ncluded without adjournment. If the motion is directed agai nst the assets of a convicted person and/or a cooperative witness, the public prosecutor shall present ev idence on assets owned by the convicted person and/or the cooperative witness, on lawful in come thereof, and circumstances indicating a manifest disproportion between the assets and lawful income. The convicted person and/or the cooperative witness, and his/her attorney shall challenge thereaft er contentions of the public prosecutor. If the motion is directed against assets of legal successor or the third party, the public prosecutor shall present evidence that the legal successor has inherited the proceeds from crime and/or that the latter has been transferre d to a third party without compensation or with compensation that is manifestly disproportionate to the actual value, to frustrate seizure of assets. The legal successor or the third party an d his/her attorney shall challenge thereafter contentions of the public prosecutor. Article 34 Upon conclusion of the main hearing the court shall pass a decision sustaining or rejecting the motion for permanent seizure of assets. The ruling on permanent seizure of assets sh all contain data on the owner, description and legal qualification of a criminal offence, data on assets to be seized and/or the value being seized from the owner if he/she possessed th e proceeds from crime with the objective to frustrate seizure of assets thereof, and the deci sion on costs for managing temporarily seized assets. The court may by the ruling specified in paragraph 2 of this Article pass a decision on the property claim of the injured party the existence of which has been determined by a final decision. The court may decide to leave a portion of assets to the owner if the sustenance of the owner or persons he/she is required to support in terms of the Law on Enforcement Procedure would otherwise be brought into question. The court shall deliver the decision specified in paragraph 1 of this Article to the owner, his/her attorney, the public prosecutor and the Directorate. Upon receiving the decision specified in para graph 2 of this Article the Directorate shall without delay undertake measures for safeguarding and maintaining the assets seized. The Directorate shall manage the seized assets until final conclusion of the procedure for permanent seizure of assets. Article 35 The decision specified in Article 34, paragraph 1 of this Law may be appealed by authorised persons within eight days from the date of delivering the decision. The appeal shall not preclude the Directorate to proceed in conformity with Article 34, paragraph 5 of this Law. The appeal against the decisi on shall be decided upon by a higher instance court. 11
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