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The property benefit that is seized can be reduced by incurred costs

The stance of judicial practice is that the property benefit that is seized is calculated by recognizing the incurred costs. To caricature, this could mean that the bribe given to someone to facilitate and better execute a criminal act is considered a cost.

Written by: Prof. Dr. Hrvoje Kačer

As the state rapidly ‘prepares’ for entry into the EU, the number of cases coming to light of individuals being detained, suspected, and sometimes convicted for various acts, including corruption and economic crime, or the so-called breach of legal personality for which one can be held accountable for the obligations of their own joint-stock company or limited liability company, as well as the so-called ancillary decisions in criminal proceedings, is increasing. In all these cases, it is usually about individuals who possess significant assets, but it is not always easy to prove that they acquired them unlawfully and that they have achieved a property benefit that can be seized from them, and it is even harder to actually seize that illegally acquired property.

When it comes to criminal acts in the area of so-called economic crime, these are most often acts against the general safety of people and property and traffic safety, as well as acts against official duty, where there is usually, on one side, damage suffered by someone and, on the other side, benefit achieved by someone. There are many examples, from frequent abuse of position and authority to classic thefts. It is important to distinguish between two things that are often equated without any basis as if they were the same thing. The first is the property law claim of the injured party under Article 128 of the Criminal Procedure Act, and the second is the seizure of unlawfully acquired property benefits.

The first is the classic compensation for the injured party (which can be either a legal or a natural person) that is based on the injured party making such a claim, which is most often the case. The second is a measure that prevents the convicted offender from retaining the benefit achieved, so if the injured party does not make a claim, the benefit is still seized, this time for the benefit of the state or the state budget. It should be emphasized that it is possible for there to be damage but no benefit (for example, breaking someone else’s property is damage, but no one has achieved a benefit, unlike, for example, theft), while the opposite situation (that there is a benefit but no damage) is practically impossible even when, for example, an insurer ‘covers’ the damage, that damage has still occurred.

They do not have ‘on them’ property

We believe it is easy to agree with the thesis that both the property law claim and the seizure of benefits are very clear and necessary institutes that sanction an offender of a criminal act through their application, but also act preventively on others not to commit such acts because it will not pay off for them. When we imagine a hypothetical situation in which a bank robber or embezzler in a company is sentenced to prison (even a long one), if they were to retain what they robbed or embezzled, it would practically mean encouraging such acts. Quite the opposite, when someone knows that they will not only be sentenced to prison but that they will not achieve anything from their wrongdoing (because everything will be seized from them), things look significantly different.

Unfortunately, often for a number of reasons, it is not possible to collect damages nor seize property benefits. Sometimes it is because the money cannot be found, sometimes it is clear that it has been spent, and most often the perpetrator themselves, especially if the act was carefully prepared, has no ‘on them’ property. Entrepreneurs can only defend themselves preventively against third parties with strong physical and/or technical security measures because they do not know who specifically threatens them. When it comes to individuals within, for example, a company or a craft, things are significantly different. All those who are objectively in a position to be close to money or other property that they can misappropriate are also objectively in a position to be asked for some security in case they cause damage – this can be an insurance policy, but also some property, e.g., real estate that can be pledged. It will be difficult for an ‘ordinary’ employee to decide on this and it is unlikely that anyone will ask them for it, but those who are very high in the hierarchy, and it is not about their company or craft, are precisely those from whom it would be acceptable to ask for this, even if it means their, on that basis, somewhat higher income.

Stole on travel orders, but the company paid

Finally, it should be pointed out that there are some illogicalities that could and should be corrected. Thus, if it is about one’s own company to which the owner has caused damage, essentially there is and cannot be a property claim because, although it is about two different legal entities, the same person ‘governs’ on both sides and by committing a criminal act practically risks (only?) punishment and not the loss of property, which is not the most logical. In a recent case, a person allegedly abused their position (by allegedly issuing fictitious travel orders) as a director in a company in relation to which they have no ownership or founding rights, and the tax authorities (thus not the court, but that is not decisive for the conclusions drawn) concluded that this was income for that person and obliged the company to pay taxes and contributions on that amount, which led to an enormous increase in contributions to the pension fund. The one who is accused of having harmed the company has, by the act of a state body, actually achieved a benefit, because if they are convicted, the payment to the pension fund will not be seized from them but will continue to increase, constantly while they are alive and receiving a pension. It seems incredible, but it is a concrete fact, without any change in relevant regulations since then. It was not a whim or ignorance or carelessness of the first-instance body but a decision that has been upheld in the appeal process.

Judicial paradoxes

In a whole series of proceedings, it has happened that the favored company (most often one’s own) was described in the criminal act as only benefiting some physical person – the regulation was later changed, but the change does not apply to earlier cases and it is quite possible that proceedings for acts before the change will end in acquittal. A special problem is also the stance of judicial practice that the property benefit that is seized is calculated by recognizing the incurred costs. To caricature, this could mean that the bribe given to someone to facilitate and better execute a criminal act is considered a cost, and if it is not a bribe, it could be, for example, equipment for counterfeiting, so the counterfeiter must have certainly incurred significant costs for machines and paper to counterfeit banknotes! Although perhaps judicial practice can creatively solve practically all these problems, it still seems to us that a better solution would be to regulate the legal text, and only in extreme situations should the legislator resort to so-called credible interpretation, which by its nature everywhere (including in criminal law) means retroactive or retroactive effect.

When the court seizes unlawfully acquired property
• Property benefits are seized by a court decision establishing that a criminal act has been committed. When it is established that it is impossible to seize property benefits consisting of money, securities, or things in whole or in part, the court is obliged to bind the perpetrator of the criminal act to pay the appropriate equivalent in monetary amount.
• Property benefits will also be seized when they are found with a third party on any legal basis if that party, according to the circumstances under which they achieved certain values, knew or could and was obliged to know that the values were achieved by a criminal act.
• The injured party who during the criminal proceedings or no later than three months after the final decision on the seizure wishes to exercise their right regarding the seized property benefits has the right to compensation within three months after the decision on their right is made.