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Preventive confiscation - what is it and how does it work? - Super Księgowy
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Preventive confiscation - what is it and how does it work? - Super Księgowy

Preventive confiscation is a proposal that understandably stirs up significant controversy. These controversies are justified because they strike at the core of criminal law, namely the presumption of innocence. The bill introducing preventive confiscation was submitted to the parliament back in 2020 but has not been adopted to this day. Now, the author of the bill, Zbigniew Ziobro, has been given the green light to implement it. What is preventive confiscation and how does it work? What are the opinions on this proposal and why does it raise various concerns?

What is preventive asset confiscation?

The specifics of the new regulations are remarkably straightforward. Law enforcement agencies will be equipped with a powerful tool: they will be able to seize the assets of individuals suspected of committing a crime, as well as assets transferred to other individuals. In this scenario, it will not be the law enforcement agencies’ responsibility to prove guilt, but rather the individuals who own the assets must present evidence that they were acquired legally. What will happen if they fail to do so? The assets will be confiscated, crucially, without a court ruling.

As a result, this will enable law enforcement agencies to seize the assets of individuals suspected of crimes, as well as those of third parties, without court rulings confirming the commission of a crime. In this situation, a prosecutor’s suspicion regarding the potential connection of the property to a crime is sufficient. Although prosecutors are required to obtain court approval, the burden falls on the entrepreneur to prove, immediately after the assets are seized, that they were acquired legally.

What could be the consequences of violating these extremely important—legally speaking—constitutional principles? It appears that the Ministry of Justice aims to grant law enforcement agencies access to the assets of both businesses and private individuals without simultaneously undertaking the task of proving the illegitimate source of those assets.

Large (and justified) concerns regarding the introduced project

The introduction of preventive confiscation is a form of expansion of the existing regulations concerning extended confiscation. This solution involves the seizure of assets of a person who, by committing a specific crime (such as fraud or bribery), has obtained a financial benefit exceeding 200,000 PLN. The law also stipulates that the seized property may include even those elements acquired up to 5 years before the commission of the offense..

What do supporters and critics of the upcoming changes say?

Supporters of the project argue that it complies with Article 46 of the Constitution (“confiscation of property may only occur in cases specified by law and only based on a final court judgment”), but considering the numerous changes in the judiciary and prosecution that have taken place since 2015, there are justified concerns about the abuse of the new regulations, especially those related to the independence and impartiality of judges.

Critics of the changes argue that they blatantly target honest entrepreneurs, whose assets may be seized based on investigators’ suspicions without a court judgment. In this situation, the burden of proof falls on the entrepreneurs to demonstrate that all their accumulated assets were acquired through legally earned money. So far, the burden of proof has been on the prosecutor’s side.

The new mechanism introduces a presumption of guilt for citizens? The reaction of the Business Council.

In response to plans to introduce new regulations, namely preventive confiscation, many organizations have strongly reacted, fearing that the authorities will gain the power to exert pressure and repression on citizens. The Polish Entrepreneurship Council, which represents the most important business organizations in Poland, issued an appeal to halt work on preventive confiscation, arguing that it violates Article 46 of the Polish Constitution. It was pointed out unequivocally that “the new mechanism introduces a presumption of guilt for citizens.” It has come to the point where the burden of proof lies with the citizen, contributing to the fact that those who have engaged in transactions with individuals suspected of a crime (of course, without being aware of it) must present the source of their wealth, even though no criminal proceedings are being conducted against them. Failure to meet this condition would result in the assets being transferred to the state.

The project, however, has been given the green light

The amendment project introducing preventive confiscation, which the Ministry of Justice has been trying to implement for a long time. However, first, there was a prolonged election campaign, and then not only the pandemic but also the suspension of work due to appeals from the most important business organizations in the country, which are members of the Polish Entrepreneurship Council, whose leaders signed the letter. These included, among others, the Business Centre Club, the National Chamber of Commerce, the Polish Business Council, Employers of Poland, and the Confederation of Lewiatan. However, the government did not pay much attention to these appeals and continued to work on the bill, which continues to this day. Right now, once again, the bill has received the green light to finally be implemented. The pressure from Zbigniew Ziobro (who reportedly has a drawer full of projects) has paid off. Jarosław Kaczyński wants to enable him to implement some, hoping that Ziobro will not distance himself from common policies.

Will the law be implemented?

The bill may therefore be implemented despite numerous opponents claiming that it is in conflict with the constitutional right to property. According to the Ministry of Justice, the safety feature is that the decision to seize property will be made by a court and twice, as the court first issues a decision on securing the property, and then rules on the final forfeiture in the judgment. However, this does not convince opponents of the project. They still argue that it could cause serious problems for “ordinary people” who stay away from legal conflicts.