Internal Security Volume: 3 Issue: 2 Dated: July-December 2011 Pages: 169-180
Depriving offenders of the benefits they obtained from crime is a particularly important instrument in the fight against organized crime.
Confiscation of crime-obtained assets fulfills an important role not only as a form of repression, but also as a factor preventing the development of criminal activities. The Polish Penal Code of 1997 introduced forfeiture, which can be ordered either as a punitive measure or precautionary measure. Its scope specified in Articles 44 and 45 of Polish Penal Code is wide. It includes both the seizure of objects and proceeds from crime. The forfeiture of items can be ordered to the items directly obtained from crime, objects that helped or were designed to help in committing the crime, and objects whose manufacture, possession, trade, transmission, transfer or transport is prohibited. In terms of material profits, mandatory forfeit is ordered for both gains obtained directly from crime, as well as for those which the offender obtained indirectly. Given the difficulties of proof associated with showing that the property belonging to the offender has been obtained in connection with a criminal offence, the Polish legislator decided to introduce legal presumptions relating to the sourcing of property belonging to the offender. The burden of proving that the property belonging to the offender has been obtained by them legally lies with the person concerned. Similar approach is used if the circumstances indicate high probability of transfer by the perpetrator of their assets onto another person, legal entity, or agency without corporate status. In both cases the authorities are exempt from the obligation to prove that the property was obtained illegally, and the burden of proof lies with the perpetrator or any other entity concerned. It seems that such arrangements allow for effective carrying out of the tasks by the state authorities to deprive offenders of crime related property. (Published Abstract)