Fiches Belges
Measure Implementation
Measure possibility

Legal Framework
Applicable Framework

Competent authority
Request/decision
Execute/recognise measure

Accepted Languages
Languages

Execution Deadline
Deadlines

Legal info
Special requirements
Other information

Fiches Belges: Polonia

Confiscare (505)

1. MEASURE IMPLEMENTATION

Polonia

Is this measure possible in your Member State under International Judicial Cooperation?

ourt may order the forfeiture of items with a monetary value equivalent to the items coming directly as a result of the offence, or items used or intended to be used to commit the offence. § 5. The items specified in §§ 1 or 2 are not subject to forfeit if they can be returned to the aggrieved party or any other authorised party. § 6. If the offender is convicted of violating a prohibition on producing, possessing, trading in or transporting specific items, the court may order, and in specified cases must order, the forfeiture of such items. § 7. If the items referred to in §§ 2 or 6 are not the property of the offender, the court may only order their forfeiture in the cases provided for in law; in the case of co-ownership, the order only covers the forfeiture of the share owned by the offender, or the obligation to pay a monetary equivalent. Art. 45. Material benefit. § 1. If the offender has received a material benefit as a result of the offence, even indirectly, not subject to the forfeiture mentioned in Article 44 § 1 or § 6, the court will order the forfeiture of the benefit or its equivalent. The forfeiture is not ordered, either partially or in full, if the benefit or its equivalent is repaid to the aggrieved party or another party. § 2. If an offender is convicted for an offence whereby the offender received a material benefit of considerable value, even indirectly, the assets that the offender took possession of, or to which any title was acquired, at the time of the offence, or after committing it up until sentence is passed, even if not final, is considered as a benefit of the offence, unless the offender or another interested party submits evidence to the contrary. § 3. If the assets - a material benefit as a result of the offence, referred to in § 2, were passed to an individual, a company or an organisational entity without legal personality, in fact or under any legal title, it is considered that the items in the sole possession of the person, company or entity and the ownership rights thereto, belong to the offender, unless the interested person, company or organisational entity can provide lawful title to them. § 5. In the event of co-ownership, a forfeiture order concerns the offender's share, or the monetary equivalent. Code Procedure Penal CHAPTER 66d. MOTION OF A EUROPEAN UNION MEMBER STATE FOR ENFORCEMENT OF A CONFISCATION ORDER – Art. 611fu - Art. 611fze

2. LEGAL FRAMEWORK

Polonia

International legal framework applicable for this measure in your Member State

Council Framework Decision 2005/212/JHA of 24 February 2005 Confiscation of Crime-Related Proceeds, Instrumentalities and Property implementation 2.08.2005 in Penal Procedure Code Chapters 66c ,66d Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders Notification by the Republic of Poland - (see doc. 5314/10) DIRECTIVE 2014/42/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union – Constitutional objections from the Ministry of Justice in Poland.

3. COMPETENT AUTHORITY TO:

Polonia

* receive the request/decision for judicial cooperation

The Republic of Poland declares that the competent Polish authorities within the meaning of Article 3(1) of Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders are: - where the Republic of Poland is the issuing state: the regional and district courts with territorial jurisdiction; - where the Republic of Poland is the executing state: the regional courts with territorial jurisdiction. The authorities responsible for receiving decisions, together with certificates, from other Member States are the regional courts with territorial jurisdiction. These authorities can be contacted at the addresses given in the Annex "Regional and district courts in Poland".

* execute/recognise the measure (if other than the receiving authority)

Code procedure penal - art. 611 fu , this order is executed by the regional court, in whose judicial circuit the offender has property, gains revenues or resides permanently or temporarily. The authority responsible for assisting the competent authorities (Article 3(2) of the Framework Decision) is the Department of International Cooperation and European Law at the Ministry of Justice of the Republic of Poland: Ministerstwo Sprawiedliwości Rzeczypospolitej Polskiej Departament Współpracy Międzynarodowej i Prawa Europejskiego Aleje Ujazdowskie 11, 00-950 Warsaw, Poland Tel. +48 22 2390 870 Fax +48 22 6280 949 e-mail dwm@ms.gov.pl www http://www.ms.gov.pl The Ministry of Justice is the authority in the Republic of Poland responsible for concluding agreements with other Member States on the disposal of property seized or confiscated by the Republic of Poland on the basis of a decision on seizure or confiscation (Article 16(4) of the Framework Decision).

4. ACCEPTED LANGUAGES

Polonia

Accepted languages for the request/decision

Article 19 The certificate shall be translated into the official language or one of the official languages of the executing State. Polish

5. EXECUTION DEADLINE

Polonia

Deadlines for the execution of the request/decision (where applicable)

forthwith take all the necessary measures for execution

6. CONCISE LEGAL PRACTICAL INFORMATION

Polonia

a. Special requirements

Declaration by the Republic of Poland regarding Article 7(5) of Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders Pursuant to Article 7(5) of Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders, the Republic of Poland declares that its competent authorities will not recognise and execute confiscation orders in cases where confiscation of the property was ordered under the extended powers of confiscation referred to in Article 2(d)(iv) of the Framework Decision.

b. Other useful information

Art. 611fw. Confiscation of material benefit, refusal to execute the order. § 1. The judicial authority refuses to execute an order to confiscate a material benefit or its equivalent in this part, in which it is based on the assumption of being derived from an offence, other than the assumption that: 1) the material benefit was derived from an offence other than that, for which the offender was sentenced, committed prior to the judgment, even if not yet final, was issued, 2) the material benefit was derived from a similar to the offence, for which the offender was sentenced, committed prior to the judgment, even if not yet final, was issued, 3) the property is derived from an offence that is not covered by the disclosed sources of income of the offender. § 2. The judicial authority may refuse to execute the order to confiscate a material benefit or its equivalent, based on the assumption referred to in § 1, in the part, in which the confiscation order would not be permissible according to Polish law. § 3. The judicial authority may refuse to execute the confiscation order referred to in Article 611fu § 1, if: 1) the act to which the order relates does not constitute an offence under Polish law or according to Polish law confiscation cannot be adjudicated for this offence, unless pursuant to the law of the issuing State, it is an offence mentioned in Article 607w, the provision of Article 607r § 2 applies accordingly, 2) the certificate referred to in Article 611fu § 2 has not been enclosed to the order or the certificate is incomplete or manifestly does not correspond to the order, 3) the order transmitted for enforcement concerns the same offence of the same person with respect to which criminal proceedings have already been finally concluded in a European Union Member State and a confiscation order has already been executed, 4) under Polish law, the statute of limitations on the enforcement of the penalty has expired and the offences in question fall within the jurisdiction of Polish courts, 5) the order relates to offences, which according to Polish law, were committed entirely or in part in the territory of the Republic of Poland or on a Polish aircraft or vessel, 6) the order relates to an offence committed outside the territory of the issuing State and Polish law does not provide for the prosecution of this kind of offence, if it was committed outside the territory of the Republic of Poland, 7) the offender is not subject to the jurisdiction of Polish criminal courts or a permit for prosecution has not been granted, although it is required, 8) from the contents of the certificate referred to in Article 611fu § 2 it transpires that the order is issued in the absence of the offender, unless: a) the offender is summoned to participate in the proceedings or otherwise notified of the time and place of the trial or hearing and instructed that failure to attend does not impede the issue of the judgment or the offender was assisted by a defence counsel, who attended the hearing or trial, b) after the judgment was served on the offender together with the instruction on his rights, the time limit and manner of submitting of a petition for conducting new court proceedings in the same case and with his participation in the issuing State, the offender fails to submit such a petition within a prescribed time limit or declared that he does not object to the judgment, 9) the offence to which the order relates, would be covered by amnesty if fell under the jurisdiction of Polish criminal courts, 10) there is a justified concern that enforcement of the order might infringe the rights of third parties.

Last reviewed on 6 iulie 2016 by Secretariatul RJE

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