Describing the concept and the legal framework
The reuse of confiscated immovable assets is a relatively new concept consisting of a free-of-charge transfer or for-free-use transfer of criminal confiscated assets to public institutions, to territorial-administrative authorities or to non-governmental organizations for social or public interest objectives.
At European level, there is a growing interest for this approach, that is embodied in the adoption on 3 April 2014 of the EU Directive 2014/42 of the European Parliament and the EU Council on the freezing and confiscation of proceeds of crime in the European Union, which urges the Member States to adopt certain measures to allow confiscated assets to be used for the public interest or social objectives.
Such measures shall include inter alia the allocation of those assets for projects of law enforcement and crime prevention, as well as other projects of public interest and social utility. The obligation envisages the adoption of such measures requires a procedural obligation for the Member States such as conducting a legal analysis or discussion about the advantages and disadvantages of introducing the aforementioned measures. When the Member States manage the seized assets and take measures on the use of the confiscated assets, they should work properly to prevent criminal or illegal infiltration.
In support of these considerations art. 10 para. 3 of the Directive stipulates that:
“Member States shall consider taking measures allowing confiscated property to be used for public interest or social purposes.”
Although the Directive doesn’t oblige Member States to adopt social reuse of confiscated assets, by adopting Law no. 318/2015 on the setting up, organization and activity of the National Agency for the Management of Seized Assets and on amending and supplementing other legal documents and Law no. 216/2016 on deciding the destination of certain confiscated immovable assets, our country has harmonized its national legislation in this regard. Thus, the two laws provide as follows:
Law no. 318/2015:
Art. 34 – Confiscated immovable assets may be transmitted free of charge to the private domain of administrative-territorial units, upon request by the General Council General of The City of Bucharest or by Local Councils, as applicable, based on a Government decision initiated by the Ministry of Public Finance upon proposal by the Agency, in order to be used for social purposes.
Art. 35 - Confiscated immovable assets may be given for free use by associations and foundations, as well as to the Romanian Academy and to specialized academies created based a special law, by a Government decision initiated by the Ministry of Public Finance upon proposal by the Agency, in order to be used for social or public interest, depending on their scope of activity, as applicable.
Law no. 216/2016:
Art. 1 - (1) Criminal confiscated immovable can be transferred for free to the state public domain and for administration by central public authorities, other public institutions of national interest, if applicable, or autonomous administrations of national interest, hereinafter “the beneficiary entities”, through a Government decision, initiated by the Ministry of Public Finance, at the proposal of the National Agency for the Management of Seized Assets, hereinafter “the Agency”, under the law.