Law No. 13/2020 on a Special Legal Regime of Confiscation and Recovery of Assets (Lei do Regime Jurídico Especial de Perda Alargada de Bens e Recuperação de Activos) contains provisions on the confiscation of property, acquired through the commission of corruption and related offences, in favour of the State.
According to the Law, the “property of the accused” is understood as the total assets:
- belonging to, owned or used by the official at the moment he/she is accused and beyond;
- acquired by the official during the five years preceding the time when he/she is accused, excluding the assets acquired through inheritance;
- transferred by the official to third parties free of charge or for a fee during the five years preceding the time when he/she is accused.
In the event that the official is convicted of a corruption or other crime, all assets whose value exceeds the lawful income of the official, are considered as proceeds of unlawful activities and are subject to confiscation.
One of the most curious peculiarities of the Law is the possibility to forfeit the assets which are owned by and/or in use of not only the convicted official but also third parties. The State is entitled to forfeit such property if the beneficiaries/purchasers were aware of its illicit origin or it was transferred to avoid forfeiture and its beneficiaries/purchasers were aware of this fact. These provisions aim to address one of the most complex and urgent problems also for Russia in the area of anti-corruption, i.e. the concealment of assets through their transfer to third parties.
In order to avoid confiscation, the accused is entitled to explain the legal origin of the assets resorting to any means of evidence valid for the criminal proceedings. At the same time, before the court proceedings are concluded the property of the accused can be seized. This measure is aimed at ensuring the real possibility to confiscate the property by the court order. The value of the property subject to seizure should be equal to the alleged difference between the value of the assets of the accused and his/her lawful income. If the court establishes during the proceedings that the indicated difference is bigger or smaller than the originally estimated, the prosecutorial bodies can ask the court to reduce or increase the size of the property seized.
In order to implement the provisions of the Law the Central Agency for Asset Recovery (Gabinete Central de Recuperação de Activos - GSRA) and the Agency for Asset Disposal (Gabinete de Gestão de Activos - GGA) are established.
The GSRA is a multisectoral body subordinate to the national Prosecutor General’s Office and authorised to detect, trace, seize, confiscate and recover assets of illicit origin domestically and internationally. In addition, the functions of the GSRA include cooperation with foreign authorities responsible for asset recovery.
The GGA, a body supervising State property, is also competent in the disposal of confiscated assets. In particular, it defines the procedure for their sale, transfer to public bodies for their use or destruction.