Confiscation of the property, true justice in the fight against corruption
5 May, 2011
State would be the most beneficiary of confiscation of the property illegally acquired since the State treasure will grow. However, it is clear that in the case of Kosovo, the seizure of property can affect personal economic interests of many politicians and senior officials and this is probably why so far in Kosovo have been seized only 15 cows and 32 calves.
Public discourse has reduced the fight against corruption and organized crime by setting behind the bars the persons involved in such affairs. However, in the case of Kosovo even the first mentioned has run into difficulties, putting criminals and corrupt people behind the bars cannot be the main target, because true justice in the fight against corruption and organized crime, is when the state seizes property of those who have acquired illegally. State would be the largest beneficiary of such an action as the State treasure would grow. But, it is clear that in the case of Kosovo, the seizure of property can affect personal economic interests of many politicians and senior officials.
Confiscation of property means permanent seizure of the items according to a final decision by the competent court, and as assets that can be seized are considered movable and immovable property, cash and valuable pappers, which are in legal circulation , while the sequestration means provisional seizure of them in accordance with the law.
The primary problem for the confiscation of property gained illegally is the lack of a fundamental law that would oblige the authorities to confiscate the property acquired illegally, making it an integral part of the investigation, prosecution and punishment of the organized crime and corruption.
Kosovo, although has legal background for confiscation of property, the current legislation is insufficient. Using this stagnancy of legal framework and a non-functional judiciary, organized crime has created a comprehensive terrain from which certain individuals or groups have created enormous wealth.
So without a clear legal background and without an independent system with all controlling mechanisms, it is difficult to achieve concrete results in fighting organized crime, or confiscation of property illegally acquired.
Organized crime, or other illegal acts through which the illegally embezzlement of the property is achieved is not present only in Kosovo. Nowadays such criminal acts around the world are almost daily dids. Not by chance in theory of forensic crime these actions are known as the crime of “white collars” and their excellence can achieve perfection.
Regional countries such as Croatia, Serbia and Albania by now have their own laws or the so-called ?anti-mafia law package’. Currently, Bosnia and Herzegovina and Kosovo are the only states in the region that have not approved this law which regulates the institutional framework for managing the confiscated property that are acquired illegally. Unlike Kosovo, Bosnia and Herzegovina has fixed it partly through its criminal law. Meanwhile, Croatia, Albania and Serbia in their legislature have approved this package of laws, where not only involving the seizure of property law, but a series of other laws of this nature.
For example, Croatia and Serbia in the package of anti-mafia have 4 laws that are compatible among themselves, respectively the Law on fighting corruption, the conflict of interests, organized crime and trafficking, and the law for confiscation of the property. Albania also has a conflict of interest law, which clearly shows that no official, who works in public bodies, and at the same time is a private entrepreneur may not be assigned in any public position while standing in that position. Also the low on confiscation of the property clearly defines the activity area and its powers.
Without such a legislative package and without ensuring that all laws in question are in harmony with each other it is impossible to create a strong legal background. Therefore, in this context, there cannot be a good law for confiscation of the property gained illegally and other laws of this nature.
Potential law in this area in Kosovo must clearly define that the property acquired illegally is done in different illegal and legal ways. The law should specify that the origin of a property must be proved and justified by the owner and the holder of that property, and not his property be proved or justified be the state.
By asking a suspected individual or legal body to prove the origin of the property that one claim to own one is tried big deal. This is because that the state is limited to do it because of the laws and procedures that limit it. For example, many economic activities and legal entities that exist today in Kosovo operate legally, and if justice institutions investigate their activities, usually there are no required results. However, such a thing, by law obliges individuals to prove the origin of their property, even when there are many possibilities to investigate, this is pretty difficult if done only by the information offered by them.
The property often is acquired outside a specific territory, while its fruit is legally invested elsewhere. Therefore, the package of anti-Mafia laws in Kosovo should include a wide range of laws that will regulate exactly how the acquired property and its interconnections between them, because for such illegal acts it is needed a very organized, sophisticated and criminal network.
Kosovo has not yet approved the framework legislation for confiscation of the property, even though Prime Minister Hashim Thaci has claimed to have initiated such a thing since the middle of 2010.
(This article is based on the analysis published by FOL entitled “Analysis on the legal framework against property illegally acquired”)