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Home / Mass-Media / Events / What are the stages of criminal asset recovery and how are seized assets managed? The CARA specialist explains
What are the stages of criminal asset recovery and how are seized assets managed? The CARA specialist explains
24.10.2022
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The Criminal Assets Recovery Agency (CARA) is an autonomous subdivision within the National Anticorruption Center (NAC) that is in charge of conducting parallel financial investigations, the evaluation, administration and estimation the value of confiscated criminal assets, as well as keeping the record of these assets.
Pavel Calpajiu is the head of the Unit of Evaluation, Management and Estimation of Values within the Agency, that is aimed at estimating the value of assets to be seized, the administrating seized assets, but also their sale until a final confiscation decision.
The team he leads has two main areas of activity: pre-seizure planning (conducting activities that determine the appropriateness of a seizure) and preserving the value of the seized assets - through their efficient management and, in certain cases, through the anticipated sale of the seized assets until a final confiscation decision is issued, so that upon completion of the case in court, the real value that came from that seized asset is either confiscated, or, in the case of payment of the person/institution, the value of the seized asset is returned.
"Even if the CARA’s name expressly states "recovery of criminal assets", the agency is responsible for the first two phases of this process: conducting parallel financial investigations and seizing of criminal assets. The evaluation, administration and estimation of value of seized criminal assets is ensured by the Agency until their confiscation. At the first stage, tracking and locating these assets is important. This is followed by seizing of assets, which is ensured by the freezing orders issued by the Agency, as well as by the application of seizures. The stage of confiscation depends exclusively on the decision of the court, adopted at the request of the prosecutor. And in the last stage, that of restitution or effective recovery, the confiscated property is to be sold, and the money - collected in the state budget or paid to the injured party, a stage that belongs to the competence of the bailiffs and the State Fiscal Service. Only in such cases we can say that the recovery has taken place", explains Pavel Calpajiu, the head of the CARA’s Unit of Evaluation, Management and Estimation of Values.
The CARA’s powers in the recovery of criminal assets
With the adoption of Law no. 48/2017 regarding the Criminal Assets Recovery Agency and amendments to the Code of Criminal Procedure, the notion of "seizing" was introduced, which implies either freezing (on the basis of the freezing order issued by the head of the CARA) or seizure (by issuing the order application of the seizure, under the terms of the Code of Criminal Procedure, to be authorized by the court).
The same law also introduced into the national legislation the "freezing order", representing a measure to prevent any operation of destruction, transformation, transfer or alienation of an asset that may be subject to confiscation.
"If until August 2022 the Agency could only issue orders to freeze assets at the request of a similar institution from abroad, after the additional amendments to Law 48/2017 on Criminal Assets Recovery Agency, the CARA has the right to issue freezing orders and at the request of the criminal investigation bodies of the Republic of Moldova or even in the case of certain urgent needs established within the framework of parallel financial investigations. For example, when there is reliable information that there are financial means on certain accounts and they are intended to be transferred in order to lose track of them", clarifies Pavel Calpajiu, the head of the Unit of Evaluation, Management and Estimation of Values within the CARA.
Another mandate of the CARA in the process of criminal assets recovery is the enforcement of seizure. Seizure is the coercive action regarding the assets of a suspected or accused person by which the person's ability to perform certain actions with certain assets is suspended: to alienate, transfer and use them. When the asset is seized and lifted, the subject is deprived of his right to dispose of this asset.
In practice, the CARA issues a seizure enforcement order, which is forwarded to the case prosecutor. The latter will submit an application to the court, which, in turn, will issue a decision regarding the authorization of the application of the seizure. The confiscation is the stage of passing with the free title to the benefit of the state of a certain asset, as a result of the conviction of a person for the committed acts.
The CARA is also responsible for the administration of seized assets: storage, maintenance and anticipated recovery to preserve value.
"In the case of the asset administration stage, we have the actions of storing, maintaining and managing them and they come in response to the request to preserve the value of the seized assets. In practical terms, if we are talking about funds raised in cash, they are placed on special treasury accounts. The CARA currently has eight accounts in different foreign currencies. In the case of seized cars and trucks, they are kept on the territory of specially arranged parking lots, where their maintenance is ensured. If we talk about other types of valuable goods, then they are placed in special rooms, where they are provided with all the conditions suitable for maintenance, so as not to be damaged", explains Pavel Calpajiu, the head of the Unit Evaluation, Management and Estimation of Values within the CARA.
Anticipated recovery is an element of preserving the value of seized assets and assumes that the asset can be sold if certain conditions are met. It is important to note that the sale of the property is made only at the price determined by a judicial expert, and the maximum discount together with the commission obtained by the third party in charge of the sale of this property cannot exceed 10% of the value of the property. The sale of the good can be carried out on the basis of a commission contract by an economic agent that provides similar services or through public auctions organized by the State Fiscal Service. The agency ensures the documentary process and the record of the goods or, as the case may be, of the money, but is not involved in the sales process.
The mechanism for early capitalization of seized assets not only does not contravene the provisions of art. 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, but comes to ensure this principle by ensuring the restitution of the real and appropriate value of the seized asset in case of acquittal of the person. At the same time, it ensures the state's interest in the field of combating serious crime and obtaining the maximum value of the confiscated property, or, the Agency's competences relate exclusively to serious, particularly serious and exceptionally serious crimes.
"In the fight against corruption, civil servants, citizens, authorities are trained alike, and it is important for society to prevent, but also to contribute through a common effort to combating corruption. The recovery can only be effective if the state institutions, shoulder to shoulder, do their job well, honestly, with integrity and in the end the intended goal is achieved. However, it is essential that the importance of this recovery is clear to everyone, and that society ensures the necessary level of positive pressure on state bodies and institutions, in order to contribute more effectively to the recovery of criminal assets", believes Pavel Calpajiu, the head of the Unit of Management and Estimation of Values within the CARA.