Asset seizure and freezing order lawyer in Bucharest

I check:

• who ordered the measure: the prosecutor, the preliminary chamber judge or the court;
• the concrete legal basis: compensation of damage, special confiscation, extended confiscation or enforcement of a fine;
• whether the order is reasoned in relation to the case file;
• the amount of damage claimed and the proportion between it and the frozen assets;
• whether the assets belong to the suspect, the defendant, the civilly liable party or a third party;
• whether the rules on assets exempt from seizure were observed;
• how the assets were identified and valued;
• the seizure record and the way it was communicated;
• whether the complaint term runs from communication or from enforcement;
• whether the measure can be limited to part of the assets;
• whether some assets can be replaced by a bond or other guarantees;
• the effects of the measure on company activity and on essential payments.

Asset seizure is a precautionary measure provided by art. 249-254 of the Criminal Procedure Code. Through it, assets become unavailable, meaning they can no longer be sold, encumbered or transferred.

Precautionary measures may be taken to:

• prevent the concealment, destruction or transfer of assets that may be subject to special or extended confiscation;
• secure enforcement of a criminal fine;
• secure compensation of the damage caused by the offence;
• secure judicial expenses.

Seizure does not require a conviction and is not the same as confiscation. It is a provisional measure that can be lifted, limited or maintained depending on the outcome of the case.

During the criminal investigation the measure is ordered by the prosecutor.

In the preliminary chamber procedure it can be ordered by the preliminary chamber judge, and during trial by the court, ex officio or at the request of the prosecutor or the civil party.

In some situations provided by law, taking precautionary measures is mandatory, for instance for offences that caused damage where a special law expressly requires it.

Seizure may cover:

• amounts held in bank accounts;
• cash identified during a search;
• vehicles;
• buildings and land;
• company shares;
• valuable movable assets;
• receivables and amounts owed by third parties.

Assets belonging to a public entity cannot be seized, nor can assets exempt by law from enforcement, such as those strictly necessary for the daily living of the debtor and the family.

Seizure can also cover assets of a person other than the suspect or defendant, to the extent those assets fall within the categories set by law, for example assets acquired from the defendant or assets subject to confiscation.

Against a precautionary measure taken by the prosecutor, or against the way it is enforced, the suspect, the defendant or any interested person may file a complaint within 3 days from communication of the order or from its enforcement, with the judge for rights and liberties.

When the measure is ordered during trial, the challenge is decided by the higher court, also within 3 days.

In practice, the arguments may concern:

• lack of concrete reasoning in the order;
• absence of a link between the seized assets and the offence investigated;
• disproportion between the value of the assets and the alleged damage;
• ownership of the asset by a good faith third party;
• the exempt nature of the asset;
• incorrect valuation of the assets;
• unjustified impact on a company's activity.

Even if the measure was lawfully taken, it is not final. If the grounds change, a full or partial lifting can be requested.

Frequent situations:

• the damage has been covered fully or partially;
• the value of the frozen assets clearly exceeds what is necessary;
• the case was closed or ended in acquittal;
• the asset belongs to a third party who can prove ownership;
• the asset is essential for business activity and other guarantees exist.

When the case ends without confiscation or an obligation to pay, the precautionary measure ceases and the assets must be returned.

Asset seizure freezes specific assets. Precautionary garnishment concerns amounts owed to the suspect or defendant by a third party and is also a precautionary measure.

Confiscation is a safety measure ordered by judgment, transferring the asset definitively to the state. Seizure only prepares a possible confiscation or compensation. Special and extended confiscation are explained on the page about confiscation of assets in criminal cases.

Frozen accounts can stop payment of salaries, suppliers and tax obligations. Seizure over real estate prevents sale or mortgage, and seizure over company shares blocks operations concerning share capital.

In such situations it is important to show the court the concrete effects of the measure, so that proportionality can be assessed. A measure that goes beyond its purpose can be limited.

Where seizure appears together with accusations regarding the origin of the money, the defence must be built together with the defence on the merits of the money laundering accusation.

• missing the 3 day term for the complaint;
• trying to transfer a seized asset, which can trigger a new criminal accusation;
• not submitting documents showing the lawful origin of the funds;
• not requesting a correct valuation of the assets;
• not asking for the measure to be limited when the value exceeds the damage;
• third parties not exercising their right to defend their asset in the criminal proceedings.

• I analyse the order and the case file, within the limits of permitted access;
• I calculate the complaint term and prepare the challenge;
• I gather documents on ownership and the origin of the assets;
• I file the request to lift or limit the measure, where appropriate;
• I argue the request before the judge for rights and liberties or before the court;
• I follow the measure throughout the proceedings, until the assets are returned.