Extended Confiscation
Poland’s most aggressive asset-seizure law flips a fundamental principle of criminal justice: now you must prove your innocence.
In March of 2017, the Polish Parliament passed a statute that, had it been proposed in most Western democracies, might have occasioned weeks of public debate, parliamentary hearings, and impassioned editorials. In Warsaw, it slipped through with relatively little fanfare. The law amended Article 45 of the Polish Criminal Code, establishing what is known as konfiskata rozszerzona—extended confiscation—and it represents perhaps the most far-reaching tool the state has ever granted itself in its campaign against economic and organized crime.
The mechanism is elegant in its severity. Under the traditional rules of criminal forfeiture, prosecutors bore the burden of demonstrating that specific assets derived from a specific crime. Extended confiscation dispenses with such niceties. It presumes—legally presumes—that all property acquired by a defendant within five years of committing a crime is tainted by that crime, unless the defendant can prove otherwise. The shift is not subtle. In the architecture of criminal law, where the presumption of innocence has long served as a load-bearing wall, this represents something approaching demolition.
The statute applies in two broad categories: cases involving proceeds exceeding two hundred thousand złoty (roughly fifty thousand dollars), and serious offenses—those carrying maximum sentences of five years or more, or crimes committed in connection with organized criminal enterprises. In the latter category, prosecutors need not even demonstrate that the defendant actually profited; the mere possibility of financial gain suffices.
What makes the law particularly striking is its treatment of third parties. Property transferred to spouses, business partners, shell companies, or distant relatives falls under the same presumption. Everything in their possession, every legal right they hold, is deemed to belong to the defendant—unless they can establish that, given the circumstances of the acquisition, they could not reasonably have suspected its illicit origins. The good-faith defense exists, but it is narrow, and the burden of invoking it falls squarely on those whose assets hang in the balance.
The constitutional objections practically write themselves. Poland’s Charter, like those of most democratic nations, enshrines the presumption of innocence. Article 42 declares that anyone accused of a crime shall be presumed innocent until proven guilty by a final court judgment. Extended confiscation inverts this principle with respect to property, demanding that the accused prove a negative—that they did not, at some unspecified point over the preceding half-decade, commit crimes from which their wealth might have flowed. The prohibition against retroactivity, another cornerstone of criminal law, was similarly tested: Article 23 of the enabling legislation permitted the new provisions to be applied to assets acquired before the statute’s enactment, a move critics derided as a fundamental breach of legal tradition.
The European Court of Human Rights, for its part, has offered Poland some cover. In a line of cases stretching back to Raimondo v. Italy in 1994 and extending through Gogitidze and Others v. Georgia in 2015, the Strasbourg court has held that member states enjoy considerable latitude in regulating property suspected of criminal origins, including the authority to shift evidentiary burdens onto defendants. The caveat—and there is always a caveat—is that such regimes must be administered through judicial procedures that preclude arbitrariness and guarantee meaningful opportunities for defense. Whether Poland’s implementation meets this standard remains, in many cases, an open question.
The practical consequences have been documented, with some alarm, in the Polish legal press. Prosecutors, armed with these expanded powers, have grown creative. In one notable case decided by the Warsaw Regional Court in July of 2020, authorities had attempted to seize funds from a company’s bank account by classifying the money as “physical evidence” in an ongoing investigation—thereby circumventing the requirement of a court judgment altogether. The court rejected the maneuver, calling it an unacceptable assault on civil liberties, but the episode illustrated how readily such tools can be stretched beyond their ostensible purposes.
The broader critique has been articulated with particular force by legal commentators who see in extended confiscation the leading edge of a more general expansion of state power. The problem, as Hayek warned in the closing pages of The Road to Serfdom, lies not in who wields authority but in the scope of authority available to be wielded. As long as that scope encompasses confiscation without conviction, asset seizure grounded in suspicion, and presumptions of guilt, we inhabit a system in which anyone might become the victim of mechanisms they once helped to create.
Extended Confiscation – Our Publications
Robert Nogacki: The Boomerang: How Instruments of Repression Turn on Their Makers
As Hayek warned in the closing pages of The Road to Serfdom: the problem lies not in who wields power, but in the scope of power available to be wielded. So long as that scope encompasses confiscation without conviction, asset seizure grounded in suspicion, and the presumption of guilt—we shall live in a system where anyone may become the victim of mechanisms they themselves helped create.
Robert Nogacki: Asset Seizure and Asset Protection: A Practical Guide
2020-07-21: Law enforcement agencies manage to recover barely one percent of assets derived from criminal activity. Faced with such institutional ineptitude, the Ministry of Justice intends, starting next year, to replenish the state budget with money seized from honest citizens as well. New preventive confiscation regulations will enable prosecutors to seize their assets without a final court judgment.
Robert Nogacki: Mega-Extended Confiscation, or How Prosecutors Seize Corporate Funds Despite Lacking the Authority to Do So
2020-08-24: To confiscate funds belonging to a company, prosecutors must obtain a court judgment establishing that the company was used to commit a crime. This naturally requires law enforcement to prove that the entrepreneur or other entity operating the business was culpable in committing a crime through the use of the enterprise. For years, however, prosecutors have employed a certain maneuver that allows them to circumvent these requirements and seize company funds held in bank accounts without a court judgment or charges being filed against anyone—they designate the funds as physical evidence in an ongoing case. The Warsaw Regional Court, ruling in favor of an entrepreneur on July 22, 2020, deemed such prosecutorial conduct unacceptable practices that violate civil rights and liberties.
Robert Nogacki: Classifying Funds Held in a Bank Account as Physical Evidence
2020-08-21: A frequently employed practice by prosecutors—though one of dubious legality—is the classification of funds held in a bank account as physical evidence.
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.
