On January 16, 2026, the Ministry of Justice of Montenegro published the Proposal for Amendments to the Law on Confiscation of Proceeds from Crime, setting a 20-day deadline for public debate.
On this occasion, a Belgrade legal blog published Text by two lawyers, presented as a contribution to the public debate on the proposed solutions.
The authors point out that interest in this topic is not limited to Montenegro. Similar legal solutions exist in Serbia and other countries in the region, and the issues raised - the relationship between the fight against crime and the protection of fundamental rights, the position of third parties, legal certainty - go beyond the local framework and naturally attract the attention of the wider professional public in the region.
What is the essence of the proposed changes?
According to the authors, the draft changes the basic concept of permanent confiscation of property. While the previous model linked permanent confiscation of property primarily to a final conviction, the proposal introduces the possibility of permanent confiscation occurring during criminal proceedings, before the defendant's guilt has been finally established.
The text particularly emphasizes the solution according to which property could be permanently confiscated after the indictment is confirmed, i.e. the main trial is scheduled in a summary procedure, with a property threshold of 50.000 euros set within the proposal analyzed by the authors. The authors argue that this represents a radical step forward from the classical framework: the permanent loss of property is shifted to a stage in which the presumption of innocence for the defendant must fully apply.
"Temporary" becomes "permanent"
One of the central messages of the text is the warning that this blurs the clear line between temporary security measures and final confiscation. Temporary measures (freezing, prohibition of disposal) are by their nature intended to preserve property until a possible judgment; however, the authors believe that the proposal effectively transforms the temporary into the final, thereby turning the procedural measure into a permanent consequence.
A verdict can be replaced by an indictment.
The authors also specifically warn about the normative consequence in which a court decision on permanent confiscation of property can be based on a confirmed indictment, and not solely on a final judgment. In their interpretation, this is the final step in the introduction of confiscation without a conviction and essentially shifts the focus from established guilt to the procedural phase and the standard of suspicion.
"What if the defendant is acquitted?"
The authors also warn of a serious problem affecting the presumption of innocence: the proposal allows for the permanent seizure of property during the proceedings, but does not contain any provisions on what happens to that property if the defendant is ultimately acquitted. In other words, property can be permanently seized without a clear mechanism for its return. At the same time, the model effectively shifts the burden of proof to the defendant, who must prove the legal origin of the property in order to avoid loss, which raises issues of the right to remain silent and the prohibition of self-incrimination. The authors warn that the permanent seizure of property during the proceedings inevitably increases the pressure to end the case with a guilty verdict - which, in their opinion, is contrary to the idea of a fair and just trial.
The procedure may take longer, with greater discretion on the part of the prosecution.
The text also points to the extension of deadlines and the expansion of prosecutorial discretion. The authors state that the system is moving towards a model in which the prosecution is given broad authority to assess when “the state of affairs is sufficiently clarified”, with the possibility of supplementing requests and subsequent requests if additional assets are discovered. The message is that the confiscation procedure could turn into a lengthy process, with a prolonged state of legal uncertainty for the affected persons.
Transitional provisions and the issue of retroactivity
The authors pay special attention to the transitional provisions, warning that they practically change the “rules of the game” in the middle of the proceedings. Namely, the proposal allows cases initiated under the old rules to be transferred to a new, stricter regime of permanent confiscation of property. This means that both the defendant and third parties may find themselves in a more difficult position than they were at the beginning of the proceedings - because the property may be confiscated in a manner that was previously neither possible nor foreseeable, and that the previous rules were more favorable to the defendant. The authors emphasize their disagreement with the proponent regarding the nature of the proposed retroactivity, pointing to the potential violation of constitutional provisions concerning the prohibition of retroactivity in criminal proceedings and the mandatory application of a law that is more lenient for the defendant.
New financial motive and risk of conflict of interest
One of the most striking topics is the proposed change in the way of distributing permanently confiscated assets. The authors point out that for the first time, the possibility is introduced that a part of the confiscated assets may belong to state authorities that participate in the discovery of assets and the conduct of financial investigations and confiscation proceedings. According to them, this opens the risk of a conflict of interest and violates the principle of institutional neutrality, because the authorities conducting the proceedings also become budgetary beneficiaries of its outcome. The text recalls that Judge Falcone wrote back in 1991 that “confiscation is not aimed at enriching the state, but at dismantling the criminal power of an organization by taking away its economic basis”.
Problems of conscientious third parties
The authors state that the proposed amendments did not raise the issue of stronger protection of bona fide third parties in the seizure of property, nor did they address the better application of proportionate, targeted measures. In practice, there is often no distinction between the property of the defendant and the property of the company: even a minimal ownership stake of the defendant can lead to broad prohibitions that paralyze the entire company, so that the consequences are borne by other shareholders, creditors, employees and other third parties - often completely bona fide. It has also happened that the defendant has only about ten percent of the share, and the entire company's assets are still blocked. Temporary measures of prohibition of use remain "temporary" only in name, because in practice they can last for years. Although milder mechanisms already exist - such as temporarily taking control of a specific share of the defendant while the proceedings are ongoing - they are, in the authors' experience, not used to a sufficient extent. This issue has not yet found its place in the current proposal for amendments, but could be raised during the public debate.
Closing message
The text assumes that asset forfeiture is an important tool in the fight against organized crime and corruption, and that criminal activity must not pay. However, the author's central message is that the fight against crime must remain balanced with the protection of fundamental rights, the presumption of innocence, legal certainty, and the protection of conscientious third parties.
The authors are lawyers.
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