Confiscation of property - a measure of a criminal law nature, which consists in the compulsory gratuitous seizure and transfer to the state ownership of all or part of the property that is the property of the person who committed the crime . In various legal systems, confiscation may be included in the system of types of criminal punishment or considered as another measure of a criminal law nature . Confiscation must be distinguished from the enforcement of damages caused by a crime by applying it to the property of the convicted person. In this case, property is seized in favor of a specific person or for the repayment of a specific damage, while forfeiture is turned into state revenue [1] .
Content
History
Confiscation is one of the most ancient punishments known to criminal law . Confiscation was widely used in ancient Rome during the period of the empire and in medieval Europe . The change in the attitude towards confiscation is connected with the era of bourgeois revolutions , during which the idea of the inviolability of private property was elevated to the rank of basic legal principles. So, in France, confiscation as a criminal punishment was canceled in 1790 (after which it was restored by Napoleon and again canceled in 1814), in Prussia - in 1850 [1] .
Types of Confiscation
Two main types of confiscation can be distinguished: general and special. General confiscation provides for the seizure of all property of the convicted person, and special - only certain of its types. As a rule, the list of property types subject to special confiscation includes [1] :
- tools and means , other items used to prepare and carry out a criminal act;
- cash, other property received as a result of a crime;
- items withdrawn from free circulation ( weapons , drugs , etc.).
In Belarus, Bulgaria, Côte d'Ivoire, Cuba, Laos, Madagascar, Mongolia and Sudan, both general and special confiscation are known to criminal law. However, legislation usually provides only one of these types of confiscation [1] .
General Confiscation
In most countries of the world, general confiscation of property is not provided for by law. In a number of countries, a ban on its application is contained in the constitution (Azerbaijan, Argentina, Barbados, Bahrain, Belgium, Greece, Cyprus, Colombia, Costa Rica, Lebanon, Malaysia, the Maldives, Mexico, Nicaragua, the United Arab Emirates, Paraguay, Romania, Syria, Tajikistan, Turkey, Chile, etc.) [1] . In Georgia, the application of general confiscation was recognized by the Constitutional Court to be incompatible with the Constitution due to a violation of the principle of compulsory compensation in the transfer of property [2] .
Only in a small number of countries does general confiscation remain in criminal law as an additional punishment (Belarus, Bulgaria, Vietnam, Denmark, Kazakhstan, China, North Korea, Congo, Cote d'Ivoire, Cuba, Laos, Latvia, Mauritania, Madagascar, Mongolia, Sudan, Tajikistan, Togo, Ukraine, France, Ethiopia: It was canceled in Kyrgyzstan and Uzbekistan in 2001, and in Russia in 2003 [2] .
In many countries where general confiscation persists, its use is often limited, as this measure has a very significant impact on the living conditions of not only the convict, but also his family. So, in France, it can be used only for crimes against humanity , as well as illegal production, import and export of drugs . In Armenia, while maintaining general confiscation in the legislation, the amount of confiscated property is limited by the amount of income and the value of other property that are obtained as a result of the crime. In Belarus and Tajikistan, it can be appointed only for grave and especially grave crimes committed out of mercenary motives, in cases provided for by a special part of the Criminal Code. Only for mercenary crimes can confiscation be imposed in Kazakhstan. Mauritania, Madagascar and Sudan provide for the use of confiscation in exceptional cases. So, in Madagascar it is used for crimes against the state committed in wartime, as well as for persons hiding from liability for crimes in other states. In Sudan, confiscation is provided only for crimes against the constitutional order , sovereignty and territorial integrity of the state [3] .
In addition, usually the law also provides for a list of property that is not subject to confiscation. It includes property necessary for the life of the convict or persons who are dependent on him: the only housing, land, furniture, clothes, children's goods, etc. [4]
Sometimes attempts are made to introduce into criminal law institutions similar to confiscation. In 1992 in Germany, “property punishment” ( German Vermögensstrafe ) was introduced into law, which was imposed simultaneously with imprisonment and had the form of a recovery of a sum of money, the amount of which could correspond to the total value of the property of the convicted person. This measure was borrowed in Paraguay (1998) and Estonia (2001), however in Germany its application was found to be contrary to the constitution and it was excluded from legislation in 2002 [2] .
Special Confiscation
Special confiscation is provided for by the legislation of most countries of the world (the former Yugoslav republics, Austria, Azerbaijan, Albania, Algeria, Argentina, Bahrain, Belarus, Belgium, Bulgaria, Bolivia, Vanuatu, Hungary, Venezuela, Haiti, Germany, Honduras, Greece, Georgia, Denmark , Zambia, Iceland, Spain, Kenya, Kyrgyzstan, Costa Rica, Lithuania, Malta, Morocco, Mexico, Moldova, Nigeria, Netherlands, Nicaragua, Norway, United Arab Emirates, Panama, Paraguay, Peru, Poland, Portugal, Republic of Korea, Russian Federation, Romania, Salvador, San Marino, USA, Tunisia , Turkey, Fiji, Finland, France, Chile, Sweden, Switzerland, Ecuador, Estonia In a number of countries (CIS countries) it is considered as a criminal procedure institution [4] .
There are two main types of special confiscation: confiscation of property and other proceeds of crime , and confiscation of instruments and means of crime. In a number of countries, these varieties of special confiscation clearly differ, forming independent criminal law measures (Austria, England, the Federation of Bosnia and Herzegovina, Germany, Paraguay, the USA, Switzerland, etc.). As in the case of general confiscation, it does not apply to the amount of damage to be compensated to the victim of a crime [5] .
Special confiscation is usually considered not as a punishment, but as another measure of a criminal law nature (Austria, Germany, Iceland, Spain, Lithuania, Morocco, Moldova, Paraguay, Romania, Croatia, etc.). The legislation of the Federation of Bosnia and Herzegovina, Republika Srpska, Macedonia and Croatia considers confiscation of the instruments of crime as a security measure, and the confiscation of criminal proceeds as an independent institution, not included among the security measures. In Spain, Malta, Peru, El Salvador, special confiscation is recognized as an “additional consequence” of punishment. At the same time, in Azerbaijan, Albania, Turkmenistan, the Philippines, France, Japan, special confiscation is seen as a form of additional punishment, and in France it can also be the main punishment [5] .
As a rule, the use of special confiscation is possible regardless of its presence in the sanctions of the articles of the special part. This is also characteristic of countries where it acts as an institution of criminal procedure law [5] .
An interesting feature of special confiscation is the possibility of applying it to persons who are not the subjects of a crime , but who have received income from criminal activity in a different way (for example, they were the assignees of criminals). According to the Austrian Criminal Code, enrichment as a result of another person committing a criminal act prohibited under the threat of punishment, or at the expense of the property gain received from the commission of this act, is an offense punishable by paying a sum of money in the amount of such enrichment. Similarly, this issue was resolved in the legislation of the Federation of Bosnia and Herzegovina, Hungary, Germany, Denmark, Lithuania, and Norway. In addition, special confiscation may also apply to persons exempted from other forms of criminal responsibility [5] .
Special confiscation can be carried out not only at the expense of property and proceeds that are directly derived from the commission of the crime, but also at the expense of the property into which the illegal proceeds were converted. This makes it possible to recover, even if the subject of the crime is hidden, spent or absent. Such an opportunity is provided for in the laws of Austria, Germany, Lithuania, Macedonia, the Netherlands, Poland, France, Estonia and others. [6]
In a number of countries (Austria, Germany, Switzerland, etc.) there are restrictions that prevent the use of special confiscation if it puts the convicted person in a difficult financial situation or has other adverse property consequences for him. Such exemptions are due to considerations of humanism [6] .
Confiscation of property in Russia
History
Confiscation was envisaged even by such ancient monuments of Russian law as Russian Truth and the Cathedral Code of 1649 . In the Code of Laws of 1832 and the Penal Code of 1845, it is provided as a punishment for political crimes. However, with the adoption of the editors of the Penal Code of 1885, confiscation as a form of punishment leaves Russian law [1] .
Once again, the institution of confiscation was restored after the 1917 revolution and has since been included in all the adopted criminal codes of the RSFSR [1] . It was also included in the original version of the Criminal Code of the Russian Federation , however, in 2003, confiscation as a form of punishment was excluded from the criminal law.
The complete exclusion of confiscation from the list of punishments and other measures of a criminal law nature has become the subject of wide discussion in the scientific community. At the same time, a significant number of authors expressed themselves in a negative way, considering the abolition of confiscation as a thoughtless and harmful decision that negatively affects the state and trends of crime [7] .
On March 21, 2006, the UN Convention against Corruption entered into force for Russia, according to part 1 of article 31 which States parties should take “to the maximum extent possible within the framework of its domestic legal system, such measures as may be necessary to ensure the confiscation of: a) proceeds of crime recognized as such in accordance with this Convention, or property whose value corresponds to the value of such income; (b) Property, equipment and other means used or intended for use in the commission of offenses established in accordance with this Convention. ” In addition, the provisions on confiscation of property were also contained in other international documents: Art. 12 United Nations Convention against Transnational Organized Crime, 2000; Art. 8 of the International Convention for the Suppression of the Financing of Terrorism of December 9, 1999; Art. 1, 13-16 of the Council of Europe Convention on the Laundering, Detection, Seizure and Confiscation of the Proceeds of Crime of 1990, etc.
In 2006, confiscation was again introduced into the Criminal Code of the Russian Federation, however, not as a form of punishment, but as a different measure of a criminal legal nature . This was done by the Federal Law of July 27, 2006 No. 153-ФЗ “On Amending Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law“ On Ratification of the Council of Europe Convention on the Prevention of Terrorism ”and the Federal Law“ On Countering Terrorism ””, since the provisions of this convention required the confiscation of property used or intended for the financing of terrorism . However, the legislator was not limited to this, and included in the legislation and other forms of special confiscation.
Confiscation in the current criminal law
Confiscation is regulated by Chapter 15 1 of the Criminal Code of the Russian Federation, which is part of Section VI “Other measures of a criminal legal nature”.
Confiscation involves the compulsory gratuitous seizure and conversion into the ownership of the state of the property of the convicted person on the basis of a court conviction . Confiscation resembles punishment in that it is a measure of state coercion, appointed by a court verdict, which gave some scholars reason to argue that in fact confiscation as another measure of criminal law is no different from confiscation as a punishment [8] . At the same time, confiscation in the current legislation is mainly aimed at the property that the perpetrator illegally owns, acting as an additional way to resolve the criminal law conflict; in addition, her appointment is optional, depending on the discretion of the court [9] .
The purposes of confiscation are in many respects similar to the goals of punishment: confiscation is also aimed at restoring social justice, has a generally preventive and private preventive orientation, and helps to correct the person. However, confiscation also has a clearly expressed goal of restoring violated legal relations, since, at the expense of property subject to confiscation, it is possible to recover damage to the victim [10] .
The following property may be confiscated:
- money, valuables and other property obtained as a result of committing the crimes listed in paragraph “a” of part 1 of article 104 1 of the Criminal Code of the Russian Federation, or which are the subject of illegal movement through the customs border of the Customs Union within the EurAsEC or across the State border of the Russian Federation with the member states of the Customs Union within the EurAsEC (weapons, drugs and other similar items), and any income from this property , with the exception of property and income from it, subject to return to its rightful owner;
- money, valuables and other property in which property obtained as a result of at least one of the crimes provided for in the articles referred to in paragraph “a” of part 1 of article 104 1 of the Criminal Code, and the proceeds of this property have been partially or completely converted or transformed;
- money, valuables and other property used or intended to finance terrorism , extremism , an organized group , an illegal armed group , a criminal community (criminal organization);
- tools, equipment or other means of committing a crime belonging to the accused.
The list of crimes for which confiscation is possible is quite limited. It contains acts such as the killing and infliction of grievous bodily harm with aggravating circumstances, the abduction of a person with aggravating circumstances, human trafficking, the use of slave labor, some crimes against citizens' suffrage, violation of copyright, related, inventive and patent rights, some crimes against the family and minors, counterfeiting and some other economic crimes, corruption crimes, crimes of a terrorist nature, acts, with yazannye trafficking of weapons, drugs, pornographic materials and objects in prostitution, some crimes against the constitutional order and security of the state, against justice, peace and security of mankind. At the same time, it does not include “traditional” mercenary crimes, such as embezzlement and extortion, most economic crimes. In view of this, many scientists point to the need to expand this list [11] .
If property obtained as a result of a crime and (or) income from this property was attached to property legally acquired, the part of this property that corresponds to the value of the property attached and income from it shall be confiscated. If the property received or the proceeds from the crime were transferred to another person or organization, they shall be confiscated, if the person who received the property knew or should have known that it was obtained as a result of criminal acts.
If the confiscation of a certain item included in the property subject to confiscation is impossible at the time the court makes a decision on confiscation due to its use, sale, or for any other reason, the court shall make a decision to confiscate a sum of money that corresponds to the value of the item. If, under the circumstances, the convicted person does not have sufficient funds or is not enough, the court decides to confiscate other property, the value of which corresponds to the value of the item to be confiscated, or is comparable to the value of this item, with the exception of property for which, in accordance with the Code of Civil Procedure of the Russian Federation foreclosure cannot be levied.
When deciding on the confiscation of property, the question of compensation for harm caused to the rightful owner must first be resolved. If the guilty has no other property that can be levied, except for the crime resulting from the commission of proceeds and income from it, the damage caused to the rightful owner is compensated from its value, and the remaining part is turned into state revenue.
Notes
- ↑ 1 2 3 4 5 6 7 Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Shcherby. - M .: Yurlitinform, 2009 .-- S. 317. - 448 p. - ISBN 978-5-93295-470-6 .
- ↑ 1 2 3 Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Shcherby. - M .: Yurlitinform, 2009 .-- S. 318. - 448 p. - ISBN 978-5-93295-470-6 .
- ↑ Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Shcherby. - M .: Yurlitinform, 2009 .-- S. 318-319. - 448 p. - ISBN 978-5-93295-470-6 .
- ↑ 1 2 Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Shcherby. - M .: Yurlitinform, 2009 .-- S. 319. - 448 p. - ISBN 978-5-93295-470-6 .
- ↑ 1 2 3 4 Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Shcherby. - M .: Yurlitinform, 2009 .-- S. 320. - 448 p. - ISBN 978-5-93295-470-6 .
- ↑ 1 2 Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Shcherby. - M .: Yurlitinform, 2009 .-- S. 321. - 448 p. - ISBN 978-5-93295-470-6 .
- ↑ Kuznetsova N. Opinions of scientists about the reform of the Criminal Code (or Qui Prodest ?) // Criminal Law. - 2004. - No. 1 . - S. 26-27 . ; Luneev V.V. Confiscation of property from the Criminal Code of the Russian Federation is unlawfully excluded: what next? // State and law. - 2006. - No. 4 . - S. 5-10 .
- ↑ Chuchaev A. Confiscation returned to the Criminal Code, but in a different capacity // Legality. - 2006. - No. 9 . - S. 12 .
- ↑ Criminal law of Russia. Practical course / under the general. ed. A.I. Bastrykina , under the scientific. ed. A.V. Naumova ; R. A. Adelkhanyan et al. - 3rd ed., Revised. and add. - M .: Walters Kluver, 2007 .-- S. 284. - 808 p. - ISBN 978-5-466-00282-9 .
- ↑ Criminal law of Russia. Practical course / under the general. ed. A.I. Bastrykina , under the scientific. ed. A.V. Naumova ; R. A. Adelkhanyan et al. - 3rd ed., Revised. and add. - M .: Walters Kluver, 2007 .-- S. 285. - 808 p. - ISBN 978-5-466-00282-9 .
- ↑ Kibalnik A. Evaluation of the “anti-terrorist” short stories of the criminal law // Criminal Law. - 2006. - No. 4 . - S. 48-49 .