Confiscation of property. Grounds for the confiscation of property
Confiscation is a criminal law measure established by law. It is fundamentally different from the enforcement of damage resulting from a crime. Consider further the concept of confiscation of property in more detail.
Confiscation is a compulsory free seizure of a thing or a part of it belonging to the person who committed the crime. When compensating for the harm resulting from the unlawful actions of the guilty person, the material values of the convicted person shall be turned in favor of the victim. Confiscation of property involves the transfer of property to state property. At the same time, the law provides for compensation for damage to the victim from the value of the items seized or the income received by the criminal.
Confiscation of property is used in criminal law as a punishment from ancient times.For example, it was quite popular in ancient Rome, in the Middle Ages. Changes in the approach to confiscation are due to a period of bourgeois revolutions. In this era, the idea of the inviolability of private property was considered one of the fundamental principles. Under the influence of this trend in France, for example, the confiscation of property was abolished in 1790. It was subsequently restored in the time of Napoleon. But then again canceled in 1814.
In criminal law, there are two main types of such exemptions: special and general. In the first case, the measure applies to all property of the perpetrator. Special exemption can be addressed only to certain types of material values. Usually, the list of seized items includes:
- Means and tools, equipment, tools and other things that were used in the preparation and commission of a crime.
- Money and other valuables obtained as a result of an unlawful act.
- Items seized from trafficking (drugs, weapons, and so on).
In Bulgaria, Belarus, Sudan, Mongolia and some other countries, both types of confiscation are used.In practice, in most cases, a measure of a general nature is applied.
Institute Development in Russia
The confiscation of property was provided earlier in the Russian Pravda and Cathedral Code. In legal documents of 1832 and 1845. This measure was used to punish political criminals. After the adoption of the edition of the Code on penalties in 1885, confiscation of property was excluded from the norms of domestic law. The restoration of the institute occurred after the revolution of 1917. Since then, this measure has been included in all editions of the Criminal Code. However, in 2003, it was again excluded from the legislation. This fact has caused numerous disputes among scientists. However, most of them expressed a negative assessment of the decision to exclude confiscation from the list of coercive measures that adversely affected the trends and state of crime. The authors stated that this measure is essential for educational and preventive purposes.
One of them - against corruption - entered into force for Russia on March 21, 2006. According to the Convention, all member states should take the maximum possible measures within their legal systems through which confiscation will be possible:
- Income derived from the commission of acts recognized as crimes, or material values, the value of which corresponds to these funds.
- Property, equipment and other means that were used or intended for use in the course of illegal actions.
In addition, the provisions governing the procedure for confiscating property and other means, and other aspects related to it, were present in other conventions. For example, against transnational crime of 2000, to combat the financing of terrorist actions, the Council of Europe on the identification, laundering and seizure of profits from crimes of 1990, and so on.
Property confiscation: the Criminal Code of the Russian Federation
It was re-introduced in 2006. However, it was not a type of punishment, but a different criminal law measure. Introduction to the Code was carried out by Federal Law No. 153. This law amended a number of regulations in connection with the ratification of the UN Conventions. However, besides the general aspects, additional ones were identified - special ones.
The grounds for the confiscation of property and other material values and objects, the rules for the application of this measure and other key aspects are regulated in Ch. 151, which is present in Section 6.In accordance with the provisions of the Criminal Code, seizure is carried out free of charge, forcibly and in favor of the state by a court decision. Its similarity with the punishment is manifested in the fact that it is a coercive measure to be applied in accordance with the sentence. In accordance with this, a number of authors believe that, by its very nature, the confiscation of property, acting as a different criminal law measure, does not differ from a sanction. However, the legislator pointed out significant differences. In particular, the property subject to confiscation, appears in the perpetrator as a result of his illegal actions. That is, it is illegally acquired. In addition, the use of this measure is an optional right. Her appointment depends on the discretion of the judicial authority.
They are in many ways similar to those pursued by punishment. Confiscation is aimed at restoring justice, it has a general precautionary and private preventive focus. This measure helps to correct the culprit. At the same time, such a withdrawal has the clear goal of restoring a broken relationship.This is due to the fact that at the expense of the confiscated property compensation to the victim is possible.
Under the exemption in favor of the state fall:
- Means, values and other property of the organization or citizen, which are acquired by criminal means in the cases specified in art. 1041, p. 1, p. "A" of the Code, or are the subject of unlawful movement through the customs zone of the CU within the framework of the EAEU, the Russian Federation or the CU member states. These include: weapons, drugs and other prohibited items, as well as any income received from them, except for those that must be returned to their rightful owners.
- The funds, valuables and other property of the organization or individual in which objects acquired during the commission of at least one illegal act provided for in the above article of the Code were turned, and the profit from them was fully or partially converted.
- Equipment, tools, other means of crime belonging to the perpetrator.
- Money, property and other assets that are used or intended to finance extremism, terrorism, an organized group (organization, community), armed illegal formation.
List of crimes
The list of illegal acts for which confiscation is permitted is limited. It contains such crimes as:
- Severe damage under aggravating circumstances.
- Human trafficking.
- Aggravated abduction
- The use of slave power.
- A number of illegal actions against voting rights.
- Some encroachment on minors and family.
- Counterfeiting and a number of other economic crimes.
- Corruption actions.
- The circulation of weapons, drugs, pornography.
- A number of crimes against justice, the security of mankind, the world, the country, the constitutional system of the state.
The list lacks such common mercenary acts as extortion and theft, as well as many economic violations. In this regard, lawyers point out the need to expand the list.
In the event that property acquired as a result of criminal acts was attached to legally acquired valuables, confiscation applies only to the part that corresponds to the price of the attached items and the profits from them.In the case of transferring money or things to another person, they should be withdrawn if the recipient knew or should have known about their illegality.
Impossibility of withdrawal
Such cases are not uncommon in judicial practice. Impossibility of confiscation may be caused by the fact that property, money or other items were used, wasted, sold or converted in another way. In these cases, the court decides to withdraw the amount corresponding to the value of material values, which must be, but can not be withdrawn. The guilty may not have the necessary funds, or they are not enough to compensate. In this case, other property is confiscated, the price of which will be equal to or comparable to the value of items subject to withdrawal. The exception is made by things and material values which cannot be taken away according to provisions of the Code of Civil Procedure. These include, for example, personal belongings, clothing, food, etc.
Compensation for victims
In the process of resolving the issue of confiscation, the court must first determine the recovery from the perpetrator in favor of the victim.In the event that the offender has no material assets through which the damage can be compensated, except for those obtained as a result of unlawful acts, compensation for harm is deducted from their value or income, and the remainder goes to the state. Thus, the violated rights of the victim are restored.