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Publication date: 07.03.2024
I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.
Free, forced confiscation, following a court decision, into the ownership of the state of money, valuables and other property in those cases that are clearly provided for by the code - this is precisely the definition of special confiscation given in the current criminal legislation. Indeed, along with the establishment of those acts that are criminally punishable and the definition of responsibility for their commission, the Criminal Code also establishes a number of measures of a criminal legal nature, which also largely contribute to the implementation of tasks for the protection of rights and freedoms, public safety, etc. In its legal essence, special confiscation does not relate to types of punishment, but at the same time it provides for a preventive purpose, realized by limiting human rights and freedoms. The main difference between confiscation of property as a type of punishment for committing offenses and special confiscation is that when applying the latter, the source of origin of the property, as well as the subject to which it is applied, is extremely important, since there are certain features in this regard.
Special confiscation: grounds, application procedure, exceptions
To establish the possibility of using this type of confiscation, the form of guilt that is present as part of the committed offense is important, because Art. 96-1 of the Criminal Code clearly establishes that the use of special confiscation is possible only in relation to intentional offenses. Special confiscation can also be applied in the case of committing those acts for which the Criminal Code provides for punishment in the form of imprisonment or a fine of more than 3 thousand nmdg, as well as a number of other offenses, a full list of which is given in Part 1 of Art. 96-1 UKU. No less important are the grounds in the presence of which this measure can be applied, namely: a conviction by the court, or a ruling on exemption from criminal liability or a ruling on the use of compulsory measures of a medical or educational nature. As noted above, the source of origin of the property subject to confiscation is of exceptional importance, because such property can only be: property obtained as a result of the commission of an offense, or that which was intended to incite the commission of offenses, or for the purpose of financing their commission, was the subject of offenses, instrument or means. In this case, the fact of transformation of the listed property will not matter, because if it has been transformed, the possibility of applying special confiscation remains. A characteristic feature of special confiscation is that it can be applied not only to persons who committed offenses, but also to those to whom the above-mentioned property was transferred by suspects or accused, that is, to third parties. In this case, it is taken into account how the third party acquired such property (for compensation or gratuitously), as well as in what period and at what stage of the criminal process such property was transferred. As for exceptions, property to which the person acquired the right of ownership in good faith is not subject to special confiscation. Also, this measure is not implemented in relation to the property that, by law, must be transferred to its owner.
Analysis of the further fate of the confiscated property:
All issues regarding the further disposal of seized property are resolved by the court already at the stage of making a judicial decision, that is, by the time the proceedings are completed. If the proceedings were closed by the investigator or prosecutor, then the means and instruments for committing the offense are subject to confiscation, except in cases where the legal owner did not and could not know about their illegal origin. The property that is the subject of an offense and withdrawn from circulation is subject to destruction or transferred to authorized institutions. As for property that was intended to incite or finance the commission of offenses, it is subject to confiscation. In any case, the prosecution must prove in court that the property was acquired in bad faith.
Lawyer's consultation criminal cases at different stages of the process:
Consultation with a criminal lawyer may be necessary at any stage of the process, because during the pre-trial investigation, the lawyer will participate in investigative actions, file complaints, and collect evidence. Already at the stage of judicial proceedings, a criminal lawyer will implement the chosen defense strategy, analysis of documents, and help in drawing up the necessary procedural documents. So, a criminal case is a complex, long-term and complex process in which legal support is extremely necessary.
