The Court Declared the Articles of the Criminal Code of Ukraine on Special Confiscation to Be Constitutional

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On June 30, 2022, the Constitutional Court of Ukraine adopted a Decision in the case upon the constitutional petition of 47 People’s Deputies of Ukraine on the compliance of Articles 961 and 962 of the Criminal Code of Ukraine (hereinafter referred to as the Code) with the Constitution of Ukraine (regarding special confiscation).

By the Courts Decision, the impugned articles of the Code were declared consistent with the Constitution of Ukraine.

The specified articles of the Code establish the content, cases and procedure for the application of such a criminal law measure as special confiscation.

The petitioners argued about the inconsistency of the impugned articles of the Code with a number of provisions of the Constitution of Ukraine. In particular, the petitioners noted that “by its legal nature, the institution of special confiscation, although it refers to other measures of a criminal law nature, in fact, along with confiscation, is another type of punishment for a crime <...>”.

In its Decision, the Court clarified the correlation between confiscation of property and special confiscation and pointed out that confiscation of property consists in the forced gratuitous seizure of property that is the property of the convicted person. As a result, confiscation of property is a type of punishment, the application of which is aimed at punishing the guilty, correcting him/her and preventing the commission of new criminal offenses by these and other persons. Instead, special confiscation is used when property is seized from a person who is not the owner or bona fide owner of such property, and therefore this measure of influence on a person is non-punitive.

Therefore, the petitioners’ assertion regarding the simultaneous application of two types of the same punishments (confiscation of property and special confiscation) to a person are groundless.

The Court also pointed out that special confiscation is not a type of criminal punishment, therefore its application, in particular, the forced gratuitous seizure of property from an unscrupulous third party, on the basis of a court decision (verdict, ruling), does not constitute criminal liability.

Therefore, the arguments of the subject of the right to constitutional petition regarding the restriction of human and citizen’s rights and freedoms, defined by Articles 58.2, 61.2, and 62.1 of the Constitution of Ukraine, by Articles 961 and 962 of the Code, are groundless.

In its Decision, the Court noted that court decision (verdict, ruling) on the application of special confiscation is, firstly, a legal act of an individual action, establishing the fact of illegality and bad faith in the acquisition of specific property by a certain person, and secondly, it refutes the presumption of the legitimacy of acquiring property rights established in Article 328.2 of the Code of Civil Procedure of Ukraine. As a result, this court decision is the basis for the seizure of such property from a person in respect of which special confiscation can be applied.

Based on this, the Court came to the conclusion that the application of special confiscation terminates not the right of ownership or the right of bona fide ownership of property, but illegal and dishonest possession, temporarily acquired as a result of the commission of an intentional criminal offense or a socially dangerous act that falls under the characteristics of an act defined by the Special Part of the Code.

Accordingly, Articles 961 and 962 of the Criminal Code of Ukraine do not violate the constitutional guarantees for the protection of property rights, and, therefore, do not contradict Articles 21, 41.1, 41.4 and 41.6 of the Constitution of Ukraine.

The Court also noted that the constitutional petition does not include substantiated statements to consider the impugned articles of the Code as extending their effect to actions that were committed before these articles of the Criminal Code entered into force.



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