Vynnyk A.O. Special confiscation of property as another measure of criminal nature under criminal law of Ukraine. – Qualifying scientific work on the rights of the manuscript.
Thesis on scientific degree of Legal Science (PhD of Law) on speciality 12.00.08 «Criminal Law and Criminology; Criminal-Executive Law» (081 – Law). – Lviv State University of Internal Affairs MIA of Ukraine, Lviv, 2019.
The dissertation is the first comprehensive criminal law research on the special confiscation as another measure of criminal nature in criminal law of Ukraine carried out after the changes that this institution has undergone with the adoption of the Law of Ukraine “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine to Implement the Recommendations Contained in the Sixth Progress Report on the Implementation by Ukraine of the Action Plan on Visa Liberalisation Regarding the Improvement of the Procedure the Property Seizing and Institution of Special Confiscation” No. 1019-VIII filed 18.02.2016.
In the course of the research, a legal analysis of the provisions of the current criminal legislation of Ukraine on the regulation of special confiscation as another measure of criminal nature was provided and the main problematic aspects of this institution in the doctrine of criminal law of Ukraine were considered.
It has been found that at the doctrinal level, there is no comprehensive research on special confiscation of the property as another measure of criminal nature, and some scientific views on the problem of special confiscation are superficial and fragmentary. The issues of the legal nature of special confiscation as another measure of criminal nature, its purpose and place in the system of criminal law norms have yet to be fully explored. Disputed in science are: the problems related to the conditions and grounds for use of special confiscation, ensuring the principles of inviolability of property rights during its application; the issues of comparing the special confiscation as another measure of criminal influence with confiscation as a type of punishment; the expediency of exclusion confiscation of property from the system of criminal penalties of Ukraine and fully replacement this type of punishment by special confiscation as a non-punitive measure of criminal influence.
All the legislative changes of the Criminal Code of Ukraine related to the legal regulation of special confiscation since its introduction into current criminal law and to the present were analyzed. This create the possibility to observe the positive nature of the latest legislative changes to the provisions of Art. 96-1 of the Criminal Code of Ukraine and 96-2 of the Criminal Code of Ukraine, as amended by Law of Ukraine No. 1019-VIII filed 18.02.2016. In particular, attention is drawn to the fact that with the adoption of these legislative changes, the special confiscation has acquired a certain criminal status, and the conflicts on its legal regulation, which existed in the criminal legislation by that time were almost eliminated. At the same time, it is noted that the problem of special confiscation at the legislative level is not completely resolved, and the current revision of the provisions of Art. 96-1 and 96-2 of the Criminal Code of Ukraine need further changes and additions.
It has been found that the introduction into the current criminal law of Ukraine the idea of special confiscation of the property as non-punitive measure of criminal nature was the positive and reasonable step of the legislator on the way of transformation and reformation the institution of property confiscation which predetermined by a number of factors such as historical, general social, regulatory, and the related to practice of international law. In particular, the introduction of special confiscation as another measure of criminal nature is based not so much on historical factors as on the requirements of modern reality, international experience in similar public relations, and the need for Ukraine to implement international legal instruments including the recommendations and commitments for introduction of special confiscation into the Ukrainian national legislation. During the legal analysis of the aforementioned factors’ system it has been found that not all of the factors analyzed categorically indicate the advisability of introducing special confiscation as another measure of criminal nature into current criminal legislation of Ukraine in the same way. The realization of the idea that the special confiscation extends not to all property of the person who committed the crime but only to that being the means or instrument of the crime, or illegally obtained property, as well as income from such property, is the guarantee for inviolability of private property and complies with the principles of justice and citizens’ equality before the law.
The criminal norms of twenty-seven European Union countries are analyzed and the differences of the legal nature of this institution in the criminal law system of these states are revealed. It is substantiated that novels related to the legislative fixing of special confiscation in the criminal legislation of Ukraine correspond to the practice of regulating this issue in European states. In particular, it has been determined that special confiscation is found in the criminal law of most states of European Union in one form or another, although the exact term “special confiscation” is not used in the criminal law of European states.
After the legal analysis of the provisions of Art. 96-1 and Art. 96-2 of the Criminal Code of Ukraine it was proved that special confiscation is a measure of criminal nature, the “otherness” of which is related to such a measure of criminal influence as a punishment, and not to those measures which are part of the system of measures of criminal nature.
Based on the features of special confiscation, it is determined its objectives, in particular in the context of the continuous process of reforming the institution of special confiscation. According to this, to determine the objectives of such kind of forfeiture, we have to refer to its essential features and properties. The legal definition of a special confiscation gives grounds to assert, it is another criminal law measure, and the main purpose of it is not the punishment of the person who committed the crime, but the seizure of illegal proceeds and the neutralization of criminal property. Because of such negative effect of the crime or a socially dangerous act as special confiscation, its general purpose is somewhat narrowed – it should be carried out within the framework of the prevention of new crimes. It is impossible to set up other objectives of special confiscation, such as for example, recompense, because such measure need to be consolidated with another branch of law, especially civil law. First of all, the rules of special confiscation are the rules of law with a direct preventive effect, since the seizure of property that proceeds under the crime makes the commission of the crime unprofitable. At the same time, the possibility of seizure of property not only from the offender of the crime, but also from third parties, indicates that this measure is aimed not only to achievement the general preventive measure, but also a special preventive measure. At the same time, it should be noted that in certain cases, for example, the seizure of criminal values and other criminal property (Clause 1 of Part 1 of Article 96-2 of the CC of Ukraine), the special confiscation has such objective as the restoration of social justice. Thereby, the special confiscation as another criminal law measure is a security tool, with its own objectives such as general and special prevention of the crimes and the restoration justice. This conclusion is consistent with European science-based approach of the understanding the nature of special forfeiture.
The comparative analysis of special confiscation and confiscation of property as a type of punishment is made. It is proved that in the system of criminal norms the mentioned measures of legal influence have their own independent meaning and are different not only by their legal nature as by a number of other features. In particular, these measures of influence differ not only in their legal nature, content and purpose, but also in the nature of the seized property, the conditions and the consequences of its use. At the same time, attention is drawn to the fact that in the current criminal legislation, nowadays, there is some imbalance of the criminal law prescriptions that regulate the mentioned measures of criminal influence, which needs immediate elimination.
Based on the legal analysis of the judicial practice, the common mistakes of the courts during the applying the provisions of Art. 96-1 and 96 2 of the Criminal Code of Ukraine were clarified and identified trends in the enforcement of special confiscation as another measure of criminal nature. On the basis of the obtained results of the provided research, specific proposals for solving the most problematic issues of special confiscation as another measure of criminal nature have been formulated, which have been objectified in the conclusions to the dissertation and proposals for improvement the legal regulation of special confiscation in the Criminal Code of Ukraine. In particular, it is proposed to set out in the new edition of the provisions of Art. 96-1 of the Criminal Code of Ukraine “Special confiscation” and Art. 96-2 of the Criminal Code of Ukraine “Cases of special confiscation”.
Key words: special confiscation, confiscation of property, other measures of criminal nature, measures of criminal influence, punishment, property, ownership.