Confiscation of property in the criminal law of the Russian Federation
The use of confiscation as a criminal sanction
Such a penalty is imposed for committing crimes of varying severity. For acts that have been committed with mercenary motives, confiscation is appointed in certain cases specified by the relevant articles of the Criminal Code, and acts as an additional punishment. It can not be replaced by a fine or other property recovery. It should also be noted that this criminal-law preventive measure can not be an alternative, but is applied only in conjunction with the main punishment.
The law on the confiscation of property does not clearly define the objectives of this type of recovery. Theoretically, we can assume that it implies:
- compensation for damage caused by the seizure of income from criminal activities;
- prevention of enrichment at the expense of illegal activities;
- prevention of repeated crimes due to confiscated crime instruments.
If we analyze in detail all aspects of this type of punishment, we can come to the conclusion that it is aimed not at correcting the convicted person, but at restoring the disturbed legal order.
Confiscation of property in criminal law is characterized by the following features:
- is a legal consequence of the crime committed;
- does not constitute an independent form of criminal responsibility;
- carries gratuitous as well as compulsory;
- treatment of seized property in state ownership;
- a measure to restore public relations violated as a result of criminal acts;
- the object of seizure is the values that were seized at the time of the commission of the criminal act (also things that by their nature are intended to commit a wrongful act are subject to seizure);
- always combined with a preventive measure and is not an alternative to punishment;
- appointed in case of deferment of sentence or in case of conditional release;
- considered a precautionary measure.
The main types of confiscation of property. Partial and full confiscation
Based on the goals and grounds for applying the impact, the withdrawal is partial and complete.
Partial confiscation. When, when making a decision, the court decides what property will be seized. Thus, either a part of the property will be registered (for example, half or one third of the apartment), or a specific object (apartment, car). In sentencing, the court takes into account only the property that the convicted person owns. On shares held by other persons - spouse or parents - such a measure of restraint does not apply.
Total confiscation. In this case, all property is subject to seizure, except for those things that are necessary for the convicted person and those dependent on him (this list includes things, food, shoes).
Its difference from the simple one is that it is appointed regardless of whether a person is subject to criminal liability or not (for example, in case of insanity or minority). Special confiscation of property is the free withdrawal of certain categories of things, namely:
- wealth obtained through crime;
- items obtained and used to commit a crime;
- things that are prohibited in free circulation.
Property that may be subject to confiscation
Based on Art. 104.1 of the Criminal Code, the following property may be turned into state ownership:
- material values, as well as other property acquired as a result of criminal activity (exceptions are things that are to be returned to the rightful owner);
- the material benefits that were intended to finance a criminal group, terrorism, an armed group;
- the values obtained as a result of the committed wrongful act, as well as certain incomes, which were subsequently converted;
- tools and other means intended for the commission of a crime that belong to the accused.
When property is confiscated, the state is not responsible for the debts of the convicted person. Especially if the obligations appeared after the judicial, investigative or investigating authorities took measures to preserve the values.
Property that cannot be confiscated
The legislation provides for certain types of property, as well as conditions for their confiscation, taking into account the methods and sources of receipt.It also takes into account the nature and purpose of using such property, the priority of the rights of the legal owner and the bona fide purchaser of the property from the guilty person.
The list of such property includes:
- values that should rightfully return to the rightful owner;
- values obtained by legal means, to which later values associated with the crime committed were added;
- property that is not subject to recovery in accordance with the civil procedural code;
- the property that the convict handed over to a third party, and it, in turn, did not know about the criminal nature of its receipt.
Confiscation of property in the Russian Federation is not provided for in the sanctions, which are fixed in the special part of the Criminal Code. This type of punishment is regulated only in the general part, specifically in articles 104.1, 104.2, 104.3.
Confiscation as a criminal law measure and method of punishment
The main differences between the concepts presented are that:
- the property of third parties should be subject to seizure if they knew about the illegality of their receipt;
- such a sanction does not formally refer to the list of types of punishment;
- the accused person is withdrawn only the property that appeared as a result of the commission of the crime, as well as the income derived from it;
- if at the time of sentencing, the use of confiscation of property is not possible (for example, in the case of a sale), the court issues a sentence where it is prescribed to recover a sum of money that is equivalent to the value of the item.
Solving the issue of confiscation, first of all, you need to take into account the problem of compensation for damage caused to the rightful owner. If the defendant does not have property on which the court could impose an arrest, any other thing is removed. And already from its value the damage is returned to the victim, and the rest becomes the property of the state.
Execution of sanctions in the form of confiscation
Particular attention should be paid to the issue of execution of a court sentence, the sanction of which is the confiscation of property. The Criminal Code contains a provision (art. 62, part 2), which places the authority on the execution of this type of sanction on the bailiff.
After receiving copies of the court verdict, the inventory act, as well as the writ of execution, the bailiff is obliged to make a check on the presence of the property indicated in the inventory. In some cases, reveals other property and writes it in the inventory.If an inventory of the property has not been made, the bailiff takes all possible measures to identify things, which should be confiscated in accordance with the court’s verdict, and after that he personally draws up an inventory.
The law on confiscation of property implies the subsequent transfer of the seized items to the authorities, which are obliged to sell them later and convert the proceeds to the state. Such actions are made only after the satisfaction of the requirements for the convicted person, and when the court decision becomes effective.
With regards to the debts of the convicted person, only that part was present that was present before the decision was taken on measures to preserve the property. There are some exceptions to this rule. First: it is allowed to satisfy the debt obligations of the convicted person after obtaining the consent of the financial authorities. The second exclusion applies when it is necessary to satisfy claims for the payment of benefits for a minor or alimony, for damages caused in the event of injury or loss of a breadwinner.
After the court sentence has been executed, the bailiff is obliged to transfer the writ of execution with his mark to the court for further familiarization with the criminal case.
Return of confiscated property
The return process occurs only in cases where, in subsequent decisions of the court, the property to which the arrest was previously addressed is excluded from the inventory.
Property that is to be returned must be returned in kind. When there is no possibility to return the item, a decision is made to pay an equivalent amount of money. At the same time, it is necessary to pay special attention to the fact that the court’s decision must indicate the actual value of the thing that is to be returned, and not the amount of revenue received in the process of implementation of the earlier sentence.
If the court sentenced the deprivation of liberty with confiscation of property, and after a time an act of pardon was issued, the amnesty also applies to the seized items. An exception will be considered already withdrawn and sold property. Also, the act of amnesty does not grant the right to material reimbursement by the state of items already sold.
Confiscation of cash or property in return for an item to be seized
Confiscation of property in criminal law implies the adoption of a court decision on the withdrawal of a sum of money in exchange for a specific item that falls under those specified in art. 104.1 of the Criminal Code.Such a decision can be made only if at the time of the court decision to withdraw certain property is not possible. It should be borne in mind that only that amount of money that corresponds to the value of the thing to be withdrawn (Article 104.2) will be paid in favor of the state. After the introduction of Chapter 15.1 of the Criminal Code, law enforcement officers began to identify the property that was seized as a result of the unlawful act, as well as all the income received from such property with subsequent reimbursement of losses to the injured person and the state.
When the convicted person does not have the necessary amount of funds, the court decides on the confiscation of other property, the value of which is equivalent to the price of the item to be seized. Confiscation of property in criminal law is closely intertwined with the constitutional rights and freedoms of the person. Thus, it is prohibited to impose a penalty on the residential premises of the debtor, which is for him the only suitable place for permanent residence.
As a result of the above, it can be concluded that the institution of confiscation is a complex inter-sectoral entity, which includes the rules of criminal and procedural law.