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8'2016
Пробелы в российском законодательстве
13.3. CONFISCATION OF PROPERTY UNDER RUSSIAN CRIMINAL LEGISLATION
Aghayev Isfandiyar, Dr of law, Professor. Place of employment: Baku State University. Department: Criminal law chair.
Annotation: Currently, the science of criminal law gives priority to development and fixing of non-custodial penalties in the legislation. Among such measures the special place belongs to the confiscation, which is considered as an effective mean directed to the prevention of economic crimes. Lack of confiscation impedes to deal with the effective system of combating crimes, especially such crimes as terrorism, organized crimes, mercenary or corruption crimes, crimes related to illegal traffic of drugs and psychotropic substances. For this reason, a number of international-legal acts devoted to combating such acts, consider the confiscation as one of the important elements in the system of preventive measures.
Keywords: confiscation of property, punishment, State ownership, judgment, money, valuables, compensation of harm.
КОНФИСКАЦИЯ ИМУЩЕСТВА ПО РОССИЙСКОМУ УГОЛОВНОМУ ЗАКОНОДА ТЕЛЬСТВУ
Агаев Исфандияр, д-р юрид. наук, профессор. Место работы: Бакинский Государственный Университет. Подразделение: Кафедра уголовного права.
Аннотация: В настоящее время наука уголовного права отдает приоритет развитию и закреплению в законодательстве мер, не связанных с лишением свободы. Среди таких мер особое место занимает конфискация, рассматриваемая как действенное средство, направленное на предупреждение экономической преступности. При отсутствии конфискации нельзя говорить о наличии эффективной системы мер борьбы с преступностью, в особенности, когда речь идет о терроризме, организованной, корыстной или коррупционной преступности, а также преступлениях, связанных с незаконным оборотом наркотиков. Именно поэтому ряд международно-правовых актов, посвященных борьбе с такого рода деяниями, рассматривают конфискацию как один из важных элементов в системе предупредительных мер.
Ключевые слова: конфискация имущества, наказание, государственная собственность, приговор, деньги, ценности, возмещение вреда.
The term "confiscation of property" has a long history. So, even the outstanding Russian scientist Nikolay Tagantsev used it for designation of the withdrawal of things connected with the crime.1
Combating crimes without confiscation institute is very difficult nowadays. For this reason, international-legal acts contain the recommendations on its inclusion into the norms of a domestic legislation, because confiscation, being a powerful economic tool in combating crimes, first of all, against its organized version, acts as an institute demanded in the practice.
Confiscation for a long time existed in criminal legislation of the Russian Federation, but its regulation is constantly changed. By the Federal Law of December 8, 2003, article
1 Nikolay Tagantsev. Russian Criminal law. General part (in Russian). Tula, 2001, p.219.
52 of the Criminal Code devoted to confiscation of property was abolished. But soon by the Federal Law of July 27, 2006 "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with Adoption of the Federal Law "On Ratification of the Convention of the Council of Europe on Prevention of Terrorism" and by the Federal Law of June 3, 2006, N0.35-FZ "On Counteracting Terrorism" (as revised by the Federal Law of December 31, 2014), a new Chapter (151) entitled "Confiscation of property", which consists of three articles (1041, 1042, 1043), was included into the VI Title of the Criminal Code called "Other measures of penal nature".
The return of confiscation of property to the criminal statute caused a wide response among both scientists and practitioners. As it follows from the name of the mentioned Federal Law, the main purpose of confiscation of property is the strengthening of penal counteracting terrorism. However, if earlier the confiscation of property was known as a criminal punishment, currently this measure from the position of the law belongs to other measures of penal nature, although it contains many of the substantial and formal features of punishment, for example, restriction or deprivation of rights, compulsory nature of execution, etc.
Confiscation of property isn't formally a punishment, because this measure isn't included into the list of types of punishments established by art.44 of the Criminal Code. However, we should pay attention to the fact that the definition of punishment given in p.1, art.43 of the Criminal Code doesn't state that deprivation or restriction of rights and freedoms should be formulated as a form of punishment. In accordance with the law, such restrictions of rights must be provided by the Criminal Code. It means that they may also exist in the contents of other measures, which are not a punishment. Therefore, from the viewpoint of the contents, punishment and other measures of penal nature may coincide.
Confiscation of property represents forcible and nonrepayable seizure and conversion of the crime committer's property to the State ownership on the basis of judgment. By its content, confiscation of property involves not only the seizure of the unjustly acquired property, but in some cases, deprivation of ownership to the confiscated property, for example, to the justly acquired property, but used or intended for financing terrorism, an organized group, unlawful armed formation, criminal community (criminal organization).
In the current version, confiscation of property doesn't apply to any property of the perpetrator, as it was earlier, but only to that, which is directly indicated in the law (the property, which anyway is connected with the commitment of a crime or has a certain purpose). While defining the property subject to confiscation, the Criminal Code establishes several criteria.2
First of all, this is a property acquired as a result of committing a crime. The crimes, in whose commitment confiscation of property may be applied, include the following: money, valuables and other property obtained as a result of committing crimes under p.2, art.105; parts 2—4, article 111; p.2, art.126, articles 1271, 1272; p.2, art.141; art.1411; p.2, art.142; art.1451 (if the crime was committed out of mercenary motives); articles 146—147; articles 153—155 (if the crime was committed out of mercenary motives); articles 1711, 1712, 174, 1741, 183; parts 3, 4, art.184; articles 186, 187, 189; parts 3—4,
2 The commentary on the Criminal Code of the Russian Federation. Volume 1 (in Russian) // Under the editorship of professor Alexander Brilliantov. Moscow, 2015, p.363.
CONFISCATION OF PROPERTY
Agayev I.
article 204; articles 205, 2051, 2052, 2053, 2054, 2055, 206, 208, 209, 210, 212, 222, 227, 2281; p.2, art.2282; articles 2284, 229, 231, 232, 234, 2351, 2381, 240, 241, 242, 2421, 2581, 275, 276, 277, 278, 279, 281, 2821, 2822, 2823, 2831, 285, 290, 295, 307, 308, 309, 355; p.3, art.359 of the Criminal Code, or which are the subject-matter of illegal movement across the customs border of the Customs Union within the Eurasian Economic Community or across the State border of the Russian Federation with Member States of the Customs Union within the EurAsEC, the responsibility for which is established by articles 2001, 2002, 2261 and 2291 of the Criminal Code, and any income from that property except for the property and income from it to be returned to the rightful owner.
In the present, the issues of confiscation of property are decided in detail in the Decree of the Plenum of the Supreme Court of the Russian Federation of April, 26, 2007, No.14 "On the Judicial Practice of Considering Criminal Cases on Infringement of Copyright, Allied Rights and Patent Rights, as well as on Illegal Use of Trademark", where the Plenum pays attention of courts to the fact that the turnover of counterfeit copies of works or phonograms violates copyright and allied rights protected by the Federal Law, as a result of which the specified copies of works or phonograms shall be subject to confiscation and destruction without any compensation (except a case of transferring the confiscated counterfeit copies of works or phonograms to the owner of copyright and allied rights, if it is provided by the effective Federal Law).
Moreover, it is noted in the mentioned Decree that in accordance with it."a", p.1, art.1041 of the Criminal Code, the courts must proceed from the fact that money, valuables and other property obtained as a result of the crimes provided by articles 146 and 147 of the Criminal Code, and any income from that property shall be confiscated except the property and income from it to be returned to the rightful owner.
The Plenum of the Supreme Court of the Russian Federation pays attention to the fact that based on the provisions of it."d", p.1, art.1041 of the Criminal Code, means and other instruments of committing a crime belonging to the accused person, in particular the equipment, other devices and materials used for reproduction of counterfeit copies of works or phonograms shall be subject to confiscation.3
And, finally, it is necessary to indicate the obligatoriness of judicial application of confiscation of property. In article 1041 of the Criminal Code confiscation of property is defined as forced gratuitous withdrawal without compensation of the property specified in the law and conversion to ownership of the State under a judgment. It means that in this case, the law performs a certain correlation as follows: there is a specific property determined by the law and it is subject to seizure. This is a mandatory requirement. Neither the specified article of the Criminal Code, nor the other norms of the Chapter 151 of the Criminal Code state on possibility of leaving the property defined by the law at the guilty person or other persons. Likewise, the criminal procedure law doesn't provide such a possibility. In this regard, we can say that confiscation of property is obligatory measure.
Article 1042 regulates the issues connected with confiscation of property in cases, when actual seizure of a spe-
3 Bulletin of the Supreme Court of the Russian Federation (in Russian). 2007, No.4, p.50.
cific item liable to confiscation is impossible for some reasons. The first thing is that the law links the impossibility of confiscation with a particular procedural point, i.e. with the moment of the court's decision on confiscation. Obviously, we deal with the fact that the court's decision on confiscation of property should be ensured and this provision shall be carried out at the stage before the decision on confiscation (articles 116, 220, 228, 230 of the Criminal Procedure Code). In such cases, the enforcement of the court's decision on confiscation of property is guaranteed to be executed.
In accordance with the law, the impossibility of seizure of the subject-matter of confiscation may be conditioned by any circumstances. Although the law calls such causes as the use of a specific subject-matter and its sale, this list is not exhausted, and therefore, the reason for the absence of the subject of withdrawal may be any. For example, the impossibility of confiscation may be due to the fact that the hardware owned by the perpetrator is used in the production, which will be impossible in the seizure of hardware, or a subject-matter of confiscation was sold, donated, lost, etc. In all these and similar cases the monetary equivalent of the subject-matter shall be liable to the confiscation. Of course, this rule doesn't apply to the items withdrawn from civil turnover or restricted in turnover.
Obviously, this approach to the issue of confiscation of property is quite loyal, because it guarantees, if not the seizure of the subject-matter of confiscation, at least its monetary equivalent. Essentially, the withdrawal of the appropriate monetary equivalent also means the confiscation of property and the achievement of its objectives.
Article 1043 of the Criminal Code establishes guarantees for the protection of the rights of the victims, who in the first place should be compensated for the inflicted harm. The concept "harm" is included into this article by the Federal law of December 25, 2008, No.280-FZ. Now this concept is used in the text, although its name involves the concept of damage. The purpose of the change of terminology is obvious: increase of the warranty rights of victims by expanding the range of objects, which must be compensated fot the harm caused by the crime, because the notion of harm is wider.
The law stipulates that the compensation of harm caused to the rightful owner must be carried out primarily at expense of the conditionally acquired property and only in the absence thereof, at expense of the property indicated in parts 1 and 2, article 1041 of the Criminal Code, i.e. the property obtained as a result of a crime or in connection with its commitment.
Thus, if a guilty person lacks other property, which may be levied, the harm caused to the rightful owner shall be compensated from its cost, and the remained part goes into the revenue of the State (except for the property described in parts 1 and 2, article 1041 of the Criminal Code).
Execution of confiscation of property is regulated by the Federal Law of October 2, 2007, No.229-FZ "On Enforcement Proceedings".
