The draft law “On Specific Conditions of Special Property Confiscation” registered in the Parliament was already highlighted by the European Pravda. Critical findings of the editorial, namely that the draft law may lead to the opposite result, such as legalization of property of the previous government representatives in the European Court for Human Rights, outraged the authors of this document, whereas their supporters maintain that the draft law still corresponds to the European standards.
The draft law “On Specific Conditions of Special Property Confiscation” registered in the Parliament was already highlighted by the European Pravda. Critical findings of the editorial, namely that the draft law may lead to the opposite result, such as legalization of property of the previous government representatives in the European Court for Human Rights, outraged the authors of this document, whereas their supporters maintain that the draft law still corresponds to the European standards.
So it is time to present the position of lawyers.
An analysis of the draft bill was conducted by the Parliamentary Expert Group on European Integration (PEG), the impartiality of which would never raise doubts. The work of this expert group became possible owing to financing by the international donors; the experts analyze the draft bills submitted by the Members of Parliament and look for provisions that may hinder the process of the European Integration of Ukraine, or, vice versa, confirm that a particular bill is “European”.
The draft bill submitted by Tetyana Chornovol and Oleg Barna could not escape the experts’ attention.
The European Pravda publishes the text of experts’ opinion.
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No one is in doubt regarding the need to return the stolen property to the country.
However, numerous promises of the current government to return to the state the property stolen by former President Victor Yanykovych and his entourage, still remain empty words.
In this situation the appearance of radical initiatives is not surprising at all. One of them was registered in the Verkhovna Rada.
The draft bill No. 3025 offers to introduce specific conditions of special confiscation of funds and/or other property of the former President Victor Yanukovych, who was removed from the office, as well as a number of former government officials and businessmen: Mykola Azarov, Sergei Arbuzov, Alexandr Klimenko, Sergei Kurchenko and some others, with regard to which there are grounds to believe that they are directly or indirectly associated with financial abuses and corruption.
First of all, let us recall Article 14 of the Constitution of Ukraine, which cannot be changed by ordinary laws. According to it, “No one may be unlawfully deprived of property rights. The right to private property is infrangible.
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“Confiscation of property may be applied only by court in cases, to the extent and in the manner prescribed by law”. |
I.e., in our assessment of the parliamentary initiative we proceed from the fact that the presence of the court decision shall be a prerequisite for confiscation of property.
What does the term “special property confiscation”, which appears in the draft bill, mean?
Under Article 96-1 of the Criminal Code of Ukraine, “Special confiscation shall deem a compulsory uncompensated expropriation by court of money, valuables and other property to be transferred to the state ownership in cases stipulated by this Code”.
An equally unambiguous interpretation is now contained in Article 100 of the Criminal Procedure Code of Ukraine. According to this Article:
When a decision is made on special confiscation, in first place the question shall be solved on restitution of money, valuables and other property to its owner (rightful holder) and/or compensation of damages cause by a criminal offense.
The use of procedure on special confiscation shall be applied only after proving in court by the prosecution that the owner (rightful holder) of money, valuables and other property knew of their illegal origin and/or use.
Thus, the confiscation of property is a penalty that may be set only by court.
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However, this is completely contrary to the idea of the draft law submitted. |
Authors of the draft bill – Tetyana Chornovol and Oleg Barna – try to ignore this clearly stated provision by referring to the document of a higher power, that is the United Nations Convention against Corruption ratified by Ukraine in 2006.
It is logical in a sense that the international obligations, to which Ukraine committed, shall be carried out even if they contradict the national legislation.
Members of Parliament remind that under Article 54 of the aforementioned Convention, the states shall have the right “to consider taking such measures as may be necessary to create an opportunity for the forfeiture of the property (acquired in a crime) without a sentence in criminal proceedings if the offender cannot be prosecuted for the reason of death, abscond or absence, or in other relevant cases.”
Indeed, the fact of hiding of the aforementioned former top officials in Russia obstructs the court, and, consequently, the return of their property to the state.
Therefore, based on Article 54 of the United Nations Convention against Corruption, it would be possible to ignore the provisions of the civil, criminal and criminal procedure law.
However, there is an important nuance which was ignored by the authors of the draft law.
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This approach may not be applied to the Constitution of Ukraine. |
Part two of Article 9 of the Constitution contains the general provision: “The conclusion of international treaties that contradict the Constitution of Ukraine shall be possible only after appropriate amendments to the Constitution of Ukraine“. With regard to this there is a statement of the plenary assembly of the Supreme Court of Ukraine in its Resolution “On application of the Constitution of Ukraine in the administration of justice” adopted in 1996: “International treaties shall be applied if they do not contradict the Constitution of Ukraine.”
Thus, international treaties do have a higher power than the legislation of Ukraine, as the authors of the draft bill indicate, however, not higher that the Constitution of Ukraine.
And the last fact completely upsets the reasoning of the legislators.
This could end the analysis, however, given the importance of this topic, let us look further what the European legislation says about that.
In the European Union in 2014 the Directive 2014/42/EU of the European Parliament and the European Council was adopted on the freezing and confiscation of means of crime and proceeds of crime in the European Union.
The Directive establishes minimal rules without prejudice to the national procedures to be applied by Member States for the specified confiscation.
The document defines the term “confiscation” as the permanent deprivation of property by the court in connection with a criminal offense. That is the definition of the concept also includes such a prerequisite, as participation of the court and adoption of the court decision, and not any other document, for the procedure of confiscation.
If the confiscation under a final conviction is impossible, in case of illness or an absconding suspect or accused person, Member States shall take measures to facilitate such forfeiture, namely in cases where criminal proceedings were started against the relevant criminal offenses and in cases when such proceedings could lead to a criminal charge, were a suspect or an accused person available to stand the trial.
However, in case of illness or abscond, the existence of procedures of absentia conviction should be sufficient to meet the obligations imposed by the Directive.
Thus, Member States shall take all appropriate measures and may require a relevant person be summoned, or bring to their attention the information on the confiscation procedure. Also the document provides guarantees to individuals, who may be affected by the measures taken under this Directive, in particular, regarding their right to compensation and a fair trial with the purpose of maintaining their rights.
In summary, the European standards, which Ukraine wants to take over, do not allow confiscation without a court decision either.
At the same time the Ukrainian legislation has a possibility of adoption of court decisions under conditions of abscond of accused persons.
I.e., escape of the former government officials to the Russian Federation does not make the confiscation of their property impossible. You only need to strictly adhere to the procedure established by law.
This is a rather long way but only in this way it is possible to reach the goal.
Instead, attempts to reinvent the wheel, seeking openings that could allow ignoring the legislation, would hardly bring a solution that would be recognized as legal.
Authors of analysis:
The Parliamentary Expert Group
Source: European Pravda
