Many lawyers have already called the draft law No. 4057 adopted on March 17, 2016 in the first reading as violating basic legal principles.
However, ordinary citizens are more interested in whether the amendments will affect them specifically. We would analyze the text of the draft law reviewed in the first reading.
Provisions on special confiscation are introduced in the Code of Criminal Procedure as a separate section 24-2 “Peculiarities of forfeiture of money, currency values, Ukraine’s government bonds, Ukraine’s treasury bills, precious metals, stones and income from them before passing a sentence”.
Before passing a sentence enforced collection may be imposed on the property in criminal proceedings for the following crimes (cited with reference to articles of the Criminal Code of Ukraine):
- taking possession, embezzlement or seizure of property through abuse of office, or repeatedly, or by previous concert of a group of persons, or on a large or especially large scale, or by a criminal organization (Art. 191(2-5);
- creation of a criminal organization (Art. 255);
- forgery by an official (Art. 368).
As part of criminal proceedings according to the above-mentioned articles the following owners of property may be subject to special confiscation:
- third parties, if the property was transferred to them by a suspect before “initiation” of criminal proceedings or pending it.
It follows from the above that special confiscation may affect not only the suspects, but also the innocent persons, including bona fide acquirers, i.e. those who did not know and could not know about illegal origin of the property. This circumstance is a great corruption risk and provides ample opportunities for abuse by law enforcement agencies and courts.
The said persons may be subjected to special confiscation only if:
- the suspect is hiding from the “investigating” bodies and court to evade criminal responsibility, is put on the wanted list (state, interstate, international) and has been on the wanted list for more than 6 months;
- the suspect, the accused died and criminal proceedings were closed (clause 5, Art. 284(1) of the Code of Criminal Procedure of Ukraine);
- consent of the state, which extradited the person, regarding the criminal offense has not been obtained and criminal proceedings were closed (clause 8, Art. 284(1) of the Code of Criminal Procedure of Ukraine).
I knowingly put some of the above concepts in italics, because they are absent in the Code of Criminal Procedure of Ukraine. Thus, since November 20, 2012 criminal proceedings are not “initiated”, but registered in the Unified State Register of Pre-Trial Investigations. “Investigating” bodies do not exist anymore, there are pre-trial investigation bodies. In addition, the “suspect” and the “accused” in criminal proceedings are different persons. It is enough to make a conclusion about the quality of the draft law.
With regard to the essence, if the text is not corrected before approval on the whole, some categories of persons can avoid special confiscation. For the sake of the defense party I will not give the whole list, just one sample: special confiscation will not be conducted legally if the person is declared wanted at the trial stage. At this moment the person is not the suspect, but the accused (defendant), i.e. Art. 297-6(4) of the Code of Criminal Procedure as worded in the draft law has a huge “hole”.