Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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Cues tio nes Po lí ti cas
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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Vol. 39, Nº 68 (Enero - Junio) 2021, 824-843
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 12/10/2020 Aceptado el 28/12/2020
Special Conscation as a Measure of
Criminal Law under Ukrainian Legislation
DOI: https://doi.org/10.46398/cuestpol.3968.54
Tetiana Nikolaienko *
Viktoria Babanina **
Tetiana Bohdanevych ***
Abstract
Through a documentary methodology the article is devoted
to the study of special conscation as a measure of criminal
law, which was introduced in Ukrainian legislation on the path
of transformation and reform in the institution of conscation
of property. The study found that the emergence of a special
forfeiture was mainly dictated by Ukraine’s choice of European
integration and the need to full its obligations to bring domestic
criminal law into line with European standards and international legal
practice in the ght against crime. The article discusses the provisions of
criminal law on the regulation of special conscation as another measure of
criminal law and considers the main problematic aspects of this institution
in the doctrine of Ukrainian criminal law. The correlation between general
conscation and special conscation was revealed in the article. It was
concluded that these two types of seizures are different in a legal nature.
The conscation of property is a type of additional punishment and, the
special conscation of property is an independent type of other measures of
the nature of criminal law.
Keywords: conscation; conscation of property; property rights;
criminal law in Ukraine; crime.
* Lieutenant-colonel of justice, Doctor of Sciences in Law, Associate Professor, Professor of the Criminal
Law and Criminal Procedure Department of the National Academy of the State Border Guard Service
of Ukraine named after Bohdan Khmelnytskyi, Khmelnytskyi, Ukraine. ОRCID ID: https://orcid.
org/0000-0002-4587-2561.
** Professor of Criminal Law Department of the National Academy of Internal Affairs, PhD in Law,
Associate Professor, Kyiv, Ukraine, ОRCID ID: https://orcid.org/ORCID/0000-0003-4173-488Х.
*** Leading Researcher of the National School of Judges of Ukraine, Kyiv, Ukraine. ОRCID ID: https://
orcid.org/0000-0002-0669-2517.
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Decomiso especial como medida de derecho penal en
la legislación ucraniana
Resumen
Mediante una metodología documental el artículo se dedica al estudio
de la conscación especial como medida de derecho penal, que se introdujo
en la legislación de Ucrania sobre el camino de la transformación y la
reforma en la institución de conscación de bienes. El estudio encontró que
la aparición de un decomiso especial estaba dictada principalmente por la
elección de Ucrania de la integración europea y la necesidad de cumplir
con sus obligaciones de poner el derecho penal interno en consonancia
con las normas europeas y la práctica jurídica internacional en la lucha
contra la delincuencia. El artículo analiza las disposiciones de la legislación
penal sobre la regulación del decomiso especial como otra medida del
derecho penal y considera los principales aspectos problemáticos de esta
institución en la doctrina del derecho penal de Ucrania. La correlación
entre la conscación general y el decomiso especial se reveló en el artículo.
Se concluyó que estos dos tipos de decomisos son diferentes en naturaleza
jurídica. La conscación de bienes es un tipo de castigo adicional y, la
conscación especial de bienes es un tipo independiente de otras medidas
de naturaleza de derecho penal.
Palabras clave: decomiso especial; conscación de bienes; derechos de
propiedad, derecho penal en Ucrania; crimen.
Introduction
In accordance with the basic principle of protection of property rights,
enshrined in Art. 41 of the Constitution of Ukraine, everyone has the right
to own, use and dispose of their property and no one can be unlawfully
deprived of property rights. However, Ukrainian law allows for the
restriction of property rights if the interests of society or the state require
such a restriction. It is allowed, in particular, by conscation of property
(Part 6 of Article 41 of the Constitution of Ukraine, 1996). Thus, recognizing
the importance of the development of property relations, the legislator,
however, clearly and unequivocally recognizes the right of the state to
intervene in these relations within certain limits.
One of the main conditions for Ukraine’s membership in the EU is the
adaptation of its national legislation to the law of the European Union.
Given the new threats and challenges of the modern criminal environment,
the international community and some countries around the world are
implementing new non-traditional measures to combat the most dangerous
crimes, including conscation. In this regard, Ukraine is obliged to create
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Tetiana Nikolaienko, Viktoria Babanina y Tetiana Bohdanevych
Special Conscation as a Measure of Criminal Law under Ukrainian Legislation
an effective regulatory framework and systematically improve the relevant
regulations that guarantee the inviolability of property rights, as well as
clearly dene the limits of permissible (reasonable) state intervention in
the sphere of free property ownership.
One of the measures within the framework of adaptation of the legislation
of Ukraine to the law of the European Union was the introduction of the
institution of special conscation in the criminal legislation of Ukraine. Such
implementation was carried out by the Law of Ukraine “On Amendments
to the Criminal and Criminal Procedure Codes of Ukraine regarding the
implementation of the Action Plan on visa liberalization by the European
Union for Ukraine” of April 18, 2013 (Verkhovna Rada, 2014). This was
denitely a positive step towards adapting domestic legislation to EU law.
However, the legislation governing special conscation is still imperfect
and therefore needs additional attention.
1. Analysis of resent research and methodology.
The purpose of the paper is to study the legal regulation of special
conscation as another measure of criminal law, as well as to address
debatable issues to determine the criminal nature of the institution of
special conscation, its place in the system of criminal law of Ukraine and
peculiarities of its application.
To achieve the purpose of the paper, general and special scientic research
methods were used in the study. The formal-legal method (dogmatic)
was used during the legal analysis of the provisions of the Criminal Code
of Ukraine, which regulate the concept of «special conscation» and
cases of its application. To establish the content of certain criminal law
concepts (for example, «conscation of property», «special conscation»,
«measures of criminal law nature»), the hermeneutic method was used.
When comparing domestic and foreign criminal law on the rules governing
special conscation, as well as in clarifying the similarities and differences
between conscation of property as a form of punishment and special
conscation as another measure of criminal law, the comparative legal
method was used.
The historical method was used to study the patterns of origin and
development of the provisions governing special conscation in the current
criminal law of Ukraine. The method of systematic analysis was used to
distinguish special conscation as another measure of criminal law nature
from conscation of property as a type of punishment.
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2. The concept and types of conscation under the legislation
of Ukraine
Conscation as a type of additional punishment is used in Ukraine in
administrative and criminal law. According to Art. 59 of the Criminal Code
of Ukraine, conscation of property is established for serious and especially
serious mercenary crimes and may be imposed only in cases specically
provided for in the Special Part of this Code (Verkhovna Rada, 2001).
According to Art. 96-6 of the Criminal Code of Ukraine, conscation of
property as an additional measure of a criminal nature may be applied to
legal entities.
Conscation as an administrative penalty is provided by Art. 24, 29 of
the Administrative Code of Ukraine (Verkhovna Rada, 1984) and consists in
the forced gratuitous transfer of an object that has become an instrument of
commission or a direct object of an administrative offense in the ownership
of the state by court decision. In this case, conscation can be applied as
a basic and additional penalty. Conscation as an administrative sanction
can be applied only to individuals. In order to conscate property in
administrative proceedings, it is necessary that such a sanction be expressly
provided for in the relevant article of the Administrative Code of Ukraine,
and the case be considered by a court.
Civil conscation, sometimes called the recovery of unjustied (illegal)
assets, appeared in the Civil Procedure Code of Ukraine (Verkhovna
Rada, 2004) with the adoption of the Law of Ukraine “On Amendments
to Certain Legislative Acts of Ukraine Concerning Ensuring the Activities
of the National Anti-Corruption Bureau of Ukraine and the National
Agency for the Prevention of Corruption” of February 12, 2015 (Verkhovna
Rada, 2015), which provided that the claim for unfounded assets and their
recovery from persons is led in the interests of the state by the prosecutor
within the statute of limitations from the date of entry into force of the
conviction against a person authorized to perform state functions or Local
Government.
Thus, the recognition of assets as unfounded and their recovery in favor
of the state in civil proceedings is already provided by current procedural
law but is possible only after establishing the guilt of a person in a crime
and a court conviction in these circumstances.
The Criminal Code of Ukraine denes conscation of property as the
forced gratuitous seizure of all or part of the property that is the property of
the convict (Part 1 of Article 59 of the Criminal Code of Ukraine).
Based on the legislative denition of conscation of property (Article 59
of the Criminal Code), some scholars identify the following features of the
conscation:
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Tetiana Nikolaienko, Viktoria Babanina y Tetiana Bohdanevych
Special Conscation as a Measure of Criminal Law under Ukrainian Legislation
1) forced conscation of property in favor of the state, i.e. regardless of
the will of its owner;
2) gratuitous seizure of all or part of the property by the state.
3) only the property or its part specied in the court verdict is subject to
seizure.
4) is applied by the court only to the convicted person.
5) is appointed only in cases specically provided for in the Special Part
of the Criminal Code of Ukraine.
6) applies to a person who has committed a serious or particularly
serious mercenary crime, or a crime against the foundations of
national security of Ukraine or public security, regardless of their
severity (Grigorieva and Pavlovskaya, 2014).
However, the attribution of the condition (type of crime) and the
order of its appointment (if provided for in the sanction) to the signs of
conscation of property seems inexpedient, as they do not reect the legal
nature, essence of this measure as a type of punishment.
Other scholars suggest that the conscation of property should be
understood as a restriction of the convict’s right to property by turning the
property belonging to him or her into state ownership. Among the features
that characterize it, scientists include:
1) use for committing a crime.
2) only by the court.
3) in cases specically provided by law.
4) compulsorily.
5) restriction (termination) of the right of ownership by gratuitous
application to the state property.
6) applies to property belonging to the offender on the right of ownership
(Ponomarenko, 2009).
Conscation of property is also dened as a compulsory deprivation of
a person of the right of ownership of illegally owned, used or transferred
property, as a sanction for the commission of a crime imposed by a court
decision (Sobko, 2008). However, this denition raises some doubts,
in particular the position of the author on the existence of ownership of
illegally owned, used or transferred property. Signs of conscation in this
approach include:
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1) coercion.
2) free of charge.
3) active withdrawal actions.
4) directing property to state property.
5) restriction of the right of ownership due to a person on the basis of a
court decision.
Conscation of property is a type of punishment, so it has all the features
that are characteristic of this measure of state coercion.
Punishment is one of the legal consequences of committing a crime.
From the point of view of the guilty punishment is a consequence of the
act committed by them, from the point of view of the state - a measure
taken as a result of the act committed by the guilty (Tagantsev, 2001). As a
socio-legal phenomenon, the concept of “punishment” is characterized by a
historically changing nature. The genesis of the development of ideas about
its content shows that their evolution depends entirely on society itself,
its ideology, culture, morality, and choice of means of combating crime
(Yushchyk, 2014). Changing the moral and legal parameters of society
affects the understanding of the content of punishment, its purpose, system
and types. That is why the concept of punishment must correspond to the
modern living conditions of society, the existing political, economic, social
relations, moral norms and values.
Thus, conscation of property as a form of punishment is a coercive
measure applied on behalf of the state by a court sentence to a person
convicted of a crime. It consists in the forced deprivation of ownership of
specic property acquired legally and the transfer it is owned by the state
(Bidna, 2017).
Other cases of conscation that are not criminal penalties and are
therefore called special types of conscation should be distinguished from
conscation of property as a type of criminal punishment (Skrypnyk,
2010). In accordance with Art. 96-1 of the Criminal Code of Ukraine, special
conscation consists in compulsory gratuitous seizure by court decision of
state property, money and other property in cases specied by this Code,
subject to the commission of a crime under Article 354 and Articles 364,
364-1, 365- 2, 368 - 369-2 of Section XVII of the Special Part of this Code,
or a socially dangerous act that falls under the signs of an act provided for
in these articles.
According to Art. 96-2 of the Criminal Code of Ukraine, special
conscation is applied if the money, valuables, and other property:
830
Tetiana Nikolaienko, Viktoria Babanina y Tetiana Bohdanevych
Special Conscation as a Measure of Criminal Law under Ukrainian Legislation
1) received as a result of a crime and / or are income from such property.
2) were intended (used) to persuade a person to commit a crime, to
nance and / or provide material for a crime or to be rewarded for its
commission.
3) were the subject of a crime, except for those that are returned to
the owner (legal owner), and in the case when it is not established -
become the property of the state.
4) were found, manufactured, adapted, or used as means or instruments
of committing a crime, except for those returned to the owner (legal
owner), who did not know and could not have known about their
illegal use.
As a result of the study of various types of conscations provided by
criminal law of Ukraine as special types of criminal inuence, several
conclusions can be drawn.
First, today the criminal law of Ukraine regulates the following types of
criminal conscation:
1) conscation of property as an additional punishment (Articles 52, 59
of the Criminal Code of Ukraine);
2) conscation, which is directly dened in the sanctions of the
articles of the Special Part of the Criminal Code of Ukraine - special
conscation provided for in the Special Part of the Criminal Code of
Ukraine.
3) special conscation determined by the General Part of the Criminal
Code of Ukraine (Articles 96-1, 96-2 of the Criminal Code of Ukraine);
4) conscation of property as a measure of a criminal nature against
legal entities (compulsory free seizure of state property of a legal
entity, which will be applied by the court in case of liquidation of a
legal entity under the Criminal Code of Ukraine) (Articles 96-6, 96-8
of the Criminal Code of Ukraine).
Secondly, taking into account the system of criminal law measures
developed in the criminal law of Ukraine, conscation of property as a type
of punishment is attributed to coercive punitive criminal law measures;
special conscation provided for in both the General and Special Parts of
the Criminal Code of Ukraine - to coercive non-punitive other criminal
measures; conscation of property of a legal entity - to a certain type of
coercive criminal measures applied to a legal entity.
Third, the analysis of the legislation of foreign states has shown that
states have different approaches to determining the types of conscation.
Some recognize as punishment the general conscation, i.e. compulsory
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gratuitous conversion in favor of the state of property belonging to the
convict, which is in no way connected with the committed crime (the
Republic of Belarus, the Republic of Bulgaria, the Republic of Armenia,
the Republic of Kazakhstan) (Lipinsky and Musatkina, 2019). These states
consider the conscation of property to be a punishment that is applied only
as an additional, it does not apply to minors. Article sanctions are set either
as a mandatory or as an optional additional punishment. The criminal law
of some of the considered states of this group, along with the conscation
of property as a form of punishment, also provides for special conscation,
which is not considered a punishment (Wassmer, 2019).
The legislation of the second group of states allows only special
conscation as punishment - forced gratuitous conscation of specic types
of property determined by law, which are somehow (directly or indirectly)
related to the crime, objects of crime, tools and means of committing
the crime, criminally obtained property, dangerous and harmful items,
etc.). These are Belgium, the Republic of Korea, the Netherlands, Japan
(Kozachenko and Zinevych, 2015).
3. Legal nature of special conscation
According to the current criminal legislation of Ukraine, special
conscation consists in the forced gratuitous conscation of money,
valuables, and other property by a court decision in the cases specied by
this Code, subject to the commission of an intentional crime or socially
dangerous act falling under the provisions of the Special part of this Code,
for which the main punishment in the form of imprisonment or a ne of
more than three thousand non-taxable minimum incomes.
In accordance with Part 2 of Art. 96-2 of the Criminal Code of Ukraine,
if the money, valuables, and other property referred to in paragraph 1 of
part one of this article, were fully or partially converted into other property,
special conscation is subject to fully or partially converted property. If the
conscation of money, valuables and other property referred to in paragraph
1 of part one of this article, at the time of the court’s decision on special
conscation is impossible due to their use or impossibility of separation
from legally acquired property, or alienation, or for other reasons, the court
makes decision on the conscation of a sum of money corresponding to the
value of such property.
In addition to conscation of money, valuables and other property
from a person who committed an intentional crime or socially dangerous
act (Part 1 of Article 96-1 of the Criminal Code of Ukraine), the content
of special conscation also includes conscation of money, valuables and
other property from a third party (Part 4 Article 96-2 of the Criminal Code
of Ukraine) and conscation of property withdrawn from civil circulation
(Part 3 of Article 96-1 of the Criminal Code of Ukraine).
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Tetiana Nikolaienko, Viktoria Babanina y Tetiana Bohdanevych
Special Conscation as a Measure of Criminal Law under Ukrainian Legislation
Thus, the essence of special conscation, as another measure of criminal
law nature, is the forced and gratuitous conscation of property. Property
(money, valuables) is conscated in cases specied by the Criminal Code
of Ukraine, provided that the person commits an intentional crime or a
socially dangerous act that falls under the signs of a crime.
That is, such a person can be: either a subject of a crime, or a person who
does not have the characteristics of a subject of a crime (a person who has
not reached the age of criminal responsibility or an insane person).
Based on the above, we can identify those signs of special conscation,
which characterize it as a measure of criminal law.
First, special conscation consists in the forcible conscation of
property, i.e. such property is conscated against the will of the person.
Seizure of property in case of special conscation is free of charge, which
means that the person does not receive any compensation.
In addition, the seized property becomes the property of the state, i.e.
the further fate of the seized property is decided by the state. It is the state
that has the right to decide the future fate of such property: to send it to
the state budget or, for example, to transfer it to the fund for assistance to
victims of crime.
The subject of special conscation, as seen from the text of the legislative
provisions of Art. 96 -1 and Art. 96-2 of the Criminal Code of Ukraine may
be:
1) property obtained as a result of a crime (or acts that contain elements
of a crime);
2) property that was intended (used) to persuade a person to commit a
crime, to nance and / or materially support a crime or to reward it
for its commission.
3) means or instruments of committing a crime that have been found,
manufactured, adapted or used to commit a crime, except for those
that are returned to the rightful owner.
It should be noted that to denote the subject of special conscation, the
legislator uses not only the concept of property, but also the phrases “money,
valuables” and the concept of “other property”. Thus, the scope of special
conscation is not limited to certain things of the material world or their
totality, but also extends to property rights. This is due to the provisions of
Part 1 of Art. 190 of the Civil Code of Ukraine, according to which property
as a special object is a separate thing, a set of things, as well as property
rights and obligations (Verkhovna Rada, 2003). In addition, under Article
2 (d) (d) of the UN Convention against Corruption, “property” means any
assets, tangible or intangible, as well as legal documents or assets proving
ownership of such assets, or their interests (United Nations, 2003).
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An important feature of property as a subject of special conscation,
which essentially distinguishes the latter from conscation of property as
punishment is the connection of such property with the crime (or actions of
a person containing signs of crimes under the relevant articles of the Special
Part of the Criminal Code of Ukraine) (Vynnyk, 2016). Legal analysis of Art.
96-1 and Art. 96-2 of the Criminal Code of Ukraine makes it possible to say
that the connection of the subject of special conscation with the crime is
manifested in four ways, in particular:
1) money, valuables and other property obtained as a result of the crime
and / or income from such property.
2) were intended or used to persuade a person to commit a crime, to
nance and / or provide material support for a crime or to reward it.
3) were the subject of a crime, except for those returned to the rightful
owner.
4) have been found, manufactured, adapted, or used as means or
instruments of committing a crime, except for those returned to the
rightful owner.
Money, valuables, and other property are also subject to conscation if
they were the subject of a crime and must be returned to the owner. Thus,
the legislator establishes an important provision that the object of the
crime (money, valuables, other property) is always returned to the rightful
owner. In case the owner can’t be found, the property becomes the property
of the state. Such a change in the legal nature of the seizure of property
from special conscation to the transfer of state ownership has the effect of
leaving the owner a legal opportunity to demand the return of this property
in civil law (Melnyk and Khavronyuk, 2007).
The next essential feature of special conscation is the possibility of its
appointment by a decision or ruling of the court. At the same time, this
property of special conscation refers to the order of appointment of this
measure rather than expresses its essence.
From the legislative denition of special conscation directly follows its
feature as a warning, non-punitive nature of the latter. Special conscation
is essentially a measure of inuence on a person who has committed a crime
or socially dangerous act provided by the Criminal Code of Ukraine, which
aims not to restrict the rights or freedoms, but to stop criminal activity,
restore social justice and prevent new crimes.
The above properties of special conscation make it possible to argue
that it is a criminal measure of inuence by the state on the person who
committed the crime, and therefore it justiably nds its place in the
system of criminal law (Trinchera, 2020). The content of this measure is
to take away from the person and withdraw from the state revenue all the
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Tetiana Nikolaienko, Viktoria Babanina y Tetiana Bohdanevych
Special Conscation as a Measure of Criminal Law under Ukrainian Legislation
benets and material values received from the crime, regardless of their
transformation, which in turn makes the crime unprotable for the person,
deprives him or her of the opportunity to receive from it any material
benets. Given that the property conscated from a person by special
conscation is criminal in nature, it is impossible to speak of deprivation
or restriction of such a person’s property rights, and therefore there is no
element of suffering of a person from such seizure.
That is, special conscation is justiably placed by the legislator in the
system of non-punitive measures of criminal law inuence and is dened as
a measure of criminal law nature (Minyazeva, 2019).
The above makes it possible to formulate the denition of the concept
of special conscation as a coercive, gratuitous measure of a criminal
nature, which is applied to a person for intentionally committing a socially
dangerous act under the Criminal Code of Ukraine. The aim of such
measure is to deprive a person of any property benets obtained as a result
of the commission of a crime (regardless of the transformations that have
undergone these benets). Special conscation aims to stop a person’s
criminal activity, restore social justice and prevent the commission of new
crimes.
Special conscation is a non-punitive measure of criminal law, and
therefore its regulation should not be limited to procedural rules, which are
a secondary regulator of public relations and provide rules and procedures
for implementing substantive law. From the point of view of the criminal-
legal essence of special conscation, its main purpose is not related to the
provision of material evidence in criminal proceedings (Polyakov, 2016),
while in the criminal procedural aspect special conscation by its legal
nature is one of the ways to resolve the role of material evidence.
4. Types of special conscation
Given the recent changes in the criminal legislation of Ukraine, special
conscation as a criminal measure can be divided into special conscation,
dened by the General Part of the Criminal Code of Ukraine and special
conscation, which is provided in the Special Part of the Criminal Code of
Ukraine.
The special conscation provided for in the General Part of the Criminal
Code of Ukraine consists in the forced free conscation of money, valuables
and other property by a court decision in cases specied by the Criminal
Code of Ukraine, subject to the commission of a crime under Article 354
and Articles 364, 364-1, 365 -2, 368–369-2 of Section XVII of the Special
Part of the Criminal Code of Ukraine, or a socially dangerous act that falls
under the signs of an act provided for in these articles.
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Special conscation provided for in the Special Part of the Criminal Code
of Ukraine is a set of techniques and methods of criminal inuence, which
is applied by the court at the same time as sentencing, to the person who
committed the crime (criminal offense), in order to prevent future acts.
This type differs from the previous type of special conscation by the
following:
1) this measure is applied only on condition of commission of a crime
(criminal misdemeanor) and at commission of objectively illegal act.
2) the subject of application is exclusively a convicted person, in contrast
to the special conscation dened in the General Part of the Criminal
Code of Ukraine where the subjects are also the suspect, accused and
other persons who perform various procedural roles.
3) the subject of special conscation provided for by the Special Part
of the Criminal Code of Ukraine may be not only money, valuables,
or other property, but also items that do not have some features of
property.
4) the specied conscation is applied exclusively by a court verdict,
which excludes the possibility of registration by other procedural
decisions.
5) in contrast to a similar criminal law measure provided for in the
General Part of the Criminal Code of Ukraine, this measure may be
applied on both dispositive and imperative grounds, depending on
whether the legislator recognizes special conscation mandatory or
grants the court the right, taking into account the circumstances crime
and the specics of the subject of special conscation, to decide on
the application of special conscation at its discretion (Kozachenko
and Zinevych, 2015).
5. Differences between conscation and special conscation
By legal (legal) nature, general conscation is provided by Art. 59 of
the Criminal Code of Ukraine and is a type of additional punishment (see
Part 2 of Article 52 of the Criminal Code of Ukraine), which is part of the
system of penalties provided by the Criminal Code of Ukraine. By its nature
and specics of restrictions on the rights and freedoms of the convict,
conscation of property belongs to the group of property penalties such as
nes, correctional labor, service restrictions for servicemen. Conscation of
property is a means of state coercion applied by a court sentence to a person
who has committed a crime and meets the criteria of criminal punishment,
namely:
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Special Conscation as a Measure of Criminal Law under Ukrainian Legislation
1) is appointed only for the crime committed by a court sentence.
2) is a punishment for a crime committed and causes the convict certain
suffering, restrictions.
3) included in the exhaustive list of types of punishment (Polyakov,
2016).
As for special conscation (Article 96-1 of the Criminal Code of Ukraine),
by its legal nature it refers to other (than punishment) measures of criminal
law nature, as it is not included in the list of punishments (Article 51 of the
Criminal Code of Ukraine).
Thus, at rst glance, the basic difference between conscation of property
as punishment and special conscation as another measure of a criminal
law nature is that these two measures of inuence are different in their
legal nature. The rst is an additional type of criminal punishment, which
is enshrined in the rules of criminal law, has its own specic features in the
system of additional punishments and features of application. While special
conscation is not a criminal punishment but refers to other measures of a
criminal law nature and has its own specic features (Munoz, 2019).
However, the difference between these measures is conrmed not
only by the location of the rules governing these two categories, but also
by the features that characterize them and determine their content. Thus,
conscation of property as an additional type of criminal punishment has
the following features:
1) seizure of property from a person who has committed a crime and is
the subject of a crime.
2) the property of a person convicted of a crime is conscated, i.e.,
despite the will of the convict.
3) such seizure is gratuitous, i.e., the convict is not compensated in any
way for the seized property (some scholars also attribute the nality
of seizure of such property to the signs of conscation of property as
punishment).
4) only property owned by the convicted person is conscated, including
his or her share in joint ownership, as well as shares, deposits of the
convict in a bank, etc. (Yatsenko, 2002). Replacement of conscated
property for an equivalent amount of money is not allowed (Melnyk
and Khavronyuk, 2007).
5) the property to be conscated becomes the property of the state,
i.e. the further fate of the conscated property is decided by the
authorized state bodies.
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As for the special conscation of property (Article 96-1 of the Criminal
Code of Ukraine), it is also characterized by such features as conscation
of property, i.e. its seizure from a person who is forced and gratuitous. At
the same time, the property related to the crime is conscated from the
person. That is, the main difference is that when applying conscation of
property as a form of punishment, the property is the property of the guilty
person, and therefore, such a person legally owns such property. Whereas,
in the case of special conscation, the property to be conscated is not the
property of the person in whose possession it was, the person has no rights
to such property.
It should be noted that in the case of general conscation, property is
conscated from the subject of the crime, who is found guilty by a court
conviction, and the sanction of a crime committed by such a person provides
directly or optionally the possibility of conscating such property.
That is, conscation of property (Article 59 of the Criminal Code of
Ukraine) can be ordered only on the basis of a court conviction and only in
cases clearly dened by law. In this case, based on the interpretation of the
provisions of Art. 98 of the Criminal Code of Ukraine conscation cannot
be applied to minors (Melnyk and Khavronyuk, 2007), i.e. to persons who
have not reached the age of criminal responsibility.
Instead, the application of special conscation is not limited to a court
decision in a case. According to the provisions of Part 2 of Art. 96-2 of the
Criminal Code of Ukraine, it may be applied on the basis of:
1) a court conviction.
2) court rulings on the release of a person from criminal liability.
3) court rulings on the application of medical measures.
4) court rulings on the application of coercive measures of an educational
nature.
In addition, as a type of additional punishment, conscation of property
applies only to the subject of the crime, i.e. such a person must meet all the
characteristics of the subject of the crime, as required by criminal law. As
for the special conscation, it can be applied both to the subject of the crime
and to other persons. Special conscation applies to:
1) a person who is not subject to criminal liability in connection with
reaching the age from which he may come.
2) an insane person.
3) a person who is released from criminal liability or punishment on the
grounds provided by the Criminal Code of Ukraine, except in cases of
exemption from criminal liability in connection with the expiration
of the statute of limitations.
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Tetiana Nikolaienko, Viktoria Babanina y Tetiana Bohdanevych
Special Conscation as a Measure of Criminal Law under Ukrainian Legislation
4) a third party (Part 4 of Article 96-2 of the Criminal Code of Ukraine).
As can be seen from the analysis of the above legislative provisions,
special conscation applies to a fairly wide range of persons related to the
objects of conscation. This approach of the legislator conrms the thesis
about the possibility of applying certain measures to inuence not only
the identity of the offender, but also others. It must be acknowledged that
the legislator clearly lists these persons, dening their features and, thus,
limiting the spread of special conscation to other persons. Thus, it can
be argued that the range of persons to whom special conscation applies
is much wider than the conscation of property, which applies only to the
subject of the crime (Sagrado, 2019).
The next distinguishing feature of conscation of property (Article 59 of
the Criminal Code of Ukraine) and special conscation (Article 96-1 of the
Criminal Code of Ukraine) are the purposes of their application. Indeed,
the use of conscation of property as an additional type of punishment, as
follows from the text of Art. 59 of the Criminal Code of Ukraine, aims not
only at punishment, but also at correction of the convict, and also prevention
of commission of new crimes both by the convict, and other persons. That
is, conscation of property as a form of punishment pursues such a goal as:
1) punishment (its main purpose - the restoration of social justice)
(Moskovoy, 2011). By its nature, punishment has a repressive nature
(intimidation, retribution for a crime);
2) correction, i.e. such changes in the convict’s personality when he is
deprived of negative traits and attitudes that can lead to readiness
for socially dangerous and illegal behavior, and encourage proper
behavior, respect for the rules and traditions of human coexistence
(Melnyk and Khavronyuk, 2007);
3) prevention of committing a new crime by convicts. In science, such
actions are called “special prevention”, which means the desire of the
legislator to warn the person about the inadmissibility of criminal
behavior in the future, i.e. special prevention is aimed directly at the
person of the offender;
4) prevention of crimes by other persons (general prevention), aimed at
deterring others from committing crimes by punishing a particular
person (Fesenko, 2012).
In turn, special conscation plays a precautionary role, aimed at stopping
a person from committing a crime, preventing him from committing
new crimes and restoring social justice. Thus, the seizure of any material
property obtained as a result of a crime, i.e. property acquired by criminal
means, not only makes the commission of such a crime unprotable for a
person, but to some extent restores social justice. Conscation of weapons
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or means obtained as a result of a crime or simply used for the purpose
of committing a crime deprives a person of the opportunity to commit
new crimes. It should be emphasized that the deprivation of a person of
property by special conscation cannot be considered to contain elements
of punishment. The right to such property does not penetrate into a person,
and therefore it is impossible to speak about deprivation or restriction of the
property right of such person. That is, the purpose of special conscation
is to stop a person’s criminal activity, restore social justice and prevent the
commission of new crimes.
The next criterion for distinguishing between special conscation
and conscation of property as a type of punishment is the conditions of
application of these measures.
In particular, as a type of additional punishment, conscation of property
is imposed for the commission of serious and especially serious mercenary
crimes, as well as for crimes against the foundations of national security of
Ukraine and public safety, regardless of their severity. That is, conscation
of property is applied only in cases specically provided for in the sanction
of the article of the Special Part of the Criminal Code of Ukraine, which
provides for a crime for which a person is prosecuted.
As for special conscation, the latter is used not only for the commission
of crimes by a person, but also socially dangerous acts that are not a crime.
Thus, the legislator in Art. 96-1 of the Criminal Code of Ukraine clearly
denes for which crimes or acts that fall under the signs of a crime under
the Special Part of the Criminal Code of Ukraine, conscation is applied to
a person as another measure of a criminal nature.
Conscation of property as a punishment and special conscation as
another type of criminal law also differ in the consequences of their use.
As an additional type of punishment, conscation of property cannot be
applied independently, it is always attached to the main punishment. With
the application of punishment, a person acquires the status of a criminal
record.
In its content, a criminal record is a legal status of a person that arises
in connection with his or her conviction to criminal punishment and under
the conditions specied in the law is characterized by the occurrence of
such consequences for such a person, negative for him or her (Skead et al.,
2019). As for the special conscation of property, its application does not
entail such a legal consequence as a criminal record, because in essence
special conscation is a non-punitive measure of criminal inuence.
As we can see, by their nature conscation of property and special
conscation are different legal phenomena, which ideologically have their
own signicance within the norms of criminal law, in science and in law
enforcement practice.
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Special Conscation as a Measure of Criminal Law under Ukrainian Legislation
Conclusions
The study revealed the differences between conscation and special
conscation, identied the essential differences and substantive features of
each of these institutions and draw the following conclusions:
1. Conscation of property (Article 59 of the Criminal Code of
Ukraine) and special conscation (Article 961 of the Criminal
Code of Ukraine), although they have some common features are
independent institutions of criminal law, which have their own
special characteristics.
2. They are different in legal nature. Conscation of property is a type
of additional punishment, and special conscation of property is an
independent type of other measures of a criminal law nature.
3. As well as conscation of property, special conscation in some cases
can be a form of criminal liability and is used only by court decision.
4. The main difference between the investigated institutions is that
their application seizes property of different nature, namely: the
subject of conscation of property in accordance with Art. 59 of the
Criminal Code of Ukraine is property that belongs to the convict on
the right of ownership, instead of applying Art. Art. 96-1 and 96-2 of
the Criminal Code of Ukraine, property related to the commission of
a crime is subject to conscation.
5. A feature of special conscation is the possibility of its application
not only to a person who has committed a crime or socially dangerous
act, but also to a third party, while no other criminal law measure
can be applied to a third party. That is, special conscation may act
as a criminal measure, which restricts the property rights of both
the convict and third parties, but only in the part relating to the
conscation of property in the illegal possession of a person.
6. Exceptional grounds for special conscation under Part 2 of Art.
96-1 of the Criminal Code of Ukraine are: 1) a court conviction;
2) court decision on release of a person from criminal liability; 3)
court decision on the application of coercive measures of a medical
nature; 4) court decision on the application of coercive measures of
an educational nature.
7. The peculiarity of special conscation is that in some cases special
conscation is a form of criminal liability. At the same time, the
application of other measures of a criminal law nature is not a
responsibility but is a measure of the state’s response to acts of
socially dangerous or harmful to society.
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8. The appeal of conscated property to the state is set by the legislator
in connection with such a priority measure as compensation for the
damage caused to the victim.
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