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Annotation of Farkhad Timoshin, advocate of Pen & Paper attorneys at law, to the article «Confiscation for Peculators and Rascals». «Api-press.ru», February 1, 2016

The members of parliament intend to expand the financial punishment of convicts – to introduce confiscation of the entire assets. Presently the court may forfeit solely something earned in the court of criminal activity. However, this way to “restore a justice” is rarely if ever to apply.

February 01, 2016. API – Confiscation disappeared from Russia legislation in 2003- instead the assets forfeit for acquisitive offences the penalties commenced to be brought to the    convicts. Three years later a confiscation was restored but at that time not as a punishment, but as a measure of criminal legal nature“.

Everything earned by backbreaking robbery

Acting Criminal Code of the Russian Federation stipulates a confiscation of crime instruments only, as well as criminally obtained assets and funds (for instance, income from drug sales, bribes, etc.). This deals not with every, but rather limited circle of crimes, which include murder, espionage and treason, but excludes theft, robbery and even fraud. It is specified that transferred (including sold) by a criminal to other persons assets may be confiscated only in case a purchaser has known on unlawfulness of the assets receipt (i.e. in case a purchaser has not been an innocent purchaser).

Such rules often allow the convicts to save the “earned” of illegal activities. For example, Voila Glukhareva, an employee of the Rosreestr, stealing from the federal treasury more than 19 million rubles was sentenced to four years imprisonment, while she has not return to the country not a penny of the stolen. Caught in a bribe of $ 2 million, the former head of the Saint Petersburg Subdivision of the Pension Fund of Russia, Nataliya Grishkevich, shall be held in a penal colony for ten years and pay a fine to the budget of 950 thousand rubles. Jewelry confiscated in the course of the search was returned, 8-rooms apartment and foreign real estate would remain the property of the convict. Tatyana Lekkoeva, a public servant of the Karelia municipal council, was sentenced by the court to 4 years and 3 months of imprisonment, while stolen through corruption scheme (bribe of 7 million rubles), eight municipal land worth tens of millions of rubles would remain the property of their new owners.

Some members of the parliament consider current mechanism of confiscation not to be effective. “It does not ensure to efficiently contain ongoing growth of grave and acquisitive offences,” the deputies of the State Duma, Alexander Kulikov and Yury Sinelscshikov, the drafters of a legislative proposal submitted on January 29, believe.  “Assets confiscation as it is does not eliminate the economic incentives to conduct criminal activity, as the proceeds from it even after conviction are usually available to the criminals. And the amount of payable penalties, value of the stolen assets that is at times justice is able to return within the scope of current legislation, cannot be compared with actual damage caused by the criminals either to budget of the country. This results in the devaluation of the concept of social justice, the inevitability of adequate crime punishment, legal nihilism.”

In order to restore justice the members of parliament propose to introduce assets confiscation as an additional punishment for the most dangerous and grave and especially grave crimes. The deputies state that such mechanism turns out to be justified, timely and meeting the national interests of the state.

However, legislative proposal submitted by Alexander Kulikov and Yury Sinelscshikov still provides forfeit in favor of the state just funds and assets that have been criminally obtained, incomes from using such assets, as well as instrumentalities of crimes. While assets, which pursuant to the civil legislation cannot be seized, are not subject to confiscation. This relates, in particulate, to the only place of residence of a convict – either it is a corner in a “shared apartment”, or an 8-rooms apartment or a mansion on Rublyovskoye Shosse.

Grab and share everything

New legislative proposal is far from being the first members of parliament initiative to restore the institution of criminals’ assets confiscation. Thus, a proposal of Sergey Ten, submitted last September, stipulated a withdrawal the entire assets irrespective of the source of origin from the convicts for some grave and extremely grievous crimes, as well as for the acts of acquisitive and corruptive nature. For example, it proposed to confiscate the entire assets of those who found guilty for bribes, even 25 thousand rubles, should assets be obtained by inheritance, actually earned through honest labor or received by any other means of legal and non-criminal activity. Thus, the assets of ex-governor of the Sakhalin region, Alexander Khoroshavin, arrested for bribes of 20 million rubles, estimated at 800 million.

The only residence and some other items, according to the draft, are also supposed to be kept in the convict’s possession. However, there is a condition stating that such “items may be confiscated, should they be found in a number obviously exceeding the needs of the convict and his or her family, or should they be made of precious metals and stones, should they be luxury goods or have artistic value”. This rule will enable to confiscate expensive real estate and even some inherited antiques.

The drafter of this legislative proposal additionally points out at inability of working rules related with confiscation to suppress acquisitive offences and corruption-related crime, “Unless the evidences of acquisition of particular valuables (apartment, house, plot of land, car, etc.) for funds obtained by illegal means are proved, assets confiscation is impossible. Thus, a guilty’s assets are actually not subject to confiscation, should even assets value dramatically exceed the legal income of the offender. Moreover, should money and other valuables obtained by illegal means not be maintained (the guilty has spent them on entertainment, etc.), than, within the scope of current legislation, confiscation becomes impossible. Submitted amendments related with confiscation of assets owned by the convict, remedy this deficiency,” the member of the parliament believes.

Public servants are against

The servants of Themis have given positive estimation of Sergey Ten initiative on the entire assets confiscation of the convicts, “The Supreme Court of Russia conceptually sustains approval of this legislative proposal,” deputy chairman of the supreme court, Vladimir Davydov, declared pointing to the drafter at some amendments of technical nature.

Public servants took the idea otherwise. The Government of Russia believes the current mechanism of confiscation complies with relevant international conventions in terms of anti-corruption and other crimes.

Meanwhile, neither of the legislative proposals have not been reviewed and by virtue of formal causes will be returned without even bringing for the first reading: according to the law, the Criminal Code of the Russian Federation may be amended upon the sanction of the Government of Russia only.

Summary

According to the Justice Department, in 2014 confiscation applied in 1178 cases (in total, the servants of Themis sentenced almost 720 K people), generally for bribing (350 episodes), drug trafficking (193 sentencing), etc.

Experts’ opinion

Farkhad Timoshin, criminal practice of law lawyer of Pen & Paper bar association

Legislative proposal of Alexander Kulikov and Yury Sinelscshikov changes essentially nothing. Same as before prior to forfeit the investigation and the court shall prove the assets, money and valuables have been criminally obtained. However, while the fraudsters and corruptionists are often to apply schemes, defining and proving the origin of funds and acquisition of one or another asset turns out to be a very complicated task.

At the same time, it is proposed to prohibit confiscation of the only fit for habitation of the convict and his or her family residence (apartment, house, etc.), should it even be acquired by means of criminal incomes.

Legislative proposal of Sergey Ten stipulates the forfeiture of any assets irrespective of its source of origin. For instance, a confiscation threatens to the ones committed theft or fraud committed by an organized group (this is the financial "pyramid", and fraud with apartments, and other swindles). It will also hit the corruptionists – public servants who have assets obviously out of proportion to their official incomes. The measure is designed to prevent the crimes; however, its efficiency is questionable.