We bring to your attention a review of the judicial practice of the Criminal Court of Cassation as part of the Supreme Court regarding the use of special confiscation as a measure of a criminal legal nature. The material was prepared on the basis of the processing of court decisions entered into the USSR for the period from January 2018 to November 2021.
The review provides the legal positions of the CCS of the Supreme Court, which reveal the following issues:
● taking into account by the courts when applying special confiscation the criteria defined by the ECtHR, such as not violating the "fair balance between the requirements of the general interest and the protection of the fundamental rights of individuals", as well as not imposing an "excessive individual burden" on a person;
● avoidance of formalism during the application of special confiscation, if it is clearly evident from the materials of the criminal proceedings that the property is the subject of a criminal offense committed by the accused, but the motivational part of the sentence does not specify a specific clause of Art. 96-2 of the Criminal Code of Ukraine, on the basis of which such special confiscation was applied;
● resolving the issue of special confiscation of property that belongs to the spouses under the right of joint co-ownership and that was used as a tool for committing a criminal offense by one of them;
● definition of the fact that item 1 part 9 of Art. 100 of the Criminal Procedure Code of Ukraine regulates the procedural procedure for the application of special confiscation, while the material and legal grounds for its application are determined by Articles 96-1 and 96-2 of the Criminal Code of Ukraine.
The review includes other current legal positions on the use of special confiscation as a measure of a criminal law nature.