| The government returns the punishment of deprivation of property to the Criminal Code Confiscation, as one of the measures to combat crime, yesterday received an authoritative supporter not from among the security forces who do not have liberal views, but from the leadership of the country's highest courts. “We threw out the baby with the bathwater. If Russia does not fight corruption and international transnational crime, then the world will be forced to fight Russia,” this is how the Chairman of the Constitutional Court Valery Zorkin spoke yesterday about the exclusion of such a punishment as confiscation from the Criminal Code in 2003. However, the head of the Constitutional Court does not have long to be upset. Apparently, the confiscation is about to make a triumphant return to the Criminal Code - according to Vremya Novostei, the corresponding draft has already been prepared by the government and will soon be proposed to the State Duma.
Having successfully survived perestroika and the collapse of the USSR, such a punishment as confiscation successfully migrated from the Soviet to the Russian Criminal Code - literally everything was confiscated, down to the last penny and thread. Only for taking a bribe in 2002-2003, 50 convictions were handed down, providing for confiscation of property as an additional punishment. However, at the end of 2003, when the presidential package of amendments to the Criminal Code was adopted, the confiscation of the personal property of a convicted person, despite the fiercest resistance of the Prosecutor General's Office, was nevertheless deleted from the code. At the same time, the legislation (Article 81 of the Criminal Procedure Code) retains the confiscation of “property, money and other valuables obtained as a result of criminal actions or acquired by criminal means.” But in order to get to this property, the investigation had to prove not only the guilt of the owner, but also the illegal origin of the money and valuables. It is not surprising that the security forces launched a grandiose campaign for the restoration of the “Soviet” punishment, which took place under the slogan of the fight against the three “scourges of Russia”: terrorism, drug trafficking and corruption. Representatives of the Prosecutor General's Office, including its head, categorically argued that it is impossible to defeat corruption if you do not take away from the bribe-takers everything “acquired by illegal labor.” “The economic component of the crime becomes profitable for corrupt officials,” said Prosecutor General Vladimir Ustinov, in particular.
Of course, the prosecutors had many supporters, including on Okhotny Ryad. “In December 2003, the criminal law lost a very powerful legal instrument for intimidating dishonest people - confiscation of property as a punishment, which is legally and socially unjustified,” said the explanatory note to the bill introduced to the State Duma last winter by United Russia deputies Lyubov Sliska, Alexander Gurov, Alexander Volkov and Alexander Khinshtein. These parliamentarians, in a righteous impulse, proposed to confiscate even the property of not only criminals, but also their acquaintances, “provided that the person knew, could have known or should have known about the illegal acquisition, purpose or use of the property.”
However, the project, which received a negative conclusion from the government and signed by Deputy Prime Minister Alexander Zhukov, was never considered by the lower house. However, the truce was bought at a high price - the White House itself began to prepare a similar bill. “If you can’t resist, then you need to lead the movement,” a government source explained to Vremya Novostey. - And the project is already ready, which, apparently, will be submitted to the State Duma by the president. It restores confiscation, but not in its previous form, as a punishment, which provided for the confiscation of all property, but in the form of a special measure, implying confiscation of the proceeds of the crime or property acquired with this money.” According to our source, such a measure will be applied only for a number of particularly significant crimes, and the investigation will still need to prove that this money was stolen. “This is exactly the approach that is reflected in international law, and the project will not fundamentally differ from what is written in the Code of Criminal Procedure - we are simply trying to take into account the opinion of the security forces,” the White House explained.
It is quite possible that the document will be adopted in the very near future. According to our source, the draft was ready several months ago, and the active discussion that has begun may turn out to be preparation for submission to the Duma. It is noteworthy that the discussion was brought to a new level by the head of the body that might have had to put an end to this dispute - the Chairman of the Constitutional Court, who yesterday at the conference “The Role of Law in Ensuring National Interests” spoke in favor of returning confiscation to the Criminal Code.
Mr. Zorkin’s report calls confiscation of criminal proceeds “one of the core elements of the UN and Council of Europe conventions on combating transnational organized crime, corruption, drug trafficking, and money laundering.” He also appealed to the ruling of the Constitutional Court of July 8, 2004, which stated that the rules of the Criminal Procedure Code on confiscation cannot replace the rules of criminal law. “Based on the indicated legal position, the settlement of confiscation issues in the field of criminal law involves not just the restoration of the excluded Art. 52 of the Criminal Code in its previous form, and the introduction of the criminal law institution of confiscation in a new edition that meets the requirements of the said conventions,” says the report of the head of the Constitutional Court.
It is not surprising that Mr. Zorkin’s statement pleased the security forces. “We consider it necessary to introduce into criminal and criminal procedural legislation the institution of confiscation of property acquired by criminal means,” Deputy Prosecutor General Sabir Kekhlerov recalled yesterday. It is noteworthy that a few days earlier, representatives of the State Duma and the government had already spoken out in defense of the confiscation as a united front. “I hope that in the near future we will have confiscation in a normal, civilized form,” Vladimir Vasiliev, head of the Duma Security Committee, said recently. -- Russia is currently ratifying the UN Convention against Corruption. We, in fact, accept this convention and will be obliged to introduce into our legislation such a concept as confiscation. Not everything will be confiscated, of course, no one is talking about wholesale confiscation. But there are issues that have already been determined - regarding corruption crimes.” And even the head of the Ministry of Economic Development, German Gref, who is considered the most liberal of the ministers, recognized the need to expropriate the loot. “If we are talking about a large-scale briber, then you can probably think about it, but this should be an exception to the rule,” he said.
The government representative in the Constitutional Court of the Russian Federation, Mikhail Barshchevsky, is more critical of the initiatives. “There is no need to confuse confiscation as a measure of punishment, when all personal property is confiscated, no matter what its origin, and such a special measure, when what is obtained by criminal means is confiscated,” he told Vremya Novostei yesterday. - If we talk about the punishment, then I am categorically against confiscation. This is the clearest example of a return to the totalitarian Soviet system. And confiscation of criminally obtained property already exists in the Code of Criminal Procedure. If someone does not understand how to apply this article, then there is no need to make amendments - it is enough for the plenum of the Supreme Court to provide clarification. Many representatives of law enforcement agencies talk about confiscation as a form of punishment only because they do not know how to prove what was obtained by criminal means and what was legally acquired property. That is, they are trying to compensate for their lack of professionalism with draconian laws. Meanwhile, it is possible to introduce confiscation of personal property, but only for terrorism and drug trafficking.” Yuri KOLESOV |
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