Unjustified Assets Forfeiture: a Hidden Type of Punishment?

Abstract

The purpose of this article is to determine whether the forfeiture of assets as a result of declaring them unjustified should be considered as a penalty.Provisions governing the recognition of assets unjustified and its further forfeiture in the state revenue (RAS) were introduced into the Civil Procedural Code of Ukraine in 2015 and were criticized by the scientific community due to the similarities with the special confiscation provided by the Criminal Code of Ukraine, and were never implemented in practice. However, at the end of 2019, the essence of these provisions was dramatically changed via a combination of a foreign model of “non-conviction based  forfeiture” and certain features of the crime of illicit enrichment. Right after the adoption of these new provisions, the members of the Ukrainian parliament initiated the constitutional petition. They claim that the RAS, being, in essence, a punishment, unreasonably deprives the party of protecting its rights and guarantees provided by the criminal legislation of Ukraine.Given the foreign origin of this legal mechanism and that this type of penalty was introduced into Ukrainian law not so long ago, the methodology of this research covers both analysis of current legislation, research of Ukrainian and foreign scholars, and the case-law of the European Court of Human Rights. The analysis allowed us to assess to which extent the procedure, severity, nature, and objectives of unjustified assets forfeiture coincide with the procedure, severity, nature, and objectives of punishment.The results suggest that such a penalty can be considered as a punishment neither under the European Convention on Human Rights nor national legislation, as it does not, inter alia, prove or disprove the facts of any offense or the connection of assets with any offense and is not intended to punish and prevent from committing other offenses. Given the fundamental nature of the issue under investigation in the context of its constitutional appeal and the lack of practice of applying such a penalty in Ukraine as of the preparation of the present research, the article has theoretical and practical importance.