Competing Norms on the Confiscation of Property in the Criminal and Criminal Procedure Legislation of the Republic of Belarus and of the Russian Federation

Abstract

The confiscation of property is a conventional measure of criminal law impact, therefore, it is included in different normative interpretations of all European states. The legal regulation of the confiscation of property changed in Belarus on July 19, 2019, when it was excluded from the system of punishments and ceased to be applied as a measure of additional punishment. The legislation preserved special confiscation of property acquired as a result of a crime or connected with committing a crime; at the same time, the scope of its application was broadened to include cases of exemption from criminal liability. Special confiscation is determined as a compulsory measure of criminal law character, and not a criminal law measure. A measure that is similar in its content — the confiscation of property — has been in force in Russia since 2006. The authors of the article describe the dual nature of confiscation provided for in the norms of the Criminal Codes and the Criminal Procedure Codes of both countries, as well as the legal ambiguity of these norms. They analyze the legal positions of the Constitutional and the Supreme Courts of Belarus and Russia on the problem of the correlation and application of competing criminal law and criminal procedure norms on confiscations, as well as the court practice of their application, which is contradictory and lacking in uniformity. They recommend how the above-mentioned norms of the Criminal and the Criminal Procedure Codes of Belarus and Russia could be amended. The authors also identify the positive and negative sides of normative regulation of confiscation in both countries and show how Russia and the Republic of Belarus could draw on the positive experience of one another: they give a positive assessment to the absence of a link between special confiscation of property and concrete articles of the Special Part of criminal legislation, as well as to the possibility of using the analyzed measure in cases of exemption from criminal liability without exoneration in Belarus law; Russian law poses a good example of regulating the possibility of seizing not only the property to be confiscated, but also money and other property whose value is proportionate to the value of the property to be confiscated in cases of its absence. It is proven that only the norms of criminal law could act as grounds for the confiscation of property in the Russian Federation (special confiscation in the Republic of Belarus). Criminal procedure norms should just regulate the procedure of applying the norms of criminal law on the confiscation of property (special confiscation).