Current issues of the application of special confiscation in the field of criminal justice
Authors: Khimyak Yu. B. 
Published: December 2023

The article examines the issue of the application of special confiscation in the field of criminal justice, taking into account the requirements of international treaties, the legal positions of the Constitutional Court of Ukraine, and the practice of courts of criminal jurisdiction.

It has been established that certain controversial issues that accompanied the establishment of the institution of special confiscation are currently resolved, in particular by the practice of the Constitutional Court of Ukraine and the Supreme Court. In particular, the Constitutional Court of Ukraine verified the compliance of the criminal law institution of special confiscation with the Constitution of Ukraine and established the compliance of Articles 96-1 and 96-2 of the Criminal Code of Ukraine with Articles 1, 3, 8, 21, 22, 41, 58, 61, 62, 64 of the Constitution of Ukraine. In addition, the practice of the Supreme Court demarcates the legal nature of punishment in the form of confiscation of property and special confiscation as a type of criminal law, the provisions on the procedure of special confiscation based on Articles 96-1 and 96-2 of the Criminal Code of Ukraine in the manner specified in Article 100 CCP of Ukraine.

It was established that in those cases when a person uses property that belongs to him and that was acquired legally as one of the tools for committing a crime, the issue of the gravity of the crime committed, the sanctions of the criminal law and the application of special confiscation to the property of such a person can cause significant difficulties . At the same time, there are no special rules in the General Part of the Criminal Code of Ukraine regarding compliance of special confiscation with the requirements of proportionality to the committed crime, depending on its severity. The absence of such rules may lead to a violation of the requirements of Art. 1 of Additional Protocol No 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms. The risks of a possible violation in this area should be eliminated by consistent judicial practice.

It was emphasized that in view of the establishment of legal grounds and the procedure for the application of special confiscation in the field of criminal justice, the issue of the application of special confiscation taking into account the principle of proportionality and the protection of the rights of third parties – bona fide purchasers of property – remain important issues today. It was concluded that in the absence of clear criteria for the proportionality of interference with the right of ownership in both substantive and procedural legislation (Article 100 of the ССР), the question of the legality of deprivation of property from the point of view of the proportionality of interference with such a right must be resolved in each specific case, and certain rules in this aspect should be provided by established national judicial practice.

Key words: property, right of ownership, punishment, intervention, confiscation, special confiscation, constitutionality, criminal law measures, third party, bona fide acquirer, proportionality, case law, proportionality