Law of Ukraine

“On Amendments to the Criminal and Criminal Procedural Codes of Ukraine to Implement the Action Plan for the European Union Liberalization of the Visa Regime for Ukraine”

Date of entry into force:
December 15, 2013

The Law supplements the Criminal Code of Ukraine with two new articles.

Special confiscation means enforced unpaid seizure of cash, valuables and other property, to be transferred into state ownership, done by a court resolution, in case of crimes described in the Special Section of the Criminal Code of Ukraine (new Article 96-1 of the Criminal Code of Ukraine).

According to the new Article 96-2 of the Criminal Code of Ukraine, special confiscation is used if cash, valuables and other property:
  • were received as a result of a crime and/or constitute income from such property;
  • were intended (used) to entice a person to a crime, finance and/or support a crime, or as a reward for a crime;
  • were the subject of a crime, except for items returned to the owner (lawful possessor), and if the owner cannot be established – becoming property of the state;
  • were forged, manufactured, adjusted or used as means or instrument of crime, except for items returned to the owner (lawful possessor), which did not and could not have known about their unlawful use.

The Law envisages that special confiscation is used in case of the following crimes:
  • abuse of power or office (Article 364 of the Criminal Code of Ukraine);
  • official forgery (Article 366 of the Criminal Code of Ukraine);
  • accepting offers, promises, or receiving improper advantages by an official (Article 368 of the Criminal Code of Ukraine);
  • unlawful enrichment (Article 368-2 of the Criminal Code of Ukraine);
  • offering or providing improper advantages to an official (Article 369 of the Criminal Code of Ukraine);
  • abuse of influence (Article 369-2 of the Criminal Code of Ukraine).

The Law presents a new version of part 9, Article 100 of the Criminal Procedural Code of Ukraine. According to the new version, the question of special confiscation and the legal fate of the evidence and documents provided to the court is resolved by the court during approval of the court resolution that is final in the criminal proceedings. Such evidence and documents shall be kept safe until the court resolution takes effect. If criminal proceedings are closed by the investigator or the prosecutor, the question of special confiscation and the legal fate of the evidence and documents is resolved by a court ruling, based on a respective petition. With this:
  • cash, valuables and other property that were forged, manufactured, adjusted or used means or instrument of a criminal offence and/or retain signs of the crime are confiscated, except for cases when their owner (lawful possessor) did not and could not have known about their unlawful use. In this case, the above cash, valuables and other property are returned to the owner (lawful possessor);
  • cash, valuables and other property that were intended (used) to entice a person to a criminal offence, finance and/or support a criminal offence, or as a reward for a criminal offence, are confiscated;
  • property that was the subject of a criminal offence related to illegal trafficking and/or was withdrawn from circulation, is handed over to appropriate institutions or destroyed;
  • property that has no value and cannot be used is destroyed, or, if necessary, handed over to forensic collections of expert institutions, or to interested persons, at their request;
  • cash, valuables and other property that were the subject of a criminal offence or another socially dangerous act, are confiscated, except for those that are returned to the owner (lawful possessor), and if the owner cannot be established, become property of the state according to the procedure established by the Cabinet of Ministers of Ukraine;
  • cash, valuables and other property received as a result of a criminal offence and/or constitute income from it, as well as property into which they were converted in part or in full, are confiscated;
  • documents that constitute evidence are preserved in the criminal proceedings files for the entire duration of their storage.

The Law supplements Article 100 of the Criminal Procedural Code of Ukraine with two new sections, according to which:
  • when the question of special confiscation is being resolved, the first issue to address is the return of cash, valuables and other property to the owner (lawful possessor) and/or compensate the damage caused by the criminal offence. Special confiscation is only used after the prosecution has proven, in court, that the owner (lawful possessor) of the cash, valuables and other property was aware of their unlawful origins and/or use. If the guilty person has no property to impose sanctions on, except for the property subject to special compensation, then the damages incurred by the injured party or the civil plaintiff are compensated at the cost of funds received from sale of the confiscated property, and the remainder becomes property of the state;
  • if the owner (lawful possessor) of the above cash, valuables and other property was established after special confiscation had taken place, and did not and could not have known about their unlawful use, the owner is entitled to demand return of their property or funds received from the sale of such property, at the expense of the state budget.

In relation to the above, the Law also introduces appropriate amendments to Articles 91, 167, 169, 170, 172, 174, and 374 of the Criminal Procedural Code of Ukraine.
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