CHALLENGES OF RECONCILING CONVICTION-BASED AND NON-CONVICTION-BASED CONFISCATION REGIMES IN UKRAINE’S LEGAL SYSTEM

Abstract

The article analyses the criteria on which European scholarship distinguishes between conviction-based and non-conviction-based confiscation regimes. It adapts this taxonomy to the Ukrainian context so as to classify confiscation regimes that fall within different branches of law: constitutional, criminal, criminal procedure, civil procedure, and administrative law. The paper argues that the key criteria for allocating a given legal regime to the conviction-based or non-conviction-based category are: (i) the degree to which the nexus between the property and the offence must be proven, including whether a criminal (“beyond a reasonable doubt”) or a non-criminal (“balance of probabilities”) standard of proof applies, and (ii) whether, and to what extent, the burden of proof is imposed on the opposing party.It is shown that, in Ukraine, conviction-based confiscation regimes include special confiscation, criminal procedural confiscation, and the forfeiture of property that is the instrumentality or is obtained as proceeds of an administrative offence. By contrast, non-conviction-based regimes comprise extended confiscation and civil (asset) confiscation.At the same time, the article argues that confiscation of property as a criminal punishment and confiscation of a legal entity’s property as a measure of a criminal-law nature do not fit neatly into either the conviction-based or the non-conviction-based category.The paper also examines conflicts of law that arise among different confiscation regimes.In particular, it is established that confiscation as a punishment and confiscation of a legal entity’s property as a criminal-law measure may collide with special confiscation whenever the property subject to special confiscation is privately owned by the convicted person or by the legal entity in respect of which measures of a criminal-law nature are being applied.Finally, it is shown that special confiscation of property constituting the object of illicit enrichment or the proceeds of money laundering acquires certain features of non-conviction- based confiscation.