The Problem of Relation Between Confiscation of Property and Compensation of the Damage Caused by a Criminal Offence
##plugins.themes.bootstrap3.article.main##
Abstract
The article analyzes the problems arising out of application of confiscation of property when a criminal action results in damage. The importance of the topic is determined by the fact that in court practice a situation often occurs when in a single criminal case there are grounds to both confiscate the property and compensate for the damage caused by a criminal action. However, Article 72 of the Criminal Code of the Republic of Lithuania does not include a specific provision governing confiscation of property in such cases.. As a consequence, it is necessary to harmonize those two institutes in order to ensure the right of victims of crimes, to be compensated for damage thus caused and to apply confiscation of property as a penal measure.
In accordance with the practice of the Supreme Court of the Republic of Lithuania, confiscation of the proceeds of crime is possible in the two following cases: a) when there are no persons directly injured by the crime or b) when the injured persons waive their right to compensation for the property damage caused by the criminal offence. In other cases, the proceeds of crime should be returned to lawful owners, or should be used to satisfy their civil claims for compensation of damage in the amount of the value of their property. Therefore, property is confiscated only when the proceeds of crime exceed the damage.
The article concludes that Article 72 of the Criminal Code is suitable only for the cases when the value of the property subject to confiscation is equivalent to the damage caused (as a result of criminal action the offender gains the same value which the injured person looses).
However, when damage is not related with the enrichment of the offender from the criminal offence, those two institutes should be applied jointly. It is the prerogative of the legislator, not the courts, to regulate confiscation of property in order to compensate for the damage caused by a criminal offence..
Therefore, in order to avoid situations when the possibilities of injured persons to be compensated for the damage would decrease as a result of confiscation of property, it is proposed to include a provision which would make it possible to compensate for the damage caused by a criminal offence from the property subject to confiscation (including the criminal proceeds); however, the state would acquire the right of recourse to the amount for which the damage was compensated from the property subject to confiscation. Such legal mechanism should be implemented at the stage of execution of the ruling of the court to confiscate property.
In accordance with the practice of the Supreme Court of the Republic of Lithuania, confiscation of the proceeds of crime is possible in the two following cases: a) when there are no persons directly injured by the crime or b) when the injured persons waive their right to compensation for the property damage caused by the criminal offence. In other cases, the proceeds of crime should be returned to lawful owners, or should be used to satisfy their civil claims for compensation of damage in the amount of the value of their property. Therefore, property is confiscated only when the proceeds of crime exceed the damage.
The article concludes that Article 72 of the Criminal Code is suitable only for the cases when the value of the property subject to confiscation is equivalent to the damage caused (as a result of criminal action the offender gains the same value which the injured person looses).
However, when damage is not related with the enrichment of the offender from the criminal offence, those two institutes should be applied jointly. It is the prerogative of the legislator, not the courts, to regulate confiscation of property in order to compensate for the damage caused by a criminal offence..
Therefore, in order to avoid situations when the possibilities of injured persons to be compensated for the damage would decrease as a result of confiscation of property, it is proposed to include a provision which would make it possible to compensate for the damage caused by a criminal offence from the property subject to confiscation (including the criminal proceeds); however, the state would acquire the right of recourse to the amount for which the damage was compensated from the property subject to confiscation. Such legal mechanism should be implemented at the stage of execution of the ruling of the court to confiscate property.
##plugins.themes.bootstrap3.article.details##
Section
Articles
Authors contributing to Jurisprudence agree to publish their articles under a Creative Commons Attribution-NoDerivatives 4.0 International Public (CC BY-NC-ND) License, allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that the authors are given credit, and that in the event of reuse or distribution, the terms of this licence are made clear.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
