Problems Related with the Legal Nature of Property Confiscation
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Abstract
Confiscation of property has recently become a universally accepted penal sanction to fight crime and the centre of great expectations. This is proven by the rapid international legislative processes and reforms undertaken by a number of states in the sphere of property confiscation. The adoption of the new Criminal Code of the Republic of Lithuania changed both the legal status and the contents of this penal sanction. But so far the science of the Lithuanian criminal law has not paid more detailed attention on the analysis of the property confiscation institute.
The article provides the analysis of the concept of property confiscation as it is described in international conventions and EU legislation and stresses the problems related with the legal nature of this penal sanction encountered in national legal systems of various countries. The author makes a conclusion that the legal status of property confiscation depends on the scope of its application and legal traditions of the particular state. Besides, great importance in this aspect is attached to the assessment of practical needs of the fight against crime, which determine the necessity to develop such conditions for the imposition of property confiscation that are as flexible as possible. While examining the legal nature of property confiscation in the Lithuanian criminal law the author criticizes its inclusion in the institute of penal measures and suggests treating it independently within the system of criminal law since this sanction differs from other penal sanction by both its scope and objectives.
The article also discusses the problematic issues related with the limits of the sanction of property confiscation within the system of criminal law. The formulation of cases specified in Article 72 of the Criminal Code of the Republic of Lithuania when confiscation of property is imposed on persons who are not criminally prosecuted is too narrow. Therefore, the author suggests discussing a possibility to extend the scope of application of property confiscation within the system of criminal law by including the cases when the criminal procedure is discontinued on the grounds that are not subject to rehabilitation. The criminal procedure law, meanwhile, should regulate only the procedural issues of property confiscation.
When considering a possibility to extend the legal mechanism of confiscation of the illegally acquired property it is necessary to bear in mind the fact that the sanction of property confiscation is considered to be one of the legal effects of the commission of a criminal act. Thus, various cases when property confiscation is imposed without the consideration of issues related with the commission of criminal acts should be left outside the boundaries of the criminal law.
The article provides the analysis of the concept of property confiscation as it is described in international conventions and EU legislation and stresses the problems related with the legal nature of this penal sanction encountered in national legal systems of various countries. The author makes a conclusion that the legal status of property confiscation depends on the scope of its application and legal traditions of the particular state. Besides, great importance in this aspect is attached to the assessment of practical needs of the fight against crime, which determine the necessity to develop such conditions for the imposition of property confiscation that are as flexible as possible. While examining the legal nature of property confiscation in the Lithuanian criminal law the author criticizes its inclusion in the institute of penal measures and suggests treating it independently within the system of criminal law since this sanction differs from other penal sanction by both its scope and objectives.
The article also discusses the problematic issues related with the limits of the sanction of property confiscation within the system of criminal law. The formulation of cases specified in Article 72 of the Criminal Code of the Republic of Lithuania when confiscation of property is imposed on persons who are not criminally prosecuted is too narrow. Therefore, the author suggests discussing a possibility to extend the scope of application of property confiscation within the system of criminal law by including the cases when the criminal procedure is discontinued on the grounds that are not subject to rehabilitation. The criminal procedure law, meanwhile, should regulate only the procedural issues of property confiscation.
When considering a possibility to extend the legal mechanism of confiscation of the illegally acquired property it is necessary to bear in mind the fact that the sanction of property confiscation is considered to be one of the legal effects of the commission of a criminal act. Thus, various cases when property confiscation is imposed without the consideration of issues related with the commission of criminal acts should be left outside the boundaries of the criminal law.
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Articles
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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.
