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On 6 June 2017 the Constitutional Court of the Republic of Belarus took the Decision “On Legal Regulation of Special Confiscation” (reporting judge – Stanislav Danilyuk)

The proceedings were initiated by the Constitutional Court in accordance with Article 158.1 and Article 158.4 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the basis of the application submitted by Ms E. Shavruk. The applicant pointed out the need to eliminate a legal gap and to enshrine in the legislation the right of individuals who are not parties to the criminal proceedings to appeal against sentences when applying special confiscation insofar as it affects their rights and legitimate interests.
When considering the case the Constitutional Court proceeded from the following. According to the Constitution of the Republic of Belarus the State shall guarantee everyone the right of property and shall contribute to its acquisition, property acquired in accordance with the law shall be protected by the State (Articles 44.1 and 44.3); the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith (Article 8.1); the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 59.1); everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law (Article 60.1).
In accordance with Article 61.6 of the Criminal Code, regardless of the category of crime and the type of punishment imposed, special confiscation shall by applied. It includes, among other things, involuntary seizure of property acquired by criminal means and the income received from the use of this property.
In the decision the Constitutional Court arrived at the following conclusions.
1. The rules of the Criminal Code and the Code of Criminal Procedure contain legal uncertainty, which is expressed in the ambiguous and contradictory legal regulation of special confiscation by the rules of different areas of law and in the absence of a clear definition of the very concept of special confiscation at the legislative level.
2. There is a legal gap due to the need to implement the provisions of international acts on confiscation of not only property and income derived from the commission of crimes provided for by international conventions (terrorism, organised crime, trafficking in persons, drug trafficking, etc.) but also of property lawfully acquired but used for financing mentioned criminal activities.
3. There is a gap in the legal regulation related to the exercise of the requirements of international legal acts to which the Republic of Belarus is a party, concerning ensuring the rights and legitimate interests of bona fide purchasers of property which falls within a decision on special confiscation due to its recognition as acquired by illegal means.
4. The current legislation does not adequately provide for judicial protection of individuals who are not parties to the criminal proceedings and who believe that their rights and legitimate interests are violated by the recognition of property by virtue of the court's judgement as acquired by illegal means and by the application of special confiscation by the court.
Taking into account the foregoing, in order to ensure the constitutional principle of the rule of law, the State's protection of property acquired in accordance with the law, the constitutional right of everyone to judicial protection, the Constitutional Court deems it necessary:
- to eliminate legal uncertainty and the legal gap in the Criminal Code of the Republic of Belarus when giving a legislative definition of special confiscation of property taking into account its special legal nature and the provisions of international legal instruments;
- to eliminate legal uncertainty and the legal gap in the Code of Criminal Procedure of the Republic of Belarus by establishing a legislative mechanism for judicial protection of the rights and legitimate interests of bona fide purchasers who are not parties to criminal proceedings in respect of property subject to special confiscation due to its recognition as acquired by illegal means.

The Constitutional Court proposed to the Council of Ministers to prepare a draft law on making alterations and addenda to the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.

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