Journal article Open Access

Bringing an Action on Recognition of Unjustified Assets and their Forfeiture: a Right Provided by Law or Mistake of a Law Maker

V.Yu. Mamnitsky, A.M. Lebedeva

The article examines the legal nature of Chapter 12 of the Civil Procedural Code of Ukraine (further - CPC), analyzes and compares the confiscation, special confiscation and confiscation outside of criminal proceedings (civil confiscation, confiscation in rem), clarifies the essence of the presumption of innocence and the possibility of its use in proceedings in cases of recognition of unjustified assets and their claims. Along with this, the article also draws attention to the advantages and disadvantages of civil forfeiture in view of the European Court of Human Rights (further- the ECHR) and practice in Ukraine. The provisions of the UN Convention against Corruption 2003 (further - the Convention) are also analyzed, which provide for the implementation in national legislation of confiscation of property without a sentence in the framework of criminal proceedings. In addition, the article proposes to solve the problem of ensuring guarantees of rights and observance of human freedoms from unjustified persecution and deprivation of property rights in the procedure of legal proceedings in cases of recognition of unjustified assets and their claims. In general terms, this work is aimed at distinguishing between confiscation and special confiscation in criminal proceedings against "confiscation" in a civil proceeding; establishing the legality of introducing mechanisms for recognizing unjustified assets and their vindication; clarification of the content of the violation of the presumption of innocence by imposing on the defendant the duty to prove the lawfulness of acquiring property.

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