In KC there was a dissenting opinion on the confiscation
The judge of the constitutional court (CC) Sergey Kazantsev has declared the disagreement with conclusions of the constitutional court, admitted the possibility of confiscation of the accused property upon the termination of the criminal case. The dissenting opinion in the case seized on the Supreme court verdict on the painting by Karl Briullov “Christ in the tomb” say that such approach contradicts the principle of presumption of innocence, and the Criminal procedure code (CPC) contains a “clearly absurd,” and unconstitutional regulations.
The COP has published dissenting opinion of judge Kazantsev on the complaint of the collector from Germany, Alexander Pevzner on the rules of the code of criminal procedure constituting the basis for the confiscation of his painting Karl Briullov value of not less than $300 thousand Cultural value was removed by the Supreme court (SC) as evidence in the case of smuggling, three years after its termination on Statute of limitations and more than a year after came into force of the decision to return the paintings to their owners.
The COP decided that the forfeiture of “instruments of crime” established without a verdict (p. 1. part 3. article 81 of the CPC), is possible only with the consent of the accused to dismiss the case with such consequences, and within one year, under the article 401.6 of the CPC for degradation in the appeal provisions of the accused. Recognizing the applicant’s rights are violated, the COP demanded to review the case in accordance with its new interpretation of the criminal procedure code.
Judge Kazantsev, however, believes that both standards would be considered not corresponding to the Constitution. The consent of the accused to termination of criminal proceedings does not mean that it “virtually admits the validity of the charges against him of suspicion or accusation, made procedural solutions applied coercion, his involvement in the crime and his guilt in committing it, and also refuses property belonging to him”, said the judge of KS.
In his opinion, “beyond the period of limitation of criminal prosecution not only can not be punished, but cannot be used other criminal law measures,” including the confiscation, which was referred to the legislation to such measures only in 2003. Securing the conditions for confiscation, the legislator “must exclude the possibility of unjustified, disproportionate and arbitrary restrictions on the right of ownership of persons prosecuted”, said the judge.
But article 81 of the code of criminal procedure about the determination of the fate of the evidence cannot replace the norms of the Penal and Civil codes that allow confiscation only by the court, reads dissenting opinion.
Confiscation of gun crime outside the Statute of limitations violates the principle of presumption of innocence and the constitutional rights of citizens, said the judge Kazantsev in contrast to KS, in which the presumption of innocence does not say.
According to the judge, the person against whom criminal prosecution guilty of a crime not recognized “and cannot be called such.” Therefore, recognition of the property of an instrument of crime and confiscation should be carried out only by court by means of sentence.
The judge also noted the “obvious absurdity” of a literal sense of article 81 of the CPC by which instruments of crime belonging to the accused, shall be confiscated if there is even a rehabilitation (lack of evidence or innocence to him) grounds for dismissal. Judge Kazantsev considers that confiscation without conviction should ban that prevents the victim to seek damages and caused damages in civil proceedings.
Do not agree the judge Kazantsev and stiff enough, in his opinion, the assessment of COP article 401.6 of the CPC. The defendant owned the murder weapon “is a property of the resource, and sometimes very valuable”, its confiscation after the entry into force of the decision on the return to the owner weakens his position, the judge confirms the conclusions of the constitutional court. But entirely the opposite approach, “which was fully supported by the COP all the representatives of parties and signatories to the impugned law,” draws the attention of the judge Kazantsev. The practice of application of the disputed norm should be declared unconstitutional, reads dissenting opinion.
Alexander Pevzner said “Kommersant” that his opinion coincides with the position of judge Kazantsev, who pointed out “of collective delusion representatives of the state.” According to him, the COP decision “opens a Pandora’s box,” basically allowing without court to deprive property of suspects and accused persons.
Anna Pushkarskaya, St. Petersburg