The institute of civil confiscation in the light of the practice of the European court of human rights and the national context

The presented article highlights the issue of the correlation between the design of civil confiscation and its practical application in the context of compliance with fundamental rights guaranteed by the ECHR. Through the prism of the legal conclusions of the ECtHR, formed by the latter when considering cases in which the issues of applying confiscation mechanisms in the non-criminal sphere were raised, the author attempted to analyze the models of civil confiscation implemented in national law, namely: 1) the seizure of unsubstantiated assets and 2) the seizure of assets to the state income as a result of the application of sanctions. Starting from the fact that any type of confiscation, including outside the scope of criminal prosecution, is an interference with the right of a person to peaceful possession of property, which is protected in accordance with Article 1 of Protocol No. 1 to the ECHR, it is emphasized that the use of this method of deprivation of property rights must be assessed through the prism of the relevant convention provisions. The latter, at the same time, requires compliance, in aggregate, with three basic criteria for the lawfulness of interference with the right to peaceful possession of property, which are: 1) legality of the interference; 2) legitimate aim of the interference; 3) observance of a fair balance. Based on the above approach, the procedural model of civil confiscation of unjustified assets is recognized by the ECtHR as not contradicting the provisions of the ECHR, provided that it complies with the general principles defined in Article 1 of Protocol No. 1 to the ECHR and that all three criteria for the lawfulness of interference with the right to peaceful possession of property, which were previously formulated by the ECtHR in a number of its decisions, are observed in its application. Regarding another model of civil confiscation – the recovery of sanctioned assets, which was introduced into national legislation in 2022, the possibility of a discussion on its compliance with convention norms is emphasized, since the outlined model of the corresponding legal analysis at the ECtHR level has not yet been passed. In this regard, and based on the three-component proportionality test developed by the ECtHR, the author sets out his own vision on the compliance of the specified construction with convention norms, with an emphasis on the issue of compliance with the last criterion – namely, a fair balance and procedural guarantees when resolving the issue of recovering sanctioned assets to the state’s income.