RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of June 29, 2023 No. 1

About application of special confiscation by courts (article 46-1 of the Criminal code of the Republic of Belarus)

Having discussed results of generalization of court practice of application of special confiscation, the stipulated in Article 46-1 Criminal code of the Republic of Belarus (further - UK), for the purpose of the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus DECIDES:

1. Draw the attention of courts that special confiscation, stipulated in Article 46-1 UK, can be connected with ownership limitation and shall be performed in strict accordance with requirements of the legislation. Its correct application is one of means of ensuring of protection of the rights, freedoms and legitimate interests of citizens, the rights of legal entities, public and state interests, the established law and order from criminal encroachments, is directed to recovery of social justice, intended to promote the prevention of crimes.

2. Explain to courts that special confiscation does not belong to punishment, other measures of criminal liability. At the same time its obligatory application in case of crime execution is performed according to part 2 of article 46 UK court both in case of the resolution of conviction, and in case of cessation of production on criminal case with release from criminal liability of the person accused on the bases provided by regulations of General and Special parts of UK (Article 20, of 83, 86-88, 89, of 95, 118 UK, notes to Chapters and Articles of the Special part of UK).

The question of application of special confiscation is resolved by court and in case of receipt of the copy of the resolution of the investigator, prosecutor on cessation of production on criminal case with release from criminal liability of person who committed crime on the bases provided by UK (part 2 Articles 3, part 2 of article 46 UK, part 5 of Article 30, item 4 of part 2 of Article 33 of the Code of penal procedure of the Republic of Belarus (further - the Code of Criminal Procedure).

3. To courts to mean that special confiscation, that is to forced uncompensated taking in property of the state, based on part 1 of article 46-1 UK are subject:

the property got in the criminal way or acquired on the money earned in the criminal way;

income gained from use of such property;

the crime objects which are not subject to return to the victim or the other person;

tools and means of crime execution belonging to person who committed crime;

the things withdrawn from circulation;

the vehicle (irrespective of the property right) which was managed by person who committed crime stipulated in Article 317-1 UK (except for the vehicles which were disposed from legal ownership of the owner (user) in spite of himself or as a result of illegal actions of other persons).

The list of subjects to special confiscation is exhaustive and is not subject to extensive interpretation.

4. Courts should consider that any property received in connection with crime execution can be carried to the property got in the criminal way. The material benefits received as a result of the order by such property (for example, by purchase, sale, exchange), it is necessary to regard as the property acquired on the money earned in the criminal way.

The material benefits made, created, transformed at the expense of such property and also other income gained from use of this property can be income gained from use of the property got in the criminal way or acquired on the money earned in the criminal way (for example, receipt of the rent, deposit interests).

5. Resolving question of application of special confiscation concerning crime objects, the court needs to consider that their forced uncompensated taking in property of the state is allowed only in cases when such objects are not subject to return to the victim or the other person (for example, the money given by person as bribe in the absence of the conditions provided by part of 3 notes to Chapter 35 of UK).

6. To courts to mean that to tools of crime execution the objects used or intending for use in case of crime execution (for example, weapon can be carried in case of murder, network and other devices in case of illegal production of fish or other water animals, the multiple copying equipment in case of forgery), and to means of crime execution - the objects promoting crime execution, facilitating its making (for example, the vehicle used for export of property in case of plunder).

For application of special confiscation of tools and means of crime execution person who committed crime needs to determine the fact of their accessory.

7. Courts need to consider that things which turnover is prohibited by the law can be recognized as the things withdrawn from circulation.

Also the things withdrawn from circulation which though are not connected with the committed crime are subject to special confiscation, but were found or revealed in course of production on criminal case.

8. Draw the attention of courts that, irrespective of the property right, the vehicle which was managed by person who committed crime stipulated in Article 317-1 UK is subject to special confiscation. At the same time it is necessary to consider that disposal of the vehicle in spite of himself or as a result of illegal actions of other persons (for example, stealing, theft) excludes special confiscation from legal ownership of the owner (user).

Availability or lack of these circumstances is subject to establishment based on set of the proofs researched in judicial session, and conclusion about application or non-use of special confiscation of the vehicle shall be motivated in the court decree (sentence, the resolution, determination).

9. To courts to mean that factual determination of loss, expenditure, destruction, realization of the property got in the criminal way or acquired on the money earned in the criminal way, income gained from use of this property, and is equal to impossibility of their special confiscation for other reasons is the basis for collection from person who committed crime in the income of the state of sum of money, the corresponding cost of such property and (or) to the size of income gained from use of this property (part 2 of article 46-1 UK).

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info