Problems of proving the illegal origin of property in the application of civil confiscation mechanisms

Abstract

The mechanism for forfeiting to the Russian Federation property whose lawful acquisition has not been confirmed rests on subparagraph 8 of paragraph 2 of Article 235 of the Civil Code of the Russian Federation and Federal Law No. 230-FZ of 3 December 2012; nevertheless, the question of which circumstances form the subject of proof and how the evidentiary burden is allocated between the prosecutor and the respondent was for a long time resolved inconsistently by the courts. A discrepancy arises between the public-law orientation of the forfeiture and the procedural form of claim proceedings in which that forfeiture is carried out. The aim of the work is to establish the structure of the subject of proof of the illegal origin of property and to define the limits of shifting the burden of proof onto the person whose property is subject to forfeiture. The formal-legal method, the method of systematic and teleological interpretation, and a generalisation of the practice of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation for 2016-2026 were applied. It is established that the prosecutor proves the excess of the value of acquired property over the aggregate lawful income for a three-year period, whereas the rebuttal of illegal origin rests on the respondent, who is entitled to confirm the existence of other lawful sources. It is shown that after the Constitutional Court recognised the inapplicability of the limitation period to anti-corruption claims, the respondent's evidentiary load acquires an indefinite character, whereby the asymmetry of the parties' procedural opportunities intensifies. Shifting the burden of proof onto the respondent expresses not a procedural privilege of the claimant but a substantive-law presumption of the illegality of accumulation unexplained by lawful income; it is this presumption that sets the internal logic of the entire mechanism and predetermines the content of the judicial inquiry.