Legal foundations and historical evolution of the institution of confiscation of property in various legal systems

Abstract

The institution of confiscation of property reveals a persistent collision between its punitive genealogy and its present status as an other measure of a criminal-law character, which generates disagreement about the institution's branch affiliation and its purpose. The divergence is reinforced by the fact that general confiscation, excluded from the system of punishments in 2003, was reinstated in 2006 in a fundamentally different normative construction, while the subsequent expansion of the list of objects and predicate offences shifted practice towards mass application. The aim of the work is to establish the legal foundations of confiscation and the regularities of its historical evolution in domestic and foreign law. The formal-legal, historical-legal and comparative-legal methods are applied, together with the generalisation of judicial practice. A periodisation of the institution is reconstructed, from the absorbing property sanction of Russkaya Pravda to the current wording of Chapter 15.1 of the Criminal Code; the in personam and in rem models of seizure are distinguished; doctrinal interpretations of the legal nature of confiscation are systematised. It is established that the statistical growth of application after 2022 – from 2,060 convicts in 2017 to tens of thousands of seized objects annually – is determined by the inclusion of vehicles and electronic devices among confiscable instruments, rather than by a change in the legal nature of the institution. In the current regulation confiscation combines restorative, preventive and securing functions in the absence of a punitive one, which explains its inter-branch position at the junction of criminal, civil and criminal-procedure law and the impossibility of reducing it to a single branch foundation.