Golovanova N.A. Confiscation vs. Corruption (Foreign Experience)

Abstract: This article is concerned with issues of foreign states successful experience of legislative regulation of assets forfeiture mechanisms resulting from corruption offenses. Confiscation of assets of the perpetrator, if a crime was committed out of mercenary or corruption motives, according to the author, is the fairest society response. The purpose of confiscation proceedings is to deprive the defendant of the financial benefit that he or she has obtained from criminal conduct. Modern states are increasingly using different types of confiscation to deprive criminals of any proceeds derived from corruption-related offenses (all free property wherever situated and includes money; all forms of real or personal property; and things in action and other intangible or incorporated property). In many countries, confiscation in rem is widely applicable. This method allows confiscation of illicit assets, the proceeds of crime, hidden by the third parties (relatives, heirs, partners) out of criminal procedure. Application of civil procedure methods transfers the burden of proof to the defendant. This is one of the main advantages of civil forfeiture compared with traditional criminal confiscation. The article analyzes what changes this institution is currently undergoing. Examples of this are the Australian laws on unexplained wealth. Under the influence of international instruments extended confiscation is increasingly introduced in modern foreign criminal law, which allows to use similar methods with civil proceedings. Having analyzed the forfeiture legislation in relation to the proceeds of corruption of several foreign countries in recent years (Italy, Slovenia, Australia, The Republic of Korea and others), the author concludes that there are significant changes in the traditional approach to this institution. It can be said that the scope of the institution is extending and modified in various jurisdictions. The author believes that foreign experience can be obtained to address Russian issues.

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