Scientific-practical conference “Civil Forfeiture in Lithuania: Step Forward or Backward?”
On 1st of October 2019 the Faculty of Law of Vilnius University hosted a scientific-practical conference “Civil Forfeiture in Lithuania: Step Forward or Backward?”, organized by Faculty of Law of Vilnius University, during which civil and criminal law specialists shared insights about the institute of civil confiscation of property, the relationship of this institute with constitutional and criminal law, principles of law, the appropriateness of the legal regulation of civil confiscation of property and the issue of evidence in civil proceedings regarding confiscation of property. Also, during this conference, the question was raised whether there is any place for property confiscation in the Lithuanian civil law system. The participants of the conference had a unique opportunity to find out not only what motives led to the creation of the draft law on the civil confiscation of property of the Republic of Lithuania (the Draft Law), but also how Italian lawyers with many years of experience in the application of civil confiscation of civil property evaluate this institute. Professor Angelo Viglianisi Ferraro of the Mediterranea University of Reggio Calabria gave a presentation on the topic of human rights in the context of the application of civil confiscation of property.
Congratulating the participants of the conference, VU TF vice-dean assoc. prof. Dr. Haroldas Šinkūnas drew attention to the fact that knowing the thoughts of philosophers and great people is very important when considering such a proposed law as the law on the civil confiscation of assets of the Republic of Lithuania. “Nicolas Machiavelli once very aptly observed that people will sooner forgive the loss of a father than the loss of property. So, if they take away our property, we will react very sensitively.” Citing the explanatory text of the draft law, the vice-dean of the TF of VU also drew attention to the fact that, in principle, establishing the possibility of civil confiscation of assets aims to find ways to fight against illegal enrichment in cases where pre-trial investigations regarding illegal enrichment are terminated after the initiation, and after the case is transferred to court, acquittals are passed against the accused. Assoc. Prof. Dr. H. Šinkūnas wished the participants and speakers of the conference interesting insights and thoughts, and did not doubt the expediency of taking the useful observations made during the conference into account when improving the current draft of the Law.
Criminal law professor Armanas Abramavičius, who called the topic of the conference provocative, singled out two aspects in the context of civil confiscation of property, firstly, the legally questionable negativity of the institute in question and secondly, the current draft of the Law. In the professor’s opinion, the draft law, in contrast to the institute of civil confiscation of property itself, is “one step forward and two steps back”, while the very issue of establishing the institute of civil confiscation of property in the Lithuanian legal system is worthy of discussion. A number of criminal acts are committed out of selfish motives in order to obtain material benefits, so in such a case, when imposing punishments and other punitive measures on a person, it is important not only to punish such a person, but also to take the property obtained by criminal means from him. So, make it so that “crimes don’t pay”, A. Abramavičius taught his thoughts. Although, on the one hand, the professor of criminal law welcomed the aspiration to find new, effective measures for the fight against organized crime, crimes of a corrupt nature or selfish crimes, he also noticed that when establishing such measures, it is important to take into account the imperatives arising from the Constitution of the Republic of Lithuania, not to violate the general principles of law, not to deviate from purposes and essence of criminal law.
Analyzing the grounds for applying the civil confiscation of property enshrined in the draft Law, the criminal law specialist came to the conclusion that the provisions in question raise doubts about their compliance with the principles of proportionality and the presumption of innocence. In the opinion of Professor A. Abramavičius, the relationship between the institute of civil confiscation of assets and the criminal process and measures of criminal impact – confiscation of assets and extended confiscation of assets, as well as the crime of illegal enrichment – has not yet been clarified. “There is also a lack of clarity in the jurisdiction of civil asset confiscation cases. It should be considered whether special norms of the Civil Code regulating the judicial process of civil confiscation of property should be adopted.” Pointing out that the draft law enshrines the rule that the burden of proof in civil confiscation cases falls not on the prosecutor, but on the person whose property’s origin is being resolved, prof. Armanas Abramavičius also emphasized the fact that it is not clear what standard of proof the court will have to apply in civil confiscation cases.
Professor habilitated doctor Vytautas Nekrošius did not lack criticism based on legal arguments when evaluating the proposed draft Law. After discussing the existing practice of the Constitutional Court of the Republic of Lithuania, in which there is not even a hint about the civil confiscation of property, the professor also doubted the compliance of the Draft Law with Article 23 of the Constitution of the Republic of Lithuania. Prof. Habil. Dr. Vytautas Nekrošius also criticized the provisions of the draft law, which show that an act at the level of a general commissioner’s order is sufficient for a real danger to personal property to arise. The professor also found it unjustifiable that “the authorities of the pre-trial investigation or the prosecutor, if it appears to them or it is necessary for it to appear that a person’s property is more valuable than his income, without any court can basically seize the accounts of such a person”. Evaluating the provision of the draft law, which stipulates that the investigation of the property is carried out for a period of no longer than ten years before the acquisition of this property, the professor indicated that it has nothing to do with the statute of limitations for claims established in civil law, since the ten-year period is calculated not according to the procedure established by the CC , and from the acquisition of property. In this context, paying attention to the fact that the six-month period during which the investigation must be carried out can be extended for a maximum period of six months, prof. Habil. Dr. Vytautas Nekrošius noted that it is most likely that this provision will be interpreted differently by those conducting the investigation, as limiting the extension period, but not the number of extensions. This means that the investigator conducting the investigation, after receiving the consent of the prosecutor, will be able to extend the term in question an unlimited number of times.
Reviewing the issue of proof in the civil process for confiscation of assets, Vytautas Nekrošius emphasized that in this process it will not be possible to prove one’s income by all possible means, since the proposed draft Law stipulates that sources of property acquisition and/or income generation are substantiated by documents confirming transactions that meet the requirements of the law, other as documents with legal force, which, as the professor emphasized, are not considered verbal loans or gift agreements. According to Prof. Habil. Dr. Vytautas Nekrošius obviously creates an opportunity to violate a person’s right to be heard. The draft law also contains a proposed rule based on which a different standard of proof would be established for the parties to the dispute – simpler for the state and more complicated for the person, which according to prof. habil. dr. Vytautas Nekrošius, “it clearly contradicts the principle of equality of all persons enshrined in Article 23 of the Constitution”. “It follows from the proposed regulation that it is sufficient for the state seeking to confiscate a person’s property to prove that it cannot be ruled out that the defendant could illegally acquire the property to be confiscated. Meanwhile, the defendant will need to prove that he acquired the property really legally. “I have yet to come across such an inadequate power imbalance and disrespect for a person and his rights from the power structures (because in fact the project was most likely born there),” with fear said Prof. Habil. Dr. Vytautas Nekrošius.
Dr. Skirmantas Bikelis of the Lithuanian Law Institute also shared his insights on the appropriateness of the legal regulation of civil asset confiscation in Lithuania. Noting that it is necessary to look for an effective instrument in the fight against income that could not be obtained by legal means, Skirmantas Bikelis revealed the ECtHR’s position on civil asset confiscation, which expresses approval of the practice according to which a type of process such as civil asset confiscation (in rem), which is not connected with by establishing guilt, in the sense of the Convention, it is not considered a punishment, but a “civil” process. In this context, dr. Skirmantas Bikelis emphasized the fact that, in any case, the question of proportionality of the intervention in the ownership right remains a fundamental issue when applying the civil confiscation of property. In order to reveal the relationship of civil confiscation of assets with other processes and to show the added value of this institute, dr. Skirmantas Bikelis drew attention to the fact that in the Republic of Lithuania, in this context, there are several related measures competing with each other. These are the criminalization of possession of assets of uncertain origin, extended confiscation of assets, tax penalties for failure to explain the origin of income and ownerless assets, so it would be appropriate to choose the most effective one. The advantages of the Institute of Civil Confiscation of Assets dr. S. Bikelis named: the standard of proof and the admissibility of presumptions of illegality of assets, the relationship with the criminal process, specialization, and he considered the risks to be the basis of proportionality, the process of proof, the relationship with the presumption of innocence and the criminal process.
Professor Angelo Viglianisi Ferraro from Italy, while discussing problematic issues related to human rights in the context of civil confiscation of property, noted that the approach of the Republic of Lithuania and the Republic of Italy to property rights is different. According to the Constitution of the Republic of Lithuania, property is inviolable, while there is no such provision in the Constitution of the Republic of Italy, where it is stated that property is state or private. Thus, if a person acquired property through illegal (criminal) actions, it is considered that the property does not legally belong to the person. Accordingly, confiscation of such property (without payment of compensation) does not violate a person’s right to property, since he never legally had it. The professor pointed out that such a position is basically based on the fact that property that is not legally owned by a person is confiscated, but property that does not legally belong to this person. In light of this, confiscation of assets is a proportionate measure. In this context, the professor of Calabria’s Reggio Mediterranea University also noted that in such cases there is no violation of the presumption of innocence, since the person is given the right to prove that the property he has was acquired by legal means. In addition, he emphasized that according to the legal regulation of the Republic of Italy, confiscation is an instrument of criminal law, which has been established in the criminal code for a long time, and specified that a separate legal act regulating the civil confiscation of property is currently in force in the Republic of Italy. Continuing to teach his thoughts and taking into account the practice of civil confiscation of property in the Republic of Italy, Prof. Angelo Viglianisi Ferraro shared a proposal, in order to consolidate the institution in question in the Republic of Lithuania, to create such rules and procedures that would comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms, otherwise, the state will not be protected from citizens who believe that the right to property has been violated after confiscation of their property permanent appeal to the European Court of Human Rights.
The main organizer of the conference, Assoc. Prof. Dr. Laurynas Didžiulis, in order to answer the question whether there is a place for asset confiscation in the Lithuanian civil law system, reminded about as early as 1964 the possibility of civil confiscation of assets valid in the Central Committee of the Slovak Republic, which in 2000 was removed as a foreign body during the civil law reform. In view of this, Assoc. Prof. Dr. Laurynas Didžiulis concluded that, judging from a historical perspective, the establishment of the civil property confiscation institute is an undoubted step back and pointed out that the CC is not the place for criminal sanctions. “Civil” asset forfeiture is civil only insofar as it relates to civil proceedings, but it has nothing to do with civil remedies and has nothing to do with substantive civil law. This is not a civil law institute,” stated Assoc. Prof. Dr. Laurynas Didžiulis. Evaluating the draft Law in the context of evidence, the assistant professor drew attention to the fact that the draft Law enshrines the theory of probable cause, but only to the prosecutor and indicated that “In all court processes of the Republic of Lithuania, the standard of proof aims at least at a clear conviction (high probability) and is higher than the balance of probabilities, not to mention the extremely low standard of probable cause.” In search of an answer to the question of what is civil forfeiture, assoc. prof. dr. Laurynas Didžiulis indicated that on a global scale, civil confiscation is understood in various ways: as a special form of civil liability (USSR and Russian civil law doctrine), unjust enrichment (Russian, Australian court practice), restitution (Lithuanian Law Institute), vindication (some Russian authors ), special in rem action (ECtHR, US state law) and criminal sanction (US Supreme Court, legal doctrine). After evaluating these examples, Assoc. Prof. Dr. Laurynas Didžiulis stated that “in the sense of material law, confiscation is an instrument of public legal responsibility – a measure of criminal or administrative impact that is applied in civil proceedings. Similar to how civil liability applies in criminal proceedings.”
You can see the videos of the presentations on the YouTube channel of the VU Faculty of Law:
Welcome speech by Assoc. Prof. Dr. Haroldas Šinkūnas, Vice Dean of VU Faculty of Law;