Garaev, A.A. Administrative confiscation.

Abstract: The author evaluates the issues of application of sanctions of confiscation of the means of commission or an object on administrative offence from persons, not being owners of such property. According to the opinion of the Constitutional Court of the Russian Federation, and the current legislators, who have amended the Administrative Offences Code of the Russian Federation, application of confiscation of means of commission or an object of an administrative offence as a punishment for the administrative offence from a person, who is not an owner of such an object, is not admissible. An exception is made only for the confiscation in the cases for the violation of the customs rules. When making a decision, the Court has studied a specific case, when the punishment was assigned according to one of the articles of the special part of the Administrative Offences Code of the Russian Federation providing for confiscation. At the same time, the court has made a conclusion that it is prohibited to apply confiscation in all of the norms of the Code providing for it (with an exception of the violations of the customs rules). The article contains analysis and comparison of the positions and substantiations of the Constitutional Court of the Russian Federation on the issues of application of confiscation for the administrative offences, as reflected in the decisions for the period between 1999 and 2011. The author also evaluates the positions of other authors on this issue. Via the systemic analysis of other norms of law the author provides his opinion on this issue. The author has studied judicial practice of the late years on the issues of confiscation applied by the courts as punishment for the administrative offences cases, including the practice on customs offences, where the confiscation of the object or means of commission of an administrative offence from an non-owner is acceptable. For the first time the author has studied the consequences of this decision upon the legal practice. Based upon the data provided by the Judicial Department of the Supreme Court of the Russian Federation it is noted that the application of confiscation by the courts in administrative offences cases has practically ceased, except for the cases on violations of the customs rules. Most of the confiscated goods is currently destroyed, due to the fact that such goods are prohibited or limited in their legal turnover. Another consequence of prohibition of confiscation from the non-owner became inequality between the offender being an owner or holder of the object or means of commission of an administrative offence. It is possible to confiscate an object or means of committing an offence, but one cannot apply the same measures to the mere holder of such an object or means. It is proposed to improve the interaction of the state government bodies regarding operative amendments in the legislation regarding the norms, which have been recognized as being unconstitutional by the Constitutional Court of the Russian Federation. There is a proposition for the Constitutional Court to actively use the right of legislative initiative in order to fill in the gaps in the abolished legal norms.

Keywords: