The world has united in non-violent measures against Russia to stop its aggressive war against Ukraine.
The sanctions currently imposed on Russia are rated at 8 out of 10 points. At the same time, many partner countries are currently in the process of developing new legislation that could not only freeze the assets of Russia and its related parties (which has limited effect), but also confiscate them for future transfer to humanitarian and military aid and the reconstruction of Ukraine.
In contrast to the assets of the Russian Federation as a state, the confiscation of Russian assets (individuals) is less financially beneficial, but more of a legal problem. It is clear that it will not be possible to legally confiscate property from everyone who is ‘rich and Russian’. Therefore, it is important to choose the right legal basis and mechanism. Without delving into the details of the discussion on the legislation of other countries[1], this paper will focus on the problems of the Ukrainian model of such confiscation.
To date, two laws have been adopted in the Parliament, but not yet signed by the President (draft law No. 7169 and draft law No. 7194). Since they provide for different models of confiscation and contradict each other in key respects, we assume that only one of the proposed solutions will be supported.
We have already described the risks and problems that may arise in the process of implementing confiscation measures under the draft law No. 7169 in the public space. In the same document, we described the main advantages, controversial issues and risks of the Law (No. 7194).
The advantage of this Law is that it provides for the possibility of confiscation of property located not only in Ukraine but also abroad. This will significantly increase its share, while requiring greater international cooperation. This, in turn, necessitates a solid legal basis for such confiscation and adherence to recognised principles of property rights protection. In focusing on this, we have left aside the question of the constitutionality of individual provisions.
In order to ensure that Ukraine can effectively use the asset confiscation mechanism for its recovery, this analysis has highlighted the main
- advantages of this act compared to the adopted draft law No. 7169;
- risks that may become the basis for future appeals to the ECHR;
- controversial issues that may reduce the efficiency of the asset confiscation process.
Taking into account the results of this analysis and the identified risks when finalising the Law and/or law enforcement is critical for the further recognition of such confiscation as lawful in the context of appeals against certain decisions.