Criteria of Legitimate Restriction of Ownership during Property Arrest in Criminal Proceedings in the Light of Practice of the ECHR

Abstract

The article deals with the topical questions for modern law-enforcement practice, which are connected with determining the lawfulness of the state’s interference into the right to peaceful possession of property in criminal proceedings while applying such a measure to ensure criminal proceedings as seizure of property. It is noted the important role of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 1 of Protocol No. 1 to the Convention, which sets out the criteria of assessing the lawfulness of interference in the property rights. The authors analyze in detail these criteria – legitimacy, legitimate purpose, necessity in a democratic society. This analysis is made on the extensive use of the case law of the European Court of Human Rights. It is highlighted, that the development of the criteria of the legitimate restriction of the persons’ rights in criminal proceedings is urgent, because during arresting the property the legislator demands from the legislative judges to take into account among others the reasonableness and proportionality of restraint of property rights in the criminal proceedings and to apply the least burdensome way of arrest, which will not result in the restraint of lawful entrepreneurship of a person or other consequences which have the significant effect on the interests of others. On the basis of generalization of the practice of giving the rulings by the investigative judges on satisfaction or dismissal a satisfaction of the motion of the investigator, prosecutor about seizure of property, it is concluded that national courts gradually accept the novelties and requirements of the law and practice of the ECHR, but most often during deciding the motion of the investigator in the declaration of the ruling the standard argumentation of the general nature is used, the general content of the articles of the CPC is quoted without attempts to analyze the legality of the restriction, the purpose of such restriction, the proportionality of the interference of the state in the rights of a person, which corresponds the purpose. Meantime, it is important to have a proper systematic, logical, consistent argumentation, which, as a rule, is lacking in the rulings. The article develops and proposes a model of logical argumentation, following which the investigative judges will be able to formulate correctly the declaration of the ruling on satisfaction or dismissal a satisfaction of the motion to seizure of property. The authors emphasize that the legitimacy of the purpose of seizure of property is established basing on the requirements of the law. A measure which is objectively necessary in the presence of certain grounds and conditions is reasonable. Suitable is a mean by which the desired aim can be achieved. The measure is necessary, if there is no other, equally suitable but less burdensome for a person, and just it is necessary for solving an urgent social problem. Proportional may be the measure, using which the encumbrance that will be imposed on a person, taking into account all the circumstances and risks, will be proportionate to the aim, which may be achieved during applying this restriction. At the final stage, an assessment is made whether the desired result, taking into account all the analyzed conditions, is commensurate with the restriction of a person’s right to a peaceful possession of property. In the view of the authors, the proposed model of argumentation is universal, capable during deciding the question of arresting of property to restrict the discretion of the law enforcer, to protect a person from arbitrariness of public authorities, as well as to become a methodological basis for making a criminal procedural decision.