Confiscation of Part of Crime Instrumentalities or Part of their Value and Principle of Proportionality Cover Image

Nusikaltimo padarymo priemones dalies konfiskavimas ar jos vertes dalies išieškojimas iš proporcingumo principo perspektyvos
Confiscation of Part of Crime Instrumentalities or Part of their Value and Principle of Proportionality

Author(s): Skirmantas Bikelis
Subject(s): Criminal Law
Published by: Lietuvos teisės institutas
Keywords: confiscation; crime; Criminal Code

Summary/Abstract: The article discusses the spectrum of possible legal frameworks and decisions in the field of confiscation of the instrumentalities of the offence in the light of the constitutional principles of proportionality and equality. Having legal imperative in the Criminal Code to confiscate instrumentalities in every case where accused person is convicted, until recent years employment of the constitutional principle of proportionality for the challenging of this imperative has been traditionally very rare and legal thinking has been rather undeveloped in this field. With the criminalization of drunk driving in the beginning of 2017, the problem of proportionality of confiscation of the instrumentality (a car) became the subject of the judicial reasoning rather often. The article discusses recent judicial practice and explores the reasoning in favour of confiscation of the instrumentalities of the offence and against it. The author argues that dilemma of confiscation or non-confiscation may not be sufficient to reach the fair decision in many cases and the confiscation of part of instrumentalities (or even more often – of the part of the value of the instrumentalities) could often be the fair, proportionate and balanced decision. Moreover, the author challenges judicial practices where the whole burden of confiscation is being placed on only one of the accomplices. He argues that principle of fairness requires to distribute the burden of confiscation (at least – confiscation of the value of the instrumentality) in fair and proportionate manner among accomplices with regard to their role in the offence and to all the circumstances of the particular case.

  • Issue Year: 2/2018
  • Issue No: 96
  • Page Range: 5-20
  • Page Count: 16
  • Language: Lithuanian