Forfeiture in Civil Proceedings
Asset forfeiture constitutes an instrument of criminal procedure and should not be transposed into civil adjudication.
Attorney Ksenia Ryabkina, Counsel at INTELLECT, comments on Alexander Krakowsky's article "The Reincarnation of Article 169 of the Russian Civil Code"
One cannot but agree with the central thesis of A. Krakowsky's article: as of today, the confiscation of criminally obtained property within civil proceedings remains legally unfeasible without corresponding amendments to civil legislation.
Indeed, current legislation does not permit the confiscation of unlawfully acquired assets, except for compulsory forfeiture to the state under subclause 8, clause 2, Article 235 of the Russian Civil Code (RCC). However, even this mechanism applies exclusively to individuals holding certain public offices who are legally required to disclose their income and expenditures under Federal Law No. 230-FZ "On Control Over Compliance of Expenses of Public Officials and Other Persons with Their Income" (03.12.2012), Federal Law No. 273-FZ "On Combating Corruption" (25.12.2008). For persons not covered by these laws, confiscation on such grounds is legally impermissible.
Certain courts have attempted to transfer criminally obtained property to the Russian Federation by invoking Articles 104.1 and 104.2 of the Criminal Code (CC), which regulate asset forfeiture as a compulsory, non-compensatory seizure in favour of the state. However, these provisions cannot serve as a legal basis for civil law consequences of transaction invalidity. Confiscation under Articles 104.1 and 104.2 CC is a criminal law measure and is permissible only upon a conviction in criminal proceedings—not by a civil court ruling. This position is consistent with the rulings of the Russian Supreme Court (e.g., Decisions No. 88-KG23-2-K8 of 13.06.2023 and No. 51-KG23-6-K8 of 05.12.2023).
This raises the question: Is it necessary or advisable to introduce confiscation into civil proceedings and amend existing legislation accordingly?
In my view, no such amendments to civil law are warranted.
First, confiscation is a public law sanction for public offences, not a mechanism applicable to civil law relations.
Thus, the stance taken in Constitutional Court Ruling No. 49-P of 31.10.2024 (referenced by the author) is highly questionable. The Constitutional Court (CC) asserts that subclause 8, clause 2, Article 235 RCC, read in conjunction with Article 169 RCC, reflects a public law measure intended to ensure a transparent and predictable procedure for transferring ownership to the Russian Federation.
This approach contradicts fundamental civil law principles (equality of parties and party autonomy) and endangers bona fide participants in civil transactions by enabling confiscation without sufficient legal grounds, given that civil proceedings do not establish criminal liability.
Second, the legislature has already successfully integrated confiscation into criminal procedure. Its non-application in criminal cases stems solely from ineffective enforcement by state authorities.
Prosecutors and courts possess all necessary tools to enforce confiscation against a convicted defendant within criminal proceedings. Current law permits confiscation upon establishing an offence (Articles 104.1, 104.2 CC and Article 3.7 of the Administrative Offences Code).
Thus, the confiscation of criminally obtained property is a public law measure applied in criminal or administrative proceedings. It serves public interests and cannot be transposed into civil law mechanisms. Attempts to introduce confiscation into civil procedure may undermine civil law principles and create unwarranted risks for civil transactions.
By adopting Ruling No. 49-P of 31.10.2024, the Constitutional Court has effectively legitimised confiscation in civil proceedings, expanding the application of subclause 8, clause 2, Article 235 RCC and Article 169 RCC to individuals legally obliged to disclose financial information.
This broad interpretation of civil law provisions paves the way for further expansion of confiscation in civil litigation. It cannot be ruled out that the Constitutional Court may extend this mechanism to other categories of persons through similar rulings in the future.
Source: Advokatskaya Gazeta (No. 4 (429) / 2025)
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