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Civil forfeiture based on the conviction
Civil forfeiture in
Georgia
is regulated in the Chapter XLIV-1 of the Civil Procedure Code. In accordance
with its provisions, the civil forfeiture is applicable, in particular to: the assets, acquired through racketeering;
assets of illegal origin (acquired as a result of violation of the law), belonging to the public official, any of
his family members, close relative or any other person associated with him; unjustified assets (the lawful
origin of which the defendant cannot demonstrate to the court), if belong to the public official, any of his
family members, close relative or any other person associated with him. In the last two cases, the assets
belonging to the person convicted of money laundering are also subject to civil forfeiture.
The procedure of civil forfeiture shall be initiated on the basis of the prosecutor’s application to the court of
civil jurisdiction requesting to confiscate the assets of illegal origin or unjustified assets, belonging to a
person, convicted of corruption or money laundering, or any of his family members, close relative, or any
other person associated with him. The prosecutor may bring such a civil suit over a period of 10 years from
the date, on which the judgement of conviction of the person for the relevant crime had entered into force.
In addition, the prosecutor may request the court to issue the order to freeze the assets, subject to confiscation,
if there is information about possible concealment or assignment of such assets in any other form.
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In accordance with Article 356-5 of the Civil Procedure Code of Georgia, in case the court confirmed that
assets, belonging to the relevant persons, had illegal origin or found to be unjustified, then the specified
assets, upon consideration and taking into account the lawful claims of third parties, should be transferred to
their legitimate owners; if it is impossible to identify the owner – the assets should be transferred to the state
ownership. If only a part of the assets has illegal origin or it is unjustified, such actions shall be applied only
to that part of assets. If it is impossible to transfer the assets back to the legitimate owner or to the state in
original condition, the defendant should pay the amount equal to the value of such assets. Civil forfeiture in
accordance with Article 356-6 of the Civil Procedure Code of Georgia may be implemented following the
trial
in absentia
.
The institution of civil forfeiture of corruption assets is successfully applied in practice in Georgia. One of
the many examples of its application is the case of conviction of 5 citizens of Georgia for abusing the power
and embezzlement of state property in large scale, committed by the public officials, who ensured that large-
scale public contracts have been awarded to the companies, where they had the beneficial ownership. The
defendants in this civil suit were: 5 convicted defendants, 9 members of their families and close relatives,
and 5 persons associated with them. The prosecutor in the criminal case upon identification of the assets,
subject to confiscation, transferred the case to the prosecutor for assets recovery; the prosecutor began his
own investigation for all suspected assets, identified additional assets for confiscation, and obtained the order
to freeze the assets. Subsequently, the prosecutor, responsible for assets recovery, applied for civil forfeiture
based on the regulation of unjustified assets, referring to the fact that none of the defendants had a source of
income to ensure acquisition of so many valuable assets within the period under consideration. In the
meantime, the defendants failed to provide the evidence to deny the claim of the prosecutors’ office. As a
consequence, the court confiscated the unjustified assets, in accordance with civil law, to the total amount of
Georgian Lari 14,500,000 (about USD 5.6 million), namely: money (Lari 700,000), 30 houses, 3 motor
vehicles, 2 plots of land, 3 office premises, stocks, the restaurant, the plant, the filling station and the bank.
Both the Court of Appeal and the Supreme Court upheld the judgement, which was successfully executed
by the National Executive Bureau
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.
The institution of civil forfeiture in
Ukraine
appeared in 2015, when the Civil Procedure Code was amended
by the new Chapter 9 – ‘The Specific Features of Proceedings Related to Recognition of Assets as Unjustified
and Their Recovery’, comprising of only three quite short Articles.
In accordance with Article 233-1 of the Civil Procedure Code, the claim to recognize the assets as unjustified
and recover them from the persons, specified in this Article, shall be submitted by the Prosecutor for the
benefit of the state over the general limitation period of [3 years] from the date, when the judgement of
conviction against a person, authorised to perform the state functions or the local self-government functions
(hereinafter referred to as the ‘Public Official’), came into legal force. Such claim may be brought against
the public official, subject to the judgement of conviction, which came into force on convicting him of the
corruption crime commitment or money laundering, or against the legal entity, associated with him, which
owns (uses) the property, for which there are evidences that the reported public official had acquired this
property, was using it or disposing (had disposed) of it.
However, it is neither provided by the Law to consider the individuals, which are informed third parties, to
be the possible defendants in this case, nor any definition and clear criteria are given to recognize the legal
entities as associated ones. Whereas, it is just provided in Article 233-2 of the Civil Procedure Code that the
court may recognize the assets as unjustified in case it was not proven in the court, based on the provided
evidences, that the assets or money, needed to acquire these assets, have been legally obtained.
In accordance with Article 233-3 of the Civil Procedure Code of Ukraine, in case of the recognition by court
of the part of assets as unjustified, then only this part of the defendant’s assets shall be recovered to the
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See the Questionnaire on the 'Confiscation of instrumentalities and proceeds of corruption offenses' thematic study, filled out by
the relevant authorities of Georgia; answer to question No. 73, including attachment thereto.
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government revenue; in case this part is impossible to be separated, its cost would be recovered. In case the
enforced collection of the assets, recognized as unjustified, is impossible, the defendant shall be obliged to
pay out the cost of these assets. Considering imperfections of the institution of civil forfeiture as amended
by the Chapter 9 of the Civil Procedure Code, there is no practice for application of its provisions in Ukraine,
as of 2017.
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