Collection of assets into state income: unique Ukrainian measure as seen from the perspective of human rights and fair trial standards

Purpose In 2022, after the full-scale invasion, the unique measure was introduced by the amendments to the Law of Ukraine “On Sanctions,” namely, collection of the assets into state income. The measure aims to force private persons who in one way or another contribute to the aggressive war against Ukraine to modify their behavior. It effectively allows to seize and turn into state property the assets belonging to private persons (both individuals and legal entities). The purpose of this paper is to analyze this measure and practice of its application through the lens of European standards of human rights. Design/methodology/approach This study provides an overview of the provisions of the Law of Ukraine “On Sanctions” and the Code of Administrative Procedure pertaining to the sanction measure in the form of collection of the assets into state income. Then, the authors analyze the case law of the High Anti-Corruption Court (HACC) that applies the relevant provisions of law. In particular, the analysis focuses on whether the sanction is compatible with the right to peaceful enjoyment of one’s possessions (protection of property). The jurisprudence of the European Court of Human Rights (ECtHR) serves as a reference point. Next, compliance with the standards of fair trial are examined. Particular attention is paid to the fact that most of these cases are tried in the absence of the defendants. Finally, the thorniest substantive issue will be in focus, namely, how to establish whether the defendant exerts effective control over the asset without having official title over it. In this context, the problem of good faith third party protection will be touched. Findings The analyzed measure resembles non-conviction-based forfeiture as it is directed against private persons (individuals and corporations), is implemented in a judicial procedure and does not involve criminal conviction. The HACC’s jurisprudence demonstrates Ukraine’s commitment to the rule of law. While considering these cases, the HACC conducts thorough balancing of competing interests using the proportionality test developed by the ECtHR. This is true with regard to both the right to peaceful enjoyment of property and the right to fair trial. In the absence of postal communication between Ukraine and Russia, the HACC takes all possible measures to inform the defendant of the hearings. However, the damage that the Russian war has brought about and continues to bring about is so grave that the goal of putting an end to it has a considerable weight in the scales of Themis when the Court exercises the proportionality test and decides on whether the interference with the defendant’s rights is compatible with the European standards of human rights protection. Originality/value This paper presents an original analysis of the unique Ukrainian restrictive measure as seen from the perspective of human rights standards.