Article 53, 54 and 56.
Measures for direct recovery of property and confiscation tools

In 2021, 12 requests for the recognition and enforcement of a foreign court judgment were considered by the courts of first instance as part of international legal assistance, of which eight were granted, two were denied, one was returned, and one has not yet been considered. There were also 10 requests for the seizure and confiscation of property, of which seven were granted by Ukrainian courts and three were rejected.

In 2022, two requests for the recognition and enforcement of a foreign court judgment were pending in the courts of first instance under the international legal aid procedure, of which only one was granted. There were also two requests for the seizure and confiscation of property, both of which were granted by Ukrainian courts.

However, these statistics comprise all crimes, not just the offenses covered by UNCAC, so there is no evidence of active international cooperation in asset recovery. Ukraine is constantly improving its anti-money laundering legislation and is not an attractive jurisdiction for such actions, and the fact that Ukraine is at war affects the inflow of foreign capital to Ukraine in general. Ukraine’s position is 65th place out of 128 countries in the Basel Institute's 2022 AML rating and 78th place out of 152 in 2023.

Concerning requests for confiscation of property abroad filed by domestic courts, the experts interviewed noted that this practice was absent in the case of the HACC at the time of preparation of this report. After the full-scale invasion of Russia, Ukraine introduced a mechanism that allows for the confiscation of assets of Russian Federation accomplices (oligarchs, MPs, senators, etc.) as part of the sanctions regime. As of September 2023, 29 such decisions have been rendered. As for the confiscated assets, so far all of them are located in Ukraine. However, it is likely that assets abroad may also be confiscated in the future, thus we are waiting for the corresponding cases to appear in HACC soon. Therefore, both the Ministry of Justice when preparing claims and the HACC when rendering judgments should take into account the potential possibility of confiscation of property of Russian Federation accomplices abroad.

In cases where the seized property of a foreign state has been confiscated by Ukraine, the requesting party may decide to confiscate this property in its favor to compensate the victims for the damage caused by the crime. At the request of the Office of the Prosecutor General, the court may decide to approve the transfer of confiscated property or its monetary equivalent on the basis of a request or in accordance with international treaties of Ukraine regulating such allocation issues. Despite the legislative provision, no such practice has been observed in Ukraine in the last three years.

The number of persons subject to special confiscation in 2021 and 2022 amounted to 678 and 530, respectively. At the same time, the number of verdicts that came into force for criminal offenses and in which special confiscation was applied in accordance with Articles (191, 209, 368, 368-3, 368-4, 369, 369-2) of the Criminal Code of Ukraine (corruption offenses) is 152 in 2021 and 14 in 2022. The experts interviewed noted that the possibility of applying special confiscation is provided for in the legislation, but there is no settled international practice of applying this mechanism.

As of September 2023, the SACPO has filed 10 lawsuits with the HACC to recognize assets as unjustified (obtained by criminal means) and recover them for the state. In one case, the claim was denied. About 30 thousand euros and 1.25 million UAH have already been confiscated from a former Member of Parliament, who was charged with high treason in April 2022. Other cases are at different stages of the proceedings (first instance, appeal, and even the Supreme Court). It is also possible to apply this mechanism to foreigners who, for example, can file declarations in Ukraine. However, there is no practice of such application. There are also no cases of civil forfeiture of assets of Ukrainian citizens abroad. It is important to note that only assets acquired by a person after November 28, 2019 (the date of entry into force of the special law) are subject to confiscation. Assets acquired earlier, even if their value does not correspond to the official's legitimate income, are not subject to confiscation. The application of the civil procedure rules with the "balance of probabilities" standard of proof speeds up the proceedings.

Due to the full-scale invasion of Ukraine by Russia, access to the register of declarations was restricted. As a result of the submission of declarations becoming optional since February 24, 2022, most of the data on declarants' assets for 2021 and 2022 is missing. This has affected the use of the NCBF tool in Ukraine, as electronic declarations were one of the most important sources for obtaining information about assets and the possibility of declaring them unjustified. With the resumption of the obligation to file declarations and opening of the register in September 2023, we expect the use of the NCBF in Ukraine to intensify.