Seizure of property in a criminal case

Currently, such a measure of procedural coercion as the seizure of property is widely used (Article 11 of the Code of Criminal Procedure of the Russian Federation). Unfortunately, it is also one of the most problematic, giving rise to numerous abuses by investigative bodies. The application of such a measure may entail an unjustified restriction of the constitutional rights to the inviolability of private property and the free use of one’s property for business and other economic activities. And it happens that this measure is, in fact, used as a “method of pressure” in criminal proceedings, which, naturally, does not meet its purpose.

Within the framework of this article, it is impossible to describe all the legal subtleties and problems of applying seizure of property, but let me draw the reader’s attention to a number of circumstances.

The Code of Criminal Procedure of the Russian Federation requires that the court decision on arrest (on its extension) indicate “specific, factual circumstances on the basis of which the court made such a decision.” But this can be understood as the need to argue that there are grounds to believe that this property was obtained as a result of a crime or was used as an instrument of crime, to finance criminal activities, etc. Russian law enforcement practice followed the path of precisely this interpretation. As a result, orders to seize property are very stingy in providing specific justification for the need for its imposition.

A typical example. The court arrested the bank accounts of a number of legal entities on the basis of the following documents: decisions to initiate a criminal case and to conduct a preliminary investigation by the investigative team, a decision to conduct a search and its protocol, “reports, certificates of examination of documents... requests and answers of an informational nature, in particular about numbers of current accounts opened by legal entities.” It is clear that all these documents were of a formal nature, and none of them specifically confirmed the investigation’s version that funds obtained through illegal banking activities were credited to the seized accounts (on the basis of which the seizure was imposed). However, this did not prevent the court of first instance from granting the request for seizure, and although the appellate court overturned this decision, pointing out an unreasonable and excessive restriction of property rights and freedom of entrepreneurial and other economic activity, such an outcome of the case is the exception rather than the rule.

As for the specification of the seized property , it can be carried out both in the court ruling itself and later, in the protocol drawn up by the investigator or interrogating officer. The court may limit itself to indicating whose property is being seized and for what amount.

In the same way, at the discretion of the inquiry officer or investigator, the issue of storage of seized property is decided: whether it will be left in the custody of the owner or possessor, transferred to another person, or seized for storage in a criminal case (Part 6 of Article 11 of the Code of Criminal Procedure of the Russian Federation). Thus, the law does not in any way limit the discretion of the law enforcement officer in this matter. Meanwhile, this or that decision may be of no small importance for the property owner. And this uncertainty remains despite the fact that the European Court of Human Rights drew attention to the importance of this issue of the possibility of leaving seized property with the owner, for example, in the case “Borzhonov v. Russia” (paragraph 61 of the Resolution of January 22, 2009; complaint No. 18274/04).

The law provided for the need to indicate in the decree on the seizure of property the specific restrictions imposed . However, in practice, they are often formulated as broadly as possible, or the registering authorities often ignore this list, making only a general entry about the seizure of property. Thus, in one of the cases, the Federal Registration Service for the Moscow Region reflected the imposed pursuant to Art. 11 of the Code of Criminal Procedure of the Russian Federation “arrest in the form of a prohibition on the owner to carry out transactions the subject of which is a sale or other alienation” simply as an arrest, as a result of which the owner was deprived of the opportunity to register lease agreements in relation to his property. It is noteworthy that in this case, the Federal Registration Service made a request to the preliminary investigation authorities, to which they received a response that any registration actions in relation to the object were inadmissible.

One of the latest innovations in the practice of the Constitutional Court of the Russian Federation is Resolution No. 18-P of April 17, 2021, by which the court assessed the constitutionality of Part One of Article, Part One of Article 299 and Article 307 of the Criminal Procedure Code of the Russian Federation.

The contested provisions regulate the circumstances to be proven in criminal proceedings, issues resolved by the court when rendering a verdict, as well as the content of the descriptive and motivational part of the guilty verdict.

These provisions were the subject of consideration insofar as on their basis the court verdict decides the issue of preserving, after the verdict enters into legal force, a seizure imposed in the framework of criminal proceedings on the property of a person who is not the accused or a person legally liable for his actions. , in order to secure a civil claim.

The Constitutional Court recognized the challenged provisions as inconsistent with the Constitution of the Russian Federation. In pursuance of this Resolution of the Constitutional Court of the Russian Federation, on December 17, 2019, the State Duma of the Federal Assembly of the Russian Federation adopted in the first reading a bill on the period for arresting the property of a third party in a criminal case.

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SC review: when courts should not seize property

The Supreme Court notes that an analysis of judicial practice shows that the courts, when resolving the requests of the investigator, interrogating officer to seize the property of the accused on the grounds provided for in Part 1 of Art. 115 of the Code of Criminal Procedure, basically correctly apply the provisions of the law. A significant portion of requests for seizure of property are considered in criminal cases of corruption crimes.

Whose property?

The Supreme Court reminded that under Part 1 of Art. 115 of the Code of Criminal Procedure, seizure can only be imposed on the property of the accused/suspect, but the courts must check whether the property named in the petitions actually belongs to these persons. Only in cases where it clearly follows from the case materials that the property of third parties actually belongs to the accused or was acquired by him with proceeds received from crimes, the courts can reasonably seize such property. As an example, the decision of the Pyatigorsk City Court of the Stavropol Territory dated November 28, 2017 is given. Then the hotel came under arrest. It was owned by a certain LLC, the founders of which were close relatives of the defendant under Part 4 of Art. 159 of the Criminal Code (fraud committed by an organized group or on an especially large scale). Then the court found that the hotel was purchased with criminal proceeds, and was registered in the name of third parties in order to hide the proceeds. The court imposed the arrest to ensure compensation for damage to the budget (about 82 million rubles).

Single dwelling factor

Seizure cannot be imposed on property that cannot be foreclosed on according to the Civil Procedure Code (enshrined in Part 4 of Article 115 of the Code of Criminal Procedure). Therefore, when deciding issues of arrest, the judge must ensure that this rule is observed. For example, if a certain premises is the only place suitable for permanent residence for the accused and his family, then he cannot be arrested. Based on precisely this circumstance, the Lomonosovsky District Court of Arkhangelsk on June 2, 2021 refused to arrest the apartment of Alexey Stepanov*, who was accused under Part 6 of Art. 290 of the Criminal Code (receiving a bribe on an especially large scale). The court may refuse to seize it when it is impossible to understand from the materials submitted to the court whether the property falls under the property that cannot be foreclosed on. On October 22, 2021, the Beloretsky Interdistrict Court of the Republic of Bashkortostan refused to seize the property of Sergei Ivanov, since it was not clear from the materials whether this housing was the only one suitable for joint living. The same part 4 art. 115 of the Code of Criminal Procedure is the basis for canceling the arrest on appeal if the court of first instance did not take this part into account when satisfying the petition.

Proportionality to property penalties

The Supreme Court noted that the value of the property that is seized should not exceed the maximum fine (it is established by the sanction of the article of the Special Part of the Criminal Code). Another option is that the value of the property must be commensurate with the damage caused by the crime. Therefore, courts can only seize part of the property.

Thus, on August 17, 2021, the Maiminsky District Court of the Altai Republic refused to seize a car worth 1.7 million rubles, since its owner was accused under Part 2 of Art. 292 of the Criminal Code (official forgery), and fines under the article amount to 100,000–500,000 rubles, in addition, confiscation cannot be applied under it. A similar situation occurred in the Leninsky District Court of Cheboksary: the investigator was not satisfied with the request for arrest, since the amount of claims in the civil suit was 56,000 rubles, and the value of the property was 250,000 rubles.

Return the application

The Supreme Court noted that “the quality of materials presented to the court by the bodies conducting the preliminary investigation does not always meet the requirements.” The judge must find out (under Parts 1 and 2 of Article 165 of the Code of Criminal Procedure) whether the petition is within the jurisdiction of the court, whether the criminal case is being processed by the investigator or inquiry officer who filed the petition, and whether the document itself contains information necessary for the arrest and other materials. If the requirements for petitions and jurisdiction are not met, then the courts return them to investigators and interrogators. On April 12, 2021, the judge of the Ukhta City Court of the Komi Republic returned the petition to seize the property to the investigator, since the documents provided did not contain a resolution on merging the criminal cases and the investigator accepting this case (after merging) for proceedings. That is, the court could not determine whether the petition was filed by an authorized official.

About the purposes of seizure

“As a rule, preliminary investigation authorities in petitions cite several purposes for seizing property (for example, to ensure the execution of a sentence in a civil lawsuit, possible confiscation of property or other property penalties),” the review says. In such cases, the courts indicate in the arrest order the exact purposes for which the arrest is imposed.

In the Gorno-Altai City Court of the Altai Republic, on August 27, 2021, the judge arrested the car and land plot of Zinaida Sergeeva*, who was suspected under Part 3 of Art. 160 of the Criminal Code (misappropriation) in the amount of 643,000 rubles. The resolution noted that the petition was filed “in order to ensure the execution of the verdict in terms of a civil claim and the collection of a fine.” In this case, the sanction under the article is 100,000–500,000 rubles, and the claim was filed for the amount of 770,000 rubles.

The lack of information about the declared civil claim is not a basis for rejecting the request for arrest. For example, the Kurgan City Court arrested the property, car and money of Ivan Kupala*, who caused damage to the Entrepreneurship Fund by more than 16 million rubles. The extent of property damage was confirmed. The foundation was recognized as a victim, so the arrest was imposed, despite the fact that a civil lawsuit had not yet been filed. In this case, the courts can legitimately refer to Part 2 of Art. 44 of the Code of Criminal Procedure, according to which a civil claim can be brought after the initiation of a criminal case and before the end of the judicial investigation during the trial of a criminal case in the court of first instance, and therefore an arrest can be imposed.

Review of the practice of courts considering petitions to seize property.

* – first and last names have been changed by the editors.

Pravo.ru

What should the debtor do?

Within five days after the inventory, the debtor may try to remove some of the seized items from the encumbrance. To do this, he files a statement of claim with documentary justification for the conclusion.

The debtor can simply wait for the repossessed items to be sold and the debt to be closed or reduced. After the inventory, the former owner of the assets can begin selling them himself. He needs to come to an appointment with the bailiff and write an application for independent sale of the seized items. This must be done no later than ten days after the inventory.

When permission is received, the debtor must transfer the required amount to the account of the executive body. When transferring money, you must indicate that it is being transferred for the sale of seized items.

A person who has no debts and no enforcement proceedings must be designated as the payer. After the funds are credited, this person will be considered the owner of the sold items; these items cannot be described again.

What property will the bailiffs seize?

First of all, bailiffs are interested in objects with high liquidity. This means that they can be quickly sold and money received, which will then be used to pay off debts to the creditor. Such objects include cars and other vehicles, residential and non-residential real estate. Accounts and cash are also seized, and in some cases, precious metals and products.

Such situations are rare, so we have collected practical ways to avoid paying bailiffs.

Fact!

Only property that is proportionate to the debt can be seized. This means that the value of the seized property cannot exceed the amount of the recovery.

What cannot be arrested

However, there is property that cannot be seized and included in the bankruptcy estate, regardless of the nature and size of the debt. The list of this property is determined by Art. 446 Code of Civil Procedure of the Russian Federation:

the only housing
the land on which it is located
household items (furniture, refrigerator, washing machine and others)
things intended for personal use
products
animals, if their maintenance is not related to profit-making or business activities
items, including means of transportation, necessary for the debtor due to disability
items used for professional activities (for example, musical instruments), provided that their cost does not exceed 10 thousand rubles.

Be careful!

Of course, exceptions to some points are possible. For example, housing and land can be seized if they are encumbered with a mortgage. Items intended for individual use are also confiscated in the case of luxury goods. These include jewelry with precious or semi-precious stones, items made from natural valuable fur, antique items and others.

Seizure of property: what is it?

Seizure of property is a method used by bailiffs to fulfill the requirements contained in the executive document.

Important!

An arrest can be made even during the time allotted for voluntary execution.

Everything related to the seizure of property is regulated by Federal Law FZ-229 “On Enforcement Proceedings”. In this case, special attention should be paid to Art. 80, since it specifies cases in which property belonging to the debtor may be seized by bailiffs.

Such cases include:

the need to ensure the safety of items (for example, if the bailiff has reason to believe that some items may be hidden)
execution of a judicial act containing demands for full or partial confiscation of property
execution of a court order, which directly states the need to seize the property of an individual

The main condition without which an arrest is impossible is the presence of open enforcement proceedings.

What do bailiffs do with seized property?

Property that has been seized is subject to sale at auction . An exception is real estate and items costing more than 500,000 rubles. They are also sold at auctions, which are held in the form of an auction. Additionally, the law provides for the possibility of transferring seized property into state ownership. This applies to items that are seized under a judicial forfeiture order. Then such items are used by government agencies or organizations.

On a note!

The money received from the sale of seized property goes to the deposit account of the FSSP unit in which enforcement proceedings are opened. And already the bailiffs transfer them to the collectors in order to pay off the debts.

On average, the sale of property lasts from 2 to 12 months. The procedure time increases if the debtor appeals the actions of the bailiffs. There are also situations when third parties send a petition to exclude property from seizure (for example, if it does not belong to the debtor, but to his parents, grandchildren or friends).

Official website of the Supreme Court of the Russian Federation

10:34 06/14/2018 The briber will not return the money transferred for bribery, only a participant in an operational or investigative experiment can count on receiving the funds back, the weapon of crime can be confiscated under any article of the Criminal Code of the Russian Federation, and an appeal has the right to worsen the position of the accused in the situation with the confiscation of his property - the Supreme Court (SC) of the Russian Federation on Thursday adopted a plenum resolution on the specifics of the confiscation of valuables, funds and property of persons involved in criminal cases.

After finalizing the document, the provision on the possibility of confiscation of foreign property of the accused disappeared from the draft; otherwise, there were no significant changes on key issues.

Bribe money will not be returned

The money given for bribery will not be returned to the briber, and smugglers will not be able to get back illegally exported property.

“Explain to the courts that property is subject to confiscation and cannot be returned to the person who owns it if that person participated in the commission of a crime (for example, to the owner of contraband items who participated in their illegal movement).

In cases of corruption crimes, money, valuables and other property transferred in the form of a bribe or the subject of commercial bribery are subject to confiscation and cannot be returned to the bribe giver or the person who committed commercial bribery, including in cases where they are exempt from criminal liability for on the basis, respectively, of the note to Article 291 of the Criminal Code of the Russian Federation or paragraph 2 of the notes to Article 204 of the Criminal Code of the Russian Federation,” the document says.

At the same time, the court explains that if the owner of money and other valuables transferred as a bribe or bribery voluntarily participated in an investigative experiment, then his funds or property should be returned to him.

“Money and other valuables transferred as a bribe or the subject of commercial bribery under the control of bodies carrying out operational investigative activities (for example, during an operational experiment) must be returned to their owner in order to detain red-handed the person who made a demand for a bribe or commercial bribery,” points out the RF Armed Forces.

Under any article of the Criminal Code

The law does not limit the articles of the Criminal Code under which the instrument of crime can be confiscated, the Supreme Court of the Russian Federation explains in its resolution of the plenum on confiscation issues.

“Tools, equipment or other means of committing a crime belonging to the accused (clause “d” of part 1 of article 1041 of the Criminal Code of the Russian Federation, clause 1 of part 3 of article 81 of the Criminal Procedure Code) may be confiscated by the court in cases of crimes, the list of which is not limited by law ", the document says.

In this case, money, valuables and other property, as well as income from it, are subject to confiscation on the basis of paragraphs “a” and “b” of Part 1 of Article 104.1 of the Criminal Code of the Russian Federation, if they were obtained as a result of committing only those crimes that are specified in these norms, or were the subject of illegal movement across the customs or state border, as indicated in the resolution of the plenum.

In addition, money, valuables and other property used to finance terrorism, extremist activities, an organized group, an illegal armed group, a criminal community (criminal organization) or intended for these purposes are subject to confiscation.

Instruments of crime

A car with hiding places, an echo sounder, a navigator or office equipment can be considered an instrument of crime and, therefore, subject to confiscation, the plenum explains.

“Based on the provisions of paragraph “c” of Article 1 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and the Financing of Terrorism of May 16, 2005, paragraph 8 of Part 1 of Article 73, Part 3 of Article 115 and paragraph 101 of 1 of Article 299 of the Code of Criminal Procedure of the Russian Federation, tools, equipment or other means of committing a crime should include items that were used or intended to be used in the commission of a criminal act or to achieve a criminal result. For example, a car equipped with a special storage facility for hiding goods during their illegal movement across the state border, echo sounders and navigators during the illegal extraction (fishing) of aquatic biological resources; photocopiers and other office equipment used to produce counterfeit documents),” the resolution says.

However, when deciding on the confiscation of the instruments of crime, the court must make sure that it is the property of the accused.

Any property will be taken away for extremism and terrorism

In criminal cases involving crimes of a terrorist and extremist nature, any property belonging to the accused that is a weapon, equipment or other means of committing a crime is subject to confiscation, the Supreme Court notes.

He clarifies that such property may, for example, include cell phones, personal computers, and other electronic means of communication that were used by the person involved in the case to post in the media, social networks or information and telecommunication networks materials containing public justification of terrorism and calls for terrorist activities or direct preparation for terrorist activities.

Seize property not only of the accused

At the same time, money and valuables intended to finance terrorism, extremist activities, illegal armed groups, criminal communities or organized groups are subject to confiscation regardless of their affiliation, the resolution states.

The court also allows the seizure of objects and things that could or were used to commit extremist and terrorist crimes, but do not belong to those involved in the criminal case.

“In order to ensure possible confiscation, seizure may be imposed by the court on the property specified in Part 1 of Article 104.1 of the Criminal Code of the Russian Federation, located not only in the possession of the suspect, accused or persons legally liable for their actions, but also in the possession of other persons, if any sufficient grounds to believe that it was obtained as a result of criminal acts or was used or intended to be used as a weapon, equipment or other means of committing a crime or for financing terrorism, extremist activity (extremism), an organized group, an illegal armed group, a criminal community (criminal organization) ),” explains the Armed Forces.

Such property may also be seized in cases where the identity of the suspect or accused has not been established in a criminal case, as specified in the resolution of the plenum.

The Supreme Court explains what to do if the accused managed to transfer property to another person.

“Based on part 3 of Article 1041 of the Criminal Code of the Russian Federation, in order to resolve the issue of confiscation of property transferred by the accused to another person (organization), the court is required, based on an examination of evidence, to establish that the person who has the property knew or should have known that the property was received in as a result of criminal acts or was used or intended to be used in the commission of a crime,” he points out.

If it is not possible to confiscate a certain item due to its use, sale or for some other reason, the court orders an examination of its value in order to be able to confiscate other property.

Confiscation upon termination of the case or death of the accused

Termination of a criminal case due to non-rehabilitating circumstances is not an exemption from confiscation of property, explains the RF Armed Forces.

“The decision to confiscate tools, equipment or other means of committing a crime belonging to the accused, as well as money, valuables and other property, may be made by the court even if the criminal case is terminated on non-rehabilitative grounds,” the document says.

At the same time, the Supreme Court notes that courts or law enforcement agencies are obliged to explain to the accused the legal consequences of the decision, including possible confiscation of property, and to terminate the case if there are no objections from the defendant.

“If a criminal case is subject to termination due to the death of the defendant, the court explains these consequences to his close relatives before obtaining their consent to terminate the case, the absence of which serves as the basis for legal proceedings in the usual manner,” the court recalls.

The situation may get worse

The appellate courts have the right to worsen the situation of the accused in a situation with the confiscation of his property, explains the RF Armed Forces.

“During the proceedings in the court of appeal, a conviction, ruling or decision of the court of first instance regarding the confiscation of property may be canceled or changed in the direction of worsening the situation of the convicted person,” the document says.

The Supreme Court notes that such a deterioration of the situation is permissible only upon the presentation of the public prosecutor or upon complaints from other participants in the proceedings on the part of the prosecution.

Cancellation or change of court decisions regarding the confiscation of property with a turn for the worse in the court of cassation is carried out within the time limits provided for in Article 401.6 of the Code of Criminal Procedure of the Russian Federation, the highest authority reminds.

Alice Fox

Seizure of property is an extreme and at the same time one of the most common coercive measures resorted to by bailiffs in the process of enforcement proceedings, aimed at satisfying the demands of the claimant under the writ of execution. A seizure of real estate can also be imposed by court order. The advantage of seizing real estate at the stage of judicial consideration of the case is that the debtor will no longer be able to either mortgage or sell his property.

Thus, seizure of property is one of the measures to secure a claim. At the request of the persons participating in the case, the judge or court may take measures to secure the claim. Securing a claim is allowed in any situation in the case if failure to take measures to secure the claim may complicate or make it impossible to enforce the court decision. Measures to secure a claim in addition to arrest may also include: 1) prohibiting the defendant from performing certain actions - for example, entering into agreements aimed at alienating property; 2) prohibiting other persons from performing certain actions related to the subject of the dispute, including transferring property to the defendant or fulfilling other obligations in relation to him; 3) suspension of the sale of property in the event of a claim for the release of property from seizure (exclusion from the inventory); 4) suspension of collection under a writ of execution contested by the debtor in court. If necessary, a judge or court may take other measures to secure the claim that meet the goals of securing the claim. A judge or court may take several measures to secure the claim. If the prohibitions are violated, the perpetrators are subject to a fine of up to 1,000 rubles. In addition, the plaintiff has the right in court to demand from these persons compensation for losses caused by failure to comply with the court's ruling to secure the claim. The judge or court must immediately report the measures taken to secure the claim to the relevant state bodies or local government bodies that register property or rights to it, their restrictions (encumbrances), transfer and termination. The court's ruling to secure the claim is carried out immediately. The court may replace one measure to secure a claim with another measure to secure a claim at the request of a person participating in the case. When securing a claim for the recovery of a sum of money, the defendant, in return for the measures taken by the court to secure the claim, has the right to deposit into the court’s account the amount claimed by the plaintiff. And also, within the meaning of the Federal Law “On Enforcement Proceedings,” the seizure of property is carried out by a bailiff solely for the purpose of ensuring the safety of property for its further sale or transfer to the claimant; execution of a judicial act on confiscation of property and execution of a judicial act on the seizure of property in the use of third parties. Seizure of property in other cases and for other reasons is not permitted. Accordingly, each of the above-mentioned grounds for the seizure of property must be reflected in the bailiff's decision on the seizure. How is an arrest lifted? The arrest may be lifted by the same judge or court at the request of the defendant or at the initiative of the judge or court. The court ruling that seized property can be appealed to a higher court. However, in practice, the arrest is not lifted until the court makes a decision on the merits. An arrest may also be imposed in order to ensure the execution of a writ of execution for property penalties at the request of the claimant by a bailiff simultaneously with the issuance of a resolution to initiate enforcement proceedings. In this case, the arrest is already part of the foreclosure of the property. It should be borne in mind that a bailiff can seize real estate objects only if the debtor does not have funds in rubles and foreign currency and other valuables, including those located in banks and other credit organizations. The seizure of the debtor's property consists of an inventory of the property, a declaration of a ban on its disposal, and, if necessary, a restriction of the right to use the property, its seizure or transfer for storage. The sale of seized property is carried out by selling it within two months from the date of seizure. The sale of the debtor's real estate is carried out through auctions by specialized organizations that have the right to carry out real estate transactions in the manner prescribed by the legislation of the Russian Federation. Thus, according to paragraph 1, paragraph 4, article 19 of the Law on Registration, in the manner established by law, state registration of rights can be suspended on the basis of a ruling or court decision. Suspension of state registration of rights is accompanied by making a corresponding note in the Unified State Register of Rights. Paragraph 1 of Article 4 of the Law on Registration provides for mandatory state registration of restrictions (encumbrances) of rights to real estate, to which paragraph 4 of Article 1 of the Law on Registration includes the presence of conditions, prohibitions established by law or by authorized bodies in the manner prescribed by law, that constrain the right holder in the exercise of ownership or other real rights to a specific object of real estate (easement, mortgage, trust management, lease, seizure of property, etc.). State registration is carried out by making a record of the right in the Unified State Register of Rights to Real Estate and Transactions with It (hereinafter referred to as the Unified State Register of Real Estate) on the basis of the submitted documents in compliance with the procedure established by the Law on Registration. Article 12 of the Law on Registration and the Rules for maintaining the Unified State Register provide for the procedure for making an entry in the Unified State Register about restrictions (encumbrances), which include the seizure of property. Making a record of the seizure of property in the Unified State Register means that the owner’s rights to dispose of this property are limited. During the period of arrest, the owner cannot alienate the property or otherwise dispose of it. The bodies that have the right to seize real estate and impose bans on transactions with it include courts of general jurisdiction, acting on the basis of legislation that establishes one of the types of restrictions (arrests, prohibitions) of rights to real estate, namely: In civil and arbitration proceedings, the seizure of the defendant’s real estate is used as a measure to secure the claim. On the seizure, courts of general jurisdiction and arbitration courts issue rulings (Articles 139,140 of the Civil Procedure Code of the Russian Federation, Articles 90, 91 of the Arbitration Procedure Code of the Russian Federation), which is indicated in the documents received by the Gelendzhik department of the Rosreestr Office for Krasnodar edge of judicial acts. Thus, the cancellation of interim measures taken by a court of general jurisdiction is carried out in accordance with Art. 144 of the Civil Procedure Code of the Russian Federation. Security for a claim may be canceled by the same judge or court at the request of the defendant or at the initiative of the judge or court. The bodies that have the right to seize real estate and impose bans on transactions with it include bailiffs acting on the basis of legislation that establishes one of the types of restrictions (arrests, prohibitions) of rights to real estate, namely: in order to ensure the execution of a writ of execution for property penalties at the request of the claimant, the bailiff, simultaneously with issuing a resolution to initiate enforcement proceedings, has the right to make an inventory of the debtor’s property and impose an arrest or ban on it (Federal Law of July 21, 1997 No. 119-FZ “On enforcement proceedings”), which is indicated in the Resolutions on the prohibition of registration actions in relation to real estate objects. What are the encumbrances? According to the federal law “On State Registration of Rights to Real Estate and Transactions with It,” encumbrance means the acquisition by persons other than the owners of certain rights to property. These are conditions that constrain the owner when owning real estate. The following may act as encumbrances: 1. mortgage; 2. annuity with lifelong maintenance; 3. seizure of property; 4. rent; 5. easement; 6. guardianship; 7. belonging of the property to a cultural monument; 8. trust management. A record of encumbrances must be contained in the title document - a certificate of state registration of ownership of the apartment. An encumbrance may arise upon conclusion of an agreement, or upon entry into force of a court decision.

The Constitutional Court rejected the provisions of the Code of Criminal Procedure related to the seizure of property

Photo: ksrf.ru The Constitutional Court of the Russian Federation found a number of provisions of the Criminal Procedure Code of the Russian Federation, relating to issues that must be resolved by the court when passing a sentence, to be inconsistent with the Constitution.

The reason for assessing the constitutionality of Part 1 of Art. 73 (circumstances to be proven), part 1 of Art. 299 (issues resolved by the court when rendering a sentence) and Art. 307 (descriptive and motivational part of the guilty verdict) of the Code of Criminal Procedure of the Russian Federation became a complaint from a resident of the Volgograd region. In March 2021, several citizens were found guilty under Art. 159 of the Criminal Code of the Russian Federation and were convicted of stealing money from investors in a housing construction cooperative. The right to satisfy civil claims was recognized for the victims, and the issue of the amount of compensation for damage was submitted for consideration through civil proceedings. At the same time, the seizure previously imposed on a number of property objects was maintained until full compensation for the damage. These include a two-room apartment in Volgograd and a car of a woman who participated in the criminal case as a witness. She was not involved as an accused, a civil defendant or a person obliged to compensate for the damage caused by the perpetrators.

The owner of the car and apartment filed cassation appeals, but they were not satisfied. The courts indicated that the circumstances that served as the basis for the seizure of the property did not disappear, and were confirmed during the consideration of the criminal case on the merits: these objects were transferred to the property of one of the convicted witnesses, who was a co-founder of a legal entity created to preserve funds and property obtained by criminal means.

The woman filed a complaint with the Constitutional Court of the Russian Federation, indicating that Part 1 of Art. 73, part 1 art. 299 and art. 307 of the Code of Criminal Procedure of the Russian Federation do not comply with the Constitution, since, due to a gap in the current legal regulation, they allow the court, after the verdict has entered into force, to retain the seizure previously imposed on the property, without establishing, proving and stating in the verdict the circumstances confirming that this property was obtained as a result of the commission of crimes or is proceeds from this property. If the decision on the fate of property subject to confiscation is regulated by the Code of Criminal Procedure of the Russian Federation, then in relation to property that is not subject to confiscation, but has been seized to secure a civil claim, there is, in the applicant’s opinion, legal uncertainty that allows limiting the rights of its owners.

As noted by the Constitutional Court of the Russian Federation, the seizure of property cannot be arbitrary and must be conditioned by the alleged involvement of a particular person in criminal activity or the alleged criminal nature of the origin of specific property, or be based on a law establishing the financial responsibility of a person for the actions of a suspect or accused.

Seizure of the property of other persons is permitted only in order to ensure the intended confiscation of property or the safety of property related to material evidence in a criminal case, and only if there are sufficient grounds to believe that the property was obtained as a result of the criminal actions of the suspect, accused or was used or intended to be used as an instrument of crime or to finance criminal activity.

When rendering a verdict, the court resolves, among other things, the questions of whether the civil claim is subject to satisfaction, in whose favor and in what amount, how to deal with the property that has been seized, and how to deal with material evidence. At the same time, the subject of evidence in a criminal case, the issues resolved by the court when rendering a sentence, and the content of the descriptive and motivational part of the guilty verdict do not formally include the question of the legal grounds for using the property of a person who is not the accused or financially responsible to compensate for the damage caused. the victim of harm. This allows the question of the validity of the arrest to remain unresolved.

Seizure of property is a measure of procedural coercion and is temporary in nature. Therefore, the seizure of property in order to secure a civil claim in a criminal case cannot go beyond the time frame of criminal procedural relations associated with the investigation and resolution of this criminal case.

Thus, maintaining a seizure of the property of a person who is not the accused or financially responsible in order to secure a civil claim after the verdict has entered into legal force means a disproportionate and unjustified derogation of property rights, does not meet the constitutional criteria of fairness and proportionality of restrictions on rights and freedoms, and does not provide a guarantee of protection property by law and guarantees of judicial protection, and therefore contradicts the Constitution of the Russian Federation.

Further proceedings in a civil claim after the verdict has been rendered in order to resolve the issue of the amount of compensation also presuppose the possibility of securing the claim by seizing property, which, however, cannot be arbitrarily applied to the property of a person who is not the accused or the person financially responsible.

Nevertheless, the need to achieve a balance of the rights and legitimate interests of the person whose property is seized, on the one hand, and the rights of victims, on the other hand, does not exclude the power of the federal legislator to carry out legal regulation of such seizure for the purpose of compensation for harm caused. This may include the provision of appropriate procedural guarantees for the protection of the rights of persons who have this property, and the establishment of procedural mechanisms for transferring the seizure of this property from criminal to civil proceedings if the verdict recognizes the right to satisfy a civil claim when justifying the actual ownership of the property located from a person who is not a suspect, accused, convicted or financially responsible, to a person found guilty of committing a crime by a verdict.

As a result, the Constitutional Court of the Russian Federation recognized Part 1 of Art. 73, part 1 art. 299 and art. 307 of the Code of Criminal Procedure of the Russian Federation do not comply with the Constitution to the extent that they allow the preservation, after the sentence has entered into legal force, of a seizure imposed in the framework of criminal proceedings on the property of a person who is not the accused or a person legally liable for his actions, in for the purposes of securing a civil claim.

Enforcement decisions made against the applicant and based on the contested provisions of the Code of Criminal Procedure are subject to review in the prescribed manner.

The resolution of the Constitutional Court is not subject to appeal and comes into force on the date of official publication.