Arrest not in leasing – Picture of the day – Kommersant

The Constitutional Court (CC) did not find grounds for checking the norms of the Code of Criminal Procedure, which allow the arrest during the investigation of the property of third parties who are not suspects or accused in the case. At the same time, he recognized their right to compensation for red tape if the arrest dragged on for more than four years. This is stated in the definition of the Constitutional Court, which was denied consideration of the complaint of RESO-Leasing LLC. At the same time, experts note that it is very difficult to achieve compensation in such cases, and even if successful, the applicants receive “ridiculous amounts”.

As follows from the case file, in 2015-2016, RESO-Leasing LLC acquired a batch of cars and leased them to the Kazan company Arenda-Torg LLC. Due to problems with payments, the lessor terminated the contract in 2017, demanding to pay off the debt and return the cars, but found that they were under arrest. By that time, a criminal case was initiated against the founder and director of Arenda-Torg, connected with illegal banking activities and the organization of a criminal community. The lessor failed to cancel the arrest in the courts, although he proved that he was the owner of the property: the courts proceeded from the version of the investigators that the cars were purchased with funds from illegal banking operations. But RESO-Leasing LLC did not provide documents on the acquisition of property at its own expense. The arrest was canceled only five years later, after the verdict in this case came into force. After that, RESO-Leasing tried to recover the resulting damage, as the market value of cars decreased over these five years, but again failed. The Tatarstan Arbitration Court reasoned that the investigator’s actions were lawful, which means that the state should not be held liable for the applicant’s losses.

The applicant asked to verify the constitutionality of the provisions of Art. 115 and 125 of the Code of Criminal Procedure, which regulate the procedure for the seizure of property and verification of the actions of the investigator in the part in which they deprive the lessor of judicial protection of the constitutional right of ownership in the event of seizure of property in a criminal case initiated against the lessee.

But the Constitutional Court came to the conclusion that the rule authorizing the seizure of property as an interim measure does not violate the rights of the applicant, because he can protect his rights and legitimate interests, including as part of the procedure for extending the term of this coercive measure.

And if the investigation is delayed, he is entitled to compensation for violation of the right to criminal proceedings within a reasonable time – such a complaint can be filed either after the entry into force of the sentence, or if the term of arrest lasts more than four years.

It is no coincidence that the definition of the Constitutional Court refers specifically to compensation, emphasizes Anatoly Loginov, partner of BGP Litigation: in this case, unlike compensation for harm, it is not required to prove the guilt of officials. But if losses are a calculable category, then in the case of compensation, its size remains at the discretion of the court, the lawyer notes. In addition, it will be necessary to confirm the violation of the “reasonable time” of the investigation, and it is not defined by law.

The decision of the Constitutional Court fixed that four years is a mark after which one can definitely talk about the excessive period of the investigation.

According to lawyers, in practice, the owners have practically no chance to sue the state for compensation for red tape during the arrest of property. The courts either refuse or collect ridiculous amounts from the budget, says Timur Tazhirov, a lawyer at Forward Legal. The mechanism for recovering compensation for prolonged seizure of property in a criminal case does not actually work, and the Constitutional Court, unfortunately, is not yet able to change this practice.

Lawyer Azat Akhmetov from Orchards says that he is aware of only one case when the owner of unreasonably seized property managed to sue for damages – and that only because the court saw an excess of authority in the actions of the investigator. And although the seizure of property of third parties is a fairly common practice in our time, it is very difficult to prove to the court that the owner was not involved, the lawyer adds: as a rule, it is enough for the investigator to refer to unconfirmed operational data.

Anastasia Kornya