Hard to find, easy to lose – Newspaper Kommersant No. 194 (7395) of 10/19/2022

The Constitutional Court will check the norms of Art. 158 of the Criminal Code (theft) and art. 227 of the Civil Code (nakhodka), which allow citizens to be prosecuted for violating the rules for handling found things. The applicants believe that they were unjustifiably accused of theft, when they simply decided to keep the phone they found, and they appeal to Soviet laws, which provided for special liability for embezzlement of what was found. The expert sees in what is happening one more confirmation of a dangerous trend: more and more often they try to regulate civil legal relations with the help of criminal law.

The Constitutional Court accepted for consideration the complaints of Ulyanovsk resident Viktor Puzryakov and Albina Galimyanova from Bashkiria, according to the website of the court. Both applicants were “lucky” to find the lost phone, but they did not look for the rightful owner, but preferred to use the find themselves. As a result, both were found guilty of theft, but they do not agree with such qualifications.

The problem is that the courts interpret any conversion of property in their favor as theft, although it is obvious that theft is still an active theft of property, says Albina Galimyanova’s lawyer Airat Saitgalin. He recalls that the Criminal Code of the RSFSR had a separate composition providing for liability for appropriation of what was found (Article 148.4), and the punishment for this crime was much lower than for theft, in particular, this article did not imply imprisonment at all. In the new Criminal Code of the Russian Federation, there is no responsibility for appropriation of what was found, and for some time such actions were simply not punished, although the Civil Code provides for the obligation of the finder of someone else’s thing to take measures to return it, at least report the find to the police or local authorities . But bringing persons who appropriated someone else’s property to criminal liability for theft is contrary to the principle of legal certainty, the lawyer insists. Then it is necessary to introduce a separate composition for such an offense – criminal or administrative, he argues.

Mr. Puzryakov recalls in his complaint that punishment for violation of the rules for handling the find as theft began with the filing of the Supreme Court (SC), which in 2017 upheld the verdict of the Segezha City Court of Karelia in the case of the missing phone, and this case had a significant impact on the subsequent practice. Then the convict also argued that she had found the phone, but since the victim did not lose it, but deliberately left it with other things in the clinic, there was no need to literally talk about the find. However, in the verdict, the court linked the theft incriminated to her with the disposition of Art. 227 of the Civil Code, which establishes the rules for handling the find. And after the Supreme Court of the Russian Federation recognized this decision as justified, the courts everywhere began to interpret such a violation as theft. Viktor Puzryakov considers this to be an arbitrary distortion of the rule of law: any crime and punishment for it must be defined in law, and the controversial Art. 158 of the Criminal Code of the Russian Federation does not provide for the possibility of bringing to responsibility for appropriation of what was found.

Lawyer Vadim Klyuvgant is convinced that in no case should one artificially produce new offenses. It’s just that the law enforcement officer must clearly distinguish between theft and a non-criminal act in the form of disposing of an ownerless thing, but this each time depends on the specific circumstances. The problem is that we have an ingrained approach in which the criminal law dominates property relations, and this is harmful, dangerous and not in the interests of society, Mr. Klyuvgant believes. “More and more we want to regulate civil law relations with the help of the Criminal Code,” he says. The shift in priorities in the field of legal regulation has long been one of the key problems of business, “and now we have reached the telephones,” the lawyer sums up.

Anastasia Kornya