of June 14, 2018 No. 17
About some questions connected using confiscation of property in criminal trial
Due to the questions arising at courts in case of confiscation of property on criminal cases for the purpose of ensuring the correct and uniform application by courts of the regulations of the penal and criminal procedure legislation regulating the bases and procedure for confiscation of property, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:
1. Draw the attention of courts that application of measure of criminal and legal nature in the form of confiscation of property (Chapter 15.1 of the Criminal Code of the Russian Federation (further - the Criminal Code of the Russian Federation), consisting in its forced uncompensated taking and the address to property of the state, can be connected with restriction of constitutional right of citizens for private property and it shall be performed by court in strict accordance with provisions of the Constitution of the Russian Federation, the conventional principles and rules of international law and international treaties of the Russian Federation, requirements of the penal and criminal procedure legislation.
2. Money, values and other property, and also the income from it are subject to confiscation based on the Items "and" and "b" of part 1 of article 104.1 Criminal Code of the Russian Federation if they are received as a result of making only of those crimes which are specified in these regulations, or were subject of illicit movement through customs border or through Frontier of the Russian Federation, responsibility for which is established by Articles 200. 1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation. Besides, according to the Item "in" part 1 of article 104.1 Criminal Code of the Russian Federation confiscations the money, values and other property used for financing of terrorism, extremist activities, organized group, illegal armed group, criminal society (the criminal organization) or intended for these purposes are subject.
At the same time the tools, the equipment or other means of crime execution belonging to the person accused (the Item "g" of part 1 of article 104.1 Criminal Code of the Russian Federation) can be confiscated by court on cases on crimes which list is not limited to the law.
In sense of the Item of part 1 of article 104.1 Criminal Code of the Russian Federation to property in which was in parts or in full the property received as a result of crime execution is turned or transformed, can be the new objects of property which resulted from reconstruction of the real estate acquired in the criminal way are carried, for example.
3. Proceeding from regulations of the Item "with" of article 1 of the Convention of the Council of Europe on washing, identification, withdrawal and confiscation of the income from criminal activities and on financing of terrorism of May 16, 2005, Item 8 parts of 1 Article 73, part 3 of Article 115 and Item 10.1 of part 1 of Article 299 of the Code of penal procedure of the Russian Federation (further - the Code of Criminal Procedure of the Russian Federation) should carry objects which were used to tools, the equipment or other means of crime execution or were held for use when making criminal action or for achievement of criminal result (for example, the car equipped with special storage for concealment of goods in case of their illicit movement through customs border or Frontier of the Russian Federation; sonic depth finders and navigators in case of illegal production (catch) of water biological resources; the photocopiers and other office equipment used for production of forgery documents).
In case of the solution of question of confiscation of tools, the equipment or other means of crime execution based on the Item "g" of part 1 of article 104.1 Criminal Code of the Russian Federation the court needs to determine the fact that such property is in property of the person accused.
4. Explain to courts that in sense of provisions of the Item "and" of part 1 of article 104.1 Criminal Code of the Russian Federation and item 4 of part 3 of article 81 Code of Criminal Procedure of the Russian Federation the property specified in these regulations is subject to confiscation and cannot be returned to person which is its owner if this person participated in crime execution in connection with which confiscation is applied (for example, to the owner of objects of smuggling participating in their illicit movement).
On cases on corruption crimes the money, values and other property transferred in type of bribe or subject of commercial bribery are subject to confiscation and cannot be returned to the briber or person who committed commercial bribery including in cases when they are exempted from criminal liability based on respectively note to article 291 Criminal Code of the Russian Federation, notes to article 291.2 Criminal Code of the Russian Federation or Item 2 of notes to article 204 Criminal Code of the Russian Federation, notes to article 204.2 Criminal Code of the Russian Federation.
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