On behalf of the Russian Federation

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of April 26, 2023 No. 21-P

On the case of check of constitutionality of article 440 of the Civil Procedure Code of the Russian Federation, articles 42 and 45 of the Federal law "About Enforcement Proceeding" in connection with the claim of the citizen R. R. Gafarov

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges A. Yu. Bushev, G. A. Gadzhiyev, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov,

being guided by Article 125 (the part Item "and" 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered in meeting without carrying out hearing case on check of constitutionality of Article 440 GPK of the Russian Federation, articles 42 and 45 of the Federal law "About Enforcement Proceeding".

Reason for consideration of the case was the claim of the citizen R. R. Gafarov. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation disputed by the applicant of legislative provision.

Having heard the message of the judge-speaker G. A. Gadzhiyev, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation

established:

1. The citizen R. R. Gafarov disputes constitutionality of the following legislative provisions:

Articles 440 GPK of the Russian Federation establishing procedure for suspension or termination of enforcement proceeding by court and procedure for renewal of the suspended enforcement proceeding;

article 42 of the Federal Law of October 2, 2007 No. 229-FZ "About enforcement proceeding", establishing terms of suspension of enforcement proceeding and the basis for its renewal, and article 45 of this Federal Law which regulates consideration by court, Arbitration Court and the judicial police officer-contractor of questions of suspension, renewal and the termination of enforcement proceeding.

1.1. The decision of the Soviet district court of the city of Ufa of the Republic of Bashkortostan of May 22, 2014 satisfies the claim of JSC AF Bank for collection in solidary procedure from R. R. Gafarov and the citizen G. of debt on the credit agreement and about the address of collection regarding pledge - the apartment. Based on the writ of execution issued by court the enforcement proceeding is initiated on December 20, 2016, the pledged property is directed to realization, however primary biddings are acknowledged cancelled due to the lack of requests. Determination of the same court of August 28, 2017 grants the application of the bank representative for suspension of enforcement proceeding to the introduction in legal force of determination of the court which is taken out by results of consideration of the application of the claimant about change of procedure for execution of the specified judgment. On September 21, 2017 determination of the same court grants the application of bank on behalf of the receiver ("Deposit Insurance Agency" state corporation) about change of procedure for execution of the judgment regarding reduction of initial selling cost of pledged property; determination took legal effect on October 7, 2017.

The ruling of arbitration court of the Republic of Bashkortostan of September 9, 2021 left without change of appeal and cassation instances by courts grants the application of JSC AF Bank on behalf of the receiver and the third queue of the register of requirements of creditors of R. R. Gafarov (concerning which the procedure of realization of property was entered) includes the requirements of bank for the credit agreement (the amount of principal debt - 4 668 001 rub 60 kopeks, the amount of percent - 6 134 759 rub 85 kopeks) provided with pledge of the apartment. Courts rejected R. R. Gafarov's argument that as from the moment of the introduction in legal force of determination of court about change of procedure for execution of the judgment there passed more than three years, the bank passes term on renewal of enforcement proceeding and, so opportunity to file petition for inclusion in the register of requirements of creditors of its requirements provided with pledge is lost. As noted courts, the writ of execution issued to the claimant it is shown them to execution before the expiration of three years from the date of the introduction in legal force of the corresponding judgment, at the same time the begun enforcement proceeding was not complete up to its termination on March 23, 2021. What the debtor insisted on, courts did not see the bases for application to procedure for renewal of enforcement proceeding by analogy of article 21 of the Federal law "About Enforcement Proceeding" on terms of presentation of executive documents to execution.

By determination of the judge of the Supreme Court of the Russian Federation of July 25, 2022 to R. R. Gafarov it is refused transfer of the writ of appeal for consideration in judicial session of Judicial board on economic disputes of the Supreme Court of the Russian Federation.

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