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- Theft or discovery: law enforcement practice
Law enforcement practice dictates its own “rules of the game” in the sphere of distinguishing between the concepts of “theft” and “find”. Disputes between lawyers regarding what is considered a theft and what is a discovery have been going on for a long time.
Judicial practice in this matter, before the cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated April 19, 2017 No. 75-UD17-2, was quite diverse. Starting from the adoption of this court decision, the scales tipped in favor of the prosecution and more and more often the actions of discovering an item and leaving it in one’s possession began to be classified as theft.
As a lawyer specializing in defense and providing legal assistance in criminal cases, I believe that in this matter everything is not so simple and each individual situation requires a detailed analysis.
Arbitrage practice
The position of those who are in favor of the find has seriously weakened in 2022. The cassation ruling of the RF Supreme Court dated April 19, 2017 No. 75-UD17-2 strengthened the accusation in this matter. The main conclusion is that if the owner reliably knows where the item was left, and measures were taken to find it, then the item is not lost. In a specific decision, the convict did not answer calls on her phone and threw away the SIM card of the phone.
After this, many regional prosecutor's offices spoke out on this matter: here is the explanation of the prosecutor's office of the Primorsky Territory, but the Volgograd prosecutor's office, Chelyabinsk and Irkutsk also did not stand aside. I think you can guess the prosecutors' opinion without opening the link.
In most cases, citizens believe that the discovery of someone else’s property is a discovery that does not entail any legal consequences. However, this misconception often leads to criminal liability.
One of the ways police officers hide from recording crimes under Art. 158 of the Criminal Code of the Russian Federation is a refusal to initiate a criminal case on the grounds that the theft of someone else’s property was not committed, but a discovery took place. The main difference is that the discovery does not constitute a criminal act; this concept is a civil one. In accordance with Art. 158 of the Criminal Code of the Russian Federation, theft is understood as the commission for mercenary purposes of an unlawful gratuitous seizure and (or) circulation of someone else’s property in favor of the perpetrator or other persons who caused damage to the owner or other holder of this property. In the absence of qualifying characteristics, depending on the value of the stolen property, criminal or administrative liability is provided. There are often cases of finding abandoned, lost and unattended items. In this case, it is quite difficult to distinguish between the concept of a find and the concept of theft of someone else's property. In this connection, when resolving this issue, it is necessary to understand the concept of ownership of property and the difference between a lost thing and a forgotten one. Property located in a premises, a special storage facility, or a vehicle (car, train compartment) is considered to be in the possession of the person who owns the premises or who has placed or left his belongings there. Items left unattended in special places (train station, airport, etc.) are considered to be in the possession of the persons to whom they belong. Therefore, if a citizen left luggage (bag, suitcase) at the station unattended for a while, taking possession of it by an unauthorized person should be considered theft. The forgotten item is located in a place known to the owner or possessor, and he has the opportunity to return for it or otherwise return it. So, if a passenger forgets his things (bag, phone) in a taxi, and the driver or subsequent passenger takes them with the intention of turning them into his own benefit, he commits theft. Thus, in September 2022, the Ust-Ilimsky District Department of the Ministry of Internal Affairs of the Russian Federation received a statement from citizen K. regarding the theft of her cell phone, which she left in a taxi car. As part of the inspection, citizen M. was identified as having committed the theft of the specified property. Based on the results of the inspection, the police officers decided to refuse to initiate a criminal case, while the reason for making this procedural decision was M.’s position, according to which he found the specified property and had the right to dispose of it at his own discretion. The Ust-Ilimsk Interdistrict Prosecutor's Office canceled the above decision to refuse to initiate a criminal case as illegal and unfounded, since as part of the inspection it was established that K. reliably knew about the place where she left her property, had a real opportunity to return for it, in turn M . also had a real opportunity to return K.’s cell phone, but he unlawfully seized and turned the said property into his own favor. Based on the results of an additional check on the above fact, the Ust-Ilimsky Investigation Department of the Ministry of Internal Affairs of the Russian Federation opened a criminal case against M. under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation. It should be noted that a lost item is an item that has no identifying signs of ownership and is located in a place that is unknown to the owner or possessor. Thus, the assignment of the find, i.e. lost item does not entail criminal liability. Meanwhile, when you find things, you still need to think about the legality of your actions. And in order to avoid criminal liability under Art. 158 of the Criminal Code of the Russian Federation, it is necessary to perform a number of simple actions that are enshrined in civil law. So, in accordance with Art. 227 of the Civil Code of the Russian Federation, whoever finds a lost thing is obliged to immediately notify the person who lost it, or the owner of the thing, or any other person known to him who has the right to receive it, and return the found thing to this person. If an item is found on premises or in a vehicle, it must be handed over to the person representing the owner of this premises or vehicle. In this case, the person to whom the find is handed over acquires the rights and bears the responsibilities of the person who found the thing. If the person who has the right to demand the return of the found item or his whereabouts are unknown, the finder of the item is obliged to report the find to the police or local government authority. In this case, the person who finds the thing has the right to keep it at home or deposit it with the police, local government authority or a person indicated by them. Thus, the finder of the thing is obliged, on the one hand, to inform about the find, and on the other hand, to return the thing to the owner.
Senior Assistant of the Ust-Ilimsk Interdistrict Prosecutor A.O. Polyakov
The concept of theft in the Criminal Code of the Russian Federation
This term is enshrined in Article 158 of the Criminal Code of the Russian Federation. Theft is the secret theft of someone else's property. The criminal commits actions aimed at illegally seizing any items. Theft can be carried out both in the presence of the owner of the property and in his absence. Regardless of the circumstances, the thief acts unnoticed by the owner.
Thus, in the case of theft, robbery and robbery, the attacker takes the property of another person by illegal means. If we are talking about fraud or embezzlement, then the owner himself transfers the object to the criminal, who subsequently illegally takes possession of it.
Actions in which an item is considered stolen
Failure to carry out the actions listed above entails the classification of the find in court as theft . In a situation where a person who discovers a lost item intends to hide the fact of the find, does not take any action to find the owner and notify him of the loss, and also intentionally appropriates the found property, such actions will be regarded as theft, not a find.
Let's take for example the same situation with the phone discussed above. The man found a phone at the bus station and took the device for himself. In this case, the finder has committed theft, for which he faces criminal or at least administrative liability. Moreover, the court will regard his act as theft even if he returns the phone to the owner after authorities contact him, since he did not take any action to return the discovered property to the owner.
Sources
- https://zen.yandex.ru/media/id/5a6c3d3b5f49674bc692a09d/kak-postupit-s-nahodkoi-po-zakonu-chtoby-ne-privlekli-k-otvetstvennosti-5a7efd739d5cb3c95cdbf0bc
- https://zen.yandex.ru/media/id/5b4f9b6a0bbe7f00a8962abe/kraja-ili-nahodka-5b601fcbb23bb300a924b297
- https://ugvrf.ru/prisvoenie-najdennogo-eto-krazha-ili-naxodka.html
- https://ug-ur.com/prestuplenie/protiv-sobstvennosti/krazha/prisvoenie-najdennogo.html
- https://advokat-malov.ru/sobstvennost/priobretenie-prava-sobstvennosti-na-nahodku.html
- https://ypravo.com/hishhenie/prisvoenie-najdennogo-imushhestva.html
- https://pravovoi.center/ugolovnoe-pravo/ehkonomika/prestuplenie-sobstvennost/krazha-158-uk-rf/ili-nahodka.html
What responsibilities are provided?
Simple theft, that is, in the absence of a qualifying sign in the act, liability may arise within the limits specified in the sanction of Article 158 Part 1 of the Criminal Code of the Russian Federation. A person is punished with a fine, the amount of which varies within eighty thousand rubles. Also, when considering a case by a judge, the amount can be determined based on the level of income that a person receives for six months.
Works that are mandatory and corrective are applicable. Their size, respectively, is 360 hours and 12 months. Freedom may be limited to 24 months. A person may be forced to work for up to two years. The perpetrator is also imprisoned for up to 24 months.
If a person was caused by the actions of the perpetrator of damage that is classified as significant, then the amount of punishment increases. The fine is up to two hundred thousand, and deprivation of liberty for five years. Also, this composition provides for large and extra large sizes. They are equal to 250 thousand and 1 million rubles, respectively. In this case, he is punished with a fine or imprisonment.
Do not forget that the legislator has established statutes of limitations. This period depends on what category the crime falls into. That is, the less serious the crime, the shorter the statute of limitations. After the specified time has passed, the guilty person cannot be held accountable. Otherwise, the principles established by laws will be violated. Such a decision can easily be appealed to a higher authority.
The procedure for acquiring ownership of a find
So, only 6 months are enough for the found item to find a new owner. In this case, the person to whom this item previously belonged should not be identified.
It is important to know that the period of six months begins to be calculated not from the moment of discovery, but from the moment of application about it.
Only in this case is it possible to acquire ownership rights. If these legal facts are not maintained, then there can be no talk of any property rights.
But this rule also has its drawbacks. For example, a person who finds a lost item can abuse his right and obtain ownership rights to it not entirely legally. For example, he hides a find from the owner, who turns to him with a corresponding question.
After a while, he contacts law enforcement agencies and makes a statement about the find. Moreover, his behavior, which does not become known to either officials or the owner of the find, is not an obstacle to the acquisition of property rights.
Consequences of the finder's refusal to give it up
It’s not often, but it still happens that a person who finds a thing renounces ownership of it. In this case, his find becomes the property of the municipality. These norms are contained in the Civil Code of the Russian Federation. Interestingly, this rule or norm does not correspond to the norms of several other articles of the same code. The following happens - the person who finds the thing appropriates it for himself, which happens according to the law, and no one interferes with this. He might just take her.
This happens automatically and the will of the finder is not required to establish this fact. Just as a refusal is not required, which is not at all clear to whom should be made. There is no hint in the regulations of a body or official who would accept such statements. And even more. Of course, no one can take away from a person the right to renounce a thing if acquiring ownership is not appropriate for him.
And then the thing turns into movable property, which anyone can take possession of. But only after the thing is declared ownerless in court. There is only a small list of objects specified in Article 227 of the Civil Code of the Russian Federation, the ownership of which is not established by the court. From all this it follows that the rule that ownership is transferred to the municipality cannot be applied in practice.
