It often happens that a person pays attention to an item forgotten by someone in transport or a public institution and keeps it for himself. Moreover, it is popular and not cheap. However, not everyone is aware that in the future the appropriation of found property will lead to problems with the law.
Not only can the owner of the property show up and demand his property back. But it is possible that the owner of the find will be accused of theft with all the ensuing consequences. And the law is on the side of the real owner.
The Supreme Court of the Russian Federation dealt with a situation similar to the one described. He upheld the verdict of two previous instances, which convicted the citizen of stealing a smartphone. But first things first.
Find or theft: where the story began
Leaving the doctor’s office, Svetlana K. saw an expensive mobile phone left by someone in the lobby of the clinic. Indeed, as of 2016, its cost, including the memory card, was more than 21,000 rubles.
Without thinking twice, the woman took the gadget to herself. When its owner returned, he immediately discovered it was missing. I started calling my number, but they remained unanswered. And after a while, Svetlana simply got rid of the SIM card.
After the owner filed a report of theft with the police, the device was put on the wanted list and Svetlana K. was quickly identified.
As a result, a criminal case was opened against her for the theft of a phone, followed by a conviction. The justice authorities were not convinced by the arguments put forward by the defense.
What should you do if found?
The Civil Code says the following :
- the finder must notify all those who may have access to the owner of the item about the find and help return it;
- if the owner still does not appear, the find should be handed over to the police or local government;
- if an item is found in a vehicle or premises, it must be handed over to the owner of the premises or vehicle;
- You can keep your find for no more than 5 days. After this, ownership of the thing passes to the finder.
The find should not be confused with a treasure .
The latter is of particular value, including for the state.
According to Article 233, these are valuables buried in the bowels of the earth, the owner of which cannot currently be found or determined .
Watch a video about what treasures can be found in the bowels of the earth, and quite legally:
https://youtu.be/iwQrskAkhX0
If you find just such a “dead man’s chest” on your property, it is better to immediately invite appraisers who will determine the value of what was found and help determine the amount of compensation due to you.
Litigation
According to the operative part of the verdict of the Segezha City Court of the Republic of Karelia dated 06/05/2017, the notorious telephone cost the accused 100 hours of compulsory work under paragraph “c” of Art. 158 of the Criminal Code of the Russian Federation.
The lawyer insisted that there was no theft. After all, the smartphone was not stolen, but found. No illegal actions were taken to obtain it (penetration into a purse, clothing pocket). In addition, Svetlana returned the device upon request, which indicates that there was no further disposal of it.
However, it all ended in a guilty verdict. He was also supported by the Supreme Court of the Republic of Karelia in its appeal ruling dated January 11, 2017. Then the defense decided to seek the truth in the Supreme Court of the Russian Federation. Ultimately, this step did not bring results: by cassation ruling dated April 19, 2017 in case No. 75-UD17-2, the previous judicial acts were upheld.
The Supreme Court panel noted that the phone was not lost, but was left by the owner along with other things in a place known to him. At the same time, the accused was aware that the device belonged to someone, since calls were being made to it.
However, Svetlana still decided to appropriate the property she found - a telephone - for her own benefit.
Conclusions from all of the above will be drawn at the end of the article. In the meantime, it makes sense to describe precedents for other similar cases.
Actions if you find a phone
Article 227 of the Civil Code of the Russian Federation determines the procedure for the actions of a person who finds a lost phone. If this happens indoors, you must return the device to the owner of the establishment. Failure to fulfill the obligation provided for in Art. 227 of the Civil Code of the Russian Federation, that is, appropriation of a find, is not theft. However, in order not to solve problems with law enforcement agencies, in our opinion, it is better to pass by the abandoned property. Judicial practice on the qualification of acts of citizens who appropriated a find is ambiguous.
But if you want to help the owner find the loss, it is better to hand the item over to an official or employee of the establishment where the find was made. You can try calling someone from your contact list and reporting what happened. You can also place an ad in your local newspaper. Do not describe the device in detail so as not to give it to a scammer.
Note!
To avoid being accused of appropriating someone else's property, you can take it to the police by writing a statement about the find. If the owner is not found, you can legally keep the phone.
If you do not return the gadget, then most likely you will have:
- troubles with law enforcement agencies if the owner writes a report of theft. Proving that the device was not stolen is not easy;
- pangs of conscience - a child could lose a mobile phone. If you put yourself in the shoes of the parents and the child himself, you are unlikely to feel good. It is also possible that low-income citizens lost their mobile phone.
There will be no trouble only if the former owner of the smartphone did not file a statement with the police.
Appropriation of found property by the Criminal Code of the Russian Federation: judicial practice
Anyone can find valuable items on the street or in another place. Today, most of us are talking about mobile phones and tablets. There are also bank cards without a PIN code, but which can be used to identify their owner.
Simple misappropriation is not punishable under criminal law. It’s another matter when there is an idea (even an approximate one) of who owns the thing.
Below is a brief summary of some of the case law. The situations described are different, but they have one thing in common – the desire to keep the found item or money at one’s own disposal.
The difference between appropriation of a find and theft
A similar situation to the one described above was dealt with by the Shumerlinsky District Court of the Chuvash Region. Nikitin was accused of stealing a mobile phone from a passenger in his car.
She left the car for a while, but when she returned she discovered it was missing. Nikitin at first did not want to help the victim, but then he filed a confession. He explained that he did not steal the phone, but found it on the passenger seat.
The verdict of January 13, 2020 in case No. 1-P-1/20 made important instructions on methods for classifying the crime. So, if the item was in administrative buildings or other places with limited space, the conversation may be that the property was forgotten or temporarily abandoned.
Therefore, if the owner knows where things were placed or forgotten and has the opportunity to come for him, then the subsequent appropriation of someone else’s property is considered theft.
As a result, Nikitin received 1 year and 10 months of imprisonment for the committed act under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation. The real sentence was replaced by a suspended sentence of 2 years.
Receiving money from an ATM
Kirilova took the money that the ATM gave out to a previous client; she did not know her. In turn, the victim was unable to receive the required amount on her own because she was distracted by replenishing her mobile operator account. At first there was talk of an error, but the bank confirmed the issuance of the required amount.
During the investigation, it was established that it was Kirilova who took the funds, taking advantage of the victim’s inattention. Afterwards, advertisements were placed on her part to find the owner of the money. However, the court was not convinced by these arguments.
As a result, by the verdict of the Ilansky District Court of the Krasnoyarsk Territory dated September 09, 2019, Kirilova was found guilty and given a fine of 5,000 rubles. The appeal ruling of the Krasnoyarsk Regional Court upheld the verdict of the first instance.
Bag on the tree
Returning home with friends, Lavrentiev saw a backpack hanging on a tree. Having removed and examined its contents, the accused found a mobile phone, car keys for remote door opening and a bank card.
It was established that during the investigation the defendant changed his testimony. He explained that he considered the man's bag to be a draw. The phone was pawned in a pawnshop, the bank card was thrown away. As for the car keys, Lavrentyev left them with his mother for safekeeping.
However, the victim voiced the opposite. He hung up the Olympic bag during a break between work. When I returned, it was discovered missing.
The investigation proved that the phone did not have a password and calls were received in an attempt to establish the location of the device. In addition, the bank issued a personalized card, which made it possible to identify its owner.
As a result, the Novo-Savinsky District Court of Kazan (Republic of Tatarstan), by its verdict dated December 09, 2019, in case No. 1-447/2019, found Lavrentyev guilty of committing a crime under paragraph “c” of Art. 158 of the Criminal Code of the Russian Federation. The two-year imprisonment was replaced by forced labor for the same period with the withholding of a certain amount from the defendant’s income.
What to pay attention to when creating a defense strategy
- whether the discovered item has identification features that allow you to identify and contact the owner of the item (we are talking here not only about a mobile phone with which you can contact the owner or his relatives, even a discovered watch may have an engraving indicating the owner and his contact information);
- place where the thing was found: a public place, premises, transport or an unspecified area of the forest;
- the victim’s attitude towards the thing (whether he considered the thing lost or knew exactly the location of the thing, we should talk about several types of things, conditionally classifying them into unattended, but in possession, forgotten, lost and abandoned), as well as what actions he performed to search for it;
- actions of the person who discovered the thing after its discovery;
- what period of time passed from the moment the thing was discovered until it was confiscated from the person who discovered the thing.
Each situation associated with finds is individual and requires detailed study. Act in accordance with the law, and if there is a threat of prosecution, immediately seek the help of a lawyer.
You can always contact us for additional advice using the communication methods indicated in the Contacts section.
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The difference between a discovery and a theft
Determining the difference between an unattended item and a lost item is difficult. The significance of this difference affects the qualification of the actions of the person who discovered such an item and appropriated it for himself.
The above cases differ depending on the will of the owner. If an item is left unattended, the owner is to blame for being careless. In case of loss, the thing is removed from the owner’s possession against his will.
It is also necessary to use common sense to distinguish between discovery and theft. For example, if there is a bicycle near the store, this most likely means that it was left for storage rather than lost. If you explain to the investigator that you thought the bike was lost, they won’t believe you. It’s the same if a mobile phone is left near a cup of tea in a cafe. In this case, it becomes obvious that its owner will be looking for a forgotten item or something deliberately left for a while.
Let's list the cases when what you considered a find was theft:
- temporarily abandoned item. For example, a telephone lying on a bench at the entrance is not a find;
- precise knowledge of the owner or the ability to locate him. The found phone must be disabled and not have a SIM card, number or other signs that could identify the owner;
- all property found on the premises belongs to the owners of these premises;
- All property found in public transport must be transferred to employees of the carrier company.
Bibliography
- Criminal Code of the Russian Federation dated 06/13/1996 N 63-FZ (as amended on 04/23/2018) (as amended and supplemented, entered into force on 04/25/2018) // “Collection of Legislation of the Russian Federation”, 06/17/1996, N 25, art. 2954.
- Civil Code of the Russian Federation (Part One) dated November 30, 1994 N 51-FZ (as amended on July 29, 2017) (as amended and supplemented, entered into force on August 6, 2017) // “Collection of Legislation of the Russian Federation,” 05.12 .1994 N 32, art. 3301, (Part I).
- Gongalo B.M. Civil law. Volume 2: Textbook/ B.M. Gongalo. – M.: Statute, 2022. – 543 p.
- Khilyuta V. Appropriation of lost and forgotten things // Criminal law. - 2010. - No. 1. - P. 45 - 48.
- https://sndeep.info/ru (date of access: 05/16/2018).
- Vasiliev D., Vasiliev S. Find or theft? // Legality. – M., 2007, No. 9. – P. 32-34.
- Resolution of the Krasnoyarsk Regional Court No. 44U-40/2015 44U-44/2015 4U-5929/2014 4U-67/2015 dated March 3, 2015 in case No. 44U-40/2015.
- Appeal resolution of the Tomsk Regional Court No. 22-823/2016 dated May 12, 2016 in case No. 22-823/2016.
