Pre-trial cooperation agreement with the accused

Briefly about the main thing

An agreement, or as it is also called a plea deal, is a special procedure for investigating an offense by the investigation, and then by the court.

The criminal procedure law provides a definition (clause 61, article 5). But it cannot be called accurate and comprehensive, since it only indicates that the transaction:

• is between the prosecution and the person involved in the case;
• aimed at establishing the conditions of responsibility of the suspect/accused;
• success depends on the activities of the person under investigation/defendant;
• which must be in effect from the moment the decision to initiate a case or imputation of charges is made.

A deal with law enforcement agencies should not be confused with the classic special order provided for in Sec. 40 Code of Criminal Procedure of the Russian Federation. Wherever you need to admit a charge of a minor or moderate crime, the case in court will be without trial.

So, a settlement agreement is an agreement in which the suspect/accused assists in the investigation, and in return he is guaranteed a more lenient punishment. And this cooperation takes place according to special procedural rules during the pre-trial and trial period.

What are the benefits of the deal?

The main goal for the defendant is to achieve the assignment of the least punishment with a pre-trial cooperation agreement.

The law says that an offender can expect:

• the term of imprisonment, forced (correctional, compulsory) labor, arrest, restriction of freedom will not be more than half of the maximum period provided for by the article of the Criminal Code of the Russian Federation (under which the sentence will be imposed). It is important to note, not in part, but in the article as a whole! ;
• the amount of the fine will not be imposed in excess of ½ of the amount provided for in the charged article;
• If a crime is punishable by life imprisonment, it is not assigned. Instead, an alternative sanction is applied - imprisonment, and its term cannot be more than 2/3 of the term provided for by the same criminal norm. For example, a person in court has a case under Part 4 of Art. 210 of the Criminal Code of the Russian Federation - criminal community. One of the types of conscription provided for by this part is a life sentence, but there is also imprisonment for up to 25 years. Since the defendant completed pre-trial cooperation, he will be punished with imprisonment for no more than 16 years and 9 months.

You need to know that such terms are possible if the court does not establish that the defendant does not have aggravating circumstances.

Everything about criminal cases

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Hard Rule

the norms of
Part 3 62 of the Criminal Code
are softened with a pre-trial agreement

- outwardly everything seems simple, the reward is provided by the norm of Part 2 62 of the Criminal Code

, which limits the punishment in a special order to a maximum of 1/2 of the term.

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— clause 6, part 1, 299 Code of Criminal Procedure

indication in the sentence of mitigating circumstances

- Part 3 307 Code of Criminal Procedure

indication of mitigating factors in the reasoning part of the sentence

- the court is obliged to indicate this mitigating circumstance in the verdict ( clause 6, part 1, 299 of the Code of Criminal Procedure

and
part 3 307 of the Code of Criminal Procedure
).

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— Part 2 62 of the Criminal Code

in case of pre-trial agreement - maximum 1/2 of the term

- paragraph 24

Plenum No. 16 with agreement - the term is not 2/3 (
part 1 62
) - but 1/2 (
part 2 62
)

- the court is obliged to take this circumstance into account when assigning punishment ( Part 2 62 of the Criminal Code

and
paragraph 24
of Plenum No. 16).

Actual reward

- it is assumed that under a special procedure, a certain general benevolent attitude will be shown towards the defendant - in exchange for the fact that the court did not have to carry out a full-fledged evidentiary

, and also because the judge does not have to fear the verdict will be overturned (this probability is very small due to the narrow
scope of appeal
).

- it is this abstract benevolence that is the actual reward. It cannot be measured, and it is impossible to understand exactly how it influenced the size of the punishment (and whether it influenced it at all).

- nevertheless - it is real, usually, when considering a case in a special order, the punishment is milder than in general (under comparable circumstances).

Very strong mitigating circumstance

- it should be noted that with all of the above, it is the conclusion of a pre-trial agreement that is the only opportunity to remain free when convicted of crimes of special gravity

.

- this is exactly what has happened in current judicial practice, that if a defendant is charged with this category of crimes, then there is no real chance of a conditional sentence

he does not, with the exception of the institution of pre-trial agreement.

ILLUSTRATION from judicial practice

Cassation ruling of the Supreme Court dated 04/06/2011 N 16-011-20.

«Considering the high social significance

the institution of a pre-trial agreement on cooperation, its role in solving and investigating crimes, ensuring the responsibility of guilty persons, the legislator not only provided for the mandatory mitigation of punishment for convicted persons who fulfilled their obligations under such an agreement (Part 2 and Part 4 of 62 of the Criminal Code), but also
specifically
indicated in Part 5 317.7 of the Code of Criminal Procedure the authority of the court to decide in such cases the issue of punishment in accordance with the provisions of Articles 64 of the Criminal Code, 73 of the Criminal Code and 80.1 of the Criminal Code.

Under such circumstances, given specific assistance

provided to the convicted person.
justice... the court considers it possible to apply the provisions of Article 73 of the Criminal Code in relation to her and assign her a suspended sentence .”
In this case, two types of situations should be distinguished

— first

: when the assistance provided to the investigation is insignificant, it comes down rather to saving the time and effort of the investigation. That is, in this case, the investigator’s consent to conclude a pre-trial agreement is a kind gesture, a small reward for the accused. In this option, the impact of the fact of concluding a pre-trial agreement on the final punishment is actually visible (the difference can be from 1 to 4 years in the sentence), but does not lead to a suspended sentence.

— second

: A much rarer type of situation where the accused was able to provide such serious assistance to the investigation that without it the whole case could have fallen apart. It is in such situations that there is the possibility of a suspended sentence.

Non-legal aspect

- the question of the impact of a pre-trial agreement on punishment will not be fully disclosed if one does not mention one aspect that is not mentioned in any legal norm.

- we are talking about this: if assistance to the investigation was expressed in the fact that the accused gave incriminating evidence against other accomplices, then this cannot but affect his life in prison. Accomplices usually don’t really understand (and don’t want to understand) how much this incriminating testimony actually influenced the verdict. For them, in any case, this accused will become the reason for their conviction, the person who “drowned” them.

- even if they do not meet in prison, the accomplices will do everything to poison the life of this accused. They will make every effort to convey the fact of “betrayal” to all the neighbors with whom he is serving his sentence. Forgiveness and mercy never happen in such relationships.

- how much they can poison his years of serving freedom depends on his acquaintances, sometimes on the financial status of relatives, and on his personal luck.

Additional trial and deferment for a woman with a child

A separate aspect that is important for a lawyer to take into account is that a pre-trial agreement can be perfectly combined with the deferment of punishment provided by Article 82 of the Criminal Code

.
Why should this be taken into account? Because if there are several accomplices in the case, then surprises are possible from this side. We talk about this here: “Weak link”
- a woman, along with a pre-trial agreement, can be promised a deferment.

Who concludes

The party to the transaction is the representative of the prosecutor's office and the suspect (or accused) on the other side.
A witness, even if it is obvious that he will be charged in the near future, cannot enter into a contract with justice.

The investigator also participates in this chain as an intermediary. That is, he only receives a petition from the defendant and transfers it (along with his approval in the form of a resolution) to the prosecutor.

The latter can enter into a pre-trial contract with one person involved, or with several (if more than one person is involved in the case), even with all of them at once. This is solely the prosecutor's right.

The necessary conditions

grounds for conclusion

In general, pre-trial detention can be concluded for absolutely any defendant, regardless of the category of the crime, guilt and the number of persons brought to justice.

But the point of the deal is not to conclude it, or even to conscientiously carry it out. The goal pursued by the suspect/accused is to ensure a guaranteed reduced punishment. This goal works for serious crimes with severe, significant sentences.

Here, for example, is there any reason to enter into an agreement if a minor theft has been committed. According to Part 1 of Art. 158 of the Criminal Code of the Russian Federation, the maximum term of imprisonment is 2 years. According to the law, when executing a pre-trial contract, the punishment cannot be more than half of the maximum term of this article. So, let's see, the maximum term of Article 158 is indicated in Part 4 and is 10 years. Accordingly, ½ is five years. And this is still more than the maximum level of sane part 1. Therefore, in the above case, there is absolutely no need to agree.

As you can see, one of the logical conditions for concluding a transaction is expediency, which applies to grave and especially grave violations of the law.

There are a number of other strict criteria for the agreement:

1. initiative must come voluntarily, without pressure or coercion;
2. it is possible only within the framework of a preliminary investigation, but not during an investigation in the form of an inquiry;
3. The presence of aggravating circumstances is not allowed. Otherwise, the punishment will not be reduced.
4. You cannot completely refuse to testify. Let's say, referring to Art. 51 of the Constitution of the Russian Federation. Or completely deny your guilt and declare your innocence in the offense. This is a completely different situation in the case, incompatible with the possibility of establishing agreements with the prosecutor.

What does a petition look like?

This is a written document, written in free form. Special forms, details and procedures for presenting facts are not provided for by law.

What is required in the document should be:

• The name of the addressee is to the prosecutor of the locality where the investigation is being conducted;
• what set of actions is proposed by the suspect/accused;
• request to consider the possibility of entering into cooperation arrangements;
• signature of the applicant and his lawyer.

A sample petition for concluding a pre-trial cooperation agreement can be found in the public domain on the Internet.

We present to your attention our version of the document.

RIGHTS OF THE PROSECUTOR

The legislator has not established the conditions under which the prosecutor would be obliged to enter into a pre-trial cooperation agreement. In all cases, the prosecutor makes a decision at his own discretion, which is based on a personal assessment of the possible assistance of the suspect (accused) to the investigative authorities and its usefulness for the investigation. No one can force the prosecutor to enter into such an agreement9.

The resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 1610 clarifies that, within the meaning of the provisions of Art. 317.7 and Art. 316 of the Code of Criminal Procedure of the Russian Federation, one of the conditions for a guilty verdict against a defendant with whom a pre-trial agreement on cooperation has been concluded is his agreement with the charge. If he does not agree with the accusation, the court decides to terminate the special procedure for considering the case and schedules a trial in the general procedure.

Order of the Prosecutor General of the Russian Federation dated March 15, 2010 No. 10711 directs the prosecutor, when making a decision on concluding a pre-trial cooperation agreement, to pay attention to the possibility of actual fulfillment of the obligations specified in the stated petition. The prosecutor must also:

— request, if necessary, additional information from the initiators of the appeal;

— find out from the suspect (accused) what specific actions he will perform in order to fulfill the cooperation agreement;

— analyze the prospects for cooperation between law enforcement agencies and this person.

In accordance with Art. 317.5 of the Code of Criminal Procedure of the Russian Federation, the prosecutor, with the consent of the accused with the charge brought against him and in the case of approval of the indictment, makes a presentation on the special procedure for holding a court hearing and making a court decision in this criminal case.

In the submission, the prosecutor must indicate:

1) the nature and extent of the accused’s assistance to the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;

2) the importance of cooperation with the accused for solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;

3) crimes or criminal cases discovered or initiated as a result of cooperation with the accused;

4) the degree of threat to personal safety to which the accused, his close relatives, relatives and close persons were exposed as a result of cooperation with the prosecution.

Contents of the agreement

The agreement with the suspect is more detailed in the regulations. So its approximate sample is given in Appendix No. 2 to the order of the Prosecutor General’s Office No. 107 dated March 15, 2010.

Not much information is included in the document:

• contracting parties;
• number ug. affairs;
• imputed article of the Criminal Code of the Russian Federation;
• a short description of the crime;
• the action that the suspect will take to successfully investigate the materials (this is discussed in more detail below);
• what positive consequences await the person involved when fulfilling the conditions.

A delicate question remains: is it necessary to admit guilt? agree with the accusation?

The criminal procedural law does not say this directly.

But even from ordinary logic it is clear that if you deny all the facts presented by the investigation, that is, plant false data, hide information about illegal events, it means not fulfilling the conditions of the pre-trial document.

This does not prevent us from accepting the accusation partially, to the extent that it is true.

Well, if a person believes that the accusation as a whole is far-fetched, then he needs to defend himself in any other way.

When an agreement is considered fulfilled

The successful fulfillment of accepted obligations under the transaction can be judged by the end of the preliminary investigation.

Actually, this is when a person actively participated in investigative actions, in operational search activities, and provided valuable information. That is, thanks to the participation of the person involved:

• in general, the preliminary investigation was successfully completed;
• equipment, means and tools of illegal activities were discovered;
• objects of encroachment were found;
• persons involved in committing atrocities who were previously unknown to law enforcement agencies were identified;
• accomplices who deny their involvement have been exposed;
• cases have been initiated, including on the facts of other criminal events to which the suspect/accused has no relation.

Such behavior will be the basis for the prosecutor's office to draw up a submission on the fulfillment of obligations under the agreement concluded with him . This presentation is prepared together with the approval of the indictment. And the case materials, including these documents, are sent to the court.

If the deal doesn't go through

The Code of Criminal Procedure of the Russian Federation names actions that indicate a violation of the terms of interaction:

• the person under investigation limited himself to turning himself in and testifying only in relation to himself;
• everything reported by the defendant is already known to the authorities;
• the party to the transaction refused to give incriminating evidence against his accomplices;
• testimonies were given during interrogations that led the investigation down the wrong path;
• the suspect/accused, using his position, shared important information about the progress of the investigation and gave recommendations to accomplices on how to evade responsibility, that is, he actively opposed the investigative authorities.

When such circumstances are revealed, the prosecutor has the power to:

1. terminate the agreement or change its terms even at the stage of proceedings in the case with the investigative authorities.
2. prepare a submission on refusal of a special procedure for proceedings in the case.

The consequences of violating the pre-trial cooperation agreement are expressed in the above prosecutorial response.

If the transaction is terminated, then what the persecuted could have counted on is annulled:

• there will be no mitigating circumstances;
• the guaranteed reduction of punishment will not apply;
• perhaps even combining cases against accomplices into one proceeding;
• the proceedings will take place according to the general rules of judicial proceedings.

This will significantly worsen the situation of the person who resorted to the “failed” cooperation. Therefore, such actions of the prosecutor can be appealed either to a higher prosecutor’s office or through the court.

Pre-trial cooperation agreement. Special procedure for making a court decision

The special procedure for making a court decision when concluding a pre-trial cooperation agreement is regulated by Chapter 40.1 of the Code of Criminal Procedure of the Russian Federation * (95).

According to Art. 317.1 of the Code of Criminal Procedure of the Russian Federation, a petition to conclude a pre-trial agreement on cooperation is submitted by the suspect or accused in writing to the prosecutor. This petition is also signed by the defense attorney. If the defense attorney is not invited by the suspect or accused himself, his legal representative, or on behalf of the suspect or accused by other persons, then the participation of the defense attorney is ensured by the investigator.

A suspect or accused has the right to file a petition to conclude a pre-trial cooperation agreement from the moment the criminal prosecution begins until the announcement of the end of the preliminary investigation. In this petition, the suspect or accused indicates what actions he undertakes to perform in order to assist the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime.

A request to conclude a pre-trial cooperation agreement is submitted to the prosecutor by the suspect or accused, his defense attorney through the investigator. The investigator, having received the said petition, within three days from the moment of its receipt, either forwards it to the prosecutor along with a reasoned resolution agreed upon with the head of the investigative body to initiate a petition to the prosecutor to conclude a pre-trial cooperation agreement with the suspect or accused, or issues a resolution to refuse satisfaction petitions for concluding a pre-trial cooperation agreement.

The investigator's decision to refuse to satisfy a request to conclude a pre-trial agreement on cooperation can be appealed by the suspect or accused, his defense attorney to the head of the investigative body.

The prosecutor considers the petition to conclude a pre-trial cooperation agreement and the investigator's decision to initiate a petition to the prosecutor to conclude a pre-trial cooperation agreement with the suspect or accused within three days from the moment of its receipt. Based on the result of the consideration, the prosecutor makes one of the following decisions (Article 317.2 of the Code of Criminal Procedure of the Russian Federation):

1) to satisfy the request to conclude a pre-trial cooperation agreement;

2) to refuse to satisfy the request to conclude a pre-trial cooperation agreement.

A decision to refuse to satisfy a request to conclude a pre-trial agreement on cooperation can be appealed by the investigator, suspect or accused, or his defense attorney to a higher prosecutor.

In accordance with Art. 317.3 of the Code of Criminal Procedure of the Russian Federation, the prosecutor, having adopted a resolution to satisfy the request for the conclusion of a pre-trial agreement on cooperation, invites the investigator, the suspect or accused and his defense attorney. With their participation, the prosecutor draws up a pre-trial cooperation agreement.

The pre-trial cooperation agreement must indicate:

1) date and place of its preparation;

2) an official of the prosecutor's office entering into an agreement on the part of the prosecution;

3) last name, first name and patronymic of the suspect or accused entering into an agreement on the part of the defense, date and place of his birth;

4) a description of the crime indicating the time, place of its commission, as well as other circumstances to be proven in accordance with paragraphs. 1-4 hours 1 tbsp. 73 of the Code of Criminal Procedure of the Russian Federation (events of a crime (time, place, method and other circumstances of committing a crime); guilt of a person in committing a crime, form of his guilt and motives; circumstances characterizing the personality of the accused; nature and extent of harm caused by the crime);

5) paragraph, part, article of the Criminal Code of the Russian Federation, providing for liability for this crime;

6) actions that the suspect or accused undertakes to perform when he fulfills the obligations specified in the pre-trial cooperation agreement;

7) mitigating circumstances and norms of criminal law that can be applied to the suspect or accused if the latter complies with the conditions and fulfills the obligations specified in the pre-trial cooperation agreement.

The prosecutor explains to the suspect or accused who has filed a petition to conclude a pre-trial agreement on cooperation that in the event of refusal to testify in court regarding accomplices of a crime and other persons who have committed crimes, taking into account the provisions of clause 2, part 4 of art. 46, paragraph 3, part 4, art. 47 of the Code of Criminal Procedure of the Russian Federation, his testimony can be used as evidence in a criminal case; that on the basis of Art. 317.8 of the Code of Criminal Procedure of the Russian Federation, the sentence may be revised if, after sentencing the defendant, it is discovered that he deliberately provided false information or deliberately concealed any significant information from the investigation, he did not comply with the conditions and did not fulfill the obligations stipulated by the pre-trial cooperation agreement; that after consideration in the manner prescribed by Art. 317.7 of the Code of Criminal Procedure of the Russian Federation, a criminal case separated against him into separate proceedings, he can be involved in a criminal case against accomplices in a crime and other persons who have committed crimes (Part 2.1 of Article 317.3 of the Code of Criminal Procedure of the Russian Federation).

A pre-trial agreement on cooperation is signed by the prosecutor, the suspect or accused, and his defense attorney (Part 3 of Article 317.3 of the Code of Criminal Procedure of the Russian Federation).

According to Art. 317.4 of the Code of Criminal Procedure of the Russian Federation, a preliminary investigation into separate proceedings in accordance with paragraph 4 of Part 1 of Art. 154 of the Code of Criminal Procedure of the Russian Federation, a criminal case against a suspect or accused with whom a pre-trial cooperation agreement has been concluded is carried out in the manner established by Chapters 22-27 and 30 of the Code of Criminal Procedure of the Russian Federation, taking into account the features provided for in Art. 317.4 Code of Criminal Procedure of the Russian Federation.

A petition to conclude a pre-trial cooperation agreement, an investigator’s resolution to initiate a petition to the prosecutor to conclude a pre-trial cooperation agreement with a suspect or accused, a prosecutor’s resolution to satisfy a request to conclude a pre-trial cooperation agreement, a pre-trial cooperation agreement are attached to the criminal case.

In the event of a threat to the safety of a suspect or accused with whom a pre-trial agreement on cooperation has been concluded, his close relatives, relatives and close persons, the investigator shall issue a decision to store the documents specified in part two of this article in a sealed envelope.

After the completion of the preliminary investigation, a criminal case is opened in the manner prescribed by Art. 220 of the Code of Criminal Procedure of the Russian Federation, is sent to the prosecutor to approve the indictment and make a presentation on the accused’s compliance with the conditions and fulfillment of the obligations stipulated by the pre-trial cooperation agreement concluded with him.

In the event that the suspects or accused, with whom a pre-trial agreement on cooperation has been concluded, are informed only of information about their own participation in the committed act or information already known to the preliminary investigation authorities, in the event of a refusal to give evidence incriminating other accomplices in the crime, or in the event of the discovery of other data evidence of the suspect or accused’s failure to comply with the conditions and his failure to fulfill the obligations stipulated by the pre-trial cooperation agreement, the prosecutor has the right to issue a resolution to amend or terminate such agreement. If the prosecutor makes a decision to change the pre-trial cooperation agreement, a new pre-trial cooperation agreement is drawn up in the manner prescribed by Art. 317.3 of the Code of Criminal Procedure of the Russian Federation (see above). If the prosecutor makes a decision to terminate the pre-trial cooperation agreement, criminal proceedings are carried out in accordance with the general procedure.

In accordance with Art. 317.5 of the Code of Criminal Procedure of the Russian Federation, the prosecutor in the manner and within the time limits established by Art. 221 of the Code of Criminal Procedure of the Russian Federation, considers the criminal case received from the investigator against the accused, with whom a pre-trial cooperation agreement has been concluded, as well as materials confirming the accused’s compliance with the conditions and fulfillment of the obligations stipulated by this agreement, and if the accused agrees with the charge, if the indictment is approved issues a proposal on the special procedure for holding a court hearing and making a court decision in this criminal case. The submission indicates:

1) the nature and extent of the accused’s assistance to the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;

2) the importance of cooperation with the accused for solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;

3) crimes or criminal cases discovered or initiated as a result of cooperation with the accused;

4) the degree of threat to personal safety to which the accused, his close relatives, relatives and close persons were exposed as a result of cooperation with the prosecution.

In the submission, the prosecutor also certifies the completeness and truthfulness of the information provided by the accused in fulfilling his obligations under the pre-trial cooperation agreement concluded with him.

A copy of the presentation made by the prosecutor is handed over to the accused and his defense attorney, who have the right to present their comments, which are taken into account by the prosecutor if there are grounds for doing so. No later than three days from the moment the accused and his defense attorney familiarize themselves with the presentation, the prosecutor sends the criminal case and presentation to the court.

The grounds for applying a special procedure for holding a court hearing and making a court decision in a criminal case against an accused person with whom a pre-trial cooperation agreement has been concluded are provided for in Art. 317.6 of the Code of Criminal Procedure of the Russian Federation, according to which:

1) the basis for the court to consider the issue of a special procedure for holding a court hearing and making a court decision in a criminal case in relation to the accused, with whom a pre-trial agreement on cooperation has been concluded, is a criminal case received by the court with the presentation of the prosecutor specified in Art. 317.5 Code of Criminal Procedure of the Russian Federation;

2) a special procedure for holding a court hearing and making a court decision in a criminal case in relation to an accused with whom a pre-trial cooperation agreement has been concluded is applied if the court is satisfied that:

- the state prosecutor confirmed the active assistance of the accused to the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;

- the pre-trial cooperation agreement was concluded voluntarily and with the participation of a defense lawyer;

3) if the court determines that the conditions provided for in parts one and two of this article are not met, then it makes a decision to schedule a trial in the general manner;

4) the provisions of this chapter do not apply if the assistance of the suspect or accused to the investigation consisted only in reporting information about his own participation in criminal activity.

The court hearing and sentencing against the defendant, with whom a pre-trial agreement on cooperation has been concluded, are carried out in the manner established by Art. 316 of the Code of Criminal Procedure of the Russian Federation, taking into account the requirements of Art. 317.7 of the Code of Criminal Procedure of the Russian Federation (Article 317.7 of the Code of Criminal Procedure of the Russian Federation).

The court hearing is held with the mandatory participation of the defendant and his defense attorney and begins with the state prosecutor stating the charges against the defendant, after which the state prosecutor confirms the defendant’s assistance in the investigation and also explains to the court what exactly it was.

The judge asks the defendant whether he understands the charge, whether he agrees with the charge, and invites the defendant to testify on the merits of the charge, after which the defense attorney and public prosecutor participating in the consideration of the case have the right to ask questions to the defendant. The defendant also informs the court what assistance he provided to the investigation and what exactly it was, and answers questions from the participants in the court session.

In this case, the following should be investigated:

1) the nature and extent of the defendant’s assistance to the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;

2) the importance of cooperation with the defendant for solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;

3) crimes or criminal cases discovered or initiated as a result of cooperation with the defendant;

4) the degree of threat to personal safety to which the defendant, his close relatives, relatives and close associates were exposed as a result of cooperation with the prosecution;

5) circumstances characterizing the personality of the defendant, and circumstances mitigating and aggravating the punishment.

The judge, having made sure that the defendant has met all the conditions and fulfilled all the obligations stipulated by the pre-trial agreement on cooperation concluded with him, makes a guilty verdict and taking into account the provisions of Part 1. 2 and 4 tbsp. 62 of the Criminal Code of the Russian Federation (Imposition of punishment in the presence of mitigating circumstances) assigns punishment to the defendant. At the discretion of the court, the defendant, taking into account the provisions of Art. Art. 64, 73 (Conditional sentence) and 80.1 (Exemption from punishment due to a change in the situation) of the Criminal Code of the Russian Federation may be assigned a more lenient punishment than provided for the crime, a suspended sentence, or he may be released from serving the sentence.

The descriptive and motivational part of the conviction must contain a description of the criminal act of which the defendant is accused, as well as the court’s conclusions about the defendant’s compliance with the conditions and fulfillment of the obligations stipulated by the pre-trial cooperation agreement concluded with him.

After pronouncing the verdict, the judge explains to the parties the right and procedure for appealing it, provided for in Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation (Proceedings in the court of appeal).

If, after sentencing the defendant in accordance with the provisions of this chapter, it is discovered that he deliberately provided false information or deliberately concealed any significant information from the investigation, then the sentence is subject to review in the manner established by Section XV of the Code of Criminal Procedure of the Russian Federation (Revision of sentences that have entered into legal force , rulings and court decisions) (Article 317.8 of the Code of Criminal Procedure of the Russian Federation).

According to Art. 317.9 of the Code of Criminal Procedure of the Russian Federation, if it is necessary to ensure the safety of a suspect or accused with whom a pre-trial cooperation agreement has been concluded, his close relatives, relatives and close persons, security measures provided for in Art. 11 (Protection of human and civil rights and freedoms in criminal proceedings) and clause 4, part 2, art. 241 (Glasnost)*(96) Code of Criminal Procedure of the Russian Federation.

A suspect or accused with whom a pre-trial cooperation agreement has been concluded is subject to all measures of state protection for victims, witnesses and other participants in criminal proceedings provided for by federal law.

Judicial part

Proceedings in court take into account the merits achieved as a result of cooperation. Therefore, at the very first meeting, the judge finds out how conscientiously the transaction with justice was executed.

When it turns out that the defendant “did not give his best” to the end during the preliminary investigation, the court is free to terminate the special procedure and proceed to the trial according to the usual rules, that is, without all the privileges.

In addition, the case is returned by the judge to the prosecutor’s office if the materials do not contain all the documents on the concluded assistance (petition, investigator’s resolution, prosecutor’s presentation), or if they have shortcomings, for example, there are not signatures everywhere.

The procedure of the trial itself provides for the following features:

• The participation of the defendant and his lawyer in the hearings is mandatory. Any requests to consider the case in the absence of the perpetrator or without the participation of his defense will be rejected;
• great emphasis is placed on the results of the pre-trial partnership between the investigation and the defendant;
• there must be agreement with the accusation;
• evidence in the case is not studied or evaluated at the meeting. However, data on the defendant’s personality and mitigating/aggravating circumstances are analyzed.

The court decision boils down to the fact that guilt has already been established, the accusation has been confirmed. The most important question is how to determine the punishment that is as fair as possible, taking into account the positive role of the perpetrator.

Analytics Publications

Resolving a dispute through a settlement agreement is a common alternative to lengthy and time-consuming litigation. In many disputes, it is easier for the parties to negotiate and reach agreement on all essential circumstances. However, agreeing on the terms of a settlement agreement between the parties is only the initial stage of this procedure, followed by approval of the settlement agreement in court.

Settlement agreement: form, parties, content

A settlement agreement is a special civil law transaction (clause 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 18, 2014 No. 50 “On reconciliation of the parties in the arbitration process”, hereinafter referred to as Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 50, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 7, 2012 No. 247 /12 in case No. A55-18249/10, dated October 30, 2012 No. 8035/12 in case No. A50-5161/11). After the parties have entered into a settlement agreement, it must be approved by the court. Only after this the transaction entails legal consequences for the participants.

The terms of the settlement agreement are reproduced in the court's ruling, which endows the agreements of the parties with the property of binding inherent in judicial acts (Article 16 of the Arbitration Procedure Code of the Russian Federation) and ensures the possibility of their forced execution. Accordingly, in contrast to the usual procedure for changing the terms of civil transactions, changing the terms of a settlement agreement is possible only through the conclusion of a new settlement agreement and its submission to the court for approval[1].

Note: a settlement agreement can be concluded at any stage of the process, even at the stage of execution of a judicial act.

Parties to the settlement agreement.

As a rule, settlement agreements are concluded by plaintiffs and defendants. Sometimes a third party is also a party to the settlement agreement, making independent claims. However, third parties who do not make independent claims may also be parties to a settlement agreement - for example, if they are entrusted with the fulfillment of an obligation or they are persons authorized to accept fulfillment.

It is obvious that persons who are not participants in the arbitration process cannot participate in concluding a settlement agreement. In order for agreements with such persons to be taken into account in the content of the settlement agreement, they must initially be involved in the process, which is possible only if there are grounds provided for in the Arbitration Procedure Code of the Russian Federation. Thus, the procedural nature of the transaction affects the possibility of participation in it by persons whose rights and obligations in relation to the parties to the dispute are not affected, but who have a different interest in relation to the dispute (for example, as third parties intend to fulfill the disputed obligation or accept performance).

Contents of the settlement agreement.

The dual nature of the settlement agreement is already evident at the stage of elaboration of its content. On the one hand, the same rules of substantive law apply to a settlement agreement as to ordinary contracts: it may contain any conditions that do not contradict the law and do not violate the rights of third parties, which the parties determine at their own discretion.

On the other hand, the procedural nature of this transaction creates an additional criterion for the “admissibility” of its content - enforceability. Since violation of the agreements recorded in the settlement agreement entails forced execution, the conditions must be clear, clear and defined so that there are no further disputes[2].

Violation of this requirement can take a variety of forms. For example, a condition providing for a party’s obligation to transfer property will not be considered enforceable if its exact list is not specified in the settlement agreement itself, but is determined by reference to other documents[3]. In such cases, the bailiff will need to delve into documents other than the writ of execution reproducing the settlement agreement. The condition on the party’s obligation to supply goods without specifying the period, volume, exact name, that is, all the criteria by which the proper fulfillment of the obligation will be determined[4] does not meet the criterion of feasibility.

Conditions of the settlement agreement that may prevent its approval

At the moment, it is hardly possible to formulate an exhaustive list of “forbidden” conditions of settlement agreements. Courts' approaches to assessing similar conditions may differ even within the same region. One way or another, almost any unacceptable condition is a special case of violation of the basic requirements for a settlement agreement: non-contradiction with the law, absence of violations of the rights of third parties and enforceability. Despite the variety of forms of violations, the most typical cases can be identified when courts refuse to approve settlement agreements due to non-compliance with the requirements for their content. Let's consider which conditions are the most controversial, what is acceptable or unacceptable to include in a settlement agreement, and how you can reduce the risks of refusal to approve it.

Going beyond the dispute.

The parties have the right to include in the settlement agreement conditions that are related to the stated requirements, but were not the subject of court proceedings[5]. This is a very convenient rule, because often conflicts are complex in nature and can include numerous mutual claims from various types of transactions, both related and unrelated. In this case, the settlement of claims that were not initially submitted for resolution by the court will entail giving such agreements of the parties the binding force of a judicial act, ensured by the enforcement procedure.

In most cases, it will not be possible to include absolutely any conditions in the settlement agreement. For example, when considering claims of a non-property nature from contractual relations, the court refused to approve a settlement agreement with the condition that the plaintiff had no material claims against the defendant on the grounds that this provision was essentially not related to the subject of the stated claim[6].

Another example. The court refused to approve the settlement agreement, where the parties tried to resolve the rights and obligations from agreements that were not considered in the current case, but were the subject of other legal proceedings[7]. It is noteworthy that the court pointed out the fundamental admissibility of settlement in a settlement agreement of disputes under contracts that are not the subject of the proceedings. In this case, the approval of the settlement agreement was prevented by the presence of other arbitration cases.

Also, with a high degree of probability, conditions that entail the emergence of new legal relations between the parties that are not related to the subject of the dispute will serve as grounds for refusal to approve the settlement agreement. As part of the case for recovery of losses, a settlement agreement was submitted for approval with the condition that, in order to secure obligations under the settlement agreement, the debtor would provide the creditor with a piece of equipment as collateral. The court noted that the terms of the pledge do not relate to the subject of the claim, and, moreover, such a settlement agreement does not entail the final cessation of the dispute between the parties, since it does not exclude the emergence of new disputes in the future regarding the implementation of the conditions for the pledge of equipment[8].

Thus, when settling claims that are not part of the subject of the dispute, it is necessary to ensure that such claims are closely related to those already stated. At the same time, the settlement agreement cannot include terms on legal relations that are the subject of other legal disputes.

Lack of corporate
approval.
A settlement agreement as a civil transaction is subject to the general requirements of civil law - in particular, on major transactions and interested party transactions. Ignoring these requirements is a special case of simultaneous violation of two requirements for its content - violation of the rights of third parties (shareholders or members of the company) and the requirements of the law.

As a general rule, the court does not have the right to refuse to approve a settlement agreement under the pretext of violating the legislation on major transactions or interested party transactions, since such a transaction is considered voidable. In this case, the exception is cases when the court identifies obvious abuse in the content of the settlement agreement, in which, if approved, there may be talk of the nullity of the transaction as violating the requirements of Article 10 of the Civil Code of the Russian Federation and encroaching on the rights and legitimate interests of third parties in accordance with paragraph 2 articles 168 of the Civil Code of the Russian Federation. A similar approach is formulated in paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28 “On some issues related to challenging major transactions and interested party transactions.”

In addition, the court may refuse to approve a settlement agreement if a company participant involved in the case objects to its approval. In this case, objections are subject to consideration on the merits to identify circumstances indicating the presence of corporate grounds for invalidating the agreement[9].

The conclusion of a settlement agreement in violation of the rules of approval may entail a revision of the judicial act that approved the settlement agreement due to newly discovered circumstances at the request of a member of the company who did not take part in the consideration of the case where such an agreement was concluded[10]. To avoid these consequences, it is recommended to verify compliance with corporate approval procedures.

The presence of signs of a transaction under a condition.

The terms of the settlement agreement must be formulated in such a way that they can be transferred verbatim to the writ of execution. Therefore, the fulfillment of the parties’ obligations under the settlement agreement cannot be subject to a condition for which it is unknown whether it will occur or not[11]. Otherwise, the settlement agreement does not meet the criteria of enforceability and does not allow the proceedings to be terminated, since if the conditions are not met, the dispute between the parties will continue.

For example, the court refused to approve a settlement agreement in a case regarding the obligation to vacate the roof of a residential building, since the settlement agreement contained a clause stipulating that the procedure for fulfilling the agreements of the parties (vacating the roof or concluding a lease agreement) depends on what decision is made by the general meeting of owners of the residential building [12].

This limitation is a clear example of how the “procedural” nature of a settlement agreement limits the freedom of the parties to formulate its terms compared to a regular contract.

Conditions for debt forgiveness.

Some courts refuse to approve a settlement agreement if it can reveal elements of a gift agreement that are unacceptable between legal entities. For example, a court may refuse to approve a settlement agreement containing provisions for debt forgiveness[13].

This practice does not seem entirely correct, since paragraph 2 of Article 140 of the Arbitration Procedure Code of the Russian Federation provides that a settlement agreement may contain conditions for full or partial forgiveness of debt, and therefore such conditions are often found in settlement agreements. Moreover, paragraph 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 50 indicates that the fact of unequal value of mutual concessions is not a basis for refusing its approval.

To avoid the risk of refusal to approve the settlement agreement, its text is supplemented with a direct indication that the actions of the plaintiff aimed at forgiveness of the debt are not recognized as a donation according to the rules of Chapter 32 of the Civil Code of the Russian Federation and were committed in order to avoid additional costs for collecting the specified debt[14] or similar provisions[15].

Thus, despite the low probability of refusal to conclude a settlement agreement on this basis, it is recommended to supplement the text of the settlement agreement with provisions stating that the parties do not recognize such concessions as gifts, and also to focus on the benefits of these conditions for the creditor.

Forgiveness of part of the debt in a settlement agreement.

Of particular practical interest is the issue of the admissibility of including in the settlement agreement conditions stipulating that in the event of transfer of funds to the creditor in a certain amount by a certain date, the debtor’s obligation to pay the remaining part of the debt is terminated. Typically, the purpose of such a condition is mutually beneficial discounting of debt: the debtor recognizes the debt in full and is motivated to perform partial fulfillment under the condition of forgiveness of the remaining part, and the creditor is guaranteed to receive at least partial fulfillment, the claim of which in general may be problematic.

On the one hand, forgiveness of part of the debt is subject to a severable condition and depends on the debtor’s own actions, which is controversial from the point of view of the above practice. For example, in one case, approval of a settlement agreement containing a clause on the creditor’s refusal to collect a penalty depending on the payment of the debt within the agreed upon period was refused[16]. On the other hand, there is also a directly diametrical approach regarding the admissibility of such conditions[17].

Initially, the ban on suspensive or suspensive conditions is due precisely to possible problems during execution. However, in the case under consideration, the issue of enforcement either does not arise in principle (if the debtor paid part of the debt and the obligation ceased), or arises in relation to the entire amount of the debt (if part of the debt was not paid on time).

It seems that over time, judicial practice will come to uniformity, and such conditions for monetary obligations will finally establish themselves as a tool for resolving disputes on the terms of “mutual concessions.”

Conditions for refusal to go to court.

When agreeing on the terms of a settlement agreement, the parties often also try to minimize future risks. As a result, practice has become aware of formulations according to which the parties, in addition to resolving the subject of the dispute, also undertake obligations not to go to court with any other claims that may arise in the future.

The problem is that, firstly, the parties often choose too general a formulation (“any other requirements”), which is literally perceived as the defendant’s refusal to present claims, both related to the subject of the claim and unrelated. It is necessary to distinguish between the admissibility of refusing to present claims from the same legal relationship that is the subject of the dispute (for example, for additional requirements) and other legal relationships that already exist between the parties or may arise in the future.

Secondly, the courts do not recognize the possibility of waiving claims that have not yet arisen at the time of approval of the settlement agreement, and qualify this as an illegal waiver of the right to go to court, while the right to judicial protection is guaranteed by Article 11 of the Civil Code of the Russian Federation[18 ].

Contradiction of conditions with facts already established in the case.

In a situation where a settlement agreement is concluded at the stage of execution of a judicial act, its terms should not revise the circumstances established by this judicial act.

For example, in a case where the fact of termination of the contract served as a basis for the court of first instance to satisfy the claims, the condition of the settlement agreement that the parties consider the contract to be valid is not allowed. In the situation under consideration, the court indicated that since the dispute between the parties had already been resolved through a decision and the court established specific legal facts, the parties to the settlement agreement cannot ignore the conclusions of the court and the circumstances established by it, refute them, thereby questioning the legality of the judicial act [ 19].

The courts followed a similar logic in another dispute related to the elimination of violations of the plaintiffs’ property rights. The courts of three instances explained that if, during the consideration of the case by the court, the existence of violations of the plaintiffs’ property rights was established, their absence cannot be recorded by a settlement agreement[20].

Consequently, the parties to a settlement agreement cannot ignore the facts established in an already considered case, give a different qualification to the actions of the parties, and thereby replace the procedure for appealing a judicial act.

Reduction of the amount of the penalty in the settlement agreement.

It seems that the inadmissibility of conflicting with the conclusions of the court must be kept in mind in situations where a settlement agreement changes the amount of monetary obligations of the parties established by the court. For example, if the courts refused to reduce the penalty at the request of the debtor about its disproportionality (in accordance with Article 333 of the Civil Code of the Russian Federation), can the parties reduce its amount in a settlement agreement? The answer is obvious: they can, however, we recommend that you pay attention to the choice of basis for such a reduction.

Categories such as proportionality of the penalty to the consequences of breach of obligation, the presence of exceptional cases for reducing the penalty are matters of judicial assessment only. Therefore, the subsequent inclusion in the settlement agreement of conditions to reduce the penalty by the parties on the basis of Article 333 of the Civil Code of the Russian Federation can hardly be considered correct. It is possible that such conditions may be regarded as disagreement with the assessment already given by the court regarding the absence of disproportionality in the size of the penalty and exceptional grounds for its reduction.

When reducing the amount of the penalty established by the court in a settlement agreement, it is necessary to proceed from the fact that the parties have another right - to include a condition on forgiveness of part of the debt as an element of mutual concessions. In the absence of references to Article 333 of the Civil Code of the Russian Federation, if the parties change the amount of the penalty payable, the risks are minimized.

Conditions declaring a transaction void.

In cases of challenging transactions, the parties often try to fix the fact of invalidity of the transaction in a settlement agreement, determine rights and obligations in connection with this circumstance, or completely abandon the use of restitution. However, such conditions represent a special case of non-compliance of the terms of the settlement agreement with the law.

The recognition of a voidable transaction as invalid and the application of the consequences of its invalidity, as well as the application of the consequences of the invalidity of a void transaction, falls within the exclusive competence of the court. Despite the freedom of the parties to determine the terms of the settlement agreement, they do not have the right to declare the transaction or its individual provisions invalid in the settlement agreement[21]. Then, if the invalidity of the transaction cannot be agreed upon, is it possible to include in the settlement agreement a condition on the defendant’s acknowledgment of such a claim? It should be noted that practice in this matter is contradictory.

There are cases where the courts allow the defendant to admit a claim to invalidate a transaction. But in judicial acts there is no proper justification for the admissibility of such a condition.[22]

However, there is no fundamental difference between the agreement of the parties to recognize the transaction as invalid and the recognition of the claim by the defendant - the question of the consequences of invalidity arises in both cases. Despite the fact that refusal to approve a settlement agreement on this basis is quite rare, the reasoning of the courts seems quite convincing.

Thus, in one of the cases, the court indicated that establishing the fact of invalidity of a transaction is the prerogative of the court, and the application of the consequences of an invalid transaction is possible only by a court decision (Article 167 of the Civil Code of the Russian Federation). Therefore, the recognition by the defendant of the fact of invalidity of a transaction within the framework of a settlement agreement in order to entail consequences corresponding to the application of the consequences of invalidity, goes beyond the competence of the parties to resolve the dispute within the meaning of Article 139 of the Arbitration Procedure Code of the Russian Federation[23].

Such a restriction will not prevent the parties from actually settling the desired property consequences within this category of disputes if a provision is included in the settlement agreement regarding the plaintiff’s waiver of the claim[24]. In this case, the prohibition on determining the consequences of recognizing a transaction as invalid will not apply.

The settlement agreement was not approved by the court: legal consequences

If the parties entered into a settlement agreement, but the court refused to approve it or one of the parties did not support the request for its approval at the hearing, the question arises about the legal nature of such an agreement and the consequences that it gives rise to.

The generally accepted approach is that an unapproved settlement agreement does not create legal consequences in the case, since it expresses only the intention of the parties to conclude it, which is not implemented in the manner established by the Arbitration Procedure Code of the Russian Federation[25]. Consequently, the recognition or forgiveness of a debt recorded in the text of the settlement agreement will be regarded solely as an intention to recognize or forgive the debt, which cannot be taken into account by the court when adopting a judicial act.

If the settlement agreement signed by the parties has not been approved, the court continues to consider the case on the merits based on the evidence presented in the case file. However, the question arises: could such a settlement agreement have a different meaning for the purposes of considering the dispute? For example, without giving rise to rights and obligations for the parties, is it nevertheless considered written evidence in terms of establishing the factual circumstances that existed before the filing of the claim? In addition to regulating the rights and obligations, the parties in the settlement agreement could fix the date of conclusion or termination of the agreement, the date of payment of funds under the agreement, and so on.

In our opinion, there are no particular obstacles to considering such a settlement agreement as an analogue of an agreement based on factual circumstances. The latter type of agreement is not a civil transaction and does not create new rights and obligations for the parties, but only confirms the circumstances existing at the time of its conclusion. Of course, an exception to this should be situations where the settlement agreement was not approved due to the refusal of one of the parties to approve it at the court hearing.

Despite the proposed approach, it should be expected that judicial practice will support the most conservative option in this matter. Thus, at the moment, the settlement agreement signed by the parties, but not approved, cannot be used as the basis for the legal position of the party in the case.

Recommendations

So, when agreeing on the terms of a settlement agreement, the parties need to consider the following:

1. When including in a settlement agreement terms for the settlement of claims that are not included in the subject of the dispute, it is necessary to ensure that there is a close connection between such claims and those already stated;

2. The settlement agreement cannot contain conditions that determine the legal relations of the parties considered in other legal disputes;

3. If there are signs of a major transaction or related party transaction, it is recommended to check compliance with corporate approval procedures;

4. The settlement agreement must not contain suspensive or suspensive conditions;

5. In the case of debt forgiveness in whole or in part, it is recommended to note the benefits of these conditions for the creditor (preservation and development of partnerships, minimizing costs for debt collection, etc.);

6. When resolving issues regarding refusal to present claims in the future, it is necessary to take into account that such refusal is possible only in relation to claims related to the subject of the dispute;

7. A settlement agreement at the stage of execution of a judicial act cannot revise the factual circumstances established by the court when issuing a judicial act on the merits of the dispute;

8. There is no need to include conditions under which the parties, by agreement, declare the disputed transaction invalid, determine the consequences of restitution, or the defendant acknowledges the claims to invalidate the transaction.

[1] Clause 23 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 18, 2014 No. 50.

[2] Paragraph 3 of paragraph 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 50.

[3] Resolution of the Moscow District Arbitration Court dated September 11, 2014 in case No. A41-18453/13.

[4] Resolution of the Arbitration Court of the Volga-Vyatka District dated January 27, 2016 in case No. A82-9344/15.

[5] Clause 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 50.

[6] Resolution of the Arbitration Court of the Moscow District dated May 11, 2016 in case No. A40-171182/14.

[7] Resolution of the Arbitration Court of the North-Western District dated November 13, 2014 in case No. A56-22138/2014. By decision of the Supreme Court of the Russian Federation dated February 24, 2015 No. 307-ES15-337, the transfer of the case for review through cassation proceedings of this decision was refused.

[8] Resolution of the Arbitration Court of the North-Western District dated 06/07/2017 in case No. A66-2650/16.

[9] Ruling of the Supreme Court of the Russian Federation dated July 29, 2015 in case No. A40-149380/12.

[10] Paragraph 3 of subparagraph 3 of paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28 “On some issues related to challenging major transactions and interested party transactions.”

[11] For example, the resolution of the Arbitration Court of the Moscow District dated 02/15/2017 in case No. A40-52924/2016, the resolution of the Arbitration Court of the Moscow District dated 07/04/2016 in case No. A40-55525/2015.

[12] Resolution of the Tenth Arbitration Court of Appeal dated 02/09/2017 in case No. A41-25865/16.

[13] Resolution of the Tenth Arbitration Court of Appeal dated August 25, 2014 in case No. A41-7467/13.

[14] Resolution of the Ninth Arbitration Court of Appeal dated January 18, 2018 in case No. A40-77230/17.

[15] Resolution of the Tenth Arbitration Court of Appeal dated March 21, 2017 in case No. A41-51374/16.

[16] Resolution of the Ninth Arbitration Court of Appeal dated May 30, 2016 in case No. A40-237758/15.

[17] See, for example, the resolution of the Arbitration Court of the Moscow District dated December 7, 2017 in case No. A40-18517/17.

[18] For example, the resolution of the Arbitration Court of the Moscow District dated 02/10/2017 in case No. A40-26507/16-182-225, the resolution of the First Arbitration Court of Appeal dated 01/26/2018 in case No. A79-4191/2016.

[19] Resolution of the Arbitration Court of the Moscow District dated January 23, 2015 in case No. A40-42237/14, similar practice is the Resolution of the Second Arbitration Court of Appeal dated September 25, 2012 in case No. A28-7355/11.

[20] Resolution of the Arbitration Court of the Moscow District dated November 16, 2016 in case No. A41-3025/09.

[21] Ruling of the Supreme Arbitration Court of the Russian Federation dated 03/18/2016 in case No. A56-3647/2015, resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09/10/2013 in case No. A65-12338/12, see also - resolution of the Arbitration Court of the Moscow District dated 08/14/2017 case No. A41-61707/13.

[22] Resolution of the Arbitration Court of the Ural District dated 05/24/2016 in case No. A07-23312/2014, resolution of the Arbitration Court of the Volga-Vyatka District dated 10/09/2017 in case No. A79-819/2016.

[23] Resolution of the Arbitration Court of the West Siberian District dated June 14, 2018 in case No. A46-14755/2017, resolution of the Arbitration Court of the Volga District dated April 17, 2018 in case No. A65-16096/2015.

[24] For example, the resolution of the Arbitration Court of the West Siberian District dated 06/01/2017 in case No. A67-3861/15.

[25] Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 8, 2009 in case No. A56-45577/07.