During the consideration and adjudication of a criminal case, it may be necessary to seize the property of the defendant. This measure is used if it is necessary to obtain guarantees that the convicted person will be able to compensate for damage to the injured party - another person, state or legal entity. Seizure of property is also used when it comes to material evidence in criminal proceedings.
In the article we will consider the rules of this procedure, which objects can be subjected to it, as well as other features of the process. To discuss a non-standard situation, we recommend that you seek advice from an experienced specialist.
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Seizure of property: reasons and purposes
The main purpose of seizure of property is to force the offender to fulfill the obligations imposed by the court verdict. This term means that the owner is deprived of the right to use certain material assets. During the consideration of a criminal case, the seized property may be confiscated, for example, if it was obtained as a result of criminal acts and fraudulent machinations.
A seizure of property can be imposed even before the start of the trial by the relevant body that is handling the case. Article 115 of the Criminal Procedure Code of Russia (Code of Criminal Procedure of the Russian Federation) indicates all the rules and features of the application of the procedure for arresting real estate and other material assets.
The most common reasons why courts grant an investigator’s request to seize property:
- Consideration of a criminal case. In this case, the restriction on the use of property is used as an incentive that may encourage the defendant to fulfill his duties towards the injured party.
- Causing material damage to the state, legal entity or individual. The use of property seizure helps to fully or partially reimburse the cost of damaged property and compensate for the losses of the injured party. It is worth noting that the court does not have the right to confiscate the material assets of the perpetrator of the crime if their value is higher than the damage caused.
- A dispute arises between several property owners. This situation usually arises with real estate and cars that are inherited. Participants in the process will not be able to use the property until the hearing of the case is completed. An alternative option is to negotiate a solution yourself.
- Debt to the tax service or other government agency. Material assets are used as collateral. They guarantee that the debtor will fulfill his obligations in any case.
It is worth separately explaining the rule on the proportionality of property recovery, which was mentioned in the second paragraph of the list. The Supreme Court of Russia commented that by law it is impossible to seize property if its value is higher than the damage caused or the maximum fine specified in the article of the Criminal Code of Russia (CC RF).
In this case, the investigator can limit the request only to a proportionate part of the defendant’s property. Let's look at the rule using a clear example.
Ivanov N.K. accused of official forgery, for which a fine of 100 thousand to 500 thousand rubles is provided. The investigator comes to the trial with a demand to seize the defendant’s car, the cost of which is estimated at 1.5 million rubles.
The court will refuse the request for several reasons: confiscation cannot be applied to the car; its price tag is higher than the maximum possible fine; partial seizure of the designated object is impossible.
A similar decision will be made if the civil claim claims an amount of 73,000 rubles, and the value of the real estate for which the seizure is requested is 2.1 million rubles.
Only a judge and a bailiff have the right to seize property. The legality of the process is confirmed by the act, which serves as the starting point for the commencement of enforcement proceedings on the designated issue.
When can an arrest be made?
The law allows law enforcement agencies to seize property if this is necessary during a number of criminal procedural actions.
- In order to satisfy a civil claim if it is asserted in a criminal case. This is stipulated in the Code of Criminal Procedure in Art. 44 and 309.
- When confiscating property that the owner received by committing acts of a criminal nature, or other property described in the Criminal Code in Art. 104.1.
- To cover the costs of conducting a criminal or civil case, as well as payment of a fine.
What property can be seized?
The law allows seizure only to certain categories of property. The procedure for confiscating and limiting the use of material assets should not violate basic human rights and freedoms. The following property may be seized:
- Bank and other accounts with financial companies. The funds will be used to fully or partially repay the debt.
- Securities. Seizure is used when there is a large debt. The owner has no right to use, donate, or sell them. The type and value of securities is determined by a court decision.
- Debts of third parties to the offender. Government authorities can seize all funds that enter the defendant's bank account. They immediately go to pay his debt.
- Trading account for transactions with currencies, shares and securities on a specialized market.
- Real estate. The seizure of real estate can be implemented in two ways: a complete inventory of the property or a ban on its use.
- Movable property such as a car, furniture, precious stones and metals. In most cases, due to its low price, it is seized in addition to more expensive property.
It is important to remember about objects that the court does not have the right to seize. First, the property must belong to the suspect. Seizure is also possible if it is obvious or proven that other persons acquired real estate or other valuables using funds that the accused received in the course of criminal acts.
Example: Kirilenko I.S. accused under the article “Fraud on a large scale.” During the investigation, it was revealed that his relatives purchased the hotel to hide the income of the accused. As a result, the commercial property was seized.
The property that is most often seized is real estate. But the procedure becomes impossible if the apartment or house is registered as the only place of possible residence of the accused and his family.
Property that is not subject to seizure includes personal belongings (household items, clothing), food, pets, and state awards.
If the property was seized unreasonably
When the seizure of the property of a third party was carried out or extended without sufficient grounds for this, he has the right to apply to the court with a claim for monetary compensation.
If reasonable deadlines have been violated, the affected persons are given the right to demand compensation for the damage caused to them by the property plan. This is stipulated in Federal Law-68, adopted on April 30, 2010 , as well as in the Code of Administrative Procedure.
You can go to court and demand compensation if the arrest period is more than four years, including when the criminal prosecution is still ongoing and the sentence has not entered into force. In cases where the case is terminated and the verdict enters into force, filing an application for compensation is permitted no earlier than six months from this date. Such conditions are dictated by Federal Law-68 and the Code.
Private complaint to secure a claim
A private complaint to secure a claim is filed in the event of a reasoned refusal by the court to impose interim measures. It is clear that the seizure of property facilitates the execution of the decision, preventing its sale, etc. It is introduced along with the acceptance of the claim for proceedings, as well as during the trial. If you are faced with the fact that the court refuses to seize, contact lawyer E.M. Murzakova - she will tell you how to correctly write a private complaint and represent your interests in court.
The law provides a period of 15 days for filing a complaint. The document is submitted to a higher authority through the court that refused interim measures. Copies of the materials should be attached to the complaint. It is important to present in the text your arguments against the controversial definition and indicate why such court actions are unlawful. At the end of the complaint, it is necessary to emphasize what actions to secure the claim should be applied to the debtor’s property. If this is a seizure of a specific property, the owner’s details are indicated.
What does judicial practice show under this article?
In judicial practice, the seizure of property, as a rule, occurs in criminal proceedings related to abuse of power, theft, and business activities.
An example of a seizure of property would be a case of fraud. Citizen Kryukov was prosecuted under Article 159 Part 4 of the Criminal Code. The accused, together with his comrades, fraudulently deprived citizen Polyakov of his apartment in the city center and transferred it to himself. The judge seized the disputed property, and sentenced the culprit Kryukov to prison for 6 years and imposed a fine of 1 million rubles.
Misappropriation and embezzlement of funds and other people's property in the Criminal Code of the Russian Federation
The court decision declared that the purchase and sale agreement drawn up between Kryukov and Polyakov was invalid. The property was again turned into the property of Polyakov. A court decision that has entered into legal force in this case serves as the basis for state registration of property rights, lifting the arrest from the above-mentioned property and making an entry about the termination of restrictions on rights in the Unified State Register.
What decisions are most often made under this article?
The legislator, in order to ensure respect for the rights of victims of property and other types of crimes, is increasingly turning to the seizure of property. At first glance, it may seem that the procedure is quite simple and straightforward, but this is far from the case.
Many lawyers argue that the whole problem is not to seize the property, but to remove it from seizure at the end of the trial. Often, judicial red tape drags on and things that had a certain value become worthless by the end of the proceedings, because economic crimes are very difficult and take a long time to solve.
According to statistics, only 45% of cases in the economic sphere are solved in the Russian Federation annually, and this is a rather low figure. It is also important to note that in the process of seizing movable property, it must be stored somewhere until the end of the criminal proceedings, which again entails procedural costs.
Judges, understanding the length of the procedure and the paperwork involved in seized property, try to seize or confiscate property only in civil suits or in cases of fraud where the subject of a dispute or the object of a crime is valuable property. In other cases, a monetary penalty is imposed.
Basic provisions of property seizure
The seizure of property within the framework of a criminal case is carried out for the purpose of its safety, so that the compensation for material damage cannot realize it and thereby prevent the bailiff services from making compensation under the writ of execution.
This procedure is carried out within the framework of a criminal case; the initiator of the arrest can be an investigator, a judge or the injured party.
Before the procedure, the actual existence of any property of the defendant is established, the property that according to the law cannot be sold is determined, then procedural actions with housing and other types of valuables follow, prohibiting the owner from alienating them.
It is worth noting that a person can have 2 types of values:
- Movable.
- Real estate.
Movable property is distinguished by the fact that it can be easily moved by anyone to any place. When drawing up a protocol for these measures, things of this kind are transferred for safekeeping to the owner of the property. Exceptions include particularly valuable items, as well as money and securities.
There may be a situation in which such things must be transferred for safekeeping to bailiffs. In this case, everything seized is kept in a special warehouse until the writ of execution is received by the FSSP (Federal Bailiff Service). The seizure is formalized by a special protocol, which indicates the address of the storage location.
Real estate cannot be seized due to its large weight or specific location on earth; restrictions on transactions with it are established. The court issues a special resolution for Rosreestr, whose employees make a corresponding note about the decision. The encumbrance will be lifted after all financial obligations have been repaid. When such a mark is in effect, the property cannot be alienated under any agreement.
Accounts containing funds are also blocked. A seized account cannot be unblocked until the case is resolved. Next, the collection sheet is submitted to the FSSP; if the defendant pays the funds on his own according to this document, then his account will be unblocked. If such actions do not occur, then the money will be withheld for payment under the document. In practice, seized funds in the account are often written off by bailiffs to pay off the writ of execution.
After full repayment and elimination of all the reasons for which the ban on registration actions is applied, the court or bailiff issues a resolution that removes the encumbrance from the Rosreestr authorities and allows the owner to alienate the property.
How to carry out the procedure
If during an investigation or trial it is necessary to carry out a procedure for seizing property, then the procedure is carried out by the investigator who is in charge of the case and acts as a prosecutor.
To begin with, determine the amount of property that is in the possession of the criminal. To do this, submit appropriate requests to Rosreestr, cadastral registration, traffic police authorities, and banks where funds may be located.
If a corresponding volume is identified, the investigator goes directly to the location of the property and seizes it, provided that this procedure can be carried out.
When seized, a special act is drawn up, which will reflect the data of the seized property, its distinctive features, if any, the place where these items will be transferred, and a person responsible for storing these items will be appointed.
Property storage options:
- remains in the custody of the debtor;
- transferred to the warehouse to law enforcement agencies;
- kept in case if it is small in size (disc, key, document, etc.).
If it is decided to leave things for safekeeping to the owner, then the responsibilities for preservation are briefly announced to him. Typically, the length of the garnishment depends on the progress of the investigation and the rendering of a decision or until the repayment of the awarded material amount. During this period, it is prohibited to try to sell, exchange, gift or perform other actions with it. You can use things, but with care, preventing intentional damage to things.
If property is transferred to a warehouse, it is sorted. First of all, cash savings, securities, products made of precious metals, antique furniture and antique paintings, burnt-out equipment, such as a television, are confiscated. These products are placed in specially protected conditions. If no one lives in it, the property is sealed. Vehicles are parked in open parking.
Items can be transferred to responsible persons for storage. This is rarely done. But if before the criminal case the real estate was leased and the owner is the lessor, then the contract is not terminated if it is for a period of no more than a year. It remains in force, and a custody agreement is concluded with the tenant.
The cessation of application of this restriction depends on the extent to which this measure is required. If its necessity no longer exists, then it is canceled according to a special form of resolution. Such a decision can be issued only by the investigator or the court that imposed this restriction.
If they refuse to lift the arrest, even if there is no need to use it, then the defendant has the opportunity to file a complaint against the actions of the body that limits the exercise of his rights without any reason.
Another person may file an appeal against the decision to lift restrictions if he or she was affected by this matter.
If the person responsible for preserving the property fails to fulfill his obligations properly, he may be held accountable and become a defendant, since he assumed certain obligations that he fulfilled improperly.
