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Elena Sokova, the lawyer of the legal firm S&K Vertikal pleaded the case of the so called platinum axes in the Constitutional Court of the RF, and proved that Administrative Offences Code of the R F violates the rights of owners.

26 April 2011

The Constitutional Court of the RF has come to such conclusion. It has supported the claimant, “Stroykomplekt” LLC, and found that confiscation of any property not owned by the offender shall violate the rights of the real owner.

Hearings in the case concerning checking separate provisions of the Administrative Offences Code of the Russian Federation for constitutionality were conducted on March, 2. What is meant here is part 1 of cl. 3.7 and part 2 cl. 8.28. The judgement on the case was delivered on April, 25, 2011. The court has found that an owner has a legal right to defend in court their property which is subject to confiscation resulting from unlawful activities carried out by other persons.

Reference

Subject to part 1 of cl. 3.7 of the Administrative Offences Code of the Russian Federation confiscation of any instrument or subject of an administrative offense is a compulsory uncompensated transfer of items not withdrawn from commerce into federal ownership (ownership of a constituent entity of the RF). To be imposed by a court decision.

Subject to part 2 cl. 8.28 of the Administrative Offences Code of the Russian Federation: the illegal cutting of timber and damage to forest range done using diverse types of machines, (if such activities do not constitute criminal offence) by citizens shall involve a sanction in the form of administrative fee in the amount of 3 500 -4 500 rubles along with confiscation of the instrument of offence and products of illegal management of natural resources. (Public officials shall be fined for 30 000 -40 000 rubles; entities shall be fined for 100 000 150 000 rubles)

Issue background

Subject to the lease agreement “Stroykomplekt” LLC, St.-Petersburg has transferred the harvester (tree harvesting machine) to Tellura LLC, a lumberer company from Arkhangelsk, on a leasehold basis. Dmitry Strogonov and Gennady Dvoryashin, employed by Tellura LLC, illegally cut 37 trees using the said machine, for the amount of 57 000 rubles. According to the Administrative Offences Code of the Russian Federation, the court has imposed a penalty in the form of fine (3 500 rubles to be paid by each worker), along with confiscation of a “Harvester” machine costing 15 000 000 rubles as an instrument of offense.

In his supervisory appeal Gennady Dvoryashin stated that subject to the lease agreement he is not the user of the harvester (Tellura LLC is the user of machine subject to the agreement). However the court dismissed his claim, and stated that in such cases confiscation shall be carried out without fail, whether the instrument of offense is owned by the offender or not. “Stroykomplekt” LLC, the owner of the confiscated property, was not involved in judicial proceedings moreover, they were not notified of place and date of proceedings.

Opinion of the claimant

The claimant believes that disputed provisions violate ownership right guaranteed by the Constitution of the RF. To confiscate any property not owned by the offender means to punish the owner of this property. Thus, having confiscated the harvester (tree harvesting machine), the court sanctioned the owner of this property, who as not held liable, and thereby deprived them of the legitimate property right, as well as violated principles of justice and assumption of innocence. During judicial proceedings, the owner of the confiscated property had no possibility to defend their interests in court since they did not participate in the offense.

The claimant demands to declare the said provisions as contrary to the Constitution of the RF, its clauses 15 (part 4), 17 (part 1), 35 (parts 1 and 3) and 55 (parts 1 and 3).

Opinion of the court

The constitution of the RF equally recognizes and protects all types of ownership, however, the right to private ownership is not absolute, it can be restricted by federal laws if it is necessary for protection of other constitutionally significant values, including natural resources. Forest resources are the domain of multinational people of Russia and are protected by laws on administrative offenses.

As a sanction imposed for illegal felling of timber, the Administrative Offences Code of the Russian Federation stipulates (along with administrative fine) for mandatory confiscation of the instrument of this administrative offense. This being said, the law doesn't provide for any mandatory participation in legal procedure of the owner of property which was used as an instrument of this offense, and doesn't establish his guilt. Consequently, the owner is deprived of adequate judicial defence of his rights. Thus, a sanction in the form of confiscation is imposed not on offender, but on owner of the property, who was not held financially liable and was not declared guilty of this offense.

Consequently, provisions of part 2 cl. 8.28 of the Administrative Offences Code of the Russian Federation in interrelation with part 1 of cl. 3.7 of the Code doesn't not conform the Constitution of the Russian Federation, cl. 35 (part 1 and 3), 46 (part 1), 54 (part 2) and 55 (part 3).

It doesn't exclude the right of the federal lawmaker to make changes in the Administrative Offences Code of the Russian Federation, related to conditions and procedure to be used when confiscating the crime instrument, stipulated by part 2 cl. 8.28 of the Code if the offense is committed not by the owner of this property, and by some other person to whom it was transferred for illegal activities.
Cases of Gennady Dvoryashin and Dmitry Strogonov are subject to revision as related to imposing of administrative sanction in the form of confiscation of a harvester owned by “Stroykomplekt” LLC.

***

Subject to cl. 79 and 80 of the law “On the Constitutional Court”, any judgement delivered by the Constitutional Court is final and without appeal end should judgement come into effect immediately. Acts or their separate provisions, which were deemed unconstitutional, become invalid. Within three months after publication of judgement delivered by of the Constitutional Court the government will bring in the State Duma changes or additions to the law which was deemed unconstitutional. Such draft laws are considered as a priority.  


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