The procedure for filing a supervisory appeal to the Presidium of the Supreme Court of the Russian Federation against a court decision in a civil case that has entered into legal force - Lawyer in Samara and Moscow - representation in court and legal services

Bulletin of the RF Armed Forces for 2021

Supreme Court Gazette 2021 Download:
Gazette No. 1 2021

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation in civil cases
In case of harm to the health of a citizen, the costs of his treatment and other additional expenses incurred by him, caused by damage to health, are subject to compensation to the citizen (victim) by the causer of harm or another person who, by virtue of the law, is charged with such a duty, if all conditions are met: the victim’s need for these types of assistance and care, the absence of the right to receive them free of charge, the presence of a cause-and-effect relationship between the victim’s need for specific types of medical assistance and care and the harm caused to his health

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 30, 2021 No. 77-KG19-13 (Extract)

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation on economic disputes
The subcontractor has no right to demand from the general contractor payment for properly performed and accepted work after the parties have signed forms KS-2, KS-3, if in the subcontract agreement the onset of payment for the work is conditioned by the receipt of funds from the customer. Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated December 27, 2021 No. 305-ES19-20514 (Extract)

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation for administrative cases
Partially disputed paragraph. 1 clause 61 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 No. 354, was recognized as not inconsistent with federal legislation by the Decision of the Supreme Court of the Russian Federation of June 16, 2020 No. AKPI20- 35, entered into force
Partially contested clause 2 of Bank of Russia Directive No. 3210-U dated March 11, 2014 “On the procedure for conducting cash transactions by legal entities and the simplified procedure for conducting cash transactions by individual entrepreneurs and small businesses” was found not to contradict federal legislation. Decision of the Supreme Court of the Russian Federation dated 16 June 2021 No. AKPI20-243, left unchanged by the ruling of the Appeal Board of the Supreme Court of the Russian Federation dated August 27, 2021 No. APL20-236
Clause 94 of the Explanations on the classification in accordance with the unified Commodity Nomenclature of Foreign Economic Activity of the Eurasian Economic Union of certain goods approved by Order of the Federal Customs Service of Russia dated January 14, 2021 No. 28, was recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated June 9, 2021 No. AKPI20- 72, left unchanged by the ruling of the Appeal Board of the Supreme Court of the Russian Federation dated August 13, 2021 No. APL20-220
Partially disputed paragraphs. 11, 14 of the Rules for conducting endoscopic examinations, approved by order of the Ministry of Health of Russia dated December 6, 2021 No. 974n, were recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated June 11, 2020 No. AKPI20-199, left unchanged by the ruling of the Appeal Board of the Supreme Court of the Russian Federation dated August 18, 2021 No. APL20-231
Paragraph 1 of clause 9 of the Instructions on the procedure for conducting a medical examination, examination (treatment) of citizens of the Russian Federation upon conscription for military service and medical and health measures among citizens of the Russian Federation who have received deferments from conscription for military service for health reasons, approved by order of the Minister of Defense of the Russian Federation and the Ministry of Health of Russia dated May 23, 2001 No. 240/168, was recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated June 4, 2021 No. AKPI20-167, left unchanged by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated August 27, 2021 No. APL20-233
Clause 2.6, para. 9 clause 3.3 (in part) of the Federal standard for the activities of self-regulatory organizations of arbitration managers “Rules for conducting inspections of the professional activities of members of a self-regulatory organization by a self-regulatory organization of arbitration managers in terms of compliance with the requirements of the Federal Law “On Insolvency (Bankruptcy)”, other federal laws, other regulatory legal acts of the Russian Federation Federation, federal standards, standards and rules of professional activity”, approved by order of the Ministry of Economic Development of Russia dated July 3, 2015 No. 432, are recognized as not contradicting federal legislation. Determination of the Appeal Board of the Supreme Court of the Russian Federation dated February 11, 2021 No. APL20-1
Paragraphs 2 (in part), 3 (in part) of the Decree of the Government of the Russian Federation dated August 25, 2008 No. 641 “On equipping transport, technical means and systems with GLONASS or GLONASS/GPS satellite navigation equipment”, order of the Ministry of Transport of Russia dated March 9, 2010 No. 55 “On approval of the List of types of motor vehicles used for transporting passengers and dangerous goods, subject to being equipped with GLONASS or GLONASS/GPS satellite navigation equipment” are recognized as not contradicting federal legislation Decision of the Supreme Court of the Russian Federation dated December 25, 2021 No. AKPI19-824 , entered into legal force
Clauses 2-7 of Appendix No. 8k to the Rules and Standards for the Technical Operation of the Housing Stock, approved by Decree of the Gosstroy of Russia dated September 27, 2003 No. 170, are recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated December 19, 2021 No. AKPI19-900, which entered into legal force

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation in criminal cases
If the intent to take the life of the victim arose after his abduction, the act is qualified as a set of crimes. Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 5, 2021 No. 33-APU20-1SP (Extract)

Reviews and summaries
Review of judicial practice of the Supreme Court of the Russian Federation No. 2 (2020)

Bulletin No. 2 2021

Plenum of the Supreme Court of the Russian Federation
Plenum of the Supreme Court of the Russian Federation

Resolutions of the Plenum of the Supreme Court of the Russian Federation

Resolution No. 42 of the Plenum of the Supreme Court of the Russian Federation of December 17, 2021 On the application of the norms of the Code of Administrative Procedure of the Russian Federation when considering administrative cases in simplified (written) proceedings
Resolution No. 43 of the Plenum of the Supreme Court of the Russian Federation of December 17 On some issues of judicial practice in cases of crimes provided for in Articles 324-3271 of the Criminal Code of the Russian Federation

Resolution No. 44 of the Plenum of the Supreme Court of the Russian Federation of December 24 On some issues of application of the provisions of Article 91 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”

Resolution No. 45 of the Plenum of the Supreme Court of the Russian Federation of December 24 On some issues of resolving disputes regarding suretyship

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation in civil cases
If the voluntary insurance contract provides for the restoration repair of a vehicle at a service station, carried out at the expense of the insurer, then in the event of failure to fulfill the obligation to carry out restoration repairs within the time period established by the insurance contract, the policyholder has the right to entrust the restoration repairs to third parties or to carry out it on their own and demand it from the insurer reimbursement of expenses incurred within the limits of the insurance payment. Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated October 8, 2021 No. 18-КГ19-110 (Extract)

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation on economic disputes
In the event that, after receiving a refusal from the authorized body to apply a reduced coefficient to the rent, the tenant of the land plot under a lease agreement with a regulated price transferred payment in an increased amount, the statute of limitations on the claim for the return of the rent is calculated from the moment the corresponding overpayment was made. Determination of the Judicial Board on economic disputes of the Supreme Court of the Russian Federation dated November 18, 2019 No. 303-ES19-7602 (Extract)

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation for administrative cases
Subclause “h” of clause 3.7 of the procedure for including agricultural producers, organizations and individual entrepreneurs engaged in production, primary and (or) subsequent (industrial) processing of agricultural products and their sale, contained in the register of potential borrowers, in the register of borrowers, and exclusion of agricultural producers , organizations and individual entrepreneurs engaged in production, primary and (or) subsequent (industrial) processing of agricultural products and their sale, from the register of borrowers approved by order of the Ministry of Agriculture of Russia dated August 16, 2021 No. 410, in part that does not allow the replacement of the borrower in in the case of reorganization in the form of merger or transformation, provided that the acquiring or transformed organization retains the status of an agricultural producer or the status of an organization carrying out primary and (or) subsequent (industrial) processing of agricultural products and their sale, is recognized as invalid from the date of adoption of the Decision of the Supreme Court of the Russian Federation dated 29 October 2021 No. AKPI19-686, left unchanged by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated February 6, 2020 No. APL19-552 (Extract)
Second sentence sub. “b” clause 54 of the Methodological guidelines for accounting of fixed assets, approved by order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n, was declared invalid from the date the court decision entered into legal force Decision of the Supreme Court of the Russian Federation dated January 23, 2021 No. AKPI19 -899, entered into legal force (Extract)
The temporary procedure for the exercise by territorial bodies of the Ministry of Culture of Russia of powers to regulate the export and import of cultural property (appendix to the letter of the Ministry of Culture of Russia dated February 8, 2021 No. 62-01.1-39-VA) was declared ineffective from the date of the decision of the Supreme Court of the Russian Federation of January 28, 2021 No. AKPI19-952, left unchanged by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated May 12, 2021 No. APL20-78 (Extract)
Clause 17, para. 2 clause 66, clause 67 of the Rules for organizing and conducting an auction in electronic form for the sale of the right to conclude an agreement on securing and providing a share of the crab production (catch) quota provided for investment purposes in the field of fishing, for industrial fishing and (or) coastal fishing and the conclusion of such an agreement, sub. “a” (in part), “m” (in part), “n” clause 6 of the approximate form of the agreement on fixing and providing a share of the crab production (catch) quota provided for investment purposes in the field of fishing, for industrial fishing and (or) coastal fishing, approved by Decree of the Government of the Russian Federation dated August 28, 2021 No. 1113, are recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated December 18, 2021 No. AKPI19-791, left unchanged by the ruling of the Appeal Board of the Supreme Court of the Russian Federation dated 19 March 2021 No. APL20-30
Partially disputed paragraphs. 8, 9, 10 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 No. 354, are recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation of February 12, 2021 No. AKPI19- 945, entered into force
Clause 22 of the form of a standard contract for the provision of services for the management of solid municipal waste, approved by Decree of the Government of the Russian Federation of November 12, 2021 No. 1156, was recognized as not contradicting federal legislation. The decision of the Supreme Court of the Russian Federation of February 19, 2021 No. AKPI19-948, left without changes by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated June 9, 2021 No. APL20-108
Partially contested clauses. “a” clause 211 of the Rules, mandatory when a management organization or a homeowners’ association or a housing cooperative or other specialized consumer cooperative enters into contracts with resource supply organizations, approved by Decree of the Government of the Russian Federation of February 14, 2012 No. 124, formulas 11, 12 of Appendix No. 2k The rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 No. 354, were recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation of January 15, 2021 No. AKPI19-848, which entered into legal force
Order of the Ministry of Transport of Russia dated June 5, 2021 No. 167 “On approval of the Procedure for issuing a special permit for the movement of heavy and (or) large-sized vehicles on highways” was recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated February 11, 2021 No. AKPI19- 857, left unchanged by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated June 9, 2021 No. APL20-101
Clauses 5.1 and 6.1 of the approximate form of a hunting agreement, approved by order of the Ministry of Natural Resources of Russia dated March 31, 2010 No. 93, are recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated January 14, 2021 No. AKPI19-877, which entered into legal force
Partially contested clause 14 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 No. 354, was recognized as not contradicting federal legislation by the Decision of the Supreme Court of the Russian Federation of January 22, 2021 No. AKPI19 -887, left unchanged by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated May 21, 2021 No. APL20-71
Partially disputed paragraphs. 9, 11 Regulations on federal state fire supervision in forests, approved by Decree of the Government of the Russian Federation of June 5, 2013 No. 476, p. 81 of the Administrative Regulations for the execution of the state function of implementing federal state forest supervision (forest protection), approved by order of the Ministry of Natural Resources of Russia dated April 12, 2016 No. 233, were recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated January 29, 2021 No. AKPI19-889, upheld without change by the ruling of the Appeal Board of the Supreme Court of the Russian Federation dated June 4, 2021 No. APL20-88
Partially contested is clause 38 of the Regulations on recognizing premises as residential premises, residential premises unsuitable for habitation, an apartment building in disrepair and subject to demolition or reconstruction, a garden house as a residential building and a residential building as a garden house, approved by Decree of the Government of the Russian Federation of January 28, 2006 No. 47, recognized as not contradicting federal legislation by the Decision of the Supreme Court of the Russian Federation of February 5, 2021 No. AKPI19-905, which entered into legal force
Clause 490 of the Fire Regulations in the Russian Federation, approved by Decree of the Government of the Russian Federation of April 25, 2012 No. 390, was recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation of February 5, 2021 No. AKPI19-909, left unchanged by the ruling of the Appeals Board of the Supreme Court RF dated June 4, 2021 No. APL20-91
Paragraph 2 of clause 3.9 of the Bank of Russia Directive No. 2054-U dated August 14, 2008 “On the procedure for conducting cash transactions with cash foreign currency in authorized banks on the territory of the Russian Federation” was recognized as not inconsistent with federal legislation. The decision of the Supreme Court of the Russian Federation dated February 3, 2021 No. AKPI19-939, left unchanged by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated May 26, 2021 No. APL20-83
Order of the Government of the Russian Federation dated August 9, 2021 No. 1775-r “On the assignment of the municipal formation “city of Ulyanovsk” of the Ulyanovsk region to the heat supply price zone” was recognized as not inconsistent with federal legislation. Decision of the Supreme Court of the Russian Federation dated January 13, 2021 No. AKPI19-928, upheld without change by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated May 12, 2021 No. APL20-70
Clause 33 of the Procedure for conducting mandatory preliminary (upon entry to work) and periodic medical examinations (examinations) of workers engaged in heavy work and work with harmful and (or) dangerous working conditions (Appendix No. 3), approved by order of the Ministry of Health and Social Development of Russia dated April 12 2011 No. 302n, recognized as not contradicting federal legislation Decision of the Supreme Court of the Russian Federation dated January 21, 2021 No. AKPI19-942, left unchanged by the ruling of the Appeal Board of the Supreme Court of the Russian Federation dated May 21, 2021 No. APL20-77
Subparagraph “c” of clause 14 of the Rules for payments for the purpose of compensation for damage caused in connection with the performance of official duties to employees of the penal system or members of their families, approved by Order of the Federal Penitentiary Service of Russia dated August 5, 2013 No. 439, is recognized as not contradicting federal legislation Decision of the Supreme Court of the Russian Federation dated December 12, 2021 No. AKPI19-829, which entered into legal force
Clause 15 of the Procedure for verification of measuring instruments, requirements for the verification mark and the contents of the verification certificate, approved by Order of the Ministry of Industry and Trade of Russia dated July 2, 2015 No. 1815, was recognized as not inconsistent with federal legislation. Decision of the Supreme Court of the Russian Federation dated March 10, 2021 No. AKPI20-5 , left unchanged by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated June 23, 2021 No. APL20-129
The partially contested clause 4.3 of the Bank of Russia Regulation No. 383-P dated June 19, 2012 “On the rules for transferring funds” was recognized as not inconsistent with federal legislation. The decision of the Supreme Court of the Russian Federation of March 10, 2021 No. AKPI20-40, left unchanged by the ruling Appeal Board of the Supreme Court of the Russian Federation dated July 2, 2021 No. APL20-146
Partially contested clause 5 of the Rules for the payment of pensions, monitoring their payment, checking the documents necessary for their payment, accruing pension amounts for the current month in the case of a different type of pension or in the case of a different pension in accordance with the legislation of the Russian Federation, definitions overpaid pension amounts, approved by order of the Ministry of Labor of Russia dated November 17, 2014 No. 885n, was recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated March 23, 2021 No. AKPI20-65, left unchanged by the ruling of the Appeal Board of the Supreme Court of the Russian Federation dated July 16 2021 No. APL20-162
Provisions par. 1 clause 101 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 No. 354, and column three of clause 5 of Appendix No. 1 to these Rules are recognized as not contradicting federal legislation Decision Supreme Court of the Russian Federation dated May 20, 2021 No. AKPI20-84, which entered into legal force
The partially contested form of the decision on regulating the number of hunting resources (Appendix 2), approved by Order No. 1 of the Ministry of Natural Resources of Russia dated January 13, 2011, was recognized as not inconsistent with federal legislation. Decision of the Supreme Court of the Russian Federation dated May 12, 2021 No. AKPI20-133, left unchanged by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated August 4, 2020 No. APL20-185
Partially disputed paragraphs. 1 and 2 of the Instructions on the procedure for conducting professional hygienic training and certification of officials and employees of organizations whose activities are related to the production, storage, transportation and sale of food products and drinking water, raising and educating children, public utilities and consumer services for the population, approved by order of the Ministry of Health of Russia dated June 29, 2000 No. 229, were recognized as not contradicting federal legislation Decision of the Supreme Court of the Russian Federation dated March 17, 2021 No. AKPI20-92, left unchanged by the ruling of the Appeals Board of the Supreme Court of the Russian Federation dated July 21, 2020 No. APL20-170
Partially contested clause 1 (Unit of account in respect of which the standard “1 resident or 1 square meter of total area” is established for the category of objects “Households”, “Apartment buildings”) of Appendix No. 1 to the Methodological recommendations on issues related to the determination of standards accumulation of solid municipal waste, approved by order of the Ministry of Construction of Russia dated July 28, 2021 No. 524/pr, was recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation dated March 24, 2021 No. AKPI20-100, left unchanged by the ruling of the Appeal Board of the Supreme Court of the Russian Federation dated June 23, 2021 No. APL20-138
Partially disputed paragraph. 3 clause 62 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 No. 354, para. 2 clause 1 of the Rules for organizing commercial accounting of water and wastewater, approved by Decree of the Government of the Russian Federation of September 4, 2013 No. 776, are recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation of May 20, 2021 No. AKPI20-105, which entered into legal force

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation in criminal cases
A judge who took part in the consideration of a criminal case against a person with whom a pre-trial cooperation agreement was concluded cannot participate in the consideration of a criminal case against accomplices in a crime. Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 22, 2021 No. 19-UD19 -28 (Extraction)
A voluntary report by a person about a crime he has committed can be considered as a mitigating circumstance even in the case where the person did not confirm the information he reported at a later court hearing. Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 19, 2021 No. 71-APU19 -4 (Extraction)
The cassation court, having excluded from the sentence the indication that recidivism was recognized as an aggravating circumstance, in the presence of mitigating circumstances, sentenced the person without taking into account the rules provided for in Part 1 of Art. 62 of the Criminal Code of the Russian Federation Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 12, 2021 No. 57-UD19-10 (Extract)

Reviews and summaries
Review of the practice of application by arbitration courts of the provisions of procedural legislation on mandatory pre-trial dispute resolution
Review of judicial practice in cases of consumer rights protection

Bulletin No. 3 2021

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation in civil cases
If the payment document does not contain information about the billing period, the funds deposited on the basis of this payment document are counted towards payment for residential premises and utilities for the period specified by the citizen. In the event that the employer (owner) did not indicate for which billing period he performed the execution, the execution is counted for periods for which the statute of limitations has not expired. Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 17, 2021 No. 4-KG19 -40 (Extraction)

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation on economic disputes
Provisions of Art. 138 of the Federal Law “On Insolvency (Bankruptcy)” on the priority satisfaction of the claim of the secured creditor from the funds received from the sale of the subject of the pledge, do not apply to cases in which the subject of the pledge is the rights of the contractor arising from the work contract, and the funds entered the bankruptcy estate when exercising the rights of a contractor from a subcontract agreement that is not the subject of a pledge obligation, Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated May 28, 2021 No. 303-ES18-7751(4) (Extract)

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation for administrative cases
Letter of the Federal Customs Service of Russia dated October 23, 2021 No. 01-11/65253 “On registration of passports for self-propelled vehicles and other types of equipment” was recognized as not inconsistent with federal legislation. Decision of the Supreme Court of the Russian Federation dated May 26, 2021 No. AKPI20-168, which entered into legal force
Clause 28 of the Regulations on National Natural Parks of the Russian Federation, approved by Resolution of the Council of Ministers - Government of the Russian Federation of August 10, 1993 No. 769, was recognized as not contradicting federal legislation. Decision of the Supreme Court of the Russian Federation of January 13, 2021 No. AKPI19-837, left unchanged by the ruling of the Appeal Court Collegium of the Supreme Court of the Russian Federation dated June 9, 2021 No. APL20-64
Clause 14836 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 No. 354, was recognized as not inconsistent with federal legislation by the Decision of the Supreme Court of the Russian Federation of February 26, 2021 No. AKPI19-967, entered into legal force

Resolutions of the Presidium, decisions and rulings of the Judicial Collegiums of the Supreme Court of the Russian Federation in criminal cases
When reviewing a court decision in cassation on the proposal of the prosecutor, which raised the issue of worsening the situation of the convicted (excluding the instruction on the application of Article 73 of the Criminal Code of the Russian Federation and the imposition of an actual punishment in the form of imprisonment), the court violated the requirements of Art. 40116 Code of Criminal Procedure of the Russian Federation Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated February 19, 2020 No. 25-UD19-25 (Extract)

Reviews and summaries
Review of judicial practice of the Supreme Court of the Russian Federation No. 3 (2020)

Determinations of the RF Armed Forces cannot be the basis for revision

Today, the Constitutional Court of the Russian Federation announced a ruling in the case of verifying the constitutionality of the provisions of paragraph 5 of Part 4 of Art. 392 of the Code of Civil Procedure of the Russian Federation, according to which newly discovered circumstances entailing the revision of judicial decisions that have entered into legal force include, in particular, decisions of the Presidium and Plenum of the Armed Forces of the Russian Federation.

As AG previously wrote, the case brings together complaints from seven citizens who are in one way or another related to receiving payments for recourse claims in connection with loss of health while working in the mines. The applicants indicated that the contested norm, due to the uncertainty of its content, allows us to consider any decision of the Supreme Court, including the ruling of the Judicial Collegium for Civil Cases of the Armed Forces of the Russian Federation, as a new circumstance for reviewing a court decision that has entered into force, which violates their rights guaranteed by the Constitution of the Russian Federation.

The Supreme Court of the Russian Federation clarified when it is impossible to divide joint property during a divorce

Photo: foter.com The Supreme Court of the Russian Federation overturned the decisions of the appellate and cassation instances, which divided in half the apartment purchased during marriage in the name of the wife. The plaintiff, an ex-husband, demanded that the property be given to him, claiming that he bought the property with personal funds from the sale of an inheritance. Payment for a disputed apartment acquired during the marriage entirely with the spouse’s personal funds entails the exclusion of the apartment from the joint property of the spouses, the Supreme Court indicated.

Rafail Huseynov filed a complaint with the Supreme Court. He got married in 2006, and nine years later the couple bought an apartment worth 2.4 million rubles. But in February 2021, the couple divorced. The Huseynovs began the process of dividing their jointly acquired property.

According to the man, in 2015 his wife worked as a teacher, she had no savings and managed to buy an apartment thanks to the sale of an inheritance in the form of real estate, which he accepted after the death of his grandmother. At the same time, ownership of the disputed apartment was registered in the name of the wife.

In April 2021, the Volgodonsk District Court recognized the man’s right to personal ownership of the apartment. But three months later, the appellate court overturned this decision, dividing it in half. According to the court, the man managed his own money, but contributed it to the general family budget. Since the apartment was purchased in the name of his wife, Rafail had no reason to consider it personal property, the judicial panel indicated.

So the former spouses became owners of 1/2 of the living space. The Fourth Court of Cassation upheld this decision. After this, Huseynov filed a complaint with the Supreme Court.

The Supreme Court, having examined the case, found violations in the decisions of lower authorities. The Supreme Court recalled the norm of the Family Code, according to which property that belonged to each spouse before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions, is his property. The corresponding norms were also contained in the resolution of the plenum of November 5, 1998 No. 15 “On the application of legislation by courts when considering cases of divorce.”

“A legally significant circumstance when deciding whether to classify property as the common property of spouses is what funds (personal or common) and through what transactions (compensated or gratuitous) the property was acquired by one of the spouses during the marriage,” the Supreme Court emphasized.

The definition notes that property acquired by one of the spouses during marriage through gratuitous civil law transactions (for example, by inheritance, donation, privatization) is not common property. The acquisition of property during marriage, but with the personal funds of the spouse, also excludes such property from the regime of common joint property.

The funds received by Guseinov from the sale of his personal property and spent on the purchase of an apartment were the personal property of the plaintiff, since they did not make money together with the defendant during the marriage and did not constitute the common income of the spouses. At the same time, the contribution of these funds during the marriage to the purchase of an apartment registered in the name of the defendant does not change their nature as Huseynov’s personal property, which the appellate court did not take into account when overturning the decision of the trial court, the Supreme Court pointed out.

Payment for the disputed apartment acquired during the marriage entirely with the plaintiff’s personal funds entails the exclusion of the apartment from the jointly acquired property of the spouses as the personal property of the plaintiff, follows from the ruling of the Supreme Court.

The decision of the appellate and cassation instances in the Huseynov case was overturned. Now he is the sole owner of the apartment.

Definition No. 41-KG20-10-K4.

The Russian Armed Forces gave a chance for acquittal after the ECHR decision

Five years ago, Dmitry Bolotnikov from the regional town of Furmanov, Ivanovo region, was 23 years old. His daughter had just been born, and the happy father celebrated this joyful event in the company of friends. There he met Svetlana. A resident of the regional center did not hesitate to say that she had been dabbling in drugs for a long time and enthusiastically described her feelings from using them. She willingly invited everyone around her to try the substance she had with her, and soon became a regular at youth parties.

She was especially persistent in offering the drug to Dmitry. He refused for a long time, but Svetlana did not back down. “Just try,” his new acquaintance persuaded him, literally stuffing two small bags into the young man’s pocket.

Despite persuasion, he did not dare to use the contents for their intended purpose; moreover, he did not even know what exactly was in the bags. And after some time, making sure that the guy did not want to become a drug addict, Svetlana began to just as persistently ask for the return of a couple of bags that Dmitry had kept. She persuaded me to meet and called him on the phone many times. She explained that she urgently needed the drug, but he still didn’t need the sachets. Dmitry tried to avoid communication, but on May 22, 2013, he returned the mysterious substance to Svetlana, and was soon arrested.

In court, where Svetlana was interrogated as a witness under the pseudonym “Tamara Blagikh” in conditions that excluded her visual observation, Dmitry was surprised to learn that she had been introduced to him by drug police operatives to conduct a “test purchase” and that he himself, it turns out, had persuaded a girl to buy drugs from him, he didn’t give her peace of mind with his calls. Outraged by his actions, on May 21, she voluntarily came to the local department of the Federal Drug Control Service and agreed to participate in the operational search activity. And in two bags that she received from Dmitry the next day, they found 1.6 g of amphetamine.

On February 7, 2014, Bolotnikov was convicted under Part 3 of Art. 30, paragraph “g”, part 4, art. 228.1 of the Criminal Code of the Russian Federation to 8 years in prison to be served in a maximum security correctional colony. Demonstrating humanism towards the convict, the city court, taking into account his impeccable biography and mitigating circumstances, condescended to impose a punishment below the lowest limit.

Only after this, Dmitry’s grief-stricken parents contacted our law office. My wife, Irina Vladimirovna Bibik, who undertook to defend the convicted person in the appellate court, immediately noted the almost undisguised provocation of the actions of the police, who had no legal grounds for carrying out the operational search activity “test purchase”. There was no evidence in the case that Bolotnikov had dealt in drugs before or that he intended to do so in the future without the intervention of a police agent.

In addition, we drew attention to the fact that the materials of the operational-search activities available in the case actually expose “Tamara the Blagikh” in a lie. During the investigation and in court, she insisted that only on May 21, 2013, she first turned to drug control officers to expose the drug dealer, and according to the declassified resolution on conducting an operational-search activity - operational implementation - on April 29, 2013, the police made a decision to the introduction of a certain person under the pseudonym “Tamara Blagikh” to Bolotnikov. It was also possible to obtain information from the cellular operator, which convincingly refuted her testimony - numerous calls to Bolotnikov’s phone came from her.

But the judicial panel for criminal cases of the Ivanovo Regional Court left the verdict unchanged, without bothering to provide any motivation and thoughtfully suggesting that “Tamara Blagikh” was not the only police informant.

The cassation appeals (and we consistently went through all the steps of the cassation ladder) were followed by template answers: “the legality of the verdict and the appeal ruling is beyond doubt... the grounds for the slander against Bolotnikov have not been established... any violations entailing the recognition of the results of the operational investigation as unacceptable evidence have not been established by the court.” . The Supreme Court of the Russian Federation also did not demonstrate originality.

The national justice system stubbornly refused to acknowledge the obvious facts, and I had to prepare a complaint to the European Court of Human Rights. The basis was taken as the legal position of the ECtHR, repeatedly expressed, including in pilot decisions of December 15, 2005 in the case “Vanyan v. Russian Federation” (complaint No. 53203/99) and of October 26, 2006 in the case “Khudobin v. Russian Federation" (complaint No. 59696/00): "Domestic legislation should not allow the use of evidence obtained as a result of incitement by state agents. If it allows this, then domestic law does not comply with the principle of “fair trial” in this regard.”

On July 17, 2014, the ECHR declared admissible complaint No. 54214/14 “Bolotnikov v. Russia”, and already in March 2015 it was communicated and sent to the Government of the Russian Federation for written comments. I think that such a quick communication of the complaint was due to the fact that the subject of the appeal had by that time been thoroughly worked out by the court and did not require lengthy discussion. The Russian Government first asked for additional time to respond and then informed the court that it declined to comment. There must have been no arguments to justify the police provocateurs.

On February 22, 2021, the ECHR, having combined Bolotnikov’s complaint with two similar ones, made a long-awaited decision, finding a violation against Bolotnikov, paragraph 1 of Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention). Referring to the legal positions regarding violations related to the procedure for authorizing and conducting test purchases of narcotic drugs, set out in decisions in previously considered cases (dated April 24, 2014 in the case of “Lagutin and others v. the Russian Federation”; dated October 2, 2012 in case “Veselov and others v. Russian Federation”; dated April 30, 2015, in the case “Lebedev and others v. Russian Federation”; dated November 27, 2014, in the case “Eremtsov and others v. Russian Federation”), the ECtHR came to the conclusion that that the criminal proceedings against Bolotnikov did not correspond to the concept of a fair trial.

Having received the English version of the ECHR decision, I turned to the Chairman of the Supreme Court of the Russian Federation V.M. Lebedev with a request to submit a motion to resume proceedings in the Bolotnikov case due to new circumstances. The criminal case from the archives of the Furmanovsky City Court was sent to Moscow.

By that time, Bolotnikov had already been in a maximum security penal colony for 4 years and 7 months of his assigned 8 years, having lost all hope of gaining freedom and achieving justice before the end of his sentence. His family fell apart and his health deteriorated. He did not believe that justice would be restored.

On June 8, 2021, the Chairman of the Supreme Court of the Russian Federation submitted to the Presidium of the Supreme Court of the Russian Federation a proposal to resume proceedings in the case, noting that, in accordance with clause 2 of part 4 of art. 413 of the Code of Criminal Procedure of the Russian Federation, the violation of the provisions of the Convention established by the ECHR during the consideration of a criminal case by the court of the Russian Federation is the basis for the resumption of proceedings in this case due to new circumstances.

On June 27, 2021, I was invited to take part in a court hearing of the Presidium of the Supreme Court of the Russian Federation.

Having supported the submission of V.M. Lebedeva, Deputy Prosecutor General of the Russian Federation N.A. Vinnichenko, at a meeting of the Presidium of the Supreme Court of the Russian Federation, cited the conclusion of the ECtHR that “the absence in the Russian legal system of a clear and predictable procedure for authorizing test purchases of narcotic drugs is a structural problem that exposes applicants to arbitrariness on the part of police officers and does not allow the courts to effectively review their applications for provocations".

Without denying the presence of a structural problem noted by the ECHR, I still see a structural problem in a broader sense. The courts in Strasbourg and Russia were presented with the same evidence, the same arguments in defense of Bolotnikov. Why did Russian judges not want to hear them and were ready to give them an objective assessment only after the intervention of an international court? Is this not the structural problem of the Russian legal system?

Therefore, when presenting the arguments of the complaint “Bolotnikov v. Russia” at the court hearing of the Presidium of the RF Supreme Court, I was perplexed as to what new circumstances for the resumption of proceedings in the case the law enforcement officer saw in the decision of the ECHR, if all these “new” circumstances were known to the judges from the very beginning, lay on the surface, however, no one wanted to pay attention to them in a timely manner. I spoke about the dire consequences of a miscarriage of justice (or a judicial crime), that the fate, or even the life, of a person is at stake, and asked to release Bolotnikov from custody.

The Presidium of the RF Armed Forces adopted a resolution: the verdict of the Furmanovsky City Court and subsequent court decisions should be quashed, Bolotnikov should be released from custody, and the case would be transferred for a new trial in a different court.

Every time I saw a statue of Themis above the main entrance of the Supreme Court of the Russian Federation, I never ceased to be amazed - who came up with the idea of depicting the goddess of justice without the blindfolds on her eyes and a sword in her hand, so characteristic of this mythological lady? What lies behind this unusual allegory? Well, let’s say today’s Themis has no need for a bandage at all. Let her see who is in front of her. How else to ensure selectivity of justice? But for what reason was she deprived of her weapon?

And then he left the meeting, looked again at the gilded Themis and realized: the sculptor was right in disarming the goddess. Without weapons, everyone is somehow calmer. There's no point in swinging swords. Otherwise, this unbridled and wayward woman can do such things! In connection with this epiphany, I took a selfie with Themis and sent the photo to my native Bar Association of the Ivanovo region.

Another five days passed, and the colony finally received a resolution from the Presidium of the RF Armed Forces. D. Bolotnikov was released. Now he and I are facing new trials, and we will actually be able to see whether the very structural problem that was discussed in the Presidium of the RF Armed Forces has been dealt with on the ground. But that will be a completely different story. Wish us luck!