Chapter 3

The Constitutional Court today: protest cases, descendants of the repressed and the refusal of the courts to listen to the decisions of the Constitutional Court
Настоящий материал (информация) произведён, распространён или направлен иностранным агентом Автономная некоммерческая организация «Институт права и публичной политики» либо касается деятельности иностранного агента Автономная некоммерческая организация «Институт права и публичной политики»
Сontents
"Dadin" article. How the Constitutional Court resolved the issue of compliance of criminal punishment with protest offenses
Decision: Judgment of the Constitutional Court No. 2-P of February 10, 2017

Applicant: I.I. Dadin

Contested act: Art. 212.1 of the Criminal Code of the Russian Federation

Result: the act is recognized as not contrary to the Constitution
Plot
In December 2015, the opposition civil activist Ildar Dadin was the first in Russia to be convicted under Art. 212.1 of the Criminal Code of the Russian Federation for repeated violations of the rules for holding rallies and pickets.

The condemnation was preceded by a long story from administrative protocols on protest articles. In 2014, the court fined Dadin twice under Art. 20.2 of the Code of Administrative Offenses of the Russian Federation for pickets and participation in a rally on Manezhnaya Square. For participation in two subsequent actions in the capital - in 2014 and early 2015 - two more administrative protocols were drawn up against Dadin. They resulted in a couple of criminal cases, which were later combined into one proceeding. In one of these episodes, the case was later dismissed due to the imposition of an administrative fine. Having considered the materials of the criminal case, the Basmanny Court sentenced Dadin to three years in prison. In March 2016, following an appeal, the sentence was reduced to two and a half years.

Dadin and his lawyers filed a complaint with the Russian Constitutional Court. In their opinion, Art. 212.1 of the Criminal Code of the Russian Federation, which appeared in 2014 as a reaction to protest activity, allows a person to be retried for the same offense. Responsibility for it comes if the protester commits three or more violations of Art. 20.2 of the Code of Administrative Offenses within six months. Moreover, the norm allows the initiation of a criminal case before the entry into force of court decisions in administrative cases. Moreover, the article allows for the possibility of imposing a sentence of imprisonment for up to 5 years for actions that did not cause harm to human health or property and did not pose a threat to the safety of the population and the environment.
The essence of the decision
As the Constitutional Court notes, the federal legislators cannot ignore the prescription of Art. 50 of the Constitution of the Russian Federation, which, in accordance with the generally recognized principle of non bis in idem, prohibits the conviction of someone twice for the same crime, which is consistent with the International Covenant on Civil and Political Rights and with the Convention for the Protection of Human Rights and Fundamental Freedoms.

However, the Constitutional Court believes that the legislators could resort to the institution of criminal liability when an offense is committed by a person who has previously been subjected to administrative punishment for similar acts. "The recurrence of offenses indicates the insufficiency of the available administrative and legal means to counter violations of the law, which can be considered as a constitutionally significant reason for the criminalization of the relevant acts," the Constitutional Court explained in a press release.

In the ruling itself, the Constitutional Court noted that the possibility of such a dualistic approach to the use of administrative and criminal liability was due to the fact that they "have similar tasks" and "complement each other in many respects."

At the same time, it is necessary to observe the general principles of legal liability, which, in particular, require that criminal liability for violating the procedure for organizing rallies and picketing should be adequate to the public danger of the act. "A crime must be characterized by a criminal social danger, in the absence of which even an act that formally falls under the signs of a criminal offense cannot be considered as such," the Constitutional Court emphasized in its decision.

The legislators, when determining what acts are recognized as crimes, are obliged to "avoid excessive use of criminal law repression," the judgment notes. The Constitutional Court believes that if the violation "was of a formal nature" and did not entail negative consequences, then criminal liability for it, motivated by the mere repetition of the commission, is contrary to the Constitution.

The Constitutional Court also emphasized that it is possible to bring a person to criminal responsibility for violating the rules for holding a public action only on the condition that for a specific act imputed to him, he had not previously been subjected to administrative punishment under Art. 20.2 of the Code of Administrative Offenses of the Russian Federation.

The Constitutional Court recommended that the State Duma amend Art. 212.1 of the Criminal Code of the Russian Federation to clarify the normative grounds for criminal liability and penalties for its commission.

The Constitutional Court considered the judicial acts issued against Ildar Dadin to be at odds with the constitutional and legal meaning of Art. 212.1 of the Criminal Code of the Russian Federation and subject to revision.
What happened next
On February 22, 2017, the Presidium of the Supreme Court of the Russian Federation overturned the sentence against Ildar Dadin, decided to drop the case against him, release him from custody and recognize his right to rehabilitation. Among the people and among lawyers Art. 212.1 of the Criminal Code became known as the "Dadin" article.

In August 2019, under Art. 212.1 of the Criminal Code of the Russian Federation, a case was again opened against activist Konstantin Kotov for participating in protests against the exclusion of candidates for elections to the Moscow City Duma. On September 5, 2019, Kotov was sentenced to 4 years in prison. Lawyer Maria Eismont called that verdict a "flagrant situation" in which the court completely ignored the mandatory decision of the Constitutional Court on Dadin's complaint.

Kotov's defense filed a complaint with the Constitutional Court. In January 2020, the Constitutional Court issued a ruling on the need to review Kotov's sentence, emphasizing once again that criminal liability under Art. 212.1 of the Criminal Code of the Russian Federation should only attack in the event of causing serious harm to someone.

However, the court of cassation simply instructed the Moscow City Court to once again check the legality of the decision made by the court of first instance. On April 20, the Moscow City Court, following an appeal review of Kotov's case, commuted his sentence to 1.5 years in prison.

"The cautious, conformist, half-hearted and not very well-written ruling on Dadin, as well as the vague definition on Kotov, and most importantly, the complete inability of the Constitutional Court to insist on the execution of its not even the most successful judicial acts, actually untied the hands of law enforcers. These acts of the Constitutional Court turned into random quotes-paragraphs in sentences, arbitrarily pulled out to fill the paper with letters before the phrase "deem guilty," Maria Eismont commented on the practice of using the "Dadin" article.

From the moment of its adoption to the present, this article of the Criminal Code has been one of the most controversial and condemned, especially among human rights activists.

In the fall of 2017, LDPR deputies proposed decriminalizing the "Dadin" article, but two years later, the State Duma rejected the bill. In the same month, Sergey Shargunov, a deputy from the Communist Party faction, submitted to the State Duma a bill softening Art. 212.1 of the Criminal Code of the Russian Federation. He insisted on a two-fold reduction in the amount of the fine and suggested that the violation be considered a criminal offense "if the act was committed repeatedly" and harmed "constitutionally protected values." The responsible committee of the State Duma on state construction and legislation returned the bill to the author due to the lack of a response from the government of the Russian Federation.

Later, Shargunov re-submitted the bill to the parliamentarians, but the Cabinet of Ministers did not support it.

In July 2020, the deputy from the Communist Party of the Russian Federation Valery Rashkin proposed to cancel Art. 212.1 of the Criminal Code of the Russian Federation. However, the initiative was immediately criticized in the Government of the Russian Federation and the Supreme Court. The executive body, among other things, referred to the decision of the Constitutional Court, which recognized that Art. 212.1 of the Criminal Code does not contradict the Constitution. The Supreme Court, in its review, also found Rashkin's proposal insufficiently substantiated.

As of May 2022, 6 people have been convicted in Russia under the "Dadin" article.

How Master's students got the right to deferment from the army
Decision: Judgment of the Constitutional Court No. 15-P of April 17, 2018

Applicants: P. Spiridonov and the Bugulma City Court of the Republic of Tatarstan

Contested act: subparagraph "a" of paragraph 2 of Art. 24 of the Federal Law "On military duty and military service"

Result: the contested act does not comply with the Constitution
Plot
The bachelor of the Faculty of Architecture and Civil Engineering of the National Research Mordovian State University named after N.P. Ogaryov Pavel Spiridonov. At that time, in his life he received two deferrals from the army - one for graduation from school, and the other for university studies.

When in the summer of 2016, after graduating from a bachelor's degree, he was going to continue his education and get a Master's degree, the Saransk draft board did not agree with his plans. Its employees considered that Pavel Spiridonov could not continue his studies, since he had already taken advantage of two deferrals, and the third was not allowed by law. The Proletarsky District Court of Saransk and higher authorities agreed with this decision.

A similar process took place in the Bugulma City Court of Tatarstan. Roman Khalikov applied there to challenge the decision of the draft board. The court considering the case appealed to the Constitutional Court with a request, because it saw inconsistency with the Constitution in the norms, in particular, a violation of the principle of equality before the law and the court. Thus, the request noted that persons under the age of 18, while receiving school education, are in fact in a privileged position in relation to those who, at the time of receiving a complete secondary education, have already passed the age of majority.
The essence of the decision and its reasons
The Constitutional Court agreed with the position of the applicants. It determined that citizens who belonged to the same category found themselves in unequal conditions in terms of the possibility of obtaining higher education under the master's program.

Such inequality, the CC pointed out, was due only to the fact that some of them reached the age of 18 before leaving school and had already taken advantage of the deferment from the army, while others did not. The restriction of the right of citizens who received a deferment due to reaching the age of majority before graduation from school, to a deferment from conscription in the army while being in graduate school, when such a right was granted to citizens who formed the same category with them, had no objective justification and put them in an unequal position, the Constitutional Court decided .

The court recommended that appropriate changes be made to the legislative regulation.
What happened next
The decision of the Constitutional Court made it possible to equalize the rights of persons belonging to the same category, but differentiated due to a virtually random coincidence, that is, a birthday in the first or second half of the year. Subsequently, the law was amended accordingly. A person's right to education outweighed his public duties.

In general, this decision of the Constitutional Court was assessed positively. Yulia Smirnova, chairman of the Association of Students and Student Associations of Russia, said in an interview with RBC that "such a decision harmoniously fits into the concept of the development of education and science. It is positive and measured."

A few months later, the Constitutional Court went even further, and, at the request of the Leninsky District Court of St. Petersburg, extended the deferment to students of secondary vocational institutions. Kommersant wrote in 2018 that the Constitutional Court "granted school graduates the right to deferment from military service in order to receive education, despite the objections of representatives of the Federal Assembly, the government, the president and the prosecutor's office. Only the Presidential Human Rights Council supported the graduates."

Can foreigners own Russian media?
Decision: Judgment of the Constitutional Court No. 4-P of January 17, 2019; the Institute for Law and Public Policy submitted an expert opinion on this case

Applicant: E. Finkelstein

Contested act: Art. 19.1 of the Law "On Mass Media"

Result: the contested act is contrary to the Constitution
Plot
Entrepreneur, head of PMI holding Yevgeny Finkelstein applied to the Constitutional Court. The owner of dual citizenship and 49% in the authorized capital of "Radio-Shans" LLC tried to challenge the unfair, in his opinion, decision of the general meeting of media owners: the second owner of LLC, "Russian Radio - Eurasia" JSC, who had a 51% stake, re-registered in order of assignment of the company's license for radio broadcasting in St. Petersburg.

During the trial, Evgeny Finkelstein encountered a problem - in the refusal decisions, the courts wrote about the dual citizenship of the entrepreneur, because of which he could not be a member of the organization that broadcasts. Accordingly, he also could not appeal the decisions of the general meeting. Because of this, Evgeny Finkelstein appealed to the Constitutional Court with a complaint against Art. 19.1 of the Law of the Russian Federation "On the Mass Media", which since 2016 prohibited persons with dual citizenship from owning more than 20% of shares in Russian media.
The essence of the decision
The Constitutional Court ruled that the provisions of the contested article were inconsistent with the fundamental law of the country, but the judges considered the ban on foreign participation in the media per se admissible.

Only wordings that did not make it possible to accurately determine the circle of subjects to which the restriction on the share of foreign capital in the Russian media applies were recognized as unconstitutional. The legislators had to improve the provisions of the law in such a way as to remove the issues identified in the judgment.

The constitutionality of the ban as a whole was explained by the Constitutional Court as ensuring national interests: the restriction prevents the establishment of strategic control over the media and the threat to national security.
Dissenting opinion
Judge Konstantin Aranovsky did not agree with the general decision of the Constitutional Court. He considered the introduction of restrictions on the prohibition of foreigners or persons with dual citizenship from owning Russian media unconstitutional, since the real threat to information security referred to by legislators has not been proven, and "phobia or panic does not allow restricting rights and freedoms."

"Lawful restrictions on rights and freedoms have a protective meaning and are intended precisely to protect constitutional values... Nothing can be more "useful" than human rights in the Russian constitutional legal order, where they are of the highest value," Aranovsky said in a dissenting opinion. "They cannot be preferred to another good, public interest in the influential moods and intentions of the authorities. Even in favor of high citizenship and culture, it is impossible to forcibly reduce, say, the freedom of broadcasting "Russian chanson", and you will have to endure even toxically high doses of sincerity in the form of a daring urka with a bitter fate and mother, which waits in vain, in the everyday writing and spirit-uplifting exodus of logging and thieves and people's proletarian truth."
What happened next
In March 2020, the State Duma adopted amendments to the Mass Media Law in the first reading. Almost a year and a half later, in July 2021, they were signed by Russian President Vladimir Putin. The bill clarified the rights of foreign citizens and companies owning up to 20% of the shares or shares of Russian media.

According to the intention of the authors, the document should have eliminated the contradictions between the individual parts of the Mass Media Law. After the adoption of the amendments, the restrictions that did not allow the participant to exercise their rights within the framework of 20% ownership were removed. Among them was the right to judicial protection. Also, the vague wording "media participant", which was used along with the concept of "media founder", was removed from the law on mass media.

Recalculation of property tax
Decision: Judgment of the Constitutional Court No. 10-P of February 15, 2019

Applicant: O.F. Nizamova

Contested act: Art. 402 of the Tax Code of the Russian Federation (lost force in 2020)

Result: the contested act does not contradict the Constitution
Plot
Olga Nizamova, a mother of many children from the Altai Territory, applied to the Constitutional Court. In her opinion, Art. 402 of the Tax Code of the Russian Federation does not comply with Part 2 of Art. 6 of the Constitution of the Russian Federation (on the equality of Russian citizens in rights, freedoms and duties), since it allows the constituent entity of the Russian Federation to create conditions for calculating the amount of tax on the property of individuals in an increased amount - due to a higher range of tax rates calculated based on the inventory value of real estate.

In 2013 the applicant bought a house for her personal subsidiary plot in Barnaul. In 2016, she received a property tax in the amount of 47.5 thousand rubles. It was calculated using a high range of tax rates from the inventory value of the house, which was determined at 2.8 million rubles. And if the tax was determined on the basis of the cadastral value, then it would amount to 17 times less.

The applicant failed to obtain a recalculation of the tax. The courts found no grounds for this, since no decision was made in the Altai Territory to determine the tax base based on the cadastral value of real estate. The applicant considered that the tax burden on equivalent property cannot vary many times only depending on the region of its location, and applied to the Constitutional Court.
The essence of the decision
The Constitutional Court ruled that Art. 402 of the Tax Code of the Russian Federation does not violate the Constitution, since it does not prohibit the taxpayer to individually demand the calculation of tax on the basis of the cadastral value, if rates in the constituent entity of the Russian Federation are still calculated according to the inventory.

According to the Court, the amendments made in 2014 to the Tax Code on the payment of property tax on individuals should bring the valuation of real estate closer to the market value and ensure a more equitable distribution of the tax burden. Therefore, the transitional period, which allowed the regions to use the inventory value for tax calculation until 2020, was legally established.

At the same time, the Constitutional Court drew attention to the fact that taxation should be proportionate, and significant differences in the amount of property tax, depending on the method of its calculation, are unacceptable. The provisions of the Tax Code of the Russian Federation should be applied taking into account the identified constitutional and legal meaning, and the decisions in the case of Olga Nizamova were thus subject to revision.
Dissenting opinion
Disagreement with the decision of the Constitutional Court in a dissenting opinion was stated by Judge Sergei Kazantsev.

He agreed with the decision that the contested article of the Tax Code does not contradict the Constitution. However, the judge noted that the establishment and change of the tax base and tax rate are in the powers of the legislature, taking into account the peculiarities of the local tax. Therefore, according to Sergei Kazantsev, not only property owners cannot individually demand a tax recalculation, but the courts, including the Constitutional Court, do not have the authority to do so.
Why has this decision been important?
The Constitutional Court gave citizens the opportunity to demand a recalculation of property tax. The decision of the Court led to a wave of lawsuits to the tax authorities demanding the return of overpaid amounts to citizens.

In April 2019, the Federal Tax Service sent out a letter in which it ordered regional divisions throughout Russia to study and apply the Constitutional Court's ruling. The Ministry of Finance of Russia also repeatedly referred to it when it pointed out the right of citizens individually to demand the application of the cadastral value for calculating property tax.

How the Constitutional Court recognized the right of the children of the repressed to return home
Decision: Judgment of the Constitutional Court No. 39-P of December 10, 2019

Applicants: A. Meissner, E. Shasheva and E. Mikhailova; case card on the website of the Institute for Law and Public Policy - here

Contested acts: Art. 13 of the Law "On the Rehabilitation of Victims of Political Repression", paragraphs 3 and 5 of Art. 7, paragraph 1, part 1 and part 2 of Art. 8 of the Law of the city of Moscow "On ensuring the right of residents of the city of Moscow to housing"

Result: the contested acts do not comply with the Constitution
Plot
The applicants to the Constitutional Court were Alisa Meissner, Evgenia Shasheva and Elizaveta Mikhailova. They were born in exile in the 1930s, as their parents were repressed.

The first such complaint against the law "On the Rehabilitation of Victims of Political Repressions" was submitted to the Constitutional Court back in 1995. The applicant Zoya Aleshnikova, who lived in exile with her repressed parents, received the status of "victim of repression". The basis for this decision was the law of the RSFSR "On the Rehabilitation of Victims of Political Repression", adopted in 1991, which did not recognize children who were with their parents in exile or in places of deprivation of liberty as repressed.

The applicant, who was with her parents in a special settlement, believed that she should not only be recognized as a victim, but also receive the legal status of "repressed". Then the Constitutional Court came to the conclusion that the provision of the first paragraph of Part 1 of Art. 2.2 of the law does not comply with the Constitution: "The fact that by the time of the unjustified application of repressions to parents they had not reached the age that allowed them to be legally held accountable does not matter for assessing their legal status and cannot serve as a basis for restricting their rights and freedoms in rehabilitation process," the judgment stated.

However, the 1991 law guaranteed the relatives of the repressed the right to compensation: free housing in the city where the families lived before the arrest. But in 2005, the State Duma adopted an amendment, according to which the regions themselves could establish requirements for relatives of the repressed in order to receive compensation. In some constituent entities of the Russian Federation, the rules turned out to be such that they actually deprived the so-called "children of the Gulag" of the right to return home. Among them was Moscow, where Alisa Meissner, Evgenia Shasheva and Elizaveta Mikhailova were trying to return.
The essence of the decision
In 2019, the Constitutional Court sided with the applicants and found the contested norms unconstitutional to the extent that they "due to the uncertainty of the procedure for registration and provision of living quarters… prevent compensation for harm to rehabilitated persons." The Constitutional Court demanded that federal and regional legislators immediately amend the norms so that victims of repression can receive compensation and return to the place of residence of their repressed relatives.

"The absence in the federal law of a special normative provision for the right of rehabilitated persons and members of their families to return to those areas and settlements where they lived before the repression was applied to them, creates uncertainty regarding the possibility of exercising this right by this category of persons, despite the fact that their interest in provision of residential premises competes with the same interest of other categories of citizens, for whom the legislator, for socially significant reasons, has recognized the right to improve housing conditions and who are provided with residential premises of the state or municipal housing stock, "the Constitutional Court pointed out.
Dissenting opinion
Judge Konstantin Aranovsky gave a dissenting opinion on the case. He agreed with the decision of the Constitutional Court, but decided separately to speak about the succession of Russia and the Soviet Union. "The Russian Federation does not continue with itself in law, but replaces on its territory a state that was once illegally created, which obliges it to reckon with the consequences of its activities, including political repression," he pointed out.

"Even in the conditional legal sense, Russia does not need to bring the blame for Soviet repressions on its state personality and replace the state of victorious and then fallen socialism. This is already impossible because its guilt in repressions and other unforgivable atrocities, beginning with the overthrow of the legitimate authority of the Constituent Assembly, is immeasurable and literally unbearable.

With such guilt, statehood has no right and is not able to exist lawfully, offending justice, freedom and humanity," Judge Aranovsky expressed his opinion.

Russia, the judge wrote, should have the constitutional status of a state that is not involved in totalitarian crimes.

The dissenting opinion expressed by Konstantin Aranovsky provoked a wide discussion in society. Some experts associate it with the updated wording in the Constitution about Russia as the legal successor of the USSR, as well as a ban on the publication of dissenting opinions of judges of the Constitutional Court.
Consequences
In pursuance of the decision of the Constitutional Court, the Ministry of Construction developed a bill, which, however, proposed to put the victims of repression at the end of the general queue for affordable housing. The waiting period could be 25-30 years - applicants and people in a similar situation with them may simply not live to return home. Work on it was frozen.

The second bill was developed by State Duma deputies Sergei Mironov and Galina Khovanskaya. The document provided for a priority procedure for obtaining housing for "children of the Gulag". Veterans of the Great Patriotic War or the liquidators of the accident at the Chernobyl nuclear power plant have a similar order. However, the bill was rejected.

The decision of the Constitutional Court has not yet been executed. This provoked the filing of the first-ever class action lawsuit against the State Duma with a demand to recognize as illegal its inaction in the issue of providing housing for the children of the repressed. The Supreme Court did not accept it. The story continues to develop.

The case of bona fide purchasers, or the right to review decisions
Decision: Judgment of the Constitutional Court No. 30-P of June 26, 2020

Applicants: the Odnodvortsev family; case card on the website of the Institute for Law and Public Policy - here

Contested acts: part 1 of Art. 439 of the Code of Civil Procedure, paragraph 4 of part 1 of Art. 43 of the Federal Law "On Enforcement Proceedings", as well as parts 3 and 5 of Art. 79 of the federal constitutional law "On the Constitutional Court"

Result: norms are recognized as not contradicting the Constitution
Plot
The Odnodvortsev family appealed to the Constitutional Court with a complaint about a number of norms of Russian legislation. They argued that, taken together, the contested provisions did not allow them to stop the process of eviction from the apartment.

Valery Odnodvortsev legally bought an apartment, which, as it turned out later, "withdrew from the possession of the city of Moscow against the will of the owner" as a result of the illegal actions of the former owner. In 2010, the Preobrazhensky District Court of Moscow recognized Valery Odnodvortsev as a bona fide purchaser, but the Moscow Department of Housing Policy and Housing Fund later obtained a decision through the courts to evict the family from the apartment.

This happened due to the interpretation of paragraph 1 of Art. 302 of the Civil Code, according to which the real owner of the disputed property has the right to claim it even from a bona fide purchaser. In 2017, in the case of Alexander Dubovets, the Constitutional Court expressed a position on the impossibility of reclaiming property from a bona fide purchaser if it had left the state's possession due to improper performance by the authorities of their functions - exactly for this reason, the Odnodvortsev family was under the threat of eviction. However, the courts in their case refused to take this into account. The essence of the arguments of general jurisdiction was that they were not parties to the constitutional proceedings in the Dubovets case, and the Constitutional Court in its decision did not indicate the reconsideration of all similar cases.
The essence of the decision
The judgment in the case of the Odnodvortsevs became one of a whole series of decisions to protect the rights of bona fide purchasers and combined two pain points at once: substantive law as such and procedural mechanisms for its protection.

In 2020, the Constitutional Court agreed with the family's arguments and confirmed their right to housing. However, it was not so much the position of the Constitutional Court on paragraph 1 of Art. 302 of the Civil Code, but the first attempt by the Court to create in the law a mechanism for reviewing court decisions in similar cases of third parties - those who themselves have not previously applied to the Constitutional Court. Moreover, the judgment directly obliged the legislators to develop and consolidate such a mechanism. The Constitutional Court recalled that its decisions do not require confirmation by other bodies, and "the execution of the instructions of the Constitutional Court cannot be made dependent on the discretion of any officials."

5 years before the decision in the Odnodvortsevy case, the Constitutional Court checked the norms on one-time compensation paid by the state to those who lost their homes. In particular, it was about the owners who did not have the right to claim it from a bona fide purchaser. The Constitutional Court recognized the norms as unconstitutional, since they allowed "the courts to refuse to pay compensation to the mentioned bona fide purchaser with the reference that there are no grounds for holding the state body liable for illegal actions (inaction) committed during registration."

In April 2003, for the first time in its jurisprudence, the Constitutional Court addressed the issue of the acquirer's good faith, defining the legal meaning of this concept. The Constitutional Court confirmed the impossibility of seizing a thing in the order of restitution from a person who meets the requirements of Art. 302 of the Civil Code of the Russian Federation. The court considered that the protection of the rights of an owner who is not a party to the transaction is possible only by satisfying a vindication claim, which requires the grounds provided for in Art. 302 of the Civil Code of the Russian Federation that give the right to claim property from a bona fide purchaser - gratuitous acquisition of property by a bona fide purchaser, disposal of property from possession the owner against his will, etc.
How did the legal problem develop further?
The amendments proposed by the State Duma after the decision on the Dubovets case were introduced into the law. They were designed to strengthen the protection of bona fide home buyers. According to the law, the purchaser of property, who relied on the data of the state register during the purchase, is recognized as bona fide until it is proven in court that "he knew or should have known about the absence of the right to alienate property from the person from whom the rights to it were transferred to him" . The court, by law, must also refuse to claim real estate if more than three years have passed since the entry of data on the first bona fide purchaser into the state register.

The adopted bill caused a generally positive response, however, according to some experts, it is unfinished and does not fully protect the interests of bona fide purchasers, especially in terms of relations between a citizen and the state and the timing of compensation. Grigory Vaypan, a lawyer who represented the interests of the Odnodvortsev family, spoke about this:

"If we are talking about a dispute between individuals, then this [compensation mechanism] is a good measure. But in situations where the state applies for claiming an apartment, this rule does not make sense: the state takes away an apartment from a person, and he can receive its value from the state through the court. This is a senseless exchange, during which a person is thrown out into the street for no reason. The European Court of Human Rights writes about this in all its rulings: a private person, unlike the state, has an "emotional attachment" to a particular apartment."

In 2021, amendments were adopted as a result of the decision in the Odnodvortsevy case - now a review of cases is possible even if the participants in the process were not a party to constitutional proceedings.

The Institute continues to develop the topic of protecting the rights of bona fide purchasers. Now we are working on the case of Elena Psaryova, who is trying to achieve the application in her case of the position expressed by the Constitutional Court in the Dubovets case. In the meantime, this has not happened, Elena lives under the threat of eviction. The courts refuse to reconsider her case - even despite the ruling of the Constitutional Court on her complaint, which contains references to the 2017 decision.

This case has become another example when the positions of the Constitutional Court and the meaning of the contested norms revealed by the Court are ignored by the courts of general jurisdiction, and the actions of the legislators to correct the situation are not effective enough to eliminate the problem.
Included in the Russian list of "foreign agents"

What compensation can be received after the termination of the administrative case?
Decision: Judgment of the Constitutional Court No. 36-P of July 15, 2020

Applicants: R.A. Loginov and R.N. Sharafutdinov

Contested acts: Art. 15, 16, part 1 of Art. 151, 1069 and 1070 of the Civil Code of the Russian Federation

Result: the contested acts do not contradict the Constitution
Plot
As follows from the case file, Roman Loginov was brought to justice under Part 1 of Art. 12.8 of the Code of Administrative Offenses (driving a vehicle by a driver who is intoxicated). The court deprived him of his driver's license for a year and a half and fined him 30 thousand rubles. Later, the Supreme Court annulled the judicial acts and terminated the proceedings due to lack of evidence of a violation.

After that, Roman Loginov filed a lawsuit against the Ministry of Finance demanding compensation for damages (expenses for paying for the services of a defense lawyer in an administrative offense case and a representative in a civil case, for paying a state fee, an administrative fine and reimbursement of transportation costs to a defense lawyer) and pay compensation for moral damage.

The Zavodoukovsky District Court of the Tyumen Region satisfied Loginov's claim in part, refusing compensation for moral damages. The court explained this by the fact that the termination of the proceedings in itself did not speak of the illegality of the actions of the official who drew up the protocol, and therefore did not provide for compensation for non-pecuniary damage. The Tyumen Regional Court reversed this decision, refusing to satisfy the claims in full. The higher authority considered that the actions of the official in the course of the proceedings on the administrative case were not recognized as illegal, and his guilt in the unreasonable bringing of the motorist to administrative responsibility was not established. Loginov, on the other hand, believed that "the termination of proceedings in the case of an administrative offense in itself indicates the illegality of the actions of a state body or official."

In July 2017, a report on an administrative offense was drawn up against Rail Sharafutdinov. The police officers considered that he was driving a Kamaz with a trailer without special permission, the weight of the cargo of which exceeded the allowable figures. But when the truck was re-weighed, the axle load was not exceeded. After that, the court found that the first weighing was carried out in improper conditions, and the proceedings were discontinued.

Rail Sharafutdinov also unsuccessfully tried to recover damages from unlawful bringing to administrative responsibility: but in his case, the court referred to the fact that the unlawful actions of the policemen were the cause of the losses.

Both drivers appealed to the Constitutional Court with a request to check for compliance with the Constitution of Art. 15 (compensation for damages) and 1069 of the Civil Code (liability for harm caused by state bodies, local governments, as well as their officials) and Art. 28.2 of the Code of Administrative Offenses of the Russian Federation (protocol on an administrative offense).

Roman Loginov asked to additionally check the constitutionality of Art. 16 (compensation for damages caused by state bodies and local governments), 151 (part 1, compensation for moral damage), 1070 (responsibility for harm caused by illegal actions of bodies of inquiry, preliminary investigation, prosecutor's office and the court) of the Civil Code of the Russian Federation, as well as parts 1, 2 and 3 of Art. 24.7 of the Code of Administrative Offenses of the Russian Federation (expenses in the case of an administrative offense).
The essence of the decision
The Constitutional Court ruled that the obligation to reimburse legal costs does not depend on the guilt of the losing party, but to compensate for non-pecuniary damage, proof of guilt is required. At the same time, the Court noted that parts 1, 2 and 3 of Art. 24.7, as well as Art. 28.1 and 28.2 of the Code of Administrative Offenses cannot be considered as violating the constitutional rights of the applicants, since they do not regulate relations related to the reimbursement of expenses in the aspect indicated by the applicants.

The Constitutional Court also considered inadmissible the complaint of Rail Sharafutdinov regarding the inclusion in the damages of the cost of storing a car in a special parking lot. The decision clarifies that such expenses should have been paid by the state (part 12 of Art. 27.13 of the Code of Administrative Offenses), and the justice of the peace should have reflected this in the decision to terminate the proceedings.

The Constitutional Court indicated that the applicant has the right to recover the spent money from the owner of the special parking lot in a civil law order or to return it in the manner established by regional legislation, with reference to Part 10 of Art. 27.13 of the Code of Administrative Offenses. He also noted that the materials submitted by Rail Sharafutdinov did not confirm the application of Art. 61 Code of Civil Procedure and art. 13 of the Police Act.

The court wrote that only Art. 15, 16, part 1 of Art. 151, art. 1069 and 1070 of the Civil Code were the subject of consideration in the case, since it is on their basis that the current legislation resolves the issue of reimbursement of expenses after unlawful bringing to administrative responsibility.

Having studied the practice of applying these articles, the Constitutional Court noted that the courts refuse to reimburse expenses if the actions of officials in such cases are recognized as lawful. Without establishing the guilt of an official in unjustified administrative persecution, it is impossible, in the opinion of the Court, to compensate for damages and costs.

Thus, the CC concluded that, on the basis of Art. 15, 16, 1069 and 1070 of the Civil Code reimbursement of expenses for the services of a defense counsel and other expenses cannot be denied for people in respect of whom cases have been terminated under clauses 1, 2, part 1 of Art. 24.5 of the Code of Administrative Offenses (in the absence of an event or composition of an administrative offense) or according to paragraph 4 of part 2 of Art. 30.17 of the Code of Administrative Offenses (due to failure to prove circumstances) with reference to the failure to prove the illegality of actions (inaction) of state bodies, officials or the failure to prove the guilt of officials in illegal administrative prosecution.

By decision of the Constitutional Court, a citizen who has suffered losses due to illegal or erroneous actions of officials has the right to compensation for expenses. At the same time, the Court found that the recovery of non-pecuniary damage is lawful only if there is guilt.
And what does this mean in practice?
"In the decision, the Constitutional Court drew attention to the fact that the losses incurred during the restoration of the right by a person in respect of which the decision to bring to administrative responsibility was canceled due to the absence of an event or corpus delicti or due to the failure to prove the circumstances on the basis of which it was issued, in essence, they are court costs," lawyer Alexander Peredruk comments on this decision. "The court emphasized that the reimbursement by the losing party of a legal dispute of the expenses of the other party is not conditional on establishing its guilt in illegal behavior - the criterion for the existence of grounds for reimbursement is the final decision determining in whose favor the dispute is resolved.

In other words, the Constitutional Court of the Russian Federation indicated that if the case of an administrative offense was dismissed, then in order to recover court costs, it is not necessary to prove the guilt of officials, regardless of what sanction the person was involved in and what measures to ensure the proceedings were applied.

This decision of the Constitutional Court of the Russian Federation has already been reflected in the practice of courts of general jurisdiction - for example, the Supreme Court of the Russian Federation in one of its rulings indicated that the costs of paying for legal services incurred by a person in connection with an appeal against a decision to bring him to administrative responsibility are subject to reimbursement regardless of the guilt of the official who issued the said decision.

In this ruling, the Supreme Court of the Russian Federation, considering the legality of judicial acts of lower instances, drew attention to the fact that the final act in the case of an administrative offense was adopted in favor of the plaintiff, therefore he has the right to award court costs related to the defense in the case of an administrative offense.

The legal position formulated by the Constitutional Court certainly increases the level of protection of the right of citizens to legal assistance - since the principle of the presumption of innocence clearly indicates that the absence of a decision to involve a citizen that has entered into force means his innocence, then there is no reason to create an unfavorable situation for him, including expressed in the incurring of court costs."

A series of pickets = a mass event?
Decision: Judgment of the Constitutional Court No. 19-P of May 17, 2021

Applicant: I. Nikiforova; case card on the website of the Institute for Law and Public Policy - here

Contested acts: part 1.1 of Art. 7 of the Federal Law "On meetings, rallies, demonstrations, marches and pickets" and part 2 of Art. 20.2 of the Code of Administrative Offenses of the Russian Federation

·Result: the contested acts are contrary to the Constitution
After the decision was made, Lyudmila Kuzmina was still included in the Russian list of foreign agents.
Plot
In 2020, Irina Nikiforova was brought to justice for organizing a series of solo pickets against the construction of an incinerator. From February 3 to February 26, 2020, residents of Kazan went out one by one to the building of the Cabinet of Ministers of Tatarstan with the same poster. At the same time, no more than one picket was held at the place of the action per day, which formally ruled out the mass character of the gathering.

For this, Irina Nikiforova was brought to administrative responsibility, qualifying her actions under Part 2 of Art. 20.2 of the Code of Administrative Offenses (organization or holding of a public event without filing a notification in the prescribed manner). She did not agree with this and, after a series of court decisions enforced in higher instances, she appealed to the Constitutional Court.

In the complaint, the applicant noted that a series of single pickets in the form of a picket queue, in the absence of the criterion of simultaneity, does not form a crowd. At the same time, the obligation to notify the authorities about the holding of a rally or demonstration is a necessary restriction on the right to peaceful assembly due to the mass character, which increases the risk of disturbing public order. Because of this, she asked to recognize Part 1.1 of Art. 7 of the Federal Law "On meetings, rallies, demonstrations, marches and pickets" and Part 2 of Art. 20.2 of the Code of Administrative Offenses that do not comply with the Constitution.
The essence of the decision
The Constitutional Court recognized the contested norms as inconsistent with the fundamental law of the country, but only in the form in which they were applied in the applicant's case.

The unity of intent and the general organization of single pickets cannot testify to a hidden form of holding a single public event. The Constitutional Court urged the courts to take into account other circumstances: the number of single pickets, territorial boundaries, time intervals, as well as the consequences. The rules for conducting collective actions can be applied to single picketing, "when the totality of single pickets is expressed externally in the simultaneous and, as a rule, continuous participation in it of a group of persons, objectively requiring the adoption of necessary interim measures."
What is the problem
Lawyer Vadim Danshov, who prepared a complaint to the Constitutional Court, noted that the problem with pickets remains largely unresolved due to the fact that the Constitutional Court did not evaluate the innovations introduced into the "picket" legislation at the end of 2020. The changes make it possible to qualify the picket queue as a mass event.

"It is not clear whether the new edition complies with this decision? How does the ban on qualifying single pickets as a single public event, if they are held at different times, compare with the rule allowing a collection of pickets that are held alternately to be qualified as a single event? The court did not fully answer these questions and, unfortunately, did not examine the new edition," Vadim Danshov explained to "Kommersant".

However, the main problem of this case lies not so much in the cautious position of the Constitutional Court, but in the unwillingness of the courts of general jurisdiction to conform to the meaning of the norms identified by the Constitutional Court. Recently, lawyers say, this is becoming a trend. In December 2021, the Supreme Court refused to review Irina Nikiforova's case, despite a direct instruction from the Constitutional Court. At the same time, the Supreme Court never referred to the decision in which the Constitutional Court assessed the qualifications used in her case.

"It's paradoxical. In the complaint, we asked to reconsider the case due to new circumstances, we refer to the operative part of the decision of the Constitutional Court, and the Supreme Court of the Russian Federation did not seem to have read our complaint," Vitaly Isakov, lawyer of the Institute, commented on this decision in an interview with "Kommersant". - Complete disregard. If the Constitutional Court were to have significant authority, the practice would be brought into line with its rulings even before people file a complaint for revision."

Can lawyers be inspected?
Decision: Judgment of the Constitutional Court No. 38-P of July 20, 2021

Applicant: R. R. Idiyatdinov

Contested act: paragraph 6 of Art. 34 of the Federal Law "On the Detention of Suspected and Accused of Committing Crimes"

Result: the contested act complies with the Constitution
Plot
Lawyer Ramil Idiyatdinov arrived at the pre-trial detention center on April 4, 2019 to meet with his client. At the checkpoint, he passed through a metal detector and turned in his cell phone. However, on the way to the room reserved for meeting with the principal, the junior inspector stopped the lawyer. It seemed to the employee of the Federal Penitentiary Service that there was a telephone in the pocket of Idiyatdinov's trousers, so he offered to inspect the items that were with him. At the same time, the inspector refused to draw up an examination protocol.

Idiyatdinov, believing that his rights had been violated, turned to the prosecutor's office. In addition, the lawyer appealed against the actions of the SIZO administration in court: he demanded that the search without drawing up a protocol be declared unlawful and and the administration be obliged to keep the records from the surveillance cameras on the territory of the institution and the chest DVR of the officer who conducted the search.

However, the prosecutor came to the conclusion that the administration of the pre-trial detention center acted within the law. And soon the Bugulma City Court refused to satisfy the administrative claim - later higher authorities, including the Supreme Court of the Russian Federation, agreed with this decision. The courts referred to paragraph 6 of Art. 34 of the Federal Law "On the Detention of Suspected and Accused of Crimes" and to the order of the Ministry of Justice of the Russian Federation, which approved the procedure for conducting searches in correctional institutions, which prescribes that an inspection report be drawn up only in the event of the seizure of prohibited items.

Then the lawyer filed a complaint with the Constitutional Court of the Russian Federation. According to Idiyatdinov, the cassation instance did not take into account his reference to the Ruling of the Constitutional Court dated March 6, 2008 No. the administration of the institution of a reasoned decision on a personal search and without a written fixation of these actions is not allowed. The lawyer argued that the challenged norm, in terms of the meaning given to it by the by-law normative act and judicial practice, contradicts Art. 55 of the Constitution of the Russian Federation.

In addition, according to Idiyatdinov, the inequality established by law between defenders - the accused and investigators, who are not searched at all, is groundless. Indeed, in the second sentence, paragraph 6 of Art. 34 of the Federal Law stipulates that things and clothes of persons in charge of criminal cases are not subject to inspection.
The essence of the decision
The Constitutional Court refused to consider the issue of the fundamental impossibility of examining a lawyer, since Idiyatdinov had not brought it before the court before and did not mention it in the complaint, and the verification of constitutionality "in the order of abstract normative control" was unacceptable.

In addition, the admissibility of a search of a lawyer on the territory of institutions where convicts are serving their sentences was previously stated by the Constitutional Court in Ruling No. 428-OP dated March 6, 2008. The same position can be extended to searches in places of detention, the Constitutional Court considered at this meeting.

The Constitutional Court recognized that paragraph 6 of Art. 34 of the Law on detention does not contradict the Constitution of the Russian Federation. In its decision, the court noted that the state is obliged to create appropriate conditions for persons providing legal assistance for the effective implementation of activities without prejudice to their dignity, honor and business reputation. And the UN Basic Principles on the Role of Lawyers also states that lawyers must be able to perform their professional duties without threats, hindrance, intimidation or undue interference.

"Lawyers should not be afraid of any sanctions or be subjected to pressure when they act in accordance with professional standards," the decision of the Constitutional Court notes.

The UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) require that convicted or remanded persons be provided with adequate facilities to meet with a lawyer, the COP points out. Although these rules make the admission of visitors to the prison facility dependent on consent to searches, they prohibit humiliating search procedures, and also prescribe that the prison administration must keep records of the activities carried out, indicating their reasons, perpetrators and results.

The federal law "On Advocacy and the Bar" also provides for the right of a lawyer to freely meet with his client in private during his detention without limiting the number of visits and their duration. However, the Constitutional Court has repeatedly noted that this law does not establish the immunity of a lawyer, and therefore does not provide for visiting a pre-trial detention center without complying with the established regime requirements.

According to the regulation on the Federal Penitentiary Service, measures to ensure regime requirements include control at the entrance and exit from the territories of places of detention, including for the purpose of detecting and seizing - in particular from lawyers - items, substances and products that are prohibited for storage by those under investigation.

"Thus, the security requirements are aimed at protecting the general (public) interest, they are a condition for maintaining law and order and the safety of suspects and defendants, staff, officials and citizens, including lawyers, located on the territory of the pre-trial detention center. As such, by their nature, these measures, including those applied to persons in connection with the performance of their professional duties, do not have the character of sanctions," the Constitutional Court clarified.

For example, the Constitutional Court has already noted in previous decisions that the search by a bailiff of a lawyer entering the court building and his belongings, if there are grounds to believe that he has objects that pose a threat to the safety of others, cannot be considered as a disproportionate restriction of rights.

This time, the Constitutional Court separately emphasized that, when heading to the territory of the pre-trial detention center, the lawyer is also obliged to present to the employees of the institution for inspection the object "with signs of a forbidden to carry" in his belongings or clothes, to which the technical means reacted or which was visually noticed.

At the same time, if this happens directly at the checkpoint and does not meet with objections from the lawyer - after all, he can simply refuse to search and leave, then it does not go beyond the usual control, which means that written fixation is needed only if a prohibited item is found.

The Constitutional Court believes that the examination of things and clothes of a lawyer in connection with suspicion of trying to bring in prohibited items has a different legal nature: such an examination can be carried out both at the checkpoint and in other premises of the pre-trial detention center.

Moreover, in this case, the lawyer cannot refuse to undergo an inspection and leave the pre-trial detention center. For the transfer or attempted transfer of prohibited items to persons held in institutions of the penitentiary system or temporary detention centers, administrative liability is provided. "Giving a person suspected of trying to bring in such an object the opportunity to leave the pre-trial detention center without hindrance and without consequences would create a risk of abuse and impunity," the Constitutional Court emphasized in its decision.

In this case, the course and results of the inspection should be recorded at the request of the lawyer, the Constitutional Court believes. "The possibility of such a requirement allows the lawyer, in particular, to respond to situations in which the search can, in his opinion, be transformed from the search of things and clothes into a personal search, regardless of the existence of legal grounds for this," the Court's decision says.

An alternative to written documentation may be to store a video recording of the search of things and clothes - at least for the period for a judicial appeal against the legality of such searches - and provide a copy of it to a lawyer, clarifies the Constitutional Court.

At the same time, the Constitutional Court considered that the case of Idiyatdinov, despite the absence of documentary fixation of his search, is not subject to revision, since no prohibited items were found on him, which means that "the procedure did not entail such negative legal consequences for him."
Why has this decision been important?
Some experts considered the decision of the Constitutional Court not strict enough, since the controversial norm provides too much leeway for the inspecting of lawyers in institutions of the penitentiary system, and therefore for abuse. So, according to the wording of Art. 34 of the Law on Detention, clothing and things are subject to inspection - that is, in fact, the SIZO employee has the right to check every document that is with the defense counsel, Sergey Shuldeev, lawyer at "Q&A" believes. In his opinion, in fact, this is a violation of attorney-client privilege.

A similar point of view was voiced by Sergey Malyukin, partner of the ZKS Law Office. "The main purpose of such an inspection is often not to seize prohibited items, but to gain access to documents from a lawyer's file, which lawyers take with them on a meeting with clients. These documents may contain confidential data important for protection," "Vedomosti" writes, citing Malyukin's words.

At the same time, there are no specific grounds in the law under which a lawyer can be subjected to a second inspection, adds Andrey Grivtsov, lawyer of the ZKS Law Office. "FSIN employees can use this gap as a means of pressure on a lawyer, since the "sufficient grounds to believe" specified in the law can be interpreted as they like," PRAVO.RU quotes him as saying.

Alexander Brester, adviser to the "Khoroshev and Partners" Law Office, believes that the Idiyatdinov case is "not the most egregious" in the area of respect for the rights of lawyers in secure institutions. However, it was in this case that the Constitutional Court of the Russian Federation considered the complaint and made a decision, which the lawyer generally assesses positively. Brester believes that the very fact that the Constitutional Court noted the need to store and provide lawyers with video recordings of searches is a step towards the legal community.

"Thank you very much to the Constitutional Court for this part, because here, at least with a video recording, we have resolved the issue. Because usually - even if we understood that the video was being filmed - it was very difficult to claim it on our own at the request of a lawyer. Either - if the video was "unsightly" - it broke, disappeared, disappeared, was not saved, or it was not provided. We managed to claim something through the courts, but this something was fragmentary, incomprehensible - there was no beginning, there was no end. And it was very difficult for us to build work around such a video, which we sometimes managed to get," Brester explained.

Can enforcement proceedings be endless?
Decision: Judgment of the Constitutional Court No. 7-P of March 10, 2016

Applicant: M. Rostovtsev

Contested acts: Part 1 Art. 21, part 2 of Art. 22 and part 4 of Art. 46 of the Federal Law "On Enforcement Proceedings"

Result: the contested acts are contrary to the Constitution
Plot
Mikhail Rostovtsev filed a complaint with the Constitutional Court. Five properties belonging to him have repeatedly become the object of recovery. At the same time, the recoverer, OAO "Sberbank" of Russia, withdrew the writ of execution several times, and then reiterated his claims.

The bailiff each time issued a decision on the completion of the enforcement proceedings and on the withdrawal of the seized property from sale. This story has been repeated many times. Mikhail Rostovtsev of the next initiation of enforcement proceedings appealed to the court. He stated that the three-year period established by law for the presentation of a writ of execution had been missed, but the courts did not agree with him, and he appealed to the Constitutional Court.

The Applicant believed that the norms contested by him violated the balance of interests of the parties in the enforcement proceedings - they allowed an unlimited and unlimited right of the exactor to present and withdraw the enforcement document, and then reinitiate the proceedings. In fact, the beginning and end of enforcement proceedings depended on the unmotivated will of the creditor, and such proceedings themselves became unjustifiably endless.
The essence of the decision
The Constitutional Court recognized the contested norms as unconstitutional, agreeing with the position of the applicant. The law was reduced to the fact that the period for presenting the executive document can be interrupted and renewed, and the time that has elapsed before the interruption of the period was not counted in the new period.

Such regulation made the debtor indefinitely under the threat of enforcement measures against him - and this violated his rights: the indefinite withdrawal of his property from the sphere of civil circulation, the restriction of his property rights and the obstacles to effective judicial protection.

The Constitutional Court instructed the legislators to make appropriate changes to the norms of the Federal Law, and before that, to deduct the term of the existing enforcement proceedings in the newly opened procedure.
What happened next
In 2017, the legislators introduced Art. 22 of the Federal Law "On Enforcement Proceedings", part 3.1, which regulates the rules for deducting terms if the recoverer has withdrawn the enforcement document. It would seem that the problem should have been resolved, but the issues of the relationship between debtors and creditors continue to be put on the agenda of judicial consideration.

So, in December 2021, the Supreme Court tried to determine whether it is an abuse of the right to repeatedly withdraw a writ of execution without explaining the reasons, because even apart from the issues of the term, such behavior of the claimant can limit the debtor.

"The Law on Enforcement Proceedings gives the recoverer the right to repeatedly present the enforcement document for execution after its return, as well as the right to repeatedly withdraw the enforcement document after the initiation of enforcement proceedings, without requiring the exactor to indicate the motives for his decision, on which the legal fate of the procedural action being performed does not depend ", - stated in the decision of the Supreme Court.

Long visits for life-sentenced prisoners
Decision: Judgment of the Constitutional Court No. 24-P of November 15, 2016

Applicants: N. Korolyov and V. Korolyova, as well as the Volgograd Regional Court

Contested acts: paragraph "b" of part 3 of Art. 125 and part 3 of Art. 127 of the Criminal Executive Code of the Russian Federation

Result: the contested acts do not comply with the Constitution
Plot
The applicants to the Constitutional Court were the spouses Nikolai and Veronika Korolyov. In May 2008, Nikolai Korolyov was sentenced to life imprisonment in a special regime colony for participating in a series of high-profile crimes of the SPAS club on ethnic grounds in the early 2000s. Including, he was convicted for the explosion at the Cherkizovsky market, which killed 14 people, 61 people were injured. Already in prison, Korolev got married.

He is serving his term in the Polar Owl colony in Yamal. The peculiarity of the detention of such convicts is that they live in cell-type premises, and they are allowed only two short visits a year. Those serving sentences not in strict conditions are allowed two long visits a year. Transfer Nikolai Korolev to normal conditions of detention could only happen after 10 years in prison. The couple wanted to have a child with the help of assisted reproductive technologies, but this procedure was only possible under the conditions of a long date.

In the complaint, the Korolyov family pointed out that the ban on long visits during the first ten years of serving a sentence violates their right to family life, and also "is a cruel, inhuman, degrading punishment of a prisoner, and cruel, inhuman, degrading treatment of a wife a prisoner."
The essence of the decision
The Constitutional Court sided with the applicants and found the contested norms inconsistent with Art. 15, 17, 23 and 55 of the Constitution "in conjunction with Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by the European Court of Human Rights". The Constitutional Court ruled that a life-sentenced person should be granted the right to at least one long visit per year, even if he has not yet served ten years of punishment.

The Constitutional Court noted that long visits should not be granted as an incentive at the discretion of the administration of the colony.
What happened next
Some time later, parliamentarians softened the norms of the penal legislation and made changes to the Penal Code of the Russian Federation, providing long visits to life-sentenced prisoners.

The decision of the Constitutional Court, which became the impetus for these changes, was extremely positively assessed by the then member of the Presidential Council for Human Rights and the head of the "Agora" Pavel Chikov. At the same time, the lawyer noted that the measures proposed by the Constitutional Court were not exhaustive - the Russian legislator still had a lot to strive for.

"This is a very good decision, like all the changes that have been made in recent years under pressure from the European Court of Human Rights (ECHR) [meaning the case of Khoroshenko v. Russia]," Chikov commented on the ruling of the Constitutional Court for "Gazeta.Ru". "Compared to the current situation, this is a serious step forward, a kind of systemic change. [In the European penitentiary system] visits are allowed much more often, because the approach of the penitentiary system is based on the support of any social ties, not necessarily even with close relatives, but in general with any free people, because for the convict this is a key factor in reintegration into society ".

Such an approach, according to Chikov, ideally should be a guideline.
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