Commentary to Art. 17.15 Code of Administrative Offenses
Chapter VII of the Federal Law of July 21, 1997 N 119-FZ “On Enforcement Proceedings” is devoted to the execution of enforcement documents in non-property disputes.
After the initiation of enforcement proceedings under a writ of execution obliging the debtor to perform certain actions or refrain from performing them, the bailiff sets the debtor a period for their voluntary execution.
Remember that the executive document on the reinstatement of an illegally dismissed or transferred employee is executed immediately. Fulfillment is considered completed from the moment the said employee is actually allowed to perform his previous duties, following the issuance of an order from the administration to cancel his illegal dismissal or transfer order.
In case of failure to comply with these requirements without valid reasons, the bailiff applies penalties and other measures to the debtor as provided for in Article 85 of Federal Law No. 119-FZ, and sets a new deadline for the execution of the enforcement document. In accordance with Article 85, in case of non-execution without good reason of a writ of execution obliging the debtor to perform certain actions or refrain from performing them, within the period established by the bailiff, he shall issue a resolution imposing a fine on the debtor in the amount of up to 200 times the minimum wage. and assigns him a new deadline for execution.
In case of subsequent violations by the debtor without good reason of the new deadlines for the execution of the writ of execution, the amount of the fine is doubled each time. In case of repeated failure to execute the writ of execution without good reason, the bailiff submits to the relevant authorities a proposal to bring to administrative or criminal liability a citizen or official who, by virtue of their official duties, must execute the writ of execution. The bailiff's decision to impose a fine is approved by the senior bailiff. It can be appealed to the appropriate court within 10 days.
If the participation of the debtor is not necessary for the execution of the enforcement document, the bailiff organizes the execution in accordance with the rights granted to him by law, with the collection from the debtor of three times the cost of carrying out enforcement actions.
If it is impossible to execute the writ of execution, the bailiff issues a resolution to return the writ of execution to the court or other body that issued it, which is approved by the senior bailiff.
The decision can be appealed to the appropriate court within 10 days.
In case of failure to execute the writ of execution on the eviction of the debtor within the period established by the bailiff, the eviction is carried out by the bailiff forcibly. He officially notifies the debtor of the day and time of forced eviction. Remember that the absence of a debtor is not an obstacle to the execution of a writ of execution.
Eviction consists of releasing the premises specified in the writ of execution from the evicted person(s), his/her property, pets and prohibiting the evicted person(s) from using the vacated premises.
Eviction is carried out in the presence of witnesses, and, if necessary, with the assistance of internal affairs bodies with a mandatory inventory of property made by a bailiff.
The bailiff, if necessary, ensures the storage of the debtor’s property with the assignment of expenses incurred to it. Storage is carried out for a period not exceeding three years, after which the specified property is sold in the manner established for the sale of ownerless property. Funds received from sales are sent to the federal budget.
In case of failure to comply with the order to move in the claimant within the period established by the bailiff for voluntary execution, the move in is carried out directly by the bailiff himself. Move-in consists of ensuring by the bailiff the unimpeded entry of the claimant into the premises specified in the writ of execution and his residence (stay) in it. At the same time, it is explained to the debtor that forced occupancy is being carried out and he is obliged not to interfere with the claimant’s residence (stay). If the debtor interferes with the execution of the document on the claimant's move-in, enforcement actions are carried out with the participation of attesting witnesses, and, if necessary, internal affairs bodies. If there is further obstruction of the claimant’s residence (stay), the specified actions are carried out again and penalties and other measures are applied.
The execution of the writ of execution on the settlement of the claimant is formalized by the bailiff with the relevant act. The writ of execution is considered executed if the claimant is provided with the opportunity for daily unhindered use of the relevant premises.
Enforcement proceedings under the executed document may be resumed if, after drawing up the act of moving in the claimant, the debtor again interferes with the residence (stay) of the claimant. If the residence (stay) of the claimant is prevented by a person who, according to the executive document, is not the debtor, the enforcement proceedings cannot be resumed. The issue of moving in in this case is resolved in court.
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In accordance with the Federal Law of October 2, 2007 N 225-FZ, from February 1, 2008, Chapter 17 was supplemented with Articles 17.14 and 17.15.
Criminal liability for failure to comply with court decisions
First of all, it is provided for in Art. 315 of the Criminal Code of the Russian Federation and applies to special subjects - individuals. Municipal and state employees, officials, as well as managers of commercial enterprises may find themselves in the dock for such a crime. The object of the criminal act, in this case, is legal relations of both a property and non-property nature.
For example, the court made a decision and collected debt from a commercial company in favor of resource supply organizations and other creditors. Subsequently, the arbitration court issued writs of execution, which were sent by the claimants to the district OSB. However, the bailiffs were never able to collect the debt. The director of the company only partially paid off the debts, and then began to evade payments. The manager registered interdependent organizations and began to withdraw money from the debtor’s current account using fictitious agency agreements and loan agreements. More precisely, he took measures to ensure that the funds did not flow into his account at all, remaining with agents and interdependent legal entities. Bailiffs repeatedly warned the “resourceful” director about criminal liability for failure to comply with court decisions. However, he didn't pay attention to it. In the end, investigators at the regional FSSP opened a criminal case against the head of the debtor under Article 315 of the Criminal Code of the Russian Federation. The court found him guilty of committing a crime and fined him 120,000 rubles. (Sentence of the Emelyanovsky District Court of the Krasnoyarsk Territory in case No. 1-59/2017 dated November 23, 2017).
Thus, in order to be held accountable under this article, a combination of the following conditions is necessary: a special subject, written warnings to bailiffs about criminal liability, an individual’s opposition to the execution of a court decision and the impossibility of executing the decision by the bailiffs themselves. And here a very interesting dilemma arises - is it possible to hold a person accountable under this article if the bailiff for some reason did not fully use his powers? And you know, it turns out it’s possible.
Thus, the director of one of the Samara companies was convicted of failure to comply with court decisions. Being a developer, his company was late and did not put the house into operation on time. Shareholders filed lawsuits in the courts and won the cases. After the judicial acts entered into force, they received writs of execution and sent them to the OSB. The bailiff, in turn, sent a request to the debtor to provide financial and economic information about the company.
However, the manager did not fulfill it within the period established by law. Then the OSP warned the director about criminal liability, and then the investigator opened a case. In the end, the citizen was convicted and fined 35,000 rubles. It seems like a standard situation.
However, something else is interesting here. In pronouncing his sentence, the judge casually indicated that the defendant, at his own discretion, disposed of the funds coming into the account of his company: he paid off with suppliers, contractors, transferred membership fees and paid the bank for servicing the account. This fact was confirmed by account statements requested by a bailiff from a credit institution. But then the question arises, what did the bailiff himself do?
After all, the accused did not create interdependent persons or enter into fictitious contracts. The company continued to operate as it always had. And the OSP was simply obliged to request the Pension Fund of the Russian Federation, the Federal Tax Service, the Main Directorate of the Central Bank for the Samara Region, as well as other authorities about the availability of property and accounts with the debtor. And having collected all the information, the bailiff had to send the sheets to the credit institution where the company’s account is located. And the bank would simply write off this money. This is how it is always done. Nevertheless, the OSP chose to initiate a criminal case, which ended in a conviction. (Appeal verdict of the Samara District Court of Samara (number anonymized) dated March 24, 2016).
If courts and bailiffs act in this way, then millions of Russians will easily receive a criminal record under this article. After all, many companies do not pay debt voluntarily. It is collected by bailiffs according to writs of execution.
But we digress a little. When talking about criminal liability for ignoring or even opposing the execution of a court decision, as a rule, only Article 315 of the Criminal Code of the Russian Federation is remembered. However, the Code also knows another norm that threatens a citizen with punishment for such an offense - this is Article 177 of the Criminal Code of the Russian Federation. Responsibility under it occurs when the entity against whom a decision has been made to collect debt deliberately fails to comply with a judicial act.
For such a crime, a person faces a fine of up to 200 thousand rubles, compulsory or forced labor, arrest, or even imprisonment for up to 2 years.
For example, a resident of Khimki owed a legal entity almost more than 2.5 million rubles. The creditor went to court and collected the debt from the citizen. The decision entered into legal force and the OSB initiated enforcement proceedings. However, the person did not work anywhere and had no income at all. This is a common situation in principle. Then the bailiff handed the debtor a request that the latter contact the employment center, but the citizen ignored it. Then the investigator opened a criminal case and the court found the debtor guilty under Article 177 of the Criminal Code of the Russian Federation, fining him 20 thousand rubles. (Sentence of the Khimki City Court of the Moscow Region (case number anonymized) dated December 4, 2017).
By the way, in this case the situation is also ambiguous. It is not clear why the offender did not declare bankruptcy? After all, now arbitration courts calmly declare bankrupt people, even those with income. And here he is completely unemployed.
Administrative liability for non-execution of decisions
Most often, for failure to comply with court decisions, they are brought to administrative liability under Art. Articles 17.14 and 17.15 of the Code of Administrative Offenses of the Russian Federation. True, it is worth making a small reservation here. In their pure form, these rules are applied specifically for violations of executive legislation. And since many executive documents are issued on the basis of a judicial act, most lawyers believe that these articles are applied for its non-execution. However, this can be argued. Indeed, in some cases, the bailiff initiates proceedings on the basis of completely different documents: a notarial agreement on the payment of alimony, certificates of the labor dispute commission, acts of the Social Insurance Fund and the Pension Fund of the Russian Federation. Therefore, everything is not so simple here.
The subjects of these offenses are both individuals and legal entities, as well as officials of various ranks.
These articles provide for the imposition of a fine in the form of a fine on citizens, legal entities and officials. Its size varies depending on the subject, the severity of the offense and the repetition. For example, for ignoring the requirements of the bailiff, citizens can be fined from 1000 to 2500 rubles, officials - from 10,000 to 20,000 rubles, and a legal entity will be forced to transfer to the budget from 30,000 to 100,000 rubles.
But for the continuation of the issuance of links by the search engine operator to personal data (or other information) about individuals on the Internet after the expiration of the period established by the bailiff, the citizens responsible for this will be fined in the amount of 300 to 500 thousand rubles. For such an act, a legal entity is subject to a fine of up to 1,000,000 rubles.
However, such cases are extremely rare. Typically, subjects are prosecuted for lesser offenses. For example, the alimony debtor does not comply with the requirements of the bailiff and does not appear to him on the scheduled days with payment receipts. (Decision of the Pervomaisky District Court of Izhevsk, Udmurt Republic in case No. 12-710/2017 dated December 25, 2017). Or the city administration did not comply with the court order and did not provide the orphan with living quarters. (Decision of the Arbitration Court of the Khabarovsk Territory in case No. A73-18427/2017 dated January 16, 2018).
Responsibility of the bank for non-execution of the writ of execution
The banking system is one of the counterparties of bailiffs, since the funds of most citizens and legal entities are stored in banks, less often in other credit institutions. And money is the main subject of activity of bailiffs, since, with rare exceptions, debt obligations are calculated in monetary terms.
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Beloborodova Yulia
From 2004 to 2012 she worked as a bailiff. Specializes in the field of procedural, civil, financial, family and labor law.
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The law provides for the obligation of banks to immediately comply with bailiffs' orders to seize the debtor's accounts, if any, at the bank. The bank must also act in the event of direct, bypassing the bailiffs, delivery of the IL by the collector. Deadline – no later than the next day after receipt of the IL or court order.
This procedure was introduced to ensure that the debtor could not withdraw funds and thereby hide them from payment to repay the debt. However, not all banks comply with the law. In banks with state participation, interaction with bailiffs has been established. But industry banks may delay the deadlines. Contribute to the removal of funds from judicial sanctions. Federal Law 229 provides for a special measure - Art. 114, which applies only to credit institutions. This article provides for the procedure for imposing penalties on the bank. To do this, the bailiff who caught the bank in violation draws up a protocol on the administrative offense in accordance with Art. 28.2 Code of Administrative Offenses of the Russian Federation. The protocol is submitted to the arbitration court at the place of registration of the bank. Responsibility arises under Part 2 of Art. 17.14 of the Code of Administrative Offenses of the Russian Federation and provides for a fine of ½ the amount to be recovered, but not more than 1,000,000 rubles.
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Criminal liability
An article providing for liability for evasion/non-execution of a judicial act is included in the chapter “Crimes against justice”. Initiate a case under Art. 315 is possible only in relation to a limited circle of persons, namely, state or municipal employees, including those who work in government and budget organizations. Responsibility has also been established for employees of private companies, regardless of the direction of their activities.
Malicious failure to comply with a court decision, including obstruction, is what is punishable under this article. Various sanctions are applied, at the discretion of the court, from a fine to imprisonment. But the fines are also quite large, up to 200 thousand rubles.
Thus, liability for failure to comply with a court decision by an individual not related to children will be administrative. Banks and some organizations have their own special articles. It is more difficult for officials who, by definition, must comply with the laws of the state they serve. In their case, malicious evasion may even result in criminal liability ranging from a large fine to imprisonment.
Consequences of failure to comply with the legal requirements of a bailiff
In the minds of many Russians, faced with forced debt collection, there is an opinion that debt repayment can be avoided, and nothing will happen for it. Many do not understand the difference between FSSP employees - bailiffs and employees of commercial collection structures, who obsessively demand debt repayment and annoy citizens with telephone calls and obscene inscriptions on apartment doors. To be clear. The FSSP is a state law enforcement agency whose task is to enforce court decisions. Employees of the department's security unit provide security for court buildings and personal security for judges. The activities of bailiffs are based on the laws:
- Federal Law-118 “On Bailiffs”;
- Federal Law-229 “On Enforcement Proceedings”;
What is failure to comply with a court order?
A court decision is a ruling of a court of any instance, which can be legally appealed within a time specified by the legislator.
If there is no appeal and the decision has formally entered into force, all its objects must comply with the court’s demands in full and before the expiration of the period specified in the decision.
Refusal to execute a court decision may be:
- Passive. The citizen simply ignores the obligations he has in relation to the state or a third party (for example, does not pay a fine or refuses to transfer alimony);
- Active. A private individual takes actions aimed at preventing the administration of justice (for example, the head of the human resources department does not allow employees to issue an order to compensate the employee for expenses incurred).
In accordance with Articles 210 and 211 of the mentioned document, the court decision is subject to unconditional execution:
- upon expiration of the period allotted for appeals and preparation for implementation;
- immediately, if we are talking about the collection of alimony, payments to an employee, reinstatement in a previous position, or the participation of a citizen - the object of the resolution in a referendum or elections, as a voter.
Responsibility, administrative or criminal, for failure to comply with a court order is provided for in Article 113 of the Federal Law, adopted on October 2, 2007 with the latest amendments from April 2021, “On Enforcement Proceedings” No. 229-FZ.
In addition, in relation to a person who neglects his obligations, a system of compulsory execution may be activated, on the basis of articles of the same law.
The procedure for bringing a debtor to administrative liability
Situations often arise when a court decision is made in favor of the claimant, the writ of execution for the recovery of the amount is with the bailiff, but the debtor does not comply with the court decision. Is it possible to bring to administrative liability a debtor who does not comply with a court decision? Where should I go to bring a debtor to administrative liability? What does a debtor face for failure to comply with a court decision?
In what cases can a debtor be held administratively liable?
Paragraph 1 of Article 125 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Bailiffs” establishes that for failure to execute a writ of execution, the debtor may be brought to administrative or criminal liability. Article 669 of the Code of the Republic of Kazakhstan on Administrative Offenses provides that failure to comply with a court verdict, court decision or other judicial act and executive document entails administrative liability.
To bring a debtor to administrative liability, the following conditions must be met:
- there is a court decision that has entered into legal force;
- the bailiff is processing a writ of execution to collect the amount from the debtor;
- the debtor does not take any action to execute the court decision.
The main condition for bringing a debtor to administrative responsibility is his failure to comply with a judicial act.
In the event that the debtor makes payments for the execution of a judicial act or executive document partially, even in a small amount, the debtor is not considered to be in default of the court decision, therefore, such a debtor cannot be held administratively liable for failure to execute a judicial act.
An exception will be the debtor’s deliberate failure to comply with a judicial act. For example, the debtor has sufficient income, but makes payments in an amount disproportionate to the income. In this case, it is necessary to have evidence of the debtor’s deliberate evasion of non-execution of the court decision.
Thus, it is possible to bring a debtor to administrative responsibility only if he does not take any measures to execute a judicial act, writ of execution, or if there is evidence of deliberate evasion of the execution of a judicial act.
Where to go to bring a debtor to administrative responsibility?
The proceedings are with the state bailiff
According to subparagraph 56) of part 1 of Article 804 of the Code of Administrative Offenses in cases of administrative offenses considered by the courts, authorized officials - state bailiffs - have the right to draw up protocols on administrative offenses. Subparagraph 2) of paragraph 1 of Article 126 of the Law “On Enforcement Proceedings and the Status of Bailiffs” provides that the state bailiff, in the manner prescribed by law, has the right to draw up protocols on administrative offenses.
Consequently, in order for the state bailiff to draw up a protocol on an administrative offense against the debtor, the claimant must contact the bailiff in charge of the enforcement proceedings with an application to draw up a protocol against the debtor on the basis provided for in Article 669 of the Code of Administrative Offences.
The proceedings are carried out by a private bailiff
A private bailiff is not vested with such powers. In the event that enforcement proceedings are carried out by a private bailiff, the bailiff himself or the claimant has the right to apply to the prosecutor's office with an application to issue a resolution to initiate an administrative case in accordance with Part 2 of Article 805 of the Code of Administrative Offences. After the prosecutor issues a decision to initiate an administrative case, it is sent for consideration to a specialized administrative court.
Consideration of a case on bringing a debtor to administrative liability
In accordance with Part 1 of Article 684 of the Code of Administrative Offences, judges of specialized district and equivalent administrative courts hear cases of administrative offenses provided for in Article 669 of the Code of Administrative Offences.
According to Article 808 of the Code, a protocol on an administrative offense provided for in Article 669 of the Code is sent to the judge immediately after its preparation, since in this case it is possible to apply administrative arrest.
The case of an administrative offense for failure to comply with a court decision is considered on the day the protocol on the administrative offense and other materials of the case are received, since administrative arrest is provided for the commission of such an offense.
Having considered a case of an administrative offense, in accordance with Part 1 of Article 821 of the Code of Administrative Offenses, the judge makes one of the following decisions:
- on the imposition of an administrative penalty;
- on termination of proceedings;
- on transferring the case for consideration to a judge, body (official) authorized to impose a penalty of a different type or amount for this administrative offense.
According to Part 1 of Article 823 of the said Code, a resolution in a case of an administrative offense is announced immediately upon completion of the consideration of the case.
What does a debtor face if he fails to comply with a court decision?
Article 669 of the Code of Administrative Offenses provides that for failure to comply with a court sentence, court decision or other judicial act and executive document, the debtor faces:
- for an individual - a fine in the amount of 10 monthly calculation indices (MCI) or administrative arrest for up to 5 days;
- an official, a private notary, a private bailiff, a lawyer - a fine in the amount of 20 MCI or administrative arrest for up to 5 days;
- for a small business entity – a fine in the amount of 30 MCI;
- for a medium-sized enterprise – a fine in the amount of 40 MCI;
- for a large business entity – a fine of 50 MCI.
What can a court fine be imposed in an arbitration court?
A judicial fine is a measure of legal liability, which is a sanction that is applied by an arbitration court on the grounds and in the manner established by the Arbitration Procedure Code of the Russian Federation in relation to persons who do not fulfill the duties assigned to them by law and (or) the legal requirements of the arbitration court.
As explained in the Determination of the Constitutional Court of the Russian Federation dated September 25, 2014 No. 2093-O, the arbitration court, when considering the issue of imposing a judicial fine for failure to comply with a judicial act, must determine whether there are grounds for applying public law measures to the debtor aimed at coercing him to the proper performance of the duties assigned to him by a judicial act.
A judicial fine can be imposed both on citizens and officials, and on organizations.
However, Article 256.11 of the Arbitration Procedure Code of the Russian Federation provides for privileges and immunities for foreign states in the course of judicial proceedings. In particular, when an arbitration court considers a case involving a foreign state, a court fine cannot be imposed on that foreign state.
Judicial fines imposed by an arbitration court on officials of state bodies, local governments and other bodies and organizations are collected from their personal funds.
Court fines are collected into the federal budget.
The size of court fines varies depending on the status of the person on whom it is imposed.
The Arbitration Procedure Code of the Russian Federation establishes a general rule according to which the amount of a court fine cannot exceed:
- for citizens - two thousand five hundred rubles,
- for officials - five thousand rubles,
— for the organization - one hundred thousand rubles.
However, there are exceptions to this rule:
- the amount of the judicial fine imposed by the arbitration court in the case provided for in Part 4 of Article 225.4 of the Arbitration Procedure Code of the Russian Federation is five thousand rubles.
- the amount of a judicial fine imposed by an arbitration court in the case provided for in Part 10 of Article 225.6 of the Arbitration Procedure Code of the Russian Federation, on citizens, is two thousand five hundred rubles, on persons performing the functions of a sole executive body or heading a collegial executive body of a legal entity - five thousand rubles.
- the amount of a judicial fine imposed by an arbitration court in the case provided for in parts 2 and 3 of Article 225.12 of the Arbitration Procedure Code of the Russian Federation, on citizens, is two thousand five hundred rubles, on persons performing the functions of a sole executive body or heading a collegial executive body of a legal entity - five thousand rubles , for organizations - ten thousand rubles.
The grounds for imposing a court fine are:
— failure to comply with the requirements of the arbitration court to submit an expert’s opinion to the arbitration court within the prescribed period (Part 6 of Article 55 of the Arbitration Procedure Code of the Russian Federation);
— failure to fulfill the obligation to provide evidence required by the court for unjustifiable reasons (part 9 of Article 66 of the Arbitration Procedure Code of the Russian Federation);
— failure to notify the court of the impossibility of presenting evidence at all or within the prescribed period (Part 9 of Article 66 of the Arbitration Procedure Code of the Russian Federation);
— repeated failure to comply with the requirements of the arbitration court to provide evidence (part 10 of Article 66 of the Arbitration Procedure Code of the Russian Federation);
— failure to comply with a ruling on securing a claim by a person to whom the court has entrusted the obligation to carry out interim measures (Part 2 of Article 96 of the Arbitration Procedure Code of the Russian Federation);
— contempt of the arbitration court (part 5 of article 119 of the Arbitration Procedure Code of the Russian Federation);
— violation of order at a court hearing or disobedience to the lawful orders of the presiding officer (part 5 of article 154 of the Arbitration Procedure Code of the Russian Federation);
- failure to appear at a court hearing of a person participating in a case, whose appearance in accordance with the Arbitration Procedure Code of the Russian Federation is recognized as mandatory by an arbitration court (part 4 of Article 156, part 3 of Article 194, part 3 of Article 200, part 4 of Article 205, part 3 of Article 210, part 3 Article 215 of the Arbitration Procedure Code of the Russian Federation);
— failure to appear in court for unexcusable reasons at a court hearing of an expert, witness or interpreter (part 2 of Article 157 of the Arbitration Procedure Code of the Russian Federation);
- failure to submit or untimely submission of explanations, objections and (or) arguments within the prescribed period by a body, organization, official who did not execute the judicial act within a reasonable time (part 3 of article 222.8 of the Arbitration Procedure Code of the Russian Federation);
- failure by a person to fulfill the obligation to notify other participants of the initiation of proceedings in the case, the subject and the grounds of the claims submitted to the arbitration court and other circumstances of the dispute (Part 4 of Article 225.4 of the Arbitration Procedure Code of the Russian Federation);
— failure by the person who applied to the arbitration court to secure the claim to fulfill the obligation to notify the persons participating in the case about the time and place of consideration of the application to secure the claim (Part 10 of Article 225.6 of the Arbitration Procedure Code of the Russian Federation);
— abuse by a person who applied to the arbitration court in a case on the protection of the rights and legitimate interests of a group of persons, of his procedural rights (Part 3 of Article 225.12 of the Arbitration Procedure Code of the Russian Federation);
- loss by the guilty person of the writ of execution handed over to him for execution, which was issued by the arbitration court (Article 331 of the Arbitration Procedure Code of the Russian Federation);
— failure to comply with a judicial act of an arbitration court by government bodies, other organizations, officials and citizens (Part 1 of Article 332 of the Arbitration Procedure Code of the Russian Federation);
- failure to perform the actions specified in the writ of execution by the person entrusted with the commission of these actions (Part 2 of Article 332 of the Arbitration Procedure Code of the Russian Federation).
Separately, I would like to dwell on the basis for imposing a court fine as contempt of court.
The Arbitration Procedure Code of the Russian Federation gives the arbitration court the right to impose, at its discretion, a judicial fine on the persons participating in the case and other persons present in the courtroom for their disrespect for the arbitration court.
As explained in paragraph 19 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 13, 2017 No. 21 “On the use by courts of procedural coercive measures when considering administrative cases,” contempt of court is understood as the commission of actions (inaction) indicating a clear disregard for the rules of conduct established in court (for example , the use of indecent expressions in the text of a procedural document submitted to the court; repeated statements of the same petition not caused by a change in the circumstances of the case or other objective reasons, in respect of which a court ruling has already been made and announced).
At the same time, such actions (inaction), the responsibility for which is provided for by other norms of procedural legislation (for example, failure to provide evidence required by the court, failure of a duly notified person, whose appearance was recognized by the court as mandatory, to appear at a court hearing) should not be qualified as contempt of court. , as well as such actions (inaction) that entail criminal liability.
A court fine for contempt of court is imposed if the actions committed do not entail criminal liability.
Thus, in particular, the legislator established criminal liability for the following actions:
— contempt of court, expressed in insulting participants in the trial (Part 1 of Article 297 of the Criminal Code of the Russian Federation);
— contempt of court, expressed in insulting a judge or other person involved in the administration of justice (Part 2 of Article 297 of the Criminal Code of the Russian Federation).
As stated in the Determination of the Constitutional Court of the Russian Federation dated May 29, 2014 No. 1170-O, the power of the court to impose a judicial fine for contempt of court is not subject to arbitrary implementation and cannot be exercised in order to limit the procedural rights of persons participating in the case, and contributes to the implementation of such tasks of legal proceedings in arbitration courts, such as the formation of a respectful attitude towards the law and the court. If a person participating in the case, on whom a court fine has been imposed, considers the court’s ruling on the imposition of a court fine to be illegal and unfounded, he has the right to appeal it in the prescribed manner (Part 6 of Article 120 of the Arbitration Procedure Code of the Russian Federation). Thus, determining the degree of respect of a participant in the process towards the court is within the competence of the court and is established if there are legal grounds for this (this legal position is reflected in the Resolution of the Arbitration Court of the Far Eastern District dated 08.18.2017 in case No. A24-1918/2010, Resolution of the Administrative Court of the Moscow district dated February 16, 2017 in case No. A40-44820/2012).
In accordance with Article 2 of the Arbitration Procedure Code of the Russian Federation, the objectives of legal proceedings in arbitration courts are, among other things: the formation of a respectful attitude towards the law and the court; promoting the formation and development of partnership business relations, the formation of customs and ethics of business transactions.
According to the legal position set out in the rulings of the Constitutional Court of the Russian Federation dated March 22, 2012 No. 559-O-O, dated May 29, 2014 No. 1170-O, determining the degree of respect of a participant in the process towards the court is within the competence of the court and is established if there are legal grounds. The imposition of a judicial fine for contempt of court also contributes to the implementation of such a task of legal proceedings in arbitration courts as the formation of a respectful attitude towards the law and the court. At the same time, the authority granted to the arbitration court to assess the actions of these persons, entailing the imposition of a judicial fine for contempt of court, follows from the principle of judicial management of the process (Part 3 of Article 9 of the Arbitration Procedure Code of the Russian Federation).
For example, by a ruling of the Intellectual Rights Court dated September 13, 2017 in case No. A82-7654/2016, a court fine in the amount of 1,500 rubles was imposed on the representative of the defendant Sh.
The plaintiff in case No. A82-7654/2016 filed an application with the Intellectual Rights Court to impose a judicial fine on the defendant’s representative for contempt of the court, expressed in derogatory and disparaging language given in the appeal and cassation complaints.
The Intellectual Property Rights Court found that the cassation appeal contained disparaging and derogatory statements regarding the judges of the arbitration courts of the first and appellate instances, namely: “...on page 4 of the Decision there is simply a masterpiece of the court’s resourcefulness” (first paragraph of page 8); “The logic of the court... Nonsense!” (paragraph two of page 8); “The conclusions of the Arbitration Court of the Yaroslavl Region and 2 AAS, contained in the decision and resolution, are so ridiculous and illogical...” (paragraph seven of page 11); “... The courts shift what is not proven by the plaintiff onto what is not proven by the defendant... Kindergarten.” (first paragraph of page 12); “We read the resolution 2 of the AAS... Then the lies continue to grow” (paragraph five of page 12 - paragraph one of page 13); “The judges of the 2nd AAC no longer knew what to come up with, just to distort the Law of Russia” (first paragraph of page 14); “... And 2 AAS don’t care. 2 AAS has neither knowledge of the law nor arguments, except to refer to V.V. prohibited by Putin. changes in the APC of the letter to YOU..." (paragraph four of page 14); “In general, all the conclusions and arguments of 2 AAS are false, are not based on the circumstances of the Case, distort the meaning of the rules of law and contain inventions of the judges of 2 AAS” (first paragraph of page 15); “2 AAS in the end, in the resolution, descended to outright lies... There is nowhere further lies...” (paragraphs two - three of page 15); “And a masterpiece of ignorance of the Law of Russia and the complete lack of logic at the end of Resolution 2 of the AAS” (first paragraph of page 16).”
When analyzing this issue, the court was guided by the following provisions.
Contempt of court in written applications to the court can be expressed in the use of indecent, provocative expressions. Such actions of a person may be regarded as an abuse of the right to a trial (ruling of the European Court of Human Rights dated 04/06/2006 in the case of Chernitsyn v. the Russian Federation (complaint No. 5964/02).
The court found that “the representative of the applicant of the cassation appeal, Sh., presented the arguments of the cassation appeal, using formulations of a pejorative nature in relation to the courts of the first and appellate instances, without showing the dignity, politeness, and tolerance befitting a representative of a person participating in the case, thereby creating a potential conflict situation, capable of damaging the reputation of judges or the authority of the judiciary of the Russian Federation. The chosen representative Sh. is not just impolite or without due tolerance, but the derogatory and dismissive style of presenting arguments in the cassation appeal does not contribute to the formation of a respectful attitude towards the law and the court; does not allow the proper implementation of the tasks of legal proceedings in arbitration courts, in particular the promotion of the formation and development of partnership business relations, the formation of customs and ethics of business. This style of document preparation, in its essence, is aimed at belittling the honor and dignity of both the persons participating in the case, other participants in the process, and the judges administering justice.”
As explained in the ruling of the Constitutional Court of the Russian Federation dated 04.04.2017 No. 698-O, all participants in the process, including representatives of the parties, are obliged to show respect for the court as a judicial authority exercising justice on behalf of the state, and to respond appropriately to the comments of the presiding officer , thereby excluding situations that destabilize the process and create obstacles to the correct and timely resolution of the case.
Generally accepted standards of conduct for a legal representative in court suggest that the representative must comply with the norms of the relevant procedural legislation, show respect for the court and the persons participating in the case (paragraphs 2 and 6 of the International Code of Ethics for Lawyers (adopted in 1956); paragraphs 4.3 and 5.1.2 Charter of Fundamental Principles of European Lawyers (adopted on November 25, 2006 in Brussels) and the Code of Conduct for Lawyers in the European Community (adopted on October 28, 1988 by the Council of Bars and Law Communities of the European Union); Article 12 of the Code of Professional Ethics for Lawyers (adopted by the First All-Russian Congress of Lawyers January 31, 2003) etc.).
The court came to the conclusion that the representative of the defendant Sh. violated these standards in this case, which is the basis for imposing a court fine on this person.
Thus, in relation to the rules of conduct in litigation, the legislator has established generally binding norms, for violation of which liability is provided in the form of a judicial fine.
Author of the material: Zhurid Olga
