Problems in defining and interpreting the elements of theft, as revealed by citizen appeals to the Constitutional Court of the Russian Federation (2019–2023)

Socio-economic transformations inevitably influence criminal law, particularly the legal conception of "property" in theft offenses. This evolution affects the legal object of the crime, the moment of its completion, and the very generic definition of theft. Consequently, law enforcement officials and legal scholars have adopted diverging interpretations of the elements of theft, leading to infringements of constitutional rights and prompting citizen appeals to the Constitutional Court of the Russian Federation (CC RF). This study, therefore, examines which specific elements of theft, in the view of citizens and the Constitutional Court, currently contravene the Constitution. To identify persistent issues in the application of theft statutes and propose solutions, this analysis reviews 7 CC RF rulings, 16 scholarly works, and relevant ordinary court practice from a five-year period (2019-2023). This timeframe saw the highest number of citizen appeals challenging the constitutionality of norms on the misappropriation of another's property, predominantly concerning fraud, theft, and Note 1 to Article 158 of the Criminal Code. Some appeals addressed previously uncontested interpretive issues, such as the subjective content of deception. The solutions proposed by the CC RF and the legislator-namely, defining the subjective aspect of fraud by codifying a case-specific resolution in Note 5 to Article 158 (the generic definition of theft)-prove insufficiently convincing. The most significant criticisms target the legislative formulation and judicial application of offenses under Part 3 (g) of Article 158 compared to Article 159.3. Neither the legal positions of the CC RF and the Supreme Court nor the repeatedly amended text of Article 159.3 have resolved the delineation between these offenses. The substantial disparity in their perceived public danger (and corresponding sanctions) lacks compelling justification, thereby undermining the principles of legal certainty and equality before the law. Furthermore, the classification of a "lost-and-found" item (nakhodka) as an object of theft under certain conditions requires additional legal substantiation. CC RF decisions reveal a concerning trend embedded in Article 158 (regarding qualifying elements): shifting the burden of protecting property from the owner or lawful possessor onto the state via criminal law. This contradicts the civil law principle (Article 210 of the Civil Code, etc.) that "the owner bears the burden of maintaining his property, unless otherwise provided by law or contract." A more appropriate initial step might be to introduce administrative liability for the appropriation of found or accidentally acquired property, reflecting a historical precedent in Russian law where such acts carried lesser criminal sanctions than full-fledged theft. In summary, citizen appeals and Constitutional Court rulings over this relatively brief five-year period have exposed both long-standing and contemporary deficiencies in defining and interpreting the elements of theft and its specific forms, underscoring the pressing need for legislative and interpretive reform. The author declares no conflicts of interests.

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