Case under Part 1 of Art. 157 of the Criminal Code of the Russian Federation
Taras Pavlovich turned to me for legal assistance on the urgent recommendation of his friend, who is well aware of the results of my professional activities.
Taras Pavlovich was accused of committing a crime under Part 1 of Art. 157 of the Criminal Code of the Russian Federation - malicious evasion of payment by court decision of funds for the maintenance of a minor child.
The criminal case was at the stage of sending the case to court by the prosecutor. I did not have the opportunity to familiarize myself with the materials of the criminal case, since the investigator sent the case to the prosecutor.
All that remained was to wait for the trial. Having received a copy of the indictment and learned from Taras Pavlovich that he had chosen a special procedure for the trial, it became clear to me that at the stage of the preliminary investigation the investigator did not make a single significant mistake that could cast doubt on the charge brought against him.
Taras Pavlovich did not need a criminal record, since he got a job in law enforcement agencies as a civilian. At the same time, he had a real opportunity to be certified and receive a special title, which automatically increased the size of his salary.
Therefore, there was only one way out for him - this was to receive forgiveness from his ex-wife and reconcile with her.
And this event was quite difficult to carry out.
I managed to correctly instruct Taras Pavlovich before he negotiated with his ex-wife, to convince her that no one would benefit from his criminal record.
His ex-wife, after repeated negotiations, in which I had to join, agreed to reconcile during the court hearing.
Reconciliation with the victim is the basis for exemption from criminal liability.
Taras Pavlovich’s ex-wife did not want to appear in court. However, I warned her that, of course, she may not appear, but the likelihood of her being summoned to court is very high.
All necessary documents were prepared, including those providing the necessary guarantees for the payment of arrears of alimony.
Before the court hearing, I informed the magistrate that there were grounds to terminate the criminal case against Taras Pavlovich, and showed all the prepared documents. However, the magistrate stated that it was necessary for the ex-wife to appear at the court hearing.
Taras Pavlovich phoned her at lightning speed and ensured her appearance at the court hearing.
During the court hearing, the ex-wife supported her petition to dismiss the criminal case.
As a result, the magistrate ruled to terminate the criminal case against Taras Pavlovich.
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The Plenum of the Supreme Court approved judicial practice in cases of non-payment of alimony
Photo: Freepik.com The Plenum of the Supreme Court of the Russian Federation approved a resolution on judicial practice when considering cases of administrative offenses related to non-payment of alimony. Previously, the document was sent for revision by the editorial committee.
As LR previously reported, during the work on the project, the country's leading higher educational and scientific institutions presented their conclusions. In particular, the Institute of State and Law of the Russian Academy of Sciences, the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow State Law Academy, Higher School of Economics, St. Petersburg State University, Samara State Law Academy. The document was sent to the Commissioner for Human Rights in the Russian Federation Tatyana Moskalkova and the Children's Ombudsman Anna Kuznetsova, to the FSSP and the courts of general jurisdiction. It was also discussed in all boards of the Supreme Court and in the scientific advisory council of the Supreme Court.
The resolution consists of 16 points. Some of them are devoted to substantive and legal aspects, as well as the qualification of administrative offenses under Art. 5.35.1 Code of Administrative Offenses of the Russian Federation. This provision on liability for non-payment of funds for the maintenance of children or disabled parents appeared in 2021 in the Code of Administrative Offenses. According to the RF Armed Forces, more than 100 thousand such cases are considered by the courts every year.
One of the key provisions of the document is an explanation of what circumstances may be regarded by judges as a valid reason for non-payment of alimony (clause 5).
According to the wording, these are circumstances in which non-payment of funds for the maintenance of children or disabled parents occurred regardless of the will of the person obliged to pay alimony. For example, due to illness, due to the fault of other persons (in particular, due to non-payment of wages, delay or incorrect transfer of alimony amounts by the bank), as well as due to force majeure circumstances or due to conscription service.
At the same time, it is emphasized that the disagreement of the person obliged to pay alimony with the amount of amounts to be paid for the maintenance of children or disabled parents, established by a judicial act or agreement on the payment of alimony, cannot be considered as a valid reason for non-payment of alimony. In this case, the person has the right to resolve the issue of changing the amount of alimony in the manner prescribed by law (Articles 101, 102, 119 of the RF IC).
The mere fact of cohabitation of the person obligated to pay alimony with the recipient of alimony cannot be regarded as a basis for recognizing the reason for non-payment of alimony as valid.
Another important clarification is aimed at distinguishing between administrative offenses and crimes related to non-payment of alimony (Article 157 of the Criminal Code of the Russian Federation). The courts are pointed out that, within the meaning of Article 4.6 of the Code of Administrative Offenses of the Russian Federation, a person is considered subject to administrative punishment until the expiration of one year from the date of execution of the decision imposing an administrative penalty, according to which the execution was carried out in full; the expiration of the statute of limitations for execution of the decision to impose an administrative penalty; issuing, in cases provided for by the Code of Administrative Offenses of the Russian Federation, a resolution to terminate the execution of a decision to impose an administrative penalty.
It also clarifies that a person obligated to pay alimony is subject to administrative liability even if it is established that he deliberately underpaid funds for the maintenance of children or disabled parents, that is, paid alimony in an amount less than that provided for by a judicial act or agreement , since this circumstance is a violation of them.
Some of the points concern procedural issues. Thus, the resolution contains an explanation that is relevant for judicial practice regarding the jurisdiction of the case in the event of an administrative offense being committed by a person living abroad or without a specific place of residence. In this case, the case is subject to consideration at the place where the administrative offense was detected, as indicated in the document.
In addition, the draft clarifies who should be considered a victim in this category of cases: this is the person for whose maintenance alimony is payable in accordance with a judicial act or agreement. It is also emphasized that in order to objectively clarify the circumstances of each case, the judge may recognize the mandatory appearance of the victim or his legal representative.
The Constitution is wiser than us
On January 15, in the Address of the President of the Russian Federation to the Federal Assembly, proposals were made to amend the Constitution of the Russian Federation, and already 5 days later the corresponding, very large-scale for constitutional amendments, bill No. 885214-7 was submitted to the State Duma, and on January 23 it was unanimously adopted in the first reading.
The proposed amendments are wide-ranging and involve changing 22 articles of the Basic Law. However, the haste in promoting the proposals does not allow, in my opinion, to fully and comprehensively evaluate them: sufficient time is needed to understand the obvious and potential essence of the amendments, compare the opinions of professionals and calmly think about everything. There is no such time. Therefore, while “catching up” with the rapidly advancing initiative, we can evaluate only some of its aspects.
Stability of the Constitution
Structure of the Decree
The draft includes 16 points, each of which contains clarifications that help ensure stable law enforcement practice.
The speaker noted that the logic of the presentation of the material is based on a consistent analysis of the elements of an administrative offense.
The first two paragraphs of the project formulate fundamental approaches for the correct resolution of this category of cases. Thus, paragraph 2 states: “By violating a judicial act or agreement on the payment of alimony, one should understand failure to pay alimony in the amount, on time and in the manner established by this decision or agreement.”
Chapter 9. Constitutional amendments and revision of the Constitution
Article 134
Proposals for amendments and revisions to the provisions of the Constitution of the Russian Federation can be made by the President of the Russian Federation, the Federation Council, the State Duma, the Government of the Russian Federation, legislative (representative) bodies of the constituent entities of the Russian Federation, as well as a group of at least one-fifth of the members of the Federation Council or deputies of the State Duma.
Article 135
1. The provisions of Chapters 1, 2 and 9 of the Constitution of the Russian Federation cannot be revised by the Federal Assembly.
2. If the proposal to revise the provisions of Chapters 1, 2 and 9 of the Constitution of the Russian Federation is supported by three-fifths of the total number of members of the Federation Council and deputies of the State Duma, then a Constitutional Assembly is convened in accordance with the federal constitutional law.
3. The Constitutional Assembly either confirms the immutability of the Constitution of the Russian Federation, or develops a draft of a new Constitution of the Russian Federation, which is adopted by the Constitutional Assembly by two-thirds of the votes of the total number of its members or submitted to a popular vote. When holding a popular vote, the Constitution of the Russian Federation is considered adopted if more than half of the voters who took part in the voting voted for it, provided that more than half of the voters took part in it.
Article 136
Amendments to Chapters 3 - 8 of the Constitution of the Russian Federation are adopted in the manner prescribed for the adoption of a federal constitutional law, and come into force after their approval by the legislative authorities of at least two thirds of the constituent entities of the Russian Federation.
Article 137
1. Amendments to Article 65 of the Constitution of the Russian Federation, which determines the composition of the Russian Federation, are made on the basis of the federal constitutional law on the admission to the Russian Federation and the formation within it of a new subject of the Russian Federation, on changing the constitutional and legal status of the subject of the Russian Federation.
2. In the event of a change in the name of a republic, territory, region, federal city, autonomous region, autonomous district, the new name of the subject of the Russian Federation is subject to inclusion in Article 65 of the Constitution of the Russian Federation.
Reasons for non-payment of alimony
The resolution also contains reasons for non-payment of alimony, which the court may regard as valid. According to paragraph 5, valid reasons for non-payment of alimony can be recognized as such circumstances in which the non-payment of funds for the maintenance of children or disabled parents occurred regardless of the will of the person obliged to pay alimony (for example, due to his illness (disability); due to the fault of other persons , in particular in connection with non-payment of wages by the employer, delay or incorrect transfer of alimony amounts by the bank; due to force majeure circumstances; due to the person’s military service being conscripted).
In this case, the disagreement of the person obligated to pay alimony with the amount of amounts to be paid for the maintenance of children or disabled parents will not be considered as a valid reason.
The courts, Nikiforov points out, are guided by the fact that the reasons for non-payment of alimony in all cases are subject to assessment.
