Sample statement of claim for rehabilitation
To the Kirovsky District Court of Samara
443035, Samara, Kirova Ave., 100
Plaintiff: FULL NAME1, DOB DATE1
represented by lawyer Antonov A.P.
, having registration No. 63/2099,
operating at AB “Antonov and Partners” at the address:
443080, Samara, Karl Marx Ave., 192, office. 619, tel. +7-987-928-31-80, email address
Defendants:
Ministry of Finance of the Russian Federation
109097, Moscow, st. Ilyinka, 9
8
represented by the Office of the Federal Treasury of the Russian Federation for the Samara Region
443110, Samara, st. Novo-Sadovaya, 24
8
Main Directorate of the Ministry of Internal Affairs of Russia for the Samara Region
443068, Samara, st. Sokolova, 34
8
By virtue of clause 10, part 1, article 333.36 of the Tax Code of the Russian Federation, the plaintiff is exempt from paying state duty
STATEMENT OF CLAIM
on the collection of amounts paid for the provision of legal assistance
and compensation for moral damage
in order to rehabilitate for illegal criminal prosecution
06/14/2020 By resolution of the senior investigator of the department for the investigation of crimes committed on the territory of the Kirov district of the Investigative Directorate of the Ministry of Internal Affairs of Russia for the city of Samara, Major of Justice FULL NAME2, criminal case No. NUMBER 1 was initiated against FULL NAME1 on the grounds of a crime under Part 2 of Article 228 of the Criminal Code of the Russian Federation under the fact of illegal possession of a narcotic drug in large quantities.
07/08/2020 By a resolution of the investigator of the department for the investigation of crimes committed on the territory of the Kirov district of the Investigative Directorate of the Ministry of Internal Affairs of Russia for the city of Samara, Major of Justice FULL NAME3 in relation to FULL NAME1, a preventive measure was chosen in the form of a recognizance not to leave and proper behavior.
07/08/2020 By a resolution of the investigator of the department for the investigation of crimes committed on the territory of the Kirov district of the Investigative Directorate of the Russian Ministry of Internal Affairs for the city of Samara, Major of Justice FULL NAME3 FULL NAME1 was brought as an accused in criminal case No. NUMBER 1 under Part 2 of Article 228 of the Criminal Code of the Russian Federation.
07/19/2021 By a resolution of the senior investigator of the department for the investigation of crimes committed on the territory of the Kirov district of the Investigative Directorate of the Ministry of Internal Affairs of Russia for the city of Samara, FULL NAME4, the criminal case against FULL NAME1 was terminated for lack of corpus delicti, that is, on the basis provided for in Part 2 of Article 24 of the Code of Criminal Procedure of the Russian Federation , FULL NAME1 the right to rehabilitation was explained in accordance with Article 134 of the Code of Criminal Procedure of the Russian Federation.
According to Art. 53 of the Constitution of the Russian Federation, everyone has the right to compensation by the state for damage caused by illegal actions (inaction) of public authorities or their officials.
The right to rehabilitation, including the right to compensation for harm associated with criminal prosecution, has, among other things, the accused whose criminal prosecution has been terminated on the grounds provided for in Part 2 of Article 24 of the Code of Criminal Procedure of the Russian Federation.
In accordance with paragraph 2 of paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2011 No. 17 “On the practice of application by courts of the norms of Chapter 18 of the Code of Criminal Procedure of the Russian Federation, regulating rehabilitation in criminal proceedings,” the right to rehabilitation is recognized for the person who is the inquirer, investigator, prosecutor , by a court that declared his criminal prosecution illegal or unfounded (decided to acquit him or terminate his criminal case in whole or in part) on the grounds listed in Part 2 of Article 133 of the Code of Criminal Procedure of the Russian Federation, about which in accordance with the requirements of Article 134 of the Code of Criminal Procedure RF they must indicate in the operative part of the sentence, determination, resolution.
In accordance with paragraph 1 of Article 1070 of the Civil Code of the Russian Federation, harm caused to a citizen as a result of an illegal conviction, illegal prosecution, illegal use of detention or a written undertaking not to leave as a preventive measure, illegal bringing to administrative responsibility in the form of administrative arrest, as well as damage caused to a legal entity as a result of illegal bringing to administrative responsibility in the form of administrative suspension of activities, is compensated at the expense of the treasury of the Russian Federation.
In accordance with Part 1, Clause 3, Part 2 of Art. 133 of the Code of Criminal Procedure of the Russian Federation, the right to rehabilitation includes the right to compensation for property damage, elimination of the consequences of moral damage and restoration of labor, pension, housing and other rights.
The representative of the plaintiff believes that FULL NAME1 has the right to the following payments:
Magistrate of the judicial district No. __ ____ judicial district of the Moscow region of the Russian Federation
Applicant: S., resident: ____, st. ____, house __, apt. __
application for compensation in accordance with Chapter 18 of the Code of Criminal Procedure of the Russian Federation (rehabilitation) for property damage
The magistrate of the judicial district No. __ ____ judicial district of the Moscow region of the Russian Federation “__” March 2009 passed a verdict according to which I, S., was found guilty of committing a crime under Part 1 of Article 119 of the Criminal Code of the Russian Federation; sentenced to one year of imprisonment (using Article 73 of the Criminal Code of the Russian Federation).
By the verdict of the _____ City Court of the Moscow Region dated "__" September 2009 in case No. ___, the verdict of the magistrate judge of the judicial district No. __ ____ judicial district was canceled, I, S., were acquitted of the charge of committing a crime under Part 1 of Art. 119 of the Criminal Code of the Russian Federation on the grounds provided for in paragraph 1 of Part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation - for the absence of corpus delicti in the actions. The verdict clarified that I have the right to compensation for damages associated with criminal prosecution.
The cassation ruling of the Judicial Collegium for Criminal Cases of the Moscow Regional Court dated “__” November 2009 left the verdict of _____ City Court of the Moscow Region dated “__” September 2009 unchanged.
As part of the investigation, a preventive measure was chosen - a written undertaking not to leave the place.
In connection with the initiation of a criminal case, I turned to a lawyer for legal assistance. The cost of the legal assistance provided to me was, according to the receipts for the cash receipt order, 26,000 rubles (according to the receipt dated “__” 02.2009 - 10,000 rubles; according to the receipt dated “__” 05.2009 - 5000 rubles; according to the receipt dated “__” 06.2009 - 5000 rubles; according to the receipt dated "__" 11.2009 - 6000 rubles).
According to the provisions of Article 133 of the Code of Criminal Procedure of the Russian Federation, the right to rehabilitation includes the right to compensation for property damage, elimination of the consequences of moral harm and restoration of labor, pension, housing and other rights. Harm caused to a citizen as a result of criminal prosecution is compensated by the state in full, regardless of the guilt of the body of inquiry, the inquirer, the investigator, the prosecutor and the court... The right to rehabilitation, including the right to compensation for harm associated with criminal prosecution, has, among other things, , a defendant who has been acquitted.
According to Part 1 of Article 135 of the Code of Criminal Procedure of the Russian Federation, compensation for property damage to the rehabilitated person includes compensation, among other things, for the amounts paid to him for the provision of legal assistance.
In accordance with Art. 1070 of the Civil Code of the Russian Federation, harm caused to a citizen as a result of an illegal conviction, illegal prosecution, illegal use of detention or a written undertaking not to leave as a preventive measure is compensated at the expense of the treasury of the Russian Federation, and in cases provided for by law, at the expense of the treasury of the subject of the Russian Federation or the treasury of a municipality in full, regardless of the guilt of officials of the bodies of inquiry, preliminary investigation, prosecutor's office and court in the manner prescribed by law.
In accordance with Art. 1071 of the Civil Code of the Russian Federation in cases where, in accordance with the specified Code or other laws, the damage caused is subject to compensation at the expense of the treasury of the Russian Federation, the relevant financial authority acts on behalf of the treasury, if in accordance with clause 3 of Art. 125 of the Civil Code of the Russian Federation, this responsibility is not assigned to another body.
According to Part 1 of Art. 242.2 of the Budget Code of the Russian Federation, the responsibility for the execution of judicial acts on claims for compensation for damage caused by the actions of state bodies of the Russian Federation or their officials is assigned to the Ministry of Finance of Russia.
On behalf of the Ministry of Finance of Russia, on special instructions, state bodies, local government bodies, as well as legal entities and citizens can appear in court (clause 3 of Article 125 of the Civil Code of the Russian Federation).
As follows from Part 2 of Article 135 of the Code of Criminal Procedure of the Russian Federation, if the criminal case is terminated or the sentence is changed by a higher court, then the claim for compensation for damage is sent to the court that passed the sentence.
Based on the above, I ask the court:
make a decision to make payments in compensation for damage caused as a result of illegal criminal prosecution - in the amount of 26,000 rubles, which is the cost of the legal assistance provided.
Application:
1. copy of the receipt for the cash receipt order dated “__” 02.2009. in the amount of 10,000 rubles; 2. copy of the receipt for the cash receipt order dated “__” 05.2009. in the amount of 5,000 rubles; 3. copy of the receipt for the cash receipt order dated “__” 06.2009. in the amount of 5,000 rubles; 4. copy of the receipt for the cash receipt order dated “__” 11.2009. in the amount of 6,000 rubles; 5. account details for transferring funds.
Signature ___________ /S./
All documents to the court (procedural documents):
Statements of claim to court; Applications to court (public legal relations, special proceedings..); Petitions to court, statements; Objections (response) to the statement of claim, complaint, arguments to the court; Complaints to the court (appeal, cassation, supervisory, private); Complaints against a decision in a case of an administrative offense; Complaints to the prosecutor's office and other authorities; Complaints, statements, petitions in criminal proceedings; Other procedural documents; Pre-trial claims (samples), demands, responses to claims.
Rehabilitation in criminal proceedings
Rehabilitation consists of two actions: 1) the issuance of a procedural act on rehabilitation and 2) a set of measures aimed at compensating for the harm caused by illegal criminal prosecution. This includes compensation for property damage, compensation for moral damage, and restoration of other rights of the rehabilitated person.
Regardless of the guilt of investigators, inquiry officers, prosecutors, or the court in the illegal criminal prosecution of a person, the harm caused to a citizen is compensated by the state in full.
Decisions on rehabilitation can be made by the court of first instance, as well as in appeal and cassation proceedings.
Despite the accuracy and specificity of the rules governing rehabilitation issues in criminal proceedings, in the practice of their application questions arise, the answers to which were given by the Plenum of the Supreme Court of the Russian Federation (hereinafter referred to as the Plenum) in Resolution No. 17 dated November 29, 2011 (as amended on April 2, 2013 ) “On the practice of application by courts of the norms of Chapter 18 of the Code of Criminal Procedure of the Russian Federation, regulating rehabilitation in criminal proceedings.”
Thus, according to the provisions of paragraph 2 of part 2 of Article 133 of the Code of Criminal Procedure of the Russian Federation, a defendant whose criminal prosecution has been terminated due to the refusal of the state prosecutor to charge has the right to rehabilitation.
What if the case is dismissed by the court on rehabilitative grounds, provided for, but not due to the refusal of the state prosecutor?
The Plenum explained that not only persons are subject to rehabilitation in connection with the termination of a criminal case due to the refusal of charges, but also persons in respect of whom the court has issued a decision (ruling) to terminate a criminal case (criminal prosecution) on the above grounds, provided for in Article 24 , 27 Code of Criminal Procedure of the Russian Federation.
Are persons subject to rehabilitation in case of acquittal or dismissal of the case under certain articles, that is, regarding the charges?
Clause 4 of Part 2 of Article 133 of the Code of Criminal Procedure of the Russian Federation contains instructions on partial rehabilitation only when a court conviction that has entered into legal force is overturned, that is, at the cassation stage.
The Plenum explained that the right to rehabilitation has the right not only to a person against whom criminal prosecution was terminated on the grounds provided for in Part 2 of Article 133 of the Criminal Procedure Code of the Russian Federation in the case as a whole, but also to a person against whom criminal prosecution was terminated on rehabilitative grounds in part of the presented independent accusation against him (for example, when a criminal case is terminated for lack of corpus delicti under Article 105 of the Criminal Code of the Russian Federation, when charged with murder and theft).
In accordance with the requirements of Article 134 of the Code of Criminal Procedure of the Russian Federation, court decisions on the acquittal and termination of criminal cases on rehabilitative grounds must indicate the recognition of the right to rehabilitation and send a notice explaining the procedure for compensation for harm associated with illegal criminal prosecution, established by Art. 133, 135, 136,138,139 of the Code of Criminal Procedure which, in particular, must indicate what harm is compensated during rehabilitation, as well as the procedure and timing for applying for compensation.
The absence in a sentence, resolution, determination of an indication of recognition of a person's right to rehabilitation does not serve as a basis for refusal of rehabilitation.
According to Part 1 of Article 136 of the Code of Criminal Procedure, the prosecutor, on behalf of the state, brings an official apology to the rehabilitated person for the harm caused to him.
Should an apology be given in private rehabilitation?
Based on the explanation of the Plenum, in the case of partial rehabilitation, the same consequences occur as in the case of full rehabilitation.
Does the court have the right to assign the obligation to make an official apology to the rehabilitated person to a specific prosecutor?
According to the resolution of the Plenum, the court is not vested with such a right. Article 136 of the Code of Criminal Procedure of the Russian Federation does not contain instructions that the court, when recognizing the right of a convicted person to rehabilitation, must oblige the prosecutor to apologize, since such an obligation is assigned to the prosecutor by law.
At the same time, if the prosecutor fails to fulfill the obligation imposed on him by law to apologize, his inaction, according to the law, can be appealed to the court.
Deputy Prosecutor of the Vokhomsky District,
1st Class Lawyer N.N. Chicherin
NTVP "Kedr - Consultant"
LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » General civil issues » Problems in drawing up a statement of claim for compensation for moral damage due to rehabilitation in criminal proceedings
A criminal case was opened against the applicant Z., but subsequently the proceedings were terminated and a decision was made to terminate the criminal case against the applicant.
The applicant demands compensation for moral damage in monetary terms.
The applicant’s questions: How to correctly draw up a statement of claim for compensation for moral damage due to rehabilitation in criminal proceedings, who should be the defendant, in which court to file the statement of claim.
Lawyer's answer.
Compensation for damage caused as a result of illegal or unfounded criminal prosecution is regulated by Chapter 18 of the Code of Criminal Procedure of the Russian Federation.
The applicant was explained that in accordance with the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 29, 2011 No. 17 “On the practice of application by courts of the norms of Chapter 18 of the Criminal Procedure Code of the Russian Federation, regulating rehabilitation in criminal proceedings,” claims for compensation for moral damage in monetary terms presented in civil proceedings. Based on the provisions of Art. 23, art. 24 of the Code of Civil Procedure of the Russian Federation, such cases are subject to jurisdiction by district courts. In accordance with Part 6 of Art. 29 of the Code of Civil Procedure, a claim may be brought to the court at the place of residence or location of the defendant, or to the court at the place of residence of the plaintiff. The Ministry of Finance of the Russian Federation is involved as the defendant on behalf of the Treasury of the Russian Federation. The interests of the Ministry of Finance of the Russian Federation are represented in courts by power of attorney of the Federal Treasury Department for the constituent entities of the Russian Federation. Thus, the defendant will be the Federal Treasury Department for the Udmurt Republic.
During the conversation, the lawyer also raised the question of whether there were any other violations of the applicant’s rights during the illegal criminal prosecution. The applicant reported that her reputation had been damaged, her earnings had been lost for 4 months, her health had been affected, and she had acquired bronchial asthma.
The lawyer explained that in this case the applicant has the right to file an application for compensation for property damage, restoration of labor, housing and other rights. Compensation for property damage to a person during rehabilitation includes compensation for wages, benefits, and other funds that the person lost as a result of criminal prosecution, compensation for fines and procedural costs, amounts paid for the provision of legal assistance and other expenses supported by documents or other evidence. Other expenses in this case include expenses associated with restoring health.
The applicant also has the right to compensation for moral damage, which provides for the prosecutor to make an official apology on behalf of the state for the harm caused to her, and to send written reports about the decisions made that exonerate the citizen, at the place of work, at the place of residence.
A sample application to the court has been provided.
Chauzova Elena Vladimirovna, secretary of the Uvinsky District Court of the Ural Republic,
Consultation given November 2013
