Procedure for assigning status
Russian legislation determines the right of the victim himself to initiate the assignment of such status to him. This can also be done by law enforcement agencies conducting proceedings in the case.
A refusal to grant victim status can be appealed on the basis of Resolution of the Plenum of the RF Armed Forces No. 17.
Recognition as a victim in a criminal case is possible only if the following circumstances exist:
- The fact of causing damage to this person has been proven. Damages may include theft or damage to tangible property, defamation, damage to reputation, or personal injury.
- The relationship between criminal acts and damage has been proven.
If these circumstances exist, a decision is made to recognize the victim as a victim. When serving the decision, the victim is explained his rights and obligations in this status.
Features of participation in the hearing at first instance
They are disclosed in the criminal procedure law in sufficient detail. A person’s participation in first instance hearings is ensured by the following tools.
First of all, you should pay attention to Part 4 of Art. 231. The norm provides for the duty of the judge, when making a decision to schedule a meeting, to notify the participants at least 5 days in advance. The parties are notified of the time, place, and date of the hearing.
Secondly, in accordance with Part 1 of Art. 249 of the Code of Criminal Procedure, the participation of the victim is mandatory when considering a criminal case on the merits. Consequently, a meeting can be held without sacrifice only if special grounds have been established. In such cases, the court must take measures to clarify the reasons for the absence of the victim.
To more clearly ensure the rights of the victim to participate in the proceedings in the first instance, the law must directly indicate that his failure to appear for valid reasons should lead to the postponement of the hearing. If the circumstances of the absence were not clarified or the victim was not notified in a timely manner of the time, place and day of the meeting, the verdict, at the request of the interested parties, should be declared illegal and canceled by a higher authority. In this case, the case must be sent for re-examination. The higher authority must instruct the lower court to ensure the presence of the victim at the trial.
Resolution
According to Article 42 of the Code of Criminal Procedure of the Russian Federation, a resolution on recognition as a victim is drawn up in a strict form and contains an introduction, a descriptive part and a resolution.
The introduction indicates the details of the body and the authorized person who adopted the resolution.
The narrative contains detailed information about the crime and the harm that was caused to the victim.
All circumstances of the incident must be indicated based on legal norms. In particular, the resolution indicates specific articles of the Criminal Code of the Russian Federation, the norms of which were violated by the criminal.
The resolution indicates the decision to recognize a person or organization as a victim and its data. If an organization has suffered from criminal attacks, indicate its legal address and name, as well as the details of its representative.
It is important that the decision on recognition as a victim includes a note explaining to him all the rights and obligations.
Who and when can be considered as such?
A victim can be recognized as a person or group of persons who have suffered harm as a result of a crime committed. The resolution contains information about all victims in this case.
Until 2014, the legislation did not stipulate the time frame during which the resolution came into force. This created difficulties in determining the time when the victim officially became one.
Today there is a legal norm according to which the victim of a crime is considered a victim from the moment the criminal case is initiated. If at this time the victim’s data is unknown, then he will be recognized as a victim when such data becomes available to law enforcement officers.
Compensation for damage
In a situation where the crime is related only to the violation of property rights, reconciliation of the parties is possible, after which the case is closed. However, this is only possible in case of compensation for damage. In some cases, compensation for moral damage will be required.
If the perpetrator refuses to compensate the harm voluntarily, then reconciliation of the parties is impossible. In this case, the court will force the perpetrator to pay compensation.
The judgment may include a fine and confiscation of property to pay off the debt owed to the victim.
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The following may be confiscated:
- Cash or earnings for a certain period.
- Property objects that are the property of the perpetrator.
- Funds from his bank accounts.
The victim will be recognized as a victim and, accordingly, will receive the right to compensation for damages only after filing a corresponding petition with the court.
The decree on recognition as a victim allows him to protect his rights, as well as receive all the necessary information about the case. It must be taken into account that the victim must fulfill his duties.
How to submit an application?
To be recognized as a victim, a citizen must contact the investigative authorities with a statement. The legislation provides for a free form of such an application, but its text must contain the following information:
- Details of the competent authority to which the application is submitted and the employee who will consider it.
- Full name, address and contact details of the applicant.
- A detailed description of the reasons why the applicant may qualify for victim status. In this part of the application, it is important to describe all the circumstances of the crime and prove that the offender caused harm to the applicant through his actions.
- When describing violations of the law, it is important to refer to its norms. In some cases, to draw up an application, it is worth contacting a lawyer who will help to correctly substantiate the facts in the application in accordance with the law.
The application for recognition as a victim must be drawn up in two copies. One is submitted to the investigative authorities or court, and the second is marked as accepting the application and returned to the victim.
Specifics of participation in the pre-trial stage
The very first right of a person who has become a victim of a crime is the opportunity to take part in legal proceedings. It is provided by a variety of procedural means. The difference in the implementation of this right is associated with the specifics of the stage at which the production is located.
At the pre-trial stage, the victim has the opportunity to participate from the very beginning. The subject who is subsequently recognized as a victim can play the role of the applicant and avail himself of the corresponding legal options. In particular, a person has the right to submit on his own behalf an application for committing a crime and receive documentary evidence of its acceptance. These procedural possibilities are ensured by the duties of officials enshrined in the Code of Criminal Procedure in Part 1 of Art. 144. The applicant can contact any law enforcement agency with a report of an impending or committed crime. In this case, the subject does not have to comply with the rules on jurisdiction. In this regard, the refusal of an official to accept a statement due to the fact that the crime falls under the jurisdiction of another body is considered unlawful and can be challenged in the manner established by criminal procedural rules. But in order for an appeal to be possible, the subject must request a written refusal from an authorized person to accept the message.
Stages of granting victim status
In a situation where recognition of a citizen as a victim is initiated by the investigative body itself, this process includes several actions:
- Summoning a citizen to investigative authorities. His personal presence is a mandatory requirement of the law.
- Checking his identity. The citizen must present a passport.
- If there are facts proving that he suffered in this crime, an appropriate resolution is drawn up.
- Familiarization with the contents of the decision of the victim himself or his representative if he cannot appear before the investigative authorities. The representative must have a notarized power of attorney from the victim.
- Clarification of the rights and responsibilities of the victim.
In some cases, the victim will be summoned for questioning or other investigative actions necessary to clarify the circumstances of the incident.
Important points
The Code of Criminal Procedure provides for the possibility of overturning a sentence if the right of the victim to participate in the proceedings has not been properly ensured. There are many cases in judicial practice when decisions were overturned precisely for this reason.
So, for example, in one of the cases the acquittal pronounced by the jury was overturned, since the victim’s right to participate in the proceedings was violated. The violation was due to the fact that the victim did not appear in court, but submitted a request to postpone the proceedings due to her illness. The court rejected this request. He motivated his decision by the fact that the victim did not provide a document confirming the statement of incapacity for work. Moreover, she had previously been interrogated in court, and therefore her appearance at the hearing was considered optional. Accordingly, the hearing was completed without the victim. The citizen provided the cassation instance with a sick leave certificate for the corresponding days. Having taken the evidence into account, the court decided to overturn the verdict and recognize the violation of the victim’s rights.
Rights and obligations of the victim
The full list of rights of the victim in a criminal case is indicated in the second part of Article 42 of the Code of Criminal Procedure of the Russian Federation. The main ones include:
- Giving evidence.
- Refusal to testify against yourself and your close relatives, as well as your spouse.
- Presentation of evidence.
- Filing petitions and challenges.
- Participation in court hearings.
- Speech in debate.
- Support for the prosecution.
- Filing complaints against the actions or inaction of the inquiry officer, investigator and prosecutor.
- Request that protective measures be applied to him.
- Appeal sentences and decisions.
In this case, the victim is obliged:
- Do not evade the call of the investigator or the court.
- Give truthful testimony.
- Do not disclose investigation data if he has been warned about it.
- Comply with requirements to undergo examination or provide samples for examination in cases where the law does not require obtaining his consent to these actions.
It must be taken into account that liability is provided for failure to fulfill a number of duties. In particular, if the victim fails to appear in court, the victim has the right to be forcibly brought, and for giving false testimony he has the right to be held accountable for false denunciation.
Who can recognize a person as a victim?
Lawyer Antonov A.P.
According to Part 1 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, the decision to recognize the victim as a victim is drawn up by the inquiry officer, investigator, judge or court. Alexandrov A.S. instead of listing the entities specified in the law, he writes about “state bodies” (for some reason forgetting about the officials) conducting the criminal trial. Pobedkin A.V. and Yashin V.N., on the contrary, they are talking about “an official conducting criminal proceedings,” forgetting about the relevant bodies, for example, the court.
According to Part 1 of Art. 42 of the Code of Criminal Procedure of the Russian Federation lists officials (bodies) authorized to issue a procedural document on recognition as a victim. Before speaking about whether it is exhaustive, let us define those named in Part 1 of Art. 42 of the Code of Criminal Procedure of the Russian Federation to the concepts of “investigator”, “investigator”, “judge” and “court”.
According to paragraph 7 of Art. 5 of the Code of Criminal Procedure of the Russian Federation “inquiry officer” is an official of the inquiry body authorized or authorized by the head of the inquiry body to carry out a preliminary investigation in the form of an inquiry, as well as other powers provided for by the Code of Criminal Procedure of the Russian Federation. In relation to the bodies of inquiry of the system of the Ministry of Internal Affairs of Russia, the Federal Security Service (FSB), border agencies of the Federal Security Service, customs authorities of the Russian Federation (TO), bodies of the Federal Bailiff Service, military units (formations and institutions) and some other paramilitary departments, the investigators are certified employees of state institutions authorized to carry out criminal procedural activities, after establishing in the inspection material (application, report of a crime) sufficient data indicating the presence in the act of signs of the objective side of any crime.
It is this subject that the legislator is talking about not only in Part 1, but also in Clauses 9, 18, Part 2 and Clause 1, Part 5 of Art. 42 of the Code of Criminal Procedure of the Russian Federation.
The investigator, if there are factual grounds for this, has the right and obligation to make a decision on recognition as a victim in criminal cases that are in his proceedings. But the powers provided for in clause 9, part 2 and clause 1, part 5 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, he can also carry out orders from another preliminary investigation body.
Is it worth clarifying that the powers of a particular investigator vary depending on whether he is an employee of an institution endowed with the rights of an investigative body, or is merely subordinate in his service to an official who is an investigative body. In the second case, when the body of inquiry is a specific official, the interrogator subordinate to him has the right to make a decision recognizing the person as a victim and carry out the instructions of the investigator (inquiry officer, etc.) only in the case when the corresponding authority was delegated to the inquiry officer by his head, who has the status of the body of inquiry .
At the same time, the victim, in accordance with paragraph 18 of Part 2 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, has the right to file a complaint against the actions (inaction, decisions) of any investigator.
According to the provisions enshrined in paragraph 41 of Art. 5 and part 1 art. 38 of the Code of Criminal Procedure of the Russian Federation, an investigator is an official authorized, within the competence provided for by the Code of Criminal Procedure of the Russian Federation, to carry out a preliminary investigation in a criminal case, as well as other powers provided for by law. An investigator is a citizen legally holding the position of investigator (senior investigator, investigator for particularly important cases, senior investigator for particularly important cases) of the Main Investigative Directorate of the Investigative Committee of the Russian Federation, the investigative directorate of the Investigative Committee of the Russian Federation for a subject of the Russian Federation, the investigative department of the Investigative Committee of the Russian Federation for regions , cities, as well as the investigative body of the Ministry of Internal Affairs of the Russian Federation, the Federal Security Service, a territorial body of one of the specified departments for a subject of the Russian Federation, city or district.
For example, an investigator of the Investigative Committee of the Russian Federation who is not a citizen of Russia is considered to be illegally in office, since according to Part 1 of Art. 16 of the Federal Law of December 28, 2010 N 403-FZ “On the Investigative Committee of the Russian Federation”, employees of the Investigative Committee of the Russian Federation, and therefore investigators, can only be citizens of the Russian Federation.
The limits provided for in Art. 42 of the Code of Criminal Procedure of the Russian Federation, the powers of the investigator are similar to the corresponding framework of the rights of the interrogator.
A judge may make a decision to recognize a person as a victim at the stage of preparation for a court hearing, during a preliminary hearing, and also when he acts as a court considering and resolving a criminal case on his own.
The last entity that has the right to formalize a decision to recognize a person as a victim is the court. His actions (inaction, decisions) can be appealed by the victim (clause 18, part 2, article 42 of the Code of Criminal Procedure of the Russian Federation). The legislator repeatedly mentions certain varieties of this subject in the commented article (clauses 13, 14, 19, 21.1, parts 2 - 4, clause 1, part 5, article 42 of the Code of Criminal Procedure of the Russian Federation).
The concept of “court” in criminal proceedings means the composition of the Supreme Court of the Russian Federation, the Supreme Court of a republic, a regional court, a court of a federal city, an autonomous region, an autonomous district, a city court, a district (interdistrict) court, a military court, and also a judge (magistrate) who considers the case alone.
The court appears in criminal proceedings for the first time since:
— acceptance of a statement (report) about a crime;
- appealing to him with a petition to accept the provisions provided for in Part 2 of Art. 29 of the Code of Criminal Procedure of the Russian Federation of a procedural decision at the stage of preliminary investigation;
- filing a complaint against him against an illegal and (or) unfounded action (inaction, decision) of an investigator (inquiry officer, etc.);
- transfer of a criminal case (material) to court.
The right of victims to file complaints against court decisions also extends to appealing decisions that complete the judicial stages (clause 19, part 2, article 42 of the Code of Criminal Procedure of the Russian Federation). The victim is included by the legislator in the circle of persons who have the right to appeal court decisions in accordance with Part 1 of Art. 389.1, part 4 art. 389.8, art. 389.24, part 1 art. 389.25, part 1 art. 389.36, art. Art. 401, 401.2 and part 1 of Art. 412.1 Code of Criminal Procedure of the Russian Federation.
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
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