Any conflict can be resolved peacefully, even if it involves a criminal offense. According to the Code of Criminal Procedure of the Russian Federation, there are several ways to terminate a criminal case without bringing the defendant to justice.
One of the most common methods is reconciliation. Reconciliation of the parties in criminal proceedings solves the problem of criminal prosecution of those persons whose behavior no longer poses a danger to society, and the subject of the dispute and conflict is resolved jointly with the injured party.
If the victim has no claims against the defendant, and the criminal incident is completely resolved, the criminal case can be terminated after reconciliation of the parties.
Consequences of reconciliation
In strictly defined cases by law, the person who committed the crime and his victim can reconcile. This fact will lead to the termination of the criminal case. If this happens, there will be no further prosecution of the alleged criminal by law enforcement agencies or the court.
If this situation arises at the investigation stage, the case is terminated and is not sent to court; accordingly, no one will be found guilty and no sentence will be served.
If reconciliation takes place when the case is being considered by the court, which happens most often, then it also terminates it and makes an appropriate decision.
A person against whom a criminal case or prosecution is terminated is released from criminal liability.
Termination of a case due to reconciliation of the parties is formulated in the law as a right of an authorized person, but not an obligation.
Conditions for termination
The above rules regulate the conditions for termination of a criminal case in connection with the reconciliation of the parties. Despite their apparent simplicity, each of them needs explanation.
Committing a crime for the first time
This concept includes a number of possible options when, in practice, it is considered that the person brought to justice has committed a crime for the first time:
- He committed one or more acts, but he was not convicted for any of them.
- He had previously committed a crime and was convicted, but on the day the new crime was committed, the sentence for the first crime did not come into force.
- The previous sentence came into force, but by the time the new crime was committed, any of the circumstances had arisen that annulled the consequences of criminal prosecution for it (expungement of a criminal record or its removal, etc.).
- A conviction was passed for another act, it entered into force, but by the time the new one was committed, the crime of the previous one had been eliminated. That is, what was previously a crime was no longer considered such due to changes in the law.
- Previously, a person was held accountable under the Criminal Code, but was subsequently released from it by terminating the case against him.
Consequently, it is impossible to obtain exemption from responsibility for reconciliation with the victim in the event of an unexpunged or unexpunged conviction, much less a recidivism.
Gravity of the act
To determine whether it is possible to terminate the case due to reconciliation with the victim, it is necessary, among other things, to determine to which category the crime committed belongs.
The crime committed must be classified as a crime of minor or medium gravity.
Minor offenses include intentional and careless crimes, for which the most severe punishment is no more than 3 years in prison.
of medium gravity :
- Intentional acts with a maximum penalty of up to 5 years in prison.
- Careless - up to 10.
How to determine severity category
Example No. 1
Let's take a fairly common article. 119 of the Criminal Code, which punishes the threat of murder. Firstly, the crime is committed intentionally. Secondly, the sanction of Part 1 of this article establishes the maximum possible punishment in the form of imprisonment for a period of 2 years, and the second - 5 years. Consequently, the act under the first part of this article is of minor gravity, and under the second – medium.
Example No. 2
Act under Art. 264 of the Criminal Code of the Russian Federation, which punishes violation of traffic rules with various consequences for the victim - a careless act.
- According to Part 1 of this article, when the consequences of criminal actions are serious harm to the health of the victim, the most severe punishment is 2 years of imprisonment. That is, this is an act of minor gravity.
- Under Part 2, acts with the same consequences are punishable, but when leaving the scene of an accident or committing them by a person in a state of intoxication. Here the punishment can reach up to 7 years in prison, respectively, this is an act of moderate gravity.
- Part 3 punishes violations that lead to the death of one victim; they carry a penalty of up to 5 years in prison, therefore, they are also classified as crimes of moderate gravity.
Thus, subject to all other mandatory conditions, termination of cases under these articles by reconciliation of the parties is possible.
A similar algorithm for determining the severity of the crime and compliance with this condition for reconciliation of the parties is also relevant for other articles.
Reconciliation with the victim
The fundamental role in this matter, of course, belongs to the victim. The likelihood of stopping the prosecution of the person who committed the crime depends on his expression of will.
Reconciliation is achieved between the victim and the alleged perpetrator. In what way - an apology, some kind of help, compensation for damage, material or moral - reconciliation will be achieved does not matter.
The alleged perpetrator must play an active role in this matter, trying in any possible way to neutralize the consequences of the crime committed. In fact, his task is to achieve the forgiveness of the victim.
Some features:
- If the victim has not reached the age of majority , his interests in criminal proceedings are protected by legal representatives. When the opinion of such a victim regarding the possibility of reconciliation with the offender differs from the opinion of the representative, the court takes into account the position of the victim. That is, if a minor does not want to put up with the criminal, the case is not terminated on this basis.
- If the victim died as a result of a crime or death occurred during the proceedings for other reasons, his procedural rights, including reconciliation with the opposing party, pass to close relatives - one or several at once.
- If a crime was committed by several people , criminal prosecution can be terminated only in relation to those who have made peace with the victim. If reconciliation is not reached with the others, persecution against them continues as usual.
- If there are several victims , a person who has reconciled with everyone can be released from liability. If agreement is not reached with at least one person on this issue, release from liability for reconciliation is excluded.
Solving the issue of damage and harm
The next mandatory condition is making amends for the harm caused to the victim. It involves compensation for property damage and any other means of restoring the rights and interests of the victim that were violated by the suspect/accused of committing a crime.
Damage is considered to be material harm that can be compensated in kind by the transfer of similar property, its monetary equivalent, restoration of damaged objects, compensation for expenses incurred (for example, for treatment, special food, rehabilitation, etc.).
To make amends means to compensate for moral suffering (with property or a specific amount of money), apologize, or take other measures designed to compensate for the violated rights and interests of both the victim in particular, and society and the state in general.
How the damage caused will be repaired and the amount of compensation is determined solely by the victim. At the same time, compensation options should not violate the law and cause harm to third parties.
Compensation for damage and reparation of harm can be made not by the person who committed the crime himself, but also by any other person at the request or with the consent of the perpetrator. Promises and any obligations to do so in the future are not taken into account.
Additional Required Terms
There are other mandatory conditions not directly specified in the above-mentioned articles, without which the release from liability for reconciliation of the parties will not take place. Moreover, they either follow from the meaning of these norms or are indicated in other articles.
Statement of the victim for reconciliation with the defendant - sample
Art. 25 of the Code of Criminal Procedure of the Russian Federation states that the basis for termination of the case for reconciliation with the victim is his statement.
The statement or petition must contain a request to release the person involved from liability due to the fact that reconciliation has been reached with him, the harm caused has been smoothed over, the damage has been compensated, and there are no longer any claims in connection with the commission of the crime.
In any case, if such a statement is received, its voluntariness and awareness on the part of the victim - an individual - must be checked. The victim - a legal entity - is checked to have the authority to make such a statement from a representative of the organization.
If these circumstances are not confirmed, the victim objects and does not want reconciliation, release from liability is unacceptable.
Since reconciliation of the parties is possible at the stage of investigation and during judicial review, we have prepared 2 sample statements from the victim. We will consider the specific order at each stage further.
Statement under investigation
Statement in court
Petition for reconciliation of the parties - sample
The accused can also file a petition or statement to terminate the criminal case in connection with reconciliation with the injured party. But it will only be an addition to the victim’s statement, without which, of course, the results of the consideration will result in a refusal to satisfy the request.
Consent of the suspect/accused
This condition is called Part 2 of Art. 27 Code of Criminal Procedure of the Russian Federation. The obligatory consent of the person brought to justice to terminate the criminal case on the basis being analyzed is due to the fact that it is non-rehabilitative.
This means that the person was lawfully and justifiably subjected to criminal prosecution, but is still exempt from responsibility for what he did.
Disagreement with such a decision entails the impossibility of making such a procedural decision and continuing the proceedings in the usual manner.
Vera Viktorovna Dolganina
Practicing lawyer with more than 10 years of experience.
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A person exempted from liability for each of the non-rehabilitative grounds, including reconciliation with the victim, is considered not to have been convicted, but to have been subject to criminal liability. In cases specifically provided for by law, this entails some restrictions (for example, when applying for employment in certain bodies or organizations, such as the police, prosecutor's office and other law enforcement agencies), but still less negative than serving a sentence and having a criminal record.
Consent to such a decision of the person held accountable is usually formalized by a receipt or statement in which he asks for the termination of the case, declares the absence of objections, and also that the grounds for termination of the case on non-rehabilitating grounds and its consequences have been explained and understood to him. These documents are attached to the case materials.
Confession of guilt and involvement in a crime
These conditions are rather assumed based on the meaning of the ground under consideration - reconciliation with the victim.
A person who considers himself innocent cannot sincerely ask for forgiveness for what he has done, and perhaps it is not for him to make amends for the harm caused to the victim.
Moreover, a person who did not commit a crime and has nothing to do with it cannot apologize and compensate for the damage caused to others. Evidence of involvement in the commission of a crime must be available in the criminal case; if there is none, termination of the case due to reconciliation is not allowed.
In such circumstances, this procedural decision will not comply with the principle of fairness of the criminal process. And a person who has not committed a crime or is confident in his innocence has the right to a comprehensive consideration of the case, the presentation of evidence of the absence of his guilt, and the adoption of a legal, informed decision at the end of criminal proceedings.
Review of problematic issues
Despite the careful study of each law, the current legislation has many gaps and controversial issues. If we talk about reconciliation of the parties, here we need to highlight the following problems:
- Article 25 of the Code of Criminal Procedure of the Russian Federation does not define a clear list of criminal actions for which reconciliation is possible. Only the degree of severity is indicated, but in some cases its boundaries may be vague.
- Absence of direct prohibitions on reconciliation of the parties. In some cases, such actions are inappropriate, but are permissible from the point of view of current legislation. For example, as a result of the defendant’s negligent actions, the victim died. Then the rights are transferred to one of the relatives of the deceased, who can offer reconciliation of the parties.
- There is no clear list of grounds when reconciliation is possible. The current legislation defines only the main ways of using this opportunity. A clear legislative framework regarding the reconciliation of the parties has not yet been formed.
How the decision is made
The first thing that must happen in order for the consideration of the likelihood of termination of the case for reconciliation with the victim to begin is the receipt of the corresponding application from the victim, which was discussed above.
It is impossible to force him to write such a statement. It must be written voluntarily and consciously. The only way is to achieve reconciliation. Even if the damage is compensated, the harm is smoothed out, there are all conditions other than consent, but the victim does not want the criminal prosecution of his offender to end, there can be no talk of reconciliation.
Reconciliation of the parties before trial at the investigation stage
When a victim’s statement is received during the investigation, all other conditions are present for making a decision, the investigator or investigator investigating the case has the right, but is not obligated, to terminate it under Art. 25 Code of Criminal Procedure of the Russian Federation.
In order to make an appropriate decision, the investigator must obtain the consent of his supervisor, and the interrogating officer must obtain the consent of the prosecutor. Without such consent this is impossible.
However, in practice, before the trial, cases of termination of the case by reconciliation of the parties are rare. Investigators and interrogators exercise the right not to make this decision, justifying the refusal to satisfy the victim’s application on the nature and severity of the crime. This happens for the sake of statistics - the indicators of the number of cases sent to court are more important than the indicators of their termination.
Reconciliation of the parties in court
When a victim’s application is received, the case is considered during the judicial hearing and the presence of other conditions is examined.
If they are met, the court, among other things, through questioning the victim, checks whether he wrote a statement voluntarily, whether reconciliation has really been achieved, whether harm and damage have been compensated, and how.
The consequences of termination are explained to the defendant, his consent to this decision is requested, and it must be reflected in writing. Opinions on this matter from other participants in the process are also heard.
If there are no obstacles, the court terminates further proceedings in the case for reconciliation with the victim.
Vera Viktorovna Dolganina
Practicing lawyer with more than 10 years of experience.
Ask a Question
For the court, it is not of fundamental importance whether the case is considered on the merits with a verdict or with the termination of the case on non-rehabilitating grounds. Termination on the grounds in question most often occurs precisely at this stage of the process. The court, unlike the investigative bodies, exercises its right to terminate the case.
Judicial procedure
There are a number of aspects that are inherent in the process of reconciliation of the parties. The petition can be sent to any stage of the investigation of the case, but the final decision will be made after studying all the circumstances of the case and the data provided by the competent authorities.
The injured party submits a written statement to the judge and briefly states the essence of the petition. The judge clarifies the opinion of all participants in the process on this issue, but their statements are not decisive for the court.
It is mandatory to find out the opinion of the accused. If the public prosecutor opposes the termination of the reconciliation case, the court may make a positive decision on the application and approve the reconciliation of the parties. If during the trial it was not possible to provide evidence of the fact of full compensation for damage, the court will most likely reject the petition.
The decision to reconcile the parties can be appealed by the following participants in the process:
- Injured party.
- Victim.
- Prosecutor.
- Defense side.
Features of reconciliation in various cases
Depending on the order in which criminal prosecution is carried out (Article 20 of the Code of Criminal Procedure of the Russian Federation), the termination of proceedings in connection with the reconciliation of the parties has a number of features.
Cases of private and private-public prosecution
There are only 3 private prosecution cases:
- Part 1 Art. 115 – light information on the health of the victim;
- Art. 116.1 – beatings committed by a person previously brought to justice under Art. 6.1.1 Code of Administrative Offences;
- Part 1 Art. 128.1 – slander.
According to them, proceedings should be terminated if the victim has made peace with the accused. A statement from the victim in this case is an unconditional basis for making such a decision (unless the case falls under those specified in Part 4 of Article 20 of the Code of Criminal Procedure of the Russian Federation).
Criminal cases of private-public prosecution are listed in Part 3 of Art. 20 Code of Criminal Procedure of the Russian Federation. Among them:
- Art. 116 – beatings;
- Part 1 Art. 139 – penetration into a home;
- Part 1 Art. 146 – copyright infringement, etc.
Although they are classified in the category of gravity for which termination of the case in connection with reconciliation may be possible, it is impossible due to the direct prohibition of the said norm.
Public prosecution cases
Cases about all crimes not mentioned in parts 2 and 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation - cases of public prosecution. The law does not provide for a ban on the termination of such cases if the conditions for reconciliation with the victim are met.
Reconciliation before initiation of criminal proceedings
The consequences of reconciliation between the parties at the stage before the initiation of a criminal case also depend on the order in which criminal prosecution takes place.
Thus, for cases of private and private-public prosecution, a statement from the victim regarding criminal prosecution is required. If it is not there or a statement of reluctance is subsequently received (for any reason, including reconciliation), a criminal case is not initiated.
Settlement agreement in criminal proceedings: sample 2021
Strictly speaking, this is not a conventional contract between two parties. The document is drawn up in the form of a petition or statement from the injured party. Depending on the stage of the proceedings, the appeal is submitted to the inquiry officer, investigator or judge.
It briefly describes the details of the crime committed and the circumstances of reconciliation with the culprit. In addition, evidence of full compensation for harm is provided. There is no state fee for filing an application.
Below is the form that is current in 2021. If necessary, it is easy to adapt it to your own situation. After all, the structure will remain unchanged.
We recommend! The concept and essence of the stages of committing a crime
To the magistrate of judicial district No. 227
Konstantinova S.V.
Moscow, st. Biryulevskaya, 48, building 2
Case No. 1-613/2021
Fedorov Ivan Andreevich
st. Komsomolskaya, 16, apt. 24
Application for reconciliation of parties in a criminal case
In the proceedings of the magistrate of court district No. 227, Konstantinova S.V. there is case No. 1-613/2021 on charges of L.D. Stepanov. in committing a crime under Part 1 of Art. 118 of the Criminal Code of the Russian Federation – causing grievous bodily harm through negligence. Fedorov I.A. was recognized as the victim in this criminal case.
At the moment Fedorov I.A. and Stepanov L.D. reached reconciliation. The accused paid for the treatment of the victim in a medical institution and the purchase of the required medications. And also Stepanov L.D. voluntarily compensated the moral damage caused in the agreed amount. Therefore, Fedorov I.A. there are no claims against the second party.
In accordance with Art. 25 of the Code of Criminal Procedure of the Russian Federation, reconciliation and compensation for harm caused is the basis for terminating a criminal case. At the same time, Fedorov I.A. considers it necessary to indicate that Stepanov L.D. committed a crime for the first time.
Based on the above information and guided by Art. Art. 25, 76 Code of Criminal Procedure of the Russian Federation,
I ask the court:
1) Terminate proceedings in case No. 1-613/2021 in connection with the reconciliation of the parties and release L.D. Stepanov. from criminal liability.
Application:
1) Evidence of compensation for material and moral damage caused.
Fedorov I.A.
Application to terminate a criminal case sample
Is it possible to withdraw the application?
Regardless of what crime the law enforcement authorities have received a complaint about, it is impossible for any reason, even if the parties have reconciled.
Any message is reviewed and a procedural decision is made. It depends on the circumstances established.
For example, in cases of private and private-public prosecution, the absence of a statement from the victim (the same will be the subsequent statement of unwillingness to prosecute) may be grounds for refusal to initiate a case (Clause 5, Part 2, Article 24 of the Code of Criminal Procedure of the Russian Federation). An exception is the cases described in Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, one of them is the commission of a crime by an unidentified person.
According to reports of crimes for which criminal prosecution is carried out in public, the absence of a statement from the victim, his reluctance to bring anyone to justice is not a reason not to initiate a case.
Conciliation procedure in civil proceedings
In accordance with the law, the most common form of reconciliation of parties in civil proceedings is the end of the case using a settlement agreement, as a result of a successful negotiation process (Part 1, Article 39 of the Code of Civil Procedure of the Russian Federation). The mandatory conditions for reaching a compromise are:
- the conciliation procedure is allowed in 2 instances (Article 173, Article 326.1 of the Code of Civil Procedure);
- the settlement agreement must comply with the norms of current legislation and not violate the interests of third parties (Part 2 of Article 39 of the Code of Civil Procedure);
- the agreement of the parties must be approved by a court ruling, after which the process is considered completed, and the parties lose the opportunity to go to court again on this dispute (part 2, 3 of article 173, paragraph 3 of article 220 of the Code of Civil Procedure).
Another way to reconcile the parties is the mediation procedure, when the parties resort to the help of a qualified mediator to resolve the dispute. Based on the results of the procedure, a mediation agreement is drawn up. The conditions for the mediation procedure are:
- the procedure can be carried out at the initiative of the parties or at the proposal of a judicial authority (clause 5, part 1, article 150, article 172 of the Code of Civil Procedure);
- for the period of implementation of the procedure, the consideration of the civil case is postponed (part 1 of article 169 of the Civil Procedure Code);
- the agreement can only be executed voluntarily (Part 2 of Article 12 of Federal Law No. 193-FZ);
- this agreement can be used as a settlement agreement for approval by the court (Part 3 of Article 12 of the Federal Law No. 193-FZ).
It should be noted that mediation is not very common on the territory of the Russian Federation; it is still an incomprehensible innovation, and, therefore, is practically not used by the parties in civil proceedings.
What matters are impossible to reconcile?
Already based on the name of the analyzed grounds for termination of criminal proceedings, it follows that it cannot be applied in cases in which there are no victims. In other words, when there is simply no one to put up with, although formally under all other conditions this is permissible.
These are crimes that harm not a specific person or organization, but the interests of society and the state as a whole. For example, these could be crimes prosecuted:
- Parts 1 and 2 art. 171.2 – illegal organization and conduct of gambling;
- Part 1 Art. 201 – abuse of power in non-governmental organizations;
- Part 1 Art. 222 – illegal possession of weapons;
- Parts 1 and 2 art. 242 – production and circulation of pornographic materials and other similar things.
Controversial situations
There are crimes where the victim is a representative of the state and, in addition to his personal rights and interests, harm is caused to the interests of the state - this is a feature of the object of criminal attack in such acts. Such a victim is not vested with the authority to “forgive” on behalf of the state.
This category includes, among others, common acts under Part 1 of Art. 318, punishing violence against a representative of the authorities, 319 – for insulting him and others.
However, the law does not directly prohibit the termination of such cases through reconciliation with the victims. State prosecutors object to such a decision for the above reason, but the courts, having established compliance with the necessary conditions, the nature and method of making amends, terminate such cases.
Assistance from lawyers
When planning to reconcile with an opponent, it is better for the plaintiff to consult with a specialized lawyer. A specialist will help determine requirements and assist in negotiations. Often people cannot accurately formulate all the conditions for reconciliation due to lack of experience, emotions, etc.
A lawyer will help you choose a more productive way of communication, taking into account legal norms and personal experience in negotiations. In addition, the lawyer is able to predict possible scenarios, determining the most beneficial solution for both parties.
Reconciliation in a special court procedure
This procedure is described in Chapter 40 of the Code of Criminal Procedure of the Russian Federation. It presupposes the agreement of the perpetrator of the crime with what he is accused of on all counts and circumstances, the absence of an examination of the evidence and the imposition of a verdict, which can only be guilty.
However, a prohibition on making another decision, including termination of proceedings for reconciliation with the victim, subject to the necessary grounds for this, is not established by law.
Such a decision can be made in a special manner only under the following conditions:
- This does not require examining the evidence collected in the case.
- The actual circumstances do not change.
If these requirements are not met, it is impossible to terminate the case in a special manner in connection with reconciliation with the victim. In such a situation, the court, independently or at the request of the parties to the trial, can withdraw from the special procedure and consider the criminal case in general, with the examination of the necessary evidence.
The difference between a judicial fine and reconciliation of the parties
The unconditional and main difference between the termination of a case with a judicial fine and the termination after reconciliation of the parties is the obligation in the first case of the person released from liability to pay a certain amount of money to the state, the amount of which will be determined by the court.
In the second option, nothing needs to be done; the criminal prosecution ends with the issuance of an appropriate decision by an authorized person. That is, the absolute advantage of reconciliation is the absence of the need to pay a fine.
