Criminal punishment is not the only consequence of a crime. If the sanctions provided for by the Criminal Code of the Russian Federation are applied to the criminal, the victim will be able to claim appropriate compensation. The Constitution of the Russian Federation establishes guarantees for victims in the form of justice and compensation for harm.
Compensation is an extremely useful tool. We recommend enlisting the support of a professional lawyer to restore the violated rights and interests in full.
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Compensation for harm from a crime: what is regulated
Compensation for harm has a dual nature: civil and criminal. The potential opportunity to receive compensation from a crime is enshrined in Art. 52 of the Constitution of the Russian Federation, which establishes that the rights of victims are protected by law.
The basic provisions on damage are established in Art. 1064 of the Civil Code of the Russian Federation. The article states that harm caused to a person through the fault of the other party is compensated in full. It is worth noting that this article does not lose its force in the framework of criminal proceedings.
Reflection Art. 1064 in rulings and decisions of higher courts
Some rules for the application by courts of the provisions of Art. 1064 of the Civil Code of the Russian Federation explains the resolution of the Plenum of the Armed Forces of the Russian Federation dated January 26, 2010 No. 1, which is called “On the application by courts of civil legislation regulating relations regarding obligations resulting from harm to the life or health of a citizen.” It points out many important aspects, including the fact that the presumption of guilt of the harm-doer assumes that the defendant himself must provide evidence of the absence of his guilt.
The same tradition can be traced when the collegium of the RF Supreme Court makes decisions on property disputes. Thus, on August 15, 2021, case No. 78-KG17-55 was considered. Its essence boils down to the fact that there was a flood of non-residential premises belonging to a legal entity, and above them there was a citizen’s apartment. The company filed a lawsuit against him, which was partially satisfied by the court of first instance. The citizen filed a complaint with the appellate court, which overturned the decision of the first instance court.
However, the legal entity reached the Supreme Court of the Russian Federation, which in its ruling indicated that the decision of the appeal court was incompetent, since the victim provided evidence of the gulf, but the defendant did not provide evidence that he was not guilty of the gulf.
Who is entitled to compensation for damages?
How can damages be compensated if criminal proceedings are designed to resolve issues of guilt and punishment, but not to recover damages? Very simple.
The law provides for the possibility of filing a civil claim within a criminal case. Art. 44 of the Code of Criminal Procedure of the Russian Federation establishes who can be a civil plaintiff. According to the article, any person (citizen or organization) who has suffered damage from a crime may demand compensation for the harm caused.
A civil claim for compensation for damages from a crime will be tied to the criminal case. This means that the plaintiff does not need to start the proceedings again - everything will be considered in one proceeding.
Moreover, the plaintiff does not need to draw up additional documentation and send copies to all participants - it is enough to submit an application to the court or to the investigator.
The right of the victim to compensation for property damage
Lawyer Antonov A.P.
In Part 3 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, the legislator enshrined one of the important guarantees of respect for the rights of the victim in criminal proceedings. Here, in particular, it is said that “the victim is provided with compensation for property damage caused by the crime, as well as expenses incurred in connection with his participation during the preliminary investigation and in court, including expenses for a representative, in accordance with the requirements of Article 131 of this Code.”
Compensation for property damage caused by the crime, as well as expenses incurred in connection with his participation during the preliminary investigation and in court, including expenses for a representative, is “provided” to the victim. The legislator does not specify the methods of such provision, therefore this term can be understood as any activity of an investigator (inquirer, etc.) aimed at organizing compensation for the victim of property damage caused by a crime, as well as expenses incurred in connection with his participation in criminal proceedings. , court (judges).
Ensuring compensation to the victim for property damage caused by the crime, as well as expenses incurred in connection with his participation during the preliminary investigation and in court, is the active actions of the investigator (investigator, etc.), the result of which is real compensation to the victim for these material losses. The investigator (inquiry officer, etc.), the court (judge) must do everything possible on their part to ensure that the victim receives compensation in strict accordance with the requirements of the law. If the victim was not provided with compensation for property damage caused by the crime, as well as expenses incurred in connection with his participation in the criminal process, and the corresponding petition was filed, it should be considered that the investigator (inquiry officer, etc.), the court (judge) did not fulfilled their assigned duties.
Damage caused by the crime, compensation for which the investigator (inquiry officer) in accordance with Part 3 of Art. 42 of the Code of Criminal Procedure of the Russian Federation should have provided for losses and other harm.
Losses in this case are called:
1) loss, damage to property (real damage) of the victim, as well as
2) lost income that the victim would have received under normal conditions of civil circulation if his right had not been violated (lost profits) (Article 15 of the Civil Code of the Russian Federation).
It is recommended to consider other harm as the monetary value of physical as well as moral harm caused by a crime.
The legislator has provided several ways to compensate for damage:
1) civil claim in criminal proceedings (parts 2 and 3 of Article 44, part 6 of Article 246 of the Code of Criminal Procedure of the Russian Federation);
2) compensation for material damage at the initiative of the court;
3) imposition by the court of the obligation to make amends for the damage caused (clause “c” of Part 2 of Article 90 of the Criminal Code of the Russian Federation). The named method of compensation for damage is not fixed in the Code of Criminal Procedure of the Russian Federation;
4) the actual return of the stolen property to its owner (clauses 3, 5, 6, part 3 of Article 81 and subsection “b” clause 1, subclause “a” clause 2, subclause “b” clause 4, subparagraph “a”, paragraph 4.1, subparagraph “b,” paragraph 5, subparagraph “b,” paragraph 9, part 2, article 82 of the Code of Criminal Procedure of the Russian Federation);
5) voluntary compensation for material (moral) damage or otherwise making amends for the damage by the criminal or his relatives. And this method, despite its widespread use in practice, is not enshrined in the criminal procedure law. It is mentioned in paragraph “k” of Art. 61 and art. 75 of the Criminal Code of the Russian Federation. According to data conducted by V.A. Azarov's research shows that in 22.4% of criminal cases, material damage was compensated voluntarily by the accused or his relatives.
The Code of Criminal Procedure of the Russian Federation does not directly speak about compensation for material damage at the initiative of the court, however, it contains a number of provisions that allow us to say that the court has at least such a right. So, according to Part 3 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, the victim is provided with compensation for property damage caused by the crime. A civil claim may be filed before the end of the judicial investigation during the trial of a criminal case in the court of first instance (Part 2 of Article 44 of the Code of Criminal Procedure of the Russian Federation). According to Part 1 of Art. 44 of the Code of Criminal Procedure of the Russian Federation, the decision to recognize a civil plaintiff can be formalized by a court ruling or a judge’s ruling. The court is entrusted with the obligation, at the stage of preparing the case for the court hearing, to find out whether measures have been taken to ensure compensation for damage caused by the crime (clause 5, part 1, article 228 of the Code of Criminal Procedure of the Russian Federation).
Forms of voluntary compensation for harm:
a) depositing sums of money into the deposit account of the court, which must then consider the criminal case;
b) handing over money to the victim against receipt (it is better when this action is carried out in the presence of an investigator (interrogator, etc.));
c) transfer of money to an account known to the investigator (interrogating officer, etc.);
d) voluntary surrender of items of criminal offense to the competent government authorities;
e) transfer to the victim (another person who has been harmed by a crime) for the purpose of compensation for damage of equivalent property.
In practice, criminal restitution takes place, that is, compensation for damage not with money, but with a similar thing. This method of compensation protects the victim from the adverse effects of inflation, shortages, etc.
When the location of the items of criminal offense is known, usually the investigator (investigator, etc.) seizes them and returns them to the owners. If property was acquired for compensation from a person who did not have the right to alienate it, which the acquirer did not know and could not know about (a bona fide acquirer), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred the owner into possession, or stolen from one or the other, or removed from their possession in some other way against their will. If property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to reclaim the property in all cases. Money, as well as bearer securities, cannot be demanded from a bona fide purchaser (Article 302 of the Civil Code of the Russian Federation).
The following actions of the competent state bodies can be recognized as means of fulfilling the obligation to compensate for damage caused by a crime:
1) proving the nature and amount of damage (Article 73 of the Code of Criminal Procedure of the Russian Federation);
2) recognition of citizens and legal entities as victims (civil plaintiffs);
3) involvement of appropriate entities as civil defendants;
4) search and seizure of stolen property;
5) return by state bodies of objects of criminal encroachment to their legal owners;
6) explaining to the accused (civil defendant, their close relatives and relatives) the need for voluntary compensation (making amends) for the material (moral) damage caused by the crime;
7) identification and seizure of property (money, other valuables), with the help of which the damage caused by the crime can be repaid;
seizure of property (Articles 115, 116 of the Code of Criminal Procedure of the Russian Federation);
9) transfer of seized property for safekeeping.
Preliminary investigation authorities must make efforts to search for property. For these purposes, some of them can set up ambushes, carry out patrols, inspect the adjacent territory, and send requests.
According to the law, to ensure the execution of a sentence in terms of a civil claim, collection of a fine, other property penalties or possible confiscation of property specified in Part 1 of Art. 104.1 of the Criminal Code of the Russian Federation, an investigator (inquirer, etc.), with the consent of the head of the investigative body (prosecutor), initiates a petition before the court to seize the property of the suspect, accused or persons who are legally liable for their actions. When deciding on the seizure of property to ensure possible confiscation, the court indicates the specific factual circumstances on the basis of which it made such a decision, and also establishes restrictions associated with the possession, use, and disposal of seized property (Part 1 of Article 115 of the Code of Criminal Procedure RF).
When scheduling a court hearing, the judge is obliged to check whether all persons who suffered moral, physical and (or) property harm by the crime are recognized as victims in the case. If it is established that any of them is unreasonably not recognized as a victim, the judge, by his decision (Part 1 of Article 42 of the Code of Criminal Procedure of the Russian Federation), is obliged to recognize such a person as a victim, notify him about this, explain his rights and provide, after the appointment of a court hearing, the opportunity to familiarize himself with all the materials of the case. Having determined that the rights of a victim have been granted to someone unreasonably, the judge must make a decision to remove such a person from participating in the case as a victim and notify him of the decision.
During a preliminary hearing or in the preparatory part of a court hearing in a case of a crime that caused material damage, the judge should find out whether the injured persons or organizations have been explained their right to sue, whether a civil claim has been filed, and whether measures have been taken to ensure compensation for damage. If such measures were not taken during the preliminary investigation, the judge (court) on the basis of Art. 230 of the Code of Criminal Procedure of the Russian Federation, it is necessary to resolve the issue of seizing property, cash deposits, etc. or oblige the relevant authorities to take the necessary measures to ensure compensation for material damage and possible confiscation of property. In the event that a civil claim does not arise from the content of the accusation, the court makes a ruling that the claim does not relate to this case and is not subject to consideration.
If the court is considering the issue of applying compulsory medical measures to the harm-cauter, the civil claim of the victim is also not subject to consideration, which does not prevent its subsequent presentation and consideration in civil proceedings, about which the court makes an appropriate decision.
Compensation for damage caused by a crime in criminal cases of violation of copyright and related rights is specific (Article 146 of the Criminal Code of the Russian Federation). According to Art. 1301 of the Civil Code of the Russian Federation, in cases of violation of the exclusive right to a work, the author or other copyright holder, along with the use of other applicable methods of protection and measures of liability established by the Civil Code of the Russian Federation (Articles 1250, 1252 and 1253), has the right in accordance with paragraph 3 of Art. 1252 of the Civil Code of the Russian Federation, at one’s choice, require the violator to pay compensation instead of compensation for losses:
1) in an amount from ten thousand rubles to five million rubles, determined at the discretion of the court based on the nature of the violation;
2) twice the cost of counterfeit copies of the work;
3) twice the cost of the right to use the work, determined on the basis of the price that, under comparable circumstances, is usually charged for the lawful use of the work in the manner used by the infringer.
In this regard, the victim (author or other copyright holder) should understand that if, as part of the criminal process, he declares compensation for the damage caused to him, he will deprive himself of the opportunity to compensate for the damage caused to him in one of the three ways provided for in Art. 1301 of the Civil Code of the Russian Federation. In this regard, he is recommended to file a civil claim not for damages, but for compensation, for example, twice the value of the right to use the work, determined on the basis of the price that, under comparable circumstances, is usually charged for the lawful use of the work in the manner used by the suspect, accused.
Some will argue that civil legal compensation cannot be achieved in criminal proceedings. We consider this issue controversial already because the Plenum of the Supreme Court of the Russian Federation, in its Resolution No. 17 of June 29, 2010 “On the practice of application by courts of norms regulating the participation of the victim in criminal proceedings,” repeatedly used the expression “compensation for damage caused.” This Resolution begins with the statement that “strict compliance with the rules governing the participation of the victim in criminal proceedings serves as an important guarantee for the realization by a person who has suffered from a crime of his constitutional right to ... compensation for the damage caused to him.” And this is a position that will be difficult for the courts to ignore.
But even if the victim does not understand the investigator (inquirer, etc.), the court, he still should not file a claim for compensation for damages caused by the crime in cases of violation of copyright and related rights, if he then plans to achieve the provisions provided for in Art. 1301 of the Civil Code of the Russian Federation is a much larger amount of compensation.
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
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What is the damage?
Criminal procedural legislation does not disclose the concept of damage. In practice, the definition from civil law is used, which once again proves the “dual nature” of compensation.
Damage caused by crime is of three types:
- physical;
- property;
- moral.
Physical damage is caused to the health of a citizen, property damage affects the integrity and safety of material wealth, and moral damage is physical or moral suffering.
It is obvious that organizations can only compensate for property damage, since they do not have any health or morality. At the same time, legal entities can claim compensation for damage to business reputation.
Examples of crimes for which a claim can be filed:
- theft;
- fraud;
- robbery;
- accidents;
- abuse of power;
- hooliganism.
The list is incomplete. Wherever a crime occurs, it is potentially possible to make a claim for damages.
Compensation for harm in the form of rehabilitation
Everyone makes mistakes. What should a person who has been wrongly accused of a crime do? If the court overturned a previously passed sentence or ruling, then the “former accused” has the right to compensation for property damage.
In Art. 135 of the Code of Criminal Procedure of the Russian Federation indicates the points for which compensation can be made:
- salary;
- pensions and other social benefits;
- fines;
- amounts from the sale of confiscated property.
Compensation is available to the rehabilitated person during the entire limitation period. The court undertakes to pay all compensation within 1 month from the date of filing the application from the rehabilitated person.
State responsibility for harm caused by unsolved crimes
According to the Ministry of Internal Affairs of Russia, more than half (53.7%) of all crimes registered from January to July 2021 are theft of other people’s property, committed by theft (423.3 thousand, or 2.7%), fraud (188.5 thousand, or 31.1%), robbery (23.8 thousand, or 12.9%) or robbery (3.2 thousand, or 19.2%).
Almost every 5th theft (19.7%), every 25th robbery (4.1%) and every 8th robbery (12.5%) involved illegal entry into a home, premises or other storage facility. Every 55th (1.8%) registered crime is burglary. In January–July 2021, their number decreased by 21.2% compared to the same period in 2021.
476.1 thousand crimes were not solved, which is 3.8% more than the same figure for January–July 2021. Of this number, grave and especially grave crimes account for 30.9% (in January–July 2021 – 25, 9%). Also, 91 murders and attempted murders (51.1%), 351 cases of intentional infliction of grievous bodily harm (23.0%), 237.8 thousand thefts (2.8%), 5.1 thousand robberies ( 26.3%), 392 robberies (34.8%). In addition, 456.1 thousand crimes (2.2%) were not solved due to failure to identify the person to be charged as an accused.
Procedure for compensation for material damage
In Russia, the following procedure for compensation for material damage applies:
- collecting evidence of damage incurred. The first thing the judge will require is evidence that the harm caused was real;
- collection of evidence that material losses are associated with the unlawful actions of the defendant;
- the presence of a direct connection between the material damage and the actions of the defendant.
Their parents, guardians, etc. are responsible for the actions of minors and incompetent persons. If the harm is caused by an entrepreneur or legal entity, it is not necessary to prove his guilt in order to compensate for the damage; the fact of an illegal action is sufficient. Thus, the procedure for compensation for material damage for each category of persons is strictly individual.
