Lawyer Spiridonov M.V. 09/20/2015 2 Comments
Criminal proceedings
criminal lawyer, theft from a store, accusation of theft, termination of a criminal case, reconciliation of the parties, Art. 158 Criminal Code of the Russian Federation, Art. 25 Code of Criminal Procedure of the Russian Federation, Art. 76 Criminal Code of the Russian Federation
Many persons brought to criminal liability think about the possibility of terminating the criminal case in connection with the reconciliation of the parties. In this article, using the example of one criminal case from my legal practice, I want to analyze the provisions of the Criminal Procedure Code of the Russian Federation and the Criminal Code of the Russian Federation, reveal the procedure for terminating a criminal case in connection with the reconciliation of the parties, determine whether clarification of the issue of admitting guilt is necessary for terminating a criminal case affairs.
I carried out protection under Part 3 of Art. 30 hours 1 tbsp. 158 of the Criminal Code of the Russian Federation - attempted theft (theft from a store). During the investigation, the defense’s position boiled down to the fact that my principal had paid for part of the goods, but he forgot to pay for part of the purchased goods, so he went through the checkout area, where he was detained by a security guard. As we can see, my client did not admit guilt in committing the crime and actively proved it.
The position on the case agreed upon with the client was to try to dismiss the criminal case without admitting his guilt in the charge.
№ 2:
After the conditions for reconciliation have been reached and fulfilled, it is necessary to take a statement from the victim, in which the latter will reflect that he has reconciled with the person brought to criminal liability, the harm caused to him has been fully compensated, he has no claims against the victim and asks to terminate the criminal case in connection with the reconciliation of the parties. The application must be written in the name of the person in whose proceedings the case is located.
To resolve the issue of terminating a criminal case, it is important to collect as many documents as possible that positively characterize the person brought to criminal liability. Such documents can be a work record, a record book, characteristics from a place of work, study, place of residence, documents confirming the presence of young dependent children, etc.
Criteria for termination of a case
My client was accused of banal theft causing significant damage to a citizen, which is qualified under Art. 158 part 2 clause “c” of the Criminal Code of the Russian Federation. It is important that this crime is classified as of medium gravity. It is also very important that the client did not have an unexpunged or unexpunged criminal record, which is legally considered as a lack of criminal record, that is, the real crime was committed for the first time. These two factors are independent criteria, the presence or absence of which indicates the possibility of termination of the case through reconciliation with the victim.
It should be noted that compensation for damage to the victim itself is a mitigating circumstance and is taken into account when assigning punishment.
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№ 3:
After receiving these documents, if the criminal case is still at the stage of preliminary investigation, it is necessary to submit a petition to the investigator (inquiry officer) with a request to terminate the criminal case in connection with the reconciliation of the parties. The received statement from the injured party should be added to the case materials. If the application is denied, you can appeal such refusal to the head of the investigative body, the prosecutor or the court, or re-apply it directly when the case is considered in court.
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I agree with the opinion of most of my colleagues...
In accordance with Article 25 of the Code of Criminal Procedure of the Russian Federation, the court, as well as the investigator with the consent of the head of the investigative body or the interrogating officer with the consent of the prosecutor, have the right
on the basis of an application from the victim or his legal representative, terminate the criminal case against a person suspected or accused of committing a crime of minor or medium gravity, in cases provided for in Article 76 of the Criminal Code of the Russian Federation, if this person has reconciled with the victim and made amends for the harm caused to him.
Thus, the provisions of Article 25 of the Code of Criminal Procedure of the Russian Federation constitute a procedure - they imply the possibility of terminating a criminal case in connection with the achievement of reconciliation between the parties.
The rule itself is enshrined in Article 76 of the Criminal Code of the Russian Federation, according to which a person who has committed a crime of minor or moderate gravity for the first time can be released from criminal liability if he has reconciled with the victim and made amends for the harm caused to the victim.
Those. There are a number of circumstances that serve as conditions for terminating a criminal case:
1) this crime was committed for the first time, i.e. Such a person should not have any unexpunged or unexpunged convictions, incl. and unexpired probation with suspended sentence;
2) the rule applies only to crimes of minor and medium gravity (observed in your case);
3) reconciliation has been achieved between the parties (the victim has voluntarily forgiven the guilty person), i.e. it is not binding or conditional;
4) the harm to the victim is made up for (no receipts or promises to compensate for damage in the future will be accepted, only FULL compensation for harm and, moreover, until the issue of terminating the criminal case is resolved).
These are all conditions, each of which must be met.
This procedure is carried out by the victim submitting a written petition to the law enforcement officer with a specific request to terminate the case.
As practice shows, termination of a criminal case on this basis is possible only at the trial stage, i.e. trial CANNOT be avoided.
Moreover, in court, as a rule, the issue is resolved at the preparatory stage, i.e. immediately after explaining to the victim the right to file a petition (the accusation is not announced and the evidence is not examined).
It should be noted that the opinion that the victim is on your side means absolutely NOTHING, i.e. everything can change.
Please note that some victims FORGET to submit such a petition as soon as they are compensated for the damage!!! Therefore, it is better to do this in court.
Finally, keep in mind that the termination of a criminal case on the basis of Article 76 of the Criminal Code of the Russian Federation is the RIGHT of the court, which does not have the character of an OBLIGATION for it!!!
Good luck!
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№ 5:
After the criminal case has been submitted to the court and a preliminary hearing has been scheduled, at this stage you can file a motion to dismiss the criminal case in connection with the reconciliation of the parties. Often, courts require the presence of the victim at the court hearing in order to find out his position regarding reconciliation. The law does not contain a requirement for the mandatory presence of the injured party, but it is still better to ensure the appearance of the victim. If the court, at the stage of the preliminary hearing, refuses to terminate the criminal case due to the reconciliation of the parties, then such a petition can be submitted again at the stage of the trial.
Reconciliation with the victim
There are crimes that are committed what is called “stupidity.” But the crime is committed, what next? Criminal record, ruined life? No, if the crime is of minor or moderate gravity, committed for the first time, then it is possible, with the correct construction of the defense, to get away with “a slight fright.”
Reconciliation with the victim, under certain criteria, can lead to such a favorable outcome as the termination of the criminal case. So, a criminal case against one of my clients, who was accused of theft under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation was terminated on the specified grounds.
According to investigators, it was theft.
“With selfish intent, which was aimed at stealing the specified phone, she committed a criminal act. Walking close to the place where the forgotten phone lay, blocking the space in front of the shelf with the phone from the customer standing behind her, she secretly stole the property, covering it with her hand from above. There were no funds in the subscriber account of this mobile phone. The accused fled the scene of the crime with the stolen property. By her actions she caused significant material damage to citizen F.I.O.”
This is an excerpt from the official decision of the investigator.
According to our version, it is a find, because... The phone left the owner's possession through no fault of the suspect.
The situation is actually quite common and controversial. The Supreme Court of the Russian Federation has not yet expressed its opinion on such cases, as far as I know. In the Moscow region the practice is very bad, the Moscow City Court reinforces it, pointing out that theft was committed. I already talked about a similar case here. This has not yet been addressed to the new cassation court.
Defense tactics and techniques:
Version No. 1.
Ivan’s actions contain the necessary defense. Even if Ivan’s actions are assessed from the point of view of exceeding the limits of necessary defense, then in any case there is no corpus delicti, since according to paragraph. 3 clause 11 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated September 27, 2012 No. 19 “On the application by courts of legislation on necessary defense and infliction of harm when detaining a person who has committed a crime” - the intentional infliction of moderate or minor harm to health or beating on an offender does not entail criminal liability , as well as causing any harm through negligence, if this was a consequence of the actions of the person defending himself when repelling a socially dangerous attack.
Accordingly, current legislation does not provide for criminal liability for causing harm to health of moderate severity when the limits of necessary defense are exceeded.
Version No. 2.
The damage inflicted on the man was caused by Ivan through negligence. This event happened by accident when Ivan, trying to maintain his balance, grabbed the man around the shoulders.
Both voiced versions had the right to exist and had to be worked out during the defense.
How to write a statement?
The legislation does not contain a unified sample petition. The document is written in any form. The application can be accompanied by documentary evidence of the fact of compensation for damage. For example, this could be a receipt from the victim stating that he received money in a certain amount from the perpetrator.
Refunds must be within the law and may not violate the rights of third parties.
The amount of compensation is determined by the injured party. At the same time, she has the right not to disclose in court the method of compensation for damage, including the amount of compensation.
If the accused, for objective reasons, cannot personally make amends for the harm caused, then, at his request, other persons can do this.
The document is submitted in person or through a representative acting by proxy. If the case is already in court, and the victim filed a request for consideration in his absence, then the application for reconciliation can be sent by registered mail with notification. But, as practice shows, petitions are more often granted if the crime victim is present in the courtroom.
Nuances of reconciliation of the parties
What does reconciliation of the parties mean? First, the accused must make a formal apology to the victim. This means that such an action must be performed in front of witnesses, otherwise the victim may even deny that such a thing happened. Secondly, the accused must make amends for all the harm he caused to the victim. This is expressed not only in an apology, but also in compensation for any damage caused. Both material and moral.
note
The amount of compensation that the accused must make to the victim is established not by the responsible authorities, but by the parties to the case themselves. They must discuss the current situation and come to a decision - how much money the one who committed the crime will be obliged to pay. It is important to ensure that the amount of the entire payment is adequate and exactly corresponds to the nature of the case in question and the damage caused.
The second important nuance of reconciliation is the drawing up of a statement by the victims. In it, he is obliged to indicate exactly what actions the accused performed in order for both sides of the case to achieve complete reconciliation. This could be an apology, some kind of compensation payments, an admission of guilt, repentance, and so on.
It is also worth noting that even if all the conditions were met, there was an official reconciliation, and the victim wrote the necessary statement, and agreed on compensation for damage - law enforcement agencies may refuse to close and terminate the case opened against the suspect.
After all, such an action is not their duty, it is their right. They can either satisfy the victim’s application or ignore it, continue the trial, etc. This is done mainly in cases where law enforcement officers involved in the case believe that there are no objective, compelling reasons to release the suspect from criminal liability.
Lawyer under 112 uk
Self-defense from attack! File a counterclaim and win in court! The best defense is an attack from a pre-emptive nuclear strike! This is what the American strategy for waging modern wars teaches, and the same should be applied in modern fights!
Yes, it all depends on specific people. The matter can be brought to court. It’s best for them to go to different apartments. Once it comes to a fight, murder is next in line. don't forget about the third party: the woman he lives with. She is in charge in this matter.
Ask casually whether the lawyer had to, under Art. 162 of the Criminal Code of the Russian Federation to participate in cases similar to yours, and how many of them resulted in moderate harm to health, is covered by robbery and additional qualifications under Art. Art. 115 or 112 of the Criminal Code is not required. A criminal case has been opened under Article 112 of the Criminal Code of the Russian Federation and the parties agree to reconciliation, write a statement to terminate the criminal case in connection with reconciliation, if they do not terminate it during the investigation, apply again in court. Knowledge of the essence of the case + the ability to connect everything into a logical chain + the ability to draw the proper conclusions from this chain + the ability to speak - you don’t need a lawyer, because no one will defend you as zealously as you do yourself. In addition, the accused must eliminate the harm caused by the crime, while the method and amount of compensation for damage is determined by the victim (clause 10 of the Supreme Court Resolution No. 19). IMPORTANT!
If it is decided to resort to the help of a mediator or the parties to the dispute are already participating in the conciliation procedure, this is not an obstacle to filing a claim in court (Part 3 of Article 7 of the Federal Law No. 193-FZ). One of these non-rehabilitative grounds (in this case, the fact that a crime was committed by a specific person must be proven in any case) is the termination of a criminal case in connection with the reconciliation of the parties. Here is a small example: Three people are standing on the street, drinking alcohol, a conflict arises between the two, as a result of which one of the drinkers pushes his drinking buddy in the chest, causing the latter to fall on his back and, when falling, hit his head on the curb, as a result of which the fallen person receives serious harm to his health.
Read other articles on the site:
- Why in different historical eras the production of counterfeit money
- Units for combating economic crimes and corruption
- Questioning of witnesses in a court hearing in civil proceedings
- Intentional infliction of less serious bodily injury Article 149
- Witnesses are removed from the courtroom after or before their interrogation
Dear colleagues, I wish each of us to hold high the title of lawyer, unswervingly adhering to the principles of impartiality and objectivity!
Reconciliation under Article 112
Good afternoon. It's OK. The main thing is to collect all the receipts, prepare a calculation of damages, i.e. the cost of gasoline for a trip to court, to the investigator, etc., the cost of treatment and medications. After this, you go to court with a claim for damages, there you ask for compensation for material damage by checks, and plus moral damage from the crime in the range from 50 thousand rubles to 500 thousand rubles. The judge will, of course, reduce your amount, but you will still receive compensation.
In my experience, I received from 50 to 150 for average harm, i.e., like you.
Termination of a criminal case through reconciliation of the parties is possible only with compensation for damage. Since in practice the case is dismissed in court, it is better to agree on reconciliation in advance and pay the money immediately before the hearing; the victim will immediately write a statement of reconciliation
Hello! Yes, they are included in the database of the Central Internal Affairs Directorate, since reconciliation of the parties is not a rehabilitative basis. Until the case is transferred to court, the case will not be stopped (INVESTIGATION STATISTICS) In court, stop and hand over the money.
Good luck. I want to work in the Ministry of Emergency Situations, but I was prosecuted under Article 112, but after reconciliation of the parties, the case will be closed. Can I work there? Firefighter.
