1. The operative part of the sentence, with the exception of the issues specified in Articles 306 and 308 of this Code, must contain: 1) a decision on the civil claim brought in accordance with part two of this article; 2) resolving the issue of material evidence; 3) decision on the distribution of procedural costs.
2. If it is necessary to make additional calculations related to a civil claim that require postponing the trial, the court may recognize the civil plaintiff’s right to satisfy the civil claim and transfer the issue of the amount of compensation for the civil claim for consideration in civil proceedings.
3. The operative part of the sentence must also contain an explanation of the procedure and deadlines for appealing it in accordance with the requirements of Chapter 45.1 of this Code, and the right of the convicted and acquitted person to petition for participation in the consideration of the criminal case by the court of appeal.
Commentary on Article 309 of the Code of Criminal Procedure of the Russian Federation
1. The commented article establishes what additional issues are subject to resolution in the operative part of the verdict (both acquittal and conviction).
2. A decision on a civil claim is made in cases where it was filed within the framework of a given criminal case (clause 19, part 1, article 299 of the Code of Criminal Procedure of the Russian Federation). The issue of physical evidence is resolved in the manner provided for in Art. 81–82 Code of Criminal Procedure of the Russian Federation. The distribution of legal costs occurs in the manner established by Art. 132 of the Code.
3. Part 2 of the commented article establishes that if there is insufficient accuracy in establishing the amount of claims, the court may recognize the civil plaintiff’s right to satisfy the civil claim and refer the issue of the amount of compensation to civil proceedings. At the same time, a conviction has prejudicial significance for decisions taken in civil proceedings, so the dispute can only concern the amount of amounts paid to compensate for the harm caused.
4. The issuance of an acquittal also does not exclude the possibility of filing a claim in court in civil proceedings, except in cases where the court has established the absence of a crime (Clause 1, Part 1, Article 24 of the Code of Criminal Procedure of the Russian Federation) or the person’s non-involvement in the commission of a crime ( clause 1, part 1, article 27 of the Code).
5. In the operative part of the sentence, in accordance with Part 3 of the commented article, information is indicated that the sentence can be appealed on appeal (Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation). This applies to both types of verdicts (both guilty and acquittal).
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Other issues in the operative part of the sentence
- Clause 1 Part 1 309 Code of Criminal Procedure
provides a decision in a civil suit
— clause 2 part 1 309 Code of Criminal Procedure
the fate of the material evidence is being decided (
Part 3 81 of the Code of Criminal Procedure
)
— clause 3, part 1, 309 Code of Criminal Procedure
decides on the distribution of procedural costs
- Part 2 309 Code of Criminal Procedure
it is decided to transfer the claim to civil proceedings
- Part 3 309 Code of Criminal Procedure
an explanation is given about the procedure and deadlines for appeal
- Part 3 309 Code of Criminal Procedure
clarification is given on the right to apply for participation
Additional Information
— paragraph 29
Plenum No. 55 in the verdict must resolve all issues from
309 Code of Criminal Procedure
Transfer of the claim
Transfer of claim
in civil proceedings instead of resolution on the merits
Article 309 of the Code of Criminal Procedure. Other issues to be resolved in the operative part of the sentence
1) The operative part of the sentence, with the exception of the issues specified in Articles 306 of the Code of Criminal Procedure and 308 of the Code of Criminal Procedure, must contain:
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Transferring a claim to civil proceedings
— Part 2 204 Civil Code
The limitation period for transferring the case is suspended
- Part 2 309 Code of Criminal Procedure
transfer of the claim to civil proceedings
— paragraph 38
Plenum No. 55 if calculations are required, the claim is not considered
—
clause 25
of Plenum No. 17 additional calculations, transfer to civil procedure
Practical aspects
Transfer of claim
in civil proceedings instead of resolution on the merits
1). a decision on a civil claim in accordance with Part 2 of this article;
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Destruction of material evidence
Evidence after
verdict, consequences of destruction (
clause 2, part 3, 81 Code of Criminal Procedure
)
2). resolving the issue of material evidence;
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- paragraph 34
Plenum No. 17, if the court forgot about the costs, it is decided after
Statement
Victim Statement
on reimbursement of expenses for a representative
3).
decision on the distribution of procedural costs.
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— Part 2 204 Civil Code
in a criminal case, the sentence is suspended until the verdict
— paragraph 38
Plenum No. 55 if calculations are required, the claim is not considered
—
clause 25
of Plenum No. 17 additional calculations, transfer to civil procedure
Transfer of claim
Transfer of claim
in civil proceedings instead of resolution on the merits
2) If it is necessary to make additional calculations related to a civil claim that require postponing the trial, the court may:
- recognize the right of the civil plaintiff to satisfy
the civil claim,
- and transfer the issue of the amount of compensation for the civil claim for consideration
in civil proceedings .
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— clause 9, part 3, 259 Code of Criminal Procedure
clarification of rights is indicated in the minutes of the meeting
3) The operative part of the sentence must also contain an explanation of:
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— 389.3 Code of Criminal Procedure
procedure for filing an appeal
— Part 1 389.4 Code of Criminal Procedure
the period for appeal is 10 days from the date of the verdict
Appeal period
Deadlines for appeal
sentence on appeal (
Part 1 389.4 of the Code of Criminal Procedure
)
- the procedure and terms for appealing it at the appeal stage;
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— clause 16, part 3, 259 Code of Criminal Procedure
information on clarification of the appeal procedure
- Part 3 389.6 Code of Criminal Procedure
petition for participation in the consideration of the complaint
Participation of the convicted person
Participation form
convicted at the appeal hearing
- on the right of a convicted and acquitted person to petition for participation in the consideration of a criminal case by an appellate court.
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Commentary to Art. 309 of the Criminal Code of the Russian Federation
This crime is one of the forms of opposition to justice, the interests of which will be its main object. As an additional object, a crime under Part 1 of Art. 309 of the Criminal Code of the Russian Federation, the interests of the accused, the defendant, the civil plaintiff, the civil defendant can act, and the crimes provided for in Part 2 - 4 of Art. 309 of the Criminal Code of the Russian Federation - property relations, health, honor, dignity and safety conditions for the lives of citizens.
The social danger of the crime under comment is that the commission of the actions specified in this norm may entail the adoption by the court of an illegal and unfounded decision or resolution, an illegal and unfounded conviction or acquittal. In addition, bribery and coercion of a witness, victim, expert, or translator prevent them from conscientiously performing procedural duties.
According to the legislative structure of Art. 309 of the Criminal Code of the Russian Federation is formulated in four parts: 1) bribery of a witness, victim, expert, specialist or translator; 2) coercion of these persons to give false testimony (expert opinion, specialist testimony, incorrect translation), as well as to evade testimony, combined with blackmail, threats of murder, harm to health, destruction or damage to the property of these persons or their loved ones; 3) coercion of the named persons, committed with the use of violence not dangerous to life and health; 4) bribery or coercion committed by an organized group or with the use of violence dangerous to the life and health of these persons.
All these actions can be performed at any stage of the criminal, civil, arbitration, and administrative process. These actions can be performed in advance - before the process, and even after it - in anticipation of a review of the relevant court decision.
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Course of Russian criminal law. Special part / Ed. V.N. Kudryavtseva, A.V. Naumova. M., 2002. P. 898.
The objective side of the crimes provided for in Parts 1 and 2 of Art. 309 of the Criminal Code of the Russian Federation, is carried out through action (bribery or coercion). The elements of crimes are constructed as formal and are complete from the moment the actions specified in the law are committed, regardless of whether the perpetrator achieves the required result.
Part 1 of Art. 309 of the Criminal Code of the Russian Federation provides for liability for bribing a witness, victim, expert, specialist or translator for the purpose of giving false testimony, false conclusions or incorrect translation.
Under bribery in Part 1 of Art. 309 of the Criminal Code of the Russian Federation should be understood as an illegal transfer to a witness, a victim for the purpose of giving false testimony, or an expert for the purpose of giving them a false conclusion or false testimony, a specialist for the purpose of giving them false testimony, as well as a translator for the purpose of making an incorrect transfer of money, securities, other property, as well as the illegal provision of services of a property nature to them for the commission of actions in the interests of the giver.
Thus, the subject of bribery in Art. 309 of the Criminal Code of the Russian Federation is similar to the subject of the crime in Art. Art. 290 and 204 of the Criminal Code of the Russian Federation. The content of the subject of bribery is disclosed in paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery.” The subject of bribery is, along with money, securities and other property, benefits or services of a property nature that are provided free of charge, but are subject to payment (provision of tourist vouchers, apartment renovation, construction of a summer house, etc.). Benefits of a property nature include, in particular, a reduction in the value of transferred property, privatized objects, a reduction in rental payments, and interest rates for using bank loans. The time of their transfer (before or after the commission of actions in the interests of the giver) does not affect the qualification of the act.
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Bulletin of the Supreme Court of the Russian Federation. 2000. N 4.
The transfer of illegal remuneration during bribery is considered completed from the moment the recipient accepts at least part of the transferred values.
If the named persons refuse to receive the subject of bribery, the actions of the perpetrator should be qualified under Part 3 of Art. 30 and part 1 art. 309 of the Criminal Code of the Russian Federation.
If the conditional transfer of valuables did not take place due to circumstances beyond the control of the persons who tried to transfer the subject of bribery, what they did should be qualified as an attempted bribery.
The expressed intention of a person to give money, securities, other property or to provide the opportunity to illegally use material services in cases where the person did not take any specific actions to implement the expressed intention cannot be qualified as attempted bribery.
When deciding the issue of liability under Part 1 of Art. 309 of the Criminal Code of the Russian Federation, it does not matter either the size of the bribe or the fact that the witness, victim, expert, specialist and translator did not fulfill the request of the person who committed the bribery. The actual fulfillment of the agreement reached is not included in this crime.
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Since the size of the bribe does not matter, the criminal case cannot be terminated due to the insignificance of the transferred amount or the value of the subject of bribery, provided that the intent to bribe is proven.
Responsibility of recipients of bribery under Art. 309 of the Criminal Code of the Russian Federation is not provided for, they are only responsible for false testimony, etc. (Article 307 of the Criminal Code of the Russian Federation).
Receiving the subject of bribery without the intention to perform the necessary actions should be qualified as fraud under Art. 159 of the Criminal Code of the Russian Federation.
The owner of valuables in such cases is liable for attempted bribery if the transfer of valuables was intended to accomplish the action he desired.
If a person receives money or other valuables from someone, allegedly for the purpose of bribery, and, without intending to do so, appropriates them, what he has done should also be qualified as fraud. The actions of the owner of valuables in such cases are subject to qualification as attempted bribery. It does not matter whether a specific person was named to whom the illegal reward was supposed to be transferred during bribery.
Part 2 Art. 309 of the Criminal Code of the Russian Federation provides for liability for forcing a witness, a victim to give false testimony, an expert to give a false conclusion or testimony, a specialist to give false testimony or an interpreter to carry out an incorrect translation, as well as forcing these persons to evade testifying, combined with blackmail, threat of murder, harm to health, destruction or damage to the property of these persons or their loved ones.
As can be seen from the content of the disposition of the norm in question, coercion of these persons to commit illegal actions is carried out by the guilty in two forms - in coercion to give false testimony (conclusion), to carry out incorrect translation and in coercion to evade giving testimony.
In this case, evading testimony should be understood as a person’s refusal to appear for questioning by the person conducting the inquiry, the investigator, the prosecutor, or the court, despite their summons, concealing his location, changing his place of residence, etc.
The procedural subjects specified in this norm are forced to commit acts for which they themselves bear criminal or procedural responsibility. Thus, they are harmed not only by the use of the methods of coercion specified in the law, but also by inducing them to illegal behavior for which punishment is provided.
In law enforcement practice, when applying the norm in question, there is a problem of understanding the term “testimony”. This problem is especially relevant when considering cases of private prosecution, when the perpetrator persuades the victim, under the threat of violence, not to change his testimony, but to “withdraw the statement,” i.e. stop criminal prosecution. In this case, the intent of the offender does not include forcing the victim to give false information about the circumstances of the incident, but forcing him to refuse a statement as a procedural basis for criminal prosecution. Consequently, in this case we can only talk about crimes against the person or property of a citizen, but not against justice.
When conducting a preliminary investigation, the question also often arises about the possibility of criminal prosecution under Art. 309 of the Criminal Code of the Russian Federation, if coercion to testify or to evade testifying took place at the time of the commission of a crime or immediately after its commission, when the preliminary investigation authorities have not yet become aware of the act committed, or when an eyewitness or victim is forced to give false explanations as part of the collection of verification information material before the initiation of a criminal case, when law enforcement agencies already have a report of a crime. Qualification problems also arise when a criminal case has been initiated, a person has given explanations as part of the verification material, but has not yet been summoned to the preliminary investigation body to testify, and at this moment pressure is put on him in order to induce him to give false testimony.
Due to the fact that in this situation, from the point of view of the Code of Criminal Procedure of the Russian Federation, there are no subjects of encroachment, such as the victim or witness, i.e. These persons are procedurally outside the scope of the preliminary investigation and trial, then the crime provided for in Art. 309 of the Criminal Code of the Russian Federation, is absent, but there is a crime against the person. The Supreme Court of the Russian Federation takes a similar position.
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A similar point of view was expressed earlier. See: Barysheva V. Responsibility for perjury and coercion to testify // Legality. 2003. N 5. P. 50.
Review of judicial practice in criminal cases of the Supreme Court of the Russian Federation for the second quarter of 2002. Resolution No. 155p02pr in the case of Shiganov and Admaev // Bulletin of the Supreme Court of the Russian Federation. 2002. N 12.
Coercion is mental violence against a witness, victim, expert, specialist or interpreter as a way to force them to give false testimony, conclusion, mistranslation or avoid testifying. Such mental influence is carried out through threats, an exhaustive list of which is given in the law. These include: blackmail, i.e. the threat of dissemination of disgraceful, as well as other information, the disclosure of which could damage the honor and dignity of the victim or his relatives, regardless of whether they really are such for a given person, whether they correspond to the truth or not; threat of murder, harm to health, threat of destruction or damage to the property of these persons or their loved ones.
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See: paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 4, 1990 No. 3 “On judicial practice in cases of extortion” (as amended in 1996) // Collection of resolutions of the Plenum of the Supreme Court of the Russian Federation on criminal cases / Compiled . S.G. Lastochkina, N.N. Khokhlova. 4th ed., revised. and additional M., 2004. P. 206.
The threat to commit other actions not specified in the law does not constitute the crime in question.
To qualify such actions, it does not matter whether the perpetrator intended to carry out the threat. It is important that it is significant for the person who is forced to give false testimony, false conclusion, incorrect translation, and is perceived by him as a real danger and is in a causal connection with coercion. The form of expression of the threat does not matter for qualification.
Coercion to give false testimony, imprisonment, incorrect translation or evasion of testimony is considered completed from the moment the corresponding demand is presented, supported by a threat, regardless of whether the perpetrator has achieved his goal or not. If the threat is fully or partially carried out, the deed is further qualified under the relevant article of the Criminal Code of the Russian Federation, except for the cases specified in Parts 3 and 4 of Art. 309 of the Criminal Code of the Russian Federation.
As explained in one of the decisions of the Supreme Court of the Russian Federation, the actions of a person who invited another person to give false testimony, but did not threaten the latter with murder, violence, or destruction of property, do not constitute the crime in question.
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Bulletin of the Supreme Court of the RSFSR. 1962. N 8. P. 11.
Influencing a witness, victim, expert or translator with the aim of getting them to give false testimony (conclusion) in another way (requests, persuasion, attempts to mollify) may entail liability not under Art. 309 of the Criminal Code of the Russian Federation, but as incitement to give false testimony under Art. Art. 33 and 307 of the Criminal Code of the Russian Federation.
The subjective side of the crime is expressed in direct intent.
In bribery, the perpetrator is aware that he is providing a witness, victim, expert or translator with a specific property benefit for giving false testimony, conclusion, translation, and wants to commit similar actions.
A person who forces the giving of false testimony, imprisonment, translation or evasion of testimony is aware that he is forcing, by suppressing the will of the victim through blackmail, threats of murder, harm to health, destruction or damage to property, persons specified in the law or their relatives to give false statements. testimony, conclusion, translation, or to evade testifying, and wishes to do so.
The purpose of the crime is to obtain false testimony, imprisonment, mistranslation or refusal of testimony.
The motives for the crime in question can be different: revenge, self-interest, the desire to avoid prosecution, etc.
The general subject of the crime is a sane person who has reached the age of sixteen.
The subject of a crime under Art. 309 of the Criminal Code of the Russian Federation, there can be both participants in the process (for example, a plaintiff, a defendant, an accused, another witness, etc.) and third parties. When an organized group operates, the perpetrator of bribery or coercion may be one person, but he acts on behalf of or with the consent of the group.
Part 3 Art. 309 of the Criminal Code of the Russian Federation provides for liability for committing a crime with the use of violence that is not dangerous to the life and health of these persons. Such violence should be understood as beatings or other violent acts associated with causing physical pain to the victim or restricting his freedom (tying his hands, using handcuffs, leaving him in a closed room, etc.).
According to Part 4 of Art. 309 of the Criminal Code of the Russian Federation, a particularly qualified type of crime is the actions provided for in Part 1 (bribery) and Part 2 (coercion), if they were committed by an organized group or with the use of violence dangerous to life or health, i.e. such violence that resulted in the infliction of grave and moderate harm to the health of the victim, as well as the infliction of minor harm to health, causing a short-term health disorder or a minor permanent loss of general ability to work. This type also includes violence, although it did not cause harm to the health of the victim, but at the time of use it created a real danger to his life or health.
At the same time, taking into account that the sanction of Part 4 of Art. 309 of the Criminal Code of the Russian Federation provides for imprisonment for a term of up to seven years, and the sanction of Part 1 of Art. 111 of the Criminal Code of the Russian Federation - up to eight years, we can conclude that the concept of violence dangerous to life or health, in the composition provided for in Part 4 of Art. 309 of the Criminal Code of the Russian Federation, covers only harm to health of moderate severity. When causing serious harm to health, the person’s actions are classified as a set of crimes provided for in Part 4 of Art. 309 and art. 111 of the Criminal Code of the Russian Federation.
The concept of an organized group is given in accordance with Part 3 of Art. 35 of the Criminal Code of the Russian Federation, and is also disclosed in paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 N 29 “On judicial practice in cases of theft, robbery and robbery.”
If the crimes in question are recognized as committed by an organized group, the actions of all accomplices, regardless of their role in the crime, are subject to qualification as co-perpetrators without reference to Art. 33 of the Criminal Code of the Russian Federation.
The issue of criminal liability of persons who fulfilled the demands of the subject of a crime under duress must be resolved taking into account the provisions of Art. 40 of the Criminal Code of the Russian Federation on physical and mental coercion.
