Victim in criminal law: description, types, rights and obligations

Contents of Art. 42 Code of Criminal Procedure

The victim is a person who has suffered physical or other harm

The article in question includes information such as:

description of the victim in criminal law;
what rights does the victim have under criminal law;
what are the rights of the victim in criminal law;
what responsibility is assigned to the victim if he does not fulfill his duties?

Basic provisions

The main provision in Article 42 of the Code of Criminal Procedure considers the definition of the victim in criminal proceedings. Such a person is someone who has suffered harm due to a crime committed. A legal entity will be considered a victim if it suffered physical or material harm due to the commission of illegal actions.

When a criminal case is initiated, at the same time a decision is made to recognize the victim. The decision is formalized by a resolution or judicial ruling of the investigator, judge or inquiry officer.

In the absence of information about the person who has suffered harm, recognition of the victim occurs after this information is received.

Types of victim

Causing harm can be material, moral, mental

Victims can be conditionally classified according to several criteria. These include:

By legal nature: private (citizen, person) and legal entities (organizations, enterprises).
According to the type of harm caused: material, moral, mental, environmental, humanitarian and others.
According to the reality or possibility of harm: those who have already been harmed and those who are potentially threatened with harm.
According to the severity of the harm: minor severity, moderate severity, severe and especially severe.
According to the characteristics of the victim: subjects with common characteristics and subjects with special characteristics (pregnant woman, government representative, etc.).

In what cases is a person recognized as a victim?

To recognize a person as a victim, a combination of legal and factual circumstances is necessary. Factual circumstances – the fact of damage (material, moral, etc.). Legal grounds include the decision of the inquiry officer, judge or investigator.

In the event that a person dies due to a criminal act, the closest relative is considered the victim.

Minor victim

A minor is a person who has not reached 18 years of age. The minor has a special place. A crime committed against a minor means the commission of a qualified crime. The special situation is also confirmed by Article 63 of the Criminal Code of the Russian Federation: committing a crime against a minor is an aggravating circumstance.

The role of a minor victim has the same importance as that of an adult. According to statistics, the number of crimes committed against minors is constantly growing.

Can a legal entity be recognized as a victim of a crime?

As a result of committing a crime, damage to the property or business reputation of a legal entity may be caused. In this case, in accordance with Article 42 of the Code of Criminal Procedure of the Russian Federation, it can be recognized as a victim.

The decision to recognize the victim as a victim must be made immediately from the moment of initiation of the criminal case and formalized by the relevant resolution of the inquiry officer, investigator, judge or court ruling.

If there is no information about a person who has been harmed by a crime at the time of initiation of a criminal case, the decision to recognize him as a victim is made after receiving information about this person.

Therefore, if your organization has suffered from criminal acts, it is very important to provide timely information about this in a proactive manner, and not wait until they find you and ask.

What does the status of a victim in a criminal case mean for your organization?

It is a mistake to think that apart from the loss of time and nerve cells, this status does not give anything.

Many people remember the spectacular phrase from the film “Moscow Doesn’t Believe in Tears!”:

“Evil must and will be punished!”

Compliance with the rules governing the participation of a legal entity in the status of a victim in criminal proceedings is intended to guarantee the rights of the victim of a crime to access justice, judicial protection and compensation for damage caused to him.

That is why it is very important to take an active part in the investigation of a criminal case and monitor the progress of actions provided for by the Code of Criminal Procedure of the Russian Federation, without relying solely on the strictly conscientious performance of official duties by the representative of the investigation and inquiry and the supervisory department represented by the prosecutor's office.

Active participation includes giving testimony, presenting evidence, filing petitions, drawing up complaints against actions (inaction) and decisions of the inquirer, investigator, prosecutor and court, insisting on recognition as a civil plaintiff and taking measures to secure a civil claim, etc.

For a legal entity, from a practical point of view, the most important thing is the right to file a civil claim in a criminal case containing a claim for compensation for property damage, if there is reason to believe that this damage was caused directly by a crime.

Relatively recently, the Supreme Court of the Russian Federation issued Resolution of the Plenum of October 13, 2022 No. 23 “On the practice of courts considering a civil claim in a criminal case”, dedicated to problematic issues of considering civil claims in criminal cases.

It should be remembered that the burden of proving the circumstances of the case, including the nature and extent of the harm caused by the crime, lies with the authorities conducting the criminal proceedings. And this is logical and understandable, because a legal entity or organization recognized as a victim in a criminal case does not have a sufficient and necessary set of tools and resources aimed at collecting and recording evidence. Therefore, it is important not to withdraw from participation in the investigation of a criminal case, but, using your procedural status, to demand from the inquiry officer/investigator to provide information about the measures and actions he has taken in order to prove the nature and extent of the harm and to insist on avoiding red tape and inaction. And it is here that it is appropriate and relevant to recall the expression “Delay is like death” (Periculum in mora, Latin), the authorship of which is attributed to the Roman historian Titus Livius. When collecting and recording evidence, you need to act today, now, immediately, otherwise the situation will change and the opportune moment will be missed, and the evidence will be irretrievably lost.

And although any persons authorized in accordance with the Civil Code of the Russian Federation to represent its interests can act as representatives of a civil plaintiff, which is a legal entity, often in-house lawyers in an organization, due to the specifics of their activities, do not know all the subtleties and features of the procedure for filing and resolving a civil claim. claim in criminal proceedings, its basis and subject matter - it is not so easy to switch from corporate issues and contractual work to criminal procedural law.

In accordance with Part 1 of Article 45 of the Code of Criminal Procedure of the Russian Federation, lawyers can be representatives of the victim and civil plaintiff. But just in case, it is necessary to keep in mind that the principles of both process and substantive law in civil and criminal cases are completely different, and therefore a lawyer specializing, for example, in providing legal assistance in cases of causing harm to life or health or related sale of narcotic drugs, it will also be difficult to switch to civil legal issues related to compensation for damage to property or business reputation of a legal entity.

Therefore, it is important, as usual, to find a “golden mean”. Those who seek will definitely find!

If you need legal assistance in representing the interests of a legal entity in criminal proceedings, call me or leave your request!

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Theft is material damage

In other cases, Article 42 of the Code of Criminal Procedure can be applied:

Citizen A. was attacked by criminals. The investigator opened a criminal case on the fact of robbery and made a decision that recognizes the citizen as a victim;
during the trial of a theft by person R. The court made a decision on further investigation, as a result of which not only citizen I., but also citizen P was recognized as the victim;
There was a fire in an abandoned and old building. The criminal was caught in hot pursuit. But they could not determine who suffered the damage. It was then established that the premises are owned by a legal entity. It will suffer;
On September 29, 2015, a hearing took place regarding the accusation of one person. In it, citizen V. accuses citizen K. of slander. The court found the citizen’s evidence sufficient to recognize her as a victim and accepted the verdict of the prosecution against citizen K.

What decisions are most often made on the basis of Article 42 of the Code of Criminal Procedure

Based on Article 42 of the Code of Criminal Procedure, various decisions are made:

the person has received the status of an injured party;
the person is not recognized as a victim;
the status of the victim changes. Perhaps even the accused;
by means of a certain decision the person is excluded from the number of victims.

This list can be continued, but the cases listed are the most common.

Refusal: in what cases is it possible?

If there are no necessary grounds, then the assignment of victim status may be denied. If a person has not received moral, material or property damage, then he cannot be recognized as a victim.

If a refusal is accepted, but the person actually suffered one type of harm, then such a decision can be challenged. Often those who have received moral harm are not recognized as victims.

Change of jurisdiction

Criminal jurisdiction may be changed under certain circumstances

When jurisdiction changes, the case is transferred from the court that has jurisdiction by law to another court on the basis of legislation.

Jurisdiction may be changed based on:

Requests from one of the parties.
Actions of the chairman of the court:

if all judges participated in the proceedings of the case, what is the basis for their recusal;
not all participants live in the territory covered by jurisdiction and all agree to changes in jurisdiction;
the presence of circumstances that indicate a lack of objectivity of the court when making decisions.

Victim

To the victims

is an individual to whom a crime has caused physical, property, or moral harm, as well as a legal entity in the event of damage to its property and business reputation by a crime. The decision to recognize the victim as a victim is formalized by a resolution of the inquirer, investigator, prosecutor or court (Article 42, paragraph 1 of the Criminal Procedure Code of the Russian Federation).

Victim's testimony

– This is a type of evidence sources. In cases of private prosecution, he acts as a private prosecutor, and when a civil claim is brought (by him, by his representative), as a civil plaintiff.

If a legal entity is recognized as a victim, its rights are exercised by a representative (Part 9 of Article 42 of the Criminal Procedure Code of the Russian Federation).

Article 52 of the Constitution of the Russian Federation states: “The rights of victims of crimes are protected by law. The state provides the victim with access to justice and compensation for damage caused.” This requirement predetermines the vesting of the victim with a number of procedural rights specified in Art. 42 of the Criminal Procedure Code of the Russian Federation, in addition, they are specified and supplemented in relation to the relevant actions and stages of the process provided for by law. Thus, during interrogation, the victim enjoys the rights provided for in Art. 189 and art. 190 of the Criminal Procedure Code of the Russian Federation.

Using the rights granted to him, the victim can:

prove that a crime has been committed and that harm has been caused to him by this crime;
prove that the crime was committed by the accused, i.e. the defendant;
prove that the accused is guilty of committing a crime;
defend one’s position on the issue of the criminal legal classification of the actions of the accused (defendant), and in court – on the measure of punishment.

In addition, the victim has the right to demand compensation for property and compensation for moral damage caused to him by the crime.

The victim and his legal representative have the right to participate in the criminal prosecution of the accused. To participate in this, the victim uses the rights granted to him by Art. 42 of the Criminal Procedure Code of the Russian Federation.

When the consequence of a crime is the death of the victim, the rights of the victim (provided for by the provisions of Article 42 of the Criminal Procedure Code of the Russian Federation) pass to one of his close relatives. In this case, a close relative must be recognized as a victim.

In addition to rights, the legislator provided several responsibilities for the victim. The victim has no right:

evade appearing when summoned by an inquiry officer, investigator, prosecutor or in court;
knowingly give false testimony or refuse to give testimony;
disclose data from the preliminary investigation (Part 5 of Article 42 of the Criminal Procedure Code of the Russian Federation).

For failure to fulfill these duties, the legislator provided for the liability of the victim: for giving knowingly false testimony (in accordance with Article 307 and Article 308 of the Criminal Code of the Russian Federation) and for disclosing information from the preliminary investigation (in accordance with Article 310 of the Criminal Code of the Russian Federation).

Rights and obligations of the victim in criminal proceedings

The rights of the victim of a violation must be protected by law enforcement officials. Part 2 of Article 42 of the Code of Criminal Procedure lists the rights of the victim. In addition to rights, he also has some responsibilities. They are defined in Part 5 of Art. 42 Code of Criminal Procedure. This part also provides for actions or inactions of the victim that are prohibited. For example, in paragraph 1, the victim cannot fail to come when called by the investigator or prosecutor.

Appointment of forensic examination

If an examination is necessary, the investigator makes and makes a decision on this. The examination is carried out by forensic experts and other persons who have certain skills and knowledge. The investigator is obliged to familiarize the suspect, the accused, the defendant's defense attorney, the victim, and the victim's representative with the decision to conduct an examination. The investigator explains to these persons the rights that are provided for in Art. 198 Code of Criminal Procedure. A protocol is drawn up and signed indicating that persons are familiar with the resolution.

An examination carried out in relation to a victim or witness is carried out only with their consent or with the consent of their legal representative. Consent is provided in writing. Even before a criminal case is initiated, an examination may be carried out.

How to obtain victim status

The investigator, inquiry officer or judge makes a decision to recognize the status of the victim. This decision is made from the moment a criminal case is initiated. If there is no information about a person, then the status of a victim is acquired when the information is received by law enforcement officials.

What is the right of the victim in the proceedings?

The rights of the victim are interconnected and interdependent

The victim has the following rights:

The ability to receive information about the charges that have been brought against the accused of committing a crime.
Availability of the right to provide evidence and testimony.
Possibility of refusing to provide evidence against yourself or your relatives.
Availability of the right to file petitions and challenges.
Possibility of providing testimony in your native language or using the services of an interpreter.
The right to have a representative.
Taking part in investigative processes.
The right to familiarize yourself with documents and receive copies of them.
Participation in legal proceedings.
Possibility of filing complaints in court against judges and law enforcement officers.
Possibility of getting acquainted with the materials of the criminal case, subject to their non-disclosure.

The victim has the right to claim material compensation for the damage caused as a result of the violation and for the losses he suffered during the process.

Responsibilities of the victim

The main responsibilities of the victim include:

Cooperation with law enforcement agencies.
Giving evidence at the appointed time at the department.
Provide evidence and do not hide it.
It is prohibited to give false testimony in a case. The victim is warned about this in advance. However, the responsibility of the victim does not include the obligation to testify against himself and his relatives, which is stipulated by Art. 51 of the Constitution of the Russian Federation.
Keep information that is relevant to the case secret. If they are disclosed, liability arises under Art. 310 CC.

What the victim has no rights

In administrative proceedings, the rights and obligations of a citizen coincide with those that a person has in criminal proceedings. There are some actions that are prohibited by law on the part of the victim. They are provided for in Part 5 of Art. 42 of the Code of Criminal Procedure of the Russian Federation:

do not come when called by the investigator or the court;
give false information about the case or refuse to comment on it;
disclose information related to the investigation of the case, if this is prohibited under Art. 161 CC;
do not provide a sample of your handwriting for comparison during the examination.

A person cannot be exempted from these requirements.

Once again about the question of who is the victim in the event of liquidation of a legal entity.

Recently I had to defend a citizen accused under Part 4 of Art. 264 of the Criminal Code of the Russian Federation. The investigator recognized as a victim the nephew of a woman who died in a traffic accident and had no close relatives. This victim behaved quite aggressively towards my client, categorically refusing to accept any material compensation or apology, objecting to the consideration of the case in a special manner.

Understanding that with such a negative victim, the sentence could be very harsh, prompted me to find a way out. I prepared a petition to the court to exclude the nephew of the deceased from the number of persons participating in the case, since he was illegally recognized as a victim.

I justified my petition by the fact that from Part 8 of Article 42 of the Code of Criminal Procedure of the Russian Federation it follows that in criminal cases involving crimes that resulted in the death of a person, the rights of the victim provided for in this article pass to one of his close relatives.

The nephew is not included by virtue of Art. 5 of the Code of Criminal Procedure of the Russian Federation to close relatives of the deceased person, i.e. in this case, the investigator could not recognize him as a victim. In addition, I indicated in the petition that the Plenum of the Armed Forces of the Russian Federation adopted on June 29, 2010 Resolution No. 17 “On the practice of application by courts of norms regulating the participation of the victim in criminal proceedings,” which explained that: taking into account that the list of close relatives indicated in the law, is exhaustive, relatives not named in paragraph 4 of Article 5 of the Code of Criminal Procedure of the Russian Federation, as well as other persons (for example, neighbors, acquaintances of the deceased), cannot be recognized as victims. The court granted this petition, but (!) appointed a lawyer as a representative of the victim ( Nothing like this is allowed in the Code of Criminal Procedure of the Russian Federation). The court did not accept my objections that a representative could represent the interests of any specific existing person. If there is no victim in the case, then even more so there cannot be his representative.

Nevertheless, the case was considered with the participation of such a “strange” representative of a non-existent victim, but since the verdict suited the defense, we did not appeal it.

This example characterizes the courts’ understanding of what a victim in a criminal case is, or rather, misunderstanding.

On the pages of this site, I read an interesting article by lawyer Morokhin Ivan Nikolaevich entitled “Participation in the criminal process of a representative of the victim - a legal entity after its liquidation”, which also provides a link to a publication on this topic in the journal “Criminal Process”. Disagreement with the proposal of the authors of the publication that former founders of a legal entity should be involved as victims in such cases prompted them to write the article.

Here I would like to outline my vision of the situation described by Ivan Nikolaevich.

Art. 42 of the Code of Criminal Procedure of the Russian Federation establishes that a victim is an individual to whom a crime has caused physical, property, or moral harm, as well as a legal entity in the event that a crime causes damage to its property and business reputation.

Let's consider the case described by Ivan Nikolaevich, when after the initiation of a criminal case a legal entity was liquidated and a representative of a non-existent victim came to court.

The crime itself, as the investigation believed, caused property damage to a legal entity. The crime, when it is being investigated, is already over. Thus, the investigator or the court examines the past, already accomplished crime event, the material expression of which was the infliction of property damage to a specific subject of law, which is a legal entity.

At the time of the commission of a crime against the property of a legal entity, was any harm caused to its participants, if we are talking about an LLC, or to shareholders, if we are talking about a JSC? The answer to this question, naturally, is negative, since a positive answer will have to admit that participants or shareholders are the owners of the organization’s property, which contradicts the very design of a legal entity endowed with independent legal personality.

Let us turn again to Art. 42 of the Code of Criminal Procedure of the Russian Federation. Unlike, for example, civil or arbitration proceedings, where the parties can be replaced by legal successors, the Code of Criminal Procedure of the Russian Federation does not allow the replacement of the victim by his legal successor. The Code of Criminal Procedure of the Russian Federation speaks of only one such case of transfer of the rights of the victim to close relatives if the consequence of the crime was the death of the person.

In other words, if a victim dies from theft, robbery, etc., then his rights as a victim do not pass to anyone. The reason for the lack of succession on the side of the victim is simple. The victim of a crime is the victim. Criminal law, in contrast to civil law, which mainly regulates property relations based on the principles of equality of participants, has different goals. Art. 43 of the Criminal Code of the Russian Federation provides that punishment is applied in order to restore social justice, as well as to correct the convicted person and prevent the commission of new crimes.

The victim has the right to speak out about the punishment. How can such rights be granted to a person who has not suffered a crime? Thus, we can conclude that the rights of the victim are associated with his person and cannot be transferred or transferred to anyone, with one exception described above.

A crime against property gives rise to civil and criminal consequences. You can become the legal successor of a crime victim in property relations. In terms of the status of the victim, any legal succession is simply absurd, since we are not talking about the transfer of property rights. There can only be one victim. Although in the case of, for example, the transformation of a legal entity, it is possible to talk about recognizing the legal successor as a victim.

Of course, regarding legal entities, all my logic can be questioned, since unlike a citizen who experiences various negative emotions from a crime committed against him, a legal entity does not suffer anything as a result of the crime, except for the loss of property or damage to business reputation.

In the case described in the above article, it is not about succession, but about the liquidation of a legal entity.

From Art. 61 of the Civil Code of the Russian Federation it follows that the liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons , except for cases provided for by federal law. Thus, if in the manner provided for in Art. 63 of the Civil Code of the Russian Federation, the right of obligation of a liquidated legal entity in relation to the person who committed the crime was not transferred to its founders (participants), then they cannot even be its legal successors within the framework of an obligatory legal relationship, i.e. cannot recover the amount of damage caused to the organization by embezzlement.

Moreover, even if this legal entity were a party to a civil dispute, then if it were liquidated during the period of the dispute, the proceedings would be terminated, since there is no succession during liquidation.

There is a widespread practice of arbitration courts on claims of former participants of legal entities, when tax authorities exclude organizations that do not carry out activities from the Unified State Register of Legal Entities, but these legal entities remain in ownership of property. Courts, as a rule, indicate in their decisions that participants could distribute the organization’s property only at the liquidation stage. If the legal entity is liquidated and no distribution occurs, then the courts note that the participants of the legal entity are not its legal successors by virtue of Art. 61 of the Civil Code of the Russian Federation, and cannot claim property that was owned by a liquidated organization, since transferring property into their ownership requires a legal basis, which does not exist in this case.

Summarizing the above, we can conclude that the former participants of a legal entity, and even then only those to whom, during liquidation, the right to claim the organization against the accused was transferred, can at most be civil plaintiffs in a criminal case, but not victims. I would like to know who the authors of the article in the journal “Criminal Procedure” would propose to recognize as victims if we were talking about a liquidated large joint-stock company with thousands of shareholders.

I believe that the existing misconceptions of investigators, prosecutors and judges are simply due to the common understanding that since there is a criminal case, there must be a victim. This position is at odds with the law and leads to absurd conclusions.