Rights and obligations of the victim during the preliminary investigation

The fine line of victim status

In the criminal procedural practice of the board, we are faced with the problem of protecting the rights and legitimate interests of principals - relatives of the victim who died due to an illness not related to the crime.

This important issue is not regulated by law. In particular, what should an investigator do in the event of the death of a victim, if it did not occur as a result of the commission of a crime; what grounds are acceptable for recognizing relatives as victims; In what cases, when making a decision to refuse to recognize the victim status of relatives, are the actions of the investigator legal and justified?

As one of the legal guarantees for the protection of the individual, Part 8 of Art. 42 of the Code of Criminal Procedure of the Russian Federation provides for in criminal cases of crimes the consequence of which was the death of a person, the possibility of transferring the rights of the deceased victim to close relatives and (or) close persons, and in the absence of such or the impossibility of participation - to one of the relatives. But even in this case, the actions of the investigator are not procedurally indicated. As for recognizing as victims the relatives of a person who died as a result of illness, this is not regulated at all.

Having studied law enforcement practice in detail1, we found that in a number of cases family members of victims who died not as a result of a criminal attack participated in criminal proceedings as victims.

In Resolution No. 16-P of July 14, 2011, the Constitutional Court of the Russian Federation drew attention to the fact that the state must create legal guarantees for the protection of the honor and good name of the deceased, maintaining a worthy attitude towards him, which, in turn, implies the obligation of the competent authorities to proceed from the need ensuring close relatives of the deceased have access to justice and legal protection in full.

For example, a victim in a criminal case takes an active part in the investigation of the circumstances of the case, uses and is guided by the rights granted to him by Part 2 of Art. 42 of the Code of Criminal Procedure, gives testimony, provides evidence, makes fundamentally important petitions, participates in investigative actions, supports and, within the limits of his capabilities, acts on the side of the prosecution, assists in building a version of the crime committed against him, and suddenly dies suddenly from a serious illness. The death of a victim as a result of illness in most cases leads to the fact that the investigator loses the most important participant in the process on the prosecution side and, to a certain extent, the primary evidence base.

Often, when the death of a victim occurs at the time of the commission of a crime, the investigator is initially in a situation of non-obviousness and lack of necessary data that the victim could tell him if he remained alive. So what is the fundamental difference for the legislator if, for example, the victim died from gunshot wounds inflicted on him, and in this case his relative is recognized as the victim? At the same time, if the victim received a gunshot wound, but remained alive, and a little later died from the consequences of coronavirus infection, the recognition of his relative as a victim by the investigator is not provided for by the Criminal Procedure Code.

In this example, the actions of the investigator look, in my opinion, paradoxical and absurd. In this case, the criminal procedural legislation does not provide the investigator with a regulated right to recognize the relatives of the deceased as victims. However, at the same time, the relatives of the victim continue to have the necessary information, documents and other possible sources of information, and wish, as participants in the criminal process, to provide it to the investigator in order to solve the crime committed against their relative (who died as a result of illness), and to identify those responsible for the crime.

For example, in cases of investigation of crimes against the person (attempted murder, bodily harm, etc.), the relatives of the deceased victim are in a situation of threat to their life and health due to the fact that they continue to actively participate in the investigation of the crime, but do not have status of victims.

According to Art. 22 of the Code of Criminal Procedure, the victim, his legal representative and (or) representative have the right to participate in the criminal prosecution of the accused. Norm clause 1, part 1, art. 6 of the Code protects the rights and legitimate interests of individuals and organizations who are victims of crimes. Thus, criminal proceedings are aimed, among other things, at protecting the rights of the victim, and his relatives can be recognized as victims, but only if the victim died as a result of a crime committed against him (a gunshot attack, for example) - that’s where the fine line is. The question arises: how to “erase” this line; How can a relative of a deceased victim justify that this crime violated his rights and legitimate interests and caused damage, so that the investigator recognizes his right to receive the status of a victim or a representative of a victim.

The Constitution of the Russian Federation enshrines the principles of state protection of personal dignity, the right of everyone to protect honor and good name, competitiveness and equality of parties to legal proceedings, state guarantees, including judicial protection of the rights and freedoms of man and citizen. I believe that in situations that are not clearly regulated at the legislative level and relate to the human right to protect the rights and interests of a deceased relative, it is necessary to be guided by Art. 5 of the Code of Criminal Procedure, which directly indicates the persons who are covered by the concept of “close relatives”. The petition should substantiate the reasons and threats as a result of which the life and health of a relative of the deceased victim could be harmed by persons who committed a crime and are at large, the availability of information about the persons who committed the crime, and other possible information that may help solve the crime. It is also advisable to clearly justify the importance of granting the applicant the status of a victim by providing essential information and documents.

Next, the investigator will find out which of the relatives has an unconditional reputation, an alibi at the time the crime was committed, is not suspected according to the investigation, and is not involved in the crime committed, and thus collects data to make an objective decision about recognizing the relative as a victim.

It is possible to appeal against the actions of the investigator regarding the refusal to recognize a relative as a victim in accordance with Art. 124–125 Code of Criminal Procedure. In some cases, appeal actions must go through a certain “chain” of consideration by the administrative apparatus of the investigative body, starting from the investigator and ending with the director, including in the prosecutor’s office. In parallel with this, the right of a person to go to court is provided.

Such actions of the investigative authorities and the prosecutor's office in the described case entail a large expenditure of time, as well as moral and material resources of individuals defending their rights and legitimate interests, on the one hand, and the state, on the other.

To summarize, I note that the imperfection of legislation caused by the ambiguity of the legal structure of Part 8 of Art. 42 of the Code of Criminal Procedure, creates quite a lot of practical and social problems, violates human rights and limits the capabilities of the state in the person of such a procedurally independent person as an investigator.

1 See, for example, the verdicts of the Sosnovsky District Court of the Tambov Region dated March 27, 2014 in case No. 1-16/2014; Volzhsky District Court of the Samara Region dated June 5, 2013 in case No. 1-55/2013.

Protecting the rights of the victim: assistance from lawyer Sarkisov

One of my priority areas of activity is protecting the rights of the victim. I am ready to provide the following services:

1. Consulting the injured person;
2. Assistance in preparing and filing a criminal complaint.
3. Protecting the rights of the victim at the pre-investigation stage.
4. Protection of citizen's rights at the stage of preliminary investigation.
5. Upholding the interests and rights of the injured citizen at the judicial stage.
6. Comprehensive protection of the rights of a minor victim.
7. Representing the interests of a private prosecutor.
8. Representing the interests of a civil plaintiff.

All of the above services are provided by collecting evidence, drawing up procedural documentation, interacting with investigative and prosecutorial authorities, and actively defending the Principal’s position in court.

Having a lawyer on your side, depending on the situation, allows you to achieve visible results:

• bringing the perpetrators of the crime to criminal liability;
• recovery in favor of the victim of all losses incurred by him;
• reconciliation with the guilty party.

Difference between legal entity and individual

In the same manner, legal violations are regulated by Article 42 of the Code of Criminal Procedure of the Russian Federation, if an enterprise suffers losses due to criminal acts, when an individual receives physical injuries, or property loss.

When recognizing an individual as a victim due to a crime or enterprise, the difference is in the method of causing damage to inanimate and animate entities. The court decides on the method of compensation for material losses to individuals or organizations.

The norms of criminal law make it clear that regardless of who harmed the enterprise or a specific person, the subject will be recognized as a victim if his rights are violated. This can be either a legal entity or an individual. The difference is that the damage caused by the criminal is to an individual, a group of people or a specific enterprise.

Procedure for confession in a criminal case

A citizen can be recognized as a victim if a criminal case is initiated. When law enforcement officials do not have a sufficient set of information about the victim of a criminal act, the appointment of a victim in a criminal case occurs immediately after collecting the necessary information.

Assignment of status is carried out on the basis of a submitted application from the victim. You can write an application in any form, following the rules of office work. Where accuracy in filling out the document, absence of corrections, and grammatical errors is provided.

The application must be filled out with the following required elements:

• information about the organization or the name of the employee who will consider the application to issue a resolution;
• information about the applicant with contacts, residential address;
• grounds for obtaining victim status with a detailed description of the circumstances;
• evidence base indicating the facts of damage with detailed information;
• links to laws.

The initiator may be an employee who is involved in the investigation. In the event of death, the closest relative will be considered the victim.

A person or company is injured based on:

• actual fact of harm caused due to damage or misappropriation of property, offensive statements, beatings;
• evidence base where unlawful acts are associated with the damage caused.

Attention! It is necessary to confirm that the offender’s offense caused negative consequences.

The competent authorities consider the submitted application from the victim and establish his identity. The investigator, prosecutor, inquiry officer or judge draws up a resolution on the basis of which a person acquires the qualification of a victim. In the event of death, the status passes to one of the relatives. Such a transition is not possible for other close people of the deceased.

Where should the victim turn?

I offer my qualified services to protect the rights of victims at any stage of the criminal process. Each Principal is guaranteed:

• individual approach;
• confidentiality and reliability;
• strict compliance with the terms of the contract;
• availability for communication 24 hours a day, 7 days a week.

My extensive experience allows me to successfully solve problems of any complexity in the shortest possible time. Therefore, if you want to achieve positive results, I am ready to help you.