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.
Court ruling on Part 2 of Art. 158 of the Criminal Code of the Russian Federation | Reconciliation of the parties No. 1-68/2015
RESOLUTION
On termination of the criminal case
Moscow DD.MM.YYYY
Zyuzinsky District Court <address> consisting of the presiding judge FULL NAME 16.N., with the participation of the state prosecutor, assistant Zyuzinsky interdistrict prosecutor <address> A.S. Pronkina, defendants E.L. Koroleva, O.M. Mikhailina, with the participation of a defense lawyer Full name17., who presented certificate No. and warrant No. No. Full name18., who presented certificate No. No.
Koroleva FULL NAME11, DD.MM.YYYY year of birth, native of <address>, citizen of the Russian Federation, with secondary education, unmarried, with one young child No. year of birth, working in a position name registered at the address: <address>, in fact living at the address: <address>, with no previous convictions,
Mikhailina FULL NAME12, DD.MM.YYYY year of birth, native of <address>, citizen of the Russian Federation, with secondary education, married, with two minor children DD.MM.YYYY year of birth, working in the position of <data taken> sales department in name, registered at: <address>, not previously convicted,
accused of committing a crime under paragraph “a” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation,
INSTALLED:
by the preliminary investigation authorities, FULL NAME19., FULL NAME20 is accused of committing theft, that is, the secret theft of someone else's property by a group of persons by prior conspiracy, namely that DD.MM.YYYY, being in a catering establishment located at: <address> - name, they entered into a criminal conspiracy to steal alcoholic products from the bar of this cafe, in the process of which they jointly planned a method of committing a crime and assigned the roles of each in committing the theft of property, and then taking advantage of the absence of a bartender and other visitors in the bar, FULL NAME 21 according to the role assigned to her, went up to the bar counter, and, making sure that no one was watching her, on the day No. of the above, secretly took from the bar window an opened bottle of cognac brand name with a capacity of <data taken> liters with a volume of liquid No. ml., costing <data taken> , which she handed over, remained at the table they occupied and observed the surrounding situation in accordance with their plan, FULL NAME 22., after which, in continuation of their joint criminal actions, on <data taken> the same day, she again approached the bar rate and made sure, that she was acting secretly, took from the display case a sealed bottle of liquor with the name of capacity No. liter, costing <data taken>., which she handed over to someone who was waiting for her in the toilet room of the cafe, FULL NAME 23, after which, in pursuance of a single intent aimed at stealing the property of the cafe, the name was taken from the display case bar, an opened bottle of cognac brand name with a capacity <data taken> with a volume of liquid <data taken> ml., cost <data taken>, followed by FULL NAME37. together with FULL NAME24, they fled from the scene of the crime with stolen property, and as a result, through joint actions, caused the cafe “name name name material damage for a total amount of <data seized>.
In the preparatory part of the court session, before the start of the consideration of the case on the merits, the representative of the victim, FULL NAME8, filed a petition to terminate the criminal case against FULL NAME25. in connection with reconciliation, motivated by the fact that the defendants fully compensated for the damage caused, made amends for the damage caused in full, apologized, which were accepted, the society in its person does not have any claims against the defendants.
Full name 26., supported the petition of the victim’s representative, asked to terminate the criminal case in connection with reconciliation, admitted guilt in full and repented of what she had done.
FULL NAME 27M., supported the petition of the victim’s representative, asked to terminate the criminal case in connection with reconciliation, admitted guilt in full and repented of what she had done.
Full name29. They also supported the stated petition and asked to terminate the criminal case against FULL NAME28. taking into account the circumstances of the case, the presence of dependent minor children and remorse for the crime.
State prosecutor FULL NAME 36. objected to the granting of the stated petition.
The court, having listened to the opinions of the participants in the process, having discussed the arguments of the stated petition, considers it justified and subject to satisfaction, since FULL NAME32 FULL NAME31 in committing a crime of average gravity, have not been previously convicted, are brought to criminal responsibility for the first time, and in accordance with the requirements of Art. 25 of the Code of Criminal Procedure of the Russian Federation, the court has the right, on the basis of a statement from the victim, to terminate a criminal case against a person accused of committing a crime of minor or medium gravity. At the same time, the court takes into account that the accused FULL NAME30 made amends to the injured party for the harm caused in full, the representative of the victim does not have any claims against them, which is confirmed by his written statement, and also takes into account information about the identity of FULL NAME33 who admitted guilt in full and repented of their deeds, have dependents, have not previously been convicted, have been brought to criminal responsibility for the first time, are employed, i.e. socially adapted.
Under such circumstances, the court considers it possible to terminate the proceedings in this criminal case on the basis of Art. 25 of the Code of Criminal Procedure of the Russian Federation in connection with reconciliation with the victim.
Based on the above and guided by Art. 25.236 Code of Criminal Procedure of the Russian Federation, court
DECIDED
terminate the criminal proceedings against Koroleva FULL NAME14, FULL NAME35 Mikhailovna, accused of committing a crime under paragraph “a” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation on the basis of Art. 25 of the Code of Criminal Procedure of the Russian Federation, in connection with reconciliation with the victim.
Preventive measure in relation to FULL NAME34. in the form of a written undertaking not to leave the place and proper behavior upon entry into force of the resolution, cancel.
Physical evidence: a glass bottle covered with the label “Full Name 7” with a capacity No. liter, a glass bottle pasted with a label with the name with a capacity No. liter, issued for safekeeping to the representative of the victim name – Full Name 8, upon entry into force of the decision, leave as belonging.
Physical evidence: delivery note No. from DD.MM.YYYY and digital media - disk No. with video recording from surveillance cameras installed in the cafe name at: <address> for the period of time from No. hours No. minutes to No. hours No. minutes No. seconds DD.MM.YYYY years, which are in the materials of the criminal case, upon entry into force of the resolution, continue to be kept on file.
The decision can be appealed to the Moscow City Court within ten days from the date of its adoption. If a petition is filed for participation in the consideration of a criminal case by an appellate court, this petition must be stated in the appeal or in objections to complaints and submissions brought by other participants in the criminal process.
№ 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.
Article 159 of the Criminal Code
Fraud committed by an organized group or on an especially large scale is punishable by imprisonment for a term of up to ten years with a fine in the amount of up to one million rubles or in the amount of wages or other income of the convicted person for a period of up to three years, or without it and with restriction of freedom for a term up to two years or without it.
Cases initiated on the basis of fraud are criminal cases of “alternative jurisdiction”; their investigation is within the competence of interrogators and investigators of the Ministry of Internal Affairs and other law enforcement agencies that discovered the crime. In criminal cases initiated under Part 1 of Article 159 of the Criminal Code of the Russian Federation, the preliminary investigation is carried out in the form of an inquiry and is carried out by investigators of the territorial internal affairs bodies of the Russian Federation at the place where the crime was committed.
How to build a defense against charges under Article 159 of the Criminal Code of the Russian Federation Defense of suspects and accused in criminal cases initiated under Art. 159 of the Criminal Code, you must begin by determining the result you want to achieve in a criminal case. A large section of this article is devoted below to the issue of building a defense against charges under Article 159 of the Criminal Code of the Russian Federation, which is called: “How to build a defense against charges under Article 159 of the Criminal Code of the Russian Federation...>>We offer our clients and principals a full range of legal assistance from a lawyer in criminal cases initiated under Article 159 “Fraud at all stages of the criminal process: Practice shows that, as a rule, the period of preliminary investigation in criminal cases of fraud lasts on average 2 - 6 months. If a criminal case consists of several episodes of fraud on a particularly large scale or a large number of defendants are involved, then the investigation can last several years.
In our practice, the maximum period of preliminary investigation in a criminal case initiated under Part 4 of Article 159 of the Criminal Code of the Russian Federation was extended to 38 months (3 years and 2 months). Naturally, they found him and opened a criminal case, but the friend returned everything and we have no complaints against him, and the investigator said that the case would still be sent to court. What to do, I don’t want to set the person up.
He has no previous convictions, and there were no disciplinary sanctions at work either. in the end, I transferred her 500 rubles to begin with... I asked her if she sent it, in the end she didn’t answer anything and added it to the black list... but before that I took a photocopy of her passport and unfortunately gave me mine... I thought she was a decent girl... can I count on refund?
Punishment: what is the threat?
Types of punishments:
- fine – up to 200,000 rubles (an alternative method of calculation is salary or income for a period of up to 18 months);
- compulsory work (work for the benefit of society) – up to 480 hours;
- correctional labor (at the place of service or not) – up to 2 years;
- forced labor (alternative to imprisonment) – up to 5 years
- imprisonment – up to 5 years.
The last two punishments may be associated with restriction of freedom (additional measures to control the pastime of the convicted person).
The judge chooses the punishment based on the specific circumstances of the case. Article 158 of the Criminal Code of the Russian Federation with the latest amendments in 2022 is the norm, taking into account the amendments made in 2022 (since its text has not changed this year). In 2022, a qualifying feature was added to Part 3 (from a bank account or electronic services) and Part 6, Part 7 of Art. 159, art. 159.1, art. 159.5 are removed from the regulation of the norms of notes on establishing a large size.
general characteristics
The article is of great importance for law enforcement practice, as it establishes a number of rules common to the section and explains the concept of “theft” - the unlawful seizure of property by a criminal for his own benefit for personal gain without any reciprocal property provision, which caused damage to the owner.
What is the definition of theft? What are its defining characteristics? For example, embezzlement or embezzlement are “official” crimes; robbery - open theft, but without the use of violence; robbery is robbery plus violence; in fraud, the criminal ingratiates himself into the trust of the victim and takes possession of his property through deception.
The main characteristic of theft is the secret method of removal. At the same time, the qualification under Art. 158, if the criminal believed his actions were secret, but they were not actually them (there was an unnoticed witness), or those present were misled about the intentions of the convicted person (he acted secretly in relation to them).
Amendments to parole - changes in criminal legislation
