The Supreme Court requires that civil claims of victims be resolved in criminal proceedings, and not in civil ones

On June 30, the Plenum of the Supreme Court discussed the draft resolution “On the practice of courts considering a civil claim in a criminal case” via web conference. Following the meeting, the document was sent for revision.

Judge of the Supreme Court of the Russian Federation Svetlana Shmotikova spoke about the most significant provisions of the project: “The main message of the explanations of the project as a whole is that the courts, in all cases where by force of law there are grounds for resolving the claim filed by the victim on the merits in a criminal case, take this into account all possible measures."

Right to file a civil claim

Moscow AP lawyer Valery Sarkisov noted that the draft resolution enshrines both approaches to the institution of civil action in criminal proceedings that have already been developed in practice, as well as a number of provisions that are controversial from the point of view of legal theory, but important for law enforcement. “Thus, the Supreme Court introduces a novelty, which, although it contradicts the basic principles of the civil law institution of compensation for harm, looks quite justified from the point of view of procedural economy: in paragraph 2, state unitary and municipal enterprises and institutions are assigned the right to file a civil claim in case of a crime causing damage to property that is in their use, possession and disposal, but is not their property,” he said.

Clause 3 notes that in claims for compensation for property damage and compensation for moral damage caused to a minor, declared on his behalf by a legal representative or prosecutor, recovery is made in favor of the minor himself.

In paragraph 4, the developers remind you that both lawyers and other persons authorized in accordance with the Civil Code to represent the interests of the organization, including its head, are allowed to represent a legal entity recognized as a civil plaintiff in a criminal case.

It is emphasized that, as a general rule, the accused is involved as a civil defendant (clause 5 of the draft). However, in cases where the law imposes the obligation to compensate for harm on a person who is not the causer of the harm, such a person is brought in as a civil defendant (for example, an organization if the harm was caused by its employee in the performance of his job duties). “In this regard, special attention is deserved by the clarification of the possibility of involving a financial body acting on behalf of the treasury as a civil defendant in the commission of official crimes,” Valery Sarkisov emphasized.

Lawyer of the Nizhny Novgorod Regional Bar Association Alexander Nemov drew attention to the fact that the draft resolution directs the courts to independently involve as a proper defendant a person who is obliged by law to bear responsibility for compensation for damage. “Previously, in practice, the opposite was very common: the court left the statement of claim without consideration, inviting victims to apply for compensation for harm through civil proceedings. This is clearly a positive aspect of this project,” he explained.

Lawyer of MCA "Knyazev and Partners" Alexey Serdyuk noted that the Supreme Court in paragraph 5 of the draft reflected cases not related to legal representation, when the accused, as a person who directly caused damage to the victim, is not identified with the civil defendant, i.e. person obligated to compensate for said damage. “If a crime was committed by an employee of an organization in the performance of work duties, the damage is compensated by a legal entity, in transport crimes - by the owner of the vehicle, by an official - by the authorized financial body of the state. This position is consistent with regulatory legislation and generally deserves support,” the expert said.

Subject of the claim: property and moral damage

For property damage subject to compensation, including in the absence of charges under Art. 167, 168 of the Criminal Code also includes harm resulting from the actions of the perpetrator, when the destruction or damage of someone else’s property was part of the method of committing the crime, as indicated in paragraph 7 of the draft.

Moreover, in criminal cases of theft (Article 166 of the Criminal Code), property damage caused to the victim by subsequent theft, destruction or damage to the stolen car by unidentified persons is subject to compensation by the person who committed the theft, if it is proven at the court hearing that this person created by his criminal actions conditions for causing such property damage. “The issue of civil liability of a vehicle thief has been controversial in practice. The proposed resolution closes this issue: the person who stole the car will be held responsible for the subsequent death of this car,” commented Alexander Nemov.

If property damage is caused to a person whose property is insured, then if the court has information about the insurance compensation received, damages exceeding the amount of the insurance payment are subject to recovery. In such cases, there is no requirement to involve a representative of the insurer in the proceedings (clause 8 of the draft). “I think this will lead to controversial situations, since insurance companies often unreasonably underestimate compensation payments. The procedure proposed in the draft may lead to partial release of insurance companies from liability,” says Alexander Nemov.

According to Alexey Serdyuk, the Supreme Court proposes to broadly interpret the harm directly caused by the crime, and does not limit it to damage that affects the qualification of the act. “For example, in a civil claim, not only direct actual damage from theft can be claimed, but also damage caused by the method of committing the crime - destruction or damage to someone else’s property (broken glass in a window during burglary). At the same time, it must be remembered that the purpose of satisfying a civil claim is to restore the rights of a person who was harmed as a result of a crime, which means that if a person has received compensation from another source, it is impossible to demand repeated compensation from the civil defendant in criminal proceedings. As follows from paragraph 8 of the draft, if there is insurance compensation that fully covers the damage caused by the crime, there is nothing left to demand from the accused (civil defendant), ”the lawyer noted.

We draw up a claim correctly

It is known that the form and content of the statement of claim must have mandatory attributes and conditions applicable to all claims in civil procedural proceedings.

There is a minimum set of requirements that must be strictly observed when drawing up a statement of claim, namely:

the very name of the paper medium is a civil claim in a criminal case;
registration details of the plaintiff (full name);
registration details of the applicant (full name);
designation of the nature of the crime;
these requirements must have compelling reasons;
the amount of damage caused must be justified.

A sample application is presented in Article 111 of the Criminal Code of the Russian Federation. It is allowed to draw up a petition in any form, without including all the points specified in the Code of Civil Procedure.

If the above points are not met, the claim has a chance of being left without further action. Sometimes the application form is returned to the applicant to correct errors discovered by the ship's bailiffs. It should be noted that such returns happen quite often.

Of course, no one forbids going to court again, but precious time is lost in unnecessary paperwork.

How to determine the defendant

The following may be held liable for the consequences of an atrocity indicated in a civil case:

individuals;
legal entities that caused losses to the applicant.

If the defendant is a minor at the time of the commission of the crime, then the guardians or parents will be held responsible. If there are none, then trustees. The legal capacity and degree of property liability of the punished person is regulated by law (Article 46 of the Criminal Procedure Code of the Russian Federation).

According to current legislation, the defendant has the right to have his claims declared invalid, that is, to withdraw them. This can be done during the course of the proceedings in this case. This must be done before the judge leaves for the conference room to take a guilty verdict.

If the court makes a decision to acquit the defendant, then the criminal case ceases to exist due to the lack of grounds for the claims. Accordingly, the civil claim under such circumstances remains unsatisfied. The accused has the right to protect his interests by filing a counterclaim and proving any inaccuracies.

Sometimes a criminal case is closed due to other circumstances: the statute of limitations has expired, the parties have made peace with each other, the action committed has ceased to be a danger to society, the defendant is unknown. In this case, the accused is still obliged to compensate the claimed damages.

Additional calculations

In practice, the question also arises of what is considered “the need to make additional calculations related to a civil claim.” This necessity is one of the most common grounds for a court hearing a criminal case refusing to resolve a civil claim. Apparently, these must be compelling reasons that require certain mental and time expenditures to establish the actual size of the requirements to be satisfied. The Plenum of the RF Armed Forces also demands this. The court must motivate the reasons for transferring a civil claim to consideration in civil proceedings

Requirements for the applicant

A civil plaintiff is defined in the process as an individual or legal entity who claims that moral or material damage was caused to him during the commission of a crime (Article 44 of the Code of Criminal Procedure of the Russian Federation).

If the applicant is a legal entity (organization, enterprise, individual entrepreneur), then a specially authorized person - a representative or lawyer - can represent interests in court. In order to determine the civil plaintiff, a special document is issued, which is called a determination. The court issues him, but sometimes the investigative authorities also do this.

During the proceedings, the plaintiff is endowed with a fairly extensive list of procedural rights:

authorized to present evidence;
be familiar with all materials on the case;
submit petitions;
allowed to participate in investigative activities with the permission of the investigator;
take part in legal proceedings;
file complaints about the actions of investigative authorities;
file complaints against the verdict;
demand to secure the filed claim.

When filing a civil claim during the process, the applicant is allowed not to pay a state fee for the satisfaction of his petition.

The applicant’s rights can be represented by his representative within the framework of the law (lawyer, close relative), especially for incapacitated persons, minors and those who are unable to protect their interests. The state prosecutor has the right to make claims in favor of the state.

Review procedure

When considering a civil claim simultaneously with a criminal act, there is always the danger of a debate about which code to follow. The procedure for material compensation and the basis for filing are determined by the provisions of the Criminal Code. It should be noted that answers to all unresolved questions that arise must be sought in the civil procedural code.

A civil applicant is allowed not to appear at the hearing, but only if he has no claims to a previously filed claim. Based on the results of the trial, the main requirement in the criminal case must be satisfied first (Article 458 of the Code of Criminal Procedure).

During the sentencing in a criminal case, the court decides whether it is possible to satisfy the filed civil claim, as well as all the parameters for the declared case:

to whom compensation will be paid after the claim is satisfied;
How much compensation will there be?

The issue of payment of material damage caused to the victim is also subject to clarification if no one has filed a petition for compensation. In proceedings on all these issues, the court is obliged to be guided by articles from the civil and sometimes labor code.

Both parties involved in the litigation can file a complaint against the verdict to the court of appeal or cassation. This is provided for in Article 354 of the Code of Criminal Procedure of the Russian Federation. It is also allowed to file other acts related to the case under consideration and directly related to the civil claim.