What's happened?
The Plenum of the Supreme Court of the Russian Federation supported at the meeting the draft resolution “On approval of the Rules for conducting judicial reconciliation.”
The document was developed by a working group of the Armed Forces of the Russian Federation in connection with the entry into force on October 25, 2019 of the Federal Constitutional Law of July 26, 2022 No. 3-FKZ and amendments to procedural codes (Arbitration Procedure Code of the Russian Federation, Civil Procedure Code of the Russian Federation and CAS of the Russian Federation) related to the improvement of conciliation procedures. According to the new legislation, the powers of the Plenum of the RF Armed Forces include approval of the Rules for conducting judicial conciliation and the formation and approval of a list of judicial conciliators. Only on the basis of such regulations can conciliation procedures be carried out during legal proceedings in courts of general jurisdiction and arbitration courts.
Conditions for termination of a criminal case with the imposition of a court fine. (Article 76.2 of the Criminal Code of the Russian Federation and Article 25.1 of the Code of Criminal Procedure of the Russian Federation)
If, due to unfavorable life circumstances, stupidity or accident, you or your loved ones have committed a crime of minor or moderate gravity and are afraid of criminal liability, then know: the court rarely sends you to a colony for such cases, but the very presence of a criminal record can ruin the biography of any person and interfere with their career Your children even decades later.
In addition, having a criminal record is a blow to a person’s reputation and good name, which additionally interferes with obtaining loans.
Previously, there was one main option for solving your problems - termination of the criminal case in connection with the reconciliation of the parties. I have already written several articles about this. But since the summer of 2016, in connection with the easing of the state’s criminal policy, another option has appeared to avoid a criminal record - this is the termination of a criminal case in connection with the imposition of a criminal law measure in the form of a court fine (Article 76.2 of the Criminal Code of the Russian Federation and Article 25.1 of the Code of Criminal Procedure of the Russian Federation) .
A significant part of criminal cases can be terminated by a court fine, for example, under Art. 116, 119, 327, 157, 116.1, 119.1., Part 2 of Art. 133, part 1 art. 134, part 1 art. 135, part 1 and part 2 158, part 1240.1, part 1 228, 291.2, 285 of the Criminal Code of the Russian Federation, and even related to the death of a person: part 1 of Art. 109, part 2 art. 143, part 3 art. 264 of the Criminal Code and many others.
To submit the necessary petition to the court, only the following two conditions must be met:
- A defendant “for the first time” brought to criminal responsibility must be accused of committing a crime for which a penalty of no more than 5 (five) years of imprisonment is provided (exception: reckless crimes with a penalty of more than 3 (three) years of imprisonment, for example, cases related to road accidents) ;
- The defendant must “compensate for the damage or otherwise make amends for the harm caused by the crime ” (pay money, return stolen property, fix what is broken, apologize, obtain a license if charged under Article 171 of the Criminal Code of the Russian Federation, etc.);
What it means to “otherwise make amends for the harm caused by a crime” will be determined by the court in each specific case, and this may even be a sincere apology.
The law does not directly require 100% compensation for harm. In general, how to determine that moral damage is 100% compensated? Or, for example, that the apology was 100% made? All these are assessment categories, although if the case involves specific harm assessed in monetary terms, then it is advisable to compensate it in full.
If the harm is not fully compensated, then you must be able to justify in court why the defendant could not do it, or did it partially. For example, due to a difficult financial situation, a small salary, the presence of young children, etc. It is advisable to confirm all these statements with certificates, namely: from the place of work about the salary; about the income of all family members; about the presence of diseases; an extract from the register of rights to real estate on the availability of housing; certificate of absence of ownership of vehicles, etc. Then there will be chances for success.
An important difference from termination following reconciliation of the parties is the absence of mandatory attendance and the absence of indications in the law of the need for the victim’s consent to do so in court.
For example, in my practice, in September 2016, a case under Article 318 of the Criminal Code of the Russian Federation “Use of violence against a representative of the authorities” was terminated without any monetary compensation at all to the victim, who refused reconciliation during negotiations and did not appear at the last court hearing (of course in this case, everything was not so simple and a colossal and successful work was done by the lawyer, who called into question all the evidence of the prosecution, the case was led by the chairman of the court, who was not afraid to take responsibility for a bold decision, but this is a story for a separate article).
In addition, you need to know that the victim’s objections to the termination of the case by imposing a court fine are not obligatory for the court, especially when it is clear that they are not justified. In this case, there are several recommendations:
1. Do not argue with the victim in court, do not be aggressive. Respond to attacks with something like: “I beg your pardon,” “I sympathize with you,” “I understand you”;
2. Apologize immediately after the incident, during the preliminary investigation and in court;
3. Express your point of view on the amount of possible reasonable compensation and provide evidence that the culprit did everything in his power to compensate for the damage, or, for example, the financial situation of the accused does not allow him to satisfy the inflated appetites of the victim.
If the victim categorically refuses to receive any compensation from the accused, then the money can be transferred unilaterally, for example, by postal order. In any case, this will be a mitigating circumstance.
In the end, I want to say about the main advantage of terminating a criminal case in connection with the imposition of a criminal law measure in the form of a court fine for the accused - the absence of a criminal record (does not interfere with getting a decent job and taking out a loan, does not compromise the children’s possible public career in the future) .
Minus - this biographical fact can interfere with applying for a job with a serious check of candidates. The very fact of bringing a person to criminal liability does not characterize the employee or business partner well. And information about the imposition of a court fine may well end up in the information databases of the Ministry of Internal Affairs along with information about a criminal record or criminal prosecution.
There are other professional secrets in the termination of a criminal case that additionally affect success, which I prefer to keep secret.
I provide every second Principal/Client with services to terminate simple criminal cases free of charge, with payment based on the result after the termination of the criminal case! I work all over Russia, attract local lawyers, whose work I control and am responsible for the quality of legal assistance! I can also conduct a case remotely: I advise, teach how to behave in court over the phone, prepare draft documents for filing in court and terminating a criminal case.
And here you can read my article on the termination of criminal cases with a court fine for crimes without a victim/with a formal composition, with an attached sample of a lawyer’s petition to the court.
What are conciliation procedures in court?
From October 25, 2019, all participants in a trial in a court of general jurisdiction or an arbitration court (with the exception of criminal proceedings) will be able to resort to special conciliation procedures. Carrying out such procedures is possible at any stage of the process and during the execution of a judicial act. These legislators included:
- negotiation;
- mediation, including mediation;
- judicial reconciliation.
This list is not exhaustive, that is, it is possible to use other conciliation procedures if this does not contradict the law. The courts will begin the reconciliation process according to the regulations on the basis of a request from the parties (parties) or upon the consent of the parties to the corresponding proposal of the court, which can be made orally or contained in the ruling on accepting the statement of claim (statement) for proceedings.
The parties will also be able to use conciliation procedures during the consideration of administrative cases. Judicial conciliators will coordinate the actions of the parties in this process.
Disadvantages and difficulties in investigating the classification of crimes under Art.
The testimony of the above-mentioned persons, as a rule, is decisive in classifying a crime, since during initial conversations, children, being in a stressful state, tell the above-mentioned officials more information and with greater detail than during interrogations.
Incompleteness and untimeliness of inquiry and preliminary investigation. The investigative and inquiry bodies are not focused on an operational, comprehensive approach to proving the crime of Art.
156 of the Criminal Code of the Russian Federation, as we said earlier, this fact entails a loss of evidence.
In some cases, cases of parents beating their minor children, despite the presence of signs of abuse, are initiated only under Art. Art. 115 or 116 of the Criminal Code of the Russian Federation.
When considering cases of this category, the courts had difficulties in understanding and correctly describing the crime in the verdict: what was the failure to fulfill or improper fulfillment of the duties of raising a minor, the content of the cruel treatment of him and the nature of the suffering caused, in what period of time this happened. Mistakes are often made in the classification of crimes provided for in Art.
156 of the Criminal Code of the Russian Federation, there is incorrect and incomplete qualification.
How will reconciliation proceed in court?
According to the new regulations, judicial conciliation must take place in a separate room located in the court building. The period for completing the necessary procedures is established by the court in the ruling on judicial reconciliation; at the request of the parties, this period may be extended. The parties to judicial conciliation have the right:
- choose a judicial conciliator,
- make proposals on the procedure for reconciliation,
- declare the need for other persons to participate in judicial reconciliation,
- provide information necessary to resolve the dispute,
- ask questions to the other party and the judicial conciliator,
- express a request for an individual conversation with a conciliator, proposals for resolving the dispute and achieving reconciliation results,
- discuss proposals made by the parties regarding their feasibility and satisfaction of the interests of each party,
- apply for an extension of the procedure if its period has expired.
Judicial reconciliation, according to the draft regulations, will take place in several stages:
- Opening of judicial conciliation (opening speech by the judicial conciliator).
- Statement of the circumstances of the dispute and the interests of the parties.
- Formulation of issues for discussion by the parties.
- Individual conversation between the judicial conciliator and the parties and their representatives.
- Development of proposals to resolve the dispute.
- Reconciliation of the parties.
- Registration of the results of reconciliation, including the conclusion of a settlement agreement, reconciliation agreement, agreement on factual circumstances, drawing up a waiver of the claim, recognition of the claim.
- Completion of judicial conciliation.
The result of the application may be either a settlement agreement and a waiver of the claim, or its full or partial recognition. Judicial reconciliation can be completed upon the application of one or both parties, as well as due to the expiration of its term or termination by the judicial conciliator. The state fee paid for filing a statement of claim will not be returned to the parties. But they will be able to save on other legal costs.
