Reconciliation of the parties (Article 25 of the Code of Criminal Procedure of the Russian Federation and Article 76 of the Criminal Code of the Russian Federation) - Lawyer Antsupov Dmitry Vladimirovich

Reconciliation of parties in a criminal case

Not everyone knows that the termination of criminal cases in the Russian Federation is possible in connection with the reconciliation of the parties.
This is a very convenient and popular form of terminating criminal prosecution. It suits the court, the prosecutor's office, the preliminary investigation and inquiry bodies, and is regulated by the Criminal Code and the Code of Criminal Procedure of the Russian Federation. In Russia, many cases are initiated as a result of domestic crimes that occurred as a result of quarrels or fights. For this reason, often both parties, the victim and the accused, come to a decision to drop the criminal case.

The injured party wants to withdraw the statement due to constant interrogations, confrontations, court hearings and other “pleasures” of the criminal process. However, a statement written and submitted in cases of private-public prosecution can no longer be withdrawn, no matter how much the victim (applicant) wants it.

It is in such cases that the opportunity to stop pursuing reconciliation of the parties comes to the rescue. Criminal law provides such an opportunity there.

The Criminal Procedure Code (Article 25) provides that the court and representatives of the investigative and inquiry authorities have the right to terminate the proceedings of a criminal case. This is possible on the basis of a statement provided by the victim or his representative. A suspect (accused) of committing a criminal act of minor/medium severity for the first time may be released from criminal liability, subject to compensation to the victim for damage caused by illegal actions and reconciliation with him. This is provided for by the Criminal Code of the Russian Federation (Article 76).

To do this, it is mandatory to comply with the following conditions:

the criminal act is of low or medium severity;
the perpetrator committed illegal actions for the first time, had no previous convictions (a previously expunged or expunged criminal record is allowed);
reconciliation of the perpetrator with the victim (subject to the obligatory consent of the victim to reconciliation);
the perpetrator compensated for the damage caused to the victim.

In this case, the important task of the lawyer is to convince the victim of reconciliation, since the accused/suspect cannot always do this.

What does reconciliation of the parties mean?

This term should not be taken literally. Reconciliation of the parties in a criminal trial does not mean that the victim has forgiven his offender, does not hold a grudge against him and has forgotten about the crime.

The defendant only compensates for the damage caused or compensates for the harm, and the victim no longer has any claims. Only in this case is it considered that the parties have reconciled.

Reconciliation of the parties is the absence of claims against the offender after he has made amends.

Reconciliation of the parties at the investigation/inquiry stage

Despite the fact that the law allows a case to be terminated at the preliminary investigation stage, this almost never happens (according to the practice of the Moscow region). The investigator or inquiry officer in any case sends the case to court.

The reasons for such actions are not fully understood; they probably lie in internal instructions or orders of departments, based on the need to show a certain kind of statistics of cases sent to court.

Review of problematic issues

Despite the careful study of each law, the current legislation has many gaps and controversial issues. If we talk about reconciliation of the parties, here we need to highlight the following problems:

Article 25 of the Code of Criminal Procedure of the Russian Federation does not define a clear list of criminal actions for which reconciliation is possible. Only the degree of severity is indicated, but in some cases its boundaries may be vague.
Absence of direct prohibitions on reconciliation of the parties. In some cases, such actions are inappropriate, but are permissible from the point of view of current legislation. For example, as a result of the defendant’s negligent actions, the victim died. Then the rights are transferred to one of the relatives of the deceased, who can offer reconciliation of the parties.
There is no clear list of grounds when reconciliation is possible. The current legislation defines only the main ways of using this opportunity. A clear legislative framework regarding the reconciliation of the parties has not yet been formed.

Reconciliation of the parties in court

As a rule, problems do not arise in court. The court reconciles without objection, the prosecutor's office supports (a striking example is my case under 112 of the Criminal Code of the Russian Federation). This happens in one court session. The procedure is standard; a corresponding statement from the victim is required, but still a lot depends on the judge.

Someone also demands a similar statement of reconciliation from the defendant. There is no template fixed by law; it is written in free form, the main thing is that the expression of will is clear. Also, the physical presence of the victim in court is required.

Sometimes clients turn to me regarding public accusations with the intention of obtaining a decision to terminate the criminal case for reconciliation of the parties. And I explain to them that in such situations this rule does not apply. It is impossible to reconcile, for example, for drug possession, even if the accused is charged for the first time. There is no victim as such in such cases; such a form of termination of a criminal case is impossible.

Rules for writing an application

If a decision has been made to terminate the criminal case due to reconciliation of the parties, it is necessary to draw up and send to the police department whose officers are conducting the investigation a statement containing the following information:

Personal details and position of the employee entrusted with the investigation.
Full name, residential address, contact information of the person making the application.
The reason why it is necessary to terminate the criminal case: reconciliation of the parties to the conflict due to the lack of claims from the injured party.
All legal acts that allow reconciliation.
Date of compilation and personal signature.

Is it necessary to admit guilt?

The law does not contain such a requirement. I have already described a case where the parties reconciled without this. But the prosecutor's office reacts positively to the presence of such a circumstance as an admission of guilt. Once, before a court hearing, a state prosecutor tried to prove to me and impose on me the mandatory nature of such a criterion. From which I concluded that, again, for some reason this is an important circumstance for the prosecutor’s office.

Sometimes even judges insist on this, the logic can be understood: they say, why do you compensate for damage if you do not admit guilt? But the answer lies on the surface: defendants, understanding the statistics of acquittals, weighing temporary labor costs and financial expenses for a lawyer, choose a more convenient way to return to normal life as soon as possible. Because even the thought that a criminal case has been opened against them, the outcome of which is not clear in the near future, puts a lot of pressure on them and makes them nervous.

When reconciliation is impossible

Participants can reconcile if one of the parties submits a corresponding petition to the judge. But in some cases this may not be enough, even if the perpetrator sincerely repents and is ready to compensate the victim for material damage.

Reconciliation is impossible in the following situations:

The crime was committed on the basis of intolerance. We are talking about manifestations of racism, Nazism, hatred on religious grounds, etc.
One citizen slandered another. Here it is necessary to take into account the circumstances under which false information was disseminated. If a person denounces a neighbor because of personal hostility, the case may be closed. If hatred arose due to political, religious or other reasons of social significance, reconciliation will be impossible.
The criminal's motives were hooligan, demonstrating disrespect for moral standards, personality, and the established order.

Reconciliation in the situations described above is not practiced for the reason that the actions of the perpetrator are of a mass nature. There is no guarantee that after the termination of the criminal case, the defendant will not resume criminal activity. Attackers driven by the motives described above pose a danger to society. Therefore, the criminal must be punished.

Is it necessary for the victim to participate in the court hearing?

This can sometimes be difficult. Most judges insist that the victim be present in person and express his will in person. Its absence may be grounds for refusal to reconcile the parties. The practice in Moscow in this regard is disappointing. Even if there is a statement at the investigation stage, but in the absence of the injured party in the trial itself, the courts do not reconcile.

Moreover, it happens that they take a statement from the victim that he has been notified of the date of the court hearing, that he is not against the special procedure, but they do not specify the desire to reconcile. Therefore, it is very important that the lawyer ensures the voluntary appearance of the injured party at the court hearing. Notified me on time, called again and reminded me.

This is not difficult, but sometimes victims do not appear in court due to simple forgetfulness. An attentive lawyer should not allow this to happen.

If it so happens that the court of first instance was held without the victim, ensure his appearance in the court of second instance. The Court of Appeal provides conciliation even in such situations. There is such a practice in Moscow.

Also, a lawyer should always pay attention to the power of attorney of the victim’s representative (for example, if the victim is a legal entity, as was the case here). Judges like it when the authority to seek reconciliation is clearly stated there.

Explanation of the terms of reconciliation

A citizen who has committed an unlawful act for the first time is characterized by the following criteria:

He has never been prosecuted before.
If earlier, a sentence was passed against the citizen, but it did not receive legal force.
For a previous illegal crime, the statute of limitations has already expired.
The existing criminal record has already been fully expunged or removed.
Due to the changes made, the act committed by a citizen does not apply to criminal offenses.
For various reasons, the person was completely released from criminal liability.

Compensation for damage caused by illegal actions is possible in various ways:

Cash.
Providing necessary assistance to the victim.
A public apology for a crime committed.
Other measures that restore the lost interests of the injured party.

All possible methods of compensation for damage must be legal and not violate the rights of other citizens.

When is a settlement agreement possible?

The Russian Criminal Code (Article 67) and Criminal Procedure Code (Article 38) stipulate the possibility of concluding a conciliation agreement between the victim and the criminal. Interest in this alternative solution is due to the fact that the guilty party gets a chance to avoid punishment, and the victim gets compensation from the offender.

The main points of reconciliation of the parties that you need to pay attention to:

Complete repentance of the criminal for his crime;
Compensation for damage caused;
The investigator's consent to reconciliation;
No additional disputes or disagreements with the victim;
No fear for the life and health of yourself or your family and loved ones.

Reconciliation of the parties is regulated by the Criminal Code of the Russian Federation in Article 67.

Of course, no matter how much the parties want to settle the conflict in this way, the decision on the possibility of this is still made by the competent authorities. If, for objective reasons, they consider it impossible to stop the search activities against the suspect, then they deny the parties to the criminal conflict the right of reconciliation.

Possible fraud

The law clearly states that it is necessary to file a petition for no claims against the defendant only when this person has repaid the damage caused, and of a moral nature as well. However, in reality, situations may arise when this requirement has not been fulfilled, but the petition contains information that does not correspond to reality. First of all, this is fraught with consequences for the person who suffered hardships, but it can also be negative for the accused. For the injured person, situations that lead to possible negative events may include moments when:

As of the day the petition was written, the defendant in the case had not fully paid for the damage caused. For example, the damage amounted to 120 thousand, while only 80 thousand were given away. But in the petition, this person asks to indicate that the money has been transferred in full.
On the day the petition was drawn up, material damage was compensated only in part of the assessed property, but moral damage, if there were agreements about it, was not compensated. The petition contains other information.

In these cases, the person who suffered the hardship assumes responsibility for information that contradicts reality. After the completion of the case, the defendant may not fulfill the previously given obligations, since the case has already been decided in his favor. In turn, the plaintiff in the case should not seek protection in court, otherwise there is a risk of being charged with giving false information.

But, in turn, the defendant is also not very protected from the plaintiff’s fraud. This is expressed in the following points:

The culprit fully paid the assessment of the damage and handed it over to the victim. The latter promised that he would draw up a petition, but at the trial he stated that he had not received any compensation. In this situation, it will not be easy for the culprit to prove that compensation has occurred.
The defendant in the case wanted to reconcile the parties to the theft and compensated not only actual, but also moral damage. However, at the trial it was stated that only part of the damage was compensated, and not the full amount. Proving the opposite will also be very problematic.

In such situations, the injured person, having already received money from the defendant, may initiate another process for compensation for damage, both caused to property or health, and ask for compensation for moral damage. It turns out that the victim may receive double the amount of compensation.

To prevent this from happening, it is advisable to draw up a receipt stating that the money was given. The text of the receipt must indicate what funds were transferred, to whom they were given, and for what. Also, it is advisable to transfer money directly to the person who suffered hardships and in the presence of witnesses. It is advisable that the defendant in the case put a note on the receipt stating that he received the funds and has no further claims of a material nature.

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Basic provisions for dismissal of a case

It is important for participants in the process to understand that cases with possible termination are not considered in a particular order and they cannot always be considered the way the culprit or victim wants. The special procedure for consideration here is determined only by the fact that an additional petition is filed to release the defendant in the case from punishment. The order of consideration will be something like this:

The parties to the process agree on the procedure for compensation of damages and come to a mutual decision.
An application for reconciliation of the parties is submitted, and any participant in the process can declare this fact, but he must meet certain requirements and fulfill certain conditions.
The time of filing does not matter, the main thing is that it is accepted for consideration at the stage of the investigation or directly in court, but before the final decision is made.
The judge considers the submitted petition and makes a decision, but taking into account the opinion of the prosecutor or prosecutor.
A positive answer gives the right to complete the case.

It is worth considering that such a request may be refused on the grounds that the victim does not meet the conditions for filing, or because the culprit does not have the right to such an outcome of the process, or because law enforcement and judicial authorities do not are obliged to use this request as the main one. The application of an article under which it is possible to close a case by agreement of both parties is the right of the authorities, but not an obligation.

Assistance from lawyers

When planning to reconcile with an opponent, it is better for the plaintiff to consult with a specialized lawyer. A specialist will help determine requirements and assist in negotiations. Often people cannot accurately formulate all the conditions for reconciliation due to lack of experience, emotions, etc.

A lawyer will help you choose a more productive way of communication, taking into account legal norms and personal experience in negotiations. In addition, the lawyer is able to predict possible scenarios, determining the most beneficial solution for both parties.

Reconciliation of the parties as an option to terminate a criminal case: for what reasons, conditions, procedure

A criminal trial usually represents a clash of interests between two parties, between whom there is a conflict situation. The plaintiff and the defendant are aimed at clarifying the relationship between themselves, one of them is to receive compensation, the other is to impose punishment or acquittal. In some situations, during a court hearing or investigation, they are ready to resolve all issues by compromise, to independently agree on compensation for damage without being held accountable by a judicial authority. This point in criminal law is interpreted as reconciliation of the parties .

The readiness of the participants in the process to take conciliatory measures does not mean that this process will take place legislatively. For its implementation, certain conditions and circumstances are necessary that completely depend on the plaintiff and defendant. Reconciliation of parties in a criminal case is regulated by Article 25 of the Criminal Procedure Code and 76 of the Criminal Code. They set out the fundamentals of legislation in connection with the end of the criminal process for the reconciliation of the parties (plaintiff and defendant).

Related material: services of a lawyer in criminal cases.