Conditions for terminating a criminal case in connection with reconciliation with the victim
Exemption from criminal liability in connection with reconciliation with the victim is possible only if the following conditions are met:
- the crime must be committed for the first time . A person who has not previously committed any crimes at all, as well as a person whose legal consequences of a previously committed act have become invalid due to release from criminal liability, expungement or expungement of a criminal record, or reversal of a conviction, is considered to have committed a crime for the first time. Those persons released from punishment who are considered to have no criminal record are also considered to have committed a crime for the first time;
- a crime has been committed that falls into the category of crimes of minor or medium gravity (parts 2 and 3 of Article 15 of the Criminal Code of the Russian Federation);
- the guilty person must reconcile with the victim . Reconciliation with the victim means that the latter does not have any claims against the suspect or accused. Reconciliation on the part of the victim can be dictated by various motives (pity, compassion, hope for joint work in the future, etc.) with an indispensable condition: it is an act of voluntary expression of the will of the victim, formed and expressed without any external pressure (from the accused , his friends, relatives, defender, etc.);
- the guilty person made amends for the harm caused by the crime.
Only all the conditions together form the basis for releasing the person who committed the crime from criminal liability in connection with his reconciliation with the victim.
What do you mean by making amends?
Reconciliation between the perpetrator and the victim and between the victim and the perpetrator must be combined with the reconciliation by the perpetrator of the harm caused to the victim.
, compensation for harm should be understood as compensation for damage, as well as other measures aimed at restoring the rights and legitimate interests of the victim violated as a result of the crime. The victim may demand compensation for both material damage and compensation for moral damage.
Compensation or elimination of harm must be adequate to the harm caused. The perpetrator cannot be released from criminal liability in connection with reconciliation if the harm caused to the victim is not made up for in accordance with the requirements stated by him.
If the victim is not satisfied with compensation for harm, the perpetrator cannot be released from criminal liability in connection with reconciliation, since such reconciliation cannot be recognized as such due to the failure to fulfill all the conditions set out in the law.
If the victim has made a demand for compensation for moral or material damage, many times greater than the harm caused, and insists on its fulfillment, the case must be considered in court with a thorough examination of all the arguments of both the victim and the defendant. If the parties at the court hearing agree on the amount of damages to be compensated and reconcile with each other, the court (judge) may issue a ruling (decision) to release the perpetrator from criminal liability and terminate the proceedings in connection with reconciliation.
Methods for making amends for damage, which must be legal and not infringe the rights of third parties, as well as the amount of compensation are determined by the victim.
What matters are impossible to reconcile?
Already based on the name of the analyzed grounds for termination of criminal proceedings, it follows that it cannot be applied in cases in which there are no victims. In other words, when there is simply no one to put up with, although formally under all other conditions this is permissible.
These are crimes that harm not a specific person or organization, but the interests of society and the state as a whole. For example, these could be crimes prosecuted:
- Parts 1 and 2 art. 171.2 – illegal organization and conduct of gambling;
- Part 1 Art. 201 – abuse of power in non-governmental organizations;
- Part 1 Art. 222 – illegal possession of weapons;
- Parts 1 and 2 art. 242 – production and circulation of pornographic materials and other similar things.
Forms of making amends
Depending on what kind of harm is caused (moral, material or physical), making amends for the harm can be expressed in different forms.
Moral damage can be mitigated by sincere repentance for what was done and a request to the victim to forgive the criminal act committed. The victim may demand a public apology from the perpetrator, made in a certain form for a wide range of people.
Material damage can be compensated for by actual compensation in monetary or other form (for example, by repairing a damaged item, providing another item to replace the damaged one, etc.).
Physical harm can be mitigated by providing various types of medical services to the victim at the expense of the perpetrator, but is often compensated through monetary compensation, the amount of which is determined by agreement between the victim and the person who committed the crime.
Who can be a victim? Several victims and several perpetrators
The victims , in accordance with Part 1 of Art. 42 of the Code of Criminal Procedure of the Russian Federation is an individual to whom a crime has caused physical, property, or moral harm, as well as a legal entity in the event that a crime causes damage to its property and business reputation. In this regard, after reconciliation with the victim, not only cases in which the object of an attack is the life, health or property of an individual, but also cases in which an attack was made on the property rights and interests of a legal entity can be terminated.
The victim is a minor
To protect the rights and legitimate interests of victims who are minors, their legal representatives are involved in mandatory participation in a criminal case (Part 2 of Article 45 of the Code of Criminal Procedure of the Russian Federation), having the same procedural rights as the victim (Part 3 of Article 45 of the Code of Criminal Procedure of the Russian Federation).
If the opinion of a minor victim on the issue of reconciliation with the accused and termination of the criminal case does not coincide with the opinion of his legal representative, then there are no grounds for termination of the criminal case in connection with the reconciliation of the parties (clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 19) .
Rights of the victim in the event of death of a person as a result of a crime
According to Part 8 of Art. 42 of the Code of Criminal Procedure of the Russian Federation in criminal cases of crimes, the consequence of which was the death of a person, the rights of the victim, provided for in Article 76 of the Criminal Procedure Code of the Russian Federation, pass to one of his close relatives (see paragraph 4 of Article 5 of the Code of Criminal Procedure of the Russian Federation) and (or) close persons ( see paragraph 3 of Article 5 of the Code of Criminal Procedure of the Russian Federation), and in their absence or the impossibility of their participation in criminal proceedings - to one of the relatives (see paragraph 37 of Article 5 of the Code of Criminal Procedure of the Russian Federation), who is recognized as the victim. For example, in a criminal case of causing death by negligence (Part 1 of Article 109 of the Criminal Code of the Russian Federation), the spouse of the deceased may be recognized as the victim. Since the criminal procedure law does not contain any restrictions on procedural rights for persons recognized as victims in the manner established by Part 8 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, insofar as reconciliation of the perpetrator with the named persons can serve as a basis for releasing him from criminal liability.
Constitutional and legal interpretation of the provisions of Part 8 of Art. 42 of the Code of Criminal Procedure of the Russian Federation provides for the possibility of recognizing not one, but several persons as victims (for example, the mother and spouse of the deceased). Lack of reconciliation with at least one of the victims recognized in a criminal case should be considered as a circumstance preventing release from criminal liability in accordance with Article 76 of the Criminal Code of the Russian Federation.
Reconciliation with multiple offenders
If a crime is committed by several persons, only those who have reconciled with the victim and made amends for the harm caused to him may be released from criminal liability in connection with reconciliation with the victim.
Reconciliation with multiple crime victims
If, as a result of a crime, several victims suffered (for example, a person intentionally caused moderate harm to the health of two persons), then the lack of reconciliation with at least one of them prevents the person from being released from criminal liability on the basis of Article 76 of the Criminal Code of the Russian Federation.
Controversial situations
There are crimes where the victim is a representative of the state and, in addition to his personal rights and interests, harm is caused to the interests of the state - this is a feature of the object of criminal attack in such acts. Such a victim is not vested with the authority to “forgive” on behalf of the state.
This category includes, among others, common acts under Part 1 of Art. 318, punishing violence against a representative of the authorities, 319 – for insulting him and others.
However, the law does not directly prohibit the termination of such cases through reconciliation with the victims. State prosecutors object to such a decision for the above reason, but the courts, having established compliance with the necessary conditions, the nature and method of making amends, terminate such cases.
Cases in which Article 76 of the Criminal Code of the Russian Federation does not apply
In situations where harm is caused to the interests of society or the state and there is no victim - a person to whom the crime has caused physical, property, or moral harm, as well as a legal entity in the event of damage to its property or business reputation by the crime (Part 1 of Article 42 of the Code of Criminal Procedure of the Russian Federation ), the provisions of Article 76 of the Criminal Code of the Russian Federation cannot be applied. A person who has committed a crime may be released from criminal liability on other grounds provided by law.
A criminal case cannot be terminated in the absence of a statement from the victim
Since exemption from criminal liability on the grounds provided for in Article 76 of the Criminal Code of the Russian Federation can take place only at the request of the victim, his legal representative or representative (see Article 25 of the Criminal Procedure Code of the Russian Federation), then in cases of abuse by these persons of their procedural rights (for example, obvious overestimation of the amount of material damage or compensation for moral damage), the criminal case cannot be terminated in the absence of a statement from the victim or his representatives.
Is it possible to withdraw the application?
Regardless of what crime the law enforcement authorities have received a complaint about, it is impossible for any reason, even if the parties have reconciled.
Any message is reviewed and a procedural decision is made. It depends on the circumstances established.
For example, in cases of private and private-public prosecution, the absence of a statement from the victim (the same will be the subsequent statement of unwillingness to prosecute) may be grounds for refusal to initiate a case (Clause 5, Part 2, Article 24 of the Code of Criminal Procedure of the Russian Federation). An exception is the cases described in Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, one of them is the commission of a crime by an unidentified person.
According to reports of crimes for which criminal prosecution is carried out in public, the absence of a statement from the victim, his reluctance to bring anyone to justice is not a reason not to initiate a case.
Stages at which a criminal case may be terminated due to reconciliation with the victim
The decision to terminate a criminal case (or to refuse to initiate it) in connection with the reconciliation of the person who committed the crime with the victim can be made by the inquirer, investigator (Article 25 of the Code of Criminal Procedure of the Russian Federation), as well as by the court at any time during the trial, up to the removal of the court to the deliberation room for sentencing.
Exemption from criminal liability in connection with reconciliation with the victim is a right of the competent authorities, and not an obligation.
When resolving the issue of exemption from criminal liability, courts should also take into account the specific circumstances of the criminal case, including the characteristics and number of objects of criminal assault, their priority, the presence of the freely expressed will of the victim, the change in the degree of public danger of the person who committed the crime, after making amends for the harm and reconciliation with the victim , the identity of the person who committed the crime, circumstances mitigating and aggravating the punishment (clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 19).
How the decision is made
The first thing that must happen in order for the consideration of the likelihood of termination of the case for reconciliation with the victim to begin is the receipt of the corresponding application from the victim, which was discussed above.
It is impossible to force him to write such a statement. It must be written voluntarily and consciously. The only way is to achieve reconciliation. Even if the damage is compensated, the harm is smoothed out, there are all conditions other than consent, but the victim does not want the criminal prosecution of his offender to end, there can be no talk of reconciliation.
Reconciliation of the parties before trial at the investigation stage
When a victim’s statement is received during the investigation, all other conditions are present for making a decision, the investigator or investigator investigating the case has the right, but is not obligated, to terminate it under Art. 25 Code of Criminal Procedure of the Russian Federation.
In order to make an appropriate decision, the investigator must obtain the consent of his supervisor, and the interrogating officer must obtain the consent of the prosecutor. Without such consent this is impossible.
However, in practice, before the trial, cases of termination of the case by reconciliation of the parties are rare. Investigators and interrogators exercise the right not to make this decision, justifying the refusal to satisfy the victim’s application on the nature and severity of the crime. This happens for the sake of statistics - the indicators of the number of cases sent to court are more important than the indicators of their termination.
Reconciliation of the parties in court
When a victim’s application is received, the case is considered during the judicial hearing and the presence of other conditions is examined.
If they are met, the court, among other things, through questioning the victim, checks whether he wrote a statement voluntarily, whether reconciliation has really been achieved, whether harm and damage have been compensated, and how.
The consequences of termination are explained to the defendant, his consent to this decision is requested, and it must be reflected in writing. Opinions on this matter from other participants in the process are also heard.
If there are no obstacles, the court terminates further proceedings in the case for reconciliation with the victim.
Vera Viktorovna Dolganina
Practicing lawyer with more than 10 years of experience.
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For the court, it is not of fundamental importance whether the case is considered on the merits with a verdict or with the termination of the case on non-rehabilitating grounds. Termination on the grounds in question most often occurs precisely at this stage of the process. The court, unlike the investigative bodies, exercises its right to terminate the case.
Reconciliation of the parties in a case of a crime under Art. 264 of the Criminal Code of the Russian Federation
Termination of a criminal case for a crime under Article 264 of the Criminal Code of the Russian Federation, subject to reconciliation of the parties (Article 25 of the Criminal Procedure Code of the Russian Federation) is a right, not an obligation of the court. When making a decision to terminate a criminal case in connection with the reconciliation of the person who committed the crime with the victim, the court must comprehensively examine the nature and degree of public danger of the crime, information about the identity of the defendant, other circumstances of the case (whether the person was recognized as a victim, his financial situation, whether whether there was pressure on the victim for the purpose of reconciliation, what actions were taken by the perpetrator in order to make amends for the harm caused by the crime, etc.). When making a decision, you should evaluate whether it corresponds to the goals and objectives of protecting the rights and legitimate interests of the individual, society and the state (clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 N 25 “On judicial practice in cases of crimes related to violation of rules road traffic and operation of vehicles, as well as their unlawful taking without the purpose of theft”).
The difference between a judicial fine and reconciliation of the parties
The unconditional and main difference between the termination of a case with a judicial fine and the termination after reconciliation of the parties is the obligation in the first case of the person released from liability to pay a certain amount of money to the state, the amount of which will be determined by the court.
In the second option, nothing needs to be done; the criminal prosecution ends with the issuance of an appropriate decision by an authorized person. That is, the absolute advantage of reconciliation is the absence of the need to pay a fine.
