Defense of a lawyer under Art. 318 of the Criminal Code of the Russian Federation

New edition of Art. 318 of the Criminal Code of the Russian Federation

1. Use of violence not dangerous to life or health, or threat of violence against a government official or his relatives in connection with the performance of his official duties -

shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by forced labor for a term of up to five years, or by arrest for a term of up to six months, or by imprisonment for a term of up to five years.

2. The use of violence dangerous to life or health against the persons specified in part one of this article -

is punishable by imprisonment for a term of up to ten years.

Note. In this article and other articles of this Code, a representative of the government is recognized as an official of a law enforcement or regulatory agency, as well as another official vested with administrative powers in accordance with the procedure established by law in relation to persons who are not officially dependent on him.

Defense of a lawyer under Art. 318 of the Criminal Code of the Russian Federation

December 27, 2022 P R I G O V O R

In the name of the Russian Federation

Tyumen city September 28, 2022

Central District Court of Tyumen, consisting of:

presiding judge – judge S.V. Romanova,

with the participation of: public prosecutor - assistant prosecutor of the Central Autonomous District of Tyumen Lipovtseva N.E.,

victim FULL NAME2,

defendant's full name,

defender - lawyer of the Tyumen Interregional Bar Association R.D. Ospanov, acting on the basis of warrant No. dated <data taken>

under the secretary Koshkarova-Plokhova M.Yu.,

having examined in open court criminal case No. in relation to:

Full name, <data taken>,

U S T A N O V I L:

FULL NAME. guilty of using violence not dangerous to life and health against a government official in connection with the performance of his official duties.

She committed the crime in the city of Tyumen under the following circumstances.

DD.MM.YYYY in the period of time from <data taken> Full name 2, appointed by order of the head of the Ministry of Internal Affairs of Russia at <address> from DD.MM.YYYY No. l/s to the position of detective (location <address>) of the department of economic security and Anti-Corruption Ministry of the Ministry of Internal Affairs of Russia “<data taken>”, while in the performance of their official duties, at <address>, acting within the framework of the execution of the investigator’s order to carry out operational support of criminal case No. on an economic crime, during a search of a home Full name, carried out for the purpose of finding documents relevant to the criminal case, took part in the seizure of a laptop from Full name

Full name DD.MM.YYYY during the period of time from <data seized> <data seized>, being at <address>, acting deliberately, with the aim of impeding the legitimate activities of a police officer, FULL NAME2, realizing that the latter is a representative of the authorities and is fulfilling his duties official duties, having used violence not dangerous to life and health against a police officer, FULL NAME2, in connection with the performance of his official duties, with the fingers of her hand, FULL NAME2, inflicted abrasions on the head and neck of the latter, which did not cause harm to health, as they did not entail short-term health disorders or minor permanent loss of general ability to work, causing by his actions to the police officer FULL NAME2 physical pain and the specified bodily injuries.

The defendant's full name did not admit guilt in committing the crime set out in the descriptive part of the verdict and showed to the court that DD.MM.YYYY two unknown persons broke into her home, who subsequently used violence against her, that FULL NAME 2 is a police officer she did not know, she did not cause and could not cause bodily harm to the victim, FULL NAME2, since she practically does not raise her right arm due to an existing illness, and the bodily injuries appeared on the head and neck, FULL NAME2, earlier than DD.MM.YYYY. She does not agree with the claims of FULL NAME2.

Having checked and assessed the evidence presented in the case in its entirety, the court came to the conclusion that the defendant’s guilt was fully proven by the testimony of the victim, witnesses and other case materials.

Thus, the guilt of the full name in committing a crime is confirmed by the totality of the following evidence examined by the court.

The testimony of the victim, FULL NAME2, from which it follows that, as part of the support of the criminal case DD.MM.YYYY, during the period of time from <data seized> <data seized>, they conducted a search in the home of Veksler L.A., located at the address < address>. Before the search began, investigator FULL NAME 10 announced a resolution authorizing the search, they introduced themselves as the full name living in the home, and presented their official identification. The investigator was wearing the uniform of a police officer. The search was carried out by investigator FULL NAME10 in the presence of witnesses. During the search, the investigator decided to confiscate the laptop. During the seizure of the laptop by the investigator, FULL NAME 10, he stood in the doorway of the apartment, FULL NAME 10, between the kitchen and the hallway, thereby removing FULL NAME from FULL NAME 10, in whose hands the laptop was located. At that moment, Full Name inflicted scratches on him in the area of his right temple, ear and neck. FIO's actions were expressed in a single application, however, scratches from her fingers appeared on the neck and in the face area. These actions were recorded by one of the witnesses on a cell phone. The video clearly shows how FIO deliberately caused him damage. Before his full name arrived at his home, he did not have any bodily injuries. He supports the civil claim to recover compensation for moral damage from the full name, but reduces the claim to 50,000 rubles.

Of those announced with the consent of the parties in the manner established by Part 1 of Art. 281 of the Criminal Code of the Russian Federation, the testimony of the victim, FULL NAME2, also follows that when he stood in the doorway between the kitchen and the hallway, turning his torso and head towards FULL NAME10, he found himself half a turn to his full name and at that moment he felt a sharp pain in the area of his right temple, right ear and the right side of the neck, and noticing the right hand of the full name, I realized that the latter had scratched him. He experienced physical pain from the actions of his full name (<data taken>

The same circumstances follow from the protocol for accepting an oral statement of crime from DD.MM.YYYY, according to which FULL NAME2 requests that the full name DD.MM.YYYY be held criminally liable during the period from <data taken>, being at <address> , located at <address>, acting deliberately, with the aim of interfering with his legitimate activities, using violence, scratched him with her fingers in the area of the head and neck <data taken>

According to what was announced with the consent of the parties in the manner established by Part 1 of Art. 281 of the Code of Criminal Procedure of the Russian Federation, according to the testimony of witness FULL NAME10 from DD.MM.YYYY, DD.MM.YYYY, detective FULL NAME2 provided operational support during the search at <address>. At the time of seizure of the laptop, full name. with her hand from top to bottom she made scratches on the face and neck FULL NAME2, as a result of which abrasions in the form of scratches, pronounced red, appeared on the latter’s right temple, right cheek and right side of the neck, and blood appeared on the neck. From these actions, full name. FULL NAME7 experienced physical pain (<data taken>).

From the testimony of witness FULL NAME8 it follows that he took part as a witness during the search in the home of FULL NAME8 at <address>. The search was carried out by an investigator who was in uniform as a police officer. Before the search began, the full name of the person living in the home was announced, and the police officers presented their official IDs. During the seizure of the laptop, FULL NAME began to interfere with the seizure, shouting that she would not give up the laptop, and trying to snatch the laptop from the hands of a police officer, she scratched the second police officer, FULL NAME9, on the head in the temple, ear, and neck. At the same time, the police officer, FULL NAME9, told his full name that he was an investigator of the OBEP and presented his official ID. As a result of her actions, scratches appeared on the police officer’s body and were bleeding. Before this, the police officer had not suffered any injuries. Everything that happened was recorded by the second witness FULL NAME11 on a cell phone.

Of those announced at the request of the state prosecutor in the manner established by Part 3 of Art. 281 of the Code of Criminal Procedure of the Russian Federation, the testimony of the witness FULL NAME8 also follows that FULL NAME, standing in the doorway between the kitchen and the hallway, when FULL NAME10, together with the laptop, tried to go out into the hallway and passed by the FULL NAME, the latter tried to snatch the laptop from the hands of FULL NAME10, but the latter did not give it back. Then FULL NAME7 intervened and removed the full name. from FULL NAME10, and then stood in the doorway, interfering with the actions of FULL NAME. When FULL NAME7 turned his torso and head towards FULL NAME10, standing behind him, to ask something, FULL NAME at that moment extended her right hand to the head of FULL NAME7 and ran her hand from top to bottom, squeezing her fingers with her nails scratched the right side of her face, ear and neck, FULL NAME7, while she was indignant, screaming, demanding that the laptop be returned to her. FULL NAME7 complained of pain in the area of the injuries (<data taken>). After the reading of the testimony, the witness FULL NAME8 fully confirmed it.

Witness FULL NAME11 testified at the court hearing that he took part as a witness during a search in the home of FULL NAME11 at <address>. The search was carried out by two police officers FULL NAME10 and FULL NAME9 Police officer FULL NAME10 was in the uniform of a police officer. Before the search began, the police officers introduced themselves by full name, stated their last names and the police agency for which they work, demonstrated their official identification, and also announced the decision to conduct the search and explained the rights and obligations of the persons involved. During the search, full name. I didn’t want to give up the laptop that the police were trying to seize. During the seizure of the said laptop, when it was in the hands of FULL NAME 10, when leaving the room into the corridor, FULL NAME began to scream loudly, behaved aggressively, persistently asked not to seize the laptop, after which she attacked the police officer, FULL NAME 9, and scratched his face with her hand. He saw fresh bleeding injuries on FULL NAME9 in the area of the right half of the face and ear. He recorded everything that happened on his mobile phone. Subsequently, he copied the recording from the phone onto a CD and handed it over to the preliminary investigation authorities.

According to the expert's conclusion No. from DD.MM.YYYY, carried out in a criminal case of a medical forensic examination, FULL NAME2 DD.MM.YYYY was found to have abrasions on the head and neck that arose within one day before the examination, namely: in the right temporal region ( 1), on the front surface of the right auricle (2), on the right side surface of the neck in the upper third (1) of a stripe shape, not entailing a short-term health disorder or a slight permanent loss of general ability to work, not causing harm to human health <data removed >).

From the protocol of inspection of the scene of the incident dated DD.MM.YYYY it follows that the scene of the incident is <address> <data taken>

According to the seizure protocol from DD.MM.YYYY, a CD “DVD-RW” with a recording of the events that occurred DD.MM.YYYY was seized from witness FULL NAME11 with a recording of the events that occurred DD.MM.YYYY at <address> <data seized>).

As follows from the inspection protocol of items dated DD.MM.YYYY, the seized DVD-RW CD was inspected. During the inspection, when viewing the video file available on the CD, it was established that there were two police officers in the apartment, one of whom was in uniform, as well as other individuals and full names. During the course of the police officer confiscating a laptop from the full name, last with her hand caused bodily injuries to the head and neck of a police officer, FULL NAME2 (<data taken>). The specified CD was recognized and added to the criminal case as material evidence (<data seized>

The same circumstances were established when examining the material evidence at the court hearing and viewing the video file available on the CD. At the same time, the defendant's full name confirmed that the events were taking place DD.MM.YYYY in her apartment, and she, police officers FULL NAME10 and FULL NAME2, as well as witnesses were present in the video recording.

According to the official regulations of the detective department of economic security and anti-corruption of the Ministry of Internal Affairs "Tyumensky" FULL NAME2 from DD.MM.YYYY, approved by the head of the Ministry of Internal Affairs of Russia "<data taken>" FULL NAME12, the official responsibilities of FULL NAME2 include the organization and implementation of operational support of criminal cases of economic and corruption (<data taken>

From the order of the head of the Russian Ministry of Internal Affairs at <address> from DD.MM.YYYY No. l/s, it follows that Full Name2 with DD.MM.YYYY was appointed to the position of detective officer (location <address>) of the Department of Economic Security and Anti-Corruption of the Ministry of Internal Affairs of the Russian Federation <data taken>

As follows from the certificate of the acting head of the ORLS of the Ministry of Internal Affairs of the Russian Federation “<data taken>” Full name 13 from DD.MM.YYYY DD.MM.YYYY detective officer (location <address>) of the department of economic security and anti-corruption of the Ministry of Internal Affairs of the Russian Federation “<data seized>" Full name2 was in service (<data seized>

According to a copy of the resolution to initiate a criminal case No. dated DD.MM.YYYY by the investigator of the SO OP (<data taken> Ministry of Internal Affairs of Russia “<data taken>” FULL NAME14 a criminal case was opened on the fact of abuse of power by a person performing managerial functions in SNT “< data confiscated>

As follows from the copy of the resolution <data seized> of the court <address> dated DD.MM.YYYY, the preliminary investigation body in criminal case No. received permission to carry out a search in the home located at the address: <address> for the purpose of confiscating objects and documents, related to the criminal case under investigation. According to the mark on the resolution, DD.MM.YYYY in <data taken> it was presented with full name, but the latter refused to sign <data taken>

From the copy of the order addressed to the head of the OEB and the PC of the Ministry of Internal Affairs of Russia <data taken>” FULL NAME15 from DD.MM.YYYY it follows that the investigator FULL NAME10 instructs the body of inquiry to assist in conducting a search in the home of Veksler M.B. According to the resolution of the head available on the order, the investigator’s order was transferred for execution FULL NAME2 <data taken>.

According to the search protocol from DD.MM.YYYY, a search was carried out in the home of the full name, located at the address: <address>, DD.MM.YYYY in the period from <data seized> minutes. During the search, FULL NAME, interfering with the police officer FULL NAME2, scratched the latter in the neck area with her hands (<data taken>

The court, after checking the evidence of guilt, full name. in the use of violence, not dangerous to life and health, against a representative of government in connection with the performance of his official duties, recognizes them as relevant, reliable and acceptable, obtained in accordance with the requirements of the law. There are no grounds for declaring the evidence inadmissible, and therefore the defense’s arguments in this part are untenable.

Having assessed the examined evidence in its entirety, the court considers it sufficient, and the defendant’s guilt in the crime has been established. The verdict is based on the testimony of the victim FULL NAME2, witnesses FULL NAME8, FULL NAME11, given by them at the court hearing, as well as their and the witness FULL NAME10 testimony given during the preliminary investigation and read out at the court hearing, which are consistent both with each other and with other examined evidence .

The court has no reason not to trust the testimony of the victim and witnesses. The stability and thoroughness of the testimony of the victim and witnesses, the absence of reasons for slander and the consistency of the testimony with other evidence indicate the veracity of the testimony.

Arguments of the defendant Full Name that DD.MM.YYYY two unknown persons broke into her home, who did not introduce themselves, she did not know that Full Name 2 was a police officer, and she did not and could not cause bodily harm to the victim Full Name 2, since practically does not raise his right hand due to an existing illness, and the bleeding on the neck of FULL NAME2 was formed as a result of unintentional actions, the court rejects it, considers them a way of defense in order to avoid criminal liability for the act, since they are not confirmed by anything and are refuted by consistent, consistent testimony of the victim FULL NAME2, witnesses FULL NAME8, FULL NAME11, as well as the testimony of the witness FULL NAME10 read out at the court hearing, according to which, before the search began, FULL NAME2 and FULL NAME10 introduced themselves as police officers, presented their full name with service IDs, as well as the decision to conduct a search, explaining the procedure and goals of the investigative action being carried out, any injuries to the head and neck FULL NAME2 at the time of arrival at the home Veksler L.A. there were no injuries, and the bodily injuries on the head and neck of the latter were caused precisely by the actions of the defendant, full name, and are also refuted by the expert’s conclusion examined at the court hearing No. dated DD.MM.YYYY, according to which the abrasions on the head and neck of full name 2 were formed within one day before inspection <data taken>); protocol of inspection of items from DD.MM.YYYY (<data seized> and material evidence - a CD with a video recording of the events that occurred in the home <data seized>

At the court hearing, the arguments of the defendant Full Name about the illegal actions of police officers Full Name 9 and Full Name 10 were checked with a study of expert opinion No. dated DD.MM.YYYY, according to which a bruise appeared on the body of the Full Name 2-4 days before the examination, that is, before DD.MM.YYYY on the left shoulder, which did not cause harm to health, as if it did not cause disorder, which were not confirmed, since they are not confirmed by anything and are refuted by the testimony of the victim, FULL NAME2, witnesses, FULL NAME 8, FULL NAME 11, FULL NAME 10, who did not indicate any violations during the search and the use of illegal methods, as well as the resolution examined at the court hearing on the refusal to initiate a criminal case from DD.MM.YYYY, according to which, at the request of the full name of the illegal actions of police officers in terms of conducting a search and the use of physical violence against her by police officers, an investigation was carried out in in the manner established by Art. 144-145 of the Code of Criminal Procedure of the Russian Federation, as a result of which the initiation of a criminal case was refused on the basis of clause 1 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation, in connection with which the court rejects these arguments of the defendant.

Thus, the use of violence, not dangerous to life and health, against a government official in connection with the performance of his official duties was fully confirmed in the court hearing, since FULL NAME2 deliberately inflicted scratches with her own hand in the form of abrasions in the head and neck area, from which physical pain and bodily injuries arose, while the full name was aware that in front of her was a representative of the authorities, a police officer, full name 2, who was performing his official duties as part of the investigation of criminal case No.

The court believes that the victim’s bodily injuries occurred precisely from the intentional actions of the full name, and the infliction of scratches by the defendant’s hand in the form of abrasions in the area of the victim’s head and neck indicates that the full name had intent aimed at causing violence that is not dangerous to life and health against government representative.

Agreeing with the conclusions of the forensic expert, the court finds that the victim suffered bodily harm by causing scratches in the form of abrasions in the head and neck area by the defendant with her own hand. The period of occurrence of bodily harm coincides with the time of the crime.

The court qualifies the actions of the defendant's full name under Part 1 of Art. 318 of the Criminal Code of the Russian Federation, as the use of violence, not dangerous to life and health, against a government official in connection with the performance of his official duties.

When assigning punishment, determining the type and measure of punishment for the defendant, the court takes into account the nature and degree of public danger of the crime committed, which, in accordance with Part 3 of Art. 15 of the Criminal Code of the Russian Federation, belongs to the category of moderate gravity, the identity of the defendant, <data taken>

Circumstances mitigating the punishment Full name, in accordance with Part 2 of Art. 61 of the Criminal Code of the Russian Federation, the court recognizes the commission of a crime of average gravity for the first time, <data seized>.

Circumstances aggravating the punishment Full name, according to Art. 63 of the Criminal Code of the Russian Federation, not established by the court.

Taking into account all the circumstances of the case, the personality of the defendant, the impact of the imposed punishment on the correction of the convicted person and on the living conditions of her family, as well as the financial situation of the defendant, <data taken>, the court considers it impossible to sentence the defendant in the form of a fine or arrest, and taking into account the public the danger of the crime committed by the defendant, in order to restore social justice, the court decides to assign the defendant, full name, a sentence of imprisonment, which will contribute to the correction of the convicted person and prevent her from committing new crimes.

At the same time, the court believes that the defendant’s correction can be achieved by assigning her a suspended sentence, in accordance with Art. 73 of the Criminal Code of the Russian Federation, with a probationary period during which the full name must prove correction by its behavior, and the assignment of responsibilities that will contribute to its correction.

At the court hearing, exceptional circumstances related to the goals and motives of the crime, which significantly reduce the degree of public danger of the crime committed by the defendant, were not established, and therefore, the grounds for applying Art. 64 of the Criminal Code of the Russian Federation, the court does not see it.

Also, taking into account the actual circumstances of the crime and the degree of its public danger, the personality of the defendant, the court considers it impossible to change the category of the crime to a less serious one in accordance with Part 6 of Art. 15 of the Criminal Code of the Russian Federation.

In resolving the issue of a civil claim, the court comes to the following conclusion.

The victim, FULL NAME 2, filed a civil claim to recover compensation for moral damages from FULL NAME 2 in the amount of 100,000 rubles. At the court hearing, FULL NAME2 reduced the claims, determining the amount of compensation for moral damage in the amount of 50,000 rubles. The defendant's full name did not agree with the claims.

In accordance with Art. 151 of the Civil Code of the Russian Federation, moral harm is physical and moral suffering caused to a citizen by violation of his personal non-property rights. The right of a citizen to compensation for harm caused to health is one of the generally recognized fundamental inalienable human rights and freedoms, since it is directly derived from the right to life and health care, directly enshrined in the Constitution of the Russian Federation.

At the court hearing, it was established that the actions of the defendant caused physical and moral suffering to the victim, FULL NAME2, which the court has no doubt about, and therefore, he has the right to demand compensation for the harm caused from the defendant, FULL NAME

At the same time, based on the requirements of reasonableness and fairness, taking into account all the circumstances of the case, the age and financial situation of the defendant, guided by Art. 1099-1101 of the Civil Code of the Russian Federation, the court considers it necessary to reduce the amount of the claim and determine the amount of compensation to the victim, FULL NAME2, for moral damages with the defendant, FULL NAME, in the amount of 10,000 (ten thousand) rubles.

The issue of material evidence in the case is subject to resolution in the manner established by paragraph 5 of Part 3 of Art. 81 Code of Criminal Procedure of the Russian Federation.

Based on the above, guided by Articles 303-304, 307-309 of the Code of Criminal Procedure of the Russian Federation, the court –

PRI G O V O R I L:

Full name found guilty of committing a crime under Part 1 of Art. 318 of the Criminal Code of the Russian Federation and sentence her to imprisonment for a term of 1 (one) year.

In accordance with parts 1-3 of Art. 73 of the Criminal Code of the Russian Federation, the imposed punishment is considered suspended with a probationary period of 1 (one) year.

Based on Part 5 of Art. 73 of the Criminal Code of the Russian Federation, impose on the full name the following obligations: not to change permanent place of residence without notifying the specialized state body that monitors the behavior of the conditionally convicted person, to appear for registration with this body on the days specified by it.

The preventive measure, full name in the form of a written undertaking not to leave the place and proper behavior until the sentence enters into legal force, shall be left unchanged.

Physical evidence in the case after the verdict enters into legal force: a CD with a video recording - leave with the criminal case for the entire period of storage of the latter.

The claim of FULL NAME2 against FULL NAME for the recovery of compensation for moral damages is partially satisfied.

To recover 10,000 (ten thousand) rubles from Full Name in favor of Full Name 2 as compensation for moral damage, and to reject the rest of the claim.

There are no procedural costs.

The verdict can be appealed within 10 days from the date of its proclamation to the Judicial Collegium for Criminal Cases of the Tyumen Regional Court, by filing an appeal or submission through the Central District Court of Tyumen.

If an appeal is filed, the convicted person has the right to petition for her participation in the consideration of the criminal case by the appellate court, which she must indicate in her complaint.

The verdict was made in the deliberation room using a computer and printer.

Chairman S.V. Romanov

Judicial review.

The established judicial practice on crimes of this kind in the Novosibirsk region indicates that recently convicted persons have been sentenced to actual imprisonment. Considering the fact that the defendant committed a similar act after a short time, the latter, in the event of a guilty verdict, could most likely be sentenced to actual imprisonment.

The punishment under Article 319 of the Criminal Code of the Russian Federation does not provide for deprivation of liberty as such, and the fine provided for by the sanction of this article would suit the defendant quite well. According to the position agreed with the client, the latter did not deny the fact of the insult, but denied the presence of intent to cause violence to the police officer.

During the trial of the case, the intent to use violence was not proven in any way. In fact, everything was established the same as during the investigation. The defendant and the victim fell together, the policeman's hand was under the defendant's body. The victim claimed that the defendant forcefully pressed his hand to the asphalt. However, in response to clarifying questions from the defense, the victim said that he could not unequivocally say whether the defendant pressed his hand with force intentionally or accidentally. Direct evidence of the presence of direct intent, and, accordingly, the subjective side in the defendant’s actions to inflict violence against a representative of the authorities was not established during the trial.