Rights and obligations of the victim in a criminal case

Participation of the victim in the court hearing

06/06/2017

One of the conditions for the timely and objective consideration and resolution of criminal cases, the implementation of the principles of adversarialism, spontaneity, and a reasonable period of criminal proceedings is the appearance of all participants in the process at the court hearing.

Failure to appear at a court hearing by any of the participants in the process often leads to red tape and violation of the rights of not only the accused, but also victims, civil plaintiffs and defendants.

According to clause 14, part 2, art. 42 of the Code of Criminal Procedure of the Russian Federation, participation in court proceedings is the right of the victim, and only by being present at the hearing can he support the prosecution, speak in debates, and exercise other procedural rights. The victim, his legal representative, representative, as well as the civil plaintiff and his representative, according to Art. Art. 42, , Code of Criminal Procedure of the Russian Federation, has the right to take part in all court hearings on the case under consideration to protect their rights and legitimate interests.

In certain cases, a criminal case may be considered in the absence of the victim. The conditions for making such a decision include the following: 1) the victim was duly notified of the time and place of the court hearing; 2) the court, taking into account the opinions of the parties, considered it possible to consider the case without the participation of the victim. In this case, the victim may request that the case be considered in his absence, or fail to appear without specifying the reasons, or request the postponement of the proceedings for reasons recognized by the court as unjustified.

The reasons for failure to appear at a court hearing can be divided into three groups:

1) unintentional (when the person did not know at all about the need to come to court, for example, if the person was not summoned to court);

2) intentional (when a person, for one reason or another, avoids appearing in court);

3) respectful (when a person is promptly notified of his summons to court, but cannot overcome the circumstances that prevent him from appearing at the court hearing).

The victim does not have the right to avoid appearing in court (Part 5 of Article 42 of the Code of Criminal Procedure of the Russian Federation). Ensuring that the court fulfills the obligations of victims to appear when summoned to court and give truthful testimony contributes to a comprehensive and complete establishment of the circumstances to be proven in criminal proceedings and the adoption of a legal, informed and fair judicial decision.

Therefore, the consequence of the victim’s failure to appear without good reason or evasion of appearing at a court hearing, if the victim’s participation in the consideration of the case is recognized as mandatory, may be his bringing in the manner prescribed by Art. 113 of the Code of Criminal Procedure of the Russian Federation (Part 6 of Article 42 of the Code of Criminal Procedure of the Russian Federation), and in the cases specified in Art. 117 of the Code of Criminal Procedure of the Russian Federation, - monetary penalty (clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 29, 2010 No. 17).

The validity of reasons for failure to appear at a court hearing is assessed by the court in each specific situation (the most common valid reason is illness).

Of particular procedural importance is the establishment of the reasons for the failure of the victim to appear when considering criminal cases of private prosecution, since in accordance with Part 3 of Art. 249 of the Code of Criminal Procedure of the Russian Federation in this category of cases, the failure of the victim to appear without good reason entails the termination of the criminal case on the grounds provided for in paragraph 2 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation (due to the lack of corpus delicti).

Another procedural consequence of the victim’s failure to appear at the court hearing is the possibility of reading out the testimony he previously gave in accordance with Part 2 of Art. 281 Code of Criminal Procedure of the Russian Federation. At the same time, the law provides an exhaustive list of reasons for the victim’s failure to appear, if established, previously given testimony can be read out: 1) death of the victim or witness; 2) serious illness that prevents you from appearing in court; 3) refusal of a victim or witness who is a foreign citizen to appear when summoned by the court; 4) a natural disaster or other emergency circumstances preventing an appearance in court.

The appearance of the victim at the court hearing may be of decisive importance when deciding on a special procedure for the trial in accordance with Chapter. 40 of the Code of Criminal Procedure of the Russian Federation, since one of the conditions for the application of this procedure is the consent of the victim (Part 1 of Article 314 of the Code of Criminal Procedure of the Russian Federation). Of course, such consent can be given before the start of the court hearing, since the law does not say anything about at what stage and how it should be obtained. Taking into account the changes in clause 14, part 2, art. 42 of the Code of Criminal Procedure of the Russian Federation, introduced by Federal Law of December 28, 2013 N 432 - FZ, the victim has the right to participate in the trial of a criminal case in the courts of the first, second, cassation and supervisory instances, to object to the sentencing without holding a trial in the general manner.

Thus, the legal consequences of the failure of the victim (private prosecutor) to appear at the court hearing may consist in the termination of the criminal case of private prosecution in accordance with Part 3 of Art. 249 of the Code of Criminal Procedure of the Russian Federation, in making a decision to apply coercive measures to the victim in the form of a detention or a monetary penalty, to postpone the court hearing, to read out the testimony previously given by the victim in accordance with Part 2, 2.1 of Art. 281 of the Code of Criminal Procedure of the Russian Federation, as well as the impossibility of clarifying its relationship to the defendant’s petition for a special trial procedure. In any case, when making procedural decisions, courts must carefully determine the reasons for the failure of victims to appear.

Good reasons

Before scheduled proceedings in court, judges inform all participants in the process of the date, time, and address of the meeting. All persons participating in the meeting receive notice of a future hearing. If you have been served with such a notice, you must either come to the courtroom or give reasons why you cannot attend.

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Any reason must be confirmed in writing. The best option is to notify the judge in advance that you will not be able to make it on time. Only valid reasons must be reported. Practice has shown that the explanation “due to family circumstances” is recognized by the court as a valid reason.

If it was not possible to notify the judge, then valid reasons for absence from the trial are:

• illness of a citizen, illness of a person for whom he must provide care;
• the need to attend the funeral of a relative;
• business trip;
• an accident or catastrophe that is an insurmountable obstacle;
• notice of the trial was delivered to the citizen late;
• absence from Russia (vacation is not considered a valid reason).

Reference! All reasons are reviewed by the judge. If he considers the reason for failure to appear to be disrespectful, a fine may be imposed on the citizen. He may be forcibly brought to the court hearing.

There are often reasons that citizens consider valid, but in fact are not. Such reasons include:

• lack of funds for travel to the court;
• forgetfulness, due to which a person missed a court hearing;
• rush job.

Work is not considered a valid excuse for missing a trial. Any employer is obliged to give the employee the opportunity to appear at the meeting. The judge issues a summons to the citizen indicating the length of time during which the person was in court.

The citizen provides this summons to his employer. To obtain this paper, you must contact the secretary of the court session. Issuing such a subpoena is a right, not an obligation, of the court.

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Reasons for absence that are not considered valid

Here everything depends on the court’s assessment of the circumstances of the summoned person’s failure to appear. Practice shows that, for example, leaving on a tourist package, even if purchased in advance, is not recognized by the court as a valid reason. A person who lives within walking distance from the courthouse will not be able to plead the inability to get to the court hearing due to transport problems.

In addition, documentary evidence of the reasons cited by the person is required. A certificate from the hospital with a doctor’s signature and seal, a travel document, a certificate from the housing department about the breakdown of utility systems in the house - such documents must be provided to confirm valid reasons for failure to appear in court.

Absence of witnesses at the trial

The participation of a person as a witness is determined by law. The presence of a witness is a consequence of his notification through a subpoena. A person can be informed of his presence at a meeting as a witness using a telegram, telephone message, fax, or registered letter. Lately, SMS notifications about appointment of witness status have gained popularity. Telephone is not recognized as a notification method. Obstacles to the appearance of a witness vary. The judge will accept the witness's explanations about his absence if they are valid. The court independently considers the reason for the absence of a witness and makes a ruling on his bringing or consideration of the case without his presence. Various judicial codes have established their own way of dealing with negligent witnesses. For example, the Administrative and Civil Codes establish the possibility of imposing a fine on a witness in the amount of 1,000 rubles and forced arrest. Criminal proceedings determine the right of the court to bring witnesses against their will and impose a fine of 2,500 rubles. The government proposes to introduce criminal penalties for violation of procedural rules. At the moment, such a penalty is not in effect.

Why is it important to ensure the attendance of all participants in the trial?

In order for the trial of any case - criminal, civil or administrative - to be as complete as possible, the judge must interview all persons who can provide important information on the merits of the case. The plaintiff and defendant, suspect and victim, as well as witnesses must appear in court and answer the judge’s questions in detail. The more diverse data there is on the case, the more objective the decision will be. And because it must be fair, it is imperative that all persons to whom court notices have been served be present in court.

Failure to appear in civil proceedings

The absence of participants in civil proceedings is regulated by Article 167 of the Code of Civil Procedure. The judge will decide to postpone the proceedings if there is no information about notifying the absent persons about the civil dispute. The hearing will be adjourned by order of the court if the participant has given reasonable notice of the reasons for his or her failure to appear. They must be recognized as respectful. The defendant has the right to attend the hearing and defend his or her position. The court clerk must notify the plaintiff, defendant, and other parties of the scheduled hearing. His duty is to issue subpoenas. A defendant who wishes to defend his civil position has the opportunity to report his future absence from the hearing. If the court received the petition and took into account the defendant's reasons, the judge will hear the case. In Russian judicial practice, the defendant submits a request to consider the case in his absence. In such a situation, failure to appear will not constitute an evasion by the defendant. The court will send copies of the decision upon prior request from the defendant.

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At the request of the plaintiff or defendant, the proceedings will be postponed if the reasons presented are valid. When the plaintiff fails to appear for the first time, the court will learn about the reasons for his absence and decide to postpone the hearing or hold a hearing in the plaintiff’s absence. The period for postponing the consideration of the case is determined on the plaintiff’s own initiative or at the request of the plaintiff.

The Civil Procedure Code recognizes the need to close civil proceedings if the plaintiff fails to appear again and the opponent is unwilling to consider the dispute. The plaintiff's statement will not be taken into account when both parties are absent again and there are no motions to hear the case in their absence. In some circumstances, the case will be decided in absentia.

Experts, interpreters and other persons will be brought to the hearing if their presence is required and there are no valid reasons. Otherwise, the court will decide on the time to consider the civil claim.

What are the consequences of absence from administrative work?

The judge postpones the hearing on the administrative case in situations where the following does not appear in the courtroom:

• any of the citizens who participate in the proceeding, and it must be unknown whether they received notice of the day and place of the proceeding;
• a duly notified offender who does not have state or other public powers and must be present at the proceedings in the courtroom;
• an authorized representative of a citizen who participates in legal proceedings.

Attention! If citizens who must necessarily participate in the hearing do not appear in the courtroom, the judge imposes a fine on them. If the offender fails to appear again, the offender may be subject to arrest.

If all participants in the proceedings who were duly notified of the date and place of the hearing did not appear at the court hearing, the judge shall consider the administrative case in a simplified manner.

The maximum fines for failure to appear in court in an administrative case are as follows:

• individual – 5000 rub.;
• official – 30,000;
• civil servant, municipal employee – 10,000;
• legal entity – 50,000;
• local government body, other bodies and organizations with state or other public powers – 80,000;
• government agency, other government agency – 100,000.