Grounds for the emergence of the right to rehabilitation

New edition of Art. 133 Code of Criminal Procedure of the Russian Federation

1. The right to rehabilitation includes the right to compensation for property damage, elimination of the consequences of moral harm and restoration of labor, pension, housing and other rights. Harm caused to a citizen as a result of criminal prosecution is compensated by the state in full, regardless of the guilt of the body of inquiry, the inquiry officer, the investigator, the prosecutor and the court.

2. The right to rehabilitation, including the right to compensation for harm associated with criminal prosecution, has:

1) the defendant against whom a verdict of acquittal was made;

2) a defendant whose criminal prosecution has been terminated due to the public prosecutor’s refusal to charge;

3) a suspect or accused, criminal prosecution against whom has been terminated on the grounds provided for in paragraphs 1, 2, 5 and 6 of part one of Article 24 and paragraphs 1 and 4-6 of part one of Article 27 of this Code;

4) convicted person - in cases of complete or partial cancellation of a court conviction that has entered into legal force and termination of a criminal case on the grounds provided for in paragraphs 1 and 2 of part one of Article 27 of this Code;

5) a person to whom compulsory medical measures were applied - in the event of the cancellation of an illegal or unfounded court decision on the application of this measure.

2.1. The right to rehabilitation, including the right to compensation for harm, in the manner established by this chapter, in criminal cases of private prosecution have the persons specified in paragraphs 1-4 of part two of this article, if the criminal case was initiated in accordance with part four of Article 20 of this Code, as well as those convicted in criminal cases of private prosecution initiated by the court in accordance with Article 318 of this Code, in cases of complete or partial reversal of the court’s conviction and acquittal of the convicted person or termination of the criminal case or criminal prosecution on the grounds provided for in paragraphs 1, 2 and 5 of part one of Article 24 and paragraphs 1, 4 and 5 of part one of Article 27 of this Code.

3. Any person unlawfully subjected to measures of procedural coercion during criminal proceedings also has the right to compensation for harm in the manner established by this chapter.

4. The rules of this article do not apply to cases where procedural coercive measures applied to a person or a guilty verdict have been canceled or changed due to the issuance of an amnesty act, expiration of the statute of limitations, failure to reach the age of criminal responsibility, or in relation to a minor who although he had reached the age at which criminal liability begins, but due to mental retardation not associated with a mental disorder, he could not fully understand the actual nature and social danger of his actions (inaction) and manage them at the time of committing the act provided for by criminal law law, or the adoption of a law eliminating criminality or punishability of an act, with the exception of cases of a court ruling provided for in paragraph 1 of part three of Article 125.1 of this Code.

5. In other cases, issues related to compensation for harm are resolved through civil proceedings.

Grounds for the emergence of the right to rehabilitation - Article 133 of the Code of Criminal Procedure of the Russian Federation (as amended on April 24, 2020)

2. The right to rehabilitation , including the right to compensation for harm associated with criminal prosecution, has:

1) the defendant against whom a verdict of acquittal was made;

2) a defendant whose criminal prosecution has been terminated due to the public prosecutor’s refusal to charge; (as amended by Federal Law dated July 4, 2003 N 92-FZ)

5) a person to whom compulsory medical measures were applied - in the event of the cancellation of an illegal or unfounded court decision on the application of this measure.

2.1. The right to rehabilitation , including the right to compensation for harm, in the manner established by this chapter, in criminal cases of private prosecution have the persons specified in paragraphs 1 - 4 of part two of this article, if the criminal case was initiated in accordance with part four of Article 20 of this Code, as well as those convicted in criminal cases of private prosecution initiated by the court in accordance with Article 318 of this Code, in cases of complete or partial reversal of the court’s conviction and acquittal of the convicted person or termination of the criminal case or criminal prosecution on the grounds provided for in paragraphs 1, 2 and 5 of part one of Article 24 and paragraphs 1, 4 and 5 of part one of Article 27 of this Code. (Part 2.1 introduced by Federal Law dated 04/05/2013 N 54-FZ)

3. Any person unlawfully subjected to measures of procedural coercion during criminal proceedings also has the right to compensation for harm in the manner established by this chapter.

5. In other cases, issues related to compensation for harm are resolved through civil proceedings.

Progressive conclusions of the Constitutional Court of the Russian Federation

September 29, 2022 09:32

The rule that allows reducing the amount of compensation for a rehabilitated person’s expenses for a lawyer is unconstitutional

On September 23, the Constitutional Court issued
Resolution No. 41-P in the case of checking the constitutionality of the norms of the Code of Criminal Procedure of the Russian Federation regulating the procedure for compensation for property damage to a rehabilitated person and a turn for the worse when reviewing judicial acts in the cassation instance. The Constitutional Court called it unfair to reduce the amount of reimbursable costs to an amount that seems sufficient to the representatives of the tortfeasor, especially after the rehabilitation of the person who suffered from unlawful criminal prosecution. In a commentary to “ AG ,” the lawyer for the applicant noted that the progressive conclusions of the Constitutional Court will allow clients in the future to turn to the help of professional defense attorneys without fear of further refusal to reimburse legal expenses from the state if wrongful criminal prosecution is proven.
Reason for applying to the Constitutional Court

In January 2014, the investigator opened a criminal case against Alexey Atroshchenko under Part 3 of Art. 327 of the Criminal Code of the Russian Federation “Forgery, production or circulation of counterfeit documents, state awards, stamps, seals or forms.” At the end of the proceedings, the prosecutor returned it to the investigator twice - to conduct an additional inquiry and re-draft the indictment. In turn, the magistrate also twice returned the criminal case to the prosecutor. In December 2016, the criminal prosecution of Alexey Atroshchenko was terminated for lack of evidence of a crime, and his right to rehabilitation was recognized.

In March 2022, the court satisfied Alexey Atroshchenko’s claim for compensation for property damage related to the criminal prosecution. Subsequently, the prosecutor overturned the decision to terminate the criminal case, and therefore the decision on compensation was overturned on appeal.

Subsequently, Alexey Atroshchenko managed to obtain in court the decision to cancel the decision to terminate the criminal case as illegal. This decision came into force in December 2022. Next, he again went to court for compensation for damage caused by illegal criminal prosecution. As a result of the trial in favor of the man, the Russian Ministry of Finance, represented by the Federal Treasury Department for the Primorsky Territory, was charged the cost of legal assistance in a criminal case in the amount of 1.2 million rubles. and costs of paying for expert services in the amount of 21 thousand rubles. The appeal and cassation agreed with this decision.

Subsequently, the judge of the Supreme Court transferred the cassation appeal of the UFK to the Primorsky Regional Court, the presidium of which sent the case for a new appeal hearing. In February 2022, the appeal changed the decision of the first instance with a change in its execution, reducing the awarded amount of compensation and obliging Alexey Atroshchenko to return 900 thousand rubles. Subsequently, the cassation courts, including the Supreme Court of the Russian Federation, refused to consider the complaints of the rehabilitated citizen. At the same time, all authorities did not question the validity of the expenses incurred for legal assistance.

Subsequently, the court granted Alexey Atroshchenko an installment plan for 5 years to return the funds he had previously received, taking into account his marital status, the presence of disabled family members dependent on him, as well as family income and the credit obligations of the spouses. At the same time, during the trial it was established that the money that had previously been collected in favor of the citizen was used to pay off his debts on loans made earlier to pay for the assistance of a lawyer.

In a complaint to the Constitutional Court, Alexey Atroshchenko questioned the constitutionality of paragraph 4 of part 1 of Art. 135, art. 401.6 and clause 1, part 2, art. 401.10 Code of Criminal Procedure. In his opinion, the contested norms allow the courts, contrary to the terms of the contract for the provision of legal services, to refuse compensation for property damage to the rehabilitated person in the amount paid to the lawyer for the provision of legal assistance on the terms of a reasonable monthly payment.

The applicant added that the controversial norms also make it possible to worsen the situation of the rehabilitated person after a year has passed after the decision on compensation for attorney fees has entered into legal force and to consider the rehabilitated person’s complaint against the appeal decision on compensation for damage caused by illegal criminal prosecution, on the basis of a selective rather than a complete cassation.

The Constitutional Court identified a discrepancy with Art. 401.6 Code of Criminal Procedure of the Constitution

The Constitutional Court noted that the subject of its consideration is clause 4, part 1, art. 135 and art. 401.6 of the Code of Criminal Procedure of the Russian Federation to the extent that in the system of current legal regulation they serve as a normative basis for deciding the amount of compensation for expenses for legal assistance of a lawyer when compensating a rehabilitated person for property damage associated with his criminal prosecution (including reducing the amount already paid compensation to him upon review and reversal of the execution of the court decision to award the appropriate amounts).

The court recalled that the high cost of assistance received from a lawyer cannot, as such, serve as a reason for reducing the scope of the rehabilitated person’s rights to compensation for the harm caused to him, constitutionally guaranteed to every victim of illegal criminal prosecution. “Unlawful or unfounded criminal prosecution in itself may prevent the victim from being prudent and moderate in the costs of paying for legal assistance, and therefore significant costs for the services of a lawyer in protecting constitutional rights and values from such persecution cannot be considered groundless. In addition, the accused (suspect) has grounds to claim legal assistance of good quality and to receive it in sufficient volume in accordance with the intensity and duration of the accusatory activities carried out against him,” noted the resolution of the Constitutional Court of the Russian Federation.

The court also did not rule out the receipt of legal services without visible procedural activity of the defense, when it is preparing to competently respond to the actions of the prosecution, suggesting them in different ways, insofar as the criminal prosecution proceeds with long interruptions and the position of the prosecution is unclear, leaving the accused (suspect) in the unknown under the threat of deprivation or restriction of the rights and benefits belonging to him in the future of the use of criminal law coercion. “Under such circumstances, the refusal to recognize the rehabilitated person’s expenses for legal assistance cannot be considered fair. It cannot be considered correct to reduce the amount of compensation awarded to a rehabilitated person on the basis that, instead of individual services, he paid monthly or quarterly in a series of payments for legal assistance received for a long time. Moreover, such a reduction cannot be justified when a lengthy defense in a criminal case is due to a protracted criminal prosecution with repeated termination and resumption of proceedings, which forces the accused (suspect) to prove his innocence with excessive costs for defending his rights,” the Constitutional Court emphasized.

He also called it unfair to reduce the amount of reimbursed costs to an amount that seems sufficient to the representatives of the tortfeasor, especially after the rehabilitation of the person who suffered from unlawful criminal prosecution. Thus, the expenses that a person decides to incur in the context of such persecution cannot be considered unreasonable, even if they slightly exceed the average (for example, the amount of attorney’s fees at the place where the criminal case is being conducted). The fact is that these values are conditional and not so obvious that the accused (suspect) could use them to predict the cost of legal services, which the court will subsequently consider reasonable and fair in the decision to compensate the rehabilitated person for harm.

In law enforcement practice, the Constitutional Court noted, judgments about the actual cost of legal services vary greatly, since they depend on evaluative ideas about this. However, the approximate nature of such assessments should not lead to an infringement of the right to compensation for harm caused to the rehabilitated person in the form of expenses for legal assistance, and a refusal to fully compensate it would mean a derogation of constitutional rights and their judicial protection. “If legislation and judicial practice invariably oriented the courts towards reducing the amount of compensation for harm to those rehabilitated to the smallest values, this would lead to a drop in the volume and quality of legal assistance provided, limiting the right to receive it, guaranteed to everyone by Art. 48 of the Constitution of the Russian Federation,” the Court’s ruling emphasized.

Thus, the Constitutional Court considered that the rules of rehabilitation should be aimed, among other things, at minimizing, in relations arising from criminal prosecution and rehabilitation, new unfavorable experiences of the rehabilitated person arising from the implementation - even proper - by public authorities of their powers regarding him and his legitimate interests.

“In particular, each new immersion of a person into the environment of judicial proceedings, which have their genesis in the events of his criminal prosecution, can be psychologically traumatic for him, which the state, whose main goal and value is the person, should avoid as much as possible in relations with citizens, especially those in such legal status as rehabilitated. In a situation where the cassation court raises the question of reducing the amount awarded to the rehabilitated person in compensation for the costs of paying for legal assistance, exactly this negative effect arises. It is aggravated when the decision taken by the cassation instance entails a reversal of the execution of the judicial act with the imposition on the person who has suffered from unlawful criminal repression of monetary obligations to the causer of harm, and even more so if the debtor has to fulfill them at the expense of earnings, pensions, benefits and other similar income, which serve as a means of subsistence for a citizen and his family,” the Constitutional Court noted. At the same time, he also emphasized that other costs for the rights and legitimate interests of the rehabilitated should be taken into account to the extent that the latter may suffer as a result of the limitation or forced return of the amount of compensation awarded to him.

Thus, the Court found that paragraph 4 of Part 1 of Art. 135 of the Code of Criminal Procedure of the Russian Federation does not contradict the Russian Constitution, since it does not imply the refusal of a person who has suffered from an illegal or unfounded criminal prosecution to fully reimburse the costs of paying for legal assistance received by him, unless it is proven that part of his expenses presented for compensation is due to clearly other circumstances , rather than receiving such assistance directly in connection with the defense of the rehabilitated person from criminal prosecution, and at the same time the good faith of his claims for such compensation is not refuted.

At the same time, the Constitutional Court noted, Art. 401.6 of the Code of Criminal Procedure does not comply with the Basic Law of the state to the extent that it does not limit the period from the moment of entry into force of the judicial act on compensation of the rehabilitated expenses for legal assistance, during which a decision of the cassation court may be made to revise this act, entailing a change its execution and return of the amounts awarded to the rehabilitated person. Thus, the Court ordered a review of the judicial decisions in the applicant's case.

The federal legislator is also ordered to make the necessary changes to the current legal regulation. At the same time, the Constitutional Court pointed out, it is not deprived of the opportunity to include the relevant norms not in Art. 401.6 of the Code of Criminal Procedure, and other provisions of the Code or provide for another period limiting the review of the judicial act on compensation for harm caused to the rehabilitated person. Before the relevant changes come into force, the absence of an indication that a review by a cassation court of a judicial act on compensation for the rehabilitated harm caused by illegal or unfounded criminal prosecution, entailing a reversal in the execution of this act, is inadmissible, does not provide grounds for such a review beyond the year from the date of entry into force of this act. act into legal force.

Comment from the applicant's representative

In a comment to “AG”, the representative of the applicant, lawyer of the Primorsky Territory Administration, Alexander Bondarenko, said that from February 2014 to December 2022 he defended Alexey Atroshchenko in his criminal case. “I, among other things, carried out work to recognize as illegal the decision of the transport prosecutor to cancel the objective decision of the investigative body to terminate the criminal prosecution due to the absence of corpus delicti in the actions of the principal. In almost four years of painstaking work, it was possible to achieve a fair decision, after which almost three more years - from October 2022 to September 23, 2022 - it was necessary to defend the client’s rights to fair rehabilitation compensation. At the same time, there were several more “long-term” rehabilitation cases in my proceedings, which, fortunately, ended in more favorable decisions for the clients than in the Atroshchenko case, where the reversal of the court decision amounted to 900 thousand rubles,” he noted.

According to the lawyer, the ruling of the Constitutional Court put a fair and expected end to many disputes of a similar nature, when representatives of the Treasury of the Russian Federation, acting as a defendant on issues of rehabilitation, fundamentally appealed any, even objectively insignificant, penalties in favor of persons subjected to illegal criminal prosecution. “It is obvious that such a ruling of the Court contains not only a detailed and fundamental study of the legal issues outlined in Alexey Atroshchenko’s statement about his seven-year litigation, but also an analysis of all aspects of the legal guarantees of citizens provided for by the Constitution of the Russian Federation, and above all regarding the latter’s access to highly professional legal counsel help,” believes Alexander Bondarenko.

In his opinion, the progressive, understandable and applicable conclusions of the Constitutional Court of the Russian Federation, which form a “road map” in further judicial practice on rehabilitation issues, will allow clients in the future to turn to the help of professional defenders without fear of further refusal to reimburse legal expenses from the state if proven wrongful prosecution. “Finally, the Court’s detailed approach to examining the applicant’s arguments about the unconstitutionality of Art. 401.6 of the Code of Criminal Procedure of the Russian Federation in the part in which it, in law enforcement practice, allows the courts to worsen the situation of the rehabilitated person after one year after the decision on compensation for attorney fees has entered into legal force. I really hope that in the near future, on the basis of this resolution, changes will be made to the Code of Criminal Procedure of the Russian Federation that will allow rehabilitated persons to calmly dispose of the compensation provided to them by the state,” the lawyer expressed his hope.

AG experts supported the conclusions of the Constitutional Court

Senior Partner of ZKS Law Firm Andrey Grivtsov noted that the Constitutional Court has recently rarely spoken about the need to review court decisions in specific cases, much less about the constitutionality of a particular norm. “Here he expressed such a position, and I agree with it. Indeed, at the legislative level it seems unfair that there is no deadline for the possibility of overturning a court decision on cassation to reimburse the rehabilitated for the costs of legal assistance. Now the Constitutional Court of the Russian Federation has actually established that such a period should be limited to one year,” the lawyer noted.

According to the expert, the position of the Court that the rehabilitated person should be paid the entire amount spent on legal assistance in a criminal case, unless it is proven that the latter understood that the costs are not related to the provision of assistance, also looks convincing. “The fact is that in practice, the position of the prosecutor’s office and representatives of the Ministry of Finance is almost always aimed at reducing the amounts to be paid, with reference to the allegedly inflated cost of attorneys’ fees, and other similarly far-fetched arguments. I hope that the Constitutional Court of the Russian Federation has put a final point on this issue, and now all judicial practice will follow the path of ensuring that the rehabilitated person should definitely not suffer property losses from the fact that, in the opinion of the state, he paid dearly to his lawyer. This is the question and problem of the state, which carried out illegal criminal prosecution and must compensate the rehabilitated for all property losses incurred in connection with this,” Andrey Grivtsov emphasized.

Lawyer of the Moscow Region Administration, Philip Shishov, pointed out that, having achieved an acquittal in a criminal case, it is often impossible to receive decent compensation, including the costs of a defense lawyer. “The state has not clearly developed a compensation mechanism; for example, there are no clear amounts justifying the amount of moral damage for each day of detention or for each day of being an accused. It all depends on the discretion and conscience of the court hearing the criminal case; as a result, amounts are awarded that amount to mere pennies,” he explained.

According to the expert, as follows from the circumstances of a particular case considered by the Constitutional Court of the Russian Federation, the rehabilitated person may face the cancellation of decisions on compensation in the cassation court, followed by a reversal of the execution of the court decision and the return of awarded amounts. “The Constitutional Court has taken a unique step towards resolving this issue, which is undoubtedly necessary in any civilized society,” concluded Philip Shishov.

Zinaida Pavlova

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