The topic of the new material is: is a court fine in a criminal case a criminal record or not? It’s worth saying right away that the answer will be negative - no.
A new type of monetary recovery appeared in 2016. It led to a simplification of legal proceedings and in some cases accelerated compensation for damage caused by a crime. But confusion among citizens still remains.
In this connection, it is necessary to talk about all the details down to the smallest detail. This is the goal of the article brought to the attention of the reader. Materials from judicial practice and final recommendations will complete the picture.
TERMINATION OF A FORMAL CRIMINAL CASE
The magistrate judge of judicial district No. 106 of the Central district of Sochi, by his resolution dated 08/03/2016, terminated criminal case No. 1–13/2016 against Sh., who was accused of committing a crime under Art. 322.3 of the Criminal Code of the Russian Federation “Fictitious registration of a foreign citizen or stateless person at the place of stay in residential premises in the Russian Federation”, with reference to Art. 25.1 of the Code of Criminal Procedure of the Russian Federation and imposed a court fine in the amount of 20 thousand rubles. The magistrate motivated the decision by the fact that the defendant had committed a crime of minor gravity for the first time, had not caused any damage by the crime, had repented of her crime, and had a positive character at her place of residence. Thus, the magistrate dismissed the case in which the accused did not compensate for the damage or did not make amends for the harm caused by the crime in any other way and could not do this in principle. At the same time, in Art. 25.1 of the Code of Criminal Procedure of the Russian Federation provides for the positive behavior of a person after committing a crime as a basis for termination of a case, which should be expressed in compensation for damage or making amends for the harm caused by the crime in another way, which would indicate a decrease in the degree of social danger of the person.
The Criminal Code of the Russian Federation contains a significant number of formal crimes of minor and medium gravity, which do not provide for the occurrence of socially dangerous consequences in the form of property or non-property harm to individuals or legal entities. There are no victims in such cases. In this regard, the question arises about the possibility of terminating the case with the imposition of a judicial fine against the persons who committed such crimes. Since compensation for damage (and not its absence) is provided for in Art. 25.1 of the Code of Criminal Procedure of the Russian Federation as a basis for making a decision to terminate, the court does not have the right to terminate the case with the imposition of a judicial fine for crimes with a formal composition. Undoubtedly, the judge who made this decision was guided by considerations of humanity. He believed that in the absence of damage from the crime, if the accused is positively characterized, admits guilt and repents, then he can be released from criminal liability and not be labeled with a criminal record. However, these considerations do not fit within the strictly defined framework of the law and confront the judge with a difficult choice between expediency and legality, which the judge must make in favor of legality.
DOES THE INVESTIGATOR HAVE THE RIGHT OR OBLIGATION TO APPLY FOR A COURT FINE?
The investigator (inquiry officer) may or is obliged to file a petition before the court to terminate the case with the imposition of a court fine upon establishing the grounds provided for in Art. 25.1 of the Code of Criminal Procedure of the Russian Federation?
In part 3 of Art. 212 of the Code of Criminal Procedure of the Russian Federation states that when establishing during the investigation the grounds provided for in Art. 25.1 of the Code of Criminal Procedure of the Russian Federation, the investigator (inquiry officer) takes measures to send a petition to the court. Part 2 Art. 446.2 of the Code of Criminal Procedure of the Russian Federation provides that if these grounds exist, the investigator (inquiry officer), with the consent of the head of the investigative body (prosecutor), makes a decision to initiate a corresponding petition before the court. The question arises: what character are these norms - dispositive or imperative?
Prosecutor's office employee M. Yu. Dudchenko believes that from Part 3 of Art. 212 of the Code of Criminal Procedure of the Russian Federation, it is unclear whether the investigator (inquiry officer) can or is obliged to send a petition to the court. In his opinion, with such legal uncertainty, Art. 25.1 of the Code of Criminal Procedure of the Russian Federation becomes of little use in pre-trial proceedings1.
Professor A.P. Ryzhakov also points out that the imperfect formulation of these norms leads to the fact that the law enforcer sometimes understands them incorrectly. In his opinion, the literal interpretation of the provisions enshrined in Part 3 of Art. 212 and part 1 of Art. 446.2 of the Code of Criminal Procedure of the Russian Federation, in isolation from other provisions of the Code of Criminal Procedure of the Russian Federation leads to their misunderstanding. That is, the legislator did not give the investigator (inquiry officer) an alternative and obliges him in the event of establishing the provisions provided for in Art. 25.1 of the Code of Criminal Procedure of the Russian Federation grounds for making a decision to initiate a motion before the court to dismiss the case and, together with the case materials, send it to the court. The professor refers to the fact that if there is, along with the grounds provided for in Art. 25.1 of the Code of Criminal Procedure of the Russian Federation, and other grounds for termination of the case, for example, reconciliation of the parties (Article 25 of the Code of Criminal Procedure of the Russian Federation), the investigator (inquiry officer) may not send to the court a petition to terminate the case in accordance with Art. 25.1 of the Code of Criminal Procedure of the Russian Federation and terminate it on another basis, in this case in connection with the reconciliation of the parties.
The law allows this decision-making option. But we cannot agree with the author’s assertion that the investigative body, if it considers it necessary to continue the proceedings in the case in the general manner, even if there are grounds to terminate it with the imposition of a court fine, must send the case to the court with an indictment (indictment, indictment order) 2.
It turns out that Professor A.P. Ryzhakov believes that the investigative body has the right, and not the obligation, to file a petition with the court to dismiss the case with the imposition of a court fine, even if there are grounds for this. However, this position is not consistent with existing legal regulation. The words “accepts” and “endures”, which are used by the legislator in the constructions of Art. 25.1 and ch. 51.1 of the Code of Criminal Procedure of the Russian Federation, express not the discretion, but the duty of the law enforcement officer. There is no legal uncertainty in these rules. The law prescribes to the investigator and inquiry officer, as well as their procedural superiors, when establishing during the investigation the provisions provided for in Art. 25.1 of the Code of Criminal Procedure of the Russian Federation there are grounds to initiate a corresponding petition and send it to the court. The investigative body does not discuss the issue of whether to terminate the case or not with the application of a judicial fine; this will be dealt with by the court, which has the authority to decide this issue at its own discretion. With such legal regulation, the legislator created the regulatory prerequisites for the widespread use of the new institution in pre-trial proceedings.
If Professor A.P. Ryzhakov meant crimes for which it is impossible to limit oneself to a judicial fine, for example, a crime provided for in Part 2 of Art. 133 of the Criminal Code of the Russian Federation (coercion to perform sexual acts against a minor), which still remains in the category of moderate severity, then the harm caused by such a crime to a minor can hardly be made up for with apologies and compensation. If the accused or his defense attorney turns to the investigator with a petition to dismiss the case with the application of a judicial fine for such a crime, then the latter will have every reason to refuse it. The investigator may refer to the fact that in this case the harm caused by the crime cannot be considered as atonement. This harm is difficult to assess in principle.
In those cases where a person who has committed a crime of minor or moderate gravity for the first time has compensated for the damage and (or) made amends for the harm, that is, reduced the consequences of his crime, it is unacceptable for the investigator (inquirer), in order to improve the results, to refuse to file a petition with the court to dismiss the case , but sent him with an indictment document. The court has the right to issue a private ruling against the investigator (inquiry officer) in accordance with Part 4 of Art. 29 of the Code of Criminal Procedure of the Russian Federation, if:
- will terminate the case that was received with an indictment document (conclusion, act or resolution),
- establishes that there were grounds for dismissing the case during the investigation, but the investigator (inquiry officer) did not comply with the requirement of the law to take measures to send to the court a corresponding petition for the application of a judicial fine.
Procedural features of imposing a judicial fine
They are described in detail in Chapter 51.1 of the Code of Criminal Procedure of the Russian Federation. In particular, exemption from criminal prosecution with the imposition of a fine on the citizen is possible both at the stage of investigation and while the case is in court.
When it comes to the pre-trial stage, then according to Art. 446.2 of the Code of Criminal Procedure of the Russian Federation, if there are grounds, the investigator, the inquiry officer, with the approval of the management, shall issue a resolution to initiate a petition before the court, the subject of which will be the termination of the criminal case with the imposition of a court fine. As stated in paragraph 25.1 of Resolution No. 19, this is only possible with the consent of the suspect or accused.
The resolution, petition with all collected materials is sent to the district or magistrate court, depending on the jurisdiction (Article 31 of the Code of Criminal Procedure of the Russian Federation). Copies of the document are also intended for the accused, victim and civil plaintiff.
The decision on the merits is made in a separate meeting, which is scheduled within 10 days. In this case, the citizen himself, his lawyer, the victim and the prosecutor participate in the court. As a result, a decision is made to satisfy the petition and assign the amount of a court fine, or to refuse. It can be challenged on appeal within ten days.
In a situation where a decision on a monetary penalty is made at the stage of court hearings on the case, a decision is also made at any time before the judge leaves for the deliberation room. A prerequisite is the consent of the defendant. Next, on the basis of the judicial act, a writ of execution is prepared, which is subsequently sent to the bailiffs.
CONSIDERATION OF AN APPLICATION FOR A COURT FINE IN COURT
In what order does the court consider a petition to apply a judicial fine at a court hearing?
The law did not establish the procedure for considering the application. It is possible that the court will consider such a petition in the manner prescribed by Part 6 of Art. 108 of the Code of Criminal Procedure of the Russian Federation, but with mandatory research during the consideration of the petition of the circumstances of the case that are important for its resolution. Moreover, in accordance with the requirement of Part 2 of Art. 27 of the Code of Criminal Procedure of the Russian Federation, the court explains to the suspect (accused) his right to object to the termination of the case, as well as the legal consequences of such a decision, then finds out from this person whether he has any objections.
In order to fulfill the requirements of Part 5 of Art. 446.2 of the Code of Criminal Procedure of the Russian Federation, the court will have to verify the involvement of the suspect (accused) in the crime committed by establishing the factual circumstances of the case. In this regard, the question arises: how will the court establish the factual circumstances of the case - examine the case materials presented to it at the court hearing or study them outside the court session? The principles of justice presuppose that the court establishes the factual circumstances of the case by examining, at a court hearing, the evidence available in the case materials presented to it. It is impossible to recognize a person as having committed a crime and assign him a criminal law measure in the form of a court fine if his involvement in the commission of a crime is not proven by the case materials. Therefore, we cannot agree with the opinion of M. Yu. Dudchenko and A. P. Ryzhakov that the preliminary investigation authorities have the opportunity to terminate unproven cases through the court, since during the consideration of petitions the court is limited in its ability to establish the factual circumstances of the case3.
In the case of applying a judicial fine, the legislator took care to comply with the principle of the presumption of innocence. If there is insufficient evidence, the law obliges the court to refuse the petition and return it, along with the case materials, to the head of the investigative body (prosecutor). Therefore, the investigative body, before filing a petition to dismiss the case and sending it to court, must collect sufficient and convincing evidence in the case of the involvement of the suspect (accused) in the crime committed. But on other, non-exonerating grounds, where investigative bodies are allowed to terminate cases, abuses are possible, which the mentioned authors tell us about in their publications. According to them, the legislator would also need to provide for the judicial termination of cases at the request of the investigative authorities. Then the problem of extrajudicial recognition of a person as having committed a crime would be solved.
During the consideration of the petition, the court will also need to examine information about the availability of the provisions provided for in Art. 25.1 of the Code of Criminal Procedure of the Russian Federation, conditions and data that are taken into account when determining the amount of a court fine and the deadline for its payment.
The opinion of the victim should only matter on issues of compensation for material damage, methods of making amends for non-property damage (moral and physical), their acceptability and the amount of compensation. The law does not link the decision to terminate the case with the application of a court fine to the opinion of the victim.
The procedure for collecting a criminal fine in enforcement proceedings
For criminal offenses, a fine may be imposed if this is provided for in an article of the Criminal Code of the Russian Federation. The following options for imposing criminal fines are possible:
- as the main punishment, i.e. the convicted person will only be awarded a fine;
- as an additional punishment (for example, under some articles of the Criminal Code of the Russian Federation it may be prescribed in addition to compulsory work);
- The fine can be collected in a fixed amount (for example, 100 thousand rubles), or in the amount of income for a certain period (for example, earnings for 6 months).
In most cases, the article of the Criminal Code of the Russian Federation indicates the minimum and maximum amounts of penalties. The court itself will determine the exact amount of punishment, based on the danger of the crime, the actions of the guilty person, mitigating and aggravating factors. A fine cannot be imposed above the maximum limit.
The collection of penalties in a criminal case is confirmed by a verdict. When it comes into force, the court will issue a writ of execution and send it to the FSSP. Based on the writ of execution, the bailiff will initiate proceedings against the convicted person and begin forced detention.
Deadline for payment of fine
Unlike administrative norms, the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation do not provide for a grace period for the voluntary payment of a criminal fine. As soon as the court verdict comes into force, the writ of execution can be immediately sent to the FSSP.
But in Art. 103 of Law No. 229-FZ specifies the maximum time limits within which documents can be sent to initiate enforcement proceedings:
- 2 years
- if the maximum prison term under the relevant article of the Criminal Code of the Russian Federation does not exceed 3 years; - 6 years
- if the maximum prison term under an article of the Criminal Code of the Russian Federation exceeds 3 years (for crimes of negligence) or ranges from 3 to 5 years (for intentional crimes); - 10 years
- if the maximum prison term under the relevant article of the Criminal Code of the Russian Federation is from 5 to 10 years; - 15 years
- if the maximum prison term under the relevant article of the Criminal Code of the Russian Federation is 10 years or more.
The bailiff is obliged to check the specified deadlines. If the court sends a writ of execution after the expiration of the relevant period, the FSSP representative is obliged to return the document without execution. But in practice this happens extremely rarely.
Actions of the bailiff
According to the Criminal Code of the Russian Federation, a fine is a punishment not related to imprisonment. Since the convicted person remains at large, the bailiffs will collect a criminal fine according to the general rules.
But there are special rules and deadlines specified in Art. 103 of Law No. 229-FZ:
- after receiving the writ of execution and the verdict, the bailiff is given 3 days to initiate proceedings;
- The bailiff must collect the fine within 60 days (this period is counted from the date the sentence comes into force);
- if the bailiff received the documents after 45 days after the verdict entered into force, the collection period cannot exceed 15 days;
- in the decision to initiate proceedings, the bailiff gives the debtor 60 days for voluntary payment (an exception may be for sentences where the court has given an installment plan for payment);
- if the case is initiated 25 days after the verdict enters into force, 35 days are given for voluntary payment.
Failure to comply with payment deadlines may result in the punishment being replaced with a more severe one. The bailiff is obliged to notify the debtor of this in the decree.
Within the specified time frame, the bailiff may not take any active enforcement actions against the debtor and his property. If the specified deadlines are violated, i.e. the fine is not paid voluntarily, then the FSSP representative goes to court to replace the punishment with a more severe one. If the court refuses this, the bailiff will begin the usual enforcement actions for collection.
Consequences of failure to pay a criminal fine
Failure to pay a criminal fine within 60 or 35 days can result in serious problems for the debtor. Depending on the situation, the following consequences may occur:
- upon the request of the bailiff, the court will replace the fine with another type of punishment;
- if the court refuses to replace it with another type of punishment, the FSSP will begin collection according to the general rules, including at the expense of income and property;
- An enforcement fee will be collected from the debtor if he does not voluntarily pay the fine.
If the criminal fine was an additional punishment under the sentence, the bailiff does not apply to replace it with another type of sanction. In this case, forced collection will begin immediately according to the general rules of Law No. 229-FZ.
DISCRETION OF THE COURT
How should the court exercise its discretion when deciding whether to dismiss a case?
The law does not oblige the court, but gives it the right, at its own discretion, to decide on the termination of the case with the application of a court fine. Of course, if the case has grounds provided for in Art. 25.1 Code of Criminal Procedure of the Russian Federation. However, the law does not specify the criteria on the basis of which the court will have to decide whether it is advisable to terminate the case. Such a criterion may be the possibility of correcting a person released from criminal liability by applying a criminal law measure in the form of a court fine. In a similar case in Art. 427 of the Code of Criminal Procedure of the Russian Federation provides for such a criterion. The court will have to take into account the nature and gravity of the crime committed, the circumstances of its commission, the identity of the suspect (accused), mitigating and aggravating circumstances, reducing the degree of public danger of the person after making amends for the harm, etc.
How to pay a court fine in a criminal case
The entire process is supervised by bailiffs (Article 103.1 of the Federal Law “On Enforcement Proceedings”). In relation to the corresponding amount, a decision is made to initiate enforcement proceedings. It contains both the payment deadline and the necessary details. Often, payment information is indicated in the court order itself.
The easiest way to make a payment is at any bank institution. To do this, you need to correctly identify its purpose. The emphasis is placed not only on the mention of a court fine, but also on the details of the court decision. It is permissible to pay money in your personal online banking account, as well as on the SSP website, followed by printing a receipt and having it certified by the bank.
In any case, the payment document is presented to the bailiff. The maximum period is 10 days after the end of the payment period. This will become the basis for closing enforcement proceedings.
RETURNING THE CASE TO THE INVESTIGATION OR PROSECUTOR
What are the consequences of refusing to satisfy a petition and returning it along with the case materials to the head of the investigative body (prosecutor) when establishing the existence of another basis for terminating the case?
The law stipulates that the court, if other grounds for termination of the case are established, must refuse to satisfy the petition and return it, along with the case materials, to the head of the investigative agency or the prosecutor. The meaning of this provision is that termination of a case on all other grounds is more favorable for the suspect (accused) than termination on a new basis.
The question arises: why did the legislator not provide for the termination of the case on another basis established by the court during the consideration of the petition by the court itself, but obliged it in such cases to refuse the petition and return it, along with the case materials, to the head of the investigative body (prosecutor)? It can be assumed that the legislator proceeded from the fact that at the stage of preliminary investigation the investigative body can itself terminate the case on other grounds. However, if the court returns the case with an indication in its decision that it is subject to termination on another basis, this will mean that the court is interfering with the competence of the investigative body. The law does not specify other grounds for termination of the case, in the presence of which the court must refuse to satisfy the petition. This means that such a decision is allowed if there are any other grounds. Therefore, a collision is possible. For example, the court, having established the existence of grounds for termination of the case in connection with the reconciliation of the parties in accordance with Art. 25 of the Code of Criminal Procedure of the Russian Federation, refuses to satisfy the request for a judicial fine and returns it to the investigative body, indicating in its decision the existence of such a basis. At the same time Art. 25 of the Code of Criminal Procedure of the Russian Federation gives the investigator and interrogating officer, their procedural leaders the authority to make a decision to terminate the case at their own discretion. The investigative body may not see such a basis in the case and send it to the court with an indictment, act or resolution. Why should the investigation stop the case when its work is assessed by the number of cases sent to court? The judge who expressed his opinion on the case can no longer participate in its consideration on the merits. Another judge who will hear the case may also not see grounds for dismissing the case and issue a guilty verdict. As a result, two contradictory judicial acts will appear.
CALCULATION OF THE LIMITATION PERIOD FOR PAYMENT OF A COURT FINE
Part 3 Art. 78 of the Criminal Code of the Russian Federation establishes that the running of the statute of limitations is suspended if the person who committed the crime evades payment of the court fine imposed in accordance with Art. 76.2 of the Criminal Code of the Russian Federation. The statute of limitations is resumed if law enforcement agencies detain the person or he turns himself in. From the above formulations it is not clear from what moment, when evading payment of a court fine, the running of the statute of limitations is suspended and at what point it resumes. Professor A.P. Ryzhakov noticed this lack of legal regulation and proposes to eliminate it by legislatively establishing a basis corresponding to legal realities for renewing the statute of limitations4.
In the legal regulation of calculating the limitation period for paying a judicial fine, it is incorrect to use categories such as “suspension of the limitation period” and “resumption of the limitation period”. These concepts do not describe either case. When using these concepts in the law, it is necessary to establish at what point the limitation period is suspended and at what point it resumes.
How can one determine the moment from which a person subjected to a court fine began to evade payment of it, if evasion of payment of a court fine is recognized as failure to pay it within the period established by the court? There is no provision for payment after this period. After all, a court fine is conditional; extension of the payment period, deferment or installment plan is not provided for by law. In this case, in accordance with Art. 446.5 of the Code of Criminal Procedure of the Russian Federation, the court fine is canceled, and the proceedings in the case continue in the general manner.
If a person fails to pay the fine within the prescribed period, the reason for non-payment does not matter. There is only one consequence - the court fine is canceled, and no other decision is provided for. In accordance with Art. 103.1 of the Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings”5 no deadline is established for the voluntary execution of a court fine, and no measures are taken to enforce a court fine. If, after 10 calendar days from the date of expiration of the term for payment of the court fine, the bailiff does not have information about the payment by the debtor of the corresponding sums of money, he sends to the court a proposal to cancel the specified measure of a criminal law nature and resolve the issue of bringing the person to criminal liability. The court makes the provision provided for in Art. 446.5 Code of Criminal Procedure of the Russian Federation resolution.
The concepts of “a person evading investigation or trial” and “a person evading payment of a court fine” differ both in content and in legal consequences. Evasion from an investigation or trial entails putting a person on the wanted list, suspending the running of the statute of limitations and renewing this period in case of detention or appearance of such a person before the investigator (inquiry officer) with or without confession. Evasion of payment of a court fine entails the cancellation of the order to terminate the case and the imposed court fine, as well as the continuation of the proceedings in the case in the general manner. A person who has evaded payment of a court fine, after the cancellation of the court fine, can hide from the investigation, but not from paying the court fine, which he is no longer obliged to pay. Therefore, law enforcement officers do not have the right to detain a person in connection with his failure to pay a court fine or for his appearance with the intention of paying a fine. Such a person, after the cancellation of the court fine, becomes a suspect or accused. Therefore, the establishment in Part 3 of Art. 78 of the Criminal Code of the Russian Federation as the moment from which the limitation period resumes, the commission of these actions is legally incorrect. In this regard, in Part 3 of Art. 78 of the Criminal Code of the Russian Federation, it should be indicated that if a person evades payment of a court fine within the period established by the court, the period of time from the moment the decision is made to terminate the case and impose a court fine in accordance with Art. 446.2 of the Code of Criminal Procedure of the Russian Federation until its repeal in accordance with Art. 446.5 of the Code of Criminal Procedure of the Russian Federation is not counted towards the limitation period when calculating it.
LITERATURE 1Dudchenko M. Yu. Exemption from criminal liability with the imposition of a judicial fine: possible problems in practice // Criminal process. - 2016. - No. 10. 2Ryzhakov A.P. New grounds for termination of the case and the consequences of its introduction // Criminal process. - 2016. - No. 10.
Is a court fine a criminal record?
By virtue of the provisions of Art. 86 of the Criminal Code of the Russian Federation, a criminal record is the result of a person being convicted of a crime, regardless of its severity. In turn, when determining the final measure of responsibility for the defendant, the court is guided by the types of punishment provided for by law, including a criminal fine.
But the imposed court fine is not one of them. Moreover, it is inextricably linked with the closure of the criminal case. Accordingly, there is no discussion about the conviction and the associated criminal record.
There is another difference between a judicial fine and existing punishments. The imposition of a judicial fine in a criminal case is formalized not by a verdict, but by a court order.
However, there is still one option when imposing a fine entails a criminal record. This happens when the amount determined by the court was not paid on time. Then the accused is brought to criminal liability based on the crime he committed.
