The practice of terminating criminal cases under Art. 264 of the Criminal Code of the Russian Federation in connection with the reconciliation of the parties

Appeal Part 3 of Article 264 of the Criminal Code of the Russian Federation

In the court of first instance, the case was heard by Judge A.V. Kovrigin.

Case No. 22-869/2016

DECISION OF APPEAL

Khabarovsk March 31, 2016

Court of Appeal of the Khabarovsk Regional Court composed of:

presiding judge: judge V.V. Ryumina

with the participation of: prosecutor Zhurba I.G.

lawyer Denisov V.K.

convicted person <full name>

representative of the victim, lawyer Khvostunova E.B.

under secretary N.A. Rubtsov

having considered in open court on March 31, 2016 the appeals of the convicted person <full name> and lawyer Denisov V.K. against the verdict of the Zheleznodorozhny District Court of Khabarovsk dated January 27, 2016, by which <full name>, <data taken>,

Convicted under Article 264 Part 3 of the Criminal Code of the Russian Federation to 3 years in prison with deprivation of the right to drive a vehicle for a period of 3 years, with the sentence being served in a penal colony.

From <full name> in favor of the victim FULL NAME1 it was decided to recover material damages in the amount of 789,230 rubles, as well as 500,000 rubles as compensation for moral damage.

The fate of the material evidence was decided by the verdict.

Having heard the report of the presiding officer, the explanations of the convicted person <full name>, lawyer Denisov V.K., who supported the arguments of the appeals, the explanations of the representative of the victim, lawyer E.B. Khovstunova, who did not agree with the arguments of the appeals, the opinion of the prosecutor Zhurba I.G. to leave the sentence unchanged, the court

INSTALLED:

<full name> was convicted of violating clause 8.8 of the Traffic Rules of the Russian Federation while driving a car, which resulted in the death of the motorcycle driver due to negligence FULL NAME2

The crime was committed in the period from 22 hours 20 minutes to 22 hours 54 minutes on 08/06/2015 <address>, when the driver of the car <full name>, moving from the side of the Vostok road towards <address>, made a left turn into the adjacent territory , under the circumstances given in the verdict.

At the court hearing <full name> did not admit guilt.

In the appeal, the convicted person <full name> asks to cancel the sentence, due to the discrepancy between the court's conclusions set out in the sentence and the actual circumstances of the criminal case. In support of his arguments, he indicated that the established time before the collision in the report of the inspection of the scene of the incident dated August 26, 2015 is unreliable, since there was no eyewitness FULL NAME3. Based on the data obtained during the inspection of the scene of the incident, experts conducted their research. Expert FULL NAME4 misled the court with his conclusion that the speed of the motorcycle was 39 km/h. The speed of the motorcycle at the time of the collision cannot be determined due to the lack of approved calculation methods, which was confirmed by the expert FULL NAME5. The speed of the motorcycle was significantly higher than permissible, which is confirmed by the testimony of witnesses FULL NAME6 and FULL NAME7. The court incorrectly concluded that he was not looking in the direction of the moving motorcycle. Before starting the turn, he made sure that there were no vehicles ahead in the opposite direction and began to turn. The collision occurred due to the very high speed of a motorcycle with a non-working or switched-off headlight, which was outside its visibility zone, which is confirmed by examination No. dated 10/16/2015. He did not hear the sound of an approaching motorcycle, since there was a receiver working inside the car, as evidenced by the testimony FULL NAME8

In the appeal, lawyer Denisov V.K. asks the verdict to be overturned due to the discrepancy between the court's conclusions set out in the verdict and the actual circumstances of the criminal case, as well as significant violations of the criminal procedure law. <full name> was not able to foresee the appearance of a motorcycle on the road at night with non-working lighting devices, moving at a speed of over 100 km/h. The conclusion of expert No. was not considered by the expert who conducted examination No. The expert’s conclusions do not contain any position on violations of traffic rules by the victim. The verdict does not indicate expert opinion No. and does not evaluate it. Despite the testimony of witnesses FULL NAME7, FULL NAME3, FULL NAME6 about the high speed of the motorcycle before and at the time of the accident, the skid mark during braking - 11.3 meters, damage to vehicles, the court made conclusions about the speed of the motorcycle based on expert opinion No., did not see and did not eliminate contradictions with expert opinion no. During the preliminary and judicial investigation, the defense's requests were denied; on conducting a repeat auto-technical examination, on attaching the conclusion of an auto-technician to the case materials, on interrogating at a court hearing the auto-technician specialist and the auto-technician expert who performed the examination No., which violated the principle of adversarial behavior of the parties. The court's conclusions about the unreliability of <full name> testimony. to the extent that he began the maneuver after making sure that there were no oncoming vehicles, are unreliable. The court's conclusion that <full name> did not see the motorcycle is untrue. In one second, during which <full name> looked away from the oncoming direction, a motorcycle at a speed of 180 km/h could cover 50 meters out of 108 that define the limit of its visibility, and could end up at a distance of 68 meters from the scene of the accident. At this moment, <full name> was already moving into the motorcycle lane, and only 1.03 seconds remained before the accident. The motorcycle driver began to apply the brakes, flying about another 50 meters. Braking began 13 meters before the collision site. Neither the investigation nor the court took this model of accident into account. The version proposed by the defense is consistent with the testimony of witnesses about the speed of the motorcycle and the testimony of <full name> that he did not see the motorcycle. The experiment, during which the investigation established the visibility of the motorcycle to other road users, was carried out in conditions where the motorcycle and the extras were standing still. The low speed of the car contributed to a decrease in the visibility distance of the motorcycle in a real situation. While performing the maneuver, <full name> was convinced of his safety, since 300 meters ahead in the oncoming lane the headlights were not on and there were no vehicles. At a speed of 60 km/h, which corresponds to 16.6 m/s, a distance of 108 meters is covered in 6 seconds. With this calculation, <full name> reasonably assumed that the maneuver he was performing was safe. According to the experiment, the time it took for the car to complete the maneuver was 1.43 seconds. When posing questions for the examination, the investigation proceeded from the fact that the speed of the motorcycle was 60 km/h, which contradicts reality. The court agreed with the experts’ conclusions, but in violation of the adversarial principle, deprived the right of defense and did not provide the opportunity to question the examination in any legal way. When considering the issue of resolving a civil claim, the court did not take into account the provisions of Article 1083 of the Civil Code of the Russian Federation; the victim was driving a motorcycle without the right to control it, with faulty lighting devices, which is prohibited by the relevant paragraphs of the Traffic Rules of the Russian Federation, and exceeding the permissible speed. The amount of compensation for moral and material damage, with the exception of funeral costs, should be reduced. He asks that the verdict be overturned, that he be acquitted, or that the case be returned to the prosecutor.

In objections to the appeal of the convicted person <full name>, state prosecutor Usevich A.I. asks the verdict to be left unchanged, the appeal of <full name> - without satisfaction.

In objections to the appeals of the convicted person <full name> and lawyer Denisov V.K. representative of the victim, lawyer Khvostunova E.B. asks the verdict to be left unchanged, the appeals of <full name> and Denisov V.K. - without satisfaction.

Having checked the case materials, discussed the arguments of the appeals and objections to them, the appellate court finds the court's conclusions about the guilt of the convicted person for the crime committed based on evidence obtained in the prescribed manner, comprehensively, fully and objectively examined at the court hearing and assessed by the court in accordance with requirements of Article 88 of the Code of Criminal Procedure of the Russian Federation.

The guilt of the convicted person in the crime is confirmed by the evidence collected in the case and presented in the verdict, which is consistent with each other, obtained in the manner prescribed by law, and comprehensively, fully and objectively examined at the court hearing:

- representative of the victim FULL NAME9 about the circumstances known to her;

-testimony of the witness FULL NAME10, from which it follows that the motorcycle was equipped with a system for automatically turning on the headlights when the engine was started and a direct-flow muffler was installed. Having arrived at the scene of the incident, I noticed the lowered front right window of the car on the driver’s side;

-testimony of the witness FULL NAME11, from which it follows that the motorcycle he sold had a direct-flow muffler installed for safety purposes;

- the testimony of a witness, FULL NAME3, who observed in the rearview mirror how a car moving in the same direction turned on the left turn indicator for its implementation into the adjacent territory. At the same time, through the lowered driver's window, I heard the sound of a direct-flow muffler and saw a motorcycle moving in the oncoming lane. As soon as the motorcycle passed by, I heard the sound of an impact. On the roadway I saw a car moving behind me and a motorcycle lying down. Called an ambulance;

-testimony of the witness FULL NAME7, from which it follows that when he and FULL NAME6 were walking at <address>, a motorcycle passed them in the same direction at high speed. After that, at the entrance to the adjacent territory of the Small Airport, they saw a standing car, a lying motorcycle and its driver;

-testimony of the witness FULL NAME6, from which it follows that when she and FULL NAME7 passed by buildings in the area of ​​​​the Small Airport, they noticed someone driving in the same direction at high speed in the same direction. A few minutes later, they met a man and a woman walking towards them, who, holding their heads, reported that while they were in a car involved in an accident, they hit their heads. After 100-150 meters, at the entrance to the adjacent territory of the Small Airport, we saw a car and a motorcycle and its driver lying on the roadway;

and:

- a protocol for the inspection of the scene of the accident dated 08/07/2015 with a photo table and a plan diagram, during which the vehicles involved in the traffic accident were inspected and parts of the motorcycle were seized;

- certificate of traffic accident;

- a protocol of inspection of the scene of the incident dated 08.26.2015, during which the time it took for the NISSAN LIBERTY car to cover the distance was established: from the moment the SUZUKI GSX-R1000 motorcycle entered the lane to the place of the collision (1.03 sec.) from the moment the SUZUKI GSX-R1000 motorcycle entered the lane without a registration plate until the moment the motorcycle left the lane (1.43 sec.);

- the protocol of the investigative experiment, from which it follows that the visibility at the scene of the incident in the dark, in which the motorcycle is visible from the driver’s seat of the car, is: with the motorcycle lighting devices turned on, 228.6 m, with the motorcycle lighting devices turned off, 108.6 m;

- the conclusion of a forensic medical examination, according to which bodily injuries were found on FULL NAME2, which are regarded as causing serious harm to health, dangerous to human life. Death FULL NAME2 occurred from heavy blood loss as a result of combined blunt trauma to the head, chest, abdomen, upper and lower extremities;

- expert conclusion No., according to which the speed of the SUZUKI GSX-R1000 motorcycle, based on the calculation of the length of the braking mark equal to 11.3 m, is 39 km/h. In this traffic situation, both at the design speed and at a speed of 60 km/h, the driver of the SUZUKI GSX-R1000 motorcycle did not have the technical ability to prevent a collision with the NISSAN LIBERTY vehicle, registration plate No. by braking. In the actions of the driver of the SUZUKI GSX-R1000 motorcycle there are no inconsistencies with the requirements of Part 2, Clause 10.1 of the Road Traffic Rules of the Russian Federation. The actions of the driver of the NISSAN LIBERTY car, registration plate No., did not comply with the requirements of clause *.8 of the Road Traffic Rules of the Russian Federation;

-video materials on which the film crew recorded the consequences of a traffic accident and road conditions at the scene of the accident.

The verdict provides the reasons why the court accepted some evidence and rejected others. The verdict does not contain any contradictions or assumptions. There is no evidence in the case file that the court unreasonably examined inadmissible evidence. The verdict is based only on the evidence that was examined at the trial and all of it was assessed in the verdict.

The court of first instance gave a proper assessment of the representative of the victim, Full Name 9, and the testimony of witnesses: Full Name 10, Full Name 11, Full Name 3, Full Name 7, Full Name 6 accepted as evidence, since they are consistent with each other and to the extent that they are recognized as admissible evidence. There are no motives for slander by these witnesses against the convicted person.

The contradictions in the testimony of witnesses FULL NAME3 and FULL NAME6 are insignificant and do not refute the court’s conclusions about the guilt of <FULL NAME>

There is no reason not to trust expert opinions or to doubt the objectivity of their conclusions. The examinations were carried out by qualified experts, within the limits of their competence, in accordance with the decisions on their appointment, issued in accordance with Article 195 of the Code of Criminal Procedure of the Russian Federation. All expert opinions comply with the requirements of Article 80, 204 of the Code of Criminal Procedure of the Russian Federation.

The court carefully checked all the arguments put forward in defense of the convicted person, including the location of the collision of vehicles, the absence of a cause of connection between the actions of <full name> and the grave consequences that occurred, the speed of the motorcycle driven by the victim, and were reasonably found not to be confirmed, as refuted by case materials.

The arguments presented in the appeals that the cause of the consequences was the high speed of the victim’s motorcycle were checked by the court and were rightly found unfounded; the court’s conclusions in this part are motivated in the verdict.

The appellate court does not see a violation of the rights of defense and the rights of adversarial rights of the parties when considering the case by the court of first instance, since all the petitions submitted by the parties were resolved in accordance with the requirements of the law.

Contrary to the arguments of the appeals, the court established a direct causal connection between the act and the consequences that occurred. The court analyzed and assessed the evidence in detail, indicating the reasons why the court rejects some evidence and gives preference to others.

Having assessed the totality of the examined evidence, the court reasonably came to the conclusion that <full name> was proven guilty of committing a crime under Article 264 Part 3 of the Criminal Code of the Russian Federation - violation of traffic rules by a person driving a car, which negligently resulted in the death of a person.

The court of first instance did not find any grounds for changing the category of the crime committed by <full name> to a less serious one, in accordance with Article 15 Part 6 of the Criminal Code of the Russian Federation, and the court of appeal does not find any.

When assigning a sentence to a convicted person, the requirements of Article 60 of the Criminal Code of the Russian Federation, information about the personality of the convicted person, who is characterized positively, the presence of mitigating circumstances are taken into account: the age of the convicted person, the presence of a dependent young grandson, the absence of aggravating circumstances.

The court motivated its decision on the impossibility of applying the provisions of Articles 64 and 73 of the Criminal Code of the Russian Federation in relation to the convicted person in the verdict. The appellate court has no reason to disagree with the conclusions of the court of first instance, since this punishment corresponds to the purposes of punishment established by Part 2 of Article 43 of the Criminal Code of the Russian Federation.

The type of correctional institution for the convicted person <full name> was miraculously determined in accordance with paragraph A of Part 1 of Article 58 of the Criminal Code of the Russian Federation - a colony-settlement.

However, the sentence is subject to change.

From the materials of the criminal case it follows that the driver FULL NAME2 was driving a motorcycle with technically faulty lighting devices in the dark.

Since this circumstance could have contributed to the traffic accident, the appellate court considers it necessary to recognize as a mitigating circumstance the driver FULL NAME2 driving a motorcycle with technically faulty lighting devices in the dark and to reduce the sentence imposed by <FULL NAME> in the form of imprisonment to 2 years 6 months.

When resolving a civil claim, the court, in violation of the law, did not find out whether the vehicles driven by <FULL NAME> and FULL NAME2 were insured, did not take into account that the recovery for burial is due to other norms of civil law, and did not explain the right to appeal a court decision regarding a civil claim .

Under such circumstances, the appellate court overturns the verdict in part of the civil claim and sends the case in this part to the same court for a new trial in civil proceedings.

The appellate court in this case does not see any significant violations of the criminal procedural law leading to the reversal or other change of the sentence.

Based on the above and guided by Articles 389.13, 389.15, 389.20, 389.28, 389.33 of the Code of Criminal Procedure of the Russian Federation, the court

DECIDED:

The verdict of the Zheleznodorozhny District Court of Khabarovsk dated January 27, 2016 in relation to <full name> in part of the civil claim is canceled and the case in this part is sent to the same court for a new trial in civil proceedings.

The same sentence in relation to <full name> is amended:

To recognize as a mitigating circumstance the driver FULL NAME2 driving a motorcycle with technically faulty lighting devices in the dark.

The sentence imposed by <full name> in the form of imprisonment was reduced to 2 years 6 months, with deprivation of the right to drive a vehicle for 3 years.

The rest of the sentence is left unchanged, the appeals of the convicted person <full name> and lawyer Denisov V.K. - without satisfaction.

The appeal decision can be appealed to the Khabarovsk Regional Court in accordance with Chapter 47.1 of the Code of Criminal Procedure of the Russian Federation.

Chairman: Ryumin V.V.

The appointed lawyer achieved a partial acquittal of the culprit of the accident

On February 26, 2022, the judicial panel for criminal cases of the Belgorod Regional Court upheld the verdict against B., due to whose fault a fatal accident occurred, by which he was partially acquitted.

Lawyer of the Belgorod Region Administration Evgeny Zhuravlev, appointed by the investigator as B.’s defense attorney, told AG how he managed to achieve a partial acquittal.

In December 2016, due to the fault of B., who grossly violated traffic rules, an accident occurred, at the time of which he was already subject to administrative punishment for driving while intoxicated. The consequences of the accident were the death of his passenger and serious injuries to the driver in the second car. As a result of the collision, B. himself received the third group of disability.

He was charged with committing crimes under Part 4 of Art. 264 and art. 264.1 of the Criminal Code of the Russian Federation. The state prosecutor asked the court to impose a sentence of 7 years in prison based on the totality of crimes. As evidence in the case, the prosecution added to the case a certificate stating that ethyl alcohol in the amount of 1.9 g/l was found in B.’s blood. In addition, all witnesses indicated that the driver was drunk at the time of the accident. B. himself did not deny that he drank alcohol. However, he did not fully admit guilt in the crimes charged against him.

The appointed defense lawyer, Evgeniy Zhuravlev, managed to achieve a complete acquittal of the defendant under Art. 264.1 of the Criminal Code of the Russian Federation and re-qualification of his actions from Part 4 of Art. 264 of the Criminal Code of the Russian Federation at Part 3 of Art. 263 of the Criminal Code of the Russian Federation.

Evgeny Zhuravlev told AG that the line of defense was based on the notes to Art. 264 of the Criminal Code of the Russian Federation: “It follows from them that the actions of my client could not be qualified under Part 4 of Art. 264 of the Criminal Code of the Russian Federation (violation of traffic rules by a person driving a car while in a state of intoxication, resulting in the death of a person through negligence) and under Art. 264.1 of the Criminal Code of the Russian Federation (driving a car by a person in a state of intoxication subject to administrative punishment for driving a vehicle while intoxicated).”

The lawyer explained that he was able to prove that there was no evidence that B. was intoxicated at the time of the accident. “To qualify the actions of my client under the above compounds, the prosecution had to have either a medical examination, which would indicate that the amount of ethyl alcohol in his body exceeds the amount of alcohol equal to 0.16 mg per 1 liter of exhaled air, as tells us a note to Art. 12.8 of the Code of Administrative Offenses of the Russian Federation, or evidence of refusal of a medical examination,” explained Evgeny Zhuravlev.

However, in this case, no medical examination was carried out. At the same time, B. himself did not refuse to carry it out in accordance with the procedure established by law, since he was hospitalized immediately after the accident. The prosecution presented the court only with a certificate stating that 1 liter of the man’s blood contained ethyl alcohol in a concentration of 1.9 g/l, obtained at the request of the investigator from the hospital where B. was taken after the incident. In addition, the prosecution also referred to the testimony of numerous witnesses who indicated that B. drank alcohol before he got behind the wheel, which he himself did not deny. “But all this evidence could not be called proper and reliably confirming the fact that my client was intoxicated due to the imperative requirements of the note to Art. 264 of the Criminal Code of the Russian Federation,” the lawyer stated.

As a result, on December 19, 2022, the court passed a verdict, which found B. guilty of committing a crime under Part 3 of Art. 263 of the Criminal Code of the Russian Federation, and sentenced him to 4 years and 8 months of imprisonment with serving the sentence in a general regime penal colony and deprivation of the right to drive a vehicle for 3 years. At the same time, the court completely acquitted B. under Art. 264.1 of the Criminal Code of the Russian Federation for the absence of corpus delicti in his actions and recognized his right to rehabilitation. The appellate court upheld the verdict.

The defense lawyer also noted what turned out to be the most difficult thing for him in this case. “The most difficult thing, perhaps, was to gain the trust of my client, since I defended him as assigned by the investigator in accordance with Art. 51 Code of Criminal Procedure of the Russian Federation. Initially, my client, as a person who had previously been convicted and had lost faith in justice, wanted to plead fully guilty of the crimes charged against him and wanted his case to be considered in a special manner. But I managed to convey to him my opinion on the case, with which he subsequently completely agreed and did not fully admit guilt in the episodes of the crime charged against him,” said Evgeny Zhuravlev.

Everything about criminal cases

Go to the Plenum on road accidents

Practice under Article 264 of the Criminal Code

(traffic violation)

Case No. 77-1248/2020

The role of the victim in the accident and the road conditions were taken into account, the punishment was reduced

case No. 77-1248/2020

DEFINITION OF THE CASSATION COURT

The Judicial Collegium for Criminal Cases of the First Cassation Court of General Jurisdiction examined in open court a criminal case on a cassation appeal against the verdict. by which L. was convicted under Part 3 264 of the Criminal Code

to 3 years of imprisonment to be served in a penal colony with deprivation of the right to engage in activities related to driving vehicles for a period of 2 years.

From the convicted person, in compensation for moral damage, 1,000,000 rubles each were recovered in favor of victims 1 and 2, and 600,000 rubles in favor of victim 3. Victim 1 was recognized as having the right to satisfy a civil claim for reimbursement of funeral expenses; the issue of the amount of compensation was submitted for consideration in civil proceedings.

Procedural costs associated with payment for the services of a representative in the amount of 75,000 rubles were recovered from the convicted person in favor of victim 1.

The seizure imposed on the property of the convicted person was retained until civil claims and demands for procedural costs were satisfied; the seized property was transferred to the Federal Bailiff Service for foreclosure in order to pay off civil claims.

The panel of judges established:

By a court verdict, L. was found guilty of violating traffic rules while driving a car, which negligently caused the death of a person.

Having checked the materials of the criminal case, discussed the arguments of the defense lawyer’s cassation appeal, the victims’ objections to the complaint, and heard the participants in the process, the judicial panel comes to the following conclusion.

By virtue of 401.1 Code of Criminal Procedure

When considering cassation appeals or presentations, the cassation court checks the legality of the sentence, resolution or ruling of the court that has entered into legal force, that is, the correct application of the norms of criminal and criminal procedural laws.

Url Additional information:

- paragraph 16

Plenum No. 19, arguments beyond the scope of the inspection are not verified

Based on the content of the above provisions of the criminal procedure law, the competence of the cassation court, which considers the complaint in accordance with Chapter 47.1

The Criminal Procedure Code
does not include
verification of a sentence that has entered into legal force on the basis of a discrepancy between the court's conclusions and the actual circumstances of the case.

The arguments of the defense attorney's cassation appeal, which provides his own assessment of the evidence to justify disagreement with the court's conclusions that L. committed the crime for which he was convicted, cannot be taken into account when reviewing court decisions in accordance with Chapter 47.1

of the Criminal Procedure Code, since the cassation court does not examine the circumstances and does not re-evaluate any evidence, and therefore proceeds from the factual circumstances of the case recognized by the court of first instance, checking in the cassation process only the correctness of the application and interpretation of the material norms by lower courts and procedural law.

(Comment: behind these lines there is a very important feature of the cassation stage of appeal. You can read about it here: Prohibition of appeal

factual circumstances in cassation).

At the same time, the judicial panel finds the court decisions made in the case subject to change on the following grounds.

In accordance with Part 1 401.15 of the Code of Criminal Procedure

the grounds for canceling or changing a sentence when considering a criminal case in cassation are significant violations of the criminal and (or) criminal procedural law that influenced the outcome of the case.

The panel of judges believes that such violations of the law were committed in this case.

According to Part 1 6 of the Criminal Code

The punishment imposed on the person who committed the crime must correspond to the nature and degree of social danger of the crime, the circumstances of its commission and the identity of the perpetrator.

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— clause 10

Plenum No. 25 violation of traffic rules by victims - mitigates punishment

According to clause 10

Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 No. 25 “On judicial practice in cases of crimes related to violation of traffic rules and operation of vehicles, as well as their unlawful taking without the purpose of theft,” if the court, based on the examined evidence, establishes that the consequences specified in Article
264 of the Criminal Code
occurred not only as a result of a person driving a vehicle violating traffic rules or operating vehicles, but also due to the
victim’s failure to comply with
specific points of the rules (non-use of seat belts by a passenger when traveling, riding a motorcycle without a motorcycle helmet, etc. .p.), these circumstances may be taken into account by the court as mitigating the punishment, except in cases where the driver has not fulfilled his duties to ensure the safety of passengers (clause 2.1.2 of the Rules).

Having established in the verdict on the basis of the conclusion of an automotive technical examination that not only the driver of the car L. violated the requirements of the Traffic Rules of the Russian Federation, which consist of a causal connection with the fact of the accident, but also the driver of the motorcycle L.8 at the time of the collision with the convict’s car exceeded the established speed, violating pp. 10.1, 10.2 of the Traffic Rules of the Russian Federation, which have a causal connection with the fact of the accident, the court of first instance, in violation of the requirements of the law, did not evaluate this circumstance in its decision. These violations of the law went unnoticed by the appellate court.

Based on the above, the judicial panel, guided by Part 2 61 of the Criminal Code

, believes it is possible to recognize as a mitigating circumstance the victim’s violation of the Traffic Rules of the Russian Federation, which are in a causal connection with the fact of the accident, commensurately reducing the imposed sentence of imprisonment by 6 months.

At the same time, there are grounds for recognizing the above-mentioned circumstance as a mitigating circumstance provided for in paragraph "z" part 1 of 61 of the Criminal Code

— the panel of judges does not see the wrongfulness of the victim’s behavior, which was the reason for the crime.

The panel of judges determined:

Change the sentence. Recognize as a mitigating circumstance the victim’s violation of the Traffic Rules of the Russian Federation, which have a causal connection with the fact of the accident.

Mitigate the punishment imposed on the convicted person under Part 3 264 of the Criminal Code

in the form of imprisonment for up to 2 years 6 months.

Case No. 22-3103/2016

Compensation for damage was taken into account, the punishment was reduced from 4 l. 10 months to 3 years.

DECISION OF APPEAL

case No. 22-3103/2016

The court of the Moscow Regional Court consisting of a presiding judge, a prosecutor, lawyers, a convicted person,

Why is there only one judge here (and not three)?

Having considered in court appeals against the verdict of the district court (Sentence of the court of first instance, Vidnovsky City Court, case No. 1-76/2016), which convicted A. under Part 3 264 of the Criminal Code

to 4 years 10 months of imprisonment with deprivation of the right to drive vehicles for a period of 3 years to serve the sentence in a penal colony.

installed:

The convict was found guilty of violating traffic rules by a person driving a car, resulting in the death of a person through negligence, under the circumstances set out in the verdict. The convict admitted his guilt at the court hearing. In the appeal, lawyer Melchaev A.A.

indicates that he does not agree with the sentence due to its excessive severity.
Please note that there are no aggravating circumstances, there are mitigating circumstances formally listed by the court, the court did not take into account such circumstances as the low level of income of the spouse, her ill health, an attempt by the convicted person to make amends for the harm, committing a crime for the first time due to negligence, positive characteristics from the place of work , lack of information about traffic violations. The court also did not evaluate the behavior of the convicted person after the crime, or compensation for damage to the victim. The court did not apply the rules of Part 1 62 of the Criminal Code
.

The complaint also provides arguments: the court unreasonably rejected the defense’s argument about the presence of a mitigating circumstance in the form of the presence of objective conditions conducive to the commission of a crime. In accordance with clause 14

Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 9, 2008 No. 25, non-compliance of the condition of roads with regulatory standards can be taken into account as mitigating circumstances.

After checking the case materials and discussing the arguments contained in the appeal, the court comes to the following conclusions. The court of first instance correctly established the factual circumstances of the case and made a reasonable conclusion about proven guilt in committing the incriminated crime, based on an objective and proper assessment of the totality of all sufficient evidence examined at the trial, the admissibility and reliability of which is beyond doubt. The court did not establish any aggravating circumstances. The court's conclusion about the impossibility of reforming a convicted person without actually serving the sentence is motivated. The decision to actually serve the sentence was made by the court taking into account information about the identity of the convicted person, the impact of the imposed punishment on his correction and the living conditions of his family, as well as other circumstances in the case, with which the appellate court has no reason to disagree.

At the same time, when imposing a sentence, the court did not take into account voluntary compensation for damage caused as a result of the crime as a mitigating circumstance.

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Refusal to receive a refund

Victim's refusal

from receiving compensation for damages

The fact that the victim refused to receive money does not entail non-recognition of this circumstance as such. Information that funds were sent to the victim was examined at the court hearing and copies of documents confirming this fact were added to the case materials.

(Comment: in this case, the court of first instance did not take into account compensation for damage, since the victim did not actually receive the money. But the appellate court took into account the very fact of sending money - as compensation for damage. You can read more about such situations here: Refusal of the victim

from receiving compensation for damage, what should I do?)

In accordance with Part 1 62 of the Criminal Code

, in the presence of mitigating circumstances provided for in
paragraph "k" part 1 of 61 of the Criminal Code
, and the absence of aggravating circumstances, the amount of punishment cannot exceed two-thirds of the maximum term or the maximum amount of the most severe type of punishment provided for by the relevant article of the Criminal Code.
The court Part 1 62 of the Criminal Code
.

(Comment: the Criminal Code contains articles that provide for restrictions on the sentencing period (see list

such articles).
Since the appellate court recognized the existence of such a circumstance ( clause "k" part 1 of 61 of the Criminal Code

part 1 of 62 of the Criminal Code
began to apply (punishment no more than 2/3 of the maximum).
In this case, the sentence was 4 years 10 months, which exceeds 2/3 of the maximum sanction of Part 3 264 of the Criminal Code
(the maximum for it is 7 years).

No violations of the norms of criminal procedure law entailing the reversal of the sentence have been established. Based on the above and guided by 389.20 Code of Criminal Procedure

,

pos t a n o v i l :

To change the sentence: to recognize as a mitigating circumstance - voluntary compensation for harm caused as a result of the crime. Reduce the imposed punishment under Part 3 264 of the Criminal Code

, up to 3 (three) years of imprisonment to be served in a colony-
settlement
.

(Comment: here we see a very interesting nuance. As we have already explained above, the mitigation of the punishment occurred due to the fact that a new mitigation appeared, which included the rule of Part 1 of 62 of the Criminal Code

(penalty no more than 2/3 of the maximum). But as you can see, here, the court went further and softened it more than just the formula 2/3 of 7 years. If the court simply applied this formula, then the punishment would be 2/3 of 7 years, that’s 4 years 8 months.

That is, strict adherence to the formula would lead to a reduced sentence of only 2 months. And the court reduced it by 1 year 8 months!

The point here is this: if the court had acted according to the formula, it would have fallen into a trap - and in cassation the verdict would have been changed anyway. You can read about it here: Court error

in the presence of a punishment bar and additional mitigating factors (
clause 36
of Plenum No. 58).

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/ Legal articles on the topic of automobile law / Criminal liability under Art. 264 of the Criminal Code of the Russian Federation / Judicial practice under Part 1 of Art. 264 of the Criminal Code of the Russian Federation

Judicial practice under Part 1 of Art. 264 of the Criminal Code of the Russian Federation

Part 1 of Article 264 of the Criminal Code of the Russian Federation is the “lightest” offense from the entire list of “road” crimes. This provision establishes criminal liability for violation of traffic rules by a person driving a vehicle, which through negligence resulted in the infliction of serious harm to human health.

In our article today we will talk about how judicial practice develops when considering criminal cases of crimes under Part 1 of Art. 264 of the Criminal Code of the Russian Federation.

Termination of criminal cases under Part 1 of Art. 264 of the Criminal Code of the Russian Federation

As judicial practice shows, criminal cases under Part 1 of Art. 264 of the Criminal Code of the Russian Federation is terminated in the courts very often, and if you have not been convicted and have reconciled with the victim, then your chances of avoiding a conviction under this article are very high. However, on our website there is a separate detailed article, in which we examined in detail all the issues of termination of a criminal case under Part 1 of Art. 264 of the Criminal Code of the Russian Federation for reconciliation of the parties.

Amnesty under Part 1 of Art. 264 of the Criminal Code of the Russian Federation

Fortunately for those who were not lucky enough to fall under criminal liability under Part 1 of Art. 264 of the Criminal Code of the Russian Federation, the specified composition very often falls under an amnesty if it is announced. At least, all Russian amnesties in recent years covered Part 1 of Art. 264 of the Criminal Code of the Russian Federation.

Punishment under Part 1 of Art. 264 of the Criminal Code of the Russian Federation

The crime provided for by this norm refers to acts of minor gravity and the maximum severe punishment provided for by this article is 2 years of imprisonment.

However, as judicial practice shows, imprisonment under this article (even conditional) is extremely rarely imposed. Much more often, other, less severe penalties are applied to those responsible for road accidents, which we will now consider.

- Restriction of freedom. This punishment consists of imposing a number of restrictions on the convicted person regarding freedom of movement and leisure. The specific list of restrictions is established at the discretion of the court. For example, a convicted person may be prohibited from leaving home at night, visiting clubs, cafes, restaurants, traveling outside his area without permission from the penal inspection, etc. In addition, the execution of a punishment in the form of restriction of freedom requires the mandatory wearing of a special electronic bracelet, which allows the FSIN authorities to monitor the location of the convicted person and all his movements through a satellite communication system. According to Part 1 of Art. 264 of the Criminal Code of the Russian Federation, restriction of freedom can be imposed for a period of up to 3 years, although in fact, less is prescribed. As judicial practice shows, in the event of a guilty verdict, this type of punishment under Part 1 of Art. 264 of the Criminal Code of the Russian Federation is appointed by the courts in most criminal cases.

— Forced labor. This type of punishment involves engaging the convicted person in forced but paid labor in special correctional centers. Appointed for a term of up to two years. However, in fact, this type of punishment is used only in a few regions of Russia, where special correctional centers have been built. In most regions of the Russian Federation there are no such centers yet.

— The same applies to punishment in the form of arrest, which is provided for by the sanction of Part 1 of Art. 264 of the Criminal Code of the Russian Federation, since there are no special arrest houses for serving this type of punishment in the vast majority of regions of Russia. The maximum sentence in the form of arrest under Part 1 of Art. 264 of the Criminal Code of the Russian Federation is 6 months.

- Deprivation of liberty. The most severe type of punishment, provided for in Part 1 of Art. 264 of the Criminal Code of the Russian Federation. Under this article, imprisonment can be imposed for a term of up to 2 years, however, in fact, it is used extremely rarely and only if the culprit has an outstanding criminal record or there are aggravating circumstances in the case.

This is important: the defendant under Part 1 of Art. 264 of the Criminal Code of the Russian Federation, who has no criminal record and no aggravating circumstances, a sentence of imprisonment cannot be imposed by force of law. This directly follows from the content of Part 1 of Art. 56 of the Criminal Code of the Russian Federation

The practice of appointment under Part 1 of Art. deserves a separate discussion. 264 of the Criminal Code of the Russian Federation such additional punishment as deprivation of the right to drive a vehicle. The sanction of this article provides for such punishment for a term of up to 3 years, but, at the same time, it is not mandatory and is assigned in each specific case at the discretion of the court.

The greatest chances of avoiding such punishment, as a rule, are those for whom the driving profession is the main, or generally the only source of income and at the same time, there is a family and children. The presence or absence of administrative penalties through the traffic police is also of great importance. For those who have a long “track record” of traffic violations, it will not be easy to avoid additional punishment, and in the presence of “administrations” with deprivation of the right to drive a vehicle, it will be almost impossible.

And in conclusion, let’s talk briefly about the practice of courts collecting claims for compensation for moral damage in criminal cases of this category. If the courts, as a rule, recover documented material damage in full, then in the case of compensation for moral damage, everything is not so clear.

Based on practice, we can conclude that the court is often inclined to moderate the financial appetites of victims who bring claims. For example, in one of the criminal cases against one of our clients, accused under Part 1 of Art. 264 of the Criminal Code of the Russian Federation, in addition to compensation for treatment costs, a claim was brought for moral damages in the amount of 700,000 rubles (the victim was diagnosed with a complex hip fracture). Having considered the claim, the court recovered from the culprit of the accident only 250,000 rubles, i.e., less than half of what was claimed. However, this does not always happen and depends on the subjective opinion of a particular judge.

If you have any specific questions or problems that require qualified legal assistance, please contact the duty lawyers on our website. That's all, good luck on the roads!

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