Acquittal under Part 1 of Article 128.1 of the Criminal Code of the Russian Federation. Slander. Tactics and features of defense

Lawyer Spiridonov M.V.
11/13/2018 0 Comments Law practice Spiridonov M.V., Criminal cases

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Tactics and features of defense

Libel is not a simple crime. It was first decriminalized in 2011, and six months later it was reintroduced into the criminal code. This is the only crime for which there are more acquittals than convictions. Understanding the features of this composition will allow you to avoid mistakes both for those who consider themselves victims and for those against whom a criminal case is being initiated for libel.

The features of the composition under consideration and defense tactics will be discussed in this article. According to established tradition, I will talk using the example of a specific case from my legal practice.

Sample statement to court for libel

Correctly drafting a statement of claim is the key to success in litigation. To file a claim yourself, you should use the following sample form.

The application will need to be accompanied by a receipt for the state fee in the amount of 200 rubles and copies of the documents indicated in the claim. A copy of the application must correspond to the number of participants in the case.

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Case plot:

A young girl turned to me for legal assistance, who explained that a private prosecution for libel had been filed against her and a criminal case had been initiated. The reason for initiating a criminal case was that my future trustee posted a leaflet with the following content on the doors of the entrances of the residential building where her ex-husband lived, and also placed a leaflet in mailboxes with the following content:

“Careful gigolo! Tyrant! Addict!

Ivanov Ivan Ivanovich (data changed, coincidences are random)!

Doesn't pay child support for his one-year-old son!

Borrows money from friends, relatives and does not return it!

He was repeatedly brought to the police station for beating his wife!

Currently undergoing treatment in a drug treatment clinic!”

Regarding this fact, the victim, who is also a private prosecutor, first contacted the police, and subsequently the magistrate with a statement of private prosecution, in which he asked to bring my client to criminal responsibility under Part 1 of Article 128.1 of the Criminal Code of the Russian Federation.

Punishment

When making court decisions regarding liability for libel, the following factors are taken into account:

• How significant was the moral damage caused by the blackmailer;
• Whether the physical condition of the victim worsened as a result of the actions of the accused;
• Were there any financial losses?

If the victim proves serious consequences, the punishment for the second will be more severe. Punishments are used depending on the distribution according to the severity of the crime:

Light heaviness

Moral compensation for slander and insult is 500,000 rubles or the total income of the accused for 6 months. The punishment may be the assignment of compulsory work, the number of which reaches up to 160 hours. If the media or public events were used to spread false information, fines are doubled and the duration of compulsory labor increases to 240 hours.

It is interesting that at the moment electronic publications are not officially registered as mass media and do not fall under the article of the Criminal Code on liability for libel, as well as comments on articles. In fact, it is not yet possible to prove the existence of a crime. At the moment, preparations are underway to finalize the legislative framework, taking into account the possibility of holding owners of Internet resources accountable.

The laws take crimes involving abuse of official position seriously, so if proven, you can receive a fine of up to 2 million rubles or give away your earnings immediately for 2 years. The mandatory work assignment can be used for up to 320 hours.

A similar penalty for spreading slander against a judge or juror during a trial in accordance with Art. 298.1 of the Criminal Code of the Russian Federation. For a police officer, according to Part 2 – 1 million. rub., income for 2 years or up to 320 hours of work.

Medium severity

This includes false information about sexual assault or other sexual misconduct. Also considered serious are false statements about the victim having a disease that could cause harm to others.

For citizens who have committed such a crime, a fine is awarded, the amount of which can reach 3 million rubles or all the money earned for 3 years. The duration of work increases to 400 hours.

Severe and especially severe

If a person is deliberately accused of a crime he has not committed, the culprit must suffer a fairly severe punishment. There are 3 years left, all funds earned for them can be alienated by the court as a fine for a proven crime, but the one-time amount increases to 5 million rubles. Compulsory work can take a criminal up to 480 hours.

Particularly dangerous slander

Sometimes false information circulated has such a strong impact on the victim. Which leads to serious physical conditions, the development of serious psychiatric illnesses, and even complete suicide. In such cases, Article 110 of the Criminal Code is used, which provides for up to 5 years of imprisonment.

Features of the composition:

In order to build a line of defense based on the composition in question, you need to know its features.

Thus, the mandatory elements of slander are four categories:

1. The fact of dissemination of information.

2. The defamatory nature of this information.

3. Inconsistency with their reality.

4. Knowing knowledge of a person that the information he disseminates is false.

The absence of at least one of these elements excludes the presence of criminal libel.

Law enforcement practice proceeds from the fact that information disseminated during slander must characterize in detail any specific fact. Statements of a general nature that do not contain an indication of a specific false fact (for example, the expressions “fraudster,” “drug addict,” “criminal,” etc.) do not constitute libel.

Accordingly, the phrases indicated in the leaflet “Beware of gigolo! Tyrant! Drug addict!” cannot constitute an objective aspect of the crime charged.

Criminal liability for libel can only arise if the person who disseminated the information had direct intent for what he had done, that is, if the person who disseminated the information was knowingly aware of the falsity of the information he communicated, discrediting the honor and dignity of another person or undermining his reputation, and wanted to spread them.

The construction of the crime under consideration was constructed by the legislator in such a way that if the defendant in good faith could have been mistaken regarding one or another indicated fact, but believed that the information he disseminated was truthful, then the composition of the criminal offense is excluded.

Civil liability for libel

If the victim is not satisfied with the prosecution of the slanderer, he has the right to receive monetary compensation from him for the harm caused.
Such collection is carried out in civil proceedings: either a separate claim is filed to recover monetary compensation for defamation, or, as part of criminal proceedings, a civil claim can be filed by the victim. In the latter case, the court, when sentencing the accused, immediately resolves the issue of the amount of compensation paid to the victim, which can significantly save time on litigation. It should be borne in mind that civil protection against libel does not depend on bringing the perpetrator to criminal liability. The Supreme Court of the Russian Federation has repeatedly noted that even if the initiation of a criminal case was refused or the case was dismissed for lack of corpus delicti, this does not deprive the victim of the right to file a civil claim for the protection of honor and dignity against the offender.

This is due to the fact that the Criminal Code and the Civil Code of the Russian Federation define offenses in the form of dissemination of defamatory information differently, so civil liability may arise even if the offender’s guilt was not established in criminal proceedings.

A citizen can be a plaintiff at any age; parents, adoptive parents or guardians act as representatives in court for minors and incompetents.
The honor and dignity of deceased citizens are also subject to civil protection at the suit of interested parties (primarily close relatives). Defendants in cases of protection of honor and dignity will be persons who disseminated false information of a defamatory nature, incl. Of course, the authors of this information. So, for example, if information derogatory to honor and dignity was published in the media, then the defendants will be the author of the article or video (journalist) and the editors of the corresponding magazine, newspaper, TV channel, etc.

In cases where defamatory information was published without indicating the author, only the editors are named as the defendant. An editorial office is a legal or physical entity that is directly involved in the production and release of a specific media outlet. If the editorial office does not have the status of a legal entity, then the founder of this mass media is brought in as a defendant.

In cases where defamatory information was disseminated by several persons, the plaintiff may, at his discretion, bring a claim against all violators or against one. The court may subsequently involve other co-defendants if, according to the law, it is impossible to consider the case without their participation (for example, persons who jointly caused harm are jointly and severally liable under the law, therefore all accomplices must be involved in the case).

If defamatory information was disseminated by an employee of an organization as part of his professional activities, acting on behalf of the organization, then the defendant according to the Civil Code of the Russian Federation will be the legal entity-employer, since it is responsible for the actions of its employees as if they were their own. Often in this category of cases, employees are called upon by the court to participate in the case as third parties, since in the event of collection of funds from the organization, it will collect them in recourse from the employee.

There are also situations when it is not possible to establish who exactly disseminated defamatory information (on the Internet, for example, or through anonymous letters). In this case, judicial protection of honor and dignity is still possible - through a statement declaring the disseminated information untrue. The application is considered by the court without a defendant, in a special proceeding; as a result, the fact of dissemination of information about the applicant of a knowingly false nature is established.

What needs to be proven in a defamation case? When filing such a claim in court, you will need to provide evidence confirming:

All three circumstances must be proven in court, otherwise the claim will be denied.
How are the terms “dissemination of information”, “defamatory nature of information” and “inconsistency with reality” understood in practice? Information about a citizen is considered disseminated if the information was published in the media (printed publications, radio, television, etc.), posted for public access on the Internet, set forth in job descriptions, public speeches, official appeals or statements officials. Information is considered disseminated if it was communicated to at least one person both orally and in writing. If information was communicated in confidential form to a person to whom it is directly related, this is not considered distribution.

The defamatory nature of information is recognized if it contains statements about a citizen committing an immoral act, immoral behavior in personal or public life, dishonest business conduct, violation of the principles of business ethics in economic activity, if they harm the honor, dignity of a citizen or his business reputation.

Information is considered deliberately false if the facts and events that are mentioned in it did not actually occur at the time of its dissemination. If the source of such information is official law enforcement acts (court decisions and sentences, decisions of investigative bodies, etc.), then such information cannot be considered untrue until these acts are canceled in accordance with the procedure established by law. For example, the wording of the dismissal order “due to appearing at work while intoxicated” does not contain false slanderous information; the dismissal order must be challenged under labor law.

It should also be taken into account that we all have a constitutional right to appeal to state and municipal bodies. Therefore, if a citizen applies, for example, to the police with a statement about a crime that, in his opinion, is being prepared or has already been committed, then police officers are obliged to check the information received. If, as a result of the inspection, the information is not confirmed, then this is not a basis for collecting compensation from such a citizen for violation of honor and dignity. This is permissible only if it is proven that the defendant contacted law enforcement authorities only with the intention of harming another person, without being guided by any other valid motives.

Prosecution's position:

In his statement, the private prosecutor made two main points:

1. The fact that the fact of distributing leaflets was proven in the case.

2. The fact that he is not a drug addict, he did not have arrears in alimony, he did not borrow money from friends, relatives, acquaintances, and accordingly the phrases indicated in the leaflet are false and discrediting his honor, dignity and business reputation.

In support of his position, the private prosecutor added to the materials of the criminal case certificates confirming the absence of arrears in alimony at the time of filing the application, certificates from dispensaries containing information that he was not registered with a narcologist and a psychiatrist.

Proof

If it happens that you suffered from the actions of a slanderer, then first you need to understand how to protect your rights, because in such a situation an attack on your dignity occurred. All suffering and stress of the victim relate to the moral damage caused to him.

Consequently, if law enforcement agencies refuse to initiate a case or if they render an acquittal, the injured citizen can defend his rights in civil proceedings.

Filing a claim in civil proceedings must be supported by a body of evidence:

• justification that the defamatory information is not valid and cannot be supported by real facts;
• the presence of a motive for the guilty person to commit criminal acts. Slander is committed, as a rule, with the specific purpose of discrediting a person’s honor and encroaching on his dignity in the eyes of other people to cause humiliation.

Taking this into account, the victim should prove the discrepancy between the information and the real circumstances and indicate the reasons for the bad relationship with the guilty person (envy on the part of the latter, career aspirations, etc.).

The main point of proof in this case will be that the victim will have to provide evidence. Accordingly, if he does not have any facts confirming the criminal act, he should not apply to initiate a case and accept it for proceedings.

In another situation, if the consideration ends in an acquittal, the person illegally involved in the process can compensate for moral damages from the original applicant.

Witness's testimonies

It is usually necessary to look for witnesses first. Their testimony is heard in the courtroom in favor of the victim. If a citizen could not find the people who captured the criminal act, he should not be upset.

Often, crimes of this type correspond to the rule of repetition, that is, if the actions were committed once, then, most likely, they will be committed a second time. Consequently, in this way the victim can prepare himself for another attack.

In a situation where slander occurs in a work environment, employees of the organization can act as witnesses. If the encroachment is carried out at home, then close relatives or neighbors can prove the act.

If only strangers can testify to what was done, it is worth making an effort to search for them in order to record information about them. Such citizens can subsequently help the victim confirm his position in court.

No witnesses

If slander occurs repeatedly, you can arm yourself with recording devices, such as a telephone, voice recorder and other recording devices that can establish the fact of slander.

Important! In cases of these crimes, if they were committed without witnesses, linguistic expertise will play a large role. Such an examination is carried out in a situation where defamation is displayed in audio or video files or on written media.

The expert examines the presented material evidence:

• in written media, he studies the handwriting of the guilty person;
• studies his speech in audio and video files (namely, obscene expressions and verbiage).

An examination can help the victim most accurately establish the guilt of the criminal, even without the latter’s testimony.

You can prove slander using:

• audio and video recording devices;
• in case of public actions – a link to a page on the Internet with false information about the victim or a clipping from a printed article;
• witness statements.

Line of defense:

It was decided to build the defense as follows. The defendant did not dispute the fact of distributing the leaflets, however, in addition to the very fact of distributing the leaflets, the private prosecutor had to prove the subjective side of the crime, namely, provide evidence that, by distributing the leaflets, the defendant knew that the information she provided was false, defamatory, and thereby she wanted cause harm to the victim.

During the consideration of the case, the private prosecutor and his representative did not present evidence that would confirm the presence of direct intent on the part of the defendant to disseminate deliberately false information regarding the victim.

At the trial, based on the testimony of the defendant and witnesses, it was established that the defendant distributed leaflets not with the intention of causing harm to the victim, but in order to draw the latter’s attention to the need to provide funds for the maintenance of their common child with the victim, since in other ways to achieve contact with The defendant could not be a victim.

From the defendant's consistent testimony, it appeared that she was confident that everything stated in the leaflet was true. The defendant justified why she considered each of these phrases to be true.

In particular, indicating in the leaflet the phrase: “Be careful gigolo!”, the defendant explained that she considered this phrase to be true, since her ex-husband often did not work during their marriage and lived off the money she earned and money borrowed from the defendant’s mother. These circumstances, in the opinion of the defendant, indicated that the victim is a gigolo, that is, a man who lives at the expense of women.

Pointing the word "Tyrant!" and the phrase “He was repeatedly brought to the police for beating his wife!”, the defendant explained that she considered these phrases to be true, since the victim beat her during their time together, they had frequent scandals.

Justifying that these phrases, in the opinion of the defendant, are true, the defense presented in the case materials answers from the police department, according to which the victim was taken to the police department at the request of the defendant about the use of physical violence and beatings on his part. These certificates from the police must be considered in conjunction with the response provided by the defense from the ambulance station, from which it followed that when the defendant’s ex-husband was taken to the police on the fact of the beating, an ambulance was recorded visiting the defendant and diagnosing the latter with a concussion.

A number of defense witnesses also explained the facts of the use of violence against the defendant by the private prosecutor.

Pointing out the phrase: “She doesn’t pay child support for her one-year-old son!”, the defendant explained that she considered this phrase to be true, since after she and the victim began to live separately, the latter did not provide her with funds for the maintenance of their common child, despite the fact that that she asked him to help financially.

The defendant explained that she believed that the money that her ex-husband should have provided her was alimony, since it was provided for the maintenance of the child.

To confirm that the defendant asked to provide her with funds, the defense added a statement of claim to the materials of the criminal case. This statement confirmed the fact that before the leaflets were posted, the defendant was taking measures to force her ex-husband to pay alimony. If the ex-husband had provided funds for the child, then this claim would not have arisen.

The fact that the victim did not provide money to support the child, and the defendant, in turn, asked for financial help, was also confirmed by a number of witnesses. In refutation, the private prosecutor did not provide evidence that the latter provided funds for the maintenance of the child.

Indicating the phrase: “Borrows money from friends, relatives and does not return it!”, the defendant explained that she considered this phrase to be true, since during the time she lived with the victim, he borrowed money from his mother, friends, and the defendant’s mother.

The fact that the ex-husband borrowed money was confirmed by witnesses who consistently indicated what they knew about the circumstances of the loan. To confirm the defendant’s position, the defense included in the case materials a receipt for a loan of 350,000 rubles by the ex-husband from his mother to purchase a car. This receipt was included by the victim in another case regarding the collection of alimony, and in the present case this document became good evidence for the defense.

Indicating the word: “Drug addict!” and the phrase: “Currently undergoing treatment in a drug treatment clinic!”, the defendant explained that she considered these phrases to be true.

In support, she indicated that during their cohabitation with the victim, the latter used drugs and was treated in a drug treatment clinic by a friend of their family. Regarding the fact that her ex-husband uses drugs, the defendant told her friends and mother, who confirmed this circumstance during the trial.

The defendant spoke in detail about the facts known to her about the use of drugs by her ex-husband and his undergoing treatment in a drug treatment clinic, namely, the defendant indicated the address where the specified clinic is located, described in detail the circumstances on the basis of which she drew conclusions about the victim’s undergoing treatment, indicated the data (last name and first name) of the person who carried out the treatment, indicating that he was a family friend of her ex-husband.

An important aspect that the defense asked to pay attention to was the fact that the defendant indicated the fact that she had undergone treatment from the indicated person even before the criminal case was considered in court, during the course of giving an explanation to the district police officer regarding the inspection material.

The defense presented evidence to the court (an extract from the Unified State Register of Legal Entities), from which it follows that the person with the data indicated by the defendant (last and first name) is indeed the head of a medical center providing treatment, including drug addiction. The victim did not deny the fact that the specified person is his acquaintance, including introducing him to the defendant.

The defense focused the court's attention on the fact that the prosecution did not present evidence indicating that the defendant knew that the victim did not use drugs and did not undergo treatment. The certificates from the drug treatment clinic presented by the prosecution do not indicate that the defendant deliberately wanted to provide false information. These certificates only confirm the fact that the victim is not registered with a narcologist.

When assessing this position of the defense, it is necessary to take into account that the peculiarity of the crime under Art. 128.1 of the Criminal Code of the Russian Federation, is that if the defendant in good faith could have been mistaken regarding one or another fact indicated by her, but believed that the information she disseminated was truthful, then the elements of a criminal offense are excluded.

At the court hearing, it was reliably established, based on both the testimony of defense witnesses and the testimony of the only prosecution witness, that the leaflets were posted by the defendant in order to encourage her ex-husband to provide money for the maintenance of the child; this is precisely the purpose of posting the leaflets that the defendant indicated during communication with all the listed persons, and also indicated to the court.

The prosecution did not provide evidence to the contrary, nor was there any evidence directly indicating that the defendant knew that the information contained in the leaflets she distributed was false.

Judicial practice under Article 128 of the Criminal Code of the Russian Federation

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 20, 2017 N 19-APU17-8
It is also impossible to agree with the position of the defense on the need to terminate proceedings under Part 3 of Art. , clause “a”, part 2, art. 128 of the Criminal Code of the Russian Federation on the basis that the convicts voluntarily refused to enter the store and steal the money located there. As the convicts themselves admitted, the theft from the store was not committed by them for the reason that Uzungadzhiev M.G. could not open the door to the store, and a passing car frightened them with the threat of possible exposure. These circumstances indicate a forced, independent of the will of the convicted, cessation of committing a crime and do not give grounds to believe that there was a voluntary refusal from them to complete the theft.

Excerpts from the verdict.