Termination of a criminal case with the imposition of a judicial fine: practice of cassation courts of general jurisdiction

Last updated - January 2022

In 2016, a chapter numbered 15.2 appeared in the Criminal Code of the Russian Federation, which provides for the opportunity to avoid punishment for a crime under certain conditions, “getting off” with a court fine. Chapter 51.1 introduced into the Code of Criminal Procedure of the Russian Federation is intended to regulate the procedure for his appointment.

This innovation demonstrates the desire of legislative bodies to distinguish the consequences of an act depending on as many factors as possible, the main of which is the person’s personality.

Judicial fine - what is it?

Chapter 15.2 was included in the section regulating the application of other criminal measures to those who have broken the law, along with confiscation of property and compulsory medical measures.

This is not a punishment for a crime, but a kind of measure of influence without assigning it to the person held accountable.

Art. 104.4 of the Criminal Code of the Russian Federation establishes that a judicial fine is a monetary penalty imposed when a person is released from criminal liability by the court in accordance with certain grounds

In other words, a person, instead of being convicted, found guilty, sentenced to serve a deserved sentence and subsequently have a criminal record, is released by the court from liability and pays only a certain amount of money to the state. The criminal case/prosecution is terminated under Art. 25.1 of the Code of Criminal Procedure of the Russian Federation, which regulates the grounds and general procedure in this case.

A judicial fine is not a fine as a type of criminal punishment for an offense committed by a judge; it will not lead to a criminal record.

When is a court fine possible?

The conditions for imposing a judicial fine are prescribed in Art. 76.2 of the Criminal Code of the Russian Federation, its appointment is possible only if all the stipulated points are fulfilled:

1. Crime committed for the first time. A person will be considered to have committed a crime for the first time under certain conditions:
   He committed one or more illegal acts, but was never convicted of any of them.
2. He was released from criminal liability or was not brought to it.
3. The sentence for a previously committed crime has not yet entered into legal force at the time the new one was committed.
4. The existing sentence has entered into force, but grounds have emerged for canceling the negative consequences of prosecution (the criminal record was cleared, the deadline for its expungement came, the person was released from serving the sentence due to the expiration of the statute of limitations for the execution of this sentence).
5. The previously passed sentence came into force, but by the date the case was considered by the court, the act for which the person was convicted ceased to be considered a crime. This means that changes have been made to the Criminal Code of the Russian Federation, according to which the article imputed upon conviction is decriminalized. So, previously theft in accordance with Part 1 of Art. 158 of the Criminal Code, theft of more than 1 thousand rubles was considered, and from mid-2016 - over 2.5 thousand rubles. Consequently, with the changes, theft of property worth from 0 to 2499 rubles. becomes petty theft and is subject to administrative liability, not criminal liability.
6. The crime committed is of minor (provided punishment - no more than 3 years of imprisonment) or medium (up to 5 years for intent and up to 10 years for careless form of guilt) gravity.
7. The damage caused by the crime is compensated or the harm from it is made up for in some other way . Damage is damage to property that can be compensated in kind (repair, replacement of lost property, etc.) or in monetary terms. Making amends is financial compensation for moral damage, any assistance to the victim of a crime, etc. Damage and harm can be compensated and made amends not only by the guilty person, but also by other people at his request or with his consent. Promises and other verbal undertakings on the part of the accused to do this in the future are not accepted by the court.

APPEALING THE INVESTIGATOR’S REFUSAL TO ACCEPT THE APPLICATION

The Supreme Court of the Russian Federation introduced amendments to paragraph 3.1 of Resolution No. 1 of February 10, 2009 “On the practice of courts considering complaints in accordance with Article 125 of the Criminal Procedure Code of the Russian Federation.” It states that the court, which is considering a criminal case on the merits, is not deprived of the right and opportunity, subject to compliance with all conditions provided by law, to decide to release the defendant from criminal liability with the imposition of a court fine. Thus, the investigator’s refusal to satisfy a request to terminate a criminal case or criminal prosecution on the grounds provided for in Art. 76.2 of the Criminal Code of the Russian Federation cannot be appealed to the court. You can only file a complaint with the prosecutor in accordance with Art. 124 Code of Criminal Procedure of the Russian Federation.

Amount and deadline for payment of the court fine

The law does not establish a specific amount of a court fine. There are general theses regarding its definition, prescribed in Art. 104.5 of the Criminal Code of the Russian Federation.

The amount of payment is determined by the court and is affected by:

• the severity of the crime charged;
• the financial situation of the person whom the court exempts from liability;
• the possibility or ability of him to receive any income;
• the financial status of his family.

Part one of Art. 104.5 establishes only the limits within which this fine can be imposed:

• no more than ½ the maximum amount of the fine under the charged article;
• if this type of punishment (fine) is not provided for in the article - no more than a quarter of a million rubles.

Considering the fact that a court fine is another measure of a criminal law nature, the provisions on the appointment and execution of a fine-punishment under Art. 46 of the Criminal Code of the Russian Federation are not applicable to him.

The period for payment of a court fine is also determined by the court individually and can vary significantly based on financial situation and other circumstances.

Vera Viktorovna Dolganina

Practicing lawyer with more than 10 years of experience.

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When determining the amount of a court fine for each individual person, the court is obliged to cite the circumstances it took into account in the final decision. This also applies to establishing deadlines for paying a fine: they must be justified by facts supported by documents in the case materials.

When does the law require payment of a fine and what is the payment procedure?

The procedure for fulfilling payment deadlines is regulated by Article 31 of the Criminal Code of the Russian Federation.
When the court verdict has entered into legal force, the convicted person is obliged to make payment within 30 days (if installments were not granted). In a situation where it is impossible to pay within the specified period, a person has the right to petition the court to grant him an installment plan. It is provided for up to 3 years. Part of the amount is paid within a month, the rest, upon satisfaction of the installment payments, is extended for the prescribed duration. The right to fulfill the obligation ahead of schedule. In case of constant evasion of payments, bailiffs again prepare the case for review.

It is unlikely that it will be possible to stop the criminal prosecution a second time. If, in addition to non-payment, the debtor is constantly hiding, then the bailiff puts him on the wanted list and subsequently has the right to detain him for several days.

Payment can be made:

• in any branch of a banking organization;
• by mail;
• through an ATM;
• using the online service.

For conscientious and truly repentant people, there will be no obstacle to payment, either by place, or by method, or for any other absurd reason.

Bailiffs provide all the necessary paper support - a writ of execution, a copy of the verdict, checks indicating the details, cost and duration of transfer of funds.

The procedure for imposing a court fine in a criminal case

If the conditions referred to in Art. 104.4 of the Criminal Code of the Russian Federation are complied with, and a procedure is initiated for the court to consider the possibility of imposing a judicial fine. The process takes place in two very similar versions; which of them is applicable depends on the stage of the proceedings.

Termination of a criminal case/prosecution with the imposition of a judicial fine is permissible at any time, but only before the presiding judge retires to the deliberation room to pronounce a verdict (the last one before this stage is the last word of the defendant, if he decides to exercise this right).

Pre-trial investigation

Until the moment when a criminal case is sent to court for consideration, the initiative to begin the process of terminating the case with the imposition of a court fine comes from the person investigating it. The procedure in this case is regulated by Art. 446.2 of the Code of Criminal Procedure of the Russian Federation.

If during the investigation of a criminal case the grounds specified in Art. 25.1 of the Code of Criminal Procedure of the Russian Federation, the person who is investigating it makes a decision to initiate an appropriate petition for each specific suspect or accused individually.

This request of the investigator must be agreed upon with his immediate supervisor, and that of the interrogating officer with the prosecutor. A copy must be provided to the victim.

The petition is prepared by the investigator and sent to the court along with all the case materials and details for transferring funds. It is considered by a single judge, whose competence includes the consideration of a criminal case. For example, cases of “simple” thefts under Part 1 of Art. 158 of the Criminal Code of the Russian Federation are subject to the jurisdiction of magistrate judges, and those qualified under Parts 2-4 of this article are subject to the jurisdiction of district judges. Accordingly, the question of application of Art. 25.1 of the Code of Criminal Procedure will be decided by the same judges.

The process must take place no later than 10 days from the date of receipt of the application.

The judge presiding over the trial has the powers:

1. Satisfy the petition, terminate the case on the basis of Art. 25.1 of the Code of Criminal Procedure of the Russian Federation with the imposition of a judicial fine. This decision is made under the following conditions:
   the suspect/accused has no objections to the termination of the case on this basis;
2. the circumstances of participation in the crime specified in the petition are similar to those revealed at the court hearing;
3. there are no other reasons to terminate the proceedings (for example, due to the absence of elements or events of the crime, the expiration of the statute of limitations)
4. Refuse the request, return it and the corresponding case to the investigative body or prosecutor. Such a decision may follow in the following cases:
   information about a person’s participation in the crime described in the petition does not correspond to the circumstances clarified at the meeting to consider it;
5. the criminal case/prosecution must be terminated on other grounds provided by law;
6. the suspect/accused does not agree with the termination of the case under Art. 25.1 Code of Criminal Procedure of the Russian Federation.

The consent of the accused to terminate the criminal case with the imposition of a court fine is required, since this basis is not rehabilitative. That is, it does not exclude a person’s involvement in a crime; he is subsequently considered to have been prosecuted, but not convicted.

Any provisions regarding the mandatory consent of the victim to terminate the proceedings in accordance with Art. 25.1 of the Code of Criminal Procedure of the Russian Federation is not contained in the law. However, the court still asks for his opinion on this matter in the trial. The decision made is formalized in the form of a resolution.

Appealing a decision on a petition

The court's decision based on the results of consideration of the investigator/inquiry officer's petition to terminate the case with the imposition of a judicial fine can be appealed on appeal (Part 7 of Article 446.2, Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation). For example, the refusal to satisfy such a request can be appealed by the suspect/accused or their defense attorneys (Article 389.1 of the Code of Criminal Procedure of the Russian Federation).

Stage of proceedings in court

According to Part 1 of Art. 25.1 of the Code of Criminal Procedure of the Russian Federation, the possibility of termination of a criminal case/prosecution with the imposition of a court fine exists, even when the criminal case is already being considered in court. The procedure for making a decision in this case is regulated by Art. 446.3 Code of Criminal Procedure of the Russian Federation.

Vera Viktorovna Dolganina

Practicing lawyer with more than 10 years of experience.

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This procedure looks a little simpler than the previous one and consists in the fact that the court, when considering a criminal case, has established the grounds for dismissing the case under Art. 25.1 of the Code of Criminal Procedure of the Russian Federation independently issues a ruling or resolution to terminate it and assign a court fine to the defendant. In practice, this means that in this case no one's application is required to make a decision.

The requirements and grounds for these procedural decisions and documents are similar to those described above.

The court must explain in writing what will happen if the court fine is not paid, as well as the need to transfer to the bailiff information about the payment of the fine, supported by payment documents.

Another way to start the procedure for imposing a court fine

According to Part 2 of Art. 446.2 of the Code of Criminal Procedure of the Russian Federation, before going to court with a petition to dismiss the case with the imposition of a judicial fine, the investigator or inquiry officer must establish the circumstances necessary for this, described above. Art. 446.3 of the Code of Criminal Procedure of the Russian Federation instructs the court to similarly establish these circumstances , only after this it has the right to resolve the issue of imposing a judicial fine.

There are situations in which a petition is not prepared and the issue of a court fine is not resolved; such cases have their own solution:

1. The investigator/inquiry officer or the court during the investigation or judicial review for some reason did not establish the necessary conditions for imposing a judicial fine. In this case, it is necessary to apply for investigative actions and other measures, to include information and evidence to confirm the existence of these conditions. They may be different in each individual situation. For example, about interrogating the victim in order to clarify the issue of compensation for damage, attaching his receipt, requesting information about prosecution, additional information, and others.
2. The investigator/inquiry officer or the court has established these circumstances, but for some reason does not consider the issue of terminating the case and imposing a court fine. In this case, the suspect/accused and/or their defenders have the right to prepare a petition to apply this measure of a criminal law nature. To make a decision on imposing a judicial fine, a petition is not mandatory, but may prompt authorized persons to consider the issue.

Petition to terminate the criminal case with the imposition of a court fine

Application, consideration and appeal of decisions on petitions

The petitions discussed above are indicated in the text of Chapter 15 of the Code of Criminal Procedure of the Russian Federation. Their consideration is mandatory for both the investigative authorities and the court. The results of the consideration (full or partial refusal of satisfaction, satisfaction) are formalized by a resolution (at the investigation stage) or a ruling (at the stage of consideration of the case in court).

Any of these documents must contain the reasons for the decision made. The maximum period for making a decision is three days from the date of the application.

Each of the decisions made, if you disagree with it, can be appealed in accordance with the procedure established by law:

1. The decision at the request of the investigator - to a senior manager, the prosecutor or to the court, the decision of the investigator - to the prosecutor or to the court in accordance with Art. Art. 124, 125 Code of Criminal Procedure of the Russian Federation.
2. The court decision on such petitions is appealed on appeal (Part 2 of Article 389.2 of the Code of Criminal Procedure of the Russian Federation), but only together with the final decision in the case (sentence or resolution).

In any case, the decision of the authorized person on the petition will make clear the position of the investigative body or the court and the reasons why the issue of applying a judicial fine, in their opinion, is subject to consideration or not.

CANCELLATION OF A DECISION ON A COURT FINE: GENERAL CONDITIONS

This procedure is initiated by the bailiff: he sends a notice of non-payment of the fine to the court. In accordance with Part 6 of Art. 103.1 of the Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings”, if after 10 calendar days from the date of expiration of the deadline for payment of the court fine, the bailiff does not have information about the payment by the debtor of the corresponding amounts of money, he sends to the court a representation about the abolition of this measure of a criminal legal nature and the resolution of the issue of bringing a person to criminal liability.

If the received materials do not contain sufficient data to consider the submission and it is impossible to fill them in at the court hearing, the court, in preparation for its consideration, returns these materials for appropriate processing (clause 32 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated December 20, 2011 No. 21 “On the practice of using courts legislation on the execution of sentences").

The court makes a decision to cancel a court fine according to the general rules of proceedings for the execution of a sentence. At the hearing, within the meaning of Art. 399 of the Code of Criminal Procedure of the Russian Federation, the bailiff who issued the notice of non-payment of the fine, the person who did not pay the court fine, his defense attorney and legal representative, the prosecutor are involved.

These persons must be notified of the date, time and place of the court hearing no later than 14 days before the court hearing. These persons are allowed to participate in the court hearing via video conferencing.

Participants in this proceeding have the right to familiarize themselves with the materials submitted to the court, participate in their consideration, file petitions and challenges, give explanations, and submit documents. We believe that the failure of these persons to appear does not prevent the consideration of this issue. The subject of research in a court hearing may be evidence in the form of certificates, characteristics, other documents that can confirm the reasons for non-payment of the fine, information about the identity of the person who did not pay the fine (marital status, income level, place of work, etc.).

In practice, situations may arise when a person not only fails to pay a court fine, but also goes into hiding and his whereabouts are unknown. B.B. Bulatov, V.V. Nikolyuk, V.G. Shalamov rightly point out that in these cases it is possible to cancel a court fine in absentia. “After the resumption of criminal proceedings, the inquiry officer and investigator will have the opportunity to put the suspect or accused on the wanted list and detain him upon discovery (Article 210 of the Code of Criminal Procedure of the Russian Federation).”

How does execution happen?

The decision to terminate a criminal case and impose a court fine is enforced by the court that issued it in accordance with the established procedure. Its copy and the writ of execution are sent to the territorial division of the Federal Bailiff Service in the debtor’s area of ​​residence.

Bailiffs in this situation are guided by Art. 103.1 Federal Law “On Enforcement Proceedings”.

A court fine must be executed by the person to whom it is assigned; the bailiff only controls this process.

Unlike the usual procedure for material penalties, a deadline for voluntary payment is not set, and an enforcement fee is not collected.

Enforcement proceedings may end:

• full payment of the assigned amount;
• return of the writ of execution at the request of the court;
• a motion to cancel a court fine if it is not paid.

The last of the above grounds for ending the proceedings with the bailiff becomes possible if he does not have information that the court fine was paid 10 days (including weekends and holidays) from the date of completion of the period allotted for payment.

If non-payment occurs for unjustifiable reasons, the person is considered to be evading it.

Reasons that arose after the court’s decision and impeded the ability to pay the court fine may be valid. In particular, this may be an illness and treatment in a hospital setting, loss of a job, loss of other income, property, etc.

WHAT AND HOW THE COURT INVESTIGATES

The court hearing should begin with a presentation of the presentation of the non-payment of the fine. Then the court examines the presented materials, listens to the explanations of the persons who appeared at the court hearing, the opinion of the prosecutor, and then makes a decision.

The subject of the trial in this case will be to establish the grounds for canceling the court decision (ruling) to terminate criminal prosecution and apply a court fine. Such grounds are failure to pay a court fine within the period established by the court without good reason.

In accordance with paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability” (hereinafter referred to as Resolution of the Plenum No. 19), valid reasons for non-payment of a court fine may be those that appeared after issuing a decision to terminate a criminal case or criminal prosecution circumstances due to which a person is deprived of the opportunity to perform relevant actions (for example, being treated in a hospital, loss of earnings or property due to circumstances that were beyond the control of this person).

When considering the issue of canceling a court fine, the court must establish that the person knowingly, without good reason, does not pay the fine and does not take any measures to pay it. Accordingly, the court examines evidence confirming the fact that a person failed to pay a fine within the prescribed period without good reason.

Within the meaning of this type of proceeding, the court can either satisfy the bailiff’s request or refuse to satisfy it if it recognizes the reason for non-payment of the fine as valid.

Consequences if the court fine is not paid

In a situation where, 10 days from the last day of the period set by the court, the court fine is not paid, the court will cancel the decision to terminate the criminal case. This process is initiated by the bailiff by sending a reasoned submission to the court.

After the decision is cancelled, the case materials are returned to the investigative body or the prosecutor (if the case was investigated by an investigator), subsequently it is investigated in the usual manner - until a verdict or other final decision is made.

Judicial fine and fine as punishment

There is some similarity between these two concepts in the Criminal Code of the Russian Federation, which often becomes the cause of confusion, primarily among those held accountable. Probably the new measure should have been called differently to avoid confusion of concepts. But to some extent, this established name reflects its essence. The table below will help you understand the distinctive features and advantages of a court fine.

Procedure for collecting an administrative fine

Fines under the Code of Administrative Offenses of the Russian Federation can be collected by courts, government bodies and officials. It depends on the composition of the administrative offense. For example, sanctions for violation of traffic rules can be imposed by traffic police inspectors or courts, depending on the article of the Code of Administrative Offenses of the Russian Federation.

The imposition of a fine in enforcement proceedings is permitted in case of non-payment of debt voluntarily and for illegal actions on the part of the debtor

Collection of criminal and administrative fines is carried out according to special rules and deadlines. If an administrative fine is not paid, the debtor may be given an additional penalty. If a criminal fine is not paid, the court may replace the punishment with more severe sanctions.

Collection of a fine through bailiffs will begin after the court, government agency or official sends a resolution to the FSSP. At the same time, there are special deadlines for voluntary repayment and for sending the resolution to the FSSP. These rules can be found in the articles of the Code of Administrative Offenses of the Russian Federation and Law No. 229-FZ.

Voluntary payment deadline

After the punishment is imposed under the Code of Administrative Offenses of the Russian Federation, the debtor is given time to make voluntary payment. This period is 60 days, and it is counted from the moment the resolution comes into force. If the fine is paid before enforcement proceedings are initiated, the violator will not face any additional sanctions. In this case, the resolution simply will not be sent to the FSSP, so you will not have to pay an enforcement fee.

In Art. 21 of Law No. 229-FZ states that a resolution on an administrative fine can be sent to the FSSP only within 2 years. If this period passes, the bailiff is obliged to refuse to accept the documents and initiate proceedings. This does not entail writing off the fine, but its forced collection will be impossible.

Another special deadline for payment applies after the initiation of proceedings. The bailiff is obliged to give the debtor 5 days to make voluntary payment. This period is not included in the 60 days for voluntary payment under the Code of Administrative Offenses of the Russian Federation. If the guilty person does not comply with the bailiff’s request and does not repay the debt within 5 days, then an enforcement fee will be collected. If the sanction is extinguished, then the proceedings will be completed, and the bailiffs will not begin enforcement actions.

Actions of the bailiff in enforcement proceedings

The powers of bailiffs specified in Law No. 229-FZ extend to the collection of all types of debts, including administrative fines. To collect, the bailiff can:

• send documents for retention to the place of work, that is, to the accounting department;
• send a resolution to the bank for debiting from accounts and cards;
• seize property if the amount of debt exceeds 3,000 rubles;
• introduce restrictions and prohibitions provided for by Law No. 229-FZ;
• carry out on-site activities to interact with the debtor and search for his property;
• introduce a ban on traveling abroad;
• initiate a search for the defaulter and his assets.

When collecting a fine in enforcement proceedings, its amount is important. For example, you cannot seize any property if the size of the sanction does not exceed 3,000 rubles. The bailiff is also obliged to make sure that the value of the seized property is commensurate with the amount of the debt.

A special restriction in enforcement proceedings may be applied in case of failure to pay a fine for traffic violations. The bailiff may deprive the debtor of his driver's license until he pays the full amount of the sanction. After the deprivation of rights, the debtor may be subject to additional liability if he is caught behind the wheel.

Consequences of failure to pay an administrative fine

If you fail to pay the fine after proceedings have been initiated, additional penalties may apply. First of all, the bailiff will definitely collect an enforcement fee. Its amount will be 7% of the initial fine, but not less than 1,000 rubles. Also, the bailiff can begin the sale of property seized after the initiation of the case.

A special type of punishment will be additional liability for failure to pay an administrative fine. Such cases are initiated under Art. 20.25 Code of Administrative Offenses of the Russian Federation. The consideration of the case and the imposition of additional punishment under this article is within the competence of the bailiff. We will discuss the procedure for collecting additional sanctions within the framework of enforcement proceedings below.

Application problems

Despite the fact that the opportunity to avoid liability by paying a certain amount of money, called a court fine, exists for a fairly long period, some uncertainties remain. Among them are the following:

1. The most unclear provisions in the law relate to the uncertainty in establishing the amounts and timing of payment. Only the maximum size is regulated; no minimum is specified at the legislative level. There is also no clarification regarding the deadline.
2. The next difficulty is the possibility of avoiding punishment for persons who have committed acts dangerous to society. Their correction without the use of punitive measures raises reasonable doubts. The Criminal Code of the Russian Federation includes a significant number of acts, after the commission of which (subject to a number of requirements) it is possible to avoid real punishment. For example, crimes such as “Force to perform acts of a sexual nature” (Part 1 of Article 133), involvement or organization of prostitution (Article 240, Article 241), “Receiving sexual services of a minor” (Article 240.1) and many other.
3. Next, the question arises whether such termination is possible in cases in which one of the conditions cannot be met: absence of damage or inability to make amends. For example, this is illegal trafficking in weapons (Article 222 and others), drugs (Article 228), porn materials (Article 242), forgery of documents (Article 327), cruelty to animals (Article 245), etc.