Compensation for damage in a criminal case is made. Compensation for damage in criminal matters. Claim for damages from a crime
GENERAL BASES FOR REPAIR OF HARM CAUSED BY CRIME
The Constitution of the Russian Federation in Art. Art. 46 and 52 guarantee the protection of the rights of victims of crime, ensuring their access to justice and compensation for damage.
The requirement to protect the rights and legitimate interests of persons and organizations victims of crimes includes the elimination of criminal consequences, including by restoring the violated civil rights of victims of crimes.
According to Art. 12 of the Civil Code of the Russian Federation, the number of ways to protect civil rights include damages and compensation for non-pecuniary damage.
In criminal proceedings, the obligation of the state to provide adequate protection for the civil rights of victims of crimes of individuals and legal entities, as set forth in Art. 6 of the Code of Criminal Procedure of the Russian Federation, is implemented through the resolution of claims for compensation for property damage or compensation for moral damage.
Compensation for harm caused by a crime, contrary to the prevailing opinion among lawyers, is not a special institution for compensation for harm (for example, as institutions for compensation for harm - a source of increased danger or compensation for harm in the performance of official duties). Here, the general provisions on redress provided by Art. 1064 of the Civil Code of the Russian Federation, such as: “only the damage actually caused”, “the offender’s guilt”, “the full amount of the compensation”, “the existence of a causal relationship”, etc. are compensated. It is precisely because of this that the civil plaintiff in the criminal case, if at the same time of a special institute of compensation for harm, it has the right to choose - from whom does it compensate harm: from the criminal or, say, from the owner of a source of increased danger (if the criminal caused harm using such a source)? Or: from the offender or from the organization in which he performed official duties when causing harm? I believe that our readers do not need to emphasize that the author here refers to the person who the court will call the criminal in the verdict.
The advantages of a civil lawsuit in a criminal process are obvious from the point of view of procedural savings and the completeness of the study of evidence. So, the jurisdiction and jurisdiction of a civil lawsuit are determined by the jurisdiction of the criminal case (part 10 of article 31 of the Code of Criminal Procedure of the Russian Federation). Thus, a person recognized as a civil plaintiff in a criminal case is exempted from having to participate in court proceedings twice - first in a criminal case, then in a civil case. An important factor is the fact that it is often more convenient for a civil plaintiff to sue at the place of criminal proceedings, there is no need to send a claim at the place of residence or location of the defendant, and such a place may be a completely different region of the country. Upon presentation of a civil lawsuit, the civil plaintiff is exempted from paying the state duty (part 2 of article 44 of the Code of Criminal Procedure of the Russian Federation, paragraph 4 of paragraph 1 of article 333.36 of the Tax Code of the Russian Federation).
In addition, the criminal procedural law imposes simplified requirements for filing a civil lawsuit in a criminal case.
The criminal procedure law does not oblige, unlike the norms of the Code of Civil Procedure of the Russian Federation, a civil plaintiff to attach copies of it to the statement of claim in accordance with the number of defendants. The accused that a civil lawsuit has been brought against him can be found out only when he is familiarized with the materials of the criminal case or in the court session.
An arbitrary form of the statement of claim is allowed, the absence in it of information about a person who bears civil liability for damage caused by the crime, the price and grounds of the claim. So, in one of the complex cases of abuse of power, where the author of the publication had a chance to participate, his colleague, who defended one of those prosecuted, actively objected to the adoption of a statement of claim for a large sum from a state organization, a civil plaintiff in a criminal case, and requested that this claim be left without consideration due to the fact that the grounds for the claim were not specified in the application. Rejecting the objection of the lawyer, the court reasonably indicated that by virtue of Part 2 of Art. 250 of the Code of Criminal Procedure of the Russian Federation, the absence of the grounds for the claim in the statement of claim, unlike the civil process, is not an obstacle to the consideration of the lawsuit, since the very fact of indictment acts as such. By virtue of this fact, persons held criminally liable are civil defendants (but this is not always the case, which will be discussed below) if harm has been caused by a crime, so there is no need to go far for reasons.
We believe that within the meaning of the norms of the current Code of Criminal Procedure of the Russian Federation, including part 4 of Art. 42, part 2, article 136, part 2, article 309 of the Code of Criminal Procedure, a civil lawsuit must be brought in the form of a written statement addressed to the investigator (interrogator) or the court. In this regard, we disagree with the prevailing opinion that a civil lawsuit can be brought both in written and oral form (when an oral statement of claim is recorded in the minutes). As stated in Decree of the Constitutional Court of the Russian Federation dated January 31, 2011 No. 1-P, civil claims for compensation for property damage caused by a crime, regardless of whether they are subject to consideration in civil or criminal proceedings, are permitted in accordance with civil legislation. Moreover, by virtue of Part 1 of Art. 131 Code of Civil Procedure of the Russian Federation, a statement of claim is filed with the court in writing (for more details see: Civil lawsuit in criminal proceedings (Sycheva O.A.) (Magistrate, 2015, No. 5).
The civil plaintiff in the criminal process is not very difficult with the evidence in the lawsuit. They are all materials of the criminal case, all of its volumes and pages - from the first to the last. If the fact of committing a crime by a person brought to criminal liability is proved, if it is confirmed that the damage was caused directly by the crime - there is, as a rule, all the grounds for satisfying the claim. And then, who does not agree - complain. Prove your innocence, and hence the lack of grounds for recovery.
That is why, in our opinion, it is always easier for a civil plaintiff in a criminal process than in a civil one. State law enforcement agencies do a lot for him: collecting evidence, determining the amount of damage, securing a claim, etc. It is only necessary to carefully monitor compliance with their rights, the entire dynamics of this process.
According to paragraph 4 h. 1 Article 73 of the Code of Criminal Procedure of the Russian Federation in criminal proceedings, the nature and extent of the damage caused by the crime shall be proved. Consequently, the key to solving the issue of recognizing a citizen or legal entity as a victim of a crime and, accordingly, a civil plaintiff is the concept of “harm”.
In criminal procedure law, the concept of “harm” is not defined, which causes some difficulties in deciding whether to recognize a person as a civil plaintiff. Investigators sometimes find it difficult to determine to whom exactly the harm caused by the crime and, therefore, whom to recognize as the victim and the civil plaintiff (so, now the investigation in the case of the so-called “Khabarovsk MMM” is at an impasse: who is the victim in the case - credit consumer cooperatives (legal entities) or citizens who have entrusted their monetary savings to cooperatives?).
In this regard, it is quite justifiable to turn to civil law, since the very concept of “harm” is formed precisely by civil law (see: Civil lawsuit in a criminal case: from theory to practice (Sushina T.E.) (Journal of Russian Law, 2016, No. 3).
The definition of the concept of “harm”, formulated in civil law, seems acceptable for criminal procedural relations.
Damage caused as a result of a crime is divided, as applied to citizens, into physical, property and moral, and into legal entities - into property damage and damage to business reputation.
It is generally accepted by physical harm to mean harm done to life and health. Property damage (damage) is caused by the deprivation of property, material goods and is expressed in monetary amount. Non-pecuniary damage is defined in Art. 151 of the Civil Code of the Russian Federation as physical and moral suffering caused to a citizen by acts violating his personal non-property rights or encroaching on other intangible goods belonging to the citizen.
The resolution of civil claims in a criminal case is based on the establishment of such legal facts as the presence of a crime, the infliction of harm by a crime, the existence of a causal link between the crime and the harm that has occurred. And if, for obvious reasons, the role of a civil plaintiff is not significant in establishing the fact of a crime on the part of persons brought to criminal liability, then his active position in the criminal process can play a key role in determining the size of the damage caused.
At the same time, the court should show maximum objectivity, because, carried away by the task of restoring social justice, the court may not notice bias on the part of the civil plaintiff in relation to the guilty party (remember the famous expression of the injured Shpak from the film by Leonid Gaidai: “three tape recorders, three cigarette cases, a suede jacket - three…"). So, in one of the criminal cases involving the abduction of an imported truck from the enterprise, the district court sentenced the court to recover more than four million rubles of damages from the guilty parties (that is, the full book value of the stolen goods), although the investigation authorities returned the enterprise (and accepted the last one!) spare parts with the car dismantled by thieves in the amount of more than half of its value. According to the appeal of the defense lawyer, the regional court, of course, reduced the amount recovered by half.
In accordance with Art. 44 of the Code of Criminal Procedure of the Russian Federation, a civil plaintiff is an individual or legal entity that has submitted a claim for compensation for property damage, if there is reason to believe that the damage was caused to him directly by a crime. The rule of law given here is a clear illustration of the fact that there are no random words or expressions in the law. Of course, we are referring to the words "directly a crime." The fact is that crimes can have distant, indirect harm, in the primary basis of which lies, meanwhile, the harmfulness of the criminal act. The given norm of the law regulates that a civil lawsuit in a criminal process can and should be filed only when the damage is caused directly by the crime committed. Only such a civil lawsuit is subject to adoption and consideration. It is not a civil plaintiff in a criminal case, for example, a person who has filed a recourse request. Or a person affected by the long-term consequences of a crime.
Meanwhile, judges do not always take this into account. So, in one of the criminal cases involving the author of the article as a defender, the court recovered from the convict harm in favor of a citizen who lost his home in a civil lawsuit to recover property from someone else’s illegal possession. This citizen was not recognized in such a lawsuit as a bona fide purchaser, since he acquired housing, albeit on a reimbursable transaction, but this housing had previously been taken out of the owner's possession against his will (as a result of fraudulent actions for which the culprit in the criminal case was convicted). The defense attorney drew the court’s attention that it was impossible to recover damages in the framework of a criminal case, since the injured citizen was injured not directly by the crime, but by a vicious transaction, which was preceded by a number of vicious transactions. All these transactions must be further dealt with and blamed on all perpetrators. The district court did not attach any importance to this remark of the defender, but the regional court applied the provisions of Art. 44 of the Code of Criminal Procedure, changing the sentence in this part and deciding to consider the civil lawsuit of the actual acquirer of the apartment in a separate civil proceeding.
Since a criminal law (Article 14 of the Criminal Code of the Russian Federation) classifies a crime as a socially dangerous act that is prohibited by the Criminal Code under the threat of punishment, theoretically, any crime committed can be harmful to be compensated, since this act is socially dangerous. In practice, this is not always the case. A crime can be committed, but there is no one to compensate for the damage in its substantive sense. For example, if the crime was committed in violation of the interests of the state or individual rights, but without visible, tangible material consequences. In addition, after the crime, not all victims wish to compensate for the harm caused to them (for a variety of, sometimes deeply personal, reasons). So, according to the Judicial Department at the Supreme Court of the Russian Federation, only 10% of criminal cases are completed by courts with the resolution of civil claims. Studies show that the proportion of actual execution of relevant court decisions to compensate for harm caused by a crime is less than 21% (see: Stimulating the accused to compensation for harm caused by a crime: problems and prospects (Karabanova E.N., Tsepelev K.V.) (“Russian Justice”, 2016, No. 5)).
Nevertheless, one can single out the most typical, most often encountered examples of compensation for harm in connection with the crimes committed (and, accordingly, examples of civil lawsuits in criminal trials):
Compensation for harm from mercenary crimes (theft, robbery, fraud, extortion, etc.);
Compensation for harm from violent crimes (robberies, hooligan acts, causing bodily harm, torture, etc.);
Compensation for harm caused to life and health (due to murders, rape, serious traffic accidents, crimes of service, etc.);
Compensation for damage from transport crimes, from serious accidents, from accidents, explosions, fires, etc .;
Compensation for harm from official crimes (abuse of authority, abuse of authority, other crimes in the service);
Compensation for damage from crimes against the interests of commercial organizations;
Compensation for harm from terrorist acts;
Compensation for non-pecuniary damage;
Other damages.
METHODS AND SIZE OF COMPENSATION FOR HARM CAUSED BY CRIME
According to Art. 1082 of the Civil Code of the Russian Federation, satisfying the claim for damages, the court, in accordance with the circumstances of the case, obliges the person responsible for the harm to compensate the damage in kind (provide the thing of the same kind and quality, fix the damaged thing, etc.) or compensate for the losses (Clause 2 of Article 15 of the Civil Code of the Russian Federation).
In practice, such a method as compensation for harm in kind is rarely used in criminal cases and appears most often in the form of the return of part of stolen things (sometimes with a substantial discount of their real value), in the form of restoration repair of damaged property, etc.
More often it comes to compensation for damages. This may be the recovery of the value of stolen, damaged, caused, pecuniary damage. And here it is very important to accurately determine the amount of harm caused by the crime, in order to fully compensate it.
Civil disputes are among the most complex, require judges to have a thorough knowledge of substantive law. Sometimes, in the framework of a criminal trial, a forensic judge who specializes in criminal cases in a court of first instance may not always immediately find out who is the real owner of certain property and who has suffered real damage. Considerable difficulties arise in determining the amount of damage to be compensated. This is especially true for disputes related to transactions by business entities (for more details see: Compensation for harm caused by a crime (V. Titova) (“Legality”, 2013, No. 12).
It is also noteworthy that the value of property that is the subject of criminal assaults is constantly increasing, and it is not always immediately possible to figure out which type of value (cadastral, market, book value) should be used in assessing the damage caused.
Of course, all of the above requires additional efforts, knowledge, and professional development from law enforcement agencies, because the law guarantees the victim, as we have already indicated, compensation for both property and moral damage caused by the crime by providing the opportunity to protect their rights simultaneously with the consideration of the criminal case .
The amount of property damage to be compensated to the victim is determined based on the prices prevailing at the time of the decision on the lawsuit. There are exceptions to this general rule. So, according to the Decree of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2002 No. 29 (as amended on May 16, 2017) “On judicial practice in cases of theft, robbery and robbery”, determining the size of the stolen property, one should proceed from its actual value at the time of the commission crime. In the absence of price information, the value of stolen property may be established on the basis of expert opinion. In one of the criminal cases involving the author of the publication related to fraudulent acts in relation to municipal apartments, for example, the court rightly disagreed with the cost of stolen apartments, determined by the average value of a square meter of housing in Khabarovsk, and ordered an appraisal examination. She determined the value of the stolen taking into account the individual (rather than average) features of a particular apartment. In the future, this affected not only the size of the civil claim (to a lesser extent), but also the qualification of the deed and, as a result, the size of the punishment determined by the court.
The amount of the compensation awarded for damages cannot be increased taking into account indexation in the execution of the sentence, since such a decision is not provided for in Chapter 47 of the Code of Criminal Procedure of the Russian Federation. The civil plaintiff’s application for indexation is considered by the court in civil proceedings in accordance with part 1 of article 208 of the Code of Civil Procedure of the Russian Federation (paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 29, 2010 No. 17 (as amended of May 16, 2017) “On the practice of application by the courts of norms, regulating the participation of the victim in criminal proceedings ”).
Property damage caused by criminal acts of several persons can be compensated on the basis of joint civil liability, while non-pecuniary damage is compensated in cash according to the rules of shared responsibility, based on the nature and extent of the physical and moral suffering caused to the victim and the degree of guilt of each (see: Civil lawsuit in criminal proceedings (MV Bubchikova) (“Russian Judge”, 2015, No. 9)).
MIKHAIL BLINDERS, LAWYER, MANAGING PARTNER OF THE LAWYER OF THE BLINDERS AND PARTNERS, CANDIDATE OF LEGAL SCIENCES, ASSOCIATED, DESIGNED LAWYER OF THE RUSSIAN FEDERATION
Source of publication: Informational Monthly “Right Solution” issue No. 02 (184); release date 02/20/2018.
The article was posted on the basis of an agreement of October 20, 2016, concluded with the founder and publisher of the informational monthly "True Decision" of NET-DV Firm LLC.
02.01.2019
Download the statement of claim for damages from the crime, a sample taking into account the latest changes in law.
If as a result of a crime the property of the victim is damaged, it is damaged or lost, he has the right to demand compensation for the damage from the crime in full.
How to sue for damages from a crime
A claim for damages is submitted and considered in the framework of a criminal case. Upon sentencing, the court authorizes the claims of the civil plaintiff. If the requirements of the victim in the course of the criminal case have not been stated or resolved by the court, he is entitled to file a lawsuit in civil proceedings.
The sample claim for redress in a criminal and civil case will be the same. The plaintiff, when filing a claim for damages from a crime, is exempted from payment. The price of a claim is determined by the value of the lost property. The jurisdiction of a case in a civil proceeding is determined by the price of the claim and the place of residence of the defendant.
Sample claim for damages from a crime
IN ___________________________
(name of court)
Claimant: _______________________
(Full name, address)
Defendant: _____________________
(Full name, address)
: ____________________
(the whole amount of the requirements)
Claim for damages from a crime
“___” _________ ____ year. The defendant was a complete crime, as a result of which material damage was caused to me _________ (specify in detail what actions of the defendant led to the occurrence of damage).
The amount of material damage is the sum of the value of the stolen (or the cost of restoring the damaged) property, namely _________ (list the property, indicate its value or the amount of the cost of restoring the damaged property). The total value of the damage caused by the crime is ____ rubles, which are recoverable from the defendant guilty of causing the damage.
In addition, the guilty actions of the defendant caused harm to my non-property rights _________ (list the personal non-property rights of the plaintiff violated by the defendant in the commission of the crime), as a result of which I experienced physical and mental suffering _________ (indicate the physical and moral suffering that the plaintiff experienced) . The amount of compensation for non-pecuniary damage is estimated by me in the amount of ____ rubles, which is subject to recovery from the defendant.
- Recover from _________ (full name of the defendant) in my favor in respect of pecuniary damage from the crime ____ rubles.
- Collect from _________ (name of the defendant) in my favor compensation for non-pecuniary damage in the amount of ____ rubles.
The list of documents attached to the application (copies on the number of persons participating in the case):
- Copy of statement of claim
- Copy of the court verdict (if it took place and entered into legal force)
- Documents confirming the belonging of the stolen (damaged) property to the plaintiff
- Documents confirming the amount of compensation for damage from the crime (the cost of the stolen or the cost of restoring damaged property)
- Calculation of the amount of material damage from a crime
- Evidence of the degree of moral and physical suffering of the plaintiff as a result of the crime
Date of filing the application "___" _________ ____ g. Signature of the plaintiff _______
One of the tasks of law enforcement is to protect the violated rights of citizens who have suffered at the hands of criminals. At the same time, responsibility for redress caused by the crime lies with the guilty citizens or those responsible for their actions. The prosecution of violators of the law is carried out by the court in criminal proceedings or in civil proceedings. Damage must be compensated in full.
Grounds for compensation for harm caused by crime
To consider the issue of compensation for harm, you must have information about how large it is. In addition, it should be established that the damage was caused as a result of a specific crime committed. Damage to the victim can be regarded as:
- property damage;
- physical harm;
- moral injury.
Another prerequisite for obtaining compensation for harm caused by a crime is the identification of the perpetrator. If it is absent, then there is no one to present the requirements. When establishing the amount of compensation, in addition to the type of harm, the degree of guilt of the defendant, his financial situation, and other circumstances are taken into account.
Procedure
In order to receive compensation, the victim must be informed of his violated rights by submitting an application to law enforcement agencies. The further procedure will depend on whether the guilty person has been identified or wanted. If the citizen who committed the offense is known, he is granted the right to indemnify the damage already at the stage of the investigation of the case. You can do this in one of several ways.
Return stolen property
If the subject of the crime is found, it will be transferred to the victim as compensation for the damage caused. This can be done both during the investigation and after the court verdict. But since the stolen property is material evidence, when transferring it before the end of the trial, the custody certificate is issued by the owner.
Voluntary damages by the perpetrator
Damage and losses may be compensated voluntarily by the offender. He can do this by:
- cash compensation by postal or bank transfer;
- providing in exchange for a lost item a similar thing;
- repair property damage.
When choosing a method of compensation, the opinion of the victim is taken into account. Voluntary redress can be applied at any stage of the criminal case, from its initiation to the trial.
Making amends to a juvenile delinquent
By a court decision, the guilty person may be obliged to make amends for the damage caused. This happens with small amounts of losses. Such a decision may be made by a judge in a case of causing damage to a minor defendant. He can make amends for property repairs, cleaning the victim’s premises or the transfer of certain things.
Civil action
- damage was caused during the crime;
- criminal case materials prove the damage to the criminal.
State bodies that are engaged in criminal proceedings are required to explain to the injured citizen the procedure for his actions in presenting a statement of claim. After filing a claim, the victim is recognized as the plaintiff and admitted to the materials of the criminal case. This is a separate resolution. The injured person may himself take part in court hearings or entrust such a right to his representative. In addition, the plaintiff has the right to write an application for the seizure of the property of the accused in order to confiscate it and use it to compensate for the damage.
Statement of claim
The claim form has not been formally established. The document should be executed according to the general rules of procedural production. It must indicate the name of the court to which the plaintiff applies. The text must state the circumstances of the case and the requirements of the victim. In preparing the statement of claim, the victim is not required to attach documents proving the defendant’s illegal acts to him. Investigators are involved in the collection of evidence in the investigation of a criminal case. But documents must be collected confirming the relationship of the crime with the damage caused, the amount of damage received and the calculation of the amount of compensation. The court may refuse to consider claims in the following cases:
- non-appearance of the plaintiff at the court hearing;
- pronouncement of acquittal in a criminal case.
Important! If the victim did not manage to attach the civil lawsuit to the consideration of the criminal case, he has the right to file it later in civil proceedings. The same can be done in the case of a verdict of not guilty and the court refusing to consider the application.
When submitting a statement of claim, for consideration at the same time as a criminal case, the plaintiff is exempted from paying state duty.
What determines the amount of compensation
To establish the amount of compensation, it is necessary to determine the amount of property damage, assess moral damage or loss of health. The amount of compensation will be affected by:
- the value of stolen or damaged property;
- expenses for repair and restoration of damaged property;
- the amount of harm caused to health, including additional costs for treatment and rehabilitation.
For evaluation, you can be guided by documents confirming the price of the stolen items, the amount of expenses incurred by the victims. If they are absent, expert opinions are taken into account.
In addition to the accused, other persons responsible for damage caused by the defendant may be involved in a civil suit. They can be parents, guardians, business leaders. When committing a crime by several persons, there are features in the distribution of the measure of responsibility. Material damage is indemnified on the basis of joint liability. If the victim files a claim for compensation for non-pecuniary damage, the rules of shared responsibility come into force. Compensation for the harm of an individual violator will be determined on the basis of his physical and moral effects on the victim. To receive compensation for harm resulting from a joint crime, it is necessary to bring all participants to a criminal case.
When exemption is possible
“The state provides victims with access to justice and compensation for damages,” - calls art. 52 of the Constitution of the Russian Federation, protecting, thus, the violated rights of the victim.
The material damage inflicted annually by criminal assaults amounts to many millions of rubles. So, for example, the amount of damage caused in completed criminal cases, for which a preliminary investigation is necessary, for the period of 2001 in the Russian Federation amounted to 10.7 billion rubles, in cases of theft - more than 8 billion rubles, which is 10% higher than in 2000.
The trend of an annual increase in the amount of damage caused by crimes, especially in the economic sphere, has persisted over the past years. At present, the greatest damage is caused by crimes in industry, and its share is more than 24% of the total amount of damage caused. Compensation for damages in fish farming, fish, spirit, wine-making, distillery sectors and the industry as a whole remains also low. Moreover, even in completed cases, not more than a quarter of the damage in these sectors is compensated. Significant damage is also caused by crimes in the field of trade and public catering, the fuel and energy complex.
The process of damages more and more goes beyond the boundaries of criminal procedural problems, actively invades the areas regulated by civil, financial, labor and marriage - family laws.
Statistics take into account only property damage from crimes, however, the concept of harm caused by criminal acts is much broader and includes other types of harm.
Harm caused by crime.
The law distinguishes three types of harm that may be caused as a result of a crime:
Property damage is the costs that must be incurred.
to restore the violated right, as well as the loss or damage to property (real damage); unearned income that a person would receive under ordinary conditions of civil circulation if his right were not violated (lost profit) (Article 15 of the Civil Code of the Russian Federation).
Physical harm is injury or other harm to health, or
harm caused to the life of a citizen. When defining the concept of physical
harm it is important to take into account the provisions of Chapter 16 of the Criminal Code of the Russian Federation “Crimes against
life and health. ” The result of a crime may be:
causing death;
inflicting severe, moderate or slight harm to health;
the onset of the disease;
the threat of these consequences.
As a result of causing physical harm, the victim can either die at all, or undergo treatment for a long time, or completely or partially lose his ability to work. All of the above entails consequences of a property nature: burial costs; loss of livelihood in connection with the loss of the breadwinner; full or partial loss of earnings in connection with the loss of ability to work; costs of treatment and restoration of health. Thus, physical harm has a property expression in the form of expenses and lost profits. Compensation for physical harm is made according to the rules of Art. 1084 - 1094 of the Civil Code of the Russian Federation.
3) Non-pecuniary damage is physical or mental suffering (Art. 151
Civil Code of the Russian Federation). Undoubtedly, non-pecuniary damage is a consequence of any crime related to the encroachment on a person or tangible or intangible property belonging to her.
The Plenum of the Supreme Court of the Russian Federation in Decree No. 10 dated 12/20/94 “Certain Issues of Application of the Law on Compensation of Non-pecuniary Damage” gave the following interpretation: “Moral harm is understood as the moral or physical suffering caused by actions (inaction) that infringe on intangible goods belonging to a citizen from birth (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.), or violating his personal non-property rights (right to use ie your name, the right of authorship and other non-property rights in accordance with the law on the protection of results of intellectual activity) or violate the property rights of the citizen.
Non-pecuniary damage, in particular, may include moral distress due to the loss of loved ones, the inability to continue an active life, the loss of work, disclosure of family or medical secrets, dissemination of inappropriate information discrediting a citizen’s honor, dignity or business reputation, temporary limitation or deprivation of any or rights, physical pain associated with the injury or other health damage, or in connection with a disease suffered as a result of moral suffering and others. ”
The plenum also pointed out that the court has the right to consider a self-filed claim for compensation for moral or physical suffering inflicted on the plaintiff, since, by virtue of the current legislation, liability for non-pecuniary damage is not directly dependent on the existence of property damage and can be applied both along with property liability and by yourself.
In order for moral harm to be compensated, he must receive material expression. If a citizen has suffered non-pecuniary damage (physical or moral suffering) by acts violating his personal non-property rights, or encroaching on other intangible goods belonging to the citizen, as well as in other cases provided for by law, the court may impose on the offender the obligation to compensate for the specified damage (Art. 151 of the Civil Code of the Russian Federation).
Compensation for non-pecuniary damage is carried out regardless of the pecuniary damage to be compensated (Part 3 of Art. 1099). Compensation for non-pecuniary damage is carried out in cash. The amount of compensation for non-pecuniary damage is determined by the court depending on the nature of the physical and moral suffering inflicted on the victim, as well as the degree of guilt of the harm-doer. In determining the amount of compensation for harm, the requirements of reasonableness and justice must be taken into account. The nature of the physical and moral suffering is assessed by the court, taking into account the factual circumstances in which the moral harm was caused and the individual characteristics of the victim (Articles 151, 1101 of the Civil Code).
Thus, all three of the listed types of harm can be caused to an individual who has suffered from crimes, and the legal entity against which a crime has been committed can only suffer damage to property and business reputation.
In accordance with the current law, the victim is a person who has suffered moral, physical or property damage as a crime. In cases of crimes resulting in the death of the victim, the rights of the victim are granted to his close relatives. In accordance with Part 1 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, a legal entity is recognized as a victim in the event of a crime causing damage to his property and business reputation. A legal entity, as well as an individual who suffered harm from a crime, shall be recognized as civil plaintiffs (Article 44 of the Code of Criminal Procedure of the Russian Federation). The investigator shall issue a decision on the recognition of a person as a victim.
One of the main elements of the victim’s protection in the criminal process is compensation for the harm caused by the crime. When investigating a criminal case, the investigator and the person conducting the inquiry are obligated to take measures to ensure that already at this stage of the proceedings the damage caused to the physical or legal entity by the crime is compensated. The constitution guarantees victims access to justice and compensation for damage (art. 52).
During the interrogation of the victim, it should be noted exactly what harm was caused by the crime, and accurately reflect the size of material losses.
Compensation for harm caused by a crime.
Compensation for harm caused by a crime is possible only as a result of the establishment in the case of a person to be brought in as an accused. In a criminal case in which the person to be brought in as an accused has not been established, compensation for harm to the victim cannot be obtained.
Damage caused to the person or property of a citizen, as well as damage caused to the property of a legal entity, shall be compensated in full by the person who caused the harm (part 1 of article 1064 of the Civil Code of the Russian Federation).
If the person to be brought in as an accused is established, then the following methods of redress are possible:
1) Voluntary redress.The suspect (accused) may take the initiative and compensate the victim for the harm caused by the crime: return the stolen property, restore damaged property, provide new property in return for the destroyed one. Cash compensation is also possible.
The investigator must explain to the accused (suspect):
a) compensation for damage caused or other compensation for damage caused by a crime of small and medium gravity, if a person first committed a crime, creates grounds for exemption from criminal liability and termination of a criminal case (Article 75 of the Criminal Code, Article 25 of the Code of Criminal Procedure)
b) for other categories of crimes, voluntary compensation for property damage and non-pecuniary damage caused as a result of the crime, other actions aimed at redressing the harm caused to the victim are considered as mitigating punishment (Article 61 UKRF).
The desire of the accused to compensate for the harm caused must be reflected in the record of his interrogation. The victim’s receipt is attached to the case that the damage has been compensated to him and that he has no material claims against the accused. Also, material damage caused to a legal entity can be voluntarily compensated.
It should, however, be taken into account that the subject of the crime is material evidence in the case, in connection with which its return is undesirable before the end of the proceedings (Articles 74, 81–84 of the Code of Criminal Procedure of the Russian Federation). It is allowed to transfer the material evidence for safekeeping to the owner, but first all necessary actions must be performed:
draw up a decree on the production of the seizure of the subject;
make a seizure by drawing up a seizure protocol, where to reflect the voluntary issuance;
inspect the subject, compiling a protocol of inspection of the subject. In the process of inspection, it is necessary to photograph the subject and attach photographs to the case;
make a decision to attach the item to the case as material evidence indicating the location of its storage;
present the object for identification to the victims by drawing up an identification protocol;
return the item to the victim on receipt, while explaining to him the obligation to keep the item until the end of the proceedings.
The value of the item is established on the basis of its assessment by the victims. However, if the value declared by the victim clearly exceeds its real value, a merchandising expert examination should be appointed.
2) If voluntary harm is not compensated, the investigator must take other measures to compensate for the harm caused by the crime:
find stolen valuables;
to find the property of the accused, which is subject to seizure in order to compensate for the harm caused by the crime.
For this purpose, seizures and searches are carried out in the home of the accused and in other places where the stolen person may be. The values \u200b\u200bacquired by criminal means and the property of the accused subject to inventory and seizure are also subject to search. It is possible to conduct searches both with the accused himself and with other persons, if there is evidence that they harbor the above values \u200b\u200b(Articles 182, 183 of the Code of Criminal Procedure of the Russian Federation).
If objects of crime are discovered, they are seized, which is recorded in the protocol of the search (seizure) and attached to the criminal case as material evidence.
In order to ensure a civil lawsuit, the property of the accused or persons who are legally liable for their actions, or other persons who have property acquired by criminal means, is seized. The seizure and inventory of property is made by a court decision (115 Code of Criminal Procedure).
The investigator must take the necessary measures to safeguard the seized and seized property, not allowing damage or its destruction. Damage caused to the property owner by the preliminary investigation bodies shall be compensated in civil order from the settlement account of the internal affairs body in which the preliminary investigation was carried out.
The seized property is either confiscated and stored in accordance with the rules of storage of material evidence, or left for safekeeping by the owner of the property. The list of property not subject to seizure corresponds to the list of property not subject to confiscation (Appendix No. 1 to the Criminal Executive Code of the Russian Federation).
The investigator must determine whether the accused has funds in accounts with banks and other credit organizations, as well as obtain information about securities. Obtaining such information is possible at the request of the investigator with the written consent of the prosecutor.
A court ruling in accordance with part 1 of article 115 of the Code of Criminal Procedure of the Russian Federation is imposed on money deposits, which blocks the production of any money transactions on them (parts 2 and 7 of article 115 of the Code of Criminal Procedure of the Russian Federation).
Property that was stolen from the owner can be recovered from a bona fide purchaser (parts 1, 2 of Article 302 of the Civil Code of the Russian Federation). However, money, as well as bearer securities, cannot be claimed from a bona fide purchaser (part 3 of article 302 of the Civil Code of the Russian Federation, part 2 of article 116 of the Code of Criminal Procedure of the Russian Federation). This provision should be taken into account when seizing property not held by the accused, but by other persons.
It should be noted that if the accused did not voluntarily indemnify for the damage caused by the crime, the investigator has the right to return stolen items to the victim before the court if the victim has identified them as belonging to him by following the above procedural steps (see paragraph 1).
The property and funds that are seized cannot be transferred to the victim at the stage of the preliminary investigation as compensation for the harm caused by the crime. This is the exclusive prerogative of the court. The main role in organizing the process of providing compensation for damage is assigned to the heads of the preliminary investigation bodies carrying out control functions. Correction of the plan of investigation, the exercise of powers granted to the head of Article 39 of the Code of Criminal Procedure of the Russian Federation, as well as the timely assistance of zonal and methodological units contribute to a full and objective investigation of the crime. Unfortunately, the negative facts of premature decision-making, the lack of control by the leaders are not isolated, especially when the person who committed the crime is not identified in the criminal case.
In January 2002, a criminal case concerning the abduction of his car was filed with the Investigative Committee with a complaint about an unsatisfactory investigation in the CO at the Basmanny Department of Internal Affairs of the Central Administrative District (CAO) of Moscow on the fact of the theft of his car, Moscow resident Lapenko.
In the course of the study of the criminal case, it was established that previously the data on the criminal case were not executed by the Civil State Directorate, the investigation was conducted at a low professional level, and the preliminary investigation was unreasonable, without carrying out the necessary investigative actions and operational search measures, was suspended under paragraph 3 of Art. 195 Code of Criminal Procedure of the RSFSR. The victim (according to the signs of a stolen car) was questioned formally.
In a statement, the victim indicated that a Volkswagen-Bora car stolen from him in August 2001 had a number of distinguishing features (equipped with a diesel engine) and was imported into Russia in a limited batch of up to 500 units. In connection with this, the Investigative Committee prepared a request to the traffic police department of the GUVD of Moscow, where, within an hour, a corresponding selection was made according to engine numbers. It was found that out of 35 cars with a diesel engine, only one car (registered at Martynov) has the same color as the car of the victim. When checking this car, a discrepancy of only two digits was found in the engine identification numbers. Alarming was the fact that the car was registered with the traffic police in early September, i.e. after the theft of the car from Lapenko.
According to a sample of the traffic police, the head of the Investigative Committee was given instructions in accordance with Art. 127-1 of the Code of Criminal Procedure of the RSFSR on the need for interrogation of the victim and verification of gr. Martynova S.A. for involvement in a perfect theft.
Subsequently, the instructions were followed, the version of the whereabouts of the stolen car was confirmed, and it was returned to the owner after a traological examination. As a result, another channel for legalizing stolen vehicles was blocked.
Thus, this example demonstrates that back in September 2001 the investigator had a real opportunity to compensate the victim, but this was not done as a result of negligence and lack of proper control by the head.
3) If the measures taken during the investigation of the criminal case failed to compensate for the material damage caused by the crime, the investigator or the person conducting the inquiry must raise a questionon bringing a civil action in the case.A lawsuit may be brought against the accused or against persons, including legal persons, who bear material liability for his actions.
The investigator when recognizing the victim as a civil plaintiff in accordance with Part 1 of Art. 44 of the Code of Criminal Procedure of the Russian Federation, it explains to the victim or representative of a legal entity that has suffered damage from the crime that a civil lawsuit in the criminal process is not paid by the state fee and is considered by the court together with the criminal case. A lawsuit cannot be filed at the trial stage, especially since filing a lawsuit at the preliminary investigation stage allows to realize the rights of a civil plaintiff to the greatest degree. The position of the victim and the representative of the legal entity regarding the filing of a civil claim should be reflected in detail in the protocol of interrogation. The statement of claim is made in accordance with the requirements of Art. 131 Code of Civil Procedure of the Russian Federation.
The statement of claim shall indicate:
1) the name of the court to which the application is submitted;
2) the name of the plaintiff, his place of residence or, if the plaintiff is an organization, its location, as well as the name of the representative and his address, if the application is submitted by the representative;
3) the name of the defendant, his place of residence or, if the defendant is an organization, its location;
4) what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his claims;
5) the circumstances on which the plaintiff bases his claims and evidence confirming these circumstances;
6) the price of the claim, if it is subject to assessment, as well as the calculation of exacted or disputed monetary amounts;
7) a list of documents attached to the application.
The investigator (inquiry body) shall issue a decision on recognition as a civil plaintiff. The rights of the civil plaintiff must be clarified to the applicant. Thus, a victim who has suffered property damage as a crime is also recognized as a civil plaintiff in the case.
The civil plaintiff at the stage of preliminary investigation has the right: to present evidence; make petitions; participate in litigation; demand the adoption of measures to ensure the declared claim; support a civil action; to get acquainted with the case materials from the moment the preliminary investigation ends; challenge file complaints about the actions of the investigator and the person conducting the inquiry.
After a civil lawsuit is filed in a criminal case, the issue of a civil defendant must be resolved. In most cases (according to our data, 97% of criminal cases), the defendant is the defendant in the case. The decision to recognize him as a civil defendant, in accordance with the criminal procedure law, is not issued.
If the defendant in the case is another person, the investigator must issue a decision recognizing that person as a civil defendant. The specified person must be pre-questioned as a witness, and it is necessary to establish the civil liability of the person for the harm caused by his employee in the performance of labor (official, official) duties (Article 1068 of the Civil Code of the Russian Federation). Parents can be recognized as civil defendants in the case of a crime committed by a minor, if the latter has no income or other property sufficient to compensate for the harm caused by the crime (Article 1074 of the Civil Code of the Russian Federation).
The civil defendant at the stage of the preliminary investigation has the right: to object to the lawsuit; give explanations; provide evidence; make petitions; to get acquainted with the case materials in the part related to the civil lawsuit from the moment the preliminary investigation is completed; challenge file complaints about the actions of the investigator and the inquirer (Article 54 of the Code of Criminal Procedure of the Russian Federation).
Taking measures to redress damage caused by a crime is one of the important tasks of the preliminary investigation stage. Failure to comply with this requirement should be considered as the basis for the prosecutor to return the case for an additional investigation (paragraph 15 of part 2 of article 37, paragraph 3 of part 1 of article 221 of the Code of Criminal Procedure), since the nature and size of the criminal case are subject to proof. harm caused by a crime (Clause 4, Part 1, Article 73 of the Code of Criminal Procedure of the Russian Federation).
Investigative Committee at the Ministry of Internal Affairs of Russia
All-Russian Research Institute of the Ministry of Internal Affairs of Russia
The resolution of the Plenum of the Supreme Court of the USSR of March 23, 1979 N 1
"On the practice of application by the courts of legislation on compensation for material damage caused by a crime"
With changes and additions from:
Compensation for material damage caused by a crime is important in the fight against theft, mismanagement, abuse of power and other crimes; promotes the education of citizens in the spirit of respect for the preservation of socialist property; provides protection of property rights and interests of state enterprises, institutions, organizations, collective farms, cooperative and other public organizations, as well as citizens.
Having discussed the judicial practice of redressing material damage caused by a crime, the Plenum of the Supreme Court of the USSR notes that the courts basically correctly apply the legislation on this issue. However, when considering cases of crimes that caused material damage, there are still significant shortcomings.
Some courts do not take measures to ensure a civil lawsuit, do not always respond to facts of untimely seizure of property by investigating authorities; do not fully examine evidence of the nature and extent of damage; without sufficient reason they leave civil claims without consideration; Do not find out if the property was acquired with funds obtained by criminal means.
Some courts do not use the right granted to them by law on their own initiative to decide on compensation for material damage caused by a crime if a civil lawsuit has not been brought. Sentences do not always motivate decisions regarding compensation for pecuniary damage; it does not indicate what action or inaction of the convicted person caused the damage, what evidence confirms it, what is the amount of damage and what it is made of.
When considering a claim arising from a criminal case in civil proceedings, the courts do not always take into account the materials of the criminal case, if necessary, they do not demand evidence on their own initiative, and they do not hold all persons liable for the damage caused.
The courts of cassation and supervisory instance do not always pay due attention to verifying the legality and validity of the decision of the court of first instance regarding compensation for material damage, sometimes they do not take measures to establish the mistakes made.
The Plenum of the Supreme Court of the USSR decides:
1. To draw the attention of the courts to the need for accurate and consistent implementation of the legislation on compensation for material damage caused by a crime.
In each case of a crime that caused material damage, the court, when deciding the verdict, must resolve the civil lawsuit, and if no lawsuit is filed, discuss the issue of making a decision on damages on its own initiative. In exceptional cases, in accordance with the legislation of the Union republics, the court may recognize the civil plaintiff’s right to satisfy the claim with the transfer of the issue of its size for consideration in civil proceedings, when it is impossible to make a detailed calculation of the amount of the claim without postponing the trial and provided that the amount of damage does not affect the qualification of the deed, the appointment of the defendant a measure of punishment and the resolution of other issues arising from the judgment.
In accordance with Part 6 of Art. 24 of the Fundamentals of civil proceedings of the Union of Soviet Socialist Republics and Union Republics, the court is not entitled to accept the civil plaintiff’s refusal of the claim if the damage caused to the state enterprise, institution, organization, collective farm, cooperative or other public organization is not compensated.
2. By virtue of Article 25 of the Fundamentals of criminal proceedings of the Union of Soviet Socialist Republics and Union Republics, a civil plaintiff in a criminal case is a citizen, as well as a state enterprise, institution, organization, collective farm, cooperative and other public organization, which are legal entities that have suffered material damage from a crime and demanding reimbursement.
In case of theft, damage or destruction of material assets that were legally owned by the owner (carrier, tenant, custodian, etc.), both the owner and the owner of these values \u200b\u200bare entitled to file a civil lawsuit.
In cases where the material damage from the crime arose as a result of the death of the victim, a civil claim for damages may be brought by persons who, in accordance with Articles 91 and 92 of the Fundamentals of Civil Law of the USSR and Union Republics, have the right to compensation for damage in connection with the loss of the breadwinner , as well as persons who incurred burial expenses.
The person conducting the inquiry, the investigator, the prosecutor, the judge shall issue a decision on recognition as a civil plaintiff, and the court shall issue a decision.
3. In cases of causing material damage by criminal acts of minors, parents, guardians, trustees or other persons, as well as institutions, enterprises and organizations involved in accordance with Art. 55 of the Code of Criminal Procedure of the RSFSR and the corresponding articles of the Code of Criminal Procedure of other Union republics as civil defendants, should be liable if the conditions provided for by law are available.
4. When bringing the accused to court, it is necessary to find out whether a civil lawsuit has been brought, whether measures have been taken to ensure compensation for material damage caused by the crime. If the person conducting the inquiry or the investigator did not take measures to ensure damages, the judge or court should take such measures on their own initiative or oblige the relevant authorities to do so, which is the result of the decision (determination).
In cases of crimes for which a civil lawsuit was not filed during the preliminary investigation, the judge or court must explain to the enterprise, institution, organization, collective farm, cooperative or public organization or citizen who suffered material damage their right to bring a civil lawsuit against the accused or persons who are legally liable for it.
If a civil suit has not been brought, the court has the right, on its own initiative, to decide on the responsibility of the convicted person to compensate for the damage caused by the crime.
5. In cases where the damage was caused by the joint actions of the defendant and another person in respect of whom the criminal case was terminated on the grounds provided for in paragraphs 2-10 of Art. 5, Art. 6-10 of the Code of Criminal Procedure of the RSFSR and the relevant articles of the Code of Criminal Procedure of other union republics, the court assigns the defendant the obligation to indemnify the pecuniary damage in full and explains to the civil plaintiff the right to file a civil claim against the persons whose case has been discontinued, jointly and severally convicted.
If material damage was caused by the defendant in conjunction with another person in respect of whom the case was set aside in a separate legal proceeding, the court shall assign the responsibility for damages in full to the defendant. If a subsequent conviction is passed against a person whose case has been set aside in a separate proceeding, the court has the right to assign him not the obligation to compensate the damage jointly and severally with the previously convicted.
Change Information:
By a resolution of the Plenum of the Supreme Court of the USSR of October 8, 1991 No. 10, paragraph 6 of this resolution was amended
See the text of the paragraph in the previous edition.
6. When a verdict of not guilty for the failure to establish the crime or the unproven participation of the defendant in the commission of the crime, as well as in the case of the acquittal of the defendant due to the absence of corpus delicti in his actions as committed in the state of necessary defense, the court refuses to satisfy the civil claim.
When acquitting the defendant for lack of corpus delicti, as well as upon termination of the case at the hearing on the grounds provided for in paragraphs. 3-10 Art. 5, Art. 6-10 of the Code of Criminal Procedure of the RSFSR and in the relevant articles of the Code of Criminal Procedure of other union republics, the court leaves the claim without consideration. The same consequences with respect to a civil action occur when a criminal case is terminated on the indicated grounds when it is considered in cassation or supervisory review.
7. Based on Art. 314 of the Code of Criminal Procedure of the RSFSR and the relevant articles of the Code of Criminal Procedure of other union republics, the court must motivate in the verdict the conclusion on compensation for material damage and indicate by what action or inaction the damage was caused, by what evidence this is confirmed, and also give appropriate calculations of the amount of damage, indicate the law on the basis of which civil action.
Having established that property jointly owned by spouses or members of the collective farm yard was acquired with funds obtained by criminal means (Article 57 of the Fundamentals of Civil Procedure of the Union of Soviet Socialist Republics and Union Republics), the court, citing relevant evidence, must indicate this in the verdict, so that the recovery of damages could be applied to such property.
8. The courts should bear in mind that the liability of employees for damage caused by a crime to an enterprise, institution, organization with which they had an employment relationship is determined in accordance with the Regulation on the liability of workers and employees for damage caused to an enterprise, institution, organizations approved by Decree of the Presidium of the Supreme Soviet of the USSR of July 13, 1976
When compensating for the damage caused to the collective farm by a crime committed by the collective farmer, the court shall be guided by the norms of the collective farm charter that determine the material liability of the collective farmers, as well as the laws of the USSR and the Union republics relating to collective farms.
In cases of damage caused by a crime by a person who is not a member of the enterprise, institution, organization, collective farm in labor relations or who is not a member of the collective farm, the court shall be governed by the relevant civil law rules governing obligations arising from the damage.
9. The amount of damage caused by theft, shortage, intentional destruction, intentional damage to state and public property is determined at state retail prices, and in cases where retail prices for tangible assets are lower than wholesale prices, at wholesale prices. In the absence of retail prices for this type of material assets, the damage shall be determined at prices calculated in accordance with the "Instructions on the procedure for calculating prices for theft, shortage, intentional destruction or intentional damage to material values \u200b\u200bin the absence of retail prices", approved by the USSR State Committee for prices December 29, 1981 N 1372.
At public catering enterprises (in production and in buffets) and commission trading, the amount of damage caused by theft or shortage of products and goods is determined at the prices established for the sale (sale) of these products and goods.
If necessary, the court determines the amount of damage caused by theft, shortage, damage to property or other valuables on the basis of an expert opinion.
If the property is sold at a price in excess of the established prices, the difference is recovered from the guilty party to state revenue as an unjustified acquisition (as amended by the resolution of the Plenum N 7 of April 26, 1984).
10. Courts should bear in mind that in cases provided for by law, a special procedure for determining the amount of damage is applied, including in multiple terms, when the actual amount of damage exceeds its nominal size.
11. To draw the attention of the courts, which, in accordance with
legislation on the liability of workers and employees, collective farmers, as well as civil law (Article 88 of the Fundamentals of Civil Law of the Union of Soviet Socialist Republics and Union Republics, Article 457 of the Civil Code of the RSFSR and the corresponding Articles of the Civil Code of other Union Republics) material damage caused by a crime shall be compensated in full size.
Taking into account the specific circumstances of the case, the degree of guilt and the material situation of the convicted court, the court may reduce the amount of damage to be compensated by indicating the reasons for the decision in the sentence. Reducing the amount of damages to be compensated is not allowed if it is caused by a crime committed for personal gain.
12. Joint liability for damages shall be borne by all persons who caused damage by joint criminal acts. In this case, vessels should keep in mind:
when a crime is committed by several persons, they shall be jointly and severally liable for the damage caused by episodes of the crime in which their joint participation is established;
joint liability is not imposed on persons who have been convicted, albeit in one case, but for independent crimes not related to the general intention, as well as persons when some of them have been convicted of mercenary crimes, for example for embezzlement, and others for negligence , even if the actions of the latter objectively to some extent contributed to the first to commit a crime;
in the event of damage to an enterprise, institution, organization through the fault of several workers or an employee and other persons who were not in an employment relationship with this enterprise, institution, organization, the court is entitled to hold the defendants jointly and severally liable if it is established that the damage was caused by their joint intentional actions;
citizens or organizations that are legally liable for the actions of the convicted person shall compensate the damage caused by the crime in shares, not jointly and severally.
Clarify that the court has the right to assign to the defendants, by joint actions of which the damage was caused, shared, not joint and several liability, if such a recovery procedure is in the interests of the plaintiff and will provide redress.
When deciding on compensation for damage caused by several persons, the court in the operative part of the sentence must indicate: which of the defendants is jointly and severally liable; in what amount and in favor of whom the amount and damages are recoverable.
13. When a sentence is canceled with the transfer of the case for a new trial in respect of a person associated with other convicts with joint liability, the entire amount of damages shall be borne by the convicts, in respect of whom the sentence is upheld.
If during a new trial the conviction is passed, then the defendant may be liable for compensation for material damage in solidarity with persons previously convicted of this crime.
14. When considering the case in cassation or supervisory review, the court has the right to amend the verdict regarding compensation for material damage, for example, to reduce or increase the amount of the penalty, if the case does not require the collection or additional verification of evidence, the circumstances of the case in terms of the damage were established by the court first instance fully and correctly, but a mistake was made in the application of substantive law.
In cases where a change in the amount of pecuniary damage may affect the qualification of the crime or the determination of the amount of the prosecution in a direction that worsens the situation of the convicted person, the court verdict must be canceled with the referral of the case for re-examination if the prosecutor has filed a protest or complained to the victims.
15. When considering a claim arising from a criminal case in civil proceedings, the court shall determine the amounts to be recovered in respect of damage, taking into account the evidence available in the criminal case, as well as additionally submitted by the parties and collected at the initiative of the court.
If, as a result of the amount of damage established by the civil procedure, the court finds that it is necessary to review the verdict, it shall decide on the claim on the basis of all the evidence examined by it and should raise the question of verifying the criminal case in the manner of supervision.
16. The verdict in the part of the civil lawsuit may be enforced within the time limits established in Art. 345 Code of Civil Procedure of the RSFSR and related articles of the Code of Civil Procedure of other Union Republics.
The missed period can be restored by the court that passed the sentence, or by the court at the place of execution of the decision to recover damages (Article 347 of the Code of Civil Procedure of the RSFSR and the corresponding articles of the Code of Civil Procedure of other Union Republics).
17. In cases where the convict has the obligation to compensate for the material damage caused and confiscation of property has been applied to him, the sentence should be guided by art. 426 Code of Civil Procedure of the RSFSR and the corresponding articles of the Code of Civil Procedure of other Union Republics, according to which compensation for damage due to the property of the debtor is subject to priority satisfaction.
18. When establishing the waste, alienation, or concealment of property that was seized, the court must decide whether to bring to liability the person to whom this property was entrusted (Article 185 of the Criminal Code of the RSFSR and the corresponding articles of the Criminal Code of other union republics).
19. By virtue of Article 21 of the Code of Criminal Procedure of the RSFSR and the relevant articles of the Code of Criminal Procedure of other union republics, courts are obliged to identify the causes and conditions that contributed to the commission of crimes that caused damage to the national economy, as well as property of citizens and, if there are grounds for this, to pay attention to the heads of state enterprises, institutions, organizations, collective farms, cooperative and other public organizations on the need to take appropriate measures to eliminate such causes and conditions. The courts should respond to each case of violation of the requirements of the law, aimed at ensuring the compensation of tangible property allowed in the course of the inquiry and preliminary investigation.
20. The judicial collegiums of the Supreme Court of the USSR, the Supreme Courts of the Union and Autonomous Republics, regional, regional, city courts, courts of autonomous regions and districts, military tribunals of the armed forces, districts, fleets and groups of troops shall strengthen supervision of the activities of courts on the application of legislation on compensation material damage caused by a crime, systematically summarize judicial practice on this issue and take measures to eliminate deficiencies.
21. In connection with the publication of this resolution, the following decisions of the Plenum of the Supreme Court of the USSR shall be invalidated:
dated May 28, 1954 No. 6 "On judicial practice in recovering material damage caused by a crime", as amended by the resolution of the Plenum of the Supreme Court of the USSR dated April 10, 1957 No. 5;
dated March 25, 1964 N 1 "On the practice of executing court sentences and decisions regarding compensation for damage caused by crimes to state, cooperative and public organizations" as amended by the resolution of the Plenum of December 20, 1968 N 11;
of July 1, 1966 N 5 "On the implementation by the courts of the decision of the Plenum of the Supreme Court of the USSR of March 25, 1964" On the practice of the execution of court sentences and decisions regarding compensation for damage caused by crimes to state, cooperative and public organizations. "
