For a long time there was a debate about what to do to citizens whose cases are considered in courts for an excessively long time. The discussion concerned both punishment of those responsible and compensation for violation of a reasonable time spent on a single case.
What documents are regulated
Legislation consists of several acts:
- Convention on the Protection of Human Rights of 1950 as part of Russian law.
- The Law of the Russian Federation dated 10.04.2010 “On Compensation for Violation of the Right to Consider the Case within a Reasonable Time” (hereinafter FZ-68).
- CAS RF, affecting compensation for the delay in the consideration of cases in courts of general jurisdiction - administrative, civil, criminal cases and CAO cases.
- APK RF, concerning compensation issues for the delay in consideration of the arbitration case and / or the execution of a decision on it.
- Resolution of the Plenum of the RF Armed Forces dated March 29, 2016 with explanations on the application of the legislation on the right to compensation and the concept of “reasonable time”.
Previously, clarifications adopted by the general decision of the Supreme Arbitration Court and the Armed Forces of the Russian Federation in 2010
Reasonable term
In the procedural codes, a clearly defined time is allocated for all procedures. Investigators and judges are not entitled to go beyond its scope, if there are no legal grounds for that. A reasonable time period implies the absence of delays that negate the effectiveness of the judicial procedure or the meaning of going to court. This includes the speed of the proceedings and the effectiveness of the implementation of the court decision.
But practice shows that meeting deadlines is often not possible for reasons beyond the control of the judge or other officials. The essence of the problem is to find a balance between the actions of the authorities and the actions of the parties, which could also lead to a delay.
The essence of compensation for violation of a reasonable time
The right to a court is included in the category of intangible goods, and all persons are entitled to receive compensation in case of its violation. It has nothing to do with material losses due to delays in the case and is an analogue of moral damages. Therefore, subsequently it is possible to recover only material damage from the actions of individual officials or authorities.
Criminal Case Claim
A reasonable time limit is considered violated if:
- suspects or accused are present in the case;
- the investigation was suspended, because there is no evidence to recognize a certain person as accused;
- the property of the person or organization responsible for the actions of the suspect or accused, who themselves are not suspected or accused, has been seized;
- the case was terminated due to the expiration of the statute of limitations, which became possible due to unlawful refusals to initiate proceedings, subsequently canceled, and / or the position of the investigating authorities, the prosecutor's office has repeatedly changed.
The last paragraph is valid if the victim himself did not postpone the application.
When is compensation not paid? A reasonable time limit does not apply to:
- consideration of complaints in accordance with Art. 125 Code of Criminal Procedure;
- consideration of applications on parole issues.
Right of claim in other cases
There are no restrictions when the interests of the budget are affected, and as the subject of responsibility appear:
- RF;
- government departments;
- municipal authorities (councils, thoughts, administrations created by elected bodies);
- regional state authorities (regional and republican governments, for example);
- state and municipal enterprises, organizations independently responsible for their obligations;
- and also if part of the responsibility in the case lies with any of the above entities.
Law FZ-68 does not apply to the process of collecting funds from citizens or from private organizations, provided that the person who receives or transfers budget funds does not participate in the case. For example, compensation is not paid for failure to fulfill the duties of the FSSP to recover alimony, but the right remains to claim damages. Thus, a reasonable period still applies to execution, but in a slightly different form.
Who is entitled to ask for compensation
FZ-68 indicates:
- parties to the case;
- third parties;
- participants in criminal proceedings whose rights, including property rights, are affected.
The right to possess:
- Russian citizens;
- Foreigners;
- Russian organizations;
- foreign organizations;
- other persons directly indicated by law.
Thus, compensation, reasonable terms apply to everyone without exception.
The prosecutor has the right to represent the interests of an elderly person or other socially unprotected person who does not have money to pay for legal services.
The right does not pass to the heirs or is not transferred for money or in any other way; it belongs exclusively to one person or organization. Death or liquidation - the basis for the court to close the case. Inheritance or succession is not permitted.
Which courts are referred to?
The first instance courts in the category of cases under discussion are the following courts:
- urban
- regional;
- regional;
- district military courts;
- arbitration courts of appeal.
The first three instances deal with applications in civil and criminal cases, the fourth instance - with applications in civil and criminal cases examined by military courts. The latter category of courts, respectively, deals with applications for arbitration proceedings.
The Supreme Court is the supervisory authority for all other bodies for resolving disputes in criminal matters and civil legal relations. According to a previous law, applications for compensation were exclusively dealt with by the Armed Forces.
The application is submitted to the court in which the materials of the relevant case are located, then they are sent to the one that will already deal with the application. So, for example, the application is handed in or sent by mail to the district court, then employees with all the materials will send it to the regional or regional or city court of the city of federal significance.
Important nuance
A reasonable period of the right of citizens directly affects, but it will be possible to prove the violation only by observing a number of formalities. The procedural codes prescribe provisions for a reasonable time frame for conducting investigations and court cases.
But only at the stage when the case is already in court, a complaint is submitted to the chairman, who is considering it and has the right to oblige the judge to speed up the process and take specific actions and measures. Law does not mean a duty, however, regardless of the results, the fact of treatment in the future will be a good help in proving one's innocence.
Despite the absence of a direct indication in the law, violation of the terms by the investigator or the interrogating officer is appealed to the head of the investigating or inquiry body, and this fact is necessarily taken into account.
Criteria for judges to follow
Judges must pay attention to certain criteria:
- confusion of facts, ambiguity of legislation;
- actions of the participants in the case (appearing in court or to the investigator, timely submission of evidence, other actions);
- in a criminal case, the quality of the actions of a judge, investigator, inquiry officer, head of the body of inquiry or investigation, the prosecutor to expedite the investigation or trial shall be taken into account;
- the total duration of the process and / or enforcement proceedings.
It is forbidden to take into account circumstances related to organizational matters (lack of staffing of the court or investigative bodies, quality of the performance of duties by employees).
Almost all cases go through all available instances, and the fulfillment of the deadlines by the appeal or cassation instance, if they are not followed by the district court, still leads to a violation of the right to a trial within a reasonable time.
The main violators (first instance) among the investigators are police officers. They objectively get the most things.
In a criminal case, a reasonable time is counted from the moment a person, in the status of a suspect, is brought to justice and until the adoption of the last act of the court or the investigating authority if the case has not gone to court. In other cases, from the day the court accepts the statement of claim in the office until the adoption of the last court decision in the case.
After what time to apply to court
Compensation for violation of reasonable time limits for legal proceedings is limited to the time periods that must pass before an application is sent to court:
- Duration of appeal - at least 6 months after the final act was issued, provided that the trial took at least 3 years and there was a request to expedite the process;
- In the case of a criminal case, the term of the proceedings is at least 4 years, if the accused appears in the case, and there has been an appeal for expediting the investigation or trial.
- In the absence of the accused, at least 4 years must pass from the moment of filing the application to the suspension of the investigation, during which the officials have not taken sufficient measures.
- Unlawful seizure of property of a third party under criminal law should last at least 4 years.
Exceeding the 4-year period gives the right to compensation, provided that no final decision has been taken at the investigation level or by the court.
How is a reasonable time taken into account when enforcing a judicial act? The period allotted for execution should expire - an average of 3 years. An application to the court shall be submitted no earlier than six months after the day of expiration of the term.
Application form
The said statement must necessarily include the following information:
- name of court;
- details of the respondent authority;
- Name or name of the plaintiff-organization;
- information on judicial and other acts adopted by authorities (decisions of the investigator, prosecutor, bailiff);
- the length of time the case passes through the investigation, inquiry, courts;
- known facts that affected the violation of the terms of the proceedings;
- substantiation of the amount of compensation - how significant is the right to legal proceedings within a reasonable time in a particular situation;
- description of the attached documents, their copies according to the number of participants;
- substantiation by the prosecutor of the opinion about the social vulnerability of the person whom he represents (disabled people, the elderly, minors);
- evidence of sending the defendant copies of documents that he may not have;
- a copy of the diploma of a lawyer - representative, if he is not a lawyer or prosecutor (the lawsuit will not be accepted without him);
- Name of applicant, his signature, date.
In addition, the bank account information is attached, to which money will be transferred in case of winning a case, and a receipt on payment of state duty.
Trial
The right to a trial within a reasonable time is protected according to the same scheme as others. The judge, having accepted the claim, having determined the day of the first meeting, sends the respondent materials and obliges to provide an explanation. Ignoring the request will result in a fine (for an official at least 10 thousand rubles, for an organization - at least 30 thousand rubles). Then the court goes through the following steps:
- A meeting is announced, the number of the case.
- The judge appears to represent the clerk.
- It turns out who has appeared, who has not.
- The applicant summarizes the circumstances of the claim.
- Evidence is being studied.
- The judge, if necessary, seeks materials at the request of the participants in the case or on his own initiative.
The state body is obliged to prove the correctness of its actions, the plaintiff remains the obligation to prove the existence of facts to which he refers. From the day the application is submitted to the court, 2 months are allotted for a decision on the case.
Appeal process and deadlines
The writing of the appeal is given a month from the date of the decision. She is sent either to the court that made the decision on compensation, or to the one where the appeal proceedings will be conducted.
The Armed Forces of the Russian Federation act as the first instance if the case in connection with which the application is submitted has been considered in the regional or city or regional or the Armed Forces of the Republic. In other cases, the case goes through two instances (first and appeal) in the corresponding regional, regional, Armed Forces of the Republic, cassation and supervision are held in the Armed Forces of the Russian Federation.
The case before the Supreme Court of the Russian Federation is reviewed by the judge in the first instance, then the right is given to file a complaint with the board of appeal.
How to write an appeal, cassation or supervisory appeal
The complaint must include the following information:
- name of court;
- Name of the author of the complaint, representative;
- arguments, references to evidence;
- violations that occurred during the adoption of previous decisions (ignoring facts or accepting unproven facts, their incorrect assessment, rejection of evidence, incorrect interpretation of the law);
- request to cancel the decision and take a new one;
- description of attached documents;
- copies of documents by the number of participants;
- the applicant or representative shall sign and date of dispatch of the complaint.
The term for sending a cassation appeal is 6 months, for sending a supervisory appeal - 3 months from the date of decision-making. The complainant, who did not meet the allotted time, will be returned the papers, without taking decisions on them in essence, if there is no respectfulness for missing the deadline. Most often, this is a disease or delay in the actions of the previous instance in issuing copies of decisions.