In the Code of Criminal Procedure of the Russian Federation, article 42 is dedicated to recognition as a victim in a criminal case. Next, we will analyze its features in detail.
General information
In Art. 42 of the Code of Criminal Procedure established grounds for recognition as a victim in a criminal case. Such an entity is considered an individual who has suffered moral, physical damage or damage to his property. A legal entity may also be a victim if unlawful actions inflicted damage to its property or reputation.
In accordance with Part 8 of Art. 42 of the Code of Criminal Procedure, an application for recognition as a victim in a criminal case, for example, for rape, which resulted in the death of the victim, can be written by one of her relatives. It must be said that such a rule was absent in the previous Code. However, the Resolution of the Plenum of the Armed Forces of 1985 clarified this issue. The document states that if several subjects from the circle of close relatives insist on recognition of the victim in a criminal case, their requests can be granted.
Today, however, the legislator is very categorical in this matter. If we continue to use, as an example, rape with the subsequent death of the victim, then the current norms enshrined the possibility of recognizing as a victim in a criminal case only one of the relatives of the deceased. According to many lawyers, such a restriction does not contribute to the effective and full realization of the rights of family members of the deceased. In essence, this is a matter of not providing access to justice for a number of citizens whose interests may well be affected by a court decision. These persons cannot receive procedural opportunities to ensure the protection of their rights. In particular, they cannot challenge the court decision on the merits. And, therefore, unable to restore the interests infringed by this act.
Grounds for recognition as a victim in a criminal case
They are divided into 2 groups: factual and legal. The former are also called material. These grounds are related to the harm caused by the crime. The second group - legal or procedural grounds - these are the decisions of the investigating authorities and the court in a criminal case.
Recognition as a victim means that a person is allowed to participate in legal proceedings. Its status is based on the implementation of a specific set of rights and obligations enshrined in procedural legislation.
The key purpose of the application for victimization in a criminal case is to restore civil rights violated by a crime, or to compensate for damage caused by unlawful actions, or both. The subject can achieve this by having the appropriate procedural powers. Thus, in the framework of criminal proceedings, a person should be provided with such a set of rights that would allow him to fight for the achievement of his goals.
Procedural features
Many mistakenly believe that the scope of the victim's rights varies depending on the category of crime. For example, after a victim has been recognized as a victim in a criminal case of rape that entailed death, one of the relatives receives more procedural opportunities than, say, a theft with the cause of death. This is far from the case.
Legislation enshrines a fairly wide range of procedural opportunities for victims. And their volume does not depend on the severity of the crime, nor on other circumstances. The norms of the Code of Criminal Procedure 246, 318, 42, 328, 314, etc., enshrined general and special procedural duties and rights. So, in Part 2 of Art. 42 it is said that the victim has the right to participate in the hearing of the first instance. Article 314 of the Code specifies the role of the victim, who may object to the special court proceedings. 318 norm secures the right of the victim to initiate a criminal case, referred to the group of private prosecution, by filing an appropriate application. In such cases, the victim acts as a private prosecutor.
Adversarial principle
It is recognized as one of the key provisions determining the status of the victim. In accordance with this principle, the parties to the defense and the prosecution have equal opportunities to ensure their interests. This equality implies the same scope of authority.
However, it is incorrect to raise it to the number of absolute categories. It cannot be considered that the content and scope of the rights of participants fully coincide. The objectives of the participation of the parties in the process vary. This is reflected in the totality of legal opportunities provided to them. It follows that the procedural status of, for example, the accused cannot fully match the status of the victim. These differences are objective and understandable.
So, for example, the subject in respect of whom the case is brought undergoes restrictive measures on the part of officials and government agencies to a greater extent. Therefore, the accused must be provided with special means of protecting interests and rights from unjustified application of legal instruments to him. The law establishes the opportunity to invite or demand the appointment of a lawyer from the moment of detention, to challenge the decision to apply preventive measures against him. The legislation allows a person suspected of committing an unlawful act to refuse to testify, recognizing this as one of the means of protecting his interests and rights.
Between some interested participants in legal proceedings, a difference in the complex of procedural possibilities is allowed. However, it should be objective in practice. However, it is not allowed to artificially create differences in the procedural status of subjects and restrict their rights. For example, from paragraph 9 of part 2 of article 42 it follows that upon recognition as a victim in a criminal case, a person gains the right to familiarize himself with the protocols of investigative actions carried out with his participation. In paragraph 8, part 4 of article 46 the same right is reserved for the victim. However, it is complemented by the ability to submit comments on the minutes.
Paragraph 10 of Part 2 of Art. 42 and clause 11 h. 4 Article 47 Code of Criminal Procedure. The recognition as a victim in a criminal case, according to the first norm, implies the possibility of a person to get acquainted with the decision on the appointment of a forensic examination, and with the conclusion of specialists only in cases where the procedure was carried out directly in relation to him. Article 47 of the Code enshrines the same right of the accused. But without any restrictions. According to a number of lawyers, such a difference between the scope of the procedural rights of the victim has not been objectively substantiated and should be eliminated. In the criminal process, experts say, this will contribute to more effective protection of the interests and rights of participants in office work. However, innovations have not yet been provided.
Procedural nuances of the Code of Criminal Procedure
Recognition as a victim in a criminal case involves clarification by officials of his rights and obligations. The effectiveness of their implementation will depend on this. An official must not only conscientiously fulfill his duties, but also do it in a timely manner.
The legislation in force today does not indicate the moment at which the victim should be explained his procedural possibilities. Article 42 enshrines his duties and rights. The procedure, terms of recognition of victims in a criminal case are not specified at all. In this regard, there is a problem with ensuring the protection of his interests.
Stages
Victim recognition includes several stages:
- Call a citizen.
- Identity card of the subject.
- Submission of a decision on recognition as a victim in a criminal case for review. This fact is certified by the signature of a citizen or legal representative.
- Clarification of procedural duties and rights.
- Conducting investigative measures with the participation of the victim, if necessary (for example, interrogation).
The specifics of participation in the pre-trial stage
The very first right of a person who is a victim of a crime is the opportunity to take part in legal proceedings. It is provided by a variety of procedural means. The difference in the exercise of this right is related to the specifics of the stage at which the production is located.
At the pre-trial stage, the victim has the opportunity to participate from the very beginning. The subject, who will subsequently be recognized as a victim, can play the role of the applicant and enjoy the appropriate legal capabilities. In particular, a person has the right to submit on his own behalf an application for the commission of a crime and receive documentary evidence of its adoption. These procedural possibilities are ensured by the duties of officials enshrined in the Code of Criminal Procedure in part 1 of article 144. The applicant may contact any law enforcement agency with information about an impending or committed crime. In this case, the subject should not comply with the rules on jurisdiction. In this regard, an official’s refusal to accept a statement due to the fact that the crime belongs to the jurisdiction of another body is recognized as unlawful and can be challenged in the manner prescribed by the criminal procedure standards. But in order to make the appeal possible, the subject must demand the written refusal of the authorized person to accept the message.
The moment of the victim’s admission to production
The decision on recognition as a victim in a criminal case acts as a formal basis for attracting a victim of a crime to a preliminary investigation. The moment of the person’s direct admission will depend on the discretion of the investigating authorities and whether they have a sufficient and necessary set of factual grounds - information about harming anyone.
In practice, there are frequent cases when the victim begins to participate in the case immediately after his initiation. However, it also happens that the investigating authorities have to take measures to search for victims. Given all the above, it is not possible to establish any specific, universal moment for the victim's admission to the case. It will be determined in each case individually, taking into account the circumstances.
Features of participation in the hearing in the first instance
They are disclosed in the criminal procedure law in sufficient detail. A person’s participation in first instance meetings is ensured by the following instruments.
First of all, you should pay attention to Part 4 of Art. 231. The norm provides for the duty of a judge when making a decision on the appointment of a meeting to notify the participants at least 5 days in advance. The parties are notified of the time, place, date of the proceedings.
Secondly, in accordance with Part 1 of Art. 249 of the Code of Criminal Procedure, the participation of the victim is mandatory when considering a criminal case on the merits. Consequently, a meeting can be held without sacrifice only if special grounds are established. In such cases, the court should take measures to clarify the reasons for the absence of the victim.
In order to more clearly ensure the rights of the victim to participate in the trial in the first instance, the law must explicitly state that his failure to appear for good reason should lead to a postponement of the hearing. If the circumstances of the absence were not clarified or the victim was not notified in time about the time, place and day of the meeting, the sentence at the request of the interested parties should be declared unlawful and canceled by a higher court. In this case, the case must be sent for re-consideration. The higher court must instruct the lower court to ensure the presence of the victim in the proceedings.
Important points
The CPC provides for the possibility of canceling a sentence if the victim’s right to participate in the proceedings was not properly secured. In judicial practice, there are many cases where decisions are quashed for this reason.
So, for example, in one of the cases, the jury verdict was canceled, since the victim’s right to participate in the trial was violated. The violation was due to the fact that the victim did not appear in court, but filed a motion to adjourn the proceedings in view of her illness. The court rejected this request. He motivated his decision by the fact that the victim did not provide a document confirming the statement of incapacity for work. Moreover, she had already been interrogated in court before, in connection with which the appearance at the meeting was recognized as optional. Accordingly, the hearing was concluded without the victim. The cassation instance citizen provided sick leave for the relevant days. Having taken the evidence into account, the court decided to cancel the verdict and recognize the violation of the rights of the victim.
Drafting a statement
Currently, there is no standardized form for applying for victim recognition in a criminal case. In practice, however, certain rules for its preparation have been formed. Firstly, an official (inquiry officer / investigator) is given a written request for recognition as a victim in a criminal case. There are no forms for such statements; therefore, the victim of the crime sets forth free information. The head of the document indicates the state agency or official conducting the case, the applicant's full name, his contact details.
The application shall indicate: the reasons and grounds for which the person should be recognized as a victim, the justification for the damage caused (including moral). The compilation date and signature are mandatory.