Is the termination of a criminal case by reconciliation of the parties with the payment of a fine not a criminal record?

What is reconciliation of parties in criminal proceedings?

Reconciliation of parties in a criminal case is regulated by Article 25 of the Code of Criminal Procedure of the Russian Federation. This article states that the court, as well as the investigator or inquiry officer, can, based on a statement from the victim, terminate a criminal case concerning a suspect or accused person.

Such an application may be filed if the crime is of minor or moderate severity and was committed by the suspect or accused for the first time. In addition, according to Article 76 of the Criminal Code of the Russian Federation, the offender must reconcile with the victim and eliminate the harm caused.

Hello. Is the termination of a criminal case by reconciliation of the parties with the payment of a fine not a criminal record?

Lawyer Antonov A.P.

Good afternoon

According to Art. 86 of the Criminal Code, a person convicted of committing a crime is considered to have a criminal record from the day the court’s conviction enters into legal force until the criminal record is expunged or removed. A criminal record in accordance with this Code is taken into account in case of recidivism of crimes, imposition of punishment and entails other legal consequences in cases and in the manner established by federal laws. A person released from punishment is considered to have no criminal record. A criminal record is expunged: a) in relation to persons on probation - upon expiration of the probationary period; b) in relation to persons sentenced to more lenient punishments than imprisonment - after one year after serving or executing the sentence; c) in relation to persons sentenced to imprisonment for crimes of minor or medium gravity - after three years after serving the sentence; d) in relation to persons sentenced to imprisonment for serious crimes - after eight years after serving the sentence; e) in relation to persons convicted of especially serious crimes - after ten years after serving the sentence. If the convicted person, in accordance with the procedure established by law, was released early from serving the sentence or the unserved part of the sentence was replaced by a more lenient punishment, then the period for expunging the criminal record is calculated based on the actually served term of the sentence from the moment of release from serving the main and additional types of punishment. If the convicted person behaved impeccably after serving his sentence and also compensated for the damage caused by the crime, then, at his request, the court may remove his criminal record before the expiration of the criminal record. Expungement or removal of a criminal record cancels all legal consequences provided for by this Code associated with a criminal record. Thus, when a criminal case is terminated due to the reconciliation of the parties, a criminal record does not arise, however, the certificate will indicate that you were prosecuted and were released due to the reconciliation of the parties.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

Still have questions for your lawyer? Ask them right now here, or call us by phone in Moscow +7 (499) 288-34-32 or in Samara +7 (846) 212-99-71 (24 hours a day), or come to our office for a consultation (by pre-registration)!

Does reconciliation exclude criminal liability for the crime committed?

Reconciliation of the parties in cases of private prosecution excludes the onset of criminal liability, that is, measures of state coercion are not applied to the accused. However, negative consequences associated with the very fact of criminal prosecution still occur for the perpetrator. For example, such a person will not be able to join the police, and while serving in the police will be immediately dismissed.

The court may refuse to terminate a criminal case on the basis of reconciliation of the parties in cases of private-public and public prosecution, that is, when the crime committed posed a threat not only to a specific citizen, but also to public safety in general. For example, battery is considered a matter of private-public accusation. In addition, the court always takes into account the specific circumstances of the offense, because sometimes it is not possible to make amends in full.

Results of conciliation procedures

The amendments provide for an open list of the results of reconciliation in disputes arising from administrative and public relations:

recognition of the circumstances of the case, agreement of the parties on the circumstances of the case;
agreement of the parties containing the qualifications of the transaction made by the person participating in the case, or the status and nature of the activities of this person;
partial or complete waiver of claims, partial or complete recognition of claims, including as a result of the parties reaching an agreement on the assessment of the circumstances as a whole or their individual parts;
settlement agreement, if the powers of the relevant administrative body participating in the case are covered by federal law to conclude settlement agreements.

The Arbitration Procedural Code of the Russian Federation will contain an open list of the results of reconciliation of the parties to the case. It includes:

settlement agreement in relation to all or part of the stated claims;
partial or complete refusal of the claim;
partial or complete recognition of the claim;
complete or partial refusal of an appeal, cassation complaint, supervisory complaint (submission);
recognition of the circumstances on which the other party bases its claims or objections;
agreement on the circumstances of the case;
signing a letter of consent for state registration of a trademark.

How does the process of reconciliation of parties in a criminal case take place?

To reconcile the parties in court, it is necessary that both parties appear in the courtroom. Before the hearing begins, both parties fill out conciliation statements indicating the name of the judge. The statement states exactly how the damage caused was compensated. If an apology was simply made, then this is also written about.

Next, the parties request that the reconciliation statements be included in the case materials, and the judge grants the request. The judge then asks questions of the victim and the defendant to understand that the victim has expressed a desire to reconcile voluntarily and that he has been fully compensated for the damage. The end of the reconciliation process is the removal of the judge to the deliberation room, where a decision is made to terminate the criminal case.

There is no settlement agreement in a criminal case, since there is no term “settlement agreement” in criminal law. The term “settlement agreement” refers to the field of civil law and has no relation to the procedure for reconciliation of parties in a criminal case.

How to write a statement of reconciliation between the parties

The law does not define specific requirements for an application for reconciliation, therefore the injured party has the right to draw it up in free form. Taking into account the requirements for procedural documents, it is necessary to indicate the following information:

name of the court, inquiry or investigation body considering;
Full name, address, contacts, procedural status of the applicant;
number and other details of criminal proceedings;
a description of the methods and amounts of compensation received, the fact of sending an apology, and other methods of making amends for the offender;
information about the applicant’s awareness of the consequences that may occur as a result of the termination of criminal prosecution;
demand to terminate criminal prosecution against the accused;
list of attachments, date, signature.

Consequences of termination of a criminal case after reconciliation of the parties

A decision to terminate a criminal case is not a rehabilitating basis for the defendant. The right to rehabilitation is interpreted quite broadly and includes the right to compensation for property damage, minimizing the consequences of moral damage and restoration of labor, housing and other social rights if they were violated as a result of an unlawful act.

It turns out that the defendant may lose his position in the service, official housing and those benefits that were provided to him in connection with his official activities. The offender will have to look for a new job and resolve housing issues on his own.

The Supreme Court of the Russian Federation proposed to classify cases of beatings as cases of private-public accusations

According to the Supreme Court, the effectiveness of preventing domestic violence will increase, the role of the state in protecting citizens from slander will increase, and the court will no longer receive cases in which there is no preliminary confirmation of the existence of an event and a crime.

According to the adviser to the Federal Chamber of Lawyers, Evgeniy Rubinshtein, the institution of private prosecution is traditional and one of the oldest institutions of criminal procedure in Russia. “Its existence is due to the need for the presence of a private element in public criminal proceedings,” he says. — It has always been recognized that there are criminal acts that, to a greater and significant extent, affect personal (private) interests rather than public (public) interests. Therefore, the initiative to bring the offender to criminal liability should come from the victim, and not the state. Accordingly, the procedure for bringing a violator to criminal liability must take into account the characteristics of both the criminal act itself and the legal status of the initiator (victim).”

However, some time ago, under the article “Beatings”, the so-called prejudice was introduced, when for the first violation a person is punished under the Code of Administrative Offenses, and for the second he is already brought to criminal liability.

According to Evgeniy Rubinstein, these amendments made the further use of the institution of private prosecution illogical and impossible. “At the very least, the situation looks strange when the prosecution of a person for committing an administrative offense - beatings - is carried out by the state, but for committing a crime - beatings (Article 116.1 of the Criminal Code of the Russian Federation) should be carried out by a private person,” he says. “Therefore, unfortunately, from the moment administrative prejudice was introduced, the institution of private prosecution was doomed to reform. The whole question was when and how it would happen.”

It is now proposed to completely abolish the institution of private prosecution. Nevertheless, according to Evgeny Rubinstein, this institute has enormous potential, the disclosure of which requires a deep study of the existing regulatory framework and comprehensive changes in legislation.

The Supreme Court justified its initiative with the position of the European Court of Human Rights in its decision of July 9, 2021 on the complaint “Volodina v. the Russian Federation”, where the ECHR emphasized that the problem of domestic violence, which can take various forms, from physical attack to emotional or verbal violence, comes out beyond the boundaries of an individual case and is a common problem for all states, since it often takes place within personal relationships or in a small circle, with the vast majority of victims being women. In this regard, the ECHR drew attention to the need for active participation of the state in protecting victims of domestic violence.

“Meanwhile, the private procedure of criminal prosecution, in which the maintenance of charges in court, proving the guilt of the defendant, as well as the possibility of terminating the criminal case through reconciliation of the parties, completely depend on the position and activity of the victim with minimal government intervention in ensuring the protection and restoration of the rights and freedoms of the given persons, is not fully consistent with the noted position of the ECHR,” the Supreme Court noted.

Therefore, it is proposed to classify criminal cases of battery, intentional infliction of minor bodily harm and slander as criminal cases of private-public accusations, which will be investigated.

How a criminal lawyer can help in reconciliation with the injured party

A lawyer can act as a kind of mediator between the parties, protecting the rights and interests of the defendant. He, more than anyone else, is interested in making the victim feel that the harm to him has already been atoned for by the defendant, and that the case itself is not worth wasting his time on. For example, if the defendant paid for the treatment of the victim, then the lawyer’s task is to convince the latter that it is better for him to start treatment as soon as possible, and not waste his time on court hearings. In addition, the lawyer will always tell you how to properly prepare for the trial and explain how to quickly reach reconciliation.

With respect to you and your business,

legal

What you need to know about conciliation procedures

It is important to note that the list of conciliation procedures has been expanded and remains open. So, in particular, disputes can now be resolved:

through negotiations;
through mediation, including mediation (negotiations with the participation of an independent party - a mediator);
as a result of judicial reconciliation;
through the use of other conciliation procedures, if this does not contradict federal law.

As for judicial reconciliation, its implementation involves the participation of a judicial conciliator, whose role will be taken by a retired judge.

The Plenum of the Supreme Court of the Russian Federation is responsible for the formation and approval of the list of judicial conciliators. It takes into account proposals from arbitration courts regarding candidates for judicial conciliators from among retired judges who have expressed a desire to act as a judicial conciliator.

A candidate for resolving a specific dispute is determined by mutual agreement of the parties, and the court approves it.

The judicial conciliator has certain rights:

conducting negotiations with the parties and other persons involved in the case;
examination of documents presented by the parties;
familiarization with the case materials with the consent of the arbitration court;
taking other actions necessary to effectively resolve the dispute.

At the same time, the judicial conciliator does not have the right to perform actions as a result of which the rights and obligations of the persons participating in the case, as well as other participants in the process, arise, change or terminate. A judicial conciliator is not a participant in the trial.