Private prosecution

[Юридическая Компания Лидер]

Private prosecution as a way to protect the rights of a victim of a crime

Quite often, citizens who have experienced violence against themselves and received bodily injuries turn to questions and for help. The list of questions is approximately the following:

For a long time my husband beat me. Last time I could not bear it and said to the police. A forensic examination revealed: light injuries. The police refused to institute criminal proceedings and advised to go to court. What will he be for it? Can I take at least moral damage from him?

I was beaten out of personal hostility by my neighbor during a quarrel with him. In my opinion, the police refused to institute criminal proceedings and advised me to go to court in private charge. How to do this and what is the limitation of going to court in such cases?
Constitution of Ukraine, part 2 of article 3 determines that the affirmation and enforcement of human rights and freedoms is the main duty of the state. One of the forms of protection of legal human rights is the right to initiate criminal proceedings on the complaint of the victim.

According to Art. 27 of the Code of Criminal Procedure of Ukraine, cases in which a private criminal charge is possible are:

- Part 1 of the article 125 of the Criminal Code - intentional slight bodily harm;
- Part 1 of the article 126 of the Criminal Code - intentionally inflicting blows, beatings or other violent acts that caused physical pain and did not cause bodily harm;
- Art. 356 of the Criminal Code - arbitrariness.
The legislator, recognizing these crimes as such that does not constitute a great public danger, gives the injured (or rather, injured) person the right to initiate criminal proceedings and support the prosecution in court (para. 1 of Article 27 of the Code of Criminal Procedure). In such cases, inquiry and pre-trial investigation are not carried out, and the case is decided directly in court on the complaint of the victim. The victim and the accused have the opportunity to reconcile. Such cases are called private prosecution cases.

At the same time, the initiation of criminal cases, private prosecution is significantly difficult, and the rights of the injured person are limited due to the imperfection of the current criminal procedure legislation, which limits the person’s ability to really protect their legal rights violated by criminal acts, because each of us can be situation.

So when you received a decision to refuse to institute criminal proceedings and it states: “You can go to court in accordance with article 27 of the Code of Criminal Procedure (CCP), maybe these tips will help you to assert your rights and punish those responsible.

The accusation in court is supported by the victim in person or through his representative, unless the victim is in a helpless state, as well as if the case has special social significance. In the latter case, you need to contact the prosecutor's office, referring in your application to part 3 of article 27 Code of Criminal Procedure of Ukraine. The prosecutor is also entitled at any time to intervene in a case initiated by a judge upon a complaint of a victim when protection of state or public interests or the rights of citizens requires it.

The crime of “Rape” is considered separately - a criminal case is instituted solely at the request of the victim (victim), but cannot be closed after reconciliation of the parties.

It is important to pay attention to the fact that if the actions of the accused show signs of other elements of crimes, for example, hooliganism, then it is necessary to challenge the refusal to initiate a criminal case, since such cases are not private prosecution cases.

Appeal to the court under Art. 27 Code of Criminal Procedure of Ukraine will provide you with the opportunity to recover material and moral damage, was inflicted on you by the unlawful actions of the accused.

It must be remembered that the accused may bring a counter-charge. In this case, the judge, as a rule, combines cases in one proceeding.

What should be the complaint to the court in accordance with article 27 of the CPC?

According to Art. 251 of the CPC, the complaint of the victim must comply with the requirements of the indictment (Articles 223 and 224 of the CPC), i.e. it must indicate: the court to which the complaint is filed; information about the applicant-victim, or his legal representative; circumstances of the case, place, time, methods, motive and consequences of the crime committed by each of the accused; which factual evidence (indicating the sources of this data) confirms the circumstances of the crime; information about the person who committed the crime (surname, name, patronymic, address of residence or place of work); requirements to prosecute the accused; the prosecution is summarized with reference to the articles of the criminal law providing for this crime.

Attached to the complaint: a list of persons to be summoned to the court, with their addresses; a list of physical evidence indicating which and where are located; a civil action in the case, if filed, or a statement of intent to file a civil action.

Of course, it is best to turn to a lawyer for help, but if you do not have enough money to pay for a lawyer, then using these tips, you can handle filing a complaint with the court. I do not advise you to hesitate to go to court, because the statute of limitations for crimes of low gravity is short. A person shall be exempted from criminal liability in connection with the expiration of the limitation period if the following periods have elapsed from the day he committed the crime to the day the sentence comes into force: two years - for crimes requiring a punishment less severe than restriction of freedom; three years - for crimes of minor gravity for which punishment in the form of restriction or imprisonment is provided.

 

[Турабян Владимир]

Thank!

 

[Дмитрий ЦЭББ Калининград]

Interesting comment!

 

[Андрей Захаров]

Thank you))) Interesting)))

 

[Частный детектив Днепр]

Vitaly, thank you! We will know.

 

[Плотников Юрий Михайлович]

Thanks, interesting!

 

[Детективное агентство Москва.]

Colleagues, here is an article from the Guarantor on Private Accusation (Russian legislation):

Private prosecution cases


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source link www.garant.ru required




In criminal law there is a category of private prosecution cases, the trial of which begins and ends at the request of the victim. As a rule, private prosecution cases affect the interests of a certain circle of persons and do not differ in great public danger. Consider the procedure for initiating and terminating such cases.

Private prosecution cases include: intentional infliction of slight harm to health (part 1 of article 115 of the Criminal Code of the Russian Federation), beatings (part 1 of article 116 of the Criminal Code of the Russian Federation), defamation without aggravating circumstances (part 1 of article 129 of the Criminal Code of the Russian Federation), and also an insult (part 1 of article 130 of the Criminal Code of the Russian Federation), including expressed publicly and in the media (part 2 of article 130 of the Criminal Code of the Russian Federation). All of these crimes are crimes of minor gravity. Criminal cases in respect of such crimes are instituted, with some exceptions, at the request of the victim or his legal representative and are subject to termination due to the reconciliation of the victim with the accused, which is possible until the court is removed to the deliberation room (part 2 of article 20 of the Code of Criminal Procedure of the Russian Federation).

A statement in the case of a private prosecution is submitted directly to the justice of the peace in accordance with the rules of territorial jurisdiction with copies of the number of persons against whom a criminal case is instituted (part 6 of article 318 of the Code of Criminal Procedure of the Russian Federation). The application must comply with the requirements established by law and contain: the name of the court to which it is filed, a description of the crime event, place, time, and circumstances of its commission, a request addressed to the court to accept the criminal case for production, information about the victim, as well as about documents proving his identity, information about the person held criminally liable, a list of witnesses to be summoned to court, and the signature of the person who filed the application (part 5 of article 318 of the Code of Criminal Procedure of the Russian Federation). Often the victim does not have information about the person held criminally liable, then the justice of the peace refuses to accept the application and sends it to the head of the investigating authority or the head of the inquiry body, which is notified by the person who filed the application (part 1.1 of article 319, part 1 of article 147 Code of Criminal Procedure of the Russian Federation).

Having established that the application in form and content complies with the established requirements, the justice of the peace accepts the application for his production, and the victim acquires the status of a private prosecutor (part 7, page 318, part 1, article 43 of the Code of Criminal Procedure of the Russian Federation). If the application does not meet the specified requirements, the judge makes a decision on his return, which proposes to correct the application and sets a deadline for this (part 1 of article 319 of the Code of Criminal Procedure of the Russian Federation).

The trial should be started no earlier than 3 and no later than 14 days from the day the application was submitted to the court (part 2 of article 321 of the Code of Criminal Procedure of the Russian Federation). Within 7 days, the justice of the peace calls the person against whom the application has been filed, acquaints him with the materials of the criminal case, hands in a copy of the filed application, explains the rights of the defendant at the hearing and finds out who needs to be called to court as witnesses for the defense (part 3 of article . 319 Code of Criminal Procedure). Often the person with respect to whom the application has been filed submits a counter-application, which can be combined in one proceeding with the initial one, while the consideration of the case can be postponed for a period not exceeding 3 days (part 3 of article 321 of the Code of Criminal Procedure of the Russian Federation).

In the process of preparing and conducting the trial, the justice of the peace at the request of the parties can assist them in collecting evidence that cannot be obtained by them on their own (part 2 of article 319 of the Code of Criminal Procedure of the Russian Federation). He also explains to the parties the possibility of conciliation and other procedural rights and obligations. In the case of receipt of applications for reconciliation, the criminal proceedings by the decision of the justice of the peace are terminated (part 5 of article 139, part 2 of article 20 of the Code of Criminal Procedure of the Russian Federation).

The judicial investigation begins with a statement of the statement by the private prosecutor or his representative. A private prosecutor has the right to present evidence, participate in their investigation, present his opinion to the court on the merits of the prosecution, on the application of the criminal law and impose punishment on the defendant, can change the charge if this does not worsen the position of the defendant, and also refuse the charge (Part 5 of Art. 321 Code of Criminal Procedure). It is worth noting that the participation of a private prosecutor in a court session is mandatory and, if he does not appear in court without good reason, the judge decides to terminate the criminal case (part 3 of article 249, paragraph 2 of article 1 of article 24 of the Code of Criminal Procedure of the Russian Federation) .

We highlight a number of points that should be paid attention to when participating in a private prosecution case.

Firstly, in acquitting the defendant, the court has the right to recover the procedural costs in full or in part from the person whose complaint the proceedings were initiated (part 9 of article 132 of the Code of Criminal Procedure of the Russian Federation).

Secondly, in the event of termination of the case by reconciliation of the parties to the defendant, a civil lawsuit may be brought for compensation for moral and material damage, and the decision to terminate the criminal case will be one of the evidence in the civil case.

Thirdly, a private prosecution case can also be brought in the absence of a statement by the investigator or the legal representative of the victim or with the consent of the prosecutor by the inquiry officer, if the crime is committed against a person who, due to a dependent or helpless state or for other reasons, cannot defend his rights and legitimate interests, as well as in the commission of a crime by a person whose data are not known (part 4 of article 20 of the Code of Criminal Procedure of the Russian Federation). The evidence of helplessness of the condition includes medical documents proving disability and disability, information that the person is registered with a neuropsychiatric dispensary, court decisions recognizing a person as legally incompetent and establishing guardianship or guardianship over him. In the event of the death of the victim, a criminal case is initiated by filing an application with his close relative or in the manner described above (part 2 of article 318 of the Code of Criminal Procedure of the Russian Federation). If the case is initiated by the prosecutor or investigator, as well as the interrogating officer with the consent of the prosecutor, the prosecution is supported by the public prosecutor. The prosecutor joining the criminal case does not deprive the parties of the right to reconciliation (part 4 of article 318 of the Code of Criminal Procedure of the Russian Federation).

And finally, the victims do not always know that a criminal complaint should be submitted to the justice of the peace, and go to the police or the prosecutor's office. In the event that a report of a crime has been received by the investigating authority, the interrogating officer, investigator or prosecutor, these persons must decide to forward the message to the court, as notified by the applicant, or explain to the victim the procedure for sending such statements (part 2 of article 20, paragraph 3 Part 1 of Article 145 of the Code of Criminal Procedure of the Russian Federation). In any case, they must take measures to prevent or suppress the crime, as well as measures to preserve traces of the crime (Clause 3, Article 145 of the Code of Criminal Procedure of the Russian Federation).

Anna Belitskaya, Legal Advisor, Garant

 

[Юридическая Компания Лидер]

Thank.

 

[Турабян Владимир]

THANK!

 

[Андрей Захаров]

Thank you)))) Informative)))