Consequences of mistakes at application of criminally-procedural law of the Russian federation

«All people are born free and equal in dignity and rights. They are allotted by reason and conscience and should act towards each other in spirit of a brotherhood» [1].

Inspectors, public prosecutors, judges — who are they? They are ordinary people received higher education and chosen the work in Department of Inner Proceedings, Office of Public Prosecutor and court. Basically yes, if not to consider one moment. These people solve human destiny. The questions on the disputable right or money resources are solved in a civil process, and «life» of a person does matter in a procedure. And first of all inspectors, public prosecutors and judges are people who make mistakes. And even professionals who have worked not for one tens of years, are not secured from mistakes. These persons should do a huge work, from the moment of brining criminal prosecution and up to the introduction of a verdict into the validity, which is registered by the Criminal code of the Russian Federation, criminally-procedural code of the Russian Federation, etc. normative acts.

Lately, the theme «miscarriage of justice» is raised in mass media of the Russian Federation. New and new examples of mistrials made by inspectors, public prosecutors and judges at work, are more often sounded in such TV programs as «Person and law» on channel ORT, «the part on duty» on RTR, «Report» on NTV.

Beginning an investigation of any criminal case where there are suspects, the inspector solves the problem about restraint which is necessary to choose to the given persons. Chapter 13 of criminally-procedural code of the Russian Federation [2] provides seven kinds of restraint, but the most widespread are:

• article 102 CPC of the Russian Federation: «Giving a written undertaking and appropriate behavior»
• article 105 CPC of the Russian Federation: «Custody for minor suspected or accused»;
• article 106 CPC of the Russian Federation: «Mortgage»;
• article 108 CPC of the Russian Federation: «Committal».

Solving this question, inspectors take to account not the personality of the suspect, but the fact if he cooperates with the investigation or not. Sometimes the opportunity of application of a restraint is used by representatives of corresponding investigatory bodies as «lever of influence» on suspect and accused. Now the Office of Public Prosecutor completely supports inquest if the inspector decides to choose committal as a restraint. As a rule, the judge does not penetrate into an essence of preliminary investigation during trial, completely agrees with the motion of the side of charge. The judge uses as basis, in the decision to choose committal as a restraint or in the decision about prolongation of the term of committal, such criteria as: the seriousness of crime, practically not investigating evidentiary base. As a rule, the formulation certain, typical: «... Considering the imputable citizen N’s weight of crime and considering, that being at large, he can prevent an establishment of true of the case, disappear from consequence and court, the court considers possible to satisfy the petition of the inspector to choose committal as restraint (about prolongation of committal’s term) ...». In my opinion, the identity of the accused, his environment, living environment and others important qualities describing suspected (accused) are not considered at all. The court practically ignores such legal category as «presumption of innocence» [3], completely agreeing with representatives of charge The given norm is establishing not only in the Russian Federation, but also in all civilized world [4].

I wish to stop in my research at the consequences of such «one-sided» approach of choosing committal as restraint. The judge passes the resolution of choosing (prolongation) restraint of committal, agreeing with the party of charge, do not consider possible negative consequences of the given decision, both for suspect (accused), and for the state as a whole. These consequences can be considered from two sides:

• reflected on suspect (accused) in the form of his communion with prison subculture;
• reflected on the state, in case of recognition suspect (accused) innocent, in procedure of rehabilitation [5].

First, it is necessary to consider those consequences which are reflected directly on suspect (accused, defendants). After judge’s ruling to choose committal as restrain, suspect (accused) is placed to isolation ward, after 10 days he is transferred to remand prison or to pre-trial prison. As soon as the person gets to pretrial prison, he becomes a part of prison subculture, which lives on unwritten «the prison law». The person is compelled to obey and live on those customs and traditions according to which a great bulk of persons under investigation lives there. As a result there is a change of the person’s mentality, since the conditions of the maintenance in Russian pre-trial prison are equated to tortures, in opinion of world community. Except for it, the print of behavior according to norms of «the prison law» is imposed also [6].

As to consequences reflected to state, there is a whole chapter in criminally-procedural code of the Russian Federation in case of innocent suspect. The bases of occurrence for rehabilitation are provided under the article 133 CPC of the RF.

The law divides procedure of rehabilitation into four elements which do not depend on each other:

1. Property damage(article 135 CPC of the RF);
2. Moral indemnification (article 136 CPC of the RF);
3. Reinstatement of other rights of discharged (article138 CPC of the RF);
4. Indemnification to legal persons (article 139 CPC of the RF).

Court, in a verdict, definition, the decision, and the public prosecutor, the inspector, the investigator in the determination recognizes the right to rehabilitation for justified or the person concerning whom criminal prosecution is stopped, the right to rehabilitation. Simultaneously the notice with an explanation of the order of redress of wrong, connected with criminal prosecution, is sent to the discharged.

The question connected with property damage, is solved much easier, than a question connected with moral indemnification. The order and the size of property damage are certain by concrete norm of criminally-procedural code of the Russian Federation. On the basis of article 135 CPC of the Russian Federation, the person who has got the right to rehabilitation, makes the application and with the application addresses to the official or in court for property damage. In other words, the size of property damage should be confirmed by documents or reference.

Moral Indemnification is adjusted not only by the article 136 criminally-procedural code of the Russian Federation, but also by the article 1100 of the Civil code of the Russian Federation. Moral indemnification occurs not within the limits of criminal legal proceedings, but only within the limits of civil legal proceedings. There is no norm in the Russian legislation which precisely adjusts the size of moral indemnification. This sum defines discharged himself, proceeding from internal world-view and those sufferings which had incurred on fault of officials.

It is easier for the judge to make a decision on property damage, than on moral indemnification. It speaks that the judge, considering and solving the claim for property damage is based on norms of the law and the presented documents which confirm property damage. The judge passes the decision, considering only on the internal world-view, considering and solving the claim on moral indemnification within the limits of civil legal proceedings.

Except theoretical basis of procedure it is necessary to consider practical aspects. In the Russian Federation theory and practice of administration of the legislation do not always coincides.

It is possible to note the following basic features of procedure of rehabilitation analyzing judicial practice, under claims connected with compensation property and moral indemnification.

Those officials and bodies who have broken the rights and legitimate interests of a discharged should be respondents under claims with property damage and moral indemnification. However in practice the Ministry of Finance of the Russian Federation is the respondent on such affairs.

As example the case №2-850/2005 which was considered by the Tverskoy regional court of Moscow in 2005, under Chelysheva Antonina Grigorevna's claim to the State Office of Public Prosecutor of the Russian Federation about moral indemnification can serve. The court has established that 22.01.1998г. She has been detained by the inspector the State Office of Public Prosecutor of the Russian Federation according to the article 122 criminally-procedural code of RF a committal as the restraint was chosen for Chelysheva A.G.

From 29.12.2003г. Chelysheva A.G. has been justified by a verdict of Lipetsk regional court in connection with non-participation in fulfillment of crimes. The committal was cancelled. Chelysheva A.G. had a right to rehabilitation on the basis of the article 133 of criminally-procedural code of the Russian Federation and in conformity from item 1100 of Civil code of the Russian Federation the claimant’s right to demand indemnification of moral harm was fixed. Claimant Grigoreva A.G. estimated the caused moral harm in money terms at a rate of 6 000 000 rubles. Chelysheva A.G. was 60 years to the moment of the committal; and she was already 65 to the moment of removal of the verdict of «not guilty».

Court passed the decision in favor of Chelysheva A.G. by result of legal investigation and partially satisfied the claim at a rate of 100 000 rubles. However the court in the decision has specified that the State Office of Public Prosecutor is the inadequate respondent and requirements to it are shown unreasonably since the Budgetary code of the Russian Federation has defined as the respondent on such category corresponding financial body. The Ministry of Finance of the Russian Federation was recognized as the appropriate respondent. In other words the respondent always will be the treasury of the Russian Federation, on behalf of the Ministry of Finance of the Russian Federation.

We can draw other not so optimistic conclusions analyzing another matter on vindication of moral harm. Citizen N declared for moral indemnification in 2005. Court has established by consideration, that a committal as the restraint was chosen for N, and after the sentence was passed, N was sent to high security. Eight years later N’s verdict was reconsidered and he was justified in connection that the person was condemned who had committed the crime, which N had been condemned for. The court has passed the decision in favor of N and awarded in its advantage of 3000000 rubles. N was 30 years old at the moment of committal and he was discharged at the age of 38.

So, investigator, inspector, public prosecutor and judge do not bear any responsibility for the admitted mistakes in their work, and the Russian Federation answers for their mistakes. On the one hand it is logical, since all the officials who are carrying out preliminary investigation and court operate on behalf of the Russian Federation. However compensation of moral and material harm occurs from budgets of a various level. The basic updating of the budget occurs due to receipt of taxes from physical and legal persons, and so compensation for the mistakes of officials and judges, citizens and legal persons bear.

Such state of affairs is not correct, in my opinion, since procedure of acceptance the budget of a various level is provided by the Budgetary code of the Russian Federation. All clauses of charges are studied and register in the budget proceeding from those or other needs. Decisions of courts on affairs connected with moral indemnification and material damage imposes on the budget (treasury) of the Russian Federation additional charges which are not stipulated by already accepted and operating budget. Execution of the decision of court entered validity occurs Management of federal service of judicial police officers of the Russian Federation under compulsion so, money resources will be under compulsion written off from the account of the Ministry of Finance of the Russian Federation. So, money resources will not get to the advance planned purposes.

The blank in the legislation of the Russian Federation, connected with order of charge of the sums on moral indemnification, also should be eliminated at a legislative level, since claim the application for compensation of moral harm constantly act in federal courts of different levels, in my opinion. The two listed above examples from judiciary practice show us that practically judge bears absolutely unlike sums of moral harm practically on similar circumstances. It’s not clear, what does the sum of moral indemnification, the judge stops at, depends on, and since in the decision of court accounting of a total amount of moral indemnification doesn’t registered. It is necessary for the State Duma of the Russian Federation to accept the general norms, concerning procedures of compensation of moral harm. Let us suppose, to establish, that 200 rubles are paid for one day of committal. Proceeding from such position, it will be simple and justified for court to calculate the size of compensation of moral harm. All decisions, passed in all territory of the Russian Federation, will be practically identical.

Right after acceptances of norms of calculations, the size of compensation of moral harm, and some questions will be solved:

1. the work of courts and the judges, considering the cases of moral indemnification;
2. discharged persons can precisely and reasonably make statements of claim on compensation of moral harm in court;
3. the minimal size, which securely will receive the person, will be established, submitted the claim for compensation of moral harm. Not as it is now, a person cannot present the sum of moral indemnification up to announcement of the decision of court at all;
4. the decision of courts there will be more fair, a probability of their canceling or revision higher court will decrease, since the decision will be based on norm, instead of at the discretion of the In my opinion, it is necessary to make changes in the legislation adjusting procedure of rehabilitation. The basic change should be entering of a position into the Budgetary code of the Russian Federation, criminally-procedural code of the Russian Federation, and also the Civil code of the Russian Federation, concerning an individualization of the responsibility of investigators, inspectors, public prosecutors and judges for the mistakes they make at realization of the activity. It would allow to involve in a liability for breakage of concrete persons, instead of writing off money resources from the budget of the Russian Federation. Besides, these positions could allow to discipline officials and judges and to force them to carry out better the duties assigned to them.

The offered above perfection of the legislation will allow to approach all to principles to legislations, an individualization of punishment and brining to the responsibility.

The modern condition at realization of the norms, concerning procedures of rehabilitation, causes many censures as from practical lawyers, and scientists. However only those persons, who have collided with procedure of rehabilitation and compensation of moral harm in practice, know about it. 

The list of literature

1. Clause 1 of the General declaration of human rights accepted 10.12.1948г. by General Assembly of the United
2. Comment to criminally-procedural code of the Russian Federation (clause-by-clause). Under B.Т.Bezlepkin. — M., KNORUS,
3. Article 14 of the criminally-procedural code of the Russian Federation. Comment to criminally-procedural code of the Russian Federation (clause-by-clause). Under B.Т.Bezlepkin. — M., KNORUS,
4. part 1 article11 of the General declaration of human rights accepted 12.1948г. by General Assembly of the United Nations. part 1 article 49 of the Constitution of the Russian Federation accepted by national referendum 12.12.1993г.
5. chapter 18 of criminally-procedural code of the Russian .. Comment to criminally-procedural code of the Russian Federation (clause-by-clause). Under B.T. Bezlepkin. — M., KNORUS, 2002.
6. Yakovlev A. Persons’s under investigation counteraction to the established order in places preliminary incarceration. Researchers. RAUN. Release 4. Volume 3. — М.: Publishing group «Lawyer», 2004.