Responses to the Questionnaire "Alternatives to Criminal Prosecution in Council of Europe member-states"
1. Legal framework: does your country adhere to system of coercive or discretionary criminal prosecution? Has the situation changed during the last two years? Has such change been foreseen? What is the percentage of identified offenders being made criminally liable for crimes committed in 2005-2006 in your country? What is the proportion between the application of alternative measures and legal prosecution?
The Criminal Legislation and Legislation of Criminal Procedure of the Russian Federation in force comprise principles of coercive and discretionary criminal prosecution.
Criminal prosecution of a person suspected or charged with a socially dangerous crime may be stopped both at the stage of pre-trial investigation (inquest) and at the stage of court proceedings.
The court, as well as an investigator by approbation of the head of the investigative agency or an inquirer by approbation of the prosecutor, on the grounds of application by the victim or his/her legal representative is entitled to discontinue criminal prosecution of the suspected or the accused person under Articles 25, 28 of the Code of Criminal Procedure of the Russian Federation (hereinafter, CCP RF) due to conciliation between parties or active repentance. Criminal prosecution discontinuation shall not be admissible if the suspected or the accused person raises objections to it. In that case the proceedings in the criminal case shall be continued in accordance with the regular procedure.
There are no considerable changes regarding the issue and they are not planned in the nearest future.
In compliance with Article 92 part 2 of the Criminal Code of the Russian Federation (hereinafter, CC RF) a minor person convicted of crimes of minor or moderate severity may be excused from punishment by the court and placed in a special educational or treatment-educational institution. Placing in a special educational institution is applied as a compulsory measure of educational influence in order to improve the minor who requires special conditions of education, training and special pedagogical approach.
According to the Court Department at the Supreme Court of the Russian Federation, 909.853 persons were convicted by the courts in Russia to different forms of punishment in 2006 (in 2005 -873.331 persons). Thus, the number of convicted persons increased by 1,4% in 2006.
Taking into consideration active repentance, criminal prosecution in respect of 21.994 persons was terminated; that is 4,3% lower than in 2005 (in respect of 22.976 persons).
Taking into consideration conciliation between parties, criminal prosecution in respect of 282.503 persons was terminated; that is 7,7% higher than in 2005 (in respect of 262.343 persons).
In general, of 98718 criminal cases and/or criminal prosecution dismissed in 2006, 18417 (18,7%) criminal cases were dismissed due to active repentance (7132) and due to conciliation between parties (11285).
For comparison, of 88011 criminal cases and/or criminal prosecution dismissed in 2005, 31412 (35,7%) criminal cases were dismissed due to active repentance (12176) and due to conciliation between parties (19236).
2. When making a decision on punishment for a crime, do the judicial authorities of your country have the possibility of choice between the criminal law measures and other
1 In compliance with Article 15 of the Criminal Code of the Russian Federation crimes of minor severity are recognized to be intentional and careless actions, for commission of which the maximal penalty does not exceed 2 years of imprisonment. Crimes of moderate severity are deemed to be intentional actions, for commission of which the maximum penalty does no exceed 5 years of imprisonment and careless actions for commission of which the maximal penalty does not exceed 2 years of imprisonment. Grave crimes are deemed to be intentional actions, for the commission of which the maximal penalty does not exceed 10 years of imprisonment.
Translated into English by Mrs M German
measures? If so, please explain what stipulates such choice. Is that the final decision or it may be contested?
Legislation of Criminal Procedure of the Russian Federation provides for a stage of pre-trial investigation which allows the agencies conducting criminal prosecution, prior to the case be submitted to the court, to determine the collected evidence in respect to their relevance, admissibility and sufficiency for the accusation be brought and the accused person be brought to justice and likewise to disclose circumstances which serve as grounds for application of discretionary forms of criminal procedure and in case there are certain grounds to dismiss criminal case or criminal prosecution at the pre-trial stage of criminal proceedings.
As for discretionary forms of criminal proceedings, as it was mentioned above, for the judgement on criminal case dismissal due to conciliation between parties or criminal prosecution discontinuation due to active repentance be made by the court it is necessary to follow certain conditions and an established order.
Under Article 25 of CCP RF (Dismissal of criminal case due to conciliation between parties) a criminal case shall be dismissed by the court when the following conditions are met:
a) availability of the application by the victim or his/her legal representative on criminal case dismissal under the mentioned reason;
b) category of crime: minor or moderate severity2;
c) availability of circumstances testifying that the person has reconciled with the victim;
d) indemnification of damage to the victim;
e) commission of crime for the first time.
As for discontinuation of criminal prosecution due to active repentance, if we are talking about a crime of minor or moderate severity, under Article 28 of CCP RF (Discontinuation of criminal prosecution due to active repentance) criminal prosecution may be discontinued when the following conditions are met:
a) commission of crime for the first time;
b) appearance in the court with confession of guilt;
c) assist for the crime be resolved;
d) indemnification of damage as a result of crime (or if the person recovered damage as a result of crime by other means).
When criminal prosecution is terminated due to active repentance the person shall be explained the grounds for discontinuation of criminal prosecution and rights to appeal against its discontinuation. <
It should be noted that dismissal of criminal case or criminal prosecution under the above grounds shall be the right but not the obligation of the court. Such judgements are passed by the court after the opinions by parties and circumstances testifying to the observance of conditions under which criminal case or criminal prosecution may be terminated have been clarified.
In compliance with the Legislation of Criminal Procedure of the Russian Federation, court judgements may be appealed against to the court of cassation or the court of appeal (if the court judgement has not taken legal effect), and in supervision order (for the court judgement in force) to higher court which checks the legality, validity and equity of sentence or other court ruling.
3. What is the prosecutor's role?
Prosecutor who supports state accusation in the court is entitled to give his opinion on possible dismissal of criminal case or criminal prosecution, to file an appropriate motion on his/her
2 See note 1.
Translated into English by Mrs M German
initiative and likewise to contest illegal and unjustified court judgement in cassation, appeal and supervision order.
4. Are there criteria for application of an alternative measure instead of criminal prosecution?
When a form of punishment is being determined, the nature and gravity of crime, identity of the guilty person, as well as circumstances mitigating or aggravating punishment, influence of the punishment imposed upon the improvement of the convicted person and living conditions of his/her family are taken into consideration.
More severe penalty is imposed only in case a less severe penalty fails to achieve goals of penalty.
5. Can a person committed grave crime evade criminal prosecution due to the possibility of application of an alternative measure?
Criminal prosecution due to active repentance in respect of persons committed grave and especially grave crimes (for instance, abduction of a person, trafficking in human beings, terrorism, high treason, etc.) may be discontinued only in cases especially provided by CC RF.
Such decisions may be made owing to the fact that the timely prevented damage to the public interests protected by the law by the acts of the accused person "outweighs" the damage caused as a result of crime.
6. Is the victim explained the right to contest court judgement in case when criminal prosecution has been discontinued? How are their rights observed?
Judgement on dismissal of criminal case under Article 25 of CCP RF (Dismissal of criminal case due to conciliation between parties) shall be passed only under the statement by the victim or his/her legal representative. As for discontinuation of criminal proceedings under Article 28 of CCP RF (Discontinuation of criminal prosecution due to active repentance), since the Russian Legislation of Criminal Procedure provides for the right of the victim to participate in court hearing in the court of first, second and supervisory instances, the court shall be obliged to hear the victim's opinion when settling the matter of discontinuation of criminal prosecution.
At the same time, when settling the above matter, the court shall not be obliged to take measures to force the victim to give his/her opinion in the matter. The victim is entitled to appeal a court judgement (ruling) on dismissal of criminal case or criminal prosecution.
7. Can the person subjected to punishment appeal to impartial authorities considering that the court judgement passed in respect of him/her may entail any obligations for him/her (for instance, to compensate the damage caused)?
In compliance with Articles 46, 47 of CCP RF the convicted person shall have the right:
1) to get familiarized with the official records of court hearing and to submit comments on them;
2) to appeal against sentence or other court judgement and to receive copies the appealed court judgements;
3) to know about complaints brought in the criminal case and to file objections to them;
4) to participate in the examination of issues pertaining to the execution of the judgment;
5) to execute other powers provided by the legislation of criminal procedure.
8. Can you give examples of alternatives to legal prosecution which you find more suitable for prevention of repeated crime by an offender and in the interests of victims?
Translated into English by Mrs M German
As an example of the alternative to legal prosecution which may prevent the repeated crimes we may name the following measures: application of compulsory educational measures to the minors in the form of warning, transfer under the supervision of their parents or persons in charge or a special state institution, an obligation to compensate the damage caused, limitation of spare time and determination of special requirements to a minor's conduct.
Another example of the alternative to criminal prosecution which may prevent the repeated crimes we may name the following measure: application by the court of compulsory medical measures in respect of the person committed crime in the state of insanity or the person who after the crime suffered mental disorder which makes it impossible to impose a sentence or its execution.
Compulsory medical measures are applied in case when mental disorder of the person represents a danger to him or other persons or the possibility of infliction of another considerable damage.
It should be noted that with relation to restoration of the rights of the victim, more efficient kinds of discretionary court proceedings are dismissal of criminal case due to conciliation with the victim and discontinuation of criminal prosecution due to active repentance since the compulsory condition for such decision be made is indemnification of damage to the victim.
9. Is there a method of estimation of efficiency of the alternatives to criminal prosecution in your country?
There is no any specific method of estimation of efficiency of the alternatives to criminal prosecution in the Russian Federation. In order to estimate the efficiency of discretionary criminal proceedings as one of the factors which have influence upon the dynamics of criminality, general criminological measures such as statistical method, questionary method, method of observation, sociometric method, documentary method, method of criminological expertise and others are applied.
10. Can you give contact details of a person (by his/her approval) who is an expert in those matters?
The Academy of the Prosecutor General's Office of the Russian Federation.
Address: 15, 2nd Zvenigorodskaya Street, Moscow, 123022; telephone: +7 (495) 256-54-63.
Prosecutor General's Office
of the Russian Federation, November 2007
Translated into English by Mrs M German