Art. 42 Code of Criminal Procedure "Victim"

One of the key figures in criminal proceedings is the victim. The main objective of justice is to ensure the protection of the interests of this person. The legislation establishes the particular status, obligations and rights of the victim. Art. 42 of the Code of Criminal Procedure of the Russian Federation, fixing them, also determines the responsibility of the subject for certain violations committed during the production. Let us consider the norm in more detail.

Status Features

As a victim of a crime, according to h. 1 tbsp. 42 Code of Criminal Procedure, acts as an individual to whom infringement inflicted moral, property, and physical harm. A legal entity is also considered to be affected if its business reputation and material values ​​were damaged by a crime. The decision to assign such a status to the subject is taken from the moment the proceedings are instituted (immediately). It, as indicated Art. 42 Code of Criminal Procedure with the latest changes, drawn up in the form of a resolution of the inquiry officer, investigator, judge, or by the determination of the first instance. If, at the date of commencement of proceedings, there is no information about the subject to which the damage was caused in connection with the crime, the corresponding decision is taken immediately after receiving the necessary information.

Rights of the victim

Art. 42 of the Code of Criminal Procedure of the Russian Federation secures a fairly wide range of legal opportunities for the victim. In particular, a crime victim may:

1. Be aware of the charges against the alleged attacker.
2. Give testimony.
3. Do not testify against your relatives and yourself. The circle of loved ones is determined by Article 5 of the Code of Criminal Procedure (paragraph 4). If you agree to give evidence, the victim is warned that the information that he will provide can subsequently be used as evidence, including if he subsequently refuses it.
4. Submit materials confirming the event, harm caused by a crime, etc.
5. To challenge, bring motions.
6. Provide information in a language that the subject is fluent in.
7. To apply for a translator and use his help for free.
8. Provide a third party with powers of representation in court.
9. To participate, with the consent of the employee conducting the production, in investigative actions carried out at the request of.
10. To study the protocols of the procedures carried out with his participation, to submit comments on them.
11. To get acquainted with the decision on the examination and its conclusion.
12. To study all production materials at the end of the investigation, including when the case is dismissed, write out any information in any volume, and copy documents. If several people became victims of the assault, each of them can get acquainted with information regarding the harm caused to any other victim.
13. To receive copies of the decision to institute proceedings, to declare him injured, to refuse to place the accused in custody, to dismiss the case, to send materials on jurisdiction, schedule a preliminary hearing, hearings, as well as a copy of the first-instance verdict, appeal decision and appeal. The subject can send a request with the request and other documents that affect his interests.
14. Participate in the trial in the court of first instance, appeal and other instances, bring objections to the decision of the verdict without holding a meeting in the general manner. In cases stipulated by the Code, the subject may be involved in the consideration of issues relating to the execution of the decision.
15. Participate in the debate.
16. Support the prosecution.
17. Examine the minutes of the meeting and submit comments on it.
18. Complain about decisions, inaction / actions of the inquiry officer, investigator, their leaders, court, prosecutor.
19. To challenge the determination, decision, sentence adopted in the framework of the proceedings.
20. To be aware of the submissions and complaints brought in the case, to object to them.
21. Submit applications for the application of measures in accordance with the third part of Article 11 of the Code.

Receiving the information

As pointed Art. 42 Code of Criminal Procedure in the new edition, a subject who has become a victim of a crime may request information about:

1. Arrival of the convicted person to imprisonment at the place of serving the sentence, moving him from one institution to another.
2. Consideration by the court of issues related to the execution of the sentence.
3. Release of a person from punishment.
4. Deferring the execution of the sentence, replacing the unserved part with a milder punishment.

A person can receive this information on the basis of a ruling, a court order, adopted before the conclusion of the debate of the parties. For this, as pointed out h. 2 tbsp. 42 Code of Criminal Procedure, the citizen or his representative draws up the application. The list of legal possibilities for a victim of crime is considered open. Art. 42 Code of Criminal Procedure as amended contains a reservation that a person may exercise other powers enshrined in the Code.

Indemnification

According to part three Art. 42 Code of Criminal Procedure (2016), a person who has suffered from a crime may claim compensation for property damage arising as a result of the offense. In addition, he can count on reimbursement of expenses incurred as a result of his participation in the preliminary investigation, court hearings. They include, but are not limited to, expenses for a representative. Compensation of costs is carried out in accordance with the requirements of Article 131 of the Code. Additionally, according to part four Art. 42 Code of Criminal Procedure, a citizen may demand pecuniary damage. The amount of compensation is determined by the court in a lawsuit filed in a civil proceeding or during a criminal case.

Bans

As indicated in Art. 42 Code of Criminal Procedure, a subject affected by a crime cannot:

1. In case of a call from appearing in court, to evade the interrogator / investigator.
2. Provide knowingly false information, refuse to testify (except as provided by the Code).
3. To divulge the information of the preliminary investigation if the person was warned in advance about the need to maintain the confidentiality of these data in the manner provided for in article 161 of the CPC.
4. To evade passing a medical examination, conducting a forensic examination in respect of him in cases where his consent is not required to perform the indicated procedures, or from providing samples, including handwriting, for conducting a comparative study.

Features of the application

As indicated by Part 5. 1 Art. 42 Code of Criminal Procedure, a request for information provided for in clause 21.1 of the considered norm is sent by a citizen who has become a victim of a crime, his representative until the written debate on the case is completed. The application must include a list of relevant information, address of residence, e-mail, phone numbers, other data that will ensure the timely transfer of materials of interest.

A responsibility

According to Art. 42 Code of Criminal Procedure, a person who is a victim of an assault should not provide knowingly false information. Otherwise, he can be prosecuted under article 307 of the Criminal Code. In the event of his refusal to undergo a medical examination, to conduct an examination in respect of him in situations where his consent is not required, the provision of samples, handwriting, including sanctions, may be applied to a person, in accordance with Art. 308 of the Criminal Code.If a citizen did not appear on call to the court, to the interrogating officer / investigator for no good reason, he may be brought in by force. In case of disclosure of information about the preliminary investigation, the subject is liable under article 310 of the Criminal Code.

Representation Institute

In cases of abuse, the consequence of which was the death of a citizen, his rights under Art. 42 of the CPC, go to one of those close. If they are absent or unable to participate in the proceedings, to any of the relatives. According to h. 9 tbsp. 42 Code of Criminal Procedure, if a legal entity acts as a victim of a crime, a representative shall participate in the case on his behalf. Involving a proxy in production does not deprive the victim of the legal opportunities enshrined in the rule in question.

Art. 42 Code of Criminal Procedure: Comment

Part one of the norm establishes the grounds on which the subject receives the status of a victim of a crime. They are:

1. Physical harm. They call the damage caused to the health of a citizen. It can be expressed in bodily injuries, disorders of body functions, loss of previous capabilities and abilities.
2. Property damage. It is defined as losses minus a defect in the good. Simply put, this harm is the difference in the property status of a person formed as a result of a crime. Property loss includes lost profits.
3. Moral injury. It involves moral and physical suffering provoked by the unlawful actions of another person, violating the moral rights of the victim or encroaching on other intangible benefits.

A citizen who has suffered from a crime, as well as from any other act prohibited by law, which was committed by an insane person, receives victim status regardless of citizenship, mental / physical condition, age, or other individual characteristics. The degree of completeness of the assault, as well as the availability of information about the attackers, does not matter for attracting the subject as a victim.

Responsibilities and Legal Opportunities

Considering Art. 42 Code of Criminal Procedure with comments experts, it can be noted that experts pay special attention to a rather impressive list, enshrined in part two. A citizen who has been the victim of an assault, acting as a party to the proceedings on the prosecution side, is endowed with a large number of opportunities. Realizing all his rights, the victim continuously monitors the movement of production, participates in the prosecution of a citizen who committed an infringement and inflicted damage on him. At the same time, being one of the key carriers of evidence, the subject must fulfill the procedural obligations established by the norm. Thus, the victim must appear upon a call to court, to the interrogating officer / investigator, to give truthful testimonies at confrontations, interrogations and during identification. In addition, he is obliged to comply with coercion when performing such necessary investigative procedures as medical examination, examination, seizure, and so on. Failure to comply with the requirements of the law will entail the application of rather stringent measures of responsibility, up to the imposition of punishment under the Criminal Code.

The nuances of the norm

The definition of the victim used in the first part of the article is significantly different from the interpretation of the term used in the previous Code of Criminal Procedure. Currently, not only a citizen, but also a legal entity can be recognized as a victim of an infringement. We are talking about an organization with operational management, ownership or households. maintaining property that meets its obligations, is capable of acquiring and exercising property and property rights on its own behalf, be responsible, and act as a defendant or plaintiff.In the current practice, there are still not many cases in which the legal entity is the victim. According to analysts, however, the viability of this innovation is theoretically indisputable. The essence of the crime victim as a participant in the proceedings is determined by the fact that the damage was done to him personally. In addition, the determining factor is the fact that a citizen who has become a victim is the most important carrier of accusatory evidence. He, as an eyewitness to the crime, provides this information to authorized bodies during interrogation. Given these circumstances, the legislator also determined the procedural position of the victim of the infringement, delimiting it from the status of a civil plaintiff. According to experts, after the incorporation of the provisions on the legal entity into the norm, it merges with the representative of the victim, since the agent of the organization directly participates in the case. This citizen personally was not harmed, he was not an eyewitness of the event, and if he was, it was only as a witness. As a result, as analysts conclude, its functions do not differ from the tasks of a civil plaintiff, who claims for compensation for property or moral damage that arose as a result of an encroachment on business reputation.

Important point

Often, especially when committing serious crimes, the death of the victim occurs. The legislation provides for the transfer of the legal capabilities of the deceased person to his successors. In this case, the heirs receive a full range of rights without any restrictions. In addition, the duties of the deceased citizen also pass to the successors. The COP gave its clarification regarding this rule. The court indicated, in particular, that this provision could not be regarded as precluding the transfer of the rights of the deceased victim to more than one relative.

Conclusion

In the conditions of increasing dispositiveness and private principle in criminal proceedings, the value of the victim of the assault as a party to the prosecution will only increase. The subject has already received the opportunity to appeal against prosecutorial and investigative decisions to refuse to initiate proceedings and its termination. He has the right to reconciliation with a person accused of a crime, as a result of which the latter is released from liability. Particular attention is paid in practice to the victim's ability to testify (part two, paragraph 2 of article 42 of the Code of Criminal Procedure), while the subject may refuse to provide certain information. In particular, he has the right not to testify against relatives and himself. However, the norm indicates the obligation to testify at interrogation. It seems that it should be implemented taking into account the established restrictions. Strengthening the procedural status of the victim is a natural phenomenon. It is determined by the essence of the state, in which the interests of the individual are above all in all areas of relations. At present, the legislator has not been able to solve all existing issues related to the procedural status of the victim. The victim of the crime finds himself in a very difficult situation if the prosecutor refuses to support the prosecution in court.