Some issues of the application of the rules on the judicial fine

Sychev Dmitry PhD in Law Associate Professor of the Department of Criminal Procedure and Criminalistics of the St. Petersburg Law Institute (Branch) of the University of the Prosecutor's Office of the Russian Federation 194354, Russia, g. Saint Petersburg, ul. Sikeirosa, 12 ds999rus@rambler.ru Other publications by this author

       The novels about the judicial fine (Article 76.2 of the Criminal Code of the Russian Federation, Article 25.1 of the Criminal Procedure Code of the Russian Federation, etc.)^[1] are one of the successive steps of the legislator to strengthen and implement the principles of justice and humanism in criminal law and the process. The corresponding incentive to the positive post-criminal behavior of the person who committed the crime, in this case, the law determined the possibility of releasing such a person from criminal liability and replacing his criminal punishment with a monetary penalty.

     Thus, according to Article 25.1 of the Code of Criminal Procedure of the Russian Federation, the court, on its own initiative or based on the results of consideration of a petition filed by an investigator with the consent of the head of the investigative body or by an inquirer with the consent of the prosecutor, has the right to terminate a criminal case or criminal prosecution against a person, suspect or accused and assign to this person a measure of a criminal nature in the form of a court fine. At the same time, the indispensable conditions for the application of such a procedural procedure are, in accordance with Article 25.1 of the Code of Criminal Procedure and Article 76.2 of the Criminal Code, the commission of a crime of small or medium gravity, as well as the established fact of compensation by the person who committed the crime for damage or otherwise making amends for the damage caused by the crime.

     Termination of a criminal case or criminal prosecution in connection with the appointment of a criminal law measure in the form of a court fine is allowed at any time of the criminal proceedings before the removal of the court to the advisory room for the verdict, and in the court of appeal - before the removal of the court of appeal to the advisory room for a decision on the case.

       Accordingly, the judicial fine in the law is distanced from the types of punishment (Article 15.2 of the Criminal Code of the Russian Federation) and is named as "another measure of a criminal nature", for the implementation of which a special algorithm has been developed for its application by the court (Chapter 51.1 of the Criminal Procedure Code of the Russian Federation), which does not carry the legal consequences of a criminal record.

       To date, the application of these standards is becoming more widespread.

    So, if in 2017 the courts of the Russian Federation decided to terminate 16,888 criminal cases and apply a judicial fine to the persons accused of them, which amounted to 2% of the total number of cases considered by the courts with a final decision (837,517), then in 2018 the same indicator was 3.6% or 29,431, and in 2019 6.41% or 47639 ^[2]. Thus, the number of cases terminated in connection with the application of a court fine has increased by more than 3 times during the period of validity of this norm and continues to grow.

    The above statistics indicate the relevance of the legal mechanism created by the legislator. At the same time, the current practice has highlighted a number of problems in its practical implementation. These include the problem of compensation for damage caused by a crime in criminal cases of crimes with the so-called formal composition.

   The most important condition for the application of the rules on a judicial fine is compensation for damage or otherwise making amends for the harm caused by the crime (76.2 of the Criminal Code of the Russian Federation).

    By damage, the Plenum of the Supreme Court of the Russian Federation ^[3] proposes to understand property damage that can be compensated in kind (in particular, by providing property in return for lost, repair or correction of damaged property), in monetary form (for example, compensation for the cost of lost or damaged property, medical expenses), etc., and by making amends for damage property, including monetary compensation for moral damage, rendering any assistance to the victim, apologizing to him, as well as taking other measures aimed at restoring the rights of the victim violated as a result of the crime, the legitimate interests of the individual, society and the state.

  The legislator has not established restrictions on the application of these norms in relation to formal or so-called non-investigative structures, where there is no victim in personified form, and harm, as a rule, is inflicted on public public and (or) state interests. At the same time, the amount of possible material (monetary) compensation or compensation for such harm, unlike material compositions, always remains at the discretion of the accused (suspect), and the sufficiency of the measures taken is subjectively assessed by the law enforcement officer.

      At the same time, among individual scientists and practitioners (A.V. Makarov, A.A. Kazanov, etc.), relying on local judicial practice ^[4], there is an opinion that non-compensation of damage to suspects (accused) and non-compensation of harm, in general, does not prevent the application of the rules on a court fine, i.e.K. "... some elements of crimes do not provide for the occurrence of any consequences and do not suggest possible options for compensation for damage or compensation for harm due to the absence of such, i.e. they are crimes with a formal composition"^[5].

    Citing as an example the crime provided for in Part 1 of Article 291 of the Criminal Code of the Russian Federation, the above-mentioned authors claim that in this case the condition of compensation for damage and compensation for the damage caused cannot be fulfilled, because in fact the damage has not been caused to anyone.

    In practice, the possibility of termination on the basis of Article 25.1 of the Criminal Code of the Russian Federation of attempted crimes is interpreted in different ways ^[6].

        Such a statement seems to us extremely controversial for several reasons.

    First. Harm is caused by any crime. In the case of the so-called formal composition, the nature of this harm is immaterial, i.e. it is not associated with physical impact on a person or material objects of the outside world. Harm can be inflicted on public relations, produce negative changes in social activities, disrupt the order of the system of public relations, deform and introduce elements of disorganization into the established legal order. According to the legal position of the Constitutional Court of the Russian Federation, expressed in the Definition of October 26, 2017 N 2257-O, socially dangerous consequences of a committed crime - depending on the design of its composition: material or formal - may or may not be among its mandatory features. At the same time, the absence of indications of such consequences in the disposition of the corresponding article of the Special Part of the Criminal Code of the Russian Federation as a sign of the composition of the crime provided for by it does not mean that the commission of this crime does not entail harm or a real threat of its infliction.

    Second. The principal possibility of compensation for such harm follows from the text of the Plenum, which speaks of "... taking other measures aimed at restoring the legitimate interests of ... society and the state violated as a result of the crime ^[3].

    The third. The consequence of any unfinished material crime committed against an individual, in the absence of material harm, is, at least, causing moral harm to this person, without stating compensation for which, it is problematic to talk about the completeness of making amends for the harm caused by the crime.

   For the above reasons, we equally do not share the position of the authors, who speak about the possibility of applying the rules on a judicial fine only in cases where there is a specific victim ^[7].

      We also see support for this position in judicial practice.

      From Z. accused of committing illegal gambling with the use of gaming equipment outside the gambling zones established by law, without a duly obtained permission to carry out gambling activities in the gambling zone, i.e. a crime provided for in Part 1 of Article 171.2 of the Criminal Code of the Russian Federation, the preliminary investigation body received an application to initiate a petition before the court on the termination of the criminal case and the appointment of a criminal law measure in the form of a court fine in accordance with Article 25.1 of the Code of Criminal Procedure of the Russian Federation, which was satisfied.

    In support of his petition, the investigator indicated that Z. during the preliminary investigation, he admitted his guilt in committing the specified crime in full, repented of what he had done, and gave exhaustive confessions. The equipment that was used by Z. for the organization and conduct of illegal gambling activities, it was seized during the inspection of the scene of the incident, which excludes the possibility of its further use in illegal activities. Compensation to the accused for the harm caused to the interests of the state in the sphere of organizing and conducting gambling by any means is not provided for by the current legislation.  Thus, according to the preliminary investigation body, it was established that there are grounds provided for in Part 1 of Article 25.1 of the Criminal Procedure Code of the Russian Federation for the termination of the criminal case against the accused and the appointment of criminal law measures in the form of a court fine in accordance with Article 76.2 of the Criminal Code of the Russian Federation.

        The Frunzensky District Court of St. Petersburg, having examined the case materials, despite the categorical objections of the state prosecutor, which consist in the fact that the seizure of funds of criminal activity and the admission of guilt by the accused cannot be a proper compensation for harm, without initiative actions on the part of the accused (suspect), found the investigator's petition justified and granted it.  Motivating its decision, the court of first instance pointed out that Z. we have not been convicted before, we are being brought to criminal responsibility for the commission of a minor crime for the first time, there is no victim in the case who could be compensated for the damage caused, there is no material damage in the case.

      The St. Petersburg City Court, on the basis of the prosecutor's submission, canceled the decision of the district court and refused to satisfy the investigator's petition, establishing at the same time the absence of the victim and the harm caused by the crime to the interests of the state, and the fact that the harm caused by the crime has not been compensated ^[8].

    An example of non-material compensation for non-material harm in this case, in our opinion, can serve as an active public position of a suspect (accused, defendant) recorded on electronic media, aimed at counter-propaganda of gambling addiction, illegal gambling (creation of thematic sites, speaking in broadcasts, etc.). A variant of material compensation for non-material harm caused can be the provision of monetary assistance appropriate medical (psychological) rehabilitation centers.

       The same scheme of compensation for damage to public relations caused by a formal crime may be applicable to the compositions provided for in Part 1 of Article 228 of the Criminal Code of the Russian Federation (in this case, additional factors of compensation for non-material damage may be the independent registration of a person who committed a crime and uses drugs in a drug dispensary with simultaneous admission to treatment or successful campaigning for these purposes of other drug addicts persons) ^[9]. For example, by the resolution of the Ruzaevsky District Court of the Republic of Mordovia dated June 28, 2017, the criminal case against K., accused of committing a crime under Part 1 of Article 228 of the Criminal Code of the Russian Federation, was terminated in accordance with Article 25.1 of the Criminal Procedure Code of the Russian Federation with the imposition of a court fine in the amount of ten thousand rubles. The court motivated its decision by the fact that K. made amends for the harm caused by the crime by voluntarily performing community service in the "Social Rehabilitation Center for Minors" and donating money to this institution for charity. A similar decision in connection with the defender's complaint was made by the St. Petersburg City Court, which overturned the decision of the Kuibyshev District Court of St. Petersburg dated 25.04.2019 on the refusal to satisfy the petition for termination of the criminal case in accordance with Article 25.1 of the Criminal Procedure Code of the Russian Federation, as well as the verdict against G. and terminated the criminal case against G. with the appointment of a measure of criminalof a legal nature in the form of a court fine in the amount of 8,000 rubles. In substantiation of its legal position, the court pointed out that "... convict G. cooperates as a volunteer in the St. Petersburg Charitable Foundation <...> in the project "Prevention of socially significant diseases among people who use drugs and social support aimed at their medical and social rehabilitation". In May, June 2019, convict G. transferred funds to the fund's account as a voluntary donation." In addition, the appellate instance noted that actions aimed at making amends for the harm caused, and indicating a reduction in the degree of public danger of the crime, neutralizing its harmful consequences, cannot be the same in all cases, and are determined depending on the specifics of a particular act. And according to the meaning of the law, a judicial fine as a measure of a legal nature and a fine imposed by a court in the form of punishment cannot be considered commensurate in terms of legal consequences, since the imposed punishment generates a criminal record in G. ^[10]. Similar judicial practice takes place in other regions ^[11].

       A large layer of criminal cases considered by the courts of St. Petersburg with the application of a criminal penalty are criminal cases of crimes provided for in various parts of Article 327 of the Criminal Code of the Russian Federation (in particular, the use of deliberately forged certificates of registration at the place of residence (migrants), the submission of a deliberately forged disability certificate, etc.).

      In this case, the courts, coming to the conclusion about the possibility of applying a criminal law measure, a judicial fine, consider "obtaining official registration at the place of residence", "sincere repentance for what they have done", "due conclusions from what they have done", "the obligation not to violate the norms of the legislation of the Russian Federation in the future", "registration for place of stay", etc.

     The application of the norms of Article 25.1 of the Criminal Procedure Code of the Russian Federation in cases where the crime was not completed due to circumstances beyond the control of the accused, assumes the absence of material harm, but the established moral harm is subject to mandatory compensation by sincere repentance and apology to the victim (if any). At the same time, the law also does not prohibit if the sincerity of such repentance is supported by a monetary amount or other forms of material or non-material compensation.

   In other words, the damage caused by the crime can be compensated in any form, including monetary form, which allows compensating for the negative changes caused by the crime to public relations protected by criminal law. But what are the limits of possible material compensation for non-material damage caused. The law does not contain at least an approximate guideline for such monetization. The only criterion remains the proportionality of such compensation to the nature and public danger of the crime committed.

      Thus, a real proportionate compensation for any harm caused by a crime, as required by law, should be an indispensable condition for the application of the rules on a judicial fine, regardless of which crime is in question: with a formal composition or a material one. The broad interpretation and application of Article 76.2 of the Criminal Code of the Russian Federation according to the scheme: formal composition ? no actual harm has been caused by the crime ? it is impossible to compensate for such harm ? there are no obstacles to the application of a court fine, contrary to Article 6 of the Criminal Procedure Code of the Russian Federation unreasonably improves the position of the suspect (accused, defendant), actually perverts the essence of justice and will become an additional corruption factor when making such a decision.