A Principled Approach to the Reconciliation Procedure: Theory and Practice

Batchaeva Aminat Alkhazovna Senior Educator, Department of Criminal Law and Procedure, North-Caucasian State Academy  369012, Russia, respublika Karachaevo-Cherkesskaya, g. Cherkessk, ul. Sovetskaya, 267 a.batchaeva@mail.ru Other publications by this author

The Criminal Procedure Law provides for many grounds for the termination of a criminal case, which are evaluated differently in the doctrine of criminal procedure due to the difference in the coming procedural consequences. More than half a century ago, Professor S.A. Shafer pointed out that the termination of a criminal case fulfills a twofold task: the inadmissibility of bringing innocent persons to criminal responsibility and the release of other persons from criminal liability ^[29], and N. V. Zhogin and F.N. Fatkullin noted that the decision to terminate a criminal case is made in the absence of procedural prerequisites for further continuation production on it ^[9].

Modern procedural scientists reasonably say that the norms of the institution of termination of a criminal case make it possible to solve not only criminal procedural, but also criminal legal tasks of combating crime^[4]. It is noted that, although "exemption from criminal liability by termination of a criminal case (criminal prosecution) is a deviation from the principle of inevitability of responsibility for the crime committed," but it allows to realize "the ideas of justice and expediency of procedural activity"^{[14, p. 17, 28]}. 

V.V. Ivashchenko, formulating the concept of termination of a criminal case, focuses on its elements such as the availability of appropriate powers for an official, the achievement of the appointment of criminal proceedings, a sufficient degree of probability of the existence of the fact of the crime itself^[10].

Among the many grounds for termination of a criminal case, reconciliation of the parties is significant and quite common in practice. As a fully formed institution, reconciliation of the parties has been known to the Russian criminal process since the 19th century^[1]. During this time, there were fundamental differences in reconciliation in criminal cases of public, private-public and private prosecution, which were reflected in the criminal procedure law (Articles 9, 27 of the Code of Criminal Procedure of the RSFSR ^[27], Articles 20 and 25 of the Code of Criminal Procedure of the RSFSR)^[25].

Speaking about the application in criminal cases, scientists note its compromise character, based on the principle of dispositivity ^[28], the possibility of achieving the goals of punishment through reconciliation ^[21], the restoration of social justice ^[3], the need to expand the list of crimes for which reconciliation of the parties is possible ^[28], the possibility of atonement through positive post-criminal behavior ^{[21, C.6]}, the acceleration of the judicial procedure itself ^{[3,C.9; 15]}, the preventive component ^[11] and other positive features of this institution.

However, not all authors are united in a positive assessment of this ground for the termination of criminal cases. So G.S. Dosayeva, based on the results of her survey, writes that exemption from criminal liability in connection with the reconciliation of the parties can give rise to a sense of impunity for the guilty, the opportunity to "buy off" from criminal responsibility. Criminological recidivism of persons against whom the criminal case was terminated due to reconciliation with the victim is 25% ^[6]. The subjectivism of officials is also noted when making the decision in question ^[8], which limits the possibility of using the institution in question at the stage of preliminary investigation ^{[12; 14, p. 20]}. E.V. Kuzbagarova and E.L. Kombarova focus on the lack of a clear legally fixed reconciliation procedure ^[13;11].

We believe that there is a reasonable grain in each of the above judgments. In this regard, it is advisable to consider the institution of reconciliation of the parties from the standpoint of its compliance with the basic principles of criminal proceedings, the principles of criminal procedure.

Research methodology.

To form scientifically-based conclusions in this study, the traditional set of general scientific methods of cognition of legal reality is used: analysis, synthesis, comparison, analogy, formal legal method. Also, the dialectical method of cognition was used during the research.

Research.

The norms of criminal and criminal procedure legislation on reconciliation in general are based on the initial principles, principles of criminal proceedings, but their implementation in practice has certain difficulties. First of all, this concerns the provision on the appointment of criminal proceedings enshrined in Article 6 of the Code of Criminal Procedure of the Russian Federation. When making a decision to terminate a criminal case (both in private criminal cases and in cases of a private-public and public nature), the authorized official is obliged to clearly clarify the position of the victim, since such a decision is directly related to ensuring his rights and legitimate interests. But at the same time, there is an obvious difference in the procedural consequences of the will of the victim about the reconciliation: in private proceedings, the will of the victim, by virtue of the provisions of Part 2 of Article 20 of the Code of Criminal Procedure, is mandatory for the investigator, inquirer and judge and entails the unconditional termination of the criminal case; in private-public and public proceedings (Part 3 of Article 20, Article 25 of the Code of Criminal Procedure The will of the victim is not binding and is only a reason for the investigation body or the court to consider the possibility of termination of the criminal case in connection with the reconciliation of the parties. In this case, public interests prevail over the interests of the victim, not allowing, in our opinion, to fully implement the provisions of Article 6 of the Criminal Procedure Code of the Russian Federation. To form scientifically-based conclusions in this study, the traditional set of general scientific methods of cognition of legal reality is used: analysis, synthesis, comparison, analogy, formal legal method. Also, the dialectical method of cognition was used during the research.

In the list of the rights of the victim, enshrined in Part 2 of Article 42 of the Code of Criminal Procedure of the Russian Federation, there is no indication of the right of reconciliation with the suspect, the accused. In the current legal regulation, the court must clarify this right in accordance with the procedure provided for in Articles 268 and 319 of the Code of Criminal Procedure of the Russian Federation. But the parties can also reconcile in pre-trial proceedings in a criminal case.  As a consequence, for the full implementation of the principle of protection of human and civil rights and freedoms in criminal proceedings, Part 2 of Article 42 of the Code of Criminal Procedure of the Russian Federation must be supplemented with paragraph 4.1 of the following content "to reconcile with the suspect, the accused in accordance with the procedure established by Article 25 of this Code."  A similar right should be explained to the accused, since he can also initiate reconciliation of the parties.  As a consequence, paragraph 15 of Part 4 of Article 47 of the Code of Criminal Procedure of the Russian Federation should be supplemented with the wording "to reconcile with the victim on the grounds provided for in Article 25 of this Code .... " (hereinafter - in the text of the paragraph). The right to reconciliation of the parties in the order of private prosecution is subject to independent clarification by a justice of the peace according to the rules of Article 319 of the Code of Criminal Procedure of the Russian Federation and is not included in the general list of rights of the victim. We believe that timely clarification to the victim of his right to reconciliation will create prerequisites for its full use not only in the course of judicial, but also pre-trial proceedings in a criminal case.

The question of whether the principle of presumption of innocence is implemented in the event of termination of a criminal case in connection with reconciliation of the parties is also ambiguous. Based on the provisions of Article 14 of the Code of Criminal Procedure of the Russian Federation, the guilt of the accused upon termination of criminal proceedings cannot be considered established. However, a number of authors hold a different opinion, believing that the decision to terminate the criminal case, due to the direct requirements of the law to its content, states the established guilt of the accused in the act incriminated to him ^{[7; 6, C.40-41; 3, p.8; 5; 16; 22]}. The Plenum of the Supreme Court of the Russian Federation in the guidance clarifications also indicates the exemption from criminal liability of the person who committed the crime (highlighted by me - A.B.), thereby implying the establishment of the guilt of the person against whom the decision is made to terminate the criminal case ^[20].

This position on the establishment of the guilt of a person being released from criminal liability has certain grounds, since criminal proceedings are faced with the task of preventing the prosecution of innocent persons (Article 6 of the Code of Criminal Procedure of the Russian Federation) and, accordingly, only a person whose guilt in committing a crime is established can be released from criminal liability. In addition, the fact that the suspect or the accused has made amends for the harm caused, as one of the conditions for reconciliation, also indirectly indicates the involvement of a person in the crime committed. Finally, Article 76 of the Criminal Code of the Russian Federation refers to a person who has committed a crime for the first time ^[25] (highlighted by me – A.B.), and the termination of a criminal case on the grounds provided for in Articles 20 and 25 of the Criminal Procedure Code of the Russian Federation excludes the right of a person to rehabilitation.At the same time, the point of view held by the most prominent Soviet procedural scientists M.S. Strogovich and V.M. Savitsky, and shared by many modern scientists, deserves attention, that in the event of termination of a criminal case, it is not permissible to talk about the established guilt of the accused ^{[24;23;2;15, p.240]}.

We believe that the question of the guilt of a person released from criminal liability in connection with the reconciliation of the parties remains open ^{[17;16, p.12; 18]}.  With regard to the procedure for terminating a criminal case in connection with the reconciliation of the parties, it is hardly permissible to talk about a person guilty of committing a crime. This also corresponds to the theoretical and legal position of the Constitutional Court of the Russian Federation regarding the limits of the principle of presumption of innocence in the procedure for terminating a criminal case, formulated by it during the period of the Criminal Procedure Code of the RSFSR: "the decision to terminate a criminal case does not replace the verdict of the court and, therefore, is not an act that establishes the guilt of the accused in the sense that it provided for in Article 49 of the Constitution of the Russian Federation"^[19].

Based on this position, we consider it impossible to make a decision to terminate a criminal case on the grounds under consideration against a suspect, since suspicion in the current procedure of legal proceedings is put forward, in accordance with Article 46 of the Code of Criminal Procedure of the Russian Federation, with a minimum amount of evidentiary material and may not be confirmed during further proceedings. As a consequence, reconciliation with a person who is not really involved in the crime committed, but due to a combination of circumstances endowed with the procedural status of a suspect, will be a mistake of the preliminary investigation body, entailing serious legal consequences. In our opinion, the termination of the criminal case in accordance with Article 25 of the Code of Criminal Procedure of the Russian Federation is permissible only with respect to the accused.

At the same time, it is necessary to make a reservation that since a special basis - reconciliation in a criminal case of a private prosecution (Part 2 of Article 20 of the Code of Criminal Procedure of the Russian Federation) provides for a sufficiently long period of possible reconciliation – up to the removal of the court of appeal to the advisory room for the decision – it must be clearly understood that in this situation we are talking exclusively about the accused person, since the verdict or other decision of the court of appeal has not yet entered into force.

Conclusions.

Thus, an analysis of the existing legal regulation and practice of reconciliation of the parties allows us to conclude that they do not fully comply with a number of principles of criminal proceedings. In this regard, in order to exclude possible errors in the interpretation of the relevant legal provisions and their application, it is necessary to amend the text of the Criminal Code of the Russian Federation and the CPC of the Russian Federation, as well as the current explanation of the Plenum of the Supreme Court of the Russian Federation.

The scope of the results.

We consider it necessary to make appropriate adjustments aimed at the full implementation of the principles of the presumption of innocence, the appointment of criminal proceedings, the protection of human and civil rights and freedoms in criminal proceedings in the text of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 27.06.2013 N 19, excluding from it the mention of the established guilt of the person against whom the criminal case is terminated in accordance with Article 25 The Code of Criminal Procedure of the Russian Federation, as well as reflect the judgment that it is unacceptable for a law enforcement officer to allow wording in the text of the resolution on the termination of a criminal case that testifies to the proof of the guilt of the person against whom the decision to terminate the criminal case is made. As for the provisions of Article 76 of the Criminal Code of the Russian Federation, the expression "A person who has committed a minor or moderate crime for the first time" should be replaced by "a person accused of committing a minor or moderate crime for the first time", which will not change the meaning of this article, but will comply with the provisions of the principle of presumption of innocence.

From Articles 25, 213 of the Criminal Procedure Code of the Russian Federation, it is necessary to exclude an indication of the possibility of reconciliation with a suspect, since suspicion does not have a sufficient set of evidence of the fact that a person has committed the act incriminated to him.

Part 2 of Article 42 of the Code of Criminal Procedure of the Russian Federation should be supplemented with paragraph 4.1 of the following content "to reconcile with the suspect, the accused person in accordance with the procedure established by Article 25 of this Code." The same right to reconciliation must be explained to the accused person in a timely manner. Therefore, paragraph 15 of Part 4 of Article 47 of the Code of Criminal Procedure of the Russian Federation should be supplemented with the wording explaining to the accused the right to reconciliation in accordance with the procedure provided for in Article 25 of the Code of Criminal Procedure of the Russian Federation.

1.                 These changes will help streamline the legal regulation and practice of reconciliation of the parties in Russian criminal proceedings and will bring the norms of the institution in question in line with the principles of criminal procedure.