The activities of the investigator, the inquirer to ensure compensation for property damage to the victim

Chabukiani Oksana Alekseevna ORCID: 0000-0003-0035-4469 Doctor of Law Professor; Department of Criminal Procedure; St. Petersburg University of the Ministry of Internal Affairs of Russia Professor; Department of Criminal Procedure; St. Petersburg Academy of the Investigative Committee of the Russian Federation 191015, Russia, Saint Petersburg, Pilyutov ave., 1, room 733 oksana_kartohina@mail.ru Other publications by this author

Zaitseva Elizaveta Vladislavovna ORCID: 0000-0002-8138-1647 PhD in Law Senior Lecturer; Department of Criminal Procedure; Saint Petersburg University of the Ministry of the Interior of Russia. 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1, room 728 liza.nasambaeva@mail.ru

One of the purposes of criminal proceedings is to protect the rights and legitimate interests of persons and organizations affected by crimes (paragraph 1, Part 1, Article 6 of the Criminal Procedure Code of the Russian Federation (hereinafter – CPC RF).

The obligation to provide compensation for the harm caused by a crime is imposed on the State, including in the person of its state bodies and officials (Article 52 of the Constitution of the Russian Federation).

The following persons dealt with issues of compensation for the rights of the victim and termination of criminal proceedings or criminal prosecution in connection with reconciliation with the victim: B.B. Bulatov, L.V. Golovko, A.G. Dyk, Z.Z. Zinatullin, V.V. Kalnitsky, A.M. Karimov, V.N. Kudryavtsev, A.Y. Sadov, N.K. Slivko, V.Yu. Stelmakh, R.G. Khasanshina, O.V. Khimicheva, P.S. Yani and others.

In their works, the authors proposed ways (alternatives) to compensate for the damage caused by the crime to the victim; they developed measures of a criminal law nature, including ensuring the existence of a fund for victims - a guarantor of 100% compensation for damage to the victim and with the right to file a recourse claim to the convicted person for the return of the spent recovery amount.

Harm is usually understood as any adverse consequences, destruction, or diminution of personal or property benefits. Causing harm or a real threat of causing such harm is a prerequisite for committing a socially dangerous act, which is the actual basis for a person to acquire the procedural status of a victim in criminal proceedings.

In accordance with paragraph 3 of Resolution No. 17 of the Plenum of the Supreme Court of the Russian Federation dated June 29, 2010 "On the practice of applying by courts the norms Regulating the victim's participation in criminal proceedings", the procedural status of the victim is established from his actual position and "is only formalized by the resolution, but is not formed by it".

The concept of property damage is not identical to the concept of damage. Thus, the damage is only an integral part of the harm and involves some property losses for the victim, while the harm is considered in the legislation (art. 1064 of the Civil Code of the Russian Federation) like any diminution of a legally protected tangible and intangible good, which may also be intangible.

One of the types of possible harm caused by a crime is property damage. Its peculiarity lies in the fact that it can always be expressed in a specific amount of money, which in the framework of a criminal case is confirmed either by checks, receipts for the acquisition of property, the results of a commodity examination, according to the victim or his legal representative, or by other means of forming evidence. In accordance with the position of the Constitutional Court of the Russian Federation, expressed in Resolution No. 1-P of January 31, 2011, civil claims for compensation for property damage caused by a crime, regardless of the type of legal proceedings, are resolved in accordance with the norms of civil legislation. Hence, a statement of claim must always be submitted in writing ^[10]. The right to file such a claim is explained to the victim when the decision on recognition of the victim is announced.

In the event that harm has been caused to a legal entity, the head of the organization or an individual representative, whose powers are fixed in a duly executed power of attorney, can directly represent his interests, including in terms of compensation for property damage, in criminal proceedings, exercise rights and procedural duties on his behalf. Despite the fact that the obligation to provide a power of attorney for a representative of a legal entity to participate as a victim is not legally fixed, in most cases investigative practice develops in such a way that a power of attorney is a mandatory basis for recognizing a person as a victim in a criminal case in which damage has been caused to the property or business reputation of a legal entity.

Taking into account the possible time frame of the criminal case, as well as the socially dangerous consequences that may occur, including the death of a person who was directly injured as a result of the commission of a crime, or when death occurs for other reasons unrelated to the act under investigation, the victim's status may be extended to a close relative or relative representing his interests. From here, groups of victims can be distinguished: the actual and legal successor (delegated) victim. Regardless of the type of victim, from the moment the relevant decision is issued, the status of a participant directly of an individual or legal entity through his representative or a delegated person determines the acquisition of the right to compensation for damage caused by a crime, including property.

Despite the connection with the crime, the investigation of a specific criminal case and the application of the final decision on it, the procedure and procedural features of compensation for harm are based on the norms of civil legislation. According to paragraph 1 of Article 1064 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), damage caused to the person or property of a citizen, as well as to the property of a legal entity, must be compensated by the person who caused such damage. Therefore, compensation for harm in a criminal case is possible only when the person to be brought as an accused has been identified and a guilty verdict has entered into force against him. If the person to be brought as an accused has not been identified, then under the current criminal procedure legislation it is impossible to receive compensation for the harm caused by a socially dangerous act.

Despite the humanization of criminal proceedings and significant changes in terms of pre-trial proceedings, the expansion of the procedural status of the victim, the issue of compensation for damage for quite a long time, as O.A. Malysheva ^{[4, p. 297]} and V.A. Maslov ^{[7, p. 224]} rightly point out, does not become a core issue either in legislation or in investigative legislation.judicial practice.

During the investigation period, it is the responsibility of the person in charge of the criminal case (investigator, inquirer) to take measures aimed at ensuring subsequent compensation for the damage caused by the crime. In order for the rights of persons involved in the criminal process to be compensated for damages to be maximally realized, the investigator, the inquirer is obliged to comply with a number of prescriptions of the Code of Criminal Procedure of the Russian Federation and to carry out the following measures:

1. In relation to the participants on the part of the prosecution:

1.1 Explain to the victim his rights, including the right to file a civil claim and the right to withdraw from it ^[5].

The filing of a civil claim in a criminal case determines the acquisition by a person of the procedural status of a civil plaintiff, with the subsequent exercise of the powers provided for in Article 44 of the Code of Criminal Procedure of the Russian Federation after the relevant resolution is issued by the investigator or inquirer. A person who is an accomplice to a crime (even when the crime was committed through mental or physical coercion that does not exclude liability) and the co-causer of harm cannot act as a civil plaintiff, demanding that other accomplices reimburse the amounts they paid to the victim. This rule is especially relevant in the realities of the possibility of separating a criminal case into separate proceedings against a person who has concluded a pre-trial cooperation agreement. Such a participant loses the status of a suspect, accused, or defendant in the framework of the main criminal case, but this does not exclude the possibility of the victim to file claims for damages in both the main and separate criminal cases. In the literal interpretation of the law, such loss of status applies only in the case of a pre-trial cooperation agreement, although the Constitutional Court of the Russian Federation did not specify the grounds, defining the specifics of using testimony as witnesses in the process of proving persons whose criminal cases were separated into separate proceedings (Ruling No. 96-O dated January 14, 2016 "On the refusal to accept for consideration the complaint of citizen Denis Alexandrovich Sugrobov for violation of his constitutional rights by parts one and two of Article 154 of the Criminal Procedure Code of the Russian Federation").

Neither will a person who has been harmed by the long-term consequences of a crime be a civil plaintiff. Therefore, the investigator and the inquirer are not only obliged to explain the rights of the victim, but also to establish facts indicating both the existence of a crime and the harm caused as a result of its commission, the amount of such harm, the existence of a causal link between the crime and the socially dangerous consequences that have occurred, including those related to property damage to the victim.

1.2 Take measures aimed at establishing or confirming the value, the amount of damage caused, and the possible location of the property.

First, the type and amount of damage should be determined by conducting a series of investigative actions. Initially, the information is established as part of the interrogation of the victim. Thus, the characteristics of the stolen property (size, color, material of manufacture, brand, distinctive features, identification numbers, damage, etc.) are to be clarified, and the following questions are being clarified: are there any documents confirming ownership? If not, were there any photos or videos of such property? if so, can the victim present them? During the interrogation, the property should be described as much as possible, so that when the property is discovered, the investigator and the inquirer are sure that it is the object of the crime in front of them, and not similar property.

In addition to the interrogation, it is necessary to demand legal documents and everything related to the confirmation of the fact that the property is owned (boxes, cash or commodity receipts, including by providing extracts from online transfers, invoices, purchase and sale agreements, other agreements that may specify the characteristics of the stolen property, etc.). All of the above can be attached to the materials of a criminal case both at the request of the victim himself, and at the initiative of the investigator or inquirer by removing them during seizure, search, and inspection. After the seizure, voluntary extradition, the objects must be inspected. After that, the issue of recognizing such objects as material evidence should be resolved as a means to establish circumstances relevant to the criminal case.

In addition to the information received from the victim, the investigator or inquirer must check the stolen property according to forensic records, especially if the subject of the crime is a numbered item, and send a written instruction to the body of inquiry to carry out operational search measures in order to establish the possible location of the stolen person. In case of theft of precious metals, jewelry, antiques, check the most typical places of sale of such items: pawnshops, antique shops or shops, etc.

1.3 Apply measures aimed at preventing the continuation of criminal acts aimed at harming the victim.

Unfortunately, such measures today do not fully guarantee the exclusion of the continuation of criminal acts against the property of victims. Especially in connection with the emerging trend of an increase in the number of crimes involving the use of information technology. Thus, according to the official statistics of the Ministry of Internal Affairs of the Russian Federation on a brief description of the state of crime in Russia, every third crime is committed using information and telecommunication technologies. In 2023, such crimes were registered by 29.7% more than in 2022. More than half of all registered crimes (53.5%) in 2023 were theft of other people's property, 433.7 thousand of them by fraud (+26.4%). The commission of fraud using information technology is particularly alarming, as a large number of victims do not contact law enforcement agencies, believing that the perpetrator will not be found, and if identified, the damage will not be fully compensated. Moreover, having provided for the constitutional right of the victim to compensation for damage caused (Article 52 of the Constitution of the Russian Federation), there is no term criminal compensation in domestic criminal and criminal procedure legislation ^{[6, 52]}, although they are the subject of research ^[8]. The topicality was also confirmed at the XII St. Petersburg International Legal Forum at the panel discussion "Criminalistics of Future Justice" on June 28, 2024 by N.S. Kudryashkin, Managing Director and Head of the Investigation Department of the Security Department, who announced that representatives of the security services of banks blocked more than 40 million suspicious calls daily, the vast majority of which were an attempt to deception and seizure of funds. The available technical possibilities for countering crime lead to discussions among scientists and law enforcement officials about the need to expand the list of actions that allow identifying and recording traces of socially dangerous acts. So, as part of the online meeting "New Investigative Actions" on August 23, 2024, A. I. Zazulin proved the possibilities and expediency of consolidating an online search, which makes it possible to identify possible episodes of crimes, including in the field of economics, as well as to provide automated database analysis that allows using Anti-laundering programs to identify criminal schemes., and computer simulation. We believe that it is better to envisage such actions not as investigative actions, but as operational search measures, calling them an online survey requiring judicial permission to conduct. Our opinion is based on the following reasoning: firstly, these actions are aimed not only at obtaining evidence solely on the existing episode under investigation, but also at identifying new episodes of criminal activity; secondly, such actions are associated with a specific IT address, and not a specific person, which does not allow us to establish the status or involvement. a specific person who has access to such an address is capable of committing a socially dangerous act; thirdly, in the framework of operational investigative activities, it is easier to ensure the confidentiality and safety of the information received, since the materials received will be stored according to the rules of secret record keeping. At the same time, the results of the search can be reviewed at the final stage of the investigation by both the participants of the defense and the participants of the prosecution.

Also, a positive measure to ensure the safety of the victim's property is the possibility, developed by practice and expressed in the draft law, of a short-term suspension of monetary transactions on the accounts of persons involved in criminal cases, if there is reason to believe that these accounts are used in the commission of crimes.

2. In relation to the participants on the part of the defense.

2.1 Identify the person who is responsible for the harm caused by a socially dangerous act.

Not in all cases, the accused is responsible for such harm. Thus, in accordance with the Civil Code of the Russian Federation, instead of the accused, such persons may, in cases prescribed by law, be: 1) legal entities or individuals, if harm is caused by the accused, who is their employee in the performance of their labor, official or official duties; 2) legal entities or citizens who own a source of increased danger through which the accused caused harm to the victim; 3) an insurance company in which the accused (for example, who committed a violation of traffic rules or the operation of vehicles provided for in Article 265 of the Criminal Code of the Russian Federation) insured his liability through voluntary or compulsory insurance in favor of possible victims in the future, but which disputes its obligation to pay insurance compensation to the victim. If the insurance indemnity is not sufficient to fully compensate the victim for the damage caused, the accused will have to compensate for the difference between the insurance indemnity and the actual amount of damage (art. 1072 of the Civil Code of the Russian Federation); 4) parents (adoptive parents) or caregivers (citizens or relevant educational, medical institutions, social protection institutions, etc., who by virtue of the law are the trustee) a minor between the ages of 14 and 18; 5) the guardian of a person who has been declared legally incompetent, or a legal entity that is required to supervise him, unless they prove that the harm was not their fault. At the same time, the guardian must also have sufficient funds to compensate for the damage (art. 1076 of the Civil Code of the Russian Federation).

2.2 Explain to the accused the possibility and legal consequences of voluntary compensation for harm.

One of the elements of restorative justice is the possibility of damage restoration. However, it is impossible to fully recognize the formation of such an institution. We see it as a mistake of some investigators, inquirers, who do not consider it necessary to focus attention when explaining the rights to the possibility of using alternatives to punishment in case of compensation to the victim for the damage caused. We agree with M.Y. Yusupov's opinion, in particular, that the institution of a judicial fine is aimed at achieving not only restoration of the damage caused, but also at stimulating positive post-criminal behavior of the suspect, the accused ^{[11, p. 125]}. We support V.Y. Stelmakh's opinion that the legislator did not limit the use of alternatives to punishment by constructing the elements of the incriminated crime ^{[9, pp. 118-119]}.

According to judicial statistics provided by the Judicial Department at the Supreme Court of the Russian Federation, there is a positive trend in the implementation of elements of restorative justice. Thus, in 2017, due to the imposition of a criminal law measure in the form of a court fine, 18346 criminal cases were terminated, in 2018 - 32050 criminal cases, in 2019 – 51213 criminal cases, in 2020 – 20171 criminal cases, in 2021 – 36791 criminal cases, in 2022 – 20171 criminal cases, in 2023 – 17,844 criminal cases. However, every year, according to the Judicial Department of the Supreme Court of the Russian Federation, the courts refuse to satisfy about 800-850 petitions of participants for termination of criminal prosecution due to the inability to apply the mentioned measure in the form of a court fine. This is despite the fact that the analysis showed a range of damage with such a measure from 5,000 to 4 million rubles. We believe that the number of refusals may be lower if we provide for the possibility of not only one-time compensation for damage, but also the conclusion of a pre-trial agreement on compensation for damage. Within the framework of the agreement, the terms and procedure for compensation of property damage or other compensation for the damage caused by the crime would be determined. Moreover, such models of agreements have already been proposed in the legal literature. For example, in M.N. Tarsheva's dissertation research on the topic: "Conciliation and restorative procedures in pre-trial proceedings" (2022).

Our conclusion is related to the fact that the material damage, according to the data of the Main Information Analytical Center on the State of Crime in Russia for completed and suspended criminal cases in 2023, amounted to 587570938 rubles. More than half of all registered crimes are crimes against property (53.5%), including many of which belong to the categories of minor or moderate severity, which will allow the use of alternatives to punishment, as well as the termination of criminal prosecution. But not all the accused have the opportunity to immediately compensate for the damage caused. At the same time, the imposition of a guilty verdict and the imposition of a sentence of imprisonment for a certain period reduces the victim's chances of compensation, as one of the stimulating facts is lost – the possibility of exemption from criminal liability. To date, in accordance with paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19 "On the application by courts of legislation Regulating the grounds and procedure for exemption from criminal liability," promises, obligations of a person to make amends or compensate for harm in the future are not circumstances allowing a person to be released from criminal liability. This conclusion of the court is based on the existing negative practice of abuse of participants by the defense in terms of refusing subsequent payments when deciding to terminate a criminal case.

2.3 In case of refusal of positive post-criminal behavior and a desire for compensation on the part of the suspect, the accused, the investigator, the inquirer are obliged to promptly resolve the issue of seizure of property.

We consider it possible to expand the list of measures of criminal procedural coercion by providing for a pledge of property ^[3], which guarantees the possibility of the suspect or the accused to compensate for the damage, in accordance with the amount indicated in the final decision on the criminal case.

The pledge of property will be characterized by its objectives, basis and procedure of application. We agree with the opinion of the authors E.V. Kostenko ^[2] and N.O. Egorova ^[1] on the expediency of providing, among other things, an aggregate pledge, extending it to any subject acceptable as collateral, not only in the framework of civil, but also criminal proceedings.

With the help of such a pledge of property, compensation for damage caused by the commission of crimes can be ensured, as well as problems related to the implementation of a civil claim in cases where the participant cannot immediately provide the entire amount to the victim to compensate for the damage caused. A positive aspect of the innovation will be the possibility of unloading the court when considering compensation for damage caused by a socially dangerous act, increasing the chances of restoring the violated rights of the victim, and the convicted person will be forced to be more conscientious about the implementation of legislation. We believe that the condition for such a measure may be common to the grounds for releasing a person from criminal liability – committing a crime of minor or moderate severity for the first time.

Thus, the activity of the investigator, the inquirer, aimed at compensating the victim, consists not only in establishing property that can be seized, but also in a set of measures aimed at clarifying the rights of participants, as well as the possibility of using alternatives to punishment in the case of positive post-criminal behavior of the suspect, the accused, the defendant; establishing the location of property. who was the subject of the crime (both investigative and operational-investigative), the cost of the damage caused to the victim. To date, the elements of restorative justice are only in the formative stages, which requires representatives of the scientific community to develop comprehensive civil law measures that are increasingly influencing alternatives to criminal prosecution and punishment. We propose to provide for the conclusion of an agreement on compensation for damage, which will specify the timing and sequence of payments; as well as expand the list of other measures of a criminal procedural nature by adding a pledge of property.