The procedure for conducting civil or criminal proceedings allows the participation of minors. But the rules for interviewing witnesses are different for children and adults. The participation of a person representing the legitimate interests of the child is required. Most often this is one or both parents.
The participation of a minor defendant in an investigation or judicial proceedings can become a difficult test for him or even psychological trauma. To prevent this from happening to a young witness or suspect, it is necessary to promptly involve a good lawyer for the protection of minors.
His presence during interrogations will help prevent possible violations and allow the situation to be resolved with minimal damage to the psyche and future fate of the child.
Civil proceedings as a form of realizing the right of a minor to protection
The UN Convention on the Rights of the Child, the main international document regulating the rights of children, provides for the obligation of the state to provide the child with the protection necessary for his well-being and to take appropriate legislative and administrative measures for this (Article 3). This provision of the Convention is reflected in Art. 2 of the Constitution of the Russian Federation: “.. recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state.” At the same time, the state is obliged not only to create a system of such protection, which unites various bodies designed to protect the rights and freedoms of citizens, but also to provide for and establish clear procedures for it. According to Art. 46 of the Constitution of the Russian Federation, every citizen is guaranteed judicial protection of his rights and freedoms. This constitutional provision applies to all citizens regardless of their age, and therefore also to minors. Judicial protection can only take place in a certain manner established by law, through the judiciary, which, according to Part 2 of Art. 118 of the Constitution of the Russian Federation, is carried out through constitutional, civil, administrative and criminal proceedings.
The objectives of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of citizens, organizations, rights and interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, and other persons who are subjects of civil, labor or other legal relations. An interested person has the right, in the manner established by the legislation on civil proceedings, to apply to the court for the protection of violated or disputed rights, freedoms or legitimate interests.
As a general rule, the right to go to court is vested in a person whose rights, freedoms and legitimate interests have been violated. Civil procedural legal capacity is recognized equally for all citizens and organizations that, according to the legislation of the Russian Federation, have the right to judicial protection of rights, freedoms and legitimate interests (Article 36 of the Code of Civil Procedure of the Russian Federation). The rights and legitimate interests of minors are called upon to be protected by legal representatives - parents, adoptive parents, guardians and trustees or other persons to whom this right is granted by federal law.
Proceedings in civil cases involving minors are carried out in accordance with the general procedure established by the Code of Civil Procedure of the Russian Federation, taking into account the features set out in Art. 37 “Civil procedural capacity” of the Code of Civil Procedure of the Russian Federation. In accordance with this article, civil procedural capacity is considered to be the ability of citizens who have reached the age of 18 years and organizations to exercise procedural rights through their actions, perform procedural duties and entrust the conduct of a case in court to a representative.
The most important elements in the exercise of civil procedural capacity are the moment when civil capacity arises and the consequences in its absence. Article 37 of the Code of Civil Procedure of the Russian Federation distinguishes four categories of citizens depending on their age and state of health, and this division has its own grounds. Minors, as a special class of citizens, belong to each of the identified categories.
Thus, the first category of the Code of Civil Procedure of the Russian Federation (Part 1 of Article 37) includes citizens who have reached the age of 18 years and, by virtue of this, have acquired full procedural capacity. However, the legislator also includes minors under the age of 18 in this category, while stipulating in Part 2 of Art. 37 of the Code of Civil Procedure of the Russian Federation, that they acquire this right from the time of marriage or declaration of their full legal capacity (emancipated).
The second category of citizens consists of minors aged 14 to 18 years, as well as adult citizens limited in legal capacity in accordance with the procedure established by law. In accordance with Part 3 of Art. 37 of the Code of Civil Procedure of the Russian Federation, the rights and legitimate interests of this category of citizens are protected in court by their legal representatives in the person of parents, adoptive parents, and trustees. However, the participation in the process of minors themselves or citizens recognized as having limited legal capacity is mandatory.
The legislator includes in the third category minor citizens aged 14 to 18 years, who in certain cases have, by virtue of the law’s direct indication of this, full civil procedural capacity. Specifics of the rules of Part 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation is that these rules apply only in cases where the court considers cases that follow:
1) from labor relations. For example, cases of refusal to hire (Article 63 of the Labor Code of the Russian Federation allows employment from the age of 14), cases related to payment for their labor (Article 271 of the Labor Code of the Russian Federation), illegal involvement of minors in overtime, heavy work . In all cases, minor workers have the right to personally defend their rights in court;
2) from civil and family legal relations. From the general rule on judicial protection of the rights and interests of citizens aged 14 to 18 years by their legal representatives, the RF IC provides three exceptions. According to paragraph 2 of Art. 56, art. 62 and 142 of the RF IC, citizens who have reached the age of 14 have the right to independent judicial protection of rights and legitimate interests. Thus, family and civil legislation contains an indication of the possibility of filing a claim (statement, complaint) in court independently upon reaching the age of 14 years in case of violation of his rights and legitimate interests, including in the event of failure or improper fulfillment of duties by parents (one of them). for upbringing, education or abuse of parental rights (Article 56 of the RF IC), as well as with a claim to cancel the adoption (Article 142) and with a requirement to be declared emancipated (Article 27 of the RF Civil Code). One of the features of consideration of cases related to adoption, change of name, surname, patronymic, restoration of parental rights (Articles 5, 59, 72, 132, 134, 136, 143, 154 of the RF IC) is that the court makes a decision only with the consent of a child over 10 years of age;
3) from cooperative legal relations. System analysis Art. 37 Code of Civil Procedure of the Russian Federation, Art. 26 Civil Code of the Russian Federation, Art. 7 of the Federal Law “On Production Cooperatives” allows us to conclude that in cases related to the membership of a minor in cooperatives (membership is allowed from the age of 16), he has the right to personally defend his rights and legitimate interests in court.
The next feature of the rules of Part 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation is that they give the court the right to decide on its own the issue of involving parents (adoptive parents), trustees, and other legal representatives of minors in the case (i.e., these rules are discretionary, unlike the rules of Part 3 of Article 37 Code of Civil Procedure of the Russian Federation). The issue is resolved similarly in cases where the court considers disputes related to transactions involving minors disposing of their earnings received under an employment contract, income of a member of a production cooperative or from carrying out entrepreneurial activities, as well as income (in the form of interest, discount, etc.), which can be received by minors with bank deposits, shares, etc.
The fourth category of citizens includes minors under the age of 14 years. This category of persons, like citizens recognized as incompetent, do not have civil procedural capacity, i.e., the right to independently protect their rights and interests. In accordance with Part 5 of Art. 37 of the Code of Civil Procedure of the Russian Federation, the rights and legitimate interests of these persons are protected in court by their legal representatives - parents, adoptive parents, guardians, trustees or other persons to whom this right is granted by federal legislation.
Thus, a minor can become a participant in civil proceedings - in this case, he either takes independent participation as one of the parties (plaintiff, defendant or applicant), or acts as a participant in the judicial process in the protection of his rights, freedoms and interests by legal representatives.
Separately, it should be noted that a minor can participate in civil proceedings as a third party, but such participation is permitted if the minor has full civil procedural capacity. In this case, we are also talking about the independent participation of a minor in civil proceedings. Based on Part 1 of Art. 69 of the Code of Civil Procedure of the Russian Federation, which states that a witness can be any person who knows any circumstances related to the case; a minor in civil proceedings can act as a witness.
Confidentiality of information
The Criminal Code of the Russian Federation prohibits the dissemination of information about children who have suffered as a result of a crime. The ban applies to any information: personal data, photographs, video materials, voice recordings. It is especially important to maintain confidentiality when a minor has been the victim of sexual assault. By introducing such restrictions, legislators pursued one goal - to protect the child from attacks from the environment and ridicule of peers.
Failure to comply with the ban entails serious consequences: from a fine (150-350 thousand rubles) to imprisonment for a period of 5 years. According to Part 3 of Article 137 of the Criminal Code of the Russian Federation, public speaking or publication of facts in the media can serve as illegal dissemination of information.
Minor as a participant in civil proceedings
As was established earlier, a minor, as a participant in civil proceedings, can act independently as one of the parties (plaintiff, defendant or applicant), be a participant in the legal process in the protection of his rights, freedoms and interests by legal representatives, or act as a witness or third party.
Considering the participation of a minor in civil proceedings as an independent person, it should be noted that he has all the procedural rights enshrined in Art. 35 of the Code of Civil Procedure of the Russian Federation, namely such rights as:
- get acquainted with the case materials, make extracts from them and make copies. Actual familiarization with the case materials can occur both during the trial and outside it;
- challenge. It should be noted that in accordance with Art. 54 of the Code of Civil Procedure of the Russian Federation, representatives have the same right;
- provide evidence and participate in its research;
- ask questions to other persons participating in the case, witnesses, experts and specialists;
- file petitions, which allows a person participating in the case to bring his procedural requirements to the court in the established procedural form. Petitions filed outside of court proceedings must also be considered by the court in the manner established by procedural law;
- give explanations to the court orally and in writing;
- present your arguments on all issues arising during the trial, object to the requests and arguments of other persons participating in the case;
- appeal court decisions;
- use other procedural rights provided by law in civil proceedings.
Speaking about procedural duties, attention should be paid to their heterogeneous nature, for example, if a person participating in a civil process cites various circumstances as arguments as the basis for his claims and objections, then he is obliged to provide evidence of the existence of these circumstances.
The court is entrusted with the obligation to fully assist the parties participating in civil proceedings in the exercise of their rights, facilitate their implementation, and explain to the parties the consequences of committing or not performing certain procedural actions. This duty of the court is specified in Art. 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 24, 2008 No. 11 “On the preparation of civil cases for trial.”
As noted above, paragraph 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation provides for the right of minors aged 14 to 18 years to independently defend their interests in cases provided for by federal law, in cases arising from civil, family, labor, public and other legal relations. However, the legislator provides for the court the right to involve the legal representatives of a minor in such cases. It is also necessary to note paragraph 19 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the preparation of civil cases for trial,” which states that the judge should discuss the need to involve the legal representatives of the minor in the case.
In this regard, the question arises about the procedural and legal significance of the actions performed in such cases by legal representatives, as well as about the actions of the court if contradictions arise in the procedural actions of the minor and his legal representative. Is not it. Nosenko O. Having analyzed the law, it seems possible to conclude that it is minors who need to be recognized as a party to the process. Legal representatives can give consent to a particular civil procedural statement or action. Moreover, with the help of the phrase “the court has the right to attract...” the legislator managed to emphasize the optional presence of parents (persons replacing them) during the administration of justice in civil cases.
Thus, the participation of a minor in civil proceedings on the grounds of Part 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation differs little from the participation in the process of an “ordinary” capable citizen. The will of the minor has priority in the judicial process, however, if contradictions are discovered in the civil procedural statement or in the actions of the minor and his legal representative, the court is obliged to evaluate the explanations given by them in conjunction with other evidence in the case.
The most common participation of minors in civil proceedings is when their rights, freedoms and legitimate interests are protected in court by their legal representatives - parents, adoptive parents, guardians, trustees or other persons to whom this right is granted by federal law. The interests of a minor under the age of 14 are represented in court by parents, adoptive parents and guardians, while if the minor is between 14 and 18 years old, then his interests in court are represented by parents, adoptive parents and guardians.
The procedural position of legal representatives is determined by such an institution of civil procedural law as representation, enshrined in Chapter. 5 Code of Civil Procedure of the Russian Federation. Legal representatives act in the process on behalf of the minor and in his interests, creating rights and obligations for him (Article 52 of the Code of Civil Procedure of the Russian Federation). However, taking into account the special status of a minor, the legislator establishes certain restrictions on the actions of the legal representative (Clause 3 of Article 52 of the Code of Civil Procedure of the Russian Federation). Such restrictions include the requirements of Art. 37 “Disposition of the property of a ward” of the Civil Code of the Russian Federation. Based on this, the court does not have the right to accept the legal representative’s refusal of the claim or his recognition of the claim in a property dispute, the party of which is a minor under guardianship or trusteeship, if there is no consent of the guardianship and trusteeship authority in the case before the court.
Legal representatives may entrust the conduct of affairs to another person chosen by them as a representative. In such a case, contractual representation will take place. The range of powers delegated to the representative is determined by the legal representative. He can vest a representative with both general and special powers specified in Art. 54 Code of Civil Procedure of the Russian Federation.
The rights of other persons who may represent the interests of a minor are also established by law. Such persons may include the administration of the orphanage, guardianship and trusteeship authorities, if there is a need for the participation of a legal representative before the appointment of a guardian or trustee. According to I. 2 tbsp. 123 of the RF IC, before children left without parental care are placed in a family or in an appropriate institution, the duties of a guardian or trustee are assigned to the guardianship and trusteeship authorities. Children who are permanently under full state care in educational, medical institutions, social welfare institutions and other similar institutions are not assigned guardians (trustees). In these cases, in accordance with paragraph 1 of Art. 147 of the RF IC, the implementation of their duties is assigned to the administration of these institutions.
Before the start of trial in cases affecting the interests of minors who are represented by legal representatives, the judge, in preparation for the court hearing, checks the age of the minor, as well as the powers of their legal representatives or other persons who are granted this right by federal law.
Location
Art. 187 of the Code of Criminal Procedure of the Russian Federation says that the inquiry is carried out at the place of the preliminary investigation or at the location of the witness. It is advisable to conduct a conversation with a child in a familiar environment. For example, in a school office or at home. In a familiar environment, children feel much more comfortable and make contact better.
Minors 14-18 years old are called into the investigator’s office, because in this way the importance of the procedure is emphasized. An official setting encourages a teenager to give truthful information.
Features of the participation of a minor in civil proceedings as a witness
The law does not exclude minors from the list of persons who can be summoned and questioned as witnesses. This obligation is enshrined in Art. 69 Code of Civil Procedure of the Russian Federation. However, in practice, minors are called upon to testify in a case only in cases of extreme necessity. When questioning minor witnesses and assessing their testimony, the court in each specific case is obliged to take into account their age and ability to correctly perceive facts and events that are important to the case, and give evidence about them that corresponds to reality.
The interrogation of a witness under the age of 14 years, and at the discretion of the court - at the age of 14 to 16 years, is carried out with the participation of a teaching worker who is summoned to court (Article 179 of the Code of Civil Procedure of the Russian Federation). The law in this case does not distinguish between the teacher and the legal representative of the minor. However, it should be taken into account that the teacher participating in the process of interrogating a minor occupies the procedural position of a specialist, to whom Art. 188 Code of Civil Procedure of the Russian Federation. If necessary, the parents, adoptive parents, guardian or trustee of the minor witness are also called. These persons may, with the permission of the presiding officer, ask the witness questions, as well as express their opinion regarding the identity of the witness and the content of the testimony given by him. In exceptional cases, if it is necessary to establish the circumstances of the case, during the interrogation of a minor witness, one or another person participating in the case may be removed from the courtroom on the basis of a court ruling, or any of the citizens present in the courtroom may be removed court session. The person participating in the case, after returning to this room, must be informed of the content of the testimony of the minor witness and must be given the opportunity to ask the witness questions. A witness under the age of 16 is removed from the courtroom at the end of his interrogation, unless the court finds it necessary for the presence of this witness in the courtroom.
Receiving a call
It is prohibited to hand over a summons to appear for questioning to a teenager in person. His legal representatives or the administration of the institution where the child is being raised have the right to receive a summons.
The summons is addressed to the legal representative, while indicating the name of the minor. In exceptional situations, when a case of child abuse has been opened and it is undesirable to notify the parent, the summons is served on another person. For example, a grandmother or a teacher.
If a teenager is suspected of committing a crime and is taken into custody, a summons for questioning is sent to the head of the pre-trial detention center. Parents receive a separate summons indicating the place and time of the inquiry. They have the right to appear in the investigator's office to attend the procedure.
