When to write: general questions
A claim is filed if:
- damage has been caused;
- there is a specific cause of it (both directly and indirectly - a vehicle belonging to a citizen, as a result of an animal bite that was not supervised, the employer’s property, etc.).
If there is harm to health, a claim for compensation may include demands for full compensation, including expenses for treatment, lost earnings, the purchase of prosthetics or treatment in a sanatorium, etc. The main criterion is the need for expenses to restore health. It is established based on the prescription of the attending physician.
Limitation period under Art. 208 of the Civil Code of the Russian Federation does not apply to these requirements. But if it is missed (3 years from the moment the corresponding right arises), the requirements will be satisfied for a period of 3 years before the court appeals.
Legal basis for collecting money for damage caused
From the point of view of legislation, damage is considered as a type of loss that the injured person has the right to demand from the culprit. The Civil Code of the Russian Federation defines this concept in paragraph 2 of Art. 15. The concept of damage includes:
1) Direct loss, damage or reduction of property (by damage we mean the occurrence of defects that led to a decrease in the value of material objects).
2) Expenses that the victim is forced to bear to restore the violated right, that is, to return to the original situation. This means that the culprit is obliged to compensate not only the cost of the property that he lost or damaged, but also the additional expenses of the plaintiff that arose in connection with this (for example, payment of bank commissions for money transfers, examinations in courts, transport services, etc.).
An important point: the legislator, when mentioning compensation for expenses incurred by the injured party, takes into account not only those already incurred at the time the statement of claim was submitted to the court, but also future ones.
Both damage to property (loss, damage, reduction in its value) and the costs incurred in connection with this to restore the status quo (return to the original state) are called real damage by the legislator. The concept of “reality” was introduced to distinguish it from the concept of lost profits - another type of loss. It should be emphasized that the expenses incurred by the injured party to restore the violated right belong precisely to the category of real damage.
Where to submit
In accordance with Art. 23 of the Code of Civil Procedure of the Russian Federation, property claims (which include claims for compensation for damage, since the plaintiff requests certain amounts in compensation for damage to health) are considered:
- by justices of the peace - if the value of the claim is up to 100,000 rubles;
- district or city courts - if the value of the claim is more than 100,000 rubles.
The cost of a claim is a special procedural category that allows you to determine jurisdiction and the amount of state duty. In accordance with Art. 91 of the Code of Civil Procedure of the Russian Federation, this is the sum of all the plaintiff’s claims. At the same time, according to Art. 333.19 of the Tax Code of the Russian Federation, it includes only claims that are subject to assessment, that is, compensation for moral damage is not included in it. In addition, when collecting periodic payments, payments for 3 years are taken into account.
Civil claim in criminal cases // Commentary for the magazine “Zakon”
The magazine “Zakon” invited me to assess the impact that the Resolution of the Plenum of the Supreme Court of the Russian Federation, dedicated to problematic issues of consideration of civil claims in criminal cases, will have on practice[1]. With the consent of the editors, I duplicate the text of this commentary on my blog.
It seems that the Resolution can significantly influence law enforcement practice, and on some issues quite negatively.
Clauses 7, 8, 27 and 31 of the Resolution in their interrelation are highly controversial.
According to clause 7, it is necessary to keep in mind the provisions of clause 3 of Art. 1080 of the Civil Code of the Russian Federation stating that a person who unlawfully took possession of someone else’s property, which was subsequently damaged or lost as a result of the actions of another person who acted independently of the first person, is liable for the damage caused.
In accordance with paragraph 8, property damage subject to compensation, in addition to that specified in the charge, also includes damage resulting from the destruction or damage by the accused of someone else’s property, when these actions were part of the method of committing the crime and did not require independent qualification under Art. 167 or art. 168 of the Criminal Code of the Russian Federation.
Firstly, these points logically contradict each other.
On the one hand, clause 8 confirms the possibility of recovering only damage that is part of the crime, since the damage caused by the crime must necessarily be included in the objective side of the crime (at least relate to the method of committing the crime).
On the other hand, paragraph 7 proposes to qualify as harm caused by a crime harm that is associated with a criminal act not only by a causal but also a conditioning connection, which in any case implies the possibility of qualifying as harm caused by a crime the consequences resulting from beyond the scope of the crime.
A civil claim in a criminal proceeding is a claim for compensation for property damage caused directly by a crime. The concept of a crime as a guilty act prohibited specifically by criminal law does not allow for the possibility of holding the subject of the crime responsible for the actions of another person, as well as for harm not directly caused by the crime and not included in the charge.
At the same time, according to paragraph 27, the need to make additional calculations if they are related, among other things, to clarify the amount of property damage, which is important for qualifying the offense and determining the scope of the charge, is not a basis for transferring the issue of the amount of compensation for a civil claim for consideration in civil proceedings.
In accordance with paragraph 31, the appellate court has the right to change the verdict in part of the civil claim and increase the amount of compensation for material damage, provided that it does not matter for the qualification of the actions of the convicted person and the scope of the charge established by the court.
However, an increase in the amount of compensation for damage caused by a crime, in any case, implies an increase in the actual amount of the charge. Consequently, the Resolution takes the resolution of a civil claim beyond the scope of the judicial proceedings provided for in Art. 252 of the Code of Criminal Procedure of the Russian Federation.
Accordingly, these clarifications unreasonably expand the application of the institution of civil action in criminal proceedings.
An even more radical change concerns the subject matter of a civil action in a criminal case, traditionally an action for award. Thus, according to paragraph 12 of the Resolution, claims of a property nature related to a crime, for example, to invalidate a civil contract, are subject to resolution through civil proceedings. That is, the Resolution fully allows that within the framework of criminal proceedings a claim for recognition can also be filed, although it will be resolved within the framework of civil proceedings.
Does not correspond to the legal nature of a civil claim in a criminal case, paragraph 21 of the Resolution, according to which property damage caused directly by the crime, but beyond the scope of the charge brought against the defendant (the victim’s expenses for treatment in connection with damage to health; funeral expenses when the consequence of the crime was death person; expenses for repairing damaged property when entering a home, etc.), subject to proof by the civil plaintiff by submitting the relevant documents to the court.
According to clause 4, part 1, art. 73 of the Code of Criminal Procedure of the Russian Federation, the burden of proving the nature and extent of property damage caused by the crime lies with the state prosecutor, and the examples given in this paragraph of the Resolution can hardly be considered beyond the scope of the charge brought against the defendant.
In paragraph 26, the Plenum explained that when a guilty verdict is passed against a person whose case has been separated into separate proceedings, the court has the right to impose on him the obligation to compensate for damage jointly with the previously convicted person if the crime was committed by them jointly.
However, the issue of liability in a civil suit of a person exempted from criminal liability on non-rehabilitative grounds, who committed a crime in complicity with a convicted person, remained unaddressed.
Clause 29 of the Resolution deserves a positive assessment, once again emphasizing following the Resolution of the Constitutional Court of the Russian Federation of October 21, 2014 No. 25-P and the Review of the practice of courts considering petitions for seizure of property on the grounds provided for in Part 1 of Article 115 of the Criminal Procedure Code of the Russian Federation (approved by the Presidium of the Supreme Court of the Russian Federation on March 27, 2019) that the only measure to ensure the execution of a sentence in a civil claim is the seizure of the property of the accused or the person financially responsible for his actions. I would like to believe that this provision will become an additional argument in favor of eradicating the contrary to law, but widespread practice of seizing the property of persons who are not financially responsible for the actions of the accused “in order to ensure the execution of a sentence in part of a civil claim.”
[1] Resolution of the Plenum of the Armed Forces of the Russian Federation dated October 13, 2020 No. 23 “On the practice of courts considering a civil claim in a criminal case.”
What to indicate
To increase your chances of winning a dispute, be sure to include a description of the factual circumstances in your statement of claim for compensation for damage caused to health. State them without judgment and accurately, in full accordance with supporting documents. Legal justification is also necessary. The basic rules are contained in Chapter 59 of the Civil Code of the Russian Federation on obligations arising as a result of causing harm. Depending on the specific circumstances of the incident, it may be necessary to refer to special rules of law.
Features of recovery of property damage from a crime
So, if a person was sentenced to imprisonment, then the damage is compensated based on his earnings during his stay in prison or colony. It is possible that something will be gained through the sale of his property.
When a person has been released from a courtroom due to circumstances unrelated to the acquittal, a separate civil lawsuit should be filed to recover financial damages caused by the crime.
After it is satisfied, it will be necessary to obtain a writ of execution and transfer it to the bailiffs for work. In this case, the damage caused by the actions of the criminal must be recovered by force.
What documents will be needed
A whole set of documents will be required as an appendix to a claim for damages, since each party is obliged to prove its position in court (Article 132 of the Code of Civil Procedure of the Russian Federation):
- documents confirming what happened, the guilt of the causer of the damage, the direct connection between his actions and the damage caused (documents of the competent authorities: resolutions, conclusions, acts, etc.);
- a conclusion on the degree of disability, the diagnosis, existing injuries, other medical documents on the harm caused and the necessary treatment (medical and outpatient records, extracts from them, etc.);
- documents confirming expenses (checks, receipts, etc.), calculation of lost earnings, which is calculated as the difference between average earnings and income received during the treatment period;
- certificate of sending documents to the defendant (which he does not have).
Claimants in cases of compensation for damage are exempt from paying state fees.
The procedure for compensation for material damage from the actions of a criminal
First you need to calculate its amount. This can be done either on the basis of an expert opinion or by calculating all expenses supported by documents.
In addition, compensation for damage caused by a crime also applies to compensation for moral damage in an accident. Here the victim or his relatives are free to determine the amount themselves. Moreover, moral damage in a crime is compensated regardless of the presence of guilt.
After the victim or his relatives have determined the amount of damage due to the theft, it is necessary to prepare a civil claim. It is addressed either to the investigator or to the court that is considering the criminal case. As a result, the amount awarded for recovery from the civil defendant will appear in the verdict as separate items.
Sample statement of claim for compensation for material damage
Drawing up a claim begins with a header, which indicates all the necessary information about the court to which the application is being submitted, the plaintiff and the defendant. Next comes the main part, which indicates the grounds for filing a claim, describes the damage suffered by the employer due to the employee’s misconduct, and provides evidence of the employee’s guilt.
The main part is followed by the employer’s requirements and a list of documentation attached to the claim. Finally, the date of filing the claim, the personal signature of the plaintiff and the seal of the organization.
A template form of claim may not always be suitable for a specific case, therefore, when going to court, it is worth contacting lawyers who will help you draw up a competent statement and achieve a positive outcome of the trial for the employer.
- Order an independent damage assessment
- Assistance from lawyers in collecting damages from employees
Drawing up a statement of claim for recovery of material damage
If it was not possible to resolve the conflict with the employee pre-trial, then the time comes for litigation. In the claim, the plaintiff indicates how the material damage was caused and what specific property it was caused, or what costs the employer incurred due to the employee’s misconduct.
The employer's evidence base can be witness testimony, expert opinions, circumstances of damage or other documented facts of the employee's guilt.
When filing a claim, the employer must attach a copy of the employment contract to the claim.
The statement of claim must be made in writing, by hand or using a computer. The contents of the claim must include:
- full name and location of the court;
- indication of the details of the plaintiff and defendant;
- subject of the application;
- grounds for filing a claim;
- cost of claim;
- data on attempts to resolve the conflict pre-trially;
- personal signature of the plaintiff and seal of the organization.
Indication of the claim price is a mandatory condition. It is quite difficult to calculate the amount of damage caused on your own, therefore, when drawing up a claim, it is better to seek help from specialist appraisers.
Arbitrage practice
Consideration of claims for compensation for damage resulting from a crime does not cause any difficulties for the courts. Especially when the amount of damage is included in the sentence against the convicted person.
It's not just victims who come forward with statements. The initiator of the trial may be the victim’s relatives, as well as the prosecutor. He acts in the interests of the state.
Some sample solutions may be helpful or cause for thought. Below is a description of several such cases. All names mentioned are fictitious.
Regression payments for health insurance
When a victim has suffered health damage as a result of a crime, payment for his treatment can be made from the funds of the Compulsory Medical Insurance Fund. In the future, the money is recovered from the convicted person by way of recourse.
We recommend! Recovery of damage caused by a minor defendant: procedure and procedure + sample statement of claim for compensation for damage caused by minors
As an example, we can cite the decision of the Metallurgical District Court of Chelyabinsk dated January 30, 2019 in case No. 2-146/2019. The prosecutor, on behalf of the MHIF department, appealed to citizen Titova with a claim to recover 56 thousand rubles.
The court verdict established that during a quarrel Titova inflicted serious bodily injuries on her daughter. The specified amount was spent on the treatment of the victim, which the court subsequently recovered from Titova.
Recovery of damages from fraud
Citizen Fedorov approached the defendant, Zinoviev, with a claim for the recovery of 540 thousand rubles as damage caused by fraud. Fedorov explained that Zinoviev entered into a fictitious agreement with him to renovate the apartment and received the above-mentioned amount. Later it was spent on personal needs.
The fact of fraud was confirmed by the court verdict against Zinoviev that entered into force. The amount of damage caused to Fedorov was also indicated there.
As a result, the Zavolzhsky District Court of Yaroslavl, by decision dated January 30, 2019, in case No. 2-330/2019, satisfied Fedorov’s claim. Separately, it was stated that the amount of harm inflicted established by the verdict in a criminal case is not subject to further proof.
Reimbursement of taxes unpaid by the company
The illustrative case was considered by the Sovetsky District Court of Bryansk. The prosecutor filed a lawsuit in the interests of the state to recover 9 million rubles from citizen Dolgov for budget revenue.
The requirements are justified by the fact that Sirius LLC, of which the defendant was a director, during 2012-2013. failed to pay taxes for the specified amount due to the submission of false declarations to the Federal Tax Service. Meanwhile, no criminal case was initiated against Dolgov due to the expiration of the statute of limitations.
The defendant objected to the claim, citing the fact that Sirius LLC was declared bankrupt and all creditors' claims were considered settled. In addition, the statute of limitations for unpaid taxes has passed.
Meanwhile, by the decision of January 30, 2019 in case No. 2-434/2019, the prosecutor’s demands were satisfied. The court considered that it was Dolgov’s actions that caused damage to the state. At the same time, the judge considered that the statute of limitations had not expired, since three more years had not passed since the decision was made to refuse to initiate a criminal case.
