The concept and role of the victim in the system of participants in criminal proceedings: a comparative legal analysis of the legislation of Russia and the CIS countries

Alekseeva Elena Sergeevna ORCID: 0000-0002-9505-0523 PhD in Law Associate Professor; Department of Criminal Procedure; St. Petersburg University of the Ministry of Internal Affairs of the Russian Federation 198206, Russia, St. Petersburg, Krasnoselsky district, Pilyutova Pilot str., 1 Alena2410@yandex.ru

Labusova Lyubov' Eduardovna Student; Faculty of Police Training for Public Order Units; St. Petersburg University of the Ministry of Internal Affairs of the Russian Federation 198510, Russia, St. Petersburg, Peterhof, Petrodvorets district, Avrova str., 33 liubathekotqwerty@gmail.com

Article 52 of the Constitution of the Russian Federation stipulates that the rights of victims of crimes and abuses of power are protected by law. The State provides victims with access to justice and compensation for the damage caused. The Code of Criminal Procedure of the Russian Federation (hereinafter also referred to as the Code of Criminal Procedure), developing this idea, in article 6, primarily names the protection of the rights and legitimate interests of persons and organizations affected by crimes as the purpose of criminal proceedings. However, despite the importance that the law attaches to the figure of the victim, there are still a number of controversial issues concerning his concept, the definition of his place among other participants in criminal proceedings and the functions he performs. Within the framework of this article, certain problematic aspects of the stated topic will be analyzed. In the course of the study, we will turn to the experience of legislators in a number of CIS countries, which will allow us to look at some problems from a new angle, identify positive aspects and suggest ways to improve domestic legislation.

The issues raised in this article have been the subject of research by a number of scholars in the field of criminal procedure law. Thus, the well-known Russian procedural scientist L. D. Kokorev made a significant contribution to the study of the legal status of the victim. His monograph "The Victim of a crime in the Soviet Criminal process" ^[5] analyzes, in particular, such issues as the concept of a victim, the grounds and procedure for recognizing a person as a victim, and the criminal procedural functions performed by this participant. V. V. Afisov, I. V. Misnik, and T. I. Shiryaeva should be singled out among the modern authors who dealt with this area. These representatives of science carried out a comprehensive analysis of the procedural situation of victims, including victims of legal entities, at the level of dissertation research. E. M. Varpakhovskaya addressed the comparative analysis of the procedural situation of the victim in the legislation of Russia and the CIS countries (on the example of Kazakhstan). In addition, it is necessary to single out the authors whose research interests were directed towards issues related to criminal procedural functions performed by various participants in the criminal process, including victims. First of all, we would like to mention D. M. Berova, who, as part of her doctoral dissertation on the fundamentals of the theory of functionalism in criminal proceedings, addressed the problems of implementing criminal procedural functions in the activities of subjects of criminal procedural legal relations. The direct criminal procedural functions of participants in the criminal process, including victims, have been the subject of research by individual authors such as V. S. Latypov, R. A. Ismagilov, O. V. Khimicheva, Yu.K. Yakimovich and others.

When working on this article, various methods of scientific research were used. The dialectical method of cognition was used as the main one. It allowed us to study the main approaches to the concept of the victim in the criminal procedure legislation of Russia and the CIS countries, to determine his place among the participants in criminal proceedings. The comparative legal method allowed us to compare the studied approaches, identify their advantages and disadvantages. The comprehensive use of methods of analysis, synthesis, induction and deduction allowed us to study extensive theoretical material on the topic of this work, ensure the reliability of the results obtained, summarize the research and formulate reasonable conclusions.

To begin with, let's turn to the definition of a victim. Part 1 of Article 42 of the Code of Criminal Procedure establishes that a victim is an individual who has suffered physical, property, or moral harm from a crime, as well as a legal entity in the event of damage to his property and business reputation by a crime. If everything is very clear about the place of an individual in the above definition, then the possibility of recognizing a legal entity as a victim, which was first established at the regulatory level by the current Code of Criminal Procedure of the Russian Federation, was initially ambiguously received in the scientific community. This decision was preceded by many years of scientific discussion. The main argument of the opponents of this innovation was the idea that the status of a civil plaintiff, which could be granted to a legal entity in accordance with the Criminal Procedure Code of the RSFSR of 1960, was sufficient to restore the rights violated by a crime. In fairness, it should be noted that this point of view was more widespread before the period of active development of private property and entrepreneurial activity in Russia. Currently, by most authors, the granting of legal entities the opportunity to act as victims in criminal proceedings is regarded as an unconditional achievement of Russian criminal justice ^{[7, p. 42]}. Indeed, the permissibility of recognizing a legal entity as a victim made it possible to expand the scope of its rights in comparison with the status of a civil plaintiff, and, consequently, to provide additional guarantees for the protection of its rights and legitimate interests in criminal proceedings ^{[10, p. 3]}. Granting victim status allows an organization to more quickly begin participating in a criminal trial as a full-fledged participant in it, with all the ensuing consequences. In turn, in order to prepare a reasonable civil claim, it is necessary to determine the amount of damage, which often requires a certain amount of time.

An analysis of the criminal procedure legislation of the CIS countries has shown that there is no unified position on the possibility of a legal entity participating in criminal proceedings as a victim. Thus, a similar approach to the Russian one can be traced in the legislation of the Republic of Moldova (part 1 of Article 59 of the Criminal Procedure Code of the Republic of Moldova), the Republic of Azerbaijan (part 1 of Article 87 of the Criminal Procedure Code of the Republic of Azerbaijan), and the Republic of Tajikistan (Article 42 of the Criminal Procedure Code of the Republic of Tajikistan). At the same time, the legislation of these States establishes the infliction of moral harm to the latter, along with property damage, as the basis for recognizing a legal entity as a victim.

In the Kyrgyz Republic and the Republic of Kazakhstan, a legal entity may also be recognized as a victim, but the legislation of these States does not consider the possibility of causing moral harm to it. That is, a legal entity can be recognized as a victim only if it has suffered property damage (Part 1 of Article 40 of the Criminal Procedure Code of the Kyrgyz Republic, Part 12 of Article 71 of the Criminal Procedure Code of the Republic of Kazakhstan). At the same time, it should be noted that the Criminal Procedure Code of Kazakhstan in 1997 established a norm allowing recognizing a legal entity as a victim in the event of moral harm. In 2014, with the adoption of the new CPC of the Republic of Kazakhstan, this possibility was eliminated. This change is assessed in science as justified, since morality determines the nature of interpersonal relations, serves as a guide in the actions of people, but not legal entities ^{[3, p. 98]}.

The legislation of a number of States adheres to a different position regarding the possibility of a legal entity participating as a victim. For example, there are no norms in the Criminal Procedure Code of the Republic of Belarus that would allow recognizing an organization as a victim. The law provides for the possibility of a legal entity participating in criminal proceedings in order to compensate for the damage caused, but only as a civil plaintiff (Part 1 of Article 52 of the Criminal Procedure Code of the Republic of Belarus). A similar approach was applied by the legislator of the Republic of Uzbekistan (Article 56 of the Criminal Procedure Code of Uzbekistan).

Thus, the criminal procedure legislation of most CIS countries provides for the participation of a legal entity in criminal proceedings as a victim. However, there are some differences in the list of reasons for making such a decision. Thus, some States fix the fact of causing only property damage to a legal entity as a basis. Other States allow the possibility of moral harm to organizations as well. Such grounds as "harm to business reputation" are provided for only by the criminal procedure legislation of Russia.

Next, let's turn to the next aspect concerning the concept of the victim. 42 of the Code of Criminal Procedure of the Russian Federation, a victim is a person who has been harmed by a crime. But what if the act was committed by an insane person? After all, as you know, in this case it is not a crime due to the lack of such a necessary element of the composition as the subject. Currently, there is no provision in Russian criminal procedure legislation that provides for the possibility of recognizing as a victim a person who has been harmed by an act committed by an insane person. Paragraph 2 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 Governing the victim's participation in criminal proceedings" resolves this issue to a certain extent, stating that harm to the victim can be caused by both a crime and a socially dangerous act committed by a person in a state of insanity. At the same time, we believe that such a rule should be fixed at the legislative level.

Turning to the analysis of the legislation of the CIS countries, it can be found that this issue has been resolved in the criminal procedure codes of some countries. We consider the formulations contained in the Criminal Procedure Code of the Republic of Belarus and the Criminal Procedure Code of the Republic of Uzbekistan to be the most progressive in this regard. In the first case, the legislator defines the victim as "an individual who has suffered physical, property or moral harm by a socially dangerous act provided for by criminal law and in respect of whom the body conducting the criminal proceedings has issued a resolution (definition) recognizing him as a victim" (Part 1 of Article 49 of the Criminal Procedure Code of the Republic of Belarus). Thus, instead of the definition of "crime", the term "socially dangerous act provided for by criminal law" is used. In the second case, the norm defining the victim is as follows: "If there is evidence that suggests that a crime, as well as a socially dangerous act of an insane person, has caused moral, physical or property damage to a person, he is recognized as a victim" (Article 54 of the Criminal Procedure Code of the Republic of Uzbekistan).

The Criminal Procedure Code of the Republic of Kazakhstan defines a victim as "a person in respect of whom there is reason to believe that moral, physical or property harm has been caused to him directly by a criminal offense" (Part 1 of Article 71 of the Criminal Procedure Code of the Republic of Kazakhstan), however, part 2 of Article 71 of the Criminal Procedure Code states that a person is recognized as a victim even if harm is inflicted on him an act committed by a person in a state of insanity.

We believe that the Russian Code of Criminal Procedure needs to clarify the definition of a victim, and therefore, we propose to amend Article 42 of the Code of Criminal Procedure of the Russian Federation, supplementing it with Part 1.1 as follows: "1.1. A victim is also recognized as an individual who, in accordance with the criminal law, committed a socially dangerous act committed by a person in a state of insanity., physical, property, moral damage has been caused, as well as a legal entity in the event of damage to its property and business reputation by such an act."

In addition to the concept of the victim itself, the question of his place in the system of participants in criminal proceedings seems to be very important. For the first time, the Code of Criminal Procedure of the Russian Federation has classified participants at the legislative level, taking as its basis the functions they perform in the criminal process. As noted in legal science, this emphasized the exceptional importance of the principle of competition in criminal proceedings ^{[6, p. 106]}. However, this decision of the legislator has become the subject of active scientific discussions. There were several reasons for this. Firstly, according to a number of authors, such an approach has made it possible to cover far from all functions implemented in the framework of criminal proceedings. Thus, the functions of supervision, procedural management of investigation, crime prevention, etc. remained outside such a classification ^{[4, p. 20; 8, p. 146]}. It is important to emphasize here that the issue of the list of criminal procedure functions has not yet been definitively resolved in legal science, however, in this article we will not delve into the analysis of existing approaches due to the fact that this is not the subject of our research. Secondly, the categorical attribution of individual participants in the criminal process to one side or another was subjected to an ambiguous assessment. Thus, according to Yu.K. Yakimovich, it is unreasonable and, in principle, incorrect to attribute the participants in the process either to the defense side or to the prosecution side ^{[11, p. 112]}.

It should be noted that, speaking about the shortcomings of the legislative classification of participants, representatives of the scientific community, first of all, give the example of an investigator. In particular, it is pointed out that the approach currently adopted leads to an accusatory bias in the activities of this participant and is inconsistent with such powers of the investigator as the termination of a criminal case on rehabilitative grounds, the establishment of circumstances mitigating punishment, excluding criminality of the act, etc. ^{[9, p. 219]}. Meanwhile, certain shortcomings of the legislative classification are also evident in relation to other participants. In particular, we believe that the attribution of the victim to the prosecution is controversial. On the one hand, this logic is initially clear: a person who has suffered physical, property or moral harm as a result of an act committed is interested in exposing the suspect (accused) and compensating for the harm caused to him. For these purposes, the law assigns to the victim the right to participate in criminal prosecution, an activity carried out by the prosecution in order to expose a suspect accused of committing a crime (paragraphs 55 of art. 5, art. 22 of the Criminal Procedure Code). Moreover, the Constitutional Court has repeatedly stressed that the interests of this participant cannot be reduced solely to compensation for the harm caused to him. They are largely related to resolving issues of the evidence of the charge, its scope, the application of criminal law and the imposition of punishment (see, for example, the Ruling of the Constitutional Court of the Russian Federation dated 04/18/2006 No. 114-O). Thus, both at the legislative level and at the level of explanations from the highest judicial authority, the victim is recognized as having the right to defend a wide range of interests, in many ways similar to the interests of State bodies on the part of the prosecution. Despite this, is it true to say that the victim and these state bodies perform a single function? In our opinion, this question should be answered in the negative. In order to substantiate this statement, let us first turn to the question of the purpose of the victim's participation in the criminal process. We believe that as such, first of all, is the realization of his private (personal) interests. These interests may not necessarily consist in exposing the culprit. For example, victims quite often file petitions for the termination of a criminal case, and most of them do not want not only to participate in criminal prosecution, but even to come to court ^{[12, p. 101]}. The main thing for them is to receive compensation for the harm caused by the crime. The same can be said about the main interest of the victim, a legal entity. His main interest is the restoration of rights violated by a crime and the protection of his legitimate interests ^{[1, p. 79]}. Based on the designated goal, it is possible to determine the following function that leads to its achievement - it is the protection of victims of their rights and legitimate interests. It has an independent character, although in some cases it may coincide to a certain extent with the functions of the criminal prosecution authorities. At the same time, some authors single out this function of the victim along with the function of the prosecution ^{[2, p. 19]}.

An interesting opinion on the issue under consideration in the middle of the 20th century was expressed by L.D. Kokorev, who determined that the victim can perform various functions not depending on the category of the case, but depending on the specific position of the victim in this case: "in each specific case, for each criminal case, it is necessary to determine which position the victim occupies, the implementation of which he promotes the procedural function" ^[5].

In the context of determining the victim's place in the system of participants in criminal proceedings, it is interesting to refer to the legislation of the CIS countries. An approach similar to the Russian one can be traced in the legislation of the Republic of Azerbaijan, the Republic of Moldova, the Kyrgyz Republic, and the Republic of Tajikistan. The criminal procedure codes of the listed states also establish the victim as a participant in the prosecution along with the authorities – the prosecutor, investigator, inquirer. A different basis for classifying participants than the functions they perform is applied in the criminal procedure laws of the Republic of Belarus, the Republic of Uzbekistan and the Republic of Kazakhstan. Despite minor discrepancies in the wording of the titles of the chapters, the approach to the issue under consideration is generally similar: in these States, the victim is included in the same chapter with such participants as the suspect, the accused, and the defender on the principle of protecting their or their represented rights and interests in criminal proceedings. It is interesting that in Belarus and Uzbekistan, competition is fixed as a principle in relation to court proceedings, and not to criminal proceedings in general.

It should be noted that in Russian legal science, the approach of rejecting the classification of participants in criminal proceedings based on a three-tier system of functions generally finds a positive response ^{[6, 9]}.

Summing up the research, it is necessary to draw the following conclusions:

1) despite the fact that the victim is one of the central and seemingly well-established in terms of determining the procedural status of the figures in the criminal process, today there continue to be a number of controversial and unresolved issues regarding the place of this subject in the system of participants in the criminal process, the formulation of the concept of the victim, forms and ways of exercising their procedural function.

2) as the analysis has shown, in general, the legal regulation of the concept and status of the victim in most CIS countries is similar to the Russian approach. At the same time, some differences were identified regarding the formulation of the concept of a victim, the possibility of recognizing a legal entity as a victim, and determining the victim's place among other subjects of criminal proceedings.

3) the approach of the domestic legislator, as well as the legislators of Kazakhstan, Kyrgyzstan, Moldova, Azerbaijan, and Tajikistan, which allows legal entities to participate in criminal proceedings not only as a civil plaintiff, but also as a victim, should be recognized as justified and fair.

4) when determining ways to improve the provisions of the Criminal Procedure Code of the Russian Federation governing the status of victims, it is advisable to take into account the positive experience of foreign countries. Thus, the approaches of individual States (Belarus, Uzbekistan, Kazakhstan) to the definition of a victim are of scientific and practical interest, allowing recognizing as such a person who is harmed by an act committed by a person in a state of insanity. In this regard, we propose to clarify the legislative formulation of the concept of "victim", enshrined in Article 42 of the Code of Criminal Procedure of the Russian Federation, by including in it an indication of the possibility of recognizing a person as a victim of harm not only as a crime, but also as a socially dangerous act containing signs of a crime.

5) the currently established classification of participants in the criminal process does not accurately reflect the current state of affairs. In particular, the analysis made it possible to conclude that the victim performs, first of all, not the function of accusation, but the function of protecting his interests. It is as a participant defending his rights that the victim is defined in the criminal procedure legislation of Belarus, Uzbekistan, and Kazakhstan.

Thus, within the framework of the conducted research, issues related to the concept and place of the victim in the system of participants in criminal proceedings in the legislation of Russia and the CIS countries were analyzed, problems requiring further legislative and scientific resolution were identified, and the main directions for improving Russian criminal procedure legislation were identified.