Судебное дело "Басок против России(2)"
14.04.2010
Here is the summary of the case.
On 8 January 2009 during the mass protest by lay drivers the Head of
the Regional (Sverdlovsk oblast) Traffic Police Department Uriy Demin
parked his car on zebra crossing in violation of traffic rules.
Representatives of mass media, including a free lance journalist Uriy
Basok, started to videoing and photographing it. When Basok took a
photo of Uriy Demin, the latter jumped on Basok, hit his face breaking
the photo camera (see video).
After some news about the attack in the media, a criminal case was
initiated and investigated under Part 1 of Article 167 and Clause "a"
of Part 3 of Article 286 of Criminal Code of the Russian Federation.
Basok was recognized as a victim (text of the CC
[2]http://www.russian-criminal-code.com/).
* Article 167. Wilful Destruction or Damage of Property
Wilful destruction or damage of other people's property, if these acts
involved the infliction of considerable damage, shall be punishable by
a fine in the amount of 50 to 100 minimum wages, or in the amount of
the wage or salary, or any other income of the convicted person for a
period of up to one month, or by compulsory works for a term of 100 to
120 hours, or by corrective labour for a term of up to one year, or by
arrest for a term up to three months,or by deprivation of liberty for
a term of up to two years.
* Article 286. Exceeding Official Powers
1. Commission by an official of actions which transcend the limits of
his powers and which involve a substantial violation of the rights and
lawful interests of individuals or organizations, or the
legally-protected interests of society and the State,
shall be punishable by a fine in the amount of 100 to 200 minimum
wages, or in the amount of the wage or salary, or any other income of
the convicted person for a period of one to two months, or by
disqualification to hold specified offices or to engage in specified
activities for a term of up to five years, or by arrest for a term of
four to six months, or by deprivation of liberty for a term of up to
four years.
2. The same deed, committed by a person holding a government post of
the Russian Federation or a government post of a subject of the
Russian Federation, or by the head of a local self-government body,
shall be punishable by a fine in the amount of 500 to 800 minimum
wages, or in the amount of the wage or salary, or any other income of
the convicted person for a period of five to eight months, or by
deprivation of liberty for a term of up to seven years, with
disqualification to hold specified offices or to engage in specified
activities for a term of up to three years, or without such
disqualification.
3. Deeds stipulated by the first or second part of this Article, if
they have been committed:
a) with the use of violence or with the threat of its use;
b) with the use of arms or special means;
c) with the infliction of grave consequences,
shall be punishable by deprivation of liberty for three to ten years,
with disqualification to hold specified offices or to engage in
specified activities for a term of up to three years.
It took a long time for this case to be investigated and transferred
(with great difficulties) to the district court. During the second
hearing the victim and his representative asked the court to dismiss
the prosecutor due to his biabiliousness towards the accused. The
appeal was dismissed by the judge.
On 21 December 2009 before the end of the hearing of the case the
prosecutor withdraw charges based on Clause 2 Part 1 Article 24 of the
Russian Criminal Procedure Code
[3]http://www.legislationline.org/download/action/download/id/1698/fil
e/3a4a5e98a67c25d4fe5eb5170513.htm/preview).
Article 24. Grounds for Refusal to Institute a Criminal Case or to
Terminate a Criminal Case
1. A criminal case cannot be instituted, and or instituted criminal
case shall be subject to termination on the following grounds:
1) absence of the event of a crime;
2) absence of the corpus delicti in the act;
3) expiry of the deadlines for criminal prosecution;
4) death of the suspect or of the accused, with the exception of cases
when the proceedings on the criminal case are necessary for the
rehabilitation of the deceased;
5) absence of the victim's application, if the criminal case may be
instituted only upon his application, with the exception of cases
envisaged by the fourth part of Article 20 of the present Code;
6) lack of a court statement as to the availability of elements of
crime in the actions of one of the persons mentioned in Items 1, 3 -
5, 9 and 10 of Part 1 of Article 448 of the present Code or lack of
the consent of the Federation Council, the State Duma, the
Constitutional Court of the Russian Federation, the qualification
college of judges respectively to the opening of a criminal case or
prosecution as the accused of one of the persons mentioned in Items 1
and 3-5 of Part 1 of Article 448 of the present Code.
2. The criminal case shall be subject to termination on the ground,
envisaged by Item 2 of the first part of this Article, if the
criminality and punishability of the action in question have been
eliminated by the new criminal law before the sentence came into legal
force.
3. The termination of a criminal case shall entail simultaneous
cessation of the criminal prosecution.
4. A criminal case shall be subject to termination in the event of
terminating a criminal prosecution in respect of all suspects or
accused persons, save for the instances provided for by Item 1 of Part
One of Article 27 of this Code.
Despite the objection of the victim and his representative, the judge
automatically dismissed the case under Part 7 of Article 246 of the
Criminal Procedure Code.
Article 246. Participation of the Public Prosecutor
1. The participation of the public prosecutor in the judicial
proceedings shall be obligatory.
In conformity with Federal Law No. 177-FZ of December 18, 2001, the
second part of Article 246 of the present Code shall be put into
operation as from January 1, 2003. Untill January 1, 2003
participation in judicial proceedings by the public prosecutor was
obligatory only when dealing with criminal cases by a court with the
participation of jurors, and also with all criminal cases considered
by the Supreme Court of the Russian Federation, by the Supreme Courts
of the Republics, by the territorial and regional courts, by the
courts of the cities of federal importance, by the courts of the
autonomous region and of autonomous areas, and by the district (naval)
military courts.
2. Participation of the public prosecutor shall be obligatory in the
judicial proceedings on criminal cases of the public and of the
private-public prosecution.
3. On criminal cases of the private prosecution the charge in the
judicial proceedings shall be supported by the victim.
4. The public prosecution may be supported by several public
prosecutors. If in the course of the judicial proceedings it
transpires that the further participation of the public prosecutor is
impossible, he may be replaced. The court shall give time for the new
public prosecutor, who has joined the judicial proceedings, to get
acquainted with the criminal case materials and to prepare for the
participation in the judicial proceedings. Replacement of the public
prosecutor shall not entail a repetition of the actions that have been
performed by this time in the course of the judicial proceedings. Upon
the public prosecutor's petition, the court may repeat the
interrogations of the witnesses, the victims and the experts, or the
other judicial actions.
5. The public prosecutor shall submit the proof and take part in their
study, express his own opinion on the merits of the charge and on the
other questions, arising in the course of the judicial proceedings,
and submit proposals to the court concerning the application of the
criminal law and the administration of a punishment to the defendant.
6. The prosecutor shall either file or support the civil claim,
brought on the criminal case, if this is required to protect the
rights of the citizens and of the public or the state interests.
7. If in the course of the judicial proceedings the public prosecutor
arrives at the conclusion that the submitted proof does not confirm
the charge brought against the defendant, he shall renounce the charge
and explain to the court the motives of the renouncement. The full or
a partial renunciation of the accusation on the part of the public
prosecutor in the course of the judicial proceedings shall entail the
termination of the criminal case or of the criminal prosecution fully
or in the corresponding part thereof on the grounds, stipulated by
Items 1 and 2 of the first part of Article 24 and by Items 1 and 2 of
the first part of Article 27 of the present Code.
8. The public prosecutor may also modify the charge towards its
mitigation before the court departs to the retiring room for passing
the sentence, by way of:
1) removing the signs of the crime, aggravating the punishment, from
the legal classification of the act;
2) excluding from the charge a reference to a certain norm of the
Criminal Code of the Russian Federation, if the defendant's act is
stipulated by another norm of the Criminal Code of the Russian
Federation, the violation of which was incriminated to him in the
conclusion of guilt or in the bill of indictment;
3) re-qualification of the act in conformity with the norm of the
Criminal Code of the Russian Federation, envisaging a milder
punishment.
9. Revising a court ruling or resolution on terminating a criminal
case on account of the renunciation of the charge by the public
prosecutor shall be admissible only if there appear or are revealed
new circumstances in conformity with Chapter 49 of the present Code.
10. Termination of a criminal case on account of the public
prosecutor's renunciation of the charge, the same as his changing the
charge, shall not interfere with the subsequent filing and considering
a civil claim by way of the civil court proceedings.
This decision of 21 December 2009 was upheld by the decision of the
court of cassation (Sverdlovsk oblast court) of 3 February 2010.
To answer your questions:
1. Two available videos of the attack
[4]http://www.sutyajnik.ru/video/demin2.mpg
[5]http://www.sutyajnik.ru/video/demin3.avi
2. The criminal case was instituted due to the information about the
crime received through mass media.
3. Almost all witnesses were heard (there were 2 witnesses and some
documents left to consider).
4. the defendant was represented by two advocates. The victim -- by
one.
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