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Constitutional Court's Precedent Decision: Persons Who Were Extorted a Bribe Can Be Considered Victims
The reason for confirming paragraph 1 of Article 42 of the Criminal Procedure Code of the Russian Federation, which regulates the status of victims in criminal cases, was a complaint from a resident of Taganrog, a former employee of a commercial organization. Taganrog Port - Alexander Tkachenko.
This citizen was accused of stealing scrap metal together with his brother and other port workers. The traffic police began investigating the incident.
The acting deputy director of the linear department suggested not to open a case about a bribe of 2.5 million rubles. But Tkachenko chose a different path.
According to the case materials, he reported this to law enforcement agencies and voluntarily took part in the operation.
Alexander Tkachenko says: “We worked well, and everyone was in their place. I am the group mechanic, and my brother is the head of the workshop. My responsibilities included planning and carrying out repairs, modernization and maintenance of portal cranes. I had 10 people, and there were 17 cranes in the port. I have been working in this organization since 2001 and did an internship there right after graduating from college.”
At first he was a shift mechanic, and then a group mechanic. The job description prescribes monitoring the condition of the equipment, taking into account its service life, wear and tear, and metal fatigue. Ultimately, we have to decide whether to disassemble or repair.
According to Tkachenko, one of the port cranes was going to be dismantled. All decisions were made only after consideration, and not at someone's request. Special organizations then remove everything and process it. This happens under the control of special services.
- And then one morning we all came to the OBEP, OMON at the same time (initially there were 8 dockers), and the search began. It was really shocking. Each of us has a wife and children. There was a lack of understanding and confusion about what was happening.
During the search, many personal items were seized, including laptops, computers, and mobile phones. They even took it from the children. But they returned it. Within a year.
They were accused of fraud, defining the crane as scrap metal. In other words, we sold surplus scrap metal. Everything was recorded by tonnage, but also weighed and, depending on what was available, sent to the warehouse or to the scrap metal yard. Everything was written off in the accounting department.
After the police arrived, several inventories were made and all documents were reviewed. Nothing was found.
- Is this someone else's comment? No. The police have their own mission, and they must investigate violations and crimes," Tkachenko continues.
- First we questioned everyone, including the managing director and the internal security service. No damage or casualties were found. This is confirmed by the general director.
The police realized this and began to persuade him to "confess something." We did not agree to this, because we know the truth behind us. Then they decided to get at least something in the form of a bribe. No additional troubles are required. If I am right, then why should I endure all this and remain silent?
After the bribe was reported, the police transferred the case to the investigative body. Then from the investigation to the prosecutor's office, and then to the court. And he returns to continue the investigation.
"We've been playing table tennis for five years now." Tkachenko is indignant. - Of course, it's psychologically difficult. These events forced me to deviate from my usual way of life. Many members of my family, including me, began to have problems. Our family lived for a long time, but fell apart. The children have already become adults. My people have also fallen. The nagging began at work. I had to leave of my own free will. My brother went to work in another city.
My current job involves traveling. I also work as a specialist for a company that services gantry cranes.
However, since you are under house arrest, you have to ask the investigator for permission every time. The property has also been confiscated. I constantly have to ask for time off from work to attend court hearings. And everything is marking time.
But my current management is understanding. Of course, no one likes to have no employees, but we all know who we are. We know our job.
I wanted to restore my honor by filing a complaint to the Constitutional Court. Someone might say, "Where are you going?" What if what I say is 100% true? I have already lost a lot of time and money. So I will go all the way until I am completely vindicated.
I understand that if I work on something step by step, everything will work out. No matter how bad it is for you, you have to achieve and prove it.
The corrupt officials who demanded bribes from Tkashenko when handing over part of the bribes were detained on March 6, 2020, the press service of the Southern Investigative Department for Transport of the Investigative Committee of the Russian Federation reported earlier.
In court, he acted as a witness and argued that he should be recognized as a victim of the incident. But the court in various cases stubbornly refused to change his status, despite the fact that he invested ten thousand rubles of his own money as a bribe to complete the task.
Tkachenko: When I appealed to the Constitutional Court of the Russian Federation, I wanted to restore my honor. I decided – I will go to the end – until complete acquittal.
During the investigation, personal funds were confiscated. The court rejected his petition because it "did not indicate any damage." As a result, Tkachenko decided to challenge the constitutionality of Part 1 of Article 42 of the Criminal Procedure Code of the Russian Federation through his lawyer.
It was he who wrote a complaint to all authorities, including the Constitutional Court of the Russian Federation.
“When the police began searches in 2019, the dockers contacted me,” Alexander Kiryanov told a RG correspondent.
- Tkachenko and his brother insisted on their innocence. They contacted me at the beginning of 2020. They said that the police had extorted bribes from them. Otherwise, they threatened to open a criminal case.
The brothers do not consider themselves guilty. Therefore, we contacted the Board of Directors of the FSB for the Rostov Region and carried out the necessary measures, in which Alexander Tkachenko participated.
According to Kiryanov's lawyer, the criminal case of thefts at the port was initially investigated against the head of the port supply. The police conducted the investigation.
The Tkachenko brothers were in good shape. Interestingly, the port's executive director noted in his testimony that no one stole anything. There are strict checks, and a special committee conducts an annual inventory. During this period, the commission found no losses. This data is in the case file, says Kiryanov.
By the way, after the bribery story was exhausted, the case was transferred to the Rostov Investigative Department for transfer to the Investigative Committee of the Russian Federation.
There Tkachenko was interrogated as a witness. After that, the case was sent to court several times, but each time the judge decided to transfer the case for investigation due to errors in the indictment.
The main one among these errors was the lack of a resolution to initiate a case against Tkachenko himself and a number of other accused.
"The case was passed from investigator to investigator for a long time and has now been transferred back to the Taganrog City Court," says Kiryanov. "That's why I filed a complaint with the Constitutional Court to explain why my client is still being illegally prosecuted."
The bribery trial was not an easy one. The case reached the Court of Cassation twice and was returned for a new trial.
In one case, the court saw no details of bribes taken from police officers. It considered this to be fraud because the defendants had no authority to make any decisions regarding Tkachenko. They simply wanted to steal money.
However, Tkachenko's lawyers did not agree with this. The court's decision was overturned, resulting in a new trial.
The Rostov District Court overturned the Taganrog City Court's verdict on fraud at a new hearing and found the former police officers guilty of bribery. The organizer received a prison sentence and a fine of 4 million rubles.
During this period, Tkachenko was not recognized as a victim of the incident. According to lawyers, this is a more protected status. You can also demand compensation in a civil lawsuit.
I had to prove my identity in all cases, right up to the Supreme Court of the Russian Federation. But even there they did not side with the citizens until the complaint was finally considered by the Constitutional Court of the Russian Federation.
"Of course, the court's decision is a source of pride and professional success, since it answered all our questions," Kiryanov said.
- We are very pleased because we were told at all levels that this nonsense would be stopped. After that, based on newly discovered circumstances, an appeal was filed to the Supreme Court to reopen the criminal proceedings on the fact of bribery. Against the background of the fact that Tkachenko did not exercise his rights as a victim.
Now we need to rethink the problem. All legal actions should be cancelled and sent to the Taganrog City Court for a new trial, and the Taganrog City Court should first recognize Tkachenko as a victim.
The application was satisfied and a criminal case was opened. The decision will be made within one and a half months. Tkashenko plans to file a civil suit and demand compensation for moral damages.
"We discussed this issue in our lawyer circle," Kiryanov said. "We came to the conclusion that the fight against corruption continues. High-ranking officials and judges (for example, the former chairman of the Rostov District Court and a number of regional judges) were detained.