Criminal procedure law of the Russian Federation. Cheat sheet: briefly, the most important

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Criminal procedure law of the Russian Federation. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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Table of contents

The concept of criminal procedure and its purpose
Criminal procedural law, its relationship with other legal disciplines
The concept and system of stages of the criminal process
Criminal procedural functions, guarantees and procedural form
Sources of criminal procedure law
Criminal procedure law. The effect of criminal procedure law in time, space and persons
The concept, meaning and system of principles of the criminal process
Legality as a principle of criminal proceedings. Administration of justice only by the court
Competitiveness of the parties as a principle of criminal procedure. Presumption of innocence
Inviolability of home, privacy of correspondence, telephone and other conversations as principles of criminal proceedings
Respect for honor, dignity of the individual, personal integrity, protection of human and civil rights and freedoms in criminal proceedings as principles of criminal proceedings
Providing the suspect or accused with the right to defense, the language of criminal proceedings as principles of criminal proceedings
Freedom to evaluate evidence, the right to appeal procedural actions and decisions as principles of criminal proceedings
The concept and classification of participants in criminal proceedings
The court as a participant in the criminal process
The accused and his procedural position
The suspect and his procedural position
Defense counsel and his procedural position
The prosecutor as a participant in the criminal process
Investigator, head of the investigative body as participants in the criminal process
The body of inquiry, the head of the inquiry unit, the investigator as participants in the criminal process
The victim and his procedural position
Other participants in criminal proceedings and their procedural status
Civil action in criminal proceedings and its procedural registration
Subject and limits of proof
The process of proof and the content of its elements
The concept and meaning of evidence. Relevance and Admissibility of Evidence
Testimony of the accused, their verification and evaluation
Testimony of the suspect, their verification and evaluation
Witness testimonies, their verification and evaluation
Testimony of the victim, their verification and evaluation
Material evidence: concept, types, procedural registration, storage
Protocols of investigative and judicial actions as a type of evidence
Other documents as evidence
Conclusion and testimony of an expert, specialist and their assessment
The concept, meaning and types of measures of procedural coercion
Detention of a suspect
The concept and grounds for the application of preventive measures
House arrest. Personal guarantee
Pledge. House arrest
Supervision of a minor accused or suspect. Observation of the command of a military unit
Detention as a measure of restraint
Other measures of procedural coercion
Petitions and complaints
Procedural terms, their types, meaning. The procedure for renewal and restoration
Procedural costs
Rehabilitation in criminal proceedings
Reasons and grounds for initiating a criminal case
Verification of allegations and reports of crimes
Procedural procedure for initiating a criminal case
Circumstances precluding criminal proceedings
Preliminary investigation: concept and forms
General conditions for preliminary investigation
Investigation and its types
Features of inquiry as a form of preliminary investigation
The concept, meaning and system of investigative actions
Inspection and its types. Certification
Interrogation of the witness and the victim. Confrontation
Procedural features of presentation for identification
Search and seizure. Personal search
Investigative experiment. On-site verification
Monitoring and recording telephone and other conversations. Seizure of postal and telegraph messages
Appointment and production of expertise
Filing and interrogation of the accused
End of preliminary investigation
The indictment, its structure and content
Suspension and resumption of the preliminary investigation. Wanted accused
Grounds and procedural procedure for terminating a criminal case
Jurisdiction and its types
General conditions of legal proceedings
General procedure for preparing for a trial. Appointment of a court session
Structure of the trial
Sentence ruling
Sentence, its structure, content. Types of sentences
A special procedure for making a decision when the accused agrees with the charge brought against him
Features of the production of the justice of the peace
Features of the judicial investigation in court with the participation of jurors
The main features of the proceedings in the court of second instance
Proceedings before the court of appeal
Production in the cassation instance
Grounds for annulment of a sentence or other court decision
Execution of the sentence
Manufacture in the supervisory authority
Reopening of proceedings in a criminal case due to new or newly discovered circumstances
Proceedings in criminal cases against minors
Proceedings on the application of compulsory medical measures
Features of criminal proceedings in relation to certain categories of persons
International cooperation in the field of criminal justice
Request for legal assistance
Extradition of a person for criminal prosecution or execution of a sentence

1. THE CONCEPT OF CRIMINAL PROCEDURE AND ITS PURPOSE

The concept of "criminal process" is used in four meanings:

1) as a specific activity (type of law enforcement);

2) as a set of a certain kind of norms (criminal procedural law);

3) as a legal science with a special subject of study;

4) as an academic discipline.

The criminal process in the first sense (as a type of law enforcement) also has a number of variations in the literature. So, under the criminal process is understood:

1) activities (system of orderly actions) clearly defined in the law of state bodies, their officials and persons called participants in the process;

2) legal relationship, arising in the course of such activities (criminal proceedings);

3) obligatory and thorough legal regulation activity and the relationships that arise from it.

Some authors proceed from the fact that the content of the criminal process should be disclosed using all three of the above elements in a complex way.

In this way, criminal process - this is the activity (system of actions) of state bodies endowed with appropriate powers to initiate, investigate, consider and resolve a criminal case, carried out within the limits and procedure established by law and other legal acts, as well as legal relations arising in connection with this activity between bodies and persons participating in in her.

According to Art. 6 of the Code of Criminal Procedure, criminal proceedings have as their purpose:

I) protection of the rights and legitimate interests of persons and organizations victims of a crime;

2) protection of the individual from unlawful and unfounded accusations, condemnation, restriction of his rights and freedoms.

That is why the refusal to prosecute the innocent, the rehabilitation of everyone who has been unjustifiably subjected to criminal prosecution, are inherent in the criminal process to the same extent as criminal prosecution and the imposition of a just punishment on the guilty. Having stated these positions in ch. 2 of the Code of Criminal Procedure, called "Principles of criminal proceedings", the legislator, defining the "appointment of criminal proceedings", gave it a fundamental character for determining the type of criminal process and implementing in it those basic legal principles that are called the principles of criminal proceedings.

The criminal process is closely related to the concept of "justice", but is not identical to it. Justice is carried out both in criminal cases and in civil, administrative cases, and in this sense the concept of "justice" is wider than the concept of "criminal process". At the same time, the concept of "justice" is narrower than the concept of "criminal process" in the sense that the criminal process includes not only the stage of trial, but also a number of others (initiation of a criminal case, investigation).

Criminal proceedings are called criminal proceedings. This concept is used in the Code of Criminal Procedure (Art. 6, II, etc.). In this sense, the concepts of "criminal proceedings" and "criminal proceedings" act as equivalent and cover all proceedings in the case, including the activities of the bodies of inquiry, investigation, and the prosecutor. This is due to the fact that the legislator sought to emphasize the particular importance in all proceedings of the judicial stages, in which, in fact, justice is carried out.

2. CRIMINAL PROCEDURE, ITS INTERRELATION WITH OTHER LEGAL DISCIPLINES

criminal process as industry law is set of legal rules governing criminal proceedings. The subject criminal procedural law are those social relations that arise in the process of consideration and resolution of a criminal case. method criminal procedure law is the procedural regulation of certain relations, since criminal procedure law is a procedural law. The criminal process as a branch of law is an integral part of the system of Russian law.

Science of criminal procedure (branch of knowledge) is called upon to study the relevant legislation, the practice of its application, the doctrine that is being formed on this basis, historical experience and the experience of other states in this area. On the basis of such a study, recommendations are developed to improve criminal justice and the teaching of relevant academic disciplines.

The criminal process interacts with many branches of law and their respective sciences.

The most versatile and deep are the connections of criminal procedure law with constitutional law. The Constitution determined that the scope of the criminal procedure law was regulated only by federal law; established a hierarchy of laws (Art. 71, 76); formulated the basic principles of criminal proceedings (Art. 19, 21-26, 45-50, 1 18-123, etc.); determined the judicial system and federal courts in the country (art. 125 127, etc.). Finally, the Constitution of the Russian Federation clearly defines the rights and freedoms of man and citizen (Chapter 2); the main components of the legal system, the supremacy and direct effect of the Constitution were established (Article 15).

Close to criminal procedural law is criminal law. It is possible to establish a criminal legal relationship and apply measures of criminal liability only within the framework of criminal procedural relations. It is possible to apply the norms of criminal law only simultaneously with the application of the norms of criminal procedural law, and only the subjects of criminal procedural relations have the right to do this.

Undoubtedly, the connection of criminal procedure law with penitentiary right. The norms of the Code of Criminal Procedure also regulate the procedure for appointing and changing the regime of detention of a convicted person, the appeal of a sentence for execution, and provide for the procedure and conditions for the execution and serving of sentences.

Civil law also interacts with criminal procedure law. The infliction of harm by a crime gives rise to the right of the victim to compensation for property damage or compensation for moral damage. At the same time, the law allows for the possibility of filing claims both in criminal proceedings and in civil proceedings.

Developed criminalistics tactical methods of conducting investigative actions, methods of investigating certain types of crimes contribute to increasing the effectiveness of the operation of procedural norms during the preliminary investigation and in court proceedings. Achievements in the science of criminology affect the legislative process of the formation of criminal procedural law.

Data criminology about the parameters and methodology for studying the personality of the accused, about the causes and conditions that contributed to the commission of crimes, enrich the possibilities of the criminal process.

3. CONCEPT AND SYSTEM OF STAGES OF CRIMINAL PROCEEDINGS

The proceedings go through certain stages (parts), called stages of the criminal process. Stages are interconnected, but relatively independent parts of the process. The stages alternate, replacing one another in a strict sequence determined by the criminal procedure law. The set of stages forms a system of criminal proceedings. The following stages are distinguished.

1. Criminal proceedings - the initial stage of the process, in which authorized officials, if there is a reason and grounds for this, decide on the initiation of a criminal case, the refusal to initiate a criminal case or the transfer of a report on a crime according to jurisdiction. Only after the initiation of a criminal case is it possible to carry out investigative actions, measures of procedural restraint (with exceptions that are of an urgent nature).

2. Preliminary investigation (inquiry and preliminary investigation). At this stage, evidence is collected, consolidated, verified and evaluated in order to establish the presence or absence of an event of a crime, the persons guilty of its commission, the nature and amount of damage caused by the crime, and other circumstances relevant to the case.

3. Preparing a case for trial. At this stage of the process, the judge single-handedly, getting acquainted with the case, finds out whether the case has factual and legal grounds for considering it in a court session, and if such grounds exist, takes the necessary preparatory actions for the court session or schedules a preliminary hearing.

4. Judicial sitting. At this stage, in conditions of publicity, immediacy, continuity, the case is considered and resolved on the merits. The trial ends with an acquittal or guilty verdict. At the court session, the issue of the application of compulsory medical measures is considered and resolved.

5. Proceedings in the court of second instance. Proceedings in the court of second instance take place in the order of appeal and cassation appeal against court decisions that have not entered into legal force. Appeal proceedings are provided solely for the review of sentences or other decisions of the justice of the peace.

6. Execution of the sentence. This stage includes an appeal to the execution of a sentence that has entered into legal force, rulings, court decisions and proceedings for consideration and resolution by the court of issues related to the execution of the sentence.

7. Manufacture in the supervisory authority includes the revision of sentences and other court rulings that have entered into force.

8. Resumption of proceedings in a criminal case due to new or newly discovered circumstances. In the presence of these circumstances, it is possible to cancel the verdict of the court and resume the proceedings in the criminal case.

Each stage of the process is characterized by: 1) immediate tasks; 2) a certain circle of bodies and persons participating in it; 3) procedural form; 4) the specific nature of the criminal procedural relations arising between the subjects in the process of proceedings on the case; 5) the final procedural act (decision), which completes the cycle of procedural actions and entails the transition of the case to the next stage.

4. CRIMINAL PROCEDURE FUNCTIONS, GUARANTEES AND PROCEEDING FORM

All criminal procedural activities of the court, prosecutor, investigator and interrogator in the investigation and judicial review of a criminal case are carried out in procedural form, provided for by the Code of Criminal Procedure. The criminal procedural form is a legally established procedure (procedure) for criminal proceedings: the sequence of stages and conditions for the transition of a case from one stage to another; conditions characterizing production at a specific stage; grounds, conditions and procedure for conducting investigative and judicial actions; content and form of decisions that can be made.

It is customary to distinguish between the forms of a separate action (for example, interrogation, search, presentation for identification), a separate stage of criminal proceedings (for example, the initiation of a criminal case) and the entire criminal process.

Compliance with the requirements of the Criminal Procedure Code for the form of conducting procedural actions is mandatory both for state bodies (court, prosecutor, investigator, inquiry) and for citizens (victims, accused, witnesses, etc.). Thus, the legislator seeks to ensure the most effective and uniform performance of certain investigative and judicial actions with strict observance of the rule of law and the rights of citizens. The Constitution of the Russian Federation draws attention to the need to comply with the criminal procedure form when it indicates the inadmissibility of using evidence obtained in violation of federal law (part 2 of article 50). The procedural form also includes some rules that are purely ritual in nature.

This is, for example, the rules of the court session (Article 257 of the Code of Criminal Procedure). However, these rules are also important. Thus, the rule that those present in the courtroom, not excluding the composition of the court, listen to the verdict standing up, is dictated by respect for the court and its decision, rendered on behalf of the state.

It is necessary to distinguish from the procedural form criminal procedural functions. They are considered to be the main directions of criminal procedural activity carried out by the subjects of the criminal process. There is no consensus on the number of such functions, although everyone recognizes the existence of the functions of prosecution (criminal prosecution), defense, and resolution of the case. Functions are interconnected (for example, investigation and resolution of the case). Functions are implemented in different ways: simultaneously or sequentially (accusation and defense).

Procedural and legal guarantees - these are the legal means contained in the norms of law that provide all subjects of criminal procedure with the opportunity to fulfill their obligations and use the rights granted.

Since one of the parties to the procedural legal relationship is always a state body or an official endowed with authority, procedural guarantees of the individual, the protection of their legal rights and interests, and the right to judicial protection are of particular importance in the criminal process. The real provision of the right of the individual, primarily the accused, is a criterion for assessing the democracy, humanism of the criminal process. The basis of guarantees of individual rights in the field of criminal procedure is the rights and freedoms of a person and citizen, fixed and ensured by the Constitution.

5. SOURCES OF CRIMINAL PROCEDURE

Based on the literal interpretation of Art. 1 of the Code of Criminal Procedure, the procedure for criminal proceedings is determined only laws, generally recognized principles and norms of international law and international treaties. The laws that establish the procedure for criminal proceedings include the Constitution of the Russian Federation, the Code of Criminal Procedure based on it and some other federal laws.

1. The Constitution of the Russian Federation has the highest legal force, direct effect and is applied throughout the Russian Federation (Article 15), therefore, in the criminal process, constitutional norms can be applied directly as normative acts of the highest legal force.

2. CPC consists of 6 parts, 19 sections, 477 articles. Part 1 “General Provisions” sets out the rules that apply at all stages of the process. These are norms that express the purpose, principles of criminal proceedings, indicate the basic rights of participants in the process, rules on evidence and proof, determine the grounds for choosing preventive measures and choosing a specific type of these measures. Part two regulates pre-trial proceedings, and part three regulates judicial proceedings. Part four contains rules governing the special procedure for criminal proceedings. Part five establishes the procedure for international cooperation in the field of criminal proceedings. The sixth part regulates the procedure for using forms of procedural documents.

3. Generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system (part 4 of article 15 of the Constitution). With regard to criminal proceedings, this means that if an international treaty of the Russian Federation establishes rules other than those provided for by the Code of Criminal Procedure, then the rules of the international treaty are applied.

4. Other laws in the system of sources of criminal procedure law (about the prosecutor's office, about the police) they also regulate criminal procedure relations, but to a much lesser extent. Basically, they have their own subject of legal regulation, for example, the legal position of a judge.

By-laws, including departmental ones, do not contain criminal procedural norms. Orders, instructions, instructions of the heads of ministries and departments may relate to the organization of investigative work, the search for the accused, the use of forensic technology, personnel issues, but they cannot change or supplement the criminal procedure law.

The clarifications of the Plenum of the Supreme Court of the Russian Federation contribute to the correct application of the law, according to which the clarification is given, by all state bodies and officials. However, they can only clarify norms, not create them.

The question of whether the criminal procedural norms contain decisions of the Constitutional Court is resolved somewhat differently. In accordance with Art. 6 of the Federal Law on the Constitutional Court of the Russian Federation, decisions of the Constitutional Court of the Russian Federation are binding on the entire territory of the Russian Federation.

In other words, the bodies and officials involved in criminal proceedings, when resolving cases, should be guided not by the provisions of the articles of the law, according to which it was decided to recognize them as inconsistent with the Constitution of the Russian Federation, but by the prescriptions established in the decision of the Constitutional Court of the Russian Federation.

6. CRIMINAL PROCEDURE LAW. THE OPERATION OF THE CRIMINAL PROCEDURE LAW IN TIME, SPACE AND BY PERSON

Criminal Procedure Law - this is a normative act adopted by the highest body of state power that regulates the procedure for initiating, investigating, considering and resolving criminal cases, the activities of participants in criminal proceedings and the social relations that develop in the field of this activity.

1. Proceedings in criminal cases on the territory of the Russian Federation, regardless of the place where the crime was committed, are in all cases conducted in accordance with the Code of Criminal Procedure, unless otherwise provided by an international treaty of the Russian Federation (Part 1, Article 2 of the Code of Criminal Procedure).

2. Proceedings in criminal cases on crimes committed on an air, sea or river vessel (ship) that is outside the Russian Federation under the flag or with the identification mark of the Russian Federation, if the vessel is assigned to a port in the Russian Federation, shall be carried out in accordance with the criminal and criminal procedural legislation of the Russian Federation (part 2 of article 2 of the Code of Criminal Procedure).

3. During the proceedings on a criminal case, the criminal procedure law is applied, which is in force during the performance of the relevant procedural action or the adoption of a procedural decision, unless otherwise established by the Code of Criminal Procedure (Article 4 of the Code of Criminal Procedure).

By virtue of h. 3 Article. 15 of the Constitution of the Russian Federation, laws cannot be applied if they are not officially published. The procedure for official publication is determined by the Federal Law "On the procedure for the publication and entry into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly." Federal constitutional, federal laws are subject to official publication within seven days from the date of their signing by the President of the Russian Federation. International treaties ratified by the Federal Assembly are published simultaneously with federal laws on their ratification. The official publication is the first publication of its full text in the "Parliamentary newspaper", "Rossiyskaya gazeta" or "Collection of legislation of the Russian Federation". The effect of a law shall be terminated in cases where: a) a new law has entered into force, which effectively excludes the validity of the previous one; b) the law is repealed.

The criminal procedure law does not have retroactive effect.

4. Proceedings in criminal cases on crimes committed by foreign citizens or stateless persons on the territory of the Russian Federation are conducted in accordance with the rules of the Code of Criminal Procedure. If a crime is committed on the territory of the Russian Federation by a foreign citizen who subsequently finds himself outside its borders, the issue of his extradition for criminal prosecution or criminal prosecution in a foreign state is decided according to the rules of international cooperation in the field of criminal proceedings (Article 458 of the Code of Criminal Procedure).

5. Proceedings in relation to persons with diplomatic immunity are carried out only at the request of these persons or with their consent, which is requested through the Ministry of Foreign Affairs of the Russian Federation. Specific conditions for conducting investigative actions against persons with diplomatic immunity and privileges, as well as on the premises and on the territory of private and diplomatic residences, are regulated by international treaties.

7. CONCEPT, SIGNIFICANCE AND SYSTEM OF PRINCIPLES OF CRIMINAL PROCEDURE

Principles of the Russian criminal process are general guidelines enshrined in legal norms, expressing the democratic nature and main features of the Russian criminal process.

Principle Criteria criminal process are as follows.

1. A provision constituting a principle is always enshrined in law, i.e. is legal.

2. A principle is not just any, but a basic rule that reflects the essence of the criminal process. The activities of the body of preliminary investigation, the prosecutor or the court, in the course of which the principles of criminal procedure are violated, cannot be recognized as criminal procedure.

3. Failure to comply with the requirements of one principle of criminal procedure inevitably violates the provisions of any other principle of the same branch of law.

4. The principles of the criminal process always reflect its democracy.

The principles of criminal proceedings cannot be arbitrarily determined by the legislator, they reflect the type of state and the law corresponding to it, the level of development of theoretical thought, judicial practice, and the legal consciousness of society.

The principles of criminal proceedings are norms of guiding importance, i.e. are subject to direct application and are binding on all participants in criminal proceedings, along with specific rules. The binding nature of the principles of criminal procedure is guaranteed by their enshrining in the Constitution of the Russian Federation. In the event of ambiguities in relation to the content of a particular norm of the criminal procedure law, it must be interpreted by the law enforcer in the context of the meaning attached to it by the relevant principle of criminal proceedings.

Despite the certainty of the very concept of the principle of criminal procedure, the question of the system of principles has been one of the most controversial for decades. Moreover, the Code of Criminal Procedure of the RSFSR of 1960 did not pay special attention to this issue at all. Therefore, for a long time it was considered purely theoretical and controversial. A convincing solution to the problem did not turn out in the Code of Criminal Procedure of the Russian Federation, where the principles of criminal proceedings are given a separate chapter. Many authors unequally formulate the principles, and, accordingly, the positions of scientists differ from each other also in the number of principles that make up the system.

According to the place of consolidation, the principles of the criminal process are divided into constitutional and unconstitutional, according to their purpose - into judicial and judicial principles, as well as into those that apply at all stages of the process and those that apply at individual stages. There is an opinion that, based on the fact that all principles are equally significant for the proper implementation of criminal proceedings, classification of principles on various grounds is inappropriate.

The Code of Criminal Procedure highlights the following principles: legality; administration of justice only by the court; respect for the honor and dignity of the individual; personal integrity; protection of human and civil rights and freedoms; the inviolability of the home; secrecy of correspondence, telephone and other conversations; presumption of innocence; competitiveness of the parties; providing the suspect, the accused with the right to defense; freedom to assess evidence; the language of criminal proceedings; the right to appeal proceedings and decisions.

8. LEGALITY AS A PRINCIPLE OF CRIMINAL PROCEEDINGS. IMPLEMENTATION OF JUSTICE ONLY BY THE COURT

Under legality means strict observance and implementation of the requirements of the Constitution of the Russian Federation, laws and other regulations corresponding to them by all state and non-state institutions and organizations, officials, and citizens. The main provisions of this principle are enshrined in Part 2 of Art. 15 of the Constitution of the Russian Federation, and in relation to criminal proceedings - also in other articles of the Constitution (Articles 49, 120, 123, etc.), in the Code of Criminal Procedure of the Russian Federation (Article 7) and in other norms of criminal procedure law.

Legality in criminal proceedings in accordance with Art. 7 of the Code of Criminal Procedure of the Russian Federation is expressed in the fact that: 1) the court, the prosecutor, the investigator, the body of inquiry and the interrogator are not entitled to apply a federal law that contradicts the Code of Criminal Procedure of the Russian Federation;

2) the court, having established in the course of the proceedings on a criminal case, a discrepancy between a federal law or another regulatory legal act of the Code of Criminal Procedure of the Russian Federation, makes a decision in accordance with the latter;

3) violation of the norms of the Code of Criminal Procedure of the Russian Federation by a court, prosecutor, investigator, body of inquiry or interrogator in the course of criminal proceedings entails the recognition of evidence obtained in this way as inadmissible;

4) court rulings, decisions of a judge, prosecutor, investigator, inquirer must be legal, justified and motivated. The principle of legality covers all the principles of criminal proceedings and is common to all other principles of the criminal process, which are various expressions of the principle of legality. Therefore, legality can be called the principle of principles, and all other principles can be called principles for the implementation of legality in criminal proceedings.

The principle of administration of justice only by the court, formulated in Art. 18 of the Constitution of the Russian Federation, was developed in Art. 49 of the Constitution of the Russian Federation, Art. 8 of the Code of Criminal Procedure of the Russian Federation, revealing the very essence of criminal justice: no one can be found guilty of committing a crime and subjected to criminal punishment except by a court verdict and in the manner prescribed by law.

The principle of administration of justice only by the court provides for the exclusive right of the court to administer justice and does not allow the transfer of this function to any other body of the state. The exclusive right of the court to administer justice comes from the fact that the activities of the court proceed in a special legal order. Consideration of a criminal case in the administration of justice takes place in the form of an open, oral court session. The court session procedure involves a direct examination of all evidence collected in a criminal case: interrogation of witnesses, examination of material evidence, disclosure of documents, etc.

The defendant according to paragraph 3 of Art. 8 of the Code of Criminal Procedure cannot be deprived of the right to have his criminal case considered in that court and by the judge to whose jurisdiction it is referred. The decision of the verdict by the illegal composition of the court, i.e. contrary to Art. 31 Code of Criminal Procedure general and art. 32 Code of Criminal Procedure of the Russian Federation of territorial jurisdiction, or illegal composition of the jury in accordance with Part 2 of Art. 381 of the Code of Criminal Procedure of the Russian Federation is a violation of the criminal procedure law and in any case serves as the basis for the cancellation or change of the court decision.

9. COMPETITION OF THE PARTIES AS A PRINCIPLE OF CRIMINAL PROCEEDINGS. PRESUMPTION OF INNOCENCE

Essence of the principle competitiveness of the parties in criminal proceedings is characterized by the following main points.

1. The procedural interests of the parties performing various functions are opposite.

2. The functions of prosecution and defense are strictly separated from each other.

3. The duty of the court is to resolve the criminal case and create the necessary conditions for the parties to fulfill their procedural obligations and exercise the rights granted to them.

4. Equal procedural rights of the parties serve as a guarantee against unilateralism, allow the court to pass a lawful and justified verdict.

The adversarial form of criminal proceedings assumes that a trial in a criminal case can only be started if there is an indictment (act) approved by the prosecutor, or a complaint from a private prosecutor who insists on the satisfaction of their demands before the court. It also follows from this rule that the refusal of the initiator of the trial from the accusation (the prosecutor from supporting the state prosecution, the private prosecutor from the complaint, the plaintiff from the lawsuit) or the recognition of the complaint, accusation or lawsuit by the opposite party entails the termination of the proceedings.

The adversarial beginning is also characteristic of the pre-trial stages of legal proceedings, however, it is realized to the fullest extent when resolving a criminal case in court.

The principle of the presumption of innocence presented in Part 1 of Art. 49 of the Constitution of the Russian Federation, according to which "everyone accused of committing a crime is considered innocent until his guilt is proven in the manner prescribed by federal law and established by a court verdict that has entered into force."

According to Art. 14 of the Code of Criminal Procedure of the Russian Federation, the suspect or the accused is not required to prove his innocence. The burden of proving the prosecution and refuting the arguments put forward in defense of the suspect or the accused lies with the prosecution. All doubts about the guilt of the accused, which cannot be eliminated in accordance with the procedure established by the Code of Criminal Procedure of the Russian Federation, shall be interpreted in favor of the accused. A guilty verdict cannot be based on assumptions.

The essence of the principle of the presumption of innocence expresses an objective legal position. Not the personal opinion of this or that person, but the law considers the accused innocent until his guilt is proved in the manner prescribed by law and established by a court verdict that has entered into legal force. Only at the moment of entry into legal force of a guilty verdict of the court can the convict be considered guilty of a crime and be subjected to criminal penalties. Up to this point, any public statements about the guilt of a person or restriction of the rights of the accused (for example, housing, labor, etc.) applied to persons guilty of crimes will be a violation of this principle.

The purpose of the presumption of innocence is to procedurally restrain the subjects of criminal proceedings conducting proceedings on the case, as well as any other persons in relation to the accused (suspect), which ensures a comprehensive and complete study of the circumstances of the case, eliminates the accusatory bias, protects the rights of the person brought to criminal responsibility.

10. INVIOLABILITY OF HOUSING, SECRET OF CORRESPONDENCE, TELEPHONE AND OTHER NEGOTIATIONS AS PRINCIPLES OF CRIMINAL PROCEEDINGS

The content of this principle follows from the one enshrined in Art. 25 of the Constitution of the Russian Federation, the imperative of the inviolability of the home.

Dwelling means an individual residential building with residential and non-residential premises included in it, residential premises, regardless of the form of ownership, included in the housing stock and used for permanent or temporary residence, as well as other premises or buildings that are not included in the housing stock, but used for temporary residence (Clause 10, Article 5 of the Code of Criminal Procedure of the Russian Federation). The concept of dwelling does not include premises that are not adapted for permanent or temporary residence (for example, cellars, barns, garages and other utility rooms separated from residential buildings).

Search and seizure in a dwelling may be carried out on the basis of a court decision. The court decision is made on the basis of a reasoned decision of the investigator, issued with the consent of the prosecutor, on the need to conduct investigative actions related to the restriction of the right to enter the home. An exception to this rule, i.e. the performance of an action without the permission of the court is possible only in cases of urgency. It is carried out by order of the investigator, according to the rules of Part 5 of Art. 165 Code of Criminal Procedure of the Russian Federation. But even in this exceptional case, when the judge checks the legitimacy of the investigator's actions and recognizes them as illegal, all evidence obtained in the course of such an investigative action is recognized as inadmissible.

Privacy, maintaining the confidentiality of transmitted information guaranteed Art. 23 of the Constitution of the Russian Federation.

The secrecy of communication in any form (correspondence, telephone conversations, etc.) is protected. According to Art. 15 of the Federal Law "On Postal Communication" information on the address data of users of postal services, on postal items, postal money transfers, telegraph and other messages included in the scope of activities of postal operators, as well as these postal items themselves, transferred funds, telegraph and other messages are secret communications and can only be issued to senders or their representatives.

According to part 2 of Art. 13 of the Code of Criminal Procedure of the Russian Federation, seizure of postal and telegraph items and their seizure in communication institutions, control and recording of telephone and other conversations are allowed only on the basis of a court decision. The decision is made on the basis of a reasoned petition of the investigator, made with the consent of the head of the investigative body. Information received by someone in violation of the secrecy of correspondence is recognized as inadmissible evidence and cannot be used in criminal proceedings. The principle of ensuring the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications does not cease to operate from the moment this right is restricted on the basis of a court decision in the cases indicated above. The Code of Criminal Procedure ensures that the information received is kept secret throughout the entire criminal proceedings.

In an open court session, correspondence, recording of telephone and other conversations, telegraphic, postal and other items may be disclosed only with the consent of the persons who are the addressees of this correspondence. Otherwise, these materials shall be disclosed only when the public is removed from the courtroom.

11. RESPECT FOR HONOR, PERSONAL Dignity, PERSONAL INVIOLABILITY, PROTECTION OF RIGHTS AND FREEDOMS OF HUMAN AND CITIZEN IN CRIMINAL PROCEEDINGS AS PRINCIPLES OF CRIMINAL PROCEEDINGS

According to Art. 21 of the Constitution of the Russian Federation personal dignity protected by the state, no one shall be subjected to torture, violence, other cruel or degrading treatment or punishment. No one can be subjected to medical, scientific or other experiments without voluntary consent.

These provisions are also reflected in the criminal procedural legislation in relation to the participants in criminal proceedings.

The court, the prosecutor, the investigator, the body of inquiry and the investigator in the course of criminal proceedings are obliged to respect the honor and dignity of the persons participating in the case, as well as to suppress the actions of other subjects that detract from the dignity of a person or endanger his life and health. It is prohibited to carry out investigative actions that put citizens participating in them in a humiliating position. When examining a person of the opposite sex, the investigator (inquirer) is not present if the examination is accompanied by the exposure of the person. A personal search is carried out by persons of the same sex as the person being searched and in the presence of attesting witnesses, specialists of the same sex participating in this investigative action. In the course of an investigative experiment, it is prohibited to recreate conditions that are dangerous to the life and health of the suspect, the accused and other persons.

The principle of personal integrity in criminal proceedings emphasizes the importance of reasonableness and legal grounds for the arrest and detention of a person as a suspect in a crime, compliance with the rules of his detention, as well as placement in a medical institution only on the basis of a court decision.

Particularly weighty grounds are required for detention as a last resort. It is possible only in cases of crimes that provide for punishment in the form of deprivation of liberty, and if the court comes to the conclusion that the person held criminally liable, being at large, can hide from the investigation and the court, obstruct the course of the investigation, or take the path of committing a new crime .

According to Art. 11 Code of Criminal Procedure rights and freedoms of man and citizen protected in criminal proceedings. The harm caused to a person as a result of violation of his rights and freedoms by the court, as well as by officials carrying out criminal prosecution, is subject to compensation on the grounds and in the manner established by the Code of Criminal Procedure of the Russian Federation.

The court, prosecutor, investigator, interrogating officer are obliged to explain to the participants in criminal proceedings their rights, duties, responsibilities and ensure the possibility of exercising these rights.

Officials, within their competence, take security measures in relation to the victim, witness or their close relatives, relatives, close persons, if there is sufficient evidence that they are threatened with dangerous illegal acts. In this case, the investigator, with the consent of the head of the investigative body, issues a decision, which sets out the reasons for the decision to keep this data secret, indicates the pseudonym of the participant in the investigative action and provides a sample of his signature, which he will use in the protocols of investigative actions. The decision is placed in an envelope, which is sealed and attached to the criminal case (part 9 of article 166 of the Code of Criminal Procedure of the Russian Federation).

12. PROVIDING THE RIGHT OF DEFENSE TO A SUSPECT, ACCUSED, THE LANGUAGE OF CRIMINAL PROCEEDINGS AS PRINCIPLES OF CRIMINAL PROCEEDINGS

The right of the suspect, the accused to defense is a set of procedural means, using which he can resist against the accusation. This is the right to know what he is accused of, to challenge participation in the commission of a crime, to refute evidence, to present evidence, etc. At the same time, the list of rights used for defense is not exhaustive: clause 11, part 3, art. 46 of the Criminal Procedure Code of the Russian Federation allows you to defend yourself by means and methods not prohibited by law.

Defense in criminal cases must be carried out by lawyers. To confirm his status as a lawyer, the defense attorney presents a lawyer's identification card, and to confirm that he has been entrusted with defense, a warrant.

Participation of a defense counsel in criminal proceedings is mandatory if:

1) the suspect, the accused did not refuse counsel;

2) the suspect, the accused is a minor;

3) the suspect, the accused, due to physical or mental disabilities, cannot independently exercise his right to defense;

4) the suspect, the accused does not speak the language in which the criminal proceedings are conducted;

5) the person is accused of committing a crime for which a sentence of imprisonment for a term exceeding fifteen years, life imprisonment or the death penalty may be imposed;

6) the criminal case is subject to consideration by a court with the participation of jurors;

7) the accused filed a petition for consideration of the criminal case in accordance with the procedure established by Chapter 40 of the Code of Criminal Procedure. A prerequisite for the exercise of this right is the possibility of free choice of a defender.

An integral part of the right to defense is the right of the accused and the suspect to free legal assistance of a lawyer appointed by a defense counsel by a court decision, a prosecutor, an investigator, an inquirer. Violation of the right to defense is a significant violation of the criminal procedure law and entails the annulment of the sentence in the case.

Initial provisions of the definition language, on which the criminal process is being conducted, are concentrated in Art. 26, 68 of the Constitution of the Russian Federation, Art. 18 Code of Criminal Procedure of the Russian Federation. Criminal proceedings are conducted in Russian, as well as in the state languages of the republics that are part of the Russian Federation. In the Supreme Court of the Russian Federation, military courts, criminal proceedings are conducted in Russian.

Participants in criminal proceedings who do not know or do not know enough the language in which the proceedings are conducted in a criminal case must be explained and the right is secured:

make statements;

give explanations and testimonies;

make requests;

make complaints;

speak in court in their native language or another language they speak;

use the help of an interpreter for free. If investigative and court documents are subject to mandatory delivery to the suspect, the accused, as well as other participants in criminal proceedings, then these documents must be translated into the native language of the corresponding participant in criminal proceedings or into the language that he knows.

13. FREEDOM OF ASSESSMENT OF EVIDENCE, THE RIGHT TO APPEAL PROCEEDINGS AND DECISIONS AS PRINCIPLES OF CRIMINAL PROCEEDINGS

The principle of freedom of assessment of evidence, enshrined in Art. 17 of the Code of Criminal Procedure, lies in the fact that the judge, jurors, prosecutor, investigator, interrogator evaluate the evidence according to their inner conviction, based on the totality of the evidence available in the case, guided by the law and conscience. In this case, no evidence has a predetermined force.

Under the evaluation of evidence is understood the mental (logical) activity of the subjects of the criminal process, carrying out the proof, by determining the relevance, admissibility, reliability and sufficiency of evidence for resolving the case.

The principle under consideration, on the one hand, provides the subjects of the criminal process with "internal freedom" of assessing evidence, since the law does not establish the force (probative significance) of certain evidence binding on the participants in criminal proceedings, does not bind the assessment of the reliability, sufficiency of evidence with any formal prescriptions, does not establish a minimum amount of evidence for the recognition of certain facts as proven.

At the same time, "freedom" in assessing evidence is not absolute, based on the intuition of a participant in criminal proceedings. The law imposes a number of requirements on the free assessment of evidence.

1. The internal conviction of the subjects of proof must be based "on the totality of evidence available in the case", i.e. it must have an objective basis.

2. When evaluating evidence, a participant in a proceeding must be guided by the law, which establishes, for example, the rules for the admissibility of evidence (Article 75 of the Criminal Procedure Code of the Russian Federation), gives the concept of evidence and the subject of proof, etc.

3. When assessing evidence, a participant in the process must be guided by his conscience - a moral guideline necessary for resolving a criminal case.

The constitutional and legal basis of the principle the right to appeal proceedings and decisions there are provisions on the right of everyone to judicial protection, provided for in Art. 46 of the Constitution of the Russian Federation.

The Code of Criminal Procedure grants the right to each participant in criminal proceedings at the pre-trial stages of the criminal process to file a complaint against the procedural action (inaction) of the prosecutor, investigator, body of inquiry and interrogator to the relevant prosecutor, head of the investigative body. If these actions (inaction) and decisions cause damage to the constitutional rights and freedoms of participants in criminal proceedings or restrict citizens' access to justice, a complaint may be filed with the court.

Another aspect of this principle is the provision of every convicted, acquitted (on the grounds of acquittal) right to appeal, cassation and supervisory review of the sentence in the manner prescribed by law. The Constitution of the Russian Federation states: "Everyone convicted of a crime has the right to review the sentence by a higher court in the manner prescribed by federal law ..." (Part 3, Article 50 of the Constitution of the Russian Federation).

If all domestic remedies have been exhausted, a person has the right, in accordance with the international treaties of the Russian Federation, to apply to the European Court of Human Rights.

14. CONCEPT AND CLASSIFICATION OF PARTICIPANTS OF CRIMINAL PROCEEDINGS

The previously existing criminal procedure law took a dualistic approach to the normative consolidation of this issue. On the one hand, Chapter 3 “Participants in the process, their rights and obligations” set out the procedural status of persons who have an independent legal interest in the case (accused, victim, etc.) and persons who assist them in the exercise of their rights ( defense attorney, victim's representative, translator, etc.). On the other hand, in other sections there were provisions relating to such entities as the court, investigator, prosecutor, etc. Often, the powers of these subjects were dispersed across various chapters of the Code of Criminal Procedure of the RSFSR, which made it difficult to implement their procedural rights and obligations. This lack of clarity, objectively determined by the inability to recognize that the interest of all participants in the process in a fair resolution of the case should be equal, was the basis of the discussion about whether the concepts of “participant” and “subject” are identical, what should be the classification of subjects of criminal procedural relations, etc. .P.

The provisions of the new criminal procedure law put an end to this controversy. The legislator proceeds from the fact that “participant” and “subject” are unambiguous concepts. This conclusion can be made by the appearance in the Code of Criminal Procedure of the Russian Federation of Section II “Participants in criminal proceedings”, in separate chapters of which the procedural status of almost all possible subjects of criminal procedural relations is set out today. Groups of subjects are identified according to the criterion of the procedural function, implemented by the party to the relationship. Chapter 8 "Other participants in criminal proceedings" contains provisions regulating the rights and obligations of persons involved in criminal proceedings for various reasons (witness, expert, witness, etc.).

Participants in criminal proceedings can be classified according to various criteria. However, the most appropriate classification provided by the Code of Criminal Procedure. The Code of Criminal Procedure identifies the following groups of participants in criminal proceedings depending on the functions performed in the criminal process.

1. Court.

2. Participants in criminal proceedings on behalf of the prosecution: prosecutor; investigator; head of the investigative body; body of inquiry, head of the division of inquiry, interrogating officer; victim, representatives of the victim; private prosecutor, representatives of a private prosecutor; civil plaintiff, representatives of the civil plaintiff.

3. Participants in criminal proceedings on behalf of the defense: suspect, legal representatives of a minor suspect; the accused, the legal representatives of the minor accused; defender; civil defendant, representatives of the civil defendant.

4. Other participants in criminal proceedings: witness; expert, specialist; interpreter; understood.

Regardless of belonging to one or another of these groups, it can be stated that Participants in criminal proceedings are persons endowed with rights and responsibilities in accordance with their procedural status by the criminal procedural law. All of them enter into criminal procedural relations with other participants in criminal procedural relations.

15. THE COURT AS A PARTICIPANT IN CRIMINAL PROCEEDINGS

The court is the only body that, in accordance with the Constitution, has the right to administer justice in criminal cases.

The court, as the bearer of judicial power in criminal proceedings, is endowed with three types of powers.

1. Resolution of criminal cases (only the court is competent:

recognize a person guilty of committing a crime and impose a punishment on him;

to apply compulsory measures of a medical nature to a person;

to apply compulsory educational measures to a person;

cancel or change the decision made by the lower court (part 1 of article 29 of the Code of Criminal Procedure of the Russian Federation)).

2. On the restriction of the constitutional rights of citizens, including in the course of pre-trial proceedings (only the court, including in the course of pre-trial proceedings, is authorized to make decisions:

on choosing a measure of restraint in the form of detention, house arrest, bail;

on the extension of the period of detention;

on the placement of a suspect, an accused who is not in custody, in a medical or psychiatric hospital for the production of a forensic medical or forensic psychiatric examination, respectively;

on the inspection of the dwelling in the absence of the consent of the persons living in it;

on the performance of a search and (or) seizure in a dwelling;

on the production of a personal search, with the exception of cases provided for by Art. 93 of the Code;

on the production of seizure of items and documents containing state or other secrets protected by law, as well as information on deposits and accounts in banks and other credit organizations;

on the seizure of correspondence, permission to examine and seize it in communications institutions;

on the seizure of property, including funds of individuals and legal entities that are on accounts and in deposits or stored in banks and other credit organizations;

on the temporary removal of the suspect or the accused from office;

on the control and recording of telephone and other conversations (part 2 of article 29 of the Criminal Procedure Code of the Russian Federation)).

3. To control the legality of the actions of the body of inquiry, the inquirer, the investigator and the prosecutor (the court is competent in the course of pre-trial proceedings to consider complaints against actions (inaction) and decisions of the prosecutor, investigator, body of inquiry and interrogator (part 3 of article 29 of the Code of Criminal Procedure of the Russian Federation)).

Criminal cases are considered by federal courts of general jurisdiction collectively or by judges alone. If the accused so requests, the following criminal cases shall be considered collectively:

1) on grave and especially grave crimes - by a panel of three judges of a federal court of general jurisdiction or a single judge;

2) about the crimes specified in Part 3 of Art. 31 of the Code of Criminal Procedure of the Russian Federation (i.e. for the most serious crimes for which punishment up to the death penalty is threatened), consisting of a federal court judge and 12 jurors. Justices of the peace consider criminal cases only individually.

Criminal cases on appeals or appeals against sentences of justices of the peace are considered solely by judges of district courts.

In the cassation procedure and in the supervisory procedure, criminal cases are considered only collegially. Consideration of criminal cases in the cassation procedure is carried out by a panel of three, and in the supervisory case - at least three judges.

16. THE ACCUSED AND HIS PROCEDURAL STATUS

The accused a person is recognized in respect of whom a decision has been made to bring him as an accused (Article 171 of the Code of Criminal Procedure of the Russian Federation) or, in cases established by law, an indictment has been drawn up (Article 225 of the Code of Criminal Procedure).

The court, the prosecutor, the investigator and the interrogating officer are obliged to explain to the accused his rights and provide the opportunity to defend himself by all methods and means not prohibited by law (part 2 of article 16; part 4 of article 164; part 5 of article 172; article 267 of the Code of Criminal Procedure of the Russian Federation ).

The rights of the accused (Article 47 of the Criminal Procedure Code of the Russian Federation)

1. Know what he is accused of.

2. Get a copy of the decision to bring him as an accused, a copy of the decision to apply a preventive measure against him, a copy of the indictment or indictment.

3. Object to the accusation, testify on the charge brought against him or refuse to testify. The investigator is obliged to interrogate the accused immediately after he is charged (Part 1, Article 173 of the Code of Criminal Procedure). Repeated interrogation of the accused on the same charge in the event of his refusal to testify at the first interrogation can be carried out only at the request of the accused himself (part 4 of article 173 of the Code of Criminal Procedure).

4. Present evidence. Presenting evidence is a right, not an obligation, of the accused.

The obligation to collect evidence is assigned by law (part 1 of article 86 of the Code of Criminal Procedure of the Russian Federation) to the interrogating officer, investigator, prosecutor and court.

5. File motions and challenges.

6. To testify and explain himself in his native language or the language he speaks, to use the help of an interpreter free of charge.

7. To use the help of a defender, including free of charge; have private and confidential meetings with the defense counsel, including before the first interrogation of the accused, without limiting their number and duration.

8. To participate, with the permission of the investigator, in investigative actions carried out at his request or the request of his defense counsel or legal representative, get acquainted with the protocols of these actions and submit comments on them.

9. Get acquainted with the decision on the appointment of a forensic examination, put questions to the expert and get acquainted with the expert's opinion.

10. At the end of the preliminary investigation, get acquainted with all the materials of the criminal case and write out any information from the criminal case and in any volume; make copies of the materials of the criminal case at his own expense, including with the help of technical means.

11. To bring complaints against actions (inaction) and decisions of the inquirer, investigator, prosecutor and court and take part in their consideration by the court.

12. To object to the termination of the criminal case on non-rehabilitating grounds.

13. Participate in the trial of a criminal case in the courts of the first, second and supervisory instances, as well as in the consideration by the court of the issue of choosing a preventive measure.

14. Get acquainted with the minutes of the court session and submit comments on it.

15. Appeal against the verdict, ruling, court order and receive copies of the contested decisions; receive copies of complaints and presentations brought in the criminal case and file objections to these complaints and presentations.

16. Participate in the consideration of issues related to the execution of the sentence.

17. Protect yourself by other means and methods not prohibited by law.

17. THE SUSPECT AND HIS PROCEDURAL STATUS

Suspect is a person:

1) against whom a criminal case has been initiated;

2) who is detained in accordance with Art. 91 and 92 of the Code of Criminal Procedure;

3) to whom a measure of restraint has been applied prior to bringing charges;

4) who has been notified of the suspicion of committing a crime in accordance with Art. 223.1 Code of Criminal Procedure. A procedural act that puts a person in the position of a suspect is a decision to initiate a criminal case against him (Article 146 of the Code of Criminal Procedure) or a protocol of detention (Article 92 of the Code of Criminal Procedure), a decision to select a measure of restraint before bringing charges (Article 101), a written notice on suspicion of committing a crime (Article 223.1).

If the suspect was detained in accordance with Art. 90 and 91 of the Criminal Procedure Code of the Russian Federation, he must be interrogated no later than 24 hours from the moment of his actual detention in accordance with the requirements of Art. 189 and 190 of the Code of Criminal Procedure. The moment of actual detention of a person on suspicion of committing a crime is considered to be the moment of actual deprivation of freedom of movement of a person suspected of committing a crime (clause 15, article 5 of the Code of Criminal Procedure), carried out in accordance with the procedure established by the Code of Criminal Procedure. The investigator, the interrogating officer are obliged to notify close relatives or relatives of the suspect about the detention in accordance with Art. 96 of the Code of Criminal Procedure (see part 3 of article 46 of the Code of Criminal Procedure), however, if it is necessary to keep the fact of detention secret in the interests of the preliminary investigation, notification with the consent of the prosecutor may not be made, except when the suspect is a minor (part 4 of article 96 of the Code of Criminal Procedure ).

If a preventive measure was applied to the suspect before charges were filed in accordance with Art. 100 of the Code of Criminal Procedure, charges must be brought no later than 10 days from the moment of application of the preventive measure, and if the suspect was detained and then taken into custody - within the same period from the moment of detention. If charges are not brought within this period, the preventive measure is immediately canceled (Article 100 of the Code of Criminal Procedure).

The rights of the suspect (Article 46 of the Criminal Procedure Code of the Russian Federation)

1. Know what he is suspected of and receive a copy of the decision to initiate a criminal case against him, or a copy of the protocol of detention, or a copy of the decision to apply a preventive measure against him.

2. To give explanations and testimonies about the suspicion against him or refuse to give explanations and testimonies.

3. Have the assistance of a defense lawyer and have a private and confidential meeting with him until the first interrogation of the suspect.

4. Present evidence.

5. File motions and challenges.

6. Give testimony and explanations in his native language or the language he speaks; use the help of an interpreter for free.

7. Get acquainted with the protocols of investigative actions carried out with his participation, and submit comments on them.

8. To participate, with the permission of the investigator or interrogating officer, in investigative actions carried out at his request, the request of his defense counsel or legal representative.

9. To bring complaints against actions (inaction) and decisions of the court, prosecutor, investigator and interrogating officer.

10. Protect yourself by other means and methods not prohibited by law.

18. DEFENDER AND HIS PROCEDURAL POSITION

Defense in criminal cases as a general rule should lawyers. To confirm his status as a lawyer, the defense attorney presents a lawyer's identification card, and to confirm that he has been entrusted with defense, a warrant. The participation of representatives of trade unions or public organizations, as well as employees of legal (non-lawyer) firms and bureaus, as defenders is not provided for by the new Code of Criminal Procedure.

According to the ruling or decision of the court, along with the lawyer, one of the close relatives of the accused or another person, for whose admission the accused applies, may be admitted as a defense counsel. In proceedings before a justice of the peace, the said person is also allowed instead of a lawyer.

The defense counsel is invited by the suspect, the accused, his legal representative, as well as other persons on behalf of or with the consent of the suspect, the accused. The suspect, the accused has the right to invite several defense lawyers. At the request of the suspect, the accused, the participation of a defense counsel is provided by the interrogator, investigator or court. If the invited defense counsel fails to appear within 5 days from the date of the application for the invitation of a defense attorney, the inquirer, investigator or court shall have the right to propose to the suspect, the accused to invite another defense counsel, and in case of his refusal to take measures to appoint a defense counsel. The suspect, the accused shall have the right to refuse the assistance of a defense counsel at any time during the proceedings in a criminal case. Rejection of the protector not obligatory for the inquirer, investigator and court. The refusal of a defense counsel does not deprive the suspect or the accused of the right to apply in the future for the admission of a defense counsel to participate in the proceedings on a criminal case.

From the moment of admission to participation in a criminal case, the defense counsel has the right to:

1) have private and confidential meetings with the suspect, the accused, including before the first interrogation;

2) collect and present evidence necessary for the provision of legal assistance;

3) involve a specialist;

4) to be present at the presentation of charges;

5) participate in the interrogation of the suspect, the accused, as well as in other investigative actions performed with the participation of the suspect, the accused, or at his request or the request of the defense counsel himself;

6) get acquainted with the protocol of detention, the decision on the application of a measure of restraint, the protocols of investigative actions carried out with the participation of the suspect, the accused, other documents that were or should have been presented to the suspect, the accused;

7) after the completion of the preliminary investigation, get acquainted with all the materials of the criminal case, write out any information in any volume from the criminal case, make copies of the materials of the criminal case at his own expense, including with the help of technical means;

8) submit petitions and challenges;

9) participate in the trial of a criminal case in the courts of first, second and supervisory instances, as well as in consideration of issues related to the execution of a sentence;

10) bring complaints against actions (inaction) and decisions of the inquirer, investigator, prosecutor, court and participate in their consideration by the court;

11) use other means and methods of protection not prohibited by the Code of Criminal Procedure.

19. PROSECUTOR AS A PARTICIPANT IN CRIMINAL PROCEEDINGS

The prosecutor is an official authorized, within the limits of his competence, to carry out on behalf of the state criminal prosecution in the course of criminal proceedings, as well as supervision over the procedural activities of the bodies of inquiry and bodies of preliminary investigation (Article 37 of the Code of Criminal Procedure of the Russian Federation).

In the course of pre-trial proceedings in a criminal case, the prosecutor is authorized to:

1) verify compliance with the requirements of the federal law when receiving, registering and resolving reports of crimes;

2) issue a reasoned decision on sending the relevant materials to the investigative body or body of inquiry to resolve the issue of criminal prosecution on the facts of violations of the criminal law revealed by the prosecutor;

3) demand from the bodies of inquiry and investigative bodies to eliminate violations of federal legislation committed in the course of an inquiry or preliminary investigation;

4) give the interrogating officer written instructions on the direction of the investigation, the performance of procedural actions, give consent to the interrogating officer to initiate a petition before the court for the performance of a procedural action, which is allowed on the basis of a court decision;

5) cancel unlawful or unjustified decisions of a lower prosecutor, as well as unlawful or unjustified decisions of an interrogating officer;

6) to allow challenges filed with the interrogating officer, as well as his self-withdrawals;

7) remove the interrogating officer from further investigation if he has committed a violation;

8) withdraw any criminal case from the body of inquiry and transfer it to the investigator with the obligatory indication of the grounds for such transfer;

9) transfer the criminal case from one body of preliminary investigation to another in accordance with Art. 151 of the Code of Criminal Procedure, withdraw any criminal case from the preliminary investigation body of the federal executive body (under the federal executive body) and transfer it to the investigator of the Investigative Committee under the Prosecutor's Office of the Russian Federation with the obligatory indication of the grounds for such transfer;

10) approve the decision of the interrogating officer to terminate the proceedings on the criminal case;

11) approve the indictment or indictment in a criminal case;

12) return the criminal case to the inquirer, investigator with his written instructions on conducting an additional investigation, on changing the scope of the accusation or qualifying the actions of the accused, or to redraw the indictment or indictment and eliminate the identified shortcomings.

In court proceedings, the prosecutor maintains public prosecution before the court, enjoying equal rights with other participants in the trial (Article 15 of the Code of Criminal Procedure).

The public prosecutor takes an active part in the examination of evidence, expresses to the court his opinion on the essence of the charge and on other issues arising in the trial, on the application of criminal law and punishment in relation to the defendant. The prosecutor has the right, in the manner and on the grounds established in the Code of Criminal Procedure, to refuse to carry out criminal prosecution, which in pre-trial proceedings entails the termination of criminal prosecution, and in court, the prosecutor’s refusal to charge leads to the termination of the case.

20. INVESTIGATOR, HEAD OF INVESTIGATING BODY AS PARTICIPANTS OF CRIMINAL PROCEEDINGS

An investigator is an official authorized within the scope of his competence to carry out a preliminary investigation in a criminal case.

Powers:

1) initiate a criminal case, accept a criminal case for its proceedings or transfer it to the head of the investigative body for direction according to jurisdiction;

2) independently direct the course of the investigation, decide on the performance of investigative and other procedural actions, except in cases where obtaining a court decision or the consent of the head of the investigative body is required;

3) give the body of inquiry binding written instructions to carry out operational-search measures, the performance of certain investigative actions, etc. The investigator, in case of disagreement with the requirements of the prosecutor to eliminate violations of federal legislation, is obliged to submit his written objections to the head of the investigative body, who informs the prosecutor about this .

The head of an investigative body is an official who heads the relevant investigative unit, as well as his deputy (clause 38.1, article 5 of the Code of Criminal Procedure).

Powers:

1) entrust the conduct of a preliminary investigation to an investigator or several investigators, as well as withdraw the criminal case from the investigator and transfer it to another investigator, create an investigative group, change its composition, or accept the criminal case for its own proceedings (in this case, he has the rights of an investigator);

2) check the materials of the criminal case, cancel illegal or unreasonable decisions of the investigator;

3) give instructions to the investigator on the direction of the investigation, the performance of certain investigative actions, the involvement of a person as an accused, the election of a preventive measure against the suspect, the accused, the qualification of the crime and the amount of the charge;

4) give consent to the investigator to file a petition before the court for the selection, extension, cancellation or change of a measure of restraint or for the performance of another procedural action that is allowed on the basis of a court decision;

5) to allow challenges, declared to the investigator, as well as his self-withdrawals;

6) remove the investigator from further investigation if he has committed a violation;

7) extend the term of the preliminary investigation;

8) approve the decision of the investigator to terminate the proceedings on the criminal case;

9) return the criminal case to the investigator with his instructions on conducting an additional investigation.

The instructions of the head of the investigative body in a criminal case are given in writing and are binding on the investigator. An appeal against the instructions of the head of an investigative body by the investigator to the head of a higher investigative body does not suspend their execution, except in cases where the instructions relate to the withdrawal of a criminal case and its transfer to another investigator, bringing a person as an accused, qualifying a crime, the scope of the charge, choosing a measure of restraint, conducting investigative actions , which are allowed only by a court decision, as well as sending the case to the court or its termination.

21. AUTHORITY OF INQUIRY, HEAD OF THE DEPARTMENT OF INQUIRY, INTERESTING OFFICER AS PARTICIPANTS OF CRIMINAL PROCEEDINGS

Bodies of inquiry are state bodies and officials authorized to exercise inquiry and other procedural powers (clause 24, article 5 of the Code of Criminal Procedure).

These include (Articles 40, 151 of the Code of Criminal Procedure): 1) internal affairs bodies of the Russian Federation, as well as other executive authorities vested in accordance with federal law with the authority to carry out operational-search activities (according to the Federal Law "On the Investigative Activities" such bodies include : FSB agencies, federal state security agencies, customs authorities of the Russian Federation, the Foreign Intelligence Service of the Russian Federation, the Ministry of Justice of the Russian Federation, as well as authorities for controlling the circulation of narcotic drugs and psychotropic substances); 2) chief bailiff of the Russian Federation, chief military bailiff, chief bailiff of a constituent entity of the Russian Federation, their deputies, senior bailiff, senior military bailiff, as well as senior bailiffs of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation; 3) commanders of military units, formations, heads of military establishments or garrisons; 4) bodies of the State Fire Service; 5) bodies for control over the circulation of narcotic drugs and psychotropic substances; 6) border agencies of the federal security service; 7) customs authorities of the Russian Federation.

Head of the unit of inquiry - an official of the body of inquiry, heading the relevant specialized unit, which carries out a preliminary investigation in the form of an inquiry, as well as his deputy (clause 17.1, article 5 of the Code of Criminal Procedure).

Powers:

1) to entrust the interrogating officer with checking the report on the crime, making a decision on it or carrying out an inquiry in a criminal case;

2) withdraw the criminal case from the interrogating officer and transfer it to another interrogating officer;

3) check the materials of the criminal case;

4) give instructions to the interrogating officer on the direction of the investigation, the performance of certain investigative actions, on the choice of a measure of restraint in relation to the suspect, on the qualification of the crime and on the amount of the charge;

5) to cancel the unreasonable decisions of the interrogating officer on the suspension of the conduct of an inquiry in a criminal case;

6) submit a petition to the prosecutor to cancel illegal or unfounded decisions of the interrogating officer to refuse to initiate a criminal case. The instructions of the head of the unit of inquiry in a criminal case are given in writing and are binding on the investigator, but may be appealed by him to the head of the body of inquiry or the prosecutor. Appealing the instructions does not suspend their execution.

Inquirer - an official of the body of inquiry, authorized or authorized by the head of the body of inquiry to carry out a preliminary investigation in the form of an inquiry, as well as other powers provided for by the Code of Criminal Procedure (clause 7, article 5).

Eligible (ex officio) to carry out inquiries heads of bodies of inquiry, in other words, heads of these bodies, their deputies and full-time interrogators. In addition, the head of the body of inquiry, by delegating his powers, may authorize on the production of an inquiry of his subordinate.

Powers: 1) independently carry out investigative and other procedural actions and make procedural decisions, except for cases when it is required to obtain the consent of officials in criminal cases, for which preliminary investigation is not mandatory; 2) the performance of urgent investigative actions in criminal cases, in which the production of a preliminary investigation is mandatory.

22. VICTIGE AND HIS PROCEDURAL STATUS

The victim is an individual who has suffered physical, property, moral harm by a crime, as well as a legal entity in the event of damage to his property and business reputation by a crime (part 1, p. 42 of the Code of Criminal Procedure). The decision on recognition as a victim is formalized by a decision of the interrogating officer, investigator or court.

A person must be recognized as a victim, regardless of the degree of proof of the fact of committing a crime, which allegedly caused him physical, property, moral harm. Excessive delay in recognition as a victim unreasonably limits the ability of the victim of a crime to protect his legitimate interests with the help of procedural rights granted to him from the moment the inquirer, investigator, judge makes the relevant decision. In criminal cases on crimes, the consequence of which was the death of a person, the rights of the victim are transferred to one of his close relatives (part 8 of article 42 of the Code of Criminal Procedure). If a legal entity is recognized as a victim, its rights are exercised by a representative.

The victim, as a participant in the process on behalf of the prosecution, enjoys all the rights of a party in an adversarial process (Article 42 of the Code of Criminal Procedure).

К rights the victim include: the right to know the wording of the charges brought against the accused; to testify, including in their native language or the language they speak, using the assistance of an interpreter free of charge; have a representative. Participating in proving, the victim also has the right to present evidence, file petitions and challenges; participate in the production of investigative actions carried out at his request or the request of his representative, get acquainted with the protocol of these actions and file objections to them.

In the case of a forensic examination on the case, appointed at the request of the victim, he has the right to get acquainted not only with the decision itself, but also with the expert's opinion. In addition, the victim has the right to get acquainted with all the materials of the criminal case at the end of the preliminary investigation (regardless of the form of the end), to receive copies of the main procedural acts; participate in the preliminary hearing of the case in the court of first instance, including in connection with the filing of a motion to exclude evidence from the case as inadmissible. Being a party to the prosecution, the victim has the right to support the prosecution and speak in judicial debates during the trial of a criminal case. In addition, the victim has the right to file complaints against the verdict and other court decisions, including in connection with the leniency of the sentence imposed on the defendant or the need to apply the law on a more serious crime, and he can also file complaints against court decisions and take part in the court session of the court of the second and supervisory authorities.

If the victim fails to appear on the call without good reason, he may be brought to justice. The victim testifies according to the rules of interrogation of a witness, therefore, the victim is liable in accordance with Art. 307 and 308 of the Criminal Code of the Russian Federation.

23. OTHER PARTICIPANTS OF CRIMINAL PROCEEDINGS AND THEIR PROCEDURAL STATUS

К other participants criminal proceedings include persons who are sources of evidentiary information or who are involved in providing technical or other assistance (assistance) and certifying the progress and results of investigative actions. They are not parties.

A person is invited to participate in criminal proceedings as witness by decision of the inquirer, investigator, prosecutor, court to summon him for interrogation to give evidence. From the moment a summons is summoned for interrogation, a person begins to bear the duties of a witness and gets the opportunity to exercise his rights.

Any persons may be involved as witnesses in a criminal case, with the exception of those listed in Part 3 of Art. 56 Code of Criminal Procedure.

Rights: 1) refuse to testify against himself, his spouse, close relatives; 2) not to be interrogated without a break for more than four hours, with a maximum duration of interrogation of eight hours a day (Article 187 of the Criminal Procedure Code of the Russian Federation); 3) to use documents and recordings during interrogation, to apply for a sound recording during interrogation (Article 189 of the Code of Criminal Procedure of the Russian Federation); 4) get acquainted with the protocol of interrogation and make comments to be entered in the protocol (Article 166 of the Code of Criminal Procedure of the Russian Federation); 5) the right to reimbursement of expenses incurred in connection with the appearance for interrogation (Article 131 of the Criminal Procedure Code of the Russian Federation); 6) appear for interrogation with a lawyer, etc.

An expert is a person appointed in accordance with the procedure established by law to conduct a forensic examination and give an opinion. Any person who has the necessary special knowledge and is not interested in the outcome of the case can act as an expert.

Rights: 1) get acquainted with the materials of the criminal case related to the subject of forensic examination;

2) apply for the provision of additional materials; 3) participate in the proceedings and ask questions to the participants related to the subject of the examination; 4) give an opinion, refuse to give an opinion on issues beyond the scope of special knowledge (in writing); 5) bring complaints.

Specialist - a person with special knowledge, involved in the proceedings to assist in the discovery and seizure of objects and documents, the use of technical means, to raise questions to the expert. A specialist, unlike an expert, does not conduct research.

Rights: 1) refuse to participate if he does not have special knowledge; 2) to ask questions to the participants of the investigative action with the permission of the inquirer, investigator; 3) get acquainted with the protocol of the investigative action, submit comments on it; 4) bring complaints.

Translator - a person who is fluent in the language, knowledge of which is necessary for translation, involved in criminal proceedings, in cases provided for by law (part 1 of article 59 of the Code of Criminal Procedure).

Rights: 1) ask questions to the participants to clarify the translation; 2) get acquainted with the protocol of the investigative action, the court session and make comments on the correctness of the recording of the translation;

3) bring complaints.

Witness - a person not interested in the outcome of a criminal case, attracted by the interrogating officer, investigator to certify the fact of an investigative action, as well as for the content, course and results of an investigative action (part 1 of article 60 of the Code of Criminal Procedure).

Rights: 1) participate in the investigative action, make comments about it, which are entered into the protocol; 2) get acquainted with the protocol of the investigative action; 3) make complaints.

24. CIVIL SUIT IN CRIMINAL PROCEEDINGS AND ITS PROCEDURAL FORMULATION

A civil plaintiff is an individual or legal entity that has filed a claim for compensation for property damage, if there are grounds to believe that the damage was caused to him directly by a crime. The decision to recognize a person as a civil plaintiff is formalized by the decision of the investigator, the interrogating officer by the ruling (decree) of the court (Article 44 of the Code of Criminal Procedure).

The connection of a civil claim with a criminal case facilitates the establishment of grounds for satisfaction (or refusal) of a civil claim, saves the victim and witnesses from appearing in court, first in a criminal and then in a civil case.

A civil claim in a criminal case can be brought after the initiation of a criminal case and before the end of the judicial investigation in the court of first instance (part 2 of article 44 of the Code of Criminal Procedure) as the person himself (individual or legal), who suffered property damage from a crime or an act of an insane person prohibited by criminal law and other persons acting in his interests.

The civil plaintiff has the right: to present evidence; to give explanations on the brought claim and testimony in their native language or the language that he speaks, using the help of an interpreter free of charge; make motions and challenges; participate in investigative actions carried out at his request; to get acquainted with the materials of the case at the end of the investigation and receive copies of the procedural decisions relating to the civil suit filed by him; participate in the trial of the case, having the rights of a party; to speak in court debates to substantiate a civil claim; file complaints against the actions and decisions of the inquirer, investigator, prosecutor and court; file complaints against the verdict, ruling and ruling of the court in the part relating to the civil suit. The civil plaintiff has the right to refuse the civil claim brought by him at any time of the criminal proceedings, but before the court leaves for the deliberation room to pass the verdict, which entails the termination of the proceedings on the claim (Article 44 of the Code of Criminal Procedure).

If the civil plaintiff is a citizen, then he also enjoys the procedural rights of the victim (Article 42 of the Code of Criminal Procedure).

A civil claim in a criminal case is brought against the accused or other persons who are financially responsible for his actions. Issues of compensation for harm are regulated by Ch. 59 of the Civil Code of the Russian Federation, the norms of which should be followed in determining the person liable for the harm caused by the crime.

The civil defendant has the right to know the essence of the claims, to object to the brought claim, to give explanations on the merits of the claim, to collect and present evidence, to file petitions and challenges, to get acquainted with the case materials after the investigation is completed and to receive copies of the procedural decisions relating to the civil claim brought by him; participate in the trial of the case, having the rights of a party; to speak in judicial debates; file complaints against the actions and decisions of the inquirer, investigator, prosecutor and court; file complaints against the verdict, ruling and ruling of the court in the part relating to the civil suit.

The decision on the merits of a civil claim is made by the court based on the results of the trial in the verdict (Articles 305-309 of the Code of Criminal Procedure).

25. SUBJECT AND LIMITS OF EVIDENCE

Subject evidence is a set of circumstances that are subject to mandatory establishment in each criminal case, regardless of its specifics, and which have legal significance for deciding the case on the merits. The subject of proof includes (Article 73 of the Code of Criminal Procedure):

1) the event of the crime (time, place, method and other circumstances of the commission of the crime);

2) the person's guilt in committing a crime, the form of his guilt and motives;

3) circumstances characterizing the personality of the accused;

4) the nature and extent of the damage caused by the crime;

5) circumstances precluding criminality and punishability of the act;

6) circumstances mitigating and aggravating punishment;

7) circumstances that may entail exemption from criminal liability and punishment;

8) circumstances confirming that the property subject to confiscation in accordance with Art. 104.1 of the Criminal Code of the Russian Federation, received as a result of a crime or is the proceeds from this property, or was used or intended to be used as an instrument of crime or to finance terrorism, an organized group, an illegal armed group, a criminal community (criminal organization). It is also necessary to identify the circumstances that contributed to the commission of the crime (Article 73 of the Criminal Procedure Code of the Russian Federation).

In cases of minors, along with proving the circumstances specified in Art. 73 of the Code of Criminal Procedure of the Russian Federation, are established:

1) the age of the minor, day, month and year of birth;

2) the conditions of life and upbringing of a minor, the level of mental development and other features of his personality;

3) influence on the minor by older persons. If there is evidence of a mental retardation not associated with a mental disorder, it is also established whether the minor could fully realize the actual nature and social danger of his actions (inaction) or manage them (Article 421 of the Code of Criminal Procedure of the Russian Federation).

In cases of socially dangerous acts of the insane, as well as the crimes of persons whose mental disorder occurred after the deed, in addition to the circumstances established in all cases, it turns out:

1) time, place, method and other circumstances of the committed act;

2) whether an act prohibited by criminal law has been committed by the said person;

3) the nature and extent of the damage caused by the act;

4) the presence of mental disorders in the past, the degree and nature of the mental illness;

5) whether the mental disorder of the person is associated with a danger to him or other persons or the possibility of inflicting other significant harm on them. The circumstances of the crime as facts of the past in relation to the moment of their investigation and consideration are established with the help of evidence. The body of evidence sufficient to establish the circumstances relevant to the case characterizes the limits proof.

The correct definition of the limits of proof depends on the activity of the subjects of proof, on the quality and quantity of evidence, on the circumstances to be proved at a certain moment.

26. THE PROCESS OF EVIDENCE AND THE CONTENT OF ITS ELEMENTS

According to the law, proof is collecting, checking and evaluating evidence in order to establish the circumstances to be proved (Article 85 of the Code of Criminal Procedure).

The collection of evidence is carried out in the course of criminal proceedings by the interrogator, investigator, prosecutor and court through the production of investigative and other procedural actions provided for by the Code of Criminal Procedure. The prosecutor, as well as the investigator, the inquirer carry out criminal prosecution, i.e. procedural activity in order to expose a suspect, accused of committing a crime (clause 55, article 5 of the Code of Criminal Procedure of the Russian Federation). However, they are obliged to establish all the circumstances to be proved in a criminal case. These include circumstances that exclude criminality and punishability of the act, as well as those that may entail exemption from criminal liability and punishment (clauses 5-7, part 1, article 73 of the Code of Criminal Procedure of the Russian Federation).

The suspect, the accused, as well as the victim, civil plaintiff, civil defendant and their representatives right (but are not obliged to) collect and present written documents and objects for their inclusion in the criminal case as evidence. These entities are entitled to collect and (or) provide relevant written documents and (or) objects, but not evidence.

The defender has the right to collect evidence by:

1) receiving items, documents and other information;

2) questioning persons with their consent;

3) requesting certificates, characteristics, other documents from public authorities, local governments, public associations and organizations that are obliged to provide the requested documents or their copies.

The defender cannot perform investigative actions. The materials collected by him become evidence after they are included in the criminal case as such by the person conducting the investigation or by the court.

inspection evidence is produced by the inquirer, investigator, prosecutor, court by comparing it with other evidence available in the criminal case, as well as identifying their sources, obtaining other evidence confirming or refuting the evidence being verified. Comparison is a cognitive activity aimed at comparing evidence with each other to establish both the coincidence of the information contained in them and their differences. Physical evidence is compared according to its stable and characteristic features.

Assessment of evidence - this is the mental activity of judges, the prosecutor, the investigator, the person conducting the inquiry. It consists in the fact that these persons, guided by their inner conviction based on the totality of available evidence, law and conscience, decide on the admissibility, relevance and reliability of each evidence and their sufficiency for making a procedural decision. The evaluation of evidence occurs at all stages of the process.

All elements of evidentiary activity - collection, verification and evaluation of evidence - are inextricably linked, flow in unity, take place at all stages of the process in those procedural forms that correspond to the tasks of this stage and the procedure established in it.

27. CONCEPT AND SIGNIFICANCE OF EVIDENCE. RELATED AND ADmissIBLE EVIDENCE

Evidence in criminal proceedings means any information on the basis of which, in the manner prescribed by law, the inquirer, investigator, prosecutor and court establish the presence or absence of circumstances subject to proof in criminal proceedings, as well as other circumstances relevant to the criminal case.

Evidence is a unity of information and procedural source.

signs of evidence

1. The evidence contains information.

2. Information is information not about any circumstances, but about those that are relevant to the case.

3. Information must be obtained only from a source provided for by law.

4. Information is involved in criminal procedural proof in the manner prescribed by law.

The inseparable unity of the content and form of evidence determines its two mandatory properties: relevance and admissibility. Information that does not meet at least one of these requirements cannot serve as evidence.

Relativity - a legal requirement to content proof of. It means the connection of the content of the evidence with the circumstances and facts relevant to the criminal case. Relevant evidence is the evidence, the content of which indicates the existence of circumstances to be proven, and other circumstances relevant to the criminal case, and also indicates their absence.

Admissibility - a legal requirement to the form evidence - the source of factual data (Part 2 of Article 74 of the Code of Criminal Procedure) and the method of its collection (formation) - the corresponding investigative or judicial action (Articles 164-170, 173-174, 176-184, 275-290 of the Code of Criminal Procedure).

Evidence is only the factual data contained in a legitimate source. Deviation from the requirements imposed by law on the source of factual data deprives the information contained in it of probative value, even if they are relevant to the case. Inadmissible will be, for example, information relevant to the case, but obtained from anonymous sources. Inadmissible evidence has no legal force and cannot be used as the basis for an accusation.

The legislator in Art. 75 of the Code of Criminal Procedure provides the following list of inadmissible evidence:

1) the testimony of the suspect, the accused, given in the course of pre-trial proceedings in the criminal case in the absence of a defense counsel, including cases of refusal of a defense counsel, and not confirmed by the suspect, the accused in court;

2) testimonies of the victim, a witness based on conjecture, assumption, hearing, as well as the testimony of a witness who cannot name the source of his knowledge;

3) other evidence obtained in violation of the law.

The legislator names the following views (sources of) evidence:

1) testimony of the suspect, the accused;

2) testimony of the victim, witness;

3) conclusion and testimony of an expert;

4) conclusion and testimony of a specialist;

5) physical evidence;

6) protocols of investigative and judicial actions;

7) other documents.

The list is exhaustive.

Evidence is classified into personal and material, accusatory and exculpatory, primary and derivative, direct and indirect.

28. STATEMENTS OF THE ACCUSED, THEIR VERIFICATION AND EVALUATION

The testimony of the accused is information provided by him during the interrogation conducted in the course of pre-trial proceedings in a criminal case or in court, and recorded in the manner prescribed by law.

Testifying is a right, not an obligation, for the accused. The testimony of the accused is not only a source of evidence, but also one of the ways to exercise his right to defense. Therefore, he does not bear any liability for knowingly giving false testimony or for refusing to testify.

The accused is interrogated during the investigation after charges have been brought against him, and in court - when he already knows the contents of the indictment or indictment. The testimony of the accused has as its subject: a) the charge brought against him; b) other circumstances of the case known to him; c) the evidence available in the case.

The evidentiary value of the accused’s testimony and the peculiarities of assessing his testimony are determined by two factors. On the one hand, the accused, as a rule, is better aware of all the circumstances of the crime committed than anyone else. On the other hand, the accused is most often more interested than anyone in hiding this information or distorting it, since his fate depends on the outcome of the case.

The testimony of the accused is divided into two types: testimony in which he admits his guilt (full or partial), and testimony in which this guilt is denied.

It is not the fact that the defendant admits his guilt that is of probative value, but specific information about the circumstances of the crime. An unfounded confession by the accused of his guilt (which he can refuse at any time) without citing any specific facts cannot be considered as evidence. For example, if the accused declares that he does not dispute his guilt, but does not remember anything about the circumstances of the commission of the crime due to severe intoxication, then these testimony cannot have any evidentiary value. Only information about the specific circumstances of the commission of a crime can serve as evidence.

This information must be supported by the totality of the evidence collected in the case. The confession by the accused of his guilt can be taken as the basis for the prosecution only if the confession is confirmed by the totality of the available evidence in the case (part 2 of article 77 of the Code of Criminal Procedure). The law, by this rule, prevents the overestimation of the significance of the confession of guilt by the accused and indicates the need to have a body of evidence that testifies to the reliability of the information provided by the accused. Thus, the evidence is not the fact that the accused admits his guilt, but the information provided by him, indicating his involvement in the commission of the crime and objectively confirmed during the audit.

Let us now consider another type of testimonies of the suspect, the accused - their denial of their guilt. Such testimonies are also subject to careful and comprehensive verification, and all the arguments of the accused must either be refuted or confirmed. If neither one nor the other succeeded and there are doubts about the presence (absence) of any circumstances, then they are interpreted in favor of the accused.

29. STATEMENTS OF THE SUSPECT, THEIR VERIFICATION AND EVALUATION

The testimony of a suspect is information provided by him during an interrogation conducted during pre-trial proceedings and recorded in the manner prescribed by law.

The testimony of the suspect, like the testimony of the accused, has a dual nature, being, on the one hand, a source of evidentiary information, and on the other, a means of protecting his interests. The suspect is not liable for either refusal to testify or for giving false testimony.

According to Art. 46 of the Code of Criminal Procedure, the suspect must be interrogated no later than 24 hours from the moment a criminal case is initiated against him (except in cases where his whereabouts are not established) or from the moment he is actually detained. If a criminal case is initiated on the fact of committing a crime and during the course of the inquiry sufficient data are obtained that give grounds to suspect a person of committing a crime, the interrogating officer draws up a written notice of suspicion of committing a crime, a copy of which is handed over to the suspect. Within three days from the moment the notice of suspicion of having committed a crime was handed to the person, the investigator must interrogate the suspect on the merits of the charge (Article 223.1 of the Code of Criminal Procedure). The suspect has the right to know what he is suspected of and to receive a copy of the decision to initiate a criminal case against him or a copy of the protocol of detention, a copy of the decision to apply a preventive measure against him, a copy of the notice of suspicion of committing a crime.

Thus, the subject of the suspect's testimony is the circumstances giving rise to suspicion, as well as any other circumstances relevant to the case. The difference in the testimonies of the suspect and the accused lies in the fact that at the time of the interrogation of the suspect, the charge has not yet been formulated and therefore the testimony of the suspect is usually less complete. In case of significant contradictions between the testimony as a suspect and the accused, the others are subject to careful verification and evaluation, as a result of which some of them can be confirmed and form the basis of the accusation, while others are rejected.

With the exception of the specified features, the rules for evaluating the evidence of a suspect are the same as those of the accused.

One of the varieties of the testimony of the accused and the suspect is their testimony against other persons, the so-called slander, i.e. knowingly false testimony against another person. In cases where the accused or suspect testifies against other persons on the circumstances that constitute the content of the accusation or served as the basis for detention, and in general on those facts, deeds, the involvement of the interrogated person in which is verified, he has the right to give any evidence, and responsibility for they, even in the case of their deliberate falsity, cannot occur.

If testimony against other persons is given by the accused or suspected on the basis of facts, circumstances that are not included in the charges brought and the involvement of the interrogated person in which is not verified at all, then in such cases the accused or suspected person must be warned that he will testify as witness and, therefore, may be criminally liable for refusing to testify and for knowingly giving false evidence.

30. WITNESS STATEMENTS, THEIR VERIFICATION AND EVALUATION

The testimony of a witness is information given by him during interrogation and recorded in the manner prescribed by law. Witness testimony is the most common type of evidence.

The subject of witness testimony is defined by Art. 79 of the Code of Criminal Procedure, according to which a witness may be interrogated about any circumstances subject to proof in this case. The subject of the testimony of a witness may include the circumstances of the commission of a crime, its preparation or concealment, the consequences of the committed act, as well as any other circumstances that have the value of evidentiary facts. According to part 2 of Art. 79 of the Code of Criminal Procedure, a witness may be interrogated about the identity of the accused, the victim and about his relationship with them and with other witnesses. The witness has the right to refuse to testify against himself, his spouse, close relatives, the circle of which is determined by law. If the witness agrees to testify, he must be warned that his testimony can be used as evidence in a criminal case, including in the event of his subsequent refusal to testify (part 4 of article 56 of the Code of Criminal Procedure).

A witness can testify about circumstances that he perceived directly, or about those that he knows from the words of other persons. In the first case, his testimony will be primary evidence, in the second - derivative. However, when reporting information known to him from the words of other persons, the witness must indicate the source of his knowledge, otherwise his testimony cannot have evidentiary value (clause 2, part 2, article 75 of the Code of Criminal Procedure). In witness testimony, only information about the perceived facts, and not the conclusions and conclusions of the witness, have evidentiary value.

The possibility of inadvertent misrepresentation, conscientious error or error must be considered. The process of forming testimonies includes three stages: perception, memorization and reproduction. Errors and distortions are possible on each of them.

When evaluating the testimony of a witness, it is necessary to take into account:

1) the identity of the witness himself: the properties of his memory, mental and psychological state, age, health, certain experience, temperament, tendency to exaggerate or minimize what he saw, etc.;

2) the natural conditions under which he perceived the phenomenon: time, place, weather, lighting, visibility, audibility, duration of perception, distance to the object;

3) the size of the time interval that has passed since the moment when the person perceived the phenomenon;

4) the environment for giving evidence.

Verification of the testimony of a witness is carried out, firstly, by analyzing their content, their completeness, consistency, etc. Secondly, the testimony of the witness is compared with other evidence collected in the case, including the testimony of other persons. And finally, to verify the correctness of the testimony of a witness, various investigative actions can be carried out: an experiment, an examination, interrogations of other persons, an examination is appointed. In case of contradictions of the witness with the testimony of other persons, a confrontation may be held.

The testimony of a witness shall be recorded in a protocol, which is drawn up in compliance with the requirements for the protocols of all investigative actions.

31. INFORMATION OF THE INJURED, THEIR VERIFICATION AND EVALUATION

The testimony of the victim is information provided by him during interrogation and recorded in the manner prescribed by law.

The testimony of the victim and the witness has a lot in common - the subject of the testimony, the conditions, the procedure for collecting, processing and evaluating the testimony, as well as the procedure for bringing. The victim, like the witness, may be interrogated about any circumstances that are subject to proof in criminal proceedings, including about their relationship with the suspect, the accused (Article 78 of the Code of Criminal Procedure). However, the victim, unlike the witness, is a party, a participant in criminal proceedings on the part of the prosecution. He is endowed with a whole range of procedural rights (Article 42 of the Code of Criminal Procedure). Therefore, in his testimony, he can not only report specific facts known to him, but also evaluate other evidence collected in the case, express his agreement or disagreement with them.

The victim, like the witness, for refusing to testify and for giving knowingly false testimony is also liable in accordance with Art. 307 and 308 of the Criminal Code of the Russian Federation (part 7 of article 42 of the Code of Criminal Procedure). He has the right to refuse to testify against himself, his spouse, close relatives, the circle of which is determined by law. If the victim agrees to testify, he must be warned that his testimony can be used as evidence in a criminal case, including in the event of his subsequent refusal to testify (clause 3, part 2, article 42 of the Code of Criminal Procedure). At the same time, for the victim, unlike a witness, giving evidence is not only an obligation, but also a right (clause 2, part 2, article 42 of the Code of Criminal Procedure). This means that the investigator and the court do not have the right to refuse him to testify if he expresses such a desire.

Evaluation of the testimony of the victim is carried out according to the same rules as the evaluation of the testimony of a witness, taking into account the following features.

The specifics of assessing the testimony of the victim is to take into account the emotional load that always accompanies the testimony of the victim. The victim is often interested in exaggerating the amount of damage caused to him and in the results of the resolution of the criminal case. The conditions in which he observed the crime may influence his perception of the event, the place of its commission, and the perception of the offender. All these and many other circumstances must be taken into account when assessing the testimony of the victim.

Judicial practice has developed a number of recommendations regarding the evaluation of the testimony of the victim: his testimony, like other evidence, is subject to evaluation in conjunction with other evidence in the case; it is impossible to base the prosecution on alleged testimonies of the victims, which are refuted by other evidence in the case or which could be the result of an erroneous perception by the victim of the circumstances and facts relevant to the case; the accusation cannot be substantiated on the testimony of the victim in cases where doubts arise as to whether he, in a state of alcoholic intoxication, could correctly perceive the facts about which he testifies.

The testimony of the victim is recorded in the protocol, which is drawn up in compliance with the requirements for the protocols of all investigative actions.

32. MATERIAL EVIDENCE: CONCEPT, TYPES, PROCEDURE, STORAGE

According to Part 1 of Art. 81 Code of Criminal Procedure physical evidence recognized in a criminal case any items:

which served as instruments of a crime or retained traces of a crime;

to which the criminal acts were directed;

money, valuables and other property obtained as a result of a crime;

other items and documents that can serve as means for detecting a crime and establishing the circumstances of a criminal case. Items, things, valuables confiscated as a result of investigative actions, which have signs of material evidence, are examined and attached to the criminal case, about which an appropriate decision is issued, and stored according to the rules of Art. 82 of the Code of Criminal Procedure, i.e.:

in a criminal case (general rule);

in the place indicated by the interrogating officer, investigator. This rule applies to bulky items and things, including large consignments of goods. Such physical evidence is photographed or filmed on video or film and, if possible, sealed, and in a criminal case, their essence and location reflect: an inspection report, photographs, films or video cassettes, a decision of the investigating body to be admitted as material evidence and to be placed under safekeeping, as well as a document (act, receipt) on acceptance for storage;

transferred for sale with subsequent crediting of the proceeds to the appropriate deposit account. The above applies, in particular, to material evidence that, due to bulkiness or other reasons, cannot be stored in a criminal case, including large quantities of goods, and most importantly, perishable goods and products, as well as property subject to rapid obsolescence, the storage of which it is difficult or costs to provide special conditions, the storage of which is commensurate with their cost;

returned to the rightful owner, if possible without prejudice to proof;

destroyed if perishable goods and products have become unusable, as well as if these are alcohol-containing products, as well as items whose long-term storage is dangerous to life and health or to the environment (after the necessary research has been carried out).

Money and valuables, after inspection and other necessary investigative actions, must be handed over to the bank or may be kept in a criminal case, if the individual features of the banknotes are important for proof.

After a verdict is passed, as well as a ruling or resolution to terminate the criminal case, the instruments of crime, money, valuables and other property specified in paragraphs “a” - “c” of Part 1 of Art. 104.1 of the Criminal Code of the Russian Federation are confiscated, items prohibited for circulation are destroyed, documents remain in the criminal case or are transferred to interested parties at their request, the remaining items are transferred to their legal owners, and if the latter are not identified, they become the property of the state.

Disputes about the ownership of physical evidence are resolved in civil proceedings. Items seized in the course of pre-trial proceedings, but not recognized as material evidence, shall be returned to the persons from whom they were seized.

33. PROTOCOLS OF INVESTIGATIVE AND JUDICIAL ACTIONS AS A TYPE OF EVIDENCE

These are written acts that record the course and results of various investigative actions. (inspection, presentation for identification, etc.). These include protocols of investigative actions and protocols of court hearings (Article 83 of the Code of Criminal Procedure). During pre-trial proceedings, each investigative action is documented in a separate protocol; during a judicial investigation, all actions carried out by the court are recorded in one document - the protocol of the court session.

The protocols of the following investigative actions for collecting evidence have independent evidentiary value: examination (including examination of the corpse and exhumation), examination, seizure, search, presentation for identification, investigative experiment and verification of testimony on the spot. These protocols should be distinguished from other protocols, which are also drawn up during the investigation and trial of the case, but are not independent sources of evidence (for example, the protocol of interrogation, confrontation). In these cases, the testimonies of interrogated persons (witnesses, accused, etc.) have probative value, and not the protocol, which acts only as a technical means of fixing testimonies and has no independent value as a source of evidence.

Protocols of other investigative actions do not record evidence, but only reflect the investigator’s fulfillment of certain requirements of the law (for example, a protocol for familiarizing the accused with the materials of the criminal case), and therefore they do not have evidentiary value. When carrying out investigative actions, various scientific and technical means can be used - photography, audio and video recording, drawings, plans, diagrams, casts and prints of traces that are attached to the protocol (Article 166 of the Code of Criminal Procedure).

All these sources of evidentiary information are not named as separate types of evidence (Article 74 of the Code of Criminal Procedure), therefore they are usually referred to as annexes to protocols. They can have probative value only if there is a protocol that reflects a specific fact, as well as the conditions for making casts and impressions. Nevertheless, they not only confirm and illustrate the content of the protocol, but may also contain additional evidentiary information.

From the point of view of the theory of evidence, the minutes of the meeting of the court of the first and appellate instances, in which the criminal case is considered on the merits, are of the greatest value. Such protocols reflect from beginning to end all judicial actions and decisions made or taken during the trial. It serves as independent evidence (Article 83 of the Code of Criminal Procedure) and as such can be used in the review of this criminal case by a higher court, as well as in its re-examination by the court of first instance or appellate instance.

Protocols of investigative actions and records of court hearings are admitted as evidence only if they meet the requirements established by law. Therefore, violations of these rules may result in the invalidity - in whole or in part - of the protocol as evidence (for example, the absence of signatures of witnesses or the presentation of an object in the singular for identification).

34. OTHER DOCUMENTS AS EVIDENCE

Other (except for protocols of investigative actions and minutes of a court session) documents are allowed as evidence if the information contained in them is relevant for establishing the circumstances included in the subject of proof (part 1 of article 84 of the Code of Criminal Procedure).

A document in criminal proceedings is a material recording medium (object) on which an official or citizen has recorded information about the circumstances that are important for the correct resolution of the case in a generally accepted, understandable or accepted way for a special document. The documents include various kinds of certificates, messages and certificates of various organizations, characteristics of the accused, receipts. The most common are written documents (printed and handwritten). But the information contained in the document can be recorded in a different form. Such documents include photographic and filming materials, audio and video recordings and other information carriers (Article 84 of the Code of Criminal Procedure). Both official documents (certificates, acts, etc.) and unofficial ones (for example, a personal letter) can serve as evidence.

Documents that have a combination of the following characteristics have evidentiary value: 1) if they contain information the bearer of which is known and which can be verified. For example, an anonymous, unsigned document, even if it contains information important to the case, will not have the meaning of a source of evidence; 2) if in documents emanating from enterprises, institutions, organizations, officials or individuals, information is certified or presented within the limits of official competence or (if the document comes from a citizen) within the actual knowledge of the author; 3) if the information about facts and circumstances recorded in the document is important for the case. Documents must be obtained in the manner prescribed by law - seized during the course of any investigative action, requested or presented by any of the participants in the proceedings. The fact that they were received by the investigator or the court must be properly procedurally documented.

Official documents must contain all the necessary details (seal, signatures, etc.).

Documents are attached to the materials of the criminal case and are kept for the entire period of its storage (part 3 of article 84 of the Code of Criminal Procedure). However, the issuance of a special decision (determination) on such inclusion, as is the case with material evidence, is not required. This refers to their "physical" communion, i.e. they just fit in.

At the request of the legal owner, the documents seized and attached to the criminal case or their copies may be transferred to him (part 3 of article 84 of the Code of Criminal Procedure).

Documents as an independent type of evidence must be distinguished from documents - physical evidence. Any document can become material evidence if it acquires any of its characteristics specified in Art. 81 of the Code of Criminal Procedure (for example, will be kidnapped or erased). In such cases, the document is attached to the case as material evidence.

35. CONCLUSION AND INDICATIONS OF THE EXPERT, SPECIALIST AND THEIR EVALUATION

Expert opinion - the content of the study and conclusions presented in writing on the issues posed to the expert by the person conducting the proceedings in the criminal case, or by the parties (Article 80 of the Code of Criminal Procedure).

In some cases, the law requires mandatory appointment and examination (Article 196 of the Code of Criminal Procedure). Its purpose and production is mandatory if it is necessary to establish:

causes of death;

the nature and degree of harm caused to health;

the mental or physical state of the suspect, the accused, when there is doubt about his sanity or ability to independently defend his rights and legitimate interests in criminal proceedings;

the mental or physical state of the victim, when there is doubt about his ability to correctly perceive the circumstances relevant to the criminal case and give correct testimony;

the age of the suspect, the accused, the victim, when it matters for the criminal case, and documents confirming his age are absent or in doubt.

There are the following types of examinations: commission, complex, additional and repeated.

Commission forensic examination is an examination carried out several (at least two) experts one specialty (Article 200 of the Code of Criminal Procedure). Comprehensive forensic examination is an examination in which experts participate different specialties (Article 201 of the Code of Criminal Procedure). More forensic examination is appointed with a lack of clarity or the completeness of the expert's opinion, as well as when new questions arise regarding the previously investigated circumstances of the criminal case (Article 207 of the Code of Criminal Procedure). Repeated forensic examination is appointed in cases of occurrence doubts about the validity expert opinion or the presence of contradictions in the conclusions of an expert or experts on the same issues (Article 207 of the Code of Criminal Procedure). Thus, a re-examination is appointed when the expert's conclusion raises doubts on the merits.

After performing the necessary studies, the expert draws up a conclusion, which should indicate: when, where, by whom, on what basis the examination was carried out, who was present during its production, what materials the expert used, what studies were performed, what questions were put to the expert, his motivated answers. The conclusion is given in writing and signed by the expert.

The expert opinion has no advantages over other evidence and is subject to mandatory verification and evaluation according to general rules. No matter what exact scientific data an expert conclusion is based on, it cannot be considered binding on the investigation or the court.

The testimony of an expert is information provided by him during an interrogation conducted after receiving his conclusion, in order to clarify or clarify this conclusion (Article 80 of the Code of Criminal Procedure).

A specialist’s conclusion is a judgment presented in writing on the issues posed to the specialist by the parties (Part 3 of Article 80 of the Code of Criminal Procedure). Testimony of a specialist - information provided by him during interrogation about circumstances requiring special knowledge, as well as an explanation of his opinion in accordance with the requirements of Art. 53, 168 and 271 of the Code of Criminal Procedure (Part 4 of Article 80 of the Code of Criminal Procedure).

It should be noted that the law does not provide for experienced actions in order to form the expert's own judgments.

36. CONCEPT, SIGNIFICANCE AND TYPES OF MEASURES OF PROCEDURAL COMPULSORY

Criminal procedure law provides for the possibility of applying state coercion to persons who do not comply with the requirements of the law, or to prevent such non-compliance. They can be of a civil law, administrative law, criminal law and criminal procedural nature. Measures of state coercion used in the criminal procedure activities of investigative bodies, courts are called measures of procedural coercion. They differ from other measures of state coercion in that they are applied during the period of criminal proceedings and are of a procedural nature; are applied by the authorized bodies of the state within their powers; apply to persons participating in the case, whose improper behavior or the possibility of such behavior creates or may create an obstacle to the successful course of criminal proceedings; have specific goals arising from the general purpose of criminal proceedings; are applied if there are grounds and conditions provided for by law and in a manner that guarantees their legality and validity; have special content and character.

The Code of Criminal Procedure provides for Section IV, which regulates measures of procedural coercion, the content of which allows the following types of measures of procedural coercion to be included in this category.

1. Detention of a suspect (Chapter 12 of the Code of Criminal Procedure).

2. Preventive measure (Chapter 13 of the Code of Criminal Procedure):

undertaking not to leave and proper behavior;

personal surety;

supervision of the command of the military unit;

supervising a juvenile accused;

pledge;

House arrest;

detention.

3. Other measures of procedural coercion (Chapter 14 of the Code of Criminal Procedure):

obligation to appear;

drive unit;

suspension from office;

seizure of property;

monetary recovery.

Measures of criminal procedural coercion are not the same in nature and pursue different goals. Some of them are aimed at preventing the possible continuation of the criminal activities of the suspect and the accused, their evasion of investigation and trial, or obstruction of procedural activities (preventive measures, detention, removal from office). Others are related to the need to deliver or ensure the appearance of persons in the investigation bodies or in court (arrival, obligation to appear). Still others serve as a means of ensuring the execution of a sentence in terms of property penalties (seizure of property).

It follows that, according to their purpose, the measures of criminal procedural coercion can be divided into means of restraint, prevention of illegal behavior and means of ensuring proper behavior. Thus, in criminal proceedings, measures of procedural coercion are coercive means provided for by the criminal procedure law, used by authorized state bodies or officials, if there are sufficient grounds for this and in the manner prescribed by law, in relation to suspects accused of committing crimes, and as well as other persons participating in the case in order to suppress and prevent the illegal actions of these persons, remove obstacles to the proceedings in a criminal case and ensure the proper execution of the sentence.

37. DETENTION OF A SUSPECT

Criminal procedural detention of a suspect (Chapter 12 of the Code of Criminal Procedure) is a measure of procedural coercion, which is applied by the body of inquiry, the inquiry officer, the investigator for a period of not more than 48 hours from the moment the person is actually detained on suspicion of committing a crime entailing the imposition of a sentence of imprisonment.

A person may be detained as a suspect in a criminal case only if he is suspected of having committed a specific crime, for which a sentence of imprisonment may be imposed, and if one of the following grounds exists:

1) when it is caught in the commission of a crime or immediately after its commission;

2) when eyewitnesses, including victims, directly point to this person as having committed a crime;

3) when obvious traces of a crime are found on this person or on his clothes, with him or in his dwelling.

The law gives the body of inquiry, the inquiry officer, the investigator the right to detain even if there are other data giving grounds to suspect a person of committing a crime for which a sentence of imprisonment may be imposed, but only in cases where the person: 1) tried to hide; 2) does not have a permanent place of residence; 3) his identity has not been established. In addition, detention is allowed when a petition is sent to the court to select a measure of restraint in the form of detention (Part 2 of Article 91 of the Code of Criminal Procedure).

The Code of Criminal Procedure requires that after the suspect is brought to the body of inquiry, the investigator must draw up a protocol of detention within no more than 3 hours (part 1 of article 92 of the Code of Criminal Procedure), and within 12 hours from the moment the suspect is detained, the body of inquiry, the inquiry officer and the investigator must inform the prosecutor in writing about the detention (part 3 of article 92 of the Code of Criminal Procedure). The suspect must be interrogated (part 4 of article 92 of the Code of Criminal Procedure); he may be subjected to a personal search (Article 93 of the Code of Criminal Procedure). To conduct a personal search when detaining a person or taking him into custody, it is not required to issue a special resolution and a court decision for its production.

Part 1 art. 96 of the Code of Criminal Procedure retained the requirement of mandatory notification no later than 12 hours from the moment of detention of the suspect to any of the close relatives (in their absence, other relatives), and also provided the possibility of such notification to the suspect himself. At the same time, if it is necessary to keep the fact of detention secret in the interests of the preliminary investigation, notification with the consent of the prosecutor may not be made, except in cases where the suspect is a minor (Part 4 of Article 96 of the Code of Criminal Procedure).

A person detained as a suspect is subject to immediate release by order of the investigator and interrogating officer in cases where: 1) the suspicion of committing a crime has not been confirmed; 2) there are no grounds for applying to him a measure of restraint in the form of detention; 3) the detention was carried out in violation of the requirements of the law (Article 91 of the Code of Criminal Procedure); 4) after 48 hours have elapsed from the moment of his arrest, a measure of restraint in the form of detention was not chosen against him; 5) the court did not extend the period of detention of the suspect in the manner prescribed in paragraph 3. 7 art. 108 Code of Criminal Procedure.

38. CONCEPT AND GROUNDS FOR THE APPLICATION OF PRECAUTIONAL MEASURES

Preventive measures are measures of criminal procedural coercion applied, if there are grounds and in the manner prescribed by law, by authorized officials to the accused, defendant, and in exceptional cases - to the suspect, in order to prevent them from escaping the inquiry, investigation and trial. , obstruct the proceedings, continue criminal activities, as well as to ensure the execution of the sentence.

Being a type of criminal procedural coercion, preventive measures are aimed at preventing unlawful actions (actions) of the accused (suspects), at forcing them to perform actions (actions) necessary in the interests of criminal proceedings. Preventive measures are compulsory, they are applied against the will of the accused (suspects), force them either to refrain from committing acts prohibited by the Code of Criminal Procedure, or, on the contrary, oblige, force them to perform actions provided for by the Code of Criminal Procedure (to appear when summoned, not to evade appearance, to behave properly ). According to their content, preventive measures have a psychological, physical, moral impact (coercion) on the accused (suspect), and can limit his property rights and interests.

subjects, authorized by law to apply preventive measures are: the investigator, the investigator, the judge, the court, in whose proceedings the criminal case is being carried out.

A preventive measure is chosen against the accused and, in exceptional cases, against the suspect. In this case, the suspect must be charged no later than 10 days from the date of application of this measure, and if the suspect was detained and then taken into custody - within the same period from the moment of his actual detention, and not after the adoption of a decision on detention. Otherwise, the preventive measure is immediately canceled and the prisoner is released.

Grounds for applying preventive measures - there are sufficient grounds to believe that the accused, the suspect:

1) hides from an inquiry, preliminary investigation or court;

2) may continue to engage in criminal activity;

3) may threaten a witness, other participants in criminal proceedings, destroy evidence or otherwise interfere with criminal proceedings.

Of the preventive measures established by law, only one preventive measure can be applied to a specific accused (suspect) - the one that is necessary and sufficient in the given case. When resolving the issue of applying a preventive measure, the circumstances specified in Art. 99 of the Code of Criminal Procedure: the severity of the charge, information about the identity of the accused, his age, state of health, marital status, occupation and other circumstances.

Types of preventive measures:

1) undertaking not to leave and proper behavior (Article 102 of the Code of Criminal Procedure of the Russian Federation);

2) personal guarantee (Article 103 of the Code of Criminal Procedure of the Russian Federation);

3) supervision of the command of the military unit (Article 104 of the Code of Criminal Procedure of the Russian Federation);

4) looking after a minor suspect or accused (Article 105 of the Code of Criminal Procedure of the Russian Federation);

5) pledge (Article 106 of the Code of Criminal Procedure of the Russian Federation);

6) house arrest (Article 107 of the Code of Criminal Procedure of the Russian Federation);

7) detention (Article 108 of the Code of Criminal Procedure of the Russian Federation).

39. SIGNATURE NOT TO DEPARTURE. PERSONAL GUARANTEE

Signature not to leave and proper behavior - a written obligation of the accused (suspect):

1) not to leave the permanent or temporary place of residence without the permission of the inquirer or the court;

2) appear at the appointed time when summoned by the inquirer, investigator and in court;

3) not interfere with the proceedings in any other way (Article 102 of the Code of Criminal Procedure).

A reasoned decision on the choice of this preventive measure is announced to the accused (suspect), defense counsel, legal representative with an explanation of Art. 102 and 110 of the Code of Criminal Procedure and the procedure for its appeal. A copy of the decision is handed over to the accused (suspect). The subscription itself indicates the place of residence or temporary stay from which the accused cannot leave without permission.

A written undertaking not to leave the place ensures not only the presence of the accused in a certain place and non-evasion of the investigation and justice authorities, but also his non-evasion of the execution of the sentence and, in general, the normal course of criminal proceedings, the establishment of the truth. This is achieved due to the timely appearance of the accused (suspect) on calls, his non-stop presence at the place of residence (temporary stay).

The condition for the correct registration of a written undertaking not to leave is that it must indicate the period of its validity, as a rule, in the general wording: "For the period of the preliminary investigation and trial" or "Until the end of the preliminary investigation." If the undertaking not to leave is withdrawn for the duration of the preliminary investigation, then at the end of it it becomes invalid.

Personal guarantee consists in the acceptance by a trustworthy person of a written obligation that he vouches for proper behavior (non-obstruction of the proceedings) and the appearance of the accused (suspect) upon the call of the interrogating officer, investigator, court (Article 103 of the Code of Criminal Procedure).

This preventive measure is applied at the request of one or more guarantors. They may refuse the guarantee. A personal guarantee ensures the proper behavior and appearance of the accused (suspect) due to his moral obligations towards the guarantors, which are based on the respect of the accused for the guarantors, a sense of duty and moral responsibility for deceiving their trust in violation of the preventive measure.

Part 2 Art. 103 of the Code of Criminal Procedure requires obtaining the consent of the person in respect of whom the guarantee is given. When selecting a signature on a personal guarantee, each of the guarantors must be informed of the nature of the case for which this preventive measure was chosen; on responsibility in the event that the accused (suspect) commits actions for the prevention of which a personal guarantee is chosen as a preventive measure.

Violation of these obligations by the accused may result in the application of a more severe measure of restraint. If the guarantor fails to fulfill his obligations, he may be subject to a monetary penalty in the amount of up to 100 minimum wages (part 4 of article 103 of the Code of Criminal Procedure).

The decision to choose a preventive measure in the form of a personal guarantee is formalized by a decision of authorized officials, a court ruling. A copy of the resolution (determination) and the written obligation shall be handed over to the suspect, the accused, the defense counsel and the guarantor. It also explains the procedure for appealing against a decision to impose a measure of restraint.

40. Pledge. HOUSE ARREST

Bail constitute money or valuables deposited in the court by the accused, the suspect, or another person or organization to ensure the appearance of the accused, the suspect upon the call of the interrogator, investigator, court and to prevent the commission of new crimes (Article 106 of the Code of Criminal Procedure).

Bail is applied by court order (judge's decision). A protocol is drawn up on the acceptance of the pledge, a copy of which is handed over to the pledger. The amount of bail is determined by the court, taking into account the circumstances of the criminal case. In this case, the pledgor must be made aware of the essence of the case.

If bail is chosen instead of the previously chosen preventive measure - detention or house arrest, then the accused (suspect) remains in custody or house arrest until the bail is deposited to the deposit account of the court, which was determined by the body or person who chose this preventive measure.

The court, when issuing a verdict, ruling, decision to terminate the case, decides on the return of the bail to the pledgor. If the case is terminated at the stage of preliminary investigation, the bail is returned to the pledgor, which is indicated in the decision to terminate the criminal case and the protocol, which is signed by the official who made the decision and the pledgor.

If the accused (suspect) evades from appearing on summons to the bodies of criminal justice, then the bail paid by the court decision shall be transferred to the state.

Bail as a measure of restraint is possible only on a voluntary basis.

House arrest (Article 107 of the Code of Criminal Procedure) consists in restrictions related to the freedom of movement of the suspect, the accused, as well as in the prohibition:

1) communicate with certain persons;

2) receive and send correspondence;

3) negotiate using any means of communication.

The accused (suspect) is not entitled to change his place of residence without the permission of officials: the inquirer, investigator, prosecutor, judge; leave their home, which has become a place of house arrest. He should not communicate with certain persons: accomplices in a criminal case, witnesses, victims, friends and even relatives living separately from him. The accused may be prohibited from sending and receiving parcels, parcels, making appeals through the mass media; use telephone, fax, other means of communication. Taking into account the gravity of the crime committed, age, state of health, marital status, the suspect may be subjected to all restrictions and prohibitions or some of them.

The decision to choose a measure of restraint in the form of house arrest is only authorized by the court (clause 1, part 2, article 29 of the Code of Criminal Procedure).

House arrest as a measure of restraint is chosen in relation to the suspect or the accused by a court decision if there are grounds and in the manner established for the application of detention (Article 108 of the Code of Criminal Procedure), taking into account his age, state of health, marital status and other circumstances. The decision or ruling of the court on choosing house arrest as a measure of restraint indicates the specific restrictions to which the suspect, the accused is subject, and also indicates the body or official who is entrusted with the exercise of supervision over compliance with the established restrictions (part 3 of article 107 of the Code of Criminal Procedure).

41. SUPERVISION OF A MINOR ACCUSED, SUSPECTED. OBSERVATION OF THE COMMAND OF THE MILITARY UNIT

In accordance with Art. 105, 423 of the Code of Criminal Procedure, a special preventive measure may be applied to minor accused (suspects) in the form of transfer under the supervision of parents, guardians, trustees or other trustworthy persons, and to minors who are in specialized children's institutions - under the supervision of officials of these institutions. This preventive measure consists in the assumption by one of these persons of a written obligation to ensure the appearance of the minor before the investigator and in court, as well as his proper behavior. The inquirer, investigator, prosecutor make a decision on the application of this preventive measure, and the court makes a ruling.

When withdrawing a subscription for taking a minor under supervision, parents (guardians, trustees, heads of closed children's institutions) are warned about the nature of the crime in which the minor is accused (suspected) and about responsibility in case of violation of the obligation assumed. On persons to whom a minor suspect, the accused was placed under supervision, in case of failure to fulfill their obligations, a monetary penalty may be imposed (part 3 of article 105 of the Code of Criminal Procedure) in the amount of up to 100 minimum wages in the manner established by Art. 118 Code of Criminal Procedure.

Observation of the command of the military unit for the accused (suspect) as a preventive measure is applied in accordance with Art. 104 of the Code of Criminal Procedure to a special subject - a military man or citizen undergoing military training. The essence of this measure is to take special measures provided for by the statutes of the Armed Forces of the Russian Federation to ensure the appearance of the accused (suspect) when summoned by the investigative bodies, the prosecutor and the court and not to interfere with the proceedings in the criminal case.

The command of the military unit shall be notified of the nature of the case for which this measure of restraint has been chosen. The consent of the command to the application of a measure of restraint in accordance with Art. 104 of the Code of Criminal Procedure is not required. However, if the command of the military unit is not able to ensure proper supervision of the serviceman and objects to the application of this measure of restraint, then such an objection should not be ignored.

The inquirer, investigator, prosecutor make a decision on the application of this preventive measure, and the court makes a ruling. Having received the resolution, the command of the military unit issues an order for the military unit and informs in writing the body that has chosen this measure of restraint about the establishment of surveillance.

The choice of this measure of restraint is allowed only with the consent of the suspect, the accused (part 2 of article 104 of the Code of Criminal Procedure). For the duration of this preventive measure, they are deprived of the right to carry weapons, are constantly under the supervision of their superiors or persons on a daily duty, are not sent to work outside the unit alone, are not assigned to the guard, cannot leave the unit without the permission of the command, are deprived of dismissal in city vacation.

Violation by the accused (suspect) of the measure of restraint in the form of supervision by the command of the military unit creates grounds for resolving the issue of applying a more severe measure of restraint to him.

42. DETENTION AS A PRECAUTION

Detention applied according to judgment in respect of a suspect or accused of committing crimes for which the Criminal Code of the Russian Federation provides for punishment in the form of imprisonment for more than two years if it is impossible to apply another, milder measure of restraint.

Under exceptional circumstances, this measure of restraint may be chosen in respect of a suspect or accused of committing a crime for which a penalty of imprisonment for a term of up to two years is provided, if: a) the suspect or accused does not have a permanent place of residence on the territory of the Russian Federation; b) his identity has not been established; c) he has violated the previously chosen measure of restraint; d) he absconded from the bodies of preliminary investigation or from the court.

If it is necessary to select detention as a preventive measure, the investigator, with the consent of the head of the investigative body, as well as the interrogating officer, with the consent of the prosecutor, file a corresponding petition with the court. The decision to initiate a petition not only sets out the motives and grounds for which it became necessary to place the suspect or the accused in custody, but also substantiates the impossibility of choosing a different measure of restraint. The specified petition is considered solely by a judge of a district court or a military court of the corresponding level with the participation of the suspect or the accused, the prosecutor, and the defense counsel.

The essence of this measure of restraint is the deprivation of the accused (suspect) of freedom and detention in places of pre-trial detention until the actual execution of the conviction to deprivation of liberty, unless the measure of restraint is canceled or changed.

Detention during the investigation of crimes cannot exceed 2 months (part 1 of article 109 of the Code of Criminal Procedure).

If it is impossible to complete the preliminary investigation within up to 2 months and if there are no grounds for changing or canceling the preventive measure, this period may be extended by a judge of a district court or a military court of the appropriate level in the manner prescribed by Part 3 of Art. 108 Code of Criminal Procedure, for up to 6 months. Further extension of the period may be carried out in respect of persons accused of committing grave and especially grave crimes, only in cases of special complexity of the criminal case and if there are grounds for choosing this measure of restraint by a judge of the same court at the request of the investigator, submitted with the consent of the head of the relevant investigative body in a constituent entity of the Russian Federation or an interrogator with the consent of the prosecutor of the constituent entity, up to 12 months.

The period of detention for more than 12 months may be extended only in exceptional cases in relation to persons accused of committing especially serious crimes by a judge of a court of a constituent entity of the Russian Federation at the level of an investigator's petition filed with the consent of the Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation or the head of the investigative body of the relevant federal body executive power, up to 18 months. Further extension of the period is not allowed. The accused, held in custody, is subject to immediate release, with the exception of cases provided for in paragraph 1 of part 8 of Art. 109 Code of Criminal Procedure.

43. OTHER MEASURES OF PROCEDURAL COMPULSORY

Other measures of procedural coercion include: obligation to appear; drive unit; suspension from office; seizure of property; monetary recovery.

Apply to the suspect, the accused. To the victim, witness, civil plaintiff, civil defendant, expert, specialist, translator, witness can be applied only an obligation to appear, a summons and a monetary penalty.

Commitment to attend (Article 112 of the Code of Criminal Procedure) consists in a written obligation of a person to appear in a timely manner when summoned by an interrogator, investigator or to court, and in case of a change of residence, immediately report this.

The decision to take this measure of procedural coercion is made by a reasoned decision of the inquirer, investigator and judge, as well as by a court ruling.

Drive unit (Article 113 of the Code of Criminal Procedure) consists in forcibly bringing a person to an interrogator, investigator or court in case of failure to appear on a call without good reason.

The drive cannot be made at night, except in cases of urgency; minors under the age of fourteen, pregnant women, as well as patients who, for health reasons, can leave their place of stay, which must be certified by a doctor, are not subject to bringing.

The drive is carried out by the bodies of inquiry on the basis of the decision of the interrogating officer, investigator, as well as bailiffs.

Suspension from office (Article 114 of the Code of Criminal Procedure) is carried out in relation to the suspect or the accused on the basis of a judge's decision, issued at the request of the interrogating officer with the consent of the prosecutor, the investigator with the consent of the head of the investigative body.

Within 48 hours from the date of receipt of the request, the judge issues a decision on the temporary removal of the accused from office or on refusal to do so. The decision on the temporary removal of the accused from office shall be sent to the place of his work.

Seizure of property (Article 115 of the Code of Criminal Procedure) is used to ensure the execution of a sentence in terms of a civil claim, other property penalties or possible confiscation of property obtained as a result of criminal activity or acquired by criminal means in relation to a suspect, accused or persons who are legally liable for their actions . Produced in the presence of witnesses.

When seizing the funds and other valuables belonging to the suspect, the accused, which are on the account, in the deposit or kept in banks and other credit organizations, operations on this account are completely or partially terminated within the limits of the money and other valuables on which the arrest is imposed. . Banks and other credit organizations are obliged to provide information about these funds and other valuables at the request of the court, as well as the investigator or interrogating officer on the basis of a court decision.

A copy of the protocol shall be handed over to the person whose property has been seized.

In cases of non-fulfillment by participants of criminal proceedings of procedural obligations, as well as violation of order by them in a court session, they may be imposed by the court pecuniary recovery in the amount of up to 25 times the minimum wage in the manner prescribed by Art. 118 Code of Criminal Procedure.

The monetary penalty is imposed by the court. Based on the results of consideration of the protocol, the judge issues a decision to impose a monetary penalty or to refuse to impose. A copy of the resolution is sent to the person who drew up the protocol and to the person on whom the monetary penalty has been imposed.

44. APPLICATIONS AND COMPLAINTS

In the Criminal Procedure Code, a separate section V is devoted to petitions and complaints.

Petition - an official request of a participant in legal proceedings addressed to an interrogator, investigator or court.

A petition may be filed in writing or by way of an oral request for the performance of investigative or judicial actions, the adoption, annulment or amendment of certain decisions on the case.

The suspect, the accused, his defense counsel, the victim, his legal representative and representative, a private prosecutor, a civil plaintiff, a civil defendant, their representatives, as well as an expert have the right to file a petition.

Subjects of the right to file petitions should be explained that a petition can be filed at any time during the proceedings. Rejection of the application does not deprive the applicant of the right to re-file the application both within one stage and in subsequent stages of the proceedings.

The application can be granted or rejected (in whole or in part). In case of a full or partial refusal of the petition, a decision of the interrogating officer, investigator, judge, a court ruling indicating the reasons for the refusal must be issued.

The person who filed the application must be informed of the results of consideration of the application.

Complaint - an appeal to an official conducting legal proceedings, or to a court regarding a violation of the rights and legitimate interests of a subject of criminal proceedings or another person whose rights and interests have been violated by a decision or action of an official or court. Actions (inaction) and decisions of the body of inquiry, the inquirer, the investigator, the prosecutor, the judge, the court are subject to appeal.

Complaints about actions (inaction) and decisions made in the course of pre-trial proceedings are brought to the prosecutor, head of the investigative body or to the district court at the place of the preliminary investigation.

It is the duty of persons conducting legal proceedings to explain and ensure the right to appeal.

All participants in criminal proceedings have the right to appeal against actions (inaction) and decisions of officials conducting legal proceedings.

The prosecutor, the head of the investigative body must consider the complaint within three days from the date of its receipt. In exceptional cases, when an additional verification of the complaint is required, it is allowed to consider it within 10 days, of which the applicant is notified.

The court considers the complaint not later than 5 days from the date of its receipt. The filing of a complaint shall not suspend the performance of the contested action and the execution of the contested decision, unless the body of inquiry, investigator, prosecutor, or judge find it necessary to do so.

The applicant and his defense lawyer, legal representative, representative, other persons whose interests are directly affected by the action or decision being appealed, as well as the prosecutor, participate in the court session.

At the court session, the applicant, who appeared at the court session, substantiates the complaint, after which other persons who appeared at the court are heard. The court hears the opinion of the prosecutor. The applicant is given the right to make a remark.

The inquirer, investigator, prosecutor are obliged to eliminate the committed violations, which are indicated by the court.

A complaint left unsatisfied by the court may be appealed to a higher court.

45. PROCEDURAL TERMS, THEIR TYPES, VALUE. PROCEDURE FOR RENEWAL AND RECOVERY

Procedural terms in criminal proceedings are the time established by law for the performance of procedural actions, the adoption of procedural decisions, the commencement and completion of proceedings at a specific stage of legal proceedings.

The basic rules for calculating, observing, extending and restoring procedural time limits in criminal proceedings are enshrined in Art. 128 130 Code of Criminal Procedure of the Russian Federation.

Terms are calculated in hours, days, months. When calculating periods in months, no account shall be taken of the hour and the day on which the course of the period begins. When calculating the terms of detention, house arrest and stay in a medical or psychiatric hospital, they also include non-working time.

The period calculated in days expires at 24 hours of the last day. A term calculated in months expires on the corresponding day of the last month, and if this month does not have a corresponding date, then the term ends on the last day of this month. If the end of the period falls on a non-working day, then the last day of the period shall be the first working day following it, except for cases of calculation of periods during detention, detention, house arrest and stay in a medical or psychiatric hospital.

The law establishes the terms for the commission of investigative, judicial and other procedural actions.

Important for ensuring the rights of participants in legal proceedings is the establishment of deadlines for the application of measures of procedural coercion.

So, until a court decision, a person cannot be detained on suspicion of committing a crime for a period of more than 48 hours from the moment of actual detention (part 3 of article 94, part 3 of article 128 of the Code of Criminal Procedure).

In many cases, the law does not set time limits. Thus, the review of a guilty verdict due to new or newly discovered circumstances in favor of the convicted person is not limited by any time limits (part 1 of article 414 of the Code of Criminal Procedure).

In some cases, the law directly obliges participants in criminal proceedings to explain the rules on procedural deadlines. Thus, an explanation of the deadlines for appealing a sentence should be contained in the operative part of the sentence (part 3 of article 309 of the Code of Criminal Procedure).

Missing the deadline without good reason entails leaving the petition, complaint or presentation without consideration. For example, such a rule is specifically established for complaints and submissions against a decision of a court of first instance filed with a missed deadline (part 3 of article 356 of the Code of Criminal Procedure).

The term is not considered to be missed if the complaint, petition or other document is submitted to the post office before the expiration of the term, transferred to the person authorized to receive them, and for persons held in custody or in a medical or psychiatric hospital, if the complaint or other document is submitted before the expiration of the term the administration of a place of pre-trial detention or a medical or psychiatric hospital.

In cases and in the manner prescribed by law, the period may be extended. Thus, the court, including in the course of pre-trial proceedings, is authorized to make decisions on the extension of the period of detention (clause 2, part 2, article 29, parts 2-4, article 109, part 3, article 255 of the Code of Criminal Procedure). A term missed for a good reason must be restored on the basis of a decision of the inquirer, investigator, judge in charge of the criminal case. Refusal to restore the term may be appealed.

46. PROCEDURAL COSTS

Procedural costs are the costs associated with the proceedings in a criminal case, which are reimbursed at the expense of the federal budget or the funds of the participants in criminal proceedings (part 1 of article 131 of the Code of Criminal Procedure).

In accordance with Part 2 of Art. 131 of the Code of Criminal Procedure, procedural costs include:

1) the amounts paid to the victim, the witness, their legal representatives, expert, specialist, translator, witnesses to cover their expenses related to the appearance at the place of procedural actions and accommodation (the cost of travel to the place of call and back, insurance payments for state compulsory insurance passengers on transport, the cost of using bedding on trains, the cost of renting a dwelling, daily allowance, etc.);

2) the amounts paid to the victim, the witness, their legal representatives, witnesses in compensation for their lost wages (for those who work and have a permanent salary) or for distracting them from their usual activities (for those who do not have a permanent salary) for the time they spent in connection with a summons to the body of inquiry, to the investigator, prosecutor or to the court;

3) remuneration paid to an expert, translator, specialist for the performance of their duties in the course of criminal proceedings, with the exception of cases when these duties were performed by them in the course of an official assignment;

4) the amounts paid to the lawyer for the provision of legal assistance to him in case of participation of the lawyer in criminal proceedings by appointment;

5) the amounts spent on the storage and forwarding of material evidence;

6) the amounts spent on the production of a forensic examination in expert institutions;

7) a monthly state allowance in the amount of five times the minimum wage paid to an accused who has been temporarily removed from office (part 6 of article 114 of the Code of Criminal Procedure);

8) other expenses incurred in the course of criminal proceedings.

Not all material costs associated with criminal proceedings are included in procedural costs. They do not include expenses for the maintenance of employees of the preliminary investigation bodies, the prosecutor's office, judges, assessors, their material and technical equipment, the maintenance and operation of buildings and premises, etc.

When deciding the verdict, the court without fail resolves the issue of the distribution of court costs. Procedural costs are collected from convicts or reimbursed at the expense of the federal budget (part 1 of article 132 of the Code of Criminal Procedure).

The court has the right to recover procedural costs from the convict, with the exception of: 1) the amounts paid to the translator (part 2 of article 18, part 2 of article 132 of the Code of Criminal Procedure);

2) the amounts paid to the defense counsel (in cases of participation of the defense counsel) for the purpose (including if the suspect or the accused announced the refusal of the defense counsel, but the refusal was not satisfied) and during the rehabilitation of the person (part 4 of article 16, part 5 of article 50, part 2, 4, 5 of article 132 of the Code of Criminal Procedure);

3) when passing a sentence without conducting a trial in connection with the consent of the defendant with the charges brought (part 4 of article 316 of the Code of Criminal Procedure).

Procedural costs associated with the participation in a criminal case of an interpreter, as well as a defense counsel by appointment, are reimbursed only at the expense of the federal budget.

47. REHABILITATION IN CRIMINAL PROCEEDINGS

Rehabilitated is a person who, in accordance with the Code of Criminal Procedure, has the right to compensation for harm caused to him in connection with illegal or unjustified criminal prosecution (clause 35, article 5 of the Code of Criminal Procedure).

The following have the right to rehabilitation (part 2 of article 133 of the Code of Criminal Procedure):

1) the defendant against whom the verdict of acquittal has been issued;

2) a defendant whose criminal prosecution has been terminated due to the refusal of the public (private) prosecutor to charge;

3) a suspect, an accused, a convicted person, the criminal prosecution against whom has been terminated:

in the absence of a crime event;

due to the absence of corpus delicti in the act;

in the absence of a statement from the victim, if a criminal case can be initiated only on his application, except in cases where such a case is initiated on a legal basis (part 4 of article 20 of the Code of Criminal Procedure);

due to the lack of consent of the court to initiate a criminal case or to involve as an accused a person in respect of whom the Code of Criminal Procedure establishes a special procedure for criminal prosecution (clauses 1-5, 9 and 10, part 1, article 448 of the Code of Criminal Procedure) or there is no consent, respectively, of the Federation Council, the State Duma, the Constitutional Court of the Russian Federation, the qualification board of judges;

due to the non-involvement of the suspect or the accused in the commission of the crime;

due to the presence in relation to the suspect or accused of a verdict on the same charge that has entered into legal force, or a court ruling or a judge’s decision to terminate a criminal case on the same charge, or an unreversed decision of the inquirer or investigator to terminate a criminal case on the same charge or refusal to initiate criminal proceedings; - due to the refusal of the State Duma of the Federal Assembly of the Russian Federation to give consent to bring the Commissioner for Human Rights in the Russian Federation to criminal liability; giving consent to the deprivation of immunity of the President of the Russian Federation who has ceased to exercise his powers, and (or) the refusal of the Federation Council to deprive this person of immunity. The court in its verdict, ruling, and the investigator, investigator in its resolution recognize the right to rehabilitation of a person against whom criminal prosecution has been terminated. At the same time, the rehabilitated person is sent a notice explaining the procedure for compensation for harm. A person rehabilitated within 3 years (Article 196 of the Civil Code of the Russian Federation) from the date of receipt of the notice has the right to apply with a request to determine the amount of money to be paid (Part 2 of Article 135 of the Code of Criminal Procedure), respectively, to the body that made the decision on rehabilitation.

The judge, investigator, inquirer, within a month from the date of receipt of the request, determines the amount of damage and issues a decision on the payment.

The right to rehabilitation includes: 1) the right to compensation for property damage; 2) the right to eliminate the consequences of moral damage; 3) the right to restoration of labor, pension, housing and other rights (part 1 of article 133 of the Code of Criminal Procedure).

An intangible form of compensation for moral damage is the official apology by the prosecutor on behalf of the state to the rehabilitated person (Article 136 of the Code of Criminal Procedure), as well as the obligatory media report on the rehabilitation of a person, if information about criminal prosecution was previously disseminated in it. Compensation for non-pecuniary damage in monetary form is carried out in the order of civil proceedings.

Restoration of labor rights is carried out by providing the previous job, and if this is not possible, another equivalent job (position).

48. REASONS AND GROUNDS FOR INITIATING CRIMINAL PROCEEDINGS

The procedural conditions for initiating a criminal case are the presence of a reason and grounds and the absence of circumstances precluding the initiation of a criminal case (Article 24 of the Code of Criminal Procedure).

Reasons for initiating a criminal case are sources of information established by law about an act containing signs of a crime.

Business public prosecution reasons for initiating a criminal case are:

1) statement of the crime;

2) appearance with confession;

3) a message about a crime committed or being prepared, received from other sources (part 1 of article 140, 141-143).

Business private and private-public the accusation can be based on the statement of the victim himself, except in cases where the crime was committed against a person who is in a dependent position or for other reasons is not able to independently exercise his rights (parts 2-4 of article 20 of the Code of Criminal Procedure).

Crime statement may be done orally or in writing.

Oral statements of citizens are recorded in the minutes. The applicant is warned about criminal liability for deliberately false denunciation.

A written statement about the crime must be signed by the applicant. An anonymous statement about a crime is not a reason for initiating a criminal case. Written applications must contain full information about the author, as well as documents proving his identity.

Turnout with confession - this is a voluntary report of a person about a crime committed by him to the body of inquiry (inquirer), investigator, court. A confession may be made either orally or in writing. An oral statement of surrender is accepted and recorded in the minutes. The protocol is signed by the person who confessed himself and by the interrogating officer, the investigator who drew up the protocol.

In the case of surrendering, the official establishes: the identity of the person who surrendered; whether the act of the person about whom it reports contains elements of a crime; the place and time of the act, how it was expressed, what consequences occurred, who can be called as a witness, whether there is material evidence, etc.

Reports of a committed or impending crime received from other sources. Other sources, in particular, include: direct discovery by the investigator or interrogating officer of signs of a crime, articles published in the press containing information about planned or committed crimes, etc.

In case of direct detection of the signs of a crime, the investigator, interrogating officer are obliged to draw up a report on the discovery of a crime, which sets out the circumstances of the committed act and information about the source of information.

In order to initiate a criminal case, in addition to the reason, it is necessary to have grounds, i.e. sufficient data pointing to the signs of a crime (part 2 of article 140 of the Code of Criminal Procedure).

The concept of "sufficient data" is evaluative, the content of which is revealed only taking into account specific situations. When determining the grounds for initiating a criminal case, it is necessary to take into account: a) the range of circumstances, information about which necessary dispose; b) level knowledge of these circumstances (probability of committing a crime). Most often, this is data about the object and the objective side of the crime.

49. VERIFICATION OF STATEMENTS AND REPORTS OF CRIME

The inquirer, body of inquiry, investigator are obliged to accept, check message about any crime committed or being prepared and within the competence established by the Code of Criminal Procedure, make a decision on it no later than 3 days from the date of receipt of the said message. When checking a message about a crime, the body of inquiry, the inquirer, the investigator and the prosecutor have the right to demand the production of documentary checks, audits and involve specialists.

According to a report on a crime circulated in the media, an inquiry is carried out on behalf of the prosecutor by the body of inquiry, as well as by an investigator on behalf of the head of the investigative body.

The head of the investigative body, the head of the body of inquiry shall have the right, at the request of the investigator, the interrogating officer, respectively, to extend to 10 days the period for checking the report of the crime, and if it is necessary to conduct documentary checks or audits, the head of the investigative body, at the request of the investigator, the prosecutor, at the request of the interrogator, shall have the right to extend this period up to 30 days .

The applicant is issued a document confirming the receipt of a report on a crime indicating the data on the person who received it, as well as the date and time of its receipt.

Article 144 of the Code of Criminal Procedure indicates the need to verify a report of a crime, without defining the methods for its implementation. Based on the analysis of a number of norms of the Code of Criminal Procedure, as well as the Federal Law "On operational-search activities" and the Law of the Russian Federation "On the police", the methods for verifying a crime report include:

1) an inspection of the scene of the incident, which, in cases of urgency, can be carried out before the initiation of a criminal case (part 2 of article 176 of the Code of Criminal Procedure);

2) examination and appointment of an examination - to fix the traces of a crime and identify the person who committed it (part 4 of article 146 of the Code of Criminal Procedure);

3) other procedural actions: send demands, instructions, requests to institutions, enterprises, organizations, officials and citizens (Article 21 of the Code of Criminal Procedure);

4) the requirement for the production of documentary checks, audits, the involvement of a specialist in their participation (part 1 of article 144 of the Code of Criminal Procedure);

5) the requirement from the editorial office, the editor-in-chief of the corresponding mass media of the documents and materials at the disposal of the relevant mass media, confirming the report of the crime, as well as data on the person who provided the specified information, except for cases when this person has set a condition for preservation in secrecy of the source of information (part 2 of article 144 of the Code of Criminal Procedure);

6) operational-search measures (Article 6 of the Federal Law "On operational-search activities"), as well as means of administrative and prosecutorial verification, the use of which is not due to the presence of criminal proceedings.

Based on the results of consideration of a report on a crime, the body of inquiry, the inquirer, the investigator shall take one of the following decisions:

1) on initiation of a criminal case in accordance with the procedure;

2) on refusal to initiate a criminal case;

3) on the transmission of a message according to jurisdiction.

The applicant is informed of the decision. At the same time, the applicant is explained his right to appeal against this decision and the procedure for appealing.

50. PROCEDURE FOR INITIATING CRIMINAL PROCEEDINGS

If there is a legitimate reason and sufficiency of the grounds, the body of inquiry, the inquirer, the investigator initiate a criminal case, about which a decision is issued. AT initiation order of a criminal case, the following must be indicated: 1) the date, time and place of its issuance;

2) by whom it was issued;

3) the reason and ground for initiating a criminal case;

4) paragraph, part, article of the Criminal Code of the Russian Federation, on the basis of which a criminal case is initiated.

A copy of the decision of the investigator, interrogating officer to initiate a criminal case shall be immediately sent to the prosecutor. If the prosecutor recognizes the decision to initiate a criminal case as illegal or unfounded, he has the right to cancel the decision to initiate a criminal case within 24 hours from the receipt of the materials, and a reasoned decision is issued. The investigator, the interrogating officer shall immediately notify the applicant, as well as the person in respect of whom the criminal case has been initiated, of the decision taken (part 4 of article 146 of the Code of Criminal Procedure).

The captains of sea or river vessels on long-distance voyages, heads of geological exploration parties and winter quarters remote from the locations of inquiry agencies, heads of diplomatic missions or consular offices of the Russian Federation have the right to initiate criminal cases (parts 1 and 2 of article 146 of the Code of Criminal Procedure) . When a criminal case is initiated by the said persons, the prosecutor shall be immediately notified of the initiated investigation, and when a real opportunity arises, the materials of the case and the decision to initiate the case shall be transferred to the prosecutor.

This procedure for initiating criminal proceedings is inherent in cases public accusation.

There are certain features in the procedure for initiating a criminal case of private and private-public prosecution.

Statements about crimes under Part 1 of Art. 115, part 1 of Art. 116, part 1 of Art. 129 and Art. 130 of the Criminal Code, are considered cases private prosecution (part 2 of article 20 of the Code of Criminal Procedure) and are submitted to the justice of the peace (article 318 of the Code of Criminal Procedure). Criminal cases on crimes of this category are initiated by filing an application by the victim or his legal representative. If the application is filed in relation to a person whose details are not known to the victim, then the justice of the peace refuses to accept the application for his proceedings and sends this application to the head of the investigative body or the head of the body of inquiry to resolve the issue of initiating a criminal case. The applicant is notified of the decision.

Criminal cases on crimes under Part 1 of Art. 131, part 1 of Art. 132, part 1 of Art. 136, part 1 of Art. 137, part 1 of Art. 138, part 1 of Art. 139, 145, part 1 of Art. 146 and part 1 of Art. 147 of the Criminal Code of the Russian Federation are considered cases private-public prosecution and are initiated only at the request of the victim (part 3 of article 20 of the Code of Criminal Procedure). Otherwise, the procedure for initiating criminal cases of this category is similar to the procedure for initiating criminal cases of public prosecution. In accordance with Part 3 of Art. 147 of the Code of Criminal Procedure, proceedings in such cases are carried out in accordance with the general procedure.

The investigator, as well as the interrogator, with the consent of the prosecutor, initiate a criminal case on any crime and in the absence of a statement from the victim or his legal representative, if the crime was committed against a person who, due to a dependent or other helpless state or for other reasons, cannot defend his interests (h 4 article 20 of the Code of Criminal Procedure).

51. CIRCUMSTANCES EXCLUDING CRIMINAL PROCEEDINGS

grounds refusal to initiate criminal proceedings are as follows.

1. No crime event (clause 1, part 1, article 24) means the absence of the very fact of a socially dangerous act.

2. Lack of crime (Clause 2, Part 1, Article 24) can be recognized in cases where the very fact of a wrongful act is established, however: a) the actions of this person were lawful (necessary defense and other circumstances provided for in Articles 37-42 of the Criminal Code ); b) one of the mandatory elements of the offense is missing (Article 20 of the Criminal Code and part 3 of Article 27 of the Code of Criminal Procedure). Refusal on this basis is allowed only in relation to a specific person (part 1 of article 148 of the Code of Criminal Procedure).

3. After the expiration of the statute of limitations for criminal prosecution (clause 3, part 1, article 24). The decision is made taking into account the requirements of Art. 78 of the Criminal Code of the Russian Federation on the limitation periods and the procedure for their calculation.

4. Death of the person who committed the crime (clause 4, part 1, article 24), provided that there is no need for criminal proceedings for the rehabilitation of the deceased.

5. Absence of a statement from the victim (Clause 5, Part 1, Article 24) in cases of private and private-public prosecution, with the exception of cases provided for in Part 4 of Art. 20 Code of Criminal Procedure of the Russian Federation.

6. Lack of judgment on the presence of signs of a crime in the actions of one of the persons specified in paragraphs 3-5, 9 and 10 of part 1 of Art. 448, or the lack of consent, respectively, of the Federation Council, the State Duma, the Constitutional Court of the Russian Federation, the qualification board of judges to initiate a criminal case against one of the persons specified in paragraphs 1 and 2 of part 1 of Art. 448 (paragraph 6 of part 1 of article 24).

The criminal case and criminal prosecution shall be terminated if there are the following grounds.

1. In connection with the reconciliation of the parties. The court, as well as the investigator with the consent of the head of the investigative body or the interrogating officer with the consent of the prosecutor, on the basis of the application of the victim, have the right to terminate the criminal case against a person suspected or accused of committing a crime of small or medium gravity, in the cases provided for in Art. 75 of the Criminal Code of the Russian Federation, if this person reconciled with the victim and made amends for the harm caused to him (Article 25 of the Criminal Procedure Code).

2. In connection with the non-involvement of the suspect or the accused in the commission of a crime (Clause 1, Part 1, Article 27 of the Code of Criminal Procedure).

3. Due to the act of amnesty (Clause 3, Part 1, Article 27 of the Code of Criminal Procedure).

4. Availability against the suspect or the accused final judgment or a court ruling on the termination of a criminal case, an unrepealed decision of the body of inquiry, an investigator or a prosecutor on the termination of a criminal case or refusal to initiate a criminal case on the same charge (clauses 4, 5, part 1, article 27 of the Code of Criminal Procedure).

5. Refusal of the State Duma or the Federal Assembly to give consent to the deprivation of the immunity of the President of the Russian Federation, terminated the exercise of his powers (clause 6, part 1, article 27 of the Code of Criminal Procedure).

6. In connection with active repentance. The court, as well as the investigator with the consent of the head of the investigative body or the interrogating officer with the consent of the prosecutor, have the right to terminate criminal prosecution against a person suspected or accused of committing a crime of small or medium gravity, in cases provided for in Part 1 of Art. 75 of the Criminal Code of the Russian Federation (voluntary surrender, assistance in solving a crime, compensation for damages, etc.).

52. PRELIMINARY INVESTIGATION: CONCEPT AND FORMS

Preliminary investigation is carried out in the form of a preliminary investigation or in the form of an inquiry (part 1 of article 150 of the Code of Criminal Procedure). The name of the investigation form corresponds to the name of the body exercising certain powers. Preliminary investigation can also be carried out through joint activities, in the interaction of these bodies within the investigation stage. Evidence obtained by the body of inquiry within the limits of the procedural powers granted to it have the same significance for the court as the evidence collected by the investigator.

The main form of the preliminary investigation is the preliminary investigation, regulated by Ch. 22 Code of Criminal Procedure. The dominant nature of the preliminary investigation is explained by the fact that it is obligatory in all criminal cases, with the exception of the criminal cases referred to in Part 3 of Art. 150 of the Code of Criminal Procedure, since an inquiry is being carried out on them.

Depending on the nature of the crime committed, its qualifications, the preliminary investigation is carried out:

investigators of the Investigative Committee under the Prosecutor's Office of the Russian Federation;

federal security service investigators;

investigators of internal affairs bodies of the Russian Federation;

investigators of bodies for control over the circulation of narcotic drugs and psychotropic substances.

In accordance with Art. 162 of the Code of Criminal Procedure, the preliminary investigation of a criminal case must be completed within a period not exceeding two months from the date of initiation of the criminal case.

The total period does not include the time during which the proceedings were suspended in accordance with Art. 208 Code of Criminal Procedure. The law establishes that the period of preliminary investigation may be extended up to three months by the head of an investigative body in a district, city, or the head of a specialized investigative body, including a military one, equivalent to him. In cases, the investigation of which is of particular difficulty, the head of the investigative body in the constituent entity of the Russian Federation and the head of another specialized body, including the military, as well as their deputies, may extend the period up to 12 months.

A further extension of the term can be made only in exceptional cases by the chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation, the head of the investigative body of the relevant federal executive body (under the federal executive body) and their deputies. The procurator, the accused and his defense counsel, the victim and his representative must be notified in writing of the extension of the term of the preliminary investigation.

A preliminary investigation in the form of an inquiry is carried out in accordance with the general procedure established for a preliminary investigation, with the exceptions provided for in Chapter. 32 Code of Criminal Procedure.

Inquiry is made:

investigators of the internal affairs bodies of the Russian Federation;

investigators of bodies for control over the circulation of narcotic drugs and psychotropic substances;

interrogating officers of the border agencies of the federal security service;

interrogating bodies of the bailiff service of the Ministry of Justice of the Russian Federation;

interrogators of the customs authorities of the Russian Federation;

interrogating bodies of the State Fire Service;

investigators of the Investigative Committee at the Prosecutor's Office of the Russian Federation - in criminal cases of crimes provided for in paragraph 5 of Part 3 of Art. 151 Code of Criminal Procedure of the Russian Federation. The total period of inquiry is 30 days.

53. GENERAL CONDITIONS OF PRELIMINARY INVESTIGATION

The general conditions of the preliminary investigation include the following.

1. Forms of preliminary investigation (Article 150 of the Code of Criminal Procedure) - see question 52.

2. jurisdiction (Article 151 of the Code of Criminal Procedure) - see the question. 54.

3. Place of preliminary investigation. As a general rule, a criminal case is investigated at the place where the crime ended (Article 152 of the Code of Criminal Procedure).

4. In one production there may be connected criminal cases against: 1) several persons who committed crimes in complicity; 2) one person who has committed several crimes; 3) a person accused of concealing crimes, which are not promised in advance, being investigated in these criminal cases; 4) when there are sufficient grounds to believe that several crimes have been committed by one person or a group of persons (Article 153 of the Code of Criminal Procedure).

5. The inquirer, the investigator has the right distinguish from a criminal case to a separate proceeding another criminal case in respect of: 1) individual defendants in criminal cases of crimes committed in complicity, in cases specified by law; 2) a juvenile accused brought to criminal responsibility together with adult accused; 3) other persons accused of committing a crime not related to the acts imputed in the criminal case under investigation, when this becomes known during the preliminary investigation (Article 154 of the Code of Criminal Procedure).

6. The inquirer, the investigator issues a decision about the allocation of materials, containing information about a new crime not related to the one under investigation from the criminal case and sending it to: the investigator - to the head of the investigative body, the investigator - to the prosecutor to make a decision in accordance with the law (Article 155 of the Code of Criminal Procedure).

7. Preliminary investigation starts from the moment a criminal case is initiated, about which the investigator, interrogating officer issues an appropriate resolution (Article 156 of the Code of Criminal Procedure).

8. If there are signs of a crime, for which the conduct of a preliminary investigation is mandatory, the body of inquiry initiates a criminal case and urgent investigations . After their production (but no later than 10 days), the body of inquiry sends the criminal case to the head of the investigative body (Article 157 of the Code of Criminal Procedure).

9. Preliminary investigation ends in the manner prescribed by the Code of Criminal Procedure. Having established the circumstances that contributed to the commission of the crime, the inquirer, investigator has the right to submit to the relevant organization a proposal on taking measures to eliminate these circumstances.

10. Restoration of the lost criminal case carried out by order of the head of the investigative body or the head of the inquiry body, and in case of their loss during judicial proceedings - by a court decision sent to the specified persons for execution (Article 158.1 of the Code of Criminal Procedure).

11. Investigator, interrogator must consider each application in a criminal case, a petition (Article 159 of the Code of Criminal Procedure).

12. If the accused, taken into custody, left unattended minor children, other dependents, then the investigator, interrogator takes steps to transfer them to care relatives or placement in appropriate social institutions, and also takes measures to ensure the safety of property and housing (Article 160 of the Code of Criminal Procedure of the Russian Federation).

13. Investigator, inquirer warns participants in criminal proceedings on the inadmissibility of disclosure of preliminary investigation data (Article 161 of the Code of Criminal Procedure).

54. SUCCESSION AND ITS TYPES

The competence of the various investigative bodies is delimited on the basis of the rules on jurisdiction - a set of signs of a criminal case established by law, in accordance with which the investigation is the responsibility of a certain investigator (Article 151 of the Code of Criminal Procedure).

The following legal features of a criminal case are distinguished, on the basis of which its jurisdiction is determined:

1) subject (generic);

2) territorial (local);

3) personal (personal);

4) alternative (mixed);

5) in connection with criminal cases.

Subject (generic) sign jurisdiction is determined by the nature of the crime committed, its qualifications, depending on which the competence is delineated between the investigators of various investigative bodies: the prosecutor's office, internal affairs, the Federal Security Service, etc. (Article 151 of the Code of Criminal Procedure).

Separation on a territorial (local) basis allows to distinguish between the jurisdiction between the same-name bodies of inquiry and preliminary investigation, depending on the territory to which their jurisdiction extends, i.e. jurisdiction is determined by the place (district) of the crime (Article 152 of the Code of Criminal Procedure).

Personal (personal) sign determines the jurisdiction of a criminal case on the basis of certain characteristics of the subject of the crime. For example, investigators of the Investigative Committee under the Prosecutor's Office of the Russian Federation carry out a preliminary investigation of criminal cases on crimes committed by deputies and judges.

Alternative, or mixed, sign jurisdiction implies the possibility of investigating a number of crimes by one or another investigator, depending on who identified the crime. An alternative sign of jurisdiction is used in determining jurisdiction in criminal cases of fraud, misappropriation or embezzlement of other people's property and a number of other crimes listed in Part 5 of Art. 151 Code of Criminal Procedure.

A kind of alternative jurisdiction can be considered the assignment by the criminal procedure law of criminal cases on the same crimes to the jurisdiction of investigators from different departments. In particular, criminal cases on crimes under Art. 208-210 of the Criminal Code (organization of an illegal armed group or participation in it, banditry, organization of a criminal community), are indicated simultaneously in the lists of criminal cases to be investigated by both investigators of the Investigative Committee under the Prosecutor's Office of the Russian Federation and investigators of the internal affairs bodies (clauses 1, 3 of the 2 article 151 of the Code of Criminal Procedure). In such cases, the jurisdiction of a criminal case to a specific investigator is finally determined by the prosecutor.

On the basis of connection with crimes investigated by investigators of one or another departmental affiliation, the jurisdiction of criminal cases on the involvement of a minor in the commission of a crime, abuse of power, taking a bribe and other similar crimes is determined. Preliminary investigation in these criminal cases is carried out by investigators of the body whose jurisdiction includes the crime, in connection with which the corresponding criminal case was initiated (Part 6, Article 151 of the Code of Criminal Procedure).

55. FEATURES OF INQUIRY AS A FORM OF PRELIMINARY INVESTIGATION

Under inquiry refers to the form of a preliminary investigation carried out by an interrogating officer (investigator) in a criminal case, in which a preliminary investigation is not necessary (clause 8, article 5 of the Code of Criminal Procedure).

Inquiry is made:

investigators of the internal affairs bodies of the Russian Federation;

investigators of bodies for control over the circulation of narcotic drugs and psychotropic substances;

interrogating officers of the border agencies of the federal security service;

interrogating bodies of the bailiff service of the Ministry of Justice of Russia;

interrogators of the customs authorities of the Russian Federation;

interrogating bodies of the State Fire Service;

investigators of the Investigative Committee under the Prosecutor's Office of the Russian Federation - in criminal cases on crimes under paragraph 5, part 3, Art. 151 Code of Criminal Procedure of the Russian Federation. Consider the features of the inquiry.

1. The jurisdiction of the bodies of inquiry includes criminal cases on crimes listed in Part 3 of Art. 150 Code of Criminal Procedure.

There are more than 70 such elements of crime. These are, for example, theft (part 1 of article 158 of the Criminal Code), robbery (part 1 of article 161 of the Criminal Code), destruction or damage to property through negligence (art. 168 of the Criminal Code), etc.

2. A distinctive feature of an inquiry is a short period for its production.

The inquiry is carried out within 30 days from the date of initiation of the criminal case. If necessary, this period may be extended by the prosecutor up to 30 days. In necessary cases, including those related to the production of a forensic examination, the period of inquiry may be extended by the prosecutors of the district, city, the military prosecutor equated to them and their deputies up to 6 months. In exceptional cases related to the execution of a request for legal assistance sent in the manner prescribed by Art. 453 of the Code of Criminal Procedure, the period of inquiry may be extended by the prosecutor of a constituent entity of the Russian Federation and a military prosecutor equated to it up to 12 months (part 4,5 of article 223 of the Code of Criminal Procedure).

3. If a criminal case has been initiated on the fact of committing a crime and in the course of the inquiry sufficient data have been obtained that give grounds to suspect a person of committing a crime, the interrogating officer draws up a written notice of suspicion of committing a crime, a copy of which is handed over to the suspect. After that, the person acquires all the rights and obligations of the suspect (part 1 of article 223. 1 of the Code of Criminal Procedure).

4. In accordance with paragraph 2 of part 1 of Art. 158 and Art. 225 of the Code of Criminal Procedure, the inquiry ends with the drawing up of an indictment. From the moment of drawing up the indictment, the person acquires the procedural position of the accused.

The indictment is approved by the head of the body of inquiry and sent along with the case materials to the prosecutor. A copy of the indictment with attachments is handed over to the accused and his defense counsel and the victim in the manner prescribed by Art. 222 Code of Criminal Procedure.

If the investigation in cases referred to in Part 3 of Art. 150 of the Criminal Code, it is impossible to carry out in the form of an inquiry (it is not possible to complete the investigation within the time limits established for the production of an inquiry, due to the complexity of proving in a particular case), the prosecutor sends the materials of the criminal case for the preliminary investigation.

56. CONCEPT, SIGNIFICANCE AND SYSTEM OF INVESTIGATIVE ACTIONS

The production of investigative actions is the main way of collecting evidence in a criminal case.

As follows from the analysis of the provisions of the law, investigative actions include procedural actions of a cognitive nature of the state bodies and officials conducting the criminal process, primarily the investigator, aimed at detecting traces of a crime, seizing, fixing and examining evidence in a criminal case.

The Code of Criminal Procedure provides for the following as independent investigative actions:

1) inspection;

2) examination;

3) investigative experiment;

4) search;

5) excavation;

6) seizure of postal and telegraph items, their examination and seizure;

7) control and recording of telephone and other conversations;

8) interrogation;

9) confrontation;

10) presentation for identification;

11) verification of testimony on the spot;

12) appointment and production of a forensic examination. Some authors consider the detention of a suspect (Articles 91, 92 of the Code of Criminal Procedure of the Russian Federation), as well as the seizure of property (Article 115 of the Code of Criminal Procedure of the Russian Federation) as investigative actions.

Separate investigative actions with coinciding, similar or close properties can be grouped depending on the content of the significance of the links that unite them. Objectively existing backbone factors and connections led to the division of all investigative actions into the following relatively isolated groups, which were enshrined as such in the Code of Criminal Procedure: 1) inspection, examination, investigative experiment (Chapter 24 of the Code of Criminal Procedure); 2) search, seizure, seizure of postal and telegraph items, control and recording of negotiations (Chapter 25 of the Code of Criminal Procedure); 3) interrogation, confrontation, presentation for identification, verification of testimony on the spot (Chapter 26 of the Code of Criminal Procedure); 4) production of a forensic examination (Chapter 27 of the Code of Criminal Procedure).

Criteria for an investigative action

1. Cognitive orientation. An investigative action is always aimed at collecting and verifying evidence (and not any information), even if no evidence is obtained as a result of it.

2. Provision of state coercion.

3. An investigative action significantly affects the rights and legitimate interests of citizens.

4. Availability of a procedure elaborated in detail and enshrined in the criminal procedure law.

General conditions for conducting investigative actions

1. An investigative action is carried out after the initiation of a criminal case. Only an inspection of the scene, examination and appointment of an expert examination are possible before the initiation of a criminal case.

2. The investigator, interrogating officer must have a special basis for the performance of this particular investigative action. The actual grounds for conducting investigative actions are contained in the specific norms of the Code of Criminal Procedure of the Russian Federation.

3. An investigative action must be carried out by the person who accepted the criminal case for proceedings, or on his behalf.

4. The performance of an investigative action at night is not allowed, except in cases of urgency (Part 3, Article 164 of the Criminal Procedure Code of the Russian Federation).

5. During the performance of an investigative action, the honor and dignity of the persons participating in it must not be humiliated.

6. The results and progress of the investigative action are documented in a protocol.

57. INSPECTION AND ITS TYPES. CERTIFICATION

Inspection consists in the examination by the investigator and other subjects of the criminal process of various objects in order to detect traces of a crime and to clarify other circumstances relevant to the criminal case (Article 176 of the Code of Criminal Procedure).

Inspection is a general concept, covering specific types of inspection: the scene of the incident, the area, the premises, objects, documents, the corpse.

All inspections are carried out, as a rule, with the participation of at least two witnesses, with the exception of cases where the inspection is carried out in hard-to-reach areas in the absence of proper means of communication, and also if the investigative action is associated with a danger to life and health of people (part 4 of article 170 of the Code of Criminal Procedure ).

Inspection of the scene. The scene of an incident means the premises, other object or area of the area where the event under investigation occurred, or another place taken at the beginning of the investigation as the scene of the crime.

Inspection of premises as an independent investigative action is carried out only in cases where the premises are located outside the scene of the incident. Inspection housing can be made only with the consent of the persons living in it or on the basis of a court decision. Dwelling means an individual residential building with residential and non-residential premises included in it, residential premises, regardless of the form of ownership, included in the housing stock and used for permanent or temporary residence, as well as other premises or buildings that are not included in the housing stock, but used for temporary residence (clause 10, article 5 of the Code of Criminal Procedure).

Inspections of objects and documents are made directly during the inspection of the scene, premises or terrain. They act as separate actions when it becomes necessary to examine objects or documents outside the investigative action that resulted in their discovery or seizure, as well as when objects, documents are presented to the investigator at his request or at the initiative of citizens, organizations, enterprises, institutions .

Inspection of the corpse is carried out by the investigator at the place of its discovery, which may be the scene of the incident. As an independent investigative action, the examination of a corpse can be carried out when, before the arrival of the investigator, the corpse has been moved from the place of its discovery to the morgue, hospital or any other place.

The corpse is examined with the participation of witnesses, a forensic expert, and, if his participation is impossible, a doctor. Unidentified corpses are subject to mandatory photography and fingerprinting.

Survey consists in examining the body of a living person in order to detect special signs, traces of a crime, bodily injuries, to identify a state of intoxication or other properties and signs relevant to a criminal case, unless a forensic medical examination is required. An accused, a suspect, a victim, as well as a witness with his consent, may be subjected to an examination, except in cases where the examination is necessary to assess the reliability of his testimony (Article 179 of the Code of Criminal Procedure).

The investigator issues a decision on the conduct of the examination.

58. INTERROGATION OF THE WITNESS AND THE INJURED. CONFRONTATION

Interrogation consists in the receipt by the investigator from a witness or victim of testimony about the circumstances to be proved in a criminal case.

The interrogation, regardless of the procedural status of the interrogated person, is carried out at the place of preliminary investigation (Article 187 of the Code of Criminal Procedure). If necessary, the interrogation may be carried out at the place of residence, treatment or any other location of the interrogated.

The witness, the victim are summoned to the investigator by a subpoena (Article 188 of the Code of Criminal Procedure). The summons is handed over to the person called for interrogation against receipt or transmitted using means of communication. A summons for interrogation of a person under the age of sixteen is made through his legal representatives or through the administration at the place of his work or study.

The interrogation cannot last continuously for more than 4 hours. Continuation of interrogation is allowed after a break of at least 1 hour for rest and eating, and the total duration of interrogation during the day should not exceed 8 hours.

Before the beginning of the interrogation, the investigator ascertains the identity of the interrogated, after which he explains to him his rights and responsibilities, as well as the procedure for interrogation. The investigator is free to choose the tactics of interrogation. Leading questions are not allowed.

The witness has the right to appear for interrogation with a lawyer (part 5 of article 189 of the Code of Criminal Procedure). The lawyer has the right to: give brief consultations to the witness in the presence of the investigator; to ask, with the permission of the investigator, questions to the witness; make written comments on the correctness and completeness of the records in the protocol, as well as statements about violations of the rights and legitimate interests of the witness. The investigator may omit the lawyer's questions, but is obliged to record the quotation questions in the record of the interrogation.

At the end of the interrogation, the interrogated person is presented for reading the protocol of the interrogation or, at his request, the protocol is read out by the investigator. The interrogated person shall sign each page of the protocol and the protocol as a whole.

The interrogation of a victim or witness under the age of fourteen, at the discretion of the investigator - and at the age of fourteen to eighteen years - is carried out with the participation of a teacher (Article 191 of the Code of Criminal Procedure). Victims and witnesses under the age of sixteen are not warned of liability for refusal to testify and for giving knowingly false testimony.

Confrontation is a simultaneous interrogation of those previously interrogated in connection with circumstances about which there are significant contradictions in their testimony (Article 192 of the Code of Criminal Procedure).

At the beginning of the confrontation, the investigator addresses the interrogated persons with the question whether they know each other and what kind of relationship they have with each other. Then they are invited in turn to testify on the circumstances, for the clarification of which a confrontation is made. After testifying, the investigator has the right to ask alternately additional questions aimed at clarifying the contradictions that have arisen. With the permission of the investigator, the persons between whom the confrontation is being held may ask questions to each other.

The testimonies of interrogated persons at the confrontation are recorded in the minutes of the confrontation in the order in which they were given. Each of the interrogated persons signs his testimony and each page of the protocol separately.

59. PROCEDURAL FEATURES OF PRESENTATION FOR IDENTIFICATION

presentation for identification consists in presenting to the witness, victim, suspect, accused of any persons or objects in order to establish their identity, similarity or difference with those persons or objects that the identifying person observed earlier under certain circumstances.

Presentation for identification is allowed provided that the witness or other participant in the process, who is to act as an identifying person, has been previously interrogated about the circumstances of the observation of the person being identified. During interrogation, special attention is paid to the characteristic features, signs, features of the object, allowing it to be identified.

Presentation for identification is carried out in the presence of attesting witnesses. If the identifying person is a witness or a victim, before presenting the relevant objects to him, he is warned about the responsibility for refusing to testify and for giving knowingly false testimony, which is noted in the protocol.

Any objects, with the exception of a corpse, must be presented for identification along with other similar objects. The total number of objects presented for identification is determined by the investigator, but cannot be less than three. The person being identified is presented to the identifying person together with other persons who are as similar as possible in appearance to the person being identified, in particular in terms of gender, age, physique, hair color, etc. Before the beginning of the presentation for identification, the identifiable person is invited to take any place among other presented persons, which is noted in the protocol.

If it is impossible to present a person due to illness or under other circumstances that exclude the possibility of his participation in the presentation for identification, identification can be made by his photograph, presented simultaneously with other photographs. The number of photographs must also be at least three. The object is presented in a group of similar objects. When presented for identification, the identifying person is invited to indicate the person or object about which he testified.

If the identification has taken place, then the identifying person is invited to explain by what signs or features he recognized the person or object. The investigator invites all persons participating in the presentation for identification, including attesting witnesses, to pay attention to the indicated signs or features of the identified object.

If there is sufficient evidence that the person acting as an identifying person is threatened with murder, violence, etc., then in accordance with the requirements of Part 3 of Art. 11 of the Code of Criminal Procedure, security measures are taken against the identifying person. In such cases, the presentation of a person for identification by the decision of the investigator may be carried out under conditions that exclude visual observation of the identifying person by the person being identified.

The protocol of presentation for identification contains information about the identity of the identifying person, other participants in the presentation for identification, about the persons and objects presented for identification, with a description of their number and characteristics. The testimony of the identifying person, given by him upon presentation of persons or other objects for identification, shall be stated as verbatim as possible. If the identification was made by photographs, a photo table is attached to the protocol.

60. SEARCH AND SEIZURE. PERSONAL SEARCH

Search consists in a compulsory examination of premises, areas of the terrain or citizens in order to detect and seize the instruments of crime, objects, documents relevant to the criminal case. The grounds for its production are factual data that allow us to make an assumption about the possibility of finding objects, documents relevant to the case in any place or with any person.

Search of premises is a compulsory inspection of residential buildings, apartments, garages and other buildings, if they may contain the wanted objects.

Search on the ground consists in compulsory inspection of homestead, country and other plots owned or used by certain persons.

Search in the dwelling can be made only on the basis of a court decision taken in accordance with the requirements of Art. 165 Code of Criminal Procedure. Dwelling means an individual residential building with residential and non-residential premises included in it, residential premises, regardless of the form of ownership, included in the housing stock and used for permanent or temporary residence, as well as other premises or buildings that are not included in the housing stock, but used for temporary residence (clause 10, article 5 of the Code of Criminal Procedure).

During the search, witnesses must be present. Before the start of the search, the investigator presents a court decision. After the investigator proposes to issue the instruments of the crime, as well as other items or documents that may be relevant to the case. If the items and documents being sought were issued voluntarily, the investigator has the right to confine himself to the seizure of the issued and not to carry out search actions.

All seized items, documents and valuables are presented to witnesses and other persons present during the search, packed and sealed, which is certified by the signatures of these persons.

The course and results of the search are reflected in the protocol. A copy of the protocol is handed over to the person whose premises were searched, or to an adult member of his family.

Personal search consists in a forced examination of clothes, shoes, the body of a suspect, an accused in order to detect and seize objects and documents that may be relevant to a criminal case. A personal search is carried out on the basis of a court decision. However, as an exception, a personal search is allowed without issuing a decision, in particular: 1) when detaining a person or taking him into custody; 2) if there are sufficient grounds to believe that the person in the premises or other place where the search is being carried out, hides objects or documents on himself (Article 184 of the Code of Criminal Procedure).

Notch consists in the seizure of certain items and documents relevant to the criminal case, if it is known exactly where and from whom they are located. The excavation does not involve search activities.

Seizure is carried out on the basis of the decision of the investigator. It is carried out according to the rules established for the conduct of a search (part 2 of article 183 of the Code of Criminal Procedure). Seizure of documents containing information on deposits and accounts of citizens in banks and other credit organizations, objects and documents containing state or other secrets protected by federal law, made on the basis of a court order.

61. INVESTIGATIVE EXPERIMENT. ON-SITE CHECK

Investigative experiment consists in reproducing the actions, situation or other circumstances of a certain event in order to verify and clarify the data relevant to the criminal case.

The investigator acts as the leader and organizer of the investigative experiment. It determines the content of experimental actions, ensures compliance with the appropriate conditions for their implementation. In the production of an investigative experiment, the participation of attesting witnesses is mandatory. If necessary, the investigator may involve the accused, the suspect, witnesses, the victim in the investigative experiment. A specialist may also be invited to assist in recreating the environment in which the event under investigation took place, or to photograph, video record the progress and results of the investigative experiment.

According to the law, the conduct of an investigative experiment is allowed provided that there is no danger to the health of the persons participating in it.

The course and results of the investigative experiment are set out in a protocol drawn up in accordance with Art. 166 and 167 of the Code of Criminal Procedure.

On-site verification consists in the fact that the previously interrogated person, in order to clarify his testimony and establish their compliance with reality at the place associated with the event under study, reproduces the situation and circumstances of this event, points to objects, documents, traces that are important for the criminal case, demonstrates certain actions ( article 194 of the Code of Criminal Procedure).

Verification of testimony on the spot is carried out after a detailed interrogation of the suspect, accused, witness, victim, whose testimony is subject to verification, subject to the mandatory drawing up of an interrogation protocol.

Verification of testimony on the spot is carried out with the obligatory participation of attesting witnesses. Before starting the on-site verification of testimony, the investigator explains to the participants their rights and responsibilities, as well as the purpose and procedure of the investigative action. The interrogated person is given the opportunity to freely choose the direction of movement to the place that the person previously reported during the interrogation and where his testimony will be verified.

Directly at the place associated with the event under investigation, the person whose testimony is being checked goes ahead of the investigator and all other participants in the investigative action and clarifies and supplements his previously given testimony, taking into account the location, situation of the place and the objects located on it. During the verification of testimony, a person can demonstrate exactly how, in what sequence the events described by him earlier occurred, etc.

After the person whose testimony is being verified provides information in the form of a free story and demonstrates the appropriate actions, the investigator asks him clarifying, control questions. Other participants in the verification of testimony on the spot ask questions with the permission of the investigator.

It is not allowed to simultaneously verify the testimony of several persons on the spot, regardless of their procedural status and the circumstances of the criminal case.

To record the actions of the person whose testimony is being verified, audio and (or) video recording may be made. The course and results of checking the testimony on the spot are reflected in the protocol drawn up according to the rules of Art. 166, 167.

62. CONTROL AND RECORDING TELEPHONE AND OTHER NEGOTIATIONS. SEIZATION OF POST AND TELEGRAPH MESSAGES

Control and recording of telephone and other conversations are a set of actions carried out to obtain evidence from the negotiations of the suspect, the accused and other persons in order to clarify the circumstances of the commission of the crime, as well as to ensure the safety of the victim, witness, their close relatives, relatives or close persons.

In accordance with the requirements of Art. 186 of the Criminal Procedure Code, control and recording of telephone and other conversations of the suspect, the accused and other persons are carried out if there are sufficient grounds to believe that the conversations of these persons contain information relevant to the criminal case. Control and recording of conversations is allowed only in criminal cases of grave and especially grave crimes and only by a court decision.

Production of control and recording of telephone and other conversations may be established for a period not exceeding 6 months. The investigator, during the entire period of production of control and recording of telephone and other conversations, has the right at any time to demand from the body that carries them out a phonogram for its examination and listening. The phonogram is handed over to the investigator in a sealed form with a cover letter, which must indicate the dates and times of the beginning and end of the recording of telephone and other conversations and brief technical characteristics of the technical means used for this.

The investigator draws up a protocol on the results of examination and listening to the phonogram with the participation of attesting witnesses. The protocol must contain verbatim that part of the audio recording, which, in the opinion of the investigator, is relevant to the given criminal case. The phonogram is attached to the criminal case as physical evidence and stored in a sealed form under conditions that exclude the possibility of listening to and replicating the phonogram by unauthorized persons and ensuring its safety and technical suitability for repeated listening, including in a court session.

Seizure of postal and telegraph items consists in establishing a mandatory prohibition for the relevant communication institutions to transfer to a certain addressee the items received in his name, as well as to send the items outgoing from him to the address indicated by him.

The grounds for seizure are factual data that allow us to believe that items, documents or information relevant to the criminal case may be contained in certain mailings. Seizure of any postal and telegraph items, their opening, subsequent examination and seizure can be carried out only on the basis of a court decision. If the issue is satisfactorily resolved, a copy of the judge’s decision is sent to the appropriate communication agency, which is instructed to detain postal and telegraph items and immediately notify the investigator both of incoming mail addressed to a specific addressee, and of postal items or telegrams outgoing from him.

Inspection, seizure or copying of postal and telegraph items are carried out in the presence of attesting witnesses from among the employees of the relevant communications institution. In each case of inspection of postal and telegraph items, a protocol is drawn up.

63. APPOINTMENT AND PRODUCTION OF EXAMINATION

If necessary, to carry out in a criminal case forensic examination investigator in accordance with Art. 195 of the Code of Criminal Procedure issues a resolution indicating the grounds for the appointment of an examination, the surname, name, patronymic of the expert or the name of the expert institution in which the examination is to be carried out, as well as the questions posed to the expert, and the materials placed at his disposal.

The investigator acquaints the suspect, the accused, his defense counsel with the decision and at the same time explains their rights in connection with the appointment and conduct of an expert examination. These persons have the right: to get acquainted with the decision on the appointment of a forensic examination; file a challenge to an expert or apply for a forensic examination in another expert institution; apply for the involvement as experts of the persons indicated by them or for the production of an examination in a specific expert institution; petition for the introduction of additional questions to the expert in the decision on the appointment of a forensic examination; be present with the permission of the investigator during the examination and give explanations to the expert; get acquainted with the expert's opinion or the report on the impossibility of giving an opinion, as well as with the protocol of the expert's interrogation. The fact that the said persons have become acquainted with the decision on the appointment of a forensic examination and explained to them their procedural rights shall be reflected in the protocol.

The victim has the right to get acquainted with the decision on the appointment of an expert examination, to challenge the expert or to apply for the conduct of a forensic examination in another expert institution.

Having recognized the need to conduct a forensic examination in the relevant expert institution, the investigator sends to this institution his decision and the materials necessary for the examination. The head of the institution entrusts the performance of an expert examination to one or several experts, of which he notifies the investigator.

If a forensic examination is carried out outside an expert institution, the investigator, after issuing a decision to appoint an examination, summons the person chosen by him as an expert, ascertains his identity, specialty and competence, as well as the absence of grounds for challenge. Then the investigator hands the expert a decision on the appointment of a forensic examination and the materials necessary for the performance of the examination, explains to him his procedural rights, duties and responsibilities.

The investigator has the right to be present during the examination. In the conclusion drawn up on the basis of the results of the study, the expert is obliged to indicate: when, where, by whom, on what basis the forensic examination was carried out, what materials were used, what studies and by what methodology were carried out, who was present during the examination, answers to all questions, placed before an expert investigator. If necessary, the investigator has the right to interrogate the expert in order to clarify or supplement the conclusion given by him.

The expert's opinion or his report on the impossibility of giving an opinion shall be presented to the suspect, the accused, his defense counsel. If the forensic examination was carried out at the request of the victim or in relation to the victim or witness, they are also presented with an expert opinion.

64. PRESENTATION OF CHARGES AND INTERROGATION OF THE ACCUSED

In the case when, as a result of the investigation and other procedural actions, sufficient evidence has been collected that gives grounds for accusing a person of committing a crime, the investigator involves this person as an accused, about which he issues an appropriate decision (part 1 of article 171 of the Code of Criminal Procedure).

The decision indicates: the date and place of its compilation, by whom it was drawn up, the name and patronymic of the accused, the month, year and place of his birth, a description of the crime, indicating the circumstances named in Art. 73 of the Code of Criminal Procedure, paragraph, part, article of the Criminal Code, according to which the actions of the accused must be qualified, the decision on his involvement as an accused in the case under investigation (paragraphs 1, 2 of article 171).

A person becomes an accused from the moment this ruling is issued (Article 47 of the Code of Criminal Procedure).

It is necessary to distinguish between the issuance of a decision to bring a person as an accused and the presentation of this decision to the accused.

The charge must be brought against the accused no later than 3 days from the date of the decision to bring him as an accused (Article 172 of the Code of Criminal Procedure). Before filing charges, the investigator explains to the accused the day on which the charges will be filed and explains the right to independently invite a defense attorney or ask the investigator to ensure the participation of a defense attorney. An accused who is not in custody is summoned by summons (Article 188 of the Code of Criminal Procedure), and an accused person who is in custody is summoned through the administration of the place of detention.

The investigator certifies the identity of the accused and announces to the accused and his defense counsel, if he participates in the case, the content of the decision to bring him as an accused.

At the same time, the essence of the charge and the rights enshrined in Art. 47 Code of Criminal Procedure.

The accused and his/her counsel must certify with their signatures on the resolution the fact that these actions have been carried out, indicating the date and time of the presentation of the charge. If the accused refuses to sign, the investigator shall make an appropriate entry in the decision.

The accused and his defense counsel shall be given a copy of the decision to bring them as an accused. A copy of this decision is also sent to the prosecutor.

Having filed charges, the investigator is obliged to immediately interrogate the accused (Article 173 of the Code of Criminal Procedure). The investigator finds out whether he pleads guilty and whether he wishes to testify on the charges brought against him. Giving evidence is the right, not the obligation of the accused (clause 3, part 4, article 47 of the Code of Criminal Procedure). The accused is interrogated regarding all the circumstances of the accusation. Having completed the interrogation, the investigator is obliged to familiarize the accused with the interrogation protocol.

With further investigation, grounds may appear for changing or supplementing the initial charge or partially terminating the criminal prosecution.

In all cases when a change in the charge is caused by a change in its factual aspect or legal qualification of the crime, and the addition of the charge is the establishment of additional episodes of the criminal activity of the accused, the investigator makes a new reasoned resolution, includes in it all episodes of the criminal activity of the accused with their previous or new qualifications, presents This decision is issued to the accused and interrogates him on the new charge.

65. END OF PRELIMINARY INVESTIGATION

Having come to the conclusion that during the investigation all the circumstances of the case have been clarified, the investigator and the interrogator stop further collection of evidence, systematize the materials, form and substantiate conclusions on the merits of the case. At this stage of the preliminary investigation, a decision is made about the future direction of the case.

The law provides for the following forms for completing a preliminary investigation:

1) termination of the criminal case and criminal prosecution;

2) sending the case with the indictment (indictment) to the prosecutor. The filing of an indictment must be preceded by a series of proceedings investigator.

1. The investigator notifies the accused of the completion of the preliminary investigation and explains to him the provisions of Art. 217 of the Criminal Procedure Code, the right to familiarize with all the materials of the criminal case, both personally and with the help of a defense counsel, a legal representative, about which a protocol is drawn up. The investigator notifies the victim, civil plaintiff, civil defendant and their representatives of the completion of investigative actions.

2. At the request of the victim, civil plaintiff, civil defendant and their representatives, the investigator acquaints these persons with the materials of the criminal case in full or in part. The civil plaintiff, civil defendant or their representatives get acquainted with the materials of the criminal case in the part that relates to the civil suit (Article 216 of the Code of Criminal Procedure).

3. Familiarization of the accused and his defense counsel with the materials of the criminal case is carried out in the following order (Article 217 of the Code of Criminal Procedure).

The investigator presents to the accused and his defense counsel the stitched and numbered materials of the criminal case. If several defendants are involved in the proceedings on a criminal case, then the sequence in which the materials of the criminal case are presented to them and their defense lawyers shall be established by the investigator.

In the process of familiarization with the materials of the criminal case, which consists of several volumes, the accused and his defense lawyer have the right to repeatedly refer to any of the volumes of the criminal case, as well as write out any information and in any volume, make copies of documents, including with the help of technical means. If the accused in custody and his/her defense counsel obviously delay the time of familiarization with the materials of the criminal case, then on the basis of a court decision, a certain period is established for familiarization with the materials of the criminal case. The investigator explains to the accused his right to petition: for consideration of the case by a court with the participation of jurors; on consideration of the case by a panel of three judges of the federal court of general jurisdiction; on the application of a special procedure for judicial proceedings; for preliminary hearings.

4. Upon completion of familiarization of the accused and his defense counsel with the materials of the criminal case, the investigator draws up a protocol, which indicates the dates of the beginning and end of familiarization with the materials of the criminal case, the submitted petitions and other statements.

5. If the petition filed by one of the participants in the proceedings on the criminal case is satisfied, the investigator supplements the materials of the criminal case. Upon completion of additional investigative actions, the investigator provides an opportunity to familiarize himself with the additional materials of the criminal case.

66. INDICATOR, ITS STRUCTURE AND CONTENT

The activity of the investigator ends with the preparation of the indictment.

The indictment has an important legal value. This act allows the accused to prepare in time to participate in the trial. Its significance lies in the fact that it systematizes all the materials of the preliminary investigation, allows the judicial investigation to be conducted within certain limits.

According to Part 1 of Art. 220 of the Code of Criminal Procedure in the indictment, the investigator indicates:

1) surnames, first names and patronymics of the accused or accused;

2) data on the identity of each of them;

3) the essence of the accusation, the place and time of the commission of the crime, its methods, motives, goals, consequences and other circumstances relevant to the given criminal case;

4) the wording of the accusation, indicating the paragraph, part, article of the Criminal Code of the Russian Federation, providing for liability for this crime;

5) a list of evidence supporting the accusation;

6) a list of evidence referred to by the defense party;

7) circumstances mitigating and aggravating punishment;

8) information about the victim, the nature and amount of damage caused to him by the crime;

9) data on the civil plaintiff and the civil defendant.

The indictment first indicates the entire list of biographical and other data on the identity of the accused (which must be given in relation to each accused, if there are several of them), then follows a statement of the essence of the charge and the circumstances of the crime, after which evidence is presented.

The basis of the description of the criminal act is the accusation formulated in the decision to bring him as an accused. The description of the criminal act must be complete enough to include all the essential elements of the crime. The order of presentation of the elements of the descriptive part of the indictment is chosen by the investigator, depending on the characteristics of a particular criminal case.

Particular attention should be paid to the formation of a list of evidence cited in the indictment to support the charge, and the evidence referred to by the defense. At the same time, it is required not only to list the evidence, but also to briefly state their content (decree of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004).

In accordance with Art. 220 of the Code of Criminal Procedure, the following is attached to the indictment: list of persons subject to summons to the court hearing, as well as a certificate about the duration of the investigation, about the selected preventive measures indicating the time of detention and house arrest, about material evidence, about the civil claim, about the measures taken to secure the civil claim and possible confiscation of property, about procedural costs, and if the accused or victim has dependents - about the measures taken to ensure their rights.

The list of persons to be summoned to the court session, according to the adversarial beginning, is drawn up in strict sequence. The first on the list is the accused, followed by the victim, the civil plaintiff, the civil defendant, then the prosecution and defense witnesses.

Attachments to the indictment are signed by the investigator. After signing the indictment, he immediately sends the case to the prosecutor (Article 220 of the Code of Criminal Procedure).

67. SUSPENSION AND RESUME OF THE PRELIMINARY INVESTIGATION. SEARCH FOR THE ACCUSED

Suspension of preliminary investigation means a temporary break in the production of investigative actions caused by the circumstances specified in the law. The time for which the investigation was suspended shall not be included in the term of the investigation.

The preliminary investigation is suspended when:

the person to be brought in as an accused has not been identified;

the suspect or the accused has fled from the investigation or his whereabouts have not been established for any reason;

the location of the suspect or the accused is known, but there is no real possibility of his participation in the case;

the suspect or accused suffers from a temporary serious illness, the presence of which is certified by a medical report and prevents him from participating in investigative and other procedural actions (Article 208 of the Code of Criminal Procedure). Suspension of the preliminary investigation in connection with the evasion of the accused or the suspect from the investigation and trial, the failure to identify the person to be brought in as an accused, and also due to the uncertainty of his whereabouts is allowed only after the expiration of the period of preliminary investigation.

Until the suspension of the preliminary investigation, the investigator is obliged to perform all the actions that are possible in the absence of the suspect, the accused, to take the necessary measures to detect them, as well as to identify the person to be brought as the accused, if he is unknown. If several persons are involved in a criminal case, and the grounds for suspension relate to one of them, the case against this person is separated in accordance with Art. 154 of the Code of Criminal Procedure in a separate proceeding and is suspended.

A decision is issued on suspension, a copy of which must be sent to the prosecutor. The victim or his representative, civil plaintiff, civil defendant or their representatives must be notified about the suspension of the investigation, and their right and procedure for appealing to the prosecutor or the court against the decision to suspend the investigation must be explained (Article 209 of the Code of Criminal Procedure).

After the suspension of the investigation, the investigator is obliged to take measures to search for the suspect or the accused, if they have fled. The investigator has the right to entrust the production of the search to the bodies of inquiry. This is indicated in the decision to suspend the investigation or in a special decision (Article 210 of the Code of Criminal Procedure). If the accused is found, he may be detained in the manner prescribed by Ch. 12 Code of Criminal Procedure.

After the suspension of the investigation, the investigator has the right to send inquiries, conduct appropriate checks, demand documents, instruct the bodies of inquiry to carry out operational-search actions, but is not entitled to conduct investigative actions.

After the grounds for suspending the investigation cease to exist or the need arises for additional investigative actions, the preliminary investigation is resumed.

A decision is issued by the investigator or the head of the investigative body on the resumption of the investigation. The suspect, the accused, his defense lawyer, the victim, the civil plaintiff, the civil defendant or their representatives, as well as the prosecutor are notified about the resumption of the investigation (Article 211 of the Code of Criminal Procedure).

68. GROUNDS AND PROCEDURE FOR TERMINATION OF A CRIMINAL CASE

The criminal case and criminal prosecution shall be terminated if there are grounds provided for in Art. 24-28 of the Code of Criminal Procedure of the Russian Federation (for more details, see question 51):

on the grounds of refusal to initiate a criminal case or termination of a criminal case (absence of an event, corpus delicti, expiration of the statute of limitations, etc. - Article 24 of the Code of Criminal Procedure);

in connection with the reconciliation of the parties (Article 25 of the Code of Criminal Procedure);

on the grounds for termination of criminal prosecution (due to an amnesty act, non-involvement of the suspect or accused in committing a crime, etc. - Article 27 of the Code of Criminal Procedure);

in connection with active repentance (Article 28 of the Code of Criminal Procedure). The investigator or prosecutor takes the prescribed measures to rehabilitate a person and compensate for the harm caused to the person rehabilitated as a result of criminal prosecution (Article 212 of the Code of Criminal Procedure of the Russian Federation), in cases where the criminal case is terminated on such grounds as:

the absence of a crime event;

lack of corpus delicti;

non-involvement of the suspect or accused in the commission of a crime.

The criminal case is terminated by the decision of the investigator, a copy of which is sent to the prosecutor.

The decision shall indicate: the date and place of its issuance; position, surname, initials of the person who issued it; the circumstances that served as a pretext and basis for initiating a criminal case; paragraph, part, article of the Criminal Code of the Russian Federation, providing for a crime on the grounds of which a criminal case was initiated; the results of the preliminary investigation, indicating the data on the persons against whom the criminal prosecution was carried out; applied preventive measures; paragraph, part, article of the Code of Criminal Procedure, on the basis of which the criminal case and (or) criminal prosecution are terminated; the decision to cancel the measure of restraint, as well as the seizure of property, correspondence, suspension from office, control and recording of negotiations; decision on material evidence; the procedure for appealing against this decision (Article 213 of the Code of Criminal Procedure).

The investigator hands or sends a copy of the decision to terminate the criminal case to the person in respect of whom the criminal prosecution has been terminated, to the victim, the civil plaintiff and the civil defendant. If the grounds for termination of criminal prosecution do not apply to all suspects or accused in a criminal case, then the investigator issues a decision to terminate criminal prosecution in respect of a particular person. Meanwhile, the criminal proceedings are ongoing.

Having recognized the investigator's decision to terminate the criminal case or criminal prosecution as unlawful or unreasonable, the prosecutor shall submit a reasoned decision on sending the relevant materials to the head of the investigative body to resolve the issue of canceling the investigator's decision. If the court recognizes the investigator's decision to terminate the criminal case or criminal prosecution as unlawful or unreasonable, then he makes an appropriate decision and sends it to the head of the investigative body for execution.

The resumption of proceedings in a criminal case is possible if the statute of limitations for bringing a person to criminal responsibility has not expired. The decision to resume proceedings in a criminal case shall be brought to the attention of the participants in the criminal proceedings.

69. COUNCIL AND ITS TYPES

Jurisdiction is a set of features of a criminal case, in accordance with which the criminal procedure law determines the court competent to consider this case as a court of first instance.

It is customary to single out a generic (subjective) sign of jurisdiction, a territorial (local) sign of jurisdiction, a personal sign of jurisdiction and a sign of jurisdiction by connection of cases.

Generic sign jurisdiction is determined by the type (kind) of the crime that is the subject of criminal proceedings. With the help of a generic sign of jurisdiction, it is established that the court what link the judiciary is competent to hear the case. The generic sign of jurisdiction is determined by direct indications of the law on the assignment of a certain category of criminal cases to the jurisdiction of certain courts in Art. 31 Code of Criminal Procedure.

With the help of this sign of jurisdiction, the law refers the consideration of criminal cases to the jurisdiction of the world, district, regional courts and the Supreme Court of the Russian Federation.

The vast majority of criminal cases are handled by federal judges in district courts alone. A limited category of criminal cases on grave and especially grave crimes is referred to the jurisdiction of the supreme courts of the republics, regional and regional courts. Also, the competence of these courts includes the consideration of criminal cases, the materials of which contain information constituting a state secret.

The Supreme Court of the Russian Federation has jurisdiction over criminal cases against a member of the Federation Council, a deputy of the State Duma, a judge of a federal court, if they so request.

Territorial feature jurisdiction is determined by the rule that a criminal case must be considered by a court at the scene of the crime (Article 32 of the Code of Criminal Procedure). If the crime was started in one place and ended in another, then the jurisdiction of the court at the place where the crime ended applies to this case. The Code of Criminal Procedure of the Russian Federation allows for a change in territorial jurisdiction in two cases:

1) if it is impossible to consider a criminal case by this court due to the satisfaction of challenges to all judges of this court or if all judges of this court took part in the consideration of this case, which is the basis for their challenge;

2) if not all participants in the proceedings in this criminal case reside in the territory to which the jurisdiction of this court extends, provided that all the accused agree to transfer the case to another court. Personal sign jurisdiction is associated with a certain job description of the subject of the crime and operates in cases strictly specified in the law.

Thus, criminal cases against deputies of the State Duma, members of the Federation Council, judges, at their request, must be considered by the Supreme Court of the Russian Federation (Article 452 of the Code of Criminal Procedure). The personal sign is the basis for determining the jurisdiction of criminal cases to military courts.

Jurisdiction by connection of cases contains rules that make it possible to determine which court should consider the case when joining cases in one proceeding on the charge of one person or group of persons in committing one or more crimes within the jurisdiction of courts of different levels. In this case, the criminal case for all crimes is considered by a higher court (Article 33 of the Code of Criminal Procedure).

70. GENERAL CONDITIONS OF JUDICIAL PROCEEDINGS

The general conditions of the trial include: immediacy and orality (Article 240 of the Code of Criminal Procedure); publicity (Article 241 of the Code of Criminal Procedure); immutability of the composition of the court (Article 242 of the Code of Criminal Procedure); the role of the presiding judge and secretary of the court session (Articles 243, 245 of the Code of Criminal Procedure); equality of the rights of the parties (Article 244 of the Code of Criminal Procedure); participation of the prosecutor, defendant, defense counsel, victim, civil plaintiff or civil defendant (Article 246251 of the Code of Criminal Procedure); the limits of the trial (art. 252 of the Code of Criminal Procedure); adjournment and suspension of trial (art. 253 CPC); resolving the issue of a measure of restraint (Article 255 of the Code of Criminal Procedure of the Russian Federation); the rules of the court session (Article 257 of the Code of Criminal Procedure); protocol of the court session (art. 259, 260 of the Code of Criminal Procedure), etc.

Immediacy consists in the fact that the court of first instance, when considering a case, is obliged to examine the evidence in the case itself.

Litigation is underway orally.

Publicity judicial proceedings requires that the trial of criminal cases in all courts be open, with the exception of cases provided for by Art. 241 Code of Criminal Procedure.

Continuity of the trial requires that the court, immediately after hearing the last word of the defendant, retire to the deliberation room to decide the verdict.

The invariance of the composition of the court is that each criminal case must be considered in the same composition of the court. If any of the judges is deprived of the opportunity to continue to participate in the session, then he is replaced by another judge and the trial of the case begins anew (Article 242 of the Code of Criminal Procedure).

Equality of rights of the parties consists in the fact that in a court session the parties to the prosecution and defense enjoy equal rights to challenge and petition, present evidence, etc.

Litigation Limits: 1) the trial is conducted only in relation to the accused and only on the charge brought against him; 2) changing the charge in the trial is allowed if this does not worsen the position of the defendant and does not violate his right to defense (Article 252 of the Code of Criminal Procedure).

According to Art. 243 Code of Criminal Procedure presiding leads the court session and meetings of judges, i.e. organizes the activities of all participants in the process, as well as the composition of the court.

Participation in litigation public (private) prosecutor (Article 246 of the Code of Criminal Procedure).

The trial of a criminal case is mandatory participation of the defendant, with the exception of cases when, in a case of a crime of small or medium gravity, the defendant petitions for the consideration of this criminal case in his absence, as well as in the cases provided for by Part 5 of Art. 247 Code of Criminal Procedure.

Proceedings of the case delayed for a certain period, indicating the time of a new court session, if it is impossible to hear the case due to the absence of someone at the court session or in connection with the need to demand new evidence. If the defendant has fled, as well as in the event of his mental disorder or other serious illness, the court suspends proceedings in relation to this defendant, respectively, until his search or recovery.

Minutes of the court session must be prepared and signed by the presiding judge and the secretary of the court session within 3 days from the end of the court session (Article 260 of the Code of Criminal Procedure).

71. GENERAL PROCEDURE FOR PREPARING FOR A COURT SESSION. APPOINTMENT OF THE COURT SESSION

Before the court of first instance begins the trial of a criminal case, it must go through the next independent stage of the criminal process, called the stage of preparation for the trial (Chapter 33 of the Code of Criminal Procedure).

According to the received criminal case, the judge must find out the following in relation to each of the accused: 1) whether the criminal case is within the jurisdiction of this court;

2) whether copies of the indictment or indictment were handed over to the accused;

3) whether the chosen preventive measure is subject to cancellation or change;

4) whether the submitted petitions and submitted complaints are subject to satisfaction;

5) whether measures have been taken to ensure compensation for damage caused by the crime and possible confiscation of property;

6) whether there are grounds for holding a preliminary hearing (Article 228 of the Code of Criminal Procedure).

As a result of consideration of these issues, the judge makes one of the following decisions: 1) on sending the criminal case to jurisdiction;

2) appointment of a preliminary hearing;

3) on the appointment of a court session.

The judge's decision is formalized by a resolution. The decision shall be made no later than 30 days from the date of receipt of the criminal case by the court. If the court receives a criminal case against the accused in custody, the judge makes a decision no later than 14 days from the day the criminal case was received by the court (Article 227 of the Code of Criminal Procedure).

Decision on scheduling a court session is accepted in the absence of grounds for sending a criminal case to jurisdiction and for holding a preliminary hearing (part 1 of article 231 of the Code of Criminal Procedure). The decision on the appointment of a court session resolves the following issues: on the place, date and time of the court session; on consideration of a criminal case by a single judge or by a court collectively; on the appointment of a defense counsel; on summoning to the court session of persons according to the lists submitted by the parties; on consideration of a criminal case in a closed court session; on a measure of restraint, except for cases of choosing a measure of restraint in the form of house arrest or detention.

The parties must be notified of the place, date and time of the court hearing at least 5 days before it begins (Part 4 of Article 231 of the Code of Criminal Procedure). The law establishes the deadline for the start of proceedings in a court session: no later than 14 days from the day the judge made a decision to schedule a court session, and in criminal cases considered by a court with the participation of jurors - no later than 30 days. In addition, the consideration of a criminal case in a court hearing cannot begin earlier than 7 days from the date of delivery to the accused of a copy of the indictment or indictment (Article 233 of the Code of Criminal Procedure).

Decision on holding a preliminary hearing accepted if there are grounds specified in Part 2 of Art. 229 Code of Criminal Procedure. The preliminary hearing is held:

1) if there is a petition of the party to exclude the evidence;

2) if there are grounds for returning the criminal case to the prosecutor;

3) if there are grounds for suspension or termination of the criminal case;

4) to resolve the issue of considering a criminal case by a court with the participation of jurors;

5) if there is a petition of the party to conduct a trial in accordance with Part 5 of Art. 247 Code of Criminal Procedure.

72. STRUCTURE OF THE LITIGATION

The trial consists of the preparatory part, the judicial investigation, the debate of the parties, the last word of the defendant, the decision of the verdict.

Preparatory part of the trial. The presiding judge opens the court session and announces which case is subject to trial (Article 261 of the Code of Criminal Procedure of the Russian Federation). The secretary reports on the appearance in court of the participants in the process, as well as on the reasons for the non-appearance of someone (Article 262 of the Code of Criminal Procedure of the Russian Federation).

Before starting all other actions of the court, the presiding judge must explain to the interpreter his rights, duties and responsibilities (Article 263 of the Code of Criminal Procedure of the Russian Federation). The presiding judge gives an order to remove witnesses from the courtroom (Article 264 of the Code of Criminal Procedure of the Russian Federation). Then the presiding judge establishes the identity of the defendant (Article 265 of the Code of Criminal Procedure of the Russian Federation) and finds out when the copy of the indictment (act) was handed over to the defendant.

The composition of the court is announced, who is the prosecutor and defense counsel, the victim, civil plaintiff, civil defendant or their representatives, as well as the secretary, expert, specialist and translator, and the right to challenge is explained.

Further, the rights of the defendant (Article 267 of the Code of Criminal Procedure of the Russian Federation), the victim, the civil plaintiff, the civil defendant and their representatives (Article 268 of the Code of Criminal Procedure of the Russian Federation) are explained. After explaining the rights to the parties, the presiding judge explains to the expert his rights and obligations, responsibility (Article 268 of the Code of Criminal Procedure of the Russian Federation).

The parties are asked whether they have motions to obtain new evidence or to exclude inadmissible evidence.

judicial investigation begins with a presentation by the public (private) prosecutor of the charges brought against the defendant. The presiding judge ascertains the attitude of the defendant to the charges brought against him.

Then follows the main part of the judicial investigation - the examination of evidence in the case. First, the evidence presented by the prosecution is examined, then by the defense. The defendant is questioned, then the victim, and witnesses. At the request of the parties or on its own initiative, the court has the right to call an expert for questioning and order a forensic examination. Inspection of material evidence is carried out at any time during the judicial investigation at the request of the parties. Based on a ruling or court order, an inspection of the area and premises (Article 287 of the Code of Criminal Procedure of the Russian Federation), an investigative experiment (Article 288 of the Code of Criminal Procedure of the Russian Federation), presentation for identification (Article 289 of the Code of Criminal Procedure of the Russian Federation), and examination (Article 290 of the Code of Criminal Procedure of the Russian Federation) can be carried out.

Next, the presiding judge asks the parties whether they wish to supplement the judicial investigation. After the resolution of the petitions and the performance of the necessary judicial actions related to this, the presiding judge declares the judicial investigation completed (Article 291 of the Code of Criminal Procedure of the Russian Federation).

Debate of the parties consist of speeches by the prosecutor and the defense attorney, and in his absence, by the defendant. The victim, civil plaintiff, civil defendant, their representatives, and the defendant have the right to petition for participation in the debate of the parties.

Then each of the participants in the debate of the parties may speak with replica, those. make a comment about what was said in the speeches of other participants.

After the end of the debate of the parties, the presiding judge shall give the defendant the last word.

The court retires to pass judgment.

73. SENTENCE

After hearing the last word of the defendant, the court announces the time for the announcement of the verdict and retires to the deliberation room for its decision. During the passing of a sentence, only judges who are members of the court in this criminal case may be in the deliberation room.

Court at sentencing should discuss and resolve the following issues.

1. Has it been proven that the act of which the defendant is accused took place?

2. Is it proven that the act was committed by the defendant?

3. Is this act a crime and what paragraph, part, article of the Criminal Code of the Russian Federation provides for it?

4. Is the defendant guilty of this crime?

5. Is the defendant subject to punishment for the crime committed by him?

6. Are there circumstances mitigating or aggravating the punishment? What punishment should be imposed on the defendant? Are there grounds for passing a sentence without sentencing or release from punishment? What type of correctional institution and regime should be determined for the defendant when he is sentenced to imprisonment?

7. Is a civil claim subject to satisfaction, in favor of whom and in what amount? Has it been proven that the property subject to confiscation was obtained as a result of a crime or was used as a weapon of crime or was intended to finance terrorism?

8. How to deal with physical evidence?

9. To whom and in what amount should procedural costs be imposed?

10. Should the court in the cases provided for in Art. 48 of the Criminal Code of the Russian Federation, deprive the defendant of a special, military or honorary title, class rank, as well as state awards? Can compulsory measures of educational influence be applied in the cases provided for in Art. 90 and 91 of the Criminal Code of the Russian Federation? Can compulsory measures of a medical nature be applied in the cases provided for in Art. 99 of the Criminal Code of the Russian Federation?

11. Should the preventive measure against the defendant be canceled or changed? (Article 299 of the Code of Criminal Procedure).

If the criminal case was considered by the court collectively, when resolving each issue, the judge is not entitled to abstain from voting, except for the following case: the judge who voted for the acquittal of the defendant and remained in the minority is granted the right to abstain from voting on issues of application of the criminal law. If the opinions of the judges differ on the issues of qualification of the crime or the measure of punishment, then the vote given for the acquittal joins the vote given for the qualification of the crime under the criminal law, which provides for a less serious crime, and for the imposition of a less severe punishment.

The chairman votes last. The death penalty can only be imposed on a guilty person by a unanimous decision of all judges. The judge, who has a dissenting opinion on the verdict, has the right to state it in writing in the deliberation room. A dissenting opinion is attached to the verdict and is not subject to announcement in the courtroom.

The verdict is set out in the language in which the trial was conducted. The verdict is signed by all judges, including the judge who has a dissenting opinion. The court pronounces the verdict in the name of the Russian Federation (Article 296 of the Code of Criminal Procedure).

74. SENTENCE, ITS STRUCTURE, CONTENT. TYPES OF SENTENCES

Sentence - a decision on the innocence or guilt of the defendant and the imposition of punishment on him or on his release from punishment, issued by the court of first instance or appeal (clause 28, article 5 of the Code of Criminal Procedure of the Russian Federation).

The verdict consists of introductory, descriptive and motivational and resolutive parts.

In the introductory part of the judgment the following information is indicated: on the decision of the verdict in the name of the Russian Federation; the date and place of the judgment; the name of the court, the composition of the court, data on the secretary, prosecutor, defense counsel, victim, civil plaintiff, civil defendant and their representatives; Full name of the defendant, date and place of his birth, place of residence, work and other data on the personality of the defendant relevant to the criminal case; paragraphs, parts, articles of the Criminal Code of the Russian Federation, under which the defendant is accused.

The content of the descriptive-motivational and operative parts of the sentence varies depending on its type.

The law provides for two types of sentences (Article 302 of the Code of Criminal Procedure of the Russian Federation):

1) accusatory;

2) acquittal.

Depending on the resolution of the issues of punishment of the convicted defendant, the court decides on a guilty verdict (part 5 of article 302 of the Code of Criminal Procedure of the Russian Federation):

1) with the imposition of a sentence to be served by the convict;

2) with the appointment of punishment and release from serving it;

3) without sentencing. An acquittal (Part 2, Article 302 of the Code of Criminal Procedure of the Russian Federation) is issued in cases where: the event of a crime has not been established; the defendant was not involved in the commission of the crime; there is no element of crime in the act of the defendant.

In the descriptive and motivational part of the acquittal sets out: the essence of the accusation; the circumstances of the criminal case established by the court; grounds for the defendant's acquittal and evidence supporting them; reasons why the court rejects the evidence presented by the prosecution; reasons for the decision in respect of the civil action.

The operative part of the acquittal must contain: Full name of the defendant; the decision to find the defendant not guilty and the grounds for his acquittal; decision to cancel the measure of restraint; clarification of the procedure for compensation for harm associated with criminal prosecution.

Descriptive and motivational part of the guilty verdict must contain: a description of the criminal act recognized as proven by the court; evidence on which the conclusions of the court in respect of the defendant are based; circumstances mitigating and aggravating punishment; motives for resolving all issues related to the imposition of a criminal sentence, release from it or its serving.

In the operative part of the guilty verdict must be indicated: full name of the defendant; a decision to find the defendant guilty of a crime; paragraph, part, article of the Criminal Code of the Russian Federation, according to which the defendant was found guilty; the type and amount of punishment imposed on the defendant for each crime; final punishment; the type and regime of the correctional institution; the length of the probationary period for conditional conviction; decision on additional types of punishment; the decision to set off the time of pre-trial detention; decision on the measure of restraint until the entry into force of the sentence.

75. SPECIAL PROCEDURE FOR DECISION-MAKING WHEN THE ACCUSED CONSENT WITH THE CHARGING

The accused has the right, with the consent of the public or private prosecutor and the victim, to declare agreeing with the charges brought against him and apply for sentencing without trial on criminal cases of crimes, the punishment for which does not exceed 10 years of imprisonment.

The accused has the right to file a motion: 1) at the moment of familiarization with the materials of the criminal case, about which an appropriate entry is made in the protocol of familiarization with the materials of the criminal case; 2) at the preliminary hearing.

The accused shall file an application for a sentence without a trial in connection with his agreement with the charges brought in the presence of a defense counsel. If the defense counsel is not invited by the defendant himself, his legal representative, or on their behalf by other persons, then the participation of the defense counsel in this case must be ensured by the court (Article 315 of the Code of Criminal Procedure).

A special procedure is possible subject to the following conditions:

1) the accused is aware of the nature and consequences of his application;

2) the petition was filed voluntarily and after consultations with counsel;

3) the public or private prosecutor and (or) the victim do not object to the petition filed by the accused;

4) the punishment for the crime does not exceed 10 years of imprisonment.

If the court establishes that the conditions provided for by the first and second parts of this article, under which the accused was filed a petition, are not met, then it decides on the appointment of a trial in the general manner.

The court session is held in a general manner with the following features (Article 316 of the Code of Criminal Procedure).

Consideration of the defendant's petition for a sentence without a trial begins with a presentation by the public (private) prosecutor of the charges brought against the defendant. The judge asks the defendant whether he understands the prosecution, whether he agrees with the prosecution and whether he supports his petition for a sentence without a trial. The judge does not conduct research and evaluation of the evidence collected in a criminal case in the general manner. At the same time, the circumstances characterizing the personality of the defendant, and the circumstances mitigating and aggravating the punishment, can be investigated.

If the judge comes to the conclusion that the accusation with which the defendant agreed is reasonably supported by the evidence collected in the criminal case, then he delivers a guilty verdict and imposes a punishment on the defendant, which cannot exceed two-thirds of the maximum term or the size of the most severe type of punishment provided for for the crime committed.

After pronouncing the verdict, the judge explains to the parties the right and procedure for appealing against it. The verdict cannot be appealed on appeal and cassation on the grounds provided for in paragraph 1 of Art. 379 of the Code of Criminal Procedure (inconsistency between the conclusions of the court, set out in the verdict, and the actual circumstances of the case, established by the court).

Procedural costs are not recoverable from the defendant.

76. PECULIARITIES OF THE PRODUCTION OF THE JP

The justice of the peace has jurisdiction over:

1) cases of private prosecution;

2) some criminal cases on crimes of minor gravity, which are cases of private-public or public prosecution, for the commission of which the maximum punishment does not exceed three years of imprisonment (part 1 of article 31 of the Code of Criminal Procedure).

The general conditions of court proceedings shall apply to proceedings before a justice of the peace. The specifics apply only to cases of private prosecution (Articles 318-319 of the Code of Criminal Procedure).

1. Cases on crimes classified as cases of private prosecution are initiated by filing an application with the court by the victim or his legal representative. The magistrate checks whether the victim indicates in his application an act containing signs of a crime, whether there are other circumstances excluding criminal proceedings and criminal prosecution specified in Art. 24 and 27 of the Code of Criminal Procedure.

Only if the victim is in a helpless state or, for other reasons, cannot defend his rights and legitimate interests, a criminal case is initiated by the investigator, and also with the consent of the prosecutor, by the inquirer and is sent for a preliminary investigation (part 3 of article 318 of the Code of Criminal Procedure).

2. From the moment the magistrate accepts the application for his proceedings, the person who filed it is a private prosecutor, and the person in respect of whom the application was filed is the accused. The private prosecutor is explained the rights provided for in Art. 42 and 43 Code of Criminal Procedure.

3. The powers of the justice of the peace in the case of private prosecution before the start of the trial by virtue of Art. 319 of the Code of Criminal Procedure include: consideration of a complaint, a proposal to correct the complaint in accordance with the requirement of Parts 3 and 5 of Art. 318 Code of Criminal Procedure; assistance to the private prosecutor and the accused, at their request, in the collection of evidence; summoning the accused, familiarizing him with the materials of the case and finding out who, in the opinion of the accused, should be called to court as witnesses for the defence; explaining to the parties the right to conciliation and issuing a decision to dismiss the case if the conciliation took place. If the reconciliation did not take place, the judge appoints the case of private prosecution for consideration in the court session. From the moment the case is assigned for consideration in the court session, the accused is called the defendant.

If the victim cannot indicate the person who committed the crime, the judge must forward the application to the head of the investigative body or the head of the body of inquiry to initiate a criminal case and investigate it in the general manner (part 1 of article 319 of the Code of Criminal Procedure).

4. A feature of the proceedings in cases of private prosecution is the possibility of filing a counter-statement by the person who was accused in the victim’s statement. In this case, each of the complainants appears in court simultaneously in two procedural positions - a private prosecutor and a defendant.

5. An attorney may act as a defense counsel for the accused. By order of the justice of the peace, a close relative of the accused or another person for whose admission he petitions may be admitted (part 2 of article 49 of the Code of Criminal Procedure).

6. A private prosecutor has the right to reconcile with the defendant before the court leaves for the deliberation room.

7. The verdict of the magistrate is appealed on appeal (Article 323 of the Code of Criminal Procedure).

77. FEATURES OF THE JUDICIAL INVESTIGATION IN THE COURT WITH THE PARTICIPATION OF JURERS

In a court with the participation of jurors, cases referred to the jurisdiction of the supreme court of the republic, the regional or regional court, the court of the city of federal significance, the court of the autonomous region and the court of the autonomous district are considered. A petition for the consideration of a case with the participation of jurors shall be declared upon familiarization with the materials of the criminal case.

In this category of cases, preliminary hearings are mandatory, during which the defendant once again confirms his petition, and the issue of excluding inadmissible evidence is also decided. After the appointment of a court session, the secretary or assistant judge selects candidates for jurors by random selection from the general and reserve list.

In the preparatory part of the court hearing, lists of jury candidates who have appeared (there must be at least 20 of them) are handed to the parties without indicating their home address. The parties have the right to challenge a juror, and the defendant or his defense attorney or public prosecutor has the right to challenge a juror without reason (such a challenge can be filed twice by each participant) (Article 327 of the Code of Criminal Procedure). After the resolution of issues of self-recusal and challenges, there must be at least 14 candidates for jury. The first 12 constitute the jury, and 2 are reserves.

judicial investigation in a jury trial begins with opening statements by the public prosecutor and defense counsel. In the introductory statement, the public prosecutor sets out the essence of the charges brought and proposes a procedure for examining the evidence presented by him. The defender expresses a position agreed with the defendant on the charges brought and an opinion on the procedure for examining the evidence presented by him. The jurors, through the presiding judge, have the right, after interrogation by the parties of the defendant, victim, witnesses, expert, to ask them questions. Questions are stated by the jurors in writing and submitted to the presiding judge through the foreman. These questions are formulated by the presiding judge and may be dismissed as not related to the charge brought.

If during the trial the question of the inadmissibility of evidence arises, it is considered in the absence of jurors. After hearing the opinion of the parties, the judge decides to exclude the evidence, which he considers inadmissible. Data on the identity of the defendant are examined with the participation of jurors only to the extent that they are necessary to establish certain elements of the crime of which he is accused. It is forbidden to investigate the facts of a previous conviction, the recognition of the defendant as a chronic alcoholic or drug addict, as well as other data that can cause jurors to be prejudiced against the defendant.

In the course of the trial, the jurors resolve the following questions: 1) whether it has been proven that the act the defendant is accused of has taken place; 2) whether it is proved that the act was committed by the defendant; 3) whether the defendant is guilty of committing this crime. The remaining issues are resolved without the participation of jurors by the presiding judge alone (part 2 of article 334 of the Code of Criminal Procedure).

78. MAIN FEATURES OF THE PROCEEDINGS IN THE SECOND INSTANCE COURT

Court decisions that have not entered into legal force may be appealed by the parties in an appeal or cassation procedure.

The right to appeal belongs to:

convict;

justified;

their defenders and legal representatives;

the public prosecutor or a higher prosecutor;

the victim and his representative. The civil plaintiff, civil defendant or their representatives have the right to appeal against the court decision in the part relating to the civil claim.

Appeals and submissions are filed with the district court through a magistrate. Cassation complaints and presentations are filed:

for a verdict or other decision of the first or appellate instance of a district court - to the judicial collegium for criminal cases of the supreme court of the republic, a regional or regional court, a court of a federal city, a court of an autonomous region and a court of an autonomous district;

on a verdict or other decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region and a court of an autonomous district - to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation;

against a verdict or other decision of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation - to the Cassation Collegium of the Supreme Court of the Russian Federation. The complaint may be filed by the parties within

10 days from the date of proclamation of the verdict, and for convicted persons in custody - within the same period from the date of delivery of a copy of the verdict. A complaint or presentation filed after the deadline is left without consideration (Article 356 of the Code of Criminal Procedure of the Russian Federation). If the deadline for appeal is missed for a good reason, persons who have the right to file a complaint or presentation may petition the court that passed the sentence or made another decision being appealed to restore the missed deadline.

The filing of a complaint or presentation suspends the execution of the sentence, except in cases of a verdict of not guilty, a guilty verdict without imposition of punishment, a conviction with a sentence and with release from serving it, or a conviction with a sentence not related to deprivation of liberty, or a sentence in conditional imprisonment.

The court considering the criminal case in the second instance verifies the legality, validity and fairness of the judgment only in the part in which it is appealed. If circumstances are established that concern the interests of other persons convicted or acquitted in the same criminal case and in respect of which a complaint or presentation has not been filed, then the criminal case must also be checked in relation to these persons. At the same time, their situation cannot be allowed to worsen.

The verdict of the court of first instance may be changed in the direction of worsening the situation of the convicted person only on the proposal of the prosecutor or the complaint of the victim, private prosecutor or their representatives (part 2 of article 369 of the Code of Criminal Procedure of the Russian Federation). An acquittal may be overturned by a court of appeal with a guilty verdict issued only on the recommendation of the prosecutor or on the complaint of the victim, private prosecutor or their representatives about the unfounded acquittal of the defendant (Article 370 of the Code of Criminal Procedure of the Russian Federation).

79. PROCEEDINGS IN THE COURT OF APPEALS

Consideration of criminal cases on appeal carried out by a judge of the district court alone and consists in checking on appeals and submissions of the legality, validity and fairness of the sentence or decision of the justice of the peace.

Consideration of a criminal case on appeal must be started no later than 14 days from the date of receipt of the appeal or presentation (Article 362 of the Code of Criminal Procedure).

After examining the received criminal case, the judge issues a decision on the appointment of a court session, in which the following issues are resolved:

the place, date and time of the consideration of the criminal case;

on summoning witnesses, experts and other persons to the court session;

on the preservation, selection, cancellation or change of the measure of restraint;

on consideration of a criminal case in a closed court session in the cases provided for by Art. 241 Code of Criminal Procedure of the Russian Federation.

At the hearing, the participation of a public (private) prosecutor, the defendant who filed a complaint or in whose interests a complaint was filed, a defense counsel in the cases provided for in Art. 51 Code of Criminal Procedure. Production takes place in a general manner, taking into account the following features.

The judicial investigation begins with a summary by the presiding judge of the content of the verdict, as well as the essence of the appeal or presentation and objections to them. After court:

hears the speeches of the party that filed the complaint or presentation;

hears the objections of the other party;

checks evidence;

calls for interrogation of witnesses who were interrogated in the court of first instance, if their summons is deemed necessary by the court.

The parties have the right to file a petition to call new witnesses, to conduct a forensic examination, to demand material evidence and documents, the examination of which was denied to them by the court of first instance. At the same time, the court of appeal is not entitled to refuse to satisfy the petition on the grounds that it was not satisfied by the court of first instance (Article 365 of the Code of Criminal Procedure). Upon completion of the judicial investigation, the judge asks the parties whether they have motions to supplement the judicial investigation. The court resolves these petitions, after which it proceeds to the debate of the parties (part 1 of article 366 of the Code of Criminal Procedure).

According to Art. 367 of the Code of Criminal Procedure of the Russian Federation, when making a decision, the court of appeal has the right to refer, in substantiation of its decision, to the testimony of persons read out in court, who were not summoned to the session of the court of appeal, but interrogated in the court of first instance. If these statements are disputed by the parties, then the persons who gave them are subject to interrogation.

Based on the results of the consideration of the criminal case, the court of appeal takes one of the following decisions:

to leave the sentence unchanged, and the appeal or presentation - without satisfaction;

on the annulment of the guilty verdict and the acquittal of the defendant or on the termination of the criminal case;

on the annulment of the acquittal and on the issuance of a guilty verdict;

about changing the sentence.

80. PROCEEDINGS IN THE CASSATION AUTHORITY

Court of Cassation verifies the legitimacy, validity and fairness of the verdict and other court decision on the basis of cassation complaints and submissions (Article 373 of the Code of Criminal Procedure of the Russian Federation).

Consideration of a criminal case by a court of cassation must begin no later than one month from the date of its receipt by the court of cassation (Article 374 of the Code of Criminal Procedure of the Russian Federation).

Upon receipt of a criminal case with a cassation complaint or presentation, the judge sets the date, time and place of the court session, of which the parties must be notified no later than 14 days before the day of the court session.

A convict who is in custody and who has declared his desire to be present during the consideration of a complaint or presentation of a sentence has the right to participate in the court session directly or to state his position by using videoconferencing systems.

Consideration of a criminal case by a court of cassation takes place in the following order:

opening of the court session by the presiding judge;

announcement of a criminal case, on whose cassation complaints and (or) submissions it is being considered;

announcement of the composition of the court, full name of the parties, as well as the full name of the interpreter;

resolution of challenges and motions;

statement by one of the judges of the content of the verdict or other contested court decision, as well as cassation appeals and (or) presentations;

speech of the party that filed the complaint or presentation, in support of its arguments and objections of the other party. If there are several complaints, the sequence of speeches is determined by the court, taking into account the opinions of the parties. To confirm or refute the arguments given in the cassation appeal and (or) presentation, the Code of Criminal Procedure provides for the possibility for the parties to submit additional materials to the cassation court. Additional materials cannot be obtained through investigative actions. These may include, in particular, testimonials, documents on awards and promotions, and other documents. Additional materials must be evaluated in conjunction with all other materials of the case, and if their additional verification and evaluation by the court of first instance is not required, they may serve as a basis for changing the sentence or for its cancellation (with the termination of the criminal case).

As a result of consideration of the criminal case in the cassation procedure, the court in the deliberation room takes one of the following decisions:

to leave the verdict or other appealed court decision unchanged, and the complaint or presentation - without satisfaction;

on the annulment of the verdict or other contested court decision and on the termination of the criminal case;

on the annulment of a sentence or other appealed court decision and on the direction of a criminal case for a new trial in a court of first instance or appeal from the stage of a preliminary hearing, or trial, or court actions after the verdict of the jury;

to change the sentence or other contested court decision.

The decision of the court of cassation is issued in the form of a ruling (Article 378 of the Code of Criminal Procedure of the Russian Federation).

81. GROUNDS FOR REVOCATION OF SENTENCE OR OTHER JUDGMENT

Grounds for annulment or amendment of a court decision - these are such violations of the criminal procedure law that, by depriving or restricting the rights of participants in criminal proceedings guaranteed by criminal law, non-compliance with the procedure of legal proceedings, or otherwise influenced or could affect the issuance of a lawful, justified and fair sentence.

According to Art. 379 of the Code of Criminal Procedure of the Russian Federation, the grounds for canceling or changing a sentence in cassation are (Article 369 repeats Article 379 - the only difference between the last ground is the injustice of the imposed punishment):

inconsistency of the conclusions of the court, set out in the verdict, with the actual circumstances of the criminal case, established by the court of first instance or appellate instance;

violation of criminal procedure law;

misapplication of criminal law;

unfair verdict.

The verdict is recognized inconsistent with the actual circumstances of the criminal case, if (Article 380 of the Code of Criminal Procedure of the Russian Federation):

the conclusions of the court are not supported by the evidence considered in the court session;

the court did not take into account the circumstances that could significantly affect the conclusions of the court;

in the presence of conflicting evidence, the verdict does not indicate on what grounds the court accepted some of these evidence and rejected others;

the conclusions of the court set out in the verdict contain significant contradictions that have affected or could have affected the decision on the guilt or innocence of the convicted or acquitted, the correct application of the criminal law or the determination of the punishment;

Violation of criminal procedure law in any case are (Article 381 of the Code of Criminal Procedure):

non-discontinuation of the criminal case by the court if there are grounds for it;

passing a sentence by an illegal composition of the court or issuing a verdict by an illegal composition of a jury;

consideration of a criminal case in the absence of the defendant, with the exception of the case, cases provided for by law;

consideration of a criminal case without the participation of a defense counsel, when his participation is mandatory in accordance with the criminal law;

violation of the defendant's right to use the language he knows and the assistance of an interpreter;

failure to grant the defendant the right to participate in the debate of the parties; last word;

violation of the secrecy of the meeting of judges when passing a sentence;

substantiation of the sentence by evidence recognized by the court as inadmissible;

the absence of the signature of the judge or one of the judges, if the criminal case was considered by the court collectively;

lack of minutes of the court session.

Misuse of the criminal law are (Article 382 of the Code of Criminal Procedure):

violation of the requirements of the General Part of the Criminal Code of the Russian Federation;

the application of the wrong article or the wrong paragraph and (or) part of the article of the Special Part of the Criminal Code of the Russian Federation, which were subject to application;

the appointment of a more severe punishment than provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation. unfair is the sentence according to which the punishment was imposed (Article 383 of the Code of Criminal Procedure):

not corresponding to the gravity of the crime, the personality of the convict;

which, by its kind or size, is unjust, both from being too mild, and from being too severe.

82. EXECUTION

Based on Part 4 of Art. 390 Code of Criminal Procedure the sentence is being carried out by the court of first instance within 3 days from the date of its entry into force or the return of the criminal case from the court of appeal or cassation.

The concept of "enforcing a sentence" is broader than the concept of "enforcing a sentence", since it covers the activities of not only the court, but also other entities (institutions or bodies entrusted with the execution of punishment), exercising their powers not only in criminal procedure but also in other relationships. The concept of "appeal of the sentence for execution" characterizes only the procedural activity of the court.

According to Art. 391 of the Code of Criminal Procedure, a ruling or ruling of a court of first or appellate instance enters into legal force and is enforceable after the expiration of the period for appealing it in cassation or on the day the ruling of the court of cassation is issued. A ruling or ruling of a court that is not subject to appeal in cassation shall enter into force and be enforced immediately. A court ruling or decision to terminate a criminal case, adopted in the course of judicial proceedings in a criminal case, is subject to immediate execution in that part of it that concerns the release of the accused or defendant from custody. The decision of the court of cassation comes into force from the moment of its announcement and can be reviewed only in accordance with the procedure established by chapters 48 and 49 of the Code of Criminal Procedure.

The procedure for applying for the execution of a sentence, definitions, court rulings defined by Art. 393 Code of Criminal Procedure. Appeal to the execution of the sentence, ruling, decision of the court is assigned to the court that considered the criminal case in the first instance. A copy of the guilty verdict shall be sent by the judge or the chairman of the court to the institution or body responsible for the execution of the sentence. The court of appeal is obliged to inform the institution or body entrusted with the execution of the punishment of the decision taken by it in relation to the person held in custody. In the event of a change in the sentence of the court of the first instance or of the appellate instance during the consideration of the criminal case in the cassation procedure, a copy of the ruling of the court of the cassation instance shall also be attached to the copy of the sentence. The institution or body entrusted with the execution of the punishment shall immediately notify the court that passed the guilty verdict of its execution. The institution or body entrusted with the execution of the sentence must notify the court that passed the sentence of the place where the convicted person is serving the sentence.

The civil plaintiff and the civil defendant are notified about the appeal of the sentence for execution if the civil claim is satisfied (Article 394 of the Code of Criminal Procedure).

Before the sentence is applied for execution, the presiding judge in a court session in a criminal case or the chairman of the court provides, at the request of close relatives, relatives of the convict in custody, the opportunity to visit him (Article 395 of the Code of Criminal Procedure).

83. PROCEEDINGS IN THE SUPERVISORY AUTHORITY

Supervisory proceedings consist of the following stages:

1) bringing supervisory complaints and submissions (Article 402 of the Code of Criminal Procedure);

2) the study by the judge of supervisory complaints and submissions, if necessary, with the retrieval of a criminal case (Article 406 of the Code of Criminal Procedure);

3) issuance by the judge of a decision to transfer the complaint (representation) for consideration by the court of the supervisory instance or to refuse to satisfy the complaint (representation) (Article 406 of the Code of Criminal Procedure);

4) consideration of the case in a court of supervisory authority (Articles 407-410 of the Code of Criminal Procedure).

The following persons have the right to appeal: a suspect, an accused, a convicted person, an acquitted person, their defense lawyers or legal representatives, a victim and his representatives, a prosecutor, a civil plaintiff, a civil defendant or their representatives (in the part relating to a civil claim). The complaint with all attached materials is sent to directly to the supervisory court.

The law defined three levels of supervisory courts:

1) presidiums of the supreme courts of the republics, territorial, regional courts, courts of the cities of Moscow and St. Petersburg, the autonomous region and autonomous districts, as well as district (naval) military courts;

2) the Judicial Collegium for Criminal Cases and the Military Collegium of the Supreme Court of the Russian Federation;

3) Presidium of the Supreme Court of the Russian Federation. The higher supervisory instance has the right to review not only the judicial decisions of the courts of the first and second instances, but also the decisions of the courts of the lower supervisory instance.

A criminal case is considered by a supervisory court within 15 days, and by the Supreme Court of the Russian Federation - 30 days from the date the judge makes a decision to transfer the case to a supervisory court.

The case is reported by the rapporteur. He may be asked by the members of the court questions on the merits of the report. After the speaker, the floor is given to the prosecutor. If the case is considered on his presentation, then he supports the arguments of the presentation, but if the subject of consideration is a complaint, then the prosecutor expresses his opinion on the case.

After the procurator, the convict, the acquitted person and other interested persons have the right to speak if they participate in the court session.

After their speech, the prosecutor and interested persons are removed from the courtroom. The secrecy regime of the deliberation room does not apply to the consideration of supervisory cases.

When voting, a judge of a supervisory instance court may not abstain from voting. The decision on the complaint is considered adopted if the majority of the judges present voted for it. However, when considering a complaint in a case in which the death penalty has been imposed, a petition to commute the death penalty to a milder punishment is considered satisfied if less than two-thirds of the Presidium judges present at the meeting vote in favor of retaining the death penalty.

The supervisory court has the right to:

leave the contested judgments unchanged;

cancel the contested judgment and subsequent decisions on it, taken by the courts of second instance and lower supervisory instances, with the termination of the proceedings;

cancel the sentence of the court of first instance and all subsequent decisions with the direction of the case for a new trial in the court of first instance;

cancel the decision of the court of second instance with the direction of the case for a new consideration in this instance;

amend the verdict.

84. RESUMMER OF CRIMINAL PROCEEDINGS DUE TO NEW OR RE-OPENED CIRCUMSTANCES

To newly discovered circumstances include circumstances that existed at the time the court decision entered into force, but were not known to the court: the deliberate falsity of the testimonies of victims, witnesses, falsification of material evidence and other circumstances that entailed the decision of illegal, unreasonable or unfair judgment in a criminal case; criminal actions of a judge or an interrogating officer, investigator or prosecutor, established by a court verdict that has entered into legal force, which entailed the same consequences (part 3 of article 413 of the Code of Criminal Procedure).

The new circumstances are: recognition by the Constitutional Court of the Russian Federation of the law applied by the court in this criminal case as inconsistent with the Constitution of the Russian Federation; violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms established by the European Court of Human Rights by a normative act applied in a criminal case, or any other violation of the provisions of this Convention; other new circumstances (part 4 of article 413 of the Code of Criminal Procedure).

Deterioration of the situation of the person against whom judgments have been issued is possible during the statute of limitations for criminal liability (Article 78 of the Criminal Code) and no later than one year from the date of discovery of newly discovered circumstances.

Proceedings are initiated by the prosecutor, who, having checked the message received by him or directly establishing newly discovered circumstances, issues an appropriate decision, after which he conducts an inspection, requests a copy of the court verdict and a certificate of its entry into legal force.

Upon completion of the check, the prosecutor, having established the grounds for resuming the judicial proceedings in the criminal case, draws up a conclusion on this and sends the criminal case to the court with an appendix of the verdict, which contains the newly discovered circumstances, or the materials of the investigation of the new circumstances.

In the collegiums of the Supreme Court of the Russian Federation, the presidium of the regional level court, the Presidium of the Supreme Court of the Russian Federation, the court session begins with a report from one of the judges of the case materials. After the judge, the prosecutor speaks. After the speeches of the interested persons present at the meeting, the members of the collegium of the Supreme Court of the Russian Federation retire to a meeting to issue a ruling.

If the court finds sufficient grounds to cancel the court decisions, it, having canceled them, in the presence of sufficient data, terminates the proceedings of the criminal case. If the question is raised about the worsening of the situation of the convicted person, or if an additional study of the case materials in the court session is required to resolve the issue of improving his situation, the court, having canceled the challenged court decisions, sends the case for a new judicial consideration.

In cases where the grounds for proceedings are the decision of the Constitutional Court of the Russian Federation, the decision of the European Court of Human Rights, the Chairman of the Supreme Court of the Russian Federation makes a submission to the Presidium of the Supreme Court of the Russian Federation on the revision of judicial decisions. The Presidium considers the submission within one month. The decision adopted by the Presidium is sent within three days to the Constitutional Court of the Russian Federation, to the person in respect of whom the decision was made, to the prosecutor and the Commissioner of the Russian Federation at the European Court of Human Rights.

85. CRIMINAL PROCEEDINGS AGAINST MINORS

Procedure for Proceedings in Criminal Cases Concerning Minors applies to persons under the age of 18 at the time of the commission of the crime.

During the preliminary investigation and trial in a criminal case of a crime committed by a minor, along with proving the circumstances specified in Art. 73 of the Code of Criminal Procedure, the following are established: the age of the minor, the day, month and year of birth; the conditions of life and upbringing of a minor, the level of mental development and other features of his personality; influence on the minor older persons. If there is evidence of a mental retardation not associated with a mental disorder, it is also established whether the minor could fully realize the actual nature and social danger of his actions (inaction) or manage them (Article 421 of the Code of Criminal Procedure).

In the interrogation of a minor suspect or accused under 16 years of age, the participation of a teacher or psychologist is mandatory. The interrogation cannot last more than two hours without a break, and in total - more than four hours a day.

One of the essential guarantees for minors is the participation of a legal representative (Articles 426, 428 of the Code of Criminal Procedure). The participation of a defense counsel is mandatory (Article 51 of the Code of Criminal Procedure).

Detention of a minor suspect in accordance with Art. 91, detention (Article 108 of the Code of Criminal Procedure) should be applied to a minor only if he is suspected or accused of committing a grave or especially grave crime, as well as in exceptional cases for crimes of medium gravity, while the grounds specified in Art. 423 Code of Criminal Procedure.

The investigator, with the consent of the head of the investigative body, the interrogating officer, with the consent of the prosecutor, has the right to issue a decision to terminate the criminal prosecution of a minor for a crime of small or medium gravity and file a petition with the court for the application of a compulsory educational measure to the accused minor. The judge of the district court considers this petition with a summons to the court session of the minor, his defense counsel, legal representative and prosecutor (part 4 of article 108 of the Code of Criminal Procedure). In a court order, the judge appoints one or another measure of educational influence.

Trial of a criminal case on cases of crimes committed by persons under the age of 16 always takes place in a closed court session.

The Code of Criminal Procedure distinguishes between the termination by the court of a criminal case on a crime of small or medium gravity committed by a minor, release from criminal liability and applying to him a compulsory measure of educational influence, under Part. 2 Article. 90 of the Criminal Code (Article 431 of the Code of Criminal Procedure), and liberation juvenile court from punishment for a crime of small or medium gravity with a referral to a special educational institution of a closed type of an education authority (Article 432 of the Code of Criminal Procedure). In the latter case, the court delivers a guilty verdict with the release of the minor defendant from punishment and sends him to the specified institution until the age of majority, but not more than for a three-year period (Article 92 of the Criminal Code).

86. PROCEEDINGS ON THE APPLICATION OF FORCED MEASURES OF A MEDICAL NATURE

grounds for proceedings on the application of a compulsory measure of a medical nature (hereinafter referred to as PMMM) are:

commission by a person of an act provided for in the articles of the Special Part of the Criminal Code, in a state of insanity (in this case, the person is released from criminal liability);

attack on the face after the crime a mental disorder that makes it impossible to impose or execute a punishment (a person is not released from criminal liability and punishment, but the solution of these issues is postponed until his recovery).

PMMH are prescribed in cases where a mental disorder is associated with a danger to the sick person, other persons, or with the danger of causing them other significant harm.

The preliminary investigation is carried out in the form of an investigation (Article 434 of the Code of Criminal Procedure). The circumstances subject to proof in the case include the time, place, method and other circumstances of the commission of the crime; commission of a crime by this person; the nature and extent of the harm caused to them; the presence of mental disorders in the past, the degree and nature of the mental illness at the time of the commission of the crime or during the criminal proceedings; whether a person's mental disorder is associated with a danger to him or other persons or the possibility of causing them other significant harm (Article 434 of the Code of Criminal Procedure).

A forensic psychiatric examination is mandatory in the case (clause 3, article 196 of the Code of Criminal Procedure). With respect to a person who has committed a crime in a state of insanity, no decision is made to bring him as an accused, measures of restraint are not applied to him, and an indictment is not drawn up in the case. Participation in the case of a defender and a legal representative is mandatory. Preliminary investigation in cases of this category ends either with a decision to terminate the criminal case, or with a decision to refer the criminal case to the court for application by the IMMC (Article 439 of the Code of Criminal Procedure).

The judicial investigation begins with the presentation by the prosecutor of the arguments on the need to apply the IMMC. The prosecutor in court does not support the state prosecution, but expresses an opinion on the issues listed in Art. 442 Code of Criminal Procedure.

The court in the deliberation room decides not a sentence, but a decision (Article 443 of the Code of Criminal Procedure).

Consideration of the issue of termination, change or extension of the use of PMMC is carried out on the basis of a petition from the administration of a psychiatric hospital based on the conclusion of a commission of psychiatrists.

The court considers the issue of termination, modification or extension of the PPMM according to the rules established for resolving issues by the court when executing a sentence (Articles 396, 397, 445 of the Code of Criminal Procedure). If a person whose mental disorder occurred after committing a crime and to whom PMMH was applied is recognized by a medical commission as having recovered, then the court, on the basis of a medical report, makes a decision to stop applying this measure to this person and decides on sending it to the head of the investigative body or the head of the body. inquiry of a criminal case to conduct a preliminary investigation (the time during which a person was subjected to compulsory treatment in a psychiatric hospital is counted towards the sentence - Article 103 of the Criminal Code.)

87. FEATURES OF PROCEEDINGS IN CRIMINAL CASES REGARDING CERTAIN CATEGORIES OF PERSONS

The decision to initiate a criminal case against the following persons or to involve them as an accused is made (Article 448 of the Code of Criminal Procedure):

1) regarding member of the Federation Council and deputy of the State Duma - Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation on the basis of the conclusion of a panel of 3 judges of the Supreme Court of the Russian Federation on the presence of signs of a crime in their actions and with the consent of the Federation Council or the State Duma, respectively;

2) regarding Prosecutor General of the Russian Federation - Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation on the basis of the conclusion of a panel of 3 judges of the Supreme Court of the Russian Federation, adopted on the proposal of the President of the Russian Federation, on the presence of signs of a crime in the actions;

3) regarding Judges of the Constitutional Court of the Russian Federation - Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation on the basis of the conclusion of a panel of 3 judges of the Supreme Court of the Russian Federation, on the presence of signs of a crime in the judge's actions and with the consent of the Constitutional Court of the Russian Federation;

4) regarding judges of the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, the regional court - Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation on the basis of the conclusion of a panel of 3 judges of the Supreme Court of the Russian Federation on the presence of signs of a crime in the judge's actions and with the consent of the High Qualification Board of Judges of the Russian Federation;

5) regarding other judges - Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation on the basis of the conclusion of a panel of 3 judges of the regional court on the presence of signs of a crime in the judge's actions and with the consent of the relevant qualification board of judges;

6) regarding Chairman of the Accounts Chamber of the Russian Federation, his deputy and auditors of the Accounts Chamber of the Russian Federation - Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation;

7) regarding Commissioner for Human Rights in the Russian Federation - Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation;

8) regarding President of the Russian Federation, who has terminated the exercise of his powers, as well as a candidate for the President of the Russian Federation - Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation;

9) regarding deputy of the legislative body of state power of a constituent entity of the Russian Federation - the head of the Investigative Committee under the Prosecutor's Office of the Russian Federation for a constituent entity of the Russian Federation on the basis of the conclusion of a panel of 3 judges of the supreme court of the republic, a regional or regional court, a court of a city of federal significance, a court of an autonomous region and a court of an autonomous district;

10) regarding prosecutor, head of the investigative body, investigator - by a higher head of the investigative body of the Investigative Committee under the Prosecutor's Office of the Russian Federation on the basis of the conclusion of a judge of a district court or a garrison military court at the place of the crime, and in relation to a lawyer - the head of the investigative body of the Investigative Committee under the Prosecutor's Office of the Russian Federation for the district, city;

11) regarding deputy, member of an elected body of local self-government, elected official of a local self-government body - Head of the Investigative Committee under the Prosecutor's Office of the Russian Federation for the subject of the Russian Federation;

12) regarding voting member of an election commission, referendum commission - head of the Investigative Committee under the Prosecutor's Office of the Russian Federation for the subject of the Russian Federation, and member of the Central Election Commission of the Russian Federation with voting rights, chairman of the election commission of the constituent entity of the Russian Federation - Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation.

88. INTERNATIONAL COOPERATION IN THE FIELD OF CRIMINAL LEGAL PROCEEDINGS

Interaction between courts, prosecutors, investigators and bodies of inquiry with the relevant competent authorities and officials foreign states and international organizations regulated by Art. 453-459 Code of Criminal Procedure.

Proceedings in most criminal cases are carried out by the forces and means of national law enforcement agencies in the territory of the state where the crime was committed.

However, in practice, situations arise when a person, having committed a crime in the territory of one state, in order to avoid criminal liability or for other reasons, leaves for another state, where he lives openly or hides from law enforcement agencies. The institution of extradition or extradition existing in international law obliges the states between which the relevant bilateral or multilateral treaties have been concluded, upon the demand stated in the established manner, to extradite to each other persons located on their territory in order to bring to criminal responsibility or to carry out the sentence.

The Code of Criminal Procedure of the Russian Federation provided for in its structure a separate part - the fifth, dedicated to international cooperation in the field of criminal justice. Such cooperation is carried out in three main areas:

1) in the interaction of courts, prosecutors, investigators and bodies of inquiry with the relevant competent authorities and officials of foreign states and international organizations (Chapter 53 of the Code of Criminal Procedure);

2) extradition of a person for criminal prosecution or execution of a sentence (Chapter 54 of the Code of Criminal Procedure);

3) in the transfer of a person sentenced to deprivation of liberty to serve the sentence in the state of which he is a citizen (Chapter 55 of the Code of Criminal Procedure). Recall that multilateral and bilateral interstate international treaties of the Russian Federation, including treaties concluded by the USSR, under which Russia is the successor, in accordance with Part 4 of Art. 15 of the Constitution of the Russian Federation are an integral part of the Russian legal system and act directly. If they establish rules other than those provided for by law, then the rules of an international treaty (part 3 of article 1 of the Code of Criminal Procedure) apply.

The state must fulfill the obligations imposed on it by an international treaty after the entry into force of this treaty as a whole and for a particular state. Usually, for the entry into force of a treaty, it is not enough just to sign it by the authorized bodies or persons of the contracting states. For example, international treaties signed by the Russian Federation, the subject of which are the fundamental rights and freedoms of man and citizen, are subject to ratification. Similarly, international treaties of Russia are subject to ratification, at the conclusion of which the parties agreed on subsequent ratification (Article 15 of the Federal Law of July 15, 1995 "On International Treaties of the Russian Federation").

After the ratification of an international treaty and its entry into force, it becomes an integral part of the legal system of the Russian Federation (Part 4, Article 15 of the Constitution of the Russian Federation).

89. REQUEST FOR LEGAL AID

If it is necessary to conduct investigative or other procedural actions in the territory of a foreign state, the court, prosecutor, investigator, interrogating officer shall submit a request for their performance by the competent body or official of the foreign state in accordance with an international treaty of the Russian Federation, an international agreement or on the basis of the principle of reciprocity.

According to Part 3 of Art. 453 Code of Criminal Procedure request for proceedings sent via:

1) the Supreme Court of the Russian Federation (on issues of its judicial activities);

2) Ministry of Justice of the Russian Federation (on issues related to the judicial activities of all courts, with the exception of the Supreme Court of the Russian Federation);

3) Ministry of Internal Affairs of the Russian Federation, Federal Security Service of the Russian Federation, Federal Service of the Russian Federation for Control of Traffic in Narcotic Drugs and Psychotropic Substances (in relation to investigative actions that do not require a court decision or the consent of the prosecutor);

4) the Prosecutor General's Office of the Russian Federation (in other cases).

The content and form of the request are specified in Art. 454 Code of Criminal Procedure of the Russian Federation; the request and the documents attached to it are translated into the official language of the foreign state to which they are sent (part 4 of article 453 of the Code of Criminal Procedure of the Russian Federation). The request for the performance of procedural actions is drawn up in writing, signed by the official who sends it, certified by the official seal of the relevant body and must contain: the name of the body from which the request comes; the name and location of the authority to which the request is sent;

the name of the criminal case and the nature of the request; data about the persons in respect of whom the request is sent, including data on the date and place of their birth, citizenship, occupation, place of residence or place of stay, and for legal entities - their name and location; a statement of the circumstances to be clarified, as well as a list of requested documents, material and other evidence; information about the actual circumstances of the crime committed, its qualifications, the text of the relevant article of the Criminal Code of the Russian Federation, and, if necessary, also information about the amount of harm caused by this crime.

Evidence obtained on the territory of a foreign state shall have the same legal force as if it had been obtained on the territory of the Russian Federation (Article 455 of the Code of Criminal Procedure).

Article 457 of the Code of Criminal Procedure establishes the rules for the execution in the Russian Federation of a request for legal assistance. When executing a request, the norms of the Criminal Procedure Code are applied, however, the procedural norms of the legislation of a foreign state may be applied, if this does not contradict the legislation and international obligations of the Russian Federation.

Based on Art. 458 of the Code of Criminal Procedure in the event of a crime being committed on the territory of the Russian Federation by a foreign citizen who subsequently found himself outside its borders, and it is impossible to carry out procedural actions with his participation on the territory of the Russian Federation, all materials of the initiated and investigated criminal case are transferred to the Prosecutor General's Office of the Russian Federation, which decides whether to send them to competent authorities of a foreign state to carry out criminal prosecution. A similar request from the competent authority of a foreign state is also considered by the General Prosecutor's Office of the Russian Federation (Article 458 of the Code of Criminal Procedure).

90. EXTRADITION OF A PERSON FOR CRIMINAL PROSECUTION OR SENTENCE

The Russian Federation may send a request to a foreign state to extradite a person to it for criminal prosecution or execution of a sentence by that state or give a written undertaking from the Prosecutor General of the Russian Federation to extradite persons to that state in the future on the basis of the principle of reciprocity in accordance with the legislation of the Russian Federation. A request for the extradition of a person on the basis of the principle of reciprocity is sent if, in accordance with the legislation of both states, the act in connection with which the request for extradition is sent is criminally punishable and its commission is punishable by imprisonment for a term of at least one year or a more severe punishment - in the case of extradition for criminal prosecution, or the person is sentenced to imprisonment for a term of at least six months - in the case of extradition for execution of a sentence.

If it becomes necessary to request extradition, all the necessary materials are submitted to the Prosecutor General's Office of the Russian Federation to resolve the issue of sending to the appropriate competent authority of a foreign state a request for the extradition of a person located on the territory of this state (part 3 of article 460 of the Code of Criminal Procedure).

A person extradited by a foreign state is involved as an accused, without the consent of the state that extradited him, and also transferred to a third state for a crime not specified in the extradition request. At the same time, the consent of a foreign state is not required if: 1) the extradited person left the territory of the Russian Federation within 44 days from the date of the end of criminal proceedings, serving the sentence or release from it; 2) the extradited person left the territory of the Russian Federation, but then voluntarily returned to the Russian Federation.

The decision to extradite a person who is on the territory of the Russian Federation is made by the Prosecutor General of the Russian Federation or his deputy. The decision can be appealed to the regional court within 10 days from the date of receipt of the notification (Article 463 of the Code of Criminal Procedure).

Extradition of a person is not allowed:

1) in relation to a citizen of the Russian Federation;

2) in relation to a person who has been granted asylum in the Russian Federation;

3) in respect of a person who has been sentenced for the same act and who has entered into legal force, or whose criminal proceedings have been terminated;

4) if, in accordance with the legislation of the Russian Federation, the statute of limitations has expired or for other legal grounds;

5) there is a decision of the court of the Russian Federation that has entered into legal force on the existence of obstacles to the extradition of this person in accordance with the legislation and international treaties of the Russian Federation (Part 1 of Article 464 of the Code of Criminal Procedure).

In the issuance of a person may be denied if: a) the act that served as the basis for the request for extradition is not a crime under the Criminal Code; b) the act in connection with which the request for extradition was sent was committed on the territory of the Russian Federation or against the interests of the Russian Federation outside its territory; c) the same act is already being prosecuted in the Russian Federation; d) criminal prosecution is initiated as a private prosecution (part 2 of article 464 of the Code of Criminal Procedure).

The Russian Federation shall notify the foreign state of the place, date and time of the transfer of the extradited person. If this person is not accepted within 15 days from the date set for transfer, then he may be released from custody. In any case, the person is subject to release after 30 days from the date set for his transfer (Article 467 of the Code of Criminal Procedure).

Author: Peretyatko N.M.

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