Criminal process. Cheat sheet: briefly, the most important

Free technical library

Lecture notes, cheat sheets
Free library / Directory / Lecture notes, cheat sheets

Criminal process. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

Comments on the article

Table of contents

Criminal process: concept, essence, purpose
Legal sources of criminal proceedings
Criminal procedure law and its place in the system of other branches of law
The ratio of criminal procedural and operational-search activities
Principles of criminal proceedings: concept, system
Stages of the criminal process. The concept and types of criminal prosecution
Procedural costs
procedural deadlines. Procedural documents: concept, types, classification
Rehabilitation in criminal proceedings
Petitions and complaints
Judicial Complaint Procedure
Participants in criminal proceedings and their state protection
The court as a participant in criminal proceedings
Participants in criminal proceedings on behalf of the prosecution: prosecutor
Participants in criminal proceedings on behalf of the prosecution: investigator and civil plaintiff
Participants in criminal proceedings from the side of the prosecution: the head of the inquiry unit and the interrogating officer
Participants in criminal proceedings on the part of the prosecution: bodies of inquiry
Participants in criminal proceedings on the part of the prosecution: the victim and the private prosecutor
Participants in criminal proceedings on behalf of the prosecution: investigator
Participants in criminal proceedings from the side of the prosecution: head of the investigative body
Participants in criminal proceedings on the part of the prosecution: the victim
Participants in criminal proceedings from the side of the prosecution: a private prosecutor and a civil plaintiff
Participants in criminal proceedings on behalf of the defense: the suspect
Participants in criminal proceedings on behalf of the defense: the accused
Participants in criminal proceedings on behalf of the defense: counsel
Other participants in criminal proceedings: a witness
Other participants in criminal proceedings: expert, translator, witness
Evidence: concept and types
Subject and subjects of proof
Grounds and procedure for the detention of a suspect
Measures of restraint: concept, grounds, types
Characteristics of preventive measures: undertaking not to leave, personal guarantee, supervision of the command of the military unit, supervision of a minor accused, bail
Characteristics of preventive measures: detention
Criminal proceedings
Preliminary investigation
General conditions of preliminary investigation: part 1
General conditions of preliminary investigation: part 2
Investigative actions. Concepts and types
General conditions for conducting investigative actions
Judicial procedure for obtaining permission to conduct an investigative action
Grounds and conditions for suspension of the preliminary investigation
Procedural order and terms of suspension of the preliminary investigation
Termination of criminal case and criminal prosecution
Resumption of suspended preliminary investigation and terminated criminal case, criminal prosecution
Completion of the preliminary investigation with the preparation of an indictment
Prosecutor's decision in a criminal case
Inquiry
Essence, significance of preparing a case for trial
preliminary hearing
Jurisdiction
Essence, meaning, objectives and general conditions of litigation
Publicity of the trial
Participation of the defendant and the prosecutor in the trial
Participation in the trial of the victim, civil plaintiff and civil defendant
The structure of the trial: the preparatory part
The Structure of the Trial: Judicial Inquiry
The structure of the trial: the debate of the parties and the last word of the defendant, the decision of the verdict
Types of sentences of the court of first instance
Special procedure for making a court decision if the accused agrees with the charge brought against him
Features of the production of the justice of the peace
Jury proceedings
Proceedings in the court of second instance
The concept, tasks and significance of the stage of execution of the sentence
The procedure and terms for the appeal of the sentence, ruling and decision for execution
Procedural issues decided by the judge at the stage of execution of the sentence
The concept and grounds of proceedings for the revision of sentences, rulings and court decisions that have entered into legal force
The procedure for the revision of sentences, rulings and court decisions that have entered into legal force
Features of criminal proceedings against minors at the stage of preliminary investigation
Peculiarities of Proceedings in Criminal Cases in Respect of Minors
Grounds for the application of compulsory medical measures
Features of criminal proceedings in relation to certain categories of persons
The procedure for interaction of courts, prosecutors, investigators and bodies of inquiry with the relevant competent authorities
Extradition of a person for criminal prosecution or execution of a sentence
Transfer of a person sentenced to deprivation of liberty to serve the sentence in the state of which he is a citizen

1. Criminal process: concept, essence, purpose

criminal process - specially organized law enforcement activities carried out by bodies of inquiry, preliminary investigation, prosecutor's office and court, as well as other participants. The concept of criminal procedure is identical to the concept criminal justice, which includes pre-trial and judicial proceedings in a criminal case (clause 56, article 5 of the Code of Criminal Procedure).

The criminal process is one of the areas of law enforcement activities of the state, in other words, the criminal procedural function in the law enforcement activities of the state. This activity is aimed at preventing those who are preparing, disclosing and investigating committed crimes, resolving the case on the merits and ensuring the inevitability of the responsibility of the perpetrators. Since it arises and proceeds in connection with the application of the criminal law, it is customary to call it a criminal process.

Other participants in the criminal process who have a procedural interest in the case or contribute to the achievement of the goal of criminal proceedings are involved in the criminal process carried out by state bodies. The former include: the victim, the civil plaintiff, their representatives, the suspect, the accused, the defendant, the defender, the civil defendant. To the second - the applicant, witness, expert, specialists, witnesses, etc. In addition, the criminal process can be defined as a branch of law, as an academic discipline and as a science. Criminal procedure as a branch of law - a set of rules of law governing activities aimed at preventing those who are preparing, disclosing and investigating committed crimes, resolving the case on the merits and ensuring the inevitability of the responsibility of the perpetrators. Criminal process as an academic discipline - a body of knowledge about the main institutions of the criminal process. Criminal procedure as a science studies the patterns of emergence, development and termination of criminal procedural legal relations.

Objectives of criminal proceedings (Article 6 of the Code of Criminal Procedure):

1) protection of the rights and legitimate interests of persons and organizations victims of crimes;

2) protection of the individual from illegal and unjustified accusations, condemnation, restriction of his rights and freedoms;

3) criminal prosecution and imposition of a just punishment on the guilty;

4) renunciation of criminal prosecution of the innocent, their release from punishment, rehabilitation of everyone who has been unreasonably subjected to criminal prosecution.

2. Legal sources of criminal proceedings

Sources of criminal procedure law: the Constitution of the Russian Federation; Code of Criminal Procedure; federal constitutional laws of the Russian Federation and federal laws of the Russian Federation; international treaties concluded by the Russian Federation with other countries.

The Constitution of the Russian Federation has the highest legal force, direct effect and is applied throughout the territory of the Russian Federation. It contains the most general provisions that determine the construction of the criminal process, relating to the rights and freedoms of man and citizen in the field of criminal proceedings (Chapters 1 and 2) and to the exercise of judicial power in criminal proceedings (Chapter 5).

The main codified source that directly regulates criminal procedural activity is the Code of Criminal Procedure, which consists of 6 parts, 19 sections, 56 chapters. Laws regulating criminal procedure activity, and all other norms that are also aimed at regulating this activity, must comply not only with the Constitution of the Russian Federation, but also with the Code of Criminal Procedure.

The sources of criminal procedural law also include individual criminal procedural norms contained in laws that are complex. For example, the Law of the Russian Federation of June 26, 1992 "On the Status of Judges in the Russian Federation" contains a provision on the independence, independence and non-accountability of the judiciary, on guarantees for the independence of judges, etc. The Federal Law of January 17, 1992 "On the Prosecutor's Office of the Russian Federation" defines the functions of the prosecutor's office in criminal proceedings, contains provisions on the supervision of the prosecutor's office over the execution of laws by bodies of inquiry and preliminary investigation and on the participation of the prosecutor in the consideration of a criminal case in court, etc. In the Federal Law of August 12, 1995 "On operational-search activity" conditions under which the results of the operational-search activity can serve as a pretext and basis for initiating a criminal case and be used in evidence in a criminal case. The sources of criminal procedural law include general legal principles and norms of international law and international treaties of the Russian Federation on legal assistance in criminal cases. If international treaties of the Russian Federation establish rules other than those provided for by law, then the rules of international treaties are applied (part 4 of article 15 of the Constitution of the Russian Federation, part 2 of article 1 of the Declaration of the Rights of Man and Citizen (1991)).

3. Criminal procedure law and its place in the system of other branches of law

Criminal procedure does not exist outside of legal regulation. The existence of criminal procedural relations that are not regulated by the norms of criminal procedural law is impossible. Taking into account the specifics of regulated social relations, we can definecriminal procedure law as a socially conditioned and legally regulated system of public relations in the activities of the investigative bodies, the prosecutor's office and the court regarding the initiation, investigation and resolution of criminal cases. The concepts of criminal process and criminal procedural law are not identical. If the criminal process is the activity of the bodies participating in it and persons entering into procedural relations with each other, then criminal procedural law is a set of legal norms regulating this activity, as well as legal relations arising in criminal proceedings.

Criminal procedural law streamlines criminal procedural activity, introduces strict certainty into it and puts it under the control and protection of the state. This is done by creating generally binding norms (models) of behavior that must be followed under certain circumstances, and by establishing coercive measures in case certain participants in the criminal process do not adhere to the established requirements. Criminal procedural law most closely adjoins criminal law, since it determines the procedure for the implementation of measures of influence established for the commission of crimes. The content of criminal procedural law is partially predetermined by the content of the norms of criminal law (the norms of the Criminal Code of the Russian Federation on the elements of a crime predetermine the subject of proof in criminal proceedings, etc.). Criminal procedural norms in their content and purpose are connected with the norms of other branches of law - civil procedural, administrative, civil, international, etc. For example, civil law gives the concepts of "commercial organization", "legal representative of a minor", etc. In addition, issues of compensation for damage caused to the victim of a crime, which were not resolved in the framework of the criminal process, are resolved in civil proceedings. Administrative law, for example, partially defines the criteria for distinguishing between a criminal offense and an administrative offence. The connection of the criminal process with international law is manifested in the provision of legal assistance to other states in criminal cases, as well as in resolving issues of extradition. It should also be recalled once again that international legal norms are the source of the criminal process.

4. The ratio of criminal procedural and operational-search activities

The criminal process is in close connection with the operational-search activity, or rather, with the results of the operational-search activity. The results of operational-search activity - information obtained in accordance with the federal law on operational-search activity, on the signs of a crime being prepared, committed or committed, persons preparing, committing or having committed a crime and hiding from the bodies of inquiry, investigation or court (clause 36.1 article 5 of the Code of Criminal Procedure of the Russian Federation). Both criminal procedural and operational-search activities are varieties of law enforcement activities of the state aimed at combating crime. However, the worker faces the task know (what, where, who, how, when, etc.). The task of the investigator is not only to know but also certify known evidence.

The investigator carries out his activities by means and methods provided for by the criminal procedure law, i.e., of a procedural nature. The investigator and the operative worker face different tasks. Accordingly, the techniques and methods by which these tasks are solved to achieve the set goal are very different. The operative worker and the investigator (the person conducting the inquiry) work in close cooperation, but in different legal regimes, which determines the nature of their activities.

The operational-search activity is most often secret, unspoken character. As a result of its implementation, information of an orienting nature can be obtained. The purpose of the implementation of criminal procedural activities is to obtain evidence. The investigator cannot conduct operational-search activities. The subject of the implementation of criminal procedural activities can be not only the investigator, but also the body of inquiry within the limits established by law.

Criminal procedural activity has spatio-temporal boundaries. Investigative actions (with the exception of the inspection of the scene of the incident) can be carried out only after the initiation of a criminal case and until the end of the preliminary investigation. Operational-search measures can be carried out before the initiation of a criminal case, and during the investigation or inquiry, and during the trial. The coordinated application of investigative actions and operational-search measures ensures the successful fulfillment of the law enforcement function of the state.

5. Principles of criminal proceedings: concept, system

Principles of criminal procedure - these are the main legal provisions that determine the construction of criminal proceedings at all its stages, forms and institutions and thereby ensure the fulfillment of the tasks facing it. Principles exist in the form of legal norms. They represent the most general central provisions on which the procedural system should be built and operate.

The category "goal" answers the question of what the activity is aimed at; the category "principle" answers the question of how, in what way this activity is carried out, under what conditions, etc.

The Constitution and the Criminal Procedure Law distinguish the following principles criminal proceedings:

1) legality in criminal proceedings (Article 15 of the Constitution of the Russian Federation, Article 7 of the Code of Criminal Procedure);

2) the administration of justice only by the court (Articles 47, 118 of the Constitution of the Russian Federation, Article 8 of the Code of Criminal Procedure);

3) respect for the honor and dignity of the individual (Article 21 of the Constitution of the Russian Federation, Article 9 of the Code of Criminal Procedure);

4) inviolability of the person (Article 22 of the Constitution of the Russian Federation, Article 10 of the Code of Criminal Procedure);

5) protection of the rights and freedoms of man and citizen in criminal proceedings (Articles 2, 45, 46, 51, 52, 53 of the Constitution of the Russian Federation, Article 11 of the Code of Criminal Procedure). It is also necessary to keep in mind the Federal Law on the State Protection of Victims, Witnesses and Other Participants in Criminal Proceedings dated August 20.08.2004, 1 (effective from January 2005, XNUMX), which determines the measures of protection, the bodies providing protection, and the grounds for applying the institution of protection;

6) inviolability of the home (Article 25 of the Constitution of the Russian Federation, Article 12 of the Code of Criminal Procedure);

7) secrecy of correspondence, telephone and other conversations, postal, telegraph and other communications (Article 23 of the Constitution of the Russian Federation, Article 13 of the Code of Criminal Procedure);

8) presumption of innocence (Article 49 of the Constitution of the Russian Federation, Article 14 of the Code of Criminal Procedure);

9) competitiveness of the parties (Article 123 of the Constitution of the Russian Federation, Article 15 of the Code of Criminal Procedure);

10) providing the suspect and the accused with the right to defense (Article 48 of the Constitution of the Russian Federation, Article 16 of the Code of Criminal Procedure);

11) freedom of assessment of evidence (Article 120 of the Constitution of the Russian Federation, Article 17 of the Code of Criminal Procedure);

12) the language of criminal proceedings (Article 26 of the Constitution of the Russian Federation, Article 18 of the Code of Criminal Procedure);

13) the right to appeal against procedural actions and decisions (Articles 45, 46 of the Constitution of the Russian Federation, Article 19 of the Code of Criminal Procedure).

6. Stages of the criminal process. concept and types of criminal prosecution

Essential for criminal procedural activity is that it consists not just of a set, but of a system of ordered actions, which is divided into specific stages - stage, through which the proceedings, as a rule, must pass in all criminal cases. One stage successively replaces another. Stages - independent stages of the criminal process, which are interconnected by the common goal of criminal proceedings and the unity of the principles of the criminal process. Each stage has its own purpose, immediate tasks, subjects, terms, content, and solutions. The boundaries of the stages are certain legal facts that give rise to and terminate legal relations at a certain stage. Stages of the criminal process: 1) criminal proceedings; 2) preliminary investigation; 3) preparation of the case for the trial; 4) trial; 5) proceedings in the court of second instance (in the appeal, cassation procedure); 6) execution of the sentence. In addition, there are two more stages: proceedings before the supervisory authority and the resumption of proceedings due to new or newly discovered circumstances. Both of them are recognized as exceptional, since proceedings at these stages arise in cases in which the verdict has entered into legal force. The main stage in the criminal process is the stage of trial, because only here justice is administered. At the stages preceding it, preparations for the administration of justice are carried out in stages. The subsequent stages control the legality and fairness of the justice done and create conditions for the implementation of the sentence.

Criminal prosecution - procedural activities carried out by the prosecution in order to expose the suspect, accused of committing a crime (clause 55, article 5 of the Code of Criminal Procedure). Types of criminal prosecution are distinguished depending on the severity and nature of the crime committed. Types of criminal prosecution (part 1 of article 20 of the Code of Criminal Procedure): public, private-public and private. Private Prosecution Cases - these are cases of crimes of minor gravity, provided for in Art. 115, 116, 129, part 1 of Art. 130 of the Criminal Code. A criminal case in this category of cases is initiated only at the request of the victim, his legal representative and is subject to termination in connection with the reconciliation of the victim with the accused. Reconciliation is allowed before the removal of the court to the deliberation room for the decision of the verdict. Cases of private-public prosecution (Part 3, Article 20 of the Code of Criminal Procedure) are initiated only at the request of the victim, but are not subject to termination in connection with the reconciliation of the victim with the accused. All other criminal cases are classified as public prosecution cases. The initiation of this category of criminal cases does not depend on the will of the interested persons and is the responsibility of the preliminary investigation bodies and the prosecutor.

7. Procedural costs

Procedural costs - these are the expenses stipulated by law incurred by the bodies of inquiry, preliminary investigation of the court in the course of criminal proceedings. The list of procedural costs is provided for by Art. 131 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 proceedings and accommodation;

2) the amounts paid by the employed and having a permanent salary to the victim, witness, their legal representatives, who are witnesses in compensation for their lost wages for the time spent by them in connection with the summons to the body of inquiry, to the investigator, prosecutor or to the court;

3) amounts paid to the victim, witness, their legal representatives who do not have a permanent salary, who are witnesses for distracting them from their usual activities;

4) 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;

5) 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;

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

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

8) a monthly state allowance in the amount of five minimum wages, paid to the accused, temporarily removed from office in the manner prescribed by Part 1 of Art. 114 Code of Criminal Procedure;

9) other expenses incurred in the course of criminal proceedings and provided for by this Code.

As a general rule, procedural costs are borne by convicts. If several defendants are found guilty in the case, the court costs shall be collected from each of them, taking into account the guilt, degree of responsibility and property status of these persons. Procedural costs are accepted at the expense of the state in cases strictly defined by law, namely, when a criminal case is terminated by an acquittal of the defendant, in the event of the insolvency of the person from whom they were to be recovered. The procedural costs associated with the payment of amounts to the translator are also accepted at the expense of the state. When the defendant is acquitted in a case initiated only on the basis of a complaint by the victim, the court has the right to impose the costs in full or in part on the person whose complaint the proceedings were initiated.

8. Procedural terms. Procedural documents: concept, types, classification

Procedural deadlines - the time set for the performance of certain procedural actions. Terms are calculated in hours, months and days. Terms-periods give the subjects of the process the freedom to choose a specific moment of the procedural action. They can be conditionally divided into certain (so many hours, days, months) and relatively indefinite, their duration is indicated by the limits "from" and "to" (for example, Article 108 of the Code of Criminal Procedure). Terms-moments - procedural terms that connect the production of a procedural action with a certain legal fact, and not with a time period. An example of such a period is the rule of Part 1 of Art. 173 of the Code of Criminal Procedure, which provides for the immediate interrogation of the accused after the presentation of charges.

The procedure for calculating the terms is determined by Art. 128 Code of Criminal Procedure. In this case, the following rules, which do not coincide with everyday calculus, apply: The first hour or the first day on which the time period begins is not taken into account; days. When the terms are calculated in months, the term expires on the corresponding day of the last month, and if this month does not have the corresponding date, the term ends on the last day of this month. If the end of the period falls on a non-working day, the last day of the period shall be the first following business day.

Actions and decisions of state bodies and officials conducting criminal proceedings are usually recorded in official documents provided for by law. Such documents are called procedural. Depending on the legal nature, procedural documents can be divided into two large groups:

1. Documents of information and certification character.

2. Documents of an authoritative and administrative nature.

Documents of information and certification character. These include protocols, notifications, etc. (for example, certificates from state bodies obtained at the request of the bodies conducting the process, audit reports). By their legal nature, they are legal acts of the performance of duties and the use of their rights by the procedural bodies. They usually state a fact, describe the course and results of specific procedural actions.. Documents of a power-administrative nature, in which the decisions of the procedural body are recorded, not only reflect the presence of a legally significant circumstance, but also contain authoritative instructions, are acts of applying the rules of law (decrees, definitions, indictment, sentence).

9. Rehabilitation in criminal proceedings

Rehabilitation - this is the right to compensation for property damage, elimination of the consequences of moral damage and restoration of labor, pension, housing and other rights. The harm caused to a citizen as a result of illegal criminal prosecution is compensated by the state in full, regardless of the fault of the body of inquiry, the inquirer, the investigator, the prosecutor and the court.

Subjects of the right to rehabilitation:

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

2) a defendant whose criminal prosecution has been terminated due to the public or private prosecutor's refusal to charge;

3) a suspect or an accused whose criminal prosecution was terminated on exonerating grounds (paragraphs 1, 2, 5 and 6 of part 1 of article 24 and subparagraphs 1 and 4-7 of part 1 of article 27 of the Code of Criminal Procedure);

4) a convicted person - in cases of full or partial annulment of a judgment of conviction that has entered into legal force and termination of the criminal case;

5) a person to whom compulsory medical measures were applied - in case of cancellation of an illegal or unreasonable court decision on the application of this measure;

6) any person unlawfully subjected to measures of procedural coercion in the course of criminal proceedings;

7) a legal entity that has been harmed by illegal actions (inaction) and decisions of the court, prosecutor, investigator of the inquirer, body of inquiry.

Rehabilitation procedure includes the following actions: recognition of the right to rehabilitation; appeal of the rehabilitated person with a claim for compensation for property damage; payment decision. The procedural form of recognition of the right to rehabilitation is the decision (determination) of the court, investigator, interrogating officer. At the same time, a notice is sent to the rehabilitated person explaining the procedure for compensation for harm.

Compensation for moral damage has some specifics. The prosecutor, on behalf of the state, officially apologizes to the rehabilitated person for the harm caused to him. Claims for compensation for non-pecuniary damage in monetary terms are filed in civil proceedings. If information about the detention of the rehabilitated person, his detention, his temporary removal from office, the application of coercive medical measures to him, the conviction of the rehabilitated person and other illegal actions applied to him were published in the press, distributed on radio, television or in other mass media information, then at the request of the rehabilitated person, and in the event of his death - his close relatives or relatives, or at the written direction of the court, prosecutor, head of the investigative body, investigator, interrogator, the relevant media are obliged to make a report on rehabilitation within 30 days.

10. Petitions and complaints

Petition - an official request addressed to the investigator (inquirer), the prosecutor or the court to conduct procedural actions, cancel or change procedural decisions. In accordance with Art. 119 of the Code of Criminal Procedure, the subjects entitled to file a petition are: the suspect, the accused, his defense counsel, the victim, his legal representative and representative, a private prosecutor, an expert, as well as a civil plaintiff, a civil defendant, their representatives have the right to file a petition for the production of procedural actions or acceptance procedural decisions to establish the circumstances relevant to the criminal case, to ensure the rights and legitimate interests of the person who filed the petition, or the person he represents, respectively. (The state prosecutor also has the right to file a petition during the trial.) The petition is filed with the inquirer, investigator or court. A petition may be filed at any time during the criminal proceedings. A written petition shall be attached to the criminal case, an oral petition shall be recorded in the protocol of the investigative action or court session. The application is subject to consideration and resolution immediately after its application. In cases where it is impossible to make an immediate decision on a petition filed during the preliminary investigation, it must be resolved no later than 3 days from the date of its statement. Based on the results of the consideration, the following decisions can be made: on the satisfaction of the application; about full or partial refusal to satisfy it.

A complaint means the appeal of a participant in the criminal process regarding the violation of his rights and legitimate interests. Appeal - the procedure for filing, reviewing and resolving complaints. In accordance with Art. 123 of the Code of Criminal Procedure, all participants in criminal proceedings, as well as other persons in the part in which the procedural actions performed and the procedural decisions taken affect them interests. The procedure for considering a complaint varies depending on the subject of the complaint. The law discloses the procedure for considering a complaint by the prosecutor, the head of the investigative body and the court.

The prosecutor or the head of the investigative body considers the complaint within 3 days from the date of its receipt. In exceptional cases, when it is necessary to request additional materials or take other measures to verify the complaint, it is allowed to consider the complaint within 10 days, of which the applicant is notified. Based on the results of consideration of the complaint, a decision is issued on the full or partial satisfaction of the complaint or on the refusal to satisfy it.

11. Judicial procedure for consideration of complaints

Decisions of the inquirer, investigator, head of the investigative body to refuse to initiate a criminal case, to terminate the criminal case, as well as other decisions and actions (inaction) of the inquirer, investigator, head of the investigative body and the prosecutor, which are capable of causing damage to the constitutional rights and freedoms of participants in criminal proceedings or hinder citizens' access to justice, may be appealed to the district court at the place of the preliminary investigation.

A complaint may be filed with the court by the applicant, his defense lawyer, legal representative or representative directly or through the interrogating officer, investigator, head of the investigative body or prosecutor.

The judge checks the legality and validity of the actions (inaction) and decisions of the inquirer, investigator, head of the investigative body, prosecutor no later than 5 days from the date of receipt of the complaint in a court session with the participation of the applicant and his defense counsel, legal representative or representative, if they participate in the criminal case, other persons whose interests are directly affected by the contested action (inaction) or decision, as well as with the participation of the prosecutor, investigator, head of the investigative body.

Complaints subject to consideration by the court are considered in an open court session. At the beginning of the court session, the judge announces which complaint is subject to consideration, introduces himself to the persons present at the court session, and explains their rights and obligations. Then the applicant, if he participates in the court session, substantiates the complaint, after which other persons who appeared at the court session are heard. The applicant is given the opportunity to make a remark.

Based on the results of consideration of the complaint, the judge makes one of the following decisions:

1) on recognition of the action (inaction) or decision of the relevant official as illegal or unreasonable and on his obligation to eliminate the committed violation;

2) on leaving the complaint without satisfaction.

12. Participants in criminal proceedings and their state protection

Participants in the criminal process are persons endowed with procedural rights and bearing procedural obligations, entering into criminal procedural relations among themselves in the course of exercising their rights and fulfilling obligations. Criminal procedure law in Ch. 2 identifies the following types of participants: court; members of the prosecution; defense members; other participants. The participants on the prosecution side include: the prosecutor, the investigator, the head of the investigative body, the body of inquiry, the head of the body of inquiry, the investigator, the victim, the private prosecutor, the civil plaintiff and representatives of the victim, the civil plaintiff and the private prosecutor. Consideration of individual participants in the criminal process involves the disclosure of the legal concept and procedural status. The side of the defense is represented by: the suspect, the accused, the legal representatives of the minor suspect and the accused, the defense counsel, the civil defendant and the representative of the civil defendant. Witness, expert, specialist, translator, witness - other participants in criminal proceedings. Persons subject to state protection: 1) victim; 2) witness; 3) private prosecutor; 4) suspected, accused, defendant, their defense lawyers and legal representatives, convicted, acquitted, as well as a person in respect of whom the criminal case or criminal prosecution was terminated; 5) expert, specialist, translator, witness, as well as a teacher and psychologist participating in criminal proceedings; 6) civil plaintiff, civil defendant; 7) legal representatives, representatives of the victim, civil plaintiff, civil defendant and private prosecutor; 8) close relatives, relatives and close persons, the unlawful encroachment on which is carried out in order to influence persons - participants in criminal proceedings.

Measures of state protection may also be applied before a criminal case is initiated against an applicant, eyewitness or victim of a crime, or other persons contributing to the prevention or detection of a crime. The decision on the implementation of state protection is taken by the court (judge), prosecutor, head of the body of inquiry or investigator in whose proceedings is an application (report) about a crime or a criminal case, unless otherwise provided by the criminal procedure legislation of the Russian Federation. The implementation of security measures is entrusted to the bodies of internal affairs of the Russian Federation, the bodies of the federal security service, the customs bodies of the Russian Federation and the bodies for control over the circulation of narcotic drugs and psychotropic substances in criminal cases that are in their production or referred to their jurisdiction, as well as other state bodies that may be entrusted in accordance with the legislation of the Russian Federation with the implementation of certain security measures.

13. The court as a participant in criminal proceedings

Court - any court of general jurisdiction that considers a criminal case on the merits and makes decisions under the Code of Criminal Procedure. functions of the court: resolve cases on the merits (i.e., answer the question of the guilt or innocence of a person, as well as resolve the issue of punishment); exercise judicial control. These functions are specified in the powers of the court. Only the court is competent: 1) recognize a person guilty of committing a crime and impose a punishment on him; 2) to apply compulsory measures of a medical nature to a person; 3) to apply compulsory educational measures to a person; 4) overrule or change a decision made by a lower court.

Only the court, including in the course of pre-trial proceedings, is authorized to make decisions: 1) on choosing a measure of restraint in the form of detention, house arrest, bail; 2) on the extension of the period of detention; 3) 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; 4) on the inspection of the dwelling in the absence of the consent of the persons living in it; 5) on the performance of a search and (or) seizure in a dwelling; 6) on the production of a personal search, with the exception of cases provided for by Art. 93 Code of Criminal Procedure; 7) on the production of seizure of items and documents containing state or other secrets protected by federal law, as well as items and documents containing information on deposits and accounts of citizens in banks and other credit organizations; 8) on the seizure of correspondence, permission to examine and seize it in communications institutions; 9) 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; 10) on the temporary removal of the suspect or the accused from office in accordance with Art. 114 Code of Criminal Procedure; 11) on the control and recording of telephone and other conversations.

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 the inquirer in the cases and in the manner provided for in Art. 125 Code of Criminal Procedure. If, during the judicial consideration of a criminal case, circumstances are revealed that contributed to the commission of a crime, violations of the rights and freedoms of citizens, as well as other violations of the law committed during the production of an inquiry, preliminary investigation, or during the consideration of a criminal case by a lower court, the court has the right to issue a private ruling or resolution, which draws the attention of relevant organizations and officials to these circumstances and facts of violations of the law, requiring the adoption of necessary measures. The court has the right to issue a special ruling or ruling in other cases, if it considers it necessary.

14. Participants in criminal proceedings on behalf of the prosecution: prosecutor

In accordance with paragraph 31 of Art. 5 Code of Criminal Procedure procurator - The Prosecutor General of the Russian Federation and prosecutors subordinate to him, their deputies and other officials of the prosecutor's office participating in criminal proceedings and endowed with appropriate powers by the federal law on the prosecutor's office.

The powers of the prosecutor are defined in Art. 37 Code of Criminal Procedure. The same article indicates the main directions of his activities in the criminal process. 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 bodies of inquiry and bodies of preliminary investigation.

During pre-trial proceedings in a criminal case the prosecutor is authorized: 1) check compliance with the requirements of federal law when receiving, registering and resolving reports of crimes; 2) make a reasoned decision to send the relevant materials to the investigative body or body of inquiry to resolve the issue of criminal prosecution on the facts of violations of criminal law identified by the prosecutor; 3) demand from the bodies of inquiry and investigative bodies the elimination of violations of federal legislation committed during the course of the inquiry or preliminary investigation; 4) give the interrogating officer written instructions on the direction of the investigation, the performance of procedural actions; 5) give consent to the interrogating officer to initiate a petition before the court for the selection, 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; 6) cancel unlawful or unjustified decisions of a lower prosecutor, as well as unlawful or unjustified decisions of an interrogating officer in the manner prescribed by the Code of Criminal Procedure; 7) consider the information of the investigator submitted by the head of the investigative body on disagreement with the requirements of the prosecutor and take a decision on it; 8) participate in court hearings when considering, in the course of pre-trial proceedings, questions on choosing a measure of restraint in the form of detention, on extending the period of detention or on the abolition or change of this measure of restraint, as well as when considering petitions for the performance of other procedural actions that are allowed on the basis of a court decision, and when considering complaints in the manner prescribed by Art. 125 Code of Criminal Procedure; 9) to allow challenges declared to the interrogating officer, as well as his self-withdrawals; 10) remove the interrogating officer from further investigation if he violated the requirements of the Code of Criminal Procedure; 11) 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, etc.

In the course of judicial proceedings in a criminal case, the prosecutor supports the public prosecution, ensuring its legality and validity.

15. Participants in criminal proceedings on behalf of the prosecution: investigator and civil plaintiff

In accordance with paragraph 41 of Art. 5 Code of Criminal Procedure следователь - an official authorized to carry out a preliminary investigation of a criminal case, as well as other powers provided for by the Code of Criminal Procedure. In accordance with Art. 38 Code of Criminal Procedure the investigator is authorized to: 1) initiate a criminal case in the manner prescribed by the Code of Criminal Procedure; 2) accept a criminal case for its proceedings or transfer it to the head of the investigative body for direction according to jurisdiction; 3) independently direct the course of the investigation, decide on the performance of investigative and other procedural actions, except in cases where, in accordance with the Code of Criminal Procedure, it is required to obtain a court decision or the consent of the head of the investigative body; 4) give the body of inquiry, in the cases and in the manner established by the Code of Criminal Procedure, binding written instructions to carry out operational-search measures, the performance of certain investigative actions, the execution of decisions on detention, bringing in, arrest, the performance of other procedural actions, and also receive assistance in their implementation; 5) appeal with the consent of the head of the investigating body in the manner prescribed by Part. 4 Article. 221 of the Code of Criminal Procedure, the decision of the prosecutor to cancel the decision to initiate a criminal case, to return the criminal case to the investigator for additional investigation, to change the scope of the charge or to qualify the actions of the accused or to redraw the indictment and eliminate the identified shortcomings; 6) exercise other powers provided for by the Code of Criminal Procedure. In case of disagreement with the demands of the prosecutor to eliminate violations of federal legislation committed during the preliminary investigation, the investigator is obliged to submit his written objections to the head of the investigative body, who informs the prosecutor about this.

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 this damage was caused to him directly by a crime. The decision on recognition as a civil plaintiff is formalized by the decision of the judge, investigator or interrogating officer. A civil plaintiff may also bring a civil claim for property compensation for moral damage. A civil claim is filed after the initiation of a criminal case, but before the end of the preliminary investigation, while it is exempt from paying the state fee. To protect the interests of minors, incapacitated or partially capable, other persons who cannot protect their rights and legitimate interests on their own. A civil claim may be filed by their legal representatives or a prosecutor, and in defense of the interests of the state - by a prosecutor. At the end of the investigation, the civil plaintiff, in accordance with Art. 44 of the Code of Criminal Procedure now does not get acquainted with all the materials of the criminal case, but only with those related to the civil suit, and can extract any information from the case in any volume.

16. Participants in criminal proceedings on behalf of the prosecution: the head of the inquiry unit and the investigator

Head of the Investigation Department in relation to the interrogating officers subordinate to him, he is authorized to:

1) instruct the interrogating officer to check the report on the crime, make a decision on it, perform urgent investigative actions or conduct an inquiry in a criminal case;

2) withdraw the criminal case from the interrogating officer and transfer it to another interrogating officer with the obligatory indication of the grounds for such transfer;

3) cancel unfounded decisions of the interrogating officer on suspension of the conduct of the inquiry in the criminal case;

4) submit to the prosecutor a motion to cancel the illegal or unfounded decisions of the interrogating officer to refuse to initiate a criminal case.

The head of the inquiry unit has the right to initiate a criminal case in the manner prescribed by the Code of Criminal Procedure, to accept the criminal case for his own proceedings and to carry out an inquiry in full, while having the authority of an interrogating officer.

The head of the inquiry unit has the right to: 1) check the materials of the criminal case; 2) 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.

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. In this case, the interrogating officer has the right to submit to the head of the body of inquiry or the prosecutor the materials of the criminal case and written objections to the instructions of the head of the unit of inquiry.

The powers of the body of inquiry, provided for in paragraph 1 of part 2 of Art. 40 of the Code of Criminal Procedure, are assigned to the interrogator by the head of the body of inquiry or his deputy.

It is not allowed to assign the authority to conduct an inquiry to the person who conducted or is conducting operational-search measures in this criminal case.

The investigator is authorized:

1) independently carry out investigative and other procedural actions and make procedural decisions, except for cases when this requires the consent of the head of the body of inquiry, the consent of the prosecutor and (or) a court decision;

2) exercise other powers provided for by the Code of Criminal Procedure.

The instructions of the prosecutor and the head of the body of inquiry are obligatory for the inquirer. At the same time, the interrogator has the right to appeal against the instructions of the head of the body of inquiry to the prosecutor, and the instructions of the prosecutor - to a higher prosecutor. An appeal against these instructions does not suspend their execution.

17. Participants in criminal proceedings on the part of the prosecution: bodies of inquiry

Bodies of inquiry - state bodies and officials authorized in accordance with the Code of Criminal Procedure to carry out inquiries and other procedural powers. The bodies of inquiry include: 1) bodies of internal affairs of the Russian Federation, as well as other bodies of executive power vested in accordance with federal law with the authority to carry out operational-search activities; 2) bodies of the Federal Bailiff Service; 3) commanders of military units, formations, heads of military establishments or garrisons; 4) bodies of state fire supervision of the federal fire service. The bodies of inquiry perform two functions: inquiry (i.e., investigation in criminal cases, for which preliminary investigation is not necessary); performance of urgent investigative actions in criminal cases, in which the production of a preliminary investigation is mandatory - in the manner prescribed by Art. 157 Code of Criminal Procedure. In addition to the bodies of inquiry, there is a list of officials defined by law, to whom certain powers of the bodies of inquiry are delegated. These officials include: 1) captains of sea and river vessels on a long voyage - in criminal cases on crimes committed on these vessels; 2) heads of exploration parties and winter quarters remote from the locations of bodies of inquiry - in criminal cases of crimes committed at the location of these parties and winter quarters; 3) heads of diplomatic missions and consular institutions of the Russian Federation - in criminal cases on crimes committed within the territories of these representative offices and institutions.

Head of the Investigation Department - 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. Head of the Investigation Department in relation to the investigators under his subordination authorized: 1) instruct the interrogating officer to check the report of the crime, to make a decision on it in the manner prescribed by Art. 145 of the Code of Criminal Procedure, the performance of urgent investigative actions or the conduct of an inquiry in a criminal case; 2) withdraw the criminal case from the interrogating officer and transfer it to another interrogating officer with the obligatory indication of the grounds for such transfer; 3) cancel unreasonable decisions of the interrogating officer to suspend the conduct of an inquiry in a criminal case; 4) submit a petition to the prosecutor to cancel illegal or unfounded decisions of the interrogating officer to refuse to initiate a criminal case. Interrogator - 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.

18. Participants in criminal proceedings on the part of the prosecution: the victim and the private prosecutor

The victims is an individual who has suffered physical, property, moral damage by a crime, as well as a legal entity in the event that a crime has caused damage to its property and business reputation. The decision on recognition as a victim is formalized by a decision of the interrogating officer, investigator or court (Article 42 of the Code of Criminal Procedure). If a legal entity is recognized as a victim, its rights are exercised by a representative. From the moment of recognition as a victim, he is handed copies of individual procedural documents: a decision to initiate a criminal case, a decision to recognize him as a victim, a decision to suspend or terminate a criminal case, a decision to suspend proceedings, a verdict of a court of first instance, decisions of courts of appeal and cassation instances. He must be notified of the accusations, familiarized with the complaints and presentations received in the case, with the procedure for considering and resolving complaints. The victim has the right to familiarize himself with the decisions on the appointment of forensic examinations; challenge an expert or apply for a forensic examination in another expert institution. In the case of an expert examination in relation to the victim, it is carried out only with his consent or the consent of his legal representative, with the exception of cases of an expert examination to establish his mental or physical condition, when there is doubt about his ability to correctly perceive the circumstances relevant to the case and give evidence and to establish age in the absence of documents or if they are in doubt. Upon completion of the preliminary investigation, the victim has the right to familiarize himself with all the materials of the criminal case, to make copies of the materials of the criminal case, including with the help of technical means.

In accordance with Art. 43 Code of Criminal Procedure private prosecutor - a person who has filed an application with a court in a criminal case of private prosecution and who supports the prosecution in court. The victim becomes a private prosecutor from the moment the court accepts the application for its proceedings. Analysis of Art. 42, 43 and 246 of the Code of Criminal Procedure allows you to determine the terms of reference of this participant in criminal proceedings. A private prosecutor has the right to bring and support charges (Article 22 of the Code of Criminal Procedure), while a criminal case is initiated by filing an application with the victims (Article 318 of the Code of Criminal Procedure). He presents evidence and participates in their study, expresses his opinion to the court on the merits of the accusation, as well as on other issues arising in the course of the trial, makes proposals to the court on the application of the criminal law and sentencing the defendant, submits and supports a civil claim in a criminal case. In this case, the rights of a private prosecutor coincide with the powers of a public prosecutor, provided for in Parts 4, 5 and 6 of Art. 246 Code of Criminal Procedure.

19. Participants in criminal proceedings on behalf of the prosecution: investigator

In accordance with Art. 38 Code of Criminal Procedure the investigator is authorized to:

1) initiate a criminal case in the manner prescribed by the Code of Criminal Procedure;

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

3) independently direct the course of the investigation, decide on the performance of investigative and other procedural actions, except in cases where, in accordance with the Code of Criminal Procedure, it is required to obtain a court decision or the consent of the head of the investigative body;

4) give the body of inquiry, in the cases and in the manner established by the Code of Criminal Procedure, binding written instructions to carry out operational-search measures, the performance of certain investigative actions, the execution of decisions on detention, bringing in, arrest, the performance of other procedural actions, and also receive assistance in their implementation;

5) appeal with the consent of the head of the investigative body in the manner prescribed by Part 4 of Art. 221 of the Code of Criminal Procedure, the decision of the prosecutor, to cancel the decision to initiate a criminal case, to return the criminal case to the investigator for additional investigation, to change the scope of the charge or to qualify the actions of the accused or to redraw the indictment and eliminate the identified shortcomings;

6) exercise other powers provided for by the Code of Criminal Procedure.

In case of disagreement with the requirements of the prosecutor to eliminate violations of federal legislation committed during the preliminary investigation, the investigator is obliged to submit his written objections to the head of the investigative body, who informs the prosecutor about this. In Art. 88 of the Code of Criminal Procedure establishes a clear rule according to which the investigator, at the request of the suspect, the accused or on his own initiative, has the right to recognize the evidence as inadmissible. It shall not be included in the indictment (indictment). If the right to rehabilitation arises, no later than one month from the date of receipt of the claim for compensation for property damage, the investigator determines its amount and issues a decision on making payments to compensate for this damage (Article 135 of the Code of Criminal Procedure). The Code of Criminal Procedure resolves the issue of the deadlines for submitting petitions for the extension of the terms of the preliminary investigation and detention of the accused (not later than 5 days before the expiration of this period - Articles 164 and 109 of the Code of Criminal Procedure).

Forensic Investigator - an official authorized to carry out a preliminary investigation of a criminal case, as well as to participate, on behalf of the head of the investigative body, in the performance of certain investigative and other procedural actions or to perform certain investigative and other procedural actions without accepting the criminal case for his proceedings.

20. Participants in criminal proceedings from the side of the prosecution: head of the investigative body

Head of the investigative body - the official heading the relevant investigative unit, as well as his deputy.

The head of the investigative body is authorized: 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 with the obligatory indication of the grounds for such transfer, create an investigative group, change its composition or accept the criminal case for its own proceedings; 2) check the materials of the verification of the report on the crime or the materials of the criminal case, cancel the 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, personally consider reports of a crime, participate in checking reports of a crime; 4) give consent to the investigator to initiate 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, personally interrogate the suspect, the accused without accepting the criminal case for his proceedings when considering the issue of giving consent to the investigator to initiate the said petition before the court; 5) to allow the objections declared to the investigator, as well as his self-recusals; 6) remove the investigator from further investigation if he violated the requirements of the Code of Criminal Procedure; 7) to cancel illegal or unreasonable decisions of the lower head of the investigative body in the manner prescribed by the Code of Criminal Procedure; 8) to extend the term of the preliminary investigation; 9) approve the decision of the investigator to terminate the proceedings on the criminal case; 10) give consent to the investigator who conducted the preliminary investigation of the criminal case, to appeal in the manner prescribed by Part 4 of Art. 221 of the Code of Criminal Procedure, the decision of the prosecutor, issued in accordance with paragraph 2 of part 1 of Art. 221 Code of Criminal Procedure; 11) return the criminal case to the investigator with his instructions on the conduct of an additional investigation; 12) exercise other powers provided for by the Code of Criminal Procedure.

The head of the investigative body has the right to initiate a criminal case in the manner prescribed by the Code of Criminal Procedure, accept the criminal case for his own proceedings and conduct a preliminary investigation in full, while having the authority of an investigator or head of an investigative group. The instructions of the head of the investigative body in a criminal case are given in writing and are binding on the investigator. The instructions may be appealed by him to the head of a higher investigative body. Appealing the instructions does not suspend their execution, except in cases where the instructions relate to the withdrawal of the criminal case and its transfer to another investigator, the involvement of a person as an accused, the qualification of a crime.

21. Participants in criminal proceedings on behalf of the prosecution: the victim

If a legal entity is recognized as a victim, its rights are exercised by a representative. From the moment of recognition as a victim, he is handed copies of individual procedural documents: a decision to initiate a criminal case, a decision to recognize him as a victim, a decision to suspend or terminate a criminal case, a decision to suspend proceedings, a verdict of a court of first instance, decisions of courts of appeal and cassation instances. He must be notified of the accusations, familiarized with the complaints and presentations received in the case, with the procedure for considering and resolving complaints.

The victim has the right to familiarize himself with the decisions on the appointment of forensic examinations; challenge an expert or apply for a forensic examination in another expert institution. In the case of an expert examination in relation to the victim, it is carried out only with his consent or the consent of his legal representative, with the exception of cases of an expert examination to establish his mental or physical condition, when there is doubt about his ability to correctly perceive the circumstances relevant to the case and give evidence and to establish age in the absence of documents or if they are in doubt. At the same time, the victim has the right to familiarize himself with the expert's opinion (Articles 195, 196, 198 of the Code of Criminal Procedure). Upon completion of the preliminary investigation, the victim has the right to familiarize himself with all the materials of the criminal case, to make copies of the materials of the criminal case, including with the help of technical means. If there are several victims in the case, each of them has the right to get acquainted with the materials that relate to the harm caused to this victim.

The victim has the right to participate in investigative actions carried out at his request with the permission of the investigator, to participate in the trial in the courts of the first, second and supervisory instances, to speak in judicial debates, to petition for the application of security measures in accordance with Art. 11 Code of Criminal Procedure. victim in accordance with Art. 277 of the Code of Criminal Procedure, with the permission of the presiding judge, may testify at any time during the trial.

22. Participants in criminal proceedings from the side of the prosecution: a private prosecutor and a civil plaintiff

In accordance with Art. 43 Code of Criminal Procedure private prosecutor - a person who has filed an application with the court in a criminal case of private prosecution and who supports the prosecution in court. The victim becomes a private prosecutor from the moment the court accepts the application for its proceedings. Analysis of Art. 42, 43 and 246 of the Code of Criminal Procedure allows you to determine the terms of reference of this participant in criminal proceedings. A private prosecutor has the right to bring and support charges (Article 22 of the Code of Criminal Procedure), while a criminal case is initiated by filing an application with the victims (Article 318 of the Code of Criminal Procedure). He presents evidence and participates in their study, expresses his opinion to the court on the merits of the accusation, as well as on other issues arising in the course of the trial, makes proposals to the court on the application of the criminal law and sentencing the defendant, submits and supports a civil claim in a criminal case. In this case, the rights of a private prosecutor coincide with the powers of a public prosecutor, provided for in Parts 4, 5 and 6 of Art. 246 Code of Criminal Procedure. Preliminary investigation in this category of cases is not carried out, except in cases where the investigating authorities initiate a criminal case due to the helpless state of the victim or for other reasons due to which the victim cannot protect his rights and legitimate interests.

23. Participants in criminal proceedings on behalf of the defense: the suspect

Suspect is a person:

1) or against whom a criminal case has been initiated;

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

3) or to whom a measure of restraint has been applied until charges are brought in accordance with Art. 100 Code of Criminal Procedure;

4) or who has been notified of the suspicion of committing a crime in the manner prescribed by Art. 223 Code of Criminal Procedure.

The suspect has the right:

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 regarding the suspicion that exists in relation to him or refuse to give explanations and testimonies. If the suspect 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 of this testimony, except for the case provided for by paragraph 1 of part 2 of Art. 75 Code of Criminal Procedure;

3) use the help of a defense counsel from the moment provided for in paragraph 2-3.1 of part 3 of Art. 49 of the Code of Criminal Procedure, and to have a private and confidential meeting with him until the first interrogation of the suspect;

4) present evidence;

5) submit petitions and challenges;

6) to give evidence and explanations in their native language or the language in which they speak;

7) use the help of an interpreter free of charge;

8) get acquainted with the protocols of investigative actions carried out with his participation and submit comments on them;

9) 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;

10) file complaints against actions (inaction) and decisions of the court, prosecutor, investigator and interrogating officer;

11) defend themselves by other means and methods not prohibited by the Code of Criminal Procedure.

In addition, the suspect (as well as other participants in criminal proceedings) cannot be interrogated continuously for more than 4 hours, the break must be at least 1 hour, and the total duration of the interrogation during the day cannot exceed 8 hours (Article 187 of the Code of Criminal Procedure); the suspected (accused) has the right to apply for the use of technical means during interrogation (Article 189 of the Code of Criminal Procedure); the suspect (accused) and his/her defense counsel have broad rights in the appointment and production of an expert examination (Article 198 of the Code of Criminal Procedure); the suspected (accused) has the right to participate in the trial of his complaint (Article 125 of the Code of Criminal Procedure), the right to rehabilitation in the cases specified in Art. 133 Code of Criminal Procedure.

24. Participants in criminal proceedings on behalf of the defense: the accused

In accordance with Art. 47 of the Code of Criminal Procedure of the Russian Federation, an accused is a person in respect of whom a decision has been made to bring him or her as an accused or an indictment has been issued. The accused has the right to have private and confidential meetings with the defense counsel, including before the first interrogation, without limiting their number and duration, however, this rule is limited to the terms of detention. He can participate in investigative actions, with the permission of the investigator, carried out at his request, the request of his defense counsel or legal representative; make copies of the materials of the criminal case at his own expense, including with the help of technical means. The accused received the right according to Art. 125 of the Code of Criminal Procedure, to participate in the judicial review not only of his complaint, but also of complaints sent by other participants (for example, the victim, the civil plaintiff).

The accused has the right to participate in the trial in the courts of the first, second and supervisory instances, also when the court decides on the choice of measures of restraint in respect of him in the form of detention and house arrest (Articles 107, 108 of the Code of Criminal Procedure). Moreover, a convict who is in custody and who has declared his desire to be present during the consideration of his cassation complaint has the right to participate in the court session directly or to state his position by using videoconferencing systems. The question of the form of participation of the convict is decided by the court (Article 376 of the Code of Criminal Procedure). A new form of participation of the convict, for some unknown reason, is not provided for when considering the case in the supervisory authority (Article 407 of the Code of Criminal Procedure).

The accused has the right to receive copies of complaints and presentations brought in the criminal case and to file objections to them. The accused (and his defense lawyer) has the right to get acquainted with the decision on the appointment of a forensic psychiatric examination in relation to him. The accused has the right to petition for the exclusion of evidence on the grounds that the evidence was obtained in violation of the requirements of the Code of Criminal Procedure (Article 235 of the Code of Criminal Procedure). In addition, the accused has the right to rehabilitation (Article 133 of the Code of Criminal Procedure) in case of his acquittal or termination of criminal prosecution on rehabilitating grounds.

25. Participants in criminal proceedings on behalf of the defense: counsel

In accordance with Art. 49 of the Code of Criminal Procedure of the Russian Federation, a defense counsel is a person who, in accordance with the procedure established by the Code of Criminal Procedure, protects the rights and interests of suspects and accused persons and provides them with legal assistance in the course of criminal proceedings. Lawyers are allowed as defenders. The defense counsel participates in the criminal case from the moment the accused or suspect appears in the criminal proceedings, or from the beginning of the implementation of measures of state coercion, i.e.: 1) from the moment of issuing a decision to bring a person as an accused; 2) from the moment of initiation of a criminal case against a specific person; 3) from the moment of the actual detention of a person suspected of committing a crime, in the following cases: provided for by Art. 91 and 92 of the Code of Criminal Procedure; application to him in accordance with Art. 100 Code of Criminal Procedure measures of restraint in the form of detention; 4) from the date of delivery of a notice of suspicion of committing a crime in the manner prescribed by Art. 223 Code of Criminal Procedure; 5) from the moment the decision on the appointment of a forensic psychiatric examination is announced to a person suspected of committing a crime; 6) from the moment of commencement of the implementation of other measures of procedural coercion or other procedural actions affecting the rights and freedoms of a person suspected of committing a crime.

Participation of a defense counsel in criminal proceedings is mandatory if: 1) the suspect, the accused did not refuse the defense counsel in the manner prescribed by Art. 52 Code of Criminal Procedure; 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 trial is conducted in the manner prescribed by Part. 5 Article. 247 Code of Criminal Procedure (absentia proceedings); 5) the suspect, the accused does not speak the language in which the criminal proceedings are conducted; 6) 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; 7) the criminal case is subject to consideration by the court with the participation of jurors; 8) the accused filed a petition for consideration of the criminal case in the manner prescribed by Ch. 40 of the Code of Criminal Procedure (reduced judicial proceedings). Refusal of defense counsel by the suspected and the accused shall be declared in writing and reflected in the minutes of the relevant procedural action (Article 52 of the Code of Criminal Procedure). (Unfortunately, there is no such form in the appendices to the Code of Criminal Procedure.) The defense counsel participating in the production of an investigative action, as part of providing legal assistance to his client, has the right to give him brief consultations in the presence of the investigator, to ask questions to the interrogated persons with the permission of the investigator, to make written comments about the correctness and completeness of the records in the protocol of this investigative action. The investigator may reject the defense counsel's questions, but is obliged to enter the assigned questions in the protocol.

26. Other participants in criminal proceedings: witness

A witness is a person who may be aware of any circumstances relevant to the investigation and resolution of a criminal case, and who is called to testify (Article 56 of the Code of Criminal Procedure). In accordance with Art. 188 of the Code of Criminal Procedure, a witness is summoned only by a summons, which is handed to him against signature, or to an adult member of his family, or to the administration at his place of work, or to other persons and organizations that are obliged to transfer it to the summoned. The summons may be transmitted by means of communication. In Art. 56 of the Code of Criminal Procedure category of persons who are not subject to interrogation as witnesses: judges and jurors on the circumstances of the case, which became known to them in connection with participation in the proceedings; defenders or lawyers - about the circumstances that became known to them in the exercise of their powers; clergy - about the circumstances that became known to them during confession; members of the Federation Council, deputies of the State Duma without their consent - about the circumstances that became known to them in connection with the exercise of their powers.

Witness rights: file petitions and bring complaints against the actions and decisions of the inquirer, investigator, prosecutor and court; appear for interrogation with a lawyer invited by him to provide legal assistance, who has the right to make statements about violations of the rights and legitimate interests of a witness (Article 189 of the Code of Criminal Procedure); apply for the application of security measures under Art. 11 Code of Criminal Procedure. In accordance with Art. 278 of the Code of Criminal Procedure, a witness may be interrogated at a court session without disclosing true data about his personality and in conditions that exclude visual observation of him by other participants in the trial. A witness cannot be forcibly subjected to a forensic examination or examination, except in cases where the examination is necessary to assess the reliability of his testimony (Article 179 of the Code of Criminal Procedure).

A forensic examination of a witness is carried out with his consent or the consent of his legal representative, which is given in writing (Article 195 of the Code of Criminal Procedure). In this case, the witness has the right to familiarize himself with the expert's opinion (Article 206). No consent is required to obtain samples for a comparative study (Article 202 of the Code of Criminal Procedure), therefore this must be regarded as a procedural duty of the witness (and other participants in the criminal process). In our opinion, the rules of art. 195 and 202 of the Code of Criminal Procedure are not entirely consistent with each other and require adjustment. In case of evasion from appearing without valid reasons, the witness may be subjected to a summons; the court may impose a monetary penalty on him (Articles 117, 118 of the Code of Criminal Procedure).

27. Other participants in criminal proceedings: expert, translator, witness

Expert in accordance with Art. 57 of the Code of Criminal Procedure - a person with special knowledge and appointed in the manner prescribed by the Code of Criminal Procedure for the production of an examination and giving an opinion.

This knowledgeable, disinterested person, appointed to study the submitted materials and give an opinion that has the value of evidence, should not be in official or other dependence on the parties or their representatives (Article 70 of the Code of Criminal Procedure). In accordance with Art. 195 of the Code of Criminal Procedure, a forensic examination is carried out by state forensic experts and other experts from among persons with special knowledge. The expert has the right to petition for the involvement of other experts in the examination; give an opinion within its competence, including on issues, although not posed in the decision on the appointment of a forensic examination, but related to the subject of an expert study; bring complaints about the actions (inaction) of the participants who appointed the examination, limiting his rights; refuse to give an opinion on issues that go beyond the scope of special knowledge, as well as in cases where the materials submitted to him are insufficient for giving an opinion.

In accordance with Art. 59 Code of Criminal Procedure interpreter - a person involved in criminal proceedings in cases provided for by the Code of Criminal Procedure, fluent in the language, knowledge of which is necessary for translation. To appoint a person as an interpreter, the investigating authorities, judges issue a decision on the appointment of a person as an interpreter, which reflects the fact of explaining to him his rights. The translator, when joining the case, is warned only once about criminal liability for knowingly false translation during the preliminary investigation. The procedural status of an interpreter is enshrined in Art. 59 Code of Criminal Procedure. He has the right to ask questions to the participants in order to clarify the translation, to get acquainted with the protocols of investigative actions in which he participated, the protocol of the court session and make comments on the correctness of the recording of the translation to be entered in the protocol, bring complaints about actions (inaction) that restrict his rights. The amounts paid to the interpreter are related to procedural costs and are reimbursed from the federal budget (Articles 131, 132 of the Code of Criminal Procedure).

Understood in accordance with Art. 60 of the Code of Criminal Procedure - 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 the content, course and results of the investigative action. Witnesses cannot be: minors, participants in criminal proceedings, their close relatives and relatives, employees of executive authorities, endowed in accordance with federal law with the authority to carry out operational-search activities and (or) preliminary investigation.

28. Evidence: concept and types

Доказательство - any information on the basis of which the court, prosecutor, investigator, in the manner prescribed by law, establishes the presence or absence of circumstances subject to proof in a criminal case and other relevant to the case (part 1 of article 74 of the Code of Criminal Procedure). evidence properties. Permissibility - this is a property of evidence that characterizes them from the standpoint of compliance with the procedural form. Relativity - the presence or absence of a logical connection between the information received and the subject of proof in a criminal case. Reliability - this is a qualitative characteristic of the evidence, indicating that the information corresponds to objective reality. Each evidence is subject to assessment in terms of relevance, admissibility, reliability, and all collected evidence in the aggregate - sufficiency for resolving a criminal case. Types of evidence: testimonies of the suspect, the accused; testimonies of the victim, witness; conclusion and testimony of an expert; conclusion and testimony of a specialist; evidence; protocols of investigative and judicial actions; other documents. Testimony of the suspect - information reported by him during the interrogation conducted in the course of pre-trial proceedings in accordance with the requirements of Art. 187-190 Code of Criminal Procedure. Testimony of the accused - information provided by him during an interrogation conducted in the course of pre-trial proceedings in a criminal case or in court in accordance with the requirements of Art. 173, 174, 187-190 and 275 of the Code of Criminal Procedure. Testimony of the victim - information reported by him during the interrogation conducted in the course of pre-trial proceedings in a criminal case or in court in accordance with the requirements of Art. 187191 and 277 of the Code of Criminal Procedure. Witness testimony - information provided by him during an interrogation conducted in the course of pre-trial proceedings in a criminal case or in court in accordance with the requirements of Art. 187-191 and 278 of the Code of Criminal Procedure. 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 on the criminal case, or by the parties. Expert testimony - information provided by him during the interrogation conducted after receiving his opinion, in order to clarify or clarify this opinion in accordance with the requirements of Art. 205 and 282 of the Code of Criminal Procedure. Specialist's opinion - a written opinion on the issues put before the specialist by the parties. Testimony of a specialist - information provided by him during interrogation about circumstances that require special knowledge, as well as clarification of his opinion in accordance with the requirements of Articles 53, 168 and 271 of the Code of Criminal Procedure.

Material evidence is recognized as follows: any objects that served as instruments of a crime or retained traces of a crime; any objects to which criminal acts were directed; money, valuables and other property obtained as a result of a crime; other objects and documents that can serve as means for detecting a crime and establishing the circumstances of a criminal case.

29. Subject and subjects of proof

Subject of proof - circumstances subject to mandatory establishment in the case (Article 73 of the Code of Criminal Procedure): 1) crime event (time, place, method, etc.); 2) the guilt of a person in committing a crime, the form of his guilt, motives; 3) circumstances characterizing the personality of the accused; 4) the nature and extent of the harm caused by the crime; 5) circumstances excluding criminality and punishability of the act; 6) circumstances mitigating (Article 61 of the Criminal Code) and aggravating (Article 63 of the Criminal Code) punishment; 7) circumstances that may entail exemption from criminal liability and punishment (for example, reconciliation - Art. 25 of the Code of Criminal Procedure); 8) circumstances that contributed to the commission of the crime. 9) 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).

Subjects of proof - persons who, through the production of investigative and other procedural actions, collect evidence: a court, a prosecutor, an investigator, an inquirer, and who have the right to participate in proving by filing petitions for the recovery of documents and objects as evidence, attaching them to the case, as well as for the production of investigative and other procedural actions aimed at obtaining evidence: the suspect, the accused, as well as the victim, civil plaintiff, civil defendant, defense counsel, private prosecutor (parts 2, 3 of article 86, chapter 41 of the Code of Criminal Procedure).

Limits of proof - the necessary minimum of reliable evidence and the depth of the study of the circumstances of the subject of proof, on the basis of which it is possible to make the only correct decision in the case. This rule is universal for all decisions in criminal proceedings. Proving - this is the process of collecting, checking and evaluating evidence (Article 85 of the Code of Criminal Procedure). The collection of evidence occurs mainly through the production of investigative, as well as procedural actions by the inquirer, investigator, prosecutor and court. The defender has the right to collect evidence by: obtaining items, documents and other information; questioning persons with their consent; requesting certificates, characteristics and other documents from authorities at various levels, as well as public associations (Article 86 of the Code of Criminal Procedure). rule prejudice indicates that the circumstances established by a court verdict that has entered into legal force are recognized by the investigating authorities and the court as evidence without additional verification, if these circumstances do not raise doubts, but cannot, however, predetermine the guilt of persons who have not previously participated in the criminal case under consideration ( article 90 of the Code of Criminal Procedure).

30. Grounds and procedure for the detention of a suspect

Arrest - short-term imprisonment of a person suspected of committing a crime, for which a punishment in the form of imprisonment without a court decision can be imposed.

The body of inquiry, the inquirer, the investigator has the right to detain a person on suspicion of committing a crime in the presence of one of the following grounds:

1) when this person is caught committing a crime or immediately after committing it;

2) when the victims or eyewitnesses point to the person as having committed the crime;

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

If there are other data that give grounds to suspect a person of committing a crime, he may be detained if this person tried to hide, or does not have a permanent place of residence, or his identity has not been established, or if the investigator with the consent of the head of the investigative body or the interrogating officer with the consent of the prosecutor a petition was sent to the court for the election of a measure of restraint in the form of detention in respect of the said person.

Arrest procedure includes the following stages: actual detention and personal search; drawing up a protocol (3 hours from the moment of delivery to the preliminary investigation body); notification of the prosecutor (12 hours from the moment of detention); interrogation of the suspect (no later than 24 hours from the moment of actual detention); notification of any of the close relatives, and in their absence - other relatives or providing the possibility of such notification to the suspect himself (no later than 12 hours from the moment of detention).

The suspect is subject to release by order of the inquirer or investigator if:

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 made in violation of the requirements of Art. 91 Code of Criminal Procedure.

31. Measures of restraint: concept, grounds, types

Preventive measure - the means provided for by law applied to the accused, which consist in a certain psychological impact, the threat of property losses, the establishment of supervision for the indicated persons, their placement in custody, depriving or restricting the freedom of the accused. In exceptional cases, a measure of restraint may also be applied to the suspect, while the charge must be brought against the suspect no later than 10 days from the moment the measure of restraint was applied, 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 measure of restraint is immediately cancelled.

The accusation of committing at least one of the crimes under Art. 205, 205.1, 206, 208, 209, 277, 278, 279, 281 and 360 of the Criminal Code, must be brought against the suspect, in respect of whom a measure of restraint has been chosen, no later than 30 days from the moment the measure of restraint was applied, and if the suspect was detained, and then taken into custody - within the same period from the moment of detention.

Preventive measure:

1) undertaking not to leave;

2) personal guarantee;

3) supervision of the command of the military unit;

4) looking after a minor accused;

5) pledge;

6) house arrest;

7) detention.

Grounds for applying preventive measures - the presence of circumstances that allow to believe that the accused:

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 obstruct the proceedings in a criminal case.

A measure of restraint may also be chosen to ensure the execution of a sentence. The listed grounds are common for the election of any measure of restraint. Special grounds or conditions include the circumstances of choosing a specific measure of restraint. Special grounds: minority (Article 105 of the Code of Criminal Procedure); attitude towards military service (Article 104 of the Code of Criminal Procedure); the presence of a written request of the guarantor (Article 103 of the Code of Criminal Procedure); the gravity of the crime committed (Article 108 of the Code of Criminal Procedure).

32. Characteristics of preventive measures: undertaking not to leave, personal guarantee, supervision of the command of the military unit, supervision of a minor accused, bail

According to Art. 102 Code of Criminal Procedure undertaking not to leave and proper behavior consists in a written obligation of the suspect or the accused: not to leave the permanent or temporary place of residence without the permission of the inquirer, investigator or court; appear at the appointed time when summoned by the inquirer, investigator and in court; not interfere with the proceedings in a criminal case in any other way.

Personal guarantee. In accordance with Art. 103 of the Code of Criminal Procedure, a personal guarantee consists in a written obligation of a trustworthy person that he vouches for the fulfillment by the suspect or the accused of the obligations provided for by the rules for compliance with the undertaking not to leave in accordance with paragraphs 2 and 3 of Art. 102 Code of Criminal Procedure. The selection of a personal guarantee is carried out at the written request of the guarantor with the consent of the person in respect of whom the guarantee is given. Military command supervision. According to Art. 104 of the Code of Criminal Procedure, the supervision of the command of a military unit over a suspect or accused who is a serviceman or a citizen undergoing military training consists in taking the measures provided for by the charters of the Armed Forces of the Russian Federation in order to ensure that this person fulfills the obligations stipulated by the rules for compliance with a written undertaking not to leave in accordance with paragraphs 2 and 3 of Art. 102 Code of Criminal Procedure.Supervising a juvenile suspect or accused. According to Art. 105 of the Code of Criminal Procedure, the supervision of a minor suspect or accused consists in ensuring his proper behavior, provided for in Art. 102 of the Code of Criminal Procedure, parents, guardians, custodians or other trustworthy persons, as well as officials of the specialized children's institution in which he is, about which these persons give a written obligation.

According to Art. 106 Code of Criminal Procedure bail consists in depositing money, securities or valuables by the suspect or the accused or another natural or legal person to the deposit account of the body that has chosen this preventive measure in order to ensure the appearance of the suspect or the accused before the investigator, the court and to prevent him from committing new crimes. The type and amount of bail are determined taking into account the nature of the crime committed, the identity of the suspect, the accused, and the property status of the pledgor. Bail as a measure of restraint is chosen in relation to the suspect or the accused by a court decision in the manner prescribed by Art. 108 Code of Criminal Procedure. Bail may be chosen at any time during the criminal proceedings. If bail is applied instead of the previously chosen measures of restraint in the form of detention or house arrest, then the suspect or the accused remains in custody or house arrest until the deposit of bail, which was determined by the court that chose this measure of restraint, is paid to the deposit account of the court. A protocol is drawn up on the acceptance of the pledge, a copy of which is handed over to the pledger.

33. Characteristics of preventive measures: detention

In accordance with Art. 108 of the Code of Criminal Procedure, detention as a measure of restraint is applied by a court decision in relation to a suspect or accused of committing crimes for which the criminal law provides for punishment in the form of imprisonment for a term of more than two years, if it is impossible to apply another, milder, measure of restraint. In exceptional cases, this measure of restraint may be chosen in relation to a suspect or accused of committing a crime for which a penalty of imprisonment for a term of up to two years is provided, in the presence of one of the following circumstances: the suspect or accused does not have a permanent place of residence in the territory of the Russian Federation; Federations; his identity has not been established; he violated the previously chosen measure of restraint; he hid from the preliminary investigation authorities or from the court. The law provides for a judicial procedure for choosing a measure of restraint in the form of detention. If it is necessary to choose 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 adoption of a court decision on the choice of a measure of restraint in the form of detention in the absence of the accused is allowed only if the accused is put on the international wanted list. Based on the results of consideration of the petition, the judge shall issue one of the following decisions: on the election of a measure of restraint in respect of the suspect or the accused in the form of detention; on refusal to satisfy the application; on postponing the adoption of a decision at the request of the party for a period of not more than 72 hours for the provision by it of additional evidence of the validity of the detention.

Length of detention. As a general rule, detention may not exceed 2 months. 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 in the manner prescribed by Art. 108, 109 Code of Criminal Procedure. The period of detention during the preliminary investigation is calculated from the moment the suspect or the accused is taken into custody until the prosecutor sends the criminal case to the court. A preventive measure may be canceled when it is no longer necessary, or changed to a stricter or softer one, when the grounds for choosing a preventive measure under Art. 97 and 99 of the Code of Criminal Procedure.

34. Initiation of a criminal case

The initiation of a criminal case is the first stage of the criminal process, the purpose of which is to resolve the issue of the presence of signs of a crime and the need for criminal proceedings.

occasions to initiate a criminal case are:

1) a statement about a crime;

2) surrender;

3) a message about a crime committed or being prepared, received from other sources.

The basis to initiate a criminal case is the availability of sufficient data indicating the signs of a crime. Stage timing. The inquirer, the body of inquiry, the investigator are obliged to accept, check the message about any committed or impending crime 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. The head of the investigative body, the head of the body of inquiry shall have the right, at the request of the investigator, the interrogator, respectively, to extend this period up to 10 days, and if it is necessary to conduct documentary checks or revisions, the head of the investigative body at the request of the investigator, and the prosecutor at the request of the interrogating officer shall have the right to extend this period up to 30 days.

Stage content. When checking a message about a crime, the body of inquiry, the inquirer, the investigator has the right to demand the production of documentary checks, audits and involve specialists in their participation. According to a report on a crime circulated in the media, an investigation is carried out by the body of inquiry (on behalf of the prosecutor), as well as by the investigator (on behalf of the head of the investigative body). The editorial office, editor-in-chief of the relevant mass media are obliged to transfer, at the request of the prosecutor, investigator or body of inquiry, 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 when this the person has set a condition to keep the source of information secret.

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

1) on the initiation of a criminal case in the manner prescribed by Article 146 of the Code of Criminal Procedure;

2) on refusal to initiate a criminal case;

3) on the transmission of a message according to jurisdiction in accordance with Art. 151 of the Code of Criminal Procedure, and in criminal cases of private prosecution - to the court in accordance with Part 2 of Art. 20 of the Code of Criminal Procedure (in this case, the body of inquiry, the inquirer, the investigator, the head of the investigative body takes measures to preserve the traces of the crime).

35. Preliminary investigation

Preliminary investigation - based on the law and carried out under the supervision of the prosecutor and judicial control, the procedural activities of the investigation and inquiry bodies to solve the crime, identify and expose the persons who committed it, to ensure that the perpetrator is held accountable, to compensate for the damage caused by the crime, as well as to clarify the conditions that contributed to the commission crime, and the subsequent transfer of the case for judicial review or its termination. The preliminary investigation goes through several successive stages.

The first stage begins from the moment the investigator (inquirer) accepts the criminal case for his proceedings, about which a decision is issued, which reflects two decisions: a) on initiation of criminal proceedings and b) about accepting it for production. At the second stage, the person conducting the investigation carries out investigative, search and other procedural actions to collect and verify evidence in order to establish the existence of an event and corpus delicti, to identify the person who committed this crime. At the third stage, having collected the evidence necessary and sufficient to bring a specific person as an accused, the investigator (interrogating officer) charges this person and interrogates him as an accused. Then, the issue of applying a preventive measure against the accused is decided without fail: is it necessary (in some cases it may not be applied); if so, what measure should be taken? The appearance of the accused in the case means the transition to the next stage, when the preliminary investigation is already more specific. At the fourth stage, the production of a complex of investigative and procedural actions continues in order to verify and clarify the testimony of the accused, to finally establish all the factual circumstances of the case that are important for making the correct final decision on it. At the fifth stage, having recognized the evidence available in the case as sufficient to draw up an indictment and send the case to court, the investigator (inquirer) decides to end the investigation. At this stage, a set of procedural actions is performed related to: notifying the participants in the process (the accused, his defense counsel, the victim, the civil plaintiff, the civil defendant, the relevant representatives) of the completion of the investigation and familiarizing them with the materials of the criminal case; with the resolution of petitions for the production of additional procedural actions; with the procedural registration of the end of the investigation. The sixth and final stage of the preliminary investigation is the preparation by the investigator (inquirer) of the final procedural document - the indictment (indictment). After it is signed by the relevant official, the preliminary investigation is considered completed and the criminal case is immediately sent to the prosecutor.

36. General conditions of the preliminary investigation: part 1

The general conditions of the preliminary investigation are the basic legal provisions that determine the construction of the stage, its forms and institutions, and thus ensure the solution of problems. General conditions exist in the form of legal regulations. General conditions of the preliminary investigation: 1. Forms of preliminary investigation. 2. Jurisdiction. 3. Connection and separation of criminal cases. 4. Allocation of materials to a separate production. 5. Beginning and end of preliminary investigation. 6. Production of urgent investigative actions. 7. Restoration of materials of the criminal case. 8. Mandatory consideration of the application. 9. Measures for the care of children, dependents of the suspect or accused and measures to ensure the safety of his property. 10. Maintaining the secrecy of the investigation.

Preliminary investigation carried out in the form of a preliminary investigation or in the form of an inquiry. jurisdiction - a system of signs of a criminal case, which allows you to determine the body authorized to conduct investigations. Connection of criminal cases. In one proceeding, criminal cases may be combined in relation to: 1) several persons who have committed one or more crimes in complicity; 2) one person who has committed several crimes; 3) a person accused of concealment of crimes investigated in these criminal cases, which was not promised in advance. Separation of a criminal case. The inquirer, investigator has the right to separate from the criminal case into a separate proceeding another criminal case in relation to: 1) individual suspects or accused in criminal cases of crimes committed in complicity, in the cases specified in paragraphs. 1-4 hours 1 tbsp. 208 Code of Criminal Procedure; 2) a minor suspect or accused who has been prosecuted together with adult defendants; 3) other persons suspected or 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. Allocation of materials to a separate production. If, during the preliminary investigation, it becomes known that other persons have committed a crime that is not related to the crime under investigation, the investigator, the interrogating officer issues a decision to separate materials containing information about a new crime from the criminal case and send them for a decision in accordance with Art. 144 and 145 of the Code of Criminal Procedure: the investigator - to the head of the investigative body, and the interrogating officer - to the prosecutor. Start and end of the preliminary investigation. A preliminary investigation begins from the moment a criminal case is initiated, about which the investigator, interrogating officer, body of inquiry issues an appropriate decision. In the resolution, the investigator, the interrogator also indicates that he has accepted the criminal case for his proceedings.

37. General conditions of the preliminary investigation: part 2

Production of urgent investigative actions. If there are signs of a crime, for which the production of a preliminary investigation is mandatory, the body of inquiry in the manner prescribed by Art. 146 of the Code of Criminal Procedure, initiates a criminal case and performs urgent investigative actions. Restoration of materials of the criminal case. The restoration of the lost criminal case or its materials is carried out by order of the head of the investigative body, the head of the body of inquiry, and in the event of the loss of the criminal case or materials in the course of judicial proceedings - by a court decision sent to the head of the investigative body or the head of the body of inquiry for execution. Mandatory consideration of the application. The investigator, interrogating officer is obliged to consider each petition filed in a criminal case in the manner prescribed by Chapter. 15 Code of Criminal Procedure. At the same time, the suspect or the accused, his defense counsel, as well as the victim, civil plaintiff, civil defendant or their representatives may not be denied the interrogation of witnesses, the performance of a forensic examination and other investigative actions, if the circumstances for the establishment of which they petition are important for this criminal case. Measures for the care of children, dependents of the suspect or accused and measures to ensure the safety of his property. If a suspect or an accused, detained or taken into custody has left unattended and assisted minor children, other dependents, as well as elderly parents in need of outside care, then the investigator, the inquirer shall take measures to transfer them to the care of close relatives, relatives or other persons or placement in appropriate children's or social institutions. The investigator, interrogating officer shall take measures to ensure the safety of the property and dwelling of the suspect or accused, detained or taken into custody.

Maintaining the secrecy of the investigation. The data of the preliminary investigation are not subject to disclosure, except for the cases provided for by the Code of Criminal Procedure. The investigator or interrogating officer warns the participants in criminal proceedings about the inadmissibility of disclosure without the appropriate permission of the data of the preliminary investigation that became known to them, about which they take a signature with a warning about liability in accordance with Art. 310 of the Criminal Code of the Russian Federation. The data of the preliminary investigation may be made public only with the permission of the investigator, the inquirer, and only to the extent that they will recognize this as permissible, if the disclosure does not contradict the interests of the preliminary investigation and is not related to the violation of the rights and legitimate interests of the participants in criminal proceedings. Disclosure of data on the private life of participants in criminal proceedings without their consent is not allowed.

38. Investigative actions. Concepts and types

It is necessary to distinguish between the concepts of "investigative actions" and "procedural actions".

Procedural actions - any actions of the investigator, interrogating officer, regulated by law: interrogations and identifications, searches and seizures, involvement as an accused and choosing a measure of restraint, issuing a decision to close the criminal case and drawing up an indictment, etc.

Investigative actions - only such actions of the investigator, interrogating officer, which are aimed at collecting and verifying evidence. They are the main means of establishing circumstances in a criminal case.. Types of investigative actions:

1) inspection (scene, terrain, premises, object, documents, postal and telegraph correspondence, corpse);

2) examination (of the accused, suspect, witness or victim);

3) interrogation (of a suspect, accused, witness, victim, expert);

4) confrontation;

5) presentation for identification (living people, objects, documents, a corpse, buildings, terrain, animals from photographs);

6) seizure (objects, documents);

7) control and recording of negotiations;

8) search (premises, areas, personal search);

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

10) investigative experiment;

11) verification of testimony on the spot;

12) appointment and performance of expert examination;

13) obtaining samples for a comparative study.

The production of any investigative action is possible only if there are grounds for this established by law: factual and legal. Under actual grounds are understood as certain data, primarily evidence, that dictate the need for the production of a particular investigative action. Under legal, sometimes they say legal grounds mean that the investigator (body of inquiry) has the authority to carry out an investigative action, confirmed by the relevant procedural act issued in the manner prescribed by law.

We are talking about the need: decisions on the production of an investigative action; obtaining the consent of the prosecutor; court decision on the conduct of an investigative action.

39. General conditions for conducting investigative actions

The general conditions for the production of investigative actions are the basic legal provisions that are expressed in legal norms and determine the procedural form of actions.

General rules for conducting investigative actions: 1. Investigative actions: exhumation, examination, search and seizure - are carried out on the basis of an investigator's decision. 2. Investigative actions that restrict the constitutional rights of citizens are carried out by a court decision. These include: inspection of the dwelling in the absence of the consent of the persons living in it; search and (or) seizures in the dwelling; personal search, with the exception of cases of personal search during arrest on suspicion of committing a crime; seizure of objects and documents containing state or other secrets protected by federal law, as well as objects and documents containing information on deposits and accounts of citizens in banks and other credit organizations; seizure of correspondence, its inspection and seizure in communication institutions; on the control and recording of telephone and other conversations. 3. The performance of an investigative action at night is not allowed, except in cases that brook no delay. 4. During the performance of investigative actions, the use of violence, threats and other illegal measures, as well as the creation of a danger to the life and health of persons participating in them, is unacceptable. 5. The investigator, involving participants in criminal proceedings to participate in investigative actions, certifies their identity, explains to them their rights, responsibilities, as well as the procedure for performing the corresponding investigative action. If a victim, witness, specialist, expert or translator is involved in the production of an investigative action, then he is also warned about the responsibility provided for in Art. 307 and 308 of the Criminal Code of the Russian Federation. 6. When performing investigative actions, technical means and methods for detecting, fixing and seizing traces of a crime and material evidence may be used. 7. The investigator has the right to involve in the investigative action an official of the body carrying out operational-search activities, as well as a specialist, an interpreter, about which a corresponding note is made in the protocol. 8. During the production of an investigative action, a protocol is kept in accordance with Art. 166 Code of Criminal Procedure. 9. Such investigative actions as: inspections, exhumation, investigative experiment, search, seizure, inspection and seizure of postal and telegraph correspondence, control and recording of telephone and other conversations, presentation for identification, verification of testimony on the spot - are carried out with the participation of at least two witnesses, which are called to certify the fact that an investigative action has been carried out. In other cases, investigative actions are carried out without the participation of attesting witnesses, unless the investigator, at the request of the participants in criminal proceedings or on his own initiative, decides otherwise.

40. Judicial procedure for obtaining permission to conduct an investigative action

The investigator, with the consent of the head of the investigative body, initiates a motion before the court to conduct an investigative action, on which a decision is issued.

A petition for the performance of an investigative action is subject to consideration by a single judge of a district court or a military court of the appropriate level at the place of the preliminary investigation or the performance of the investigative action no later than 24 hours from the moment the said petition is received.

The prosecutor, investigator and interrogating officer shall have the right to participate in the court session.

Having considered the said petition, the judge shall issue a decision to allow the conduct of an investigative action or to refuse to conduct it, indicating the reasons for the refusal.

In exceptional cases, when the inspection of the dwelling, search and seizure in the dwelling, personal search, as well as the seizure of property specified in Part 1 of Art. 104.1 of the Criminal Code of the Russian Federation, is urgent, these investigative actions can be carried out on the basis of an investigator's decision without obtaining a court decision. In this case, the investigator, within 24 hours from the start of the investigative action, notifies the judge and the prosecutor about the investigative action. The notification shall be accompanied by copies of the resolution on the conduct of an investigative action and the protocol of the investigative action to verify the legality of the decision to conduct it. Having received the said notification, the judge shall, within 24 hours, verify the legality of the investigative action performed and issue a decision on its legality or illegality. If the judge recognizes the performed investigative action as unlawful, all evidence obtained in the course of such an investigative action is recognized as inadmissible.

41. Grounds and conditions for suspension of the preliminary investigation

Suspension of preliminary investigation - This is a temporary suspension of criminal proceedings. The preliminary investigation can be suspended only if there are legal grounds and conditions, an exhaustive list of which is given in Art. 208 Code of Criminal Procedure.

First Foundation the suspension of the preliminary investigation is due to the fact that the person to be brought as an accused has not been established, i.e., despite the measures taken by the body of inquiry and the investigator, the crime has not been solved in a timely manner and the investigator does not have sufficient grounds to charge any person in a committed crime (clause 1, part 1, article 208 of the Code of Criminal Procedure). However, in order to suspend the preliminary investigation on the grounds under consideration, the very fact of the commission of a crime must be reliably established. Second base the suspension of the preliminary investigation is due to the fact that the suspect or the accused has fled from the investigation or his location has not been established for other reasons (clause 2, part 1, article 208 of the Code of Criminal Procedure). Before making a decision to suspend the preliminary investigation on the indicated grounds, the investigator must first establish the fact of the absence of the accused at the place where the preliminary investigation was conducted. To do this, it is necessary to conduct a check at his place of residence, interview family members and neighbors about the possible location of the accused, check whether he is in the hospital, whether he has been called up for military service or training, whether he has been arrested in another criminal case, whether he has left on a business trip, to study or rest in another area, etc. Only after such a check can the investigator make a reasonable conclusion that the accused has fled from the investigation and that the criminal case can be suspended on these grounds. Third ground suspension of the preliminary investigation is all cases where the location of the suspect or the accused is known, but there is no real possibility of his participation in the criminal case (clause 3, part 1, article 208 of the Code of Criminal Procedure). fourth ground suspension of the preliminary investigation is a temporary serious illness of the suspect or the accused, certified by a medical report, preventing his participation in investigative and other procedural actions (clause 4, part 1, article 208 of the Code of Criminal Procedure). According to the criminal procedure law, the disease of the accused must be severe enough to preclude his participation in investigative actions, but be temporary and curable. The very fact of the illness of the accused must be certified by a medical report. Fifth condition suspension of the preliminary investigation affects only the fourth ground. It consists in certifying the fact of the illness of the accused by a medical report. The fact of illness of the accused, which prevents his participation in the production of investigative actions, may also be certified by the conclusion of a forensic medical or forensic psychiatric examination.

42. Procedural order and terms for suspension of preliminary investigation

If there is one of the grounds for suspension and all the necessary conditions for suspension are met, the investigator may suspend the preliminary investigation in a criminal case, about which he issues a decision, a copy of which is sent to the prosecutor (part 2 of article 208 of the Code of Criminal Procedure). Simultaneously with the issuance of a decision to suspend the preliminary investigation, the investigator must decide on the measure of restraint, depending on the grounds for suspending the criminal case. Together with the decision to suspend the preliminary investigation, the investigator sends to the body of inquiry a copy of the decision on the application of a measure of restraint, if it is changed, as well as a decision on escort, when a measure of restraint has been chosen for the accused - detention. In the event of a serious illness of the accused, placing him in a medical institution, the investigator, suspending the criminal case, has the right to cancel or change the measure of restraint, which is also indicated in the decision to suspend the investigation.

As for the moment of suspension of the preliminary investigation, in Part 4 of Art. 208 of the Code of Criminal Procedure states that, on the grounds provided for in paragraphs. 1 and 2 h. 1 tbsp. 208 of the Code of Criminal Procedure, the preliminary investigation is suspended only after the expiration of its term. For the reasons provided for in paragraphs. 3 and 4 h. 1 tbsp. 208 of the Code of Criminal Procedure, the preliminary investigation may be suspended until the end of its term. That is, in the event of a serious illness of the accused or the impossibility of his participation in the criminal case due to objective reasons, the investigator has the right to suspend the criminal case until the expiration of the period allotted by the criminal procedure law for the preliminary investigation. When the person who committed the crime has not been identified or has fled from the investigation, the criminal case is suspended only after the expiration of the time allotted for the investigation. In part 2 of Art. 209 of the Code of Criminal Procedure states that after the suspension of the preliminary investigation, the investigator: 1) in the case provided for in paragraph 1 of paragraph 1 of Art. 208 of the Code of Criminal Procedure, takes measures to identify the person to be brought in as an accused; 2) in the case provided for by paragraph 2 of part 1 of Art. 208 of the Criminal Procedure Code, establishes the location of the accused, and if he fled, takes measures to search for him. At the same time, after the suspension of the preliminary investigation, the production of investigative actions is not allowed (part 3 of article 209 of the Code of Criminal Procedure). If the location of the accused is unknown, the investigator entrusts his search to the bodies of inquiry, which is indicated in the decision to suspend the preliminary investigation or issues a separate decision. The search for the accused may be announced both during the conduct of the preliminary investigation and simultaneously with its suspension. If there are grounds provided for by Art. 97 of the Code of Criminal Procedure, a measure of restraint may be chosen in relation to the wanted accused. In the cases provided for by Art. 108 of the Code of Criminal Procedure, detention may be chosen as a measure of restraint.

43. Termination of a criminal case and criminal prosecution

Termination of a criminal case means the complete cessation of criminal proceedings, i.e. the termination of procedural activities and procedural legal relations. Termination of criminal prosecution means only the termination of part of the criminal proceedings relating to the suspicion or accusation of a particular person. At the same time, the termination of the criminal case means the termination of the criminal prosecution, and the termination of the criminal prosecution is allowed without the termination of the criminal case (Articles 24-27 of the Code of Criminal Procedure).

The content of procedural actions upon termination of a criminal case and criminal prosecution includes:

1) the decision of the person conducting the investigation of the criminal case on the possibility of terminating it or terminating the criminal prosecution if there are the necessary grounds for this and on the basis of a complete, comprehensive and objective study of all the materials of the case;

2) carrying out the necessary procedural actions confirming the existence of grounds and conditions for terminating a criminal case, criminal prosecution;

3) adoption of a decision to terminate the criminal case, criminal prosecution and its procedural execution, systematization of the materials of the criminal case and resolution of issues arising from the decision;

4) obtaining the consent of the head of the investigative body when the criminal case is terminated on non-rehabilitating grounds, obtaining the prosecutor's permission when the criminal case is terminated by the interrogating officer on the same non-rehabilitating grounds;

5) appeal against the decisions of the person conducting the investigation. The procedure for terminating a criminal case, criminal prosecution is fixed by Ch. 29 Code of Criminal Procedure of the Russian Federation. The procedural form of the decision to terminate a criminal case and criminal prosecution is a decision.

Grounds for termination of a criminal case and criminal prosecution. In accordance with Part 2 of Art. 212 of the Code of Criminal Procedure, the termination of a criminal case on one of the rehabilitating grounds entails mandatory measures for the rehabilitation of the person against whom the criminal prosecution was carried out and compensation for damages. Based on this provision of the law, all grounds can be divided into rehabilitating and non-rehabilitating.. Rehabilitating grounds are those grounds for terminating a criminal case, in the presence of which the criminal case is terminated, and in relation to the person all measures provided for by law are applied to rehabilitate and compensate for material damage caused to him as a result of criminal prosecution. Non-rehabilitating grounds consist in the fact that in the presence of the circumstances of the case specified by law, due to the small public danger of the act, the society waives its right to apply criminal liability and punishment. According to the law, the termination of the case on these grounds is allowed only with the consent of the accused.

44. Resumption of suspended preliminary investigation and terminated criminal case, criminal prosecution

The grounds for the resumption of the suspended investigation are the following circumstances:

1) the grounds for its suspension have disappeared;

2) it became necessary to carry out investigative actions that can be carried out without the participation of the suspect, the accused;

3) a decision was issued by the head of the investigative body in connection with the cancellation of the corresponding unreasonable decision of the investigator on suspension.

The preliminary investigation is resumed on the basis of the decision of the investigator, the head of the investigative body. The suspect, the accused, his defense counsel, the victim, his representative, the civil plaintiff, the civil defendant or their representatives, as well as the prosecutor shall be informed about the resumption of the preliminary investigation.

Having recognized the investigator's decision to terminate the criminal case or criminal prosecution as unlawful or unfounded, the prosecutor submits a reasoned decision to send the relevant materials to the head of the investigative body to resolve the issue of canceling the decision to terminate the criminal case. Having recognized the decision of the interrogating officer to terminate the criminal case or criminal prosecution as unlawful or unfounded, the prosecutor cancels it and resumes the proceedings on the criminal case. Having recognized the decision of the investigator to terminate the criminal case or criminal prosecution as unlawful or unfounded, the head of the investigative body cancels it and resumes the proceedings on the criminal case. If the court recognizes the investigator's decision to terminate the criminal case or criminal prosecution as unlawful or unreasonable, then it shall issue in the manner prescribed by Art. 125 of the Code of Criminal Procedure, the relevant decision and sends it to the head of the investigating body for execution.

Resumption of production in accordance with Art. 413 and 414 of the Code of Criminal Procedure on a previously terminated 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 is brought to the attention of the persons specified in Part 3 of Art. 211 Code of Criminal Procedure.

45. Completion of the preliminary investigation with the drawing up of an indictment

The end of the preliminary investigation is the final stage of the activities of the investigator in a criminal case, which occurs when the circumstances to be proved in the criminal case are fully established, and the person conducting the investigation concludes that there are sufficient grounds for sending the case to court or to terminate the proceedings. on business.

Having recognized the need to refer the case to the court, the person conducting the investigation carries out a set of procedural actions, which consists of the following steps:

1) notification of the victim, civil plaintiff, civil defendant, their representatives about the completion of the investigation and familiarizing them, in cases provided for by law, with the case materials (Part 2 of Article 215, 216 of the Code of Criminal Procedure);

2) familiarization of the accused and his defense counsel with all the materials of the case (Article 217 of the Code of Criminal Procedure);

3) resolution of petitions (Article 219 of the Code of Criminal Procedure);

4) drawing up an indictment (Article 220 of the Code of Criminal Procedure);

5) referral of the case to the prosecutor (part 6 of article 220 of the Code of Criminal Procedure). All materials of the case are presented to the accused and his defense counsel in a filed and numbered form.

If filming or sound recording was used during the preliminary investigation, they are reproduced to the accused and his defense counsel. If several defendants are involved in the case, each of them is presented with all the materials in the order of priority determined by the investigator or the person conducting the inquiry. The accused and his/her defense counsel, getting acquainted with all the materials of the case, have the right to write out and copy from it any information and in any volume.

Closing indictment - a procedural act, which sums up the results of the preliminary investigation, sets out the essence of the case and the evidence established in the case, incriminating the accused of committing a crime, formulates the charge and concludes that the case is sent to the court. The indictment consists of descriptive and resolutive parts (Article 220 of the Code of Criminal Procedure). The indictment is accompanied by a number of additional procedural documents, which are considered "appendices to the indictment". This is a list of persons to be summoned to the court session; certificates on the timing of the investigation, on the preventive measures chosen, on material evidence, on the civil suit, on the measures taken to secure the civil suit and possible confiscation of property, on court costs, etc.

46. Decision of the prosecutor in a criminal case

The prosecutor considers the criminal case received from the investigator with the indictment and within 10 days makes one of the following decisions on it:

1) on the confirmation of the indictment and on the direction of the criminal case to the court;

2) on returning the criminal case to the investigator for conducting an additional investigation, changing the scope of the accusation or qualifying the actions of the accused or redrawing the indictment and eliminating the identified shortcomings with their written instructions;

3) on sending the criminal case to a higher prosecutor for approval of the indictment, if it is within the jurisdiction of a higher court.

Having established that the investigator violated the requirements of Part 5 of Art. 109 of the Code of Criminal Procedure, and the deadline for keeping the accused in custody has expired, the prosecutor cancels this preventive measure. The decision of the prosecutor to return the criminal case to the investigator may be appealed by him with the consent of the head of the investigative body to a higher prosecutor, and in case of disagreement with his decision - to the Prosecutor General of the Russian Federation 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 executive body (under the federal body executive power). The higher prosecutor, within 72 hours from the receipt of the relevant materials, shall issue one of the following decisions:

1) on refusal to satisfy the petition of the investigator;

2) on the annulment of the decision of the lower prosecutor - in this case, the higher prosecutor approves the indictment and sends the criminal case to the court.

After the indictment is approved, the prosecutor sends the criminal case to the court, informing the accused, his defense counsel, victim, civil plaintiff, civil defendant and (or) representatives about it and explaining to them the right to file a petition for a preliminary hearing in accordance with the procedure established by Chapter. 15 Code of Criminal Procedure. A copy of the indictment with attachments shall be handed over by the prosecutor to the accused. Copies of the indictment shall also be handed over to the defender and the victim, if they solicit this.

47. Inquiry

Inquiry is a form of preliminary investigation and is carried out according to the rules of preliminary investigation with exceptions established by law for this type of activity. 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 of international cooperation, the period of inquiry may be extended by the prosecutor of a constituent entity of the Russian Federation and a military prosecutor equivalent to him up to 12 months.

At the end of the interrogation, the interrogator draws up an indictment, which indicates: 1) the date and place of its compilation; 2) position, surname, initials of the person who compiled it; 3) data on the person brought to criminal responsibility; 4) the place and time of the commission of the crime, its methods, motives, goals, consequences and other circumstances relevant to this criminal case; 5) the wording of the accusation indicating the paragraph, part, article of the Criminal Code of the Russian Federation; 6) a list of evidence supporting the accusation and a list of evidence cited by the defense; 7) circumstances mitigating and aggravating punishment; 8) information about the victim, the nature and extent of the harm caused to him; 9) list of persons to be summoned to court. The accused and his counsel must be acquainted with the indictment and the materials of the criminal case, which is noted in the protocol of familiarization with the materials of the criminal case. The indictment drawn up by the interrogating officer is approved by the head of the body of inquiry. The materials of the criminal case together with the indictment shall be sent to the prosecutor.

The prosecutor considers the criminal case received with the indictment, and within 2 days makes one of the following decisions on it:

1) on the approval of the indictment and on the direction of the criminal case to the court;

2) on the return of the criminal case for the production of an additional inquiry or redrawing of the indictment in case of its inconsistency with the requirements of Art. 225 of the Code of Criminal Procedure with their written instructions.

At the same time, the prosecutor may set a time limit for conducting an additional inquiry no more than 10 days, and for redrawing the indictment - no more than 3 days. Further extension of the period of inquiry is carried out on a general basis and in the manner prescribed by Parts 3-5 of Art. 223 Code of Criminal Procedure; 3) on the termination of the criminal case on the grounds provided for in Art. 24-28 Code of Criminal Procedure; 4) on sending the criminal case for preliminary investigation.

48. Essence, significance of preparing a case for trial

The stage of preparing the case for trial is of a borderline nature, i.e., it is located between the block of pre-trial stages and the rest of the judicial stages. The task of the stage is to evaluate the results of the activities of the investigator with the prosecutor and create full-fledged conditions for the consideration of the case in court. This stage, depending on the circumstances of the case and the petitions declared by the interested participants in the proceedings, is carried out either without a preliminary hearing or with a preliminary hearing.

The beginning This stage is the moment when the case goes to court. The law does not clearly define what is the moment of entering the court, therefore, it is necessary to consider the moment of registration of a criminal case with the assignment of a number. The term for making a decision on a case is 14 days for criminal cases in which the accused is arrested pending trial, and 30 days for all other cases. End stage - the moment of the beginning of the central stage - the stage of trial.

After the case is received by the court, the judge considers two groups of questions:

1. The judge is obliged to check whether the case is within the jurisdiction of the given court. If the case is beyond the jurisdiction of the court, then the judge no longer decides any questions, but sends the case to jurisdiction:

- whether the measure of restraint chosen by the accused is subject to change or cancellation;

- whether measures have been taken to ensure compensation for material damage or possible confiscation of property. If such measures have not been taken, the judge has the right to take these measures himself or may instruct the appropriate body to take these measures;

- whether there are petitions and statements of interested participants in the case (accused, victim, defense counsel, etc.). If there are such petitions, then the judge is obliged to consider and resolve them, and the issue of calling additional witnesses, attaching additional materials, etc. is mandatory considered;

- Whether copies of the indictment or indictment have been served.

2. Whether there are grounds for holding a preliminary hearing.

As a result of resolving 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.

49. Preliminary hearing

preliminary hearing - this is a court session, which is held with the participation of interested parties to consider issues related to the procedure for the subsequent trial, as well as to resolve questions about the admissibility and sufficiency of the evidence base in the case. Grounds for holding a preliminary hearing: 1) at the initiative (petition) of the party: if there is a party's request to exclude evidence; to resolve the issue of consideration of a criminal case by a court with the participation of jurors; if there is a party's request to conduct a trial in absentia (Article 247 of the Code of Criminal Procedure); 2) at the initiative of the court: if there are grounds for returning the criminal case to the prosecutor in the cases provided for by Art. 237 Code of Criminal Procedure; if there are grounds for suspension or termination of the criminal case. If it is not possible to collect sufficient evidence, and the collected data are insufficient for a full consideration of the case, then the case is terminated. A petition for a preliminary hearing may be filed by a party after familiarization with the materials of the criminal case or after sending the criminal case with the indictment or indictment to the court within 7 days from the date of receipt by the accused of a copy of the indictment or indictment. The preliminary hearing is held by the judge alone in a closed court session with the participation of the parties. All interested persons are notified by the court no later than three days before the preliminary hearing of the case. The appearance of the parties to the proceedings is recognized by law as optional, with the exception of the accused. Conducting a preliminary hearing without the participation of the accused is possible only if he makes a motion about it.

Based on the results of the preliminary hearing, the judge makes one of the following decisions in the form of an order: 1) on sending a criminal case to jurisdiction in the event that the prosecutor changes the charges, which entailed a change in jurisdiction; 2) on the return of the criminal case to the prosecutor; 3) on suspension of criminal proceedings; 4) on the termination of the criminal case; 5) on the appointment of a court hearing. If the judge satisfies the petition for the exclusion of evidence, then the decision indicates what evidence is excluded and what materials of the criminal case, justifying the exclusion of this evidence, cannot be examined and announced in the court session and used in the process of proving. After the appointment of the court session, the defendant is not entitled to file petitions: 1) on consideration of a criminal case by a court with the participation of jurors; 2) for a preliminary hearing. A court decision adopted as a result of a preliminary hearing is not subject to appeal, with the exception of decisions to terminate a criminal case and (or) to schedule a court session in terms of resolving the issue of a measure of restraint.

50. Jurisdiction

Jurisdiction - a set of characteristics of a criminal case, allowing to determine the court authorized to resolve this case. Signs of jurisdiction. In accordance with subject sign jurisdiction is subdivided into the following categories - jurisdiction of a justice of the peace, jurisdiction of a district court, jurisdiction of a court of a constituent entity of the Federation and jurisdiction of the Supreme Court of the Russian Federation. At the same time, the district, as the main link in the judicial system, has jurisdiction over all criminal cases, with the exception of cases within the jurisdiction of a justice of the peace, a court of a constituent entity of the Federation, and the Supreme Court of the Russian Federation. The justice of the peace has jurisdiction over criminal cases on crimes for which the maximum punishment does not exceed three years in prison, with the exception of criminal cases on crimes specified in Part 1 of Art. 31 Code of Criminal Procedure. In accordance with territorial feature cognizance of a criminal case is subject to consideration in court at the place of commission of the crime, with the exception of cases provided for by Art. 35 Code of Criminal Procedure. If the crime was started in a place under the jurisdiction of one court, and ended in a place under the jurisdiction of another court, then this criminal case is within the jurisdiction of the court at the place where the crime ended. In accordance with personal sign powers of military courts. Military courts consider criminal cases on all crimes committed by military personnel and citizens undergoing military training. Military courts stationed outside the territory of the Russian Federation have jurisdiction over criminal cases of crimes committed by military personnel serving in the military as part of the Russian troops, members of their families, as well as other citizens of the Russian Federation, if:

1) an act containing signs of a crime provided for by criminal law, committed in the territory under the jurisdiction of the Russian Federation, or committed in the performance of official duties, or encroaches on the interests of the Russian Federation;

2) otherwise is not provided by an international treaty of the Russian Federation.

Rules for determining jurisdiction: determination of jurisdiction when joining criminal cases; transfer of a criminal case to jurisdiction; change of territorial jurisdiction of a criminal case; inadmissibility of disputes about jurisdiction. In accordance with Art. 33 of the Criminal Procedure Code, when joining criminal cases, if one person or a group of persons is accused of committing several crimes, criminal cases about which are within the jurisdiction of courts of different levels, the criminal case for all crimes is considered by a higher court. Questions of jurisdiction are resolved before the start of the trial. The court, having established that the criminal case under its proceedings is within the jurisdiction of another court of the same level, has the right, with the consent of the defendant, to leave this criminal case in its proceedings, but only if it has already begun its consideration in a court session.

51. Essence, meaning, objectives and general conditions of the trial

Trial - the stage of criminal proceedings, during which the court resolves a dispute about the guilt of a person in committing a crime between the participating parties. The special place of the trial in the system of stages of the criminal process is determined by the fact that at this stage of the process questions are resolved - about the guilt or innocence of the defendant in the act incriminated to him and about the appointment of the statutory punishment to the guilty person, i.e., justice is carried out. In addition, one of the characteristic features that determine the procedure for criminal proceedings at the stage of trial is that at this stage of criminal proceedings, all the principles of the criminal process are most consistently and fully applied. Other tasks to be solved in the course of the trial should also include: ensuring the rights and constitutional freedoms of the defendant, victim, civil plaintiff, civil defendant and other participants in the criminal process, whose legitimate interests may be affected in the course of the trial; finding out the causes and conditions that contributed to the commission of the crime, and taking measures to eliminate them; ensuring an effective preventive impact aimed at preventing crime and educating citizens in a spirit of respect for the law.

General conditions of the trial - a set of requirements of the law, establishing the most general rules and requirements that determine the content of the trial procedure as a whole, from its beginning to the full completion of the consideration of the case by the court of first instance. The general conditions of the trial are enshrined in Ch. 35 Code of Criminal Procedure. General conditions of the trial: 1) immediacy, orality, continuity and immutability of the composition of the court; 2) publicity; 3) mandatory participation in the trial of the defendant, prosecutor, defense counsel, victim, civil plaintiff and civil defendant; 4) compliance with the limits of litigation; 5) compliance with the rules of decision-making in court proceedings and regulations. Other requirements of the law, which are among the general conditions of the trial, determine the rules for making decisions in the trial and the rules: the procedure for terminating a criminal case in a court session (Article 254 of the Code of Criminal Procedure); the procedure for resolving the issue of a measure of restraint in relation to the defendant (Article 255 of the Code of Criminal Procedure); the procedure for issuing a court ruling in a court session (Article 256 of the Code of Criminal Procedure); the rules of the court session (Article 257 of the Code of Criminal Procedure); a list of procedural measures taken against violators of order in a court session (Article 258 of the Code of Criminal Procedure); the procedure for keeping minutes of the court session (Article 259 of the Code of Criminal Procedure); the procedure for submitting comments on the minutes of the court session and their consideration by the judge presiding over the court session (Article 260 of the Code of Criminal Procedure).

52. Publicity of trial

Publicity of the trial - the general condition of the trial, which is the implementation of the provisions enshrined in Art. 123 of the Constitution. The hearing of cases in all courts is open, and only in cases expressly indicated by federal law is it allowed to hear the case in a closed court session. A closed trial is allowed on the basis of a ruling or a court order in cases where: 1) consideration of a criminal case in court may lead to the disclosure of state or other secrets protected by federal law; 2) criminal cases on crimes committed by persons under the age of sixteen are considered; 3) consideration of criminal cases on crimes against sexual inviolability and sexual freedom of the individual and other crimes may lead to the disclosure of information about the intimate aspects of the life of participants in criminal proceedings or information degrading their honor and dignity; 4) this is required by the interests of ensuring the safety of the participants in the proceedings, their close relatives, relatives or close persons. A criminal case is considered in a closed court session in compliance with all norms of criminal proceedings. A court ruling or ruling on the consideration of a criminal case in a closed court session may be issued in respect of the entire trial or its corresponding part. The ruling or ruling of the court on holding a closed trial must indicate the specific, factual circumstances on the basis of which the court made this decision (part 1 of article 241 of the Code of Criminal Procedure).

Absentee trial of criminal cases. In accordance with the constitutional provisions in the general conditions of the trial, we turn to Art. 123 of the Constitution of the Russian Federation, which states: "Proceedings in absentia of criminal cases in courts (i.e., hearing the case without the participation of the parties, including the defendant and the victim) are not allowed, except in cases provided for by federal law." As a general rule (Articles 244, 246-250 of the Code of Criminal Procedure), the appearance of the defendant in court is obligatory. If the defendant fails to appear without valid reasons, the court is obliged to take a decision to postpone the hearing of the case and forcibly bring the defendant, except in cases where the trial of the case is possible even in the absence of the defendant. Trial of the case in the absence of the defendant is allowed only in exceptional cases, if this does not prevent the establishment of the truth in the case: when the defendant is outside the Russian Federation and avoids appearing in court; when, in a case involving a crime for which a sentence of imprisonment cannot be imposed, the defendant requests that the case be heard in his absence. However, in these cases, the court has the right to recognize the presence of the defendant as mandatory. Consideration of the case by the court in the absence of the defendant, when this is not allowed by law, entails the mandatory annulment of the court verdict.

53. Participation of the defendant and the accuser in the trial

Defendant - the accused, put on trial. After the verdict is passed, he becomes a convict. participation of the defendant. The trial of a criminal case is carried out with the obligatory participation of the defendant. Proceedings in the absence of the defendant may be allowed if, in a criminal case involving a crime of minor or medium gravity, the defendant requests that the case be heard in his absence. If the defendant fails to appear, the hearing of the criminal case must be adjourned. And the court has the right to subject the defendant, who did not appear without good reason, to be brought, as well as to apply to him or change him a measure of restraint.

public prosecutor - an official of the prosecutor's office who supports the prosecution on behalf of the state in a criminal case. The prosecutor may be the victim and (or) the public prosecutor. The participation of the prosecutor in the court session is obligatory. This ensures the principle of competitiveness of the parties before the court. The participation of the prosecutor as a public prosecutor is obligatory only in cases of public and private-public prosecution. In criminal cases of private prosecution, the prosecution in the proceedings is supported by the victim. The prosecutor participates in the trial when it is recognized as necessary by the judge when scheduling a court session, or when the prosecutor, having sent the case to the court, announced his intention to maintain state prosecution before the court. If the prosecutor fails to appear at the court session, the case may be heard in his absence or, if the court recognizes the participation of the prosecutor as necessary, postponed until the prosecutor appears.

In a number of cases, the criminal procedure law requires the obligatory participation of the prosecutor in court: in cases of socially dangerous acts of the insane, as well as crimes of persons who fell ill with mental illness after committing a crime (part 1 of article 408 of the Code of Criminal Procedure); in cases considered by a jury (Article 428 of the Code of Criminal Procedure). When maintaining public prosecution before the court, the prosecutor substantiates the accusation, based on the evidence collected in the case, guided by the requirements of the law and his inner conviction. If in the course of the trial the public prosecutor comes to the conclusion that the evidence presented does not confirm the charge brought against the defendant, then he waives the charge and sets out to the court the reasons for the refusal. The full or partial refusal of the public prosecutor from the prosecution during the trial entails the termination of the criminal case or criminal prosecution in full or in the relevant part thereof on the grounds provided for in paragraphs. 1 and 2 h. 1 tbsp. 24 and pp. 1 and 2 h. 1 tbsp. 27 of the Code of Criminal Procedure (part 7 of article 246 of the Code of Criminal Procedure).

54. Participation in the trial of the victim, civil plaintiff and civil defendant

Participation in the trial of the victim, civil plaintiff and civil defendant, the protection of the rights and legitimate interests of which is one of the main tasks of the judiciary, contributes to a complete, comprehensive and objective study of the circumstances of the case and the adoption by the court of a fair, lawful and reasoned decision (Article 249 of the Code of Criminal Procedure) . If the victim fails to appear at the court session, the court, proceeding from the interests of the case, has the right either to postpone the trial or to consider the case in the absence of the victim. The choice by the court of one or another decision in this case is determined by the possibility (or impossibility) of a comprehensive study of all the circumstances of the case and the protection of the rights and legitimate interests of the victim in the consideration of the case without his participation. If the victim did not appear in court without valid reasons, and his interrogation at the court session is necessary, the court has the right to subject the victim to a summons.

If the civil plaintiff or his representative fails to appear in court, the civil claim, as a general rule, remains without consideration. However, the law provides for exceptions (part 2 of article 250 of the Code of Criminal Procedure) - the court has the right to consider a civil claim in the absence of a civil plaintiff if:

1) the civil plaintiff or his representative applies for it;

2) the civil suit is supported by the public prosecutor;

3) the defendant fully agrees with the civil suit filed.

Failure to appear at the court session of the civil defendant or his representative does not prevent the consideration of the civil claim on the merits. If the civil defendant did not appear in court without valid reasons, and his interrogation at the court session is necessary, the court has the right to subject him to a summons.

Competitiveness of the process, participation and equality of the parties in the trial stage are aimed at creating the necessary prerequisites for the effective administration of justice and ensuring equal opportunities for all participants in the trial to protect their rights and legitimate interests in court. Article 244 of the Code of Criminal Procedure reveals this rule as follows: “In a court session, the parties to the prosecution and the defense enjoy equal rights to file challenges and motions, present evidence, participate in their research, speak in judicial debates, and submit written formulations to the court on the issues specified in paragraphs. 1-6, part 1, article 299 of the Code of Criminal Procedure, for consideration of other issues arising in the course of the trial.

55. Structure of the trial: preparatory part

The entire procedure of the trial (except for the jury trial) consists of four procedural stages, which, in the sequence established by law, go through the criminal case considered by the court of first instance: 1) the preparatory part of the trial; 2) judicial investigation; 3) judicial debate and the last word of the defendant; 4) judgment and pronouncement of the verdict of the court. Preparatory part of the trial begins with the fact that at the time appointed for the consideration of the case, the presiding judge opens the court session and announces which case is to be heard. The system of procedural actions and court decisions and the sequence of their implementation in the preparatory part of the trial are defined in the Code of Criminal Procedure and, as a rule, are implemented as follows: 1. The opening of the court session and the announcement of which case is to be considered. 2. Checking the appearance in court, during which the secretary of the court session reports to the court on the appearance of all persons summoned to the court session, and reports on the reasons for the absence of those absent. 3. Explaining to the translator his duties. In this case, it is necessary to pay attention to the fact that the explanation to the translator of his duties and warning him of criminal liability under the Criminal Code for a knowingly incorrect translation must be made by the court before the clarification of the rights of other participants in the trial, since the translator must begin performing his functions simultaneously with the start of the procedural activities of other participants in the proceedings. 4. Removal of witnesses from the courtroom. This procedural action, as well as measures aimed at ensuring that previously interrogated witnesses do not communicate with those who have not been interrogated, is aimed at preventing the possibility of the testimony of some witnesses influencing the content of the testimony of others, i.e. those of them who have yet to testify in a court. The removal of witnesses from the courtroom is carried out by oral order of the presiding judge before the start of their interrogation. 5. Establishing the identity of the defendant and the timeliness of handing him a copy of the indictment. Fulfilling this requirement of the law, the court must make sure that the person brought before the court is really the defendant in the case to be considered in this court session. 6. Explaining the rights of the defendant and other participants in the trial includes not only explaining to the participants in the process their rights, but also bringing to the attention of each of them the requirements of the law that determine their duties. 7. The application and resolution of motions begins with the fact that the presiding officer without fail finds out from each of the participants in the trial whether he has motions in the case. 8. The resolution of the issue of the possibility of considering the case in the absence of any of the persons participating in the case completes the preparatory part of the trial.

56. Structure of the trial: judicial investigation

judicial investigation aims to examine the evidence and clarify all the circumstances of the case.

Judicial investigation occurs in a certain sequence: 1) announcement of the indictment by the public prosecutor; 2) clarification of the position of the defendant on the merits of the charges brought against him, i.e., the question of whether he pleads guilty to the act incriminated to him; 3) establishment by the court of the procedure (sequence) for examining evidence; 4) direct examination of evidence in the order established by the court; 5) end of the trial. At each of these stages of the judicial investigation, the court and other participants in the trial are guided by certain requirements of the law. Among the most important of them are the following: 1. When determining the procedure for examining evidence, the court listens to and takes into account the opinions of the parties. Having determined the procedure for examining evidence, the court issues a ruling on this matter, and if the case is heard by a single judge, a decision. 2. The investigation of evidence, as a rule, begins with the interrogation of the defendant. After the interrogation of the defendant by the court, he is interrogated by other participants in the trial in the sequence determined by law. 3. The disclosure in court of the testimony of the defendant, given during the inquest or preliminary investigation, is allowed only in exceptional cases. 4. Witnesses are interrogated separately, in the absence of witnesses who have not yet been interrogated, and in a strictly defined sequence: the court does this first, and the last - the defendant and his defense counsel. If a witness is summoned to the court session at the request of one of the participants in the trial, this participant shall interrogate this witness first. 5. The interrogation of the victim at the court session is carried out according to the rules for the interrogation of witnesses. The victim, as a rule, is interrogated before the interrogation of witnesses. 6. If necessary, the court, in the process of examining evidence, has the right to conduct a forensic examination of the case in order to resolve issues that require special knowledge. 7. Material evidence available in the case and additionally presented at the court session must be examined by the court and presented to the participants in the trial. 8. Documents attached to the case and additionally presented at the court session, if they state or verify the circumstances relevant to the case, shall be subject to disclosure in court. 9. If necessary, the court, in the process of examining evidence, has the right to inspect any area, premises, building, structure and any other real estate object. In these cases, upon arrival at the place, the examination of the relevant object is carried out by the entire composition of the court in the presence of the parties participating in the case. In addition, other investigative actions may be carried out in the judicial investigation, for example, an investigative experiment, presentation for identification, examination.

57. The structure of the trial: the debate of the parties and the last word of the defendant, the decision of the verdict

The debate of the parties consists of the speeches of the accuser and the defender (Article 292 of the Code of Criminal Procedure). In the absence of a defense counsel, the defendant shall participate in the debate of the parties. The victim and his representative may also participate in the debate of the parties. The civil plaintiff, the civil defendant, their representatives, the defendant shall have the right to petition for participation in the debate of the parties.

Remarks - speeches of each of the participants after the debate of the parties. The right of the last remark belongs to the defendant or his counsel.

After the end of the debate of the parties, the presiding judge gives the defendant the last word. No questions to the defendant during his last speech are allowed. The court cannot limit the duration of the last word of the defendant to a certain time. At the same time, the presiding judge has the right to stop the defendant in cases where the circumstances stated by the defendant are not related to the criminal case under consideration.

Приговор - 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 appellate instance.

The court decides the verdict in the name of the Russian Federation. The verdict is decided by the court in the deliberation room. During the sentencing, only judges who are members of the court in this criminal case may be in this room.

When deciding the sentence, the court resolves issues that are essential for justice. The list of questions is provided by law in Art. 299, 300 Code of Criminal Procedure. After signing the verdict, the court returns to the courtroom and the presiding judge pronounces the verdict. All those present in the courtroom, including the composition of the court, hear the verdict standing.

58. Types of sentences of the court of first instance

The current legislation provides for the possibility of issuing two types of sentences in a criminal case: conviction and acquittal (Article 302 of the Code of Criminal Procedure). guilty verdict It is decided in those cases when, during the trial, the court, based on the results of the examination of evidence, comes to the conclusion that the guilt of the defendant in the commission of a crime has been proven and this fact does not raise any doubts. The acquittal is decided in cases where, in the opinion of the court:

1) the event of the crime has not been established;

2) the defendant is not involved in the commission of the crime;

3) there is no corpus delicti in the act of the defendant;

4) participation of the defendant in the commission of the crime has not been proven;

5) a verdict of acquittal has been issued by the jury of the defendant.

The decision on the case of an acquittal, regardless of which of the listed grounds it took place, means the complete innocence of the defendant in the act incriminated to him.

Types of conviction. When issuing a guilty verdict in a case, the court, depending on the gravity of the crime committed, the nature and characteristics of the personality of the defendant, the presence or absence of mitigating and aggravating circumstances, as well as other circumstances that are important for resolving the issue of punishing the defendant found guilty, has the right to decide the sentence ( part 5 of article 302 of the Code of Criminal Procedure): 1) with the appointment of a sentence to be served by the convict; 2) with the appointment of punishment and release from serving it; 3) without sentencing. In cases where the grounds for termination of a criminal case or criminal prosecution are established during the trial, as provided for in paragraphs. 1 and 2 h. 1 tbsp. 24 and pp. 1 and 2 h. 1 tbsp. 27 of the Code of Criminal Procedure (rehabilitating grounds), the court decides an acquittal, and when establishing the grounds provided for in paragraph 3 of part 1 of Art. 24 and paragraph 3, part 1, art. 27 of the Code of Criminal Procedure (non-rehabilitating grounds), - a guilty verdict with the release of the convicted person from punishment. The verdict is set out in the language in which the trial took place. The text of the verdict must be written by one of the judges in clear and understandable terms and signed by all the judges participating in its decision. Corrections in the text of the verdict must be agreed and the reservations signed by all judges in the deliberation room, that is, before the court returns to the courtroom to pronounce the verdict (Article 312 of the Code of Criminal Procedure). As a procedural document, any court verdict in its structure should consist of three components: introductory, descriptive and motivational and resolutive.

The conclusions of the court on all issues to be resolved in the verdict must be motivated and supported by references to relevant evidence. The court must also give reasons why it rejected certain evidence.

59. Special procedure for making a court decision with the consent of the accused with the charge against him

A special procedure for making a court decision with the consent of the accused with the charge brought is regulated by Ch. 40 Code of Criminal Procedure of the Russian Federation. The application of this procedure is possible only if there are certain grounds (Article 314 of the Code of Criminal Procedure): 1) the consent of the accused with the charges brought in full; 2) the will of the accused, expressed in a petition for a verdict without a trial; 3) the commission by the accused of a crime, the punishment for which does not exceed ten years of imprisonment; 4) consent of the public or private prosecutor, the victim. Every base is required. Only a combination of these grounds will allow the court to pass a sentence without a trial. The existence of grounds is not the only prerequisite for the commencement of this special proceeding. The following conditions must also be met: 1) the accused is aware of the nature and consequences of his application; 2) the application was made voluntarily and after consultation with counsel; 3) the petition was filed at the proper stage of the proceedings (Article 315 of the Code of Criminal Procedure) - at the time of familiarization with the materials of the criminal case, about which a corresponding entry was made in the protocol of familiarization with the materials of the criminal case; at a preliminary hearing, when it is mandatory under Art. 229 Code of Criminal Procedure. The legal guarantee of compliance with these conditions is the obligatory consultation of the accused with the defense counsel. Moreover, if the defender 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).

The court session is held with the obligatory participation of the defendant and his counsel. Consideration of the defendant's petition for passing judgment without holding a trial begins with the presentation by the public prosecutor of the charge brought against the defendant, and in criminal cases of private prosecution, with the presentation of the charge by the private prosecutor. The judge asks the defendant whether he understands the prosecution, whether he agrees with the prosecution and whether he supports his petition for sentencing without trial, whether this petition was made voluntarily and after consultation with the defense counsel, whether he understands the consequences of passing the sentence without trial. 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 it, provided for in Ch. 43 Code of Criminal Procedure.

60. Peculiarities of Proceedings at the Justice of the Peace

Proceedings before a justice of the peace, depending on the jurisdiction (Article 31 of the Code of Criminal Procedure), are possible in two types: proceedings in cases of private prosecution; proceedings in cases filed with an indictment. Cases of the first category constitute special proceedings in the criminal process, while cases of the second category are carried out according to general rules. Features of cases of the second category are: the procedure for appeal - appeal; terms of the meeting - the trial must be started no earlier than 3 and no later than 14 days from the date of receipt of the application or criminal case by the court.

Criminal cases on crimes specified in Part 2 of Art. 20 of the Code of Criminal Procedure (cases of private prosecution), are initiated against a specific person by submitting an application to the court by the victim or his legal representative. A criminal case is initiated by the investigator, as well as with the consent of the prosecutor, by the inquirer in cases where this crime has been committed against a person who, due to a dependent or helpless state or for other reasons, cannot protect his rights and legitimate interests. The involvement of a prosecutor in a criminal case does not deprive the parties of the right to reconciliation. At the request of the parties, the justice of the peace has the right to assist them in collecting such evidence that cannot be obtained by the parties on their own. If there are grounds for scheduling a court session, the justice of the peace, within 7 days from the date of receipt of the application to the court, summons the person against whom the application was filed, acquaints him with the materials of the criminal case, hands over a copy of the filed application, explains the rights of the defendant in the court session, provided for in Art. 47 of the Code of Criminal Procedure, and finds out who, in the opinion of this person, should be called to court as witnesses for the defense, about which a signature is taken from him. If the person in respect of whom the application is filed fails to appear in court, a copy of the application explaining the rights of the defendant, as well as the conditions and procedure for reconciliation of the parties, is sent to the defendant.

Judicial proceedings must be initiated no earlier than 3 and no later than 14 days from the date of receipt of the application or criminal case by the court. Consideration of an application in a criminal case of private prosecution may be combined into one proceeding with consideration of a counter-application. Connection of statements is allowed on the basis of a decision of the justice of the peace before the start of the judicial investigation. The prosecution in the court session is supported by a private prosecutor. The judicial investigation in criminal cases of private prosecution begins with the statement of the application by the private prosecutor or his representative. The prosecutor may change the charge, if this does not worsen the situation of the defendant and does not violate his right to defense, and also has the right to withdraw the charge. The verdict of the justice of the peace may be appealed by the parties within 10 days from the date of its announcement on appeal.

61. Jury proceedings

The Constitution of the Russian Federation (Article 123) provides that legal proceedings in certain categories of cases may be carried out by a court with the participation of jurors. The jury trial considers criminal cases on the most serious crimes that are referred to the jurisdiction of the supreme court of the republic, territory, region (clause 2, part 2, article 30, part 3, article 31 of the Code of Criminal Procedure). The jury has the right to consider a criminal case only at the request of the accused, which he must declare upon completion of the preliminary investigation and presentation of all the materials of the criminal case for familiarization (Article 30 of the Code of Criminal Procedure). The preliminary hearing and trial by jury are based on the adversarial principle. The participation of the defense counsel and the public prosecutor is obligatory.

The jury reaches a decision in the form of a verdict that answers three basic questions: 1) whether it has been proven that the act in question took place; 2) whether it is proved that this act was committed by the defendant; 3) whether the defendant is guilty of this act. After the announcement of the verdict, the jury is dissolved and the trial continues without the participation of the jurors, although they may remain in the courtroom if they wish.

The parties to the process are given the opportunity to examine evidence that is not subject to examination with the participation of jurors, and to speak on issues related to the legal consequences of the verdict, including the issues of qualifying the deeds of the defendant, sentencing him and resolving a civil suit. The parties are prohibited in their speeches to question the correctness of the jury's verdict. The defense counsel of the defendant and the defendant always speak last.

Discussion of the consequences of the jury verdict is an independent stage of the trial, which is divided into five parts: 1) preparatory part; 2) judicial investigation; 3) debate of the parties; 4) last word of the defendant; 5) sentencing. When the jury passes a verdict on the complete innocence of the defendant in custody, he is immediately released from custody in the courtroom by order of the presiding judge. A guilty verdict is also binding on the judge and the parties. The trial by jury ends with one of the following decisions: 1. Decree to terminate the case. 2. A verdict of not guilty in the case when the jury gave a negative answer to at least one of the three main questions, or when the presiding judge recognized the absence of corpus delicti in the act. 3. A guilty verdict with the imposition of punishment, without the imposition of punishment, with the imposition of punishment and release from it. 4. Resolution on the dissolution of the jury and the direction of the criminal case for a new trial by a different composition of the court. 5. Termination of the consideration of the criminal case in connection with the established insanity of the defendant.

62. Proceedings in a court of second instance

Proceedings in the court of second instance - activities regulated by law on appealing and protesting court decisions that have not entered into legal force. In accordance with the requirements of the Code of Criminal Procedure, court decisions that have not entered into legal force may be appealed by the parties in an appeal or cassation procedure. This appeal constitutes proceedings in the second instance. The deadline for this appeal is 10 days from the date of pronouncement of the verdict, and for convicted persons held in custody - within the same period from the date of delivery of a copy of the verdict to him. The purpose of criminal proceedings in the second instance is to verify the legality, validity and fairness of the sentence and other court decision. Depending on the judicial level considering the criminal case at the first instance, proceedings in the court of the second instance are possible in two types: in cassation and appeal. IN appeal complaints and submissions against sentences and decisions issued by magistrates that have not entered into legal force are considered. AT cassation complaints and submissions against decisions of the courts of the first and appellate instances that have not entered into legal force are considered.

Limits of powers of the second instance: 1. The court considering the criminal case in the appellate or cassation procedure checks the legality, validity, fairness of the verdict and other judicial decision. At the same time, the court checks the legality, validity and fairness of the judgment only in the part in which it is appealed. If, during the consideration of a criminal case, 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. 2. When considering a criminal case in cassation, the court has the right to mitigate the punishment for the convicted person or apply the criminal law on a less serious crime, but is not entitled to increase the punishment, as well as apply the criminal law on a more serious crime. 3. Determinations or rulings issued in the course of judicial proceedings are not subject to appeal in the appellate or cassation procedure: 1) on the procedure for examining evidence; 2) on the satisfaction or rejection of the petitions of the participants in the trial; 3) on measures to ensure order in the courtroom, with the exception of rulings or decisions on the imposition of a monetary penalty.

Cassation (appeal) grounds - grounds, the presence of which is a prerequisite for the cancellation or change of the court decision of the first instance. Grounds for annulment or change of sentence: 1) inconsistency of the conclusions of the court, set out in the verdict, with the actual circumstances of the criminal case; 2) violation of criminal procedure law; 3) misapplication of criminal law; 4) unfair verdict.

63. The concept, tasks and significance of the stage of execution of the sentence

Execution of the sentence - the activities of the court regulated by the procedural law with the participation of other subjects of the criminal process; civil and legal persons on the appeal of the sentence for execution, control over its execution, consideration of issues related to the enforcement of the sentence, as well as the direct execution of some sentences. The significance of the stage of execution of the sentence lies in the fact that it is at this stage that, firstly, procedural actions are performed that ensure the beginning and actual implementation of the decisions contained in the sentence; secondly, various issues that arise during the execution of the sentence are resolved, which contributes to the effective application of criminal punishment for the correction of convicts; thirdly, considering in court sessions the submissions of institutions and bodies executing punishments (on changing the type of correctional institution, release from punishment due to illness, parole from punishment, etc.), petitions and statements of convicts (for example, on deferment execution of a sentence, removal of a criminal record), the court exercises control over the course of execution of sentences. The verdict enters into legal force after the expiration of the period for appeal or cassation appeal or protest, if it has not been appealed and protested (Article 390 of the Code of Criminal Procedure). In the event of a cassation appeal or protest, the sentence, unless it is revoked, enters into force after the consideration of the case by a higher court. Exclusivity, obligatoriness, enforceability are the properties of a court decision that has entered into legal force. The stage of execution of the sentence ends after the commission of procedural actions and the resolution of all procedural issues that may arise during the execution of the sentence. At the same time, the stage of the execution of the sentence in its content and terms does not coincide with the execution of the punishment. These institutions are regulated by various branches of law (the stage of execution of a sentence - criminal procedure, the execution of punishment - penitentiary) and exist in the legal system in parallel. Execution of sentence orders and other judicial decisions is carried out in accordance with the norms of the Criminal and Penitentiary Codes.

The content of the stage of execution of the sentence - criminal procedural activity of the court on: a) the appeal of the sentence for execution; b) control over the execution of the sentence; at) direct execution of acquittals or sentences that release the defendant from punishment in the form of his immediate release from custody in the courtroom; d) resolution of issues related to the execution of the sentence. When executing sentences in specific cases, some of the listed actions may be absent.

64. The procedure and terms for the appeal of the sentence, ruling and decision for execution

Execution of the sentence consists in the commission by the bodies of the penitentiary system of actions that are necessary in order to be able to begin the execution of the punishment, and in the actual implementation of the punishment, as well as other decisions contained in the verdict. This activity is regulated by criminal-executive law.

Execution of the sentence - criminal procedural activity, consisting in the direction by the judge or the chairman of the court of a written order on the execution of the judgment, which is sent along with a copy of the verdict and other necessary documents to the body that is entrusted with the duty to enforce it. Direct enforcement of the sentence by the court is carried out when the defendant is acquitted. In these cases, the court immediately releases the defendant in custody in the courtroom. A verdict that has entered into legal force shall be applied for execution by the court that passed the verdict no later than three days from the date of its entry into legal force or the return of the case from the cassation instance. Appeal to the execution of the sentence, ruling and decision of the court is assigned to the court that passed the sentence. The order for the execution of the sentence shall be sent by the judge or the chairman of the court, together with a copy of the sentence, to the body responsible for the execution of the sentence. If a person sentenced to deprivation of liberty is held in custody, then the order for the execution of the sentence is sent to the administration of the place of detention, i.e., to the pre-trial detention center of the GUIN of the Ministry of Justice of the Russian Federation, and if this person is not held in custody, to the internal affairs body at his place of residence.

In the event of a conditional conviction or a suspension of the execution of a sentence to deprivation of liberty, an order, a copy of the sentence are sent to the penitentiary inspectorate of the Main Directorate of the Ministry of Justice of the Russian Federation. When a person is sentenced to corrective labor, these documents are sent to the penitentiary inspection at the place of work of the convict. For the execution of a sentence on imposing a fine, confiscation of property and other property penalties, the court issues writ of execution and transfers them to the bailiff at the place of residence (work) of the convicted person or at the location of his property. In order to increase the educational impact, a copy of the verdict on its entry into legal force is sent, if necessary, by the court that passed the verdict to the place of work, study or residence of the convicted person. The control of the court over the execution of the sentence consists in the fact that it is obliged to inquire about the actual execution of it, as well as about the behavior of the probationer. In turn, the bodies executing the sentence are obliged to immediately notify the court of the execution of the sentence and of the place where the convicted person is serving the sentence.

65. Procedural issues decided by the judge at the stage of execution of the sentence

Issues related to the execution of the sentence, the judge resolves alone in the court session.

At the stage of execution of the sentence, the court resolves the following issues: on the postponement of the execution of the sentence; on exemption from punishment due to illness or disability; on parole and replacement of the unserved part of the sentence with a milder one; on changing the conditions of detention of persons sentenced to deprivation of liberty; on the replacement of one type of punishment by another; on the offset of the time spent in a medical institution in the term of serving the sentence; on the execution of a sentence in the presence of other unexecuted sentences, etc. (Articles 397, 398, 400 of the Code of Criminal Procedure).

Article 396 of the Code of Criminal Procedure determines the jurisdiction of issues resolved at the stage of execution of the sentence. Procedural issues can be resolved by four courts, depending on the territorial jurisdiction:

1) at the place where the sentence was passed (by the court that delivered the sentence);

2) at the place of serving the sentence;

3) at the place of residence of the convict.

4) at the place of detention of the convicted person.

Issues related to the execution of the sentence are considered by the court on the proposal of the institution or body executing the sentence, or at the request of the convicted person.

The procedure for resolving issues. A representative of the institution or body executing the punishment is summoned to the court session, on whose recommendation the issue related to the execution of the punishment is resolved. If the question concerns the execution of a sentence in part of a civil claim, then the civil plaintiff and the civil defendant may be summoned to the court session.

If the convict participates in the court session, he has the right to get acquainted with the materials submitted to the court, participate in their consideration, file petitions and challenges, give explanations, submit documents. The decision on the participation of the convict in the court session shall be taken by the court. The convict may exercise his rights with the help of a lawyer.

The court session begins with a report by the representative of the institution or body that filed the submission, or with an explanation from the applicant. Then the submitted materials are examined, the explanations of the persons who appeared at the court session, the opinion of the prosecutor are listened to, after which the judge makes a decision. A complaint or presentation may be filed against a court ruling issued in resolving issues related to the execution of a sentence.

66. The concept and grounds of proceedings for the revision of sentences, rulings and court decisions that have entered into legal force

Types of proceedings for the revision of sentences, rulings and court decisions that have entered into force (Chapters 48, 49 of Section 15 of the Code of Criminal Procedure): proceedings in the supervisory instance; resumption of criminal proceedings due to new or newly discovered circumstances. Proceedings due to new or newly discovered circumstances and supervisory proceedings have a number of common features. In both procedures, court decisions that have already entered into force are reviewed. A common task is to verify the legality and validity of sentences, rulings and rulings in order to exclude judicial errors and ensure the establishment of the truth. The resumption of proceedings due to new or newly discovered circumstances and the consideration of cases by way of supervision is carried out by the same judicial instances: the presidiums of regional and corresponding courts, the Judicial Collegium for Criminal Cases, the Military Collegium and the Presidium of the Supreme Court of the Russian Federation. An exception applies only to the decisions of justices of the peace. The verdict (decree) of the justice of the peace, which has entered into legal force, is considered by the presidium of the regional and corresponding courts by way of supervision. The resolution of the issue of resuming the case of the justice of the peace is within the competence of the judge of the district court. However, there are significant differences between these stages, which in their totality determine their independence.

First of all, they concern the grounds for reviewing decisions that have entered into legal force.

The grounds for the annulment or modification of sentences, rulings and resolutions that have entered into legal force in a supervisory procedure follow from the available materials of the criminal case (Articles 409, 410 of the Code of Criminal Procedure). Therefore, the production of investigative actions to establish them is unacceptable. The right to appeal a sentence, ruling, court order that has entered into legal force in accordance with Art. 402 of the Code of Criminal Procedure are convicted, acquitted, their defenders or legal representatives, the victim, his representative. The right of appeal is exercised in the form of petitions of these participants, referred to as supervisory complaints. The prosecutor also has the right to petition for a review of a sentence, ruling, or court order that has entered into legal force. The procedural form of the prosecutor's petition is a supervisory submission. For the resumption of proceedings in view of new or newly discovered circumstances, the basis may be new or newly discovered circumstances (facts, materials), which, as a rule, are not seen from the materials of the case being checked:

1) newly discovered facts - circumstances that existed at the time the sentence or other court decision entered into force, but were not known to the court;

2) new circumstances - circumstances unknown to the court at the time of the judgment, eliminating the criminality and punishability of the act.

67. Procedure for the review of sentences, rulings and court decisions that have entered into legal force

Proceedings in the supervisory instance consist of the following stages: 1. Filing a supervisory complaint or supervisory submission. 2. Consideration by the court of the supervisory instance of the complaint, protest within 30 days from the date of receipt of the complaint and the adoption of a decision on the need for supervisory proceedings. 3. Consideration of cases in the supervisory order. 4. Making a decision. The procedural form of the decision is a decision or a definition. As a result of consideration of a criminal case, the supervisory instance court has the right to: 1) leave the supervisory complaint or presentation unsatisfied, and the challenged judicial decisions remain unchanged; 2) annul the verdict, ruling or ruling of the court and all subsequent court decisions and terminate the proceedings in this criminal case; 3) cancel the sentence, ruling or decision of the court and all subsequent court decisions and transfer the criminal case for a new judicial review; 4) cancel the verdict of the court of appeal and transfer the criminal case for a new appeal; 5) cancel the decision of the court of cassation and all subsequent court decisions and transfer the criminal case for a new cassation trial; 6) amend the verdict, ruling or ruling of the court.

Proceedings in view of new or newly discovered circumstances:

1. Initiation of production. The reason for initiating proceedings is the statements of citizens, reports of institutions, enterprises, organizations and officials about the likely presence of newly discovered circumstances, according to which the court decision adopted in a criminal case (in the opinion of the person who reported it) should be reviewed. The prosecutor has the right to initiate proceedings on his own initiative.

2. Checking the circumstances. Each of the newly discovered circumstances is subject to verification. The prosecutor checks these circumstances or instructs the investigator to do so. If there is sufficient data in the message indicating the existence of the circumstances specified in paragraph 3 of part 4 of Art. 413 of the Code of Criminal Procedure, the prosecutor initiates proceedings due to new circumstances. After that, it is not a check, but an investigation of these circumstances.

3. Resolution by the court of the supervisory instance of the issue of resuming the proceedings in a criminal case. Having considered the conclusion of the prosecutor on the resumption of proceedings in the criminal case due to new or newly discovered circumstances in the court session, the court makes one of the following decisions: on the annulment of the sentence, ruling or court order and the transfer of the criminal case for a new trial; on the annulment of the sentence, ruling or decision of the court and on the termination of the criminal case; to reject the prosecutor's opinion.

68. Features of criminal proceedings against minors at the stage of preliminary investigation

Features of criminal proceedings against minors at the stage of preliminary investigation: 1. If a minor participated in the commission of a crime together with adults, then in accordance with Art. 422 of the Code of Criminal Procedure, the investigating body has the right to separate the case about him into a separate proceeding. 2. The subject of proof consists of the circumstances to be established in a criminal case in accordance with Art. 73 Code of Criminal Procedure and art. 421 Code of Criminal Procedure. Such circumstances include: the age of the minor, date, month, year of birth; the conditions of his life and upbringing, the level of mental development and other personality traits of the minor; influence on minor older persons; in the presence of data indicating a lag in psychological development that is 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. 3. Double representation of the interests of a minor - by a defender and a legal representative. In accordance with Art. 51 of the Code of Criminal Procedure, the participation of a defense counsel is mandatory if the suspect, the accused is a minor. 4. The procedure for interrogating a minor, the rules for which are formulated in Art. 428 Code of Criminal Procedure. They boil down to the following: interrogation of a minor suspect, accused cannot continue without a break for more than two hours, and in total more than four hours a day; during the interrogation of a minor suspect, the participation of a defense lawyer is mandatory, who has the right to ask him questions, and at the end of the interrogation, to get acquainted with the protocol and make comments on it; in the interrogation of a minor suspect, an accused who has not reached the age of sixteen, as well as who has reached this age, but has been recognized as mentally retarded, the participation of a teacher or psychologist is mandatory. 5. In accordance with Part 2 of Art. 108 of the Code of Criminal Procedure for a minor suspected or accused, detention as a measure of restraint is applied if he is suspected or accused of committing a grave or especially grave crime. 6. The law provides for a special measure of restraint, which applies only to juvenile accused, - placing under the supervision of parents, guardians, trustees or other trustworthy persons, as well as officials of the administration of a specialized children's institution in which he is located. 7. In accordance with Art. 427 of the Code of Criminal Procedure, a special type of termination of a criminal case is provided for a minor - termination of criminal prosecution against a minor in the course of a preliminary investigation using a compulsory measure of educational influence.

69. Features of proceedings in criminal cases against minors

In court, proceedings in cases involving minors are carried out in accordance with the general procedure established by part 3 of the Criminal Procedure Code "Judicial Proceedings" (Chapter 33-39 of the Code of Criminal Procedure). However, special rules must be followed here. One of the features is that the consideration of a criminal case against minors possible in closed session (Clause 2, Part 2, Article 241 of the Code of Criminal Procedure). This rule is aimed at reducing the psycho-traumatic impact of the trial on a minor and ensuring the individualization of the trial, one of the most important requirements of juvenile justice. However, in this case, the general rule established by Part 7 of Art. 241 of the Code of Criminal Procedure that the verdict must be pronounced in open session.

The next feature concerns the participation of legal representatives. (Article 428 of the Code of Criminal Procedure). At the court session, as well as at the stage of the preliminary process, the legal representative is an active participant in the process. He is endowed with broad rights, which allows him (along with the defender) to actively represent and protect the interests of a minor. Legal representatives have the right to participate in the examination of evidence during the judicial investigation, to testify, to present evidence, to file motions and challenges, to file complaints against the actions and decisions of the court, to participate in a court session considering cases in the appellate, cassation and supervisory procedures. At the same time, if there is reason to believe that his actions harm the interests of a minor defendant or are aimed at obstructing the objective consideration of the case, motivated by the ruling (decree) of the court, he may be removed from participation in the trial. In this case, another legal representative of the minor defendant is allowed. Another feature is related with the presence of a minor in the courtroom (Article 429 of the Code of Criminal Procedure). At the request of the parties or at the initiative of the juvenile himself, the defendant may be removed from the courtroom for the duration of the investigation of circumstances that may have a negative impact on him. At the same time, the court is obliged to inform the juvenile defendant in sufficient volume of the content of the proceedings that took place in his absence. There are peculiarities concerning the final stage of the proceedings related tojudgment and pronouncement of judgment. When passing a sentence on a minor, the court, along with the issues that are mandatory for trial (Article 299 of the Code of Criminal Procedure), is obliged to decide three more: the issue of the possibility of probation, on imposing a sentence not related to deprivation of liberty, and also on release from punishment in cases provided for in Art. 92 of the Criminal Code of the Russian Federation.

70. Grounds for the application of compulsory medical measures

Grounds for the application of coercive measures medical nature:

1) commission of an act prohibited by criminal law;

2) a state of insanity or a mental disorder that makes it impossible to impose a punishment or carry it out;

3) a mental disorder of a person associated with a danger to him or other persons or the possibility of causing them other significant harm.

Features of proceedings related to the use of compulsory medical measures are defined in the norms of Ch. 51 Code of Criminal Procedure. 1. The peculiarity lies in the fact that in cases of socially dangerous acts of the insane, as well as the crimes of persons who fell ill with mental disorders after the commission of a crime, a preliminary investigation is mandatory. 2. During the preliminary investigation, the following circumstances must be clarified: time, place, method and other circumstances of the commission of a socially dangerous act; whether an act prohibited by criminal law has been committed by this person; the nature and amount of damage caused by the socially dangerous act; the person who committed a socially dangerous act had mental illness in the past, the degree and nature of mental illness at the time the socially dangerous act was committed and by the time the case was investigated; whether the person's mental disorder is associated with a danger to him or others or the possibility of causing significant harm to them. 3. The peculiarity concerns the mandatory production of an examination to establish the mental state of a person, the presence of mental disorders, when doubts arise about his sanity or ability to be aware of his actions or manage them at the time of the proceedings. 4. The peculiarity is connected with the obligatory presence of a defense counsel, who is allowed to participate in the case from the moment the forensic psychiatric examination is appointed to the suspect or the accused.5. Feature consists in the fact that if in a criminal case on a crime committed in complicity it is established that one of the accomplices committed an act in a state of insanity or that one of the accomplices developed a mental disorder after the commission of the crime, then the criminal case against him can be allocated to a separate proceeding in the manner prescribed by Art. 154 Code of Criminal Procedure. 6. Feature associated with the completion of the investigation. At the end of the preliminary investigation, the investigator issues a decision:

1) on the termination of the criminal case - on the grounds provided for in Art. 24 and 27 of the Code of Criminal Procedure;

2) on the termination of the criminal case in cases where the nature of the committed act and the mental disorder of the person are not associated with danger to him or other persons or the possibility of causing them other significant harm;

3) on sending the criminal case to court for the application of a compulsory measure of a medical nature.

71. Features of criminal proceedings in relation to certain categories of persons

The establishment of a special procedure is aimed at creating a system of guarantees for activities, as well as the inviolability of a special category of persons. In accordance with Art. 447 of the Code of Criminal Procedure, persons to whom a special procedure for criminal proceedings is applied are:

1) a member of the Federation Council and a deputy of the State Duma, a deputy of a legislative (representative) body of state power of a subject of the Russian Federation, a deputy, a member of an elected body of local self-government, an elected official of a local self-government body;

2) a judge of the Constitutional Court of the Russian Federation, a judge of a federal court of general jurisdiction or a federal arbitration court, a justice of the peace and a judge of a constitutional (charter) court of a constituent entity of the Russian Federation, a juror or an arbitrator during the period of administration of justice by him;

3) Chairman of the Accounts Chamber of the Russian Federation, his deputy and auditors of the Accounts Chamber of the Russian Federation;

4) Commissioner for Human Rights in the Russian Federation;

5) the 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;

6) prosecutor;

7) investigator;

8) lawyer.

The procedure for criminal proceedings in relation to these persons is established by the general rules of procedure in the Russian Federation with exceptions provided for in Ch. 52 of the Code of Criminal Procedure and separate norms in the General Part of the Code of Criminal Procedure.

The special procedure for proceedings, as a general rule, applies to these persons only for the period of state in the specified position, with the exception of the President of the Russian Federation. The law specifically stipulates the extension of special proceedings to a juror or arbitrator for the period of administration of justice by him.

Features of criminal proceedings in relation to certain categories of persons determine the features of pre-trial proceedings. Among the features of pre-trial proceedings, it is necessary to highlight: features of initiating a criminal case and bringing a person as an accused; features of detention; features of preventive measures; features of the termination of a criminal case; particularities of bringing the case to court.

The peculiarity of pre-trial proceedings in relation to a person classified as a special category lies primarily in the subject of decision-making in a criminal case. Decisions are made at two levels: at the level of the prosecutor's office, at the level of the body whose employee is the person held accountable. The peculiarity of judicial proceedings is determined mainly by jurisdiction.

72. The procedure for the interaction of courts, prosecutors, investigators and bodies of inquiry with the relevant competent authorities

In the implementation of international legal assistance, certain legal relations arise between its participants. These are legal relations between the law enforcement agencies of the requesting and requested parties; between the law enforcement agencies of the requested party and persons in respect of whom orders for legal assistance are being executed; between institutions of the requested party executing legal aid assignments. With regard to specific cases of international legal assistance in the framework of the Russian criminal process, these are legal relations between the central law enforcement agencies of Russia, which are authorized to request and accept requests for legal assistance from the relevant departments of foreign states (under current legislation - the consular department of the Ministry of Foreign Affairs of the Russian Federation, according to existing practice - the Prosecutor General's Office Russian Federation and the Ministry of Justice of the Russian Federation); legal relations between the central law enforcement agencies of Russia and the relevant law enforcement agencies that receive orders for legal assistance or need it due to the circumstances of the criminal cases they are investigating or considering in court.

What principles guide the subjects of these legal relations? Primarily universal principles of international law: 1) observance of the sovereignty of the country with which this country enters into legal relations on international legal assistance; 2) non-interference in the internal affairs of the country with which this country is connected by legal relations of international legal assistance. This means the prohibition of interference by each of the countries in the competence of the law enforcement body providing or receiving the requested legal assistance; 3) the principle of reciprocity. It is confirmed by a written obligation of a foreign state to provide legal assistance to the Russian Federation in the performance of certain procedural actions received by the Supreme Court of the Russian Federation, the Ministry of Foreign Affairs of the Russian Federation, the Ministry of Justice of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the Federal Security Service of the Russian Federation, the Federal Tax Police Service of the Russian Federation or the General Prosecutor's Office of the Russian Federation . The legal literature lists different types of international legal assistance, which are carried out in the investigation and trial of criminal cases. This is help in the form: 1) carrying out separate investigative actions; 2) summoning a witness, victim, expert, civil plaintiff, civil defendant, their representatives, who are outside the territory of the Russian Federation, to carry out investigative actions; 3) the extradition and transfer of persons whom the requesting party considers to have committed a crime; 4) serving a sentence, which is provided for in the state of his citizenship; 5) transfer of criminal case materials for criminal prosecution outside the Russian Federation; 6) implementation of criminal prosecution and (or) initiation of a criminal case on the territory of the Russian Federation.

73. Extradition of a person for criminal prosecution or execution of a sentence

Extradition - the extradition of a criminal. Here, international legal assistance aims to assist the requesting state in exercising its right to convict and punish those who violate its laws. The very term "extradition" indicates that this type of legal assistance consists in the transfer of a person from the requested State to the requesting State. If such a request for extradition is received by Russia, then, according to its legislation, the specified act is accompanied by certain conditions. It, according to the Constitution of the Russian Federation, must be regulated by federal law or an international treaty.

In ch. 54 of the Code of Criminal Procedure provides for two types of extradition: at the request of Russia for the extradition of its citizen by a foreign state and at the request of a foreign state for the extradition of a foreign citizen or stateless person located on the territory of the Russian Federation. Due to the different tasks and different legal regime of these types of legal assistance, the law provides for different content of activities.

It should be noted that is common for these types of issuance. First, there are the foundations. The basis for extradition is an international treaty of the Russian Federation with this state or the principle of reciprocity. The extradition of a person on the basis of the principle of reciprocity means that, in accordance with the assurances of the foreign state that sent the request for extradition, it can be expected that in a similar situation, extradition will be carried out at the request of the Russian Federation. Secondly, both types of extradition, like other forms of legal aid, are made upon request.

The request for extradition must contain:

1) the name and address of the requesting authority;

2) the full name of the person in respect of whom the request for extradition is sent, his date of birth, data on citizenship, place of residence or place of stay and other data on his personality, as well as, if possible, a description of the appearance, photograph and other materials that allow identification of the person;

3) a statement of the factual circumstances and legal qualification of the act committed by the person in respect of whom the request for extradition was sent, including information on the amount of damage caused to him, with the text of the law providing for liability for this act, and the obligatory indication of sanctions;

4) information about the place and time of the passing of the verdict, which has entered into legal force, or the decision to bring him in as an accused, with certified copies of the relevant documents attached.

The request for extradition for criminal prosecution must be accompanied by a certified copy of the judge's decision to select detention as a preventive measure. The request for extradition for the execution of the sentence must be accompanied by a certified copy of the sentence that has entered into legal force and a certificate of the unserved term of punishment.

74. Transfer of a person sentenced to deprivation of liberty to serve the sentence in the state of which he is a citizen

Legal assistance in connection with the recognition and execution of sentences of foreign states. This assistance is expressed in the transfer of a person already convicted in one state to another state, where the sentence will be fully or partially executed. The condition for the transfer is that the convict belongs to the citizenship of the country where he is transferred. Accordingly, in this case, the sentence of a foreign state applies to execution. Obviously, here the condition for the transfer of a person is the recognition of the act committed by him as criminal under Russian law. The basis for this type of international legal assistance is the Berlin Convention of 1978 on the transfer of convicted persons and some bilateral treaties of Russia.

The current Code of Criminal Procedure regulates this legal institution as follows. The issue of transfer concerns a person sentenced by a court of the Russian Federation to imprisonment, transferred to serve a sentence in the state of which he is a citizen, as well as a citizen of the Russian Federation sentenced to imprisonment by a court of a foreign state, betrayed to serve a sentence in the Russian Federation.

Transfer grounds persons are an international agreement of the Russian Federation with the relevant foreign state or a written agreement of the Prosecutor General of the Russian Federation with the competent authorities and officials of a foreign state on the basis of the principle of reciprocity. Conditions for the transfer of a person: 1) the transfer of a person convicted in the Russian Federation to serve a sentence in the state of which he is a citizen is allowed before serving his sentence in the form of deprivation of liberty at the request of the convicted person or his representative, as well as at the request of the competent authority of the relevant state with the consent of the convicted person; 2) the transfer of a person can be carried out only after the entry into force of the sentence by decision of the Prosecutor General of the Russian Federation or his deputy, who informs the court that issued the sentence about the transfer.

We recommend interesting articles Section Lecture notes, cheat sheets:

▪ Ethics. Lecture notes

▪ Psychology of work. Crib

▪ Civil law. Parts I, III and IV. Crib

See other articles Section Lecture notes, cheat sheets.

Read and write useful comments on this article.

<< Back

Latest news of science and technology, new electronics:

Artificial leather for touch emulation 15.04.2024

In a modern technology world where distance is becoming increasingly commonplace, maintaining connection and a sense of closeness is important. Recent developments in artificial skin by German scientists from Saarland University represent a new era in virtual interactions. German researchers from Saarland University have developed ultra-thin films that can transmit the sensation of touch over a distance. This cutting-edge technology provides new opportunities for virtual communication, especially for those who find themselves far from their loved ones. The ultra-thin films developed by the researchers, just 50 micrometers thick, can be integrated into textiles and worn like a second skin. These films act as sensors that recognize tactile signals from mom or dad, and as actuators that transmit these movements to the baby. Parents' touch to the fabric activates sensors that react to pressure and deform the ultra-thin film. This ... >>

Petgugu Global cat litter 15.04.2024

Taking care of pets can often be a challenge, especially when it comes to keeping your home clean. A new interesting solution from the Petgugu Global startup has been presented, which will make life easier for cat owners and help them keep their home perfectly clean and tidy. Startup Petgugu Global has unveiled a unique cat toilet that can automatically flush feces, keeping your home clean and fresh. This innovative device is equipped with various smart sensors that monitor your pet's toilet activity and activate to automatically clean after use. The device connects to the sewer system and ensures efficient waste removal without the need for intervention from the owner. Additionally, the toilet has a large flushable storage capacity, making it ideal for multi-cat households. The Petgugu cat litter bowl is designed for use with water-soluble litters and offers a range of additional ... >>

The attractiveness of caring men 14.04.2024

The stereotype that women prefer "bad boys" has long been widespread. However, recent research conducted by British scientists from Monash University offers a new perspective on this issue. They looked at how women responded to men's emotional responsibility and willingness to help others. The study's findings could change our understanding of what makes men attractive to women. A study conducted by scientists from Monash University leads to new findings about men's attractiveness to women. In the experiment, women were shown photographs of men with brief stories about their behavior in various situations, including their reaction to an encounter with a homeless person. Some of the men ignored the homeless man, while others helped him, such as buying him food. A study found that men who showed empathy and kindness were more attractive to women compared to men who showed empathy and kindness. ... >>

Random news from the Archive

Plastic solar panels 08.06.2007

Scientists from the USA have brought the efficiency of plastic solar cells to 6%. Silicon solar cells are good because they convert 12% of the energy of the sunlight falling on them into electricity. However, their production is quite expensive, it cannot be said about the raw materials that it is inexhaustible, and the batteries themselves turn out to be heavy: complex supports must be built for them.

Another thing is the polymer. It is thin, light, it can be synthesized even from oil, even from vegetable raw materials. And he is able to conduct current, and turn light into electricity, if, of course, the polymer is given the correct structure. But here's the problem - the efficiency of polymer solar cells does not exceed 3%. If it were to reach at least 8%, such material could already be used not for pilot plants, but on an industrial scale.

Scientists from Wake Forest University (USA) have made another step towards plastic solar panels, having managed to double the efficiency of a polymer battery - up to 6%. The secret of success is in the light-absorbing layer: nanofibers have been added to it, and they, like veins in a leaf, perfectly redistribute the absorbed energy.

News feed of science and technology, new electronics

Interesting materials of the Free Technical Library:

▪ section of the site Car. Article selection

▪ Article Hospital Therapy. Crib

▪ article Which state is headed by a monarch, elected every five years? Detailed answer

▪ article Rhodiola rosea. Legends, cultivation, methods of application

▪ article Pseudoquadrophonic prefix to UZCH. Encyclopedia of radio electronics and electrical engineering

▪ article Charging with prevention. Encyclopedia of radio electronics and electrical engineering

Leave your comment on this article:

All languages of this page

Home page | Library | Articles | Website map | Site Reviews