1. After fulfilling the requirement of Article 216 of this Code, the investigator presents the accused and his defense attorney with the filed and numbered materials of the criminal case, except for the cases provided for in part nine of Article 166 of this Code. Material evidence is also presented for review and, at the request of the accused or his defense attorney, photographs, audio and (or) video recordings, filming and other attachments to the protocols of investigative actions. If it is impossible to present material evidence, the investigator makes a decision to this effect. At the request of the accused and his defense attorney, the investigator provides them with the opportunity to familiarize themselves with the materials of the criminal case separately. If several defendants are involved in a criminal case, the sequence of providing them and their defense attorneys with the materials of the criminal case is established by the investigator. 2. In the process of familiarizing with the materials of a criminal case, consisting of several volumes, the accused and his defense attorney have the right to repeatedly refer to any of the volumes of the criminal case, as well as write out any information in any volume, make copies of documents, including using technical funds. Copies of documents and extracts from the criminal case, which contains information constituting state or other secrets protected by federal law, are stored in the criminal case and are provided to the accused and his defense attorney during the trial.
3. The accused and his defense attorney cannot be limited in the time they need to familiarize themselves with the materials of the criminal case. If the accused and his defense attorney, who have begun to familiarize themselves with the materials of the criminal case, clearly delay the time of familiarization with these materials, then on the basis of a court decision made in the manner established by Article 125 of this Code, a certain period is established for familiarizing themselves with the materials of the criminal case. If the accused and his defense attorney, without good reason, have not familiarized themselves with the materials of the criminal case within the time period established by the court, the investigator has the right to decide to end the proceedings of this procedural action, about which he issues an appropriate resolution and makes a note in the protocol of familiarization of the accused and his defense attorney with the materials criminal case.
4. After the accused and his defense attorney have familiarized themselves with the materials of the criminal case, the investigator finds out what petitions or other statements they have. At the same time, it becomes clear from the accused and his defense attorney which witnesses, experts, and specialists are to be summoned to the court hearing for questioning and confirmation of the defense’s position.
5. The investigator explains to the accused his right to petition: 1) for the consideration of a criminal case by a court with the participation of a jury - in the cases provided for in paragraph 1 of part three of Article 31 of this Code. At the same time, the investigator explains the peculiarities of the consideration of the criminal case by this court, the rights of the accused in the trial and the procedure for appealing the court decision. If one or more accused refuses to be tried by jury, the investigator decides to separate the criminal cases against these accused into separate proceedings. If it is impossible to separate a criminal case into separate proceedings, the criminal case as a whole is considered by the court with the participation of a jury; 1.1) on the consideration of a criminal case by a panel of three judges of a federal court of general jurisdiction - in the cases provided for in paragraph 3 of part two of Article 30 of this Code; 2) on the application of a special procedure for judicial proceedings - in cases provided for in Article 314 of this Code; 3) on holding preliminary hearings - in cases provided for in Article 229 of this Code.
Commentary on Article 217 of the Code of Criminal Procedure of the Russian Federation
1. If the accused is kept in custody, then familiarization must begin no later than 30 days before the expiration of the 6-, 12- or 18-month deadline for detention, respectively (Part 5 of Article 109). On the extension of the period of detention to familiarize yourself with the case, see com. to Art. 109.
2. According to part 2 com. articles made by the accused and his defense attorney, copies of documents and extracts from the criminal case, “which contains information constituting state or other secrets protected by federal law, are stored in the criminal case and are provided to the accused and his defense attorney during the trial.” Taking into account the Resolution of the Constitutional Court of the Russian Federation of March 27, 1996 N 8-P in this norm, the word “which” should be understood as “which”, so that there is no disproportionate restriction of the rights and freedoms of man and citizen. Therefore, the investigator does not have the right to confiscate from the accused, including for storage until trial in a criminal case, extracts and copies of documents made in the process of familiarization with the materials of the criminal case that do not affect the information contained in the case that constitutes a state or other secret protected by federal law <1> . For information on types of protected secrets, see com. to part 3 art. 183.
——————————— <1> See: Definition of the Constitutional Court of the Russian Federation of November 7, 2008 N 1029-O-P.
3. Part 3 of this article refers to Art. 125 of the Code of Criminal Procedure, which regulates the judicial procedure for considering complaints, and not the investigator’s petitions. The procedures for considering the latter are regulated by Art. Art. 108 and 165 of the Code of Criminal Procedure, and the extension of the period of detention of the accused to complete his familiarization with the case is carried out in the manner prescribed by Part 4 of Art. 108. It would be advisable to simultaneously resolve the issue of the reason for extending the period - the duration of the familiarization itself. However, the law, directly referring to Art. 125, obliges to use the deadlines provided for by the court for making a decision - 5 days from the moment the materials are received by the court. For other restrictions on the rights of the accused and the defense attorney to familiarize themselves with the case, see com. to part 4 - 5 tbsp. 215.
4. Petitions of the accused and his defense attorney can be addressed to the investigator (then he resolves them) or the court (then they are resolved when the case comes to him). When resolving petitions, the investigator is guided by the requirements of Art. Art. 121 - 122, 159 Code of Criminal Procedure.
5. A request to apply a special procedure for trial must be submitted in the presence of a defense lawyer after consultations with him (Article 51, paragraph 2, part 2, article 314, part 1, article 315 of the Code of Criminal Procedure). Failure to fulfill the obligation to explain to the accused the right to apply for a special trial procedure entails a violation of the accused’s right to defense and is the basis for deciding the issue of returning the criminal case to the prosecutor <1>. For consideration of the case in a special manner, see com. to Art. Art. 314 - 317.
——————————— <1> See paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 2009 N 28 “On the application by courts of the norms of criminal procedural legislation governing the preparation of a criminal case for trial” / / BVS RF. 2010. N 2.
Fight in a dark room
Let's go back a little, to the investigation stage.
Let's get into action. Can not understand anything. The relatives of the detainee want us to come to the investigator as quickly as possible and get acquainted with the case to find out what is there. We explain to them that, with a few exceptions, we cannot find out anything now, we remind everyone of the expression “secret of the investigation” that everyone has heard, and we explain that we will be able to fully familiarize ourselves with the materials of the case only after the investigation is completed.
So we're in a dark room. I can not see anything. On the contrary, our opponent sees everything: the matter is on the table in front of him, and control over the situation is completely in his hands.
How to fight in such a situation? My rule at this stage is “do no harm.” Maximum caution and discretion. After all, we are in a dark, unfamiliar room. Article 51 of the Constitution of the Russian Federation will help us.
However, there is an exception to this rule. It happens that the lights are turned off and you can’t see a thing, but the room is thoroughly familiar. So much so that you don't even need eyes. This is when all the circumstances of the incident are known to us for certain. Everything is known. All the evidence available to the investigator.
In this situation, yes, you can fight in the dark. But in other cases (once again) - caution, prudence, “do no harm”, “measure seven times...” - we move “by touch”.
What does judicial practice show under this article?
The need to become familiar with the procedural papers can be considered using the trivial example of Article 111 of the Criminal Code of the Russian Federation. Citizen Petrov was brought to justice for beating his friend in a dark alley. On the eve of the event, Petrov, the victim and another acquaintance, Lavrov, were drinking alcohol. Lavrov and the accused Petrov quarreled. Lavrov left in a fit of anger and left the accused and the victim alone.
The men, having finished their alcohol, decided to continue the celebration and went to the store. According to the case file, on the way the men quarreled, and the accused beat his comrade half to death, after which he ran away. The materials also contain testimony from witness Lavrov, a third comrade who saw Petrov beating the victim. The accused claims that he did not do this, he allegedly went to the store and left his friend on the street, and when he returned, he was no longer there. Accordingly, he went home, deciding that the holiday was over.
The procedure for interrogating an accused in criminal proceedings and the time limits under the Code of Criminal Procedure, Article 173
In the process of studying the criminal case, the accused, together with his lawyer, identified an inconsistency in the testimony of a witness who initially indicated that he had gone home, but then turned out to be an eyewitness to the incident. The witness lives on the other side of the city, so he physically would not have had time to go home and then return to the scene and notice the fight.
The investigator was informed of the inaccuracies and the witness was interrogated again. During the interview, the investigator identified a lie on the part of Lavrov, who harbored a grudge against Petrov, and thus decided to take revenge on him. Since there was no other strong evidence against Petrov, and the victim did not see the attacker, criminal prosecution against him was stopped, and Lavrov was prosecuted for false denunciation and slander. Thus, a careful study of the case saved a person from punishment for an uncommitted crime.
What decisions can be made under Article 217 of the Code of Criminal Procedure?
Judicial practice in the matter of familiarization with case materials is quite monotonous. All the people who had read the indictment and the evidence base in advance understood the essence of the problem and at the court hearing did everything possible to avoid punishment.
At the same time, people who refused to familiarize themselves with the documents were unable to exercise their legal rights and defend themselves properly at the court hearing, which led to what they considered to be an unlawful verdict and many disputes and appeals.
None of the controlling authorities can deny the legal right of a party to the process to familiarize themselves with the materials of the criminal case. If such a situation exists, it is necessary to file a complaint with higher management.
It should be noted that the accused may refuse to familiarize himself with the case materials; this does not entail any penalties for him, and is not a reason for postponing the trial. The court hearing takes place as usual, just one of the procedural stages is omitted.
Current problems of familiarizing the accused with a criminal case
Familiarization with the case materials makes it possible to assess the comprehensiveness and objectivity of the investigation, as well as determine the completeness of investigative measures. For study by the parties, the materials are submitted ready-made, stitched and numbered. The lawyer, together with the ward, can make extracts from the documents, but taking into account the large volume of papers, this is difficult to do.
That is why the legislator allows copies to be made. In such a resolution lies the first problem. According to the established procedure, copies are made at the expense of the accused or his defense attorney; if there is no photocopier in the place where the case is being studied, or they cannot pay for it, it will not be possible to make a duplicate. Accordingly, the right of the accused is violated in advance when a room is provided for reviewing the papers.
Based on this, it should be noted that it is necessary to expand the possibilities associated with making copies to comply with the rights of the defense. If a lawyer was represented to the accused by the state, then the production of copies is carried out at the expense of the state budget, therefore the investigator himself must provide the desired copies of the documents.
The second, no less important problem is the concept of “delaying” the deadlines for familiarization. For some people, studying a 100-page case file takes several days, while for others it takes a month. Each person captures and processes information in their own way, so it is impossible to draw hasty conclusions about what is happening.
An investigator may perceive a scrupulous study of papers as a deliberate delay in judicial proceedings, and limit the rights of the accused, which in fact is prohibited by the Constitution itself. Due to the ambiguity in the interpretation of the concept of “delaying,” discussions have been ongoing for decades, but so far no solution has been found. The period of review is limited according to the personal opinion of the investigator.
Judicial practice: sentences and punishment under Art. 217 of the Criminal Code of the Russian Federation
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- Decision of the Supreme Court: Resolution No. 310P13 dated... DECISION OF THE PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 310-P13 Moscow January 23, 2014 Presidium of the Supreme Court of the Russian Federation...
- Ruling of the ECtHR dated 02/14/2017 EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION CASE “MASLOVA VS. RUSSIAN FEDERATION” (Complaint No. 15980/12) JUDGMENT…
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- Resolution of the Presidium of the Supreme Court of the Russian Federation dated... PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 5, 2018 N 126-P18 ON RESUMING PROCEEDINGS IN THE CASE DUE TO NEW...
- Decision of the Supreme Court: Determination No. 56-КГ16-46 dated... THE SUPREME COURT OF THE RUSSIAN FEDERATION No. 56-КГ16-46 DETERMINATION Moscow March 6, 2017 Judicial Collegium for Civil Cases of the Supreme Court...
- Decision of the Supreme Court: Determination No. 56-КГ16-46 dated... THE SUPREME COURT OF THE RUSSIAN FEDERATION No. 56-КГ16-46 DETERMINATION Moscow March 6, 2017 Judicial Collegium for Civil Cases of the Supreme Court...
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 17, 2021 N 43 ON SOME ISSUES OF JUDICIAL PRACTICE IN CASES...
Epilogue
— How much do your services cost? - 5 rubles for work during the investigation, then another 5 for work in court. - Yeah, in total you need to have 10 rubles... - Well, yes. - But our investigation is now ending, the final charges have already been brought, the investigator is already going to transfer the case to the court... - Well, then for the investigation it’s not 5 rubles, but 3. - How about 3? For what? The investigation is over... No, come on, when the case is in court, we will only conclude for the trial... It will be 5 rubles, right? - Yes. - (to himself) Well, that’s good, otherwise another 3 rubles for nothing... - (to himself) For nothing?
Saved...
