Sample petition for reclassification of the actions of the accused and termination of the criminal case

A petition to reclassify a crime is a petition to change the offense and choose a new preventive measure. For the plaintiff, an application for reclassification is the only opportunity to increase the original punishment. For the accused, on the contrary, a petition is a lifeline, a chance for a new classification of the crime and a possible reduction in the sentence. But in order to achieve this goal, it is not enough to simply write and send a petition. If the document is drawn up illiterately, the request for reclassification of the crime will simply be denied.

The key role in preparing and filing a petition for reclassification of the crime is not with the plaintiff or the defendant, but with the lawyer. A specialist in criminal law protects the interests of his client and knows all the nuances of the case, so it will not be difficult for him to quickly, and most importantly, competently prepare a petition for reclassification of the crime.

It turns out that for a successful result (satisfaction of the application for requalification) you need two things: a high-quality evidence base and a good lawyer. And don’t think that this is a difficult task: if you find the second one, you will get the first one! And the R.TIGER service will help you with this, which will become a guide between your problem and its solution.

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If you urgently need to prepare a petition to reclassify a crime, simply click on the banner below, submit your application and wait for offers. And this is what will happen next: you tell the chosen lawyer the whole situation and outline your problem, he will prepare a petition and build a further line of defense. Then all that’s left to do is send an application for requalification to the investigator, prosecutor or court and wait for a decision on the application.

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When is a request to reclassify a crime required?

There are two sides to any litigation. If a crime occurs, the victim and the offender (plaintiff and defendant) immediately appear. The result of the investigation may not suit either one or the other. The plaintiff may feel that the charges filed are too few. To the accused, on the contrary, it is obvious that his offense is not as great as the defendant claims.

If the parties do not agree with the indictment, they have the right to re-qualify the composition of the case by submitting a corresponding petition to the investigator, prosecutor or judge. Reclassification works both for the plaintiff (toughens the charge) and for the defendant (mitigates the preventive measure). The main thing is to attract a good, experienced lawyer who will competently draw up an application for a new qualification. But first things first.

Everything about criminal cases

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ANSWER:

— I don’t see any practical point in fighting qualifications at the investigation stage through complaints. Because it won't bring results.

Overqualification

- whenever there is such an opportunity, the investigation strives to charge the accused with as much as possible:

A)

are charged with the most serious articles of the Criminal Code.

b)

the maximum number of episodes is charged.

- at the same time, already at the stage of bringing charges

it is already clear to the investigation in advance that the charges will be clearly softened at the trial stage - the qualifications will be changed to more lenient articles, some episodes will not be confirmed.

Why is this being done?

- Why does the investigation need this, what is the point?

A)

First of all, this is a safety net against
an acquittal
; the greater the weight of the accusation, the less likely it is to be completely acquitted.

b)

this provides an opportunity for “trading” like “you recognize this episode, and for this reason we soften the qualifications.”
Initial qualification under the most “terrible” articles makes the accused more compliant. Also, the more serious the article, the easier it is to choose such a preventive measure as detention
.

V)

This is beneficial for absolutely everyone:

- it is beneficial for the judge, he gets the opportunity to “show kindness.” That is, “the evil investigator imposed a serious charge, the “good judge” softened the charge. This situation creates a picture of a fair trial that is psychologically convenient for the judge.

- it is beneficial for the lawyer, he gets the opportunity to claim that he has partially “ruined” the case.

Does it make sense to apply for a change in qualifications?

?

— this question can only be answered by studying the situation in a specific case. Because in some cases such a petition will make sense, but in others it will cause harm.

A)

on the one hand, by submitting a petition to the investigator to change qualifications, we receive the following positive aspects:

— we clearly indicate our position, which we will adhere to in the future (in some cases this is exactly what should be done).

— we deprive the court of the opportunity to groan in the future, “Why didn’t you declare this at the investigation stage?” (judges often make such reproaches)

b)

but there is another “side of the coin” here. In a petition to change qualifications, we will have to present our arguments; in fact, we “lay all our cards on the table.” That is, the investigator, the prosecutor - get the opportunity to take countermeasures against these arguments (interrogate witnesses, order another examination), which they would not have done if we had not revealed these “cards”.

That is

: A decision on whether to file such a petition will have to be made individually for each criminal case. Here it is simply impossible to give unambiguous advice: they say, you must submit a petition to the investigator - or, conversely, submit such a petition only in court. What would be a correct defensive move in one case, would be harmful stupidity in another case.

There is no point in appealing qualifications at the investigation stage

Requirements for retraining will most likely be rejected. Neither the judge, nor the prosecutor, nor the investigator simply need this. Moreover, it is even better for the judge if the case comes to him with excessively heavy qualifications, and he passes a sentence with a softening qualification.

If the investigator refuses to satisfy such a request (which is most likely to happen), is it possible to fight this refusal? Answer: you can fight, but is it necessary?

— most often it makes no sense to make such demands, we explain why:

A)

to appeal this decision of the investigator in accordance with Article
124 of the Code of Criminal Procedure
(to the head of the investigative department, the prosecutor), because The investigator usually makes a decision on qualifications with the verbal permission of his superiors, therefore it is useless to complain to them.

b)

It will also not be possible to appeal this decision of the investigator to the court under Article
125 of the Code of Criminal Procedure

- the court will either not accept such a complaint for consideration in accordance with paragraph 3.1

Plenum No. 1 “Actions (inaction) and decisions, the verification of the legality and validity of which falls within the exclusive competence of the court considering the criminal case on the merits, are not subject to appeal under Article
125 of the Code of Criminal Procedure
” (and qualification is precisely within the exclusive competence).

- or, if the court accepts such a complaint for consideration (in practice this happens, the complaint is accepted for consideration - due to the judge’s illiteracy, contrary to the above explanation of the Plenum), then it will refuse it. This can be said with 100% confidence. A judge will never interfere with the competence of an investigator ( clause 3, part 2, 38 of the Code of Criminal Procedure

) and dictate to him how to qualify the actions of the accused.
The judge simply cannot do this; he is expressly prohibited from doing so ( clause 21
of Plenum No. 1).

Change of qualification

- a change in qualifications can be made in court (according to Part 2 252 of the Code of Criminal Procedure

and
paragraph 20
of Plenum No. 55) and this is exactly how it happens most often.

— at the same time, a change in qualifications is possible not only in the court of first instance, but also in appeal ( clause 2, part 1 389.18 of the Code of Criminal Procedure

) and even in cassation (
clause 17
of Plenum No. 19).

Recommended materials

:

Qualification of the crime

(legal assessment), possibility of change

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What can be done at the initial stage?

So, a crime has been committed. The investigator opens a case file, issues a corresponding resolution and begins collecting materials. The main task at the stage of initiating a criminal case is to qualify the offense that has occurred based on the existing characteristics and incriminate the violator with a specific article. Next, the investigator conducts an investigation - interrogates the victim and the accused, all witnesses, compares the facts, and studies the evidence. The result of his work after the stages of initiating a criminal case and pre-trial investigation is an indictment.

Often, investigators increase the severity of the charge in their conclusion and initially charge a more severe charge (which may well be erroneous). But there are also opposite situations, although this is rather an exception. That is why both parties need a professional criminal lawyer - to protect the interests of the client throughout the proceedings, to re-qualify the crime and, therefore, the incriminated article as soon as the indictment is ready.

A request to reclassify an article can be filed throughout the proceedings. The petition is accepted from the moment the investigation begins until the court makes a verdict.

Memo for the plaintiff: the punishment can only be increased at the investigation stage. As soon as the case goes to court, it will no longer be possible to file a petition to reclassify the crime to another, with a more severe preventive measure (Article 10 of the Criminal Code of the Russian Federation). At the trial stage, only a mitigation of the indictment is allowed.

The judge has the right to make a decision on mitigating the sentence on his own, but toughening the punishment is carried out according to special rules. If facts and evidence appear in the case that require changing the measure of restraint to a more severe one, the court sends the case to the prosecutor, who re-examines all the documents and proposes a new classification of the offense.

The lawyer's petition will speed up the investigation

70-year-old Valery Skachkov became a victim in a criminal case two years ago, but the police have not yet found the perpetrators, and hopes that they will be identified and punished according to the law are diminishing every day. Realizing that independent attempts to achieve justice were futile, the pensioner turned to our legal center for help. A team of lawyers began defending the victim at the investigation stage and managed to achieve significant results: law enforcement officers finally confronted the victim and the suspect, and the prosecutor's office and the police are now studying a request to reclassify the criminal case.

“The satisfaction of the request of the team of lawyers of the legal center, sent to the prosecutor’s office and the police, to reclassify the criminal case from Article 161 of the Criminal Code of the Russian Federation “Robbery” to Article 105 “Murder” will lead to its transfer to the Investigative Committee, which will certainly affect the effectiveness of the actions of law enforcement officers,” - says criminal lawyer Alexander Spirichev.

The attack on Valery Skachkov occurred in the fall of 2021. He was returning to his private home after completing a transaction for the sale of a cottage and a car in the amount of five million rubles. In one of the rooms of the house, two unknown men were waiting for him, having entered through the window. They beat the man for several hours and then handcuffed him and left him on the floor.

“The victim was on the verge of death. The attackers, having broken several ribs, pierced his head and damaged his spine, handcuffed him and completely immobilized him, depriving him of the chance to free himself or call for help. In fact, they left the man to die in his own home. Only a day later he was accidentally found by a worker, whom his son had sent to look for his father, who had not been in touch for a long time,” explains criminal lawyer Alexander Spirichev.

According to doctors, a few more hours without medical help and the man could have died. The attackers' goal was money received as a result of the transaction, but the victim did not have it with him. The loot of the robbers was 650 thousand rubles, which the pensioner kept at home. Judging by what the attackers knew about the sale of real estate and a car, they were working on a tip, but they were never able to find the young people.

“Skachkov managed to independently find one of the suspects, but the police, for an unknown reason, were able to conduct a confrontation only after our legal center began representing the interests of the victim. At the same time, the investigators did not eliminate the contradictions between the victim and the suspect, but rather acted as the latter’s lawyers. We insist on reclassifying the criminal case from Article 161 of the Criminal Code “Robbery” to Article 105 “Murder”, which was not completed for reasons beyond the control of the culprit. If this happens, the materials will be transferred to the Investigative Committee, where the work will be carried out much more efficiently. In turn, we will monitor the development of the situation,” says criminal lawyer Alexander Spirichev.

Why is the opportunity to reclassify a crime even available?

Investigation is a dynamic process. When initiating a criminal case, the investigator has the initial signs of a crime (the preliminary charges are qualified based on them) and certain materials. While working with the case, new details appear, new facts are added, and new evidence is discovered. As a result, the assessment of the crime, preliminary qualification and article of the Criminal Code of the Russian Federation are changing.

The investigator is obliged to reclassify the crime after identifying facts that aggravate or remove the charge. But this doesn't always happen. Investigative errors are also common, so both the plaintiff’s and the defendant’s defense attorneys have the opportunity to file a motion to reclassify the crime.

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Why is it so important to have a professional lawyer prepare your petition?

An application to change the corpus delicti cannot be unfounded - all conclusions are supported by specific facts and documentary evidence. The narrative must be logical, formally verified and directly refer to legislative norms. When the petition is drawn up by the applicants themselves (plaintiff, defendant), they include a lot of personal information in the text, which is not always related to the essence of the crime. Let's add to this legal illiteracy, formal errors and the lack of a sufficient legislative framework. The result is a refusal to accept an application or satisfy a request to change the corpus delicti.

Don't be afraid to trust these things to professionals. We are talking about your own interests, and for the accused - about further freedom. Only an experienced lawyer will be able to draw up a petition in such a way that it will not only be accepted, but also considered, and then satisfied.

Petition for requalification from Part 1 of Art. thirty; item “d” part 4 art. 228.1 on part 2 of article 228 of the Criminal Code of the Russian Federation

Investigator of the Investigative Department of the Department of Internal Affairs of Russia for the __________ region of Moscow

Junior Lieutenant of Justice L

From the lawyer of MCA "Legis Group"

­­­­­­­­­­­­­­­­___________________

125047, Moscow, Moscow, 4th Lesnoy lane, no. 4,

4th floor, Business center Lesnaya Plaza, tel.: ______________

in criminal case No. ________, acting in the interests of E, on charges of committing a crime under Part 1 of Art. thirty; item “d” part 4 art. 228.1 of the Criminal Code of the Russian Federation

Petition

on requalification from Part 1 of Art. thirty; item “d” part 4 art. 228.1 to part 2 of article 228

Criminal Code of the Russian Federation

In the proceedings of the Investigative Department of the Department of Internal Affairs of Russia in the _________ district of Moscow, there is a criminal case No. __________, initiated on the grounds of a crime under Part 1 of Art. thirty; item “d” part 4 art. 228.1 of the Criminal Code of the Russian Federation, this composition is incorrectly qualified in violation of the norms of criminal and criminal procedural law in relation to E.

In the protocol of interrogation of the suspect dated January 1, 2014, compiled during the period from 15:00. 30 min. to 16 o'clock 30 min. my client indicated the following: “...I used drugs from 2010 to the present. Most often I use hashish, I also use other drugs such as amphetamine and acid. I use hashish daily, the average dose of hashish consumed per day is 0.6 - 0.8 grams. I use other drugs less often. Also, during my personal search, electronic scales (necessary for me to control the purchase) were confiscated...”

I would like to note that the investigation did not take into account and ignored the words of E, which are indicated in the protocol of interrogation of the suspect dated January 1, 2014.

In the protocol of interrogation of the accused dated January 1, 2014, compiled during the period from 17:00. 30 min. to 19:00 00 min. my client indicated the following: “...His guilt under Part 1 of Art. thirty; item “d” part 4 art. 228.1 of the Criminal Code of the Russian Federation I partially admit, since I was not preparing to sell it to anyone, but acquired it exclusively for personal use. I repent of what I did. According to Part 2 of Article 228 of the Criminal Code of the Russian Federation, I admit my guilt in full...”

Based on the words of my client, which are indicated in the procedural documents, we can conclude that his actions do not fall within and cannot be classified as a crime under Part 1 of Article 30, paragraph “d”, Part 4 of Article 228.1 of the Criminal Code of the Russian Federation, since my client’s actions were not aimed at preparing for the sale of a narcotic substance.

The resolution to bring him as an accused dated February 21, 2014 states: “... in furtherance of his criminal intent, at a time not established by the investigation, but no later than 5:45 p.m. On December 31, 2013, in a place unknown to the investigation, using the electronic scales he had, on which, according to expert conclusion No. 17 dated February 17, 2014, traces of a narcotic drug were found - tetrahydrocannabinol, the active principle of narcotic drugs obtained from the hemp plant and traces of a psychotropic substance - amphetamine, packaged the psychotropic substances he had acquired for subsequent sale”... the traces of narcotic drugs discovered by the expert do not give reason to believe that E. used them to prepare for the sale of narcotic drugs and psychotropic substances.

The seized volume of narcotic drugs and psychotropic substances, as well as electronic scales, based on these facts, it cannot be admitted that the actions of my client were aimed at preparing for the sale of narcotic drugs and psychotropic substances, these are just conjectures of the investigation, which are not confirmed or supported by anything .

In protocol No. K-8-7125(N) dated December 31, 2013, a medical examination to establish the fact of alcohol consumption and intoxication, in conclusion it was established that my client E. was in a state of intoxication caused by cannabinoids, so we can say that he is a person who uses narcotic drugs and the testimony that he gave as a suspect once again confirms that, within the meaning of Article 228 of the Criminal Code of the Russian Federation, the actions of a person related to the illegal possession of narcotic drugs, including keeping them on him for use in for personal purposes, entail liability for illegal storage without the purpose of selling these funds.

The above indicates that, taking into account the fact that the investigation does not have sufficient evidence of my client’s involvement in the preparation for the sale of narcotic drugs and psychotropic substances, the actions of the accused, expressed in the illegal possession without the purpose of sale, of narcotic drugs on a large scale, constitute a crime under Part. 2 tbsp. 228 of the Criminal Code of the Russian Federation.

In accordance with paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2006 N 14 (as amended on December 23, 2010) “On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and toxic substances”, under illegal storage without the purposes of selling narcotic drugs, psychotropic substances or their analogues should be understood as the actions of a person associated with the illegal possession of these drugs or substances, including for personal consumption (keeping with oneself, in a room, a hiding place and other places). It does not matter for how long the person illegally possessed the narcotic drug, psychotropic substance or their analogues.

At the same time, I interviewed friends and acquaintances who personally know E. and not a single person confirms the fact that E. could ever engage in the sale of narcotic drugs and psychotropic substances; on the contrary, they say that E. used drugs. They also indicate that E. was from a wealthy family and did not need additional sources of income.

Considering the above, and guided by Art. 53, 119, 120, Criminal Procedure Code of the Russian Federation,

ASK:

1. Reclassify E's actions from Part 1 of Art. thirty; item “d” part 4 art. 228.1 of the Criminal Code of the Russian Federation on Part 2 of Art. 228 of the Criminal Code of the Russian Federation.
2. If this request is denied, please notify me immediately of the decision.

Lawyer MCA "Legis Group"

____________ ________________ “___” _____________ 2014