Commentary on Article 145 of the Code of Criminal Procedure of the Russian Federation
1. Part 1 of the commented article lists decisions that can be made based on the results of consideration of reports of crimes. This list is exhaustive, and any other movement of received crime reports is impossible. In particular, it is strictly prohibited to write off this information through the office of a law enforcement agency without assessing it from a criminal legal position.
2. Decisions to initiate a criminal case, to refuse to initiate a criminal case and to transfer a message within jurisdiction, and in criminal cases of private prosecution - to the court, are formalized by relevant decisions.
3. The procedure for making a decision to initiate a criminal case is regulated according to Art. 146 and 147 of the Code of Criminal Procedure of the Russian Federation, and refusal to initiate a criminal case - Art. 148 of the Code. When transmitting a message under jurisdiction (Article 151 of the Code of Criminal Procedure of the Russian Federation), the issue of initiating a criminal case or refusing to initiate it is not predetermined. If a statement is received in a criminal case of private prosecution, then it is sent directly to the court, where the criminal case is initiated by the victim himself (Part 1 of Article 318 of the Code of Criminal Procedure of the Russian Federation).
4. The applicant is notified of the decision in any case. If a person does not agree with the decision made to refuse to initiate a criminal case, then he has the right to appeal it to the prosecutor or directly to the court in the manner prescribed by Chapter. 16 of the Code of Criminal Procedure of the Russian Federation.
5. The body of inquiry, the inquiry officer, and the investigator are required to take measures to preserve traces of a crime, regardless of whether a specific criminal case is under investigation by them. This is necessary to ensure the safety of the scene of the incident and create appropriate conditions for successful pre-trial proceedings in a criminal case.
Everything about criminal cases
Go to the text of the Code of Criminal Procedure
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Decisions based on the results of the pre-investigation check
- part 1 145 of the Code of Criminal Procedure
types of decisions based on inspection results:
- Clause 1 Part 1 145 Code of Criminal Procedure
a criminal case is initiated
- clause 2 part 1 145 Code of Criminal Procedure
or refuses arousal
- clause 3, part 1 of 145 Code of Criminal Procedure
or the message is transmitted according to jurisdiction
- clause 3, part 1 of 145 Code of Criminal Procedure
in cases of private prosecution, they are transferred to the magistrate's court
Response to the applicant
- Part 2 145 Code of Criminal Procedure
the applicant is notified of the decision
- Part 2 145 Code of Criminal Procedure
the appeal procedure is explained
- Part 3 145 Code of Criminal Procedure
measures are being taken to preserve traces of the crime
Jurisdiction
- Part 4 145 Code of Criminal Procedure
disputes about jurisdiction are resolved by the prosecutor
Practical aspects
Right of the suspect
for access to pre-investigation materials
Article 145 of the Code of Criminal Procedure. Decisions made based on the results of consideration of a crime report
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- paragraph 49
Order of the Ministry of Internal Affairs No. 736 deadlines for checking reports by the police
- paragraph 37
IC Order No. 72 terms of inspection by the Investigative Committee
1) Based on the results of consideration of a report of a crime, the body of inquiry, the inquiry officer, the investigator, the head of the investigative body makes one of the following decisions:
1). on the initiation of a criminal case in the manner established by 146 Code of Criminal Procedure;
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— 148 Code of Criminal Procedure
refusal to initiate criminal proceedings
2).
refusal to initiate criminal proceedings;
3). on the transfer of a message under jurisdiction in accordance with 151 Code of Criminal Procedure,
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— clause 27.1
Order of the Ministry of Internal Affairs No. 736 transfer of statements on private charges
- paragraph 33
Order of the Investigative Committee No. 72 transfer of statements on private charges
and in criminal cases
of private prosecution to the court in accordance with Part 2 20 of the Code of Criminal Procedure.
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Notice of initiation
- Part 4 146 Code of Criminal Procedure
the applicant is immediately notified of the initiation
- Part 4 146 Code of Criminal Procedure
the suspect is immediately notified of the initiation
Notice of refusal
- Part 4 148 Code of Criminal Procedure
a copy of the refusal to initiate a case within 24 hours to the applicant
- paragraph 53
Order of the Ministry of Internal Affairs No. 736, a copy of the refusal to initiate proceedings within 24 hours for the applicant
Familiarization of the suspect
Right of the suspect
for access to pre-investigation materials
2) The applicant is informed about the decision made.
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Appeal against the initiation of a case
— clause 2
Plenum No. 1 appeal against a specific person
Appeal against refusal to initiate a case
- part 1 125 of the Code of Criminal Procedure
appealing the refusal to initiate criminal proceedings
- paragraph 14
Plenum No. 1 appealing the refusal to initiate a criminal case
Two appeal mechanisms
Two options
appeals: to the court (
125 Code of Criminal Procedure
) or to the prosecutor (
124 Code of Criminal Procedure
)
At the same time, the applicant is explained his right to appeal this decision and the procedure for appealing.
A copy of the decision made in accordance with
paragraph 3 of Part 1 of this article is sent to the prosecutor within 24 hours from the date of its issuance.
3) If the decision provided for in paragraph 3 of Part 1 of this article is made, the inquiry body, interrogating officer, investigator, head of the investigative body takes measures to preserve traces of the crime.
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SITUATIONS from practice
Transfer of the case
from the police department investigator to the investigative committee, where to apply?
4) Disputes regarding the transfer of a report of a crime under jurisdiction in accordance with
paragraph 3 of Part 1 of this article are resolved by the prosecutor within 3 days from the receipt of the relevant appeal.
Return to the text of the Code of Criminal Procedure
Seek advice
Issues of joint management
In some cases, the prosecutor receives messages with questions, the resolution of which falls within both his competence and the competence of the investigative structures. In such situations, consideration and decision-making on the merits is carried out in the relevant prosecutor's offices.
After verification, copies of such appeals or petitions may, if necessary, be sent to investigators/inquirers, including when violations of legal provisions are identified. They are accompanied by acts of prosecutorial response. Applicants must be notified of any actions taken.
Opening of proceedings in the case
In Art. 145 of the Code of Criminal Procedure of the Russian Federation with comments provides information of approximately this kind.
The investigator initiates a case and then accepts it for his proceedings. The resolution with other materials is sent to the prosecutor to verify its legality. The document also bears the signature of the head of the investigation department. If the case is initiated by an inquiry officer, the law requires the consent of the prosecutor; the head of the inquiry does not formally participate in the decision-making process.
Then, if the prosecutor agrees to open the case, the resolution is sent to the interested parties (victim, suspect, civil plaintiff and civil defendant).
Where it all begins
Checks based on statements from citizens and other persons who have received materials about the possible commission of a crime (reports, inspection materials from regulatory authorities) are carried out by operational officers and local police officers.
Check under Art. 144-145 of the Code of Criminal Procedure of the Russian Federation represents the request and study of documents, interviewing persons related to the incident, studying the scene of the incident (where the accident occurred, the body was found, etc.). The updated version of the Code of Criminal Procedure of 2013 also gives the right to order an examination as part of the pre-investigation check.
Regulatory regulation
The Code is the only document regulating the procedure of criminal investigations. Art. 145 of the Code of Criminal Procedure contains a fairly clear description of the results of the actions of authorized persons.
However, there are orders and instructions that supplement or actually replace the law. However, if you continue to refer specifically to the Code of Criminal Procedure, the citizen has a chance to achieve justice.
Transfer of materials to court
The papers are sent to the magistrate at the place where the crime was committed, if we are talking about a private prosecution case.
The determination of the facts is carried out exclusively by the court. There is no preliminary investigation into the case, with the exceptions specified in the law.
The judge, having received the documents, evaluates how they comply with the requirements of the Code of Criminal Procedure and has the right to leave them without movement, giving time to eliminate the shortcomings.
A typical mistake is also made: a local police officer or an operational officer refuses to initiate a case and returns the papers to the applicant indicating the need to go to court.
Please note that returning the materials to the applicant is a more logical option. After all, the statement submitted to the police does not meet the requirements that apply to the court in cases of private prosecution.
Duty to preserve traces
The criminal most often leaves clear traces of the acts he has committed (after a break-in, murder, accident, etc.). Police officers (most often they are the first to appear at a crime scene) are obliged to take measures to preserve them. They guard the scene and call experts who collect materials, video and photograph them.
Employees of operational services collect information about citizens who witnessed the crime, find out their place of residence and contacts.
If a person has suffered from violence, he is sent for examination. The last point concerns private prosecution cases. The examination for the court is then based precisely on the examination report. All collected materials are transferred to the authorized investigative body, which greatly facilitates further work with the case.
Direction according to jurisdiction
Its boundaries determine the competence of the police, the Investigative Committee, and the FSB in the investigation of crimes. According to the law, any body is obliged to accept an application, no matter the reason for filing it. Employees of the relevant authorities do not want to deal with unnecessary work and immediately advise where the papers should be transferred.
If the application was sent by mail or with materials from other bodies in violation of the rules of jurisdiction, a special resolution is issued on the transfer of received materials, in accordance with the jurisdiction. The applicant is informed about the transfer by letter.
If a case arises with double jurisdiction, the decision on which body will handle the investigation is made by the prosecutor.
Deadlines
Redirection of a statement of crime and materials related to it, according to the jurisdiction of the investigative structures of the Investigative Committee of the Russian Federation, is carried out within 24 hours. The applicant must be immediately notified of the actions taken.
If the message has been received by the units of the RF Investigative Committee or other structures carrying out the preliminary investigation, and the materials contain information indicating signs of an unlawful act under investigation by another body, the corresponding part of them is transferred to the prosecutor. He, in turn, makes a decision in accordance with paragraph 12, paragraph 2, part 37 of article 37 of the Code of Criminal Procedure.
Refusal to start production
What does Art mean? 145 of the Code of Criminal Procedure of the Russian Federation in this situation? An operational officer or a local police officer draws up a so-called “refusal” resolution. This document is compiled according to a template. It briefly describes: who filed a statement about the crime, what facts the authorized person established. Explains why there is no reason to consider the claim substantiated.
Let us note that the presentation of facts and references to the law often distort the real picture or are characterized by incomplete descriptions.
Message Accounting
All complaints related to crimes must be registered in the manner specified in the Order of the Prosecutor General No. 212 of 2007 and in the Instructions for record keeping in institutions/bodies of the prosecutor's office.
Accounted messages must be immediately transferred, according to jurisdiction, to the structures authorized to receive, register and make decisions on them. The corresponding resolution of the prosecutor is attached to the appeals.
An appropriate note must be made in the Accounting Book regarding the transfer of information.
