1. At the request of the victim, civil plaintiff, civil defendant and their representatives, the investigator familiarizes these persons with the materials of the criminal case in whole or in part, with the exception of the documents specified in part two of Article 317.4 of this Code. The civil plaintiff, civil defendant or their representatives familiarize themselves with the materials of the criminal case in the part that relates to the civil claim.
2. Familiarization is carried out in the manner established by Articles 217 and 218 of this Code.
What is the article of the Code of Criminal Procedure about?
Many will agree that a criminal trial is not a very pleasant experience. Even less pleasant is communicating with employees of local courts and other regulatory authorities. Due to ignorance of their rights, many cannot exercise their legal rights, for example, to familiarize themselves with the materials of a criminal case. The materials of each proceeding contain a number of documents that were provided by different parties to the case.
The composition includes such documents as:
- lawsuit;
- proof;
- statements;
- petitions, etc.
Sometimes the “folder” of documents contains interim court decisions, requests from judges in the case, requests from the investigator, as well as expert opinions and protocols drawn up during the investigative process.
When considering civil, administrative and criminal disputes, the case materials can be reviewed by: the plaintiff, the defendant, as well as third parties. The legislator does not limit the number of familiarizations. A request for review can be submitted at least after each addition. Also, the law does not establish specific time limits for reviewing the papers.
There are no grounds for refusal by officials to provide the file for review by people participating in the process. An official who has the case materials in hand cannot give a refusal, citing illness, vacation or employment.
It will be interesting to know that familiarization of the victim with the materials of the criminal case or another participant in the process does not oblige him to submit a written petition. He can study papers even by oral presentation. During the process of reviewing documents, a person can make copies, photograph materials, and also make extracts. The law does not prohibit this. If an investigator or other person prohibits such manipulations, he is violating your constitutional rights.
The right of the victim to familiarize himself with the materials of the criminal case and the rights of other participants in the proceedings are reflected in detail in Article 216 of the Code of Criminal Procedure.
Basic provisions
Many people do not know whether the victim has the right to get acquainted with the materials of the criminal case; accordingly, being lost in conjecture, they miss the opportunity to fully prepare for the court hearing and defend their interests to the fullest. A person who has studied the case materials will be able to present evidence in his defense at the trial, refuting the arguments of his opponents, and will also be able to express his opinion on the papers provided by the other party.
The procedure for familiarizing the accused and his defense attorney with the materials of the criminal case under the Code of Criminal Procedure of the Russian Federation, Article 217
In order to familiarize yourself with the procedural papers, you must submit a petition to the investigator. The list of persons who have the right to review is determined individually for each case. If the investigator for some reason refuses to provide the papers, the appeal can be sent to the prosecutor.
It is important to note that the accused has the right to familiarize himself with the full amount of information contained in the case file, but the victim is not always provided with the full amount of documents. The volume of documents presented to the victim for review is again determined by the investigator.
The civil plaintiff and defendant may familiarize themselves with the materials of the proceedings only in that part that relates to their civil claim. All requests for review sent to the investigator are recorded. A protocol of familiarization with the materials of the victim’s criminal case is drawn up and, ultimately, it is filed with the rest of the materials.
Request for familiarization with procedural papers
Familiarization with the case materials is a very important and necessary procedure, but in most cases it is impossible without a completed petition.
The document can be drawn up according to the approved template:
- The name of the court that is considering the case or the name of the investigator conducting the proceedings.
- Your personal details and address.
- Name of the case you want to study (number).
- Title of the document (centered on the page).
- The main text of the application, where in free form they indicate the desire to study the materials.
- Date of application and signature.
In your application, you can also indicate a request that you be given a date and time for review in advance; accordingly, indicate your telephone number or email. It is recommended to apply not only for review, but also to indicate a request to make copies of the case materials, as this will simplify the work on the information and, if you do not have time to read something in the office, you can continue studying at home.
Taking photographs and making copies also serves as a guarantee that the papers have not been changed during production and nothing new has been added. You can send your application by regular mail, electronic mail, courier, or bring it in person.
Everything about criminal cases
Familiarization with the case is not necessary for the victim
- the victim is not necessarily introduced to the materials of the criminal case (unlike the accused, for whom familiarization is a mandatory procedure).
- in part 1 216 of the Code of Criminal Procedure
It is stated that after the completion of the investigation, the victim is introduced to the case materials only upon a special request (that is, not automatically, but the conscious initiative of the victim is required), that is:
A)
The investigator has no obligation to acquaint the victim with the materials if he has not filed a petition to do so.
b)
in turn, the victim has no obligation to appear to familiarize himself with the case, this is purely his right, provided for in paragraph
12, part 2, 42 of the Code of Criminal Procedure
, do not confuse this right with the obligation to testify, provided for in
paragraph 2, part 5, 42 of the Code of Criminal Procedure
. Do you understand what the difference is? The victim is obliged to appear to give evidence (which you have already done), but the victim is not obliged to appear to familiarize himself with the case.
In practice, the victim is called
- the victim (and civil plaintiff) should know that they may not be familiarized with the case, since the norm of Part 1 216 of the Code of Criminal Procedure
indicates that this is mandatory for the investigator only if they specifically request it.
- in practice, after completing the investigation, investigators almost always call the victims (although, as already mentioned, they are not obliged to do this).
- why do they need this: the fact is that they want to insure themselves against the fact that the victim will complain about a violation of clause 12, part 2, 42 of the Code of Criminal Procedure
, and in the future this may result in the return of the case to the prosecutor due to a violation that limited the rights of a participant in the process (
clause 20
of Plenum No. 19).
- as a former investigator, I can tell you that there is such an internal document that is not included in the case materials (and is not shown to anyone except the authorities) - Investigation plan
criminal case.
This document, in the form of a table, contains an algorithm for the entire course of the investigation of the case, and almost at the very end there is a paragraph “familiarization of the victim with the case materials in accordance with norm 216 of the Code of Criminal Procedure
.
- that is, the investigator carries out, like a machine, everything that is listed in this table, and he may even be punished if he does not fulfill this point (the head of the Investigation Department may be afraid that you will start making a scandal in court, that you were not familiarized with the case, or the prosecutor will decide to “get to the bottom” and return the case back).
What to do to avoid showing up
- advice for you, you need to make it comfortable for everyone. On the one hand, do not create problems for the investigator (threat of being kicked out by management) and on the other hand, so that you do not appear before the investigator. For this:
A)
first, call the investigator and explain in human terms that it is impossible for you to appear. Explain that you have already sent a written statement by mail stating that you do not want to familiarize yourself with the materials. Also ask, maybe in addition to the letter he needs to send a telephone message? (this is in case he is “running on deadlines” and the letter may not have time to reach the date of sending the case to the prosecutor).
b)
immediately, so that the letter has time to arrive, send a written statement, indicating in it that you do not want to get acquainted with the case.
This will be enough, the investigator will have an exculpatory document (explaining that he did not familiarize you with the case not out of negligence, but at your request), which he will attach to the case.
Participation in the further process is also not necessary.
- the victim may also be released from participation in court hearings, the case may be considered without him ( Part 2 249 of the Code of Criminal Procedure
). To do this, write a petition to the court with a request to consider the case without your participation.
— most likely the judge will not insist on your presence. Problems may arise if the defense tries to challenge the testimony of the victim, the fact is that in this case the judge may face a problem when reading out the testimony of the victim, since the consent of all parties to the reading of the testimony is required ( Part 1 281 of the Code of Criminal Procedure
). Then you will have to appear at the trial, although the appearance can be reduced to one visit if you ask to interrogate the victim immediately in one meeting and release him from further participation.
Comments on Article 216 of the Code of Criminal Procedure
Familiarization with procedural papers occurs exclusively on the premises of the court or other regulatory body. Handing out documents is strictly prohibited. Even the familiarization can be carried out under the close supervision of an office worker or investigator. Such stricter rules are conditioned by the exclusion of the fact of substitution of documents or their destruction. The fact of issuing papers for examination is recorded by court staff not only in the protocol, but also in a special journal for issuing court cases.
You can get acquainted with the case throughout the working day. After review or at the end of the working day, the case is given back to the office employee, about which a corresponding note is made.
The case materials are issued not only to the participants in the process for review; the following may request papers:
Terms of preliminary investigation and procedure for their extension
- a prosecutor who has the right to participate in the consideration of the case;
- a lawyer who participates in the consideration of the case;
- other participants in criminal, administrative and civil proceedings, as well as persons who did not participate in the process, but it affects their interests and rights.
The victim and the accused may become familiar with the case upon oral request. The prosecutor does not need to submit a petition; he only needs to present his official identification, the data from which is entered into the protocol. A lawyer who has expressed a desire for acquaintance is required to present a document confirming his authority in a specific case.
Third parties must submit a written request, as well as present identification and a power of attorney of the representative. Persons who do not participate in the procedure and do not have a corresponding official position are required to submit a petition with a resolution of the chairman of the court.
What does judicial practice show under this article?
Unfortunately, it is people’s ignorance of their legal rights that allows attackers to avoid punishment. Familiarization with the procedural papers is a kind of guarantee of compliance with your rights at any stage of the criminal process and trial.
An example of the need for familiarization is a theft situation. The victim in the Ivanov case was summoned to the investigator to familiarize himself with the papers. In the process of studying the case, the victim identified a number of inconsistencies. His signature was forged on the protocol of the inspection of the burglarized premises, and someone else’s signature was also on the protocol of the interrogation of his wife. The protocol, as the victim recalled, was drawn up without his presence at all.
The fact that the criminal was detained was also distorted, the dates and times in the reports did not match, and the case itself was not filed and the pages were not numbered. The victim reported the inconsistencies to the investigator, but he did not react. The victim made copies of all documents and wrote a statement to the prosecutor's office and the investigative committee. After which the authorized bodies began an internal investigation and found that the investigator had thus assisted the criminal and helped him avoid punishment. The state compensated the victim for the damage, and the thief and the investigator were prosecuted.
What decisions are most often made under Article 216 of the Code of Criminal Procedure?
The investigator and office workers must always give permission to familiarize themselves with procedural papers. There are no grounds for legal refusal. If the investigator avoids demands to show papers, you can complain to management about him. If inconsistencies are identified, it is imperative to file a complaint with the Investigative Committee or the prosecutor's office. Refusal to submit papers, as well as obvious shortcomings (lack of numbering and filing) already indicate that the case is being falsified; this cannot be allowed.
Sometimes third parties involved in the process may experience problems in issuing production materials. Regarding them, this is possible, since the investigation is secret, and it is impossible to allow strangers to study the production. They will be allowed to examine the papers, but only after the resolution of the judge or his secretary on the petition.
What do you need to know when reading the papers?
The legislator does not establish a framework for familiarization with the case, but often unscrupulous lawyers and defendants take advantage of this opportunity, deliberately delaying the process. If such a situation occurs, the investigator has the right to set a time frame for studying the papers. After the case is closed and a decision has already been made by the judge, you can study the case at any convenient time without any restrictions. During the pre-trial investigation, third parties may be denied the right to examine papers. At a certain stage of the proceedings, only the main participants in the procedure have the right to get acquainted with the protocols and evidence.
Until recently, minors who were placed under parental supervision were prohibited from studying materials. The amendment allows for the study of documents by a minor during the period of educational punishment (the study is not limited to a time frame), but only in the presence of a lawyer.
It is not only allowed to familiarize yourself with the procedural papers, it must be done. First of all, this is necessary to determine the legal connection between specific events of the incident, for a more detailed study of the evidence base, and in general, in order to find inconsistencies in the documents compiled.
If you take part in criminal proceedings on your own, or want an experienced lawyer to join you at one of the stages, all work must begin with familiarization with the case materials.
Rights and obligations of the victim in a criminal case
In the legal organization ANO legal education "Globus", a separate area of activity is devoted to the protection of the rights of victims in criminal cases. An integrated approach allows you to protect the interests of both individuals and legal entities, defend rights in criminal and civil proceedings, and achieve real restoration of social justice.
So, the rights of the victim (Part 2 of Article 42 of the Code of Criminal Procedure of the Russian Federation):
- know about the charges brought against the accused;
- give evidence;
- refuse to testify against yourself, your spouse and other close relatives, the circle of whom is defined in paragraph 4 of Art. 5 Code of Criminal Procedure of the Russian Federation. If the victim agrees to testify, he must be warned that his testimony may be used as evidence in a criminal case, including in the event of his subsequent refusal of this testimony;
— present evidence;
— file petitions and challenges;
- give evidence in his native language or a language he speaks;
— use the help of a translator for free;
- have a representative;
— to participate, with the permission of the investigator or inquiry officer, in investigative actions carried out at his request or at the request of his representative;
- get acquainted with the protocols of investigative actions carried out with his participation and submit comments on them;
— get acquainted with the decision on the appointment of a forensic examination and the expert’s conclusion;
- to get acquainted at the end of the preliminary investigation, including in the event of termination of the criminal case, with all the materials of the criminal case, to write out any information from the criminal case and in any volume, to make copies of the materials of the criminal case, including using technical means. If several victims are involved in a criminal case, each of them has the right to get acquainted with those materials of the criminal case that relate to the harm caused to this victim;
- receive copies of decisions to initiate a criminal case, to recognize him as a victim, to refuse to select a preventive measure against the accused in the form of detention, to terminate a criminal case, to suspend proceedings in a criminal case, to send a criminal case to jurisdiction, to appoint preliminary hearing, court hearing, receive copies of the verdict of the court of first instance, decisions of the courts of appeal and cassation. Upon application, the victim has the right to receive copies of other procedural documents affecting his interests;
- to participate in the trial of a criminal case in the courts of the first, second, cassation and supervisory instances, to object to the passing of a sentence without a trial in the general manner, as well as in cases provided for by the Code of Criminal Procedure of the Russian Federation, to participate in a court hearing when the court considers issues related to the execution of the sentence ;
- speak in court debates;
- support the accusation;
— get acquainted with the protocol and audio recording of the court hearing and submit comments on them;
- bring complaints against the actions (inaction) and decisions of the inquiry officer, the head of the inquiry unit, the head of the inquiry body, the inquiry body, the investigator, the prosecutor and the court;
- appeal the verdict, ruling, court order;
- know about the complaints and submissions brought in the criminal case and file objections to them;
- apply for the application of security measures in accordance with Part 3 of Art. 11 Code of Criminal Procedure of the Russian Federation;
- on the basis of a resolution, a court ruling, adopted at the request of the victim, his legal representative, representative, submitted before the end of the debate of the parties, to receive information about the arrival of a person sentenced to imprisonment at the place of serving the sentence, including when moving from one correctional institution to another, about travel of the convicted person outside the institution executing the sentence of imprisonment, about the time of release of the convicted person from places of imprisonment, as well as to be notified of the court's consideration of issues related to the execution of the sentence on the release of the convicted person from punishment, on the postponement of the execution of the sentence or on the replacement of the convicted person with the unserved part punishment with a more lenient type of punishment;
— exercise other powers provided for by the Code of Criminal Procedure of the Russian Federation.
The victim is provided with compensation for property damage caused by the crime, as well as expenses incurred in connection with his participation during the preliminary investigation and in court, including the costs of a representative, in accordance with the requirements of Art. 131 of the Code of Criminal Procedure of the Russian Federation (Part 3 of Article 42 of the Code of Criminal Procedure of the Russian Federation, paragraph 34 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 29, 2010 N 17).
If a civil plaintiff is recognized as a victim, in addition to the rights provided for in Part 2 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, the court explains other rights that, in accordance with Part 4 of Art. 44 of the Code of Criminal Procedure of the Russian Federation, he is endowed as a civil plaintiff with the right to support a civil claim, give explanations and testimony on it, abandon the civil claim brought against him before the court retires to the deliberation room to render a verdict (clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 13, 2020 N 23 “On the practice of courts considering a civil claim in a criminal case”).
Upon a claim by a victim for monetary compensation for moral damage caused to him, the amount of compensation is determined by the court when considering a criminal case or in civil proceedings (Part 3 of Article 42 of the Code of Criminal Procedure of the Russian Federation).
The legal representative of a victim under the age of sixteen, against whom a crime against the sexual integrity of a minor has been committed, must be explained by the court not only the right to file a petition for the participation of a lawyer as a representative of such a victim, but also the provision that the costs of remuneration for such the lawyer is compensated from the federal budget (clause 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 29, 2010 N 17).
Victim:
- is obliged to appear when summoned by the inquirer, investigator and to the court (if the victim fails to appear without good reason or evades appearing at the court hearing, if the participation of the victim in the consideration of the case is considered mandatory, the victim may be brought in in the manner prescribed by Article 113 of the Code of Criminal Procedure of the Russian Federation, and in the cases specified in Article 117 of the Code of Criminal Procedure of the Russian Federation - monetary penalty (Part 6 of Article 42 of the Code of Criminal Procedure of the Russian Federation, paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 29, 2010 N 17));
- is obliged to give truthful testimony (for giving knowingly false testimony, the victim is liable in accordance with Article 307 of the Criminal Procedure Code of the Russian Federation, for refusing to give testimony - in accordance with Article 308 of the Criminal Procedure Code of the Russian Federation (Part 7 of Article 42 of the Criminal Procedure Code of the Russian Federation));
- does not have the right to disclose the data of the preliminary investigation if he was warned about this in advance in the manner established by Art. 161 Code of Criminal Procedure of the Russian Federation; For the disclosure of preliminary investigation data, the victim is responsible in accordance with Art. 310 of the Criminal Code of the Russian Federation (Part 7 of Article 42 of the Criminal Procedure Code of the Russian Federation);
- does not have the right to avoid undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from providing handwriting and other samples for comparative research. For evasion from undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from providing samples of handwriting and other samples for comparative research, the victim is liable in accordance with Art. 308 of the Criminal Code of the Russian Federation (Part 7 of Article 42 of the Criminal Procedure Code of the Russian Federation).
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