New edition of Art. 237 Code of Criminal Procedure of the Russian Federation
1. The judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where:
1) the indictment, indictment or indictment resolution was drawn up in violation of the requirements of this Code, which excludes the possibility of the court passing a sentence or making another decision based on this conclusion, act or resolution;
2) a copy of the indictment, indictment or indictment was not served on the accused, except in cases where the court recognizes as legal and justified the decision of the prosecutor made in the manner established by part four of Article 222 or part three of Article 226 of this Code;
3) there is a need to draw up an indictment or indictment in a criminal case sent to the court with a decision to apply a compulsory measure of a medical nature;
4) there are grounds for joining criminal cases provided for in Article 153 of this Code, with the exception of the case provided for in Article 239.2 of this Code;
5) when familiarizing the accused with the materials of the criminal case, the rights provided for in part five of Article 217 of this Code were not explained to him;
6) the factual circumstances set out in the indictment, indictment, indictment, decision to send a criminal case to court for the application of a compulsory measure of a medical nature indicate the existence of grounds for qualifying the actions of the accused, the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature, as a more serious crime, a socially dangerous act, or during a preliminary hearing or trial, factual circumstances have been established indicating the existence of grounds for qualifying the actions of these persons as a more serious crime, a socially dangerous act.
1.1. If there are circumstances specified in Article 226.2 and part four of Article 226.9 of this Code, the judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor to transfer it according to jurisdiction and conduct an inquiry in the general manner.
1.2. The judge, at the request of the party, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where:
1) after the criminal case was sent to court, new socially dangerous consequences of the act charged to the accused occurred, which are the basis for charging him with committing a more serious crime;
2) a previously passed sentence, ruling or court order in a criminal case is canceled in the manner prescribed by Chapter 49 of this Code, and the new or newly discovered circumstances that served as the basis for their cancellation are, in turn, the basis for charging the accused with committing a more serious crime.
1.3. When returning a criminal case to the prosecutor on the grounds provided for in paragraph 6 of part one of this article, the court is obliged to indicate the circumstances that are the basis for classifying the actions of the accused, the person against whom proceedings are being conducted to apply a compulsory medical measure, as a more serious crime, a socially dangerous act . In this case, the court does not have the right to indicate an article of the Special Part of the Criminal Code of the Russian Federation, according to which the act is subject to a new classification, and also to draw conclusions about the assessment of evidence, about the guilt of the accused, about the commission of a socially dangerous act by a person against whom proceedings are being conducted to apply a compulsory medical measure character.
2. Lost power.
3. When returning the criminal case to the prosecutor, the judge decides on the preventive measure against the accused. If necessary, the judge extends the period of detention of the accused for investigative and other procedural actions, taking into account the deadlines provided for in Article 109 of this Code.
4. Lost power.
5. Lost power.
What is the article of the Code of Criminal Procedure about?
The main purpose of criminal proceedings and judicial proceedings is to respect the legitimate rights and interests of citizens. This goal can be achieved by correctly and objectively conducting investigative measures and, ultimately, drawing up a reasoned indictment. In the indictment, the investigator must reflect all investigative stages, physical evidence, witness testimony and other equally important facts about the guilt of a particular person.
If errors are made in this procedural document, the judge returns the case materials to the prosecutor for revision. It is important to note that the return of the case materials cannot be associated with making up for the incompleteness of the investigative actions or inquiry carried out.
The judge makes a decision precisely on the basis of the indictment and on the basis of the facts available in the decision. If these facts are distorted, misinterpreted, or procedurally incorrect, the judge's sentence itself will be unlawful. 237 of the Code of Criminal Procedure of the Russian Federation regulates the grounds for returning a criminal case to the prosecutor within the framework of a preliminary court hearing.
Basic provisions
In criminal proceedings, there is not a single event that occurs on its own; all actions of officials must be reasoned and legal. The return of a criminal case to the prosecutor must also have compelling reasons. The first reason for return is the presence of a violation of the requirements of the law, which in itself excludes the possibility of a court making a decision without eliminating the violations committed.
An equally important violation is the failure to serve the accused with a copy of the indictment. A person who appears in a case as an accused must be familiar with the charges brought against him - this is his legal right. This situation significantly violates procedural law, since the accused is deprived of the opportunity to prepare for trial, that is, he is deprived of the right to defense and a fair trial.
The court may return the case to the prosecutor if a decision on compulsory treatment has been received, but during the proceedings the question arises of the need to draw up an indictment or there are grounds for combining several cases. The lack of jurisdiction of the case also serves as a reason for sending materials back to the prosecutor.
The materials can be returned if the investigator did not explain to the accused the rights at the hearing of his case by a jury, during proceedings by a panel of judges, the application of a special procedure for the proceedings, and against the background of a preliminary hearing in the case.
The presence in the indictment of information that allows the crime to be reclassified to a more serious one will also be the basis for returning the document for revision. If, at the time the indictment is received by the court, information is received about more serious consequences of the crime, the case materials are returned for revision, and the criminal act is reclassified.
If the judge's previously passed sentence was overturned, the case is returned to the prosecutor for revision. The discovered circumstances should become the basis for reclassification of the act and re-trial.
Most common violations
According to statistics, most often a criminal case is returned for additional investigation by the court due to an incorrect drafting of the indictment. Sometimes, errors in this document not only eliminate the opportunity to make an objective decision, but also to draw it up in principle, without eliminating the errors.
Preparing for a court hearing in criminal proceedings: general procedure under the Criminal Procedure Code
Violations can be classified into the following groups:
- Incorrect or incomplete indication of personal data of the accused, victim or other participants in the process, when their presence at the meeting is mandatory or systematic.
- The actual circumstances of the incident and the wording of the charges are not sufficiently stated; there is the presence of ambiguous phrases and contradictions.
- Lack of indication of the time, place and method of committing the crime, inaccuracies in the qualification of the crime are also unacceptable.
- Violations related to the presentation of evidence in the case. That is, an incomplete list of evidence is provided or there is no brief content of the evidence provided.
- Other violations, which may include unspecified corrections in the text of the document. If there are corrections or additional information was added without the approval of the prosecutor, the reliability of the indictment will be questionable.
At the preliminary hearing, the judge evaluates the correctness of the indictment and compliance with established legislative norms. The activities of the judge at this stage of the proceedings are not related to the evidentiary procedure. The judge examines the document to determine whether there are grounds for returning the case to the prosecutor for revision. If there are no such grounds, the case is accepted for judicial proceedings, and proceedings on the merits begin.
Everything about criminal cases
Go to the text of the Code of Criminal Procedure
Url Additional information:
Grounds for returning the case to the prosecutor
:
— Part 1 237 Code of Criminal Procedure
grounds for returning the case to the prosecutor:
I).
— Clause 1 Part 1 237 Code of Criminal Procedure
if there are violations in the indictment
II).
— Clause 2 Part 1 237 Code of Criminal Procedure
if a copy of the indictment has not been served
— Clause 2 Part 1 237 Code of Criminal Procedure
if delivery is not lawful, the case will not be returned
III).
— Clause 3 Part 1 237 Code of Criminal Procedure
if the court decided that medical measures are not required (
Part 5 443
)
IV).
— clause 4 part 1 237 Code of Criminal Procedure
if you need to join criminal cases
V).
— Clause 5 Part 1 237 Code of Criminal Procedure
if the rights are not explained when reading the case (
Part 5 217
)
VI).
Increased charges
— Clause 6 Part 1 237 Code of Criminal Procedure
When studying the case, the need to tighten
— Clause 6 Part 1 237 Code of Criminal Procedure
the court hearing revealed the need to tighten
— Part 1.3 237 Code of Criminal Procedure
the court must justify the return to a more serious charge
VII).
— Part 1.1 237 Code of Criminal Procedure
an abbreviated form of inquiry is impossible, transition to a general
VIII).
— clause 1 part 1.2 237 Code of Criminal Procedure
new grave consequences have come
IX).
— clause 2 part 1.2 237 Code of Criminal Procedure
new or newly discovered circumstances
Preventive measure
— Part 3 237 Code of Criminal Procedure
the preventive measure when returning the case is determined by the judge
PLENAMA OF THE Supreme Court
- paragraph 14
Plenum No. 28 return of the case to the prosecutor from the stage of preparation for trial
— P.
Plenum No. 51 return of the case to the prosecutor from the stage of consideration of the first instance
Additional Information
— Part 3 389.2 Code of Criminal Procedure
this decision can be appealed before sentencing
- Part 6.1 162 Code of Criminal Procedure
the period of investigation when the case is returned by the prosecutor is 1 month
Returning the case to the prosecutor
Returning the case to the prosecutor
at the pre-trial stage, to eliminate violations
Delivery of a copy of the indictment
Presentation of the indictment
conclusions: all aspects useful for defense
SITUATIONS from practice
Request for refund
case to the prosecutor, at what point can it be reported?
Article 237 of the Code of Criminal Procedure. Returning the criminal case to the prosecutor
1) The judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where:
Url Additional information:
- paragraph 14
Plenum No. 28 violations interfering with a judicial decision
— P.
Plenum No. 1 violations in the indictment, act
1).
the indictment, indictment or indictment resolution was drawn up in violation of the requirements of the Criminal Procedure Code, which excludes the possibility of a court passing a sentence or making another decision based on this conclusion, act or resolution;
Url Additional information:
- paragraph 15
Plenum No. 28 failure to serve an indictment, act
Delivery of a copy of the indictment
Presentation of the indictment
conclusions: all aspects useful for defense
2). the accused was not given a copy of:
Url Additional information:
— Part 2 222 Code of Criminal Procedure
delivery of a copy of the indictment to the accused
- indictment,
Url Additional information:
- Part 3 226 Code of Criminal Procedure
delivery of a copy of the indictment to the accused
- indictment,
Url Additional information:
- Part 3 226.8 Code of Criminal Procedure
handing the accused a copy of the indictment
- or
an indictment,
except in cases where the court recognizes as legal and justified the decision of the prosecutor made in the manner established by
Part 4 222 of the Code of Criminal Procedure or Part 3 226 of the Code of Criminal Procedure ;
Url Additional information:
— Part 5 443 Code of Criminal Procedure
return to the prosecutor if medical measures are not taken
— clause 18
Plenum No. 6 return of the case for drawing up an indictment
3).
there is a need to draw up an indictment or indictment in a criminal case sent to the court with a decision to apply a compulsory measure of a medical nature;
Url Additional information:
Connection of criminal cases
—
33 Code of
Criminal Procedure jurisdiction when joining cases
- part 1 153 of the Code of Criminal Procedure
situations where cases can be connected - at the investigation stage
-
239.2 of the Code of
- connection of criminal cases - at the judicial stage
— clause 4 part 1 237 Code of Criminal Procedure
return to the prosecutor - if it is necessary to combine criminal cases
4). there are grounds provided for in 153 Code of Criminal Procedure for joining criminal cases;
Url Additional information:
— clause 11
Plenum No. 28 failure to clarify the right to a special procedure, return of the case
— clause 4
Plenum No. 60 failure to clarify the right to a special procedure, return to the prosecutor
5).
when familiarizing the accused with the materials of the criminal case, the rights provided for in Part 5 217 of the Code of Criminal Procedure were not explained to him;
6). The factual circumstances set out in the indictment, indictment, indictment, decision to send a criminal case to court for the application of a compulsory measure of a medical nature indicate:
- on the existence of grounds for classifying the actions of the accused (the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature) as a more serious crime, a socially dangerous act;
- or during a preliminary hearing or trial, factual circumstances have been established indicating the existence of grounds for classifying the actions of these persons as a more serious crime, a socially dangerous act.
1.1) In the presence of the circumstances specified in 226.2 of the Code of Criminal Procedure and Part 4 of 226.9 of the Code of Criminal Procedure, the judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor for transferring it to jurisdiction and conducting an inquiry
in the general manner.
Url Additional information:
— P.
Plenum No. 51 return under
Part 1.2 237 of the Code of Criminal Procedure
only at the request of the party
1.2) The judge, at the
request of the party, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where:
Url Additional information:
- P.20
Plenum No. 55 what is considered a change to a more serious charge
1).
after the criminal case was sent to court, new socially dangerous consequences of the act charged to the accused occurred, which are the basis for charging him with committing a more serious crime;
2). a sentence, ruling or court order previously passed in a criminal case are canceled in the manner prescribed by
Chapter 49 of the Criminal Procedure Code, and the new and newly discovered circumstances that served as the basis for their cancellation are, in turn, the basis for charging the accused with committing a more serious crime.
1.3)
When returning a criminal case to the prosecutor on the grounds provided for in paragraph 6 of Part 1 of this article, the court is obliged to indicate the circumstances that are the basis for qualifying the actions of the accused, the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature, as a more serious crime , socially dangerous act.
In this case, the court does not have the right to: - indicate the article
of the Special Part of the Criminal Code , according to which the act is subject to new classification;
- and also draw conclusions about
the assessment of evidence, about the guilt of the accused, about the commission of a socially dangerous act by the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature.
2) Lost power.
Url Additional information:
— paragraph 33
Plenum No. 41 preventive measures when returning the case to the prosecutor
3) When returning the criminal case to the prosecutor, the judge decides on the measure of restraint against the accused. If necessary, the judge extends the period of detention of the accused for investigative and other procedural actions, taking into account the deadlines provided for in 109 of the Code of Criminal Procedure.
Return to the text of the Code of Criminal Procedure
Seek advice
Comments on Article 237 of the Code of Criminal Procedure
The activities of the prosecutor have always been the focus of a criminal case. According to the law, it is he who is responsible for the correctness and objectivity of the pre-trial proceedings. Based on this, it is not at all strange that the judge, having discovered errors in the indictment, initiates an additional investigation and entrusts the prosecutor to correct the errors.
The Code of Criminal Procedure allows an additional investigation to be initiated to eliminate the incompleteness of the indictment, and it is necessary for the prosecutor to improve the supervisory activities of the inquiry and investigation bodies.
The list of grounds for returning case materials to the prosecutor, given in Article 237 of the Code of Criminal Procedure of the Russian Federation with comments, is exhaustive. At the same time, it is obvious that filling some of the procedural gaps necessary to consider the case in court is impossible without further investigation of the criminal case.
Violations of established requirements, as a basis for returning the case to the prosecutor, must be
To return the case to the prosecutor, not all errors in the conclusion can be grounds for applying the article, but only those that prevent the court from passing a sentence. For example, it is illegal to make a judicial decision in a case if the charge in the indictment does not correspond in content to the charge described in the summons to bring a person as an accused.
A judge’s decision cannot be based on an indictment that has not been signed by the investigator or inquiry officer. If the decision is missing important information about the accused (his criminal record and whereabouts), the judge will not be able to make the right decision. The fact is that unspent criminal records indicate a relapse and an increased danger of the attacker, as does his concealment from the investigation, and this entails a more severe punishment.
Criminal Procedure Code of the Russian Federation:
Article 237. Return of a criminal case to the prosecutor
1. The judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where:
1) the indictment, indictment or indictment resolution was drawn up in violation of the requirements of this Code, which excludes the possibility of the court passing a sentence or making another decision based on this conclusion, act or resolution;
2) a copy of the indictment, indictment or indictment was not served on the accused, except in cases where the court recognizes as legal and justified the decision of the prosecutor made in the manner established by part four of Article 222 or part three of Article 226 of this Code;
3) there is a need to draw up an indictment or indictment in a criminal case sent to the court with a decision to apply a compulsory measure of a medical nature;
4) there are grounds for joining criminal cases provided for in Article 153 of this Code, with the exception of the case provided for in Article 239.2 of this Code;
5) when familiarizing the accused with the materials of the criminal case, the rights provided for in part five of Article 217 of this Code were not explained to him;
6) the factual circumstances set out in the indictment, indictment, indictment, decision to send a criminal case to court for the application of a compulsory measure of a medical nature indicate the existence of grounds for qualifying the actions of the accused, the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature, as a more serious crime, a socially dangerous act, or during a preliminary hearing or trial, factual circumstances have been established indicating the existence of grounds for qualifying the actions of these persons as a more serious crime, a socially dangerous act.
1.1. If there are circumstances specified in Article 226.2 and part four of Article 226.9 of this Code, the judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor to transfer it according to jurisdiction and conduct an inquiry in the general manner.
1.2. The judge, at the request of the party, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where:
1) after the criminal case was sent to court, new socially dangerous consequences of the act charged to the accused occurred, which are the basis for charging him with committing a more serious crime;
2) a previously passed sentence, ruling or court order in a criminal case is canceled in the manner prescribed by Chapter 49 of this Code, and the new or newly discovered circumstances that served as the basis for their cancellation are, in turn, the basis for charging the accused with committing a more serious crime.
1.3. When returning a criminal case to the prosecutor on the grounds provided for in paragraph 6 of part one of this article, the court is obliged to indicate the circumstances that are the basis for classifying the actions of the accused, the person against whom proceedings are being conducted to apply a compulsory medical measure, as a more serious crime, a socially dangerous act . In this case, the court does not have the right to indicate an article of the Special Part of the Criminal Code of the Russian Federation, according to which the act is subject to a new classification, and also to draw conclusions about the assessment of evidence, about the guilt of the accused, about the commission of a socially dangerous act by a person against whom proceedings are being conducted to apply a compulsory medical measure character.
2. Lost power. — Federal Law of December 2, 2008 N 226-FZ.
3. When returning the criminal case to the prosecutor, the judge decides on the preventive measure against the accused. If necessary, the judge extends the period of detention of the accused for investigative and other procedural actions, taking into account the deadlines provided for in Article 109 of this Code.
4. Lost power. — Federal Law of December 2, 2008 N 226-FZ.
5. Lost power. — Federal Law of December 2, 2008 N 226-FZ.
Return to the table of contents of the document: Criminal Procedure Code of the Russian Federation in the current edition
What does judicial practice show under this article?
The outcome of the case directly depends on the correctness of the indictment. Sometimes, in the indictment, the investigator reflects the evidence and the picture of the event so accurately that there is no doubt at all about the guilt of the subject of the proceedings. However, the displayed data should in no way influence the judge's decision.
In practice, the importance of a conviction can be demonstrated in a rape case. Citizen Pyatakov was handed a summons, according to which he is accused of raping a certain citizen. The crime occurred on May 25, 2018.
Grounds for refusal to initiate a criminal case under the Code of Criminal Procedure of the Russian Federation, Article 24
After investigative measures, an indictment was issued and sent to court. The judge at the preliminary hearing found inconsistencies in the documents, because the name of the accused is not Pyatakov, but Pitakov, which is a gross violation. The fact is that a completely different person is brought to justice, who does not appear in the case at all.
In this regard, the judge returned the indictment to the prosecutor to correct the error. The defense additionally identified a discrepancy in the dates of the incident in the indictment and summons, but did not immediately announce this and deliberately remained silent. This was necessary so that later there would be an opportunity to once again apply for the return of the case and thus better prepare for the main court hearing.
What decisions are most often made under Article 237 of the Code of Criminal Procedure?
A judge has no right to accept an indictment that is incorrectly formulated or drafted; this is a gross violation of the rights of citizens, for which an official can pay not only with work, but also with freedom.
The title of a judge is a standard of honesty, integrity and objectivity, therefore a person holding this position, for his part, must make every effort to ensure that there is no violation of procedural law in documents that decide the fate of a person.
During its operation, the legal institution of returning case materials to eliminate procedural errors has become one of the most effective options for protecting the rights of participants in the trial. At the same time, there is always a need to change some norms of the Code of Criminal Procedure of the Russian Federation concerning the procedure for appealing decisions. Recently, cunning lawyers, together with their clients, have been filing petitions at the later stages of consideration of a criminal case, thereby delaying the sentencing and selection of punishment.
The legislator establishes the right of the accused to petition for the return of the case as many times as he likes, but if there are grounds, and an experienced lawyer can find many such grounds (an incorrectly formulated sentence, inaccuracy of one of the facts, etc.). Based on this, it is necessary to legislate additional grounds for the return of materials at specific stages of the trial, as well as to give the judge the opportunity to reject such a request if it is obviously unlawful.
