Article 321 of the Code of Criminal Procedure of the Russian Federation. Consideration of a criminal case in court (current version)

New edition of Art. 321 Code of Criminal Procedure of the Russian Federation

1. The magistrate considers a criminal case in the general manner with the exceptions provided for in this article.

2. The trial must begin no earlier than 3 and no later than 14 days from the date the application or criminal case was received by the court.

3. The consideration of an application in a criminal case of private prosecution may be combined into one proceeding with the consideration of a counter-application. The joining of statements is allowed on the basis of a decision of the magistrate before the start of the judicial investigation. When combining applications into one proceeding, the persons who filed them participate in criminal proceedings simultaneously as a private prosecutor and a defendant. To prepare for the defense in connection with the receipt of a counter-statement and the joining of proceedings at the request of the person in respect of whom the counter-statement was filed, the criminal case may be postponed for a period of no more than 3 days. The interrogation of these persons about the circumstances stated by them in their statements is carried out according to the rules for interrogating the victim, and about the circumstances set out in counter-complaints - according to the rules for interrogating the defendant.

4. The accusation at the court hearing is supported by:

1) public prosecutor - in cases provided for by part four of Article 20 and part three of Article 318 of this Code;

2) private prosecutor - in criminal cases of private prosecution.

5. The judicial investigation in criminal cases of private prosecution begins with the presentation of a statement by the private prosecutor or his representative. When a counter-statement is being considered simultaneously in a criminal case against a private prosecution, its arguments are presented in the same order after the arguments of the main statement are presented. The prosecutor has the right to present evidence, participate in its examination, express to the court his opinion on the merits of the charge, on the application of the criminal law and the sentencing of the defendant, as well as on other issues arising during the trial. The prosecutor may change the charge if this does not worsen the situation of the defendant and does not violate his right to defense, and also has the right to withdraw the charge.

6. If during the trial the actions of the person in respect of whom the application was filed, signs of a crime not provided for in part two of Article 20 of this Code are established, then the magistrate makes a decision to terminate the criminal prosecution in the case and forward the materials to the head of the investigative body or the chief body of inquiry to resolve the issue of initiating a criminal case by way of public or private-public accusation, of which the victim or his legal representative is notified.

Article 321 of the Code of Criminal Procedure of the Russian Federation. Consideration of a criminal case in court (current version)

1. The magistrate considers a criminal case in the general manner with the exceptions provided for in this article.

2. The trial must begin no earlier than 3 and no later than 14 days from the date the application or criminal case was received by the court.

3. The consideration of an application in a criminal case of private prosecution may be combined into one proceeding with the consideration of a counter-application. The joining of statements is allowed on the basis of a decision of the magistrate before the start of the judicial investigation. When combining applications into one proceeding, the persons who filed them participate in criminal proceedings simultaneously as a private prosecutor and a defendant. To prepare for the defense in connection with the receipt of a counter-statement and the joining of proceedings at the request of the person in respect of whom the counter-statement was filed, the criminal case may be postponed for a period of no more than 3 days. The interrogation of these persons about the circumstances stated by them in their statements is carried out according to the rules for interrogating the victim, and about the circumstances set out in counter-complaints - according to the rules for interrogating the defendant.

4. The accusation at the court hearing is supported by:

1) public prosecutor - in cases provided for by part four of Article 20 and part three of Article 318 of this Code;

2) private prosecutor - in criminal cases of private prosecution.

5. The judicial investigation in criminal cases of private prosecution begins with the presentation of a statement by the private prosecutor or his representative. When a counter-statement is being considered simultaneously in a criminal case against a private prosecution, its arguments are presented in the same order after the arguments of the main statement are presented. The prosecutor has the right to present evidence, participate in its examination, express to the court his opinion on the merits of the charge, on the application of the criminal law and the sentencing of the defendant, as well as on other issues arising during the trial. The prosecutor may change the charge if this does not worsen the situation of the defendant and does not violate his right to defense, and also has the right to withdraw the charge.

6. If during the trial the actions of the person in respect of whom the application was filed, signs of a crime not provided for in part two of Article 20 of this Code are established, then the magistrate makes a decision to terminate the criminal prosecution in the case and forward the materials to the head of the investigative body or the chief body of inquiry to resolve the issue of initiating a criminal case by way of public or private-public accusation, of which the victim or his legal representative is notified.

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Consideration of a private prosecution case

- Part 1 321 Code of Criminal Procedure

the case is considered in the general manner

- Part 2 321 Code of Criminal Procedure

the case is considered no earlier than 3 and no later than 14 days

Counter-statement

- Part 3 321 Code of Criminal Procedure

joining into one proceeding with a counter-claim

- Part 3 321 Code of Criminal Procedure

connection before the start of the judicial investigation.

- Part 3 321 Code of Criminal Procedure

simultaneously as a private prosecutor and defendant

- Part 3 321 Code of Criminal Procedure

set aside for 3 days for preparation

- Part 3 321 Code of Criminal Procedure

the counter-applicant is questioned as a victim

- Part 3 321 Code of Criminal Procedure

according to complaints against him, interrogated as a defendant

The accusation is supported

— clause 1 part 4 321 Code of Criminal Procedure

public prosecutor

- clause 2, part 4 321 Code of Criminal Procedure

the victim himself

Judicial investigation

- Part 5 321 Code of Criminal Procedure

the prosecutor makes a statement

- Part 5 321 Code of Criminal Procedure

the counter's arguments are stated after the main statement

- Part 5 321 Code of Criminal Procedure

prosecutor's rights:

- Part 5 321 Code of Criminal Procedure

the private prosecutor has the right to change the charges

- Part 5 321 Code of Criminal Procedure

a private prosecutor has the right to withdraw charges

- Part 6 321 Code of Criminal Procedure

if a non-private crime is revealed, the consequences

Article 321 of the Code of Criminal Procedure. Consideration of a criminal case in court

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— Section IX of the Code of Criminal Procedure. Proceedings in the court of first instance (general procedure)

1) The magistrate considers a criminal case in the general manner with the exceptions provided for in this article.

2) The trial must begin no earlier than 3 and no later than 14 days from the date the application or criminal case was received by the court.

3) Consideration of an application in a criminal case
of private prosecution may be combined into one proceeding with consideration of a counter-application.
The joining of statements is allowed on the basis of a decision of the magistrate before the start of the judicial investigation.

When combining applications into one proceeding, the persons who filed them participate in criminal proceedings simultaneously as
a private prosecutor and a defendant.
To prepare for the defense in connection with the receipt of a counter-statement and the joining of proceedings at the request of the person in respect of whom the counter-statement was filed, the criminal case may be postponed for a period of no more than 3 days.

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— 277 Code of Criminal Procedure

interrogation of the victim in court

The interrogation of these persons about the circumstances they set out in their statements is carried out according to the rules
for interrogating the victim,
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— 275 Code of Criminal Procedure

interrogation of the defendant in court

and about the circumstances set out in the counter-complaints - according to the rules for interrogating the defendant.

4) The accusation at the court hearing is supported by:

1).
public prosecutor - in cases provided for in Part 4 20 and Part 3 318 of the Code of Criminal Procedure;
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- Part 3 246 Code of Criminal Procedure

in a private prosecution, instead of the prosecutor, the victim himself

- Part 3 249 Code of Criminal Procedure

failure of the private prosecutor to appear results in the termination of the case

2).
private prosecutor - in criminal cases of private prosecution.
5) The judicial investigation in criminal cases of private prosecution begins with the presentation of a statement by the private prosecutor or his representative.

When a counter-statement is being considered simultaneously in a criminal case against a private prosecution, its arguments are presented in the same order after the arguments of the main statement are presented.

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- paragraph 16

Plenum No. 28 examination in private prosecution cases

The prosecutor has the right:

- present evidence,

- participate in their research,

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— clause 4, part 2 171 Code of Criminal Procedure

essence of the charge description of the crime and qualification

- express to the court his opinion on the merits of the charge, on the application of the criminal law and the sentencing of the defendant, as well as on other issues arising during the trial.

The prosecutor may change the charge:

- if this does not worsen the situation of the defendant,

- and his
right to defense is not violated,
and he also has the right to refuse the accusation.

6) If during the trial the actions of the person in respect of whom the application was filed show signs of a crime not provided for in Part 2 20 of the Code of Criminal Procedure, then the magistrate:

- makes a decision to terminate criminal prosecution in the case,

- and sending materials to the head of the investigative
body or the head of the inquiry body to resolve the issue of initiating a criminal case in the form of a public or private-public accusation
- of which the victim or his legal representative is notified.

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1. The magistrate considers a criminal case in the general manner with the exceptions provided for in this article.

2. The trial must begin no earlier than 3 and no later than 14 days from the date the application or criminal case was received by the court.

3. The consideration of an application in a criminal case of private prosecution may be combined into one proceeding with the consideration of a counter-application. The joining of statements is allowed on the basis of a decision of the magistrate before the start of the judicial investigation. When combining applications into one proceeding, the persons who filed them participate in criminal proceedings simultaneously as a private prosecutor and a defendant. To prepare for the defense in connection with the receipt of a counter-statement and the joining of proceedings at the request of the person in respect of whom the counter-statement was filed, the criminal case may be postponed for a period of no more than 3 days. The interrogation of these persons about the circumstances stated by them in their statements is carried out according to the rules for interrogating the victim, and about the circumstances set out in counter-complaints - according to the rules for interrogating the defendant.

4. The accusation at the court hearing is supported by:

1) public prosecutor - in cases provided for by part four of Article 20 and part three of Article 318 of this Code;

2) private prosecutor - in criminal cases of private prosecution.

5. The judicial investigation in criminal cases of private prosecution begins with the presentation of a statement by the private prosecutor or his representative. When a counter-statement is being considered simultaneously in a criminal case against a private prosecution, its arguments are presented in the same order after the arguments of the main statement are presented. The prosecutor has the right to present evidence, participate in its examination, express to the court his opinion on the merits of the charge, on the application of the criminal law and the sentencing of the defendant, as well as on other issues arising during the trial. The prosecutor may change the charge if this does not worsen the situation of the defendant and does not violate his right to defense, and also has the right to withdraw the charge.

6. If during the trial the actions of the person in respect of whom the application was filed, signs of a crime not provided for in part two of Article 20 of this Code are established, then the magistrate makes a decision to terminate the criminal prosecution in the case and forward the materials to the head of the investigative body or the chief body of inquiry to resolve the issue of initiating a criminal case by way of public or private-public accusation, of which the victim or his legal representative is notified.

(Part six was introduced by Federal Law dated April 12, 2007 N 47-FZ, as amended by Federal Law dated June 5, 2007 N 87-FZ)

(see text in the previous edition)

Commentary on Article 321

1. According to Part 4 of Art. 30 of the Code of Criminal Procedure, the justice of the peace (MC) considers criminal cases within his jurisdiction in accordance with Part 1 of Art. 31 Code of Criminal Procedure, individually.

2. All cases of crimes of minor and medium gravity within the jurisdiction of the ICJ are considered according to the general rules of judicial proceedings.

3. General conditions of the trial before the MC: orality, immediacy, publicity, inadmissibility of the charge turning for the worse, continuity of the trial, consideration of the case by the same MC, adversarial nature.

4. Cases of private prosecution are considered in accordance with the general rules of judicial proceedings. At the same time, these cases have a number of features provided for in Parts 3 and 5 of the Commentary. articles.

5. According to Part 2 of Art. 49 of the Code of Criminal Procedure, lawyers are allowed as defense attorneys. By determination or order of the court, one of the close relatives of the accused or another person for whose admission the accused applies may be admitted as a defense lawyer, along with a lawyer. In proceedings before the MC, the specified person is allowed instead of a lawyer.

On the admission of a defense lawyer in a private prosecution case, see also the commentary. to Art. 319.

6. The magistrate has the right to consider cases both in general and in a special manner, provided for in Chapter. 40 of the Criminal Procedure Code (see commentary to Art. 314 - 317).

7. According to Part 2 of Art. 233 and part 2 of Art. 265 of the Code of Criminal Procedure, consideration of a criminal case in a court hearing cannot begin earlier than 7 days from the date of delivery to the accused of a copy of the indictment or indictment or the prosecutor’s decision to change the charges. This period cannot be limited by the rule of part 2 comments. articles.

The legislative provision that the trial should begin no earlier than three days from the date the application or criminal case was received by the court is mainly important for private prosecution cases, which are not subject to the requirements of Part 2 of Art. 233 and part 2 of Art. 265 Code of Criminal Procedure.

8. In accordance with Part 1 of Art. 233 of the Code of Criminal Procedure, consideration of the case in a court session must begin no later than 14 days from the date the judge issues a decision to schedule a court session. For criminal proceedings, the MC shortens this period, since the calculation of the period begins earlier - from the day the application or criminal case is received by the court (and not from the day the judge issues a decision to schedule a court hearing). This should be recognized as one of the exceptions from the general procedure for considering criminal cases in court, which is associated with summary, simplified proceedings before a magistrate.

9. Although in the comments. The norm does not indicate the content of the counter-statement; it must undoubtedly comply with the requirements of Part 5 of Art. 318 Code of Criminal Procedure. Otherwise, such a statement will not have legal force. Consequently, the MC, in the event of filing a counter-application, no matter at what point in the proceedings this occurs (but before the start of the judicial investigation), must invite the person who filed it to bring his application into compliance with the requirements specified in the law and sets a deadline for this. The commented article contains an indication only of the period (three days) that can be given to the person against whom a counter-statement has been filed to prepare for the defense. Due to the provision on equal rights of the parties in a case, the prosecution may also be given at least three days to prepare for the charges.

In this case, the MC issues a ruling to postpone the trial so that the applicant fulfills the requirements of Part 5, 6 of Art. 318 Code of Criminal Procedure. The magistrate is also obliged to fulfill the requirements of Art. 319 of the Code of Criminal Procedure when accepting a counter-statement for production. In other words, the ICJ takes the same measures as when accepting the original application.

10. The magistrate has the right to refuse to accept a counter-statement for his proceedings in the case provided for in Part 1 of Art. 319. This decision can be appealed by the parties.

11. In connection with the receipt of a counter-statement and the connection of proceedings to prepare for the defense, at the request of the person in respect of whom the counter-statement was filed, the criminal proceedings may be postponed for a period of no more than three days. The same request may be made by the legal representative or representative of the private prosecutor who filed the initial application.

12. After fulfilling the requirements specified in Art. Art. 318, 319 of the Code of Criminal Procedure, the MC makes a decision to combine the initial and counter statements into one proceeding.

This decision can be appealed by the parties.

13. At the stage of judicial proceedings, the combination of counter-statements into one proceeding is allowed in the preparatory part of the court hearing. The ban on combining statements into one proceeding after the start of a judicial investigation is explained, first of all, by the need to ensure the rights to defense of the party in respect of whom the application was filed, therefore filing a counter-application directly during the judicial investigation can be both the reason and the basis for independent proceedings. a private prosecution case against the same or another MC.

14. The uniqueness of the proceedings in cases of private prosecution is manifested in the fact that in the case of combining the initial and counter-statements into one proceeding, the same party acts in the case as both a private prosecutor and a defendant. Moreover, during the judicial investigation, the interrogation of these persons about the circumstances set out by them in their statements is carried out according to the rules for interrogating the victim, and about the circumstances set out in counter-complaints - according to the rules for interrogating the defendant. Each party enjoys the rights of the victim and the defendant, depending on the episode being tried in court.

15. According to paragraph 6 of Art. 5 of the Code of Criminal Procedure, a public prosecutor is an official of the prosecutor’s office, as well as the investigative body, who, on behalf of the prosecutor, supports the prosecution in court in a criminal case on behalf of the state.

In clause 1, part 4, art. 321 of the Code of Criminal Procedure there is only an indication that in cases of private prosecution, the prosecution in court is supported by the state prosecutor in cases provided for in Part 4 of Art. 20 and part 3 of Art. 318 Code of Criminal Procedure, i.e. when the victim, due to a helpless state or for other reasons, cannot defend his rights and legitimate interests and the prosecutor initiates a criminal case and sends it for a preliminary investigation, and subsequently the state prosecution is supported either by the prosecutor or a representative of the investigative body, authorized by the prosecutor.

However, it is obvious that in all cases of public and private-public accusations that are considered by the ICJ, the prosecution is always supported by the state prosecutor.

16. In cases in which the preliminary investigation was carried out in the form of an inquiry, the state prosecution before the MC may be supported by a representative of the inquiry body authorized by the prosecutor.

For the range of cases within the jurisdiction of the ICJ, for which a preliminary investigation is carried out in the form of an inquiry, see commentary. to Art. 320.

17. In cases in which the preliminary investigation was carried out in the form of a preliminary investigation, the state prosecution at the MC is supported by the prosecutor.

For the range of cases within the jurisdiction of the ICJ, for which a preliminary investigation is being carried out, see the commentary. to Art. 320.

18. From clause 2, part 3, art. 150 it follows that in criminal cases of other crimes of minor and medium gravity, i.e. in those cases that fall within the jurisdiction of magistrates, an inquiry may be conducted on the written instructions of the prosecutor.

Thus, if an inquiry was conducted in a criminal case (at the direction of the prosecutor or by virtue of clause 1, part 3, article 150 of the Code of Criminal Procedure), the supervising prosecutor has the right to authorize a representative of the inquiry body to support the state prosecution in court.

19. The content of the accusatory powers of the “official of the investigative body” can be judged by a number of norms contained in Part 4 of Art. 20, paragraph 14, 17 hours 2 art. 37, part 3 art. 37, part 4 art. 41, part 4 art. 225, paragraph 1, part 1, art. 226, part 3 art. 318 and part 4 of Art. 321 Code of Criminal Procedure.

Based on a systematic analysis of the above norms, it should be concluded that the powers of the inquiry body to maintain public prosecution are derived from the powers of the prosecutor to carry out the function of criminal prosecution. Although the criminal procedure law allows for the maintenance of the state prosecution by a representative of the inquiry body at the MC, it is the supervising prosecutor who gives specific powers to maintain the state prosecution to the official of the inquiry agency.

20. The supervising prosecutor must decide to grant this type of authority to an official of the investigative body when approving the indictment. If he agrees with the conclusions of the body of inquiry made in the indictment, the prosecutor approves it and entrusts the maintenance of the state prosecution to this body, if he deems it appropriate. The decision on this can be formalized either by a separate procedural document - a resolution, or a resolution on the indictment.

In each case, the prosecutor must take into account the circumstances of the case, the need to protect the rights and freedoms of man and citizen, and other factors. The prosecutor retains the right to support the state prosecution himself in cases where this is necessary to best ensure public interest and protect the rights and freedoms of man and citizen.

21. The prosecutor may give written instructions to the investigative body to express his opinion regarding the type and amount of punishment, compensation for damage, evidence to be presented, etc.

22. In the covering letter to the court attached to the criminal case, the prosecutor must indicate that the state prosecution in the case will be supported by a representative of the investigative agency.

23. The powers of the public prosecutor represented by a representative of the investigative body must be certified by a special procedural document, for example, a letter addressed to the MS, drawn up by the prosecutor. In this letter accompanying the referral of the case to the court, the prosecutor indicates a specific representative of the investigative body who will support the state prosecution. Thus, the prosecutor vests accusatory power in the representative of the investigative body.

24. In the absence of direct instructions from the law, another method of formalizing the representation of an official of the inquiry body as a public prosecutor before the MC is acceptable. For example, in the form of a written order from the prosecutor to the inquiry body to support the state prosecution and a written instruction from the head of the inquiry body to the relevant official to support the state prosecution. These procedural documents must have the appropriate details: seal of the institution, letterhead, signature.

25. A change of prosecutor cannot occur without the consent of the supervising prosecutor, given in writing.

26. The state prosecution in court must be supported either by the head of the inquiry agency, or, on his written instructions, by one of the employees of the inquiry agency, with the exception of the one who directly conducted the inquiry or operational search activities in this case, since the possibility is not excluded that the court will need to question the latter as a witness (see also Part 2 of Article 41 of the Code of Criminal Procedure).

27. The decision to challenge the public prosecutor - a representative of the investigative body - is made by the MC.

28. It is advisable to create a special group of prosecutors in each investigative body from among the employees most prepared for this type of activity. This would be reasonable, given the complexity and novelty of judicial activities for the investigative bodies. It is necessary to ensure that the public prosecution is entrusted to the most experienced employees who have the skills of public speaking, argumentation, and prepared for legal negotiations.

The body of inquiry must undertake work to prepare for the maintenance of the state prosecution. To do this, for each case in which an inquiry is conducted, copies of the main procedural documents must be collected and the prosecutor’s dossier must be formed from them.

The official charged with maintaining public prosecution must have this file. It is advisable that before sending the case to court, this person familiarizes himself with the original case materials. Immediately before the court hearing, it is advisable for the prosecutor to personally meet and talk with the victim and witnesses, prosecution experts with a view to developing tactics to support the prosecution.

29. If there is evidence that pressure is being put on witnesses, prosecution experts, victims, the body of inquiry, the interrogating officer, the prosecutor are obliged to take measures to protect these persons, guided by Part 3 of Art. 11 Code of Criminal Procedure.

30. It is unacceptable for the prosecutor to impose the responsibility of maintaining the state prosecution on the bodies of inquiry, in addition to those listed in Part 1 of Art. 40 Code of Criminal Procedure.

31. The prosecutor must assume the responsibility to support the state prosecution in any case when this is required by the protection of public interest, including those cases when the inquiry body cannot ensure the proper level of support for the prosecution in court.

32. Only the norms contained in Part 5 of Art. 246 Code of Criminal Procedure. He enjoys all the procedural rights of a public prosecutor as a party to the case. At the same time, he cannot independently dispose of the charges, for example, by refusing to support the charges in whole or in part or by changing the charges, without obtaining the consent of the supervising prosecutor.

This is due to the fact that the prosecutor’s office is the exclusive bearer of prosecutorial power. The supervising prosecutor is responsible for the legality and validity of the charges. The final decision regarding the limits and the very fate of criminal prosecution belongs only to the prosecutor.

Following this logic, the legislator granted only the prosecutor the right to file an appeal against a verdict or ruling of the ICJ that has not entered into legal force.

33. The judicial investigation in criminal cases of private prosecution begins with the presentation of a statement (initial) by the private prosecutor or his representative or his legal representative. The counterclaim, if any, is then stated. The investigation is carried out exclusively within the limits of the statement of the private prosecutor or within the limits of both the initial and counter statements.

34. The arguments of the parties are those arguments with which they substantiate their statements contained in the statements, therefore the place for presenting arguments is such a part of the trial as the debate of the parties. It is obvious that the prosecution's arguments in the case of combining statements into one proceeding can also be the defense's arguments.

35. Part 5 comments. The article contains a list of the basic rights of a private prosecutor. The norms of Art. are consistent with this norm. 22, art. 42, art. 43, as well as parts 4 - 6 art. 246 of the Code of Criminal Procedure, according to which the victim is given the rights of the prosecution.

36. Full or partial refusal of a private prosecutor to charge entails the termination of the criminal case or criminal prosecution in whole or in the relevant part on the grounds provided for in clauses 1 and 2 of part 1 of Art. 24 and paragraphs 1 and 2, part 1, art. 27 Code of Criminal Procedure.

The law does not oblige the private prosecutor to give reasons for this refusal. Refusal to maintain a charge is a right of a private prosecutor, which he can freely exercise. The refusal to maintain a charge is absolute and cannot be subject to any conditions, therefore the refusal to maintain a charge is different from the reconciliation of the parties. Reconciliation presupposes the expression of the will of both parties. As a rule, it is associated with the fulfillment of certain conditions, namely: making amends, compensation for harm, making an apology, etc.

37. A form of refusal of a private prosecutor to charge is his failure to appear in court without a valid reason. According to Part 3 of Art. 249 of the Code of Criminal Procedure, in criminal cases of private prosecution, the failure of the victim to appear without valid reasons entails the termination of the criminal case on the grounds provided for in paragraph 2 of part 1 of Art. 24 Code of Criminal Procedure.

However, if there is a legal representative or representative of the victim in the case, they have the right to replace him in the process and support the prosecution in a private prosecution case (see Part 1 of Article 249 of the Code of Criminal Procedure).

38. In the comments. The norm does not mention the defendant and his rights. It is obvious that the defendant participating in the trial before the MC is fully subject to the provisions of Art. Art. 47, 247 Code of Criminal Procedure. In particular, he has the right to submit petitions provided for in paragraphs 2 and 3 of Part 5 of Art. 217 Code of Criminal Procedure.

39. It should be noted the peculiarities of the role of the MC in the conduct of judicial investigations.

The judge should strive to conduct the entire trial of the case in one court session.

The magistrate must provide the necessary conditions for the exercise of the rights granted to the parties and the fulfillment by the parties of their procedural duties. Therefore, it is necessary not only to remind the party of the rights it has, but also to explain their content - the norm of Part 1 of Art. 11 of the Code of Criminal Procedure is of particular relevance here.

40. Since there are many cases of private prosecution in the proceedings of magistrates, and the private prosecutor is not a professional lawyer, the magistrate should be entrusted with the responsibility, after the announcement of the charge, to explain to the defendant the essence of the charge, to ensure that the defendant clearly understands what he is accused of.

The MC's verbal brief and clear statement of the contents of the statement, indictment, or indictment must also be supplemented by an explanation of the evidence presented by the prosecutor.

Only after this the MC should ask the defendant whether he pleads guilty to the charges.

41. The magistrate has the right to disagree with the application of a special procedure for passing a guilty verdict, provided for in Art. 316 of the Code of Criminal Procedure, at least the parties have fulfilled all the necessary conditions for this (see commentary to Articles 314 - 316).

42. The general meaning of the rules on magistrate proceedings is imbued with the idea of ​​claim proceedings. This also applies to the rules of evidence. The magistrate, while maintaining objectivity and impartiality, provides the prosecution and defense with the appropriate conditions for exercising their rights to a full investigation of the circumstances of the case. Based on the adversarial principle, the MC takes a passive position in collecting evidence. The evidentiary material is formed exclusively by the parties.

43. The magistrate is relieved of the obligation to question witnesses. At the same time, he may ask questions to the interrogated after the parties have completed the interrogation. The magistrate is not required to call witnesses beyond the parties' request to do so.

44. The magistrate has the right to call a specialist to participate in the court hearing. In particular, for interrogating a minor witness (see commentary to Part 1 of Article 280), as well as for carrying out other judicial actions - an experiment, an inspection of the scene of an incident.

45. In cases of private prosecution, which can be terminated by reconciliation of the parties, the MC is obliged to persuade them to peace and only in case of failure proceeds to pronounce a sentence within the limits of the power granted to it.

46. ​​Systematic interpretation of Part 2 of Art. 20, part 4 art. 319 of the Code of Criminal Procedure leads to the conclusion that inclination towards peace must take place throughout the entire trial, right up to the removal of the judge to the deliberation room to pronounce a sentence. The magistrate should especially pay attention to the moment immediately following the end of the parties' debate, when their positions are completely determined. At this time, the ICJ has the opportunity to offer the parties the most suitable peace terms.

47. According to Part 5 of Art. 319 of the Code of Criminal Procedure, which regulates the powers of the MC in the case of private prosecution, the magistrate is obliged to explain to the parties the possibility of reconciliation. If the parties agree to reconciliation, they submit the appropriate applications and the proceedings in the private prosecution case are terminated by decision of the magistrate in accordance with Part 2 of Art. 20 Code of Criminal Procedure.

The magistrate has the right to implement the reconciliation procedure not only in cases of private prosecution, but in any cases in his proceedings in which the victim or civil plaintiff participates. The Criminal Procedure Law (Article 25 of the Code of Criminal Procedure) allows for the possibility of termination by the International Court of Justice of a criminal case in connection with the reconciliation of the parties in criminal cases of minor and medium gravity (public accusation).

The magistrate is obliged to explain to the parties this possibility and the consequences of termination of the case on such grounds. The judge has the right to assist the parties in achieving reconciliation. This conclusion follows from the general purpose of magistrates - to “settle the case peacefully” in their area, avoiding state criminal punishment if possible and making maximum use of the media.

48. If there are conditions and grounds provided for in Art. 25 of the Code of Criminal Procedure, the MC has the right to invite the parties to reconcile. And in the event of reconciliation and reparation of harm, terminate the case in accordance with Part 2 of Art. 239, paragraph 3 of Art. 254 Code of Criminal Procedure. If a prosecutor is involved in the case, he expresses an opinion on the legality, validity and fairness of termination of the case in connection with reconciliation. And if the case is terminated contrary to the opinion of the public prosecutor, the latter has the right to appeal the ICJ decision to terminate the criminal case on appeal.

49. On the special procedure for pronouncing a guilty verdict by a magistrate, provided for in Ch. 40 Code of Criminal Procedure, see comment. to Art. Art. 314 - 317.

50. The magistrate is obliged to proceed with the trial in the usual manner in the following cases:

1) if the defendant does not fully admit his guilt;

2) if the defendant does not give any answer to the question of guilt, refuses to testify, or gives an answer that is unclear or does not correspond to the circumstances of the case with the circumstances of the case, so that the judge has reasonable doubts about his guilt;

3) if the magistrate suspects the participation of other persons in the act committed by the defendant;

4) the presence of a counter-complaint in the private prosecution case from the defendant, received in the preparatory part of the court hearing;

5) the parties refuse to reconcile;

6) in cases of crimes committed by a group of persons, if at least one of the defendants objects to conducting an abbreviated judicial investigation and the case against him cannot be separated into separate proceedings;

7) in all cases involving minors;

lack of agreement between the parties regarding the range of evidence that should be examined in court.