Peculiarities of criminal proceedings in relation to certain categories of persons

New edition of Art. 447 Code of Criminal Procedure of the Russian Federation

1. The requirements of this chapter are applied in criminal proceedings in relation to:

1) a member of the Federation Council and a deputy of the State Duma, a deputy of the legislative (representative) body of state power of a constituent entity of the Russian Federation, a deputy, a member of an elected local government body, an elected official of a local government body;

2) a judge of the Constitutional Court of the Russian Federation, a judge of a federal court of general jurisdiction or a federal arbitration court, a magistrate and a judge of a constitutional (charter) court of a constituent entity of the Russian Federation, a juror or an arbitration assessor during the period of his administration of justice;

3) the Chairman of the Accounts Chamber of the Russian Federation, his deputy and auditors of the Accounts Chamber of the Russian Federation;

4) Commissioner for Human Rights in the Russian Federation;

5) the President of the Russian Federation who has ceased to exercise his powers, as well as a candidate for President of the Russian Federation;

6) prosecutor;

6.1) Chairman of the Investigative Committee of the Russian Federation;

6.2) the head of the investigative body;

7) investigator;

lawyer;

9) a member of the election commission, referendum commission with the right of decisive vote;

10) a registered candidate for deputy of the State Duma, a registered candidate for deputy of a legislative (representative) body of state power of a constituent entity of the Russian Federation.

2. The procedure for criminal proceedings against persons specified in part one of this article is established by this Code with the exceptions provided for by this chapter.

The concept and grounds for special proceedings in cases involving certain categories of persons

The objectives of proceedings in cases involving certain categories of persons are determined by the purpose of criminal proceedings and its implementation in the investigation of this category of cases. Implementation of the provisions of Art. 6 of the Code of Criminal Procedure of the Russian Federation, in special proceedings in cases against certain categories of persons, does not exclude the solution of private problems characteristic only of this stage of the criminal process.

The criminal procedural legislation of the Russian Federation provides for the presence of witness immunity, diplomatic immunity (Part 2 of Article 3 of the Code of Criminal Procedure of the Russian Federation), as well as the specifics of criminal proceedings in relation to certain categories of persons, provided for in Section XVII “Peculiarities of criminal proceedings in relation to certain categories persons." These include members of the Federation Council and deputies of the State Duma; deputies of the legislative (representative) body of state power of the constituent entities of the Russian Federation, local government, etc.

The emerging criminal procedural relations for certain categories of persons can be characterized by the concept of “criminal procedural immunities and privileges”, due to which:

individuals are exempt from performing certain procedural duties;
For some categories of persons, special guarantees are established for the validity of applying procedural coercion measures or holding them accountable.

Features of criminal proceedings in relation to certain categories of officials, which have been enshrined in the Code of Criminal Procedure of the Russian Federation, can be defined as a set of exceptional legal norms regulating the special conditions and procedure for initiating a criminal case, bringing to criminal liability and proceedings in relation to or with the participation of a person determined by law. categories of citizens, including the need to obtain permission from certain authorities to conduct all or some procedural actions in relation to these persons.

Official immunity does not mean the acquisition of personal benefits by such persons, but constitutes a guarantee of the effectiveness of their performance of the most important state and public functions. Its direct legal basis is not the principle of equality of citizens, but other legal principles - the independence of judges, separation of powers, etc.

The purpose of the features of criminal proceedings in relation to certain categories of persons is that the legislator, based on the role that certain persons play in the state and society, in order to ensure their continuous and uninterrupted activities, increase independence, as well as to protect moral and moral values has established special procedures for bringing them to criminal liability.

Service immunity for different categories of persons has different scope and can extend its effect to various legal areas. In accordance with the provisions of Ch. 52 of the Code of Criminal Procedure of the Russian Federation limited official immunity is granted to the persons named therein. The proceedings against these persons are a general procedure of criminal proceedings with exceptions and additional procedural guarantees. These are mainly officials of government bodies, whose activities require special guarantees of their independence or autonomy, but a special procedure also applies to lawyers who are employed by a non-governmental organization.

The special procedure under consideration should be distinguished from the special procedure for conducting criminal proceedings in relation to persons enjoying international (diplomatic, consular, etc.) immunity, which is granted to them, first of all, by international law and, in general, is distinguished by an even greater volume of exceptions from the ordinary system legal proceedings.

The special procedure for criminal proceedings provided for in Ch. 52 of the Code of Criminal Procedure of the Russian Federation, to one extent or another and with certain differences, is applied to the following categories of persons (Part 1 of Article 447):

a member of the Federation Council and a deputy of the State Duma, a deputy of a legislative (representative) body of state power of a constituent entity of the Russian Federation, a deputy, a member of an elected local government body, an elected official of a local government body;
a judge of the Constitutional Court of the Russian Federation, a judge of a federal court of general jurisdiction or a federal arbitration court, a magistrate and a judge of a constitutional (statutory) court of a constituent entity of the Russian Federation, a juror or an arbitration assessor during the period of his administration of justice;
Chairman of the Accounts Chamber of the Russian Federation, his deputy and auditors of the Accounts Chamber of the Russian Federation;
Commissioner for Human Rights in the Russian Federation;
the President of the Russian Federation who has ceased to exercise his powers, as well as a candidate for President of the Russian Federation;
prosecutor; Chairman of the Investigative Committee of the Russian Federation;
head of the investigative agency;

investigator;

lawyer;

member of the election commission, referendum commission with the right of decisive vote;

a registered candidate for deputy of the State Duma, a registered candidate for deputy of a legislative (representative) body of state power of a constituent entity of the Russian Federation.

The procedural immunity of these persons is due in some cases to the presence of their special legal status and is based on the norms of international law, the Constitution of Russia and federal legislation.

The implementation of the provisions of the criminal procedure law in relation to the listed persons is carried out taking into account the status legislation regulating the powers, functions and measures to protect their integrity.

It should be noted that Ch. 52 of the Code of Criminal Procedure of the Russian Federation establishes the specifics of proceedings in relation to certain categories of persons, relating only to those situations when the listed persons are brought to justice, that is, they receive the legal status of a suspect or accused. The specifics of their participation in criminal proceedings as other participants in the process are determined by other norms or are not specified at all. In particular, part 3 of Art. 56 of the Code of Criminal Procedure of the Russian Federation establishes the impossibility of questioning as a witness:

judges, jurors - about the circumstances of the criminal case that became known to them in connection with their participation in the proceedings in this criminal case;
lawyer, defender of a suspect, accused - about the circumstances that became known to him in connection with an appeal to him for legal assistance or in connection with its provision;
lawyer - about the circumstances that became known to him in connection with the provision of legal assistance;
the clergyman - about the circumstances that became known to him from confession;
a member of the Federation Council, a deputy of the State Duma without their consent - about the circumstances that became known to them in connection with the exercise of their powers.

But these provisions lose relevance when carrying out criminal prosecution against these persons, since in this case they have the opportunity not to testify at all.

Criminal proceedings in relation to these categories of persons are conducted in accordance with the general requirements of the criminal procedure law.

Additional procedural guarantees are established for the following types of procedural and investigative actions:

criminal proceedings;
detention;
choosing a preventive measure in the form of detention;
carrying out investigative actions that restrict the constitutional rights and freedoms of the individual - search, seizure, seizure of postal and telegraph correspondence, wiretapping of telephone and other conversations;
sending a criminal case to court;
determination of jurisdiction of a criminal case.

Additionally

Most citizens know that husbands and wives of accused or suspects are not subject to questioning as witnesses if their marriage is formalized in the established legal manner (by the registry office). The latter are endowed with a certain immunity. But should people whose marriage is not registered testify against their spouses? According to the law, cohabitants are not close relatives. This means that if one of them is under investigation, the “civilian” husband or wife will not be able to refuse to testify. Otherwise, they face criminal liability. You definitely need to know this.

Peculiarities of initiating criminal proceedings against certain categories of persons

According to Part 2 of Art. 447 of the Code of Criminal Procedure of the Russian Federation, the procedure for criminal proceedings against persons specified in Part 1 of this article is established with the exceptions provided for in Chapter. 52.

In relation to the issue under consideration, exceptions relate to the procedure for initiating a criminal case, bringing a person as an accused, changing the charge, which entails a worsening of his situation.

In addition, a number of exceptions are contained in legal norms located outside Chapter. 52 of the Code of Criminal Procedure of the Russian Federation. These are rules establishing special grounds for refusal to initiate a criminal case, termination of a criminal case and criminal prosecution (Part 1 of Article 24, Part 1 of Article 27), as well as determining the jurisdiction of criminal cases of this category (Part 2 of Article 151) .

Consideration and resolution of the issue of initiating a criminal case against a certain person or involving him as an accused (if a criminal case was initiated against another person or upon the commission of an act) is carried out in accordance with paragraph 1-14 of Part 1 of Art. 448 of the Code of Criminal Procedure of the Russian Federation in a special order.

The first group includes members of the Federation Council and deputies of the State Duma. The initiation of criminal cases against this category of persons is characterized by three features:

the decision to initiate a criminal case can be made only by one official - the Chairman of the Investigative Committee of the Russian Federation;
the basis for such a decision can only be the submission of the Prosecutor General of the Russian Federation;
To initiate a criminal case, the consent of the Federation Council or the State Duma is required, respectively (clause 1, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation).

The second group includes the Prosecutor General of the Russian Federation and the Chairman of the Investigative Committee of the Russian Federation. The initiation of criminal cases against this category of persons is characterized by three features:

the decision to initiate a criminal case against the Prosecutor General of the Russian Federation can be made by the Chairman of the Investigative Committee of the Russian Federation, and in relation to the Chairman of the Investigative Committee of the Russian Federation
- by the acting Chairman of the Investigative Committee of the Russian Federation;
the basis for such a decision may be the conclusion of a panel consisting of three judges of the Supreme Court of the Russian Federation that there are signs of a crime in the actions of a given person;
To initiate a criminal case, a representation from the President of the Russian Federation is required (clauses 2 and 2.1, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation).

The third group includes judges of the Constitutional Court of the Russian Federation.

The initiation of criminal cases against this category of persons is characterized by the following features:

the decision to initiate a criminal case can be made only by one official - the Chairman of the Investigative Committee of the Russian Federation;
To initiate a criminal case, the consent of the Constitutional Court of the Russian Federation is required (clause 3, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation).

The fourth group can include judges of the Supreme Court of the Russian Federation, the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region and a court of an autonomous district, a federal arbitration court, and a military court. The initiation of criminal cases against this category of persons is characterized by three features:

the decision to initiate a criminal case can be made only by one official - the Chairman of the Investigative Committee of the Russian Federation;
To initiate a criminal case, the consent of the High Qualification Board of Judges of the Russian Federation is required (clause 4, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation).

The fifth group includes all other judges (federal, including military, as well as magistrates). The initiation of criminal cases against this category of persons is characterized by two features:

the decision to initiate a criminal case can be made only by one official - the Chairman of the Investigative Committee of the Russian Federation;
To initiate a criminal case, the consent of the relevant qualification board of judges is required (clause 5, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation).

The next, sixth group can include deputies of legislative (representative) bodies of state power of the constituent entities of the Russian Federation, the initiation of a criminal case against which is permitted only by decision of the head of the investigative body of the Investigative Committee of the Russian Federation for the constituent entity of the Russian Federation (clause 9, part 1, article 448 of the Code of Criminal Procedure RF).

The seventh group includes all persons whose special procedure for initiating a criminal case against whom is expressed only in the fact that a decision on such initiation can be made by an official - the Chairman of the Investigative Committee of the Russian Federation. This:

Chairman of the Accounts Chamber of the Russian Federation, his deputies and auditors of the Accounts Chamber of the Russian Federation (clause 6, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation);
Commissioner for Human Rights in the Russian Federation (clause 7, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation);
The President of the Russian Federation, who has ceased to exercise his powers, as well as a candidate for President of the Russian Federation (Clause 8, Part 1, Article 448 of the Code of Criminal Procedure of the Russian Federation).

The eighth group is represented by deputies, members of an elected local government body, elected officials of a local government body, the initiation of a criminal case against whom is permitted only by decision of the head of the investigative body of the Investigative Committee of the Russian Federation for the subject of the federation (clause 11, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation) .

The ninth group includes voting members of the election commission, referendum commission, the initiation of a criminal case against whom is permitted only by decision of the head of the investigative body of the Investigative Committee of the Russian Federation, as well as voting members of the Central Election Commission of the Russian Federation, the chairman of the election commission of the subject of the federation, the initiation of a criminal case against which is permitted only by decision of the Chairman of the Investigative Committee of the Russian Federation (clause 12, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation).

The tenth group includes registered candidates for deputies of the State Duma, the initiation of criminal proceedings against whom is permitted in accordance with Art. 146 and 171 of the Code of Criminal Procedure of the Russian Federation only with the consent of the Chairman of the Investigative Committee of the Russian Federation, and in relation to registered candidates for deputies of the legislative (representative) body of state power of the subject of the federation - in accordance with Art. 146 and 171 of the Code of Criminal Procedure of the Russian Federation with the consent of the head of the investigative body of the Investigative Committee of the Russian Federation for the subject of the federation (clauses 13 and 14 of Part 1 of Article 448 of the Code of Criminal Procedure of the Russian Federation).

And finally, the eleventh group includes: prosecutors of the district, city, equivalent prosecutors, heads and investigators of the investigative body for the district, city, as well as lawyers, the peculiarity of initiating a criminal case against whom is that the decision to initiate such an In all cases, it is accepted by the head of the investigative body of the Investigative Committee of the Russian Federation for the subject of the federation, and in relation to higher prosecutors, heads and investigators of higher investigative bodies - the Chairman of the Investigative Committee of the Russian Federation (Clause 10, Part 1, Article 448 of the Code of Criminal Procedure of the Russian Federation).

If a criminal case is initiated against the President of the Russian Federation who has ceased to exercise his powers, the Chairman of the Investigative Committee, within 3 days, sends to the State Duma a proposal to deprive the said person of immunity. If the State Duma makes a decision to give consent to this act, it, together with the presentation of the Chairman of the Investigative Committee, is sent to the Federation Council of the Federal Assembly of the Russian Federation within 3 days. The decision of the Federation Council to revoke the immunity of the President of the Russian Federation who has ceased to exercise his powers is made no later than 3 months from the date of the relevant resolution of the State Duma, of which the Chairman of the Investigative Committee is notified within 3 days. The decision of the State Duma to refuse to give consent to the deprivation of immunity of the President of the Russian Federation who has ceased to exercise his powers, or the decision of the Federation Council to refuse to deprive the immunity of the specified person entails the termination of criminal prosecution in accordance with clause 6 of Part 1 of Art. 27 Code of Criminal Procedure of the Russian Federation.

It is not allowed to initiate a criminal case against a judge on the grounds of a crime under Art. 305 of the Criminal Code of the Russian Federation, if the corresponding judicial act issued by this judge or with his participation has entered into legal force and has not been canceled in the manner established by procedural law as unjust.

Considering the specifics of the issue under consideration, it is necessary to pay attention to such a measure of procedural coercion as temporary removal from office. Thus, if an official is brought in as a suspect or accused and if it is necessary to temporarily remove him from office, the investigator, with the consent of the head of the investigative body, as well as the investigator with the consent of the prosecutor, initiates a corresponding petition before the court at the place of the preliminary investigation (Article 114, 1 and 2). Code of Criminal Procedure of the Russian Federation). Within 48 hours from the receipt of the petition, the judge makes a decision to temporarily remove the suspect or accused from office or to refuse it. An exception is the case of bringing as an accused, specified in Part 5 of Art. 114 of the Code of Criminal Procedure of the Russian Federation. The significance of this measure of procedural coercion is that its use makes it possible to eliminate the official’s opposition to the implementation of the proceedings.

Among the issues related to the initiation of a criminal case or the involvement of certain categories of persons as defendants, it is necessary to include the peculiarities of their right to rehabilitation. According to clause 3, part 2, art. 133 of the Code of Criminal Procedure of the Russian Federation, such a right appears to a suspect or accused, the criminal prosecution against whom has been terminated on the grounds provided for in paragraphs 1, 2, 5 and 6 of Part 1 of Art. 24 and paragraph 1, 4-6 parts 1 art. 27 Code of Criminal Procedure of the Russian Federation. At the same time, in paragraph 6 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation states that a criminal case cannot be instituted, and an instituted criminal case is subject to termination if there is no court consent to initiate a criminal case or to bring as an accused one of the persons specified in paragraphs 1-5, 9 and 10 hours 1 tbsp. 448 Code of Criminal Procedure of the Russian Federation.

What do you need to know?

So, this means that a witness is considered to be a person who knows some of the circumstances of what happened and is summoned to testify to the investigator, interrogating officer or to the court. Thus, a citizen can be invited for questioning in order to convey information to an official not only when he actually has some information, but even if the law enforcement officer has a reasonable assumption that the latter knows something about the crime committed.

It should also be noted that any person can be a witness, regardless of his social status or other circumstances related to his personality. However, the law contains a list of those persons who cannot be called as witnesses either by the police or in court.

Referral of a criminal case to court and its consideration in relation to certain categories of persons

The general procedure for sending a criminal case to court is regulated by Art. 222 of the Code of Criminal Procedure of the Russian Federation. Exceptions from this article are established by Art. 451 Code of Criminal Procedure of the Russian Federation. Of all categories of persons specified in Part 1 of Art. 447 of the Code of Criminal Procedure of the Russian Federation, which regulates the special procedure for criminal proceedings, with the exception of members of the Federation Council and deputies of the State Duma.

In the case where a criminal case was initiated or a person was brought as an accused in the manner established by Art. 448 of the Code of Criminal Procedure of the Russian Federation, after the completion of the preliminary investigation, the criminal case against such a person is sent to the court that has jurisdiction over it in accordance with the jurisdiction established by Art. 31-36 Code of Criminal Procedure of the Russian Federation.

After the completion of the preliminary investigation, the leading investigator draws up an indictment and approves it with the relevant prosecutor. The latter sends the indictment to the Chairman of the Investigative Committee of the Russian Federation so that he sends a petition for consent to send the criminal case to the court, respectively, in relation to a member of the Federation Council - to the upper, and in relation to a deputy of the State Duma - to the lower house of the Federal Assembly of the Russian Federation. The decision of the chambers to send or not to send a criminal case to the court is the basis for transferring the criminal case to the appropriate court or for terminating the criminal case in accordance with paragraph 6 of Part 1 of Art. 27 Code of Criminal Procedure of the Russian Federation.

Another comment on Art. 447 Criminal Procedure Code of the Russian Federation

1. Compared to previous legislation, the list of persons enjoying privileges in initiating criminal cases and conducting investigations has been significantly expanded (members of an elected local government body, investigators, lawyers, Chairman of the Investigative Committee at the Prosecutor's Office of the Russian Federation, head of the investigative body).

This is interesting: Articles 201, 285, 286 of the Criminal Code of the Russian Federation: abuse of official powers and official position in 2022

2. The granting of immunity to the persons specified in this article is of a public law nature, i.e. aims to ensure their independence and protect them from illegal influences from interested parties. There is no distinction between crimes “on duty” and those not related to “service”.

3. In the above list of persons enjoying immunity, a candidate for President of the Russian Federation should be understood as a person officially registered in this capacity by the Central Election Commission; under the prosecutor - any prosecutor, his deputy, assistant, starting from the district (city) and ending with the Prosecutor General of the Russian Federation; under the investigator - any person officially appointed to this position in the prosecutor's office, the Ministry of Internal Affairs, the FSB, the authorities for control over the circulation of narcotic drugs and psychotropic substances; “lawyer” means a person who has received an official certificate of admission to practice as a lawyer, regardless of which chamber, board, consultation or bureau he belongs to. A lawyer is also a person who has a certificate (license) for the right to practice law either individually or as part of an office or firm. During the administration of justice, jurors and arbitration assessors enjoy immunity.

Another commentary on Article 447 of the Criminal Procedure Code of the Russian Federation

In this section, the legislator continues the line begun in the previous (XVI) section of the Code of Criminal Procedure to isolate the rules regulating a special procedure for legal proceedings, determined by the specifics of the subject in respect of which the issue of criminal prosecution is being decided. In this regard, from a purely structural and technical point of view, the identification of rules on a special procedure for criminal prosecution of a certain category of civil servants seems unnecessary. A separate set of norms on this topic is covered by the title of Section XVI “Features of proceedings in certain categories of criminal cases.”