1. The decision to initiate a criminal case against the person specified in part one of Article 447 of this Code, or to bring him in as an accused, if the criminal case was initiated against other persons or upon the commission of an act containing signs of a crime, is made: 1 ) in relation to a member of the Federation Council and a deputy of the State Duma - by the Chairman of the Investigative Committee of the Russian Federation with the consent of the Federation Council and the State Duma, respectively, obtained on the basis of a proposal from the Prosecutor General of the Russian Federation;
2) in relation to the Prosecutor General of the Russian Federation - by the Chairman of the Investigative Committee of the Russian Federation on the basis of the conclusion of a panel consisting of three judges of the Supreme Court of the Russian Federation, adopted on the proposal of the President of the Russian Federation, on the presence of signs of a crime in the actions of the Prosecutor General of the Russian Federation; 2.1) in relation to the Chairman of the Investigative Committee of the Russian Federation - as the acting Chairman of the Investigative Committee of the Russian Federation on the basis of the conclusion of a panel consisting of three judges of the Supreme Court of the Russian Federation, adopted on the proposal of the President of the Russian Federation, on the presence of signs of a crime in the actions of the Chairman of the Investigative Committee of the Russian Federation; 3) in relation to a judge of the Constitutional Court of the Russian Federation - by the Chairman of the Investigative Committee of the Russian Federation with the consent of the Constitutional Court of the Russian Federation; 4) in relation to a judge 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, a military court - by the Chairman of the Investigative Committee of the Russian Federation with the consent of the Higher Qualification Board of Judges Russian Federation; 5) in relation to other judges - by the Chairman of the Investigative Committee of the Russian Federation with the consent of the relevant qualification board of judges; 6) in relation to the Chairman of the Accounts Chamber of the Russian Federation, his deputy and auditors of the Accounts Chamber of the Russian Federation - by the Chairman of the Investigative Committee of the Russian Federation; 7) in relation to the Commissioner for Human Rights in the Russian Federation - the Chairman of the Investigative Committee of the Russian Federation; in relation to the President of the Russian Federation, who has ceased to exercise his powers, as well as the candidate for President of the Russian Federation - Chairman of the Investigative Committee of the Russian Federation; 9) in relation to a deputy of the legislative (representative) body of state power of a constituent entity of the Russian Federation - the head of the investigative body of the Investigative Committee of the Russian Federation for the constituent entity of the Russian Federation; 10) in relation to the prosecutor of the district, city, prosecutors equivalent to them, the head and investigator of the investigative body for the district, city, as well as the lawyer - by the head of the investigative body of the Investigative Committee of the Russian Federation for the constituent entity of the Russian Federation; in relation to higher prosecutors, managers and investigators of higher investigative bodies - by the Chairman of the Investigative Committee of the Russian Federation or his deputy; 11) in relation to a deputy, a member of an elected local government body, an elected official of a local government body - the head of the investigative body of the Investigative Committee of the Russian Federation for a constituent entity of the Russian Federation; 12) in relation to a voting member of an election commission, a referendum commission - by the head of the investigative body of the Investigative Committee of the Russian Federation for a constituent entity of the Russian Federation, and in relation to a voting member of the Central Election Commission of the Russian Federation, the chairman of the election commission of a subject of the Russian Federation - by the Chairman of the Investigative Committee Committee of the Russian Federation; 13) in relation to a registered candidate for deputy of the State Duma - in accordance with Articles 146 and 171 of this Code with the consent of the Chairman of the Investigative Committee of the Russian Federation, effective from January 15, 2011 by Federal Law of December 28, 2010 N 404-FZ; 14) in relation to a registered candidate for deputy of a legislative (representative) body of state power of a constituent entity of the Russian Federation - in accordance with Articles 146 and 171 of this Code with the consent of the head of the investigative body of the Investigative Committee of the Russian Federation for the constituent entity of the Russian Federation.
2. The presentation of the President of the Russian Federation on the presence of signs of a crime in the actions of the Prosecutor General of the Russian Federation or the Chairman of the Investigative Committee of the Russian Federation is considered in a closed court session within ten days after the receipt of the corresponding presentation to the court with the participation of the Prosecutor General of the Russian Federation or the Chairman of the Investigative Committee of the Russian Federation and ( or) their lawyers based on the materials submitted to the court. 3. Based on the results of consideration of the presentation of the President of the Russian Federation, the court issues a conclusion on the presence or absence of signs of a crime in the person’s actions.
4. When considering the issue of giving consent to initiate a criminal case against a member of the Federation Council or a deputy of the State Duma or to involve him as an accused, if a criminal case has been initiated against other persons or upon the commission of an act containing elements of a crime, the Federation Council or The State Duma, accordingly, having established that the performance of these procedural actions is due to the opinion expressed by him or the position expressed by him when voting in the Federation Council or the State Duma, respectively, or is connected with his other legal actions corresponding to the status of a member of the Federation Council and the status of a deputy of the State Duma, refuses to grant consent to deprive a given person of immunity. Such a refusal is a circumstance that excludes criminal proceedings against a given member of the Federation Council or deputy of the State Duma.
5. The decision of the Constitutional Court of the Russian Federation, as well as the corresponding qualification board of judges to give or refuse to give consent to initiate a criminal case against a judge or to involve him as an accused must be motivated. This decision is made no later than 10 days from the date the court receives the presentation of the Chairman of the Investigative Committee of the Russian Federation.
6. Part lost force on January 10, 2009 - Federal Law of December 25, 2008 N 280-FZ.
7. 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 of the Russian Federation, within 3 days, sends to the State Duma of the Federal Assembly of the Russian Federation a proposal to deprive the said person of immunity. If the State Duma makes a decision to give consent to the deprivation of immunity of the President of the Russian Federation who has ceased to exercise his powers, the said decision, together with the presentation of the Chairman of the Investigative Committee of the Russian Federation, 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 adoption of the corresponding resolution of the State Duma of the Federal Assembly of the Russian Federation, of which the Chairman of the Investigative Committee of the Russian Federation 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 paragraph 6 of part one of Article 27 of this Code.
8. It is not allowed to initiate a criminal case against a judge on the grounds of a crime provided for in Article 305 of the Criminal Code of the Russian Federation, if the relevant 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.
Article 58 of the Code of Criminal Procedure of the Russian Federation. Specialist (current edition)
1. A specialist’s explanation to the parties and the court of issues within his professional competence may occur in the following cases:
- during his participation in the conduct of procedural actions to detect, secure and confiscate objects and documents, as well as the use of technical means to study the materials of the criminal case;
- with the participation of a specialist teacher in the interrogation of a minor victim, witness, suspect, accused (Articles 191, 280, 425);
- when a specialist gives a written opinion on the initiative of one or another party or parties (Part 3 of Article 80);
- when interrogating a specialist during pre-trial preparation or in court (part 4 of article 80, part 4 of article 271).
In the last two cases, the specialist’s explanation of issues within his professional competence may, to some extent, compete with the expert’s conclusion. In his conclusion or testimony (Parts 3 - 4 of Article 80), a specialist can give new light to circumstances already known to the court, clarifying their true meaning, and, in addition, with the help of special knowledge and techniques, identify before the court circumstances that, without the specialist’s explanations could remain outside the court’s view. Like an expert, a specialist gives the court his judgment and opinion about the facts, which, however, is not formalized by an expert opinion, but by the conclusion or testimony of a specialist. Moreover, within the meaning of Part 1 of Art. 58 the specialist expresses judgments and opinions: a) regarding the circumstances related to the discovery, recording and seizure of evidence; b) the actions he performs; c) for all other circumstances, the explanation of which is required by the parties or the court. At the same time, it would be a mistake to equate the expert’s opinion given in court with the expert’s explanation contained in his conclusion or testimony. The specialist’s duty to give clarification is the duty “to the word, not to the deed.” While giving explanations, he is deprived of the opportunity to conduct any research other than those that consist of logical conclusions using special knowledge. Moreover, these conclusions should be accessible to the perception and understanding of non-specialists even in the conditions of an ongoing court hearing, since they constitute the content of the explanations. Thus, a specialist’s explanations cannot replace an expert’s opinion if the answers to unclear questions require independent research.
2. Calling a specialist is the right not only of the body of inquiry, the inquirer, the investigator and the court, but also of other participants in the process acting on the side of both the prosecution and the defense. Until the end of the preliminary investigation, the law grants this right only to the defense attorney (Clause 3, Part 1, Article 53), and after the accused and his defense attorney have familiarized themselves with the materials of the criminal case, also to the accused (Part 4, Article 217). In the preparatory part of the court session, both parties are vested with this right (Part 4 of Article 271). However, a specialist has the right to refuse to participate in criminal proceedings if he does not have the appropriate special knowledge, and, like an expert, he does not bear criminal liability for refusing to participate in a case. A specialist’s refusal to participate in a case may also occur if there are grounds for his withdrawal (Articles 62, 71). In addition to refusing to participate in criminal proceedings, the specialist also has the right to ask questions to the participants in the investigative action, with the permission of the inquirer, investigator and the court; he may familiarize himself with the protocol of the investigative action in which he participated, and make statements and comments that must be entered into the protocol; bring complaints against actions (inaction) and decisions of the inquirer, investigator, court that limit his rights. In addition, the specialist has the right to claim payment to him of amounts to cover expenses associated with appearing at the place of procedural actions and accommodation (clause 1, part 2, article 131).
3. A specialist does not have the right to evade appearing when summoned by an inquiry officer, investigator or in court; is obliged not to disclose preliminary investigation data that became known to him in connection with his participation in criminal proceedings as a specialist, if he was warned about this in advance.
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
Historical reference
For the first time, the term “specialist” in criminal proceedings appeared only during the Soviet Union, namely in 1966. This was led to by the presence in a number of articles of the Code of Criminal Procedure of the RSFSR of a specialist as one of the characters. However, for 6 years after its release, no legislative acts appeared that would not only regulate their activities, but also define its rights and obligations. But even after this, one could notice a huge number of significant shortcomings of this rule, which only confused the legal proceedings and did not help it at all. They were corrected only in 2001 in the new Criminal Procedure Code of the Russian Federation.
Place of a specialist in the group of participants in legal proceedings
According to existing legislation, a specialist in the Code of Criminal Procedure of the Russian Federation is classified as a group of other participants in legal proceedings. Directly all his actions must be aimed at ensuring the proper level of justice and providing objectivity to the available evidence that was obtained in the case and cannot be provided by anyone else, since the other participants cannot do this due to lack of knowledge. However, such an interpretation does not mean at all that a specialist in criminal proceedings is an insignificant person who plays only a supporting role.
Their frequent bringing to court has proven the true need for such people, since often without them it is simply impossible to carry out the evidentiary procedure. Based on all that has been said, it can be understood that a specialist under Art. 58 of the Code of Criminal Procedure of the Russian Federation plays one of the most important roles, which is to ensure the normal and objective functioning of all legal proceedings.
Participation of a specialist in legal proceedings
The forms of specialist participation in criminal proceedings currently have absolutely no legislative support, however, they usually include the following:
1. Preparation of special opinions in the area of their competence.
2. Interrogation of a specialist who helps him explain his opinion, approved in the conclusion or to clarify other circumstances.
3. Carrying out independent procedural actions, but only on the special instructions of the investigator.
4. Carrying out checks and revisions of documents, as well as their research at the request of authorities.
5. Examination of corpses or objects.
6. Providing consulting assistance.
At its core, most of the specialist’s actions are aimed at assisting the investigator, advising him on highly specialized issues that he cannot know himself. Its activities have a very strict framework, so additional experts are often involved.
Requirements
To perform their duties, any specialist must meet all the requirements imposed on him by law. Mainly, they lie in his professional competence. The investigator is obliged to check it before directly involving it in the investigation. He is also obliged to ascertain the attitude of the specialist to the parties to the case, and later explain to him all his rights and obligations. Only after this can you begin to directly fulfill your role in the matter.
Forms of using help
At the moment, assistance from people on the specialist register can be used in cases where you need help in the following areas. These include:
1. Involvement of a specialist for direct participation during investigative actions.
2. A specialist may be involved in the use of technical means that can help in the process of studying the case materials.
3. To correctly pose questions to experts.
4. To explain to the participants in the process issues that are directly within their narrow competence.
According to Article 168 of the Code of Criminal Procedure of the Russian Federation on the participation of a specialist, the investigator has the right to involve him in cases approved by law. Also, before starting investigative actions, the specialist must be explained all his rights and obligations, as well as responsibility for giving false information.
Concept of special knowledge
In order to be included in the register of specialists, a person must have a number of special knowledge. However, what is commonly understood by this term? It is customary to highlight several special principles:
1. All knowledge must be included in a narrow sense, and also represent a unified system of knowledge.
2. All knowledge available to a person is generally known and accessible, but only a limited circle of people should really possess it.
3. Knowledge must be acquired by a person as a result of receiving special education, professional training or self-development.
4. The acquired knowledge is necessary for a specific profession and, if necessary, is used in criminal proceedings to consider and resolve issues in a specific area.
From all this it can be understood that only persons who have no interest in the final outcome of the criminal case, but at the same time have special knowledge, can be specialists in criminal proceedings. This knowledge can be from completely different fields such as art, science, technology and many others. Thus, most often they invite technical specialists, psychologists and teachers who can help with the interrogation of a minor.
Concept
At the moment, the testimony of a specialist in criminal proceedings often plays the final role in forensic examination, and therefore you should clearly know what rights and responsibilities they have. However, before this, it is necessary to determine what exactly the legislator puts into the term itself.
The position of a specialist can only be performed by a person who has special knowledge. If necessary, he is involved in procedural actions in accordance with existing criminal legislation in order to assist in the discovery, securing and seizure of the necessary case materials. In addition, they can, as technical specialists, use the necessary tools to examine documents, help pose questions to experts and explain to the court issues that fall within their area of competence.
Responsibilities
However, in addition to rights, specialists also have a number of very serious responsibilities that they must comply with. First of all, it should be understood that the specialist should not refuse a call from the investigator or the court, and also disclose any materials that he received during the investigation, especially if this was announced to him in advance. Disclosure of such information may result in the person being convicted of a criminal offense. Quite often, to prevent this, they may even take a non-disclosure agreement from him.
