Article 29 of the Code of Criminal Procedure of the Russian Federation. Powers of the court (current version)

The court as a participant in criminal proceedings

The court is the only body that, in accordance with the Constitution, has the right to administer justice in criminal cases.

The court, as the bearer of judicial power in criminal proceedings, is vested with three types of powers.

1. For resolving criminal cases

(only the court has the power to:

• find a person guilty of committing a crime and impose punishment on him;
• apply compulsory medical measures to a person;
• apply compulsory educational measures to the person;
• cancel or change the decision made by the lower court (part 1 of article 29 of the Code of Criminal Procedure of the Russian Federation)).

2. To limit the constitutional rights of citizens, including during pre-trial proceedings

(only the court, including during pre-trial proceedings, is authorized to make decisions:

• on the selection of a preventive measure in the form of detention, house arrest, bail;
• on extending the period of detention;
• on the placement of a suspect, accused, who is not in custody, in a medical or psychiatric hospital for a forensic medical or forensic psychiatric examination, respectively;
• on conducting an inspection of a home in the absence of the consent of the persons living in it;
• about conducting a search and (or) seizure of a home;
• on conducting a personal search, with the exception of cases provided for in Art. 93 Code;
• on the seizure of objects and documents containing state or other secrets protected by law, as well as information on deposits and accounts in banks and other credit organizations;
• on the seizure of correspondence, permission to inspect and seize it in communication institutions;
• on the seizure of property, including funds of individuals and legal entities held in accounts and deposits or stored in banks and other credit organizations;
• on the temporary removal of the suspect or accused from office;
• on control and recording of telephone and other conversations (Part 2 of Article 29 of the Code of Criminal Procedure of the Russian Federation)).

3. To control the legality of the actions of the inquiry body, investigator, investigator and prosecutor

(the court has the authority, during pre-trial proceedings, to consider complaints against the actions (inaction) and decisions of the prosecutor, investigator, inquiry agency and interrogator (Part 3 of Article 29 of the Code of Criminal Procedure of the Russian Federation)).

Criminal cases are considered by federal courts of general jurisdiction collegiately or by judges alone. If the accused requests this, the following criminal cases are considered collectively:

1) on grave and especially grave crimes - by a panel of three judges of a federal court of general jurisdiction or by a single judge;

2) about the crimes specified in Part 3 of Art. 31 of the Code of Criminal Procedure of the Russian Federation (i.e. for the most serious crimes, for which punishment up to the death penalty is threatened), consisting of a federal court judge and 12 jurors. Justices of the peace hear criminal cases only individually.

Criminal cases on appeals or appeals against sentences of magistrates are considered individually by judges of district courts.

In the cassation procedure and in the supervisory procedure, criminal cases are considered only collegially. Consideration of criminal cases in the cassation procedure is carried out by a panel of three, and in the supervisory case - at least three judges.

Article 29 of the Code of Criminal Procedure of the Russian Federation. Powers of the court (current version)

1. Only the court is competent:

1) find a person guilty of committing a crime and impose punishment on him;

2) apply compulsory medical measures to a person in accordance with the requirements of Chapter 51 of this Code;

3) apply compulsory educational measures to the person in accordance with the requirements of Chapter 50 of this Code;

3.1) terminate, on the grounds provided for in Article 25.1 of this Code, in relation to a person suspected or accused of committing a crime of minor or medium gravity, a criminal case or criminal prosecution with the imposition of a criminal law measure in the form of a court fine in accordance with the requirements of Chapter 51.1 of this Code;

4) cancel or change the decision made by the lower court.

2. Only the court, including during pre-trial proceedings, is competent to make decisions:

1) on the selection of a preventive measure in the form of detention, house arrest, bail, prohibition of certain actions;

2) on extending the period of detention, the period of house arrest, the period of prohibition of certain actions;

3) on the placement of a suspect, accused, who is not in custody, in a medical organization providing medical care in an inpatient setting, or in a medical organization providing psychiatric care in an inpatient setting, for a forensic medical or forensic psychiatric examination, respectively;

3.1) on compensation for property damage;

4) on conducting an inspection of the home in the absence of the consent of the persons living in it;

5) on conducting a search and (or) seizure of a home;

5.1) about the seizure of an item pledged or deposited in a pawnshop;

5.2) on conducting a search, inspection and seizure of a lawyer in accordance with Article 450.1 of this Code;

6) to conduct a personal search, except for the cases provided for in Article 93 of this Code;

7) on the seizure of items and documents containing state or other secrets protected by federal law, as well as items and documents containing information about deposits and accounts of citizens in banks and other credit organizations;

on the seizure of correspondence, permission to inspect and seize it in communication institutions;

9) on the seizure of property;

9.1) on establishing the period of arrest imposed on the property and its extension in the manner prescribed by this Code;

10) on the temporary removal of the suspect or accused from office in accordance with Article 114 of this Code;

10.1) on the sale, disposal or destruction of material evidence specified in subparagraph “c” of paragraph 1, subparagraphs “b”, “c” of paragraph 2, paragraphs 3 and 6 - 8, subparagraph “d” of paragraph 9 of part two of Article 82 of this Code;

10.2) on the transfer free of charge of material evidence specified in subparagraph “c” of paragraph 9 of part two of Article 82 of this Code;

11) on monitoring and recording telephone and other conversations;

12) on obtaining information about connections between subscribers and (or) subscriber devices;

13) on permission to cancel the decision to terminate a criminal case or criminal prosecution in the case provided for in part one.1 of Article 214 of this Code.

3. The court is authorized, during pre-trial proceedings, to consider complaints against actions (inaction) and decisions of the prosecutor, investigator, inquiry body, head of the inquiry agency, head of the inquiry unit and the investigator in the cases and in the manner provided for in Article 125 of this Code.

4. If, during the judicial consideration of a criminal case, circumstances are revealed that contributed to the commission of a crime, violation of the rights and freedoms of citizens, as well as other violations of the law committed during the inquiry, preliminary investigation or during the consideration of the criminal case by a lower court, then the court has the right to issue a private ruling or a resolution that draws the attention of relevant organizations and officials to these circumstances and facts of violations of the law that require the necessary measures to be taken. The court has the right to issue a private ruling or ruling in other cases if it finds it necessary.

Main functions of the court

Note 1
The court is an integral part of criminal proceedings. In criminal proceedings, the main function of the court is to administer justice. Realizing the function of justice on the principle of equality of parties in a judicial competition, the court resolves the dispute between the participants of the prosecution and the defense.

The powers that the court exercises in the process of considering a criminal case are divided into several groups: administration of justice, control of pre-trial proceedings.

When administering justice (trial of a case on the merits), the court is authorized to:

1. Bring charges against the person involved in the case and determine the punishment. An accusation of committing a crime is made by the court only at a court hearing, taking into account all the normative legal acts of the Criminal Code. On this topic, we have already completed the course work
   ; criminal law is described in more detail and is formulated in the court’s guilty verdict. The charge comes into force after the period for appealing it has expired.
2. Make a decision on compulsory medical examination or treatment of a subject of a criminal case who has committed a criminal act in an alleged state of insanity, make a decision on recognizing the insanity of this subject.
3. In relation to a minor who has committed a crime of high or moderate gravity for the first time, a compulsory measure of education should be applied. To assign responsibility for what a minor has done to his parents, guardians, trustees, in the form of making amends for his guilt.

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Note 2

Only a higher court can reverse or change the decision of a lower court.

The exclusive right of the court to make decisions that allow restrictions on civil rights during certain procedural actions:

• application of a preventive measure in the form of house arrest;
• extension of the term of imprisonment (house arrest, detention);
• forced placement of a suspect in medical or mental detention for treatment, conducting a forensic psychological examination;
• assignment of compensation for damage caused;
• forced inspection of a criminal’s home without the consent of the residents;
• conducting a search of the home and seizing material evidence;
• seizure of items deposited from a pawnshop as material evidence;
• seizure of objects and documents that contain state or other secrets protected by law, documents containing personal data of citizens that are not subject to disclosure;
• seizure of documents of communication enterprises, viewing of all correspondence and its seizure;
• arrest of all property of legal entities and individuals, arrest of bank accounts, etc.;
• temporary removal from office of subjects of a crime in accordance with Article 114 of the Code of Criminal Procedure On this topic, we have already completed the test work
  Criminal Procedure Law, option 1 more details;
• listening, monitoring, recording telephone conversations;
• destruction or sale of material evidence;
• requesting information about connections between subscriber devices.

Finished works on a similar topic

Course work The Court as a participant in criminal proceedings 400 ₽ Abstract The Court as a participant in criminal proceedings 240 ₽ Test work The Court as a participant in criminal proceedings 220 ₽

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Judicial discretion in criminal and civil proceedings

June 7, 2021 10:10 am

Participants of the meeting of the Club named after. D.N. Zamyatnin analyzed the features of judicial discretion and its role in the formation of law enforcement practice

As
AG
wrote D.N. Zamyatnin, dedicated to the topic of judicial discretion in legal proceedings. Opening the event, Chairman of the Council of Judges of the Russian Federation Viktor Momotov gave a lecture “Judicial discretion: good or evil, possibility or necessity in the context of the application of law.” During the report, he emphasized that expanding the scope of judicial discretion is a property of developed legal systems. At the same time, the effectiveness of its use directly depends on the quality of development of regulatory legal acts and the level of legal education. Representatives of the judicial and scientific communities noted that judicial discretion will be perceived positively by society only when it is convinced of its fair application. Member of the Council of the FPA of the Russian Federation Elena Avakyan also spoke out in favor of judicial discretion, but with the condition that such judicial acts should be understandable to the participants in the proceedings. On the importance of judicial activism in shaping practice

As reported by AG, the head of the Center for Legal Problems of Integration and International Cooperation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Anatoly Kovler, a former ECHR judge from the Russian Federation, noted in his speech that law is a system of myths created by humanity and acting as guidelines. According to him, the meaning of “normative parameters and normative guidelines” is understood only through their interpretation by judges or the application of precedents. “We are faced with a dilemma: how dangerous and necessary is judicial activism? In particular, it allows us to fill certain legislative gaps, and such activism can be welcomed,” he said.

As an example, Anatoly Kovler cited the ECHR ruling in the case “Kalashnikov v. Russia” on the conditions and duration of detention, as well as the duration of criminal proceedings. This resolution presented his separately concurring dissenting opinion, in which Anatoly Kovler did not agree with the Court’s conclusions about the reasonableness of the period of detention of the applicant before the trial, which in this case amounted to more than 4.5 years.

In another ruling of the ECHR - in the case “Kanaev v. Russia” - a special opinion of Anatoly Kovler was also presented regarding the rights of military personnel to appeal against state actions. These examples, according to the speaker, illustrate how judicial activism helps advance the understanding of modern realities. “For example, in the field of biological law, national legislation is conservative, and judges - both national and international - are often forced to maneuver and resolve very complex issues that the legislation does not answer,” he emphasized.

At the same time, the speaker mentioned the importance of the other side of judicial activism - self-restraint, which is also important for every judge.

Judicial discretion in civil proceedings

Judge of the Supreme Court of the Russian Federation Sergei Astashov noted that justice is an evaluation category based on a moral basis. “Operating with such evaluative categories that have moral characteristics is impossible without the discretion of the subject making the corresponding decision,” he explained.

Discussing whether judicial discretion is a good thing or not, the speaker compared it to a medicine, which by definition is good, but everything depends on the dose, the excess of which causes negative consequences.

According to Sergei Astashov, civil proceedings are impossible without judicial discretion, especially taking into account the tendency to move away from the formal application of substantive and civil law due to the complication and differentiation of legal relations. For example, declaring a transaction invalid due to a violation of the legislative prohibition on bad faith entails the nullity of such a transaction, and the resolution of such disputes (determining the fact of good faith or bad faith in relation to the conclusion of these transactions) is entirely based on judicial discretion.

As a disadvantage of judicial discretion in relation to civil legal relations, the Supreme Court judge named the reduced ability of participants in civil legal relations to predict the results of their legally significant actions. To overcome this negative effect, more detailed legislative regulation is necessary. “Despite a certain emotional and mythological background to the assessment of judicial discretion, upon its detailed analysis we can say that this is certainly a benefit that must be used within reasonable limits,” the judge concluded.

Judicial discretion in criminal proceedings

Honorably retired judge of the Supreme Court of the Russian Federation Mikhail Shalumov in his speech outlined the role of judicial discretion in criminal proceedings as extremely limited. “The procedure for considering a criminal case is clearly defined by law, and the judge must be guided by it,” he explained. – The judge examines the evidence presented by the parties, based on this research, he determines the factual side of the case, and if he comes to the conclusion that a crime has taken place, he must give a legal qualification to what was done, and if there was no crime, decide on the issue of acquittal sentence. In my opinion, in all these matters the judge has no discretion in making the appropriate decision.”

After the judge has qualified the crime, the speaker added, he turns to the sanctions of the criminal law, where the legislator has already determined the limits of punishment. “These limits can be adjusted,” noted Mikhail Shalumov. – It would seem that in this case the judge can choose the limit at his own discretion. But no".

As an example of the narrow limits of judicial discretion, Mikhail Shalumov cited residential burglary. Thus, the Criminal Code of the Russian Federation provides for this act a maximum penalty of imprisonment for a term of up to 6 years, a minimum of 2 months. If there was an attempted theft, the upper limit is reduced to 4.5 years. If the accused turns himself in, the sentence is reduced to 3 years. In the event of a repeat crime, the legislator also limits the minimum sentence to at least 1.5 years. “It is within these limits that the judge can exercise discretion in determining the punishment. But at the same time, he must take into account aggravating and mitigating circumstances, the personality of the defendant, and other circumstances. There is very little room for judicial discretion. And if it remains, then the only criterion here can be called the principle of justice,” he emphasized.

The speaker added that the principle of justice in this case provides that the punishment must correspond to the degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator. In addition, it is necessary to take into account the goals of punishment - restoration of social justice, correction of the convicted person and prevention of the commission of new crimes.

Another case of the possible use of judicial discretion in criminal proceedings, but with reservations, the speaker called the resolution of the issue of exemption from criminal liability on non-rehabilitative grounds. “The law states that the judge has the right to make such a decision. Nevertheless, this right of a judge is, in fact, his responsibility. The judge must establish the existence of all conditions for making such a decision and motivate it. So the discretion here is also very limited,” he explained.

In conclusion, Mikhail Shalumov noted that judicial discretion will be perceived positively by society only when society is convinced of its fair application. “In addition, society must have a correct understanding of justice - not the philistine, but the legal one,” he emphasized.

Lawyers value predictability of court decisions

According to Elena Avakyan, a member of the Council of the Federal Chamber of Lawyers of the Russian Federation, from the point of view of a lawyer it is difficult to talk about judicial discretion. “A lawyer in a trial needs predictability of decisions: he must be aware of what decision the court is likely to make,” she explained.

Elena Avakyan noted that in Russia, unfortunately, the institution of judicial discretion is still very flexible: in those aspects where it would be desirable to have more certainty (assessment of the admissibility and relevance of evidence, the possibility or impossibility of attracting witnesses, the activism of a lawyer in the trial, etc. .), judicial discretion is extremely wide. At the same time, in matters of sentencing and acquittals, it is extremely narrow. “I absolutely agree with the judges who said that judicial discretion is based primarily on the principles of justice, morality, morality. Unfortunately, we do not always have a common idea of ​​what is moral, ethical and fair from the point of view of the defendant’s defense lawyer and the judge,” she emphasized.

In addition, the speaker added, the degree of judicial discretion is largely limited by decisions of higher authorities: “What, if not a precedent, is created by the court at the moment when the legislator decides that he needs to transfer this or that norm into law? The Supreme Arbitration Court of the Russian Federation at one time followed this path, recognizing the existence of a precedent, and thus formed the trend of mandatory decisions of a higher authority on issues of application of law. Unfortunately, this did not always have a positive effect.”

The lawyer emphasized that the development of a uniform approach should be carried out from a reasonable and conscious position: “We would like the judges of lower authorities not to try to “pull” the position of higher authorities to any factual circumstances, but to apply it in those circumstances where it is applicable.”

In her speech, Elena Avakyan also touched upon the development of the legal tech market in relation to judicial discretion. “I am convinced that there should be no situation where citizens say that they would rather be judged by a robot than by a human judge,” she noted. – Judicial discretion comes from morality and justice, from mercy, from the ability to turn to a person, and not to a machine. Unfortunately, legal tech technologies, which imply the possibility of creating draft judicial acts with all the references and evaluation of evidence, atrophy people’s desire to understand the case.”

“Unfortunately, when we talk about judicial discretion, we often talk about formed internal bias. Discretion is good where and when the parties are free in their judgments and treat each other as equals,” emphasized a member of the Council of the FPA of the Russian Federation. However, she added that lawyers very rarely encounter the fact that the assessment of evidence provided by the defense is carried out with the same care and degree of confidence with which the evidence presented by the prosecution is assessed.

For lawyers, Elena Avakyan added, judicial discretion is, first of all, an opportunity to conduct an equal dialogue with the court, prove, form judicial discretion, including expecting that all provisions that will be made in a court decision will be justified and proven. “Without the legal profession there is no criminal proceedings. We are the same participants in the process, and not an addition attached to the accused,” she concluded. – I am for judicial discretion, but so that each such act is clear to the parties. Then the full confidence of all participants in the trial will be ensured.”

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How the “discretionary powers” ​​of the investigator violate the principles of adversarialism and equality of arms

Criminal proceedings within the meaning of Art. 6 of the Code of Criminal Procedure of the Russian Federation is intended to protect the rights and legitimate interests of individuals and organizations who have suffered from crimes, as well as to protect the individual from illegal and unfounded accusations, convictions, and restrictions on his rights and freedoms. Criminal prosecution and the imposition of a fair punishment on the guilty person correspond to the purpose of criminal proceedings to the same extent as the refusal to prosecute the innocent, releasing them from punishment, and the rehabilitation of everyone who was unreasonably subjected to it.

The adversarial principle of the parties is one of the fundamental principles of criminal proceedings and is enshrined in Art. 15 Code of Criminal Procedure of the Russian Federation. The functions of prosecution, defense and resolution of a criminal case are separated from each other and cannot be assigned to the same body or official. The court is not a criminal prosecution body, does not act on the side of the prosecution or defense, but is obliged to create conditions for the parties to exercise the rights granted to them and to fulfill procedural duties. The prosecution and defense have equal rights before the court.

According to Art. 16 of the Code of Criminal Procedure of the Russian Federation, the suspect (accused) is guaranteed the right to defense. The court, prosecutor, investigator and inquiry officer are obliged to explain to the specified person his rights and ensure the opportunity to defend himself by all means and methods not prohibited by criminal procedural legislation.

The listed provisions of the general norms of the Code of Criminal Procedure of the Russian Federation are consistent in meaning with the Constitution of the Russian Federation. From the Determination of the Constitutional Court of the Russian Federation of November 4, 2004 No. 430-O, it follows that, according to Part 3 of Art. 123 of the Constitution of the Russian Federation, legal proceedings are carried out on the basis of adversarialism and equality of the parties, which involves providing the parties to the prosecution and defense with equal procedural opportunities to defend their rights and legitimate interests. As the Constitutional Court of the Russian Federation has repeatedly pointed out, a guarantee of judicial protection and a fair trial is the real opportunity provided to the parties to bring their position regarding all aspects of the case to court, since only under this condition is the right to defense realized in a court hearing, which must be fair, complete and effective.

Thus, the “end product” of criminal proceedings is a fair, high-quality final decision based on factual data and the correct application of the law. The factual data on the basis of which it is adopted must be collected taking into account the equality of the parties (subject to the possibility of defending oneself by all methods and means not prohibited by the Criminal Procedure Code of the Russian Federation) and on the basis of the real opportunity provided to the parties to bring their position to court.

However, in practice this is not always the case, and one of the reasons for poor-quality court decisions in criminal proceedings, despite the proclamation of the principles of equality and competition between the parties, as well as the right to “real defense”, is the preponderance of powers in favor of the prosecution at the stage of preliminary investigation .

Recently, in my practice, I came across a conviction against two entrepreneurs who committed a crime in the field of economic activity. Having read the text of the verdict, I noticed that it was based mainly on the confessional testimony of one of the convicts, who was not chosen as a preventive measure in the form of detention at the stage of the preliminary investigation and was subsequently assigned a relatively “mild” punishment. The second convict did not admit guilt, tried to defend himself, and ultimately received a severe punishment, and spent the investigation in custody. The verdict was also based on the testimony of one of the victims, given in the course of the preliminary investigation, and indirect witnesses, read out in court.

In addition, at the investigation stage, the accused, who did not plead guilty, in support of his arguments, petitioned for the appointment of a judicial financial and economic examination, and also insisted on holding confrontations with persons who, as he believed, had incriminated him. Despite common sense, the need to establish objective circumstances in the case, work out all versions, exercise the right to defense in all not prohibited ways, use special knowledge, as well as existing contradictions in testimony, the petitions were denied.

Thus, the investigator acted in the interests of the prosecution, and not in establishing the objective truth of the case. Obviously, de facto the right to defense was violated, which undoubtedly could have affected the quality of the final decision in the case, but de jure the investigator acted within the framework of the so-called “discretionary” powers granted to him by law.

The term “discretionary” is borrowed from the French language – “discretionnaire”, meaning “depending on personal discretion”.

The use of discretionary powers by the investigator is predetermined by the legislator in different ways and from the point of view of legal technique. In some cases, the law directly provides for the investigator's ability to choose his behavior. This is indicated, in particular, by the phrases “at the discretion of the investigator” (Part 1 of Article 191 of the Code of Criminal Procedure of the Russian Federation), “if necessary” (Part 1 of Article 152, Part 7 of Article 162 of the Code of Criminal Procedure of the Russian Federation), etc.

In other situations, the possibility of using discretionary powers is determined by such formulations as “the investigator has the right” (for example, Article 25, Part 1 of Article 28, Part 1 of Article 91, Part 1 of Article 97, Article 181, Part 1 Article 427 of the Code of Criminal Procedure of the Russian Federation, etc.), “the investigator can” (Part 1 of Article 193 of the Code of Criminal Procedure of the Russian Federation). Thus, “the investigator has the right to conduct a confrontation” if there are significant contradictions in the testimony (Article 192 of the Code of Criminal Procedure of the Russian Federation).

In addition, the investigator has the right not to conduct a confrontation, even if it is objectively necessary to establish the circumstances of the case, and if it is carried out, he has the right to withdraw defense issues at his own discretion, using the same discretionary powers1.

In the legal literature, the term “discretionary powers of the investigator” is absent, but there is a definition of the concepts that make up it or are related. For example, L.V. Golovko believes that the discretionary principle is nothing more than a universal procedural technique from the traditional arsenal of legal techniques, which consists in the fact that the legislator gives the law enforcement officer the right to act in a certain situation at his own discretion, based on the circumstances of the case2.

In my opinion, some of the discretionary powers that the prosecution has at the preliminary investigation stage (enshrined in the Code of Criminal Procedure of the Russian Federation) contradict the fundamental principles of criminal proceedings set out in Art. 6, 15 and 16 of the Code of Criminal Procedure of the Russian Federation, namely, the principles of equality and competition of the parties, as well as ensuring the right to defense.

This can lead to miscarriages of justice. To minimize them and guarantee compliance with the basic principles of criminal proceedings, it is necessary to eliminate the specified conflict of norms by bringing the provisions of all articles of the Code into conformity with the basic principles of criminal proceedings set out in Part I, Section. Chapter I 2 – Art. 6, 15, 16.

In my opinion, not all discretionary powers vested in the investigator affect the quality of the final decision in the case and contradict the principles set out in Art. 6 Code of Criminal Procedure of the Russian Federation. So, from Art. 152 “Place of the preliminary investigation” it follows that the preliminary investigation is conducted at the place where the act containing signs of a crime was committed. However, if it is necessary to carry out investigative or search actions in another place, the investigator has the right to carry them out personally or entrust them to another investigator or investigative body. The investigator, in turn, also has the right to personally carry them out or entrust them to another investigator or investigative body.

It is obvious that taking into account the conscientious and professional performance by each law enforcement officer of his duties and the fulfillment of legally accepted instructions, as well as for a high-quality final decision in the case, it does not matter which specific officer carried out the investigative actions. That is, not all rules of law providing for the discretionary powers of the investigator create an imbalance in the equality of the parties in the process and affect the quality of the decision in a criminal case.

Let us consider the norms of the Code of Criminal Procedure of the Russian Federation establishing the discretionary powers of the investigator, which affect the quality of the final decision in the case, and also impede the exercise of the right to defense, create an imbalance of equality of the parties and do not meet the principle of adversarialism.

In particular, Art. 191 states that when conducting an interrogation, confrontation, identification and verification of testimony with the participation of a minor victim or witness who has not reached 16 years of age or has reached this age but suffers from a mental disorder or is lagging in mental development, the participation of a teacher or psychologist is mandatory. At the same time, when carrying out these actions with the participation of a minor who has reached 16 years of age, a teacher or psychologist is invited at the discretion of the investigator.

In accordance with Art. 181 of the Code of Criminal Procedure of the Russian Federation, in order to verify and clarify data relevant to the case, the investigator has the right to conduct an investigative experiment by reproducing actions, as well as the situation or other circumstances of a specific event. At the same time, the possibility of perceiving any facts, performing certain actions, the occurrence of any event is checked, and the sequence of the event and the mechanism for the formation of traces are identified. It follows from this: if a request to conduct an investigative experiment to confirm or refute any circumstances relevant to the consideration of the case is submitted by the defense, the investigator has the right to refuse to satisfy it.

According to Art. 427 of the Code of Criminal Procedure of the Russian Federation, if during the preliminary investigation of a case of a crime of minor or medium gravity it is established that the correction of a minor accused can be achieved without the use of punishment, the investigator, with the consent of the head of the investigative body, as well as the investigator with the consent of the prosecutor, has the right to make a decision to terminate the criminal prosecution and petition before the court on the application of a compulsory educational measure to the accused, provided for in Part 2 of Art. 90 of the Criminal Code of the Russian Federation.

Thus, in two completely identical cases (“twin cases,” as they are often called by practicing lawyers), radically different decisions can be made that affect the future fate of the accused, depending on the discretion of the investigator.

Lawyers most often point to Art. 192, 195, 198 of the Code of Criminal Procedure of the Russian Federation as norms that most significantly violate the principle of equality of parties and the right to defense. So, from the text of Art. 192, which regulates the grounds for appointment and the procedure for conducting a confrontation, it follows: if there are significant contradictions in the testimony of previously interrogated persons, the investigator has the right to conduct a confrontation.

Accordingly, if the defense receives a request to conduct a confrontation with a person whose testimony contains significant contradictions with the defendant’s testimony, or the said person clearly incriminates the suspect (accused), the investigator also has the right to refuse to satisfy the request.

According to Art. 195 of the Code of Criminal Procedure of the Russian Federation, having recognized the need to order a forensic examination, the investigator issues an appropriate resolution or petition. It should be noted that the mandatory appointment of a forensic examination is provided for in Art. 196 of the Code of Criminal Procedure of the Russian Federation, if it is necessary to establish:

• cause of death;
• the nature and degree of harm caused to health;
• the mental or physical state of the suspect (accused), when doubt arises about his sanity or ability to independently defend his rights and legitimate interests in criminal proceedings;
• the mental state of a person over 18 years of age accused of committing a crime against the sexual integrity of a minor under 14 years of age, to resolve the issue of the presence or absence of a disorder of sexual preference (pedophilia);
• the mental or physical state of the suspect, accused, when there is reason to believe that he is a drug addict;
• the mental or physical state of the victim, when doubt arises about his ability to adequately perceive the circumstances relevant to the case and testify;
• the age of the suspect (accused, victim), when this is important for the case, and supporting documents are missing or are in doubt.

In all other cases, to establish other circumstances, a forensic examination is appointed at the discretion of the investigator.

Let us consider from the point of view of the discretionary powers of the investigator Art. 198 of the Code of Criminal Procedure of the Russian Federation, which regulates the rights of the suspect, accused, victim, witness in the appointment and conduct of a forensic examination. In my opinion, the most unprotected rights here are those provided for in paragraphs 3–5 of Part 1 of this norm, namely: the right to apply for the involvement as experts of persons indicated by the suspect (accused, victim, witness) or for an examination to be carried out in a specific expert institution ; the right to petition for the inclusion of additional questions for the expert in the resolution on the appointment of a forensic examination; be present with the permission of the investigator during the examination, give explanations to the expert. This is due to the fact that the final implementation of these rights of the suspect, accused, victim, witness depends entirely on the personal discretion, permission or prohibition of the investigator.

Thus, I believe it is necessary to amend the Code of Criminal Procedure of the Russian Federation, bringing all the rules regulating the discretionary powers of the investigator at the stage of preliminary investigation in accordance with the purpose of criminal proceedings and its basic principles.

For example, Part 1 of Art. 192 of the Code must be brought into compliance with Art. 6, 15 and 16 of the Code of Criminal Procedure of the Russian Federation, so that this norm contains the grounds for conducting a confrontation on the initiative of the defense. In particular, introduce an instruction to conduct a confrontation not only at the discretion of the investigator, but also when there are significant contradictions in the testimony of previously interrogated persons, and (or) the person testifies against the accused or suspect.

The norm of Part 1 of Art. 196 of the Code should be supplemented with provisions stating that the appointment and conduct of an examination is mandatory in the investigation of crimes in the economic sphere, if the suspect (accused) requests this, and if, to establish the circumstances provided for in Art. 73 of the Code, special knowledge is required.

Finally, in paragraph 5 of part 1 of Art. 198 of the Code of Criminal Procedure of the Russian Federation, it is advisable to indicate that additional questions may be included in the resolution on the appointment of a forensic examination at the request of the defense party. In addition, give the suspect (accused), as well as his representative, the right to give explanations to the expert, as well as to be present during the research.

The other day, at the Center for Public Procedures “Business against Corruption” under the Commissioner under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs, a round table was held on the topic “Discretionary powers of the investigator at the stage of preliminary investigation and the principle of equality of parties”, as a result of which it was decided to create a working group on developing proposals for changes to legislation in order to comply with the basic principles of criminal proceedings.

In conclusion, I note that, in my opinion, some of the discretionary powers of the investigator at the preliminary investigation stage not only run counter to the basic principles of criminal proceedings, but under certain circumstances can also create fertile ground for abuse and corruption.

1 Tolkushkin A.V. Encyclopedia of Russian and international taxation // Lawyer. 2003.

2 Golovko L.V. New Code of Criminal Procedure of the Russian Federation in the context of comparative criminal procedure law // State and Law. 2002. No. 5.

Criminal procedural law. Crib

8. Composition of the court and its powers

Only the court has the right to find a person guilty of committing a crime and assign him an appropriate punishment; apply compulsory medical measures to a person; apply compulsory educational measures to the person; overturn or modify a decision made by a lower court.

Only the court has the authority to decide:

1) on the selection of a preventive measure in the form of detention, house arrest, bail;

2) on extending the period of detention;

3) on the placement of a suspect, accused, who is not in custody, in a medical or psychiatric hospital, for a forensic medical or forensic psychiatric examination, respectively;

4) on conducting an inspection of the home in the absence of the consent of the persons living in it;

5) about conducting a search or seizure in a home; 5.1) about the seizure of an item pledged or deposited in a pawnshop;

6) to conduct a personal search, except for the cases provided for by. 93 Code of Criminal Procedure of the Russian Federation;

7) on the seizure of objects and documents containing state or other secrets protected by federal law, information on deposits and accounts of citizens in banks and other credit organizations;

on the seizure of correspondence, permission to inspect and seize it in communication institutions;

9) on the seizure of property, including funds of individuals and legal entities held in deposit accounts or stored in banks and other credit organizations;

10) on the temporary removal of the suspect or accused from office;

11) on monitoring and recording telephone and other conversations.

The court considers criminal cases collectively or individually.

Composition of the court of first instance:

1) federal court judge

- criminal cases of all crimes, with the exception of the following criminal cases;

2) federal court judge and a panel of 12 jurors

- at the request of the accused, criminal cases regarding the crimes specified in Part 3 of. 31 Code of Criminal Procedure of the Russian Federation;

3) a panel of 3 judges of the Federal Court of General Jurisdiction

- criminal cases of grave and especially grave crimes in the presence of a petition from the accused, submitted before the appointment of a court hearing;

4) world judge

- criminal cases within his jurisdiction in accordance with Part 1 of. 31 Code of Criminal Procedure of the Russian Federation;

The consideration of criminal cases in the appellate instance is carried out by a judge of the district court alone. When considering a criminal case when considering a case in cassation, the court consists of 3 judges of a federal court of general jurisdiction; by way of supervision, the court must include at least 3 judges of a federal court of general jurisdiction.