Composition of the court in criminal proceedings Article 30 of the Code of Criminal Procedure of the Russian Federation

Legal advice for litigants

Citizens who find themselves in a “bottomless legal pit” for a long period of time try to “climb out” of it on their own, looking for answers using the examples of others, and, having not received the desired result, they remember the lawyer.
Legal practitioner:

Knows the law enforcement and judicial system from the middle.
Each client’s story is individual, so we approach the study of the issue with care and thoroughness.
Complies with professional lawyer ethics and takes a responsible approach to the performance of duties.

Lawyers advise turning to experienced specialists; the lawyer will solve the client’s problem with greater efficiency and will tell him how to behave in the legal process.

The correct behavior of participants in court proceedings accompanies the positive work of the court representatives of Themis, which affects the duration and attitude of judges to the process.

To do this, citizens must fulfill the following conditions:

prepare and submit procedural documents before the trial;
be attentive to the speeches of the judge, behave in an appropriate manner, do not interrupt the assessors, do not shout out from the seat;
treats all participants in the process with respect.

This will help avoid various problems during the trial. If objections arise after a court verdict, the dissatisfied party may appeal the decision.

Rights of the accused

The rights of the accused in the Criminal Procedure Code of the Russian Federation in the latest edition are described; according to the list, the accused has a number of rights with which he is entitled. But in Article 47 of the Code of Criminal Procedure of the Russian Federation, the rights are stated briefly, the most basic, without details or additions.

The following are rights that belong only to the accused:

object to the charge;
refuse to give any evidence;
time to prepare and consult with your lawyer;
make copies of documents, make photocopies;
the right to the last word.

This list cannot be used, for example, by the victim, since they are specific and suitable only for the accused.

As for those accused who are kept under guard in order to prevent possible evasion of justice, they also have their own special rights, the list of which is quite large.

These include:

Meetings with a lawyer, notary (if it is an individual entrepreneur or a legal entity).
Buy groceries, buy clothes according to the season.
If possible, work, work hard.
Conduct money transactions - transfers.
Daily walks for at least an hour.
Correspond with someone and have the necessary writing materials with you.
Sleep 8 hours.
Have your own bed linen.
Use scientific and other literature from the library of the place of detention.
Engage in self-education and have the appropriate literature for this, etc.

This list of rights also has its own specifics - the rights listed here will not apply to other groups.

Possible court composition schemes

Currently, the science of criminal procedure allows us to identify a number of approaches to the formation of the court composition. They are determined by a number of factors, including traditions and peculiarities of the legislation of various states. First of all, it is necessary to distinguish between collegial and individual compositions of the court. At the same time, the composition of the court can be professional or non-professional. In the first case, the legal process is led by a professional lawyer who has the appropriate powers and privileges granted to him by the state. And in the second, judges are elected from among the public, and they do not need to have appropriate education or certain specific knowledge. The result of different ratios of the above criteria are the following possible compositions of courts:

Criminal cases are handled exclusively by professional judges. They can do this collectively or individually. This is practiced in many countries, including Holland;
review is carried out by non-professional staff. A clear example of this is the traditional English magistrates;
the review is carried out by professional judges and jurors. Judges from the people determine whether a crime has taken place and whether the defendant is guilty. In turn, with a guilty verdict, professional judges classify the criminal act and impose punishment;
the review is carried out by professional and non-professional judges, while all existing issues are resolved collectively by voting. This was practiced in the USSR and Germany. Today, this is practiced in Belarus. It should be noted that the voices of professionals and non-professionals most often have equal strength, but the opposite is also possible;
review is carried out by autonomous panels of professionals and non-professionals. All decisions in the case are made by secret ballot. An example of such a scheme is the Assize Court in France.

There are other schemes for forming the composition of the court, but today they are either no longer relevant or are not widespread.

The Code of Civil Procedure proposes to establish the grounds for replacing judges in the process

On June 25, the State Duma received bill No. 978395-7 on amendments to the Civil Procedure Code of the Russian Federation, which regulate the formation of the court composition and the procedure for replacing judges when considering civil cases.

It is proposed to set out Art. 14 of the Code of Civil Procedure in the new edition, according to which a civil case, the consideration of which was initiated by one judge or panel of the court, must be considered by the same judge or the same panel of the court. In a number of cases (including recusal, self-recusal, illness, vacation, study, business trip), it is possible to replace a judge or several judges. Replacement is also possible in the event of termination or suspension of the powers of a judge or when moving to consideration of a case according to the rules of civil proceedings.

When a judge or several judges are replaced during the consideration of a civil case, the trial is carried out from the very beginning. At the same time, it is emphasized that resolving the issue of accepting a claim for proceedings, postponing the trial, considering an application for interim measures and performing other procedural actions in urgent cases by one judge instead of another in an interchangeable manner is not a replacement for a judge.

Corresponding amendments are proposed to be made to Part 2 of Art. 157 Code of Civil Procedure.

As the authors of the amendments pointed out, at present, only the Code of Civil Procedure does not contain a mandatory rule that the consideration of a case begun by a certain composition of the court must be completed by it, and does not regulate the issue of replacing the composition of the court, unlike the CAS, the Arbitration Procedure Code and the Code of Criminal Procedure. “Thus, in fact, when implementing the same procedure for replacing a court, in practice there are different approaches to assessing the imperative norm that the consideration of a case begun by a certain composition of the court must be completed by it. The adoption of this bill will eliminate the gap currently formed in the Code of Civil Procedure of the Russian Federation, will exclude from the practice of courts the arbitrary transfer of a case from one judge to another judge of the same court or the arbitrary replacement of judges during a collegial consideration of a case,” the explanatory note states.

According to Sergei Radchenko, lawyer of the YuG Law Firm, the shortcoming of the Code of Civil Procedure of the Russian Federation noted in the explanatory note really exists. “At the same time, it is not in other procedural codes, which provide rules on the need to consider the case by the original composition of the court and the procedure for replacement within the court. This is part of a broader problem: the current procedural codes were adopted at different times and were prepared by different teams of lawyers, which is why the same procedural issues are regulated in them differently,” he noted.

The expert believes that the proposed amendments deserve support, but, according to him, one must understand that this is only a cosmetic change. “There are no serious practical problems with the current version of Art. 14 and 157 of the Code of Civil Procedure of the Russian Federation does not create. An arbitrary replacement of a judge almost never occurs, and if such a replacement is objectively necessary (for example, in the event of the death of a judge, his resignation or transfer to another court), then the replacement of a judge is formalized by an order of the chairman of the court, which is filed in the case,” emphasized Sergei Radchenko.

Lawyer of the Moscow Administration Alina Emelyanova called the proposals formulated in the bill important, the need for which arose a long time ago. “Of course, an arbitrary replacement of the composition of the court when considering a civil case in the absence of a clearly regulated procedure for formalizing such a replacement cannot meet the principles of a fair trial, including in the context of Part 1 of Art. 47 of the Constitution of the Russian Federation, which provides that no one can be deprived of the right to have his case considered in the court and by the judge to whose jurisdiction it is assigned by law,” she noted.

According to her, the current provisions of Art. 14 and 157 of the Code of Civil Procedure of the Russian Federation lead to an ambiguous solution to the issue of the legality of the composition of the court that adopted the final judicial act in the case if the consideration of the case began in a different composition of the court. “In addition, arbitrary replacement of a judge (court composition) in a case can lead to various types of abuses and reduce the quality of consideration of cases,” Alina Emelyanova is convinced.

Article 47 of the Code of Criminal Procedure of the Russian Federation

Art. 47 of the Code of Criminal Procedure of the Russian Federation, like any other article, contains several positions that break the entire article into numbered parts. Each part has specific information.

There are 6 of them in this article:

The first part talks about what types of documents are issued in order to hold a person accountable for a crime committed. That is, when all the circumstances are found that act as evidence of the guilt of a particular person, a special document is issued that provides confirmation - this person is guilty. So, from this part of the article we can draw a conclusion. In order for a person to be given the legal status of an accused, an indictment or indictment must be issued. This document is signed by either the investigator or the interrogating officer. A person becomes accused even when he does not know about this document.
Part 2 reveals the essence of three definitions - who is a defendant, convicted and acquitted: “The accused, in whose criminal case a trial is scheduled, is called the defendant. The accused against whom a guilty verdict has been passed is called the convicted person. The accused who is acquitted is acquitted.” The difference between a convicted person and an acquitted person is quite clear, but it is not always possible to draw the line between a defendant and a convicted person - these terms are to some extent similar.
After these definitions of who is who, Part 3 of Article 47 of the Code states that the accused has the opportunity to defend himself, and time restrictions cannot be introduced: “The accused has the right to defend his rights and legitimate interests and have sufficient time and opportunity to prepare for the defense "
The third part is the largest in terms of the volume of information presented, compared to other parts of this article. It sets out information that the accused can use - his rights. In total there are 21 points in the 3rd part. A complete list of these rights can be found in the code itself.
The penultimate part of this article says the following: “The participation in a criminal case of a defense attorney or legal representative of the accused does not serve as a basis for limiting any of the rights of the accused.” In other words, whether the defendant’s defense attorney participates or not, this should not in any way affect the rights of the accused.
The last, final part of Article 47 is the sixth. She says that when the accused is first summoned for questioning, he must be explained his rights. Namely, to give or not to testify, to object to the accusation, to seek and present evidence and also the right to an interpreter and to a defense.

More precise provisions of this article can be found in the code itself, as well as on the ConsultantPlus website.

Composition of the court of first instance

In the Russian Federation, there are three options for the composition of the court of first instance:

sole;
collegial consisting of three professional judges;
collegial consisting of 12 jurors and one professional judge.

The composition of the court in criminal proceedings and the rules for determining it need to be considered in more detail:

Justices of the peace always consider cases individually. This approach to the formation of the court composition in criminal proceedings does not cause criticism. This is often due to the fact that magistrates have jurisdiction over crimes of minor gravity, for which punishment of more than two years in prison is not provided. It must be said that most often magistrates do not pass such sentences. Often the verdict of the magistrate court is a fine or administrative arrest;
The district court also most often considers the vast majority of criminal cases on its own. It should be understood that such a court cannot pass a sentence in accordance with which the term of serving the sentence exceeds 15 years. It should be noted that in some cases, district courts consider cases within the jurisdiction of the judicial body of a constituent entity of the Russian Federation. This is possible if for some reason the defendant cannot be sentenced to life imprisonment or the death penalty. Women, persons who committed crimes before reaching adulthood and men over 65 years of age are not subject to such punishments. In addition, cases of extradited persons can be heard in district courts. The fact is that, according to international treaties, the principles of humanism apply and extradited persons cannot be subject to such punishment as capital punishment. All of the above categories of defendants have the right to have their case heard by a panel of three professional judges. To do this, you need to submit a corresponding petition;
a much larger number of possible options for the composition of the court are provided for when considering a case at the level of a constituent entity of the Russian Federation. According to the Code of Criminal Procedure, the composition of the court at the level of a constituent entity of the Russian Federation depends on a number of factors. According to the generally accepted rule, criminal cases in such courts are considered by a single professional judge, but there are a number of exceptions. For example, the accused may file a motion to have his case reviewed by a panel of judges. In addition, a collegial hearing is mandatory in cases of so-called terrorism, organizing mass riots, and crimes against the constitutional order and the state. All of the above cases must be handled by three professionals. The legal composition of the court in other criminal cases within the jurisdiction of the court at the level of a constituent entity of the Russian Federation directly depends on the position of the accused. In such situations, a jury trial may be possible. The exception is trials involving rape cases.

Above we discussed such a type of punishment as the death penalty. It must be said that to this day there are a number of articles in the Criminal Code of the Russian Federation that provide for the death penalty as a punishment. At the same time, there is a moratorium on the execution of such punishments in the Russian Federation. Thus, in some cases, courts can pass such sentences, but they cannot be executed.

Article 30. Composition of the court

1. Consideration of criminal cases is carried out by the court collectively or by a single judge. The composition of the court for consideration of a particular case is formed taking into account the workload and specialization of judges in a manner that excludes influence on its formation by persons interested in the outcome of the trial, including using an automated information system.

2. The court of first instance considers criminal cases in the following composition:

1) judge of a federal court of general jurisdiction - criminal cases of all crimes, with the exception of criminal cases specified in paragraphs 2 - 4 of this part;

2) a judge of a federal court of general jurisdiction and a panel of twelve jurors - at the request of the accused, criminal cases of crimes specified in paragraph 1 of part three of Article 31 of this Code, with the exception of criminal cases of crimes provided for in Articles 131 part five, 132 part five, 134 part six, 212 part one, 275, 276, 278, 279, 281 of the Criminal Code of the Russian Federation;

3) a panel of three judges of a federal court of general jurisdiction - criminal cases of crimes provided for in articles 205, 205.1, 205.2, 205.3, 205.4, 205.5, 206, 211 part four, 212 part one, 275, 276, 278, 279, 281 parts of the second and third Criminal Code of the Russian Federation, and other criminal cases within the jurisdiction of the Moscow District Military Court and the North Caucasus District Military Court in accordance with paragraphs 2 - 4 of part six.1 of Article 31 of this Code, and in the presence of a petition of the accused filed before the appointment court session in accordance with Article 231 of this Code - criminal cases of crimes provided for in articles 105 part two, 126 part three, 131 parts three - fifth, 132 parts three - fifth, 134 parts four - six, 208 part one, 209, 210 parts one, three and four, 211 parts one - three, 227, 228.1 part five, 229.1 part four, 277, 281 parts one, 295, 317, 353 - 358, 359 parts one and two, 360 of the Criminal Code of the Russian Federation;

4) magistrate - criminal cases within his jurisdiction in accordance with part one of Article 31 of this Code.

3. Consideration of criminal cases on appeal is carried out:

1) in a district court - by a judge of the district court alone;

2) in higher courts - by a court composed of three judges of a federal court of general jurisdiction, with the exception of criminal cases of crimes of minor and medium gravity, as well as criminal cases with appeals, submissions against interim decisions of a district court, garrison military court, which are considered by a judge of the supreme court court of a republic, regional or regional court, court of a federal city, court of an autonomous region, court of an autonomous district, district (naval) military court individually.

4. Consideration of criminal cases in cassation is carried out by the presidium of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court consisting of at least three judges, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation and the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation, consisting of three judges, and by way of supervision - by the majority of members of the Presidium of the Supreme Court of the Russian Federation.

5. When considering a criminal case by a court consisting of three judges of a federal court of general jurisdiction, one of them presides over the court session.

6. Criminal cases within the jurisdiction of a magistrate, committed by persons specified in part five of Article 31 of this Code, are considered by judges of garrison military courts individually in the manner established by Chapter 41 of this Code. In these cases, the verdict and decision can be appealed.

Commentary to Art. 29 of the Criminal Procedure Code of the Russian Federation

Comments on the articles of the Code of Criminal Procedure will help you understand the nuances of criminal procedure law.

1. By establishing the right of the court to find a person guilty of committing a crime and impose punishment on him, the legislator thereby emphasizes that only the court, applying the norms of criminal procedural law, has the right to simultaneously fully apply the norms of the Special Part of the Criminal Code. Investigators, interrogators and prosecutors also apply the norms of the Special Part of the Criminal Code. However, the nature, order, scope, goals and legal consequences of this activity at different stages of the criminal process are different. The application of criminal law during the investigation solves mainly intermediate, although important procedural tasks. The application of the norms of criminal law by the court in a verdict means the resolution of the criminal case on the merits, causes criminal legal consequences in the form of determining the scope of criminal liability, establishes the nature of criminal legal relations and prescribes the ways of their implementation. In addition, the passing of a sentence gives rise to a complex of criminal procedural relations in connection with the right of the parties to appeal it. Finally, the entry into force of a sentence means the existence of a legal fact that gives rise to criminal-executive relations.

2. Along with the traditional “set” of rights and obligations for the court, the legislator has significantly expanded the powers of the court to monitor the implementation of laws and ensure the rights of citizens participating in criminal proceedings at its pre-trial stages. First of all, this is reflected in part 2 of the commented article, which defines the competence of the court: a) in terms of restricting the freedom of a suspect or accused (clauses 1 - 3 of part 2); b) in terms of allowing preliminary investigation bodies to carry out investigative and other procedural actions during the investigation and inquiry related to the restriction of the rights and freedoms of citizens (clauses 4 - 11, part 2). Such provisions not only develop those provisions that existed in the 1990s. incorporated into the previously existing Code of Criminal Procedure of the RSFSR, but also take another step forward in this direction, on the one hand, helping to strengthen the rule of law, and on the other, strengthening the legal protection of citizens.

3. The tendency to strengthen judicial control over the implementation of laws during the inquiry and preliminary investigation and to protect the rights of citizens during the investigation is also present in the provisions of Part 3 of the commented article, which establishes the power of the court in the course of pre-trial proceedings to consider complaints about the actions (inaction) and decisions of the prosecutor, investigator, body of inquiry and interrogating officer. The content of Art. corresponds with this provision. 125 of the Code of Criminal Procedure, according to which decisions of the inquirer, investigator, prosecutor to refuse to initiate a criminal case, to terminate a criminal case, as well as their other actions (inactions) and decisions that can cause damage to constitutional rights can be appealed to the court at the place of the preliminary investigation and the freedoms of participants in criminal proceedings or impede citizens’ access to justice (see commentary to Article 125).

4. Part 4 of the commented article indicates the right of the court to issue a private ruling (resolution) as a means of responding to identified circumstances that contributed to the commission of a crime, violation of the rights and freedoms of citizens, as well as other violations committed during the investigation or by a lower court. The legislator did not try to give a closed list of issues that may become the subject of a private determination (resolution), emphasizing that these procedural acts can be issued in other cases (for example, discovered facts of violation of the law by civil servants, officials of government bodies of various forms of ownership, failure to appear participants in criminal proceedings, as well as violations of order at a court hearing).

5. The commented article defines only the main directions of the court’s activities. At the same time, some directions in this article are not indicated even in a general form. This applies, in particular, to the activities of the court at the stage of execution of the sentence, although the role of the judiciary at this stage is extremely important and responsible (appealing the sentence for execution, conditional and parole release from punishment, changing the regime of detention of a person sentenced to imprisonment, etc.). P.). Chapters are devoted to these issues. 46 and 47 Code of Criminal Procedure.

Commentary to Art. 30 Code of Criminal Procedure of the Russian Federation

The new brief version of the commented article sets out and indicates the lack of uniformity in determining the number of those included in the court composition of the second instance.

The analysis of cassation materials is carried out by three judges. The appeal is conducted by one federal representative of the district court. The review of legal material of a supervisory nature is carried out by three federal representatives of the court.

Legal proceedings are carried out:

Federal court representative.
Collegially by three judges.
Judge and 12 jurors.
Justice of the peace.

In most cases, the composition of the court in criminal proceedings consists of one judge. When a case is heard by one judge, the process receives a more subjective assessment, which has a positive aspect.

The final verdict is made by one person - a federal judge, which is why all the strength of conviction, the eloquence of the accused, and the presentation of evidentiary documentation by his lawyer, is directed towards a specific person.

When a citizen is against having his material examined by one representative of Themis, he writes a petition about this. After this, the trial will be carried out jointly by three judges or considered by 12 jurors.

Three judges consider materials under clause 3, part 2, article 30 of the Code of Criminal Procedure of the Russian Federation and on the basis of a petition from the perpetrator. It is served:

after reading the charges;
at the stage of preliminary hearing in court;
before setting a trial date.

When a defendant does not request that his legal papers be heard by three judges, it will be heard by one judge. The board deals with serious and especially grave legal offenses, for which sentences of more than 5 years in custody are imposed.

It is believed that three representatives of the court will be more competent in the analysis of legal materials, and then the permissibility of judicial errors is reduced to almost zero. When there are sufficient proof of guilt, it is extremely difficult to obtain relief from three judicial representatives.

When a federal judge and 12 jurors are included in a criminal trial, it is a jury trial. They have the authority to analyze the legal materials listed in clause 1, part 3 of Art. 31 Code of Criminal Procedure (Part 5 of Article 131, Part 5 of Article 132, Part 6 of Article 134, Part 1 of Article 212, Articles 275, 276, 278, 279, 281 of the Criminal Code of the Russian Federation are excluded). These are offenses with the most severe penalties, such as life imprisonment or the death penalty. Legal violations related to the economy are not included in this list.

In order for the case to be heard by a jury, the defendant files a petition for this, but for this the preliminary investigation must be completed. The advantage of such proceedings is that jury trials are considered democratic and objective due to the approach to resolving the issue from a human perspective. The disadvantage may be the complexity of trials of offenses by juries who do not know the intricacies of the criminal code. What composition of the court considers criminal cases on appeal? The trial takes place both individually and collectively.

Jurors are ordinary citizens who have difficulty understanding legal issues due to a lack of legal knowledge. Because of this, sometimes juries announce a more severe punishment than what the defendants deserve.

The magistrate examines the materials noted in Part 1 of Art. 31 of the Code of Criminal Procedure of the Russian Federation, according to which a maximum penalty is prescribed, not exceeding 3 years of imprisonment. This includes:

Fraud.
Mastery, waste.
Use of force to conclude transactions, refusal of them.
Illegal use of a product brand.
Environmental violations.

It’s not news to anyone when the accused, by coincidence, finds himself under suspicion from the investigative authorities and tries to prove his innocence on his own, but this doesn’t help much.

In such cases, the assistance of an experienced lawyer is required, who within a few hours or days will release the person on his own recognizance and will not allow the extension of the detention period, and then, if necessary, will represent the interests of the accused in court.

Medvedev eliminated troikas of judges in district courts

Russian President Dmitry Medvedev signed amendments to the Code of Criminal Procedure of the Russian Federation, excluding the consideration of criminal cases in district courts by panels of three judges, the Kremlin press service reports.

The Federal Law “On Amendments to the Criminal Procedure Code of the Russian Federation” was adopted by the State Duma on October 19 and approved by the Federation Council on October 26, 2011.

On June 29, the State Duma adopted this law in the second and third readings, but its further fate was not easy. The Federation Council rejected the bill on July 13, and the decision was accompanied by harsh criticism from senators against their legislative colleagues from the lower house. Chairman of the Federation Council Committee on Legal and Judicial Issues Anatoly Lyskov noted that the initial “concept [of the bill] was completely justified, the approach completely coincided with the concept of Law No. 433 adopted on the legislative initiative of the President of the Russian Federation at the end of last year.” However, according to the senator, the law in question, during its adoption in the State Duma, underwent significant changes and came into conflict with Federal Law-433, and both laws should have come into force on January 1, 2013. Therefore, the Committee recommended against approval of this law.

After this, the document went to the conciliation commission, and from it returned to the Federation Council with completely different formulations regarding which courts should collectively consider cases of grave and especially grave crimes. Now, paragraph 3 of Article 30 of the Code of Criminal Procedure of the Russian Federation (Composition of the court) is proposed to be formulated as follows: “a panel of three judges of a federal court of general jurisdiction [considers] criminal cases of crimes...”. Thus, the same wording that is in the current version of paragraph 3 of Article 30 of the Code of Criminal Procedure of the Russian Federation has been returned to the bill. At least on paper, legislators have abandoned the elimination of benches of judges in federal courts at the district level.

This law introduces amendments to the Criminal Procedure Code of the Russian Federation, “excluding provisions on the consideration of criminal cases in a district court by a panel of three judges” (read more here).

“This will make it possible to redistribute the staffing of federal judges and send them to courts where the workload exceeds the average statistical norms,” notes the Presidential GPU.

At the same time, it remains possible for a panel of three judges to consider criminal cases of grave and especially grave crimes within the jurisdiction of higher courts, including crimes of a terrorist and extremist nature.

But this is not the only change in the bill. An innovation is a reduction in the list of cases that can be considered by three judges if there is a petition from the accused . Now these will not be all criminal cases of grave and especially grave crimes. As before, without a petition from the accused, the trio of judges will consider cases under Articles 205, 206 parts two - four, 208 part one, 212 part one, 275, 276, 278, 279 and 281 of the Criminal Code of the Russian Federation.

To the jurisdiction of regional courts (Article 31 of the Code of Criminal Procedure of the Russian Federation), three more crimes were added, provided for in parts 3-4 of Article 132 “Violent acts of a sexual nature”, as well as 205.1 “Promotion of terrorist activities” and 205.2 “Public calls for terrorist activities or public justification for terrorism."

Thus, the initiative of the deputies was agreed upon with Law No. 433 of December 29, 2010, which provides for the creation of appellate instances in the Russian system of courts of general jurisdiction, which will come into force on January 1, 2013. According to this law, changes are being made to Part 3 of Article 31 of the Code of Criminal Procedure of the Russian Federation, in which the jurisdiction of regional courts includes cases under the same articles that are now being introduced by the new law into Part 3 of Article 30 of the Code of Criminal Procedure of the Russian Federation.

(Read more about the passage of the law in both chambers of the Federal Assembly here).

Judicial reform, Criminal procedure
Code of Criminal Procedure of the Russian Federation
Dmitry Medvedev

Interrogation of the accused

After the decision is made, the investigator or inquiry officer calls the accused for questioning. This is quite a voluminous work that requires knowledge of how to conduct this event so as not to violate the rights of the interrogated person.

The psychological aspect is also taken into account - a person can show different emotions - fear, confusion, rudeness, complete indifference. And therefore it is necessary to be able to work with a variety of character types, not to lose control of the situation and be able to identify signs of lies

The very first interrogation is carried out when the investigator is sure that the summoned person is directly related to the crime committed, and there are grounds to suspect him of committing a crime.

But during the interrogation itself, a number of conditions must be met:

firstly, it is impossible to interrogate the accused until his defense lawyer is present or if the person being interrogated has refused a lawyer (for example, he feels that he is able to defend himself and his interests) and has written a corresponding statement;
secondly, if the person is a minor (i.e. has not reached the age of 18), the presence of a lawyer, parents, and teacher is mandatory. Another important point: if a minor is under 14 years old, then he does not need to be warned about criminal liability for giving false testimony. Such persons do not yet bear criminal liability. But the category of minors who are already 16 years old are warned that if they provide false information, they face criminal liability;
thirdly, if the accused himself wants to be interrogated, the investigator has no right to refuse him. The same applies to refusing to testify – there should be no pressure.

There may be several interrogations, and during the first of them, the accused is explained his rights, referring to all laws, including the Constitution of the Russian Federation.

There are also a number of conditions that the investigator must adhere to and the accused must know:

During the interrogation, video and audio recordings are made (for minors, only video is required). This will further serve as evidence in court to some extent. Especially if the rights of the interrogated person were violated, everything will be recorded on the media.
At the very beginning, the investigator asks what the person being interrogated knows about the crime. You can tell your story in any form and it is not recorded in the protocol.
Psychological pressure, blackmail, and even more so any physical influence on the person being interrogated is prohibited. So that he gives certain testimony.
During the main part of the interrogation, the investigator fills out a protocol; it is advisable to reflect everything word for word what the accused said.

After the interrogation, the investigator allows the interrogated person to read everything that is written in the protocol. The latter, when signing the protocol, writes “the protocol has been read by me personally.” If the person being interrogated does not speak Russian or cannot read, then the contents of the protocol are read aloud to him.

Arbitrage practice

The courts carry out a tremendous amount of work analyzing the legal materials of the accused. Such as:

cassation petitions are considered by the presiding judge and two judges, the secretary, lawyers, and prosecutor participate in the process;
sentences relating to articles 30 part 3, 228.1 part 1, art. 228. 1 part 2 p. and decisions on jurisdiction are made by the magistrate, with the presence of the secretary, state prosecutors, and the lawyer of the accused;
civil cases are considered by one judge with the presence of a secretary;
appeal decisions are made by a judicial panel consisting of a presiding judge, a secretary, a prosecutor, and defense attorneys.

For example, the recent high-profile case of the former Minister of Economic Development A. Ulyukaev. He was accused of extorting and receiving a large bribe (2 million rubles) from I. Sechin, who is the head of Rosneft, for a positive decision to purchase shares of PJSC Bashneft. The court rejected the request filed by the defense to return the case to the prosecutor's office so that the violations could be eliminated.

The trial took place in the Zamoskvoretsky District Court, consisting of:

The presiding officer.
2 Judges.
Secretary.
Prosecutors.
The defendant's lawyers.

The court imposed a sentence of 8 years in prison.

The European Convention for the Protection of Human Rights and Fundamental Freedoms in Article 6 states that every citizen has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established on legal grounds.

In this case, the formation of a collegial composition of the court is necessary. The appointment of presiding judges, judges and rapporteurs in the judicial bodies of cassation and supervisory authorities is determined in accordance with the rules established by the Code of Criminal Procedure of Russia.

Composition of the court when considering criminal cases

According to Art. 4 of the Federal Constitutional Law of December 31, 1996 No. 1-FKZ (as amended on October 30, 2018) “On the Judicial System of the Russian Federation” [7] justice in the Russian Federation is carried out only by courts established in accordance with the Constitution of the Russian Federation and the specified FKZ. The creation of emergency courts and courts not provided for by this law is not permitted.

In the Russian Federation there are federal courts, constitutional (statutory) courts and magistrates of the constituent entities of the Russian Federation, which make up the judicial system of the Russian Federation.

The federal courts that administer justice in criminal cases include:

— Supreme Court of the Russian Federation;

— cassation courts of general jurisdiction;

— courts of appeal of general jurisdiction;

— supreme courts of the republics, regional, regional courts, courts of federal cities, courts of the autonomous region and autonomous districts (regional courts);

— district courts (district level courts);

- military courts that make up the system of federal courts of general jurisdiction.

Magistrates, being judges of general jurisdiction of the constituent entities of the Russian Federation, also administer justice in criminal cases.

According to the Criminal Procedure Code of the Russian Federation, justice in criminal cases is carried out by a collegial court or a single judge. The composition of the court for consideration of a particular case is formed taking into account the workload and specialization of judges in a manner that excludes influence on its formation by persons interested in the outcome of the trial, including using an automated information system. If it is impossible to use an automated information system in court, it is allowed to form the composition of the court in a different manner, excluding influence on its formation by persons interested in the outcome of the trial (Part 1 of Article 30 of the Code of Criminal Procedure).

For collegial consideration of cases at first instance, representatives of the public may sometimes be involved as jurors. A judge, as a bearer of judicial power, acts as an official of the judicial system, performing his duties on a professional basis and appointed in compliance with the requirements established by the Constitution of the Russian Federation and the Federal Constitutional Law “On the Judicial System of the Russian Federation”.

The current criminal procedural legislation gives priority in the administration of justice in the court of first instance to a single judge

, abolishing the institution of people's assessors, which operated until the restoration of the jury trial in the Criminal Procedure Code of the RSFSR in the early 90s of the last century.

Yes, magistrate

considers on the merits criminal cases within its competence in accordance with Part 1 of Art. 31 Code of Criminal Procedure. As a rule, its jurisdiction includes crimes of minor and medium gravity, for the commission of which a punishment of imprisonment for a term of no more than three years can be imposed, with the exception of a number of crimes listed in this article, as well as criminal cases of private prosecution.

Federal judge

courts of general jurisdiction resolve all criminal cases
individually
, with the exception of criminal cases under the jurisdiction of a magistrate.

Some criminal cases involving grave and especially grave crimes specified in the law can be considered by a judge of a federal court of general jurisdiction and a panel of eight (in a regional court and an equivalent military court) or six (in a district court and an equivalent military court) jurors or a panel of three judges of a federal court of general jurisdiction in the presence of a request from the accused, submitted before the appointment of a court hearing (clauses 2-4, part 2, article 30 of the Code of Criminal Procedure).

Also alone

Criminal cases are considered on appeal by a federal judge of the district court on appeals and submissions against decisions of the magistrate.

In higher courts - by a court composed of three judges

federal court of general jurisdiction, with the exception of criminal cases of crimes of minor and medium gravity, as well as criminal cases with appeals and submissions to interim decisions of a district court, garrison military court, which are considered by a judge of a regional court and an equivalent military court
alone.

Consideration of criminal cases in cassation is carried out by the judicial collegium for criminal cases of the cassation court of general jurisdiction, the military court of cassation, the Judicial collegium for criminal cases of the Supreme Court of the Russian Federation and the Judicial collegium for military personnel of the Supreme Court of the Russian Federation, consisting of three judges

, and by way of supervision -
by the majority of
members of the Presidium of the Supreme Court of the Russian Federation.

The law establishes that when a criminal case is considered by a court consisting of three judges of a federal court of general jurisdiction, one of them presides over the court hearing.

Some features are established by the Code of Criminal Procedure of the Russian Federation for the sole consideration of cases within the competence of justices of the peace by military judges. Criminal cases of crimes committed by military personnel and citizens undergoing military training, under the jurisdiction of magistrates, are considered individually

judges of garrison military courts in the manner established for justices of the peace Ch. 41 Code of Criminal Procedure. In these cases, the judge's verdict and decision can be appealed to a higher military court on appeal (Part 6 of Article 30 of the Code of Criminal Procedure).

Commentary to Art. 47 Code of Criminal Procedure of the Russian Federation

Art. 47 of Chapter 7 of the Code of Criminal Procedure of the Russian Federation gives the concept of who is the person recognized as the accused and what rights he has. That is, a person has committed a crime under some article of the Criminal Code (theft, drug use, poaching, etc.).

First he becomes a suspect - there is an assumption that he probably committed a crime. When the facts confirming this are collected, he becomes the accused - a crime has been committed, this person is guilty, which means he must bear responsibility.

But this article still needs some clarification. Because, for example, the rights of the accused are not fully indicated in it; only some of them are listed.

There is a distinction being made between who is considered acquitted and who is accused and convicted - there really are differences between these two words.

Part 2 of the article implies the following features:

A person becomes a defendant after a court hearing has been scheduled. Sometimes there is confusion - some people think that a person is considered a defendant after his case has been submitted to court by the prosecutor;
a person becomes convicted not when the judge proclaims it and not until the moment the sentence begins to take effect, but much earlier. This status appears to a person precisely at the moment the court accepts and signs a guilty verdict;
but a person to whom the judges signed an acquittal is considered acquitted.

As you can see, each of these procedural statuses has certain nuances that make them different from each other.

As for this very decision on bringing as an accused, all requirements regarding its completion must be met. Information about the committed act must be written down clearly and in precise wording, without any unaccepted abbreviations.

If adjustments had to be made, this is stipulated and must be signed by the investigator and the corresponding comment. Otherwise, this document may lead to such a problem as it may be rejected - perhaps changes were made to the text on purpose and the accused does not know about it.

Also, the resolution should not contain words that cannot be used in official documents (obscene language). Circumstances that have nothing to do with the case are also not written down.

Part 4 spells out his rights in more detail, which no one can violate or neglect.

The list of these rights is very extensive and large. To avoid confusion, there is a division of these rights into the following groups:

Rights are similar to the rights of absolutely all participants in criminal proceedings (both victim and witness).
The rights are equal to the rights of the victim.
Such rights that belong exclusively to the accused.
The rights of accused persons held in isolation wards/prisons are a separate item; there is a list here that distinguishes such rights from all others.

This division helps to systematize the entire list of rights of the accused and to compare with the rights of other persons. And it will be much easier to remember in this form.

In addition to this systematization of the rights of the accused, there are other ways of grouping. But in general they are partially similar to the one presented above.

The sixth part of Art. 47 of the Code reveals the essence of the interrogation of the accused. We should stop here and look at this part in more detail, because

interrogation is an important part in the proceedings. The outcome of the interrogation will determine whether the accused is guilty of the crime or not.

Features of defense in jury trials

Introduction
Specifics of the activities of a defense attorney in criminal proceedings with the participation of jurors
Preliminary hearing
Legal proceedings: at the preparatory stage
Selection of jurors
Imperfections in the procedure for forming a panel of jurors
Actions of a lawyer in case of dissatisfaction with the personalities of juror candidates
Investigation in court with jurors
Arguments in court with jurors
Collision protection
Issues decided by juries
Summary

Introduction

Articles of the Constitution of the Russian Federation	Content
Article No. 123, part 4	Regulates the trial with the participation of jurors in cases provided for by Federal legislation.
Article No. 30 of the Code of Criminal Procedure of the Russian Federation	Regulates the right of a convicted citizen to have his case examined by a jury in the case when the citizen is accused of serious crimes and crimes of special gravity, where a prison term of more than fifteen years is possible, as well as life imprisonment and the death penalty.
Article No. 47, part 2, No. 56, part 3	They grant this right to a jury and prohibit restrictions on this right, even in a state of emergency.

When discussing the features of a jury trial, one cannot ignore the exhaustive description of jurors given by A.F. Horses. He rightly believed that jurors “represent a specific, finely tuned, receptive organism” that should not turn away from the specific situation of an individual citizen, “notice something typical in it and always examine the acts and qualifying features.”

In order for a criminal case to be heard by a jury at the time of its final hearing, the defendant must write a statement stating his desire to do so. The investigator is obliged to inform him about this.

The investigator is obliged, even at the familiarization stage with the details of the materials of the criminal case, to convey to the convicted person information about his right to apply for a trial in the presence of a jury. If a negative response to the petition is received, then in the future the accused will no longer be able to change his decision and write a statement of consent to a jury trial.

Important information! The accused's lawyer is obliged to monitor whether the accused wrote a petition voluntarily and, before writing it, to discuss in detail with his client all the nuances, so that the accused is not in a state of uncertainty and does not experience hopes that are not actually supported in any way.

Specifics of the activities of a defense attorney in criminal proceedings with the participation of jurors

The nuances of a lawyer’s professional work in a jury trial depend on the specifics of the decisions made by the court at the stage of each trial.

For example, if the accused expresses a desire to participate in the jury trial, then the defense attorney is obliged to explain in detail to him all the variety of requirements from the law that must be fulfilled.

The accused must understand:

Nuances and features at the preliminary hearing.
The need for the presence of the convicted person at the preliminary hearing stage in the event that he does not express a voluntary refusal.
The nuances of forming a jury and the reasons contributing to its dissolution or replacement.
The specifics and nuances of the investigative process, with the participation of assessors.
Specifics and nuances of appealing and protesting the decision of the jury in the cassation chamber.

Keep in mind! It should be understood: if several people are accused at once, then the fact of a petition from one of the convicted persons with a request to consider the case by a jury automatically extends to the other convicted persons in the case. They, too, will face a jury trial. Therefore, it is advisable to discuss this situation among ourselves in advance.

The lawyer does not need to impose his judgment on the client regarding the reasonableness/unreasonability of writing a petition, with a request to consider his case by a jury. The lawyer needs to direct the vector of his client’s attention to the presence in his cases of positive nuances that are clearly beneficial for their presentation to the jury, for example:

if it is obvious that the entire evidence base is missing;
when the evidence base is incomplete, when it cannot be replenished in any way;
in case of a biased investigation, even at the preliminary level of investigation;
if the evidence presented against the accused, which was obtained illegally, is inadmissible;
if there are positive characteristics of the accused;
provided that the crime was committed by the accused person for the first time, when exposed to an extraordinary and emergency situation;
in the presence of strong evidence of clearly provoking behavioral actions on the part of the victim, etc.

Preliminary hearing

During this hearing, the lawyer must spend time challenging the evidence presented. According to the text of Article 235 of the Code of Criminal Procedure of the Russian Federation: in the case when evidence is excluded from the case, then it will be impossible to refer to it in a jury trial and it is also impossible to inform the jury about it.

In the event that the defense attorney, for various reasons (for example, for reasons of tact), does not file a motion to remove from the case inadmissible evidence obtained by violating the law, the defense attorney is obliged to file this motion during the trial, even at the level of the preliminary hearing. Or, if such a petition is filed, and the investigator decides to reasonably reject it, then the lawyer is obliged to demand that it be filed in court, even at the preliminary stage.

Important! The defense attorney must be extremely motivated and be able to explain why he considers this or that evidence inadmissible; and in what way, in his opinion, the law was violated in the methods of obtaining them.

Legal proceedings: at the preparatory stage

The peculiarity of the preparatory part of the legal process, which involves the presence of a jury, is that it is carried out in two stages:

1st stage – in the absence of citizens participating in the jury;
Stage 2 – in the presence of citizens participating in the jury.

At the first stage, procedural issues are resolved that have nothing to do with the jurisdiction of the jury. At this stage, the question of the possibility of their participation in a specific criminal trial is decided.

At this stage, the lawyer retains all the rights to exercise: calling new witnesses, various experts and the necessary specialists. The lawyer retains the rights to: request written and material evidence; on the exclusion of illegal evidence of the prosecution, which was obtained by violating the Criminal Code and the filing of various petitions, in particular, on recusals.

At the first stage of preliminary proceedings, the lawyer must carry out work initiating measures aimed at creating opportunities for a fair decision by the jury. It is precisely this measure that is considered to be raising the question of changing the preventive measure for a convicted person - to a lighter one.

Detention requires special conditions for the presence of the accused citizen in the courtroom, namely: his delivery under escort; his presence in the courtroom, in a way of isolating him from all those present.

The fact is that such detention and escort can have a negative effect on jurors, first of all, from a psychological point of view: this creates in them a deliberately biased attitude towards the accused person.

Such detention gives rise to hostility towards the perpetrator, even before he is convicted. Even if his guilt has not yet been proven. This point can significantly distort the jury’s impression of the accused and, accordingly, provoke them to make an unfair and biased decision.

In addition, the opinion of the jury can be influenced by various external factors, such as: loud cries of the accused, curses on his part, his behavior, appearance and way of holding himself, turns of speech, literacy of speech, movements and much more.

Keep in mind! Jurors are ordinary people who do not have experience in all the nuances of jurisprudence. They judge by purely external characteristics. Knowing this, the lawyer is obliged to adjust as much as possible, in a positive direction, the behavioral and speech characteristics of his client.

It is not possible to completely free the jury from the bias that is caused by escort and detention in custody. After all, the court, with the participation of a jury, deals with complex criminal cases accusing citizens of committing especially serious acts.

Therefore, we must try to reduce the number of prisoners in custody at one time in the courtroom when cases are being tried with a jury.

We should strive to ensure that, with the participation of a jury, only those citizens in respect of whom there are already official justifications are taken into custody, without taking into account solely the severity of the crime they committed.

It is important! In the situation of a negative verdict regarding changing the preventive measure by the jury, the lawyer must re-file the petition in order to present his client before the jury, without armed escort and handcuffs.

This is precisely what the entire modern practice of European judicial proceedings for the protection of human rights is oriented towards. The European Court considers it absolutely insufficient for only a one-time consideration by the court of questions about the legality and validity of a citizen being under escort to protect his rights. The European Court clearly states that every citizen held in custody is required to have a legal opportunity to initiate proceedings in order to challenge the legality of his presence in custody.

At the second stage of the preparatory stage, at the court hearing, the following is carried out:

selection of candidates for participation in the jury;
approval of the jury;
oath of jury members.

Selection of jurors

A lot directly depends on the composition of the jury: first of all, the fairness of the final verdict regarding the guilt/innocence of the accused citizen, as well as the decision on whether leniency is possible in relation to the accused person.

Important! At the stage of creating a jury, the lawyer and his client are given the opportunity to address to the assessors all the questions that interest them. The need for these questions is connected with only one task: to establish and understand whether the assessors have any dependent opinion that inclines them to the guilt of the accused person.

According to the letter of the law, the entire system of forming a jury is obliged to guarantee as much as possible the participation in it of impartial, fully reasonable and fair citizens. Individuals capable of making an objective decision based solely on honesty, objectivity and integrity.

If the jury forms a dependent opinion, this contributes to the creation of an accusatory attitude already on a subconscious level. This accusatory attitude finds its manifestation in the fact that the jury begins to actively hear only the accusing side, in fact, completely ignoring the arguments of the lawyer.

Such biased and biased sentiments of the board, which, first of all, should be influenced by the defense attorney in a jury trial, are characteristic of the following category of people:

members of the jury who suffered from a similar criminal act (or their family members and friends were victims),
members of the jury who in their hearts approve of the use of the death penalty,
jury members who are prone to being influenced by generally accepted stereotypes in society.

Having handed over the lists of jury candidates to the defense and prosecution, the court is obliged to provide all the explanations of the rights and the consequences of ignoring them.

The chairman judge is obliged to explain to the defense and the prosecution the content of the rights that are regulated by the Code of Criminal Procedure of the Russian Federation, Art. No. 64, part 1, as well as the consequences if these rights are ignored, namely:

the right to file a reasoned challenge against a future member of the jury;
The defense attorney in a jury trial and his client have the right to unmotivated challenge of any member of the panel. This challenge can be carried out by any of the participants two times;
the right to submit an application with a request to dissolve the panel of assessors due to their great bias;
the right to express one’s dissatisfaction regarding the meaning and presentation of questions; and the right to formulate questions to be considered by the jury;
the right to express dissatisfaction regarding the meaning of the parting remarks of the presiding person, who violated the principle of an impartial and objective approach;
the right to speak in the debate, at the end of the process, as well as in the process of analyzing the results of the decision, etc.

It should be understood that the mission of a lawyer, at the time of formation of the jury, is to influence its members. Therefore, in order to avoid unfair treatment of his client by the jurors, the lawyer is obliged to demand the challenges of those juror candidates who work in the law enforcement field and, at the same time, challenge all citizens loyal to law enforcement officers.

Keep in mind! Failure to request the challenge of one of the jurors will then deprive the lawyer of the right to invoke that juror's manifest bias. When filing a reasoned challenge, the defense in a jury trial is obliged to pay attention directly to the motive, forming it in a specific and clear form. This convinces the presiding court of the importance of his positive decision.

It should be understood that the absence of clearly formulated requirements for the list of jury candidates will most likely lead to a simplification of the content of the list and to minimizing the lawyer’s information about these persons. Therefore, the stinginess of information about the personality will prevent the lawyer and his client from qualitatively preparing for the oral examination and making a conclusion about the personality quality of each of the candidates for the jury.

Obvious flaws in the jury selection process

The lawyer has no other methods to obtain information about each member of the jury, unlike the prosecutor: thanks to state powers, the prosecutor has a much wider range of possibilities.

Accordingly, while having the same legal rights as the prosecution in the process of forming a jury, the defense attorney does not have equal opportunities to use them.

Obvious flaws in the procedure for forming a jury also lie in the fact that the lawyer and client do not have enough time for a detailed and consistent preparatory period for the upcoming familiarization with candidates for the jury.

The defense in a jury trial does not have enough time to think about and prepare for motivated/unmotivated challenges by jurors. The current practice of criminal trials suggests that in order to carry out such fundamentally important actions, the lawyer is allocated a very short period of time, almost calculated minute by minute.

Often, this is why candidates for jury service present false and invalid information about themselves: this may serve as a reason for overturning the court’s decision.

Note! For comparison, it will be interesting to see how members are selected for juries in America. In the USA, in order to select worthy members of the jury, consultants work together with lawyers. They use modern and well-proven scientific tactics and techniques to select jurors.

In order to obtain specific information about the personal characteristics of the members of the jury, the lawyer studies the questionnaires filled out by the candidates in order to ask them questions that he may have (Code of Criminal Procedure of the Russian Federation, Art. 328).

Actions of a lawyer in case of dissatisfaction with juror candidates

In the event that a lawyer, after studying the questionnaires, asks questions and receives clearly unsatisfactory answers, the defense in a jury trial, and his client, must submit a reasoned request for recusals. The lawyer and the accused also have the right to an unmotivated challenge.

There must be at least twenty jurors. If, after motivated challenges, there are more than 14 of them left, then the state prosecution gets the right to an unmotivated challenge first, and only then does the defense.

According to the Code of Criminal Procedure of the Russian Federation, Art. 330, a defense attorney has the right to request a complete dismissal of the entire jury only if he believes that the level of complexity of the case being considered does not correspond to the level of objectivity of the jury presented.

Such a petition is always discussed in detail in the conference room and then the court either grants it or not.

Important! A lawyer's motion may be submitted strictly before the jury is sworn in.

The defense attorney is obliged to strictly ensure that the number of jurors removed includes:

candidates for jurors who belong to a completely different social group than the one to which the accused belongs. Then, they will certainly be able to understand his motivation and psychological basis;
candidates from among officials. They, due to their duty, are focused on a bureaucratic and official approach to the fulfillment of any civic duty;
citizens who have repeated experience in the everyday application of legislation: a beginner will always be more sensitive to the letter of the law than a person with extensive experience in this;
in cases involving rape and murder, where the victim is a child, it is necessary to challenge persons with children. This especially applies to women.

Judicial investigation

During a judicial investigation in a jury trial, in contrast to a regular trial, special attention is paid to psychological contact with the jury. Therefore, the lawyer’s ability to speak eloquently and know certain psychological techniques plays a huge role. Only these skills, demonstrated in a jury trial, can really help the defendant.

Therefore, the defense attorney is obliged to study the materials of the criminal case in detail, with the specific purpose of:

challenging in court proceedings the admissibility, reliability and sufficiency of the evidence base, as well as the compliance with the law of the charges brought against one’s client;
a statement about the fact of a biased investigation, without a sufficient examination of all the circumstances of the case that could justify the defendant or mitigate his guilt;
putting forward and elaborating defensive versions of the circumstances of the case that can fully/partially exonerate the convicted person, or mitigate the degree of his responsibility.

The defender is obliged to confirm the objectivity of his statements with the help of evidence collected by him in accordance with Art. 86 Code of Criminal Procedure of the Russian Federation.

During the trial, in the presence of the jury, only that evidence is examined with the help of which the main questions about the factual side of guilt are resolved:

Has it been proven that this act took place?
Has it been proven that it was the accused who committed it?
Is the defendant guilty of this act?
Does he have the right to leniency and special leniency?

After posing the main question about the defendant’s guilt, the lawyer raises specific questions regarding the degree of guilt or changes in its nature. This may lead to the acquittal of the defendant.

Keep in mind! In order for the jury and the judge to form the correct inner conviction on all issues of the defense lawyer, they must understand the position of the defense from the very beginning of the trial. To do this, the lawyer is obliged to prepare with the client: so that, at the beginning of the trial, he briefly and clearly outlines the essence of the defense position. The first impression of the accused in the courtroom is very lasting and important for gaining the trust and favor of the jury towards him.

In court, the principle of competition is very important: the study and evaluation of the evidence by the jury occurs exclusively in the mode of competition between the defense and prosecution.

The participation of a lawyer in the trial consists of 2 stages: each such stage implies its own subject of proof and its own range of possible evidence.

At the first stage of the trial, the subject of proof is formed by such circumstances as:

place,
time,
method of crime
the nature and extent of the damage caused,
reasons for the crime,
any other circumstances that allow the jury to objectively answer the questions put to them.

Any judicial investigation begins with the opening statements of the lawyer and the prosecutor. This is necessary, first of all, for the jury: so that they have an idea simultaneously of both the concept of the prosecutor and the concept of the defense attorney.

Important! The lawyer’s statement must consist of 2 parts: a statement previously agreed upon with the client, the position on the charges brought against him and proposals regarding the judicial procedure for examining the evidence base. Accordingly, unlike in a regular court, in a trial with a jury, the lawyer must indicate his position on the charges brought against him.

The mission to comply with the procedure for examining the evidence base is entrusted to the presiding judge: he is obliged to remove from the examination evidence that, although relevant to the case, is clearly beyond the powers of the jurors.

It is strictly forbidden, in a trial, to examine: the facts of the defendant’s previous criminal record, his recognition as an alcoholic and drug addict, so as not to cause the jury to have a negative attitude towards the defendant.

The task of the jury is only to examine the evidence of the defendant’s guilt in committing this particular crime. Therefore, information about the defendant should be examined by the jury only to the extent that it is necessary for them to understand the elements of the crime with which he is currently accused.

All the nuances of judicial proceedings, in court with a jury, are regulated by Art. 335 Code of Criminal Procedure of the Russian Federation.

In front of a jury, decisions should not be analyzed based on procedural issues, such as: a decision to initiate a criminal case, a decision to charge a person as an accused.

In the presence of a jury, one should not discuss and resolve issues and motions aimed at ensuring the conditions of judicial proceedings: bringing in victims, preventive measures, challenging participants in the process, etc.

In a word, it is strictly forbidden to discuss issues that do not directly concern the jury and may provoke their distorted and biased perception of the accused.

Judicial debate

Debates in court with the participation of jurors have their own characteristics. First of all, this is the division of the debate process into two levels, depending on the compensation of the jury and the professional judge when considering a criminal case.

The first level of debate is focused exclusively on issues that fall within the competence of the jury, namely: the proof of the act of the accused, the proof of the fact of committing a crime and his guilt in this act.

If the defendant is found guilty, the parties at this level consider issues related to the possible recognition of the defendant as deserving of leniency.

Important information! There is a concept of a ban on publicizing negative personal characteristics of the accused (for example, about his former criminal record, alcoholism, etc.). Unfortunately, this prohibition is often violated by the prosecutor. The lawyer should respond to this not simply with indignation, but by reminding the jurors that even in small things, the prosecution is breaking the law, treating it with no respect.

The defender does not need to get too carried away and present the client as almost an “angel”. The lawyer must objectively, without unnecessary emotions, paint a more or less real picture: this is what can inspire confidence on the part of the jurors.

Collision protection

Important features of defense in jury trials include conflict of laws defense. Conflict of laws defense is when there are several accused and, at the same time, their positions are diametrical to each other.

In this case, it is necessary to be aware of the ancient commandment, which says: “do not accuse while defending.”

The most acute moments in an adversarial criminal trial in court with a jury, for conflict of law defense, can arise when, on the basis of evidence, each accused, denying his guilt, imposes it on the other accused, as if slandering him. Then the jury can be confident that each of the defendants admitted guilt for the other defendant.

In court, with the participation of a jury, it is prohibited to ask interrogated questions aimed at clarifying the circumstances that expose the accused of an illegal act, or aimed at aggravating the extent of his responsibility.

Each formulation of a question is, in fact, an independent judicial stage. VC. Sluchevsky gave a clear definition of this stage, calling it “the decisive moment of the process.”

Important information! According to the results of the cassation history, in 2005, the main basis for the reversal of many court decisions made by the court in the presence of a jury is the illiterate and distorted formation of the question sheet by the presiding judge.

It is this stage that is of great importance: it prepares jurors to perform their functions, which are expressed in formulating an answer to the main question: is the defendant guilty or not guilty?

The judge does not have the right to refuse the accused and his lawyer to raise questions about the presence in the criminal case of specific circumstances that may exclude the defendant’s guilt for the act, or entail his responsibility for a less serious act.

The second stage of the trial, in the jury trial, is different in that, without the presence of a jury, the consequences of the decision are discussed.

Depending on the consequences of which particular verdict (guilty or acquittal) are being discussed, the issues in which the lawyer and the prosecutor participate also depend.

Keep in mind! In case of an acquittal decision by a jury, only a range of issues are subject to research and discussion, such as: distribution of legal costs and the fate of material evidence. Upon conviction, the presiding judge must provide the parties with the opportunity to examine evidence that cannot be examined in the presence of the jury; speak out about the content of the crime in the act, which the jury found proven, etc.

As the arguments continue, the defense and prosecution raise various issues of law that must be decided upon at sentencing. But, at the same time, both parties have no right to doubt and criticize the decision made by the jury.

Summary

Based on all of the above, the peculiarities of defense in a jury trial are due to the fact that jurors decide questions of fact completely independently. While issues of legal qualification, on the basis of these facts established by the jury, are decided by the judge who presides over a specific criminal case.

Accordingly, the role of a defense attorney in a jury trial can be performed efficiently only if the lawyer has excellent knowledge of the entire procedural order of the trial with the participation of a jury, his excellent abilities in oratory, psychological knowledge and much more that should be in the arsenal of working tools of a real defense attorney.