How to get acquainted with the materials of the administrative case

If the driver violated traffic rules and the inspector noticed this, a protocol is drawn up on the spot and administrative proceedings are initiated. Based on the results, the perpetrator is brought to justice. According to Art. 15.1 of the Code of Administrative Offenses of the Russian Federation, each participant in the proceedings is given the right to familiarize himself with the case materials. In addition, in some cases it is mandatory.

In the article we will consider how and who can get acquainted with documents on an administrative case, where to go, what is needed for this and how to solve possible problems that many citizens have to face.

Why is it important to familiarize yourself with the case materials?

Case materials are documents drawn up during the administrative investigation by traffic police officers. If the violation is serious and there is a question of arrest or deprivation of a driver’s license, they are taken to court.

Before being submitted to the court, participants in the proceedings may request to review the materials. This is important, especially if any of them believes that their rights have been violated by inspectors.

Another important point is studying the protocol. It is issued at the place where the driver was stopped. Subsequently it is given to him against signature. If he does not agree with the contents of the protocol, a corresponding mark is made on it. There is no point in refusing to sign: the refusal will be recorded by the inspector in the presence of two witnesses. It is better to indicate your disagreement and then appeal it.

After registration, the protocol is attached to the rest of the materials. After this, they will be used in court during administrative proceedings. If a court decision is not required by law to bring the person to justice, the corresponding resolution is drawn up in the traffic police.

There are several reasons why it is extremely important to study the case materials:

The chance of successfully defending your rights in court increases. If a lawyer defends the interests of a citizen, he must study official documents and not be guided by the client’s arguments and testimony. You need to act based on the actual circumstances. If a lawyer promises a 100% win, there is a chance that he is unscrupulous: before studying the materials, not a single good human rights activist will give such a guarantee.
The risk of losing your driver's license is reduced. Traffic police inspectors often make mistakes, including when interpreting traffic rules or the Code of Administrative Offenses of the Russian Federation, incorrectly classifying offenses. The car owner or lawyer will notice this after studying the materials, and if necessary, appeal everything.

If a person (another driver, a pedestrian) was injured in an accident, he, as a participant, also legally has access to the materials. Having studied them, he will be able to defend his rights independently or with the help of a lawyer and achieve a fair punishment for the perpetrator. This is especially true if there is a possibility that the person is trying to avoid responsibility.

APPROVED by decision of the Council

Bar Association of the Republic of Tuva

No. 122 of June 18, 2021

EXPLANATIONS of the Council of the Bar Chamber of the Republic of Tyva “On the length of time to familiarize yourself with the materials of a criminal case”

The Council of the Bar Chamber of the Republic of Tyva received an appeal from lawyer Dongak Sholban Togus-oolovich with a request for clarification on the criteria that they need to follow when familiarizing themselves with the materials of criminal cases in order to properly ensure the right to defense. At the same time, the Chamber of Lawyers has reliable data on specific, non-isolated cases of infringement of the procedural rights of lawyers and unreasonable restrictions on their time to familiarize themselves with the materials of criminal cases. In addition, the results of the disciplinary practice of the Bar Chamber give reason to believe that there are cases when some lawyers neglect the duty to comprehensively and fully study the materials of criminal cases. According to the Council of the Bar Association of the Republic of Tyva, the problem that has arisen is due to the fact that in the criminal procedural law, judicial practice and in the legal literature there are no criteria for determining the necessary and sufficient time for the defense attorney to familiarize himself with the materials of the criminal case. Provisions of paragraph 3 of Art. 217 of the Code of Criminal Procedure of the Russian Federation, which states that the accused and his defense attorney cannot be limited in the time they need to familiarize themselves with the materials of the criminal case, are insufficient to regulate all situational circumstances that arise at this stage of criminal proceedings (both pre-trial and trial). To date, no standards or regulation of the problem that has arisen have been developed in any other way. In connection with the above, the Council of the Chamber of Lawyers of the Republic of Tyva believes that, based on the goals of proper performance by lawyers of their professional duties to ensure the constitutional right to defense against charges, it is necessary to make the following recommendations. 1. Familiarization of the lawyer with the materials of the criminal case is regulated by the provisions of paragraphs 6 and 7 of Part 1 of Art. 53, art. 217, part 2 art. 219, part 3 art. 227 and part 3 of Art. 248 Code of Criminal Procedure of the Russian Federation. So, in accordance with Art. 217 of the Code of Criminal Procedure of the Russian Federation, the investigator presents the accused and his defense attorney with filed and numbered materials of the criminal case, except for the cases provided for in Part 9 of Art. 166 Code of Criminal Procedure of the Russian Federation. Material evidence is also presented for review and, at the request of the accused or his defense attorney, photographs, audio and (or) video recordings, filming and other attachments to the protocols of investigative actions. At the request of the accused and his defense attorney, the investigator provides them with the opportunity to familiarize themselves with the materials of the criminal case separately. In the process of familiarizing themselves with the materials of a criminal case, consisting of several volumes, the accused and his defense attorney have the right to repeatedly refer to any of the volumes of the criminal case, as well as write out any information in any volume, make copies of documents, including using technical means. The accused and his defense attorney cannot be limited in the time they need to familiarize themselves with the materials of the criminal case. If the accused and his defense attorney, who have begun to familiarize themselves with the materials of the criminal case, clearly delay the time to familiarize themselves with these materials, then on the basis of a court decision a certain period is established for familiarizing themselves with the materials of the criminal case. If the accused and his defense attorney, without good reason, have not familiarized themselves with the materials of the criminal case within the time limit established by the court, the investigator has the right to decide to terminate this procedural action. According to Part 2 of Art. 219 of the Code of Criminal Procedure of the Russian Federation, upon completion of additional investigative actions, the investigator provides the accused and his defense attorney, as well as other participants in the process, with the opportunity to familiarize themselves with additional materials of the criminal case. In accordance with Part 3 of Art. 227 of the Code of Criminal Procedure of the Russian Federation, when a criminal case comes to court, at the request of a party, the judge has the right to provide her with the opportunity to additionally familiarize herself with the materials of the criminal case. Based on Part 3 of Art. 248 of the Code of Criminal Procedure of the Russian Federation, in the event of a replacement of the defense attorney, the court provides the defense attorney who has newly entered the criminal case with time to familiarize himself with the materials of the criminal case and prepare for participation in the trial. 2. The actions of a lawyer to familiarize himself with the materials of a criminal case represent a labor-intensive intellectual activity, consisting of a detailed study, analysis, comparison and evaluation of documents and information available in the case materials and requiring him to perceive, understand and comprehend the information collected in the case in relation to tasks facing the defense. In addition, the process of familiarizing the defense attorney with the materials of the criminal case includes the formation of the defense position and its agreement with the principal, as well as the procedural formalization of such a position by preparing appropriate petitions or complaints. The foregoing indicates that such procedural activities of the defense attorney require significant time expenditure. A lawyer's copying of the materials of a criminal case cannot be equated to familiarization with the materials of a criminal case, since it is only a way to obtain copies of materials of a criminal case for their subsequent study. In this regard, the Council of the Bar Association of the Republic of Tyva notes that the attempts of some law enforcement officers to equate the receipt of copies of the case materials by the defense attorney with actual familiarization with them and to force lawyers to sign the corresponding schedules are not based on the law and contradict the meaning of the rights granted to them. At the same time, the Council of the Bar Association draws attention to the fact that the investigative practice of drawing up schedules for familiarizing with the materials of a criminal case is not of a regulated nature, and is sometimes unreasonably used to record not the actual time spent on familiarizing with the case, but the copying of materials, which they try to pass off as familiarization with the case. indicating case sheets and time. 3. When determining the time required for the defense attorney to properly familiarize himself with the materials of the criminal case, one should proceed from the following circumstances: the volume of the criminal case; the complexity of the qualification of the charge brought, the number of accused and the acts charged; jurisdiction of a criminal case; the scope of circumstances to be proven; the presence in the case materials of opinions of forensic experts or specialists, audio and video recordings; the need for additional study of existing judicial practice; the need to prepare procedural response and defense documents. In the process of familiarizing yourself with the materials of the criminal case, the defense attorney is obliged not only to formulate a defense position, but also to coordinate it with the defendant. The process of such coordination should be perceived as one of the mandatory elements of the process of familiarization with the case materials, therefore these actions should be taken into account when determining the time required for the defense to familiarize itself with the case materials. In addition, when the lawyer and the client are familiarized separately with the case materials, or when the client is in custody, the process of familiarization, as well as subsequent agreement on the position on the case, requires additional time. Additional time costs are also required for the implementation of a number of special procedural rules, in particular those related to the institution of state and other secrets protected by law, the need to become familiar with material evidence that is not stored in a criminal case, etc. 4. Comprehensive and complete study by the defense lawyer of the materials of the criminal case, both in the course of fulfilling the requirements of Art. 217 of the Code of Criminal Procedure of the Russian Federation, and in court, in particular, if a lawyer takes over the defense during the trial, it is his professional duty. Neglect by the defense attorney of this duty and familiarization with the materials of the criminal case at the request or demand of the inquirer, investigator or judge without taking into account the criteria set out above, in a time period that is clearly insufficient for the implementation of a qualified defense, is unacceptable, constitutes a disciplinary offense of the lawyer and entails the application of disciplinary measures to him . 5. Unreasonable restriction of time for a defense attorney to familiarize himself with the materials of the criminal case, without taking into account the same criteria, is a gross violation of the constitutional right to defense against prosecution, and therefore impedes the further progress of the case and citizens’ access to justice. 6. Based on the above, when familiarizing with the materials of criminal cases, lawyers are recommended to follow the following recommendations on the length of time for familiarization: - Materials of a criminal case that is not particularly complex - as a rule, at least two days to study one volume of the criminal case; — Materials of the criminal case against three or more accused (defendants) in one case; if charged with three or more crimes; in relation to minors; in relation to accused (defendants) who do not speak the language in which the proceedings are conducted; in relation to accused (defendants) who, due to physical or mental disabilities, cannot independently exercise their right to defense; on crimes in the sphere of economics, business activity and other complex and specific crimes; if there are voluminous and complex or several opinions of forensic experts or specialists in the case; if there is information in the case that constitutes a state or other secret protected by law; cases considered by the Supreme Court of the Republic of Tyva or the Supreme Court of the Russian Federation - as a rule, at least three days to study one volume of a criminal case (or individual volumes of a criminal case to which the indicated signs can be attributed). The given criteria cannot be regarded as exhaustive, since taking into account the specifics of the case materials and the plot of the accusation, the defense attorney in each specific case independently determines the time he needs to familiarize himself with the materials of the criminal case. 7. In this case, the lawyer is obliged to take the necessary measures to prevent his actions from being interpreted as an abuse of right and a clear delay in the familiarization process. The lawyer’s employment in carrying out other urgent assignments (for example, the coincidence of times or dates of procedural actions on different orders, the appointment of a court hearing during familiarization with the case, etc.) may be a valid reason for increasing the length of time for familiarizing with the materials of the criminal case. At the same time, when assessing the validity of these reasons, one should take into account the provisions of the code of professional ethics of a lawyer regarding the inadmissibility of accepting orders for the provision of legal assistance in an amount that is obviously greater than the lawyer is able to fulfill. 8. In the event that an inquiry officer, investigator or court grossly violates procedural rights and denies the lawyer the opportunity to familiarize himself with the materials of the criminal case, or significantly restricts such a right, thereby depriving the lawyer of the opportunity to conscientiously and skillfully perform the duties of a defense lawyer, the lawyer is obliged to report the violation in writing right to defense, demand the necessary time for familiarization, and in case of refusal - about the impossibility of competently ensuring the right to defense with the immediate sending of a corresponding notice to the head of the body of inquiry, preliminary investigation or court and at the same time to the Bar Chamber of the Republic of Tyva. In exceptional cases, the lawyer has the right to leave the place of the procedural action. Their exclusivity should be due to a situation created by law enforcement officials in which any further participation of a lawyer in a procedural action or court hearing not only does not serve the purposes of protecting the accused, but, on the contrary, actually legitimizes violations of his fundamental civil rights, the observance of which is guaranteed by the state. It is precisely because of their exclusivity that such actions of a lawyer cannot be regarded as a refusal to undertake the defense. In any case, such actions must be agreed upon with the client and reported to the Bar Association of the Republic of Tyva. 9. In connection with these clarifications, the Council considers it necessary to remind lawyers of paragraph 3 of Art. 18 of the Code of Professional Ethics for Lawyers, according to which a lawyer who acted in accordance with the explanations of the Council regarding the application of the provisions of this code cannot be subject to disciplinary liability.

What documents must be provided to the production party?

According to current legislation, the materials include the following documents:

protocol (drawn up by the inspector at the place where the guilty driver was stopped);
an explanatory note from a citizen who committed an offense (usually drawn up by the traffic police department);
expert opinions (if a medical, technical or other examination was carried out);
written testimony of witnesses and victims;
petitions of participants in proceedings in court.

It may also include other documents and materials used in the administrative investigation. For example, video and audio recordings.

If the materials have not yet been submitted to the court, you can familiarize yourself with them at the traffic police department where the administrative proceedings are being conducted. In other cases, they can be requested in court by filing an appropriate petition.

Who can get acquainted with the case materials?

Participants in the proceedings or their representatives may submit an application or petition for the issuance of copies of documents:

The guilty person against whom proceedings have been initiated;
Injured party;
Legal representatives of the perpetrators or victims;
Representatives of a legal entity, if an organization is involved in the case.

If a full-fledged investigation requires the participation of specialists or experts, the materials are transferred to them for review. It is important that they are disinterested individuals and have the knowledge necessary to assist.

How to familiarize yourself with the materials of an administrative case: step-by-step instructions

To obtain copies of the materials before going to court, you need to contact the traffic police department involved in the administrative investigation. The documents are drawn up by the investigator or interrogating officer of the department, but you can also request them from the chief.

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What the procedure looks like step by step:

The production participant comes to the inspection with a passport and draws up an application for the provision of materials on the spot.
On the day of application, the citizen is provided with all data.

During the visit, it is recommended to copy all documents onto a flash drive, as well as photograph evidence and other materials on your phone. But it is best to film video - it is more informative, but inspectors may refuse this, citing a ban on filming in law enforcement departments. This is not true: no legislation prohibits filming in open spaces to which all citizens have access.

Respect for the rights of participants in a procedural audit

At the stage of checking a crime report, there are still no victims, witnesses, or accused. To Popov L.M. to recognize a victim, it is necessary to make a decision recognizing her as such, which is possible only after the initiation of a case. Before this, she is called the applicant.

As for witnesses, they are conventionally called such, but in the full sense of this term they will become, again, only during the investigation within the framework of a criminal case.

The same applies to the suspect - until he is detained at the crime scene and a case is not initiated, he is considered a participant in the pre-investigation check, nothing more.

At the same time, despite the lack of a clear and “official” status in the case, all of the listed persons have a number of rights. And if these rights are not respected, the consequences may lead to the exclusion of the collected evidence by the court.

The main rights of these persons are:

the right not to testify against oneself and to refuse to give explanations in accordance with Art. 51 of the Constitution of the Russian Federation;
the right not to testify against one’s loved ones, which includes spouses, children, parents;
the right to use the assistance of a lawyer - in any verification event, be it a survey or participation in a study, examination, etc. The lawyer also has his own rights - to be present during the questioning, during the inspection, and to get acquainted with the inspection materials.
bring complaints about the actions and inactions of the investigator, interrogating officer;
ask for security measures to be applied (for example, to keep your full name or information about giving an explanation and generally about contacting the police secret).
the right to a reasonable time for verification of the message. The law requires strict adherence to the deadlines for conducting pre-investigation checks. It is unacceptable to set aside the statement of L.M. Popova. and check only the message of citizen V.M. Petrov. The applicant has the right to immediate measures to verify his information about the crime, and in some cases, delays can be dangerous for people’s lives.

As a general rule, a message must be verified within 3 days . The legislator has provided for the possibility of extending this period to 10 days . Let us note that most often the period is extended, since three days are often not enough for local commissioners and investigators. In exceptional cases, it is possible to extend the period to 30 days. Typically, an extension of up to a month occurs for reports of economic crimes or other violations of the law, the collection of evidence for which is difficult (for example, exhumation of a corpse followed by a complex examination is required).

The procedure for extending the period involves the mandatory consent to increase the period by the head of the inquiry or investigation body. The extension of the investigator's term to 30 days is approved by the prosecutor .

According to the results of the inspection, on the basis of Art. 145 of the Code of Criminal Procedure of the Russian Federation, one of two decisions is made: to refuse to initiate a criminal case or to initiate a criminal case.

Possible problems

In addition to the ban on filming, there are a number of other problems that citizens have to face:

They refuse to provide materials. For the culprit, this may mean that they are trying to bring him to justice illegally; for the victim, on the contrary, a mitigation of responsibility for the culprit.
Not all documents are provided. Most often this happens if the inspectors did not have time to formalize everything, or made a mistake somewhere.
The materials contain incorrect information about the parties to the proceedings and the circumstances of the accident. There are different options here: both an attempt to make an innocent person guilty, and elementary illiteracy of employees.

Let's consider each situation and the way out of it in detail.

Case materials are not provided

If the participant is not given documents for review, this violates the provisions of Art. 25.1 Code of Administrative Offenses of the Russian Federation. You need to request a written refusal, and then appeal it through a senior traffic police officer or in court.

Materials are provided, but not completely

It is important to consider that the file must be bound and numbered so that documents cannot be taken from there at any time. If a citizen discovers that some material is missing (for example, a report), you need to inform the employee about this and demand an explanation.

The documents contain inaccurate information

Unreliable data means the indication of incorrect full name, circumstances of the accident, and diagrams from the scene of the accident. You need to point this out to the traffic police officer and demand correction.

If incorrectly completed documents have already been sent to court, you can prove your case using video recordings or witness testimony. Before the transfer, you can appeal everything through the head of the department.

Criminal procedural verification of a crime statement

The rules for conducting an inspection are regulated by Article 144 of the Criminal Procedure Code of the Russian Federation. This article lists the officials who have the right to conduct a pre-investigation check:

investigator and investigative body , that is, local police commissioners and police detectives, PDN inspectors;
the head of the investigative body or investigator - these officials carry out verification activities personally and entrust them to police officers (for example, employees of the criminal investigation department on a report of murder).

In practice, statements are received not about a crime committed, but about an impending crime. In such cases, not only investigative authorities are involved in checking the message, but also special rapid response teams, depending on the nature of the information received and the danger of possible consequences.

Question: What is the verification?

First of all, in the necessary measures aimed at clarifying the circumstances set out in the application. To find out whether there was a crime and who was involved in it, the applicant himself will be interviewed without fail, since, as a rule, the application does not contain all the necessary information.

Let's give an example . Citizen Popova A.M. wrote a statement to the police that slate had been stolen from her summer cottage, indicated her information - phone number, place of residence and value of the stolen property. But her statement lacked information about what time the crime was committed, whether the area from which the sheets were taken was locked, what their size was and whether she was at home at that time, where the dacha was located and who had access to the site. All these questions will need to be clarified during the inspection. With Popova A.M. The local police officer, who is geographically related to the area where the theft was committed, will call and meet.

After the applicant has been interviewed and an explanation has been drawn up, it will be necessary to inspect the scene of the incident. The local police officer will go to the site and draw up a protocol for examining the scene of the incident, which will describe the location of the objects, the footage, as well as the actual place where the slate sheets were located. All this will be shown to him by A.M. Popova, who will sign the protocol as a person participating in the action. Let us note that an inspection of the crime scene is one of the few investigative actions that can be carried out before the initiation of a criminal case.

If Popova A.M. indicates that he suspects someone, then the district police officer will take an explanation from this suspected person. If there are no suspects, the district police officer will begin work to identify persons who have previously been convicted and have been seen in thefts from summer cottages, and will also check the markets for the stolen items. This is just an approximate list of activities that can be carried out by a police officer. Over the years, each law enforcement officer has developed his own approach to solving crimes. Most often, those district police officers who have been working in the same area for a long time are well aware of citizens prone to crime and criminal personalities in general.

The main verification action - a survey - is often carried out in relation to eyewitnesses of criminal acts and other witnesses (including indirect ones). So, according to Popova L.M. During the procedural check, not only the persons who saw Ivanov and Petrov carrying several sheets of slate from the applicant’s site in the dark will be interviewed, but also Sidorov A.G., who together with her acquired these items - thereby in his explanation he will confirm the time and place, as well as the cost of purchase.

Other checks include:

examination of the corpse . Typically, such an inspection is necessary when a crime is reported by telephone. Then an investigation team, which includes an investigator, goes to the scene. In addition to drawing up a protocol for examining the scene of the incident, he is obliged to draw up a protocol for examining the corpse - recording what visible bodily injuries are present on it, describing its location, signs of violence, the presence or absence of corpse stains, listing items of clothing, etc. In order to most fully examine the corpse, the investigator invites a specialist.
requesting documents related to reporting a crime . The legislator does not specify what kind of documentation can be seized and from where. At the same time, it must be taken into account that details of telephone conversations, as well as information on bank accounts, can only be obtained by court decision. Without it, the inquiry officer or investigator has the right to request other documents: for example, contracts and payment orders from any institution, organization, as well as certificates, receipts, etc. voluntarily issued by individuals. For citizens and organizations, compliance with requests from law enforcement officers is mandatory. Otherwise, refusal to assist may result in administrative liability under Art. 17.7 Code of Administrative Offenses of the Russian Federation.
inspection of objects . For example, if, as a result of verification activities, slate was discovered in Ivanov’s hidden barn, upon voluntary handing over of the stolen sheets to him, the investigator will draw up a protocol for examining the items. Seizure and search are not carried out at this stage - these are investigative actions that can only take place in connection with a criminal case.
research and appointment of forensic examination as part of the pre-investigation check . To conduct research before initiating a criminal case, it is possible to obtain comparative samples (for example, for a comparative handwriting study, signature samples are obtained from a person). In practice, most often at the verification stage, examinations are carried out on weapons or drugs, on bodily injuries, and assessments. The results of such studies directly influence the decision on whether there is a crime or not.

For different categories of cases, there are peculiarities in conducting verification of the message. Thus, in cases of illegal drug trafficking, test purchases can be carried out, when a person brought in from outside is introduced as a participant in the turnover, recording with audio and video equipment a conversation about the purchase or sale of prohibited substances. A recording device and tagged funds are almost always used during the investigation of a bribe solicitation report.

Information obtained during a procedural check and documents and objects seized, as a rule, become evidence of guilt after the case is initiated. But the law states that only legally obtained evidence is admissible. Therefore, when collecting evidence before initiating a criminal case, it is important that the investigator, inquiry officer and inquiry authorities respect the rights of the participants in the inspection.

Procedural actions of tax audits

There are some special features when checking a report of a tax crime. It is conducted by an investigator from the Investigative Committee. First of all, he establishes whether there are grounds for refusing to initiate a criminal case. If they are not there, then the message is sent to the tax authority superior to the one where the potential violator of the tax law is registered.

Within 15 days, the tax authority is obliged to provide the investigator with a tax audit conclusion with a calculation of unpaid taxes or a conclusion on the absence of tax violations. At the same time, the Code of Criminal Procedure of the Russian Federation does not make the investigator dependent on the content of the conclusion, and if it is obvious to him that there is corpus delicti, then he has the right to initiate a criminal case even before receiving information from the Federal Tax Service.

At the same time, a special verification regime specifically for tax crimes contributes to the correct establishment of facts - after all, the issue of initiating crimes under Art. 198, 199 of the Criminal Code of the Russian Federation depends, first of all, on the amount of taxes that the payer evaded. Correct calculation of arrears is the key to the legal initiation of a criminal case.