1. The trial of a criminal case is carried out with the mandatory participation of the defendant, with the exception of cases provided for in parts four and five of this article.
2. If the defendant fails to appear, the consideration of the criminal case must be postponed.
3. The court has the right to bring a defendant who fails to appear without good reason, as well as apply or change a preventive measure against him.
4. A trial in the absence of the defendant may be allowed if, in a criminal case involving a crime of minor or medium gravity, the defendant requests that the criminal case be considered in his absence.
5. In exceptional cases, judicial proceedings in criminal cases of grave and especially grave crimes may be conducted in the absence of a defendant who is located outside the territory of the Russian Federation and (or) avoids appearing in court, if this person has not been brought to justice in the territory of a foreign state in this criminal case.
6. The participation of a defense attorney in court proceedings conducted in accordance with part five of this article is mandatory. A defense attorney is invited by the defendant. The defendant has the right to invite several defense attorneys. In the absence of a defense attorney invited by the defendant, the court takes measures to appoint a defense attorney.
7. If the circumstances specified in part five of this article are eliminated, the sentence or ruling of the court, passed in absentia, at the request of the convicted person or his defense attorney, is canceled in the manner prescribed by Chapter 48 of this Code. The trial in this case is carried out in the usual manner.
Today the trial under Art. 119 of the Criminal Code of the Russian Federation, but I cannot appear. What threatens me?
Good afternoon. Today the trial under Art. 119 of the Criminal Code of the Russian Federation, but I cannot appear. What threatens me?
Lawyer Antonov A.P.
Good afternoon
According to Article 247 of the Criminal Procedure Code, the trial of a criminal case is carried out with the mandatory participation of the defendant, with the exception of cases provided for in parts four and five of this article. If the defendant fails to appear, the consideration of the criminal case must be postponed. The court has the right to bring a defendant who fails to appear without good reason, as well as apply or change a measure of restraint against him. A trial in the absence of the defendant may be allowed if, in a criminal case involving a crime of minor or medium gravity, the defendant requests that the criminal case be considered in his absence. In exceptional cases, judicial proceedings in criminal cases of grave and especially grave crimes may be carried out in the absence of a defendant who is located outside the territory of the Russian Federation and (or) avoids appearing in court, if this person has not been brought to justice in the territory of a foreign state for this criminal case. The participation of a defense attorney in the trial conducted in accordance with part five of this article is mandatory. A defense attorney is invited by the defendant. The defendant has the right to invite several defense attorneys. In the absence of a defense attorney invited by the defendant, the court takes measures to appoint a defense attorney. If the circumstances specified in part five of this article are eliminated, the sentence or ruling of the court, passed in absentia, at the request of the convicted person or his defense attorney, is canceled in the manner prescribed by Chapter 48 of this Code. In such a case, the trial is carried out as usual. According to Article 119 of the Criminal Code, threatening to kill or cause grievous bodily harm, if there were grounds to fear that this threat would be carried out, is punishable by compulsory labor for a term of up to four hundred eighty hours, or by restriction of liberty for a term of up to two years, or by forced labor for a term of up to two years. years, or arrest for a term of up to six months, or imprisonment for a term of up to two years. 2. The same act committed for reasons of political, ideological, racial, national or religious hatred or enmity, or for reasons of hatred or enmity in relation to any social group, as well as in relation to a person or his relatives in connection with the performance of an official function by this person activity or performance of public duty - is punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities. activities for a period of up to three years or without it. According to Article 15 of the Criminal Code, depending on the nature and degree of public danger, the acts provided for by this Code are divided into crimes of minor gravity, crimes of medium gravity, serious crimes and especially serious crimes. Crimes of minor gravity are recognized as intentional and careless acts, for the commission of which the maximum punishment provided for by this Code does not exceed three years of imprisonment. Crimes of average gravity are recognized as intentional acts, for the commission of which the maximum penalty provided for by this Code does not exceed five years of imprisonment, and careless acts, for the commission of which the maximum penalty provided for by this Code does not exceed ten years of imprisonment. Grave crimes are intentional acts, for the commission of which the maximum penalty provided for by this Code does not exceed ten years of imprisonment, and careless acts, for the commission of which the maximum penalty provided for by this Code does not exceed fifteen years of imprisonment. Particularly serious crimes are intentional acts, the commission of which is punishable by this Code in the form of imprisonment for a term of over ten years or a more severe punishment. Taking into account the actual circumstances of the crime and the degree of its public danger, the court has the right, in the presence of mitigating circumstances and in the absence of aggravating circumstances, to change the category of the crime to a less serious one, but not more than one category of crime, provided that for committing the crime specified in part three of this article, the convicted person is sentenced to a sentence not exceeding three years of imprisonment, or another more lenient punishment; for committing a crime specified in part four of this article, the convicted person is sentenced to a punishment not exceeding five years of imprisonment, or another more lenient punishment; for committing a crime specified in part five of this article, the convicted person is sentenced to a punishment not exceeding seven years of imprisonment. Thus, since the crimes provided for in Part 1 or 2 of Article 119 of the Criminal Code are not grave or especially grave, the case can be considered in your absence.
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
Still have questions for your lawyer? Ask them right now here, or call us by phone in Moscow +7 (499) 288-34-32 or in Samara +7 (846) 212-99-71 (24 hours a day), or come to our office for a consultation (by pre-registration)!
Participation of the victim in the court hearing
06/06/2017
One of the conditions for the timely and objective consideration and resolution of criminal cases, the implementation of the principles of adversarialism, spontaneity, and a reasonable period of criminal proceedings is the appearance of all participants in the process at the court hearing.
Failure to appear at a court hearing by any of the participants in the process often leads to red tape and violation of the rights of not only the accused, but also victims, civil plaintiffs and defendants.
According to clause 14, part 2, art. 42 of the Code of Criminal Procedure of the Russian Federation, participation in court proceedings is the right of the victim, and only by being present at the hearing can he support the prosecution, speak in debates, and exercise other procedural rights. The victim, his legal representative, representative, as well as the civil plaintiff and his representative, according to Art. Art. 42, , Code of Criminal Procedure of the Russian Federation, has the right to take part in all court hearings on the case under consideration to protect their rights and legitimate interests.
In certain cases, a criminal case may be considered in the absence of the victim. The conditions for making such a decision include the following: 1) the victim was duly notified of the time and place of the court hearing; 2) the court, taking into account the opinions of the parties, considered it possible to consider the case without the participation of the victim. In this case, the victim may request that the case be considered in his absence, or fail to appear without specifying the reasons, or request the postponement of the proceedings for reasons recognized by the court as unjustified.
The reasons for failure to appear at a court hearing can be divided into three groups:
1) unintentional (when the person did not know at all about the need to come to court, for example, if the person was not summoned to court);
2) intentional (when a person, for one reason or another, avoids appearing in court);
3) respectful (when a person is promptly notified of his summons to court, but cannot overcome the circumstances that prevent him from appearing at the court hearing).
The victim does not have the right to avoid appearing in court (Part 5 of Article 42 of the Code of Criminal Procedure of the Russian Federation). Ensuring that the court fulfills the obligations of victims to appear when summoned to court and give truthful testimony contributes to a comprehensive and complete establishment of the circumstances to be proven in criminal proceedings and the adoption of a legal, informed and fair judicial decision.
Therefore, the consequence of the victim’s failure to appear without good reason or evasion of appearing at a court hearing, if the victim’s participation in the consideration of the case is recognized as mandatory, may be his bringing in the manner prescribed by Art. 113 of the Code of Criminal Procedure of the Russian Federation (Part 6 of Article 42 of the Code of Criminal Procedure of the Russian Federation), and in the cases specified in Art. 117 of the Code of Criminal Procedure of the Russian Federation, - monetary penalty (clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 29, 2010 No. 17).
The validity of reasons for failure to appear at a court hearing is assessed by the court in each specific situation (the most common valid reason is illness).
Of particular procedural importance is the establishment of the reasons for the failure of the victim to appear when considering criminal cases of private prosecution, since in accordance with Part 3 of Art. 249 of the Code of Criminal Procedure of the Russian Federation in this category of cases, the failure of the victim to appear without good reason entails the termination of the criminal case on the grounds provided for in paragraph 2 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation (due to the lack of corpus delicti).
Another procedural consequence of the victim’s failure to appear at the court hearing is the possibility of reading out the testimony he previously gave in accordance with Part 2 of Art. 281 Code of Criminal Procedure of the Russian Federation. At the same time, the law provides an exhaustive list of reasons for the victim’s failure to appear, if established, previously given testimony can be read out: 1) death of the victim or witness; 2) serious illness that prevents you from appearing in court; 3) refusal of a victim or witness who is a foreign citizen to appear when summoned by the court; 4) a natural disaster or other emergency circumstances preventing an appearance in court.
The appearance of the victim at the court hearing may be of decisive importance when deciding on a special procedure for the trial in accordance with Chapter. 40 of the Code of Criminal Procedure of the Russian Federation, since one of the conditions for the application of this procedure is the consent of the victim (Part 1 of Article 314 of the Code of Criminal Procedure of the Russian Federation). Of course, such consent can be given before the start of the court hearing, since the law does not say anything about at what stage and how it should be obtained. Taking into account the changes in clause 14, part 2, art. 42 of the Code of Criminal Procedure of the Russian Federation, introduced by Federal Law of December 28, 2013 N 432 - FZ, the victim has the right to participate in the trial of a criminal case in the courts of the first, second, cassation and supervisory instances, to object to the sentencing without holding a trial in the general manner.
Thus, the legal consequences of the failure of the victim (private prosecutor) to appear at the court hearing may consist in the termination of the criminal case of private prosecution in accordance with Part 3 of Art. 249 of the Code of Criminal Procedure of the Russian Federation, in making a decision to apply coercive measures to the victim in the form of a detention or a monetary penalty, to postpone the court hearing, to read out the testimony previously given by the victim in accordance with Part 2, 2.1 of Art. 281 of the Code of Criminal Procedure of the Russian Federation, as well as the impossibility of clarifying its relationship to the defendant’s petition for a special trial procedure. In any case, when making procedural decisions, courts must carefully determine the reasons for the failure of victims to appear.
Everything about criminal cases
Go to the text of the Code of Criminal Procedure
Url Additional information:
Participation of the defendant
- part 1 247 of the Code of Criminal Procedure
As a general rule, the participation of the defendant is mandatory
Defendant's failure to appear
- Part 2 247 Code of Criminal Procedure
If the defendant fails to appear, the trial is postponed
- Part 3 247 Code of Criminal Procedure
the court has the right to arrest or change the preventive measure
Trial in the absence of the defendant
- Part 4 247 Code of Criminal Procedure
for minor or moderate gravity, at the request of the defendant
- Part 5 247 Code of Criminal Procedure
for serious and especially serious cases if he evades appearance
- Part 6 247 Code of Criminal Procedure
a lawyer is required in the absence of the defendant
- Part 7 247 Code of Criminal Procedure
Cancellation of a verdict in absentia, a petition is sufficient
Practical aspects
Absence of the defendant
when considering a case (
clause 3, part 2 389.17 of the Code of Criminal Procedure
)
Article 247 of the Code of Criminal Procedure. Participation of the defendant
Url Additional information:
- Part 6.1 241 Code of Criminal Procedure
the defendant is directly involved
- clause 3, part 2 389.17 Code of Criminal Procedure
trial in the absence of the defendant, cancellation
1) The trial of a criminal case is carried out with the mandatory participation of the defendant, with the exception of cases provided for in parts 4 and 5 of this article.
2) If the defendant fails to appear, the consideration of the criminal case must be postponed.
3) The court
has the right :
- to bring a defendant who fails to appear without good reason,
- as well as apply a preventive measure to him or change him.
Url Additional information:
- P.7
Plenum No. 29 without a defendant - only in cases of moderate gravity
4) A trial in a criminal case for a crime of minor or medium gravity may be allowed in the absence of the defendant if:
Url Additional information:
— clause 7
Plenum No. 29, the court has the right to disagree with the petition
- the defendant requests consideration of this criminal case in his absence.
Url Additional information:
— clause 7.2
Plenum No. 26 consideration of the appeal in the absence of the defendant
— clause 13
Plenum No. 28 petition for trial in the absence of the defendant
5) Trials in criminal cases of grave and
especially grave crimes may be conducted in the absence of the defendant:
- in relation to a defendant who evades appearing in court;
- in relation to a defendant who is located outside the territory of the Russian Federation (if this person was not brought to justice in the territory of a foreign state in this criminal case).
Url Additional information:
— clause 9
Plenum No. 29 obligation of a lawyer in the absence of the accused
6)
the participation of a defense lawyer in the trial conducted in accordance with Part 5 of this article is mandatory.
Url Additional information:
— Part 1 50 Code of Criminal Procedure
a defense attorney may be invited by the accused himself
A defense attorney is invited by the defendant.
Url Additional information:
— Part 1 50 Code of Criminal Procedure
the accused has the right to invite several defense attorneys
The defendant has the right to invite several defense attorneys.
Url Additional information:
- Part 3 51 Code of Criminal Procedure
if a defense attorney is not invited, he must be provided
In the absence of a defense attorney invited by the defendant, the court takes measures to appoint a defense attorney.
Url Additional information:
- Part 2 401.15 Code of Criminal Procedure
cancellation in cassation if the case is in the absence of the defendant
Cancellation of sentence in absentia
Cancellation of absentee
sentence, a simple petition is sufficient (
Part 2 401.15 of the Code of Criminal Procedure
)
7) If the circumstances specified in Part 5 of this article are eliminated, the sentence or ruling of the court, passed in absentia, at the request of the convicted person or his defense attorney, is canceled in the manner prescribed by Chapter 48 of the
Criminal Procedure Code.
In such a case, the trial is carried out as usual. Return to the text of the Code of Criminal Procedure
Seek advice
The Constitutional Court changed the grounds for dismissing the case due to the failure of the private prosecutor to appear
On April 15, the Constitutional Court published a ruling on the complaint of Anna Tikhomolova, who was unable to obtain an acquittal in the beating case. Due to the failure of the private prosecutor to appear, it was terminated due to the lack of evidence of a crime, despite the objections of the accused. The Constitutional Court recognized that the relevant norms of the Criminal Procedure Code contradict the Basic Law.
- Those accused under articles excluded from the Criminal Code will be allowed to acquit themselves
February 2, 10:42 - The Constitutional Court prohibited ignoring the accused when terminating a criminal case
October 16, 16:51
In 2015, a criminal case was opened against Anna Tikhomolova for beatings (Article 116 of the Criminal Code). In 2016, the magistrate discontinued proceedings in the case, since in the new version of this article the charge against the woman ceased to be criminal. Tikhomolova herself objected to this, as she wanted to achieve an acquittal.
In 2021, the Constitutional Court examined her complaint and recognized that the court does not have the right to dismiss the case if there is a protest from the accused. If he objects to the termination of the case due to the decriminalization of the article, the court is obliged to consider the case on its merits within the framework of the private prosecution procedure and either issue an acquittal or terminate the criminal case on the specified grounds. The Constitutional Court, by its resolution, canceled the previously adopted decisions in the Tikhomolova case and sent it for a new consideration.
But in September 2021, the magistrate court again dismissed the case for lack of evidence due to the failure of the private prosecutor to appear. Part 3 art. 249 of the Code of Criminal Procedure provides for the termination of private prosecution cases if the prosecutor fails to appear without good reason. Higher authorities confirmed this decision and ignored Tikhomolova’s objections that there was no crime in her case.
In this regard, the applicant asked the Constitutional Court to check for compliance with the Basic Law, Part 3 of Art. 249 of the Criminal Procedure Code in connection with Part 4 of Art. 321 of the same code on the consideration of private prosecution cases, paragraph 2, part 1, art. 24 of the Code of Criminal Procedure on the termination of the case for lack of corpus delicti and Part 2 of Art. 27 of the Code of Criminal Procedure, which does not provide for refusal to terminate the case if the accused disagrees. According to Tikhomolova, taken together, these norms violate the constitutional guarantees of equality before the court, the right to protection of honor and good name, the right to judicial protection and competitiveness in legal proceedings.
The Constitutional Court indicated that the court is obliged to ensure the adoption of a lawful, well-founded and fair decision and to examine the circumstances of the case on the merits for this purpose. He does not have the right to limit himself to establishing formal conditions for the application of the norm - this violates the right of citizens to judicial protection.
The Code of Criminal Procedure will clarify the procedure for compensation of procedural costs
The Constitutional Court also indicated that the absence of a crime is not the same as the absence of its elements. This is a broader concept, implying that there are not even prerequisites for investigating the issue of the existence of a crime. The same applies to the non-involvement of a particular person in a crime. In this regard, the termination of a case due to the absence of elements or events of a crime has different legal consequences.
By dismissing a case due to the failure of a private prosecutor to appear or his refusal to charge, the court is deprived of the legal opportunity to verify the factual and legal validity of the charge. At the same time, the accuser himself is not obliged to in any way motivate his reluctance to support the accusation. Since if the prosecutor fails to appear, the court cannot verify the circumstances of the case, it can be terminated only due to the absence of corpus delicti. Thus, part 3 of Art. 249 of the Code of Criminal Procedure creates the preconditions for the emergence of negative consequences of a criminal record for a citizen who in other circumstances could be completely acquitted, the Constitutional Court believes. This violates the defendant’s right to effective judicial protection, and the prosecutor and the accused find themselves in an unequal position.
Thus, the Constitutional Court found that clause 2, part 1, art. 24, part 2 art. 27, 3 art. 249 and paragraph 2 of Art. 254 of the Code of Criminal Procedure contradict the Basic Law to the extent that the failure of a private prosecutor to appear automatically entails the termination of the case for lack of corpus delicti. The Constitutional Court obliged the federal legislator to make changes that would eliminate this legal gap. Until then, the Constitutional Court ruled that the failure of a victim in a private prosecution case to appear in court without valid reasons is grounds for termination of the criminal case due to the absence of a crime.
The Constitutional Court also overturned the decisions in the case of Anna Tikhomolova and decided to reconsider it.
- Pravo.ru
- constitutional Court
If the defendant fails to appear in court
A person who fails to appear in court must take action and provide notice of the reason for the failure to appear.
What will the judge do if the defendant does not appear in court? Regardless of the method of notification, as a rule, the meeting is postponed. Reasons for failure to appear at a meeting by any of the parties to the proceeding are considered valid if they relate to the following situations:
| Cause | Confirmation |
| Health status | Certificate of temporary incapacity for work, certificate from an ambulance, emergency room or hospital |
| Business trip | Travel certificate, order from the head of the enterprise |
| Insurmountable situation, force majeure | Certificate, if , certificate from the box office about the absence of tickets, etc. |
It also happens when there are several defendants, and the process can be deliberately delayed by them, due to the regular failure of one of them to appear.
If the defendant did not appear on the summons and did not notify the reason for his absence, and the judge does not have information about the reason for his absence, then the judicial consideration of the case materials is postponed. Also, the process will be postponed if the reason for failure to appear is considered valid.
The judge has the right to begin consideration of the case and make a decision on it from the first meeting in the absence of the defendant, or to postpone the trial until measures are taken to properly inform the party.
In the event of a claim to declare a citizen incompetent and failure to appear in court for unexcusable reasons, the decision will be made in absentia.
If a summoned witness, specialist, expert or translator does not appear at the meeting for unexcusable reasons, then a fine of up to 1000 rubles may be imposed on him. In cases where a witness repeatedly fails to appear without good reason, he may be subject to forced arrest.
The defendant will be sent to prison with a lawyer
The cage first appeared in a Russian courtroom in 1992 during the trial of serial killer Andrei Chikatilo. In the late 2000s, it began to be replaced by “isolating translucent protective cabins” - “aquariums”. Despite the apparent humanity of the innovation, it caused protests from both defendants and lawyers. The ECtHR recognized that such conditions of detention are humiliating for the participants, and can lead an outside observer to believe that extremely dangerous criminals are being tried, which undermines the presumption of innocence.
“The dismantling of enclosing structures in Russian courts will require strengthening security in institutions. While behind bars, the defendant cannot contact his lawyer and, accordingly, exercise his rights to receive qualified legal assistance. Society as a whole already negatively perceives the fact that defendants are housed in cages, be they metal or glass structures,” explains criminal lawyer Dmitry Panfilov.
During Soviet times, the defendant was kept in a special “pen,” many remember him from the film “Beware of the Car.” Now the accused are offered to be seated next to a lawyer, and to prevent an escape attempt, handcuffed to a chair. This measure does not seem unnecessary, given the attack of the GTA gang on guards at the Moscow Regional Court last summer.
“In Russia, it is necessary to apply European practice: for the defendant to sit next to his lawyer at the table. There is no need to train guards to work in conditions without cages - they are perfectly trained in everything. The only thing is that if the cages are cancelled, the number of accompanying persons will need to be increased. This will entail additional costs,” says criminal lawyer Dmitry Panfilov.
The cage makes it difficult for the defendant to communicate with the defense lawyer and isolates him from other participants in the process, which puts him in an unequal position. This also applies to modular cabins, which also perform an insulating function. There are no legal provisions that would oblige the court to place defendants in cages.
“In the USA, the defendant sits next to the lawyer and constantly communicates with him - this ensures better realization of his right to defense. In the West, the emphasis is not on isolating a person, but on increasing security in the courtroom. In our country, in order for the defendant to have access to his defense lawyer, he must apply for it. Moreover, the court may prohibit doing this. We must put everyone on equal terms, because until a person is sentenced, he is innocent,” says criminal lawyer Dmitry Panfilov
Commentary on Article 247 of the Code of Criminal Procedure of the Russian Federation
1. According to subparagraph “d” of paragraph 3 of Article 14 of the International Covenant on Civil and Political Rights, adopted by General Assembly resolution No. 2200 A (XXI) of December 16, 1966, “everyone has the right, when considering any criminal charge brought against him, to be tried in his presence and to defend himself in person or through legal counsel of his own choosing.” Therefore, the general rule in the Code of Criminal Procedure of the Russian Federation is that the trial of a criminal case is carried out with the mandatory participation of the defendant. If the defendant fails to appear, the consideration of the criminal case must be postponed for a certain period of time with the defendant being summoned to the court hearing, and procedural coercive measures may be applied to the defendant who did not appear without good reason: arrest, preventive measures, or a criminal complaint may be sent against him. request to a foreign state for extradition (Article 460). If the defendant has disappeared, the court suspends proceedings against this defendant until he is found, about which a decision is made (Part 3 of Article 253). The law allows the suspension of proceedings in the case even if, at the time of preparation for the trial, the location of the accused is known, but there is no real possibility of his participation in the trial (clause 4, part 1, article 238 of the Code of Criminal Procedure). However, the Code of Criminal Procedure also allows for cases where the trial is conducted without the participation of the defendant (parts 4 - 5 of the article). A trial in absentia is not allowed when, at the request of the defendant, a court hearing is held to pronounce a sentence without a trial due to agreement with the accusation (Part 1 of Article 316).
2. As an exception to the general rule, trials in criminal cases of grave and especially grave crimes may be conducted in the absence of the defendant. One of the conditions for trial in absentia is that the defendant has not been prosecuted in the territory of a foreign state in this criminal case (part 5 of the article). First of all, it follows about, i.e. In a case initiated by Russian law enforcement agencies, a person can sometimes be brought to justice on foreign territory, but only in cases where the materials of the criminal case initiated and under investigation are sent to the competent authorities of a foreign state for criminal prosecution there. But this is only possible if a crime is committed on the territory of the Russian Federation by a foreign citizen who subsequently finds himself outside its borders (Article 458), and, obviously, only with the consent of the above-mentioned foreign authorities to bring him to justice. It can be assumed that part 5 of this article actually refers to a different situation, namely when, in a case scheduled for consideration in absentia in Russia, the person was not brought to criminal liability in a foreign state. The question also arises, what is meant by criminal prosecution on the territory of a foreign state? Since this concept is applied in this case in Russian criminal proceedings, for the purposes of legal certainty it should be interpreted in the same way as it is understood in the Code of Criminal Procedure of the Russian Federation. Here it is, in addition to Part 5 of Art. 247, is terminologically used in only two situations. Firstly, in connection with the separation of a criminal case into separate proceedings in relation to a minor suspect or accused brought to criminal liability (Clause 2, Part 1, Article 154), which indicates that a person will be brought to criminal responsibility already at the time of recognition of his innocence only the accused, but also the suspect. Secondly, this concept is used in the context of the expiration of the statute of limitations for criminal prosecution (Part 3 of Article 414). Taking into account that the law also refers to the expiration of the statute of limitations for criminal prosecution as the expiration of the statute of limitations for criminal prosecution, which precludes the initiation of a criminal case (Clause 3, Part 1, Article 24), we can conclude that the commencement of criminal prosecution of a specific person, including and when a criminal case is initiated against him as a suspect, there is criminal liability. Also indicative in this regard is Art. 23, the title of which includes a phrase that synthesizes both concepts - “involvement in criminal prosecution”, and from the text of the article itself it is clear that we are talking specifically about the initiation of a criminal case (according to the statement of the head of the organization).
It should be borne in mind that criminal prosecution in foreign criminal procedural systems can occur in different ways, however, as a rule, it also practically coincides with the initial moment of criminal prosecution of a particular person. Thus, in England and the USA it takes the form of the police applying to the court with a statement of charges (information, English) or obtaining a warrant of arrest (writ of capias), which, in essence, is tantamount to initiating criminal prosecution against a specific person <1 >. In French legal proceedings, the initial charge is brought under the so-called. involving a person in the consideration of a case (mise en examen, French), when in relation to the person involved in the consideration (personne a l'encontre de laquelle), serious evidence of guilt has been collected, plausibly indicating that he has committed a crime, and he is summoned or brought to investigative judge <2>. In German criminal proceedings, the accused appears due to the formation of the so-called criminal prosecution body. initial suspicion that a person has committed a crime, which is expressed in the interrogation of this person as an accused (suspect) or as a result of the application of coercive measures against him <3>. It seems that these actions mean bringing a person to criminal liability on the territory of the relevant foreign states, which excludes the consideration of a criminal case in absentia in a Russian court.
——————————— <1> See: Peshkov M.A. Arrest and search in US criminal proceedings. M., 1998. P. 29. <2> See: Gutsenko K.F., Golovko L.V., Filimonov B.A. Criminal procedure of Western states. M., 2001. P. 334 - 335. <3> See: Boylke V. Criminal procedural law of Germany. Krasnoyarsk, 2004. P. 79.
3. By virtue of Part 4 of Art. 253 suspension of proceedings in the case of trial in absentia in criminal cases of grave and especially grave crimes is not allowed. In this case, special attention should be paid to the fact that the provisions of Art. 253, in contrast to Art. 238 of the Code of Criminal Procedure, which regulates the suspension of proceedings at a preliminary hearing, does not prevent the suspension of proceedings at the trial stage in the event of a serious illness of the accused, if it is confirmed by a medical report. In addition, suspension of proceedings in these cases is also mandatory on the basis of Art. Art. 101, 103 of the Federal Law “On the Constitutional Court of the Russian Federation” in the event that the court sends a request to the Constitutional Court about the compliance of the law applied or to be applied in a given criminal case with the Constitution of the Russian Federation.
4. In judicial practice, the grounds for consideration of a case in absentia are interpreted broadly: the court has the right to consider a criminal case in the absence of the accused, not only located outside the Russian Federation, but also in cases where the accused, located on the territory of the Russian Federation, evades appearing in court and his location is unknown (clause 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 22, 2009 N 28 “On the application by courts of the norms of criminal procedural legislation governing the preparation of a criminal case for trial” <1>). However, a trial in absentia - as an exception to the principle of in-person adversarial proceedings - is possible only if appropriate measures have been taken to search for the accused and there is evidence of his deliberate actions to evade appearance.
——————————— <1> BVS of the Russian Federation. 2010. N 2.
5. It seems that in any case, consideration of the case by the court in the absence of the defendant is permissible only when, during the preliminary investigation, the charge was brought against him personally, in the manner prescribed by Art. 172 or part 2 of Art. 225. In addition, the current Code of Criminal Procedure requires personal familiarization of the accused with the materials of the completed preliminary investigation (Article 217, Part 2 of Article 225). Obviously, if these conditions are not met, the court must return the case to the prosecutor on the basis of Art. 237 to eliminate significant procedural violations committed in pre-trial proceedings. (See about this book to article 237).
6. Within the meaning of the Resolution of the Constitutional Court of the Russian Federation dated July 14, 2011 N 16-P <1>, consideration of a criminal case in absentia is also possible in relation to a deceased accused, if his close relatives object to the termination of the criminal case on non-rehabilitating grounds. The legislator is obliged to make appropriate changes and additions to the Code of Criminal Procedure.
——————————— <1> Russian newspaper. 2011. From July 29.
The position of the Moscow Regional Court is discouraging and creates a dangerous precedent
September 26, 2021 11:38 am
The court changed the jurisdiction to re-examine the criminal case of a previously acquitted lawyer
According to
AG , on September 18, the Moscow Regional Court issued a decision to change the territorial jurisdiction of the criminal case against Andrei Kruglov, a lawyer for the Moscow Region Administration, and Sergei Filippov, an individual entrepreneur, accused of committing fraud by a group of persons by prior conspiracy on an especially large scale (two counts of Part 4 of Article 159 of the Criminal Code of the Russian Federation).
Filippov is also accused of committing a crime under Part 1 of Art. 303 of the Criminal Code of the Russian Federation. Jurisdiction was changed after the lawyer's acquittal was overturned on appeal and the case was remanded for a new trial. Representatives of the defense expressed disagreement with the resolution, noting that the change in the territorial jurisdiction of the criminal case in connection with the defendant’s practice as a lawyer in the area is a novelty in criminal proceedings, which allows the law and established judicial practice to be interpreted arbitrarily, violating the constitutional rights of the defendants. The background to this story, they believe, is that the judges of the Balashikha City Court three times refused to make a guilty decision in the case. The court acquitted the lawyer accused of fraud
According to investigators, in 2009, Sergei Filippov, with the help of Andrei Kruglov, acquired ownership of two land plots in the city of Balashikha, Moscow Region, which he then resold to LLC Products from Palych, which intended to build a new confectionery plant on the combined plots.
Subsequently, Filippov, through his representative by proxy, filed a lawsuit to declare this sale and purchase transaction invalid, using, as the investigation considered, a false extract from the medical history about the presence of mental pathology. As a result, the court, taking into account the conclusions of the forensic medical examination, declared the contract invalid and returned ownership of the land to the plaintiff. Thus, as a result of deliberate criminal actions, the company suffered material damage in the amount of over 48 million rubles.
Thus, Filippov and Kruglov were charged with committing fraud, that is, acquiring the right to someone else’s property by a group of persons by prior conspiracy on an especially large scale.
By the verdict of the Balashikha City Court of the Moscow Region dated February 25, 2021 (available from AG), Andrei Kruglov was acquitted due to the lack of corpus delicti in his actions, with the right to rehabilitation. The court indicated that this crime was committed by Filippov without the participation of Kruglov, who, acting as Filippov’s representative in concluding sales and purchase transactions, as well as in selecting a person to represent Filippov’s interests in a transaction with LLC, acted within the scope of his attorney’s powers.
The verdict also noted that ownership of the plots was duly registered with Sergei Filippov and he did not transfer any rights to dispose of them to Andrey Kruglov. Thus, the court came to the conclusion that the investigation’s arguments about the lawyer’s selfish purpose were based on an assumption. Andrei Kruglov’s guilt in falsifying evidence with the aim of committing fraud was also not confirmed by relevant and admissible evidence.
Sergei Filippov, in turn, was acquitted of one episode of Part 4 of Art. 159 of the Criminal Code of the Russian Federation (theft of funds) due to the lack of corpus delicti. On the second episode (land theft), the court found him guilty and sentenced him to five years of suspended imprisonment.
The verdict did not survive the appeal
By an appeal ruling of the Moscow Regional Court dated July 11, the verdict was overturned on the proposal of the prosecutor of the city of Balashikha. According to the state prosecutor, the defendant Kruglov was acquitted without reason, and Filippov was given an overly lenient sentence that did not correspond to the gravity of the crime.
The prosecutor’s office’s submission emphasized that the unjust verdict became possible as a result of the fact that Andrei Kruglov, who is an active lawyer registered in the Balashikha judicial district, “has friendly ties with the judges of the Balashikha judicial district, as evidenced by both the latter’s statements in court and a clearly expressed positive characteristic given to the defendant A.N. Kruglov. as a lawyer by the magistrate of this judicial district, which was defended by Kruglova A.N. submitted materials on the selection of a preventive measure for him, which casts doubt on the objectivity of the decision made by the Balashikha City Court in this case.”
Having examined the case materials, the judicial panel came to the conclusion that there were significant violations of the criminal procedural law, expressed in the consideration of this criminal case by an illegal composition of the court, which is an absolute basis for the reversal of the sentence in accordance with Art. 389.17 Code of Criminal Procedure of the Russian Federation.
As a result, the verdict was overturned, and the case was sent for review to the court of first instance, but in a different composition.
Victims and prosecutors petitioned to change jurisdiction
As noted in the resolution of the Moscow Regional Court dated September 18 (available to “AG”), on July 24 the Balashikha City Court received written petitions from the victim and his representative to change the territorial jurisdiction of the criminal case in accordance with sub. 2 hours 1 tbsp. 35 of the Code of Criminal Procedure of the Russian Federation, due to the impossibility of its consideration by the judges of the said court.
The representative of the victim indicated in his complaint that since virtually all the judges of the Balashikha City Court considered either a criminal case against Kruglov and Filippov, or civil cases directly related to this case, they are subject to recusal according to the rules of Art. 63 Code of Criminal Procedure of the Russian Federation.
It was also noted there that Andrei Kruglov is registered in the Balashikha region as a lawyer. “During the consideration of the criminal case, he (Kruglov) repeatedly stated that he was on friendly terms with the judges of the Balashikha City Court, which, in the opinion of the victim’s representative, did not allow the judges to objectively assess the personality of the defendant A.N. Kruglov. when considering a criminal case against him,” the document reported.
The victim, in turn, petitioned to send the case for consideration on the merits to the court of Moscow or the Moscow region, with the exception of the Balashikha City Court. In his statement, he indicated that the composition of the latter’s judges “is not capable of making a decision on the case based on the law, since there are doubts about their objectivity and impartiality.” He also noted that the law firm headed by the Kruglov family is located near the city court, with whose employees Andrei Kruglov has been interacting for many years.
This petition was subsequently supported by the state prosecutor. In addition, on September 5, the state prosecutor and representatives of the victims filed challenges to the presiding judge, which were left unsatisfied.
By a resolution of the Balashikha City Court dated September 5, the criminal case was sent to the Moscow Regional Court to resolve the issue of its transfer to another city court of the Moscow region on the basis of Art. 35 of the Code of Criminal Procedure of the Russian Federation.
The defendants and their defense attorneys, in turn, spoke out against changing jurisdiction. They justified their objections by the fact that the judge had previously refused the prosecution's request to disqualify the presiding judge, thereby confirming the possibility of considering the case under her chairmanship. In addition, they noted that the jury included a judge who did not participate in the consideration of either this criminal case or related civil cases.
The Moscow Regional Court agreed with the need to change jurisdiction
Having examined the case materials, the Moscow Regional Court agreed that the overwhelming majority of judges of the Balashikha City Court had already made decisions on issues directly or indirectly related to the charges brought against the defendant. These circumstances, the court believes, cannot provide sufficient guarantees that exclude any doubts about the objectivity and impartiality of the judges when considering this criminal case, which confirms the validity of the prosecution’s arguments about the impossibility of considering the case in this court.
At the same time, the court emphasized that failure to challenge the presiding judge does not eliminate the possibility of doubts about the impartiality of the court, since civil cases involving the defendants in the case were also previously considered under the chairmanship of this judge, including on issues that may become the subject of assessment when considering a criminal case on the merits .
Regarding the defense's indication of the presence of a judge who had not previously taken part in the consideration of cases against the defendants, the court noted that Andrei Kruglov is a lawyer practicing in the territory of the Balashikha region, and by his nature of activity has repeatedly participated in the consideration of cases by the Balashikha City Court, in connection with than he is personally acquainted with judges and has been interacting with the court apparatus for a long time. This, the court concluded, creates a threat to the guarantees of objective and impartial justice, preventing the conclusion that the judicial position during the consideration of this criminal case will be exclusively neutral in relation to the accused Andrei Kruglov.
As a result, the place of consideration of the criminal case was determined to be the Ramensky City Court of the Moscow Region. “The location of this court in an area bordering territorially with the Balashikha district, as well as developed transport links and the possibility of using video conferencing will not create difficulties for the parties and witnesses in the case to participate in the trial, and therefore, a change in territorial jurisdiction will not in any way affect the defendants’ ability to realize their procedural rights,” the resolution states.
The defense considers the grounds for changing jurisdiction to be a novelty in criminal proceedings
Commenting on the resolution of the Moscow Regional Court by AG, Andrei Kruglov’s defense representative, lawyer at Law Center Kruglov, Shumar and Partners, Evgeniy Shumar, noted that by virtue of the law, the territorial jurisdiction of a criminal case can be changed only in exceptional cases, when there are sufficient grounds to doubt the independence and impartiality of all judges of this court.
“A sufficient argument in favor of changing the territorial jurisdiction may be the previous participation of all judges of this court in the consideration of the criminal case against the defendant, but not the lawyer’s activity of the defendant,” he explained. The defense attorney added that the Balashikha City Court has 14 judges on its staff, and only three of them considered the criminal case against the defendants. In addition, he noted, two judges have been working there relatively recently and have not considered any cases involving Kruglov and Filippov in any capacity.
According to Evgeniy Shumar, the change in territorial jurisdiction in connection with the defendant’s practice as a lawyer in this area is a novelty in criminal proceedings, which allows an absolutely clear law with established judicial practice to be interpreted arbitrarily, violating the constitutional rights of the defendants. “And if the defendant is a Moscow lawyer, then his criminal case is subject to consideration in a court of another constituent entity of the Russian Federation? – the defender asked questions. – What if the defendant is an employee of the investigative committee or the police and also knows the judges at his place of service? Does this give the right to doubt the objectivity of the judges or indicate their interest?!
According to the second defender, lawyer at Law Center Kruglov, Shumar and Partners Stanislav Khmelevsky, the conclusions of the Moscow Regional Court are unconstitutional, far-fetched and unfounded. The lawyer explained that the constitutional right of everyone to have his case considered in the court and by the judge to whose jurisdiction it is assigned by law is an integral part of the right to judicial protection, with the general characteristics of which the court should be considered as a single body of the judiciary. “In this sense, all cases within his jurisdiction are distributed between individual parts of the unified judicial system of the Russian Federation and various courts within each of its subsystems in accordance with the rules of jurisdiction established by law,” he noted.
Stanislav Khmelevsky added that Art. 32 of the Code of Criminal Procedure says exactly what the Constitution of the Russian Federation is about, with the proviso that territorial jurisdiction can be changed in accordance with Art. 35 of the Code of Criminal Procedure of the Russian Federation. “This contains an exhaustive list of grounds for changing territorial jurisdiction,” he emphasized. – Subclause “ka” clause 2, part 1, art. 35 of the Code of Criminal Procedure of the Russian Federation does not apply in this case, since only three of the 14 judges of the Balashikha City Court made a decision on this criminal case. Accordingly, the remaining 11 (of which at least three are considering criminal cases) have the right to consider this case. Subparagraph “b” of this norm was not considered at all, since there is no consent of the accused. What remains is subparagraph “c” about the presence of circumstances that may cast doubt on the objectivity and impartiality of the court when making a decision in the case. The resolution does not contain circumstances that could cast doubt on the objectivity and impartiality of the Balashikha City Court when making a decision in this criminal case.”
The flimsy and unfounded grounds, according to the defense attorney, are seen in the fact that a number of judges of the Balashikha City Court participated in the consideration of civil cases, which, according to the judge of the Moscow Regional Court Neonila Zepalova, are directly related to the charges brought against Andrei Kruglov. “But, making this conclusion, the respected judge did not even request or study any of the civil cases she indicated! How did she conclude that they were somehow connected with the criminal charges against our client?” – Stanislav Khmelevsky wondered.
The defense lawyer also emphasized that the resolution states that Andrei Kruglov is a practicing lawyer in the Balashikha district, and therefore is personally acquainted with the judges of the Balashikha court. “Why then don’t they change jurisdiction when they judge investigators who come to court almost every day with petitions for the selection of a preventive measure, its extension, searches, etc., without which it is impossible to investigate a criminal case, and in 98% of cases they receive positive court decisions for yourself? The same can be said about operational officers, prosecutors, etc. If you follow the logic of Judge Zepalova, in district courts it is generally impossible to try practically anyone who is in one way or another related to the court,” he concluded.
Stanislav Khmelevsky also critically assessed the choice of the Ramensky City Court as the venue for the hearing of the case. “The fact that this court is located in an area bordering Balashikhinsky does not mean anything. There is no transport connection between Balashikha and Ramenskoye,” he explained. – In order to maintain objectivity, it would be enough to send the case to the court of Reutovo, Zheleznodorozhny City Court, Lyuberetsky, Shchelkovsky or even Noginsky. To get to any of them, the time spent on the road from Balashikha is half as much as to Ramensky. So why the Ramensky court? Unanswered question!
The background to this story, the defenders believe, is that the judges of the Balashikha City Court three times refused to make the accusatory decision necessary for the victim in the case: the case was twice returned to the prosecutor to eliminate violations, in connection with which an additional investigation was carried out, and as a result an acquittal was issued .
In conclusion, Stanislav Khmelevsky added that the decision will be appealed to the judicial panel of the Moscow Regional Court. “We will seek a fair acquittal in this criminal case, right up to the European Court of Human Rights,” he concluded.
The representative of the victims, lawyer of the Moscow Region Administration Svetlana Selezneva, refused to comment on the decision, adding that the position of her clients was set out in the relevant petitions.
AG experts believe that the position of the Moscow Regional Court is discouraging and creates a dangerous precedent
When asked by an AG correspondent to comment on the findings of the Moscow Regional Court, partner at Bartolius Law Firm Sergei Grevtsov noted that he supports the practice of transferring the consideration of a case to maintain objectivity in relation to the accused, but only if there are justified reasons.
“In this case, the position of the court was very discouraging to me, since “friendly relations with the court” are determined by the number of cases in which the lawyer participated,” he explained. – I am convinced that such a basis as the presence of a “friendly connection” can be a basis for transferring a criminal case to another court, but it must be confirmed by other facts - for example, what does the participation of a lawyer in civil trials in court have to do with the consideration of a criminal case by the defendant which he is, a judge in criminal cases, I don’t understand.”
According to the expert, this is absurd, since the rights of the victim and the accuser are not violated in this case, since the case was transferred within one subject of the Federation (Moscow region) to another city court. “That is, the appellate court, which can review the case if the prosecution disagrees with the verdict, remains the same - the Moscow Regional Court.”
Vice-President of the Leningrad Region Administration, Chairman of the First Law Firm Denis Laktionov believes that the reason for changing the territorial jurisdiction was the result of the consideration of the case by the first instance, which did not suit the higher authority and the prosecution together with the victims - apparently in the hope that judges in another area will deliver a verdict that suits them.
“In addition, as a lawyer, I am interested in why this question arose after the verdict was overturned on appeal? In Art. 35 of the Code of Criminal Procedure of the Russian Federation states that a change in jurisdiction is possible before the start of the trial. In this regard, in this case, the change in jurisdiction looks strange and does not comply with the law,” he noted. According to the expert, the question of changing jurisdiction should have been raised when the case first came to the court of first instance for consideration on the merits.
The expert considers such a basis for changing jurisdiction as lawyering in a given area to be outrageous. “It turns out that for this reason the territorial jurisdiction of any criminal case against a lawyer can be changed. The law establishes the right of any person to have his case examined by the court provided for by law. It turns out that a lawyer is a person who, due to his professional activities, influences the impartiality and objectivity of all judges of the court where the case against him is being considered. This creates a dangerous precedent,” Denis Laktionov emphasized.
“In my opinion, there is every reason to appeal the decision and cancel it. I believe that there are no legal grounds for changing the territorial jurisdiction in this case, since the criminal case has already been accepted for proceedings,” he concluded.
Denis Laktionov added that in his practice there were two cases of changing territorial jurisdiction in accordance with sub. “c” part 1 art. 35 of the Code of Criminal Procedure of the Russian Federation. “This norm has been in effect since December 2021, and practice is being developed according to it,” he explained.
So, in one case, deputy The prosecutor of the Leningrad region tried to change the territorial jurisdiction of a criminal case against two high-ranking employees of a large enterprise, arguing that, by virtue of their official powers, they communicate with the heads of law enforcement agencies of this city, so the court cannot be trusted. “My colleague and I defended the right to have the case heard in the same court in which it should be heard. The Leningrad Regional Court rejected the state prosecutor’s petition,” the expert noted.
