The procedure for familiarizing with the case materials of participants in criminal proceedings
Lawyer Antonov A.P.
Participants in criminal proceedings, in accordance with the norms of the Code of Criminal Procedure of the Russian Federation, have the right to familiarize themselves with the materials of the criminal case (clause 10, part 2, article 42, clause 12, part 4, article 47 of the Code of Criminal Procedure of the Russian Federation).
According to Part 1 of Art. 216 of the Code of Criminal Procedure of the Russian Federation, at the request of the victim, civil plaintiff, civil defendant and their representatives, the investigator familiarizes these persons with the materials of the criminal case in whole or in part, with the exception of the documents specified in Part 2 of Art. 317.4 Code of Criminal Procedure of the Russian Federation. The civil plaintiff, civil defendant or their representatives familiarize themselves with the materials of the criminal case in the part that relates to the civil claim.
By virtue of Art. 217 of the Code of Criminal Procedure of the Russian Federation after fulfilling the requirements of Art. 216 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.
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. If it is impossible to present material evidence, the investigator makes a decision to this effect. 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. If several defendants are involved in a criminal case, the sequence of providing them and their defense attorneys with the materials of the criminal case is established by the investigator.
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. Copies of documents and extracts from the criminal case, which contains information constituting state or other secrets protected by federal law, are stored in the criminal case and are provided to the accused and his defense attorney during the trial (Part 2 of Article 217 of the Code of Criminal Procedure of the Russian Federation).
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 of familiarization with these materials, then on the basis of a court decision made in the manner established by Art. 125 of the Code of Criminal Procedure of the Russian Federation, a certain period is established for familiarization 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 period established by the court, the investigator has the right to make a decision to end the production of this procedural action, about which he will issue an appropriate resolution and make a note in the protocol of familiarization of the accused and his defense attorney with the materials of the criminal case. case (part 3 of article 217 of the Code of Criminal Procedure of the Russian Federation).
Also at the pre-trial stage, by virtue of Part 1 of Art. 218 of the Code of Criminal Procedure of the Russian Federation, upon completion of familiarization of the accused and his defense attorney with the materials of the criminal case, the investigator draws up a protocol in accordance with Art. 166 and art. 167 Code of Criminal Procedure of the Russian Federation. The protocol indicates the start and end dates of familiarization with the materials of the criminal case, submitted petitions and other statements.
A record is made in the protocol of explaining to the accused his rights under Part 5 of Art. 217 of the Code of Criminal Procedure of the Russian Federation, and reflects his desire to exercise this right or renounce it.
At the stage of consideration of a criminal case by the court, the procedure and regulations for the issuance of court cases are provided for:
— Instruction dated April 29, 2003 N 36;
— Instruction dated December 15, 2004 N 161;
— Instruction dated October 1, 2019 N 225.
Accordingly, the procedure for familiarization with the materials of a criminal case in court is similar to the procedure for familiarization in civil proceedings (section 14 of the Instruction dated April 29, 2003 N 36).
According to clause 14.1 of Instruction No. 36 dated April 29, 2003, court cases (other materials) are issued for review in the court premises on the basis of a written application and upon presentation of the following documents:
a) accused, defendants, convicted, acquitted, persons against whom proceedings are being conducted for an administrative offense, victims, parties to the case, third parties, legal representatives in criminal, civil, administrative cases and cases of administrative offenses, applicants and others interested persons in cases of special proceedings and administrative cases, civil plaintiffs, defendants in criminal cases - an identification document in accordance with Appendix No. 1, and their representatives, defenders - also a power of attorney issued in accordance with the requirements of the law;
b) lawyers acting in criminal, civil, administrative cases and cases of administrative offenses - warrants of the appropriate legal education and identity cards and (or) lawyer certificates;
c) other interested parties acting in criminal, civil, administrative cases, cases of administrative offenses - identification documents and powers;
d) prosecutors - official identification;
e) other officials in the presence of a legal basis - a reasoned written request;
f) rehabilitated persons, and with their consent or in the event of their death - heirs, close relatives, relatives, dependents in accordance with Art. Art. 133, art. 134 Code of Criminal Procedure of the Russian Federation, Art. 11 of the Law of the Russian Federation of October 18, 1991 N 1761-1 “On the rehabilitation of victims of political repression” - a document proving identity and (or) authority, as well as confirming the corresponding relationship (the fact of being a dependent).
In order to familiarize yourself with the materials of the court case, the participant in the criminal process (his representative) must write a statement in which he indicates the name of the court, the case number, his procedural position and states a request for the provision of materials for review.
If a participant in the case plans to make copies of the case materials using their own technical means (including photography), this must be indicated in the application.
If the application for familiarization is signed by a representative, then a certified copy of the power of attorney is attached to it.
To simplify communication with a representative or participant in the case, the application must indicate available telephone numbers and other contacts.
As practice shows, if a court employee is unable to reach a representative or directly to a participant in the case, or otherwise inform about the time and place of familiarization, then a corresponding note is made on the application. A similar situation provides for cases of failure to appear without notifying a court employee: if a person does not appear for review on the appointed date and time, the response to the application is considered received and the application is filed in the case file.
The method of submitting an application for familiarization with the case materials is chosen by the participant in the criminal process:
- in person through the court office;
- via postal service;
- by fax, email (if such a communication channel is provided by the court for filing procedural documents);
- by filling out an application form on the official website of the court on the Internet (if such a communication channel is provided by the court for filing procedural documents).
The same provisions are applicable for familiarization with case materials in the supreme courts of republics, regional and regional courts, courts of federal cities, courts of the autonomous region and autonomous districts and in appellate courts of general jurisdiction, including in relation to cases placed in archival storage.
It is necessary to take into account that the direct familiarization of the convicted person with the materials of the criminal case (including by delivery to the court) after the sentence has entered into legal force by the current legislation (Code of Criminal Procedure of the Russian Federation and Penal Code of the Russian Federation) is not provided for (Determination of the Fourth Cassation Court of General Jurisdiction dated October 13, 2020 in case No. 88-18704/2020; Cassation ruling of the Perm Regional Court dated December 13, 2011 in case No. 22-10005-2011).
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
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Everything about criminal cases
Sample for lawyersPetition
on familiarization with the materials of the criminal case (pre-investigation check)
I ask you to:
1) Provide me with the opportunity to familiarize myself with the materials of the criminal case (pre-investigation check), including:
a)
a decision to initiate
a criminal case.
b)
protocols of explanations
given by my client during the pre-investigation check,
protocols of interrogations
of my client, documents on
the selection of preventive measures
.
V)
All other documents that were presented or should have been presented to my client.
2) Allow me to make copies using technical means during the review process. (technical means used to make copies: digital camera).
Application:
— lawyer's order
Advocate______________
— clause 6, part 1 53 Code of Criminal Procedure
“
From the moment of admission to participate in a criminal case, the defense lawyer has the right to: get acquainted with the arrest report, the decision on the application of a preventive measure, protocols of investigative actions carried out with the participation of the suspect, accused, other documents that were presented or should have been presented to the suspect, accused.
— clause 6, part 3, article 6
N 63-FZ “
A lawyer has the right to record (including using technical means) information contained in the materials of the case in which the lawyer provides legal assistance
.”
— Resolution of the Constitutional Court of the Russian Federation dated June 27, 2000 N 11-P, Determination dated May 12, 2003 N 173-O oblige the investigation to present to the suspect’s lawyer both the materials of the investigative actions with the participation of the suspect and the documents that were presented to the suspect or should be presented to him.” Refusal to the defense attorney to familiarize himself with the investigation materials that were obtained with the participation of the suspect or otherwise became known to him before he was recognized as a suspect, as well as the restriction of the defense attorney’s right to extract from the materials with which he was familiarized before the end of the investigation, any information and in any volume is not have a reasonable basis, cannot be justified by the interests of the investigation or other constitutionally significant goals that allow proportionate restrictions on rights and freedoms (Article 55, part 3, of the Constitution of the Russian Federation
)».
Familiarization of the lawyer with the decision to initiate a criminal case
According to the position set forth in the Ruling of the Constitutional Court of the Russian Federation dated December 27, 2002 N 300-O, and the Ruling of the Supreme Court of the Russian Federation dated November 18, 2002 N 48-Dp02-14, it is not permitted to refuse to familiarize a lawyer with the decision to initiate a criminal case because this does not allow the suspect and (or) accused to exercise the procedural rights granted to him, in particular the right to appeal the decision to initiate a criminal case that violates his constitutional rights.
According to the position set forth in Resolution No. 11-P of the Constitutional Court of the Russian Federation dated June 27, 2000, the initiation of a criminal case against an unidentified person also cannot be a basis for refusing to issue a resolution to initiate a criminal case.
— Resolution of the Constitutional Court of the Russian Federation of June 27, 2000 N 11-P “ the right to receive legal assistance from a lawyer is guaranteed to every person, regardless of his formal procedural status, including recognition as a detainee and suspect.”
Only for lawyers
Url Additional information:
Under investigation
case defender without status is not allowed
- note: this petition can only be used by lawyers
, a person who does not have the status of a lawyer (for example,
public defender
,
a relative
representing the interests of the defendant) cannot gain access to the case materials at the investigation stage (
clause 10
of Plenum No. 29).
