Article 32 of the Code of Criminal Procedure of the Russian Federation. Territorial jurisdiction of a criminal case (current version)

Concept and types of criminal prosecution

Criminal prosecution is a procedural activity, including the initiation of a criminal case, preliminary investigation and prosecution in court, carried out by the prosecution in order to expose a suspect accused of committing a crime (clause 55 of Article 5 of the Code of Criminal Procedure of the Russian Federation).

In the criminal process, there are three types of criminal prosecution (Article 20 of the Code of Criminal Procedure of the Russian Federation): carried out in public, private-public and private.

Private prosecution.

Criminal cases of private prosecution are considered to be criminal cases of crimes under Part 1 of Art. 115 “Intentional infliction of minor harm to health”, Art. 116.1 “Battery by a person subjected to administrative punishment”, Part 1 of Art. 128.1 “Slander” of the Criminal Code of the Russian Federation, which are initiated only at the request of the victim, his legal representative, with the exception of cases provided for in part four of Art. 20 of the Code of Criminal Procedure of the Russian Federation, by filing it with the court and are subject to termination in connection with the reconciliation of the victim with the accused before the court retires to the deliberation room to pronounce the verdict. Reconciliation is allowed in the appellate court before the appellate court retires to the deliberation room to make a decision on the case.

A private prosecutor is a person who has filed an application to the court in a criminal case of private prosecution in the manner prescribed by Art. 318 of the Code of Criminal Procedure of the Russian Federation, and supporting charges in court.

Criminal prosecution carried out in a private-public manner. Criminal cases of private-public prosecution are initiated only at the request of the victim or his legal representative, but are not terminated due to the reconciliation of the parties.

Criminal cases of private-public prosecution include criminal cases of crimes provided for in articles 116, 131 part one, 132 part one, 137 part one, 138 part one, 139 part one, 144.1, 145, 146 part one, 147 part one, 159 parts five - seven of the Criminal Code of the Russian Federation, as well as criminal cases of crimes provided for in articles 159 parts one - four, 159.1 - 159.3, 159.5, 159.6, 160, 165, 176 part one, 177, 180, 185.1, 201 part one of the Criminal Code Code of the Russian Federation, if they are committed by an individual entrepreneur in connection with his business activities and (or) management of property belonging to him, used for the purposes of business activities, or if these crimes are committed by a member of the management body of a commercial organization in connection with the exercise of his powers to manage the organization or in connection with the implementation by a commercial organization of entrepreneurial or other economic activities. Criminal cases of private-public prosecution cannot include criminal cases of crimes provided for in Articles 159 - 159.3, 159.5, 159.6, 160, 165, 176 part one, 177, 180, 185.1, 201 part one of the Criminal Code of the Russian Federation, in cases if the crime caused harm to the interests of a state or municipal unitary enterprise, state corporation, state company, commercial organization with participation in the authorized (share) capital (share fund) of the state or municipal entity, or if the subject of the crime was state or municipal property.

In exceptional cases, criminal cases of private and private public prosecution may be initiated in the absence of a statement from the victim or his legal representative:

1. if this crime was committed against a person who, due to a dependent or helpless state or for other reasons, cannot defend his rights and legitimate interests;
2. if the crime was committed by a person whose details are unknown.

The law places the obligation to initiate a criminal case in these cases on the head of the investigative body, the investigator, as well as the inquiry officer with the consent of the prosecutor. At the same time, the head of the investigative body, the investigator, and also, with the consent of the prosecutor, the interrogating officer are authorized to carry out criminal prosecution in criminal cases regardless of the will of the victim.

Criminal prosecution carried out in public. This type of prosecution includes criminal cases of public prosecution - cases of all other crimes (Part 5 of Article 20 of the Code of Criminal Procedure of the Russian Federation) that are not classified by the legislator as criminal cases of private and private-public prosecution, the list of which is indicated in Parts 2 and 3 of Art. 20 Code of Criminal Procedure of the Russian Federation.

The law places the responsibility for carrying out criminal prosecution in criminal cases of public prosecution on the prosecutor, as well as the investigator and interrogating officer within the powers established by the Code of Criminal Procedure of the Russian Federation.

The victim, his legal representative and (or) representative have the right to take part in the criminal prosecution of the accused.

Separately, it is necessary to say about the rules for bringing to criminal prosecution at the request of a commercial or other organization. By virtue of Art. 23 of the Code of Criminal Procedure of the Russian Federation if the crime provided for by Chapter 23 of the Criminal Code of the Russian Federation “Crimes against the interests of service in commercial and other organizations” caused harm to the interests of an exclusively commercial or other organization that is not a state or municipal enterprise or an organization with participation in the authorized (share) capital (share foundation) of the state or municipality, but did not cause harm to the interests of other organizations, as well as the interests of citizens, society or the state, then a criminal case is initiated upon the application of the head of this organization or with his consent.

Causing harm to the interests of an organization with participation in the authorized (share) capital (mutual fund) of the state or municipal entity is regarded as causing harm to the interests of the state or municipal entity and criminal prosecution in such cases is carried out on a general basis.

The entire history of the criminal process testifies to the search for the most optimal and effective procedural forms of investigation and resolution of criminal cases. Such a search in modern conditions is determined by a two-pronged task: firstly, to relentlessly follow the purpose of the criminal process and compliance with its principles, and therefore to ensure reliable protection of the rights, freedoms, legitimate interests of individuals and organizations victims of crimes, as well as the protection of individuals from illegal and unfounded accusations, convictions, restrictions on her rights and freedoms; secondly, to make the most rational use of all resources during criminal proceedings.

Despite the inconsistency of the judgments of scientists and practitioners expressed in various periods of development of the criminal process, the advisability of including a variety of procedural forms in the fabric of criminal procedural relations today is undeniable. Life itself dictates the need to abandon the unified procedural form. To follow the path of unification means to create a form of production that, even being effective from the point of view of protecting the rights and freedoms of citizens, will become unjustifiably expensive, including labor, material, and time resources.

However, the differentiation of procedural forms also cannot be considered as a predominant trend in the dynamics of criminal procedural relations. Of course, the procedural form should ensure the guaranteed rights, freedoms and legitimate interests of citizens as much as possible, while competently and optimally distributing the costs of criminal proceedings, both during judicial proceedings and pre-trial ones.

It is obvious that when introducing various types of proceedings into the criminal process, it is necessary to be guided not only by procedural economy (cheaper and faster), but also to take into account the legal (and not only) consequences of the use of such proceedings for a particular person, and often for his relatives.

Differentiation of forms of legal proceedings as the most important direction in reforming the criminal process was proclaimed by the Concept of Judicial Reform in the RSFSR, in which Fr.

According to the Concept, it was supposed to differentiate criminal proceedings depending on:

• categories of the offense in question (it was assumed that cases of criminal offenses punishable by imprisonment for up to six months would be heard summarily by justices of the peace, and cases of crimes by single judges, panels of three judges, and jury trials);
• actual participation of jurors;
• cassation or appeal procedure for reviewing decisions taken in the court of first instance; at the same time, the appeal proceedings involved a new consideration of the case with the involvement of additional evidence;
• the nature of the decisions made (it was assumed to some extent separate the procedure for resolving legal issues and questions of fact, as well as imposing punishment).

At the same time, the developers of the Concept pointed out that by the time this document was adopted, the issue of doctrinal justification for the criteria for differentiating forms of criminal proceedings remained unresolved. Scientists, both before and after the adoption of the Concept of Judicial Reform, attempted to compile a list of criteria for differentiating procedural forms.

Thus, as differentiation criteria, as a rule, the following were named: the type of criminal prosecution, the composition of the court, the age and state of health of the accused, the attitude of the accused towards the charge; degree of public danger of crimes; degree of complexity of criminal proceedings; personality traits of the accused; the presence of the will of the accused to apply the appropriate procedure; respect for the sovereignty of a foreign state.

The set of factors that determine the need and possibility of differentiation of the criminal procedural form, I.S. Dikarev divided into two groups: objective and subjective, including the complexity (disclosure, investigation) of a crime among the objective factors of differentiation; gravity of the crime; special legal regimes in force at the place of pre-trial and judicial proceedings in a criminal case; the presence in the legal system of regulations (usually at the constitutional or international legal level) establishing special requirements for the procedure for resolving certain legal issues. Among the subjective factors of differentiation, i.e. factors related to the personality or behavior of participants in criminal proceedings, I.S. Dikarev included: behavior of the suspect or accused, conducive to the investigation and judicial resolution of the criminal case on the merits; behavior of the suspect or accused that interferes with the preliminary investigation and judicial resolution of the criminal case on the merits; features (characteristics) of the subject accused of committing a crime or an act prohibited by criminal law, as well as the victim; age of the suspect, accused, victim; official position of the person against whom criminal prosecution is being carried out, or the victim; the state of health of the person against whom criminal prosecution is carried out, when such a state has criminal legal significance.

According to Yu.K. Yakimovich, the main criterion for distinguishing proceedings into various types is their focus, expressed in subjects and tasks, dividing all proceedings into main proceedings in criminal cases, additional (arising in the process of actual execution of the sentence) and special (proceedings, the material basis of which are the norms of administrative, civil, constitutional and other material branches of law). Further, according to Yu.K. Yakimovich, one should apply the criterion of complexity of the procedural form, and, applying it to the main proceedings in criminal cases, obtain: ordinary proceedings with a preliminary investigation and the usual procedure for considering a criminal case in court; simplified proceedings; production with more complex procedural forms.

There is no reason to challenge the criteria for differentiation of the criminal procedural form set out by various authors; they are all sufficiently reasoned and convincing. At the same time, it can be stated that, as before, today there is no standard list of criteria by which the procedural form could be differentiated. It is likely that the development of socio-economic relations will entail the development of criminal procedural relations, and, as a result, the criminal procedural law will be replenished with more and more new proceedings. Differentiation should not be an end in itself for improving the criminal process. However, the development of basic criteria for the differentiation of criminal proceedings, taking into account both the realities of the use of forms of production and the consequences resulting from its use, is an urgent task of our time. It is also indisputable that if there are factors that allow minimizing the costs of establishing the truth in a criminal case without prejudice to the rights and legitimate interests of citizens, when considering cases of minor public danger, it is necessary, taking into account compliance with procedural principles, to simplify the proceedings, and, on the contrary, if necessary, strengthen guarantees rights and freedoms of participants in criminal procedural legal relations, in order to avoid errors in criminal proceedings (or, at least, in order to reduce the risk of their occurrence), haste in resolving the case should be excluded, in which case the legal procedure should be complicated. Taken together, these factors will significantly determine the quality of justice, the authority of state, and judicial authorities in particular, as well as the well-being of citizens.

Following the goal of further developing the differentiation of proceedings in criminal cases, and implementing the objectives of the Concept of Judicial Reform, the legislator introduced into the criminal process, along with ordinary proceedings, more complex ones, due to the strengthening of procedural guarantees - criminal proceedings with the participation of jurors, as well as simplified types of proceedings : consideration of criminal cases of private prosecution, consideration of criminal cases in absentia, a special procedure for making a court decision if the accused agrees with the charge brought against him, the procedure for concluding a pre-trial cooperation agreement.

Speaking about simplified proceedings, it can be noted that the legislator did not introduce the concept of “simplified proceedings” into terminology. There are also no criteria for classifying criminal cases as this type of proceedings. In the most general form, it can be stated that these are criminal proceedings in which pre-trial and (or) judicial procedures are carried out with certain exceptions from the general procedure of legal proceedings. Such proceedings are characterized by shortened procedural time limits in relation to the general procedural deadlines, the absence of individual stages, and the powers of the participants.

The lack of established criteria for differentiation of the procedural form affects the content side of the production itself.

An example of this is criminal proceedings involving private and private-public prosecution.

Thus, a feature of criminal proceedings in private prosecution is the absence (as a general rule) of the pre-trial part of criminal proceedings. In addition, shortened deadlines for the commencement of consideration of criminal cases of private prosecution are regulated. The trial by a judge must begin no earlier than 3 and no later than 14 days from the date the application or criminal case was received by the court.

A special feature of proceedings in cases of private prosecution is that the prosecution in court is supported by a private prosecutor, his legal representative and a representative in criminal cases of private prosecution, as well as the state prosecutor.

A distinctive feature of private prosecution criminal proceedings is the initiation of a criminal case through the filing of an application by the victim or his legal representative to the court.

In contrast, cases of other categories come to court with an indictment or indictment.

The scope of the trial in relation to the circle of persons is determined by the victim in the submitted application. If during the trial it is established that not all persons guilty of committing a crime prosecuted as a private prosecution have been brought to justice, then no one has the right to initiate criminal proceedings against them against the will of the applicant.

It is possible to file a counter-statement of a private prosecution, as a result of which, together with the initial one, they can be combined into one proceeding, while each party enjoys the rights of the victim and the defendant and is interrogated according to the rules of interrogation, depending on the episode being examined in court.

A specific feature of proceedings in criminal cases of private prosecution is the right of the parties to reconciliation before the court retires to the deliberation room.

Termination of the proceedings is allowed in connection with the reconciliation of the victim with the accused; failure of the victim to appear in court without a valid reason; refusal of the private prosecutor to charge.

A feature of the consideration of these criminal cases is the possibility of terminating criminal prosecution in the case with the obligatory sending of materials to the head of the investigative body to resolve the issue of initiating a criminal case in the form of public or private-public accusation.

During the validity of the Code of Criminal Procedure of the Russian Federation, i.e. From 2002 to the present, the composition of crimes, criminal cases of which were considered as private prosecution, has changed several times.

The original version of Art. 20 of the Code of Criminal Procedure of the Russian Federation classified criminal cases of crimes under Articles 115 (Deliberate infliction of minor bodily harm), 116 (Battery), 129 part one (Slander) and 130 (Insult) of the Criminal Code of the Russian Federation as criminal cases of private prosecution.

According to the amendments made in 2007 (Federal Law No. 47-FZ dated April 12, 2007) in Part 2 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, changes to cases of private prosecution began to include crimes provided for in Articles 115 part one, 116 part one, 129 part one and 130 of the Criminal Code of the Russian Federation.

In 2011 (Federal Law dated December 7, 2011 No. 420 - Federal Law) in connection with the decriminalization of a number of crimes and in accordance with those introduced in Part 2 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, the changes in private prosecution cases covered only two offenses provided for in Articles 115 part one, 116 part one of the Code of Criminal Procedure of the Russian Federation.

In 2012, the legislator introduced the article “Slander” with serial number 128.1 into the Criminal Code of the Russian Federation, thereby again adding the said article to the composition of criminal cases of private prosecution (FZ dated July 28, 2012 No. 141-FZ).

And finally, due to changes made in July 2021 to Part 2 of Art. 20 of the Code of Criminal Procedure of the Russian Federation (Federal Law dated July 3, 2016 No. 323-FZ), the composition of criminal cases of private prosecution is now represented by articles 115 part one (Intentional infliction of minor harm to health), 116.1 (Battery by a person subject to administrative punishment), 128.1 part one (Slander ) Code of Criminal Procedure of the Russian Federation.

It should be noted that before the adoption of Federal Law No. 323-FZ of July 3, 2016, the consideration of criminal cases of private prosecution was assigned to the exclusive jurisdiction of magistrates. With the adoption of this law, the jurisdiction of the courts that considered private prosecution cases was changed. Today, criminal cases involving crimes under Part 1 of Art. 115 and part 1 of Art. 128.1 of the Criminal Code of the Russian Federation are considered by magistrates, and criminal cases of a crime under Art. 116 1 of the Criminal Code of the Russian Federation, is considered by district judges.

At the same time, the Federal Law of July 3, 2016 No. 323-FZ removed Article 116 (Beatings) from the list of crimes for which proceedings are carried out as a private prosecution, and was classified among the crimes for which legal proceedings are carried out in a private-public manner. Criminal cases of private-public prosecution are initiated only at the request of the victim or his legal representative, but are not subject to termination due to reconciliation between the victim and the accused.

It is obvious that shortened terms of criminal proceedings and simplified procedures are invariably present among the criteria for differentiating the procedural form. As a general rule, in criminal cases of private prosecution, the victim files a statement of private prosecution directly to the court. The absence of pre-trial proceedings in criminal cases of private prosecution significantly reduces the time for their resolution on the merits. Thus, legal norms make it possible to protect the rights, freedoms and legitimate interests of citizens as quickly as possible, and to reduce the period from the moment of commission of a crime to the start of execution of the punishment for its commission.

Such a criterion as the will of a person to exercise his right to contact law enforcement agencies on the issue of initiating a criminal case against the perpetrator determines the second type of criminal prosecution or accusation - in a private-public manner. Unlike private prosecution, criminal cases of private-public prosecution are initiated only at the request of the victim or his legal representative, but are not subject to termination due to reconciliation between the victim and the accused. The list of elements related to this type of charge is presented in Part 3 of Art. 20 Code of Criminal Procedure of the Russian Federation. The exercise of one’s right to protection and restoration of the rights and legitimate interests of a person violated by a crime is carried out by contacting law enforcement agencies with a corresponding application. Further proceedings in the criminal case are carried out in accordance with the general procedure.

The overwhelming majority of criminal cases are considered cases of public prosecution: these are all other criminal cases, with the exception of criminal cases classified as cases of private and private-public prosecution. Proceedings on them are carried out in accordance with the general procedure provided for by the Code of Criminal Procedure of the Russian Federation.

Article 32 of the Code of Criminal Procedure of the Russian Federation. Territorial jurisdiction of a criminal case (current version)

1. A criminal case is subject to consideration in court at the place where the crime was committed, with the exception of cases provided for in parts four, five and five.1 of this article, as well as Article 35 of this Code.

2. If a crime was started in a place subject to the jurisdiction of one court, and ended in a place subject to the jurisdiction of another court, then this criminal case is subject to the jurisdiction of the court at the place where the crime was completed.

3. If crimes are committed in different places, then the criminal case is considered by the court, whose jurisdiction extends to the place where the majority of the crimes investigated in this criminal case were committed or the most serious of them were committed.

4. If a crime was committed outside the Russian Federation and the preliminary investigation of the criminal case was carried out on the territory of the Russian Federation in accordance with Article 459 of this Code on the grounds provided for in Article 12 of the Criminal Code of the Russian Federation, the criminal case is considered by a court whose jurisdiction extends to the place of residence or place stay of the victim in the Russian Federation or to the place of residence or place of stay of the accused in the Russian Federation, if the victim lives or stays outside the Russian Federation.

5. A criminal case of private prosecution or a statement by a victim about a crime committed by a citizen of the Russian Federation against a citizen of the Russian Federation outside the Russian Federation is subject to consideration by a magistrate whose jurisdiction extends to the territory in which the victim or accused resides.

5.1. If a crime was committed outside the Russian Federation and the preliminary investigation of the criminal case was carried out on the territory of the Russian Federation in accordance with part four.1 of Article 152 of this Code on the grounds provided for in Article 12 of the Criminal Code of the Russian Federation, the criminal case is considered by a court whose jurisdiction extends to the territory at which the preliminary investigation was completed.

6. The issue of changing the territorial jurisdiction of criminal cases specified in parts four and five of this article is resolved in the manner established by Article 35 of this Code.