The procedure for resuming a terminated criminal case: assistance from a lawyer

The procedure for reopening criminal cases has been changed. This happened along with a number of other amendments and additions to the Code of Criminal Procedure of the Russian Federation, which the State Duma adopted in the fall of 2021. As for the issues of reopening criminal cases, all changes were a consequence of the position of the Constitutional Court. He considered it necessary to limit the period during which production could be resumed after its termination to one year.

The changes will help stop the practice of repeatedly reopening criminal prosecutions without time limits. Previously, this possibility did not allow citizens against whom the case was dismissed to forget about the criminal case forever. There was always the risk that production would be resumed and you would have to go through everything all over again.

Despite the amendments to the Code of Criminal Procedure, in general the procedures for reopening a criminal case and prosecution have not changed fundamentally. The grounds and conditions are still the same.

It should be taken into account that the procedures and grounds for reopening a criminal case differ depending on what kind of proceedings are subject to renewal:

Previously suspended on the grounds of Art. 208 Code of Criminal Procedure of the Russian Federation.
Previously terminated on the grounds of Art. 212 of the Code of Criminal Procedure of the Russian Federation.
Requiring renewal due to new or newly discovered circumstances in accordance with Art. 413 Code of Criminal Procedure of the Russian Federation.

Grounds for reopening a terminated criminal case

It is worth noting the most common reasons that may arise in order to reopen an already seemingly closed criminal proceeding:

complaints from participants who appeared as witnesses (the witness's lawyer in criminal proceedings) or other persons in a closed case
initiative of the investigator or interrogating officer. In this case, new significant information about the case could appear
the resumption of a terminated criminal case may be carried out by court decision, as a result of the fact that a complaint was filed by persons interested in the resumption of the investigative process who appeared in the criminal case
personal initiative of the prosecutor or investigator. However, in this case, the applicant must clearly justify his position in order for the case to be reopened and further investigative actions to be taken.

If the process is called into question, this may also serve as a reason to cancel the terminated criminal case. However, here we also need undeniable strong evidence of the need to re-initiate the process.

The accused has the right to ask to reopen the criminal case, since his innocence has not been fully proven, and he is absolutely sure that the true criminal will sooner or later reveal himself with new illegal actions. In this case, the cancellation of the termination of the process can still be carried out, only for a certain period, which is provided exclusively by the court.

Consequences

Loss of materials is grounds for extending deadlines if permitted by law.

If the entire case is completely lost, then it becomes necessary to re-issue a decision to open proceedings. Accordingly, procedural legal relations arise again, evidence is collected again, and new decisions are made.

It should be said that the loss of materials can significantly affect or change the criminal procedural ties formed between the participants.

New legal relations arising in connection with restoration are not covered by relations characteristic of the usual procedure for consideration and investigation. The results of repeated procedural actions may, to one degree or another, not correspond to the initial ones. The investigator may have other conclusions about the distribution of roles of accomplices, the method of committing the act, the amount of stolen goods, etc.

How to appeal a decision to terminate a criminal case?

Decisions to terminate a case for a particular crime do not always specify the procedure for appealing it. This is understandable; law enforcement agencies have completed their work and believe that the case can be transferred to the archives.

But the injured party needs to know that they have the right to resume everything and force the investigator to work on the case:

Familiarize yourself not only with the contents of the procedural document with which the proceedings were completed, but also with the materials of the refusal case, having studied what has been done in terms of proving the guilt of the alleged criminals
Draw up a complaint indicating all the shortcomings: someone may not have been interrogated, but they were reported by the interrogated persons, additional materials were not requested from government agencies or from third parties, also frequent mistakes include inconsistency in the testimonies of respondents, which should be eliminated before the case is settled
file a complaint against the termination decision to the prosecutor's office, the head of the investigative body in accordance with Article 124 of the Code of Criminal Procedure of the Russian Federation, and also appeal the decision to court under Art. 125 Code of Criminal Procedure of the Russian Federation
Participation in court . When appealing in court, the applicant will be notified of the date and time of consideration of the complaint. You will need to take part in the court hearing and voice the reasons for your complaint. Based on the results of consideration of the complaint, the court may adopt a judicial act to cancel the decision to terminate the criminal case
Response from the prosecutor or head of the investigative agency . It is worth considering that the complaint must be considered by the prosecutor within 3 days from the date of acceptance for proceedings. The parties are not called, so please indicate in more detail all violations in the text so that the supervisory authority has no doubt about canceling the appealed document
Appealing a decision on a complaint . Keep in mind that the system for finding errors in a criminal case allows you not to stop even when making a negative decision - by continuing to file a complaint with higher authorities!!!

Features of the procedure

Reconstruction of cases is carried out using copies of documents and materials that can be classified as evidence in the manner prescribed by the Code of Criminal Procedure, as well as through the implementation of procedural actions.

The period of investigation, inquiry, and detention of citizens is calculated according to the rules defined in 162, 223 and 109 articles of the Code of Criminal Procedure. If the time limit for being held in custody for a lost case has expired, the person must be released immediately.

Deadline for appealing the termination of a criminal case

The Code of the Criminal Procedure Code of the Russian Federation does not say anything regarding the deadlines for appealing the decision to terminate a criminal case, i.e. does not establish specific deadlines for appealing the decision to terminate the case of the investigator or interrogating officer. We will adhere to the general deadlines for complaints of other decisions - 10 days.

How are the deadlines for appeal calculated? A complaint can be filed at any time from the moment you learned or should have known about the adopted procedural document.

However, it is still worth considering when a person has received a decision to terminate the case and not hesitate to file a complaint, so that questions do not arise as to why the applicant did not appeal the decision for a long time.

Nuances

The grounds for issuing a decision to reinstate a criminal case arise when the fact of the absence of a case or the impossibility of establishing its location is proven.

To apply the provisions of Art. 158.1, the loss of any part of the materials is sufficient, not necessarily the entire case. In this case, one document or one piece of evidence may be subject to restoration.

The procedure for resuming a terminated criminal case

If the decision to terminate the case is canceled by the prosecutor or the head of the investigative body, then a decision is made to cancel the decision and resume proceedings in the case.

If the decision is made by the court, then the court makes a decision declaring the decision illegal. Next, the investigator makes a decision to resume proceedings in the case.

Thus, the materials of the criminal case must contain a document indicating the resumption of proceedings in the case after termination.

It is necessary to take into account that the resumption of proceedings is possible and advisable in the case if the statute of limitations has not expired. Although often the termination of a case is more advantageous in terms of protecting the rights of the victim than the termination of a case for lack of corpus delicti, because the party does not lose the opportunity to receive compensation from the guilty party.

Termination of procedural proceedings: possible grounds

Part 1 of Article 212 of the Code of Criminal Procedure determines that a criminal case, as well as the corresponding criminal prosecution, is officially terminated if one of the following possible circumstances, specified in Articles 24-25.1 of the Code of Criminal Procedure, exists:

There is virtually no crime event.
The committed act does not contain the proper elements of a crime.
The statute of limitations regulated by Part 1 of Article 78 of the Criminal Code of the Russian Federation (CC) has already passed. This circumstance is considered a suitable basis for termination of prosecution.
The accused (suspect) died. An exception is that further proceedings are carried out to rehabilitate the deceased.
The injured entity has not filed an application to initiate (open) criminal proceedings, if such an application is considered necessary.
The court opinion has not established that the person’s actions include signs of a crime.
The government agencies listed in paragraph 6 of part 1 of Article 24 of the Code of Criminal Procedure did not give their consent to initiate a case and assign this person the status of an accused.
Reconciliation reached between the accused (suspected) subject and the victim.
The accused (suspected) subject made amends (compensated) for the damage caused by this crime, and the court ordered a court fine to be collected from him.

In addition, criminal prosecution can be officially terminated for a specific person (accused, suspect) if the following possible grounds are present, specified in Articles 27-28.1 of the Code of Criminal Procedure:

The accused (suspected) person is not involved in the crime committed.
The case was dismissed on the grounds of Article 24 of the Code of Criminal Procedure.
Availability of an amnesty act.
For this charge, there is already a sentence valid for this subject, or a court verdict ordering the case to be dismissed.
On this charge, there is already an unreversed decision of the prosecutor (investigator, investigative body), ordering the termination of the proceedings or not to initiate it.
Active repentance of the subject (accused, suspect). In this case, it is necessary to take into account the grounds (rules) of Articles 28 and 75 of the Code of Criminal Procedure.
Compensation by the subject (accused, suspect) for damage caused on the grounds and according to the rules of Article 28.1 of the Code of Criminal Procedure.

When officially terminating procedural proceedings for a specific subject (accused, suspect), the competent official takes into account the following norms:

If the case is terminated, the corresponding criminal prosecution must also be terminated (at the same time as the case).
If all the accused (suspects) in a particular case are cleared of criminal prosecution, the case is automatically terminated.
Criminal prosecution is not terminated if the accused (suspect) himself opposes such termination.
The criminal prosecution of a specific subject can be terminated without terminating the corresponding criminal case.

As a rule, the termination of a specific case (persecution) is formalized by an appropriate resolution of the investigator (except for the situation of imposing a court fine). Such a decision is drawn up according to the rules of Part 2 of Article 213 of the Code of Criminal Procedure, and a copy of it is handed over to the prosecutor. If termination requires the consent of the accused (suspect), such consent must be recorded by this decision. A copy of this paper is given to the person released from criminal prosecution, as well as to the victim and both parties to the civil lawsuit (if one has been filed).

What happens after a terminated case is reopened?

If the court nevertheless decides to cancel the discontinued case, then the head of the investigative department must give clear instructions in writing to the investigator that the investigation has not been completed and the case needs additional investigation; the issue of canceling or changing the preventive measure against the previously accused is being decided face. After which a new collection of evidence begins and the investigation is carried out according to a different scheme.

If you want everything to go well, you should definitely take into account the information we provide. She will help you solve the problem and conduct proper defense in criminal cases.

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Comprehensive study of materials

Restoring a criminal case is not just a technical process. It is considered a special form of preliminary investigation. The activity consists of re-collecting evidence, evaluating it, making a decision, or confirming conclusions made earlier.

If, after all due steps have been taken, information is obtained that provides a basis for making a different decision on the main issues, they must be decided in a new way. Previous conclusions cannot have prejudicial significance. The main questions are about the guilt/innocence of a person, the presence/absence of grounds for changing/cancelling/applying a coercive measure, the qualification of an act, etc.

Lawyer for the renewal of a dismissed case in Yekaterinburg

The reopening of a terminated criminal case can be achieved with the help of our criminal lawyer at the Law Office “Katsailidi and Partners”. Very often during the investigation there are situations when there is not enough evidence to confirm the guilt of the suspect.

As a rule, such cases are subject to closure, but there are exceptions, which we will talk about now. If, over a certain period of time, any new facts appear, in this case the investigator can take such an action as resuming proceedings in a terminated criminal case.

Relevance of the issue

Conditions for the restoration of criminal cases, enshrined in Art. 158.1, in fact, can be called the grounds for opening special proceedings with a special subject of proof. This is, in fact, a lost cause. In addition, production is opened to achieve a special purpose - the recovery of materials.

Currently, the risks of losing cases of all categories remain quite high. This problem arose in the mid-90s of the last century and required legislative regulation.

Scope of Art. 158.1

They are determined by the conditions that arise from the principles of the presumption of innocence and the inadmissibility of repeatedly bringing a person to justice for one crime. Therefore:

The impossibility of opening a new case and conducting an investigation instead of a lost one if the proceedings were completed by a decision on the merits. In this case, the decision is subject to cancellation in the appropriate procedural form. At the pre-trial stage it is canceled by the prosecutor, within the framework of legal proceedings - by appeal, cassation, supervisory ruling or in the order of reopening the case.
Doubts regarding materials not recovered during repeated investigative actions should be interpreted in favor of the accused.