Article 30 of the Code of Criminal Procedure of the Russian Federation. Composition of the court (current version)
1. Consideration of criminal cases is carried out by the court collectively or by a single judge. The composition of the court for the consideration of each criminal case is formed taking into account the workload and specialization of judges through the use of an automated information system. If it is impossible to use an automated information system in court, it is allowed to form the composition of the court in a different manner, excluding influence on its formation by persons interested in the outcome of the trial.
2. The court of first instance considers criminal cases in the following composition:
1) judge of a federal court of general jurisdiction - criminal cases of all crimes, with the exception of criminal cases specified in paragraphs 2 - 4 of this part;
2) a judge of the supreme court of the republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court and a panel of eight jurors - at the request of the accused, criminal cases for the crimes specified in paragraph 1 part three of article 31 of this Code, with the exception of criminal cases of crimes provided for in articles 131 part five, 132 part five, 134 part six, 212 part one, 275, 276, 278, 279, 280.2, 281 of the Criminal Code of the Russian Federation;
2.1) a judge of a district court, a garrison military court and a panel of six jurors - at the request of the accused, criminal cases of crimes provided for in Articles 105 part two, 228.1 part five, 229.1 part four, 277, 295, 317 and 357 of the Criminal Code of the Russian Federation, for which, as the most severe form of punishment, life imprisonment or the death penalty cannot be imposed in accordance with the provisions of part four of Article 66 and part four of Article 78 of the Criminal Code of the Russian Federation, criminal cases of crimes provided for in Articles 105 part one and 111 part four Criminal Code of the Russian Federation, with the exception of criminal cases of crimes committed by persons under the age of eighteen;
3) a panel of three judges of a federal court of general jurisdiction - criminal cases of crimes provided for in articles 205, 205.1, 205.2, 205.3, 205.4, 205.5, 206, 211 part four, 212 part one, 275, 276, 278, 279, 280.2, 281 parts two and three of the Criminal Code of the Russian Federation, and other criminal cases within the jurisdiction of the 1st Eastern District Military Court, the 2nd Western District Military Court, the Central District Military Court and the Southern District Military Court in accordance with paragraphs 2 - 4 of part six .1 Article 31 of this Code, and if there is a request from the accused, filed before the appointment of a court hearing in accordance with Article 231 of this Code - criminal cases of crimes provided for in Articles 105 part two, 126 part three, 131 parts three - five, 132 parts third - fifth, 134 parts fourth - sixth, 208 parts first, 209, 210 parts first, first.1, third and fourth, 210.1, 211 parts first - third, 227, 228.1 parts fifth, 229.1 parts fourth, 277, 281 parts first, 295, 317, 353 - 358, 359 parts one and two, 360 of the Criminal Code of the Russian Federation;
4) magistrate - criminal cases within his jurisdiction in accordance with part one of Article 31 of this Code.
3. Consideration of criminal cases on appeal is carried out:
1) in a district court - by a judge of the district court alone;
2) in higher courts - by a court composed of three judges of a federal court of general jurisdiction, with the exception of criminal cases of crimes of minor and medium gravity, as well as criminal cases with appeals, submissions against interim decisions of a district court, garrison military court, which are considered by a judge of the supreme court court of a republic, regional or regional court, court of a federal city, court of an autonomous region, court of an autonomous district, district (naval) military court individually.
4. Consideration of criminal cases in cassation procedure is carried out by the judicial collegium for criminal cases of the cassation court of general jurisdiction, the military court of cassation, the Judicial collegium for criminal cases of the Supreme Court of the Russian Federation and the Judicial collegium for military personnel of the Supreme Court of the Russian Federation, consisting of three judges, and in the order supervision - by a majority of members of the Presidium of the Supreme Court of the Russian Federation.
5. When considering a criminal case by a court consisting of three judges of a federal court of general jurisdiction, one of them presides over the court session.
6. Criminal cases within the jurisdiction of a magistrate, committed by persons specified in part five of Article 31 of this Code, are considered by judges of garrison military courts individually in the manner established by Chapter 41 of this Code. In these cases, the verdict and decision can be appealed.
Question 4. RSO: main powers.
Previously, a similar position was called “head of the investigation department”; the position “RSO” was introduced in 2007.
According to paragraph 381 of Art. 5 of the Code of Criminal Procedure, RSO - the official heading the relevant investigative unit, as well as his deputy.
According to Art. 39 Code of Criminal Procedure,
1. The head of the investigative body is authorized to:
1) entrust the conduct of the preliminary investigation to an investigator or several investigators, as well as withdraw the criminal case from the investigator and transfer it to another investigator with the obligatory indication of the grounds for such transfer, create an investigative group, change its composition, or accept the criminal case for its proceedings;
2) check the materials of verification of a crime report or materials of a criminal case, cancel illegal or unfounded decisions of the investigator;
2.1) cancel illegal or unfounded decisions of the head, investigator (inquiry officer) of another preliminary investigation body in criminal cases being processed by a subordinate investigative body;
3) give the investigator instructions on the direction of the investigation, the conduct of certain investigative actions, the imposition of a person as an accused, the selection of a preventive measure against the suspect, the accused, the qualification of the crime and the scope of the charge, personally consider reports of a crime, participate in the verification of reports of a crime .
4) give consent to the investigator to initiate before the court a petition for the selection, extension, cancellation or change of a preventive measure or for the performance of another procedural action that is allowed on the basis of a court decision, personally interrogate the suspect, the accused without taking the criminal case into consideration during consideration the question of giving consent to the investigator to initiate the said petition before the court;
5) allow challenges filed to the investigator, as well as his self-recusations;
6) remove the investigator from further investigation if he has violated the requirements of this Code;
7) cancel illegal or unfounded decisions of a lower-ranking head of the investigative body in the manner established by this Code;
extend the period of preliminary investigation;
9) approve the investigator’s resolution to terminate the criminal proceedings;
10) give consent to the investigator who conducted the preliminary investigation in a criminal case to appeal, in the manner established by part four of Article 221 of this Code, the decision of the prosecutor made in accordance with paragraph 2 of part one of Article 221 of this Code;
11) return the criminal case to the investigator with his instructions to conduct an additional investigation;
12) exercise other powers provided for by this Code.
2. The head of the investigative body has the right to initiate a criminal case in the manner established by this Code, accept the criminal case for his proceedings and conduct a preliminary investigation in full, while having the powers of an investigator or head of an investigative team, provided for by this Code.
3. Instructions from the head of the investigative body in a criminal case are given in writing and are mandatory for execution by the investigator . The instructions of the head of the investigative body may be appealed by him to the head of a higher investigative body. An appeal against instructions does not suspend their execution, except in cases where the instructions relate to the seizure of a criminal case and its transfer to another investigator, the prosecution of a person as an accused, the classification of a crime, the scope of the charge, the selection of a preventive measure, the conduct of investigative actions that are allowed only by court decision, as well as sending the case to court or its termination. In this case, the investigator has the right to submit to the head of a higher investigative body the materials of the criminal case and written objections to the instructions of the head of the investigative body.
4. The head of the investigative body shall consider, within no later than 5 days, the prosecutor’s demands to cancel the investigator’s illegal or unfounded decision and eliminate other violations of federal legislation committed during pre-trial proceedings, as well as the investigator’s written objections to these demands and inform the prosecutor about the cancellation of the illegal or unfounded resolution of the investigator and elimination of violations, or issues a reasoned resolution of disagreement with the prosecutor’s demands, which is sent to the prosecutor within 5 days.
5. The powers of the head of the investigative body provided for by this article are exercised by the Chairman of the Investigative Committee of the Russian Federation, heads of investigative bodies of the Investigative Committee of the Russian Federation in the constituent entities of the Russian Federation, in regions, cities, their deputies, as well as heads of investigative bodies of the relevant federal executive authorities (if relevant federal executive authorities), their territorial bodies in the constituent entities of the Russian Federation, in districts, cities, their deputies, other heads of investigative bodies and their deputies, the scope of procedural powers of which is established by the Chairman of the Investigative Committee of the Russian Federation, heads of investigative bodies of the relevant federal executive bodies (under the relevant federal executive authorities).
Also in accordance with Part . 3 tbsp. 144 of the Code of Criminal Procedure of the Russian Federation, the head of the investigative body is empowered, at the request of the investigator, to extend the period for verifying a report of a crime to 10 days. If it is necessary to extend documentary checks or inquiry audits, the check period by the head of the investigative body may be extended to 30 days.
Thus, the powers of the RSO can be divided into two groups:
1) on procedural control over the activities of the investigator;
2) to carry out criminal prosecution.
Commentary to Art. 51 "Code of Criminal Procedure of the Russian Federation"
Among the main comments that supplement and regulate some individual points of Article 51 of the Code of Criminal Procedure of Russia, the following can be noted, regulating the mandatory participation of a defense lawyer in criminal proceedings:
- the need for the participation of a qualified, competent defense attorney in those moments that are noted in the article itself is unconditional. In this case, the persons who are responsible for participating in the defense attorney’s office work are investigators and interrogators. It does not matter how simple or complex the investigation is, whether the defendant’s consent exists in the case being examined, or what degree of severity is involved;
- if there is no defense attorney during court proceedings, this indicates a severe violation of the main points and principles of the Code of Criminal Procedure, which entails the cancellation of court proceedings;
- the mandatory participation of a defense attorney in criminal proceedings does not mean that after he is given official access to the criminal proceedings, he will always be required to be close to the inquiry officer or investigator;
- from the very moment when the defense attorney takes part in legal proceedings in a criminal case, and his participation and presence is valid, he has certain rights. For example, a defense attorney has the right to take part in the interrogation of the accused or suspected party. He also has the right to take part in any other investigative actions if they are carried out with the participation of the client;
- paragraph 1 of the first part, which defines the main provisions, as well as the rules and definitions of such an important element of legal proceedings as the participation of a defense lawyer in criminal proceedings, can be extended to the accused party. The rules and features of this paragraph do not apply to the protection of those persons who do not legally belong to the suspected party or to the party who is already accused of a criminal offense, and also if they committed a criminal act in a state of mental insanity;
- the rule established by paragraph 1 of the first part begins to work and is relevant from the moment within the framework of part 3 of article 49, which became valid within the framework of the criminal process the very first. This rule ends with the moment when the prosecution of someone who is a suspect within the framework of judicial proceedings is stopped.
During the entire duration of this right, in order for the investigator, the court and other parties to remain obligated to provide the suspect with another defense lawyer, it is sufficient only for the absence of any objections from the defense lawyer and the accused party to this participation.
An investigator or a court represented by a judge, as well as an inquiry officer, have every right to find out the reason for the defendant’s (accused) party’s refusal to provide a defense attorney if the defense attorney refuses this kind of assistance. If the refusal is due to the incompetence of the defense attorney, the court must determine whether the suspected party needs another, more competent and professional lawyer. Otherwise, we will be talking about a violation of the rights of the accused party to defense.
The accused party has the right to refuse a defense lawyer at any stage of the legal proceedings, however, there must be an appropriate explanation of the situation. In this case, the investigator should find out what caused this refusal and whether it was forced. If the refusal is in fact not so much obligatory as forced, then the judicial authorities, represented by the judge, need to determine the degree of participation of the defending party, and also take measures to assign another defense lawyer to the suspect.
All these points complement and comment on Article 51 of the Code of Criminal Procedure of Russia, therefore they also have legal force and must be taken into account within the framework of judicial proceedings.
If you study the entire article and the comments to it, the question may arise: is this article and all the points related to it valid in the case of proceedings within the framework of a preliminary investigation, if within the framework of this investigation we are talking about suspects?
After all, the fact is that such suspects have every right to file an appropriate petition for legal proceedings and a defense party within the framework of these criminal proceedings. Obviously, such a petition in this case will be rejected, however, since there is a petition, the case will not move forward without a lawyer, and the participation of a lawyer will be mandatory.
In order to avoid doubts, it should be noted that if the legislator planned to oblige the executor of law to ensure the mandatory participation of the defending party only in unique cases of conducting an inquiry within the framework of an abbreviated form, then this point should have been stated in paragraph 8 of the first part. In this case, the request will be granted, and the distribution of responsibilities will be established within the agreed framework.
Article 47 of the Code of Criminal Procedure of the Russian Federation. Accused
- An accused is a person in respect of whom: 1) a decision has been made to charge him as an accused; 2) an indictment has been issued; 3) an indictment has been issued.
- The accused in whose criminal case a trial has been scheduled is called the defendant. The accused against whom a guilty verdict has been passed is called the convicted person. A defendant who is acquitted is acquitted.
- The accused has the right to defend his rights and legitimate interests and have sufficient time and opportunity to prepare for the defense. Part four of Article 47 in its constitutional and legal interpretation, arising from the rulings of the Constitutional Court of the Russian Federation, which remain in force, does not prevent the court from considering the merits of a criminal case pending in its proceedings, if, before passing a sentence, the criminality and punishability of the act charged to the accused is eliminated by a new criminal law, and does not deprive the accused of the right of access to justice and the right to effective judicial protection in the procedural forms established by law
- The accused has the right: 1) to know what he is accused of; 2) receive a copy of the decision to charge him as an accused, a copy of the decision to apply a preventive measure against him, a copy of the indictment, indictment or indictment; 3) object to the accusation, testify on the charge brought against him or refuse to testify. If the accused agrees to testify, he must be warned that his testimony may be used as evidence in a criminal case, including if he subsequently refuses this testimony, except for the case provided for in paragraph 1 of part two of Article 75 of this Code ; 4) provide evidence; 5) file petitions and challenges; 6) give evidence and explain in his native language or a language he speaks; 7) use the help of a translator for free; use the assistance of a defense lawyer, including free of charge in cases provided for by this Code; 9) have meetings with the defense lawyer alone and confidentially, including before the first interrogation of the accused, without limiting their number and duration; 10) participate, with the permission of the investigator, in investigative actions carried out at his request or the request of his defense attorney or legal representative, familiarize himself with the protocols of these actions and submit comments on them; 11) get acquainted with the decision on the appointment of a forensic examination, pose questions to the expert and get acquainted with the expert’s conclusion; 12) upon completion of the preliminary investigation, get acquainted with all the materials of the criminal case and write out any information and in any volume from the criminal case; 13) make copies at your own expense from the materials of the criminal case, including using technical means; 14) bring complaints against the actions (inaction) and decisions of the inquirer, investigator, prosecutor and the court and take part in their consideration by the court; 15) object to the termination of a criminal case on the grounds provided for in part two of Article 27 of this Code; 16) participate in the trial of a criminal case in the courts of the first, second, cassation and supervisory instances, as well as in the court’s consideration of the issue of choosing a preventive measure in relation to him and in other cases provided for in paragraphs 1 - 3 and 10 of part two of Article 29 of this Code ; 17) get acquainted with the minutes of the court session and submit comments on it; 18) appeal the verdict, ruling, court order and receive copies of the appealed decisions; 19) receive copies of complaints and presentations brought in a criminal case and file objections to these complaints and presentations; 20) participate in the consideration of issues related to the execution of the sentence; 21) defend themselves by other means and methods not prohibited by this Code.
- The participation of a defense attorney or legal representative of the accused in a criminal case does not serve as a basis for limiting any of the rights of the accused.
- During the first interrogation of the accused, the investigator or interrogating officer explains to him the rights provided for in this article. During subsequent interrogations, the accused is repeatedly explained his rights provided for in paragraphs 3, 4, 7 and 8 of part four of this article, if the interrogation is conducted without the participation of a defense lawyer.
Judicial practice under Article 51 of the Code of Criminal Procedure of the Russian Federation
One of the high-profile cases occurred on April 10, 2021 in the Kirov region. The suspect in it is Pervakov V.A. threatened to kill the victim, and the victim had every fear that these threats would become real. This is due to the defendant’s strong alcohol intoxication.
During court proceedings:
- Pervakov was provided with a lawyer as a defender, however, the defendant fully admitted his guilt and received 1 year and 10 months in prison.
- At the same time, the actions of the defender did not go beyond Article 51 of the Code of Criminal Procedure of Russia, and the degree of qualifications and responsibility of the defender were not in doubt.
There are a lot of court cases related to Article 51 of the Russian Code of Criminal Procedure, but relatively recently an updated procedure for the appointment of qualified legal professionals under Article 51 of the Russian Code of Criminal Procedure was introduced.
