FORMALIZATION OF THE PROCEDURE FOR BRINGING CHARGES
Based on the provisions of clause 1, part 4, art. 47 of the Code of Criminal Procedure of the Russian Federation, the accused has the right to know what he is accused of.
This provision of the law means that a person brought as an accused, in order to effectively defend against the accusation (to object to the accusation, testify about innocence or non-involvement in committing a crime, present evidence of innocence, make motions, etc.) has the right to know the essence and scope accusations, their content and nature.
The implementation of this right is ensured by such a criminal procedure as filing charges, during which the investigator, by virtue of Part 1 of Art. 11, part 5 art. 172 of the Code of Criminal Procedure is obliged to explain to the person brought as an accused the essence of the charge brought and his procedural rights provided for in Art. 47 Code of Criminal Procedure.
Meanwhile, as practice shows, the investigative authorities have turned the procedure for bringing charges into a formal procedure for determining the procedural status of the person being prosecuted, which consists of the fact that the investigator presents the accused and his defense attorney with the resolution itself, offers to sign for its receipt and hands over a copy of it.
And as soon as the investigator is faced with the position of the defense on the fulfillment of the requirements of the law when bringing charges, problems of the following order immediately arise.
Thus, over the past 10 years, the author of this material, participating as a defense attorney in criminal cases at the stage of preliminary investigation, each time a charge was brought against a client, turned to the investigator with a request to clarify the essence of the charge and was faced with a complete misunderstanding of the essence of such an appeal.
In most cases, the investigators themselves answered the question with a question and asked what the term “the substance of the charge brought” itself meant, or limited themselves to silence, although, it would seem, there should not be any difficulties in explaining this definition.
Article 47 of the Code of Criminal Procedure of the Russian Federation. Accused (current version)
1. The concept of an accused in this article of the Code of Criminal Procedure is used in a narrow, technical-legal sense, when an accused is a person against whom a decision has been made to charge him as an accused or an indictment. However, as the Constitutional Court of the Russian Federation indicated, “by accusation in the sense of Article 6 of the Convention, the European Court of Human Rights understands not only the official notification of the accusation, but also other measures related to the suspicion of committing a crime that entail serious consequences or significantly affect position of the suspect... i.e. considers it necessary to proceed from a substantive, rather than formal, understanding of the accusation... In order to implement the said constitutional right (to the assistance of a defense attorney - A.S.), it is necessary to take into account not only the formal procedural, but also the factual position of the person against whom public criminal prosecution is being carried out. At the same time, the fact of criminal prosecution and, consequently, accusatory activities directed against a specific person can be confirmed by an act of initiating a criminal case against this person, conducting investigative actions against him (search, identification, interrogation, etc.) and other measures taken in order to incriminating him or indicating the existence of suspicions against him (in particular, an explanation in accordance with Article 51 of the Constitution of the Russian Federation of the right not to testify against oneself). Since such actions are aimed at identifying facts and circumstances incriminating the person under criminal prosecution, he should be immediately given the opportunity to seek help from a lawyer (defender). This provides conditions that allow this person to obtain a proper understanding of his rights and obligations, the charges brought against him and, therefore, to effectively defend himself and guarantee in the future against the recognition of evidence obtained during the investigation as inadmissible.” Thus, in relation to ensuring the accused’s right to defense, there is a broad concept of the accused, used in constitutional and international law, when the accused means any person against whom incriminating actions are taken.
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See: Clause 3 of the reasoning part of the Resolution of the Constitutional Court of the Russian Federation of June 27, 2000 N 11-P “In the case of verifying the constitutionality of the provisions of part one of Article 47 and part two of Article 51 of the Criminal Procedure Code of the RSFSR in connection with the complaint of V.I. Maslova" // RG. 2000. July 4th. N 128.
2. The right to know what he is accused of and to have sufficient time and opportunity to prepare for his defense is ensured to the accused by the following provisions of this Code:
1) the charge must be brought against the person no later than 3 days from the date of the decision to charge him as an accused (Part 1 of Article 172). This corresponds to the right of the accused to receive a copy of the decision to charge him as an accused (clause 2, part 4, article 47). With this, it can be concluded that a copy of this resolution should be served or sent to the accused not at the time of arraignment, but immediately after its issuance, if the location of the accused is known;
2) the accused has the right to familiarize himself with documents that confirm the legality and validity of the application of procedural coercive measures to him, the decision on which is made by the court;
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See: Determination of the Constitutional Court of the Russian Federation of May 12, 2003 N 173-O “On the complaint of gr. Kovalya S.V. for violation of his constitutional rights by the provisions of Articles 47 and 53 of the Code of Criminal Procedure of the Russian Federation” // RG. 2003. July 10. N 135.
3) the materials of the criminal case completed by the investigation must be presented to the accused in custody and his defense attorney no later than 30 days before the end of the deadline for detention established by Parts 2 and 3 of Art. 109 of the Code of Criminal Procedure (see commentary to the said article).
If, after the completion of the preliminary investigation, the materials of the criminal case were presented to the accused and his defense attorney later than 30 days before the end of the maximum period of detention, then upon its expiration the accused is subject to immediate release. At the same time, the accused and his defense attorney retain the right to familiarize themselves with the materials of the criminal case (Parts 5, 6, Article 109);
4) the right of the accused and the defense attorney to make copies at their own expense from the materials of the criminal case (clause 13, part 4 of the commented article) applies not only to the end of the preliminary investigation, but to all cases when the investigator or interrogating officer, as well as the court, are obliged to present them with those or other materials of the case (protocol of detention as a suspect, resolution ordering an examination, expert opinion, protocols of investigative actions carried out at their request). As follows from a number of decisions of the Constitutional Court of the Russian Federation (Resolutions of November 13, 1995 N 13-P, of April 29, 1998 N 13-P, of March 23, 1999 N 5-P, of February 14, 2000 N 2-P, Determinations dated December 21, 2000 N 285-O, dated December 18, 2003 N 429-O, dated February 24, 2005 N 133-O, dated April 19, 2007 N 343-O-P and dated November 15, 2007 N 924-О-О), provisions of clauses 12 and 13, part 4 of art. 47 of the Code of Criminal Procedure of the Russian Federation does not limit the right to familiarize oneself with the materials of a criminal case to familiarization only with certain specific documents. These rules do not exclude the right of the accused to make copies of the material evidence available in the case file, such as, for example, video recordings that contain information relevant to establishing certain circumstances of the case;
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See: Determination of the Constitutional Court of the Russian Federation of November 15, 2007 N 924-О-О “On the complaint of gr. Kozlova D.B. for violation of his constitutional rights, clause 13, part 4, art. 47, paragraph 1, part 2, art. 75, part 1 art. 285 of the Code of Criminal Procedure of the Russian Federation and clause 1, part 1, art. 6 Federal Law “On operational investigative activities”.
5) in practice, the question also often arises: is the investigator or interrogating officer, at the request of the accused, obliged to certify copies of documents and protocols from the case materials that the latter takes? It seems that there is such an obligation - it follows from the public nature of the criminal process. Otherwise, this right of the accused is devalued, because it becomes difficult for him to appeal against the actions of the investigator, interrogating officer with a presentation to the prosecutor, to the court, etc. uncertified copies of documents, the origin of which is therefore unknown;
6) consideration of a criminal case in a court hearing cannot begin earlier than 7 days from the date of delivery to the accused of a copy of the indictment or indictment (Part 2 of Article 233).
3. The right to object to the accusation (clause 3, part 4, article 47) presupposes the accused putting forward arguments in his defense, which may consist of both pointing out factual circumstances and putting forward exculpatory versions. By virtue of Part 2 of Art. 14 The burden of refuting the arguments put forward in defense of the suspect or accused lies with the prosecution. Thus, the subject of testimony that the accused has the right to give includes not only information about the facts, but also their assessment, including assumptions and versions of the defense, which the prosecutor, as well as the court, are obliged to check in full, and the prosecutor also has the responsibility the burden of refuting them. If any exculpatory version of the accused is not refuted by the evidence, he must be found not guilty.
4. The accused has the right to refuse to give any testimony (clause 3, part 4, article 47). This right is explained by the fact that the accused is not obliged to prove his innocence, and the burden of proving guilt lies with the accuser (Part 2 of Article 14). Associated with this right is a previously unknown prohibition in our legislation on the repeated interrogation of the accused if he refuses to testify at the first interrogation (Part 4 of Article 173).
5. The right to present evidence is ensured, in addition to giving testimony and presenting evidence by the accused, also by the right to submit motions (clause 5, part 4, article 47). Fundamentally important in this regard is the provision on the obligation of the investigator to satisfy requests for questioning witnesses, conducting forensic examinations and other investigative actions, if the circumstances for which they request to be established are important for the given criminal case (Part 2 of Article 159), as well as that the court does not have the right to refuse a request for questioning at a court hearing of a person as a witness or specialist who has appeared in court at the initiative of the parties (Part 4 of Article 271).
6. According to paragraph 9 of part 4 of the commented article, the accused has the right to have meetings with the defense lawyer alone and confidentially, including before the first interrogation of the accused, without limiting their number and duration. It should be borne in mind that the rule on limiting the duration of a meeting by an interrogating officer or investigator to more than 2 hours in case of the need to carry out procedural actions applies only to the suspect (Part 4 of Article 92), but not to the accused.
7. The confidentiality of meetings between the accused and the defense attorney is ensured by the investigator, the inquiry officer, the inquiry body, the court, and the administration of places of detention. According to Part 2 of Art. 18 Federal Law of July 15, 1995 “On the detention of suspects and accused of committing crimes” “meetings of a suspect or accused with his defense attorney may take place under conditions that allow the EMPLOYEE OF THE PLACE OF DETENTION (emphasis added - A.S.) see them, but not hear them." Does this mean that the ban on hearing a conversation between a suspect or accused and a defense lawyer applies only to “employees of the place of detention”, and not to other law enforcement officers? Some authors believe that “the subjects of the investigation have the right to assign and carry out operational investigative measures against a lawyer and his client, including during their confidential meetings.” It is not entirely clear on what this, to put it mildly, strange recommendation is based, since the right of the accused and the defense attorney to confidentiality is addressed to an indefinitely wide range of subjects, including (and above all!) all “subjects of the investigation.”
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See: Garmaev Yu.P. The limits of the powers of a defense attorney in criminal proceedings and typical offenses committed by lawyers. Practical commentary on legislation // https://www.businessmix.ru/comm.php?id=4703.
The duration of meetings between the accused and the defense lawyer is actually limited by the Internal Regulations in Places of Detention (Clause 15, Article 16 of the Federal Law “On the Detention of Suspects and Accused of Crimes”).
8. The accused has the right to rehabilitation (see the commentary on him to Chapter 18). One of its manifestations is the right of the accused to object to the termination of the criminal case on the grounds provided for in part two of Article 27 of the Code of Criminal Procedure.
9. One of the guarantees of adversarial proceedings and the right of the accused to defense is the right of the accused (suspect) and his legal representative and defense attorney to participate in court hearings when the court is considering the issue of choosing preventive measures in relation to him in the form of detention or house arrest, bail, extension of the period of detention, when the court decides on the placement of a suspect, accused, who is not in custody, in a medical or psychiatric hospital for a forensic medical or forensic psychiatric examination, respectively (clauses 1 - 3 and 10, part 2 Article 29, Part 2, Article 106, Part 4, Article 108, Part 2, Article 203).
10. The right to defend oneself by other means and methods not prohibited by this Code (clause 21, part 4 of the commented article). See paragraph 6 of the comment. to Art. 53 of this Code.
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
WHAT SHOULD BE THE EXPLANATION OF THE CHARGES?
An explanation to the accused of the substance of the charge brought, the essence of which intersects with paragraph 1 of Part 4 of Art. 47 of the Code of Criminal Procedure of the Russian Federation, is expressed in the fact that the investigator in understandable terms and in a language that is easier to understand must explain to the accused the legal and factual aspects of the accusation itself.
What does this mean?
First: the investigator, using the information obtained about the entire set of established factual data (the circumstances of what happened), must explain to the accused the content of the accusation, namely, when, where and what specific actions (inaction) the latter committed and why the investigative authorities believe that such actions are criminal, and what exactly was the criminality of the actions (inactions).
Next, the investigator must determine the scope of the charge against the accused.
In addition, he must explain what kind of harm, to whom exactly and to what extent was caused as a result of such actions of the accused and that such harm was caused precisely through the fault of the accused (intentional or careless).
Second: the content of the specific circumstances of the crime committed must be presented by the investigator in such a way that it is consistent with the disposition of the relevant norm of the criminal law, that is, the content of the accusation itself must characterize the legal characteristics of a specific crime.
In this regard, the investigator must explain to the accused why his actions (inaction) are qualified under one or another article of the criminal law.
Accordingly, the operative part of the resolution must indicate under which article (item, part) of the Criminal Code of the Russian Federation the person is being charged as an accused.
The investigator's decision on the qualification of the actions of the accused must contain a legal assessment of the act committed by the accused, according to which the investigator must substantiate his conclusion about the application of a specific criminal law norm in the case and convey it to the consciousness of the accused.
At the same time, the investigator cannot limit himself to just one reference to the operative part of the resolution. The law obliges the investigator, when bringing charges, to explain to the accused the legal terms used in the resolution, as well as to acquaint the person with the exact text of the article of the criminal law, explaining and disclosing all the signs of the disposition itself. And in the event that the disposition of a criminal law norm is reference, the investigator is obliged to explain to the accused the provisions of this normative act and its application in the qualification of a criminal case.
It is in this interweaving of legal and factual aspects that the essence of the accusation is formed, which must be explained to the person brought in as the accused.
LAWYER STUCHILIN
Representation in criminal proceedings
An important guarantee of ensuring the legitimate interests of an individual is the right of everyone to receive qualified legal assistance, first enshrined in Art.
48 of the Constitution of the Russian Federation. The purpose and role of this constitutional provision is so large-scale that to date some of its aspects in criminal proceedings remain unrealized. One of the unresolved problems is the uncertainty of the status of a lawyer providing legal assistance to a witness and other persons not related to the prosecution and defense. According to Art. 6 of the Federal Law “On Advocacy and the Bar in the Russian Federation” (hereinafter referred to as the Law on the Bar), a lawyer in criminal proceedings participates in two capacities: a defender and a representative. In criminal proceedings, these concepts are filled with their own content.
The term “protection” is used in two meanings: broad (general legal) and narrow (sectoral). In the first sense, protection is the defense of the rights, freedoms and legitimate interests of any person, regardless of his legal status. Such protection is stated, for example, in Art. 46 of the Constitution of the Russian Federation: “Everyone is guaranteed judicial protection of his rights and freedoms.” In this regard, we can say that any person has the right to defense, and his lawyer in all cases is the defender of his client: the accused, the victim, the witness, etc. This idea of a lawyer is common in everyday consciousness. For the average person, a lawyer is always a defender.
However, in criminal proceedings, the terms “defense” and “defender” are used in a different, narrow sense, since they are associated with only one subject - the criminally prosecuted person (suspect, accused). In this case, the concept of “defense” appears as the antithesis of criminal prosecution and consists in the opposition of the suspect, the accused and his defense attorney to the thesis of suspicion or accusation by all means and methods not prohibited by law. It is in this sense that the concepts of “defense” and “defender” are used in the norms of the Code of Criminal Procedure of the Russian Federation (Articles 15, 16, 46, 47, 49 - 53, etc.).
A lawyer who acts in criminal proceedings in the second status of a representative also has its own specifics. According to Art. 45, 55 of the Code of Criminal Procedure of the Russian Federation, only four participants have the right to a representative (not to be confused with a legal representative): the victim, the civil plaintiff, the civil defendant and the private prosecutor. These subjects can exercise their rights personally, or they can transfer them to another person - a representative who, in essence, acts as a deputy principal. Therefore, the representative is vested with the same powers that the represented person has (part 3 of article 45, part 2 of article 55 of the Code of Criminal Procedure of the Russian Federation).
It is easy to see that defense and representation refer to those participants in the criminal process who defend their legal interest in the case, i.e. are parties to a legal dispute or litigation. A criminal case directly affects the interests of the accused, victim, civil plaintiff, defendant, and private prosecutor. To defend their interests, each of these subjects must act actively and purposefully. For this purpose, these persons are endowed with a wide range of powers (Articles 46, 47, 42, 43, 44, 54 of the Code of Criminal Procedure of the Russian Federation), the successful implementation of which most often requires qualified legal assistance from a lawyer.
Along with the subjects defending their legal interest in the case, many other persons are involved in criminal procedural activities: witness, applicant, person giving explanations, mortgagor, guarantor, translator, etc. According to Art. 48 of the Constitution of the Russian Federation, all of them belong to the category “everyone” and, therefore, have the right to receive qualified legal assistance. Of course, these participants in specific criminal procedural situations, as a rule, do not experience any particular difficulties and therefore do not resort to the help of a lawyer, but they do have this right.
The Code of Criminal Procedure of the Russian Federation names exclusively a lawyer as a person providing legal assistance to subjects of this category. In the Code it is mentioned in relation to three participants: a witness (clause 6, part 4, article 56, part 5, article 189), a person whose premises are being searched (part 4, article 182), and from March 4, 2013 g. - to persons participating in the stage of initiating a criminal case (Part 1.1 of Article 144).
Since in the group of subjects under consideration, the witness is primarily named - one of the most common participants in criminal proceedings, the witness’s lawyer began to appear in the legal literature along with the usual statuses of a lawyer-defender and a lawyer-representative. At the same time, the question arose about the procedural position of the witness's lawyer.
Most lawyers who touch upon this problem proceed from the fact that, since according to the Law on Advocacy, a lawyer acts in two capacities: a defender and a representative, then the witness’s lawyer is one of them, because there is no third option.
Almost none of the authors calls the witness's lawyer a defender, since the latter's activities clearly relate only to the criminally prosecuted person.
Many proceduralists consider the witness's lawyer to be his representative. Some of them do not argue their position based on the logic: “If the witness’s lawyer is not a defender, then he is a representative” <1>. Others analyze representation in criminal proceedings and argue that the witness's lawyer and the victim's lawyer have equal powers and perform the same function. Character code: predstavitelstvo-v-ugolovnom-protsesse Tags: representation in criminal proceedings Number of views: 4027 Date of creation: 12/29 .2016 20:30:39 Lawyer: Oleg Vladimirovich Stuchilin
ACTIONS OF THE DEFENDER IN THE CASE OF INADEQUATE EXPLANATION OF THE CHARGES
What should the defense do if the investigator does not fulfill the duties assigned to him by law and refuses to explain to the accused the essence of the charges brought against him?
In such situations, the defense in the decision to bring the defendant as an accused must make a note that the charge was brought in violation of Part 5 of Art. 172 of the Code of Criminal Procedure, since the investigator was unable to explain to the accused the essence of the charges brought against him.
If such a problem arises in practice, then such an entry in the decision to bring the person as an accused will be the basis for appealing the decision either to the head of the investigative body or to the court.
But in practice other cases arise.
FROM PRACTICE.
The preliminary investigation authorities charged A. under paragraph “b” of Part 3 of Art. 228.1 of the Criminal Code of the Russian Federation. When bringing charges, the investigator did not comply with the requirements of Part 5 and Part 8 of Art. 172 of the Code of Criminal Procedure, namely, he did not explain to the accused the essence of the charge brought against him and did not hand over to the defense a copy of the resolution itself, which was recorded by the defense attorney in the resolution itself and signed by the accused.
During the trial, it was revealed that in the materials of the criminal case there was another resolution to bring A. as an accused, in which this record of the defense was missing, and there were also no signatures of the accused himself and his defense lawyer, and the investigator made a note that the accused and the defense attorney refused to sign the resolution.
The defense stated in court that the decision to bring him in as an accused was falsified, but the court refused to return the criminal case to the prosecutor and limited itself to issuing a private resolution to the investigator, recognizing that the charge against A. was brought at the investigation stage, but with flaws that do not entail the return of the case to the prosecutor (case No. 22–3200).
Legal representative of the accused
Lawyer Antonov A.P.
Based on the content of paragraph 12 of Art. 5 of the Code of Criminal Procedure of the Russian Federation, the legal representatives of the accused are recognized as such by a special resolution of the investigator (inquiry officer, etc.) or by a ruling of the court (judge): parents, adoptive parents, guardians or trustees of the minor accused or representatives of institutions and organizations in whose care he was, bodies guardianship and trusteeship.
The legal basis for the participation of the above persons as legal representatives of a minor accused is also Art. 64, part 1 art. 137 RF IC and Art. 31 Civil Code of the Russian Federation.
Some proceduralists argue that “legal representatives of a minor accused may also be siblings, grandparents.” The authors do not consider it necessary to provide arguments in defense of their position or simply refer to Art. 437 Code of Criminal Procedure of the Russian Federation. Meanwhile, it does not correspond to paragraph 12 of Art. 5 of the Code of Criminal Procedure of the Russian Federation, where nothing is said about close relatives, and even more so about the siblings of minors accused. And the fact that in Art. 437 of the Code of Criminal Procedure of the Russian Federation, the legislator nevertheless used the concept of “close relative”, we believe, does not contrast the concept of “legal representative” used in paragraph 12 of Art. 5 of the Code of Criminal Procedure of the Russian Federation, and the “legal representative” referred to in Art. 437 Code of Criminal Procedure of the Russian Federation. The sentence “In the absence of a close relative, the guardianship and trusteeship body may be recognized as the legal representative” should be interpreted as follows: “In the absence of a parent, adoptive parent, guardian or trustee, the guardianship and trusteeship body may be recognized as the legal representative.” The provisions enshrined in these articles of the law must be interpreted comprehensively.
At the same time, about the fact that in paragraph 12 of Art. 5 of the Code of Criminal Procedure of the Russian Federation provides an exhaustive list of persons who may be allowed to participate in a criminal case as legal representatives, other authors also write. It seems that already in connection with this circumstance it is impossible to recognize as legal the involvement of siblings as legal representatives of minor accused, unless, of course, they were one of the other persons mentioned in paragraph 12 of Art. 5 Code of Criminal Procedure of the Russian Federation.
We believe that the opinion according to which siblings and others can act as legal representatives of the accused was based on the wording of Part 2, Clause 3 of the currently inactive Resolution of the Plenum of the Supreme Court of the Russian Federation of February 14, 2000 No. 7 “On Judicial practice in cases of juvenile delinquency." It stated verbatim the following: “the right to defense, exercised in accordance with Article 19 of the Code of Criminal Procedure of the RSFSR, provides for the possibility of participation in the consideration of a case in court along with a defender (lawyer) of close relatives or other legal representatives of a minor (Part 5 of Article 47 of the Code of Criminal Procedure of the RSFSR) " Indeed, a literal interpretation of this clarification from the highest body of justice of our state made it possible, at a minimum, to say that in the criminal process, which was regulated by the Criminal Procedure Code of the RSFSR of 1960, it was possible to involve their close relatives as legal representatives of the accused minors.
In any case, now the Code of Criminal Procedure of the RSFSR, and the required Resolution of the Plenum of the Supreme Court of the Russian Federation, do not apply. And with regard to paragraph 12 of Art. 5 and (or) art. 48 of the Code of Criminal Procedure of the Russian Federation, the Supreme Court of the Russian Federation has not yet expressed a version of its own explanations. Accordingly, even despite the presence of the above resolution, at present, siblings and (or) siblings, and even more so grandparents of minor accused, cannot be admitted as legal representatives on the sole basis that they are their close relatives.
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
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CONSEQUENCES OF VIOLATION OF THE CHARGING PROCEDURE
However, violation of the procedure for bringing charges, replacing the decision to bring a person as an accused to another, without observing the procedure for bringing charges, entails the illegality of the entire further course of both the preliminary investigation and the trial.
This is precisely the position taken by the country's highest judicial body.
FROM PRACTICE.
By the verdict of the Moscow Regional Court dated March 11, 2013, S. and Z. were found guilty under Art. 209, part 3 art. 163, part 2 art. 105 of the Criminal Code of the Russian Federation, and B. under Art. Art. 209, 222 of the Criminal Code of the Russian Federation.
The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation overturned this verdict, indicating the following.
The court of first instance committed significant violations of the criminal procedural law, which resulted in violations of the defendants' rights to defense and affected the legality and validity of the court decision.
During the trial, the defense filed motions to return the case to the prosecutor, which indicated that the investigative bodies had violated the requirements of Art. 172–174 of the Code of Criminal Procedure of the Russian Federation, it was argued that the charges set out in the resolutions on bringing as an accused (final edition), located in the materials of the criminal case, were never brought against S. and Z.
Defendants S. and Z. were charged with other charges that differed significantly from those in the criminal case, on which they were interrogated. In fact, the charges brought were smaller in scope and differed significantly in the description of the alleged acts (time, place, method and other circumstances).
In support of their arguments, the defense asked the court to attach to the case materials copies of the decisions to bring them as defendants, which were handed to the accused S. and Z by the investigator.
In violation of the requirements of Art. 6 of the Code of Criminal Procedure of the Russian Federation, the court of first instance avoided checking the arguments of the defense about violations committed by the investigative bodies of the procedure for bringing S. and Z. as defendants and bringing charges against them.
Based on the submitted petitions, the court issued a decision to refuse their satisfaction on the grounds that the indictment corresponds to the charge brought against the defendant and that the photocopies of the decisions to impeach the defendant presented by the defense are not properly certified copies of the specified procedural documents, and therefore it is not possible to establish their origin and there is no reason to believe that the decisions in the case regarding the indictment of the defendants were in any way falsified or changed, or that they do not correspond to the charges that were brought against the defendants.
At the same time, as was correctly stated in the appeals, the accused and their defense attorneys are always given copies of the decisions to charge as defendants exactly in the form in which these copies were provided to the court; there is no procedure for certifying a copy of the decision to charge as accused. accused, part 8 of Art. 172 of the Code of Criminal Procedure of the Russian Federation does not provide.
Under such circumstances, the conviction cannot be recognized as legal, and therefore is subject to cancellation and the case is sent for a new trial from the preliminary hearing stage (case No. 4-APU13-82SP).
Everything about criminal cases
Go to the text of the Code of Criminal Procedure
Url Additional information:
Accused
— clause 1 part 1 47 Code of Criminal Procedure
the person for whom a decision has been made to attract
- clause 2, part 1 47 Code of Criminal Procedure
person against whom an indictment has been issued
— clause 3, part 1, 47 Code of Criminal Procedure
person against whom an indictment has been drawn up
Three types of faces
- Part 2 47 Code of Criminal Procedure
the defendant is considered - from the moment the hearing is scheduled
- Part 2 47 Code of Criminal Procedure
from the moment the verdict is passed, is referred to as the convicted person
- Part 2 47 Code of Criminal Procedure
if a verdict of acquittal is made, it is acquitted
I). Rights of the accused during investigation
- Part 4 47 Code of Criminal Procedure
rights of the accused:
- Part 3 47 Code of Criminal Procedure
has the right to have time to prepare for the defense
- clause 1, part 4 47 Code of Criminal Procedure
know what you are accused of
- clause 2, part 4 47 Code of Criminal Procedure
receive copies of documents
— clause 3, part 4, 47 Code of Criminal Procedure
give evidence
— clause 3, part 4, 47 Code of Criminal Procedure
refuse to testify
— clause 3, part 4, 47 Code of Criminal Procedure
must be warned about the use of indications
- clause 4, part 4 47 Code of Criminal Procedure
present evidence
- clause 5, part 4 47 Code of Criminal Procedure
submit petitions
- clause 5, part 4 47 Code of Criminal Procedure
challenge
- clause 6, part 4 47 Code of Criminal Procedure
testify in one's native language
- clause 7, part 4 47 Code of Criminal Procedure
the right of the accused to a free interpreter
- clause 9.1 part 4 47 Code of Criminal Procedure
the right of the accused to see a notary
- clause 10, part 4 47 Code of Criminal Procedure
has the right to participate in investigative actions
— clause 11 part 4 47 Code of Criminal Procedure
rights of the accused during examination
— clause 12 part 4 47 Code of Criminal Procedure
has the right to get acquainted with the case materials
- clause 13, part 4 47 Code of Criminal Procedure
has the right to make copies of the criminal case materials
- clause 14 part 4 47 Code of Criminal Procedure
has the right to make complaints
— clause 15, part 4, 47 Code of Criminal Procedure
the accused has the right
to
object to the termination of the case
II). Rights of the accused at the trial stage
- clause 16, part 4 47 Code of Criminal Procedure
has the right to participate in court proceedings
- clause 17, part 4 47 Code of Criminal Procedure
read the minutes of the meeting
- clause 18 part 4 47 Code of Criminal Procedure
appeal the verdict, obtain decisions
— clause 19, part 4, 47 Code of Criminal Procedure
the right of the accused to copies of the participants' complaints, to object
- clause 20, part 4 47 Code of Criminal Procedure
participate in the execution of the sentence
- clause 21, part 4 47 Code of Criminal Procedure
defend yourself by all means
- Part 6 47 Code of Criminal Procedure
the rights of the accused must be explained at the first interrogation
Defender
— clause 8, part 4, 47 Code of Criminal Procedure
the right of the accused to a lawyer, including free of charge
- clause 9, part 4 47 Code of Criminal Procedure
right of the accused to see a defense lawyer
- Part 5 47 Code of Criminal Procedure
the participation of a defender does not reduce the scope of rights
SELECTION OF MATERIALS
Arraignment
on a criminal case: a selection of materials
Article 47 of the Code of Criminal Procedure. Accused
1) The accused is a person in respect of whom:
Url Additional information:
- part 1 171 of the Code of Criminal Procedure
issuing a decision to impeach
1). a decision was made to charge him as an accused;
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— 225 Code of Criminal Procedure
indictment, final document of inquiry
2). an indictment has been issued;
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- Part 1 226.7 Code of Criminal Procedure
indictment, final document
3). an indictment has been drawn up;
2) The accused, in whose criminal case a trial has been scheduled, is called the defendant.
Url Additional information:
— paragraph 43
Plenum No. 55 date of resolution (issue) is the date of signing
The accused against whom
a guilty verdict has been passed is called convicted,
the accused against whom
a verdict of acquittal has been made is called acquitted.
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Plenum of the Supreme Court
Plenum
on the practice of applying the rules on the right to defense dated June 30, 2015. No. 29
Right to defense
Right to defense
, a selection of practical materials (
16 Code of Criminal Procedure
)
3) The accused has the right to defend his rights and legitimate interests
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Notice of appointment of a meeting of first instance
- Part 3 47 Code of Criminal Procedure
the accused has the right to have time to prepare for his defense
— Part 4 231 Code of Criminal Procedure
the parties are notified 5 days before the meeting
- paragraph 19
Plenum No. 26 violation of the right to defense, significant violation
Practical aspects
Notification of participants
on the appointment of a court hearing in the first instance
Court error when switching to general procedure
Adjournment of the case
when moving to the general order, 5 days for preparation
and have sufficient time and opportunity to prepare for the defense.
4) The accused has the right:
1). know what he is accused of;
2). get a copy:
Url Additional information:
- Part 8 172 Code of Criminal Procedure
delivery of a copy of the decision to bring the accused
- decisions to charge him as an accused,
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- Part 2 101 Code of Criminal Procedure
a copy of the decision to the person, and to the defense attorney at the request
- decisions to apply a preventive measure against him,
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- Part 2 222 Code of Criminal Procedure
delivery of a copy of the indictment to the accused
- indictment,
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- Part 3 226 Code of Criminal Procedure
delivery of a copy of the indictment to the accused
- indictment,
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- Part 3 226.8 Code of Criminal Procedure
handing the accused a copy of the indictment
- or an indictment;
3). object to the charges, testify on the charges brought against him;
Url Additional information:
- Part 1 51
Constitution of the Russian Federation witness immunity
— Part 2 173 Code of Criminal Procedure
entry in the interrogation protocol about refusal to testify
— P.
Plenum No. 51 announcement only if the right of refusal was explained
Interrogation of accomplices
Interrogation of an accomplice
may not be possible if it affects 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,
Url Additional information:
- Clause 1 Part 1 276 Code of Criminal Procedure
contradictions in testimony early testimony is made public
— clause 11
Plenum No. 55 checks all the defendant’s testimony (old and new)
- including in the event of his subsequent refusal of this testimony, with the exception of the case provided for in paragraph 1 of Part 2 of 75 of the Code of Criminal Procedure;
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Right to present evidence
(normative base)
- clause 4, part 4 47 Code of Criminal Procedure
right of the accused to present evidence
- Part 2 86 Code of Criminal Procedure
rights of participants in the process to present evidence
- Part 2.2 159 Code of Criminal Procedure
evidence cannot be refused
— 286 Code of Criminal Procedure
introduction of new documents at the court hearing
— P.
Plenum No. 51 ensuring the rights of the parties to present evidence
Appealing a refusal
- clause 3.1
Plenum No. 1, refusal of evidence cannot be appealed under
Article 125 of the Code of Criminal Procedure
- Part 2 389.2 of the Code of Criminal Procedure
The court's refusal of a petition cannot be appealed until the final decision.
4).
present evidence;
Url Additional information:
- Part 2 86 Code of Criminal Procedure
right of the accused to collect evidence
- Part 2 159 Code of Criminal Procedure
a request for investigative actions cannot be refused
5).
submit applications
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SITUATIONS from practice
Prosecutors substituted
each other, the right to challenges may be violated
and file challenges;
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— Part 2 18 Code of Criminal Procedure
the right to act - in one’s native language
6). give evidence and explain himself in his native language or a language he speaks;
Url Additional information:
— Part 2 18 Code of Criminal Procedure
right to a free translator
7). use the help of a translator for free;
Url Additional information:
- Part 1 16 Code of Criminal Procedure
the accused has the right to defend himself with the help of a lawyer
Two different rights
Right to defense
- these are two different rights (to self-defense and to the assistance of a defender)
8). use the help of a defender,
Url Additional information:
- Part 4 132 Code of Criminal Procedure
payment to the defender if he refuses from the budget
- Part 6 132 Code of Criminal Procedure
in case of property insolvency at the expense of the budget
including free of charge in cases provided for by the Criminal Procedure Code;
Url Additional information:
- Part 2 46 Code of Criminal Procedure
meeting with a defense lawyer before the interrogation of the suspect
- clause 9, part 4 47 Code of Criminal Procedure
the right of the accused to have confidential meetings with a defense lawyer
- Part 4 92 Code of Criminal Procedure
meeting with a defense lawyer before the first interrogation of the suspect
- clause 4, part 2 389.17 Code of Criminal Procedure
violation of the right to have the assistance of a defense lawyer
- Art. No. 103-FZ visits with a defense lawyer in a pre-trial detention center
- paragraph 16
Plenum No. 29 meeting with a lawyer via video conferencing
The right to see a defense lawyer
Dating with a protector
, violation of the rights of the accused to defense (
clause 9, part 4, 47 of the Code of Criminal Procedure
)
9). have meetings with the defense lawyer alone and confidentially,
Url Additional information:
- part 1 173 of the Code of Criminal Procedure
first interrogation of the accused immediately upon filing of charges
- including before the first interrogation of the accused, without limiting their number and duration;
Url Additional information:
- Art. No. 103-FZ the right to a meeting with a notary
9.1) from the moment of choosing a preventive measure in the form of detention or
house arrest, have meetings without limiting their number and duration with a notary in order to certify the power of attorney for the right to represent the interests of the accused in the field of business activity.
At the same time, it is prohibited to perform notarial acts in relation to property, cash and other valuables that may be seized. 10). participate, with the permission of the investigator, in investigative actions carried out at his request or at the request of his defense attorney or legal representative,
Url Additional information:
- Part 6 166 Code of Criminal Procedure
The protocol is presented to all participants for review
— get acquainted with the protocols of these actions and submit comments on them;
Url Additional information:
- Part 1 198 Code of Criminal Procedure
rights in forensic examination
eleven). meet with:
Url Additional information:
- Part 3 195 Code of Criminal Procedure
the accused is familiarized with the decision
—
resolution on the appointment of a forensic examination,
Url Additional information:
- clause 4 part 1 198 Code of Criminal Procedure
right to ask for additional questions
- ask questions to the expert,
Url Additional information:
- part 1 206 of the Code of Criminal Procedure
presenting a report to the accused
— and get acquainted with the expert’s opinion;
Url Additional information:
— 217 Code of Criminal Procedure
familiarization with the case of the accused and the defense lawyer
12). upon completion of the preliminary investigation, get acquainted with all 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;
Url Additional information:
— 124 Code of Criminal Procedure
complaint to the prosecutor, head of the investigative body
— 125 Code of Criminal Procedure
appeal to the court at the preliminary investigation stage
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;
Url Additional information:
- Part 2 27 Code of Criminal Procedure
the consent of the accused is required to terminate the case
- Part 3 213 Code of Criminal Procedure
consent of the accused in the order to dismiss the case
- paragraph 21
Plenum No. 19 mandatory consent of a person to terminate a case
— P.
Plenum No. 51, the court must explain the consequences of termination of the case
- paragraph 25
Plenum No. 19, if the person agrees to terminate, the case is terminated
- paragraph 25
Plenum No. 19 in case of disagreement - sentence with exemption from punishment
Agreement
Person's consent to termination
, two options for court decisions (
clause 25
of Plenum No. 19)
15). object to the termination of the criminal case on the grounds provided for in Part 2 27 of the Code of Criminal Procedure;
Url Additional information:
Debate
Debate of the defendant
: selection of materials for protection
Replica
Replies in court
hearing on a criminal case
The last word
The last word
defendant: selection of materials for defense
16). participate in the trial of a criminal case:
- in the courts first,
- second,
- cassation,
— supervisory authorities,
Url Additional information:
- Part 4 108 Code of Criminal Procedure
When taking into custody, the participation of the accused is mandatory
- as well as in the consideration by the court of the issue of election in relation to his preventive measure,
— and in other cases provided for in clause 1, clause 2, clause 3
,
clause 10 part 2 29 Code of Criminal Procedure.
Url Additional information:
- Part 7 259 Code of Criminal Procedure
filing a petition to familiarize yourself with the minutes of the meeting
17).
get acquainted with the protocol and audio recording of the court hearing and submit comments on them;
Url Additional information:
— Part 1 127 Code of Criminal Procedure
complaints against decisions of the first instance in accordance with Chapters 45.1 and 47.1
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;
Url Additional information:
- Part 2 399 Code of Criminal Procedure
participation of the convicted person in matters of execution of the sentence
20). participate in the consideration of issues related to the execution of the sentence;
Url Additional information:
— clause 2
Plenum No. 29 the right to defend oneself by any legal means
21). defend yourself by other means and methods not prohibited by the Criminal Procedure Code.
Url Additional information:
- P.2
Plenum No. 29 rights cannot be reduced due to the participation of a defense lawyer
The participation of a lawyer does not reduce the scope of rights
Can't be
the scope of rights due to the participation of a defense lawyer has been reduced
5) Participation in a criminal case of a defense attorney or
legal representative of the accused does not serve as a basis for restricting any right of the accused.
6) 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 paragraph 3, paragraph 4, paragraph 7, paragraph 8 of part 4 of this article, if the interrogation is carried out without the participation of a defense lawyer.
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