Features of document preparation
The procedure for drawing up a report on the detection of signs of a crime is regulated by Art. 143 of the Code of Criminal Procedure of the Russian Federation.
According to its contents, the document consists of:
- law enforcement officers;
- employees of operational investigative units;
- employees of the bodies of inquiry, prosecutor's office and preliminary investigation.
Drawing up official documentation of this type is the responsibility not only of employees authorized to initiate criminal cases, but also of other employees of the Ministry of Internal Affairs who witnessed a violation of the law. Regardless of time, position, location on the territory of the Russian Federation, every police officer is obliged to take measures to suppress the crime and report to the nearest police unit as soon as possible.
Many people confuse a report with a statement. Unlike a statement, the report does not contain demands to prosecute and punish the perpetrator. The document shows only the circumstances of the incident and the persons involved. It should also be noted that the report is drawn up on the basis of a message about the commission of a crime, and does not lay out the essence of the message in the report.
Article 143 of the Code of Criminal Procedure of the Russian Federation states that a report can be evidence in a case, but only if it is certified by the signature of a law enforcement officer and contains comprehensive information about the signs of a violation, as well as the source of the information received. Without identifying a specific source, a police officer's written report will not be admissible evidence.
The exception is information about the source, which contains state secrets; such data cannot be fully indicated in the report. In this case, a written denunciation serves as a reason for starting criminal proceedings, but is not evidence in the case.
The procedure for filing a statement of crime under the Code of Criminal Procedure of the Russian Federation, Article 141
In Art. 143 of the Code of Criminal Procedure of the Russian Federation with comments from the current edition sets out the principles of drawing up and submitting a report on the commission of a crime:
- The document can be drawn up after a report of an impending or committed crime. There is an exception to this point - sometimes, a report can be filed by an employee participating in operational-search activities who has determined the fact of preparation for a crime. In order to prevent a serious violation of the law, criminal proceedings may be initiated, for example, if the message contains the fact of preparation for a terrorist act.
- The denunciation sets out exclusively the objective side of the crime.
- Initially, it is necessary to verify the reliability of the information by interviewing witnesses, analyzing evidence, and only after that, if there is sufficient data, draw up a report on the incident.
- The mere fact of reporting a crime is not grounds for initiating proceedings. There are cases when the report on the crime committed contains no signs of violation and it is impossible to initiate a case.
If a police officer himself has become an eyewitness to a criminal act, he cannot conduct an investigation into the case, but is subject to recusal. The fact is that there is a need to interrogate him as a witness. The same applies if the police officer who reported the crime is an interested party. He cannot state his demands in the report.
That is why, in addition to reporting the incident, he must submit a written statement about the incident with demands to bring the offender to justice. Initially, a report is recorded, and then a statement. From the moment the application is registered, the employee who filed the report will appear in the case as a victim.
How to correctly fill out a protocol on an administrative offense - recommendations
We fill out the protocol correctly.
RECOMMENDATION:
If you do not agree with the alleged violation, then proceed as follows:
— Do not get into the traffic police car to fill out a protocol.
You have no such obligation. The inspector will not fall apart if he carries a piece of paper weighing 30 grams from his car to yours. Moving yourself into a traffic police patrol car will not mitigate your punishment in any way.
— When drawing up a protocol, indicate only your place of residence
to all other questions like “where do you work?”, “how much do you earn?” answer like this:
“I will provide this information only to the investigator for the interrogation report”
— While the inspector is filling out the protocol, take a photo of the place of the “violation”
You can even use your mobile phone if you don’t have a camera with you. 4-6 pictures from different angles
The inspector handed you a protocol to fill out, then proceed as follows:
1) Ask the inspector - “Will they still make entries in the protocol?”
- if “yes”, then return the protocol to the inspector - let him add it
2) If the inspector has not filled in the “witnesses” column, feel free to put a large Z
- if witnesses are included, but you do not observe them, demand that they be presented to you
— if the inspector’s partner(s) are witnesses, demand that they present their official ID. Check with the data in the protocol. If your request is denied, call “02” and report a violation by the inspector.
3) In the column “explanation of the person...” it is necessary to make an entry:
“I don’t agree with the violation. Didn't violate any traffic rules. I need the help of a lawyer.
There was no plan drawn up.” The rest is at your discretion, just short.
If you have a DVR, this is a huge plus. Then write:
“I have a video recording from the motion recorder”
4) Do not touch the column “attached to the protocol”
5) In the column “I have read the protocol...” make an entry: “Rights not explained”
this is the case if the inspector did not verbally explain Article 25.1 of the Code of Administrative Offences. Himself
Don't ask for a transcript. It is advisable that by this moment in the recorder
the memory card does not run out, because you will hear a lot of “interesting” things.
6) Column “Please send the protocol...”
filled in when you are in another city (region)
by doing this you are requesting the forwarding of documents from the APN place to your place of residence
or vehicle registration (see Chapter 27 “You violated traffic rules in another city”)
7) After you fill it out, separate the copy yourself and put it
in your pocket, give the original to the inspector. After this, we silently endure the inspector’s screams.
No additions by the traffic police inspector after your painting.
Supposedly it is necessary to set a time and place for the “debriefing”. Inspector - You yourself are clear
They said they filled everything out. Notify about the place and time of the hearing
me with a summons from the traffic police department.
9) Take your documents and leave. Next, send a complaint for action
IDPS, to the prosecutor's office. They don't give you documents? — Call “02” (112).
EXPLANATION:
It depends on your correct and deliberate actions when drawing up the protocol whether you will be punished or not.
Do not get into the traffic police car to fill out a protocol. You have no such obligation!
While the traffic police inspector, by the sweat of his brow, is preparing a protocol, do not waste time. Take photographs of the APN site. Later (by choosing 2-3 successful photographs), attach these photos to the complaint to the prosecutor’s office, making sure to fill out Appendix No. 28. At the same time, there is no need to be “ashamed” of the inspector at all - we are talking about collecting evidence for further appeal and releasing you from liability. Feel free to take photographs.
The protocol must be drawn up immediately (Article 28.5 of the Code of Administrative Offenses “Time limits for drawing up a protocol on an administrative offense”), and if you are forced to wait, then on the part of the inspector this is an administrative offense (Article 12.35 of the Code of Administrative Offenses “Illegal restriction of the rights to drive and operate a vehicle ").
If the inspector unreasonably delays the process of drawing up a protocol, then you can politely ask him to draw up a protocol of your detention, making it clear that the inspector has no grounds for detention. And declare your intention to call “02”
Plenum of the Supreme Court of March 24, 2005, paragraph 13 “When considering cases of administrative offenses, the judge must proceed from the principle of the presumption of innocence of the person against whom the proceedings are being carried out, enshrined in Article 1.5 of the Code of Administrative Offenses of the Russian Federation. The implementation of this principle is that a person brought to administrative responsibility is not obliged to prove his innocence; guilt in committing an administrative offense is established by judges, bodies, officials authorized to consider cases of administrative offenses. Irremovable doubts about the guilt of a person brought to administrative responsibility must be interpreted in favor of this person.” This is in theory. In practice, in the administrative process there is no prosecutor, and his functions are assumed by the examiner. The protocol is the main evidence of your guilt (Article 26.2 of the Administrative Code). It largely depends on how it is drawn up: whether you will be punished or not. Whether the inspector is right or wrong is a deep shame for him, because now his monetary income has little bearing on whether he acts legally or not.
The contents of the protocol on an administrative offense are set out in detail in Art. 28.2 Code of Administrative Offenses of the Russian Federation. This protocol indicates: the date and place of its preparation, position, surname, name, patronymic of the person who compiled the protocol, information about the identity of the offender, the place and time of commission and the essence of the administrative offense, a normative act providing for liability for the offense; names, addresses of witnesses and victims, if any.
Once you receive the protocol in your hands, you need to read it carefully.
Any data incorrectly written by the inspector is your further advantage. For example, the last name (place of residence, car brand) is indicated with a grammatical error. Such errors cast doubt on the facts presented by IDPS. Remember that the inspector can snatch the protocol from your hands at any time, rush it, etc. Therefore, make it a rule to fill out the fields in the protocol while sitting in your own car.
Then look at what you are signing for. Find the place where you sign for an explanation of your rights and responsibilities, this column is marked as follows: “I have read the protocol, the rights and responsibilities have been explained to me...”. There is no need to ask the inspector to do this, if the inspector has not explained to you (orally) the rights and obligations provided for in Article 25.1 of the Administrative Code, then instead of signing, write “Rights not explained.” This is a direct indication of a violation of procedural rules. It is not uncommon that, on the basis of such facts, the court does not accept the case for proceedings. The “read on the back” option is not applicable in this case. It is not your responsibility to read them, it is their responsibility to explain them to you! It's a rare inspector who can do this.
In the person’s explanations, it is imperative to write “I do not agree with the violation.” You have the right to put this phrase in Article 1.5 of the Administrative Code “Presumption of Innocence” and Article 51 of the Constitution of the Russian Federation “No one is obliged to testify against himself...”. It doesn’t matter at all that the violation occurred right “in front of” the inspector. It is his responsibility to prove, by legal means, that a violation occurred. Let him work for a salary from our taxes. Later, in a calm atmosphere, preferably with a defender, you will figure out whether there was a violation at all.
The second mandatory phrase in the explanation: “I require the help of a lawyer.”
Another common example of violation of procedural rules. The inspector tells you that you will invite a lawyer to court later, but here and now it is completely unnecessary. Of course, the inspector can be understood; the presence of a legally competent defense lawyer at the scene of the violation means the absence of proposals to “agree” and further headaches when writing reports upon request from the prosecutor’s office on the merits of your complaints. In this case, the inspector is openly deceiving you. Article 25.5 of the Code of Administrative Offenses “Defender and Representative” gives the right to a lawyer to be present. Unfortunately, the law does not regulate the waiting time for your lawyer. If he managed to arrive before you gave the inspector the signed protocol, then good. If not, then in your complaint to the prosecutor’s office, then indicate that the inspector refused to receive legal assistance.
For example, you expect the defender to arrive in 15 minutes. Then you can play for time by slowly filling out the protocol or talking with the inspector about your disagreement with the violation. You should not require a lawyer if you agree with the violation, and writing a protocol and resolution is an empty formality, because this is the procedure for a fine of more than 100 rubles.
The third obligatory phrase in the explanations: “The scheme was not drawn up” if there was none. Otherwise, later the diagram may appear with a comment from the traffic police that you refused to sign. If the diagram is drawn up in one copy, write: “A copy of the diagram is refused.” When charged with driving into oncoming traffic, a diagram with your comments will be a very useful documentary appendix to the protocol.
As an example: an inspector hid one and a half kilometers from a section of the road where overtaking is prohibited. He observes everything that happens through army binoculars, which are in no way a certified device used in military service. And this is a violation of Order No. 185 of the Ministry of Internal Affairs, in particular, Article 46 “The use of technical means not provided for by the standard regulations when controlling traffic is not allowed”
The use of binoculars is not listed in any instructions. Therefore, this evidence was obtained in violation of the law. When drawing up a diagram, the inspector will have to indicate in which place on the road the violation was committed. It should also indicate where the inspector himself was at that time. And the picture will become clearer. A photo of an inspector with binoculars on his chest is a powerful argument when considering a case in court. The diagram is one type of evidence of your guilt, and its absence is another violation of procedural rules by the inspector.
In addition to the diagram, other documents can be attached to the protocol. For example, the protocol handed over to you for signature has already been completed in full, incl. the date of “debriefing” in the Department of Administrative Practice is indicated. No one forbids you to write a petition to postpone the consideration date. Write down in the protocol that a petition is attached to it. It is unlikely that the inspector will immediately write a ruling that the application is denied and will be able to comply with its form (Article 29.12 of the Code of Administrative Offenses), and the big question is whether he has the right to consider the application. Does his position allow this? An oral definition will not suit you, because... it must be signed by the inspector (clause 29.12 clause 3 of the Administrative Code).
Demand that your passengers be included in the protocol as witnesses. Article 25.6 of the Code of Administrative Offenses states that “any person who knows something about the case can act as a witness in the case.” If the inspector refuses to enter them into the protocol, claiming that they are interested parties, enter them into the protocol in your own hand - in the column “explanation of the person...”. Interested persons under the Code of Administrative Offenses may be witnesses, experts, but not witnesses.
If the inspector did not include his witnesses in the protocol, put Z in these lines. Again, another plus in your favor. But be prepared to listen to him grumble that you shouldn’t have done this. Don't worry - there is no penalty for this. This is only a “mistake” by the inspector. But if the inspector filled out the witnesses column, but there was no real presence, demand that they be shown to you. After refusing this, record this fact in the column “explanations of the person...”. But it’s better to call “02”.
When an inspector presents “dummy” witnesses, he commits a criminal offense under Art. 292 of the Criminal Code of the Russian Federation “Official forgery”. This article provides for liability for an official entering knowingly false information into official documents, in the form of imprisonment for up to two years.
If the inspector, as witnesses, includes his partner (or two) in the protocol, it is imperative that you familiarize yourself with the details of their official ID and check them with the protocol. The catch here is this: the inspector fills out the data of the “witnesses” he had prepared long ago, and he tells you that these are the data of my service partners - and by the way, that’s what they are.
Do not write stories like “I thought it was possible”, “I didn’t comply due to severe frustration”, “I drove quickly because the car is powerful” in the protocol. Express your point of view on the accusation and the actions of the inspector clearly, briefly and concisely. Never write anything in the protocol under the dictation of a traffic police inspector. If you doubt what exactly you need to write, then it’s better not to write anything. Later, it’s better to express your point of view on paper with a lawyer in the form of a complaint to the prosecutor’s office and the traffic police.
Be sure to sign the protocol so that the inspector does not write unnecessary things into it, and immediately, without asking the inspector’s permission, take your copy of the protocol.
Reasons for drawing up
A police officer can draw up an official denunciation on the basis of a written statement from a citizen who has submitted information about a crime, on the basis of an oral report that took place, information obtained in the process of operational-search activities, as well as facts revealed during the criminal investigation of another case. Police officers can even learn about the commission of a crime from the media, but they must carefully check all facts for authenticity before filing a report.
A crime can be reported even by telephone. The police officer will be required to file a report even if the applicant refuses to submit a written statement, although concealing criminal activity is a criminal offense, this should be remembered.
After the report is completed, it is submitted to management for review. The duration of the inspection is 10 days; in particularly difficult situations, the inspection time can be extended to 20 days. If the facts are confirmed, criminal proceedings and pre-trial investigation begin. If the fact of a crime is not confirmed, the initiation of a case is refused. There are a number of situations when a case can be sent to another subordinate body for investigation, since the competence of the body to which the report was received does not include such internal checks.
It will be interesting to know that a report on the detected signs of a crime can be filed during the trial based on an oral statement from any of the parties to the trial. All information is recorded in the minutes of the meeting, and its copy is notarized and sent to law enforcement agencies in the form of a report. This information is again checked, and if confirmed, the course of the trial can radically change.
The procedure for considering reports of a crime and the timing of initiating a case under the Code of Criminal Procedure of the Russian Federation, Article 144
