A special procedure for considering a criminal case. In what cases is a special procedure for considering a criminal case in court assigned: grounds and procedure Conditions for considering a criminal case in a special procedure

PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

RESOLUTION

ON THE APPLICATION OF SPECIAL ORDER BY COURTS

TRIAL CRIMINAL CASES

In connection with the issues that have arisen in judicial practice on the application of a special procedure for judicial proceedings, the Plenum of the Supreme Court of the Russian Federation decides to give the courts the following clarifications:

1. To draw the attention of the courts to the inadmissibility of limiting the rights of participants in court proceedings when considering criminal cases in a special order and the need to comply with the principles of criminal proceedings when resolving them.

2. When considering the issue of the possibility of making a court decision on a petition of the accused to issue a verdict without conducting a trial in a general manner, the courts should establish whether the necessary conditions for this exist in the criminal case. According to the requirements of the norms of Chapter 40 of the Criminal Procedure Code of the Russian Federation, such conditions should be considered: a statement of the accused about his consent with the charge brought; the statement of such a request in the presence of a defense lawyer and during the period established by Article 315 of the Code of Criminal Procedure of the Russian Federation; the accused is aware of the nature and consequences of the petition he has made; the absence of objections from the public or private prosecutor and the victim against the consideration of the criminal case in a special order; accusing a person of committing a crime, the punishment for which does not exceed 10 years in prison; the validity of the accusation and its confirmation by the evidence collected in the case; understanding by the accused of the essence of the charge and full agreement with it; absence of grounds for termination of the criminal case.

3. When deciding on the possibility of applying a special procedure for trial in a criminal case, it should be borne in mind that the provisions of Chapter 40 of the Criminal Procedure Code of the Russian Federation indicate the conditions for passing a sentence without a trial in a general manner, and not the conditions for assigning a criminal case for consideration. Therefore, if there is a petition from the accused for the application of a special procedure for making a court decision and there are no circumstances that prevent the investigation of a criminal case in a special procedure, the judge, when scheduling a court session, decides to consider the case in a special procedure.

If later in the course of the court session it is established that all the conditions have been met, the court continues to consider the criminal case in a special manner. In the event that in the case there are no conditions necessary for passing a sentence without conducting a trial in a general manner, the court, in accordance with part 3 of Article 314 and part 6 of Article 316 of the Code of Criminal Procedure of the Russian Federation, makes a decision to terminate the special procedure for the trial and to appoint consideration of a criminal case in a general manner.

4. Failure by the preliminary investigation bodies of the obligation imposed on them by part 1 of Article 11 and paragraph 2 of part 5 of Article 217 of the Code of Criminal Procedure of the Russian Federation to explain to the accused the right to petition when familiarizing himself with the materials of the criminal case on the application of a special procedure for the trial entails a violation of the right of the accused to defense and in accordance with Clause 5 of Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation is the basis for holding a preliminary hearing to resolve the issue of returning the criminal case to the prosecutor.

If, in the course of a preliminary hearing held with the participation of the accused, his defense attorney, the prosecutor and the victim, it is possible, subject to the conditions specified in paragraph 2 of this Resolution, to restore the rights of the accused, the judge, at the request of the accused, makes a decision to schedule a hearing in a special procedure. If it is impossible to eliminate the violation of the criminal procedure law committed during the preliminary investigation, the case shall be returned to the prosecutor.

In accordance with the requirements of Part 2 of Article 315 of the Code of Criminal Procedure of the Russian Federation, the accused has the right to file a petition for a verdict without a trial at the time of acquaintance with the materials of the criminal case and at a preliminary hearing, when it is mandatory in accordance with Article 229 of the Code of Criminal Procedure of the Russian Federation, therefore, a petition for the application of a special the order of the court proceedings can be satisfied only if it is declared before the appointment of the court session.

5. Within the meaning of paragraph 22 of Article 5, paragraphs 4, part 2 of Article 171 and part 1 of Article 220 of the Code of Criminal Procedure of the Russian Federation in relation to a special order of trial under the charge, with which the accused agrees, when making a request for a sentence to be passed without a trial in a general manner, one should understand the factual circumstances of the offense by the accused, the form of guilt, the motives for the commission of the act, the legal assessment of the offense, as well as the nature and amount of harm caused by the act of the accused.

6. In accordance with Part 1 of Article 314 of the Code of Criminal Procedure of the Russian Federation, a special procedure for court proceedings can be applied only in cases of crimes, the punishment for which does not exceed 10 years in prison.

7. If several persons are accused in a criminal case, and only a few of them filed a petition for a sentence without a trial, or at least one of the accused is a minor, then if it is impossible to separate the case against the persons who filed a petition for a special procedure for the trial, and minors in separate proceedings, such a case in relation to all accused should be considered in a general manner.

8. Criminal cases of both public and private-public and private prosecution can be considered in a special order. Taking into account the peculiarities of legal proceedings in cases of private prosecution, a petition for a special procedure for judicial proceedings on them may be filed from the moment the person is served with the victim's statement on bringing him to criminal responsibility until the judge makes a decision on the appointment of a court session.

At the same time, the magistrate, in accordance with the requirements of Article 11 of the Code of Criminal Procedure of the Russian Federation, when serving an application, in the presence of a defense attorney, is obliged to explain to the person in respect of whom it is filed the right to apply for the application of a special procedure for judicial proceedings and find out from him whether he wants to exercise this right, and if conducting a conciliation procedure - to find out from the victim whether he objects to the satisfaction of the petition of the person brought to justice.

9. When deciding on the appointment of a criminal case in a special order based on the results of the preliminary hearing, as well as on the termination of a special procedure for the trial and the appointment of a criminal case in a general procedure in accordance with Part 6 of Article 316 of the Code of Criminal Procedure of the Russian Federation, it is necessary to comply with the provisions of Part 4 of Article 231 Of the Code of Criminal Procedure of the Russian Federation, the requirement to notify the parties about the place, date and time of the court session at least 5 days before its start.

Notification of participants in criminal proceedings is allowed, including by means of an SMS message if they agree to be notified in this way and when the fact of sending and delivering an SMS notification to the addressee is recorded. The fact of consent to receive an SMS notification is confirmed by a receipt, in which, along with the information about the participant in the proceedings and his consent to the notification in a similar way, the mobile phone number to which it is sent is indicated.

10. In accordance with Article 316 of the Code of Criminal Procedure of the Russian Federation in a case considered in a special order, during the court session, the circumstances characterizing the personality of the defendant and the circumstances mitigating and aggravating the punishment can be investigated.

Since the procedure for such a study is not limited by Chapter 40 of the Criminal Procedure Code of the Russian Federation, it can be carried out by all methods provided for by the criminal procedure law, including by examining additionally submitted materials, as well as by interrogating witnesses on these circumstances.

11. To draw the attention of the courts to the inadmissibility of considering criminal cases in a special order without the defendant, his defense lawyer, public or private prosecutor, since the possibility of applying a special procedure for making a court decision depends on the position of the indicated participants in the trial. At the court session, you should also make sure that the victim, who has been duly notified of the place and time of the court session, including by means of an SMS message if he agrees to be notified in this way and when the fact of sending and delivery of an SMS notification to the addressee, has no objections to a petition filed by the accused for a verdict without a trial in accordance with the general procedure.

Since, by virtue of part 5 of Article 316 of the Code of Criminal Procedure of the Russian Federation, only circumstances characterizing the personality of the defendant and circumstances mitigating and aggravating the punishment can be investigated, the court has no right to deny the parties the opportunity to participate in the debate, and the defendant in the last word to speak out, including on these issues, in the manner prescribed by the Code of Criminal Procedure of the Russian Federation.

12.Chapter 40 of the Code of Criminal Procedure of the Russian Federation does not contain provisions prohibiting the adoption in a case considered in a special order, other than a conviction, court decisions, in particular, the deed by the accused may be reclassified, and the criminal case itself is terminated (for example, due to the expiration the statute of limitations, changes in the criminal law, reconciliation with the victim, amnesty, the public prosecutor's refusal to prosecute), etc., if this does not require a study of the evidence collected in the case and the factual circumstances do not change.

If a civil claim is filed in a criminal case considered in a special order, then, if there are appropriate grounds, it may be dismissed, the proceedings on it may be terminated, it may be denied, or a decision has been made on the claim to transfer it for consideration in the civil procedure. legal proceedings, if this does not entail a change in the factual circumstances of the case.

13. It should be borne in mind that the requirements specified in part 7 of Article 316 of the Code of Criminal Procedure of the Russian Federation on assigning to the defendant, when considering a case in a special order of punishment, no more than two-thirds of the maximum term or amount of the most severe type of punishment provided for a committed crime, apply only to cases of consideration criminal cases in the manner prescribed by Chapter 40 of the Code of Criminal Procedure of the Russian Federation (part 5 of Article 62 of the Criminal Code of the Russian Federation). When imposing a punishment, reference to part 7 of Article 316 of the Criminal Procedure Code of the Russian Federation is not required, the punishment is imposed in accordance with part 5 of Article 62 of the Criminal Code of the Russian Federation.

(see text in previous edition)

part 1 of article 62 of part 5 of article 62 of the Criminal Code of the Russian Federation, then - part 1 of article 62 of part 1 of article 62 of part 5 of this article;

if there are grounds provided for by Article 64 of the Criminal Code of the Russian Federation, the law does not provide for any restrictions on the application of this norm in cases considered in the manner prescribed by Chapter 40 of the Code of Criminal Procedure of the Russian Federation;

if there are grounds provided for by Article 66 of the Criminal Code of the Russian Federation, the provisions of Article 66 of the Criminal Code of the Russian Federation are applied first, then - part 5 of Article 62 of the Criminal Code of the Russian Federation. When applying the provisions of Part 5 of Article 62 of the Criminal Code of the Russian Federation, two-thirds are calculated from the maximum term or amount of punishment that can be imposed taking into account the provisions of Article 66 of the Criminal Code of the Russian Federation;

if there are grounds provided for by both part 1 of Article 62 of the Criminal Code of the Russian Federation and Article 66 of the Criminal Code of the Russian Federation, the provisions of Article 66 of the Criminal Code of the Russian Federation are applied first, then part 5 of Article 62 of the Criminal Code of the Russian Federation, after that - part 1 of Article 62 of the Criminal Code of the Russian Federation. When applying the provisions of Part 1 of Article 62 of the Criminal Code of the Russian Federation, two-thirds are calculated from the maximum term or amount of punishment that can be imposed taking into account the consistent application of the provisions of Article 66 and Part 5 of Article 62 of the Criminal Code of the Russian Federation;

if there are grounds provided for in Article 68 of the Criminal Code of the Russian Federation, one third is calculated from the maximum term of the most severe type of punishment provided for by the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation, when sentencing for a completed crime or from the maximum term of the most severe type of punishment that can be imposed taking into account the provisions of Article 66 of the Criminal Code of the Russian Federation for an unfinished crime;

if there are grounds provided for in Article 69 of the Criminal Code of the Russian Federation, - first, taking into account the requirements of Part 5 of Article 62 of the Criminal Code of the Russian Federation, determine the maximum term or amount of punishment that can be imposed in connection with the consideration of the case in a special order for each of the crimes committed, then the final punishment, the amount of which is determined on the basis of the term or amount of punishment for the most serious of the crimes committed, without regard to provisions

Judicial consideration of a case is one of the stages of criminal proceedings. During it, familiarization with the materials takes place, the opinions of the parties and experts are heard, the arguments of the participants are considered. The result is an indictment or acquittal. The law provides.

Key features

According to the provisions of the law, court proceedings are based on the principles:

Orality.
Glasnost.
Equality of the parties.
Objectivity.
Unchanged composition of the court.

Stages

The trial begins after a preliminary investigation. It consists of the following stages:

Preparation. During it first instance court plans and assigns follow-up activities.
Preliminary meeting. It is carried out at the request of the parties or to resolve the issue of a jury.
Hearing. In the course of it, the parties come forward, the criminal evidence, the accused has the last word, a ruling is passed.

Any party that does not agree with the verdict can challenge it. In this case, the case goes to the appeal. If the decision to challenge the verdict was made after its entry into force, then the complaint is sent to the cassation.

The status of the accused

The prosecutor, the investigator, the court must explain to the person his duties and rights, as well as ensure the ability to defend himself by all available means and methods. The status of the accused allows:

Know for what reason he is being held accountable.
Get a copy of the act on the application of a preventive measure.
Disagree with the prosecution, testify. The investigator interrogates the citizen immediately after the charge is brought.
Present evidence. The responsibility for collecting them lies with the authorized employees.
Submit taps.
Use (free of charge) the services of a defender.
Participate in investigative measures carried out at his request or at the request of a lawyer, with the permission of an authorized employee.
To get acquainted with the resolution on the examination, ask questions to a specialist.
Study the results of the investigation, make copies of the materials.
File a motion for a special hearing.

Goals

Manufacturing is aimed at:

Establishment or refutation of the fact of a crime.
Study of materials to ensure a legal assessment of the event from the point of view of legislation.
Making a decision on the innocence or guilt of the subject.

In the cases stipulated by the norms, it is allowed Let's consider it in detail.

Relevance of the issue

Many citizens who are brought to justice for the first time do not know how to act correctly if they agree with the charges brought against them. Difficulties arise due to the fact that individuals do not know. Meanwhile, it is of practical importance both for the accused and for the body authorized to conduct the proceedings.

Characteristic

Formulates various rights for the accused. If he agrees with the charges brought against him, and the maximum sanction for the act does not exceed 10 years in prison, he can choose the method of conducting the proceedings. This can be a standard procedure, the stages of which were discussed above, or a special procedure for considering a criminal case. The Criminal Procedure Code contains Ch. 40. It sets out the key provisions governing the special procedure. The conditions under which it is allowed to conduct proceedings not according to standard rules are determined by Art. 314 of the Criminal Procedure Code of the Russian Federation. Simply put, a special procedure is a type of production used in cases where a citizen fully admits guilt. It is the consent of the private / public prosecutor, as well as the victim, to the sentencing without trial.

Limitation

The maximum should not be more than 10 years. There are several relevant articles in the Criminal Code. These include, for example:

Theft (158th article).
Fraud (rule 159).
Embezzlement (Article 160).

For crimes such as murder (Article 105), causing serious harm to health, resulting in the death of the victim through negligence (Article 111, fourth part), more than 10 years are imposed. Respectively, criminal trial in any of these cases, it is carried out according to the standard procedure.

Nuances

It does not imply the deprivation of a citizen of the right to have the production materials that characterize him personally be examined. The authorized body can interrogate witnesses, examine medical records to determine if there are extenuating circumstances. In general, the court does not carry out a judicial investigation, does not interrogate the victim and other persons about the circumstances of the incident, does not examine evidence, written materials, does not appoint an expert examination, etc. The special procedure does not provide for adversarial proceedings, debate or other events.

The rule

The final choice of the procedure is carried out first instance court... In the legislation, a special prescription is established in this regard. Sentencing without trial is allowed if the authorized body is satisfied that:

The citizen understands the nature and consequences of his petition.
The application with the request was written by the accused voluntarily, after talking with the defense lawyer.

If these conditions are not met, the review will be carried out in a general manner. A similar result follows in the event that at least one participant in the proceedings receives an objection. It can be expressed by the prosecutor, defense lawyer, defendant, victim.

What code is it allowed to submit the application?

Criminal Procedure Code of the Russian Federation defines 2 points when an interested person can send a request:

When familiarizing with the materials of the completed investigation.
During the preliminary hearing.

It should be said that a preparatory meeting is not always held. Accordingly, the most appropriate moment will be to familiarize yourself with the results of the investigation.

Advantages

Consideration of Criminal Cases by Courts in a Special Order, as it was said above, is of practical importance both for the accused and for the bodies authorized to investigate. First of all, the legislator introduced a special procedure in order to save time. In general, production can be delayed for a fairly long period. At the same time, even the simplest proceedings extend over several hearings. Consideration of Criminal Cases by Courts in a Special Order carried out in 1-2 sessions. The authorized body is obliged to verify the validity and validity of the accusation, with which the subject agrees. When sentencing the convicted person, the punishment is mitigated.

That is, he is assigned 2/3 of the maximum amount of the most severe sanction for a crime. This relaxation is considered a key benefit of the procedure. Another advantage of the special order is the rule that the defendant is relieved of the compensation for costs provided for in Art. 131 of the Code of Criminal Procedure, including the costs of paying for the services of a lawyer participating in the proceedings by appointment. The corresponding provisions are fixed by the 316th article. Actually, these two aspects make up all the advantages of the procedure.

As practice shows, in the framework of the consideration of cases according to the general procedure, the courts rarely impose more than 2/3 of the maximum amount of sanctions. This is especially often the case in cases when a citizen is involved for the first time, and aggravating factors have not been identified. In this regard, lawyers recommend thinking carefully before agreeing to a special procedure, to be guided only by the rule that it is impossible to receive a punishment exceeding 2/3 of the maximum.

Negative moments

First of all, it should be said that the legislation does not prescribe the negative consequences that can be caused by the consideration of a criminal case in a special order. The disadvantages are manifested exclusively in practice. As mentioned above, in order to issue a sentence without trial, the authorized body must establish that the accusation with which the citizen agrees is justified. It must be supported by the evidence that has been collected. This circumstance acts as an additional guarantee of the person held liable. However, as the defenders note, one should not have any illusions about it.

This is due to the fact that in some cases it is not possible to determine the validity of the accusation. Let's look at an example. The court was considering a case on a crime committed by several previously agreed persons. It turned out that the proceedings of one of the citizens were referred to a separate proceeding. Subsequently, it was considered without hearing, in a special order. As a result, the subject was found guilty, and appropriate sanctions were imposed on him. After a while, consideration began with respect to the rest of the persons. But during the trial it was not possible to prove that they were members of a criminal group. Accordingly, this part of the charges was dropped from them. The same subject who had admitted guilt earlier, due to the choice of a special order, was deprived of the right to challenge his sentence, since he initially agreed with him.

conclusions

Considering the above, the following list of negative consequences can be presented:

To consider a case under special rules, a citizen must admit the charge in full. In fact, in this case, the person agrees with every word in the conclusion.
If the citizen disagrees with the verdict, he will not be able to challenge it. By agreeing with the accusation, the person loses the opportunity to subsequently appeal the factual circumstances, to prove innocence.

At the same time, the legislation provides for the right to challenge various procedural violations by authorized bodies or employees. A citizen can also appeal against a sentence due to its excessive severity (if too harsh sanctions are imposed).

More about the challenge

Often convicts turn to defense lawyers with a question related to the possibility of appealing against a sentence passed in a special order. This right is indeed provided for in the legislation. However, its implementation is significantly limited in comparison with the possibilities established for the general procedure for the consideration of cases. This is another negative consequence for the person who pleaded guilty. The condition under which the verdict can be appealed is determined by Article 317. The norm says that it is possible to challenge the decision in the appeal if the conclusions of the court, given in it, do not correspond to the factual circumstances established during the proceedings. This circumstance significantly narrows the scope of the dispute. The fact is that the defense side loses the opportunity to appeal the factual circumstances, which in many cases are themselves a valid reason for filing an appeal. The legislation allows challenging for other reasons as well. They are given in Art. 389.15. The grounds can be:

Significant violation of the law.
Misapplication of norms.
Injustice of the verdict, etc.

Meanwhile, in practice, appeals against decisions made in a special order are limited only to requests for mitigation of punishment. All these circumstances must be taken into account when filing a petition.

Conclusion

In practice, a situation arises that special proceedings are needed first of all by the prosecuting party. This is due to the following. Cases in which there are no high-quality supporting materials, thanks to this order, easily develop into accusations. When making a petition, you must first of all rely on factual circumstances, personal position, opinion agreed with a lawyer. Lawyers do not recommend hoping that the court will be able to understand everything. It is necessary to consider all the advantages and disadvantages of the procedure, to foresee the consequences. Particular attention should be paid to the limited possibility of a subsequent challenge of the sentence passed.

Considering it, the prosecution and the court itself will practically not fear the cancellation of the decision. The possibility of exercising the right to appeal against a sentence imposed in the framework of special proceedings is extremely small. Often not only the perpetrators themselves, but also their relatives turn to lawyers. They speak of disagreement with the verdict, in some cases persons begin to deny their involvement in the crime, indicate the presence of evidence. However, all these actions are unlikely to lead to anything. The maximum that can be achieved is a mitigation of punishment. However, the possibility of proceedings under a special procedure should not be ruled out. After all, a special order also has dignity. It is advisable to take them into account in cases where the crime really took place, and there is no point in refusing to be involved. If a citizen really repents of his deed, and the prosecution takes place for the first time, it is advisable to file a corresponding petition. In any case, before making a decision, it is necessary to consult with a lawyer. He, knowing all the legal subtleties, having practical experience, will be able to suggest the most correct way out of the situation. In many cases, you simply cannot do without the help of a lawyer.

To save energy, time and money for the fight against crime the legislator provides for a special procedure for considering a criminal case in court.

This is a special procedure that requires the individual's personal consent to the charges brought against him before being approved.

The special order significantly speeds up the trial. but it also has shortcomings, which it is important for the accused to learn about before making a decision.

What is a special order of trial

Within the framework of the Russian legal field, there is a certain procedure for the consideration of criminal cases by the courts. It involves the participation in the meeting of two warring parties - prosecution and defense. The court finds out the essence of the case from the arguments of the prosecutor, lawyer, witnesses, experts and other persons. The usual method is based on the principle of fairness of punishment, but takes a long time. A case may take years.

Definition: Special litigation is an alternative procedure.

It is much simpler than usual. It is applied exclusively by the courts of first instance (regional, magistrates and others).

In the course of the investigation of cases in a special order, the same goal is set - to determine the degree of guilt of the suspect. However, the investigative procedure is shortened with the consent of three interested parties:

the accused;
official and private prosecutors (prosecutors and victims).

A special procedure for criminal proceedings is applied in two cases described in the articles of the Criminal Procedure Code (Criminal Procedure Code of the Russian Federation). The legislator describes the conditions for the application of special proceedings as follows:

consent of the suspect with the prosecution (chapter 40 of the CCP);
conclusion of a pre-trial agreement with the investigation (chapter 41 of the CCP).

Introducing a special procedure into the legal field, the legislator pursued the following goals:

reduction of the time for the proceedings of the suspect's misdemeanor in a situation where the parties have no contradictions;
release of the working time of judges of first instance;
achieving fairness of the imposed punishments in an accelerated version.

Hint: The special procedure is to avoid some of the steps in the normal process.

So, in the course of considering criminal cases, the court does not delve into the subtleties and nuances of the circumstances of the violation of the law.

Legislative regulation

At the legislative level, a special procedure for considering criminal cases regulated by the Criminal Procedure Code of the Russian Federation.

Chapter 40 of Section X contains comprehensive information about this method of considering cases in criminal proceedings.

The chapter is divided into two parts:

the first presents the provisions regarding situations when the accused agrees with the charges brought against him (Art. 314 -);
the second contains provisions concerning an accused with whom a pre-trial cooperation agreement has been entered into (Articles 317.1 -317.9).

An explanation of the provisions presented in the Code of Criminal Procedure of the Russian Federation is contained in the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 60 of 05.12.2006.

Since the adoption of the legislative documents, amendments have been made to them. Thanks to them, they began to consider criminal cases in a special order in relation to criminals who received a term of up to 10 years in prison.

Until 2003 for such a right could count only those accused who faced a 5-year sentence.

Characteristics of the special order of trial

A special procedure in a criminal case is a specific proceeding that is carried out in a court of first instance.

It is characterized by the legal relations and activities of the participants aimed at establishing the guilt of a person for committing a crime in an abbreviated trial.

The leading role in the process is assigned to the magistrate or district court.

Tasks

The main tasks of the special procedure for considering a criminal case in court are:

simplification of the nature of criminal proceedings in court;
acceleration of the criminal process at the stages of judicial proceedings from the moment when the prosecutor takes the case to court;
reducing the workload on magistrates and district judges.

Since the person fully admits his guilt, the court has the opportunity to make a reasonable and lawful punishment without establishing the specific circumstances of the crime.

This relieves the judges, allowing them to focus on the consideration of more complex and voluminous criminal cases that cannot be considered in a special order.

Basis for application

The conditions under which a special procedure is approved in a criminal case are listed in Part 1 of Art. 314 of the Criminal Procedure Code of the Russian Federation... These include:

the consent of the accused, the victim and the prosecutor to sentencing without trial;
a clear understanding by the accused of the nature of the application of a special order and the consequences to which it will lead;
consideration of only those cases, the maximum punishment in which does not exceed 10 years in prison;
availability of comprehensive evidence of the legality and validity of the accusation;
lack of grounds for dismissing the case.

The judge must ensure that the collected evidence is sufficient to confirm the involvement of a citizen in a crime. If he doubts, he will not be able to pass a guilty verdict even if the defendant pleaded guilty.

When can be applied

According to Art. 314 of the Code of Criminal Procedure of the Russian Federation, it is possible to apply a special procedure for judicial review only in relation to those crimes for which a period of not more than 10 years has been assigned.

The Plenum of the RF Armed Forces No. 60 also says that when deciding on the appointment of a special order should proceed from the punishment that will be imposed on the accused according to the crime committed.

Other circumstances should not be taken into account (for example, an unfinished crime or a combination of various crimes).

Procedure for the appointment of a special production

In order to prevent pressure on the accused and violations of the principle of justice, the legislator described in detail the procedure for considering a criminal case within the framework of a simplified method. This provides for the following:

The suspect must declare the desire to apply the simplified scheme. He can do this in two cases: during the period of the inquiry and at the preliminary hearing.
The accused shall submit a request in writing. In the text, he asks for a special trial procedure. Moreover, the document must be endorsed by a lawyer.
The investigator is obliged to explain to the suspect what a special procedure for the trial is. In addition, the person is informed of the restrictions imposed on its use. The suspect's opinion is recorded in writing.
The accused's petition is considered by the prosecutor. The officer of this law enforcement agency is responsible for respecting the rights of the suspect when giving consent to the simplified procedure.

Attention: the suspect is given the right to refuse the submitted petition.

He can revoke the document during an investigation or preliminary court hearing. In such a case, the special procedure for litigation will be canceled. And the trial, with the consent of the accused, will continue in the usual way.

Criminal cases are considered somewhat differently from the usual procedure. The special procedure does not provide for the immersion of the court in all the nuances provided for in the criminal procedure. The court carries out the following procedures:

Establishes the identity of the accused.
Once again explains human rights, including the provision of the article of the Criminal Procedure Code of the Russian Federation on a special procedure.
Asks the parties about objections. If there are any, then a decision is made that the consideration of this criminal case in the court session will take place in the usual way.
Gives the floor to the prosecution to announce their position.
Asks the suspect's opinion. If the latter refuses to admit guilt, then the special procedure for production is canceled. Its application is possible only in criminal cases in which the guilt is recognized voluntarily. The hearing is postponed for five days and takes place in the usual way.
If the accused confesses to committing a criminal act, then the floor is again given to the prosecutor. The latter is obliged to provide a full description of the suspect in terms of convictions, addictions, marital status and other factors important for the court, including mitigating properties.
A debate is held between the parties, during which the prosecutor brings charges and asks for punishment, and the lawyer requests leniency.
The last word is given to the accused.
The court retires to the deliberation room.

If a case is heard on the guilt of a suspect who has entered into an agreement on cooperation with the investigation, then the sequence does not change. The court must make sure that neither party has any objection to the simplified procedure.

We talked in more detail about the varieties of guilt in criminal law here.

For your information: the victim often objects to the simplified hearing.

The fact is that article 316 of the Criminal Procedure Code contains a rule on the reduction of punishment for a criminal. This cannot exceed 2/3 of the maximum period.

The simplified procedure does not deal with all the circumstances of the crime. This imposes additional responsibility on the court. Indeed, according to the general principles of criminal law, punishment is imposed only if the judge is firmly convinced of the guilt of the person. The simplified procedure does not reveal the full picture of the offense. The judge may have doubts if the prosecution does not provide sufficient evidence. In such a situation, the court has the right to stop the session and change the order of its conduct.

Consideration of a criminal case does not always end with a verdict. The legislator does not limit the court to the type of decision to be made. However, the logic of criminal law leads to the following:

Punishment is imposed only when the court is fully convinced of the guilt of the person.
If in doubt, the court will schedule a general hearing.
He also acts if he comes to the conclusion that the suspect is innocent.

Thus, under a special procedure, a person can only receive a conviction. This means that it is logical to agree to the use of such, if there is no hope of justification. In practice, this is exactly what they do. If the lawyer does not see any clues to protect the client, then he advises to apply for a simplification of the review procedure. This allows:

save time and effort;
potentially reduce the term;
prevent the re-qualification of the article for a stricter one.

Separately, it is worth considering the limitation of the maximum punishment to ten years. This does not mean that a simplified procedure is impossible in case of accusation of a grave or especially grave offense. The court looks at the paragraph of the article indicated by the prosecutor. If the maximum term for an offense does not exceed 10 years, then a simplification of the method of consideration is possible. For example, ordinary kidnapping can be judged in a special way, but not qualified.

Stages of consideration of a case in a special order

A special procedure for the trial is governed by Art. 316 of the Criminal Procedure Code. It includes several stages.

Stage number 1: Preparation for the court session

Before the beginning of the session, the judge is obliged to establish the fact that the accused voluntarily agreed to a special hearing of his case, received the advice of a professional defense lawyer and fully understood the essence, nature and consequences of his decision.

It is not necessary to submit a petition with a corresponding request.

If the court at the preparatory stage reveals violations requirements for filing a petition or establishes that the accused or the prosecutor opposes a special order, his approval will be denied. In this case, the judicial investigation will take place as usual.

Stage number 2: Conducting a court session

The legislator does not establish clear rules on the composition of the court, which must conduct the proceedings in a special manner.

That's why in theory, a situation is possible in which the accused makes 2 petitions at once- on the introduction of a special order and on a collegial hearing of the case with the participation of three federal judges.

This is possible, since such a composition, in accordance with paragraph 3 of Part 2 of Art. 31 of the Code of Criminal Procedure of the Russian Federation, has the right to resolve criminal cases on grave and especially grave crimes. However, in practice, such situations are extremely rare.

When considering a case in a special order in accordance with Part 1 of Art. 31 of the Criminal Procedure Code of the Russian Federation the court session is held in the mode established in the court of first instance.

However, the procedure has its own characteristics:

Mandatory presence of the accused and his defense counsel or lawyer... The rule described in Part 4 of Art. 247 of the Criminal Procedure Code of the Russian Federation. It states that proceedings in a case of medium or small gravity can be conducted without the presence of the accused in the courtroom, if he has made a corresponding motion.
Mandatory participation of a public or private prosecutor... He should speak first, outlining the nature of the charges.
Interviewing the defendant and the victim... It is necessary to establish whether they understand the essence of the charges brought against them, whether they agree with them, whether they support the previously filed petition for the application of a special procedure for the consideration of the case.
Establishment by the Court of the Fact of Notification of the Victim of the Time and Place of the Proceedings in the Case- is carried out in case of his absence in the meeting room.

Since there is no judicial investigation, the judge does not assess the available evidence. However, the law requires compliance with the general rules for imposing a fair sentence. Therefore, at the initiative of the parties, the evidence is still being investigated.

In addition, it is possible to study data characterizing the personality of the defendant, mitigating and aggravating circumstances. For this, witnesses are interrogated, documents are examined.

The trial ends with a trial and the last word of the accused.

Stage 3: The verdict and its appeal

Consideration of a case in a special order provides for a conviction... On the other hand, in Ch. 40 of the Code of Criminal Procedure of the Russian Federation, there are no rules that prohibit making other decisions.

Therefore, in order to pass a guilty verdict, the judge must form a firm inner conviction that the defendant is guilty. It can only be based on consideration of the case materials and evidence, and not on guesswork.

If the court has doubts about the guilt of the defendant, he must issue a resolution to terminate the consideration of the case in a special order. A general proceeding will be scheduled, during which the collected evidence will be examined.

This is necessary for an acquittal.

A special procedure for considering a criminal case provides for milder sanctions: up to 2/3 of the maximum term of imprisonment or the amount of the most severe punishment.

After the pronouncement of the verdict, the judge explains to the defendant the possibility of appealing him in an appeal or cassation procedure.

In Art. 317 of the Code of Criminal Procedure of the Russian Federation, only one restriction is established... It is impossible to appeal due to the discrepancy between the conclusions of the judge contained in the verdict and the factual circumstances of the case, which are established by the court of first or appeal instance.

Cooperation agreement (pre-trial)

The parties to the defense and prosecution may conclude a special cooperation agreement... It agrees on the terms of responsibility of the accused (suspect) when he commits certain actions from the moment of initiation of a criminal case or presentation of charges.

The Criminal Procedure Law sets out the following requirements for the application for an agreement:

filing a petition by the accused (suspect) in writing with the signature of a defense attorney or attorney;
deadline statement- from the start of the criminal prosecution to the completion of the preliminary investigation;
information in the application about what actions the accused (suspect) undertakes to perform to facilitate the investigation, disclose the identities of accomplices, and search for missing property.

The prosecutor must consider the application within three days and issue a resolution on its satisfaction or refusal to satisfy it.

If a positive decision is made, then after the end of the preliminary investigation, the prosecutor issues a resolution in which he confirms the performance of the accused's obligations.

This document, together with the criminal case, then goes to the court, where the issue of approving a special procedure for the trial is decided.

Should I agree to a special procedure for the consideration of the case?

For the United States, some European countries, India and Israel, the practice of considering cases in a special order is not new. However, in Russia, this criminal law institution appeared relatively recently, and in 2019 it still requires improvements.

That's why before making a decision, the accused must assess all the pros and cons of a special consideration of a criminal case... No one has the right to force him to agree to such an order, since this is possible only on a voluntary basis.

Advantages of a special order

There are not so many advantages to the procedure, but some of them are important for the accused, for the employees of the judicial sphere, and for the state:

Reduced sentence... The defendant receives a penalty at least 1/3 less than the maximum possible.
Fast review of the case... Facilitates the work of judges and reduces the time the accused is held in custody.
Saving procedural and material resources... Plus for the state, which bears the corresponding costs.

Disadvantages of the procedure

Among the disadvantages of a trial in a special order are the following:

The need to fully admit the charge... In fact, this means agreeing with every word in the wording of the indictment.
Impossibility to appeal against the judgment regarding the factual circumstances of the case... After it is passed, the accused will not be able to prove that he did not commit a crime.

A special procedure for considering a case in court has been applied in Russia since 2009. It significantly speeds up the conduct of court proceedings and facilitates the work of judges.

This procedure makes it possible for the accused to alleviate their fate. and get lighter punishment.

However, to assert a special order recognition and rejection of the possibility of further "change your mind" is required and prove innocence in the crime.

Consequences of applying a special order

The result is encouraging - the accused will receive a milder sentence than under the general procedure, and in some cases will even escape punishment altogether.

According to the Code of Criminal Procedure of the Russian Federation, a special procedure for considering a criminal case also involves the imposition of a sentence. It does not assess the evidence. The verdict contains a description of the crime, as well as the judge's conclusions about the observance of the terms of the sentencing without a trial.

You can appeal the verdict within 10 days through the appeal.

One of the negative consequences of the application of a special procedure for considering a criminal case is the revision of the sentence. The reason - the citizen provided false information or hid important facts from the investigation. In such a situation, you should not count on leniency - the verdict will follow to the fullest extent of the law.

Refusal to consider a case in a special order

It is possible if the accused with whom the agreement was concluded:

reported only about his participation in the crime;
told about what the investigation already knows;
refused to testify against accomplices;
lied or did not fulfill the terms of the agreement.

In this case, the prosecutor issues a decision to terminate such cooperation. The court will consider the case in the general order.

The court has the right, on its own initiative, to refuse in a special procedure for considering a criminal case.

In addition, the refusal of a special procedure for considering a criminal case is possible if the defendant, the victim or the prosecutor does not agree with it.

The problem of applying a special order in practice

If we abstract from modern realities, it may seem that the consideration of the case in a simplified manner is an excellent opportunity for the defendants to receive punishment below the minimum amount established by the Criminal Code. As mentioned above, approximately 50% of criminal cases are dealt with in this order. But, if you think about it: how many defendants take such a step voluntarily? Of course, they are not forced under torture to file a petition for a free trial, but, realizing the futility of their position, they voluntarily agree to this step. This is facilitated by the colorful description of life behind bars performed by representatives of law enforcement agencies.

Not every person who has been “appointed” guilty is capable of resisting such pressure. There is no reason to doubt that innocent people are being investigated and then brought to court. According to official statistics, over the past three years, the number of those is 15,000, but the real figure is higher.

In theory, a lawyer should prevent consent to drawing up an application to consider the case in a simplified manner, but most Russians simply do not have the money to pay for his services, and the state-appointed lawyer is not interested in the problems of the ward. The number of acquitted clients does not greatly affect his salary.

Thus, we can say with confidence that the consideration of cases in a special order is not always an absolute boon for the accused. It is rather an opportunity to reduce the pressure of the flywheel of domestic justice.