Seroshtan V.V., Deputy Chairman of the Crimean district court Krasnodar Territory, candidate of legal sciences.
In order to observe effective judicial protection of human and civil rights and freedoms, the author believes, it is necessary to legislatively improve the mechanism of cassation appeal of a verdict in absentia by a defender and a convicted person.
It seems that the legislative regulation of cases when a court verdict can be passed in the absence of the defendant is far from perfect. She cannot meet the dictates of the time and the situation with long terms consideration of criminal cases within a reasonable time.
A significant number of criminal cases pending in the courts have been suspended due to the announcement of persons involved in criminal liability, wanted. Such criminal cases are sometimes suspended for years. The tracing system, the execution of which is entrusted to the internal affairs bodies, is clearly imperfect for various reasons. This is the formal institution of search cases, this is the dishonest performance of the search functions by the employees of the criminal investigation department, this is the lack of sufficient informative coordination not only between the constituent entities of the Federation, but sometimes also between neighboring administrative regions through the criminal investigation, shortcomings in operational implementation, shortcomings in financing this activity, etc. other.
These wanted persons, under recognizance not to leave the place and proper behavior, under another measure of restraint not related to detention, violate their obligations to law enforcement agencies, and are hiding from the court. They ignore the orders to prevent the change of place of residence, and do not report their movements to the courts. This behavior is caused not only by indifference to their behavior, but also by the desire of citizens (especially those previously convicted who have committed grave and especially grave crimes) to avoid criminal liability.
Part 2 of Art. 45 of the Constitution of the Russian Federation contains an indication of the right of citizens to defend their rights and freedoms in all ways not prohibited by law. The behavior of deliberate evasion from the court should be decisive in the issue we are considering. The citizen was provided with a guaranteed opportunity to participate in the proceedings in full compliance with the procedure. The desire to hide from the court allows us to speak not of a reduction in the scope of rights, but of a far-fetched desire to defend oneself by illegal methods and means. To counter these illegal methods, evasion from appearing in court, a change in the court procedure is required.
As prescribed by Part 1 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, the trial of a criminal case is carried out with the obligatory participation of the defendant, with the exception of cases foreseen in parts fourth and fifth of this article.
Such cases are as follows: trial in the absence of the defendant may be allowed in the event that in a criminal case about a small offense or moderate the defendant applies for the consideration of this criminal case in his absence (part 4 of article 247 of the Code of Criminal Procedure of the Russian Federation). And also in exceptional cases, criminal proceedings on grave and especially grave crimes can be conducted in the absence of the defendant who is outside the territory. Russian Federation and (or) refuses to appear in court, if this person has not been prosecuted in the territory foreign country on this criminal case (part 5 of article 247 of the Criminal Procedure Code of the Russian Federation).
It should be noted that parts 4 and 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation carry out a gradation depending on the severity of the sane corpus delicti. Categories of crimes are defined by Art. 15 of the Criminal Code of the Russian Federation, depending on the nature and degree of social danger of the act:
- crimes of minor gravity are intentional and negligent acts, for the commission of which the maximum punishment provided for by the Criminal Code does not exceed two years in prison;
- crimes of average gravity are deliberate acts, for the commission of which the maximum punishment provided for by the Criminal Code does not exceed five years in prison, and negligent acts, for the commission of which the maximum punishment provided for by the Criminal Code does not exceed two years in prison;
- serious crimes are deliberate acts, for the commission of which the maximum punishment provided for by the Criminal Code does not exceed ten years in prison;
- especially grave crimes are deliberate acts, for the commission of which the Criminal Code provides for punishment in the form of imprisonment for a term exceeding ten years or more severe punishment.
The logic of the legislator is not entirely clear: what is the difference between persons who are outside the territory of the Russian Federation when committing grave or especially grave crimes from persons who have committed the same crimes and have been hiding in the Russian Federation for a long time? According to the law, a court verdict in absentia can be passed against the first category, but it is impossible for the second category of citizens.
Of course, a citizen who is outside Russia, even if his location is known, is not always extradited either due to contractual relations or due to the absence of agreements on the provision of legal aid, or by decision of the competent authorities of the states. Examples in our modern history known with citizens Berezovsky, Zakayev. It is entirely justified to consider such criminal cases in the absence of the defendant.
In fact, the ban (for consideration of the same criminal cases in the absence of defendants hiding in Russia) does not take into account such features as the fact that, due to the vast territory of Russia with a fairly large population, with a very disorganized search system, a citizen can very successfully hide from the court and long time. The legislator most likely assumed that a citizen hiding in the Russian Federation would be found wanted and arrested under any circumstances in a short time. However, this is far from the case, as indicated by judicial practice. This situation leads not only to a delay in the consideration of criminal cases on the merits, but also practically reduces the guarantees of the rights of victims to a minimum level. Prolonged presence of criminal cases in courts, not considered in connection with the search for defendants, suggests that the principle of inevitability of punishment does not work.
"Millions of people around the world are harmed by crime and abuse of power," and "the rights of these victims are not properly recognized," UN General Assembly Resolution 40/34 of November 29, 1985 states. "On Basic Principles of Justice for Victims crimes and abuse of power ". A person who is hiding from the court is not only not convicted for a long time, but also a recovery is not made from him. material damage or moral harm.
Being the most important act of the judiciary, a court verdict means recognizing the rights of the party suffered in the conflict as violated and their restoration or ascertaining the absence of such a violation, protecting the other party from unjustified infringement of rights.
Therefore, based on the constitutional principle of equality of citizens before the law, the courts should be given the opportunity to consider criminal cases in the commission of grave or especially grave crimes without the participation of the defendants, if they are hiding from the court on the territory of Russia. In this case, legislative regulation is possible - the establishment of a pre-emptive period during which the courts should expect the results of the search (for example, within a year). After the expiry of this period, the court should have the right to adjudicate in absentia.
Another logical reasoning is also interesting. If the legislator considers it possible for more serious crimes with a higher degree of public danger, subject to certain conditions passing sentences in absentia, then what are the reasons for the permission to consider a criminal case on the commission of a crime of small and medium gravity in the absence of the defendant only at his request? Consideration of a criminal case against a citizen accused of committing a serious crime involves great complexity. Decisions in such cases require a lot of balance and motivation.
At the same time, it is clear that a petition to consider a criminal case in the absence of the defendant must be in writing and the signature of the defendant must be duly certified. Otherwise, such a written request may come from other persons (be falsified), and the court will not be able to verify the validity of the signature. Alternatively, such a petition can be made personally by the defendant, for example, in a preliminary hearing.
In criminal cases of small and medium severity, the courts should also have the opportunity to consider criminal cases in the absence of the defendants, not only on their duly completed petitions, but also if the defendant has escaped from the court and is put on the wanted list. In this case, legislative regulation is possible - the establishment of a period during which the courts should expect the results of the search (for example, within six months). After the expiration of such a period, the court should have the right to adjudicate in absentia.
In the Code of Criminal Procedure of the Russian Federation, Chapter 40 regulates a special procedure for making a court decision. Article 316 directly prescribes the mandatory participation of the defendant in the considered type of court hearings. Most of the criminal cases in which the trial is carried out in a special order are categorized as minor and moderate offenses. It turns out that even if the defendant wants to file a petition for the consideration of a criminal case in his absence, his rights under paragraph 7 of Art. 316 of the Code of Criminal Procedure of the Russian Federation. Namely, he cannot count on a significant reduction in the maximum sentence to two-thirds.
If he filed, in the manner prescribed by law, a petition for the conduct of a trial in a special procedure, then, according to the law, he deprived of the right to file a motion to consider the criminal case in his absence. It seems that in both cases this is an artificial, unjustified restriction of the rights of persons brought to criminal responsibility.
Opponents can call these proposals to expand the cases when it is possible to consider a criminal case in the absence of the defendant, too radical, violating the adversarial system. However, they should take into account that no one deprives the defendant of the right to defense by a lawyer in the cases under consideration. The measures under consideration will significantly increase the efficiency in the consideration of criminal cases. The current judiciary, which experiences daily problems with such cases, from which constantly higher authorities demand efficiency, reduce the number of search cases, cannot but support such proposals. The proposed measures, in fact, can be viewed as a mechanism for countering persons hiding from the court (defending themselves by illegal methods and means). These measures increase the degree of protection of the rights of victims of individuals and organizations.
As a procedural guarantee of the observance of the rights of persons convicted in absentia, a procedure for appealing such sentences in cassation should be developed. Namely, it appears that the court's verdict should come into legal force within the established ten-day period.
The defense lawyer of the defendant has the right to appeal against such a court verdict against general grounds... The convicted person himself should receive the right to appeal the court verdict in absentia from the moment of the documentary confirmation of the receipt of its copy. That is, a convicted citizen, sought and arrested in the execution of a court sentence, has the right to receive a copy of the court's sentence against signature, from that moment he begins 10 days for cassation appeal, regardless of the length of time he was hiding.
In this case, it is possible to limit the right of appeal in the form of a judgment in absentia. The convicted person should have the right to appeal the verdict of the court in absentia on the basis of proof and punishment.
1. Proceedings in all courts shall be open. Hearing of a case in a closed session is allowed in the cases provided for by federal law.
2. Trial of criminal cases in court in absentia shall not be permitted, except in cases stipulated by federal law.
3. Legal proceedings are carried out on the basis of adversarial nature and equality of the parties.
4. In cases stipulated by federal law, legal proceedings are carried out with the participation of a jury.
The publicity of the trial as a constitutional principle is established by Part 1 of Article 123. This principle is regulated by Article 9 of the Code of Civil Procedure, Article 18 of the Criminal Procedure Code, Article 8 of the APK, Article 229 of the Administrative Code. The essence of this principle lies in the fact that the court considers criminal, administrative and civil cases in an open court session. Every citizen is free to enter the hall court session and be in it during the hearing. Citizens present during the trial should not violate the order of the court session and interfere with the hearing of the case. Otherwise, disciplinary offenders in the courtroom during the hearing of a criminal case, for example, may be subject to measures provided for in Article 263 of the CCP, in the form of removal from the courtroom or a fine.
In cases determined by law, the trial may take place in a closed court session. In accordance with Article 18 of the Code of Criminal Procedure, proceedings in all courts are open, except in cases where this is contrary to the interests of the protection state secrets, and in accordance with the APC - and trade secrets... If part of the trial of the case may entail the disclosure of state or commercial secrets, then only this part can be held in a closed court session. Otherwise, the trial takes place in open court. A closed court session is also allowed by a reasoned court ruling or a judge's decision in cases of crimes of persons under the age of sixteen, in cases of sexual crimes and in other cases in order to prevent disclosure of the intimate aspects of the life of persons involved in the case. In order to ensure the secrecy of adoption, cases of this category, according to the Code of Civil Procedure, are also considered in a closed court session. Depending on the circumstances of the case, on these grounds, either the entire court session or part of it can be closed.
The public and representatives of the media are not allowed to attend a closed court session. The hearing of the case takes place in a closed session, in compliance with all procedural norms of legal proceedings. The verdict of the court in all cases is announced publicly.
According to Part 2 of Article 123, the court of first instance cannot issue a guilty or acquittal verdict in absentia, justifying it only on the basis of the submitted case materials. The court is obliged to directly examine all the evidence in the case in the courtroom: interrogate the defendant (one or more), victims, witnesses, examine material evidence, announce Required documents etc. The participants in the process give oral explanations to the court.
The principle of immediacy and orality of the proceedings obliges the court to hear all the testimony of witnesses and victims, and not be limited to their testimony given during the investigation of the case. According to Article 286 of the Code of Criminal Procedure, the announcement of the testimony of persons interrogated during the investigation of the case is allowed in court if there are significant contradictions between these testimonies and testimonies in court and in a case that excludes their appearance in court for valid reasons. For example, a long foreign business trip or a serious illness can be recognized as valid reasons.
The trial of the case in the court of first instance takes place with the participation of the defendant, whose attendance is obligatory. On the basis of Article 246 of the Code of Criminal Procedure, in exceptional cases, it is allowed to consider the case in the absence of the defendant. This is possible if the defendant is outside the state and avoids appearing in court, and when the defendant applies for a hearing in his absence, if a sentence of imprisonment cannot be imposed for the crime incriminated to him. In the latter case, the court has the right to recognize the presence of the defendant as compulsory. The defendant may also be removed from the courtroom at the direction of the presiding judge in the case. This is possible on the basis of Article 263 of the Criminal Procedure Code when repeated violation defendants of order during the trial and in case of disobeying the orders of the presiding judge. The trial continues in the absence of the defendant. However, the verdict of the court is announced in the presence of the defendant or immediately announced to him after the announcement.
In accordance with Part 3 of Article 123, the proceedings are carried out on the basis of the principle of adversariality and equality of the parties, i.e. the prosecution is separate from the trial court. The prosecution and defense are carried out by parties with equal rights.
A party to a court proceeding is a participant who appears before the court and represents certain interests. Thus, a party to the trial is the defendant defending himself against the charges brought against him. The parties to the trial are: the prosecutor supporting the state prosecution; defender defending the defendant; victim of a crime; claimant civil action on compensation for material (moral) damage; the civil defendant and their representatives; public prosecutor and public defender. A defender (lawyer) can represent the interests of the victim, plaintiff or defendant.
The court manages the trial process, actively participates in the study of the case materials and makes a decision on the case. At the same time, the court does not perform the functions of either defense or prosecution, but acts as a body of justice.
According to Article 245 of the Code of Criminal Procedure, all participants in the proceedings enjoy equal rights to present evidence, participate in their research and submit petitions. Neither side has an advantage over the others. However, since the prosecutor is an official, acts on behalf of the state, he has great opportunities to collect evidence and great powers.
The possibility of considering civil and criminal cases in the court of first instance with the participation of a jury was provided for earlier. 1978 Constitution was supplemented by a corresponding article (Article 166), however, due to the absence of a law determining the procedure for a jury trial, this provision could not be implemented.
The Law "On Amendments and Additions to the Law of the RSFSR" On the Judicial System of the RSFSR ", the Criminal Procedure Code of the RSFSR, the Criminal Code of the RSFSR and the Code of the RSFSR on administrative offenses"Dated July 16, 1993. really provides citizens with the opportunity to consider their cases by a jury on the principles of adversarial parties. The adversarial principle was known to our criminal procedure earlier, but it was not fully ensured: the court was charged with collecting evidence; the involvement of a prosecutor in all cases was optional.
Article 429 of the Code of Criminal Procedure as amended by the Law of July 16, 1993. creates real opportunities for adversariality of the parties. The participation of a defense attorney and a prosecutor in the consideration of cases by a jury is obligatory.
At the request of the accused, the jury in the regional, regional, city court hears cases of crimes listed in Article 36 of the Criminal Procedure Code, i.e. grave crimes for which the maximum measure of imprisonment or capital punishment may be imposed - the death penalty.
The introduction of a jury trial means establishing new form legal proceedings; the question of the guilt of the person brought to justice is decided by the jury independently, on the basis of inner conviction. They must answer three questions: whether it has been proven that the relevant act, of which the defendant is accused, took place; whether it has been proven that this act was committed by the defendant; whether he is guilty of committing this act.
The presiding judge is not a member of the jury. When pronouncing a parting word, the presiding judge is prohibited from expressing his opinion in any form on the issues presented to the jury. This allows for the maximum objectivity of the jury and creates additional guarantees for the independence of the court. The verdict (i.e. the decision of the jury on the issues put before it) is made by the jury independently. The verdict of the defendant's innocence is binding on the presiding judge and entails an acquittal. The jury ensures broad collegiality. Twelve jurors, selected by lot, take part in the consideration of the case. Only the determination of the measure of punishment is the prerogative of a professional judge.
The widespread involvement of the population in the administration of justice, the independence of decisions made characterize the jury trial as the most democratic form of legal proceedings (see comments to part 5 of article 32 and part 2 of article 47).
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Proceedings in absentia of criminal cases
Encyclopedic Dictionary of F.A. Brockhaus and I.A. Efron. - S.-Pb .: Brockhaus-Efron. 1890-1907.
See what is "In absentia trial of criminal cases" in other dictionaries:
CORRESPONDENCE CONSIDERATION OF THE CASE- - trial of criminal cases in the absence of the defendant, civil cases - in the absence of the defendant. In criminal cases, in order to ensure the completeness of the judicial investigation and the real provision of the defendant with the opportunity to exercise his right to ... ... Soviet Law Dictionary
Reopening of court cases- resolved comes into collision with the beginning of the steadfastness of judicial decisions and therefore is allowed only by way of emergency appeal. The renewal of criminal cases (in the technical sense) concerns sentences that are subject to execution or already ... Encyclopedic Dictionary of F.A. Brockhaus and I.A. Efron
Zemsky district chiefs- I local forensic administrator. bodies called to life by the law on July 12, 1889. Organization of local government, created after the liberation of the peasants (see. World mediators) and modified in 1874 (see. Presence on peasant affairs), ... ... Encyclopedic Dictionary of F.A. Brockhaus and I.A. Efron
JUSTICE- activities of special government agencies courts for the resolution of legal cases: criminal, civil, labor, family, etc., aimed at strengthening the rule of law and law and order. With the help of L., human rights and freedoms are protected, ... ... Encyclopedic Dictionary of Economics and Law
JUSTICE- the activities of special state bodies of the courts to resolve legal cases: criminal, civil, labor, family, etc., aimed at strengthening the rule of law and law and order. With the help of P., human rights and freedoms are protected, ... ... Legal encyclopedia
court- the body of the state that administers justice in the form of consideration and resolution of criminal, civil, administrative and some other categories of cases in the state established by law procedural order... S. are divided into ordinary and ... ... Big Law Dictionary
justice- a form of state activity, which consists in the consideration and resolution by the court of criminal cases, civil disputes, etc., which are within its competence. The implementation of P. by the court is carried out in accordance with the law ... ...
Court- (Latin judicium; English court) the body of the state exercising judicial power by administering justice in the consideration of civil and criminal cases, cases about ... Encyclopedia of Law
JUSTICE- a form of state activity, which consists in the consideration and resolution by the court of criminal cases, civil disputes, etc., which are within its competence. The implementation of P. by the court is carried out in accordance with the law ...
LEGAL PROCEEDINGS- the procedure for considering criminal and civil cases Distinguish between criminal and civil C The law defines the tasks and principles of S., the powers of the court, the prosecutor, the investigation and inquiry bodies, the participants in the process are named, their rights are determined and ... ... Encyclopedic Dictionary of Economics and Law
Correspondence proceedings in civil proceedings
According to the current procedural legislation, proceedings in absentia are recognized as the procedure for considering and resolving a specific civil case in the event of the failure of the defendant to appear, duly notified of the time and place of the court session, who did not report good reason ah failure to appear and did not ask for the consideration of the case in his absence, if the plaintiff does not object to this, with a decision called in absentia.
Consideration and resolution of a case in absentia is possible subject to certain conditions specified in the law. Article 233 of the Code of Civil Procedure of the Russian Federation refers to them the failure of the defendant to appear, his due notification, the absence of valid reasons for failure to appear, the defendant's request to consider the case in his absence and the consent of the plaintiff.
The failure of the defendant to appear is the actual absence of the party in the courtroom when considering and resolving the case. The tacit presence of a party at the hearing is not considered failure to appear, but is regarded as an evasion of participation in the presentation and examination of evidence. It should also be borne in mind that consideration of the case by way of proceedings in absentia and the issuance of a decision in absentia is possible in the absence of both the party and its representative. In the event of the presence of a representative, proceedings in absentia are not allowed.
The proper notification of the defendant is a notification carried out by the methods and in the manner specified in Ch. 10 Code of Civil Procedure of the Russian Federation.
Lack of valid reasons for the defendant's failure to appear. The obligation to notify the court of the reasons for failure to appear and to provide evidence of the validity of these reasons rests with the parties. If the reasons for failure to appear are recognized as valid, the court shall postpone the proceedings.
The procedure for the implementation of proceedings in absentia and the rules for making a decision in absentia are enshrined in Ch. 22 Code of Civil Procedure of the Russian Federation.
Making a decision in absentia is possible subject to the following conditions:
- issue a ruling on the refusal to satisfy the application and to keep the decision in absentia in force;
- to issue a ruling on the cancellation of the decision in absentia and the resumption of the consideration of the case on the merits.
The court makes the first ruling if it recognizes that the reason for the defendant's failure to appear at the hearing was disrespectful, and the evidence presented was insufficient to quash the decision.
The second ruling is made if the court finds that the defendant's failure to appear at the hearing was caused by valid reasons, about which he was not able to inform the court in a timely manner, and at the same time the defendant refers to circumstances and presents evidence that may affect the court's decision (Article 242 Code of Civil Procedure of the Russian Federation).
Cancellation of the decision in absentia does not mean the resolution of the case in favor of the defendant. The case must be considered anew on its merits.
Re-render absentee decision it is forbidden.
Civil Procedure: Video
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Absentee consideration of criminal cases as a way to ensure the implementation of criminal proceedings within a reasonable time
The current legislation establishes a general rule for the consideration of criminal cases by a court with the obligatory participation of the defendant. However, for objective reasons, such participation is not always possible.
The law allows cases when the trial can be conducted in the absence of the defendant (in absentia). One of such cases is the request of the defendant himself to consider the case in his absence, if a criminal case on a crime of minor or medium gravity is subject to consideration.
Also, the court has the right to conduct a trial in absentia in other exceptional cases specified in part 5 of Article 247 of the Criminal Procedure Code of the Russian Federation, namely: if the accused is outside the Russian Federation and evades appearing in court, despite the fact that he was not involved in criminal liability in this criminal case on the territory of a foreign state, as well as when the accused, who is on the territory of the Russian Federation, evades the appearance in court and his location is unknown.
Within the meaning of the aforementioned norm of the law, the court may consider a criminal case without the participation of the accused if he has committed a crime representing a special public danger; if there is a need to compensate the victim for significant harm caused by the crime; in cases where it is impossible to take the accused to the courtroom or the search for the accused did not give positive results.
The legislator has provided for the possibility of trial in absentia both in order to ensure the rights of citizens to legal proceedings within a reasonable time, which is proclaimed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in order to comply with the time limits for considering criminal cases established by Article 6.1 of the Criminal Procedure Code of the Russian Federation ... At the same time, the indicated periods include the period from the moment the criminal prosecution begins and until its termination or a conviction. Thus, the total length of criminal proceedings should be within a reasonable period of time.
When determining a reasonable time frame for criminal proceedings, a number of circumstances are taken into account, including the complexity of the criminal case, the behavior of the participants in the criminal proceedings, the sufficiency and effectiveness of the actions of the court, prosecutor, investigative body, body of inquiry.
In 2011, the courts of the Rostov region considered 70 criminal cases in absentia in relation to 71 accused.
The regional prosecutor's office is taking measures to facilitate the timely consideration of criminal cases by the court, the proceedings on which were suspended in connection with the search for the accused. Such measures are carried out by using the right provided by law (clause 4.1 of part 2 of article 229 of the Criminal Procedure Code of the Russian Federation) to petition the court for a trial in absentia. The prosecutor's office, as a supervisory body, is focused on ensuring that citizens' rights to legal proceedings are observed within a reasonable time.
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1.5. Correspondence production
Correspondence production- this is the procedure for making a decision by the court in the absence of the defendant, governing the conditions and procedure for proceedings in absentia. In particular, Art. 233 of the Code of Civil Procedure of the Russian Federation provides that if the defendant, duly notified of the time and place of the hearing in the case, fails to appear at the court session, a decision in absentia may be issued, if the plaintiff does not object to this.
Proceedings in absentia are simplified in comparison with the usual procedure of legal proceedings, since the oral explanations of the plaintiff are examined and the parties are not argued during the trial.
Conditions and procedure for proceedings in absentia
Correspondence production assumes compliance with two main conditions. As such, the law provides for the failure of the defendant to appear upon his obligatory proper notification of the time and place of the court session, as well as the absence of the plaintiff's objections to the issuance of a decision in absentia.
Consideration of the case by way of proceedings in absentia significantly limits the defendant's ability to use procedural remedies against the claim. However, such a limitation is a consequence of his own behavior, which, subject to the court's compliance with the conditions provided for in Art. 233 of the Code of Civil Procedure of the Russian Federation, is considered as the defendant's evasion from participation in the adversarial process without explaining the reasons for this.
The defendant's failure to comply with procedural obligations should not put the plaintiff in a disadvantageous position, in particular, lead to a delay in protecting the violated right or interest protected by law. Making a decision in absentia allows you to avoid this.
At the same time, the institution of proceedings in absentia also acts as a guarantee of ensuring the rights of the defendant who did not appear at the hearing for valid reasons, about which he was not able to inform the court. It provides for the possibility, at the initiative of the defendant, in a simplified manner, to cancel the decision and resume the consideration of the case on the merits (Articles 237-243 of the Code of Civil Procedure of the Russian Federation).
Article 233 provides for a number of conditions under which it is possible to issue a judgment in absentia. This is the defendant's failure to appear at the hearing; notification of the defendant about the time and place of the court session; the defendant's failure to provide information on the validity of the reasons for failure to appear; the absence of a request from the defendant to consider the case in his absence; failure of all co-defendants to appear in the presence of procedural complicity on the defendant's side; the consent of the appearing plaintiff to the consideration of the case in absentia; the absence of the will of the plaintiff to change the subject or basis of the claim; an increase in the amount of claims.
The rules on proceedings in absentia are not applied when considering and resolving cases arising from public law relations (part 2 of article 246 of the Code of Civil Procedure of the Russian Federation). They cannot be changed in cases of special proceedings, since there is no dispute about the right and the applicant is not opposed by the counterparty (Article 263 of the Code of Civil Procedure of the Russian Federation).
In order to consider the case in absentia, the court must have information about the proper notification of the defendant about the time and place of the court session. This means that the subpoena or otherwise provided for by Part 1 of Art. 113 of the Code of Civil Procedure of the Russian Federation, the means of notification must be handed over to the defendant in strict accordance with Ch. 10 of the Code of Civil Procedure of the Russian Federation at the place of residence or place of work of the citizen, at the location of the organization, and the case must contain a receipt from the defendant stating the time of delivery of the summons or other means of notification.
The court should not establish the reasons for the defendant's failure to appear in order to initiate proceedings in absentia. To make a decision in absentia, only the presence in the case of information about the proper notification of the defendant about the consideration of the case is required. At the same time, the presentation by the defendant of written explanations, the filing of motions in the course of preparation for the trial may make it necessary to carry out the usual proceedings or postpone the trial with the repeated notification of the parties. Thus, the recognition of the claim by the defendant or the filing of a petition for the consideration of the case in his absence requires the resolution of the case in the usual manner. It is inappropriate to issue a decision in absentia if the defendant submits information about the validity of the reasons for his failure to appear.
In the absence of information about the proper notification of the defendant, the use of the procedure in absentia is not allowed. In this case, the court is obliged to postpone the proceedings (part 2 of article 167 of the Code of Civil Procedure of the Russian Federation).
The parties have the right to conduct the case in court through their representative, therefore, in the event that the defendant's representative appears at the court session, a decision in absentia is not allowed. The representative is notified of the time and place of the court session by the defendant himself (in accordance with Article 113 of the Code of Civil Procedure of the Russian Federation, the court is obliged to send a notification only to the persons participating in the case). Legal representatives perform all procedural actions on behalf of the person represented (Article 52 of the Code of Civil Procedure of the Russian Federation), use it procedural rights, therefore, the court notice should be sent to them on an equal basis with the persons participating in the case.
A prerequisite for considering a case in absentia is the absence of an objection by the appearing plaintiff against such an order. If the plaintiff objects to the resolution of the dispute in absentia, the case must be considered in compliance with the general rules of legal proceedings.
If the plaintiff, who has appeared at the court session, does not agree to the consideration of the case by way of absentee proceedings in the absence of the defendant, the court shall postpone the proceedings and send to the failed defendant a repeated notice of the time and place of the new trial. The expediency of such a condition is announced by the fact that the plaintiff may be aware of valid reasons for the failure of the defendant to appear, the presence of which may serve as a basis for canceling the decision in absentia, which will delay and complicate the process as a whole.
If several plaintiffs are involved in the case, a judgment in absentia cannot be made if at least one of them objects to this procedure.
The failure of the plaintiff (any of the co-plaintiffs) and the defendant (co-defendants), duly notified of the time and place of the court session, does not necessarily cause the proceedings to be postponed.
Consideration of a case in absentia is a right, not an obligation of the court, and it may, if there is an objection by the appearing plaintiff to the proceedings in absentia, continue the proceedings in the usual manner. In accordance with Part 4 of Art. 167 of the Code of Civil Procedure of the Russian Federation, the court has the right to consider the case in the absence of the defendant duly notified of the time and place of the court session, if he did not inform the court about the valid reasons for failure to appear and did not ask to consider the case in his absence. In this case, the court decision will not be in absentia.
Proceedings in absentia should be conducted only on the subject and basis of the claim, of which the defendant was promptly notified by sending him a copy statement of claim and the documents attached to it, substantiating the claims of the plaintiff (part 3 of article 114, 132, paragraph 1 of part 1 of article 149, part 2 of article 150 of the Code of Civil Procedure of the Russian Federation).
The issue of the possibility of considering the case by way of proceedings in absentia should be discussed by the court in the preparatory part of the court session after checking the attendance of the participants in the process, announcing the composition of the court and explaining to the persons participating in the case their rights and obligations. The decision to consider the case in this manner is reflected in the ruling, which can be made without being removed to the deliberation room and entered into the minutes of the court session, which should reflect the entire course of the discussion of this issue.
After that, considering the case by way of proceedings in absentia, the court confines itself to examining the evidence presented by the parties, takes into account their arguments and petitions, and makes a judgment in absentia. However, in order to protect the rights of the defendant, the law also provides that when a case is considered by way of proceedings in absentia, the basis or subject of the claim cannot be changed or the amount of the claim cannot be increased.
When considering a case in absentia, the court examines the evidence in general order, creates all the necessary conditions for a comprehensive and complete investigation of the circumstances of the case. For this, in the case of an expert examination, he announces the expert's conclusion and interrogates him, interrogates witnesses when they are summoned, reads out written evidence and examines material evidence, etc. All persons involved in the case in accordance with the requirements of Art. 35 and 190 of the Code of Civil Procedure of the Russian Federation have the right to speak in the judicial debate, which they cannot be deprived of, regardless of the procedure chosen by the court for the consideration of the case in the court session.
The content of the decision in absentia, as well as that made in compliance with the usual procedure, must be responsible general requirements(Article 198 of the Code of Civil Procedure of the Russian Federation). Thus, there are no exceptions from the general rules in this part of the proceedings in absentia. Moreover, in the introductory part of the decision, its name (“absentee decision”) should be indicated, and the law additionally provides that the effective part of the absentee decision must indicate the time and procedure for submitting an application for revision of this decision.
The judgment is announced at the court session in the presence of the plaintiff and other persons participating in the case. A copy of the decision in absentia shall be sent to the party that did not appear at the hearing no later than three days from the date of its issuance.
The entry into force of a decision in absentia also occurs according to the general rules of civil procedural legislation... The decision in absentia comes into legal force after the expiration of the time limit for the appeal or cassation appeal, if it has not been appealed. At the same time, by the usual ten-day deadline for "appeal" (Art. 321, 338 Code of Civil Procedure of the Russian Federation) in accordance with Art. 237 of the Code of Civil Procedure of the Russian Federation, an additional seven days are added, during which the defendant has the right to file an application for cancellation of the decision in absentia, as well as the time that has occurred from the date of the decision to the day of delivery of a copy to the defendant.
In the event that the defendant applies to the court with an application for the cancellation of the decision in absentia, the ten-day period for appealing it in an appeal or cassation procedure is calculated from the moment the ruling on the refusal to satisfy such an application is made.
The procedure for the entry into force of a decision in absentia in the event of its appeal in an appeal or cassation procedure does not differ from the rules for the entry into force of a decision rendered in the usual manner.
A copy of the court decision in absentia is sent both to the plaintiff, who was not present at the court session and asked the court to consider the case in his absence, and to the defendant no later than within three days from the date of its adoption with acknowledgment of service.
The failure of the plaintiff, who did not ask to consider the case in his absence, does not entail an obligatory postponement of the proceedings. In the absence of such a request, the court also has the right to consider the case in the absence of the plaintiff, notified of the time and place of the court session, if they are not provided with information about the reasons for failure to appear or the court finds the reasons for his failure to appear disrespectful.
If the plaintiff and the defendant fail to appear at the same time, who did not ask for the consideration of the case in their absence, the possibility of making a decision in absentia is not excluded. In this case, a copy of the decision in absentia must also be sent to both parties within the time period established in accordance with Art. 42, 45, 46 of the Code of Civil Procedure of the Russian Federation. The procedural rights of the plaintiff are enjoyed by third parties who make independent claims on the subject of the dispute, and persons who have applied to the court in defense of the interests of other persons. Consequently, in case of failure to appear at the court session of these persons, the rules on sending a copy of the decision in absentia shall apply to them as well.
As for third parties who do not declare independent requirements on the subject of the dispute, then in case of failure to appear at the court session, they must also be sent a copy of the absentee decision no later than three days from the date of its issuance in the final form when a decision is made in favor of several plaintiffs.
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T. V. Trubnikova
CONSIDERATION OF THE CASE IN THE ABSENCE OF THE ACCUSED (PROCEEDINGS IN CORRESPONDENCE) IN THE SYSTEM OF SIMPLIFIED COURT CRIMINAL PROCEDURES
PRODUCTIONS OF THE RUSSIAN FEDERATION
The research was carried out with the financial support of the Russian Foundation for Humanities (project No. 07-03-00132a).
The article examines the legal regulation and practice of the use of absentee proceedings by courts in the criminal process of the Russian Federation. Proceedings in absentia are compared with other summary court proceedings. Proposals are formulated to amend the legislation and the practice of its application, which are necessary for the formation of a consistent system of simplified court proceedings in the criminal process, which does not interfere with the exercise of the right of citizens to judicial protection.
The institute for the consideration of criminal cases in the absence of the defendant is not formalized in the Code of Criminal Procedure of the Russian Federation as separate production... Moreover, the peculiarities of the court's decision on the possibility of considering the case in the absence of the defendant, as well as the peculiarities of the absentee consideration of the criminal case, appeal of the verdict or the ruling of the court rendered in absentia, the revision of the criminal case in the usual manner are also not highlighted in the Code of Criminal Procedure of the Russian Federation in a separate block, but are scattered according to a number of norms of the code: part 2 (in particular, paragraph 41) of art. 229, part 5 of Art. 247, part 4 of Art. 253 of the Criminal Procedure Code of the Russian Federation. Moreover, it can be concluded that these norms regulate not one, but as many as two orders of extramural proceedings (one is implemented in the cases provided for in part 4 of article 247 of the Code of Criminal Procedure of the Russian Federation, and the basis for the application of the second is the presence of circumstances provided for in part 5 of the same article). Such regulation is fragmentary and contradictory (which will be shown later).
Many scholars, apparently, do not qualify the consideration of the case in the absence of the defendant as an independent criminal proceeding. In his work on the differentiation of judicial proceedings, carried out under the conditions of the Criminal Procedure Code of the RSFSR, the author of this article also did not single out the proceedings in absentia as an independent one, although he defended the thesis about the need for it to appear in the criminal process of the Russian Federation, for which he considered, in particular, a more detailed its legislative regulation. The grounds for refusing to separate the examination of criminal cases in absentia as an independent proceeding were also the narrowness of the grounds for its application and the practice, which did not accept the absence of the defendant in the examination of criminal cases.
However, to date, the criminal procedural legislation has changed (in particular, with the entry into force of the Federal Law of the Russian Federation of July 27, 2006, No. 153-FZ), and the practice of its application. The study of the practice of considering and resolving criminal cases in the absence of the defendant (accused) shows that the number of such cases has increased significantly in recent years. So, for 10 months of 2007 the courts of the Tomsk region in the absence of the defendant (accused) made decisions on 185 criminal cases.
In such circumstances, it is necessary to revert to the question of the possibility of considering absentee proceedings as an independent criminal procedural proceedings (having simultaneously decided the question of whether there is currently one absentee proceedings or two of them).
1) the presence of a given production of a certain material and legal basis, objectively requiring differences in legislative regulation;
2) the complexity of production, that is, the presence of certain features in the activities of law enforcement agencies at all (or at least several) stages of the criminal process;
3) the presence of significant differences in comparison with the usual procedure of production, which would ultimately lead to a change in the forms of activity in these cases.
We studied 185 criminal cases, the decision on which was made in the absence of the defendant (accused) by the courts of the Tomsk region for 10 months of 2007 (continuous study), as well as 332 criminal cases, in which the court decision was made in a special order, considered by the courts Tomsk, Novosibirsk region and Altai Territory in 2007, and 513 criminal cases of private prosecution, considered by justices of the peace of Tomsk, Omsk regions and Altai Territory in 2005-2007. This study of practice has shown that there is an urgent urgent need for the existence of an order regulated by the norms of the Code of Criminal Procedure of the Russian Federation, according to which criminal cases could be considered in the absence of the defendant if he does not want to take part in the proceedings or abuse his right to personal participation. in court proceedings, repeatedly failing to appear at the court session without good reason. Indeed, in the cases studied, considered in absentia, in 20% of cases by the time the case was submitted to the court, there were already applications from the defendant and the victim submitted in advance to terminate the criminal case and to consider the case in their absence. For other cases considered in absentia, 2 court sessions were scheduled - in 11% of cases, 3 court sessions - in 12.5% of cases, 4 court sessions - in 23.5% of cases, 57 court sessions - in 36.5% of cases, 9-17 court sessions - in 16.5% of cases.
In seven of the cases studied, the trial was postponed until the statute of limitations for criminal prosecution had expired. At the same time, about 50% of the postponements of court hearings were associated with the defendant's failure to appear in court. So, for example, in one of the studied criminal cases (on charges of committing a crime,
reviewed Part 1 of Art. 157 of the Criminal Code of the Russian Federation) 15 court sessions were scheduled, in none of which the defendant appeared. The judge issued a ruling on the compulsory admission of the defendant 6 times, none of which was executed, the defendant was put on the wanted list 5 times, and after his next discovery he again did not appear in court. In relation to him, a preventive measure was chosen in the form of a recognizance not to leave, which in no way influenced his behavior. As a result, two and a half years after the initiation of the criminal case, it was terminated due to the expiration of the statute of limitations for criminal prosecution (in the absence of the defendant, since from him through the police officers after his next search, a statement was received to terminate the criminal case on this basis in his absence) ... Thus, the victims' right to access to justice and to have the case examined by the court within a reasonable time was violated in connection with the defendant's abuse of his rights.
To an even greater extent, the existence of abuse on the part of the defendants of their right to personal participation in the proceedings of a criminal case becomes evident in the study of private prosecution cases initiated by filing an application to the victim. In such cases, preventive measures are almost never chosen, and the victim (private prosecutor) often cannot achieve the exercise of his right to access to justice precisely because the defendant avoids appearing in court. For example, in one of the studied criminal cases, 17 court sessions were scheduled, 10 of which did not take place due to the defendant's failure to appear. As a result, this criminal case was also terminated due to the expiration of the statute of limitations for criminal prosecution. In other cases, after a long series of non-appearance of the defendant at the court session, to which the court did not react or almost did not react, it happened that the private prosecutor did not appear at the next court session. And if the reason for his failure to appear was not known to the court, he immediately dropped the criminal case in connection with the refusal of the prosecution by the private prosecutor. In the third cases, the defendant's failure to appear continued until the private prosecutor “surrendered” and filed an application to dismiss the charges or to terminate the criminal case due to the reconciliation of the parties.
It should be noted that the measures taken by the courts to ensure the appearance of the defendant are not very effective. So, in the studied cases, considered in absentia, the decision to bring the defendant was issued 57 times. Of these, only 22 drives were executed, i.e. 38.6%. Other measures of procedural coercion, designed to ensure the appearance of the defendant in court, are practically not used. In the studied cases, considered in absentia, a preventive measure (in the form of a written undertaking not to leave the place) was chosen by the court in 2 cases. A preventive measure in the form of detention in the studied cases was not chosen by the courts, apparently due to the small severity of the charges brought against him.
Thus, in a number of criminal cases, primarily for crimes of small and medium gravity,
there is: 1) a sufficiently large number of cases in which the defendant on their own waives his right to participate in the court hearing;
2) a significant number of situations when the defendant, although he does not declare a refusal to exercise such a right, evades appearing in court, thus abusing his rights and thereby hindering the realization of the victims' right to access to justice and to a fair trial within a reasonable time, as well as the implementation of the purpose of the criminal procedure as a whole. The criminal process should contain norms that prevent the abuse of their procedural rights by the participants, norms that allow to create a balance, an optimal combination between the rights of the defendant (accused) and the victim to judicial protection.
In connection with the foregoing, it seems that a conclusion should be drawn about the existence of a certain range of criminal cases that objectively require the possibility (subject to the conditions established by the legislator) to be considered in the absence of the defendant in cases where the defendant explicitly waives his right to participate in the trial or evades from such participation without good reason being duly notified of the time and place of the court session. At the same time, the possibility of carrying out judicial proceedings in absentia in case of evasion of the defendant from appearing in court should exist, according to the author, not only in cases of grave and especially grave crimes, but also, first of all, in cases of crimes of small and medium gravity ( since, first of all, on them, the defendant's abuse of his right to participate in the trial can lead to the fact that the victim's right to access to justice generally turns out to be unrealizable). Accordingly, there is no need for the existence of two orders of extramural production, which are fundamentally different on the grounds that make the transition to them possible. Of course, the possibility of using absentee proceedings in cases of grave and especially grave crimes should be much narrower than in cases of crimes of small and medium gravity, but in no case is it the other way around. Therefore, allowing for the possibility of a trial in the absence of the defendant on the grounds of his evasion from appearing in court, the legislator should provide for such a possibility for all categories of cases, limiting it most severely for cases of grave and especially grave crimes.
If we are talking about whether the proceedings in absentia are complex (i.e. whether its features extend to at least several stages of the criminal process), as well as whether such features of it lead to a change in the forms of activity in these cases, which are significantly different from the activities carried out in the usual manner, then here it is necessary to consider both the current legal regulation of extramural proceedings, and the essential features of the legal regulation of this type of production, which seems to us optimal.
Speaking in this sense about the current legislation, it is impossible not to notice that the trial
teliyu, carried out in the absence of the defendant on the grounds provided for by Part 4 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, in fact, only this part of the article is devoted. At the same time, as follows from Part 3 of Art. 234 of the Code of Criminal Procedure of the Russian Federation, at the request of the accused, a preliminary hearing may also be held in his absence. In addition, the conduct of a trial in the absence of the defendant implies that the stage of the execution of the sentence (in particular the stage of the application of the sentence to execution) will also have a number of peculiarities. The lack of legislative regulation of the procedure for applying for the execution of a sentence to real deprivation of liberty, pronounced by way of proceedings in absentia, makes it practically impossible at present to issue the corresponding sentences. As a result, in the studied cases, considered in absentia, out of 76 sentences passed, only one of them was punished in the form of real imprisonment - in the case when the defendant (convicted) in this case was already in custody in connection with the proceedings on another criminal case.
It should also be noted that the absence of the defendant during the announcement of the verdict, in our opinion, should inevitably lead to the establishment of special rules for the activities of the court, aimed at serving the convicted (acquitted) a copy of such a verdict, as well as to the establishment of a different procedure for appealing such verdicts. In particular, a longer appeal period is needed for persons in whose absence such a verdict was issued, and ideally, the introduction of the institution of revocation of a verdict in absentia in a situation where the convicted (acquitted) subsequently submits evidence that he could not take part in the judicial proceeding for a good cause.
With regard to the cases when the absentee examination of a criminal case is allowed on the grounds provided for in Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, the essential features of activities in such cases already and now apply to several stages of legal proceedings: the stage of preparation for the trial, the stage of the trial, the stage of supervisory proceedings.
The fact that such features are significant, lead to a change in the forms of activity of participants in criminal proceedings in such cases, is obvious from the above. However, further in this article it will be shown that the results of the study of criminal cases indicate the presence in the practice of using absentee proceedings even more significant differences from the usual procedure for criminal proceedings.
Thus, absentee proceedings are independent criminal procedural proceedings, which today have two forms of application (provided for, respectively, parts 4 and 5 of article 247 of the Criminal Procedure Code of the Russian Federation), the separation of which from each other, in our opinion, was made ill-considered and requires adjustment.
This conclusion poses before us, however, the following questions: what type of proceedings should be attributed to the consideration of criminal cases in the absence of the defendant
th? Is this production ordinary, simplified, or is it production with more complex procedural forms? How does it compare with other types of industries: do they contradict each other, does their legislative regulation lead to gaps or unreasonable intersections of various industries?
In considering these issues, we will first of all compare the proceedings in absentia with proceedings for the adoption of a court decision with the consent of the accused with the charge brought against him. This article will not analyze the relationship between the absentee procedure for considering criminal cases and proceedings in private prosecution cases, since, in our opinion, they may well be combined within the framework of a single proceeding (the absentee procedure is permissible in a private prosecution case).
At first glance, the special procedure for making a court decision, regulated by Art. 314-317 of the Code of Criminal Procedure of the Russian Federation, and the procedure for considering the case in the absence of the defendant (trial in absentia), the possibility of which is provided for by Art. 247 of the Code of Criminal Procedure of the Russian Federation are completely different.
So, in particular, a special procedure for making a court decision is focused on cases when the accused (defendant) fully admits his guilt in the act incriminated to him and voluntarily waives his right to oral, direct, adversarial trial. Absentee consideration of the case, in accordance with the current criminal procedural law, possibly even in the case when the defendant did not plead guilty to the charge brought against him, it is allowed in some cases at the request of the defendant (part 4 of article 247 of the Criminal Procedure Code of the Russian Federation), and in others - perhaps without his desire (part 5 of the same article). Criminal procedural legislation does not allow any exemptions, exceptions from the general procedure for considering criminal cases for cases when the case is being considered in the absence of the defendant. Thus, it follows from the norms of the criminal procedure law that the defendant, in the event of the application of the absentee order, voluntarily refuses or is deprived of only one element of the right to a fair trial - the right to take personal part in it. Moreover, for the absentee consideration of the case, the law provides for the mandatory participation of a defense attorney as an additional guarantee aimed at ensuring a fair order of the trial, at compensating for the absence of the defendant.
These two proceedings are also different in their consequences for the defendant. If for cases of application of a special procedure for making a court decision, the legislator has established a kind of "incentive measures" for the defendant who has filed a petition for the application of the appropriate procedure (reduction maximum size punishment, the impossibility of recovering procedural costs from the defendant), which is accompanied, however, by a restriction of the freedom to appeal the sentence, consent to the trial in absentia does not give the defendant any "bonuses"
nym part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, an additional basis was established for the cancellation of a verdict in absentia - the appearance of the convicted person in court (part 7 of Art. 247 of the Code of Criminal Procedure of the Russian Federation).
Accordingly, the assessment in the literature of the essence of the corresponding orders, their place in the system of criminal procedural proceedings is also different. If the majority of authors (with all the existing disagreements regarding the essence of a special procedure for making a judicial decision, regardless of whether they support or, on the contrary, reject the point of view according to which this procedure is a kind of a plea bargaining transaction) believe that a special procedure for making a judicial decision decision is simplified, compared with the usual procedure for considering criminal cases, the position in relation to absentee proceedings is much less certain. So, a number of authors attribute the absentee procedure for considering a criminal case to the number of simplified proceedings, others, on the contrary, consider it to be a production with a more complex procedural form, compared to the usual procedure, and still others (for example, N.V. Il-yutchenko) come to the conclusion that this proceeding has a "quasi-simplified character", meaning that some of its "simplification", which consists in the absence of the defendant, is more than compensated for by additional procedural guarantees aimed at ensuring the fairness of the trial, which include the guarantees already mentioned above (absence differences in the trial procedure, the obligatory participation of a defense lawyer, a special procedure for reviewing a court decision made as a result of a trial in absentia, prescribed by the legislator for the cases provided for in Part 5 of Art. 247 of the Criminal Procedure Code of the Russian Federation).
Thus, judging by the normative legal regulation, the special procedure for making a court decision and trial in absentia (in particular, carried out in the cases provided for in Part 4 of Article 247 of the Code of Criminal Procedure of the Russian Federation) represent two completely different procedural procedures of judicial proceedings: focused on different the grounds for their application (that is, having a completely different "social base", by which we mean the circle of persons involved as accused and who expressed a desire to apply such procedures to them), significantly differing in the procedure, in their consequences ... However, the study of the practice of applying the above two orders has shown that many of the above differences are, in essence, "imaginary" in nature. In practice, the basis for the application of these two types of proceedings often coincides, and the differences in the procedural procedure provided for by the legislator are leveled. As a result, the differences in the consequences of the use of these types of proceedings for the defendant become inexplicable. Let us explain this thesis.
1. The coincidence of the "social base" of the two types of production.
Here we mean two groups of situations:
a) In a number of cases, the defendant wished to apply a special procedure for making a court decision, but in
for whatever reason, the trial procedure in absentia was applied instead. So, in the studied cases, considered in absentia, in two cases (2.6% of the number of studied cases in which the verdict was passed), the defendant filed a motion to apply a special procedure for making a court decision out of time - during the court session, i.e. outside the framework of the moments when the legislator permits the filing of such requests. Accordingly, such requests were denied, the consideration of the case continued at first in the usual manner, and later - in the absence of the defendant (at his request). In one case, a similar petition of the defendant, made during the trial, was granted and the decision on the case was made in a special order.
In 11 of the cases studied (14.5% of the number of cases examined, considered in absentia with a verdict), at the time of acquaintance with the case materials, the accused filed a motion for the application of a special procedure for making a court decision. In 9 cases, at the same time (82% of the total number of such cases), the judge appointed a court session using a special procedure, however, due to objective circumstances, which most often included the inability of the defendant to appear in court due to objective reasons (serious and prolonged illness, lack of money for travel), the court moved from a special procedure for making a court decision to the usual procedure, and then decided to consider the criminal case in the absence of the defendant. In the two remaining cases, the court, for an unknown reason, ordered the trial in a general manner, despite the presence of a petition from the accused to apply a special procedure for making a court decision. Nevertheless, the outcome of the case was similar: due to the inability or unwillingness of the defendant to participate in the hearing and at his request, these cases were considered in absentia.
b) The second situation, demonstrating the practical coincidence of the social base of extramural proceedings with the social base of the application of a special procedure for making a court decision, is as follows. In cases considered in absentia, in 95% of cases the defendant fully admitted his guilt. At the same time, at the stage of preliminary investigation, the suspect (accused) fully admitted his guilt in only 69% of such cases.
Thus, in 95% of the number of cases examined, considered in absentia, the defendant actually had an interest in applying a special procedure for making a court decision (since he agreed with the charge brought against him).
2. As a result of studying the practice of applying the absentee procedure for considering criminal cases, it became obvious that it largely coincides with the procedure that is used to make a court decision in a special order. The point is, first of all, that in such cases in the course of the trial there is practically no questioning of witnesses. Of the total number of cases examined, considered in the absence of the accused, 109 criminal cases were
abbreviated. In all these cases, the witnesses were not interrogated, and the materials of the criminal case were not examined (with the exception of establishing the existence of grounds for terminating the criminal case). In cases where the case was convicted in absentia (100% of 76 cases in which the trial in absentia ended with the passing of a verdict), 68% of the cases did not appear at the hearing and none of the witnesses and victims indicated in the list attached to the indictment. On the whole, in cases that ended in sentencing, out of 329 persons indicated in the annex to the indictment as witnesses or victims, only 37 persons were questioned in court sessions (10 of them were victims). Only in two cases, in the cases studied, the defendant's defense lawyer objected to the announcement of the testimony of witnesses who did not appear in court for an unknown reason; in one the defendant (at the hearing in which he took part) objected to the announcement of the victim's testimony. As a result, the testimonies of 220 witnesses and 62 victims were read out, of which a total of 232 people did not appear for an unknown reason.
It also seems necessary to note that in many cases in criminal cases there is no evidence at all that witnesses were actually summoned to the court session.
Moreover, in some cases not a single person appeared at the hearing (neither witnesses, nor the defendant, nor the victim, nor the defense lawyer, nor the state prosecutor). There are 10 such cases in the studied cases. In 6 of them, there is no evidence in the materials of the criminal case that anyone was summoned to the court session at all. As a rule, this situation takes place in the first court hearing assigned to the case.
On 77% of the number of cases studied, completed by the passing of a verdict, the testimony of the defendant, given to him in the course of the preliminary investigation, was announced in the court session.
Additional evidence is usually not presented in court proceedings conducted in absentia. On the cases studied, at the hearing held in the absence of the defendant, any additional materials, evidence was presented only in 8% of cases (of which in half of the cases - by the prosecutor). For comparison: in cases in which a court decision was made in a special order, additional evidence, materials were submitted to the court in 13% of cases (of which a little less than half - at the initiative of the prosecutor). Personal witnesses were interviewed in 4% of such cases.
In cases considered in absentia, the defense has never made any remarks or objections to the read out written materials.
Thus, the trial in absentia, which, according to the law, must have an adversarial nature, be conducted in the context of oral, direct examination of evidence, in practice actually turns into written proceedings.
in which only the materials prepared in the course of the preliminary investigation are announced (but not investigated in adversarial conditions).
Moreover, there are some grounds to believe that in a number of cases the absentee procedure is used by judges not because of the impossibility of the defendant's participation in the court session, but in order to simplify the judicial procedure. So, for 19% of the studied cases, the minutes of the court session, conducted in the absence of both the defendant and the victim, is dated by the same date as the statement of the defendant (or the statement of both the defendant and the victim) with a request to consider the case in his (their) absence. That is, the trial was carried out in absentia, despite the fact that the participants (the defendant, the victim) appeared to participate in the consideration of the case on the day appointed by the court.
3. Sentences passed both as a result of the application of a special procedure for the adoption of a court decision and as a result of the absentee hearing of the case are extremely rarely subject to appeal. So, in the studied cases, considered in a special order, cassation complaints, presentations are available for 8.3% of the studied cases. At the same time, not a single verdict or court ruling has been appealed in the studied cases, considered in absentia.
Apparently, this may be due to the untimely familiarization of the convicts, in whose absence the sentence was passed, with its text. Information about the delivery of a copy of the verdict to the convicted person (directly or through his lawyer, another person) in the studied cases is available only in 27 cases, which is 35.5% of the cases in which the verdict in absentia was passed. Under these conditions, the convicted person is actually deprived of the opportunity to appeal the sentence, since he learns about its content outside the period allotted for its appeal, only after the sentence comes into legal force and its appeal to execution. This creates an obstacle to the free exercise of his right to appeal.
Thus, the practice of considering criminal cases by the courts allows us to conclude that both the special procedure for making a court decision and the proceedings in absentia actually represent two ways of simplifying the proceedings, used in slightly different situations.
At the same time, from a practical point of view, both for the court and for the participants in the process, it is essential which of these two methods will be used:
A) From the point of view of punitive practice, there are two contradictory principles at once, each of which is provided to us not completely fair in relation to persons conscientiously exercising their rights.
On the one hand, although the trial procedure in absentia is, in essence, simplified, although the defendant, when applying for its application, thereby reduces the time and money spent on legal proceedings, the legislator does not provide any reward for such behavior, which puts a bona fide defendant for such de-
lamas in an unequal position in comparison with the defendants, in respect of whom a special procedure for the adoption of a judicial decision is applied.
On the other hand, as already mentioned above, in practice, the courts do not prescribe in cases considered in the absence of the defendant, actual imprisonment as a punishment, which, apparently, is due to the uncertainty of the procedure for applying to the execution of such a sentence. At the same time, in cases of similar severity, in which a decision is made in a special order, cases of application of real imprisonment do take place. Accordingly, an unscrupulous accused who abuses his right to participate in the trial may be an advantage over the accused who commits positive post-criminal behavior.
B) The duration of the consideration of a criminal case in a special order and the trial in absentia differ greatly. A court decision in a special order is taken, as a rule (79% of cases), in the first (and only) court session, which takes (judging by the minutes of court sessions) from 40 minutes to 1.5 hours (this time also includes the time spent on writing and the announcement of the verdict in the case). Only in 13% of cases 2 court sessions were required, in 7% of cases - 3 court sessions and in 0.6% of cases it was required to appoint 6 or more court sessions.
In contrast, the absentee consideration of the case, as we have already shown above, requires a much more significant investment of time. It should be noted that the defendant's failure to appear is the most common, but far from the only reason for the postponement of court hearings. In addition, the court sessions were postponed due to the failure of the victim to appear, due to the failure of the defense lawyer, due to the failure of the public prosecutor, due to the failure of all or some of the witnesses to appear, to request new evidence or to call additional witnesses. At the same time, it seems extremely negative that the fact that in the cases studied 17% of all deposits were associated with organizational reasons, including: the defendant's untimely receipt of a copy of the decision on the appointment of a court session, the judge's being on vacation or his employment in another process (including in the consideration of a civil case). The prevalence of this type of cause varies greatly from court to court and from judge to judge. Thus, one of the justices of the peace in the Tomsk region needed 131 court sessions to consider 21 criminal cases in absentia. At the same time, out of 110 deposits and breaks, 38 (34.5%) had the only reason for the organizational problems of the judge (including 18 court sessions did not take place due to the judge's employment in another (civil) case, another 10 broke down due to the judge's employment in another criminal case, in 5 cases the judge was at school, in 3 - he was resting).
In one of the studied criminal cases (according to part 2 of Art. 116 of the Criminal Code of the Russian Federation), 14 court sessions were scheduled. 7 of them did not take place due to the defendant's failure to appear. At the same time, in relation to him, a forced drive was assigned three times (executed 1 time), a search order was issued. At the same time, 4 (!) Court sessions
denmark did not take place for organizational reasons (2 times - the judge's employment in another civil case, 2 times - the judge's employment in another criminal case), moreover, as follows from the case materials, in at least one of such cases, all participants in the process appeared in court to participate in the court session. As a result, the criminal case was terminated two years later due to the expiration of the statute of limitations for criminal proceedings.
Thus, a trial conducted in absentia, although it is simplified, when it is applied, as a rule, passes a very significant period of time from the moment the case is submitted to the court until the final decision is made on it. This circumstance greatly influences the degree of realization in such cases of the right of the victim and the defendant to access to justice, a fair trial, carried out within a reasonable time.
C) The above peculiarity of the absentee procedure for considering cases entails one more negative consequence for the accused. In contrast to the special procedure for making a court decision, in the case of a trial in absentia, the convicted person, even if he applied for the application of this procedure and did not shy away from appearing in court, is obliged to reimburse the procedural costs (including the payment for the assistance of the defense lawyer appointed to him) ... At the same time, each failed court session (regardless of what caused its disruption, even if the judge was disorganized), if an appointed defender came to it, increases the amount of money collected from the convicted person in the end.
D) Finally, it is also preferable for a judge to make a court decision in a special order, rather than to conduct a trial in the absence of the defendant, since in the first case, his time and effort spent on writing a judgment is much lower than in the second, when the judgment is drawn up in compliance with the general requirements.
Thus, the two considered orders, can be defined as simplified procedures of legal proceedings, currently occupy approximately the same "niche", are focused on approximately the same range of cases, but at the same time create inequality in rights for their participants, unjustified in terms of their behavior in the process, their demonstrated goodwill and the degree of their good faith. So, to the defendant in one of the studied criminal cases, who timely filed a petition for the application of a special procedure for making a court decision, and then did not appear at the court session without good reason, was put on the wanted list, then taken into custody and finally brought before the court (in the sixth court session), all the "bonuses" associated with special order making a judgment. And other defendants, who also asked for the application of a special procedure for the adoption of a court decision, but who are in the hospital due to a sharp deterioration in their health and who, for this reason, cannot appear at the hearing, who have made requests in this regard to consider the case in their absence, of this kind they are deprived of advantages, and even have to pay for the assistance of a defender in every failed
not through their fault at the hearing. Therefore, we believe that both of the above industries need to be adjusted, namely:
1. In 80% of the studied materials of criminal cases, in which the accused filed a petition for the application of a special procedure for making a court decision, there is a more or less detailed, more or less successful protocol of explaining to him the right to file such a petition. At the same time, in 95% of the materials of criminal cases considered in absentia, for which there is no similar request, there is no corresponding protocol. This, in our opinion, testifies to the fact that often the failure of the accused to submit a petition to apply a special procedure for making a court decision is associated with nothing more than his ignorance of the essence and features of this order. Hence, the criminal procedural law should, it seems, contain more stringent requirements in terms of the timely explanation to the accused of his right to file a petition for the application of a special procedure, coupled with an explanation of the specifics of such an order. In addition, in our opinion, there is no need to prohibit a severe restriction on the possibility of filing such a petition after the appointment of a court session (especially in a situation where the judicial investigation does not begin at the fifth, eighth, tenth, etc. court session).
2. It seems justified to somewhat soften the approach to the obligatory personal participation of the defendant in the court session if a special procedure for making a court decision is applied. In fact, the existing order in the form as it is enshrined in the law does not make it possible to apply a special order, despite the desire of the defendant and the consent of other participants, in the event that the defendant, for objective reasons, is not able to appear at the court session, which is unfair to him. It seems that the court should be allowed in some cases to make a decision in a special order and in the absence of the defendant, if the latter
Niy asks about it, and the judge's admission of his guilt does not raise doubts among the judge. However, it would be expedient to supplement such an innovation by expanding the possibility of appealing against such a decision (for example, in the case of the convict's statement that his admission of guilt was forced).
3. The procedure for trial in absentia should also be subject to change. They should pursue the following goals:
Expanding the possibility of holding proceedings in absentia (in cases of evasion of the defendant from appearing in court), subject to timely and proper notification of him about the time and place of the court session;
Introduce the mandatory participation of a defense attorney in all cases of absentee consideration of a criminal case;
Exceptions to oversimplification of court proceedings conducted in absentia;
Taking into account the behavior of the defendant when deciding the question of the measure of punishment and the recovery of legal costs, the emergence of a system of recourse to the execution of sentences in absentia to real imprisonment;
Ensuring the opportunity for the convicted (acquitted) to familiarize himself in a timely manner with the court verdict passed in his absence, which is necessary for the exercise of the right to appeal against him;
Introduce a clear procedure and grounds for canceling a verdict (ruling), rendered following the results of a court hearing in absentia, in the event that the convicted (acquitted) appears in court and (or) presents evidence that the reasons for his absence are valid.
Such changes will help to neutralize the existing law enforcement system, in which an unscrupulous accused may obstruct the conduct of a trial, may be in an advantageous position over a person who commits positive post-criminal acts, and they can also increase the degree of guarantee of everyone's right to judicial protection, eliminate contradictions and inconsistencies. between different types of summary court proceedings.
LITERATURE
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13. Kogamov M.Ch., Eralina L.A. Sentence in absentia: history of the issue and the needs of the practice of criminal procedure. Access mode: http://www.supcourt.kz/site/supcourt.nsf/Documents/BD60E8F0068EEAD1C6256D8300288A58?OpenDocument, free.
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Introduction h. 5 Art. 247 of the Code of Criminal Procedure of the Russian Federation is associated with the ratification by the Russian Federation of the European Convention of the Council of Europe on the Prevention of Terrorism and the adoption of the Federal Law “On Counteracting Terrorism”.
Federal Law of July 27, 2006 N 153 “On Amendments to Certain legislative acts RF ... ”allowed the absentee consideration of criminal cases in courts not only in relation to persons involved in terrorism, as the name of the bill implied, but also in general persons accused of committing grave and especially grave crimes, who evade appearing when summoned to courts.
In the explanatory note to the said draft law, it is noted that it is aimed at establishing “the possibility of conviction in absentia of persons involved in terrorism in the event that such persons are outside the territory of Russia and (or) evade appearing in court. A court verdict on the commission by a person of a terrorist act or other grave crime will also make it possible to increase the significance of the request for his extradition, if this person is outside the territory of Russia ”.
In fact, proposals made to amend Art. 247 of the Criminal Procedure Code of the Russian Federation is predetermined that:
- the result of the proceedings in absentia is always a conviction (as an increase in the importance of the request for extradition);
- proceedings in absentia apply to all criminal cases of a certain category, and not only in relation to persons involved in terrorism;
- the applied method of presentation of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation gives rise to an ambiguity in understanding its content, which, of course, may lead to its incorrect interpretation on the ground.
The law was adopted in an unsuccessful wording, and it is necessary, with only some reservations, to agree with the analysis of this norm carried out by I.L. Petrukhin, who, while recognizing the ambiguity of the wording of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, wrote: “It can be understood in the sense that this exception from general rule refers only to cases when the accused is abroad and does not appear when summoned to court. But the conjunction “or”, enclosed in brackets, suggests that this wording also applies to cases when a person on the territory of Russia avoids appearing in court, and this significantly expands the scope of the legal formula under consideration. The logical analysis of the legal norm that allows the examination of criminal cases in absentia allows us to assert that it does not apply to cases when a person is within the Russian Federation, since the next phrase “if the person has not been brought to justice on the territory of a foreign state” refers only to cases, when a person is abroad ”(“ Not guilty as a result of an objective and comprehensive judicial investigation ”).
Since such lawmaking should be recognized as unique from the point of view of the technique of presenting the norm, then, of course, the semantic meaning of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation requires not only legal analysis, but also grammatical one.
If you read this rule with the use of the connecting union “and”, then there should be no difficulties in law enforcement practice: “In exceptional cases, criminal proceedings on grave and especially grave crimes can be conducted in the absence of the defendant who is located outside the territory of Russia and refuses to appear in court, if this person has not been brought to justice on the territory of a foreign state in this criminal case ”. In the above text, five conditions are quite clearly visible, with the total presence of which it is possible to consider the case in absentia:
- exclusivity of the case;
- the presence of a criminal case on grave and especially grave crimes;
- finding the defendant outside the territory of the Russian Federation;
- evasion from appearing in court;
- failure to bring a person to justice on the territory of a foreign state in this criminal case.
The second variant of reading the Law with the dividing union “or” in the semantic meaning is unambiguously impossible to understand. This is evidenced by the comments of scientists, Resolution of the Plenum The Supreme Court RF of 22.12.2009 and judicial practice, which have different approaches to the interpretation and application of this norm, sometimes, from my point of view, in violation of the Law itself.
“In exceptional cases, the trial in criminal cases of grave and especially grave crimes may be conducted in the absence of the defendant who is outside the territory of Russia or evades appearing in court, if this person has not been brought to justice on the territory of a foreign state in this criminal case. ”. In this case, the union “or” indicates the need to choose one of the concepts:
- either the defendant must be outside the territory of the Russian Federation;
- or avoid appearing in court.
If we disassemble the sentence with the dividing union “or” into its component parts, then the text of the Law in the first version reads as follows: “In exceptional cases in cases of grave or especially grave crimes, criminal proceedings can be conducted in the absence of the defendant who is outside the territory Russia, if this person has not been brought to justice on the territory of a foreign state in this criminal case ”.
In such an interpretation, a strong-willed sign completely drops out. Indeed, in order to consider a case in absentia, it is necessary to establish that the defendant knows about the consideration of his case, but he refuses to appear at the hearing, i.e. evades appearing in court. The defendant may temporarily leave the territory of the Russian Federation and go abroad on a business trip, vacation, etc., and consideration of the case in absentia in this case is an indisputable violation of the right to defense.
The second component of the sentence with the dividing union “or” in content is the following: “In exceptional cases in cases of grave or especially grave crimes, criminal proceedings may be conducted in the absence of the defendant who evades the appearance in court, if this person was not prosecuted on the territory of a foreign state in this criminal case ”.
The analysis of the norm in such a construction should be carried out on the basis of the last phrase “if this person has not been brought to justice on the territory of a foreign state in this criminal case”.
Let us ask ourselves a question: who can be prosecuted on the territory of a foreign state in this criminal case, i.e. in a case pending in a Russian court?
Only those persons, as P.E. Kondratov, which are listed in Art. 12 of the Criminal Code of the Russian Federation (Scientific and Practical Commentary on the Code of Criminal Procedure of the Russian Federation / Edited by V.M. Lebedev and V.P. Bozhiev).
These include citizens of Russia, as well as stateless persons permanently residing in it, Foreign citizens and stateless persons not permanently residing in Russia, who, outside Russia, have committed a crime against the interests of Russia, either a citizen of the Russian Federation, or a stateless person permanently residing in the Russian Federation, as well as in cases stipulated by an international treaty of Russia.
From the above, it can be concluded that in this case, in absentia, it is possible to consider criminal cases against the aforementioned persons, if it is established that they are evading to appear in court.
It should be noted that the legislator, while simultaneously making changes to Art. 12 of the Criminal Code of the Russian Federation and Art. 247 of the Code of Criminal Procedure of the Russian Federation, linked these laws with a single concept - crimes against security Of the Russian state and its citizens, committed either in Russia or abroad by persons refusing to appear before justice.
This also follows from the explanatory note to the draft Federal Law “On Amendments to Certain Legislative Acts in Connection with the Adoption of the Federal Law“ On Ratification of the Council of Europe Convention on the Prevention of Terrorism ”and the Federal Law“ On Countering Terrorism ”and the Laws themselves.
It seems that in the order of the requirements of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, criminal cases in absentia can also be considered in relation to the persons listed in paragraph 4 of Part 1 of Art. 238 of the Criminal Procedure Code of the Russian Federation, as specifically indicated by Part 3 of the same article. An attempt to rank the action of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation in other cases is fraught with interpretation outside the framework of the law.
In this regard, quite interesting is the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 2009 “On the application by courts of the norms of criminal procedure legislation governing the preparation of a criminal case for trial”, where in paragraph 13 the courts are given the following clarification: “Within the meaning of Part. 5 tbsp. 247 of the Code of Criminal Procedure of the Russian Federation, the court has the right to consider a criminal case in the absence of an accused who is outside Russia, who evades appearing in court and has not been brought to criminal responsibility on the territory of a foreign state in this criminal case, as well as in cases when the accused who is on the territory Russia, evades the appearance in court and his location is unknown. "
It is interesting because this is a completely different interpretation of the law and here some concepts are displaced, which determine the meaning of this law, and therefore must be considered from a different angle.
If we proceed from the message of the Supreme Court of the Russian Federation, then in relation to any accused who is on the territory of Russia, but evades the appearance of the accused, the case can be considered in absentia. And this, as I.L. Petrukhin, “is becoming a mass phenomenon incompatible with the democratic foundations of justice. Such persons should be searched for and forcibly taken to court, and not organized mass trials in the absence of the defendants, who will be deprived of one of the most important guarantees of the accused's right to defense. ”
It is impossible to explain why in the Resolution the condition set out in the law “if this person was not brought to justice on the territory of a foreign state in this criminal case” applies only to those persons who are outside Russia, while this condition also applies to those persons who are who “(or) shy away from appearing in court”?
Recently, the legislator quite often uses in the texts of laws the grammatical construction with the unions “and (or)” (see, for example, the Federal Law “On Credit Cooperation”). But if, when reading such laws, regardless of the use of the union, the legal meaning inherent in them does not change, but only the scope of application of this law is expanded, then in this part of the article (Part 5 of Art. is lost legal content norms.
Based on this, it seems to me, it is necessary to legislatively amend Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, excluding the union “or” from the text of the article.
Simultaneously with the amendment of Art. 247 of the Code of Criminal Procedure of the Russian Federation, the law amended a number of articles of the Criminal Procedure Code of the Russian Federation, in particular, Art. 229 "Grounds for holding a preliminary hearing", which was supplemented by clause 4.1, the Law provides for the mandatory holding of a preliminary hearing if there is a petition from a party to conduct a trial in the manner provided for in Part 5 of Art. 247 of the Criminal Procedure Code of the Russian Federation.
Amendments to Art. 229 of the Code of Criminal Procedure of the Russian Federation once again confirms the exclusivity of the case of considering criminal cases on grave or especially grave crimes in absentia, because a petition for a preliminary hearing must be made by a party either when familiarizing with the case materials, or within three days from the date of receipt by the accused (lawyer) copies of the indictment. Thus, by this time the party should already be aware of the circumstances specified in Part 5 of Art. 247 of the Criminal Procedure Code of the Russian Federation.
The law does not specify which of the parties is entitled to make such a request. Only the court is excluded from the participants, which, on its own initiative, cannot make such a decision on the absentee hearing of the case.
Chapters 6 and 7 of the Code of Criminal Procedure of the Russian Federation list the participants in criminal proceedings on the part of the prosecution and on the part of the defense. Meanwhile, the stage of the trial narrows the scope of representation of the parties, and the stage of the preliminary hearing, which is held behind closed doors, allows only those participants in the proceedings who have the right to be present at the hearing of a case of a grave or especially grave crime.
Although the law confirms the possibility of any participant (on the part of the prosecution or on the part of the defense) of criminal proceedings to file a petition for the consideration of the case in absentia, meanwhile, logically, the defense side does not have the right to do this, because absentee proceedings are always at least a limitation of rights client.
After all, the consideration of the case according to the rules of proceedings in absentia, as already noted, presupposes the ruling of only a guilty verdict, and this position is clearly seen from the explanatory note to the bill.
Federal Law “On advocacy and the legal profession in Russia ”(Art. 7) and the Code of Professional Ethics of a Lawyer (Art. 8) do not allow the lawyer to act contrary to the interests of the client.
Considering that new law does not exclude the conduct of the accused without interrogation if he is abroad and evades the appearance in court, and his participation in the court session is not expected, then the defense generally loses the main content of its function “to sow reasonable doubts in the evidence of the prosecution”. Therefore, the application for an absentee hearing by the defense not only does not follow from the scope of the rights and obligations of a lawyer, but is fraught with a violation of professional ethics.
There is one more argument in support of this position. Within the meaning of Art. 229 of the Code of Criminal Procedure of the Russian Federation, a petition for an absentee examination of a criminal case is submitted by a party to writing... Already at the stage of filing such a petition, it must be substantiated by the party applying to the court. That is, the court must be presented with evidence confirming the existence of conditions for the absentee consideration of the case, in particular:
- documentary data testifying to the presence of a person abroad;
- data confirming his evasion from appearing in court;
- information confirming that this person was not prosecuted on the territory of a foreign state in this criminal case.
In addition, the party must justify the exclusivity of the case for the absentee consideration of the criminal case. Only if the specified information is available at the preliminary hearing stage, the court can decide the issue of a possible consideration of the case by way of absentee proceedings in the court session.
It seems that the defense side, due to the specifics of its activities, and its purpose in such a process, cannot have a set of such documents, which practically excludes it from the number of participants who have the right to make such requests.
If we delve into the essence of the problem, then we can definitely say that neither theoretically nor practically the possibility of solving the issue of considering a case in absentia at the stage of preliminary hearing has been analyzed at all.
If, before the start of the preliminary hearing, a party has the right to file a motion to consider the case in absentia (and this is already when familiarizing with the case materials or within 3 days after serving a copy of the indictment), then the conditions that give rise to such proceedings occurred in stages of investigation.
The Federal Law of 27.07.2006 amended only section IX of the RF Code of Criminal Procedure “Proceedings in the Court of First Instance”, which provide the court with the opportunity to consider cases in absentia. No changes have been made to Section VIII of the RF Code of Criminal Procedure “Preliminary Investigation”. Thus, the law does not allow the preliminary investigation in absentia, in particular, the accusation in absentia and the absentee acquaintance with the case materials.
By ratifying the European Convention on Human Rights, Russia has undertaken the obligation to ensure to everyone under its jurisdiction the rights and freedoms defined in Section 1 of this Convention, including the right of the accused to be promptly and in detail notified in a language that he understands about the nature and basis of the accusations against him (v. 6).
Imagine a situation when a person who has committed a crime on the territory of the Russian Federation that is not related to the manifestation of terrorism is abroad and has received a certain status there. A criminal case is being instituted against him, an investigation is underway, certain evidence has been collected, and the extradition of this person has been refused, and even Russia does not have with this state international treaties either agreement. The European Convention on Extradition (Extradition) of 1957 does not provide for the procedure for compulsory familiarization of the person, about whom there is a request for extradition, with the charge brought against him and receiving an explanation from him about the charge brought against him, especially since the legislation of a number of states allows consideration of extradition materials in the absence of main persons. Then it turns out that the court, satisfying the petition to consider the case in absentia, is forced to deliver a knowingly unjust verdict, since the preliminary investigation was carried out in respect of the accused in absentia and there is a violation of his rights to defense.
The initiators of the bill in the explanatory note in support of their position indicate that “a court verdict on the commission by a person of a terrorist act or other grave crime will increase the significance of the request for its extradition, if this person is outside the territory of the Russian Federation”.
The European Convention on Extradition (Extradition), among the documents that the requesting party has the right to attach to its request, also names a court verdict. The question remains: can a sentence in absentia in a case investigated in absentia serve as a basis for the extradition of a person to a foreign state? The answer to this question can theoretically be given by every lawyer in Russia, but in practice - only by the requested country.
It seems that these contradictions in the legislation should be eliminated.
In the course of the investigation of such cases, it is necessary to make full use of all forms of interaction with the competent authorities and officials foreign states and international organizations in accordance with the requirements of Section XVIII of the Code of Criminal Procedure of the Russian Federation, in particular, provided for by Art. 453 of the Criminal Procedure Code of the Russian Federation.
There are still a few issues that are important to discuss in order to uniformly apply Art. 247 of the Criminal Procedure Code of the Russian Federation. Part five of this article indicates the possibility of using the extramural form of production in exceptional cases.
What is meant by the exclusivity of the case, the law does not disclose, and this is the basis for giving clarifications on issues judicial practice The Plenum of the Supreme Court of the Russian Federation in its Resolution of 12/22/2009 N 28 “On the application by courts of the norms of criminal procedure legislation governing the preparation of a criminal case for trial” indicated that “under exceptional cases when the court has the right to conduct a trial in absentia, subject to the availability of conditions, specified in part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, it should be understood, for example, the special social danger of the crime of which the defendant is accused, the need to compensate for the substantial harm caused by the crime, the cases when the search for the accused did not give positive results, the impossibility of extradition ”.
This broad interpretation of the notion “exceptional case” is perplexing, because, based on the logic of the Supreme Court of the Russian Federation, all cases in which the investigating authorities, regardless of the place of stay of the accused, did not want to look for him, did not find or did not take appropriate measures to this be considered in absentia. Then what is exclusivity?
The word "exceptional" means a special, separate, exclusive, exception. In this interpretation of this concept by the Plenum, there is no exception, and this is evident from the analysis of a number of procedural rules governing the investigation.
According to Art. 208 of the Code of Criminal Procedure of the Russian Federation, the preliminary investigation is suspended in relation to a specific suspect or accused if there is one of the following grounds:
- the suspect or the accused has disappeared from the investigation or his location has not been established for other reasons;
- the location of the suspect or the accused is known, but there is no real possibility of his participation in the criminal case;
- a temporary serious illness of a suspect or accused, certified by a medical certificate, prevents his participation in investigative and other procedural actions.
If the Plenum of the Supreme Court of the Russian Federation considers the first two grounds to be exceptional cases, then in fact cases of temporary serious illness of the suspect and the accused are exceptional, since there are only a few such cases. But the most dangerous thing is that such an explanation high court opens a wide avenue for the courts to issue sentences in cases in which preliminary investigation carried out in absentia.
So, if on preliminary investigation a person, after a decision was made to bring him to justice (by the way, in the course of the investigation, the investigator has the right to file charges more than once, depending on the change in its volume), disappeared and has been on the wanted list for several years, then such a search can be considered ineffective and , based on the Resolution of the Plenary Session, to deliver a verdict in absentia.
Wrong, from my point of view, is the confusion of the two concepts: 1) the defendant's evasion from appearing in court; and 2) there is evidence that the defendant has disappeared. These are completely different grounds for applying different procedural rules.
Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation quite definitely indicates that a case in absentia can be considered by a court if the defendant avoids appearing in court.
Evasion of appearance in court is the failure to appear without good reason of a person duly notified of the place, date and time of the consideration of the case. Lack of information about the whereabouts of the defendant excludes his recognition as a person who avoids appearing in court.
In Art. 238 of the Code of Criminal Procedure of the Russian Federation, the legislator clearly indicates that in the presence of the conditions listed in Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation (that is, the defendant's stay abroad and evasion from appearing in court), and the petition of the party, the criminal case on the grounds of his failure to appear is not suspended by the proceedings, but is considered in absentia.
By proposing to consider an exceptional case when deciding on the absentee hearing of a case at the preliminary hearing stage when the search for the accused (and not the defendant) did not give positive results, the Supreme Court of the Russian Federation not only expanded the scope of the law, but also did not take into account that the legislator had not made any changes in st. 208 of the Criminal Procedure Code of the Russian Federation, and this does not imply the termination of the search at this stage. In addition, giving clarifications in this part, the Supreme Court of the Russian Federation does not specify who and by what criteria should determine that the search did not give positive results. As you know, the prosecutor exercises control over the search, the jurisdiction of the court includes only sending inquiries about the results of the search, the court itself has no right to demand materials to check the effectiveness of the actions of employees of the system of the Ministry of Internal Affairs of the Russian Federation. The Resolution also does not name the time criteria from which the court should proceed when determining the time period when on these grounds it is possible to satisfy the party's petition.
It is not by chance that the legislator introduced the statute of limitations for criminal prosecution, and this imposes obligations on the relevant authorities to search for those who have disappeared. The mass consideration of criminal cases in the absence of the defendants, as suggested by the Supreme Court of the Russian Federation in its Resolution of the Plenum, will lead to the loss of the meaning of the introduced norm, and the conviction of persons on the basis of failure to appear will distort the essence of justice.
In addition to the preliminary hearing, a petition to consider a criminal case in accordance with the requirements of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation can be declared by a party in a court session (Article 253 of the Code of Criminal Procedure of the Russian Federation).
The legal meaning of this provision in the amended version of July 27, 2006 once again indicates the incorrectness of the position chosen in the Resolution of the Plenum of the Supreme Court of the Russian Federation.
The law clearly subdivides the grounds for considering a case in absentia and grounds for suspending the case by proceedings. Part 3 of this article states that “if the defendant has disappeared ... the court shall suspend the proceedings against this defendant until his search ...”. The only exception is the case specified in Part 5 of Art. 247 of the Criminal Procedure Code of the Russian Federation, i.e. when the defendant is abroad and evades the appearance in court. Only then, as follows from Part 4 of Art. 253 of the Code of Criminal Procedure, at the request of the parties, the trial is conducted in the absence of the defendant.
Arguing about the possibility of considering a case in absentia at the stage of trial, one should pay attention to one more problem. Until July 2006, when the law did not provide for the right of absentee proceedings in cases of grave and especially grave crimes, there were a significant number of criminal cases in the courts, suspended in connection with the search for the defendants.
It is not enough to say that the search and control over its production were often ineffective; in fact, it seemed that the law enforcement agencies lacked any desire to achieve a result, and measures of interaction at the international level were practically not applied.
There are known cases when the search was carried out at the address incorrectly indicated in the indictment, in relation to a person drafted into the army or already in places of imprisonment for another case, etc. All this is nothing more than a formal approach of the relevant authorities to the implementation of the law in criminal cases pending in the courts.
In a word, such cases could lie for years, but with the advent of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, the judges began to consider them. Is it correct? Are we not facilitating, to the detriment of justice, the working conditions for law enforcement agencies? I will not discuss the legality of the decisions made, my position is clear, and the rest is up to the Supreme Court of the Russian Federation.
Article 4 of the Criminal Procedure Code of the Russian Federation gives the concept of the operation of the criminal procedure law in time. In a criminal proceeding, the criminal procedural law shall be applied, which is in effect during the production of the corresponding procedural action or the adoption of a procedural decision, unless otherwise provided by this Code. Based on this law, it is quite permissible to consider criminal cases, legal relations in which arose before its adoption.
However, it should be borne in mind that again adopted law, its part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, firstly, it significantly limits the rights of the defendants to defense; secondly, the courts, suspending the cases by proceedings and announcing the search for the defendants, actually expressed their opinion: “Find and consider the case in the presence of the defendant”; thirdly, the law itself, its part five of Art. 247 of the Code of Criminal Procedure of the Russian Federation, does not name such a basis for considering the case in absentia as hiding the defendant from the court, and, fourthly, the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 2009 does not contain an indication that the explanations given by him are retroactive (see Resolution of the Constitutional Court of the Russian Federation of 21.01.2010 N 1-P).
Although we are talking about the action in time of the procedural norm, nevertheless, its application should be limited. Introduction h. 5 Art. 247 of the Criminal Procedure Code of the Russian Federation, based on international rules, significantly narrows the scope of the right to defense. Analyzing the Resolution The Constitutional Court RF of 21.01.2010 N 1-P, one should apply an analogy and come to the conclusion that if procedural rule and its subsequent interpretation “lead to a deterioration legal status citizen, such norms and their interpretation cannot be given retroactive force ”.
In such circumstances, it seems to me that the courts were not entitled to consider in absentia criminal cases that were suspended until July 2006, and the cases that were in the proceedings of the courts after the adoption of the law could be considered in absentia only in strict accordance with it. norms.
In general, the decisions made on the introduction of the practice of absentee consideration of criminal cases without the will of the defendants themselves give rise to more questions than answers, cause and will cause heated discussions, and history will put everything in its place and give its assessment of the lawmaking and law enforcement of this time.
CORRESPONDENCE CONSIDERATION OF CRIMINAL CASES
V.A. Sementsov S.V. RUDAKOVA
Absentee consideration of criminal cases is one of the topical, but almost unexplored problems of modern criminal justice in Russia, the study of which is impossible without addressing the issues of history, because, "defining the tasks and directions of our activities, each of us must be at least a little bit of a historian."
In the pre-reform (before 1864) period, the possibility of considering a case in the absence of the defendant was allowed according to the Military Article of 1715. From the moment of the adoption of the Charter of Criminal Procedure in 1864, absentee proceedings were provided only for crimes attributed to the jurisdiction of world justice, for which there was a threat of punishment not exceeding arrest. However, by law of February 15, 1888, proceedings in absentia became possible also in cases of general provisions on crimes for which punishments were determined not related to deprivation or restriction of the rights of the state. As a prerequisite for the proceedings in absentia, the defendant's failure to appear in court without good reason was indicated. At the same time, the defendant, who received a copy of the court's decision in absentia, had the right to demand, within two weeks, that the same judge or court again consider the same case on the merits, but with his participation. Moreover, if the defendant did not appear in court for the second time, then the judge, without starting a new trial, confirmed his previous verdict and appointed the defendant a pecuniary punishment for the second failure to appear. Moreover, the secondary absentee decision, noted I.Ya. Foinitsky, had a force greater than even a personal sentence.
Despite the possibility of considering the case in the absence of the defendant, the 1864 Charter of Criminal Procedure had a procedural mechanism to ensure the appearance of the defendant in court, which in some situations was very effective and deserves attention today. In the case when the personal appearance of the defendant was required, but he did not appear, and all measures to search for him gave negative results, the court, on the proposal of the judicial investigator, the proposal of the prosecutor, or at its own discretion, sent an order to publish information about the search for the person in the Senate announcements and in the statements both capitals and local provinces. When there was reason to believe that the accused was abroad, then his summons to the court were published in statements published in foreign languages. At the same time, the court gave an order to take the defendant's estate into custody. And if, within six months after the publication of the wanted list, the accused did not appear in court and was not found, then the court, postponing the trial until his appearance or detention, issued a ruling on the disposal of the defendant's property in accordance with the rules established in relation to the missing persons.
Consideration of criminal cases in the court of first instance in the absence of the defendant was envisaged by Part 2 of Art. 246 of the Code of Criminal Procedure of the RSFSR 1960, but in exceptional cases, if this did not interfere with the establishment of the truth in the case. These exceptions included the following: 1) if the defendant was outside the USSR and avoided appearing in court; 2) if in the case of a crime for which a punishment in the form of imprisonment could not be imposed, the defendant requested the hearing of the case in his absence. At the same time, the court had the right to recognize the presence of the defendant as compulsory.
In the original version of the Criminal Procedure Code of the Russian Federation of 2001, only one reason was indicated for conducting a trial in the absence of the defendant in the event that in a criminal case of a crime of small or medium gravity, the defendant petitioned for the consideration of this criminal case in his absence (part 4 of article 247 Code of Criminal Procedure of the Russian Federation). Federal law of July 27, 2006 Art. 247 of the Code of Criminal Procedure of the Russian Federation was supplemented by part five, according to which, in exceptional cases, criminal proceedings on grave and especially grave crimes can be conducted in the absence of a defendant who is outside the territory of the Russian Federation and (or) avoids appearing in court if this person was not brought to responsibility in this criminal case on the territory of a foreign state.
This addition was associated with the adoption of the Federal Law "On Ratification of the Council of Europe Convention on the Prevention of Terrorism" and the Federal Law "On Countering Terrorism", which caused a discussion among scientists and practitioners due to the not entirely correct expression of the legislator's thoughts and the need to improve the institution of considering criminal cases in the absence of the defendant.
First of all, the law does not clarify what should be understood as exceptional cases of criminal proceedings in the absence of the defendant, and this, as rightly noted in the literature, "too widens the scope of judicial discretion." According to some authors, the uncertainty of the criterion "exceptional" indicates the impossibility of considering a case with the participation of the defendant and the related prospect of loss of evidence, death of witnesses, victims, non-extradition of the defendant by a foreign state, etc. ...
In the Explanatory Dictionary of the Russian language, "exceptional" is understood as being an exception (something that does not fit the general rule, a deviation from it), does not apply equally to everyone, unprecedented, extraordinary.
The Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 2009 notes that “under exceptional cases, when the court is entitled to conduct a trial in absentia, subject to the conditions specified in part 5 of Article 247 of the Code of Criminal Procedure of the Russian Federation, one should understand, for example, the special social danger of a crime, of which the defendant is accused, the need to compensate the victim for significant harm caused by the crime, cases when the search for the accused did not give positive results, the impossibility of extraditing the accused. "
Based on the interpretation of the exclusivity of cases of judicial proceedings in criminal cases in the absence of the defendant as a deviation from the general rule on the mandatory participation of the defendant in the consideration of the case on the merits, and also taking into account the conditionality of the introduction of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation (as amended on July 27, 2006) by the adoption of laws aimed at countering terrorism, it would be logical to assume that the absentee consideration of criminal cases depends not on the category of crimes (grave or especially grave), but on their type (crimes of a terrorist character).
At the same time, in practice, the need to use absentee consideration of criminal cases is motivated by the fact that a significant number of persons accused of committing grave and especially grave crimes are on the wanted list. Thus, on March 10, 2009, a judge of the Sovetskiy District Court of Krasnodar issued an order to consider the criminal case in the absence of the defendant Zhirnyak. According to the judge, the exclusivity of the circumstances allowing the application of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, was that the search for the defendant did not give any results.
This practice conflicts with paragraph "d" of Part 3 of Art. 14 of the International Covenant on Civil and Political Rights of December 16, 1966, in force in the territory modern Russia, according to which everyone has the right “to be tried in his presence and to defend himself in person or through legal assistance of his own choosing”.
It seems that mass consideration of cases of grave and especially grave crimes, for which the defendants are wanted, in absentia, violates their right to defense, the defendants are deprived of the opportunity to personally be present in the courtroom, to testify, to object to the charges brought against them, file motions and challenges. In our opinion, criminal cases should be considered in absentia by courts in exceptional cases that are really aimed at countering terrorism. The range of such crimes, based on the provisions of the Federal Law "On Countering Terrorism", the Criminal Code of the Russian Federation and Part 2 of Art. 100 of the Code of Criminal Procedure of the Russian Federation, includes twelve corpus delicti, the proportion of which in the total committed crimes is an insignificant number.
Absentee consideration of a criminal case in accordance with Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation could not but touch upon ensuring the right of the accused, the defendant to defense, which led to the introduction of another case of mandatory participation of a defense lawyer. In accordance with clause 3.1, part 1 of Art. 51 of the Code of Criminal Procedure of the Russian Federation, the participation of a defense attorney in criminal proceedings is mandatory if the trial is conducted in the manner prescribed by Part 5 of Art. 247 of the Criminal Procedure Code of the Russian Federation.
It would seem that the issue of the obligatory participation of a defense attorney in absentee consideration of criminal cases by the court has been resolved, the goal of ensuring the accused's right to defense and implementation of the adversarial principles of criminal proceedings has been achieved. However, the legislator does not stop at this and in part 6 of Art. 247 of the Code of Criminal Procedure of the Russian Federation (duplicating the provisions of Part 1 and Part 2 of Art. 50, Clause 3.1 of Part 1 of Art. 51 of the Code of Criminal Procedure of the Russian Federation) again indicates the obligatory participation of a defense lawyer in the trial in the absence of the defendant, who is invited by the defendant or appointed by the court. Therefore, Part 6 of Art. 247 should be excluded from the RF Criminal Procedure Code.
Objections are raised to the requirements of Part 7 of Art. 247 of the Criminal Procedure Code of the Russian Federation, according to which, in the event of elimination of the circumstances specified in part 5 of the same article, the verdict or ruling of the court, rendered in absentia, at the request of the convicted person or his defense lawyer, are canceled by way of supervision. Trial in this case, it is carried out in the usual manner. It follows from these provisions of the law that the appearance of a convicted person in absentia in court is an unconditional basis for the cancellation of a sentence that has entered into legal force. It is completely incomprehensible, O.V. Khitrov, why the legislator grants such privileges to a person who did not use the subjective right and at the same time violated the procedural obligation to appear in court.
As you know, the review of judicial decisions by way of supervision is an exceptional stage of criminal proceedings, within which a judicial decision must be canceled in the event of a miscarriage of justice. The entire mechanism for the consideration of criminal cases in the order of supervision is intended solely for the correction of judicial errors contained in the entered into force court decisions, in the interests of protecting the rights of convicts.
In our case, if the convicted person, for example, is detained or appears to the court himself, the court's verdict is subject to cancellation at his request by way of supervision. We believe that the procedure for overturning a court verdict in absentia is unjustifiably complicated, and we share the opinion of other scholars about the advisability of making amendments to the criminal procedure law that would make it possible to consider such a petition by the judge who passed the sentence, with the case, after canceling, for a new trial in a different composition of the court. in the usual way.
Summing up the study of the issue of absentee consideration of criminal cases and taking into account that the named institution was introduced by the legislator to counter terrorism, we propose parts five and seven of Art. 247 of the Code of Criminal Procedure of the Russian Federation shall be stated as follows:
"5. In exceptional cases, the trial in criminal cases of crimes of a terrorist nature may be conducted in the absence of the defendant who is outside the territory of the Russian Federation and evades the appearance in court, if this person has not been brought to justice on the territory of a foreign state for this criminal business.
7. In case of elimination of the circumstances specified in part five of this article, the verdict or ruling of the court, rendered in absentia, at the request of the convicted person or his defense counsel, shall be canceled by the decision of the court that passed the verdict. In this case, the court proceedings shall be conducted in the usual manner in a different composition of the court. "
Part six of Art. 247 of the Code of Criminal Procedure of the Russian Federation shall be excluded (part seven shall be considered part six).
Literature
1. Klyuchevsky V.I. Op. M., 1956.Vol. 1.P. 44.
2. Foinitskiy I.Ya. Criminal Procedure Course. SPb., 1996.T. 2.S. 493.
3. Quoted. Quoted from: A. Proshlyakov, A. Pushkarev, trial in absentia and retroactive force of the criminal law // Criminal law... 2007. N 3.S. 127.
4. Petrukhin I.L. On consideration of criminal cases in absentia // Advocate. 2007. N 12.S. 34.
5. Kukushkin P., Kurchenko V. Trial in absentia // Legality. 2007. N 7.S. 16.
6. Ozhegov S.I., Shvedova N.Yu. Dictionary Russian language: 80,000 words and phraseological expressions. M., 1999.S. 251.
7. Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 2009 N 28 "On the application by courts of the norms of criminal procedure legislation governing the preparation of a criminal case for trial". Access. from the sprav.-legal system "ConsultantPlus".
8. Archive of the Soviet District Court of Krasnodar for 2009
9. United Nations Treaty Series. Vol. 999. P. 229.
10. Arabuli D.T. Correspondence proceedings in criminal cases: history and modernity: Textbook. manual / Scientific. ed. Doctor of Law, prof. A.P. Guskova. Chelyabinsk, 2007.S. 68.
11. Khitrova OV Trial in the absence of the defendant // Vestnik OSU. 2006. N 9. Appendix. P. 155.
12. Scientific and practical guide to the application of the Criminal Procedure Code of the Russian Federation / Ed. V.M. Lebedev. M., 2004.S. 303.
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