Key concepts:
· Criminal process
Appeal against court decisions
· Jury trial
Literature for preparation:
Criminal process)
Criminal procedural legislation
Principles of Criminal Procedure. Presumption of innocence.
The Code contains starting positions, or basic principles of criminal justice.
1. It proclaims the absence of an accusatory bias, that is, it emphasizes that just punishment is just as consistent with the purpose of criminal proceedings as is the acquittal of the innocent.
2. The principle of legality means that all actions of the investigative and judicial authorities must be based on the law.
3. As in the civil procedure, it is established that justice is administered only by the court.
4. Do I need to explain the meaning of the postulate of respect for the honor and dignity of the individual? It means that no one can be subjected to violence, torture, humiliation or insult both during the investigation and in court.
5. The inviolability of the person is also proclaimed. Hence it follows that no one can be detained (arrested) without the grounds specified in the Criminal Procedure Code, and if there are grounds without a court decision - longer than 48 hours. If a violation of these rules is found, the detainee is subject to immediate release. In all cases, conditions of detention must exclude danger to life and health.
6. Let us also mention the principle of the inviolability of the home, which means that searches, seizures and other procedural actions are allowed only by a court decision (with the exception of special cases).
7. Of particular importance is the presumption of innocence, meaning that the accused is presumed innocent until the conviction is confirmed, and the prosecution must prove guilty.
8. The most important for the defense is the adversarial nature of the parties in the trial, when the prosecution and defense are equal before the court, enjoy equal rights to prove their position, etc.
9.publicity
10. And finally, we note only two more principles: ensuring the suspect, the accused, the defendant the right to defense
11.the opportunity to appeal against the procedural actions of the court and officials.
Participants in criminal proceedings. Rights and obligations of participants in criminal proceedings.
if the civil procedure concerns only judicial trial, then the criminal process also covers pre-trial proceedings - initiation of a criminal case and preliminary investigation
participants (subjects) of the process
1. The court is either single-handed, or (in case of grave and especially grave crimes) in the composition of three judges, or with the participation of a jury).
2. on the part of the prosecution. First of all, these are state bodies and their officials (they, in fact, conduct criminal proceedings and apply procedural measures of coercion, which we will talk about later).
1) Article 37. Prosecutor
2) Article 38. Investigator
3) Article 39. Head of the investigative body
4) Article 40. Body of inquiry
5) Article 41. Inquirer
6) Article 42. Victim
7) Article 43. Private prosecutor
8) Article 44. Civil plaintiff
9) Article 45. Representatives of the victim, civil claimant and private prosecutor
The prosecutor oversees the investigation and inquiry and supports the prosecution at trial.
The investigator conducts a preliminary, i.e., pre-trial, investigation.
The body of inquiry, the interrogator carry out an inquiry, that is, urgent investigative actions, as well as an investigation on simple cases (usually these are the bodies and employees of the Ministry of Internal Affairs, the Ministry of Emergencies, but there are others).
On the same side, the victim acts, that is, the person who has been harmed by the crime, etc.
Evidence and proof
Code of Criminal Procedure, Article 74. Evidence
The following are admitted as evidence:
1) the testimony of the suspect, the accused;
2) testimony of the victim, witness;
3) the conclusion and testimony of an expert;
3.1) conclusion and testimony of a specialist;
4) material evidence;
5) protocols of investigative and judicial actions;
6) other documents.
Inadmissible evidence includes:
1) the testimony of the suspect, the accused, given during the pre-trial proceedings in a criminal case in the absence of a defense lawyer, including cases of refusal from a defense lawyer, and not confirmed by the suspect accused in court;
2) testimony of the victim, witness based on guesswork, assumption, hearsay, as well as testimony of a witness who cannot indicate the source of his knowledge;
3) other evidence obtained in violation of the requirements of this Code.
Chapter 11. Proof
Article 85. Proof
Evidence consists in the collection, verification and assessment of evidence in order to establish the circumstances provided for article 73 of this Code.
Article 86. Collection of evidence
1. The collection of evidence is carried out in the course of criminal proceedings by an inquiry officer, investigator, prosecutor and court through the performance of investigative and other procedural actions provided for by this Code.
2. The suspect, the accused, as well as the victim, civil plaintiff, civil defendant and their representatives shall have the right to collect and submit written documents and objects for inclusion in the criminal case as evidence.
3. The defense attorney has the right to collect evidence by:
1) receiving items, documents and other information;
2) interviewing persons with their consent;
3) requesting certificates, characteristics, other documents from public authorities, bodies local government, public associations and organizations that are obliged to provide the requested documents or their copies.
Article 87. Verification of evidence
The verification of evidence is carried out by the inquiry officer, investigator, prosecutor, court by comparing them with other evidence available in the criminal case, as well as establishing their sources, obtaining other evidence confirming or refuting the verified evidence.
Article 88. Rules for the assessment of evidence
1. Each evidence is subject to assessment from the point of view of relevance, admissibility, reliability, and all collected evidence in the aggregate - sufficiency for the resolution of the criminal case.
2. In the cases specified in part two Article 75 of this Code, the court, the prosecutor, the investigator, the interrogating officer shall recognize the evidence as inadmissible.
3. The prosecutor, the investigator, the interrogating officer shall have the right to recognize the evidence as inadmissible at the request of the suspect, the accused, or on their own initiative. Evidence found to be inadmissible shall not be included in an indictment, indictment, or indictment.
4. The court has the right to recognize the evidence inadmissible at the request of the parties or on its own initiative in the manner prescribed Articles 234 and 235 of this Code.
Article 89. Use in proving the results of operational-search activities
In the process of proving it is prohibited use of results operational-search activities, if they do not meet the requirements for evidence by this Code.
Measures of procedural compulsion
1.detention,
detention without the sanction of a prosecutor only in extreme cases. At the same time, notification of the prosecutor within 12 hours is mandatory
Within 3 hours it is necessary to draw up a protocol of detention (with a note on clarification of rights), notify the family within 12 hours, and immediately conduct an interrogation. The term of detention cannot exceed 48 hours. The detainee is guaranteed a number of rights: to file petitions, to demand a defense lawyer
2.measures of restraint
1) a written undertaking not to leave (from a given locality);
2) personal surety (of a trustworthy person);
4) house arrest;
5) detention, etc.
(applies only by a court decision, in the case of a crime for which the punishment may be more than two years in prison, if it is impossible to apply a softer measure, as well as in relation to persons who may hide, obstruct the investigation, etc. (2 months) may be extended by the court only in exceptional cases.)
3. obligation to appear,
4.drive,
5. suspension from office,
6. the seizure of property,
7.payment
Pre-trial proceedings
1. Criminal proceedings begin with the initiation of a criminal case.
The law distinguishes between the reason and the grounds for initiating a criminal case.
The reason is
1) a statement of a crime,
2) a confession,
3) another message about a committed or impending crime;
the basis is the availability of sufficient data indicating signs of a crime
If there is a reason and grounds, a decision is made to initiate a criminal case.
This can do:
1.the body of inquiry, the interrogator
2.investigator, with the consent of the prosecutor,
3. prosecutor?
According to article 40 of the Criminal Procedure Code of the Russian Federation, the bodies of inquiry include:
1) internal affairs bodies Russian Federation as well as other bodies executive power endowed in accordance with federal law with the authority to carry out operational-search activities;
2) bodies of the Federal Service bailiffs;
3) commanders military units, formations, chiefs of military institutions
4) bodies of state fire supervision of the federal fire service.
In addition, the inquiry is made:
Interrogators of border authorities federal service security - in criminal cases on crimes provided for in Articles 253 and 256 (in the part related to illegal production of aquatic animals and plants discovered by the border authorities of the Federal Security Service), part 1 of article 322 and part 1 of article 323 of the Criminal Code of the Russian Federation
Inquirers of bodies for the control of the circulation of narcotic drugs and psychotropic substances - in criminal cases on crimes provided for by part 1 of Article 228, Article 228.2, Part 1 of Article 230, Part 1 of Article 231, Part 1 of Article 232, Article 233 and Parts 1 and 4 article 234 of the Criminal Code of the Russian Federation.
2. After the initiation of a criminal case, a preliminary investigation begins.
Or in the form of an inquiry,
or in the form of a preliminary investigation.
The investigative actions carried out by the investigator can be divided into two groups:
some are made by order of the investigator,
1) interrogation;
2) confrontation;
3) identification,
4) seizure from (i.e. seizure of objects, documents, etc.).
Based judgment carried out:
1) detention,
2) house arrest;
3) search and (or) seizure of the dwelling;
4) establishment of control and recording of telephone and other conversations, etc.
Result: a decision to prosecute as an accused.
Within 3 days after this, the presentation of the pre-trial charges must take place.
3. At the end of the investigation, the investigator acquaints the accused and his defense lawyer with the materials of the case.
During the period of familiarization with the case, petitions and statements are presented and resolved.
A protocol of familiarization with the materials of the criminal case is drawn up.
4. An indictment is drawn up, which contains information about the accused, the crime, the wording of the accusation, the statement of evidence for the prosecution and defense, etc. It, together with the case, is sent to the prosecutor.
5. The prosecutor checks the case again
he has the right to amend the indictment, return the case for further investigation.
If there are grounds, the prosecutor has the right to terminate the case. The grounds for dismissing the case are indicated in the CCP. It:
1) non-involvement of the accused in the crime;
2) the absence of a crime event (for example, the person whose murder is imputed to the accused turned out to be alive);
3) lack of guilt;
4) expiration of the statute of limitations for criminal prosecution
If the prosecutor agrees with the indictment, he confirms it and sends the case to court. A copy of the indictment shall be handed to the accused without fail,
Note"Private prosecution cases".
These include cases under four articles of the Criminal Code of the Russian Federation:
1) intentional infliction easy harm health
3) libel (except for public and in the charge of a serious crime)
4) insult
These cases are initiated directly in court at the request of the victim and can be terminated by reconciliation of the parties. No investigation is carried out in these cases.
1.the case is submitted to the court At this stage, as well as in civil court, the judge single-handedly decides whether the case is ready for consideration on the merits.
In particular, it finds out: whether the criminal case is within the jurisdiction of the given court; whether copies of the indictment were served; whether the preventive measure is subject to cancellation or change; whether complaints and petitions are subject to satisfaction, whether there are grounds for holding a preliminary hearing, etc. After that, the judge makes one of the following decisions: on the direction of the criminal case according to the jurisdiction; on the appointment of a preliminary hearing; on the appointment of a court session.
The decision is taken no later than 30 days, and if the accused is in custody - no later than 14 days from the date the criminal case was filed with the court.
The trial is conducted basically according to the same principles that you familiarized yourself with in the civil procedure (publicity; adversariality; equality of arms, record keeping, etc.). It must begin no later than 14 days from the date of appointment. The prosecutor is the prosecutor, and the defender, as a rule, is a lawyer.
2. The trial itself goes through the same stages as in the civil procedure. At the preparatory stage, the judge checks the attendance, establishes the identity of the defendant, whether he has received an indictment, allows petitions, etc. After the preparatory part, the judicial investigation begins.
3. The judicial investigation begins with the statement of the indictment by the prosecutor. The defendant answers whether he understands the accusation and whether he pleads guilty.
The parties have the right to ask each other questions. Then the defendant is interrogated, followed by the interrogation of witnesses.
4. At the end of the trial, the parties proceed to the arguments of the parties (ie, speeches of the prosecutor and the defense attorney), then the so-called remarks of the parties, in which each party can object to the arguments of the other. After the remarks, the last word of the defendant sounds.
5. The trial ends with a verdict, that is, a court ruling on the guilt or innocence of the defendant and the imposition of punishment on him, or, accordingly, acquittal. The ruling and pronouncement of the verdict is similar to the ruling in a civil court. The structure and formal content of the sentence are also regulated by the CPC. The verdict (as well as the decision) must be lawful, well-founded
The verdict, like the decision, comes into force in 10 days, if not appealed.
6. The procedure for appeal is similar.
1) a judgment rendered by a justice of the peace (only cases of crimes for which maximum terms punishment of no more than 3 years of imprisonment, and even then, in addition to many exceptions specified in the law), can be appealed on appeal, and then the case is considered almost anew district court composed of one judge.
2) In the cassation procedure, the appeal is filed with the judicial collegium for criminal cases of the regional, city, etc. court.
3) The ruling of the cassation instance and the sentences that have entered into legal force are appealed against by way of supervision to the same supervisory authorities as in civil cases. Both instances also do not examine the factual side of the case, but consider only the legality, validity and fairness of the sentence and have rights similar to civil procedure to review it.
4) Similarly to the decision, the verdict is appealed against on the basis of newly discovered circumstances.
Terms of appeal:
Since 2013
- for appeal on appeal - 10 days from the date of announcement of the verdict or other appealed decision, and for convicted persons held in custody from the moment of receipt of the appealed decision;
- for appeal in cassation and supervisory procedure, a period of 1 year has been established from the date of entry into force of the judgment or other contested court decision.
Since 2015, Russian President Vladimir Putin has signed amendments to Criminal procedural code RF which introduced indefinite appeal of court decisions that have entered into force in cassation and supervisory procedure
Jury trial
12 people, legal education not required
Only for articles where it is provided the death penalty or life imprisonment
Defendant's petition
The decision made by the jury is called the verdict (from the Latin vera dictum - rightly said).
They only need to answer three (but most important) questions:
1) whether it has been proven that there has been an act of which the defendant is accused;
2) whether it has been proven that the act was committed by the defendant;
3) is the defendant guilty of this crime?
And if the defendant is found guilty, the fourth question should be answered: does the defendant deserve leniency?
The trial itself is held according to the same principles as in an ordinary court, but with the peculiarities caused by the participation of the jury. The court, with the participation of the parties, formulates questions for assessors in a questionnaire. The judge hands it over to the foreman, and all answers are given on this sheet. In addition, before the collegium is removed to the meeting, the judge pronounces a parting word in which he summarizes what happened at the meeting, explains the law under which the defendant is accused, and the rules for passing a verdict, the procedure for holding a meeting, voting, etc. In this case, the judge does not have the right to express his opinion about the guilt of the defendant.
Upon announcement of an acquittal, the defendant is immediately released from custody. After the announcement of the guilty verdict, a discussion of the consequences of the verdict is held with the participation of the parties, and then everything proceeds as in a regular court, including the issuance and announcement of the verdict.
Features of the criminal procedure
Key concepts:
· Criminal process
Participants and stages of criminal proceedings
Appeal against court decisions
· Jury trial
Literature for preparation:
1. Right. Grade 11: profile level / ed. L. N. Bogolyubova. 5th ed. M., Education, 2008. Chapter 7. Paragraph 28.
2. Social studies. Complete express tutor. / Ed. P.A. Baranova. M., Astrel, 2013. Section 5. Topic 16.
CRIMINAL PROCEDURAL LAW ( Criminal process)
Criminal proceedings- regulated by the norms of criminal procedural law the activities of the bodies of inquiry, investigators, prosecutors and courts for criminal investigation, that is, the activity of initiating a criminal investigation, its investigation, trial, sentencing (another decision in the case), revision of a decision in higher courts, execution of a court decision that has entered into legal force.
In a narrow sense- only the trial stage.
Criminal procedural activity consists of a system of procedural actions, in which, in addition to state bodies (officials), persons are involved who are involved in the proceedings in a particular procedural situation. For this participation, the law gives them procedural rights or obliges you to perform specific actions. In some cases, they perform procedural actions by virtue of the rights granted to them or the duties assigned to them (they initiate motions, file challenges, present evidence, appear in judicial pleadings, appeal against actions and decisions government agencies etc.), in other cases they are involved in the case, for example, as an accused, participate in ongoing investigative actions (interrogations, examinations, investigative experiments and others) or are subject to coercive measures. In the actions performed by the bodies conducting the criminal proceedings on the case, the persons participating in the case exercise their rights. (For example, the investigator, at the request of "the accused or the victim, orders an examination.)
Criminal procedural activity is a system of procedural actions performed both by state bodies and by all persons participating in the proceedings.
In accordance with Art. 2 CPC tasks of criminal proceedings are:
1) prompt and complete disclosure of crimes;
2) exposure of the guilty;
3) the correct application of any laws, so that everyone who committed a crime will be subjected to just punishment and no innocent person will be prosecuted. criminal liability and convicted;
4) crime prevention;
5) protection of the rights and legitimate interests of participants in the process, the interests of society and the state;
6) education of law-abiding citizens.
2. Criminal procedural legislation and trends in its development.
Improvement of the percent of legislation in the direction of its democratization and compliance with international legal standards was expressed in the adoption of the Code of Criminal Procedure of the Russian Federation on December 18, 2001, and subsequent amendments and additions to the Code of Criminal Procedure of the Russian Federation, introduced in recent years, as well as in legislative acts on the status of judges, on the prosecutor's office and etc.
These changes and additions are being carried out in line with the ideas laid down in the concept of judicial reform, but the entire criminal process has not yet been brought into line with the concept of judicial reform and the principles enshrined in the 1993 Constitution of the Russian Federation.
Judicial reform as one of the directions of formation the rule of law it cannot be understood narrowly as referring only to the position and activities of the court or to individual private amendments and additions to the current legislation. This is a radical transformation of the entire organization of state bodies conducting criminal proceedings, this is significant changes in the principles and procedure of legal proceedings, the position of the individual in criminal proceedings.
Judicial reform involves organization of preliminary investigation, which would strengthen the independence and responsibility of the investigator for the actions taken and decisions made, lead to the correct ratio of the operational-search and investigative activities, provided suspects, accused, victims and other participants in the process with reliable guarantees of their rights during the preliminary investigation, including by granting them the right to appeal the actions and decisions of the investigator and the prosecutor in court, ensure the equality of parties and adversarial proceedings.
The ideas of radical changes in the criminal process, its principles, forms towards democratization and humanization are expressed in the concept of judicial reform in the Russian Federation:
· In the new legislation, all rudiments of the court's accusatory role that are present in the current CPC, (the right of the court to initiate criminal cases; the duty of the court, and not of the prosecutor-prosecutor, to send a copy of the indictment to the defendant; the duty of the court to fill the gaps in the preliminary investigation by independently searching for evidence; announcement by the court of the indictment, etc.)
· The criminal procedure should be based on adversarial principles.
Key provisions of judicial reform along with the introduction of the jury:
· Differentiation of forms of criminal proceedings;
· Judicial control over the legality and validity of the proceedings at the early stages of the process;
· Development of the adversarial principle at the pre-trial stages of the process and in court proceedings;
• deprivation of justice of accusatory traits;
· Determination of strict criteria for the admissibility of evidence and the introduction of the practice of rules for the timely exclusion of inadmissible evidence;
Expanding the rights of the parties to collect and attach evidence
Gain judicial control for the observance of constitutional rights and freedoms of citizens to preliminary investigation consists in the fact that only by a court decision should be possible arrest, detention, search, seizure of postal and telegraph correspondence, wiretapping.
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1. General characteristics of criminal proceedings and its purpose
The activities of the bodies of inquiry, the investigator, the prosecutor and the court on investigation, trial and settlement of criminal cases are of a public nature. Crimes as the most dangerous species offenses, cause serious harm to individuals, human and civil rights and freedoms, society, and the state. This obliges the competent authorities of the state to take all measures provided by law to protect the rights and legitimate interests of a person and citizen, property, public order and public safety, environment, constitutional order The Russian Federation from criminal encroachments, ensuring peace and security of mankind, as well as preventing crime.
The implementation of these tasks in criminal proceedings is achieved by initiating a criminal case, prosecuting persons who have committed a crime, bringing them to justice, trial and resolution of the case so that the person who committed the crime is convicted and subjected to just punishment or, in accordance with the law , exempt from responsibility or punishment. The criminal procedure must protect the innocent from criminal prosecution and conviction, and in the event that such conviction or persecution has taken place, ensure the rehabilitation of the innocent.
The activities of the court, the prosecutor, the investigator, the bodies of inquiry have a decisive and organizing importance in the investigation and trial of criminal cases. State bodies and officials are responsible for the legal proceedings in a criminal case, the legality of the decisions taken.
This activity, however, does not exhaust the content of criminal proceedings. Criminal procedural activity consists of a system of procedural actions, in which, in addition to state bodies (officials), persons are involved, in one or another procedural capacity, involved in the proceedings. For this participation, the law gives them procedural rights or obliges them to perform specific actions. In some cases, they perform procedural actions by virtue of the rights granted to them (initiate petitions, file challenges, submit evidence, appeal against actions and decisions of state bodies, etc.), in others? perform their duties (the witness gives evidence, the accused is summoned by the investigator, the court, etc.).
The entire system of criminal procedural actions and each individual action are carried out in prescribed by law okay. This order (procedural procedure) is mandatory for everyone (parts 1, 2, article 1 of the Criminal Procedure Code); it is he who ensures the legality of the proceedings on the case, the rights, interests and freedoms of the persons participating in the case, creates guarantees of the validity and fairness of the decisions taken.
Thus, criminal proceedings? this is an activity carried out in accordance with the procedure established by law for the initiation, investigation, consideration and resolution of criminal cases.
In Art. 6 of the Code of Criminal Procedure, it is written that criminal proceedings have as their purpose:
1) protection of the rights and legitimate interests of persons and organizations, victims of a crime;
2) protection of a person from unlawful and unfounded accusations, convictions, restrictions on their rights and freedoms.
2. Criminal procedural legislation and tendencies of its development in the era of reforms
In theory and practice, the concept of "criminal procedure law" is used ambiguously. It is often understood as a form of legal acts that contain rules governing public relations in the field of criminal proceedings, and these norms themselves, the content and system of which form criminal procedural law. With this approach, the concept of "criminal procedural law" denotes the form and content of criminal procedural law, taken in organic unity. For example, they say: the criminal procedure law establishes the rights of the participants in the process, the powers of the investigator, the conditions of the trial.
The concept of "criminal procedural law" is used to designate normative legal acts, in which procedural norms are enshrined. In this sense, the law as an act of the highest legal force adopted the legislature RF, is the only source of criminal procedure law. This means that criminal procedural norms can only be contained in federal laws, i.e. in regulatory legal acts adopted by the highest legislative body. The Constitution of the Russian Federation attributed to the jurisdiction of the Russian Federation the judiciary, the prosecutor's office, criminal and criminal procedure legislation (clause "o" of Article 71 of the Constitution of the Russian Federation).
"The procedure for criminal proceedings on the territory of the Russian Federation is established by this Code, based on the Constitution of the Russian Federation",? said in part 1 of Art. 1 of the Criminal Procedure Code.
The concept of judicial reform was used as the basis for the development of the Criminal Procedure Code, adopted by The State Duma November 22, 2001. It embodies the principles of legal proceedings set forth in the Constitution of the Russian Federation and international legal documents, including strengthening judicial control over the legality of actions and decisions taken during preliminary investigation, ensuring the rights and freedoms of man and citizen, especially in the pre-trial stages, equality and competition of the parties in court. The Code entered into force on July 1, 2002, with the exception of provisions for which Federal law"On the enactment of the Criminal Procedure Code of the Russian Federation" established other terms and procedure for enactment
The Criminal Procedure Code of the Russian Federation as a Systematized Code legal regulations, in the interrelation and substantive unity of the governing criminal proceedings as a whole and its individual parts, stages, stages, institutions? taking into account their general properties, features and manifestations,? is intended to ensure the uniformity and consistency of regulatory and legal provisions and the law enforcement practice emerging on their basis, which determines the prohibition of this Code as a law regulating criminal proceedings.
The Code of Criminal Procedure of the Russian Federation is a codified act in which, on the basis of the Constitution of the Russian Federation, general provisions relating to all legal proceedings are determined, and the procedure for production at each stage of the process of production of individual actions and decision-making both on the case as a whole and on individual issues is specified.
In general, characterizing the criminal proceedings under the Code of Criminal Procedure of the Russian Federation, it should be noted in it the features of the so-called mixed process, in which the pre-trial proceedings are dominated by the prosecutor, investigator, interrogator, who are empowered to conduct investigative and other procedural actions, including taking measures procedural compulsion. The participants in the process on the part of the defense are endowed with a set of corresponding rights.
The Code is divided into six parts: " General Provisions"," Pre-trial proceedings "," Court proceedings "," Special order of criminal proceedings "," International cooperation in the field of criminal proceedings "," Forms procedural documents", and includes 19 sections, 56 chapters, 474 articles.
3. Forms of criminal proceedings - history and modernity
Depending on what tasks are facing the criminal process, how the powers and functions of state bodies leading the process are defined, how much the human rights of a victim of a crime or accused of a crime are represented and protected in the process, what is the system of evidence, who is responsible for proving guilt , what decisions the court can make in the case, there are several types (forms) of criminal proceedings that have arisen in different periods stories in different states. These are: private lawsuits? accusatory, search (inquisitorial), adversarial and mixed types of proceedings.
The indictment process is characteristic of early feudalism.
Criminal prosecution was initiated on the basis of a complaint by the victim, who collected evidence and himself had to take care of bringing the accused to court.
The trial was adversarial and public. The case was decided on the basis of the evidence presented by the parties. The court only followed the competition of the parties (fights, hordes, etc.), listened to the witnesses and in its decision stated the outcome of the competition.
The system of evidence was a combination of "cleansing" oaths, duels and hordes. The winner of the duel was considered right.
With the strengthening of state power, with the development of a view of crime not as an offense inflicted on an individual or a small group of citizens, but as an encroachment directed against the government and the order established by it, an approach to the criminal process from the standpoint of resolving a dispute declared by a private prosecutor turns out to be unacceptable ...
The state power, concentrating punitive activities in its hands, eliminated the private lawsuit beginning of the accusatory criminal process and approved in the process the public beginning, when the state assumes the establishment of the perpetrator of a crime, thereby protecting its interests.
The essential features of the search (inquisition) process were the lack of rights of the accused and the possibility of competing with the prosecutor. This process is characterized by the merging in one person of the functions of the prosecutor and the judge. This process split into: a) search, investigation and b) court. Individual rights were not protected. The accused was a powerless object in the hands of the investigator and did not always know what exactly he was accused of. The theory of formal evidence was at work. Of decisive importance for the conviction was the confession of guilt by the defendants obtained as a result of torture, which meant establishing the truth in the case.
The investigation and trial were secret, secret, written. The search process knew three types of sentences: guilty, acquittal, and suspicion when there was insufficient evidence for conviction (the rule on the interpretation of doubts in favor of the accused did not apply). The final establishment of the criminal investigation process in Russia dates back to the beginning of the 18th century.
Bourgeois-democratic transformations led to the establishment of a new process (in Russia according to the Judicial Charters of 1864). This process was imbued with a public beginning, although some elements of a private lawsuit remained (for example, cases of the so-called private prosecution). The driving force behind the trial was the state prosecution. A new concept of evidence is being created, the main element of which is the assessment of evidence by inner conviction. Trial? adversarial, vowel and oral. This process is called adversarial, emphasizing the importance of this principle for the trial and for the decision of the case. A jury trial is introduced.
The adversarial process is based on the procedural separation of the functions of prosecution, defense and resolution of the case. The accused is presumed to be innocent until his guilt is established by a court verdict that has entered into legal force. At the same time, the accused does not prove his innocence (he has the right to remain silent), and the prosecutor, who bears the "burden" of proof, is responsible for proving the guilt of the accused, therefore, if the evidence presented by him does not lead the court to conviction of guilt, the accused must be acquitted. The refusal of the prosecutor from the charge obliges the court to acquit the defendant. The adversarial nature of the process (Great Britain, USA) is most clearly manifested when a case is being considered by a jury.
In a mixed criminal process, all the features, signs of search and adversarial processes are combined (combined). This type of process is characterized by a combination of preliminary, pre-trial proceedings, conducted according to the rules of the search process (the decisive role of the investigator, the prosecutor, the possibility, by their decision, to apply coercive measures to the suspect, the accused, restriction of the rights of the accused, to defense, etc.), and the trial, carried out on the basis of the separation of procedural functions and procedural equality of parties and adversariality (such a structure of the criminal process is typical for Germany, France, Russia according to the Judicial Charters of 1864). At the same time, as a rule, the presiding judge in the proceedings is endowed with discretionary rights; during the trial, he can make at his own discretion decisions on the reclamation and examination of evidence, in addition to the evidence presented by the parties. The judge does not act only as an arbiter between the disputing parties and can make a decision regardless of the position taken, for example, by the prosecution. In this way, the role of the court, for example, in the French trial, significantly differed and differs from the position of an arbitrator in the Anglo-American criminal trial.
In the Soviet state, especially in the 30s, the criminal process was clearly repressive. The preliminary investigation and trial were characterized by signs of a search (inquisitorial) type of process. Along with the courts, contrary to the constitutional provisions, criminal repression was also used by non-judicial bodies: a special meeting, "deuces", "troikas", etc., where the investigation of court proceedings and even the execution of the sentence were united in the same hands.
In 1958, the Fundamentals of Criminal Procedure of the Union of the USSR and the Union Republics were adopted, which expressed the principles in accordance with which the Criminal Procedure Code was adopted in the Union republics.
In 1960, the RSFSR Code of Criminal Procedure was adopted, which embodied many features of the search process, as evidenced by the lack of separation of functions between the prosecution and the court. By virtue of Art. 3 of the Code of Criminal Procedure of the RSFSR, the investigator, the prosecutor and the court equally bore the duty of disclosing crimes, exposing and punishing everyone who committed a crime. The court was empowered to return the case for additional investigation in cases where the materials of the case submitted to the court were insufficient for a conviction. The acquittals were passed in isolated cases. The court had the right to initiate proceedings on new charges and against new persons.
The right of the accused to a defense during the preliminary investigation was limited. Defender, according to the original version of Art. 47 of the Code of Criminal Procedure of the RSFSR, was allowed to participate in the case only after the completion of the investigation. After the entry of the verdict into legal force, it was possible on the protest of the prosecutor and even the Chairman The Supreme Court RSFSR or USSR revocation of the sentence and a new trial in order to increase the punishment imposed on the convicted person under the first sentence. The victim enjoyed very limited rights to protect his rights and legitimate interests.
All this indicated that the command-administrative system included the court as an important element of the command system of governing the country, therefore the court could not be a guarantee of human rights protection and often "the court was not at all a champion of the rule of law, but on the contrary, an instrument of state arbitrariness."
Adoption of the Constitution of the Russian Federation of 1993 from new strength discovered contradictions between its ideology, the principles enshrined in it and the Code of Criminal Procedure of the RSFSR, which required radical changes in the entire concept of criminal proceedings and the preparation of new criminal procedural legislation, as a result of which it was adopted new Criminal Procedure Code RF.
LIST OF USED SOURCES
1. The Constitution of the Russian Federation.
2. The Criminal Procedure Code of the Russian Federation.
3. Commentary on the Code of Criminal Procedure of the Russian Federation. Ed. AND I. Sukharev. - M. 2006.
4. Commentary on the Code of Criminal Procedure of the Russian Federation. Ed. D.N. Kozak, E.B. Mizulina. - M. 2002.
5. Commentary on the Code of Criminal Procedure of the Russian Federation. Under. Ed. I.L. Petrukhin. - M. 2002.
6. Pikalov I.A. Equality of the parties at the pre-trial stages of the criminal process // Law and Law. 2007. No. 6.
7. Criminal procedure: A textbook for university students enrolled in the specialty "Jurisprudence" / Ed. V.P. Bozhiev. M .: Spark, 2006.S. 384.
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Lecture:
Concept, signs and types of crimes
Any trials(civil, administrative or criminal) related to the investigation of offenses. They are divided into misdemeanors and crimes. Crimes are offenses committed guilty and the most dangerous for society, prohibited by the Criminal Code of the Russian Federation. The signs of a crime include:
- character and degree public danger;
- unlawfulness of an act in the form of an action (for example, beating) or inaction (for example, failure to provide assistance to a patient);
- presence of guilt: a) in the form direct intent(the person foresaw and wished the offensive publicly dangerous consequences acts) or indirect intent(the person foresaw the onset of socially dangerous consequences of the act, but was dismissive), in the form of negligence: criminal frivolity(the person foresaw the onset of socially dangerous consequences of the act, did not want them to occur, but reacted presumptuously to their possible onset) and criminal negligence(the person did not foresee the onset of socially dangerous consequences of the act because of his disdain for the law, official duties);
- punishability.
The Criminal Code of the Russian Federation divides crimes into four categories:
- minor crimes (imprisonment for no more than 3 years);
- crimes moderate(imprisonment for more than 3 years);
- serious crimes (imprisonment for no more than 10 years)
- especially grave crimes (imprisonment over 10 years).
According to the composition of the crime, they are divided into the following types:
- crimes against the person (for example, beatings, murder, kidnapping),
- economic crimes (for example, banking without a permit,
- crimes against public safety and public order (for example, terrorist act, hostage-taking, knowingly false reporting of an act of terrorism, banditry, vandalism, piracy),
- crimes against state power (for example, abuse of office, giving or receiving a bribe, inappropriate consumption of budget funds),
- crimes against military service(for example, refusal to comply with the commander's order, desertion, unauthorized departure from a military unit, intentional breakdown of weapons),
- crimes against the peace and security of mankind (for example, the use of prohibited means and methods of war, ecocide, genocide).
For the commission of a crime, such types of punishments as a fine, compulsory work, correctional labor, deprivation of the right to hold certain positions, deprivation of rank, arrest, imprisonment for a certain period, life imprisonment, death penalty. The latter type of punishment is provided for in the Criminal Code of the Russian Federation, but in our country a moratorium (suspension) has been declared on its application.
Operation of the criminal law
The criminal law is designed to restore social justice, punish and correct criminals. Like any other Russian law he has an action in a circle of faces, in time and space.
Action in a circle of faces: the criminal law applies to all persons (citizens, foreigners and stateless persons) who have committed a crime on the territory of Russia, with the exception of employees of embassies and international organizations endowed with immunity. The latter are expelled from Russia, and the cases are considered in accordance with the norms of international law.
Action in time: the criminality of the act is determined by the criminal law in force at the time of the commission of the crime. But if new law, adopted after the commission of a crime and canceling the action of the old, provides for a milder punishment, then a new one is applied. This rule also applies to those who are already serving a sentence. This is called the retroactive effect of the criminal law.
Action in space: all crimes committed by citizens, foreigners or stateless persons on the territory of the Russian Federation are punished under the criminal law of our country. If a Russian citizen has committed a crime on the territory foreign country, it cannot be issued to this state. If a crime has ever been committed by a foreigner or stateless person outside the territory of Russia, then it is handed over to the state on whose territory the crime was committed in order to bring it to justice.
Principles, participants and milestones criminal procedure of the Russian Federation
The criminal procedure is regulated by the norms of criminal procedure law. The Criminal Procedure Code of the Russian Federation (Code of Criminal Procedure of the Russian Federation) regulates:
the activities of the bodies of investigation and inquiry on the initiation, investigation and resolution of criminal cases,
activity of courts general jurisdiction on the consideration of a criminal case and sentencing.
The main goal of the criminal process is the restoration of justice, expressed in the restoration of the rights of the victim and the punishment of the guilty party. The criminal process is also aimed at protecting the accused from unjustified and unlawful conviction and punishment.
TO principles of criminal procedure principles already discussed civil procedure, and:
- inviolability of the person - a person cannot be detained or charged by law enforcement officers without legal grounds;
- inviolability of the home - law enforcement officers can enter a home only with the consent of residents or by presenting a court decision;
- presumption of innocence - a person cannot be considered guilty until proven guilty;
- privacy of correspondence and telephone conversations - limited only on the basis of a court decision.
By participants in the criminal process is an:
prosecution side: investigation and inquiry, prosecutor, victim and his lawyer;
side of the defense: the suspect, the accused, the defendant (in one person) and his lawyer;
witnesses, experts, translators and other professionals.
Stages of the criminal process :
- Criminal proceedings. This stage begins after a statement or report of a crime is received by the inquiry, investigation, prosecutor's office or court. Law enforcement agencies are required to respond to any information about crimes. And if they found signs of a crime in the events, then a criminal case is initiated.
- Preliminary investigation. The bodies of investigation and inquiry disclose the crime, investigate the circumstances of the case, and expose the perpetrators. At this stage, evidence is collected and verified. The collected material with the indictment is sent to the prosecutor for approval. Then the case goes to court.
- Committing the case to the court. In court, the case is studied in full. After that, a decision is made to bring the accused to trial. Organizational measures are being taken to prepare for the trial.
- Trial. At this stage, a court session is held in compliance with the principles of criminal procedure. All the circumstances of the case are investigated, witnesses are heard, the prosecution and defense parties appear. The stage ends with the passing of a verdict, which can be acquittal or conviction.
Criminal proceedings are carried out a number of functions significant for society :
- firstly, it protects the individual from unfounded accusations;
- secondly, it exposes the perpetrator of a crime;
- thirdly, makes a decision on the guilt or innocence of the accused person and delivers a verdict;
- fourthly, he assigns punishment or releases from custody.
When imposing a criminal penalty, the court takes into account mitigating and aggravating circumstances. TO mitigating circumstances, according to article 61 of the Criminal Code of the Russian Federation, include:
- commission of a crime of small and medium gravity for the first time and as a result of coincidence of accidental circumstances,
- minority,
- pregnancy and the presence of young children,
- committing a crime under threat,
- insanity
- necessary defense,
- confession, etc.
- relapse,
- the onset of grave consequences,
- group crime,
- the use of especially cruel methods,
- the use of weapons, etc.
Peculiarities of the criminal procedure in relation to minors
Juvenile justice is part of the field of juvenile justice, which establishes a special procedure for criminal proceedings against persons under the age of 18. Let's consider the main provisions:
- if a minor is detained, then the police officer is obliged to notify the legal representatives of the minor as soon as possible about the place of his whereabouts;
- the time of detention on charges of committing a crime cannot exceed 48 hours;
- interrogation of a minor under 14 years of age in the investigation authorities or in the court is carried out with the obligatory presence of a legal representative and a teacher or psychologist;
- interrogation cannot last more than 2 hours without interruption and more than 4 hours in total per day;
- interrogation cannot be carried out at night, except in cases of urgent delay;
- if in the course of the preliminary investigation of the case it is established that the correction of a minor will be achieved without applying a criminal penalty, then measures of compulsory educational influence are applied to him;
- minority is a circumstance mitigating criminal punishment;
- when sentencing, the living conditions and upbringing of a minor, his psychological characteristics are taken into account.
In the trial of grave crimes in criminal proceedings, jurors may be participants. The composition of 12 jurors (one of which is appointed by the chairman) is formed separately for each case. They can be any capable citizens who have reached the age of 25 and have no criminal record. After the trial, the jury retires to the deliberation room and, by voting, answers three questions:
- Has it been proven that the criminal act has been committed?
- Has it been proven that the defendant did it?
- Is the defendant guilty?
After the vote, a verdict is issued. If the votes "for" and "against" are equally distributed, the verdict is in favor of the defendant. The judge decides on the basis of the jury's verdict, as it is binding upon the judgment.
The jury is a hallmark of democracy and an important civil society institution dedicated to protecting human rights. Participation in jury trials allows citizens to exercise their right to participate in public affairs.
Domestic criminal justice was formed under the influence of the continental model, adapting its individual legal institutions to their conditions. The further reform of the judicial procedure in Russia was influenced by its obligations to the Council of Europe to bring national legal system in accordance with international standards.
The features of the procedure for considering criminal cases are influenced by the following factors: the degree of social danger of the crime; the size of the punishment; the degree of complexity of the investigation and resolution of the case; the significance of crimes for certain subjects (the completeness of the implementation of public principles); the identity of the accused, suspect; cooperation with justice.
The current Russian criminal procedural legislation provides for the following features of production: 1) criminal cases against minors (Chapter 50 of the Code of Criminal Procedure of the Russian Federation);
2) the use of compulsory medical measures (Chapter 51 of the Code of Criminal Procedure of the Russian Federation); 3) cases in relation selected categories persons (Chapter 52 of the Code of Criminal Procedure of the Russian Federation); 4) proceedings before a magistrate (Chapter 41 of the Code of Criminal Procedure of the Russian Federation); 5) proceedings in court with the participation of a jury (Chapter 42 of the Code of Criminal Procedure of the Russian Federation); 6) the adoption of a court decision, taking into account the consent of the accused with the charge brought against him (Chapter 40 of the Code of Criminal Procedure of the Russian Federation); 7) the adoption of a court decision upon conclusion pre-trial agreement about cooperation.
Features of consideration of materials on criminal cases of minors are as follows: 1) with the participation of a minor in the commission of a crime together with adults, the case in relation to his act should, if possible, be separated into separate production; 2) provides for the need to establish additional circumstances included in the subject of proof; 3) an inquiry officer, investigator, prosecutor and court should pay special attention to finding out the age of a minor, the conditions of his life and upbringing, the level of mental development and other features of his personality; 4) arrest and detention as a preventive measure can be applied to a minor only in exceptional cases; 5) the participation of a defense attorney is mandatory; 6) there are peculiarities of interrogating a minor with the participation of a teacher; 7) the participation of the legal representative of the minor is mandatory.
Proceedings with the use of compulsory medical measures are applied by the court to persons: 1) who have committed socially dangerous acts with signs of crimes provided for by the criminal law, in a state of insanity; 2) who, after committing a crime, have a mental disorder that makes it impossible to assign or execute punishment; 3) committed a crime and suffering from mental disorders that do not exclude sanity.
In a relationship these persons the court may prescribe the following types of compulsory medical measures: outpatient compulsory observation and treatment by a psychiatrist, compulsory treatment in a general psychiatric hospital, compulsory treatment in a specialized psychiatric hospital; compulsory treatment in a psychiatric hospital of a specialized type with intensive supervision.
The social and legal significance of the proceedings for the application of compulsory medical measures is as follows. First, this production harmoniously combines the interests of the person suffering from a mental disorder, society and the state. The presence of this production is an expression of the humane attitude of society towards the mentally ill. Secondly, this production is aimed at curing a person from mental illness or improving his mental state, returning to socially useful activities. Third, the presence of this procedural proceedings ensures the protection of individual citizens, society and the state from socially dangerous encroachments of persons suffering from mental disorders. Fourth, a special proceeding on the application of compulsory medical measures serves as an additional guarantee of the rights and legitimate interests of the mentally ill, preventing the unjustified application of these measures.
Criminal proceedings against certain categories of persons are special proceedings to establish the presence or absence of factual and legal grounds to initiate a criminal case and attract persons as accused, referring a criminal case to a court to find them guilty and determine their punishment
The list of categories of persons to whom the proceedings in question are applied is exhaustive and not subject to broad interpretation. This list is based on the law official position certain categories of persons or their criminal procedure status (deputy, judge, prosecutor, investigator, etc.). The main task of the considered production is state protection the rights and legitimate interests of officials and other persons in order to ensure the proper performance of the functions assigned to them.
A feature of the proceedings is the production of a private prosecution before the magistrate in criminal cases due to the fact that:
- 1) on them, as a rule, pre-trial preparation of materials in the form of a preliminary investigation is not carried out, with the exception of cases when a criminal case is initiated by an investigator or an inquiry officer with the consent of the prosecutor; 2) the judge is released in these criminal cases, as well as in all other cases, from accusatory functions unusual for the justice authorities and has no right to initiate criminal cases; 3) the proceedings on these criminal cases contain obligatory conduct conciliatory procedure. In the very general view private prosecution proceedings before the magistrate in criminal cases structurally include: 1) filing an application with the court;
- 2) acceptance by the judge of the application for his proceedings; 3) the appointment of the proceedings and preparation for its conduct; 4) proceedings before a magistrate 1.
At the request of the private prosecutor and the accused, the magistrate may assist them in collecting such evidence in a private prosecution criminal case that cannot be obtained by the parties to a criminal dispute on their own. In criminal cases on the crime of private prosecution, the defendant has the right to submit a counter-application for its consideration together with the application filed against him. It is allowed to combine the initial and counter statements in one proceeding by order of the magistrate. In this case, the persons who filed the initial and counterclaims participate in the process simultaneously as a private prosecutor and a defendant. The prosecution in court proceedings is supported by: 1) the public prosecutor, when a criminal case on a crime of private prosecution is initiated by an investigator or interrogating officer (with the consent of the prosecutor), as well as when the criminal case has been completed by drawing up an indictment or indictment and is subject to the jurisdiction of a magistrate; 2) a private prosecutor, his legal representative or representative - in cases of crimes of private prosecution.
There are peculiarities of consideration of criminal cases by a court with the participation of a jury. Such a court is formed and functions on fundamentally different grounds than a court consisting only of professional judges. The jury consists of two panels. The first panel is made up of 12 jurors who decide the so-called questions of fact. The second collegium is a sole professional judge who resolves, taking into account the opinions of the prosecution and defense parties, "questions of law" arising from the content of the jury's verdict.
The activities of a jury trial shall be determined taking into account the following provisions: 1) a jury shall consider cases that fall within the jurisdiction of the regional court, with the exception of acts of a terrorist nature; 2) a petition for the trial by a jury may be filed by the accused at the time of the end of his acquaintance with the materials of the criminal case, within three days from the date of receipt of a copy of the indictment, during the preliminary hearing at the stage of the appointment of the criminal case for trial; 3) the participation of a defense attorney is compulsory in a case to be considered by a court with the participation of a jury, from the moment at least one of the accused submits a petition for the consideration of his criminal case by a court with the participation of a jury; 4) appointment court session(bringing to trial) with the participation of a jury is carried out in the order of a preliminary hearing.
The peculiarities of the preparatory part of the proceedings in the court with the participation of the jury are as follows: 1) after the report on the attendance of the parties and other participants in the criminal process, the secretary of the court session or the assistant judge informs about the attendance of the candidates for the jury; 2) when less than 20 candidates for jury appear at the court session, the judge gives an order to the secretary of the court session or his assistant to summon additional candidates for jury to the court; 3) lists of candidates for jurors who have appeared at the court session (trial), without indicating their home address, are handed over to the parties; 4) when explaining to the parties to the case their rights, the presiding judge must additionally explain to them: a) the right to declare a reasoned challenge to a candidate for jury in a criminal case; b) the right of the defendant or his defense attorney, the public prosecutor to declare an unmotivated challenge to the juror, which can be declared by each of the participants twice; c) other rights, as well as the legal consequences of non-use by the parties of the procedural rights explained to them by the judge.
In the course of the judicial investigation of a criminal case in the presence of a jury, only those factual circumstances of the criminal case, the proof of which is within the powers of the jury, shall be investigated. Data on the personality of the defendant is investigated in the judicial investigation with the participation of the jury to the extent that they are necessary to establish in the act of certain elements of the corpus delicti of which he is accused. Procedural law prohibited to investigate in court with the participation of a jury the facts of the previous conviction of the defendant, recognition of him as a chronic alcoholic or drug addict, as well as other information about the personality (characteristics, health certificates, etc.) that could cause prejudice of the jury against the defendant.
The presiding judge in the deliberation room finally formulates the questions to be resolved by the jury, enters them into the questionnaire and signs this list. The questionnaire shall be read out in the presence of the jury and passed on to the foreman of the jury.
Before the jury is removed to the deliberation room, the judge shall deliver a parting word to the jury in which: 1) gives the content of the charge brought against the defendant, supported by the prosecutor; 2) informs about the content of the criminal law providing for liability for the commission of an act of which the defendant is accused;
3) reminds of the evidence examined in the proceedings, both incriminating the defendant and acquitting him, without expressing his attitude to this evidence and without drawing conclusions from it; 4) sets out the positions of the public prosecutor and defense counsel; 5) explain to the jury: a) the basic rules for assessing evidence in their totality; b) the essence of the principle of the presumption of innocence, the provision on the interpretation of irreparable or unresolved doubts in favor of the defendant, the provision that their verdict can be based only on the evidence that is directly investigated in the trial, the provision that there is no evidence for them have a predetermined force, the rule on the inadmissibility of substantiating their conclusions with assumptions, as well as circumstances that are not subject to investigation with the participation of a jury, and evidence recognized by the court as inadmissible; 6) draws the attention of the jury to the fact that the defendant's refusal to testify or his silence does not have legal significance and cannot be interpreted as evidence of the guilt of the defendant; 7) explain the procedure for a jury meeting, preparing answers to questions posed, voting on answers and passing a verdict.
A jury's verdict can only be passed in a deliberation room, in which only the jury must be present. The jury is led by the foreman, who raises questions for discussion in the sequence established by the questionnaire, votes on the answers to them and counts the votes. Voting is open. None of the jurors may abstain from voting.
Discussion of the consequences of the verdict includes: an examination of the evidence and circumstances entailing legal implications(judicial investigation); debates and remarks of the parties on issues related to the consequences of the verdict; the last word of the defendant in the event of a guilty verdict.
Chapter 40 of the Code of Criminal Procedure of the Russian Federation provides for a special procedure for the trial if the accused agrees with the charge brought against him. Two grounds are required to satisfy the accused's petition to apply a special procedure for the trial: 1) the accused must agree with the charge brought against him; 2) he must file a motion for a sentence to be passed without a trial in general order.
Along with the indicated grounds, the legislator also provided for the conditions for the application of a special order of trial: 1) the accused was charged with a crime, the punishment for which, provided for by the Criminal Code of the Russian Federation, does not exceed 10 years in prison; 2) the accusation, with which the accused (defendant) agreed, is justified, that is, it is confirmed by the evidence collected in the criminal case; 3) the accused is aware of the nature and consequences of the petition made by him; 4) the petition is filed by the accused after consultation with the defense lawyer; 5) the application was submitted by the accused voluntarily; 6) the application has been submitted by the accused in the presence of a defense lawyer; 7) the petition was filed by the accused after familiarization with the materials of the criminal case or directly at preliminary hearing; 8) the public or private prosecutor agrees with the petition made by the accused for a sentence to be passed without a general trial; 9) the victim (if there is a victim in the case) agrees with the petition made by the accused for a sentence to be passed without a general trial.
As a rule, only a combination of the specified grounds and conditions gives the right to the court to issue a verdict or ruling without conducting a general trial. The absence of at least one of these grounds and conditions excludes such a possibility.
Another special order the adoption of a court decision in a criminal case is provided for by Ch. 40 1 of the Code of Criminal Procedure of the Russian Federation the procedure for concluding a pre-trial agreement on cooperation - an agreement between the parties to the prosecution and defense. However, the prosecution is not represented by all participants in the criminal proceedings.
The suspect (accused) received the right to conclude an agreement with the prosecution at the stage of preliminary investigation. The essence of this agreement lies in the fact that he pleads guilty to the crime incriminated to him, undertakes the obligation to facilitate the disclosure of the crime and the exposure of the persons involved in its commission. The prosecution on behalf of the state, in turn, guarantees a reduction in the punishment that can be imposed. The set of norms of the Code of Criminal Procedure of the Russian Federation regulates criminal procedural relations arising both at the stage of preliminary investigation and during subsequent stages of the criminal process.
Unlike similar procedures used in other states, the Russian prosecutor did not receive the right to dispose of the charges after the conclusion of a pre-trial cooperation agreement with the accused. On the side of the prosecution lies the duty to establish the factual circumstances of the case, to determine the qualification of the crime and to bring the charge in full.
The purpose of the special procedure for making a court decision when concluding a pre-trial agreement on cooperation was proclaimed to counteract organized forms of crime and corruption. This goal is achieved by attracting law enforcement to the cooperation of persons organized groups and criminal communities, subject to a significant reduction in criminal punishment for such persons and the extension to them of measures of state protection of victims, witnesses and other participants in criminal proceedings. As a guarantee of the legitimate rights and interests of persons accused of committing these crimes and seeking to cooperate with law enforcement agencies, the criminal procedure law provides for the possibility of concluding an agreement on cooperation.
For the implementation of a special procedure for holding a court session and making a court decision in a criminal case against an accused with whom a pre-trial cooperation agreement has been concluded, the law establishes the basis and conditions. The reason is the prosecutor's presentation on a special procedure for holding the court session, which was submitted to the court along with the criminal case. Conditions for the application of the special order of trial:
- 1) the fact of active assistance of the accused to the investigation in the disclosure and investigation of the crime, the exposure and prosecution of other accomplices in the crime, the search for property obtained by criminal means, is confirmed by the public prosecutor;
- 2) the pre-trial cooperation agreement was concluded voluntarily and with the participation of a defense attorney.
The procedure for considering a criminal case in the order of Ch. 40 1 of the Code of Criminal Procedure of the Russian Federation differs from the procedure provided for in Chapter. 40 of the Code of Criminal Procedure of the Russian Federation, by the fact that, firstly, the public prosecutor sets out not only the charge brought against the defendant, but also confirms the assistance of the defendant to the investigation and substantiates the conclusion that he has fulfilled his obligations. Secondly, the very subject of judicial review is changing significantly. It includes not only the circumstances established during the consideration of the case in a special order, but also the circumstances associated with the conclusion and implementation of a pre-trial cooperation agreement. At the same time, as in the production of court proceedings in general or special order, the circumstances characterizing the personality of the defendant, as well as facts mitigating or aggravating the punishment, are investigated.