Petition - The official request of the participant of the proceedings, addressed to the investigator, investigator, the prosecutor, or the court.
The petition may be declared in writing or by oral applying for the production of investigative or judicial actions, accepting, canceling or changing certain decisions in the case.
The right of each participant of legal proceedings to declare the petitions is indicated in the relevant article of the Code of Criminal Procedure, which regulates the procedural position of this or that participant.
The right to declare a petition have a suspect, accused, his defender, victim, his legal representative and a representative, a private prosecutor, a civil plaintiff, a civil respondent, their representatives, as well as an expert.
Due to the equality of the rights of the parties in the trial of the form of the appeal of the state prosecutor, the request is also a petition.
Participants in the court proceedings and by protection are entitled to declare a petition for the production of procedural actions and adoption of procedural decisions (for example, the defendant approves the interrogation of the person specified as a witness, the defender of the admission to the case of the document submitted by him, the civil plaintiff asks to decide on the imposition Arrest on the property of the accused to ensure civilian claims, etc.).
The expert has the right to apply for the provision of additional materials necessary for the presentation of the conclusion, or bringing to the production of forensic examination of other experts (paragraph 2 of Part 3 of Art. 57 of the Code of Criminal Procedure).
The petition for the production of procedural actions or procedure for procedural decisions is substantiated by their necessity to establish the circumstances of the case in the case, ensuring the rights and legitimate interests of the person who announced the petition or the person they represent.
Clarification of the right to statement by applications and ensuring this right is the responsibility of the investigator, investigator, prosecutor and court.
Subjects of the right to statement of applications should be explained that the petition may be declared at any time of production in the case. The deflection of the petition does not deprive the applicant of the right to reiterate a petition both within the same stage and in subsequent stages of legal proceedings.
Terms of consideration of petitions. In the Code of Criminal Procedure, the deadlines for the consideration of applications calculated in days or hours are not established. In art. 121 Code of Criminal Procedure, the words "directly" are used, "immediately", which indicates that the petition requires consideration and decisions immediately after its application and only in cases where it is impossible, no later than three days from the date of its application.
The petition for the production of investigative actions to collect evidence must be satisfied if the circumstances, the establishment of which the applicant petitions may be important for the case. The question of whether the circumstances may be important to establish the establishment of which one or another participant of the proceedings, or, in other words, the question of the relevance of evidence, the investigator, investigator, prosecutor, judge, court.
The petition declared in the judicial investigation should be considered and the decision was made immediately after its statement. The applicant must receive an answer, satisfied or rejected his petition, which gives him the right to re-apply with the petition in the future judicial investigation.
The petition can be satisfied or rejected (in whole or in part). With a full or partial refusal of the petition, the decision of the investigator, the investigator, the prosecutor, judges or the definition of the court should be issued, indicating the refusal motive.
The person who declared him should be informed about the results of consideration of the petition.
A complaint - Appeal of the participant in the criminal procedure about the violation of its rights and legitimate interests.
Appeal - Procedure for submission, consideration and complaint resolution.
In accordance with Art. 123 Code of Criminal Procedure to the subjects of appeal against the action (inaction) and the decision of the body of the inquiry, the investigator, the investigator, the prosecutor and the court can be all participants in criminal proceedings, as well as other persons in the part in which the procedural actions and the procedural decisions affect their interests.
The Code of Criminal Procedure provides for three ways to appeal - the prosecutor, the head of the investigating authority or the court. The right to choose the method of appeal belongs to a person whose rights are violated.
The procedure for consideration of complaints is determined by the provisions of Art. 124 and art. 125 Code of Criminal Procedure.
The prosecutor considers the complaint within three days from the date of its receipt. In exceptional cases, when to check the complaint, it is necessary to recall additional materials or take other measures, it is allowed to consider complaints for up to ten days, which the applicant is notified. According to the results of consideration of the complaint, the prosecutor makes a decision on the full or partial satisfaction of the complaint or the refusal to satisfy it.
According to the results of consideration of the complaint, the judge makes a decision in the form of a Resolution: 1) on the recognition of the action (inaction) or the decision of the appropriate official illegal or unreasonable and his obligation to eliminate the violation of the violation;
2) on leaving complaints without satisfaction.
The procedure and timing of consideration and permission of the petition and complaint
Quite detailed regulation of issues related to the statement of petitions and making complaints is contained in chapters 15 and 16 of the Code of Criminal Procedure.
The right to declare a petition for the production of procedural actions or the adoption of procedural decisions to establish the circumstances of the importance for the case, providing rights and legitimate interests: a suspect, accused, his defender, the victim, his legal representative and representative, private prosecutor, expert, civil plaintiff , Civil defendant, their representatives. During the trial, the public prosecutor (Article 119 of the Code of Criminal Procedure) also has the right to declare a petition.
The petition is stated by the investigator, the investigator, the prosecutor or to court at any time of production in a criminal case. The petition can be written or oral. A written petition is attached to the criminal case, and the oral applied to the protocol of the investigative action or court session. The deviation of the petition does not deprive the applicant the right to reiterate it.
Consideration and permission to the petition must be made immediately after its application. When the immediate decision on the petition declared during the preliminary investigation is impossible, it must be permitted no later than 3 days from the date of its application (Article 121 of the Code of Criminal Procedure).
In case of satisfaction of the petition or in full or partial refusal to satisfy the investigator, the investigator, the prosecutor, the judge must be issued a decision, and the court, which is made to the attention of the appropriate. Any decision at the request may be appealed in the manner prescribed by law.
In addition to the application of applications, participants in criminal proceedings and other persons can be appealed to the actions (inaction) and the decision of the body of the inquiry, the investigator, the investigator, the prosecutor and the court. The subject of appeal, as a rule, are violations of the rights and legitimate interests of citizens.
Code of Criminal Procedure provides for two options for consideration of complaints of complaints:
1) the prosecutor;
The prosecutor considers the complaint within 3 days from the date of its receipt. It is allowed to consider complaints up to 10 days, but only in exceptional cases, when additional materials should be requested to check the complaint or take other measures. This applicant must be notified. After considering the complaint, the prosecutor makes a decision on full or partial satisfaction to be satisfied. In any case, the applicant is immediately notified of the declaration and further order of appeal. In turn, the investigator, the investigator is entitled to appeal against the actions and decisions of the prosecutor to the upstream prosecutor (Article 124 of the Code of Criminal Procedure).
Article 125 of the OPC details the judicial procedure for consideration of complaints.
The complaint may be submitted to the court by the applicant, his defender, legal representative or representative directly either through the investigator, investigator or the prosecutor for the decisions on refusal to initiate a criminal case, to terminate it, but equal to other decisions and actions (inaction) that are capable of causing Damage to constitutional rights and freedoms of participants in criminal proceedings or impede access to justice. The complaint is submitted to the court at the place of production of the preliminary investigation.
The judge checks the legality and validity of the actions (inaction) and decisions of the investigator, the investigator, the prosecutor no later than 5 days from the date of receipt of the complaint. At the court hearing, the applicant and his defender, legal representative and representative, if they participate in the case, other persons whose interests are directly affected by the appealed by the action or decision, as well as the prosecutor. The failure to appear in a timely notified of the consideration of the complaint and not insist on its consideration with their participation, does not serve an obstacle to the court's complaint.
According to the results of the consideration of the complaint, the judge makes one of the following regulations:
1) recognizing the action (inaction) or solutions to illegal or unreasonable and the duties of the relevant official to eliminate the violation of the violation;
2) on leaving complaints without satisfaction.
A copy of his decision of the judge directs the applicant and the prosecutor.
An important position is contained in Part 7 of Article 125 of the Code of Criminal Procedure that the complaint says cannot suspend the production of the contested action and execution of the decision, if it does not find it necessary to make an inquiry authority, the investigator, the investigator, the prosecutor or the judge.
Suspects and accused detained in custody address their complaints through the administration of the place of detention, which is obliged to direct them to court or the prosecutor immediately.
Control questions on the topic:
1. What is understood under the procedural term?
2. What are the types of procedural deadlines?
3. What is the procedure for calculating the procedural deadlines. Defined by clock and days?
4. Does the procedural costs pay the amount paid by the lawyer?
5. What procedural costs are reimbursed at the expense of the federal budget, and what are convicted?
6. What includes the right to rehabilitation?
7. Which of the participants in criminal proceedings has the right to rehabilitate and for compensation for harm associated with criminal prosecution?
8. What is subject to reimbursement rehabilitated in case of causing it in the process of criminal prosecution of property harm?
9. What is the procedure for compensation for rehabilitated moral damage?
10. What is the term of consideration and permission of the petitions declared to the investigator, the investigator, the prosecutor, the judge?
11. What is the procedure for considering the complaint by the prosecutor?
12. What is the procedure for considering the complaint by the court?
Arslanaliev A. Appeal to the court decisions of the bodies of inquiry, investigators and prosecutors // The legality. 1998. №6.
Babenko A., Applekov V. Considering by the court complaints against actions and decisions of investigative bodies // Russian Justice. 2001. №8.
Galkin A., Bogatyrev N. Judicial control over the terms of consideration of cases // Russian Justice. 2000. №7.
Glyaev A.P. Procedural time in the stages of initiation of criminal case and preliminary investigation. M., 1976.
Demidov V.N. Criminal process and material costs. M., 1995.
Polyakova M.F. Reimbursement of property damage in cases of rehabilitation is one of the guarantees of the rights of the individual in the Soviet criminal process. M., 1986.
Prokudina L.A. Reimbursement of material damage caused by illegal actions of law enforcement agencies. M., 1997 ..
Ryzhakov A.P. Criminal Procedure: Textbook for universities. M., 2002.
Smirnov A. The controversial issues of the calculation of the timelines // The legality. 2001. №9.
Petition - The official request of the participant of the proceedings, addressed (claimed) to the investigator, the investigator, to the prosecutor or the court at any time of the criminal proceedings with the request for the production of procedural actions aimed at establishing the circumstances of the importance of ensuring the rights and legitimate interests of the person who said the petition.
Application for walking-in can be either oral, and then entered into the minutes of the court session, or in writing, and then it is attached to the materials of the criminal case (part 1 of Article 120 of the Code of Criminal Procedure). The petition is subject to consideration immediately after its application. During the preliminary investigation, the petition is considered within 3 days from the date of its application.
A complaint - Appeal of the participant in the criminal procedure about the violation of its rights and legitimate interests.
Appeal - The procedure for filing, consideration and complaints.
Subjects that have the right to declare a petition are: a suspect, the accused, his defender, the victim, his legal representative and a representative, a private prosecutor, an expert, as well as the plaintiff, the defendant.
Subjects appeal Actions (inaction) all participants in criminal proceedings can be.
CPC provided two ways appeal - Prosecutor or court. The prosecutor considers the complaint within 3 days from the date of its receipt. According to the results of consideration of the complaint, the prosecutor makes a decision on the full or partial satisfaction of the complaint or the refusal to satisfy it. According to the results of the consideration of the complaint, the judge makes a decision in the form of decisions: 1) on the recognition of the action (inaction) or the decision of the appropriate official with illegal or unreasonable and its obligation to eliminate the violation of the violation; 2) On leaving the complaint without satisfaction.
Question 48 procedural time.
Procedural time - this period of time during which a criminal procedure should be committed
In criminal proceedings, it is important to comply with the procedural deadlines. The steady and strict observance of deadlines contributes to a rapid and complete study of all the circumstances of the case, brings the principle of trial to the fact of the commission of a crime, guarantees the timely implementation of legal rights and interests by participants in the criminal process, as well as
provides savings in criminal proceedings.
The procedural time is calculated for hours, days, months (art. 103 of the Code of Criminal Procedure). At the same time, the law sometimes prescribes the immediate execution of procedural action. For example, a copy of the decision on the initiation of a criminal case, made by the investigator or an inquiry, is immediately sent to the prosecutor.
The term is not considered missed if the complaint or other document is handed over to the expiration of the deadline for mail, and for the persons contained in custody, if the complaint or other document expires before the expiration of the detention site (Article 103 of the Code of Criminal Procedure).
The presence of procedural deadlines disciplines all participants in the process, obliges them in a timely manner to implement certain actions. Distribution of time may result in persons obliged to follow them, relevant consequences.
Complaints and petitions in criminal proceedings are a way to respond to the production participants who are not authorized, on actions or inaction of those who have the authority (for some exceptions). Consider the nuances of writing complaints and petitions.
Regulatory regulation
The current editorial office of the Code of Criminal Procedure of the Russian Federation reflects the paths and means of the influence of the participants in the process on its development. We are talking about the side of protection, the victim, the civil respondent and the plaintiff. We must not forget that to file a complaint or a petition have the right and those who have not yet has a certain status. For example, the applicant who applied to a crime statement, or another person who believes that his rights and interests are violated.
CPC is the only regulatory act regulating the process of investigation and consideration. It is a form of incarnation of the criminal law. If the Criminal Code is a list of prohibitions with a description of the penalties for their violation, then the COP is the path, within the boundaries of which are implemented in the life of the norm of the first of these codes.
What is the difference between the petition and complaint
The difference between them is as follows. The first group is the request of the part of the process of committing certain actions by the investigator, a prosecutor or court.
There is no speech about violation of the procedural or criminal law. There are complaints related to the elimination of violations by persons with authority.
Who has the right to the petition
The protection side is a suspect, accused, defendant and defender. By the prosecution - the victim, his representative, a private prosecutor. The list includes civil plaintiff and the defendant. In their quality, the victim and its representatives, accused or his representatives.
The prosecutor within the framework of the trial is also entitled to handle the petitions to the court.
The law is endowed with the right to submit a petition and an expert, formally unrelated to neither the side of protection, or to the side of the accusation. The petition and complaints in the criminal proceedings are submitted to the investigator (investigator), the prosecutor (performing supervisory functions during the investigation).
Persons for filing petitions
Petitions are submitted in such cases:
- the need to perform actions or decisions with the impact on the rights and interests of citizens, both participating and not related to the proceedings (for example, the acquisition of evidence);
- recognition of the applicant's procedural status (for example, the civil plaintiff, the victim);
- about the termination of the case;
- on the direction of the case to the prosecutor;
- about changing the amount of accusation or qualifications of actions of the suspect or the accused;
- on the investigation and consideration of the case in a special order or with the participation of the court of jury.
It should be noted that the deadlines for the application of the petitions are not limited (the natural limitation is the beginning and end of investigation and trial).
Flow methods
The law gives the right to declare his request in oral or writing. If it is verbally declared about it, then this information is recorded in the Protocol, which records the investigative action or the court session.
The written statement is more reliably: having a copy about the adoption mark on your hands, it's easier then to prove that the appeal with the appropriate request took place. The adoption mark is set by an officer of the office or an official who directly adopted a statement (investigator, investigator, an employee of the throat). In the case of the court, it is better to contact the Office in advance.
The things described relate to the same and petitions and complaints in the criminal process.
Writing scheme
Complaints and petitions in the criminal process are compiled according to a single scheme:
- name of the body or initials of the official;
- information about the applicant (F. I. O., place of residence, procedural status);
- circumstances prompted to contact a petition or complaint;
- why consent to the request is beneficial;
- references to regulatory acts (most often Code of Criminal Procedure, acts of the Constitutional Court);
- the essence of the request (appoint an examination, conduct interrogation, etc.);
- signature and submission date.
Consideration of petitions in criminal proceedings
The person leading the investigation, or the judge decide on the petition immediately or no later than 3 days after his statement. Sometimes the decision of the decision is postponed within the court session or investigative action during which it is stated.
If he was sent in writing through the office in advance, then the consideration is made during the nearest visit to the investigator with the participation of relevant persons or a court session if it was postponed.
The decision made is issued in the decision. Stakeholders have the right to appeal it.
Rates for complaints
The current editorial office of the Code of Criminal Procedure gives the right to appeal against the actions and inaction of the subject of the authority to any person who believes that his rights and interests are affected. The law does not have any restrictions on what to complain, as in the case of applications.
If the time of the investigation is violated, people have the right to compare to the head of the investigative department or the prosecutor. If Volokita takes place in court, turn to the Chairman of the Court.
Extrajudicial procedure appeal
The decision of the decisions is within the competence of the head of the investigative body (the head of the investigation department is not endowed with such powers), the prosecutor and judges.
The first step is the head of the investigative department, the second is the prosecutor, the third is the court. At the same time, the participant of the process has the right to complain directly to the prosecutor's office or to court.
According to its form, the complaint is similar to the petition, but instead of the benefit from satisfying a request, the author describes what exactly the violation of the norms of the law is.
More paper falls on the table primarily precisely the prosecutor. Regardless of the addressee of the complaint there are several solutions:
- complete agreement with the arguments of the complaint;
- partial consent with arguments;
- full refusal to satisfy the complaint.
According to the results, a decree is made, a copy of which is necessarily referred to, including the applicant.
If the complaint is simultaneously submitted to the court and the prosecutor's office, the prosecutor suspends the production and is waiting for a court decision.
Features of trial
The proceedings on the complaint is made in the district court at the place of production of the investigation. The judge must call the stakeholders not later than 5 days after the receipt of documents.
The participation of the investigator or the prosecutor, as well as the defender, legal representative. If the author of the complaint has no status, he is called, his lawyer, the investigator and the prosecutor.
If caused not appeared on the proceedings, the judge is entitled to hold a meeting without their participation.
The judge makes a decision exclusively on the basis of the materials provided by the applicant, unlike the prosecutor, which the complaints are not limited to the framework and have the right to demand additional materials. At the same time, the applicant has the right to declare a petition in the trial of the court session on the court of additional information and documents.
The court has 2 options: agree with the complaint and demand to eliminate the detected violations or refuse a statement by recognizing it unreasonable.
Dates of appeal
As a general rule, the term of consideration of the complaint - 3 days, if necessary, the time of the proceedings extended up to 10 days. In reality, the deadlines for consideration of complaints are much longer (takes place at least a month). Given the workload of law enforcement officers, it is not surprising.
In contrast to the petitions, the complaint is fed most often at certain time frames, and sometimes the deadlines are not established (for example, in case of refusal to initiate the case).
Finally
Writing complaints and petitions - the prerogative of the participants in the criminal proceedings that do not have authority (sometimes, where it is directly indicated by law, complaints and petitions are entitled to submit both the investigator and the prosecutor).
In the remaining cases, they are given ordinary citizens. Special requirements for applications are not presented, they are not paid by the state duty.
Time restrictions are set for complaints, requests can be declared at any time and repeatedly repeat them when deviating. How to write a petition? Samples are presented above in the article.