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. In the course judicial trial The public prosecutor (Article 119 of the Code of Criminal Procedure) is also 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 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. IN court session 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 this 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 funds federal budgetand 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 reimbursement rehabilitary moral harm?
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 material damageinflamed law enforcement. 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 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 appropriate article Code The Russian Federation, regulating 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 The property of the accused to ensure civil law etc.).
The expert has the right to apply for the provision of additional materials necessary for the giving conclusion, or attracting forensic examination 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.
Chapter 8. Other provisions of the Common Part
§ 2. petitions and complaints
The participants in the process that do not have the right to make procedural decisions themselves can actively participate in their adoption by applying for petitions and complaints.
Petition - this is the official request for the commission of procedural actions or the adoption of procedural decisions facing the authorities criminal proceedings. Objectives of petitions are: a) establishment of circumstances that are important for a criminal case; b) ensuring the rights and legitimate interests of the person who declared the petition, or the person they represent (part 1 of Art. 119 of the Code of Criminal Procedure). The right to declare the petition is the parties in the process, as well as other interested persons interested in solving certain issues. The petition declares, as a general rule, at any time of production in the case. It may have a written or oral form. Written petition is attached to the case, and oral - entered into the protocol. 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. On satisfaction of the petition, or on a full or partial refusal to satisfy, a decree (definition) is made, which is brought to the applicant. Refusal to satisfy the application for the collection of evidence is allowed only due to the lack of their relativeness (part 2 of article 159). The deflection of the petition may be appealed and does not deprive the applicant the right to reappear with the same petition.
A complaint - This is a petition for the cancellation or changing the decision or recognizing perfect actions or inaction illegal or unreasonable. The right to appeal belongs to all persons whose rights and interests are violated. It implements the principle of human rights and freedoms in criminal proceedings (Art. 11 of the Code of Criminal Procedure) and is guaranteed by the Constitution of the Russian Federation (Part 2 of Art. 45; Part 1, 2, Art. 46). The law provides for a double possibility of appeal on the applicant's choice - the prosecutor or to court.
Appeal of the prosecutor. The prosecutor considers complaints about actions, inaction and solving the preliminary investigation authorities within 3 days from the date of their receipt. This period can be extended to them by itself up to 10 days. According to the results of consideration of the complaint, the prosecutor makes a motivated decision - both full or partial satisfaction of the complaint and the refusal to satisfy it.
The applicant is immediately notified of the extension of the complaints of the complaint, about the decision, adopted on the complaint, and the further order of its appeal.
In cases provided for by the Criminal Code, the investigator and the investigator are also entitled to appeal against the actions (inaction) and the decision of the head of the investigative department, the head of the Inquiry authority to the prosecutor, and the decisions of the prosecutor himself - the Higher Prosecutor (Part 3 of Article 38, Part 4 of Art. 39, h . 4 st.41).
Appeal in court. Solutions and court actions are appealed in an appeal, cassation or supervisory procedure according to the rules of relevant stages of criminal proceedings. The decisions and actions of the investigation authorities and the prosecutor appeal in district Court at the place of prior investigation. Consideration of these complaints have a form judicial control Above the preliminary investigation authorities, which is called a retrospective (subsequent), in contrast to a promising (preliminary), when the court gives permission to forced action.
Only those actions, inaction and solutions of investigative bodies, which are able to cause damage to constitutional rights and freedoms or make it difficult to access citizens to justice (refusal to initiate cases, termination of the case, suspension, searches). So, for example, a violation of the constitutional law is appealed to the court formulated in the form of a ban on the use judicial evidenceobtained in violation federal Law (Part 2 of Art. 50 of the Constitution of the Russian Federation). Almost this means that any investigative or other procedural effect on collecting and verifying evidence may be appealed to the court based on violations in its requirements of the law.
The complaint is submitted directly to the court or through the investigation authorities. Solving the complaint itself does not suspend the production of the contested action and the execution of the contested decision.
The court within 5 days from the date of receipt of the complaint checks the legality and validity of the emergered actions (inaction) and decisions at the court session. The court session as a form of enforcement of justice has the following features:
He has a criminal case, which should be exterminated by the court before the meeting;
Ensures the right of the parties and the applicant to participate in the meeting;
A study of criminal procedural evidence is carried out.
At the beginning of the court session, the judge announces which complaint is subject to consideration, it seems to appear to the court hearing, explains their rights and obligations. The applicant justifies the complaint, after which other persons who appeared at the court hearing are heard. The applicant is given the opportunity to speak with a replica.
According to the results of consideration of the complaint, the judge makes one of the following regulations: a) 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; b) about leaving complaints without satisfaction.
Copies of the judges are sent to the applicant and the prosecutor. The decisions of the judges may be appealed in cassation.
Petitions and complaints: the concept, procedure for statement (bringing) and consideration.
Petition In criminal proceedings, the request of its participants, containing an appeal to the relevant state body or an official of the commission or abstinence from the commission of any procedural actions or on the adoption of procedural decisions or abstinence from their adoption.
A complaint - procedural documentcomprising the appeal of any participant in the criminal proceedings, including the investigator, the investigator, etc., to the state body or official person who has criminal proceedings, or a higher officary person in subordination with a request to eliminate the violation of his rights, freedoms and legitimate interests .
Persons who have the right to declare a petition (Art. 119 of the Code of Criminal Procedure).
1. Suspected, accused, his defender, victim, his legal representative and representative, private prosecutor, expert, civil plaintiff, civil respondent, their representatives, representative of the administration organization and other person, the rights and legitimate interests of which are affected during pre-trial or legal proceedings , It is entitled to declare a petition for the production of procedural actions or processing procedural decisions to establish circumstances that are important for a criminal case, ensuring the rights and legitimate interests of the person who declared the petition or the person or organization they submitted.
2. The petition is stated by the investigator, the investigator either in court.
3. The state prosecutor also has the right to declare a petition during the trial.
Application statement (Article 120 of the Code of Criminal Procedure).
1. The petition may be declared at any time of production in a criminal case. A written petition is attached to a criminal case, oral - entered into the protocol of the investigative action or court session.
2. Deviation of the petition does not deprive the applicant of the right to reiterate a petition.
Terms of consideration of the petition (Article 121 of the Code of Criminal Procedure).
The petition is subject to consideration and permission directly after its application. In cases where the immediate decision on the petition declared during the prior investigation is impossible, it must be permitted no later than 3 days from the date of its application.
Permission of the petition (Article 122 of the Code of Criminal Procedure).
On the satisfaction of the petition or on the full or partial refusal to satisfy its satisfaction, the investigator, the judge is issued a decree, and the court is the definition that is brought to the attention of the person who announced the petition. The decision on the application may be appealed in the manner prescribed by Chapter 16 of the Code of Criminal Procedure of the Russian Federation.
The right of appeal (Art. 123 of the Code of Criminal Procedure).
1. Actions (inaction) and decisions of the body of the inquisition, the investigator, the head of the division of the inquiry, the investigator, the head of the investigative body, the prosecutor and the courts may be appealed in the participants in criminal proceedings established by this Code, as well as other persons in the part in which procedural procedural Actions and procedural decisions affect their interests.
2. In violation of reasonable deadlines of criminal proceedings during the pre-trial production in the criminal case, participants in criminal proceedings, as well as other persons whose interests are addressed may contact the prosecutor or the head of the investigative authority with a complaint that should be considered in the manner and within the time limits established Article 124 of the Code of Criminal Procedure.
The procedure for considering the complaint by the prosecutor, the head of the investigative body (Article 124 of the Code of Criminal Procedure).
1. The prosecutor, the head of the investigative body considers the complaint within 3 days from the date of its receipt. In exceptional cases, when additional materials should be requested to check the complaint or take other measures, it is allowed to consider complaints up to 10 days, which the applicant is notified.
2. According to the results of consideration of the complaint, the prosecutor, the head of the investigative body, makes a decision on the full or partial satisfaction of the complaint or the refusal to satisfy it.
2.1. In case of complaints filed in accordance with part of the second article 123 of the Code of Criminal Procedure, the decision should indicate the procedural actions carried out to speed up the consideration of the case and the timing of their implementation.
3. The applicant must be immediately notified of the decision taken on the complaint, and the further order of its appeal.
4. In cases provided for by the Code of Criminal Procedure, the investigator, the investigator is entitled to appeal against the actions (inaction) and the decision of the prosecutor or the head of the investigative body, respectively, to the superior prosecutor or the head of the higher investigative body.
Judicial order Consideration of complaints (Art. 125 of the Code of Criminal Procedure).
1. Decisions of the investigator, investigator, head of the investigative body on refusal to initiate a criminal case, the termination of a criminal case, as well as other decisions and actions (inaction) of the investigator, investigator, head of the investigative body and the prosecutor, which are able to cause damage to constitutional rights and freedoms of participants Criminal proceedings or make it difficult to access citizens to justice, may be appealed to the District Court at the Prior investigation site.
2. The complaint may be submitted to the court by the applicant, his defender, legal representative or representative directly either through the investigator, investigator, head of the investigative body or prosecutor.
3. The judge checks the legality and validity of the actions (inaction) and decisions of the investigator, the investigator, the head of the investigative body, the prosecutor no later than 5 days from the date of receipt of the complaint at the court hearing with the participation of the applicant and his defender, legal Representative or a representative, if they participate in criminal cases, other persons whose interests are directly affected by the appealed by action (inaction) or by the decision, as well as with the participation of the prosecutor, the investigator, the head of the investigative body. The non-appearance of persons in a timely notified of the consideration time and not insisting on its consideration with their participation is not an obstacle to the consideration by the court. The complaints to be considered by the court are discussed in open court, except for the cases provided for by the second part of Article 241 of the Code of Criminal Procedure.
4. At the beginning of the court session, the judge announces which complaint is subject to consideration, it seems to appear to the court hearing, clarifies their rights and obligations. Then the applicant, if he participates at the court session, justifies the complaint, after which other people who were heard at the court hearing. The applicant is given the opportunity to speak with a replica.
5. According to the results of consideration of the complaint, the judge makes one of the following regulations:
1) on the recognition of the action (inaction) or the solution of the relevant official with illegal or unreasonable and his obligation to eliminate the violation of the violation;
2) on leaving complaints without satisfaction.
6. Copies of the judges are sent to the applicant, the prosecutor and the head of the investigative body.
7. Applying the complaint does not suspend the production of the contested action and the execution of the contested decision, if it does not find it necessary to make an inquiry body, the investigator, the investigator, the head of the investigative body, the prosecutor or the judge.
The procedure for the direction of the complaint of the suspect, the accused, contained in custody (Article 126 of the Code of Criminal Procedure).
The administration of the place of detention immediately directs the prosecutor or to the court addressed to them the complaints of the suspect, the accused, contained in custody.
Complaint and submission to the verdict, definition, judgment of the Code (Article 127 of the Code of Criminal Procedure).
1. Complaints and submissions on the sentences, definitions, decisions of the courts of first and appeal instances, as well as complaints and submission to court decisionsThe criminal proceedings taken in the course of pre-trial production are brought in the manner prescribed by chapters 45.1 and 47.1 of the Code of Criminal Procedure of the Russian Federation.
2. Complaints and submissions for court decisions that have entered into legal force are applied in the manner prescribed by chapters 48.1 and 49 of the Code of Criminal Procedure of the Russian Federation.
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Regulation of the procedure for the application, the terms of consideration and permission of applications, as well as a list of persons entitled to bring the petition to state bodies and officials, carrying out legal proceedings in the case are provided for by Chapter 15 of the Criminal Procedure Code of the Russian Federation (Code of Criminal Code of the Russian Federation).
One of the ways to protect the rights and legitimate interests of the suspect, the accused, the victim and other participants in the process is the right of application of applications for the purpose of full and comprehensive clarification of the circumstances, both the increasing accused and justifying it and mitigating responsibility.
The petition is two types:
- 1) the official request or submission addressed to the subjects to eligible to resolve the relevant issue on the merits;
- 2) the official request for the commission of procedural actions or decision-making facing the body of the inquiry, the investigator, the prosecutor or the court.
Participants in criminal proceedings are entitled to declare various applications that are an official presentation or requirement.
The legislator established the limiting list of persons with the right to contact the investigator, the investigator, the prosecutor or to court and bring the petition, and the investigator, the investigator, the prosecutor and the court are not entitled to refuse to persons listed in Part 1 of Article 119 of the Code of Criminal Procedure, in the reception of the petitions, And they are obliged to consider and resolve the stated petitions.
These individuals include a suspect, accused, his defender, victim, his legal representative and a representative, a private prosecutor, an expert, as well as a civil plaintiff, a civil respondent, their representatives. The above faces are entitled to declare petitions on the production of procedural actions and the adoption of procedural decisions.
Petitions may affect any questions that are within the competence of an official to which it is addressed. The right of petition statements means the obligation to consider their competent authorities and officials, regardless of the form. Satisfaction, in all cases, subject to petitions, if circumstances, to establish which they are declared, may be significance for a criminal case.
The participants in the criminal procedure can declare petitions not only on issues of importance to establish circumstances in the case, but also to ensure the rights and legitimate interests of the person who declares the petition, or its representative, which are governed by the Criminal Procedure Code.
The right of the persons listed above, to declare petitions, is also due to the need for a complete, comprehensive and objective study of the circumstances and establishing the truth in the case.
The final decision on the production of procedural action, the adoption of procedural decisions, the introduction of evidence at the stage of preliminary investigation of criminal cases takes the prosecution. The right to appeal against illegal actions (inaction) and decisions to court in the part in which the stated petitions relate to the need for the production of procedural actions or the adoption of procedural decisions that are important to the case - there is a form of constructing a competing process at the preliminary investigation of criminal cases.
The legislator is not by chance a separate part in Article 119 allocated the right of the public prosecutor to declare petitions during the trial, since the prosecutor (public prosecutor) performs a slightly different function than at the pre-trial stage.
As part of the competing process, the public prosecutor must not only comply with the law, but also respond to any violation by applying relevant petitions, the statements of opinions on the issues arising during the trial. The prosecutor, like any participant in the process, has the right to express objections against the wrong, from its point of view, the actions of the court and the participants of the process. His petitions and statements are subject to arrival in the minutes of the court session.
The petition for the production of procedural actions or the adoption of procedural decisions may be declared at any time of the criminal proceedings. Criminal proceedings begins from the moment of the decision to initiate a criminal case. It is from now on that, until the court removes the advantage in the attorney.
The right of participants in the process to declare petitions is related to the possibility of realizing the right to submit evidence to apply for production or participation in the production of investigative or judicial actions, to submit other evidence in the case: subjects, documents, explanations. Restriction of the right to declare petitions is a gross violation of the rights of persons participating in the case.
The ability to file petitions for the study of circumstances, excluding the crime and the punishability of Acts, does not mean the imposition of the responsibilities of proving these circumstances on the suspect, the accused, his defender does not violate constitutional principle, proclaimed part 2 Article 49 of the Constitution Russian Federation (according to which "the accused is not obliged to prove his innocence"), but serves an additional guarantee Compliance with the rights of the suspect, the accused.
The requests concerning evidence must contain the necessary justifications, but not all the petitions require motivation. The proofs submitted are recorded by the relevant protocols and attach to the case under the general rules. The petition itself is not a basis for collecting or additional, repeated actions to collect evidence, it is only a procedural form of evidence.
Criminal procedural legislation has given the right to collect evidence of the investigator, the investigator, the prosecutor and the court by the production of investigative and other procedural actions. The suspect, the accused, his defender, the victim, his legal representative and the representative, a private prosecutor, an expert, as well as a civil plaintiff, a civil respondent, their representatives are also endowed to collect and submit written documents and subjects as evidence.
Wherein single form consolidation of evidence from specified persons is a statement of petitions before the consequence of the need to consolidate certain actual data and the submission to the investigator or the court for admission to the materials of the criminal case of various documents.
Petitions are declared both in oral and in writing. The declared verbates are recorded in the relevant procedural documents in the form in which they were declared, but in such a form, so that it was clear which specific actions or evidence had in mind the applicant. The protocol of the investigative action, which recorded the petition, is signed by the person who declared the petition, as well as by all the persons participating in the production of investigative action, in the production of which the petition was announced. The petition declared verbally during the court session is submitted to the minutes of the court session. Written petitions are attached to the materials of the criminal case.
The investigator, the investigator, the prosecutor and the Court are obliged to consider every default in the criminal case.
Claimed and rejected in the inquiry, preliminary investigation, preliminary hearing, trial the petition may be declared again, regardless of the cause of its deviation.
The petition can be announced again when some new circumstances or another official person appear. Re-statement of petitions should also be motivated.
Article 120 of the Code of Criminal Procedure regulates general order Applications of petitions. Separately, the petitions are devoted to Article 159, 216, 219, 234, 235, 271 and other Criminal Procedure Code.
As a rule, the petition is subject to consideration and permission directly after its application.
The restriction in the decision time on the declared petition is a guarantee of the protection of the rights of the person who declared a petition, since in disagreement with the decision taken by the petition, the interested person is entitled to appeal it.
The expiration is calculated since the immediate application of the petition, if it is stated in oral form and recorded in the protocol of the investigative action or court session.
If the petition is declared in writing, the term of the term begins to flow from the moment of its transfer to his face, in whose production is a criminal case at the time of the application of the petition.
The legislator has consolidated in Art. 121 Code, that consideration and permission of the petition may be postponed during the preliminary investigation, but not more than three days. Upon expiration of the investigator specified in the law, the investigator, the prosecutor is obliged to inform the stakeholder about the decision taken on the declared petition and explain the right and procedure for appealing the decision made.
A person in whose production is a criminal case, it is obliged to consider every criminal investigation. According to the claimed petition, one of three solutions can be:
satisfaction of the petition;
partial satisfaction of the petition, or, otherwise, partial refusal in satisfaction of the petition;
full refusal to satisfy the petition.
Unreasonable full or partial refusal to satisfy the petitions to establish the circumstances of the importance to the case is a significant violation of the criminal procedure law. As a petition itself and a decree on refusal to satisfy the petition should be motivated. A violation of criminal procedure legislation is a motivation limiting common phrases about the absence of grounds for satisfying the petition.
The lack of time, the complexity of execution, the fact that such a petition, previously rejected, is declared again, or other formal reasons cannot be the basis of the rejection of the petition. A decree on refusal to satisfy the petition, equal to the decision on the full or partial satisfaction of the petition must be motivated, indicated and disclose the possibility and timing of the applicant appeal.
The person who declared the petition and not received the answer to the period established by law, has the right to appeal the inaction of the body of the inquiry, investigator, the prosecutor and the court in the manner prescribed by Ch.16 of the Code of Criminal Procedure of the Russian Federation.
One of the forms constitutional protection legal rights Participants in criminal proceedings - the provision of the right to appeal against procedural actions and decisions affecting the legitimate interests of persons participating in criminal proceedings, or other persons in the part in which the procedural actions and decisions made affect their interests.
Complaint - oral or written appeal to court state body, Organ local governments or to the official about the violation of the rights and protected by the law of interests of a citizen or a legal entity, based on the overall principle of the permitting of the fact that it is not directly prohibited by law.
This right also belongs foreign citizens and stateless persons living in the territory of the Russian Federation.
A citizen or group (team) of citizens is entitled to choose: to protect his violated right in court or contact the authority to the superior to the offender. If the complaint is filed to the specified body, then with an unfavorable for a citizen, its consideration is not deprived of the opportunity to apply to the court.
Appealing the actions and decisions of the organ of inquiry, the investigator, the investigator, the prosecutor and the court is considered by law not only as a means of ensuring the rights and legitimate interests of individuals and legal entities, but also as a way to detect and eliminate violations and errors made in the process of criminal proceedings.
In accordance with Article 46 of the Constitution of the Russian Federation, each citizen is guaranteed the judicial protection of his rights and freedoms. Preliminary investigation As procedural activity is carried out not only "before the court", but also "for the court", which necessitates the judicial control of actions and decisions at the pre-trial stages of criminal proceedings. There are a number of grounds, in the presence of which the possibility of an urgent judicial audit is allowed:
the presence of a significant limitation of the constitutional rights and freedoms of the individual;
procedural actions and decisions affect human rights and freedoms outside the sphere of criminal procedure relations;
the lack of direct link between the verification of the legality and validity of the procedural decisions or actions and the subjects that the court should decide when a sentence.
Urgent judicial audit is carried out on complaints of stakeholders on the actions and decisions of the body of the inquiry, the investigator, the investigator, the prosecutor. It does not entail either the suspension of production in the case as a whole, nor suspend the fulfillment of relevant decisions or actions. The verification is conducted on the basis of the investigative authorities of the materials justifying the appropriate solutions or actions.
The activities of the court proceeds in contene conditions, the procedure for consideration of complaints is precisely regulated by law, providing publicity, publicity of the proceedings, the participation of interested persons. Thanks to the lawsuit, the law applies not mechanically, but adequately to each case, in truth and conscience. The legal proceedings corresponding to the listed principles creates the conditions for clarifying the actual circumstances and make a legitimate, justified, fair decision.
Participants in the criminal process, as well as persons whose interests are affected by the decisions made, have the right to appeal both any effect and the inaction of the body of the inquiry, the investigator, the investigator, the prosecutor and the court at any stage of the criminal process.
The right to appeal should be explained by the officials of law enforcement agencies, the prosecutor's office and the courts, on which the procedural duty of the comprehensive, complete, timely and objective consideration of complaints, in the first contact with persons whose interests are affected by the procedural actions or the procedural decisions made.
Such officials are the investigator, the investigator, the prosecutor and the judge exercising criminal proceedings. The law requires immediate response and elimination of violations of the rights and legitimate interests of persons involved in criminal proceedings.
The court's actions appealed to the higher court, the actions of the prosecutor besides appealing to the superior prosecutor can be appealed to the court. It is forbidden to send complaints to the organ or official, solutions or the actions of which are appealed.
Right to appeal possess both physical and legal entities, assumed that their legitimate interests in the application of the norms of criminal procedure law are violated. Complaints can come from a suspect accused, his defender and legal representative, the victim and his defender, civil plaintiff, a civilian defendant and their representatives, as well as from an expert, specialist, translator, other citizens who participated or not participating in criminal proceedings, any interested enterprises, institutions and organizations. Complaints of violations in the application of the norms of criminal and procedural law are considered by the rules of criminal proceedings.
Complaints can be both written and oral. Oral complaints are recorded in the relevant individual procedural documents in the form in which the complaint was declared, but in such a form, so that it was clear what particular action or decisions will appeal. The procedural document is signed by the applicant and the person who accepted the complaint. The possibility of filing oral complaints is related to the fact that not all persons involved in the criminal proceedings have sufficient legal literacy. And therefore, the duties of an officer hosting an oral complaint include assistance to the proper design, clarification of the written, familiarization with the final result, the provision of a copy of the applicant with appropriate registration and indication of the date.
Special requirements for procedural documents in which oral complaints are entered, the law does not establish, they are issued under the general rules for the preparation of procedural documents. They indicate: the time of drawing up, the person who is compiled a procedural document, the content of the complaint, the applicant information. The applicant is advisable to submit a written complaint in two copies, leaving a registered copy.
The complaint declared during the investigative action (search, inspection, exhaustion, etc.) is submitted to the protocol of investigative action. If such a complaint is declared verbally, a separate procedural document is drawn up in addition to the enlightened complaint against the protocol of investigative action. The inclined complaint is immediately sent by the person who produced investigative action, the prosecutor carrying out supervision of the investigation into this case.
Consideration of complaints - the form of both direct and indirect judicial control for non-judicial (pre-trial) production. The court covers a central place in the law enforcement system. Arbitrage practice On cases of consideration of complaints aims to eliminate negligence, stretching, falsification, retreat from the law on the part of the investigator, the investigator, the prosecutor.
A complaint against the decree of the investigator, the investigator, the prosecutor:
- a) on refusal to initiate a criminal case;
- b) about the termination of the criminal case;
- c) other actions (inaction) and decisions of the investigator, the investigator, the prosecutor who are able to cause damage to the constitutional rights and freedoms of participants in criminal proceedings;
- d) actions (inaction) and solving these persons, as a result of which citizens access may be difficult for justice,
- e) Considered by the judge alone at the court hearing with the participation of the prosecutor corresponding to the participant of the process, his defender, legal representative or representative.
The verification of the legality and reasonableness of the termination of the case is carried out on the materials of this case and without the study of any new evidence.
A complaint against actions (inaction) specified in Art. 125 Code, it can be filed by an interested person directly to court by territoriality or through the investigator, investigator or prosecutor.
If the complaint is submitted directly to the court, the Court himself takes the necessary measures to exterminate the complaints of documents for consideration and permission. Bringing a complaint through the investigator, investigator or prosecutor obliges the latter together with the complaint to submit to court required documents or business materials.
When a complaint is received, it is registered, start separate productionTo which the complaints submitted by the parties submitted materials, data on the preparation for the meeting, the judge's decision on the results of consideration of the complaint, as well as other documents.
The court, considering the materials provided insufficient for a comprehensive and objective permit of the case, have the right to refue the necessary materials.
Part Three Article 125 of the Code of Criminal Procedure establishes a 5-day term of consideration of the complaint from the date of its arrival in court. The procedure for consideration of the complaint with the participation of the applicant, his defender, legal representative or representative, if they participate in a criminal case, which it is necessary to obtain confirmation from the body producing preliminary investigation, other persons listed in the appealed article whose interests are affected by the appealed by actions (inaction) or decisions, as well as with the participation of the prosecutor.
No appearance of participants trial, in a timely and duly notified about the time and place of consideration of the complaint, but did not appear at the court hearing, who did not tell the court, the reason for their non-appearance and not expressing desires directly participate in the consideration of the complaint, is not an obstacle to the beginning of the meeting and solving the issue of essentially.
The form of complaint by law is not regulated. The fuzziness of the wording, insufficient literacy of the design cannot serve as a reason for refusing to accept it by the court to its production.
The court session for consideration and resolution of the complaint takes place in the manner defined by the Code. According to the results of the inspection, the judge makes a decree, in which:
recognition of action (inaction) or solving the relevant officials illegal or unreasonable and obliges to eliminate the disorders;
recognizes the appealed effect (inaction), the decision made in accordance with the law and refuses to satisfy the complaint.
A copy of the decision of the judge on the complaint is sent to the applicant and the prosecutor with an indication of the right and order of appeal. The judge's decision may be appealed in cassation in a 10-day term in a higher court.
Part 7 of Article 125 of the Code of Criminal Procedure provides that the concerning complaint does not entail the mandatory suspension of the contested action and the obligatory suspension of the execution of the contested decision.
Thus, bringing a complaint against the decision of the investigator, the investigator, the prosecutor to refuse to initiate a criminal case, the termination of the criminal case, as well as their other actions (inaction) and decisions that are able to cause damage to the constitutional rights and freedoms of the participants in criminal proceedings or difficult to access citizens To justice, is not the basis of the suspension of the action or execution of the decision, which are appealed.
The exception is cases when the body of the inquiry, the investigator, the investigator or the prosecutor themselves will find it necessary to suspend the action or execution of the decision to consideration and permission from the complaint by the court on the merits.