A preliminary hearing is a special procedure for preparing for the court session, due to the specific circle of permitted issues, the peculiarities of the procedure for its conduct and the types of decisions taken by the judge on the basis of the preliminary hearing. In legal literature, it is noted that "this institute is intended to provide a judge with the participation of the parties to the most difficult issues in a criminal case directly affecting the rights and legitimate interests of the Parties related to the elimination of the obstacles for further proceedings."
On the appointment of the preliminary hearing, in the presence of the basis of its implementation, it makes a decree (Art. Art. 227, 229 of the Code of Criminal Procedure). Thus, the judge in connection with the claimed petition of the party or on its own initiative conducts a preliminary hearing in the presence of the following grounds:
- 1) there is a petition of the party to exclude proof from the case;
- 2) the presence of a basis for the return of the criminal case to the prosecutor in the cases provided for by law (Art. 237 of the Code of Criminal Procedure);
- 3) the presence of a reason for suspension or termination of a criminal case;
- 4) the availability of grounds for solving the issue of the criminal case by the court with the participation of jury.
Based on the content of these grounds, the underlying condition for the adoption of a decision on a preliminary hearing is, as a rule, a petition declared by the party. Such a petition has the right to declare the accused and his defender, the victim, the Civil Plaintiff, the Civic Respondent and their representatives, as well as the prosecutor or after familiarization with the criminal case materials, or after the direction of the criminal case with the indictment or indictment to the court within three days from the day obtaining accused copies of these procedural documents (part 3 of Art. 229 of the Code of Criminal Procedure). When considering the application of the part of the judge, guided by the general rules for the order of permission of the petitions (Art. Art. 119 - 122 of the Code of Criminal Procedure of the Russian Federation), establishes the presence of grounds for a preliminary hearing provided for in the law.
At the same time, the judge has the right to decide on the preliminary hearing on his own initiative if there is a reason for the return of the criminal case to the prosecutor to eliminate the obstacles to its examination in the trial, namely in cases provided for by paragraph 1 - 5 h. 1 Art. 237 Code of Criminal Procedure.
The criminal procedural law attaches great importance to the consideration of the judge of the claimed party to exclude evidence, as unacceptable, in connection with the violation of the procedural procedure for obtaining and consolidating the evidence. In the case of a statement of such a petition, its copy must be transferred to the other party on the day of the application to court. The following requirements are imposed on the content of the application for the exclusion of proof: it should contain guidance on the proof, on the exception of which the party is applied, grounds for excluding the evidence provided for in the law, and circumstances justifying this petition (Art. 235 of the Code of Criminal Code of the Russian Federation).
Therefore, it is precisely the holding of a preliminary hearing to eliminate invalid evidence from the case, as not having a legal force. In addition, the recognition of evidence is invalid on the preliminary hearing is important and in the case when there is a petition for the accused of consideration by the court with the participation of jury, who, with trial, should not be aware of the availability of invalid evidence and take them into account when issuing verdict.
Thus, the decision to conduct a preliminary hearing, the judge takes on the request of the part or on its own initiative and, provided that it is found to conduct it, the list of which is strictly established in the law. Moreover, such a decision of the judge takes into account the issues to be clarified in the case with the general procedure for preparing for the court session (Art. 228 of the Code of Criminal Procedure). The judge makes a decision on the appointment of a preliminary hearing, in which along with the general instructions provided for in Part 2 of Art. 227 Code of Criminal Procedure, the basis of its conduct should be indicated.
A copy of this resolution should be directed to the parties to the accused, the victim and the prosecutor (part 4 of Art. 227 of the Code of Criminal Procedure). Also should be sent at least over three days before the day of the preliminary hearing, notification of the challenge of the parties to the court hearing (Part 2 of Art. 234 of the Code of Criminal Procedure).
Unlike the general procedure for preparing for the court hearing, the preliminary hearing is carried out by the judge alone in a closed court session with the participation of the parties and in compliance with the requirements relating to the general procedure for preparing for the court hearing, the general conditions of the trial and the procedure for holding the preparatory part of the court hearing (Art. 234 Code of Criminal Procedure).
The preliminary hearing procedure includes three parts:
- 1) the opening of the court session, the announcement of the participants who came to call on the call, the identification of the accused and timeliness of the presentation of a copy of the indictment or indictment, consideration of the issue of the discharges;
- 2) consideration of the petitions of the parties and listen to their opinions;
- 3) the adoption of a judge decision on the results of the preliminary hearing.
Based on the specifics of the issues allowed during the preliminary listening and solving them in the contestation of the Parties, the law does not provide for the possibility of its implementation in the absence of a prosecutor or defender. Therefore, in case of their non-appearance, the judge has the right to decide to postpone the preliminary hearing. The accused is entitled to participate in the preliminary hearing, however, he may apply for a preliminary hearing in his absence. The failure to appear in the timely notified persons does not interfere with the holding of a preliminary hearing, however, if the non-appearance is caused by respectful reasons, the judge has the right to decide on the deposition of the preliminary hearing.
At the preliminary hearing, any petitions declared by the Parties can be considered: on the exclusion of evidence, the termination of the case or the return of him to the prosecutor, to refuse to prosecut the prosecution, about the trial of the case with the participation of jury, on the call of a witness or about the recovery of additional evidence.
The main feature of the preliminary hearing is the procedure for consideration of the petition for the exclusion of evidence, recognition of it invalid and the decision to exclude it from the case. If there is such a petition, the judge finds out from the other side whether it has objections against this petition. In the absence of objections, the judge satisfies the petition and decides on the appointment of the court session if there are no other grounds for the preliminary hearing. When considering the petition to the parties on the exclusion of evidence and the recognition of its unacceptable judge checks the procedural procedure for obtaining and consolidating such evidence. To this end, the judge has the right to interrogate a witness, announce and attach a document specified by the party to the criminal case. However, in the event of an objection to one of the parties against the exclusion of evidence, the judge may announce the protocols of investigative actions and other documents, both in the case and submitted by the parties.
The new principal position is the rule of the burden of proof due to the stated party for the exclusion of evidence. Thus, when considering the judge on the preliminary hearing of the application for the exclusion of evidence, the stated side of protection on the grounds that the proof was obtained in violation of the requirements of the procedural law (for example, when testing the accused was mentioned mental or physical violence), the burden of refutation assigned to the prosecutor. In other cases, the burden of proof lies on the side that announced the petition (part 4 of Art. 235 of the Code of Criminal Procedure).
In the event of a decision of the decision on the exclusion of evidence (Annex 26 to Art. 477 of the Code of Criminal Procedure of the Russian Federation), this proof of the case loses legal force and cannot be further based on a sentence or other judicial decision, as well as investigating and used during the trial. If the criminal case is considered by the court with the participation of jurors, then the parties or other participants in the trial are not entitled to inform the jury on the existence of such evidence, which was excluded from the list of evidence by the decision of the judge. At the same time, when considering a criminal case in a trial, the court at the request of the party may re-consider the recognition of the excluded evidence admissible.
On the preliminary hearing, other types of petitions declared by the parties may also be considered (clause 4 of Art. 228 of the Code of Criminal Procedure). When considering the petition of the state of protection about the recovery of additional evidence or subjects, the judge satisfies this petition if these evidence and items are important for a criminal case. At the court hearing, at the request of the parties, any persons who know something about the circumstances of the production of investigative actions or withdrawal and attachment to the criminal case of documents, with the exception of persons with testivant immunity, can be interrogated.
At the preliminary hearing, the judge at the request of the parties or on his own initiative is considering the issue of the return of the criminal case to the prosecutor due to the need to eliminate obstacles to its permission to the court in the court proceedings. In such obstacles, the law calls only the revealed violations of the procedural laws imposed on the indictment or indictment, which eliminates the possibility of a judgment of a sentence or to make a different solution based on these procedural documents. The law establishes the requirements for the indictment or indictment (Art. Art. 220, 225 of the Code of Criminal Procedure of the Russian Federation), which should reflect the results of the activities of the preliminary investigation authorities in the case of the case preceding the compilation and approval of these procedural documents, as well as the right legal Qualification of charges. The judge is also entitled to consider the return of the business to the prosecutor in connection with the inferior to the accused copy of the indictment or indictment or due to the need to compile a prosecution or indictment in the case aimed at the court to apply forced medical measures in the absence of grounds for their applications.
At the preliminary hearing, the judge considers the issue of suspension of the proceedings, if the accused was hidden and the place of his stay is unknown, or due to the serious illness of the accused, confirmed by medical conclusion, or in connection with the direction of the request to the Constitutional Court of the Russian Federation or by accepting this court to consider the complaint about accordance with the law to be applied, the Constitution of the Russian Federation, as well as in the case when the location of the accused is known, but there is no real possibility of his participation in the court proceedings.
The judge is entitled to consider the termination of a criminal case if there is sufficient grounds provided for by law (part 1 of Art. 239 of the Code of Criminal Procedure. The judge may also at one of the parties to consider the termination of the criminal case only if there are grounds provided for by Art. Art. 25, 26, 28 Code of Criminal Procedure.
The judge is not entitled to stop the case or criminal prosecution on such grounds as the lack of a crime event, the absence of a crime, not involved accused of committing a crime (paragraph 1, 2 h. 1 of Article 24, paragraph 1 of Part 1 of Art. 27 Code of Criminal Procedure), since such conclusions, the judge may come only as a result of a study of evidence during the trial of the case.
Thus, after considering all the petitions of the parties, listening to their opinions, the judge is removed to the accommodation room for making a decision on the results of the preliminary hearing, which is considered to be announced at the court hearing. During the preliminary hearing, a protocol is underway, with which the parties can familiarize themselves and submit comments on it in general (Art. Art. 234, 260 of the Code of Criminal Procedure).
The court decision, taken on the results of the preliminary hearing, is not subject to appeal, with the exception of decisions on the termination of the criminal case and (or) on the appointment of the court hearing in terms of permission of the issue of extensive (part 7 of Art. 236 of the Code of Criminal Code of the Russian Federation).
Prior court session in criminal proceedings - The initial stage of consideration of the case in court. It is mandatory and is held to permit applications for evidence and determining the further movement of the criminal case. Unlike other court sessions, a preliminary hearing is a closed meeting, which the judge holds alone in the presence of only the protection and side of the prosecution.
What questions are solved within the framework of the preliminary hearing
The subject of the prior meeting in the criminal process are two categories of questions:
- Consideration of the petitions of the parties to the exclusion of certain evidence and (or) on the recovery of additional evidence, and in general - evaluation of the proof base in the criminal case for sufficiency and admissibility.
- Further traffic. This issue is allowed to meet the evidence assessment and results of the consideration of applicants received from the parties. The main options are termination, suspension of the case, appointment or deposition of the court session (the main phase of the trial), the connection of affairs or the allocation of the case, the direction of the case on jurisdiction (if it is broken) or the return of the business to the prosecutor (the so-called dulyla).
After the criminal case arrives from the prosecutor's office to the court and transfer it to the production of a concrete judge begins the process of preparing the case for consideration. The purpose of the preliminary hearing is part of this process. The parties are notified of the place and time of it at least in three days to be able to prepare.
The protection side (defendants, defenders, representatives) and the prosecution side (victims, the prosecutor's office, civil plaintiffs) at the time of the preliminary hearing should submit their petitions to the court. If, of course, they are. In addition, in the presence of petitions from one side, another has the right to present his objections.
The subject of the petitions must comply with the list of issues that are subject to permission to the judge under the preliminary meeting. As a rule, petitions are stated on the following issues:
- The elimination of certain evidence, which are unacceptable - obtained with violations of the Code of Criminal Procedure of the Russian Federation. At the same time, such a petition may comprise a request for a call and interrogation in courts who may explain exactly how contested proof was obtained.
- Relations of additional evidence (subjects and documents), which, in the opinion of the applicant party, are relevant and significant for its proper consideration.
These petitions may be declared not only directly on the eve of the preliminary hearing, but also earlier. For example, often the protection part of the protection includes such petitions in the protocol of familiarization with the materials of the criminal case under investigation. Or a consequence (inquiry) comes with petitions in the form of a separate document to the materials of the criminal case.
Parties may be claimed petitions and other plans. For example, they may concern those procedural decisions, which the judge has the right to adopt according to the results of the preliminary hearing - the termination, suspension of the case, the return of its prosecutor, the connection of cases, etc.
In addition to the petitions, the parties have the right to submit a court of other statements, as well as its complaints. Their content is limited only by those issues that the court has the right to consider as part of a preliminary hearing or may consider prior to the transition to the main phase of the trial.
In most cases, the preliminary hearing is carried out quickly - in 1-2 days. More time is required when in the case a lot of accused or victims, when the matter has a multi-episodes or to analyze a large amount of evidence.
All parties have the right to participate in the meeting. The defendants who are detained are delivered to the court. The non-appearance of the parties and their representatives and lawyers without good reason is not an obstacle to the hearing.
As part of the preliminary meeting, the judge announces the applicants, listens to the position of the parties on them, if necessary, causes and interrogates witnesses. In the course of the meeting, the protocol is underway.
Following the meeting, the judge takes a certain decision. First, it must allow all received applications (they are either satisfied or not). Secondly, it should determine the further course of the case. The list of all possible solutions is set by Art. 236 Code of Criminal Procedure.
The preliminary hearing can become not only the first, but also the last stage of the consideration of the criminal case. This happens if the court ceases a criminal case (pursuit), including the appointment of a judicial penalty, a kind of analogue of criminal punishment.
The preliminary hearing is one of the stages in the criminal process. This is in my own way "alignment of forces before the fight."
Pre-hearing is not a mandatory procedure. It is held only in the presence of certain conditions and makes it possible to enhance our lawyers to improve the chances of their prosthet on a good outcome of the case - about it below.
It is important to know: the criminal process consists of a variety of stages. Interrogations, searches, recesses, appointment of forensic examination, survey witnesses, search for evidence ... All this should be carried out in accordance with the Code of Criminal Procedure and is properly decorated. And since investigators often sin with violations, it allows the lawyers of our company, those or other actions appeal, appeal. And thereby exclude them from the case. A complete list of procedural actions in criminal cases and how lawyers achieve a better position for their customers.
What is a preliminary hearing and for what it needs
Article 229 of the Code of Criminal Code of the Russian Federation is devoted to this. The judge may appoint a hearing on his own initiative. The defender has the right to submit a petition for the appointment of the hearing, and then it is assigned. The preliminary hearing in the criminal process is carried out if:
- one of the parties stated a petition for the exclusion of unacceptable evidence;
- the prosecutor made mistakes in the preparation of an indictment, and one of the parties (probably it will be the protection side) believes that the case must be returned to the prosecutor;
- if the defense believes that there are grounds for termination of a criminal case;
- if one of the parties concerns the conduct of a trial in the absence of a defendant, which is hidden in the territory of another state. At the same time, the crime should be grave or especially heavy;
- if the question arose about the participation of jurors.
There are other reasons, but they are too specific.
It is important to know: Thus, the preliminary hearing gives a lawyer the opportunity to deprive a consequence of one or more evidence obtained in violation of the Code of Criminal Procedure. Yes, judges are reluctant to meet the side of protection. But try to use this opportunity still needed.
On the exclusion of evidence should be reached Read more
The preliminary hearing in the criminal proceedings gives the right as a lawyer and the investigator to declare a petition for the exclusion of unacceptable evidence (Article 235 of the Code of Criminal Procedure).
It is important to know: an invalid proof is the proof obtained in violation of the Code of Criminal Proof (Article 75 of the Code of Criminal Procedure). They cannot be based on the prosecution and can not appear in the case. Article 75 of the Code of Criminal Procedure was built so that any proof obtained with a violation of the Criminal Procedure Code is unacceptable; However, the article presents three examples of invalid evidence:
- if the suspect / accused gave testimony during the investigation, while he did not have a defender, and at the court hearing he refused these testimony;
- the testimony of the victim or witness, based on guesses, hearing, assumption;
- the testimony of the witness, if he cannot call a source of his awareness.
To declare a petition on the preliminary hearing. We still have to prove its validity. This burden falls on a lawyer. The lawyer must lead arguments, for some reason or other evidence is unacceptable. This requires painstaking work with documents, a survey of witnesses. But the "prize" is very good - the exclusion of evidence, which increases the chances of a favorable outcome of the case.
If you manage to convince the judge in the validity of the petition, he decides to exclude evidence, and it can no longer be used in court.
But not so simple: Article 235 of the OPC gives the investigator the opportunity to smear
Part 1 of Article 235 of the Code of Criminal Procedure suggests that during the preliminary hearing in the criminal case, the parties can declare a petition for the exclusion of any evidence. But in practice it is not. Not any.
The list of evidence collected in a criminal case is provided in the indictment (clause 5, paragraph 6 of Part 1 of Article 220 of the Code of Criminal Procedure) or the indictment (paragraph 6 of Part 1 of Article 225 of the Code of Criminal Procedure). Here is the exclusion of these evidence and you can apply.
But at the same time no one prohibits the investigator to present during the court evidence that are not inscribed in an indictment, that is, "save" proof for the court. For example, data "doubtful" examination.
Thus, the defender is essentially deprived of the prior hearing in the criminal process of the possibility of challenge this evidence. Because it is simply not in the indictment.
It is important to know: here is a criminal case from such difficulties and tricks. To this, you just need to be prepared and know what to do in such situations. Our lawyers know what to do. And trying to protect yourself - it means simply after a time to get into the cunning legal traps, which the investigator knows how to place perfectly.
On the suspension of the proceedings and termination of the criminal case
As a result, the preliminary hearing in the criminal case, the judge makes one or another decision. Let us dwell on two of them - on the suspension of the proceedings and the termination of the criminal case.
The judge suspends the proceedings in the case of a serious illness of the accused, if it is confirmed by medical documents (paragraph 2 of Part 1 of Article 238 of the Code of Criminal Procedure). There are other foundations of the suspension of the case, but they do not interest us. These include, for example, escape.
At the same time, the current of the limitation of criminal prosecution does not stop (Article 78 of the Criminal Code). Perhaps such that the disease will be quite long, and the term of attraction to justice will pass at all.
Also, the judge may decide on the termination of the criminal case. On the grounds for its termination can be found under the link.
It is important to know: it would seem if there is a basis for termination of the criminal case, then it should stop it, and there is no point in pulling to the preliminary hearing. But investigators rarely agree to the termination of the case. And if you agree, you need to first recognize the guilt that is generally absurd. The judge can look at the situation differently. Of course, judges are often solidar with investigators, but still the judge is another person, he can have a different understanding of the situation. Therefore, our lawyers use any opportunity to achieve a soft punishment, termination, or conditional period.
How we are working
- you come to a free consultation on the preliminary hearing in a criminal case;
- the lawyer studies documents, heers you, assesses the perspective of the case;
- your defender picks up the arguments with which you can improve your position during the preliminary hearing;
- the lawyer participates in the preliminary hearing, seeks positive results.
Services of our lawyers
- free legal advice on the preliminary hearing in the criminal process;
- studying your criminal case, search for arguments in your favor;
- participation in the preliminary hearing on the protection side;
- implementation of all necessary procedural actions.
The criminal case does not tolerate delay. In the investigator "Conveyor", he needs to pass a good statistic, and for this you need to send a case to court. Therefore, no one will wait if you will pronounce the defender. On the contrary, the investigator is much easier if no one defends you.
Therefore, be sure to come to consult - it is free and does not oblige you to use our paying services.
In charge professionals in criminal proceedings. It is not necessary to hope that everything will cost, swears, they will regret. Will not carry and will not cost. The investigation, the prosecutor's office and the court are not the organizations where they sympathize. It only costs those who were able to protect themselves.
Eugene de Blaas, Flirtation at the Well, 1902
Preliminary hearing is a special court session. It is characterized by the fact that:
2. Preliminary hearing is carried out:
1) in the presence of a petition to the parties to exclude the evidence declared in accordance with Part Three of this article;
2) if there is a reason for the return of the criminal case, the prosecutor in the cases provided for in Article 237 of this Code;
3) if there is a reason for suspension or termination of the criminal case;
4.1) in the presence of a petition to the part of the court proceedings in the manner prescribed by part of the fifth of Article 247 of this Code;
5) to address the issue of criminal consideration by the court with the participation of jurors;
6) in the presence of a sentence that did not enter into legal force, providing for the conditional condemnation of a person in respect of whom a criminal case received, for the crime previously performed;
7) if there is a reason for the allocation of a criminal case.
3. An application for a preliminary hearing may be announced by the party after familiarization with the materials of the criminal case or after the direction of the criminal case with the indictment or indictment to the court within 3 days from the date of receipt of the accused Copies of the indictment or indictment.
Part Two Article 229 is recognized as not contrary to the Constitution of the Russian Federation, since the provisions contained in it in its constitutional and legal meaning in the system of current criminal procedure regulation do not allow the possibility of the content of the accused of custody without a court decision after the direction of the prosecutor or the subordinate court of criminal case for consideration Resolution of the Constitutional Court of the Russian Federation of 03.22.2005 N 4-p.
Order
7. The petition to the part of the protection of the recovery of additional evidence or subjects is subject to satisfaction, if these evidence and items are important for a criminal case.
8. At the request of the parties, any persons who are known about the circumstances of the production of investigative actions or seizures and attachment to the criminal case of documents can be interrogated as witnesses, with the exception of persons with testimonial immunity.
9. During the preliminary hearing, a protocol is conducted.
3) on the suspension of criminal proceedings;
4) on termination of the criminal case;
5) on the appointment of the court session;
6) on postponing the court session in connection with the presence of a sentence that did not enter into legal force, providing for the conditional condemnation of the person in respect of whom a criminal case was received, for the crime previously committed to them;
7) on the allocation or inability to allocate a criminal case into separate production in cases provided for by this Code and on the appointment of the court session.
2. The decision of the judge is issued by a decree in accordance with the requirements of part of the second article 227 of this Code.
3. The resolution should reflect the results of the consideration of the stated petitions and filed complaints.
4. If the judge satisfies the application for the exclusion of evidence and at the same time appoints a court hearing, then in the resolution it is indicated which proof is excluded and what materials of the criminal case, justifying the exclusion of this evidence, cannot be investigated and challenged at the court session and are used in the process of proof.
5. If the prosecutor changes the prosecution during the preliminary hearing, then the judge also reflects this in the decision and in the cases provided for in this Code, it sends a criminal case.
6. If, when resolving the application of the accused of providing time to familiarize themselves with the criminal case materials, the court will establish that the requirements of the part of Article 109 of this Code have been violated, and the deadline for the content of the accused in custody during the preliminary investigation has expired, the court changes the measure of preventiveness in the form of The detention, satisfies the petition of the accused and establishes him the term for familiarization with the materials of the criminal case.
7. The judgment adopted on the results of the preliminary hearing may be appealed in the manner prescribed by chapters 45.1 and 47.1 of this Code, with the exception of a court decision on the appointment of the court hearing in terms of the permission of the issues specified in paragraphs 1, 3 - 5 of the second part of Article 231 of this Code.
The preliminary hearing in the criminal process is a closed court hearing, which is the preparatory stage of the proceedings on the merits. This consideration of the judge is carried out alone with the participation of the parties and in accordance with Ch. GL 33-36 of the Criminal Procedure Code of the Russian Federation. At this stage, only those questions that served as the basis for its implementation are permitted.
Based on
The specified event is possible if it has one of the foundations given:
- Application to exclude evidence.
- There are grounds for the prosecutor to return the case materials.
- There are grounds to suspend or stop the case.
- The statement of the parties to conduct a proceeding without the accused, which is abroad and / or evading from the appearance of the court and not involved in the crime.
- The accused submitted a trial with the participation of jury.
- There is a sentence that has not become applicable and providing for the conditional condemnation of the accused for another act.
- There is a reason to allocate the case.
- Finding the part of the connection.
As can be seen, a preliminary hearing in a criminal case is possible at the request of the parties, or at the initiative of the Court, if there are grounds.
The petition is given, at the end of familiarization with the case or after transfer to court, in a three-day period from the moment when a copy of the indictment is obtained by the accused. The material of the case may be volumetric, consist of a dozen volumes, each of which is 5-7 centimeters. Accordingly, familiarization with the case can last long. Also, when awarded the indictment, the mark is necessarily made at how much and what number it happened.
Decision of the Constitutional Court of the Russian Federation of March 22, 2005 No. 4-P argues that the above circumstances do not contradict the Constitution of the Russian Federation, because By sending a case to court, it is not allowed to keep the accused without an appropriate decision.
Order of conduct
Information that the judicial procedure will be held is sent to the parties at least for three days before it.
In the meeting, the judge rules alone. It passes closed and is carried out with the participation of the parties.
At the same time, the accused may be absent on the proceedings, if he filed a petition or a petition filed by one of the parties, and this accused is abroad and / or evade the appearance of the meeting and is not brought to responsibility on this case. The failure to appear the other participants in the process does not prevent the consideration of the case.
So, for a preliminary hearing in case No. 1-42 / 18 to the Nogai District Court, the accused D. did not appear, but turned to the court with a request to hold a meeting without her participation. Due to the fact that Art. 234 Code of Criminal Procedure provides for such a right, the proceedings were carried out in the absence of D.
It should be noted that the court has the right to leave a civil law without consideration if the civil plaintiff or its representative is missing at the meeting. However, the Civil Plaintiff may file a lawsuit according to civil procedural legislation.
During the proceedings, the secretary of the meeting leads the protocol. You can get permission to photograph, video and / or audio recording, film, broadcast on television, radio, on the Internet, which is noted in the protocol.
If the party announced the exclusion of evidence, a copy of the petition is sent to the opposite side that day as he entered the court.
The statement should indicate:
- the argument that needs to be excluded;
- what basis excludes proof;
- confirming circumstances.
So the petition must justify your request. If the statement is asked to interrogate the witness and introduce documents to the case, the court can satisfy it. Art. 234 Code of Criminal Procedure Indicates that there is allowed to interrogate witnesses on the part of the party. This requirement does not apply to citizens with testimonial immunity. However, the probability of interrogation of these persons is not excluded from their consent, which does not contradict the Constitution of the Russian Federation.
During the proceedings, the judge learns from the opposite side about the existing disagreement to exclude proof. If there are no objections and other reasons for the preparatory consideration, the application is subject to satisfaction and the meeting is appointed.
When the party has objections to exclude the arguments, the court may void documents present in materials and / or submitted by the parties. If the side is sewn asks to exclude the proof, obtained with a violation of the Code of Criminal Procedure of the Russian Federation, then this argument refutes the prosecutor. In other cases, the duty of the rationale is assigned to the declared party.
If proof is excluded, it is no longer legal force, does not take into account in the court decision, is not investigated and not used in the case. Also, the court assessors should not know about this argument. When considering the case on the merits, the party may ask to recognize this proof admissible. This position is paying attention to the Plenum of the Supreme Court of the Russian Federation in the decision of 05.03.2004 No. 1.
For example, the Borisoglebsky city court by its decree following the preliminary meeting satisfied the request of a lawyer to recognize unacceptable and exclude an expert opinion from the list of evidence of the charge. The prosecutor without agreed with this resolution, filed an appeal view to the Voronezh Regional Court. The latter in his decision was returned to a new judicial consideration of the case file, the prosecutor explained the right to submit a petition for the recognition of the previously excluded argument admissible.
Types of solutions
The preparatory consideration of the case ends when a decision is made:
- Transfer materials at the other concern.
- Return the materials to the prosecutor.
- Suspend the judicial procedure.
- Stop criminal proceedings.
- Appoint a meeting.
- To postpone the meeting, if a sentence has been made regarding the defendant for another act, providing for conditional condemnation and not entered into legal force.
- To allocate the case into separate legal proceedings or about such inability to appoint a meeting.
- Connect cases into a single legal proceedings or about such inability, to appoint a meeting.
As can be seen, the result depends on the basis of the preliminary hearing in the criminal process.
A solution is drawn up in the form of a decree, where the results of all appeals are reflected.
When it is terminated in connection with the appointment of the accused of a judicial fine, then its size is indicated in the decision, the term of execution. In case of excluding proof, it is indicated which argument is excluded which materials of the case are not examined, are not announced and are not used in the case. When the prosecutor is changed by the prosecutor, this is reflected in the ruling and, if necessary, the case is directed to jurisdiction. If it turns out that the materials of the completed investigation are not charged by the accused in the required period, and the term of its detention is expired, the court makes a decision to change the measure of restraint and determines the deadline for familiarization with the documents.
The judge's decision can be appealed.
Return to the prosecutor of the case
The case is returned to the prosecutor under such circumstances:
- the accusatory document is issued with violation of criminal procedure legislation;
- was not awarded to the accused copy of the indictment, except when this is recognized as legitimate;
- it is necessary to make a decision on medical measures;
- possible connection of cases;
- the rights to the accused are not explained;
- the need to change the qualifications of the act to a more serious act. At the same time, the judge points out only the basis for the qualifications of actions as a more serious encroachment without a commentary articles of the special part of the Criminal Code of the Russian Federation;
- the presence of circumstances excluding criminal proceedings in the abbreviated form;
- the presence of new dangerous effects of acts, due to which the foundations appeared to prevent accusations of more gravily encroachment;
- the presence of a canceled judgment of the court, the basis of which the circumstances were the cause of the accusation of a more gravitative act.
Thus, obstacles are eliminated for further consideration of the case. It is possible to carry out measures regarding the accused, including an increase in the term of detention.
The case is suspended if:
- The defendant is hidden, its location is unknown.
- The defendant is seriously sick, which confirms the medical conclusion.
- In the Constitutional Court of the Russian Federation, the appeal or they received a complaint about compliance with constitutional legislation.
- It is impossible to participate in the judicial case of the accused, although its location is known.
- The accused, who is in custody, disappeared from the court.
The trial does not have a continuation if there are reasons for that.
The grounds for termination or persecution are listed in part. 1, 2 tbsp. 239 Code of Criminal Procedure. These include the expiration of the limitations of the persecution, the existence of an amnesty act, the repentance of the defendant, the reconciliation of both parties, the refusal of the prosecutor from the charges and the other. The court decides to terminate a criminal case, a copy of the document to direct the prosecutor and the parties in the five-year period from the moment it was made.
Difficulties in practice
As you know, legislation is not perfect, there are gaps and contradictions. This also applies to the preliminary hearing, enshrined in the Code of Criminal Procedure.
It is necessary to briefly consider some problems:
- despite the fact that on the Internet you can find a sample design of the document, the petition for the preliminary consideration of the case should be competent and reasoned. As a rule, such a statement may be a defender of the accused. But there are circumstances that it turns on in the case much later. For example, if the defender did not participate in the investigation, the preparatory trial was not appointed, he would not be able to declare this procedure;
- the impossibility of challenge the proof that is absent in the indictment. In accordance with the Code of Criminal Procedure, in the preliminary hearing in the criminal case, the parties are given the right to declare the exclusion of materials of the case. This is not quite so. Apply the application is possible in relation to those arguments that are listed in the indictment. It is not prohibited by the investigator to submit the evidence during the judicial procedure not included in the indictment. That is, the protection side cannot challenge the arguments at the preparation rate for the judicial procedure, which is originally not;
- refusal to exclude evidence. Despite the fact that the procedure for considering the application for the exclusion of materials during the preparatory consideration of the case is enshrined in detail in the Code of Criminal Procedure of the Russian Federation in practice, in practice, the court often refuses its satisfaction. At the same time, the judges refer to the following: along the course of the consideration of the case on the merits there will be the opportunity to declare this petition. But in the future, they reject it, arguing that they will give a legal assessment of arguments when sentencing. In such actions there is a violation of the Code of Criminal Procedure.
The existence of problems in the preliminary hearing process suggests that it is necessary to work on the improvement of criminal procedure legislation.