Proof of the Protocol court session
or why you need to fight for the purity of lawsuage documents
When providing qualified legal assistance in court a huge role in any civil, criminal, administrative or arbitration process Playing a trial of the court session, namely, what and how it is set out in it, I mean the course of the court session, the testimony of participants in the process - the defendants, the plaintiff, the defendant, the applicant, the statement of their points of view on the merits of the dispute, application and consideration of requests for recovery documents on request of the court, petitions for the appointment and conduct of one or another expertise.
With the help of a falsified trial protocol, one member of the process can be said to say what he never said, to make something silent where he actually said something, trying to prove his point of view and a legal position in the case, from one To achieve confession of guilt in a traffic accident, from another - in applying serious injuries.
Catching the minutes of the court session can be an innocent person to deprive the freedom for many years, to award the factory in favor of one side in the dispute, the factory, to make an unfair heir to the owner of the house, apartments, land plot, and an honest citizen take the last property.
The one who is a trial of the court session, as he pleases, considers himself an equal Most High, a conductor of the play of human passions called life, he is subject to all being, years human life, money, property, relations between people.
Sometimes you do not even know that you can bring a big trouble or joy of the word, comma, meaningful load or phrase, specified by those who lead the minutes of the court session, as it can play a significant role in the lifetime of a person or group of people.
However, at first glance, not everything is so simple, even in the arbitration process, where the audio recording of the court sessions is being conducted after payment of you state dutySince it is often found on which the audio recordings conducted by the court can be erased in the most significant places, destroyed or recorded that this audio recording cannot even decipher a specialist (expert).
Wine in these cases is still, as a rule, neither non-professionalism of people who are responsible for conducting auditution of the court hearing, but a corruption component of judicial processes or a deferred mechanism judicial systemwhich often comes from above on a certain for someone, as a rule, the strengths of this world, the path of development, please, for example, about the destruction of audio recordings as evidence that one of the participants confirmed the contested circumstances that in practice it would be obliged to make the court The decision in favor of the other side, but then the party, in essence, recognized the lawsuit in judicial order, in violation of the law, it is trying to solve anything other, not legal means.
In Ov professional activity Often, the lawyer faces numerous violations by courts when conducting, drawing up a trial protocol, consideration of comments on the minutes of the court session. Such violations are often:
1. Not to draw up a trial protocol in the period established by law;
2. Drawing up a trial protocol that does not reflect the real circumstances of the case, full or partial distortion, from the point of view of the Criminal Code of the Russian Federation - falsification of evidence;
3. Unlawful dissatisfaction with the comments on the minutes of the court session;
4. Miecaviting the comments on the minutes of the court session by making the definition of refusal to meet the comments on the trial of the court session, as the comments on the minutes of the court session were filed before the manufacturer of the registration protocol itself;
6. Refusal to adopt to the case of the audit of the court session to compare it with the written report of the court session and meeting the comments submitted on the court of court sessions compiled by the court;
7. Refusal to conduct a judicial phonoscopic examination, which could, on the one hand, to prove the fact that audio recording available on a digital or other audio recorder is not changed, not distorted, not erased in places, not completed, etc., it objectively reflects the move and Events of the court session, court actions and other participants trialOn the other hand, the fact that the minutes of the court session, which is compiled by the court, does not correspond to real reality.
Due to the workload of the courts, a large number of cases, due to the lack of legality and law enforcement, could be forgiven by our judges that the minutes of the court session is not manufactured in the deadlines established by law, if the trociety of the court session would be drawn up although later, If the trial of the court session actually reflected the actions of the participants in the trial and the court.
However, in practice, everything consists much worse, judges having the status of inviolability, that is, the status does not allow them to attract them to criminal responsibility For violation of the law, including the falsification of the trial protocol, as a rule, not only the deadlines for the manufacture of the trial protocol, but also bind to the course of the court session in it.
Reasons for the fact that it remains unpunished is imperfection domestic legislation, namely:
1. Availability of judges of the status of inviolability - atavism russian law, in the presence of this status Judges not only, as a rule, it is impossible to bring to criminal liability for the crime committed, but if this happens in extremely rare cases, on the submission of the court chairman of the constituent entity of the Russian Federation, less often the prosecutor, practically does not happen on the complaint of a citizen in the qualification board of judges, the term Attracting for perfect crimes By the time, the judge will deprive the status, the criminal case will be offended, bring him to court, the court will sentence, the sentence will be appealed, will enter into legal force, the statute of limitations for the crimes of crimes of little gravity will expire; And try in practice to deprive the judge of the status, it is very not easy: for the period from 2008 to 2012, together with other citizens, submitting complaints about the qualifying board of judges, I managed to deprive the status of one world judge, two federal and one chairman of the city court of Moscow region , I still can not say for sure, whose complaint was in this case decisive, but it doesn't matter, because the main thing happened - to send these people in our country justice, I hope no longer.
2. The imperfection of the regulations (procedures) of complaints, appeals, ideas to the qualification college of judges of the courts of the constituent entities of the Russian Federation, so if necessary, the qualification board of judges may refuse to consider the complaint against the judge and send your complaint to the Chairman of that Court, where it passes public service The judge on whom you complain, the result of consideration of the complaint will be obvious to you. Chairpersons of the courts, as far as I know, the judges are not punished, on the contrary, such a judge, which you complained, understanding that it could lose their status, would carry out the instructions of his chairman, which sometimes nothing to do with the law; Moreover, if your complaint is sent to the Chairman of the District Court, and in the field of the city court, and the Chairman of the Court will not give this complaint to any progress, but if you are lucky, will answer you, then you can no longer contact and appeal the answer (decision ) Chairman of the Court, that is, find yourself in the "Legal Upus"; In my opinion, this "legal trap" was made in order to prevent deprivation of the status of those judges that are needed or convenient for the Russian judicial system; In practice, I have repeatedly done the following actions to achieve a positive result for my client in relation to the judge that violates the law from my point of view or from the point of view of my client, the first - I applied to the Qualification Board of Judges and asked not to send a complaint to consider the Chairman of the Court in which the judge does violating the law, in this case, I referred to the resonance of the case and the gross violations of the law by the judges, the second-approved two complaints at the same time, in the Qualification Board of Judges and addressed to the Chairman of the Court of the constituent entity of the Russian Federation and asked the latter to bring the submission to the Qualification College of Judges and To deprive the judge of the status and title, the third - I turned first to Chairman of the Court, in which the judge disrupts the law, and then, having received the answer from him, sent a complaint to the qualification board of judges, whose chairman requested not to send my complaint to consideration by the Chairman of the Court Since it was previously this complaint already I put an answer to it, but in almost all cases, I was either not answered, despite the request of my clients, send them an answer to the complaint at the address of living, or they were redirected to complaints to the chairmen of the courts, who were also silent and nothing to me, nor my customer responded; In almost 99 out of 100 cases, the very notorious "legal trap" was triggered - the response of the Chairman of the Court, in which the judge was listed on which you are submitting a complaint cannot be appealed;
3. Corporate solidarity of judges is the following reason that in our country it is almost impossible to ensure that the judges perform the law, including the reflection in the minutes of the court session of the real movement of the case; As mentioned above, if you miraculously did not fall into the so-called "legal trap", then you will be waiting for you, as a rule, the time loss and a series of disappointments, the resolution of the qualification board of judges of the subject of our country will appeal first in the highest qualification board of judges of the Russian Federation, Then in the judicial board on civil cases Supreme Court The Russian Federation, and everywhere you are waiting for the judges, but people who are imperfect, who are inherent in fear and fear for their careers, as they will consider complaints about the same judges participating in the work of the qualifying teams of judges, that is, those whose solutions they will cancel;
4. Lack of real disciplinary responsibility judges for violation of the existing procedural legislation; In this case, so that the law does not work, it is enough to lay a mistake in the legal mechanism of his work, for example, not to indicate in it, in relation to whom it works, how he should be applied in practice, not to create commissions that will be Its applying, not to indicate the time to which it should be applied, not to provide for tough responsibility (punishment), in relation to those who will be obliged to consider cases of attracting judges to justice and execute decisions.
All the above, unfortunately, leads to the fact that comments on the protocol in judicial affairsin which anyone is trying to lobby their interests, as a rule, the court is not satisfied.
Despite the existing definition Constitutional Court Of the Russian Federation dated July 2, 2009 N 1007-oh about refusal to accept the consideration of a complaint of a citizen A. V. Vinogradov for a violation of his constitutional law h. 5 tbsp. 241 of the Code of Criminal Procedure, according to which the "written report of the court session in terms of fixing the testimony and research of other evidence may, in the course of judicial investigators, are considered as a derivative proof in comparison with audio or video recordings in which the course and results of the trial" are directly captured. Those who violate the law - falsifies the minutes of the court session fail to bring to justice, they remain unpunished. "
Yes, and what is derived proof, why not just proof, why in parts, and most importantly, why maybe in some cases and in which protocol of the court session is recognized as evidence, and in what - no.
Where is such not fundamentality in determining the judges of the Constitutional Court of the Russian Federation, why on the discretion of whom, in some cases the law should be executed and the protocol will be recognized as evidence, and in others there is no.
Obviously, one, "loopholes" in the law will allow unradical law enforcers to violate it if everyone is equal to the law in accordance with the Constitution of the Russian Federation, why some will be attracted for violation of the law, while others are not.
Why do we like the manna heavenly to wait for these judicial Definitionslike a private definition of the judicial board in criminal cases of the Supreme Court of the Russian Federation of February 7, 2011 N 36-o11-1, which is recognized that "for the period from January 2009 to September 2010, the time of staying on vacations, and other criminal cases in which the secretary of the court session P. was attended, not only can not be an excuse for adhered to the toll, but also indicate the improper organization of work in the judicial board in criminal cases of the Smolensk Regional Court, "and why the Secretary of the Court replies, and Not a judge with her, which listened to this case on the merits and the signature of which should stand next to the signature of the secretary of the court session, because according to another definition of the Constitutional Court of the Russian Federation dated July 2, 2009 N 1007-oh-o "On refusal to consider Complaints Citizen Razin Sergei Nikolayevich for violation of its constitutional rights of Article 259 of the Criminal Procedure Code of the Russian Federation "" The minutes of the court session is procedural document, which reflects the entire course of the trial, contributes to the court decision in accordance with the evidence discussed at the court hearing, and provides the ability to control the superior judicial authorities for the implementation of the laws of the law when considering criminal cases. The provisions of Article 259 of the Code of Criminal Procedure directly enshrine that in the minutes of the court session, a detailed content of the testimony of the persons published by the court, the questions asked by the questioned, their answers, the circumstances that the participants of the trial are asking for a protocol, and statements, objections and petitions of persons participating In criminal case (paragraphs 6, 10, 11 and 13 of the part of the third). According to Article 260 of the Code of Criminal Procedure, within three days from the date of review, the Party may submit comments on it to be immediately considered by the presiding party; According to the results of consideration of the comments on the minutes of the court session, a motivated decision on the certificate of their correctness should be made to the court session or about their deviation, which, together with the comments, is attached to the court session protocol. These submitters do not imply an arbitrary rejection of the comments submitted to the title protocol or deprivation of the participants in the process of appealing to appeal the decision of the judge on the rejection of comments on the minutes of the court session and refer to the appeal against the sentence to the unreasonableness of rejecting the comments filed regulatory relationship with others legal standards They cannot be considered as eliminating the obligation of the court on the basis of the principle of objectivity to make changes to the minutes of the court session in accordance with the comments submitted. "
As for the proof production, you first need to decide what we should consider generally evidence, according to most lawyers, "From the point of view of purely practical, evidence, it is recommended to consider" ... the material that the heavy wishes to submit to the court in the hope that this will encourage the court to come to the desired conclusion On the issue of fact, "the absolute reliability should be understood under undoubted proof, as sufficient material for the conviction of the judge in its rightness, which will be the basis for the court decision in your favor."
There is also division of evidence to species, carried out in several directions. The distinction between direct and indirect evidence depends on the content of information. In the first case, there is information about the main facts, in the second - about any other circumstances, one way or another associated with the desired legal fact and helping it. Another criterion is based on the division of evidence to the initial and derivatives that interest us in this case. The initial are formed under the direct impact of the real event: a witness who personally observed a road accident. If this person tells about the facts known to him to another, then the information reported by the latter will be derived. There is an intermediate link between the event and the source of information. With an increase in the number of such links, the degree of production increases in proportion.
From the point of view of the judges of the Constitutional Court of the Russian Federation, the recorder, which was directly recorded the course of the court session, is derived evidence, only because the lawyer or another representative of this or that process clicked on the "Record" or "Play" button, without a representative of the voice recorder could not reproduce.
The soulless apparatus, the gadget, is not an eyewitness of the court session, since the attorney himself must submit to the Himself, requiring one or another expertise to prove that the trial of the court session was falsified.
In the opinion of these people, the production of this proof is also determined by the record on the CD - the disc, which could be attached to the materials of the court case, rightly derived from the record that is available on the recorder itself.
However, whether it will help prevent the abuse of a court and one of the tremendous parties, whether to trust such direct and direct proof as the readings of the person who watched the progress of the trial from the courtroom, in relation to the judges of the Constitutional Court of the Russian Federation derived proof of the digital recorder or A recorder with a magnetic ribbon, since in the courts only the second tool of proof is considered evidence, provided that the record on the magnetic tape is performed by the first imposition of the film.
In my opinion, derivative evidence is also permissible on a par with primary evidence, when they are aimed at confirming the circumstances of a specific case, to catch anyone in violating the law by applying for evidence, and sometimes to attract anyone to liability for violation of the law.
I think completely ridiculous and harmful to consider derivatives of evidence permissible only in cases, stipulated by law or published on their basis by subtitle acts, or by agreement of the parties, and also prohibit the regulation of questions about derivative evidence of precedents, the functions of judicial practice, which is definite, should not be reduced to how mechanical use legislative normsand become a tool for substitution of existing laws, replace under them legislative power any state by publishing numerous plenums of the Supreme Court of the Russian Federation or the highest Arbitration Court RF.
Undoubtedly, for judicial practice Regulation of many details, private parts, shades, often having great importance, but cannot replace the fields of law, judicial practice cannot.
Obviously, the use of derivative evidence must be resolved independently of the consent or objection to the opposite side, if direct proof is available, as it will allow interested persons to prove that their approval deserve or, on the contrary, does not deserve confidence, especially since the actions of a citizen who submitted a falsified Proof criminal case.
Thus, we will be able to get rid of judicial acts from incomprehensible and not talking phrases "by the court there is no reason to trust" "The court found the view that the witness giving testimony was guided by a feeling of false friendship and mutual execution", "spouse or mother are interested parties, "why so in courts do not write in sentences or decisions on the testimony of witnesses - police officers, from which management requires indicators of the disclosure of crimes or attracting persons to administrative responsibility.
Audio recorders can not be discounted when they are in good condition and can be used for the purpose to fix the course of the court, since the gadget itself can neither analyze or make any conclusions, and therefore independent in granting Evidence that just needs to be adopted and give them an objective legal assessment.
Unfortunately, in practice, everything happens differently, in the court of first instance, the judges denounce you in the admission of recording from the recorder to the materials of the case, refuse to hold a judicial phonoscopic examination, which would be able to help you that the trociety of the court session was not objectively, it contains that which should not be contained or in it is not what should be in connection with which judicial act Decided to violate the law, the court did not correctly established the circumstances of the case, did not give the legal assessment of the testimony of witnesses, etc., and therefore the judicial act is subject to cancellation; In court, the second instance you will simply answer that listen to the audio record of the court session and they cannot evaluate, since they were not witnesses of the court hearing, and the conduct of examinations in the court of the second instance procedural code and the procedure for consideration of cases in the court of the second instance is not envisaged, the judges of higher courts will adhere to the same opinion, and you will remain with anything except the insult judicial power In regret, for the money spent on the expensive digital voice recorder.
Even if you try to refer to the fact that in the conduct of a judicial phonoscopic examination, on your request, you may be denied, even if you will refer to the Resolution of the Constitutional Court of the Russian Federation, issued on July 2, 1998 No. 20-P "in the case of verification of the constitutionality of Article.331 and 464 The UPC RSFSR due to the appeal of a number of citizens, and its strength, as well as according to the definition of June 26, 2003, N 243-O "On the refusal to accept the complaint of a citizen of Uzabkin Igor Anatolyevich to violate its constitutional rights by the provisions of Art. 127, 259, 355, 356, 360, 373 and 378 of the Code of Criminal Procedure, "according to which it was recognized that" the rule established by criminal procedure legislation, according to which most decisions taken during the court proceedings can be tested in cassation only simultaneously and in connection with the verdict, aimed at ensuring the independence of judges in the implementation of criminal proceedings and does not eliminate the possibility of checking the legality and validity of intermediate actions and decisions of the court - it is only postponed to a later date, even if they are reducing the definition of the Constitutional Court of the Russian Federation of March 4, 2004 N 145-O, in which it is said: "In accordance with the Constitution of the Russian Federation, everyone has the right to defend its rights and freedoms by all means, not prohibited by law (Article 45, Part 2); The proceedings are based on competitiveness and equality of the parties (Article 123, part 3). Of the data of constitutional provisions, it should not, however, the possibility of choosing accused at its discretion of any methods and protection procedures, whose features are in relation to separate species The proceedings are determined based on the Constitution of the Russian Federation. " You just just indicate that not all actions (inaction) court are subject to appeal.
Due to the above legal position, such a delay in consideration of complaints with the court decision (related, in particular, with the provision of a study at the court session of all the circumstances of the case, including those declared in the court session for the study of additional evidence) is not unacceptable. "
It remains only with the share of humor and sarcasm to assert one thing: in the presence of such ambiguous fate precedents Supporters of the law continue to unequal struggle for the purity of the trial of the court hearing, during which the judges in response to the applications of the participants of the proceedings to make certain circumstances in the Protocol, confidently and calmly answer: "We know without you what to enter the protocol, and what is not, and you do us With the secretary, do not specify! ". At such moments, according to many lawyers and authors of numerous articles on this topic, it involuntarilys the impression that the troubles of the court session is conducted by the court, including to ensure its own, non-public interests.
This publication is based on the materials of one civil case, considered by the District Court of the Vladimir region and the materials of verification of the investigator of the SCC in relation to the judge and the secretary of the court session.
We consider the Civil Case.
Often, when considering civil affairs in court, the testimony of witnesses caused and interrogated in court. These readings should be accurately and strictly recorded in the trial of the court session in accordance with the norms of articles 228 - 232 Code of Civil Procedure of the Russian Federation.Often, the parties to the process are faced with the fact that the judge or secretary of its instructions (for various reasons: interest, bribery, negligence) introduces incomplete or unreliable information to the minutes of the court session, and the comments on the protocol rejects, despite the dictalation audio records applied by lawyers decodes.
What to do in this situation? At best, the comments themselves and a disc with an audio record will remain in the case, which, of course, in the regional court there will be no one will listen, or it will be a poor-quality - disk randomly caress ...
And we use the norms of the Criminal Code of the Russian Federation and the Code of Criminal Procedure.
Turn to the norms of the Criminal Code: Secretary's actions and judges formally fall under the composition of the crime specified in:1. Service forsson, that is making official, as well as a civil servant or employee local governmentswho is not an official in the official documents of obviously false information, as well as contributing to the specified documents that distort their actual content if these acts are made from mercenary or other personal interest (in the absence of signs of a crime provided for by the first part of Article 292.1 of this Code) - (as amended by the Federal Law of 08.04.2008 N 43-FZ) are punished with a fine of up to eighty thousand rubles or in the amount of wages or other income convicted for the period up to six months or mandatory work For up to four hundred eighty hours or correctional work for up to two years, or forced work for up to two years, or arrest for up to six months, or imprisonment for up to two years. (as amended by Federal Law of 07.12.2011 N 420-FZ)
2. The same acts entailed significant violation of rights and legitimate interests Citizens or organizations or protected by the law of the interests of society or the state - shall be punished with a fine in the amount of 40 thousand to five hundred thousand rubles or in the amount of wages or other income of convicts for the period from one year to three years, or forced work for up to four years with deprivation of the right to occupy Certain positions or to engage in certain activities for up to three years or without anything, or imprisonment for up to four years, with deprivation of the right to hold certain positions or to engage in certain activities for up to three years or without any. (as amended by Federal Law of 07.12.2011 N 420-FZ) (part of the second introduced Federal law from 08.04.2008 N 43-FZ)
Is it possible to put a judge and secretary in prison? This is not real!
Do not hurry with conclusions. We will bypass low blood.
Firstly, It is necessary to submit an application to the Regional Office Investigative Committee about bringing to criminal liability secretary court hearing. Secretary in contrast to the judge does not possess immunity From criminal prosecution.
Secondly, To the application to attach a disk or flash card with audio records of the court session. It is desirable that it be without interference and produce without compression. In general, it is necessary to use a high-quality professional or semi-professional voice recorder. It is also necessary to provide its investigator stencript Meetings.
Thirdly, In the sponsive part of the application, it is necessary to ask the investigator as part of the inspection:
1. Interview the secretary and judgment of the court hearing,
2. Celebrate the minutes of the court session and comments on it
3. Assign linguistic examination
, whose production entrust Russian experts federal Center forensic examination under the Ministry of Justice of the Russian Federation, put the following issues before experts:
Is the meaningful content of the testimony of witnesses A., B., B, reflected in the minutes of the court session from ____, the testimony directly stated by them during the court sessions and recorded on the audio and transcript? -
Is the meaningful content of the testimony of witnesses A., B., B, reflected in the decision ______________ court from _____, the testimony directly set forth during the court session from ___ and recorded on the audio driver and transcript?
Fourth, after the investigator of these actions, get acquainted with the test materials by means of photocopies - in your business will be weemer documents obtained by federal budget: Examination is expensive.
In-jammed If by this time the case was lost and the appellate instance left a decision in force, cassation and supervision did not help, must be submitted to district Court Application for the revision of the case on the newly discovered circumstances with the petition for recovery from SU SC Material Verification of KUSP No. __
In our case, the court's decision (and the statement of revision was considered another judge - the chairman did reasonably, distributing the case) was revised in a positive side.
During the trial, the minutes of the court session are conducted. This duty is assigned to the law on the secretary of the court session. The secretary is obliged to fully and properly state in the protocol of the action and decisions of the court, as well as the actions of the participants in the court proceedings that took place during the court hearing. Monitoring of this is assigned to the presiding law in a criminal case. The trociety of the court session should be signed by the secretary and the chairperson in the criminal case.
It should be noted that the minutes of the court session in accordance with the requirements of paragraph 5 of part of the second article 74 of the Code of Criminal Procedure of the Russian Federation is proof of a criminal case repeated consideration The criminal case, as well as when checking the legality, validity and justice of the sentence, made by the results of the trial of the superior courts. The lack of a trial of the court session on the current legislation is an unconditional basis for the cancellation of the sentence (Article 381 of the Code of Criminal Procedure). IN judicial practice The basis for the cancellation of the sentence is regarded and other cases of gross deviations from the rules of manufacture, signing the protocol, on the requirements for its content and form.
In this regard, special attention should be paid to the requirements of the law presented to this procedural act.
The law defines the methods of manufacturing the protocol. It can be written from hand, printed on a typewriter, made using a computer. In order to ensure completeness of the protocol, stenographing, as well as technical means (voice recorder, tape recorder, etc.).
The minutes of the court session essentially must fully reflect all that actually happens when judicial proceedings criminal case.
At the same time, the law clarifies what information should be necessarily indicated in the minutes of the court session.
The protocol indicates the place and date of the meeting, the time of its start and end. The protocol reflects what criminal case is considered. This requirement allows you to personify it: it is required to indicate in relation to whom (surname, name, patronymic of the defendant) and on charges of committing what crime (article, part, clause of the Criminal Code of the Russian Federation) was conducted by the authorities preliminary investigation criminal prosecution.
The protocol reflects information on the composition of the court and participating in the case of persons. It is generally accepted to indicate the official name of the court indicating the official position, the names and initials of judges, the secretary, the translator, the prosecutor, the defender, the defendant, the victim, the civil plaintiff, the civilian defendant, their representatives and other persons caused to the court: an expert, a specialist.
The identity data of the defendant includes the name, name, patronymic, day, month and year, place of birth, place of residence. If necessary, other information may be indicated: for military personnel - time call military service, military rank, position; When qualifying acts with a special subject - the information that the defendant is, and the like.
It is necessarily indicated by a preventive measure regarding the defendant at the time of consideration of the criminal case. Court's actions from the opening and before closing are reflected in the sequence, in which they took in reality.
The protocol records all statements, objections, petitions of persons participating in criminal cases. The protocol reflects the main content of the definitions and decisions made by the court without deleting in the advisory room. If these decisions were submitted with the removal of the Court to the meeting, the Protocol indicates the time of removal of the Court and return it to the courtroom, the fact of the proceedings of the procedural document and admissions to the materials of the criminal case.
Since to ensure the rights of participating in business, it is important to clarify each of them provided by law of rights, this should be reflected in the Protocol: to whom, who, what rights were explained.
The testimony of the interrogated persons must be set forth in the most detailed as possible, with the presentation of questions specified and the answers received, because the actual circumstances set out during the interrogation are evidence, on the basis of which the court decides the sentence. If inspections were conducted by the court, the documents were announced, protocols investigative actions - This is necessarily indicated in the protocol.
The law requires reflecting the circumstances that participants in criminal proceedings are asking for a protocol.
The fact of the sentence of the sentence, an explanation of the procedure for familiarization with the minutes of the court session and submit comments on it, the procedure and terms of the appeal of the sentence in cassation are also reflected in the minutes of the court session.
If there were any measures of impact on persons who violated the order at the court session, this is indicated in the Protocol.
The protocol requires that photographing, audio and video recording, a filmmaker, who, what time and what judicial actions is held during the court session. In this case, the relevant materials are attached to the protocol and are its component.
The law contains fairly clear and detailed requirements for the procedure for the manufacture of the minutes of the court session. The protocol is manufactured by the Secretary of the court session. In accordance with Article 245 of the Code of Criminal Procedure of the Russian Federation, the secretary is obliged to fully and correctly express in the protocol of the action and decisions of the court, as well as the actions of the court proceedings that took place during the court session. The control of this is carried out by the chairperson in a criminal case, using its notes produced by him during the court session. After making the protocol, this important procedural act is checked by the presiding and signed by it. The law provides for this short time - three days. In this regard, it is envisaged to manufacture the minutes of the court session and signing it by the secretary and the chairperson in parts, which does not exclude their obligations to sign the Protocol as a whole. In the event of the petition of the parties, they may be given the opportunity to familiarize themselves with the individual parts of the protocol as they are manufactured. This is provided for in order to provide more favorable conditions for participants in criminal proceedings in the realization of their right to a cassation appeal of the sentence. By multi-episodes, two and more court sessions are possible. In these cases, each of them makes its part of the trial of the court session, which is verified by the presiding party in the breaks of the court session, which makes it possible to make a trial of the court in the laws by law.
The court proceedings have the right to familiarize themselves with the text of the trial minutes after its manufacture. They represent the written petition to the presiding. The submission of such a petition by the parties entails the responsibility of the presiding party to ensure the opportunity to familiarize themselves with the protocol within five days from the date of its signing. From this, it is logical to the conclusion that the chair must notify the person who submitted a petition about when the Protocol is manufactured and signed.
In addition, the presiding party has the right to provide the opportunity to familiarize themselves with the Protocol and other participants in the trial (expert, witness, specialist, translator) on their petition, but only in the part concerning their testimony.
The deadline for the trial of the court session may be extended by the presiding situation in exceptional situations.
These include: the disease of the participant in criminal proceedings; Finding on a business trip; Employment in the consideration of another criminal case, etc.
In case of deliberately tightening the timing of familiarization with the protocol, the presidency has the right to determine a certain period for familiarization with the protocol, taking into account its volume, the applicant's physical capabilities, the real conditions in which the protocol is familiarized with the protocol, etc.
A copy of the protocol in case of a petition of some of the participants in the trial can be made by the court. However, this work is performed at the expense of the person who declared such a petition.
After familiarization with the trial, the parties have the right to submit their comments on it for three days. They are served by writing With the indication of the facts that must be corrected, refined or supplemented in the protocol, and, of course, must be signed by the applicant.
The law obliges the presiding party to consider the comments on the trial of the court session immediately. In case of any ambiguities to clarify the contents of the comments, the presiding party is entitled to call a person who submitted a remark.
These provisions of the law are a goal: to ensure the speed of proceedings in criminal case and more complete ensuring the rights of participants in criminal proceedings.
If the comments contain the facts that contribute to a more complete reflection in the minutes of the court session of events that really visited the chairmanship makes a decision to satisfy the applicant's petition. In case of disagreement with the comments received, he makes a decree on their deviation. It seems that in this situation the motives of such a decision should be shown. The presision issued by the presiding party, together with the received comments, is attached to the trial of the court session.
Protocol of the court session in accordance with Art. 74 and 83 Code of Code of Criminal Procedure is proof of a criminal case. When appealsing the court decision in the appellate and cassation procedure, the minutes of the court session makes it possible to assess how much the conclusions of the court of first instance correspond to the actual circumstances established in the trial. Without the minutes of the court session, check these circumstances, as well as the arguments of the persons who appealing the sentence is in fact impossible.
Taking into account the importance of this procedural document, the law contains mandatory requirement The fact that during the court session is a protocol, establishes the rules for its manufacture, determines its content. The lack of a lawsuit in criminal acting law recognizes the unconditional basis for cancellation of the sentence.
All other possible violations of the requirements of the norms of criminal procedure law are estimated, and in each particular case, the higher court decides how much they are essential. The criterion for such an assessment is to establish a fact: they influenced or could they influence the decision of a legitimate, reasonable and fair sentence as a result of the deviations from the requirements of the norms of criminal procedure legislation by deprivation or restriction of the rights of criminal proceedings guaranteed By non-compliance with the requirements of the law.
Thus, the verdict in a criminal case against the city and others was canceled due to the fact that, having heard the last word of all defendants, the court was not deleted to the adviser room, and announced a break for two days, after which the court announced the continuation of the court hearing And retired to the advisory room. The court of cassation indicated that the court of first instance was violated by the requirements of Art. 295 Code of Criminal Procedure, according to which the court, having heard the last word defendant, is removed in the adviser room for the resolution of the sentence, which announces the court hearing those present in the hall. Failure to comply with the requirements of the Break Proceed Law in this part indicates a violation of the procedure of legal proceedings, which could affect the decision by the court of a legitimate and reasonable sentence. The cassation definition on this case was recognized as a legitimate resolution of the Presidium of the Supreme Court of the Russian Federation of December 26, 2007 N 528-P07PR.
In judicial practice, a significant violation of the norms of the criminal procedure law, entailing cancellation of the sentence as illegal, is recognized when: the accused is not given the opportunity to familiarize themselves with all the materials of the criminal case; When satisfying the declared refusal of the defender, the defendant does not explain its rights in connection with independent protection; Replacing the defender chosen by the accused is made in violation installed order; conducted in the criminal case inquiry instead preliminary investigation; violated the congestion of the criminal case; The procedure for meeting the jury assessors in terms of time, after which they can begin formulating the answers set in a question list (by law at least three hours after removal in the advisory room), adopted by a majority vote as a result of voting; The judge is considered during a break for recreation announced during the resolution of the sentence in the deliberative room, other cases; The troubled of the court session does not reflect the content of the evidence of the defendant in the essence of the charges presented it; In drawing up the trial of the court session, carelessness was admitted, depriving a higher court opportunity to verify the legality, validity and justice of the sentence; The sentence was drawn up in the adviser room not in full, and in this connection only the introductory and resolution part of the sentence or only its operative part were proclaimed; No corrections regarding significant circumstances (for example, the qualifications of crime, species and punishment quantification, size civil law, types of correctional colony).
Illegal is also considered a sentence deciding by the court with the incorrect application of the criminal law (Art. 382 of the Code of Criminal Procedure).
First, the incorrect application of the law can be expressed in violation of the requirements of the general part of the Criminal Code. Errors in the application of the provisions of the general part are primarily associated with their improving them. This may refer to the concept of a crime, the conditions for criminal responsibility, the establishment of the form of guilt, the complicity in the crime, the circumstances that excludes the crime of the act.
Secondly, it may be due to the application of the wrong article and not those paragraphs and (or) part of the article of the special part of the Criminal Code of the Russian Federation, which were subject to use in the consideration of the criminal case. This is usually allowed when distinguishing similar to the design of the crime constructions (robbery - robbery, assignment - embezzlement, abuse of official authority - excess official authority etc.
Thirdly, the incorrect application of the criminal law may be associated with the imposition of punishment more strictly, which provides for the relevant article of the special part of the Criminal Code of the Russian Federation.
When a sentence should be taken into account that the court has to apply not only the norms of criminal procedure and criminal laws, but in some cases the norms of other branches of law. Taking this into account, it seems that Art. 297 of the Code of Criminal Procedure would have to suppose an indication of these circumstances, presenting it to a more complete amount: "The sentence is recognized as legitimate, reasonable and fair, if it is decided in accordance with the requirements of this Code and is based on the proper use of the criminal law, as well as the norms of other branches of law who were subject to use when considering a concrete criminal case. "
Conclusion
The essence of the sentence is to state the following on the basis of the evidence submitted and studied at the court hearing: whether a crime had a defendant, whether he made his defendant, whether he was punished for this crime. In the case of a positive response to these questions, the type and amount of punishment are established, in the event of a negative response, the defendant is recognized as innocent and the issue of providing the right to its rehabilitation is decided.
Faithful sentence has a number of signs: this is a procedural act; Decided only on behalf of the Russian Federation; can be ruled by the court first or appeals instance, sole or collegially; must comply with the requirements for its form, maintenance, grounds and procedure for the resolution and entry into force; acts as a final decision in a criminal case; is a single procedural act, which are permitted by issues of law and a criminal fact; Decided to approve the guilt of the defendant or its innocence; establishes a defendant punishment or frees it from that; is the only procedural document establishing the basis for the implementation of criminal liability; considered the procedural outcome of the indictment considered at the court session; Decided only on the basis of an oral and direct study of evidence at the court session; Allows the issue of satisfaction or refusal to satisfy the civil law, if it was declared in a criminal case; must comply with the requirements of legality, validity and justice; can be resolved only during the court session and only in the deliberate room; The regulation applies the norms of criminal, criminal procedure and other branches of law; endowed freedom of appeal before and after entry into force; can not be canceled by the same or equivalent court of first instance; has legitimate strength, properties of obligatory, exclusiveness, invariabilities and preventing; considered true until it is canceled by the higher judicial instance in the manner prescribed; It has a socio-legal and procedural meaning.
The above indicates a special sense of sentence among all other acts that are accepted in criminal proceedings.
The law refers to the necessary properties of the sentence: legality, validity and justice. It should be noted that the listed is only the properties of the sentence, but also to the requirements for it. The legislator should be supplemented by Art. 5 CPC definitions of legality, validity and justice.
The criminal procedural law contains an exhaustive list of grounds for the decision excited sentence. The latter is a consequence of mistakes made in the pre-trial stage of criminal proceedings and testifies to the poor-quality production of a prior investigation in a criminal case, entagreeing a violation of human rights and freedoms. Eliminate error data is called upon by the court by decree a legitimate, reasonable and fair sentence.
The conviction can only be resolved in the presence of a totality of reliable evidence that studied in the trial, confirming the event of a crime, signs of the crime in this event, the guilt of the defendant. The conviction, based exclusively on assumptions, has no legal force.
The procedure for the resolution of the sentence is designed to ensure the right permission of criminal cases, qualitative justice, and therefore protect the rights of victims, prevent unusual accusations of innocent. Violation of the established procedure for sentencing entails his cancellation.
The decision of the sentence includes the following main stages: a meeting of judges, in the course of which all issues subject to permission to be permitted on the case are discussed (except for the decision of the sentence of the judges alone); making decisions on the issues discussed; Drawing up a sentence, its signing and proclamation.
According to Art. 297 Code of Criminal Procedure The sentence is recognized as legitimate, reasonable and fair, if he decides in accordance with the requirements of the Code of Criminal Procedure of the Russian Federation and is based on the proper application of the criminal law. The fulfillment of the entire combination of the requirements specified in the law characterizes it as a reality sentence. When a sentence should be taken into account that the court has to apply not only the norms of criminal procedure and criminal laws, but in some cases the norms of other branches of law. Taking this into account, it seems that Art. 297 of the Code of Criminal Procedure would have to suppose an indication of these circumstances, presenting it to a more complete amount: "The sentence is recognized as legitimate, reasonable and fair, if it is decided in accordance with the requirements of this Code and is based on the proper use of the criminal law, as well as the norms of other branches of law who were subject to use when considering a concrete criminal case. "
The Code of Criminal Procedure contains a specific list of requirements for the compilation of the introductory, descriptive-motivative and operative parts of the acquittal sentence, each of which is its mandatory and integral component. The absence of any of them makes sentence as an act of justice is insignificant. The coherence of all parts of the sentence is one of the conditions for its legality. Any inconsistency of the operative part of the sentence of the introductory and descriptive-motivative makes the sentence incorrect and leads to its cancellation.
Errors made by sentencing (violation of the criminal procedure law) indicate the illegality of the latter. The law allocates two groups of possible violations of the requirements of the Criminal Procedure Law: Violations, which in any case entail cancellation of the sentence as illegal, and violations that are evaluating and in each specific case should be carefully investigated by a higher court and are recognized by this court substantially or insignificant.
The verdict declared the court with the incorrect application of the Criminal Law (Article 382 of the Code of Criminal Procedure of the Russian Federation), and should also be considered illegal verdict given by the court with the incorrect application of the norms of other branches of law.
On some ways to fix evidence
How to fix the course of the trial?
Soy civil affairs a question arises about the improper content of the trial report. Usually, at least in my practice, it includes circumstances that can be confirmed or refuted by writing. However, there are cases when significant importance is based on a trial.
For example, the other day I heard a story about how at the court hearing the judge dictated the defendant for writing the text of the application for the application for the statement of the limitation period.
It took me once civil business Contact the court session protocol. Of course, that certain words of the judge disappeared from the paper version of the protocol.
1) Always lead a court audio record From the moment of getting into the office / hall of the court session until the moment of exiting it.
There are 2 behaviors:
Changing audio records with the data of the recording device;
Audio recording without notifying the court and persons participating in the case.
In accordance with the Code of Civil Procedure of the Russian Federation and the Decree of the Plenum of the Russian Armed Forces of the Russian Federation on the publicity notice of the production of audio recordings is not required. Colleagues who declare the court on conducting audio recordings to have the fact that they dwell with the audio record in the future. However, in my opinion, because of the emerging practice, such a notice is not a guarantee of legitimation with a person who is involved in the case, or his representative of the auditory of a trial.
Therefore, I do not see a significant difference.
2) After the court session in the office pail made audio in folder with client case.
If it is necessary, it can be found without much difficulty.
I use the following file name: Date Case-Case Customer (FULL NAME / NAME).
3) If there were suspicions that important words spoken by the court / persons participating in the case / experts, etc., will not find their reflection in the minutes of the court session, then start bringing comments on the minutes of the court session.
4) Apply an application for acquaintance with the trial and ask the court to issue this protocol.
Yes, the imperfection of judicial behavior will most likely lead to the fact that the term for the application of comments will be missed, but it still stands.
After receiving the trial protocol on the same day send comments on the minutes of the court session.
Naturally, you must already have a corresponding procedural document.
6) I would recommend to attach the audio recording protocol to the audio recording protocol, which actually had fact / information / words fixed.
What is the protocol?
It is drawn up in accordance with the Federal Law "On advocacy and advocacy in the Russian Federation "and the Code of Civil Procedure of the Russian Federation, giving a lawyer the right to collect evidence.
The protocol contains the following data:
Based on what rules the protocol is drawn up;
Who made a protocol;
In this connection, the protocol is drawn up;
Description of the circumstances of the production of audio recordings;
Description of device I. softwarewith the help of which the audio record occurred;
How to copy this information from the audio recorder to the computer and then the information carrier (CD);
Computer Description I. peripheral devicesWith which the audio file has occurred;
Name of the audio file;
Detailed transcript (decoding).
To the protocol as an application I enclose the CDS audio file entry of the court session.
Manipulation with CD:
I write down the audio file on the CD;
Marker on the CDD made an inscription with the name of the file;
Insert the CDV envelope and seal it;
I last envelope with CD to protocol.
Further gives up, of course at the discretion of the court. However, in my opinion, such a consolidation of evidence is more significant and appropriate than the provision of audio recordings from a voice recorder / phone with a request to make changes to the minutes of the court session.