1. Legal representatives of a minor suspect, the accused are allowed to participate in criminal cases on the basis of a decision of the investigator, the investigator since the first interrogation of a minor as a suspect or accused. When admitting to participation in a criminal case, they explain the rights provided for by part of the second article.
2. The legal representative is entitled:
1) know what is suspected or accused of a minor;
2) attend the charges;
3) to participate in the interrogation of a minor suspect, accused, as well as with the permission of the investigator - in other investigative actions produced with his participation and participation of the defender;
4) Get acquainted with the protocols of the investigative actions in which he participated, and make written remarks on the correctness and completeness of the records made in them;
5) declare petitions and taps, bring complaints against actions (inaction) and solutions of the investigator, investigator, prosecutor;
6) to submit evidence;
7) at the end preliminary investigation Get acquainted with all the materials of the criminal case, write out of it any information and in any volume.
3. The investigator, the investigator has the right at the end of the preliminary investigation to make a resolution on the unavoidance of a minor accused to familiarize the materials of the criminal case that may have a negative impact on it. Acquaintance with these materials of the legal representative of a minor accused is mandatory.
4. A legal representative can be removed from participation in a criminal case if there is reason to believe that its actions are damaged to the interests of a minor suspect, accused. The investigator is about this, the investigator is made by a resolution. In this case, another legal representative of a minor suspect accused is allowed to participate in a criminal case.
Comment to Art. 426 Code of Criminal Procedure
1. Judging by the list procedural lawcontained in the commented article, the legal representative of a minor suspect and the accused - an independent member of the criminal proceedings on the protection of protection, but not bound to severely with the position of the suspect, accused, nor with the position of the defender acting in the legitimate interest of the ward minor face So, as he understands these interests. The confirmation of this thesis can be the position of the third commentated article, according to which some materials are completed investigative production may not be presented to a minor accused, but in obligatory It is imposed on his legal representative, which, thus, on the line of protection turns out to be ahead of the person they represented, whose fate is solved in the criminal process.
2. Failure to comply with the requirements of the law on compulsory participation in pre-trial production In the criminal case of a legal representative of a minor accused, the suspect leads to the recognition of unacceptable evidence obtained in the production of investigative actions produced with the participation of the accused, but in the absence of its legal representative. The above applies primarily to the first interrogation of a suspect, who may have a decisive importance for the entire subsequent investigation (Bulletin Supreme Court RF. 2005. N 7. P. 16, 17).
3. However, the investigation body is granted the right to remove the legal representative of a minor, more precisely, to replace it with others if this person It acts to the detriment of the interests of the submitted person, for example, does not have any assistance in the criminal process, instructing a minor, pushes to protect illegal ways, etc. The decision of the investigator on the removal of the legal representative from participation in the case is chosen in the form of a motivated resolution, which should be based on the materials of the criminal case.
4. If the person who committed a crime under the age of 18, by the time of consideration of the case in court reaches the age of majority, the functions of the legal representative are terminated. However, these functions may be continued if the court decides on the application of article 96 of the Criminal Code, according to which in exceptional cases, taking into account the nature perfect crime and the person of the defendant, the rules on the characteristics criminal responsibility Minors can be distributed on persons aged 18 to 20 years (paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 1, 2011 N 1).
Legal representatives of a minor suspect and accused are parents, adoptive parents, guardians or trustees of a minor suspect and accused, representatives of institutions or organizations, on whose care is a minor suspect or accused, guardianship bodies and guardianship (clause 12 of Article 5 of the Code of Criminal Procedure.
In the case, the legal representative, as well as the defender, represents not its own interests, and the interests of the suspect or accused them, although it is an independent figure in the process. At the same time, the legal representative is not associated with the position of the represented, as well as his defenders. Representatives of the accused and suspect on a preliminary investigation can only be legal representatives.
Legal representation aims to ensure the protection of the rights and interests of a minor accused and the suspect. The legislator comes from the fact that minors due to its age and psychological characteristics are not able to fully independently implement and protect their rights and legitimate interests.
Legal representatives are involved in criminal proceedings of persons who have not reached the crime of 18 years (Article 420 of the Code of Criminal Procedure). Participation in the laws of the legal representative, the legislator binds not the fact of the perpetary person who committed a crime, but with the fact of the person of the crime under the age of 18. In this regard, the achievement of the face of 18 years of age during the production of a criminal case does not mean the termination of further participation in its legal representative. The legal representative of the suspect and the accused in this case continues its participation in the case.
The law indicates that attracting to participate in the case of legal representatives of a minor suspect and the accused is obligatory (Art. 48 of the Code of Criminal Procedure). However, the legal representative can be suspended from participation in the case by the court, the investigator, in the event that there is reason to believe that its actions are damaged by the interests of a minor suspect, accused. In this case, another legal representative of a minor suspect, the accused (part 4 of Article 426 and Part 2 of Article 428 of the Code of Criminal Procedure, is allowed to participate in the case.
The procedural act, admitting participation in the legal representative of a minor suspect, the accused is the decision of the investigator, the investigator, and the moment of entry into the case is the first interrogation of a minor as a suspect or the accused (part 1 of article 426 of the Code of Criminal Procedure.
Legal representatives of a minor suspect, the accused enjoy in the process of certain rights and act along with those represented by them. The fundamental rights of the legal representative of the minor suspect, the accused refer (part 2 of Art. 426 and part 1 of Art. 428 Code of Criminal Procedure):
- - the right to know what a minor suspected or accuses; attend the charges;
- - to participate in the interrogation of a minor suspect and the accused, as well as with the permission of the investigator - in other investigative actions produced with his participation and participation of the defender;
- - Get acquainted with the protocols of the investigative actions in which he participated, and make written comments on the correctness and completeness of the records made in them;
- - to declare petitions and taps, bring complaints against actions (inaction) and decisions of the investigator, investigator, prosecutor, court;
- - to submit evidence;
- - at the end of the preliminary investigation, get acquainted with all the materials of the criminal case, to write out any information from it and in any amount;
- - participate in the debate of the parties; Participate at a meeting of the courts of the first, appellate, cassation and supervisory instance.
Provided by a legal representative of a minor suspect and accused procedural rights provide its procedural activity by providing this participant The ability to have access to procedural information, to participate in proving, to otherwise protect the rights and interests of the persons they represent.
The obligations of the legal representative of a minor suspect and the accused by law are clearly not defined. However, it is obvious that the legal representative not entitled act against the interests of the person represented by him, he must be on the challenges of the investigator, the investigator, the prosecutor, to fulfill the requirements of the investigator on participation in investigative actions, to comply with court session etc. In addition, if at the end of the preliminary investigation, the investigator, the investigator make a decree on the uneximenstation of a minor accused to familiarize the materials of the criminal case, which may have a negative impact on him, the legal representative is obliged to familiarize themselves with them (h. 3 of Art. 426 of the Code of Criminal Procedure.
The legal representative of a minor suspect and the accused has the right of testifying immunity and in accordance with Art. 51 of the Constitution of the Russian Federation cannot be forced to testify against the person represented by him.
A legal representative can be attracted to participation in the case also as a civil plaintiff, and in court - allowed as a defender (along with a lawyer, and in production from the World Judge and instead of a lawyer) by the definition or decree of the court, if the accused (h . 2 Art. 49 CPC). In this case, the legal representative will use all the rights and fulfill the responsibilities of the defender and the civilian defendant, as well as carry stipulated by law Responsibility of these participants in the process (Article 53 and 54 of the Code of Criminal Procedure).
In accordance with paragraph 12 of Art. 5 COPC Legal representatives of a minor accused (suspected) are its parents, adoptive parents, guardians or trustees, representatives of institutions or organizations, on whose care is a minor accused (victim), as well as guardianship and guardianship authorities. Scroll specified persons It is an exhaustive and expansion interpretation is not subject to.
Legal representatives are necessarily attracted to participation in all criminal cases of crimes committed by minors, in the manner prescribed by Art. 426 and 428 CPC. If at the time of the initiation of the criminal case, the person who committed a crime under the age of 18 reached the age of majority, then the functions of the legal representative are terminated. Based on Art. 54 Code of Criminal Procedure The legal representative can be simultaneously a civil defendant and enjoy all its rights.
The legal representative of a minor accused (suspected) is allowed on the basis of the Resolution of the Prosecutor, the investigator, the investigator from the moment of the first interrogation of a minor as a suspect or accused of committing a crime (Appendix 113 to Art. 476 of the Code of Criminal Procedure. When admitted to participate in a criminal case, the legal representative is explained the following rights: 1) to know what a minor is suspected or accused; 2) attend the charges; 3) to participate in the interrogation of a minor accused (suspected), as well as with the permission of the investigator - in other investigative actions produced with his participation and participation of the defender; 4) Get acquainted with the protocols of the investigative actions in which he participated, and make written remarks on the correctness and completeness of the records made in them; 5) to declare petitions and discharges, bring complaints against actions (inaction) and decisions of the investigator, investigator, prosecutor, court; 6) to submit evidence; 7) at the end of the investigation, get acquainted with all the materials of the criminal case, write out of it any information and in any amount; 8) participate in the debate of the parties during the court hearing; 9) participate in a meeting of the courts of appeal, cassation and supervisory instances.
A legal representative can be removed from participation in a criminal case if there is reason to believe that its actions are damaged to the interests of a minor accused (suspect). This is a prosecutor, the investigator, the investigator make a decree, and the court is a definition. In this case, another legal representative of a minor accused (suspected) is allowed to participate in criminal case.
If a criminal case has been collected, the content of which can have a negative impact on a minor accused, the prosecutor, the investigator, the investigator has the right at the end preliminary investigation Decide and make a motivated decision on the unexpected response to the minor accused. However, familiarization with such materials of the legal representative of the underage accused is mandatory.
The failure to appear in a timely notified legal representative of a minor defendant in the courtroom does not suspend the consideration of the criminal case, if the court does not find its participation necessary.
If a legal representative of a minor defendant is admitted to participate in a criminal case as a defender or a civilian defendant, it has the right and is responsible provided for by Art. 53 and 54 CPC.
After receiving the procedural status of the legal representative, the last, as well as every participant in the criminal process, is endowed with rights and obligations. Analyzing the provisions of Article 426 of the Code of Criminal Procedure, it follows that the legal representative at the preliminary investigation stage, it is entitled:
1. To know what a minor suspected or accuses.
2. Attend the charge.
3. Participate in the interrogation of a minor suspected accused, as well as with the permission of the investigator in other investigative actions produced with his participation and the participation of the defender.
4. Get acquainted with the protocols of the investigative actions in which he participated, and make written comments on the correctness and completeness of the records made in them.
5. Finance the petitions and taps, bring complaints against actions (inaction) and the decision of the investigator, the investigator, the prosecutor.
6. Represent evidence.
7. At the end of the preliminary investigation, get acquainted with all the materials of the criminal case, to write out from it any information and in any amount.
At court session The legal representative of the minor defendant has the right (Art. 428 of the Code of Criminal Procedure):
1. Declare petitions and taps.
2. Given the testimony.
3. Represent evidence.
4. Participate in the debate of the parties.
5. Apply complaints to actions (inaction) and court decision.
6. Participate at a meeting of the courts of appeal, cassation and supervisory instances.
Without pretending to be carefully analyzing all the rights, which the legal representative of a minor suspect, accused, focus on and analyze the most controversial, in our opinion.
Thus, the right of a legal representative of a minor suspect, the accused to know what is suspected or is accused of its imagined, conjugately with the right of the last know what he suspected and receive a copy of the ruling About the initiation against him a criminal case, or a copy of the detention protocol, or a copy of the decision to apply the preventive measure to it (paragraph. 4 of article 4 of the Code of Criminal Procedure), and also to know what is accused of its represented.
Of course, that receiving copies of these documents, a minor suspect, the accused and his legal representative, thus notify the adoption of an important procedural solution, has the opportunity to familiarize themselves with the foundations of the decision taken, as well as appeal. But a minor suspect, the accused is unlikely to understand the "dry legal terminology" set out in the procedural documents. Therefore, the legislator "duplicated" is the right, providing for him and at the legal representative.
Upon presentation of a minor accusation by the investigator, or the investigator of the indictment of the legal representative, the right to know the essence of the accusation of his represented.
The decision to attract a person as an accused is reflected in the commission of which the crime is accused of a minor, which rule of criminal law provides for responsibility for this crime. This resolution is presented in the period no later than three days from the date of its submission. At the same time, his essence, as well as the rights of a minor accused, is explained to the minor accused. A copy of this decision is subject to the mandatory presentation of the minor accused and his defender (Art. 172 of the Code of Criminal Procedure).
After the prosecution should immediately follow the interrogation of a minor accused. However, the legislator does not give the concept and does not establish the temporary framework of "immediateness", "immediateness". According to the so-called. Moskalkova, the rule about the immediate interrogation of the accused means that there should be no breakdown in time between the presentation of the charge and the first interrogation of the accused. A somewhat break is possible after the charges, if this is asking for a defendant with a view to more precisely to recall some circumstances, determine the position regarding the charge or individual moments, while he should not leave the interrogation site. Moskalkova T.N. Consideration. Chapter 23. Attraction as the accused. Scientific and practical commentary on the Criminal Procedure Code Russian Federation / Under total. ed. V.M. Lebedeva; Scientific ed. V.P. GOD. - 2nd ed., Pererab. and add. - M.: Spark, 2004. p.356-357.
Interrogation of a minor accused is carried out taking into account the features provided for by Art. 425, 426 Code of Criminal Procedure. Special procedural rules for interrogation of a minor accused (however, as a suspect), according to S.P. Scherbi, are designed:
Ensure the protection of rights and legitimate interests procedurally incapable persons;
Ensure reliable indications about the circumstances to be proof;
Create comfortable conditions for all persons participating in the production of interrogation;
Fight minor illegal action officialsProceeding. Scherb S.P.. Criminal proceedings for minors. Chapter 50. Commentary on the Criminal Procedure Code of the Russian Federation / under total. ed. V.V. Mozakova. - 2nd ed., Pererab. and add. - M.: Exam XXI, 2002. P. 582.
One of these features is to participate in the interrogation of a minor accused of his legal representative, with the defender, teacher or psychologist in certain cases, on the basis of Art. 425 Code of Criminal Procedure, should be involved in a mandatory basis, then the legal representative of a minor suspect, the accused only has the right to participate (Art. 426 of the Code of Criminal Procedure). However, the legislator does not enshrine a particular person who can solve this issue. We believe that the solution of the issue of participation in this investigative action of the specified participant in criminal proceedings is fully on the investigator, since it organizes the production of the interrogation of a minor accused. We think that the investigator should find out from a minor interrogated desire to participate in the interrogation of his legal representative. This is associated with the fact that the investigator needs to establish psychological contact with the minors accused, and if he is shy in the presence of his legal representative to testify, then no psychological contact can be speech. Not properly organized interrogation not only does not carry the necessary educational burden, but in some cases leads to severe experiences Kalugina N.G.. Decree. op. S.54 ..
In contrast to the investigator, the investigator does not charge a minor accused (except for the cases provided for by Art. 224 of the Code of Criminal Procedure), and, making an indictment, makes it to familiarize him to the minor accused and his defender.
However, in this case, the legislator does not provide the opportunity to a minor accused to realize his right - object to the charge.
From the rights of the legal representative listed above, it is clear that at the court hearing it is endowed with such a right as to testify. But the legislator does not negotiate anything about this regard, relating to the preliminary investigation stage. Consequently, the question arises, is it endowed with such a right, at this stage, as well as at the stage of the trial? In general, is it necessary to interrogate the legal representative of a minor suspect, accused, if so, what about which and what?
Noting the need for strict compliance with the law when considering cases of crimes of minors in terms of ensuring the participation of legal representatives, the Plenum of the Supreme Court of the Russian Federation in the Regulation of February 14, 2000 No. 7 "On judicial practice For minor crimes, "explained that in connection with the issues of questioning about the possibility of interrogation as witnesses, when considering criminal crimes on the crimes of their parents participating as legitimate representatives, these persons may be interrogated as witnesses. Resolution of the Plenum of the Supreme Court of the Russian Federation of February 14, 2000 "On Judicial Practice on Minor Crime Affairs // Russian newspaper. 2000. March 14. Recognizing such interrogation is necessary, the court must make the appropriate definition and clarify the state of the provision of Art. 51 of the Constitution of the Russian Federation. At the same time, in the case of interrogation of the legal representative, it is warned of criminal liability only for the gift of obviously false testimony.
In criminal procedure science, the opinion was repeatedly expressed that legal representatives must be guaranteed the right to testify and under the preliminary investigationIf they consider it necessary in the interests of the protection of a minor. But the initiative in this case should come from the legal representatives themselves, and not from officials leading the process. Hetsmanova I.V. Decree. dis. Pp. 133-134; Snegiva N.I. Decree. dis. P.130.
In part 1 tbsp. 421 Code of Criminal Code of RF, a provision obliging the investigator, the investigator in the criminal proceedings, along with circumstances to be processed under any criminal case (Article 73 of the Code of Criminal Procedure), to establish: the exact age of a minor (number, month and year of birth); living conditions and education, mental level and other personality features; Impact on a minor senior persons.
On the one hand, to establish the above circumstances, interrogation of a legal representative of a minor suspect, accused of simply necessary and seen extremely important, because Who else, as not one of the parents (or close relatives, trustees, adoptive parents, adoptive parents, adoptive parents) can give the most objective, relevant reality information about the personality of a minor. But on the other hand, the question arises, as whom and what should I interrogate a legal representative?
Part 1 of Article.56 of the Code of Criminal Procedure establishes the provision that the Witness is any person who can testify about the circumstances to be proof caused by the agenda for the testimony. It may be questioned about any circumstances, including the personality of the accused (Art. 73, Part 2 of Art. 79 of the Code of Criminal Procedure. Thus, the legal representative is interrogated only as a witness, while fulfilling the function of a witness.
The study of the practice indicates that in the protocols of interrogations of legal representatives, often larger place is reserved by circumstances that are increasing a minor in a crime, and not to clarify the living and education conditions, mental levels and other features of his personality.
According to the results of the criminal cases we studied, it was established that in 108 cases out of 115, and this is 93.9% of the total number of criminal cases, legal representatives were questioned as a witness. Of these, only 15% in the interrogation were limited to the characterization of their personality represented, the remaining 85% were questioned and the circumstances of the crime committed by minors known. In the remaining 7 cases, legal representatives were not interrogated at all.
The analysis of the norms of the Code of Criminal Procedure allows us to conclude that the legal representative is intended to protect the rights and legitimate interests of the minor suspect submitted to them, carrying out the function of protection and, they must protect all the interests submitted, which are presented to them legitimate from the position of one-sided acquittal approach to evaluation. circumstances in the case. This manifests the similarity procedural status Legal Representative with the defender. However, a combination of a legitimate representative of several functions - the protection and function of the witness, indicates the ambiguity of the legal status of the criminal procedure.
At first glance, there are no contradictions with the current legislation in the problem indicated by us, because on the basis of Part 2 of Art. 51 of the Constitution of the Russian Federation, the legal representative, may refuse to testify regarding himself, close relatives and spouses. Moreover, the provisions of Art. 11 Code of Criminal Procedure, obliges a person in the production of which is a criminal case against a minor, clarify these rights to the legal representative, and also indicate that the information received from it can be used as evidence, even if he will refuse them from them.
However, this fact suggests that the duty imposed on officials of criminal proceedings, in the form in which it is currently enshrined in legislation, is a purely declarative character. Greenenko A.V.. Procedural and tactical features of the defender on the preliminary investigation // Lawyer practice. 2004. №1. P.21-22 ..
This is confirmed by our research, during which 39% of the surveyed legal representatives indicated that the investigator, the investigator did not clarify them their rights, but only indicated where to subscribe to familiarization with rights, 46% of respondents noted that they did not understand the essence of their Right, therefore, in the first and in the second case, legal representatives responded to all the issues delivered by the investigator, the investigator. Only 15% of respondents noted that the essence of rights understood and took advantage of them, i.e. They gave testimony, but only characterizing the identity of their child. Thus, the investigator, the investigator, violating the prescriptions of criminal procedural legislation, produces evidence that sometimes is exposed to a minor suspect, accused of a committed crime. Violations made by the investigator, the investigator is difficult to prove and justify in court, since the signature of the legitimate representative that his rights explained to him, is in the protocol, but did he understand them or not - the question else: was able to actually use his right And do not testify regarding your child or not. Judging by the results of the survey, such a vicious practice is "at any cost" to obtain evidence that is overwhelmed by a minor is a fairly common phenomenon in the preliminary investigation bodies.
From the materials of the criminal case we studied, initiated by January 15, 2006 by the investigator with the OM-4 of the Internal Affairs Directorate of the city of Belgorod, it follows that minor P. 14.01.2006, about 22 hours 30 m. Being able alcoholic intoxicationWhile in the cafe-bar, openly kidnapped at a minor M. Cell phone, worth 10,000 rubles. After that with the abducted from the place of the commission crime disappeared. According to this criminal case, the mother of a minor of minor P. was recognized as a legal representative, which was questioned during the prior investigation as a witness. During the interrogation, she explained that her son 14.01.2006 came home very late, approximately 23h - 23.4.. 30m., Was in a state of alcohol intoxication. She saw the son of a cell phone, about which he explained that someone at the time he gave them to use. In indictment, these indications were included in the proof by the accusation. Archive Sverdlovsk Court Belgorod.
Of course, by proof, the testimony of the legal representative, which, besides the suspect, the accused is extremely important and needed. But it is necessary to take into account the moral aspect of this action. Will the child forgive the behavior of his parent, can it be able to justify him, taking into account the "civil debt", because of which gave such indications? We think that it is unlikely.
Our position on this problem is concrete and consistent. We believe that in the Code it is necessary to establish a norm that could regulate procedural order and the limits of interrogation of the legal representative of a minor suspect, accused, since the awareness of the legal representative about the circumstances of the circumstances to affect the life and the activities of the person represented by him, inevitably puts the legal representative to the witness.
The regulatory consolidation of such a source of evidence as the "Indications of the Legal Representative" would preserve this participant the possibility of implementing only one function - the protection of the rights and legitimate interests of a minor suspect, accused.
If the person who participates in the case as a legal representative still wants to give indications that are exposed to its represented, then it is necessary to interrogate him as a witness, and to resolve the issue of replacing the legal representative, since his interests will contradict the interests of a minor suspect, the accused, so As evidence, aggravating the position of a minor accused (suspected) may be associated with moral suffering from the last. Since execution by legal representatives of their duties for the representation of the interests of their wards in most cases is associated with the execution of moral debt, moral obligations against those represented persons.
An approach to this problem OV is interesting. Kachalova, which considers it appropriate to give the testivan immunity of the legal representative of a minor suspect, accused Kachalova O.V.Decree. dis. Pp. 74 .. We believe that the opinion of this author is justified by an increased guarantee of the implementation of the right provided for by Art. 51 of the Constitution of the Russian Federation, "defending" from the possible illegal behavior of a person who produces a preliminary investigation into minors crime cases.
In legal literature, some scientists consider witness immunity as "evidentiary ban" Bandurin S.G., Gromov N.A.. Decree. op. P.19 .. In this regard, we believe that the ban to interrogate the legal representative of a minor suspect, accused of the circumstances of the crime of the crime, would contribute to the increased protection of the rights and legitimate interests of a minor.
However, in practice such situations may be developed when a legal representative may and want to give indications that justify or soften the responsibility of a minor suspect, accused, in this case, there is no reason to prevent this.
Among the rights of the legal representative of a minor suspect, accused, enshrined in Art. 426 of the Code of Criminal Procedure, it is envisaged to submit evidence: by testing the testimony, as well as the presentation of any documents, subjects.
The right of a legal representative of a minor suspect, accused to declare petitions and taps, to bring complaints (inaction) and the decision of the court, the prosecutor, the investigator and the investigator give rise to the obligation of officials, in the production of which is a criminal case (respectively, the investigator, the investigator, the prosecutor, the court), Consider them in accordance with the procedure established by law (Article 123 of the Code of Criminal Procedure).
The legal representative of a minor suspect, the accused, has the right to familiarize himself with the protocols of the investigative actions made with his participation either by his petition and apply comments on them. At the same time, other participants in the investigative action (defender, teacher or psychologist) establish the correctness of the investigative protocol, which is certified by their signature.
I would like to draw attention to another right of a legal representative of a minor suspect, accused, enshrined in part 3 of Art. 426, Art. 215-217 Code of Criminal Procedure.
Without putting itself the task to highlight all sides of the process of familiarizing the minor accused, his legal representative and advocate lawyer with the materials of the criminal case, let us dwell on only some aspects.
The investigator, recognizing that all investigative actions in the criminal case were produced, and the evidence collected enough to compile a conviction, notify the accused, his defender and explains him the right provided for Art. 217 Code of Criminal Procedure for familiarization with all the materials of the criminal case, both personally and with the help of a defender, legal representative.
Our analysis of investigative practitioners convincingly suggests that investigators, without thinking about ensuring the rights and legitimate interests of a minor accused, sometimes produce this procedural effect separately with the defender. So, in 40% of cases, the facts occur when a lawyer defender at the end of the preliminary investigation acquainted with the criminal case materials separately with a minor accused.
At the same time, the overwhelming majority of juvenile convicts projected by us (73.7%) indicated this fact, explaining that the essence of many procedural documents They were not clear. And one of the respondents in the questionnaire wrote "In addition to moms there was no one."
The maximum that the minor accused and his legal representative will be able to perform a mechanical reading (or view) of procedural documents, but to evaluate them from the position of legality, no reasonableness. In this case, no qualified legal assistance provided by the defender cannot be speech.
The legislator, the protection of the rights and legitimate interests of the minor accused, consolidated in part 3 of Art. 426 Code of Criminal Procedure The provision that the prosecutor, the investigator, the investigator at the end of the preliminary investigation, is entitled to make a decision on the unexploding to familiarize those of the criminal case, which may have a negative impact on the accused, which have not reached the age of 18 years. Familiarization with these materials of the legal representative of a minor accused, defender, is mandatory.
but this concept Does not satisfy some procedural scientists who believe that this approach of the legislator limits the right of a minor accused to obtain comprehensive information that confirms or refutes the accusation nominated against him. Snegiva N.I. Decree. dis. P. 83.
Allowing it to disagree with this opinion, we believe that this novel of the Code of Criminal Procedure of the Russian Federation, aimed at protecting the legitimate interests and rights of a minor accused, is quite humane and legal.
The minor defendant, his legal representative, as well as the defender is entitled to familiarize themselves with all the materials of the criminal case (except in cases provided for by Part 3 of Art. 426 of the Code of Criminal Procedure), in a liner and numbered form, while writing out from it any information and in any volume, shoot copies from documents, including with the help of technical means. When familiarizing, real evidence can be placed, playback of video and audio recordings.
According to Part 3 of Art. 217 Code of Criminal Procedure These participants in the criminal procedure cannot be limited to the time required by them to familiarize themselves with the materials of the criminal case.
At the end of the familiarization, according to Part 4 of Art. 217, a minor accused, his legal representative and defender with the criminal case materials, the investigator finds out what properties they have or other statements, namely: what are the witnesses, experts, experts are subject to a call to the court session to interrogate and confirm the position of the protection parties.
After that, the investigator explains to the accused his right to petition:
1) on the consideration of the criminal case by the court with the participation of jury meetings - in cases provided for by paragraph 1 of Part 3 of Art. 31 Code of Criminal Procedure. At the same time, the investigator clarifies the peculiarities of the criminal case by this court, the rights of the accused judicial proceedings and the order of appeal judicial decision. If one or more defendants refuse the court with the participation of jury, the investigator solves the issue of the allocation of criminal cases against these accused separate production. If it is impossible to allocate a criminal case into a separate production, a criminal case is generally considered by the court with the participation of jurors;
2) on application of course trial - in cases provided for in Article 314 of this Code;
3) on holding preliminary hearings - In cases provided for by Art. 229 Code of Criminal Procedure;
4) The consideration of the case of the judge is solely or collegially.
On the presentation of a minor accused, his legal representative and defender to familiarize all the materials of the case the investigator in accordance with Art. 218 Code of Criminal Procedure is a protocol, following how general requirementsspecified in Art. 166 and 167 CPC and the requirements enshrined in Article 218 of the Code of Criminal Procedure and related to this Protocol.
If in the process of familiarization with the materials of the case, a minor accused, his legal representative or defender stated the petition for the addition of the investigation, then they are considered by the rules established in Art. 219 Code of Criminal Procedure.
In the future, the investigator acts depending on whether the stated petitions are subject to satisfaction or are not subject to. If this issue is permitted positively, the investigator produces additional investigative actions and, guided by Part 2 of Art. 219 of the Code of Criminal Procedure, again introduces these participants in criminal proceedings with the materials of the criminal case in compliance with the requirements of Art. 216-217 CPC.
If the investigator in accordance with Part 3 of Article 229 of the Code of Code refuses to satisfy the stated petition, he makes a motivated resolution, which brings to the applicant's attention (at the same time, it explains the procedure for appealing this resolution), after which it becomes drawnging by the indictment . Compulsory this documentThe investigator sends a criminal case with him to the prosecutor for approval.
In accordance with the tasks of this tutorial It is necessary to dwell on some provisions regulating the participation of a legal representative of a minor defendant at the court session.
The challenge of the legal representative of the minor defendant at the hearing is carried out in cases where parents were not interrogated at all during the preliminary investigation or when there are no information about the second of parents.
Legal representatives of a minor, including the parents of the defendant, usually better than others know a circle of dating a teenager, an influence that friends have. Often, they can give very valuable information regarding the conditions for the formation of groups with a particular degree of publicity, help identify partners of the crime. In cases of group crimes, the testimony of legal representatives (parents or close relatives) on this issue may have important, in particular, to establish the degree of individual responsibility of the perpetrators, as well as in order to make specific preventive measures.
One thing exercise parental rights and duties in ordinary life or civil society, and completely different - in the criminal process, where the teenager is defendant. Even at a conscientious parent sometimes there is a desire to diminish the guilt of a teenager, soften his responsibility. It is difficult for parents to be objective when it comes to the fate of his own child.
We must not forget that the parents are entrusted to rately in raising children, they are primarily responsible for the education of a teenager, and negative influences in the family are one of the causes of juvenile crime. When considering the case, the court sometimes establishes that the parents of the adolescent made gross mistakes in its upbringing, were not carried out behind it the necessary supervision, they abused alcoholism, the immoral lifestyle. At the same time, the parent, whose behavior was the root cause of a distorted formation of the teenager's personality, often his legal representative who endowed with certain procedural rights, and the Court is obliged to ensure that these rights are observed. From the court in these cases requires a big tact and ability to establish all the circumstances to be proof in a criminal case, including circumstances that contributed to the crime of minors. At the same time, the reasons for the commission of a crime are found, the living conditions are established, the developmental defects that contributed to the formation of a minor unlawful behavior, criminal intent, as well as situations that facilitate either pushing a teenager to commit a crime, etc.
When identifying such circumstances as the "Defect of Education," it is necessary to find out the degree of fulfillment by the parents for the education of children. It is necessary to establish whether they use the authority in a teenager and whether they are able to influence it, whether they are controlled by his work, study, leisure organization. It is necessary to specify what specifically there were shortcomings of upbringing, who allowed them and why they had a place (the difficulty of fulfilling parental duties by force, for example, a heavy material situation, employment, the availability of dependents requiring special care, or abuse of alcoholic beverages or drugs ).
Code of Criminal Procedure in Art. 428 enshrines the provisions on the basis of which it follows that legal representatives are caused at the court hearing, who have the right to participate in the study of evidence on judicial consequences (asked with the permission of the presiding court issues of witnesses, victims, experts, defendants, and inspect written documents and real Evidence, participate in video recordings and listening to audio recordings obtained during the prior investigation).
In order for the activities of legal representatives in the trial, we believe that it is necessary to carry out a number of procedural actions in the preparatory part of the court hearing. First of all, the rights listed above should be explained when opening the court session. In addition, the chairperson must interview the legal representatives about their petitions, after which the court will solve the issue of their satisfaction.
The active activity of legal representatives with participation in the consideration of the criminal case on crimes of minors contributes to the most complete establishment of the subject of proof, the choice of the appropriate penalties, as well as the submission of a legitimate and reasonable sentence.
According to Part 2 of Art. 428 Code of Criminal Procedure, the Court has the right to be in exceptional cases when participation in the court session of the legal representative may damage the interests of a minor defendant, its motivated definition or completely remove it from participation at the court session, or limit its participation in one or another part of the court session.
However, it can be assumed that the removal of legitimate representatives from participation in the trial is deprived of their ability to understand that in the commission of a teenager's crime there is a share of their guilt. The criminal process in such cases does not have educational warning impact on them.
Often, parents or persons, replacing them, carry moral, material and other types of responsibility for the improper education of a minor offender. Therefore, the possibility of the offensive of undesirable consequences, of course, will generate a certain interest in them in the case.
It seems that the testimony of witnesses characterizing their moral appearance, or the opinion of the prosecutor who questioning the fact of the conscientious fulfillment by them of their parental debt, is completely not indifferent to legal representatives. Discussion of these issues without the participation of legitimate representatives in the trial significantly infringe on their right to protect their legitimate interests.
The issue of the possibility of hearing the case in cases of non-appearance of legitimate representatives to court is noteworthy. The law states that the non-appearance of legal representatives of the defendant does not suspend consideration of cases if the court does not find their participation necessary (Part 3 of Art. 428 of the Code of Criminal Procedure).
With the failure of legitimate representatives without good reasons The court decides the issue of the proceedings of the case or its deposit, depending on whether the circumstances of the case may be fully explained in their absence.
Competently spent trial For minors becomes a "good school" to re-educate the defendant, as well as his legal representatives in terms of changing attitudes towards their parental duties. And this is especially important for parents or persons who replace them if there are still minor children who need proper upbringing and enhanced supervision in the family.
Continuing the analysis of the problem under consideration, it should be noted that in Art. 426 and 428 Code of Criminal Procedure are focused on the basic rights of a legal representative of a minor suspect, accused. Therefore, by analyzing the norms of the Criminal Procedure Legislation of the Russian Federation, the following rights of the specified participant in the criminal process can be distinguished:
1. Given the testimony in the native language or in the language he owns, and use the help of the translator for free (Article 18 of the Criminal Procedure).
2. To shoot at your own expense through various technical funds, copies with criminal case materials at the end of the preliminary investigation (Article 217 of the Code of Criminal Procedure).
Given that the legal representative protects the rights and legitimate interests of a minor suspect, accused, then it can be concluded that he (legal representative) besides the rights referred to in the norms of the Code of Criminal Code of the Russian Federation, may:
1. To know the reason for the detention of the person represented by him or the use of preventive measures to this person.
2. To be immediately notified of the detention of a minor suspect (part 4 of Art. 423 of the Code of Criminal Procedure), while in Art. 96 Code of Code The legislator pointed to the prohibition of the restorations in the secret of the fact of detention of a minor suspect, even if such a need arises in the interests of the investigation.
3. Reliable against the cessation of a criminal case in relation to submitted on the grounds, provided by part 2 tbsp. 27 Code of Criminal Procedure.
4. To participate in reconciliation with the victims and to burn harm caused by the crime in accordance with Art. 25 Code of Criminal Procedure
5. To have a date with a defender of a minor suspect, accused, alone and confidential, including to the first interrogation of the person represented, without limiting their number and duration (by analogy with the provisions enshrined in Art. 46 and 47 of the Code of Criminal Procedure.
It is important to note that Art. 15.1. Peking Rules discloses the requirements for the provision of legal and other necessary assistance in the preparation and implementation of the protection of the minor involved in the criminal proceedings.
In the Criminal Procedure of the Russian Federation, the participation of the defender is ensured from the moment it is provided for by P.P. 2 and 3 h. 3 tbsp. 49 CPC. It should be taken into account that, according to such a category, the participation of the defender is mandatory, therefore its participation is provided by either a minor suspect, accused, or his legal representative or a person in the production of which is a criminal case.
But in practice there are cases when a lawyer invited by the investigator for the protection of a minor suspect, accused, enough formally comes to the fulfillment of your duties, Since a minor, unlike adult accused (suspect), will not require proper behavior and protection, since, due to age factors, the teenager does not have enough everyday experience, and also does not have certain knowledge in the field of jurisprudence.
We believe that legal representative a minor suspected accused having reveaning the formal attitude of the defender to their duties should refuse to help this defender. However, st. 52 Code of Criminal Code establishes that only a suspect, accused of its own initiative, at any time of production in a criminal case, declare a refusal of defender, while in writing. But such a refusal for the investigator, the prosecutor and the court is not obligatory, taking into account the prescriptions of Art. 51 CPC PF. Consequently, the rejection of a particular defender of a minor suspect, accused, or his legal representative should entail the replacement of the defender.
Given that, due to the age characteristics of a minor suspect, the accused cannot independently implement this right and declare the refusal of a particular defender, it is advisable to this right, in our opinion, to give a legal representative of a minor.
6. Get acquainted with the appointment decree forensic examination, to put questions to the expert, declare him allotted and petition for the production of expertise in another expert institution, as well as get acquainted with the conclusion of the expert (Art. 198 of the Code of Criminal Procedure).
If necessary, subjected to a minor suspect (accused) expert study; All provided to him in accordance with Art. 198 Code of Criminal Procedure Rights should have his legal representative. It seems that this circumstance should be highlighted in Art. 426 Code of Criminal Procedure, because the production of expertise, especially those related to medical research, significantly affects the rights and interests of the person. So, for example, according to the Code of Criminal Procedure of the Republic of Kazakhstan 1997 (part 4 of article 242), the examination against a minor suspect, the accused can be appointed at all at the initiative of the representative, who in writing formulates the question of the expert, indicates the objects of the study, calls the face (persons) which can be invited as an expert. When obtaining samples for expert research related to the use of complex medical procedures or methods that cause severe pain written agreement Not only a minor suspect (accused), but also his legal representative (Art. 262 of the Code of Criminal Procedure of the Republic of Kazakhstan). Melnikov S.A. Decree. dis. P. 69-70.
Continuing the analysis of the problem under consideration, we note that a legal representative of a minor suspect, the accused arise certain rights in solving the issue of the transfer of a minor under the supervision of parents (relatives) or persons replacing them, i.e. Persons can act as legal representatives. The investigator, speaking a subject to the protection of the surfactant and the legitimate interests of a minor, first of all, should make sure that these people who are transferred to the superior to the adultery, have a positive effect on a teenager, correctly evaluated to them, enjoy authority and respect for a minor, may affect A teenager or a belief method, or by his personal example, and most importantly - can provide proper behavior and daily control over minors.
Persons who will take care of minors must be chosen with the condition that they know a teenager well, his character, inclinations, behavior and can have a positive effect on him. In addition, they should not suffer from mental illnesses, consist of taking into account the narcologist, to adversely characterize and be too busy at work (for example, often leave for business trips).
E.A. was committed right Fucking that the discussion of the possibility of returning a minor suspect, accused of a supervision, should take place between the investigator, the defender, the legal representative of a minor suspect and the accused and the suspect himself or the accused Potekhina E.A.Listening to a minor suspect or accused as a preventive measure and its use by investigators of the internal affairs bodies: dis. ... Cand. jurid science - St. Petersburg., 2006. S. 11-12 ..
Like any participant in the criminal process, the legal representative of a minor suspect, accused, along with the rights, should be enshrined responsibilities:
Protect the rights and legitimate interests of it represented, i.e. a minor suspected accused; It is forbidden to act against the interests of the person they represent;
To be the challenges of the prosecutor, the investigator, the investigator, and in the case of a non-appearance without valid reason, may be subjected to a forced drive;
Provide the appeal of the caused minor, whose interests represent a legal representative, because The legal literature emphasizes the inadmissibility of the actuator for minors. See, eg: Zaitseva O.A. Theory and practice of the participation of a witness in criminal proceedings: dis .... Cand. jurid science - M., 1993. p.117; Shaper S.A., Lazareva V.A. The participation of the victim and his representative on the preliminary investigation. - Kuibyshev, 1979. P.84. So, some authors Scherba S.P., Zaitsev O.A.. Protection of the rights of victims and witnesses in criminal cases: allowance. - M., 1996. p.35. It is believed that in cases of non-appearance of a minor, including the suspect, the accused, the investigator, the investigator, the prosecutor, the judge may oblige a legal representative or a close relative to ensure the appearance of the caused minor participant in the criminal process. In this regard, it is necessary to legally consolidate the responsibility of legitimate representatives by applying money to them in the manner prescribed by Art.117, 118 of the Code of Criminal Procedure, for the refusal of minors from the fulfillment of the responsibilities entrusted to them in the criminal process.
Thus, in the standards of the Code of Criminal Procedure, regulating the rights of the legal representative, it is necessary to consolidate their responsibilities that shall be amended as follows:
"A legal representative is obliged to protect the rights and interests of a minor, in a timely manner on the challenges of the investigator, the investigator, the prosecutor and the court (judges), as well as to provide a timely appearance of a minor challenge, to fulfill the claims to comply with the procedure for conducting proceedings with the participation of a minor."
Thus, empowering legitimate representatives with a wide range of procedural rights and obligations will open the possibilities of their widespread attraction as participants in the criminal process, will strengthen them legal status At the preliminary investigation. At the same time, this step will provide legal representatives of a minor accused (suspected) additional means of protecting the rights and legitimate interests of persons represented and thus will strengthen the procedural guarantees of criminal prosecution. Kachalova O.V. Decree. dis. P. 139.
Summing up the foregoing, we draw conclusions:
1. The rights of the legal representative of a minor suspect, the accused are fixed in Art. 426, 428 Code of Criminal Procedure, but his duties did not find legislative consolidation, the following provisions should be understood under them:
The legal representative is obliged to defend the rights and interests of a minor suspect, accused;
To be in time to the challenges of the investigator, the investigator, the prosecutor and the court (judges);
Provide a timely appeal to the challenges of a minor suspect, accused;
To fulfill the claims to comply with the procedure for conducting procedural and investigative actions with the participation of a minor suspect, accused.
2. Given that a minor suspect, accused by virtue of the specifics of the person and age, cannot fully implement its right, provided for by Art. 52 Code of Criminal Procedure (rejection of the defender), then such the right should be given to its legal representative, which must be consolidated to legislatively.
3. We believe that the legal representative of a minor suspect, the accused must be interrogated only about the personality of his represented, in this regard, in the Code of Criminal Procedure, it is necessary to establish a norm regulating the procedure and the limits of interrogation of a legal representative of a minor suspect, accused.
3. In order to protect the rights and legitimate interests of a minor defendant, it is necessary to legally prohibit separate familiarization with the materials of the criminal case at the end of the preliminary investigation of a minor accused, his legal representative and defender.
Questions for self-control:
1. List the rights of the legal representative of the minor suspect, the accused, enshrined in Art. 426, 428 Code of Criminal Procedure.
2. Indicate, what rights is the legal representative of a minor suspect, accused not included in the above standards?
3. What are the obligations of the legal representative of a minor suspect accused of criminal proceedings?
4. What is the order of familiarization with the materials of the criminal case of a minor accused, his legal representative and defender at the end of the preliminary investigation?
In art. 48 Code of Criminal Procedure marked three points: a) legal representatives of the suspect and the accused participate in criminal proceedings only inspiring, since submitted subjects of criminal procedural law - minors; b) they (legal representatives) are attracted to participate in solving officials engaged in criminal proceedings; c) they are involved in participation as in the preliminary investigation stage (in the manner prescribed by Art.
426) and at the court session (in the manner provided for in Art. 428).
On the side of the suspect and the accused as legitimate representatives can participate close relatives: parents, adoptive parents, native brothers and native sisters (paragraph 4 of Art. 5 of the Code of Criminal Procedure), as well as other persons: guardians, trustees, representatives of institutions and organizations in whose care (Section 12 of Art. 5) There are a minor accused or suspect.
Noting the need for strict adherence to the law when considering cases of minors in terms of ensuring the participation of legal representatives, the Plenum of the Supreme Court of the Russian Federation in the decision of February 14, 2000 No. 7 "On Judicial Practice on Minor Crimes" clarified that if the person committed a crime under the age of 18, at the time of consideration of the case in court will reach
Chapter VII. Participants of criminal proceedings
venopolis, the functions of the legal representative stop1. From this general The plenum, however, made an exception, noting that the functions of the legal representative can be continued when making a decision on the dissemination of persons aged 18 to 20 years on the peculiarities of the criminal responsibility of minors (Article 96 of the Criminal Code of the Russian Federation).
In connection with the issues that arise in practice on the possibility of interrogation as witnesses, when considering criminal cases of criminal cases of the minors of their parents involved as legal representatives, the Plenum of the Supreme Court of the Russian Federation in the title decree clarified that these persons could be questioned as witnesses. Recognizing such interrogation is necessary, the court must make the appropriate definition and clarify the state of the provision of Art. 51 of the Constitution of the Russian Federation. At the same time, in the case of interrogation of the legal representative, it is warned of criminal liability only for the gift of obviously false testimony.
In the specified decree, the Plenum of the Supreme Court of the Russian Federation also explained that the complaint made to participate in the case of a legal representative of a minor convict, which, by the time of verification of the case in the court, was 18 years old, is subject to consideration in cassation on general reasons.
The defender is a member of criminal proceedings that exercise one of the main directions in the criminal process - the protection function. Its purpose is to use the means specified in the criminal procedure and methods of protection in order to identify the circumstances justifying the suspect or accused, mitigating their responsibility, as well as providing them with legal assistance.
Having established that lawyers, the Code of Criminal Code of the Russian Federation, at the same time, recognized the admission (by a court decision), along with a lawyer, as a defender of one of the close relatives of the accused or other person, the admission of which states the accused.
In the production of the magistrate, the specified person is allowed instead of a lawyer.
The defender is allowed to participate in the case on the side of the accused-with the moment of making a decision to attract a person as an accused. On the side of the suspect, the participation of the defender is allowed: 1) from the moment of initiating a criminal case in relation to a particular person; 2) since the actual detention of a person suspected of committing a crime; 3) since the announcement of the suspect about the appointment of forensic psychiatric examination; 4) since the beginning
BVD of the Russian Federation. 2000. No. 4.
Section I General
the implementation of other measures procedure coercion or other procedural actions affecting the rights and freedoms of the suspect (part 3 of Art. 49 of the Code of Criminal Procedure).
The lawyer is allowed to participate in the case as a defender upon presentation of a lawyer certificate and order. At the same time, the law does not limit the number of accused (suspected), which one person can protect: unacceptably only participation in the protection of persons between whose interests there are contradictions.
In the case of the participation of the defender in a criminal case containing the information constituting state secret, if he has no appropriate tolerance to the specified information, is obliged to give a subscription to their non-disclosure.
The criminal procedural law provides for a different order of admission of the defender. First of all, the defender is allowed to participate in the criminal proceedings at the invitation of the suspect, the accused, its legal representative, as well as other persons on behalf of or with the consent of the suspect accused. At the same time, at the request of the suspect, the accused the participation of the defender is provided by the investigator, investigator, a prosecutor or court. The provision of the law on the responsibility of the investigator and the court to provide a defender at the request of the accused in practice is essentially equal to the cases of the obligatory participation of the defender (Article 51).
The investigator or court ensures the participation of a defender at the request of the accused (suspected) in accordance with the provisions of Part 2 of Art. 50 CPC. Similarly, replacing the elected defender accused due to the impossibility of the last participation within five days, if the accused (suspect) did not invite another defender.
In h. 3 tbsp. 50 CPC settled in regulatory The question of the consequences of occurring in cases where the defender participating in the case cannot take part in the production of a specific investigative action, and the suspect and the accused do not invite other defenders and do not apply for its appointment. In these cases, the investigator is entitled to fulfill this investigative effect without the participation of the defender, with the exception of cases provided for by paragraph 2-7 h 1 Article. 51 CPC.
As established by law, the participation of the defender in criminal proceedings is obligatory if "
1) A suspect, the accused did not refuse the defender in the manner prescribed by Art. 52 CPC;
2) the suspect, the accused is minor;
3) the suspect, accused of physical or mental deficiencies, cannot independently exercise its right to defense;
Chapter VII Participants in criminal proceedings
4) the suspect, the accused does not own the language in which the criminal proceedings are conducted;
5) A person is accused of committing crimes for which a sentence may be appointed in the form of imprisonment for over fifteen years, life imprisonment or death penalty;
6) a criminal case is subject to consideration by the court with the participation of jurors;
7) The accused said the petition for the consideration of the criminal case in the manner prescribed by the Code of Criminal Procedure.
The transfer of the obligatory participation of the defender in law is caused by the presence of situations in the case in the case when the accused (suspected) due to the various circumstances specified in the law or subjective reasons are not able to independently carry out full protection of its interests.
If in cases provided for by Part 1 of Art. 51 Code of Criminal Procedure, the defender is not invited by the suspect, accused, his legal representative, as well as other persons on their instructions, the investigator, the investigator, the prosecutor or the court ensures the participation of the defender in criminal proceedings.
In accordance with Art. 52 OPC Suspect, the accused is entitled at any stage of legal proceedings to abandon the help of the defender. At the same time, in most cases (paragraph 2-7 part 1, Article 51 of the Code of Criminal Procedure), the rejection of the defender is not required for the investigator, the investigator, the prosecutor and the court. The rejection of the defender is declared in writing. If such a refusal is made during the production of investigative action, this makes a mark in the protocol of this action.
Note in Part 2 of Art. 52 Code of Options for the court, the investigator, the prosecutor of the refusal of the defender in the cases listed in paragraph 2-7 part 1 of Art. 51, does not mean that such a failure may not be considered. The declared refusals of the defender are subject to consideration, but in these cases they should be considered particularly carefully, given that the refusal comes from persons who need to be protected. Requests of these individuals may be rejected. Wherein accepted decisions (definitions) should be explained by interested participants in the criminal procedure, and the defender continues to participate in the criminal process.
Providing a defender of broad powers (part 1 of article 53 of the Code of Criminal Procedure) ensures sufficient procedural means to identify the circumstances justifying the accused and mitigating his responsibility.
Providing legal assistance to the accused (suspected) in identifying his acquisitions, the defender through the use of the rights listed in Part 1 of Art. 53 CPC, can achieve positive results. However, if the defender did not solve the supplied
Section I. General
tasks, it does not mean that the guilt of his support is proved. Another conclusion would contradict the presumption of innocence arising from it the most important provisions and distort the meaning of provinted by the accused (suspected) rights to protection.
Providing the advocate of the right to have a suspect and accused date by alone on a confidential basis provides the possibility of timely agreement with the undercooling not only of the overall position, but also tactics elected for its implementation at different stages of legal proceedings. The guarantee of this is to establish the possibility of such dates without limiting their quantity and duration.
The defender is endowed with the right not only to submit, but also to collect evidence. However, firstly, these provisions do not mean that the rights of officials responsible for doing business are applied to the defender. Secondly, part 3 Art. 86 Code of Code Limits the powers of the defender in this part, indicating that it can collect evidence by: a) obtaining subjects, documents and other information; b) polling of individuals with their consent; c) requesting certificates, characteristics, other documents from organizations. Thus, the activities of the defender for collecting evidence is as part of a subsidiary (auxiliary) character.
The defender is endowed by a number of powers that significantly reinforce its potential in the implementation of activities on evidence. These include the right to: a) attracting a specialist; b) participation in investigative actions; c) ensuring access to a wide range of documents during the investigation; d) the opportunity at the end of the investigation not only to write out of criminal proceedings any information in any amount, but also to make copies from the case file, including with the help of technical means; e) participation in the meetings of the courts of the first and higher instances (second and supervisory); (e) Appealing actions and decisions and providing the opportunity to participate in their consideration by the court (paragraph 3, 5-7, 9, 10 hours 1, Article 53).
The defender in the criminal process is a subject of not only procedural rights, but also procedural duties. The law establishes that the defender is not entitled to disclose the preliminary investigation data, which has become known to him in connection with the implementation of protection, if he was specially warned about this installed manner (Part 2, Art. 53, Art. 161 CPC, Art. 310 U to the Russian Federation). In addition, concluding a contract (agreement) to conduct a criminal case, the defender must take into account the circumstances that exclude its participation (Art. 72 of the Code of Criminal Procedure).