You can return the case to the prosecutor with the appellate instance. Preliminary investigation gaps: grounds for the return of a criminal case from the court of appeal to the prosecutor to organize an additional investigation

Constitutional Court
Russian Federation

Judge
Constitutional Court
Russian Federation

1. The judge at the request of the parties or on his own initiative returns a criminal case to the prosecutor to eliminate the obstacles to its consideration by the court in cases if:

1) the indictment, indictment or indictment was drawn up with a violation of the requirements of this Code, which eliminates the possibility of a decision by the court of sentencing or to make a different decision on the basis of this conclusion, an act or decree;

2) a copy of the indictment, indictment or indictment was not awarded to the accused, except if the court recognizes the decision of the prosecutor, adopted by it in the manner established by part of the fourth article 222 or part of the third article 226 of this Code;

(see text in the previous edition)

3) there is a need to draw up a prosecution or indictment in a criminal case, aimed at the court with a decree on the application of a forced medical measure;

(see text in the previous edition)

(see text in the previous edition)

5) When familiarizing the accused with the materials of the criminal case, it was not clarified by the rights provided for by part of the fifth of Article 217 of this Code;

6) The actual circumstances set forth in the indictment, the indictment, indictment, decree on the direction of a criminal case to court for the application of a compulsory medical measure, indicate the availability of grounds for the qualifications of the accused, persons in respect of which proceeds are underway to apply medical nature, as a more serious crime, socially dangerous Act Either during a preliminary hearing or trial, actual circumstances have been established, indicating the presence of grounds for the qualification of the actions of the specified persons as a more serious crime, socially dangerous act.

1.1. In the presence of the circumstances referred to in Article 226.2 and part of the fourth Article 226.9 of this Code, the judge at the request of the parties or on his own initiative returns a criminal case to the prosecutor to transfer it to the intention and production of inquiry in common order.

1.2. The judge at the request of the parties returns a criminal case to the prosecutor to eliminate obstacles to its consideration by the court in cases if:

1) after the direction of the criminal case, new socially dangerous consequences of the accused Acts are incriminated to the accused, which are the basis for making an accusation of a more serious crime;

2) The verdict previously made in the criminal case, the definition or decree of the court is canceled in the manner prescribed by Chapter 49 of this Code, and the new or newly discovered circumstances that have served for their abolition are the basis for the basis of the accused of accusing a more serious crime.

1.3. Upon returning the criminal case, the prosecutor on the grounds provided for in paragraph 6 of part of the first this articleThe Court is obliged to indicate the circumstances that are the basis for the qualifications of the actions of the accused, the person in respect of which proceeds on the application of a forced medical measure, as a more serious crime, socially dangerous act. At the same time, the court may not have the right to indicate the article of the special part of the Criminal Code of the Russian Federation, according to which the Act is subject to new qualifications, as well as to draw conclusions on evaluation of evidence, about the guilty of the accused, about the commission of a socially dangerous act of a person in respect of which proceeds for the use of forced medical measures character.

Chekhov Larisa Nikolaevna - Lawyer

05.12.2013

Judge Zakharov A.Yu. № 22-3405 / 2016.

Appeals decree

The court of appeal in criminal cases of the Novosibirsk Regional Court as part of:

chairman Karlova I.B.

under the Secretary of the Skakun K.A.

with the participation of the State Prosecutor Babenko K.V.

lawyers Zinovieva B.P., Blinova A.V.

accused Donets A.V.

examined in open court on May 27, 2016 the materials of the criminal case on the appeal representation of the prosecutor of Novosibirsk Vlasova I.A. and the appeal of the lawyer Zinovievaya B.P. For the Resolution of the Ob City Court of the Novosibirsk Region of March 30, 2016, which is a criminal case regarding:

Donz A. V., DD.MM.YYYY Birthday, a native, accused of committing a crime provided for by Art. Part 3-290 Ch.5 p. "B" of the Criminal Code of the Russian Federation,

Returned to the prosecutor, in accordance with P.6 Part 1 of Art. To eliminate the obstacles to its consideration by the court.

Having heard the report of the judge of the regional court Karlovoy I.B., the opinions of the accused Donets A.V. and lawyers Zinovievaya B.P. and Blinova A.V. who supported the arguments appeal complaint and partially agreed with the arguments of the appellate submission, the state prosecutor Babenko K.V., who supported the arguments of the appellate presentation, the appellate court

Installed:

By the Resolution of the Ob City Court of the Novosibirsk Region of May 30, 2016, a criminal case against Donets A.V. On charges of committing a crime provided for by Art. h. 3-art. Ch.5 p. "In" of the Criminal Code of the Russian Federation returned to the prosecutor in the manner prescribed by Art. Part 1 of paragraph 6 of the Code of Criminal Procedure of the Russian Federation to eliminate obstacles to its consideration by the court.

In support of their conclusions, the court indicated that during the trial, the court established actual circumstances, indicating the presence of reason to qualify the actions of the Donets A.V. In a stricter criminal law.

The prosecutor of Novosibirsk in the appellate submission raised the question of the abolition of the decision and the direction of the case into court for consideration on the merits, paying attention to the fact that the court did not fulfill the requirements of Art. . The resolution lists evidence, but does not conclude what of which of them is undoubtedly indicative of involvement in the crime of another person (kg) and the circumstances pointing to the need to incriminate Donuts A.V. A more serious crime, namely, charges of committing a crime as part of a group of persons. The testimony of a witness to and the version of its involvement in this crime, taking into account the testimony of the Witness of the CZ and other evidence studied by the court, was tested and received an assessment as a person leading the investigation and the prosecutor, when approving an indictment. At the same time, a sufficient set of data indicating the presence in actions to signs of a crime was not established. No new data on such facts at the hearing was not identified, the sources of evidence at the investigation stage were exhausted, and therefore the conclusion of the court on the need to return the case against Donets A.V. Prosecutor to eliminate obstacles to its consideration, if there is the same volume of evidence, is unreasonable. In addition, according to the prosecutor, the court is not deprived of the opportunity to decide on the person who has brought to criminal liability on charged by him, giving an assessment to all evidence in the case in the aggregate.

Lawyer Zinoviev B.P. The appeal expressed disagreement with the decision, pointing out that the court had no grounds for the return of the prosecutor in connection with the need to charge the prosecution on a stricter criminal law. The court selectively referred to the decision to a number of evidence, and did not lead to the materials on the issues of the Horde, the admissibility of which was challenged by the Security Party. In addition, the author of the appeal draws attention to the provisions of Art. who are violated by the court of first instance and suggests the decision of the Appeal Court to change Donuts A.V. The preventive measure to another, not associated with imprisonment.

After checking the materials of the criminal case, the arguments of the appellate presentation, the appeal, the Court of Appeal, finds the decision to be canceled on the following grounds.

In accordance with the requirements of paragraph 6 of Part 1 of Art. The court has the right to return the criminal case to the prosecutor in the event that the actual circumstances set forth in the indictment indicate the availability of grounds for the qualifications of the actions of the accused, as a more serious crime, or during a preliminary hearing or trial, factual circumstances indicate the presence of grounds for qualifications Action of the specified person as a more serious crime.

Based on this paragraph of Part 1 of Art. The legislator is actually two grounds for the return of the criminal case to the prosecutor.

In the first case, actual circumstances indicate the presence of grounds for qualifying as a more serious crime of a socially dangerous act, that is, these circumstances have already been established during the preliminary investigation, but the court gives them a different assessment, that is, the situation arises when the legal assessment of the defendant's actions does not correspond to the actual The circumstances of the criminal act described in the indictment, in connection with which the criminal case must be returned to the prosecutor (definition of the Constitutional Court of the Russian Federation of September 25, 2014 No. 2220-O).

In the second case, during a preliminary hearing or trial, actual circumstances were established, indicating the presence of grounds for the qualifications of the actions of the defendant as a more serious crime, that is, factual circumstances are established by the court not as during the prior investigation, and this affects the qualifications of the crime (ruling Constitutional Court of the Russian Federation dated 2.07.2013. No. 16-P).

Upon returning the case, the prosecutor on this basis, in both cases, the court in its decision should indicate the actual circumstances that provide grounds for the qualification of the actions of the accused on a more severe crime.

These requirements, contrary to the requirements of Art. The court of first instance was not fulfilled.

So, from the indictment it follows that the description of A.V. performed by the Donette The acts and actual circumstances set out in it correspond to the legal assessment that the prior investigation authorities gave, and with which the prosecutor approved this conclusion. Other factual circumstances, based on the volume of evidence submitted by the parties, is not established at the hearing. Does not see those and the court of appeal.

So, returning the criminal case to the prosecutor, the court indicated the establishment of the following circumstances: I.O. Heads of the city of Obgk, initially, to the first meeting of Donets A.V. and KZ, offered the CZ to provide the administration of the city of Ob sponsorship aid in the amount of 1.000.000rub., Including in cash, promising to satisfy the requirements of DD.MM.YYYY and then sent it to Donets A.V. To address the issue of the transfer of these funds and notifying it on the need to organize the transfer of funds.

At the same time, the court left disregarded that in the meaning of Art. The crime of a committed group of persons, as well as a group of persons on a preliminary conspiracy, is joint participation in the crime of two or more performers.

Meanwhile, in accordance with the guidelines of the Plenum of the Supreme Court of the Russian Federation of July 9, 2013. No. 4 "On judicial practice on bribery and other corruption crimes", if for the execution of a job officer property rights Services are provided property Character It turns out to be not personally or close, but knowingly to other persons, including legal, the deed can not be qualified as receiving a bribe (for example, the adoption by the head of state or municipal Institutions Sponsorship to ensure the activities of this institution for committing them to service in favor of persons who have provided such assistance).

Considering that the preliminary investigation authorities Action of Donets A.V. Qualified under Art. Part 3-290 Ch.5 p. "B" of the Criminal Code of the Russian Federation withdrawal of the court on the need to qualify its actions on a more harmful criminal law, according to the Appeal Court, is premature and made without taking into account all circumstances in the case.

In addition, the attention of the audience of the appellate presentation was reasonably drawn to the fact that no new information, significantly overlooking the evidence collected by the investigator and refuting the fabul of the prosecution of Donz A.V., was not established by the court. The version of involvement in committing a crime kg as part of a group with the defendant is verified and refuted by the investigator. There was no sufficient evidence to bring it to criminal liability, and all possible sources of collecting such evidence were exhausted. With such conclusions of the preliminary investigation, the prosecutor agreed, approved by the indictment in the case.

In this way, specified by the court As a basis for the return of the case, the prosecutor does not prevent the court further consideration by the court, since it is possible to consider within the limits of the report of A.V. accusations.

Under such circumstances, the decision taken by the court the decision on the return of the case to the prosecutor cannot be recognized as legitimate, and is subject to cancellation, and the criminal case - the direction for a new consideration into the same court from the stage of the trial in the other composition of the court.

Having considered the application of the change in the accused measure of curbing a and other, not related to the isolation from society, the Court of Appeal does not find grounds for its satisfaction. At the same time, it takes into account both the severity and corruption orientation of the crime, in which he is accused and other data indicating the possibility of Donets A.V. Prevent the establishment of the truth in the case by providing pressure on the participants of the judicial proceedings with which he is familiar with and also using its connections.

Data that Donets A.V. It cannot be contained in the conditions of the detention facility for medical testimony, there is no case. Health care In the required volume, it can be provided in the relevant institution of Gufsin.

Judicial practice on:

Judicial practice for the application of the norms of Art. 290, 291 of the Criminal Code of the Russian Federation

Approved

Presidium of the Nizhny Novgorod Regional Court

OVERVIEW

the judicial practice of the Nizhny Novgorod region for the application in 2014 the provisions of Article 237 of the Code of Criminal Procedure of the Russian Federation in resolving the issue of the return of the criminal case to the prosecutor to eliminate obstacles to the case of the court

The Institute of Returning by the court to the prosecutor of criminal cases, to eliminate the obstacles to their consideration, regulated in Article 237 of the Code of Criminal Procedure of the Russian Federation, was put into effect from July 1, 2002 by the New Criminal Procedure Code of the Russian Federation (Federal Law of December 18, 2001 N 174-FZ). From this time, he was repeatedly subjected to a cardinal legislative adjustment.

In total, Article 237 of the Code of Criminal Code of the Russian Federation changes were made five times by federal laws of 04.07.2003 No. 92-ФЗ, dated 02.12.2008 No. 226-ФЗ, from 04.03.2013 №23-ФЗ (in connection with the introduction of a new institution of inquiry in abbreviated form) , from 04.26.2013 №64 (Part 2 of Article 237 of the Code of Criminal Procedure of the Russian Federation was introduced in pursuing the decision of the COP of the Russian Federation of 16.05.2007 No. 6-P), dated July 21, 2014 No. 269-FZ (P.6 Part 1 was introduced. Part 1 of the Code of Criminal Procedure of the Russian Federation in pursuance of the decision of the CS of the Russian Federation of 02.07.2013 No. 16-P).

For understanding legal nature The return of the criminal case to the prosecutor's key role was played by the Resolution of the Constitutional Court of the Russian Federation: dated 04.03.2003 No. 2-p, from 08.12.2003 No. 18-P, as well as others.

In particular, the most significant is the decision of the Constitutional Court of the Russian Federation of 08.12.2003 No. 18-P, in which the legal position is expressed that the court has the right to return the case to the prosecutor to eliminate the obstacles to the court in all cases when judicial proceedings Significant violations of the law were committed, unreasurable in court proceedings, if the return of the case is not associated with the fill in the incompleteness of the inquiry or preliminary investigation. The same decree of the position of Part 4 of Article 237 of the Code of Criminal Procedure, which prohibited the production of any investigative or other procedural actions not provided for by this criminal prohibition article Code The Russian Federation is recognized as unconstitutional.

In pursuance of this decision of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, in the Decree of the Plenum dated 05.03.2004 No. 1 "On application by the courts of the norms of the Criminal Procedure Code of the Russian Federation" (p.14), explained that when deciding on the return of the criminal case to the prosecutor The grounds specified in Article 237 of the Code of Criminal Procedure of the Russian Federation, under the disorders of the criminal procedure law, approved in the preparation of the indictment or indictment, should be understood such violations of the Provisions of the Criminal Code of the RF, which eliminate the possibility of making a decision on the merits Based on this conclusion or act. In particular, the possibility of making a court decision in cases where the charge set forth in the indictment or indictment does not correspond to the charges set forth in the decision to attract a person as an accused; The indictment or indictment is not signed by the investigator, the investigator, or not approved by the prosecutor; In the indictment or indictment, there is no indication of the past and outstanding convictions of the accused, data on the location of the accused, data on the victim, if it is established in the case.

If there is a need to eliminate other obstacles to the consideration of the criminal case specified in paragraphs.2-5 part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation, as well as in other cases where significant violations of the law were committed in pre-trial production, and eliminating such violations are not related to the fill in the incompleteness of the inquiry or preliminary investigation, the judge in accordance with Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation on its own initiative or by the application of the part in the manner provided for by Article 22 and 236 of the Code of Criminal Procedure of the Russian Federation, returns the case to the prosecutor to eliminate Violated disorders.

In the decision of the Plenum of the Supreme Court of the Russian Federation of December 22, 2009 N 28 "On the applications of the courts of criminal procedure legislation governing the preparation of a criminal case for the trial" the indicated list of unconditional grounds for the return of the criminal case, the prosecutor was supplemented with cases when the indictment was not agreed with The head of the investigative body, and the indictment is not approved by the head of the inquiry authority.

In Decree No. 6-P dated 16.05.2007 "On the case of verification of the constitutionality of the provisions of Articles 237,413 and 418 of the Code of Criminal Procedure of the Russian Federation in connection with the request of the Presidium of the Kurgan Regional Court", the Constitutional Court first recognized that the provisions of the Law did not comply with the Constitution of the RF The court to return the criminal case to the prosecutor to present a more serious accusation if the new socially dangerous consequences of the accused accusations came after the direction of a criminal case into court, and which initiated the addition of part 1 of article 1.2 of the Code of Criminal Procedure of the Russian Federation.

Resolution of the Constitutional Court of the Russian Federation of 02.07.2013 №16-P "In the case of the verification of the constitutionality of the provisions of the part of the first Article 237 of the Code of Criminal Procedure of the Russian Federation in connection with the complaint of a citizen of the Republic of Uzbekistan B.T. Gadayev and the request for the Kurgan Regional Court "canceled the prosecutor's prohibition to turn on the worst, that is, the ban on the addition of the charge for a cleaner or significantly different in the actual circumstances from the accusation contained in indictment, and which initiated the addition of part 1 Article.237 of the Code of Criminal Procedure, paragraph 6 and the new part 1.3 of the Code of Criminal Procedure of the Russian Federation.

According to statistical data in 2014 by the city and district courts of the Nizhny Novgorod Region on the grounds and in accordance with Article 237 of the Code of Criminal Procedure, the prosecutors were returned 161 criminal cases against 231 persons (in 2013, the prosecutor of 151 criminal cases were returned with respect to 220 persons, in 2012 171 Criminal case against 259 persons). Of these, decisions of 48 criminal cases are appealed against 119 persons (in 2013, 71 criminal cases in relation to 142 persons, in 2012 in relation to 137 persons), canceled decisions against 57 persons (in 2013 canceled decisions in relation to 64 persons , in 2012 in relation to 99 persons).

Generalized data on ships look like this.

From the given data it follows that a significant amount of affairs returned to the prosecutor by the following courts: Dzerzhinsky City Court - 16 orders; Boric city court - 15 ordinances; Nizhny Novgorod District Court of Nizhny Novgorod - 14 orders; Avtozavodsky District Court of Nizhny Novgorod - 12 orders; Leninsky District Court of Nizhny Novgorod - 11 orders.

The most canceled decrees to reckon the criminal case to the prosecutor were the following courts: Soviet District Court of Nizhny Novgorod (canceled 6 orders from 7 appeals); Moscow District Court of Nizhny Novgorod (abolished 2 orders from 3 appealed); Leninsky District Court of Nizhny Novgorod (canceled 4 of 9 appealed); Kanavinsky District Court of Nizhny Novgorod (canceled 2 of the 3 appealed); Dzerzhinsky city court of the Nizhny Novgorod region (canceled 5 orders from 9 appealed); Kstovsky city court of the Nizhny Novgorod region (canceled 2 of the 4 appeals); Borish city court of the Nizhny Novgorod region (canceled 3 of the 6 appealed); Balakhninsky city court of the Nizhny Novgorod region (canceled 1 of the 2 appealed).

Each of the appealed such decisions was canceled in the following courts: the Sarov City Court (canceled 3 orders from 3 appealed); Sergachsky District Court (canceled 1 Resolution from 1 appealed); Lyskovsky District Court (canceled 1 Resolution from 1 appealed); Urenesky District Court (canceled 1 Resolution from 1 appealed).

The smallest number of decrees was canceled in the following courts: the Nizhny Novgorod District Court of Nizhny Novgorod (3 of the Appeal was canceled by 3 orders); Automatic District Court of Nizhny Novgorod (from 6 appealed by 1 decree).

Cases of cancellation of decisions on the return of the criminal case to the prosecutor, despite the fact that they were appealed to the participants in the process on appeal, did not have the following ships: the Sormovsky and Prioksky district courts of Novgorod Novgorod; Kulebak city court of the Nizhny Novgorod region; Shahunsky District Court of the Nizhny Novgorod region.

The Supreme Court of the Russian Federation in the Decree of the Plenum dated 05.03.2004 №12 explained to the courts with the opportunity to return the criminal case to the prosecutor for additional investigative and procedural actions from any stage of the process: a preliminary hearing, a trial in the first, appellate and cassation instances.

As the summary of judicial practice has shown in the courts and the region, criminal cases were returned to the prosecutor from all the stages of the trial without exception, including after listening to the position of the parties at the stage of the judicial debate and the last words of the defendants (Resolution of the Dzerzhinsky City Court of the Nizhny Novgorod region from 04.06.2014, which was returned to the prosecutor criminal case against C., M., and T.)

The Nizhny Novgorod Regional Court in 2014 was returned to the prosecutor with the abolition of the court sentence of the first instance of criminal cases against 17 persons (in 2013, the prosecutor of criminal cases against 18 persons were returned, in 2012 for 8 persons).

1. Studying the practice of applying the requirements of Article.237 of the Code of Criminal Code of the Russian Federation by district courts for 2014, it allows us to conclude that the criminal proceedings of the prosecutor were most often met due to the Code of Criminal Procedure of the Code of Criminal Code of the Criminal Code of Criminal Procedure (Act), Based on paragraph 1 of Part 1 of Article 237 of the Code of Criminal Procedure.

This is due to the value of the indictment and indictment, as the final criminal procedure documents that formulate the essence of the charges, its scope, the qualifications of the deed, contain a list of evidence that the parties refer to the substantiation of their position in the case, that is, they define the limits of the trial, and The retreat from these provisions objectively creates an obstacle to the consideration of the case on the merits in the trial stage.

In this regard, the criminal procedural law contains clear requirements for the indictment (Article 2220 of the Code of Criminal Procedure), an indictment act (Article 225 of the Code of Criminal Procedure), as well as an indictment (st.226.7 of the Code of Criminal Procedure of the Russian Federation).

When the basis is the basis for the return of the criminal case, the prosecutor provided by paragraph 1.1 Article.237 of the Code of Criminal Procedure of the Russian Federation, it should be borne in mind that not only the shortcomings identified by the court at the indictment (act, decree) and prevent the decisions of the law or other significant violations of the law or the rights of the law or the rights of the accused (victim).

The current judicial practice differentiates two grounds for use of paragraph 1 of Part 1 of Article 227 of the Code of Criminal Procedure:

Direct violation of the provisions of Article 22, 225 or 226.7 of the Code of Criminal Procedure of the Russian Federation, in drawing up a prosecution, indictment or indictment, respectively, associated with non-compliance with the requirements of these legal norms to the form and content of these procedural documents (1.1);

Other significant violations of the criminal procedural law admitted during the prior investigation, which eliminate the possibility of a decision by the court on the merits of the case (1.2).

1.1 Practice of the return of the criminal case to the prosecutor in connection with the direct violation of the provisions of the Criminal Procedure Act in the preparation of the indictment (act, decree) in form and content is as follows:

1) not approval by the prosecutor of the indictment (act) in the direction of a criminal case into court;

2) the indictment is not signed by the investigator and (or) disagree with the head of the investigative body;

3) Violations related to the identification of the accused (in accordance with paragraphs.1.2 part 1 of Article 220 of the Code of Criminal Procedure of the Russian Federation, in the indictment, including the name, name and patronymic of the accused, other data on his personality should be indicated. to which, within the meaning of the law, includes information about the place of residence and registration);

4) Disadvantages and omissions by presenting in the indictment (indictment act) Fabuli, creatures and the wording of the charges;

5) Violation of P.8 Part 1 of Article 220 of the Code of Criminal Procedure of the Russian Federation, when, in the indictment, the investigator does not indicate the data on the victim, the nature and amount of harm caused to him;

6) use in the indictment of an abnormative vocabulary in the presentation of the fabul accusation.

1) Not approval by the prosecutor of the indictment (act) in the direction of a criminal case into court.

It should be noted that not approval by the prosecutor of the indictment (indictment) is an unconditional basis for the return of the criminal case to the prosecutor, in accordance with the provisions of paragraph 1 of Part 1 of Article 237 of the Code of Criminal Procedure, as in particular, the recommendations of the Supreme Court of the Russian Federation set out In the Resolutions of the Plenum dated 05.03.2004 No. 1 "On application by the courts of the norms of the Criminal Procedure Code of the Russian Federation" (p.14) and dated December 22, 2009 No. 28 "On the applications by the courts of the norms of criminal procedure legislation regulating the preparation of a criminal case for a trial" (p.14).

In the practice of the courts of the region over the past 2014 there were repeated cases of the return of the criminal case to the prosecutor on the basis of not approval by the indictment (act).

So, by the District Court of the Nizhny Novgorod region, 09.09.2014, in the strand of Article 237 of the Code of Criminal Procedure, the criminal case was returned against Sh. And M., accused of Article 207 of the Criminal Code of the Russian Federation, since the indictment was not approved by the prosecutor, which excluded The possibility of making a decision by the court.

The court of appeal, leaving this ruling unchanged, indicated that the court could not proceed with the consideration of the criminal case on the merits, if the indictment was not approved by the prosecutor, since it does not have legal force; In addition, the legislator does not provide for a different mechanism for eliminating such a violation of criminal procedure legislation, as soon as the criminal proceeds of the prosecutor, in accordance with Article 237 of the Code of Criminal Procedure, to eliminate the obstacles to its court.

2) The indictment is not signed by the investigator and (or) disagree with the head of the investigative body.

Part 3 of Article 220 of the Code of Criminal Procedure of the Russian Federation found that the indictment should be signed by the investigator. In accordance with Part 6 of this article, after signing by the investigator of the indictment, a criminal case with the consent of the head of the investigative body is immediately sent to the prosecutor.

Meanwhile, as a generalization showed, this requirement of the law is not always implemented.

So, by the decision of the Sosnovsky district Court The Nizhny Novgorod region dated November 27, 2014 the prosecutor was returned, in accordance with Article 237 of the Code of Criminal Procedure, a criminal case against S. and K., accused of paragraph 3 of the Criminal Code of the Russian Federation. The basis for the adoption of such a decision was the fact that the indictment of the criminal case received in court was not signed by the investigator and was not agreed by the head of the investigative body.

This practice is consistent with the position of the Supreme Court of the Russian Federation, including the draft resolution of 22.12.2009 No. 28 "On the applications of the courts of criminal procedure legislation regulating the preparation of a criminal case for the proceedings" (p.14).

3) disorders associated with the identification of the accused.

In accordance with paragraphs.1.2 part 1 of Article 220 of the Code of Criminal Procedure, in the indictment, including the names, the name and patronymic of the accused, other data on his personality, to which, within the meaning of the law, applies to About the place of residence and registration.

By the decision of the Kstovsky City Court of the Nizhny Novgorod Region of January 10, 2014, in accordance with Article 237 of the Code of Criminal Procedure, the prosecutor was returned, a criminal case on charges of A. in committing a crime under Part 3 of Article 30, Part 3 of Article 261 of the Criminal Code of the Russian Federation.

As follows from the materials of the criminal case, it entered the court on January 20, 2013. 12/03/2013 Appointed a court session on 12/17/2013. The court adopted comprehensive measures to notify A. about the time and place of the court session at the address and telephone indicated in the indictment. However, the defendant in court did not appear, and according to the data received by the court on the indicated consequence, he does not live.

From the response to a request to the Russian OUFMS in the Nizhny Novgorod region, the court found that the defendant A., being a citizen of the Republic of Uzbekistan and living on the territory of the Kstovsky district of the Nizhny Novgorod region without registration, is expelled outside the Russian Federation by decision of the Kstovsky City Court of the Nizhny Novgorod region from 09/04/2013.

Thus, at the time of the compilation of the indictment, the investigator was known, about the absence of a permanent place of residence and registration in the territory of the Russian Federation, as well as on the decision of the court to exploring it outside the Russian Federation.

Under such circumstances, the court of first instance reasonably returned the case to the prosecutor to eliminate obstacles to its consideration by the court.

4) Disadvantages and omissions in the indictment (indictment act) Fabul, creatures and the wording of the charges.

So, in accordance with paragraphs.3.4 Article 2220 of the Code of Criminal Procedure, the investigator indicates the essence of the prosecution, the place and time of the crime, its ways, motives, goals, consequences and other circumstances that are important to the case, as well as the wording of the accusation With an indication of paragraph, part, articles of the Criminal Code of the Russian Federation, which provides for the responsibility for this crime. Similar requirements and to the indictment are contained in paragraphs.4-5 of article 225 of the Code of Criminal Procedure.

As violations these requirements Law courts indicated:

The discrepancy between the crime of the specific norm of the criminal law or its legal qualifications established at the indictment (act) or the court's actual circumstances

Legal qualifications are not consistent with the charge;

Non-specific presentation of the actual circumstances of the incriminated act in indictment (act);

Administrative wording condembled in the disclosure of the essence;

In the formulation of the prosecution, there is no indication of the specific part, the item of article is either the article of the Criminal Code of the Russian Federation;

Not listed in the indictment, the place of commitment, the method, time, consequences and other circumstances of the commission of a crime are important for business;

The qualifying signs of the incriminated crime are not disclosed.

So, by the resolution of the Nizhny Novgorod District Court of Nizhny Novgorod dated February 18, 2014, a criminal case was returned on charges of B. in committing a crime under Part 1 of Article 228 of the Criminal Code of the Russian Federation, due to the fact that the qualifications of criminal actions of the accused did not comply with the circumstances of the charges What is an obstacle to the decision of the decision.

At the same time, the court indicated that in the indictment, the formulation of filmed charges with an indication of paragraph, part, the articles of the Criminal Code of the Russian Federation should comply with the actual circumstances of the crime set out in the indictment, including methods, relevant, goals and other circumstances of the crime, which is important for This criminal case.

As follows from the indictment, the actions of B. are qualified as an illegal acquisition, storage without the sale of psychotropic substances in a significant amount. Meanwhile, in the indictment, other circumstances of the commission of B. crimes were established, namely, that he illegally acquired, without the purpose of selling a narcotic drug in a significant amount, which is illegal, without the purpose of sales, kept with him that it does not correspond to the qualifications of its actions set forth In the indictment.

Under such circumstances, the court of first instance had all the grounds for the return of the criminal case to the prosecutor.

By the decision of the Canvinsky District Court of Nizhny Novgorod from 09/03/2014 the prosecutor was returned to the prosecutor's criminal case on charges of C. in committing a crime under Part 1 of Article 228 of the Criminal Code, since in the indictment actor made a contradiction between the description of the criminal act and its qualifications.

So, in the indictment, with the presentation of actual circumstances perfect crime, the investigator pointed out that S. committed illegal acquisition and illegal storage without the purpose of the sale of a narcotic drug methylandoxypiro alerone is significantly. At the same time, according to the conclusion of the expert under the prosecution, the substance was withdrawn from S. was a narcotic means - a mixture containing methylenedoxypiro in its composition valeron. An indication of a prosecutor's index for a narcotic drug is not part of the list of drugs excluded the possibility of a judgment by the court or making a different decision on the basis of this indictment.

P stopping the auto plant of the district court of Nizhny Novgorod dated 09.29.2014 the criminal case was returned in relation to Ya., accused of part 3 of article 159 of the Criminal Code of the Russian Federation, on the basis of paragraph 1 of Part 1 of Article 237 of the Code of Criminal Procedure, since the indictment was drawn up With violation of the requirements of Article 20 of the Code of Criminal Procedure of the Russian Federation, since the presented charge contains contradictions on the method of committing theft: first in the text it is indicated that the embezzlement is made by assigning and embezzlement, and then by deception and abuse of confidence.

By the decision of the judge of the Nizhny Novgorod District Court of Nizhny Novgorod dated 07.02.2014, the prosecutor was returned to the criminal case on the charges of K. in committing a crime, provided for by Article 165 part 2 of the Criminal Code of the Criminal Code (causing property damage to the owner of the property by deception in the absence of signs The embezzlement caused particularly large damage).

The submission presented was non-specific, since it did not have a detailed description of the method of performing an incriminated crime, which entailed the impossibility of a sentence or other judicial decision on the basis of an indictment.

In charge of the accusation, it is not indicated, which actions aimed at the deception of property owner, made K., what exactly put this deception, and who exactly was misled as a result of the accused action.

By the decision of the Shahunsky District Court of the Nizhny Novgorod region dated February 27, 2014, in accordance with clause 1 of paragraph 1 of Article 237 of the Code of Criminal Procedure, a criminal case was returned to S., accused of committing crimes provided for by paragraph 3 of Article 3 of Article 111 Part 3, p. "B" Part 2 of Article 158 Part 2, PP. "A, G" Part 2 of Article 161 of the Criminal Code of the Russian Federation and B., accused of committing a crime provided for by paragraphs. "A, G" Part 2 of Article 161 of the Criminal Code. The basis for the adoption of such a decision was that in the decision on attracting as an accused and in indictment instead of B., specified S.

By the decision of the Borskiy City Court of the Nizhny Novgorod region dated 14.04.2014, the prosecutor was returned, in accordance with Article 237 of the Code of Criminal Procedure, a criminal case on the charges of K., I., K.E.O. in the commission of a crime provided for by paragraph "A". Article 158 of the Criminal Code. According to the charges, the preliminary investigation authorities K.E.O. The commission of a crime on a preliminary conspiracy with K. and I. was caused, whereas in the accusation of the latter, an indication of the commission of crimes together with K.E.O. absent.

By the decision of the Moscow District Court of Nizhny Novgorod dated November 20, 2014, the prosecutor was returned to the criminal case on charges of E. under Part 3 of Article 1660 of the Criminal Code of the Russian Federation (2 episode). E. Intrinated the commitment of theft of someone else's property, entrusted guilty, in large amounts. However, contrary to the requirements of Article 22 of the Code of Criminal Procedure, the preliminary investigation body in the description of the criminal acts E. not indicated the motives of the commission of crimes, the specific time periods of the embezzlement, the time and place of the embezzlement is not established, the specific amounts of the stolen are not specified.

By the decision of the judge of the Bogorodsky City Court of the Nizhny Novgorod Region of August 30, 2014, the criminal case was returned to the prosecutor's criminal case against R. accused of committing two crimes provided for by Part 1 of Article 166 of the Criminal Code of the Russian Federation.

The basis for the adoption by the court of such a decision was that the compiler of the indictment in this criminal case, limiting the description of the perfect R., during the period of time from 02.02.2013 to 03.02.2013, criminal action, did not give them a legal assessment, violating P.5 h .1 of Article 225 of the Code of Criminal Procedure of the Russian Federation, according to which the indictment should contain the formulation of the charge with an indication of paragraph, part, articles of the Criminal Code of the Russian Federation.

By the decision of the Dzerzhinsky City Court of the Nizhny Novgorod region dated 12.03.2014, a criminal case was returned on charges of a crime, provided for by Part 1 of Article 161 of the Criminal Code of the Russian Federation.

The prior investigation authority, in the description of the criminal act, was incorrectly established the time of commission of robbery, since from the indictment it follows that the time of the commission of this crime should be considered 19 hours 12.11.2013, and according to the draft certificate of a drug treatment dispensary, at that time was treated In this dispensary, that is, elsewhere, excluding its involvement in the incriminated crime.

At the same time, the judge reasonably believed that he could not go beyond the charges of the charge and independently eliminate the disadvantages admitted during the inquiry, establishing another, which is indicated in the indictment of the crime date, as the trial is carried out exclusively within the framework of the charges charged it. It would have violated the right of the accused G. to defense, because in the stage of the inquiry he defended against the accusation that was approved for the crime committed on 12.11.2013. At the same time, the Court took into account the position of the prosecution nominated against him.

By the decision of the Pilinsky District Court of the Nizhny Novgorod Region of February 10, 2014, the criminal case was returned to the prosecutor's criminal case on charges of M., in committing a crime under Part 1 of Article 228 of the Criminal Code of the Russian Federation.

In the indictment, there were two mutually exclusive judgments about the actual side of the deed and its legal assessment: it was indicated that M. illegally acquired and kept a narcotic drug for the purpose of its sales and at the same time, these actions were qualified by a consequence as an illegal acquisition, storage without drug sales. Significant.

By the decision of the Dzerzhinsky City Court of the Nizhny Novgorod Region of August 26, 2014, the prosecutor was returned to the criminal case against M., accused of committing a crime, provided for by Part 2 of Article 261.1 of the Criminal Code of the Russian Federation, since the indictment did not disclose the qualifying sign of mediation in bribery.

So, from the charges submitted by M. It follows that he is accused of mediating in bribery for committing obviously illegal actions. However, the specified qualifying sign is not disclosed, is not reflected in what exactly the illegal actions of the official were expressed.

Another decree of the Dzerzhinsky City Court of the Nizhny Novgorod region dated January 10, 2014 was returned to the prosecutor of the criminal case against R., accused of part 3 of Article 30, P.P. "B, B" Part 2 of Article 158 of the Criminal Code of the Russian Federation. In the indictment, in the description of the criminal act, the accused by the accused qualifying sign of theft in the victim "with causing significant damage to a citizen" was not described.

5) According to paragraph 8 of Part 1 of Article 220 of the Code of Criminal Procedure of the Russian Federation, in the indictment, the investigator indicates the data on the victim, the nature and amount of harm caused to him.

Similar requirements are also presented to the indictment (paragraph 8 of Part 1 of Article 225 of the Code of Criminal Procedure).

The generalization showed that in 2014 there were violations this Regulation The law correlated by the judges with the procedure enshrined in Article 237 of the Code of Criminal Procedure.

By the decision of the Dzerzhinsky City Court of the Nizhny Novgorod region of 03.10.2014, the prosecutor was returned to the prosecutor's criminal case on charges of C. and K. According to paragraph. "A" part 4 of Article 158 of the Criminal Code of the Russian Federation (95 episodes), as well as S. according to p. "A" part 4 of Art. 158 of the Criminal Code of the Russian Federation (42 episode), since in the indictment it is incorrectly established data on the victim, the nature and amount of harm.

According to the indictment S. and K. accused of committing theft of state registration signs vehicle As part organized group On the territory of Dzerzhinsk and Nizhny Novgorod, that is, the subject of theft was signs state registration Vehicle.

Despite the fact that state registration marks are not the property of the vehicle owner, cannot apply as a product, the owner of the car without the right to alienation and order, after removing the vehicle from the register, state registration signs are subject to return to the traffic police, victims in the case 95 vehicle owners were unreasonably recognized, which were not the owners of these registration marks.

6) Using the indictment not adopted in the official document management of vocabulary in the presentation of the fabul accusation.

Article 240 of the Code of Criminal Procedure of the Russian Federation provides for the principle of immediance and dyedness of the trial. According to Part 1 of Article 18 of the Code of Criminal Procedure, criminal proceedings are conducted in Russian. In accordance with Article 9 of Part 1 of the Code of Criminal Procedure, during criminal proceedings, the implementation of actions and decision-making degrading the honor of the participant of criminal proceedings, as well as the appeal, degrading His human dignity.

At the same time, according to paragraph 6 of Article 1 of the Federal Law of 01.06.2005 No. 53-FZ "On the State Language of the Russian Federation" when using the Russian language as the state language of the Russian Federation, the use of words and expressions that are not relevant to the norms of the modern Russian literary language, for Except for foreign words that do not have common analogues in Russian.

By the decision of the Pavlovsky City Court of the Nizhny Novgorod region of 06.11.2014, the prosecutor was returned to B., the accused on P.P. "A, G" Part 2 of Article 242.1, paragraph "B" Part 3 of Article 262 of the Criminal Code of the Russian Federation to eliminate the obstacles to the court, since in the indictment of the investigator admitted to the use of undormative revolutions in the presentation of the fabul of the charges, which does not allow the court Use it during the trial and excludes the possibility of a judgment by the court or making a different decision on the basis of such a conclusion.

1.2. The current judicial practice of the return of the criminal case to the prosecutor on the basis of paragraph 1 of Part 1 of Article 237 of the Code of Criminal Procedure, in connection with other significant violations of the Criminal Procedure Act during the preliminary investigation, it looks like this.

In paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 05.03.2004 No. 1 "On application by the courts of the norms of the Criminal Procedure Code of the Russian Federation" it is indicated that in cases where significant violations of the law were allowed in the pre-trial production, the judge in accordance with the pre-trial production From Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation on its own initiative or at the request of the parties in the manner prescribed by Article 22 and 236 of the Code of Criminal Procedure, returns a criminal case to the prosecutor to eliminate the disorders.

In particular, substantial violations of the criminal procedure law, unrelacted at the court session, the courts of the region were recognized:

1) not familiarizing the accused and his defender with the materials of the criminal case in full, as well as with real evidence, after the end of the preliminary investigation;

2) not providing an accused who does not speak Russian, translator;

3) violation of the right to defend;

4) a violation of the right of a minor accused, suffering from a mental disorder, for additional preferences when defending against the accusation, since he was interrogated without the participation of a teacher or psychologist;

5) procedural actions on the case, including the presentation of the charge and drawing up an indictment (act), carried out installed deadlines consequences;

6) the receipt of the case into court with violation of the rules of jurisdiction;

7) a violation of a criminal procedure law, which expressed in not clarification of the accused of an inquiry stage of the right to take advantage of the rules of chapter 32.1 of the Code of Criminal Procedure on the production of inquiry in abbreviation;

8) Not fulfilling the Prosecutor of Code of Code of July 3 of Article 317.5 of the Code of Criminal Procedure of the Russian Federation, in accordance with which a copy of the submission made by the prosecutor's submission of a special order of the court session is awarded to the accused and his defenders who have the right to submit their comments taken into account by the prosecutor if there is reasonable.

1 ) Not to familiarize the accused and his defender with the materials of the criminal case in full, as well as with real evidence, after the end of the preliminary investigation.

According to Part 1 of Article 217 of the Code of Criminal Procedure, after fulfilling the requirements of Article 216 of the Code of Criminal Procedure of the Russian Federation, the investigator presents the accused and his defender, linked and numbered criminal case materials. Recognizable evidence is also imposed. In case of impossibility of presenting material evidence, the investigator makes a decision about this.

By the decision of the judge of the Sergach district court of the Nizhny Novgorod region dated 13.05.2014, the prosecutor was returned to the criminal case against M. accused under paragraph "A" of Part 3 of Article 158 to the Russian Federation (two episodes), on the basis of paragraph 1 of Part 1 of Article 237 Code of Criminal Procedure to eliminate obstacles to the court.

The court of first instance was established that according to the protocol to familiarize the accused, the materials of the criminal case, the accused and his defender were familiar with the materials of the criminal case contained in Tome No. 1 on 251 sheets and in volume No. 2 on 34 sheets, in a linked and numbered form. At the same time, in volume 2 of the criminal case to the above protocol, only 16 sheets are laid and numbered. The same number of sheets, to the protocol of familiarizing the accused and his defender with the materials of the case, is indicated by the investigator and in the pubi of papers located in Tome No. 2 of the criminal case.

From the certificate to the indictment it follows that in the case as material evidence were recognized: 4 trail of fingers and palm; Trail of shoes, shot on dactylipoam. In addition, according to the protocol of review of the accused M. with the materials of the criminal case, in the fulfillment of the requirements of Article.217 of the Code of Criminal Procedure, the accused of the accused of the accused of the Code of Code of the Criminal Procedure. The reason for the insecurity of the accused of this procedural legislation is not reflected.

Since part 1 of Article 217 of the Code of Criminal Procedure of the Russian Federation contains the requirement addressed to the investigator to prevent the accused and his defender, the listed and numbered materials of the case, as well as real evidence, to familiarize themselves with which he has the right to declare petitions, the court came to the reasonable conclusion that M. was deprived of the opportunity Take advantage of the rights granted to him as an accused in a criminal case under the preliminary investigation.

2) not providing the accused at the pre-trial stage of the translator.

By the decision of the Gorodetsky City Court of the Nizhny Novgorod region dated October 15, 2014, the prosecutor was returned to the criminal case against B., due to the fact that the accused who did not speak Russian was not awarded a copy of the decision to attract as an accused and the indictment translated into the native The language of the accused (Uzbek), about which the accused declared in court.

3) Violation of the right to defend against the prosecution.

By the Resolution of the Borskiy City Court of the Nizhny Novgorod Region dated April 10, 2014, the criminal case was returned in relation to W., Sh., K., accused of part 3 of article 159 of the Criminal Code of the Russian Federation, since the court found that participating throughout the prior investigation and judicial Defender of the defender of the accused U. Lawyer N. simultaneously carried out protection and accused K., whose interests and the position in the case did not coincide. With the participation of a lawyer N. The accused K. was charged, she was questioned as the accused and acquainted with the materials of the criminal case. The accused W. Throughout the preliminary investigation, gave confessions in case, including the exposure to K. in the commission of a crime incriminated to them. At the same time, the accused K., on the contrary, did not recognize the guilt in the crime.

By the Decree of the Kulebak City Court of the Nizhny Novgorod Region of July 22, 2014, the prosecutor was returned, in accordance with Article 237 of the Code of Criminal Procedure, on the initiative of protection, a criminal case against R., G., E., accused by paragraph. "A" Part 3 of Art. 158 of the Criminal Code. The basis for the adoption of such a decision was that during the preliminary investigation of the case was violated the right of the accused G. to defense.

According to the materials of the case, the defender of the accused by agreement of the services of which G. did not refuse, at the preliminary investigation stage was not notified and did not participate in the production of investigative actions, in addition to the accusation, in the interrogation of the accused, and was not notified of the end of the preliminary investigation, with the criminal materials Cases did not get acquainted than the right of the accused G. on the preliminary investigation on the protection of a lawyer in agreement.

By virtue of paragraph 3 of part 1 of article 51 and Article 438 of the Code of Criminal Procedure of the Russian Federation in the work on the application of compulsory medical measures, the participation of the defender is mandatory from the moment of making a decision on the appointment regarding the face of the forensic psychiatric examination, if the defender has not previously participated in this criminal case. The rejection of the defender for these cases cannot be accepted by the court. In case of violation of these requirements in the course of the preliminary investigation, the criminal case is subject to the return to the prosecutor in the manner established by Article 237 of the Code of Criminal Code of the Russian Federation.

This the requirement of the law, in particular, follows from paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 07.04.2011 No. 6 "On the practice of applying forced medical measures by the courts."

Thus, the Appeals Resolution of the Nizhny Novgorod Regional Court of 14.04.2014 was canceled by the Decree of the Lukoyansky District Court of the Nizhny Novgorod Region of 10.10.2013 on the release of R. from criminal liability for committing publicly dangerous acts containing signs of crimes provided for by Article 319 (two episodes) and h. 1 Article.318 of the Criminal Code of the Russian Federation in the state of insaneness and on the use of compulsory medical measures in the form of treatment in a general type psychiatric hospital. The criminal case was returned to the prosecutor of the Lukoyansky district of the Nizhny Novgorod region to eliminate the obstacles to its consideration by the court of first instance. The basis for the adoption of the appellate instance of such a decision was the violated right of R. on defense.

According to the criminal case materials, July 17, 2013, the provisional authority was submitted a decree on the appointment of R. forensic psychiatric examination, due to its inadequate behavior and the presence of a mental illness in the form of a paranoid form of schizophrenia, a continuous type of flow, which was registered with Psychiatrist doctor at the place of residence. At the same time, the defender R. was not appointed. On the same day, R. was questioned as a suspect also without a defender and without a legal representative.

The above circumstances, as unconditionally not providing R. proper level of protection of its interests, are based on the conclusion of the court on the need to return the business to the prosecutor.

4) Violation of the right of a minor accused, suffering from mental disorder, for protection, since he was interrogated without the participation of a teacher or psychologist.

In accordance with paragraph 3 of Article 425 of the Code of Criminal Procedure of the Russian Federation during the interrogation of a minor suspect, accused, who has not reached the age of 16, or has reached this age, but suffering from a mental disorder, or the participation of a teacher or psychologist, which suffers in mental development. At the same time, the teacher or psychologist is entitled with the permission of the investigator, the investigator to ask questions to a minor suspect, accused, and at the end of the interrogation to get acquainted with the interrogation protocol and make written comments on the correctness and completeness of the records made in it.

By the decision of the Dzerzhinsky City Court of the Nizhny Novgorod region of September 10, 2014, the prosecutor was returned to the criminal case against S., accused by paragraph. "A" part 3 of Article 158 of the Criminal Code of the Russian Federation. In violation of the requirements of paragraph 3 of Article 425 of the Code of Criminal Procedure, the investigation authorities, having information that the minor defendant suffers from mental disorder, discovers signs of early organic brain damage with light intellectual insufficiency, psycho-like behavior, studying in a special school, interrogated a minor without Participation of the teacher or psychologist.

5) procedural actions on the case (familiarization of the accused and his defender with the materials of the criminal case, the permission of the petitions, drawing up the indictment), was carried out beyond the established deadlines for the preliminary investigation.

By the decision of the Prioksky District Court of Nizhny Novgorod dated December 29, 2014, the prosecutor was returned to the criminal case on charges of N. under Part 1 of Article 111 of the Criminal Code to eliminate the violations of the Criminal Procedure Law.

The basis for the adoption of such a decision was that after the end of the term of the preliminary investigation in the case, the investigator acquainted the accused and his defender with the criminal case materials, allowed the petition, amounted to an indictment and sent a criminal case to the prosecutor to approve the indictment. At the same time, it was taken into account that according to the provisions of Part 2 of Article 162 of the Code of Criminal Procedure of the Russian Federation, during the term of the preliminary investigation, the time from the day of initiating a criminal case and up to the day of its direction to the prosecutor with the accusatory conclusion. Since the preliminary investigation period was established only until 12/03/2014, then after the specified date, the investigator did not have legal grounds for the production of any investigative or procedural actions in the case.

Given the procedural insignificance of such an indictment, the court returned the case to the prosecutor in accordance with Article 227 of the Code of Criminal Procedure.

6) The criminal case entered the court with a violation of the rules of jurisdiction.

The appeal decision of the Nizhny Novgorod Regional Court of 31.07.2014 canceled the verdict of the Dzerzhinsky City Court of the Nizhny Novgorod Region of January 15, 2014 against S., convicted under Part 2 of Article 159.4 of the Criminal Code of the Russian Federation, the criminal case was returned to the prosecutor of Dzerzhinsk Nizhny Novgorod region to eliminate the obstacles to his consideration The court, since the criminal case was considered with violation of the rules of jurisdiction, and the preliminary investigation was carried out with a violation of the rules of intention, which resulted in the legal inconsistency of the indictment and the court decision made on it.

The appellate instance was established that the crime provided for in Part 2 of Article 159.4 of the Criminal Code of the Russian Federation, which was accused by S., was completed in the territory of Nizhny Novgorod. In violation of the provisions of Article 152 of the Code of Criminal Code of Criminal Procedure, a preliminary investigation into the case was carried out by the Ministry of Civil Institution of the Ministry of Internal Affairs of Russia in the city of Dzerzhinsk, and then directed with the indictment in the Dzerzhinsky city court of the Nizhny Novgorod region, which in violation of the provisions of Part 2 of Article 32 of the Code of Criminal Procedure Criminal case with indictment

7) Violation of the Criminal Procedure Law, which was not explained to the accused of an inquiry of the right to take advantage of the rules of chapter 32.1 of the Code of Criminal Procedure on the production of inquiry in abbreviated form entailed the reasons for the criminal case to the prosecutor.

In accordance with Article 226.4 of the Code of Criminal Procedure in the presence of conditions for the production of inquiry in the reduced form before the first interrogation, the investigator is obliged to clarify the suspect right to apply for the production of inquiry in abbreviated form, order and legal consequences The inquiry in the abbreviated form, as in the interrogation protocol of the suspect, the corresponding mark is made.

According to Part 2 of Article 226.4 of the Code of Criminal Procedure, the suspect has the right to declare the petition for the production of inquiry in the abbreviated form no later than 2 days from the day when he was clarified by the right to declare such a petition. The petition for the production of inquiry in the abbreviated form is filed in the investigator in writing And it should be signed by suspect, as well as his defender.

The appeal decree of the judge of the Nizhny Novgorod Regional Court was canceled by the verdict of the Kstovsky City Court of the Nizhny Novgorod region dated September 12, 2014 against B., convicted under Part 1 of Article 228 of the Criminal Code of the Russian Federation. The criminal case is returned to the Kstovsky City Prosecutor, in accordance with Article 237 of the Code of Criminal Procedure, to eliminate the obstacles to its court.

According to the materials of the case, the circumstances that exclude the production of inquiry in the abbreviated form provided for by Article 226.2 of the Code of Criminal Procedure, it was not established. So there were stipulated by law Conditions for the production of inquiry in the abbreviated form. At the same time, from the materials of the criminal case it follows that the convicted B. Before the beginning of its first interrogation, it was not clarified by the right to apply for the production of inquiry in abbreviated form.

The appeal instance, taking into account the position of B., came to the conclusion about the need to cancel the sentence and return of the criminal case to the prosecutor, because at the preliminary investigation stage, violations were allowed, which limited access to the accused to justice, as B. was deprived of the opportunity to choose a more favorable for him The procedure for solving a criminal case, in the context of the production of inquiry in the abbreviated form, provided for by Article 226.9 of the Code of Criminal Procedure of the Russian Federation.

8) not executing the prosecutor of the Code of Code of July 3 of Article 317.5 of the Code of Criminal Procedure of the Russian Federation, in accordance with which a copy of the submission made by the prosecutor's submission of a special procedure for a court session against the accused with which a pre-trial agreement on cooperation is awarded to the accused and his defenders who have the right to submit their comments, Claimed by the prosecutor if there is reasonable.

By the decision of the Shahunsky District Court of the Nizhny Novgorod region of 05.11.2014, the criminal case was returned to P. accused under Part 3 of Article 159 of the Criminal Code of the Russian Federation, since the Prosecutor did not fulfill the requirements of Part 3 of Article 317.5 of the Code of Criminal Procedure - not a copy of the submission of special The order of the court session to the accused and defender. This violation at the time of the preliminary hearing was not eliminated.

In some cases, the decision to return a criminal case, on the basis of paragraph 1 of Part 1 of Article 237 of the Code of Criminal Procedure, when considering it in a special procedure of a trial, adopted by the court without the cessation of a special order and without appointing the consideration of the criminal case in a general manner.

Thus, by the decision of the Dzerzhinsky City Court of the Nizhny Novgorod region dated January 28, 2014, the prosecutor was returned to the criminal case against V. accused under Part 1 of Article 228 of the Criminal Code of the Russian Federation to eliminate the obstacles to his court.

At the same time, the court indicated that in the formulated body of the inquiry to accusing the illegal acquisition and storage without the purpose of selling plants containing narcotic drugs in a significant amount, the amount, weight and size of the acquired by the defendant plant - hemp, and weight and size are indicated in relation to narcotic drugs Means - cannabis (marijuana); Grinding, drying or rubbing drug-containing plants, as a result of which the chemical structure of the substance does not change, cannot be considered as the manufacture of narcotic drugs.

Under such circumstances, the court came to the conclusion that the accusation of the criminal procedure law was admitted to the accusatory act of a criminal procedure law, the non-specific charges cannot be eliminated during the trial of the case, which eliminates the possibility of a judgment by the court or other decision on the basis of This indictment.

The appeal decision of the Nizhny Novgorod Regional Court dated March 20, 2014, this resolution was canceled, the criminal case was sent to the court to a new consideration, since the criminal case was considered in a special procedure of the trial and the court was not entitled to investigate and evaluate evidence collected in a criminal case, and could Explore only circumstances characterizing the person of the defendant and the circumstances mitigating and aggravating punishment.

At the same time, establishing significant violations of the criminal procedure law in the preparation of the indictment, the non-specific accusation, the court should have ceased to be a special procedure and appoint a criminal consideration in general, during which the issue of the need to implement the provisions of Article 237 of the Code of Criminal Procedure of the Russian Federation.

In addition, in the judicial practice of the courts of the region for 2014, there were cases of unfounded return of the criminal case to the prosecutor, with reference to paragraph 1 of Part 1 of Article 237 of the Code of Criminal Procedure, based on the procedural deficiencies not confirmed by the case file.

By the decision of the Canvine District Court of Nizhny Novgorod dated 09.04.2014, the criminal case was returned to the prosecutor on charges of B., I. in the commission of crimes provided for by PP "A, B" Part 5 of Article 290, Part 4 of Article 33, paragraph "B" part 4 of article 228.1, Part 1 of Article 286 of the Criminal Code, on charges of S. and P. in the commission of crimes provided for by PP "A, B" Part 3 of Article 228.1 of the Criminal Code of the Russian Federation for the following grounds: in familiarization of the criminal cases of the criminal case, they did not provide material evidence; In violation of Part 2 of Article 16 of the Code of Criminal Procedure of the Russian Federation, the party is not clarified by the right to be accused pretrial agreement on cooperation, in connection with which their right to judicial protection and access to justice were violated; When familiarizing with the materials of the criminal case, the accused B., who declared a petition about his interrogation using a polygraph, the accusation side was unreasonably refused to satisfy this petition, in connection with which he was defeated rights Express your attitude and give indications upon charges.

At the same time, the appellate decree dated July 24, 2014 it was established that the acquaintance of the accused with the materials of the criminal case was carried out in accurately compliance with the requirements of Article 217 of the Code of Criminal Procedure, with the participation of defenders; In each record of familiarization with the case file, there is an entry that the accused and their lawyers did not want to get acquainted with real evidence. No petitions in this part of the security side are not stated.

Received following the results of familiarization with the case file, from the defender of the accused B. lawyer A. Application on the recognition of a part of evidence unacceptable, on conducting interrogation B. using a polygraph, on holding a linguistic examination of the investigator in accordance with the requirements of the law, with the decisions of the motives adopted solutions.

After charged, B. was interrogated as the accused, but the testimony refused the testimony, during the entire investigation about the additional interrogation did not apply. From the stated accused the petitions it follows that he puts the question of not an additional interrogation, but to interrogate it using a polygraph. At the same time, during the preliminary investigation, the accused B. has already refused to interrogate using a polygraph, indicating that it does not trust the polygraph at the disposal of the Investigative Committee.

It was recognized unfounded and the conclusion about the violation of the right of defendant for protection due to not explaining the provisions on the conclusion of a pre-trial agreement on cooperation, since the accused who denied their guilt and did not want to testify in the case, thereby have formed their position in relation to the prosecution What excluded the implementation of the provisions of Chapter 40.1 of the Code of Criminal Procedure of the Russian Federation.

During the summarization of the judicial practice, other cases of the unreasonable return of the case of the prosecutor in the motive of violations by the consequence of the provisions of Article 2220 of the Code of Criminal Procedure of the Russian Federation were revealed.

So, by the Resolution of the Soviet District Court of Nizhny Novgorod, the prosecutor was returned to the prosecutor's criminal case on charges of the crime, provided for by Part 2 of Article 162 of the Criminal Code, due to the improper establishment of data on the victim K., not residing on the indexed conclusion addresses.

At the same time, the court referred to the provisions of P.8 Part 1 of Article 2220 of the Code of Criminal Procedure of the Russian Federation, according to which the investigator indicates the data on the victim in the indictment.

At the same time, the conclusion of the court on the inadequate identification of the identity of the victim K. does not comply with the actual circumstances of the case, since the materials there is a photocopy of the passport of the victim, containing information about its place of residence. From the case file it follows that during the preliminary investigation with the participation of the victim investigative actions And she was familiar with the case file. At the same time, the court of appeal came to the reasonable conclusion that the failure to appear on challenges to the court does not indicate the inadequate impositions of the preliminary investigation authorities on its personality.

By virtue of the above, the appellate instance by its decree dated November 25, 2014 sent materials to a new judicial consideration.

By the decision of the Borskiy City Court of the Nizhny Novgorod region dated 07.10.2014, the prosecutor was returned to the prosecutor's criminal case on charges of G. "D" Part 2 of Article 111 of the Criminal Code of the Russian Federation.

The basis for the adoption by the court of first instance of such a decision was that it was impossible to degrade from what strikes of the accused. The victim P. was caused by corporal damage, which caused the most harm of the health of the latter, since proceeding from the charges, G. struck by P. in the house, on Porch at home, on the territory of the household or other place. At the same time, the Court referred to the conclusion of a forensic medical examination, according to which the injuries of the victim were a consequence of a complex of strikes applied to him.

The Appeals Resolution of the Nizhny Novgorod Regional Court of 02.12.2014 is canceled by this decision, the criminal case is aimed at a new judicial review from the stage of the trial. The court of appeal proceeded from the fact that the circumstances specified in the court decision was not an obstacle to the court, since the decision to attract the accused and the indictment contains the information listed in Article 220 of the Code of Criminal Procedure, and a description of the circumstances of the commission of crime , qualified by the preliminary investigation authority under paragraph "D" part 2 of Article 111 of the Criminal Code, corresponds to the charges against him. When identifying individual inconsistencies in the proofs presented, the court of first instance was supposed to give them an assessment in the final decision, in itself the specified circumstance did not exclude the possibility of solving the judge.

By the decision of the Soviet District Court of Nizhny Novgorod dated 03.02.2014, at the initiative of the court, the prosecutor was returned to the prosecutor's criminal case on charges of a crime under Part 2 of Article 228 of the Criminal Code of the Russian Federation - in illegal acquisition and storage without the goal of the sale of narcotic drugs in large .

Taking a decision on the return of the criminal case to the prosecutor, the court indicated that the basis for the adoption of such a decision was the violation of the provisions of paragraph 3 of Part 1 of Article 2220 of the Code of Criminal Procedure, in the preparation of the indictment, namely, at the indictment, the investigator did not establish the time and method of acquiring them narcotic drug at an unspecified person.

Canceling the decision, the appellate court of the Nizhny Novgorod Regional Court indicated that during the preliminary investigation, exhaustive measures were taken to establish the circumstances to be proof in a criminal case. Returning the case to the prosecutor due to the need to establish the time and method of acquiring drugs, the court on its own initiative actually proposed a preliminary investigation authority to collect additional evidence in favor of the accusation that it is unacceptable. Meanwhile, the court had to consider the case on the merits, to evaluate the evidence collected, and resolve the issues specified in Article 26 of the Code of Criminal Procedure.

2. In accordance with paragraph 2 of Part 1 of Article 237 of the Code of Criminal Procedure, the foundation for the return of the criminal case the prosecutor is the inferiority of the accused copy of the indictment (Act, Resolution), except if the court recognizes the rightful and reasonable decision of the prosecutor adopted by it In the manner prescribed by Part 4 of Article 222 or Part 3 of Article 226 of the Code of Criminal Procedure.

According to the provisions of the Criminal Procedure Law, a copy of the indictment (act, decree) is awarded by the accused after approval of the indictment (Act, Resolution) by the prosecutor (part 2 of article 222, part 3 of article 226, part 3 of Article 226.8 of the Code of Criminal Procedure ).

Taking into account the value of the indictment of the final procedural document in the pre-trial production stage, the inference to his accused significantly infringe on his right to defense, deprives the ability to provide it with the necessary level of organizational and procedural measuresensuring the effectiveness of such protection in court.

In each particular case, it is necessary to take into account the position of the accused and find out for which reasons the accused was not awarded a copy of the indictment (act, decrees), whether the refusal to receive it in writing was decorated whether the failure of the accused to receive it was documented.

By Decree of the Plenum of the Supreme Court of the Russian Federation dated December 22, 2009, the provisions of this provision were refined. Plenum, in particular, indicates that it is not a reason for the return of the criminal case to the prosecutor, the complete absence in the case of the case of information about the presentation of the replica of these acts to the accused, provided that the accused himself claims that the documents nameded were presented (paragraph 15).

Cases of the return of the criminal case under the indicated foundation took place in judicial practice for 2014.

By the decision of the Lyskovsky District Court of the Nizhny Novgorod Region of 11.11.2013, a criminal case was returned to the prosecutor's office on charges of N. under Part 1 of Article 111 of the Criminal Code of the Russian Federation. The basis for the adoption of such a decision by the court was the fact that the defendant N. was not awarded a copy of the typewriting text of the indictment, which was stated at the court hearing of the protection.

The appeal decree of the Nizhny Novgorod Regional Court dated January 14, 2014, although it was canceled, with the direction of a criminal case for a new consideration in the same court, however, as the basis for such a decision, the court of a second instance indicated that at the time of revision of the decision on appeal, the above The violation is eliminated, the accused was awarded a copy of the indictment in typewritten form, which follows from its receipt.

A similar approach to the permitting of the legal situation is detected by the courts and in cases of failure to persons listed in Article 433 of the Code of Criminal Procedure of the RF decision on the direction of the case for the application of forced medical measures (Ch. 6 Article 439 of the Code of Criminal Code of the Russian Federation).

Thus, by the Decree of the Arzamas City Court of the Nizhny Novgorod region dated October 13, 2014, the prosecutor's criminal case was observed with the decision to apply forced medical measures against W., since a copy of this resolution was not awarded to a person in respect of which proceedings are underway to apply forced medical measures.

3. Formed in the Nizhny Novgorod region, the judicial practice of returning criminal cases to the prosecutor in accordance with paragraph 4 of paragraphs 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation, in cases where there are provided for Article 153 of the Code of Criminal Procedure of the RF for criminal connection , it comes from whether the prosecutor's prosecutor comes compensation for its compound with another case is possible not only in the case of separate directions to the court, at the end of the preliminary investigation, but also for a connection with another case at this point in the production of the preliminary investigation authority.

Resolutions of the Urensky District Court of the Nizhny Novgorod region 24.10.2014 and from 10/27/2014, a criminal case against V. accused under Part 2 of Article 162, Part 3 of Article 162, paragraph. "B" Part 4 of Article 162 (2 episode), part 3 of Article 30, p.p. "B, G" Part 2 of Article 161 of the Criminal Code of the Russian Federation, and another criminal case against E. and Ch., Accused of part 2 of Article 162, Part 3 of Article 162, paragraph. "A". Article 162 of the Criminal Code (2 episode) was returned to the prosecutor to fulfill the requirements of paragraph 1 of Part 1 of Article 153 of the Code of Criminal Procedure and the elimination of obstacles to their consideration by the court.

The basis for the adoption of such a decision was the cessation of a special procedure for consideration of the criminal case against V. in the framework of the pre-trial agreement on cooperation and the appointment of the criminal case in general procedure for criminal proceedings. At the same time, the court reasonably considered that the joint consideration of these two criminal cases against the defendants accused of the crimes committed by them in the complicity of a group of persons on the preliminary conspiracy will help ensure the completeness and objectivity of the study of the circumstances of crimes.

This practice is consistent with the provisions of paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 28.06.2012 No. 16 "On the practice of applying the courts of a special procedure for the trial of criminal cases when concluding a pre-trial agreement on cooperation."

4. In 2014, criminal cases were returned to the prosecutor and in accordance with paragraph 5 of Part 1 of Article 237 of the Code of Criminal Procedure (in case, when familiarizing with the materials of the criminal case, the accused did not explain the rights provided for by Part 5 of Article 217 of the Code of Criminal Code of the Russian Federation).

According to cp.4, 5 tbsp. 217 Code of Criminal Procedure At the end of the inferior to the accused and his defender with the materials of the criminal case, the investigator finds out what their petitions or other statements have.

Guided by Part 2 of Article 218 of the Code of Criminal Procedure of the Russian Federation in the protocol is made to an explanation of the accused of its rights provided for by Ch. 5 Article 277 of the Code of Criminal Procedure of the Russian Federation, and its desire to take advantage of these rights or refuse them.

By the decision of the Visa City Court of the Nizhny Novgorod region dated July 01, 2014, the prosecutor was returned to the prosecutor's criminal case on charges of G. under Part 3 of Article 30, paragraph. "A" part 3 of Article 228.1, part 3 of Article 30, p. "G" part 4 of Article 228.1 of the Criminal Code, since the accused after familiarization with the materials of the case was not clarified by the rights provided for by Ch. 5 of Article 217 of the Code of Criminal Procedure, which limited them in the implementation of its procedural powers, including the right to receive preferences within Advanced accusations against them.

5. Formation of judicial practice of the return of the criminal case to the prosecutor, taking into account the provisions of paragraph 1 of Part 1 of Article 237 of the Code of Criminal Procedure, introduced by the Federal Law of 26.04.2013 No. 64-ФЗ, is carried out as follows.

In accordance with paragraph 1 of Part 1 of Article 237 of the Code of Criminal Procedure, the judge at the request of the parties returns a criminal case to the prosecutor to eliminate obstacles to its consideration by the court in cases if: after the direction of the criminal case, new socio-hazardous consequences The incriminated accused acts, which are the basis for the prosecution of a more serious crime.

To return the case, the prosecutor in accordance with this norm of the law must be respected by the following conditions:

New socially and dangerous consequences have come after the direction of the criminal case;

Social and hazardous consequences should be new, that is, not known and not existing at the time of the formation by the authority of the prior investigation;

New consequences are the grounds for presenting accused of committing a more serious crime.

In such cases, the criminal case is returned to the prosecutor for accounting in the formation of the accusation of previously not existing consequences of the crime, which determine the possibility of changing the position of the accused.

At the same time, the legislator proceeds from the fact that the failure to decide on the return of the criminal case to the prosecutor in the identification of previously not existing consequences would exclude the proper protection of the rights of the victim.

By the decision of the judge of the Kulebak city court of the Nizhny Novgorod region dated February 26, 2014, the criminal case was returned against the city of the accused of committing a crime under Part 3 of Article 264 of the Criminal Code of the Russian Federation.

Returning criminal case to the prosecutor, the court of first instance proceeded from the fact that the G. was charged with a violation by the person managed by the car, the rules road, entailed by negligence causing grievous harm to human health (in relation to the victim R.) and caused the death of a person (victim of M.) by negligence.

Meanwhile, at the court hearing, the prosecutor presents the court to the conclusion of forensic medical examination, according to which the victim R. died after the direction of a criminal case in court, and the cause of his death is directly related to injuries obtained as a result of a traffic accident. Thus, there were new actual circumstances that were not reflected in the indictment. Under such circumstances, the court, seemingly in the actions of the city of signs of a more serious crime, returned the criminal case to the prosecutor in accordance with paragraph 1 of Part 1 of Article 237 of the Code of Criminal Procedure, to eliminate the obstacles to his court.

6. Judicial practice of the return of the criminal case to the prosecutor on the basis of P.6 Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation.

The judges will return the criminal case to the prosecutor if the actual circumstances set forth in the indictment (act, decree, decree on the direction of a criminal case into court for the application of a compulsory medical measure) indicate the availability of grounds for the qualifications of the accused (persons in respect of which production is carried out The application of a compulsory medical measure), as a more serious crime (socially dangerous act), or during a preliminary hearing or trial, evidence was established, indicating the presence of grounds for the qualification of the actions of these persons as a more serious crime (socially dangerous act).

Despite the fact that P.6 Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation was introduced only by Federal Law No. 269-FZ 21.07.2014, the implementation of the above issues was carried out by the courts of the region, based on the decision of the Constitutional Court of the Russian Federation of 02.07.2013 No. 16-P "In the case of the verification of the constitutionality of the provisions of part 1 to become 237 of the Code of Criminal Procedure in connection with the complaint of a citizen of the Republic of Uzbekistan B.T. Gadaeva and the request for the Kurgan Regional Court ", which clarified the relevant aspects of the procedure for refunding the prosecutor.

By the decision of the Nizhny Novgorod District Court of Nizhny Novgorod dated August 26, 2014, the prosecutor was returned to the criminal case against L., accused under Part 1 of Article 228 of the Criminal Code of the Russian Federation. In the course of the court session, this case found that the qualifications of the deed did not comply with the description of the criminal act, as described in the indictment act, the content of which is obviously the need to present a more serious accusation, which cannot be implemented within the framework of the trial, based on The requirements of Article.252 of the Code of Criminal Procedure of the Russian Federation.

By the decision of the Arzamas City Court of the Nizhny Novgorod region of August 15, 2014, the prosecutor was returned to the criminal case on charges of B. in the commission of 44 crimes provided for by Part 3 of Article 159 of the Criminal Code of the Russian Federation.

The basis for the adoption by the court of such a decision was the petition of the state prosecutor about the return of the criminal case to the prosecutor for the presentation of B. more serious accusation, since the actual circumstances set out in the indictment and established by the court indicate the presence in its actions not 44 identical independent crimes, and a single continued crime, provided for by Part 3 of Article 159 of the Criminal Code of the Russian Federation, with the imputation of a qualifying sign of fraud "in large amount", which previously B. was not imputed.

The opposite legal situation is stated by the Resolution of the Nizhny Novgorod District Court of Nizhny Novgorod dated August 25, 2014 on the repaid of the prosecutor of the criminal case on charges of B. under Part 4 of Article 159, Part 3 of Article 30, Part 3 of Article 159 of the Criminal Code of the Russian Federation, . under Part 4 of Article 159 of the Criminal Code of the Russian Federation, Ya. under Part 3 of Article 33, Part 4 of Article 159 of the Criminal Code of the Russian Federation.

According to the prosecution of the embezzlement money As part of an organized group, the above faces were carried out in the period from May to September 2012 at different times, with the help of various borrowers and from different sources.

In the meaning of the law, within the framework of a single continued crime, situations should be considered when the embezzlement is committed with a single intent, which is aimed at illegally withdrawal as much as possible, by committing a number of identical crimes in a short period of identifying property from the same source and The same way.

Meanwhile, from the actual circumstances of the case set forth in the indictment, the Court saw that theft of cash was carried out at a long period of time - for several months, using different submersible persons - borrowers, from various banks and different car dealerships, that is, from different Sources.

According to the court, the qualifications of the actions of the accused as a single continued crime contradict the actual circumstances of the case set forth in the indictment.

Returning the criminal case to the prosecutor on the basis of paragraph 6 of Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation, the court is obliged to establish and indicate in the decision of the circumstances that are the basis for the qualifications of the actions of the accused as a more serious crime.

This requirement directly follows from Part 1.3 of Article 237 of the Code of Criminal Procedure of the Russian Federation.

However, this prescription is not always implemented. By the decision of the judge of the Arzamas City Court of the Nizhny Novgorod Region dated July 24, 2014, the prosecutor was returned to the criminal case against N. accused under Part 1 of Article 111, Article 161 of the Criminal Code of the Russian Federation.

At the same time, as established by the verification, the judge at the hearing was investigated, all evidence submitted by the parties were investigated: the defendant N. and the victim K. were examined, the witnesses were also examined, written evidence was also examined, including expertise's conclusion. The above evidence is given in the decision on the return of the criminal case to the prosecutor, their content is disclosed.

At the same time, restricted only to the judgment that the actual circumstances specified in the indictment indicate the presence of a more serious crime in the actions of N. composition, the court ruled to return the criminal case to the prosecutor to eliminate the obstacles to his court.

At the same time, the resolution does not indicate which the factual circumstances are established by the court, which are the basis for the qualifications of the actions of the accused N. as a more serious crime, the requirements of the law in this part are not fulfilled.

7. Finally, the generalization was also revealed that the returning criminal case to the prosecutor, the court establishes it to the obligation to ensure the elimination of violations for 5 days, which does not comply with the provisions of Article 237 of the Code of Criminal Procedure.

Thus, in the ruling of the Canvinsky District Court of Nizhny Novgorod from 09/03/2014 on the return of the criminal prosecutor of the criminal case against S., accused of committing a crime, provided for by Part 1 of Article 228 of the Criminal Code of the Russian Federation, the court ordered the prosecutor within 5 days to ensure the elimination of admitted violations.

The generalization showed that this example in the judicial practice of the return of criminal cases to the prosecutor for 2014 is united.

The establishment of the prosecutor of the specified period to eliminate violations is not based on the law, since in accordance with Federal Law No. 216-FZ dated 02.22.2008, Part 2 of Article 237 of the Code of Criminal Procedure, providing for the establishment of such a term.

Summarizing the above, it is necessary to state that judges must carefully and systematically study the current legislation and judicial practice on the return of criminal cases to the prosecutor, effectively implementing their powers in this area. judicial activity, in properly responding to all violations of the law, admitted to the production of a preliminary investigation and preventing the submission of a court decision.