The end of the preliminary investigation concept and types. The concept and types of the end of the preliminary investigation. Completion of the preliminary investigation by drawing up an indictment and indictment. Familiarization of the accused and his defense
The end of the preliminary investigation is the final stage of the stage preliminary investigation, which formulates the final charge to be tried in court. This form the end of the investigation differs from other forms in the decision to send the case to court in order to bring the accused to criminal responsibility. The preliminary investigation ends with the issuance of an indictment, and the inquiry ends with an indictment.
At the end of the preliminary investigation in this form, the following tasks are solved:
Checking the quality of the pre-trial preparation of materials for the formation final indictment or abandoning it;
Ensuring the right of the parties to familiarize themselves with the case materials and the application of related petitions;
V necessary cases- supplementing the materials of the criminal case at the request of the parties.
The criminal procedure law calls the production of all investigative actions and the sufficiency of evidence (part 1 of article 215 of the CCP). However, these grounds require an extensive interpretation. For the transfer of the case to the court, its comprehensive preliminary preparation is required, therefore, the grounds for the completion of the investigation with the preparation of the indictment arises when the following requirements are simultaneously observed.
1. Availability of sufficient evidence for the consideration of the case in court.
There is sufficient evidence to send the case to court, provided that the following conditions are met:
The circumstances of the case underlying the accusation were reliably (in the opinion of the investigator) established by the evidence;
Along with the guilt of the accused of committing a crime, all other circumstances have been established to be proven in a criminal case (Article 73 of the CCP): circumstances characterizing the personality of the accused, the nature and amount of harm caused by the crime, mitigating and aggravating circumstances, circumstances that contributed to the commission of the crime;
The substantiated petitions of the defense to collect exculpatory evidence were satisfied. In any case, the indictment must contain a list of evidence referred to by the defense, as well as a list of those to be summoned to judicial sitting persons on the part of not only the prosecution, but also the defense (clause 6 of part 1, part 4 of article 220).
2. The accused did not hide from the investigation and the court. Otherwise, the preliminary investigation must be continued to overcome this obstacle or suspended.
3. Procedural rights of the parties are secured. Thus, the participation in the case of the defendant's defense lawyer must be ensured when it is mandatory (Article 51). If there are significant procedural violations the main procedures (first of all, the presentation of charges, familiarization of the relevant participants in the process with the materials of the criminal case, etc.), the preliminary investigation cannot be completed. It should be continued to restore the violated rights, and if it is impossible, it should be terminated. For example, a violation of the procedure for bringing a person as an accused prevents the case from being sent to court even with sufficient evidence (there is no order to bring a person as an accused; charges were not brought or brought without a defense lawyer, when his participation was mandatory; the accused was not interrogated; the interpreter did not participate in the case and the accused does not speak the language of the proceedings).
Procedure for ending the preliminary investigation
The procedural procedure for ending the preliminary investigation by drawing up an indictment includes the following stages:
1) the systematization of the materials of the criminal case (bringing them into a "filed and numbered" form - part 1 of article 217);
2) notifying the parties about the end of the preliminary investigation and explaining to them the right to familiarize themselves with the case materials (parts 1, 2 of article 215);
3) familiarization with the materials of the case of the victim, civil plaintiff, civil defendant and their representatives in the presence of a corresponding petition (Article 216);
4) familiarization of the accused and his defense lawyer, legal representative with the materials of the criminal case (Article 217);
6) the actions and decisions of the prosecutor in the case filed with the indictment (Articles 221, 222).
The end of the preliminary investigation is its final stage, at which the final decision for this stage is made.
The preliminary investigation ends: a) drawing up a resolution to dismiss the case, including sending materials to the court for the application of measures administrative penalty; b) drawing up an indictment; c) drawing up an indictment; d) drawing up a resolution on sending the case to the court for considering the issue of applying compulsory measures medical nature.
A criminal case with an indictment (indictment), with a decision on the application of a compulsory medical measure, is sent to the court through the prosecutor.
Let us first consider the termination of the criminal case and criminal prosecution.
Termination of a criminal case is the final decision of the preliminary investigation stage, by which the criminal case is resolved on its merits.
Termination of criminal prosecution is a refusal by the prosecution to continue procedural activities to expose a suspect accused of committing a crime.
A criminal prosecution can only be terminated by a criminal prosecution body (investigator, prosecutor), and a criminal case may also be terminated by a court. The prosecution is terminated in relation to specific suspects and accused, and the criminal case is terminated in general on all facts.
Criminal case and criminal prosecution are terminated if there are grounds provided for in Art. 24 - 25, 27 - 28 of the Code of Criminal Procedure of the Russian Federation.
Article 24 of the Code of Criminal Procedure of the Russian Federation lists the following grounds for terminating a criminal case:
absence of a crime event;
absence of corpus delicti in the act;
expiration of the statute of limitations for criminal prosecution;
death of a suspect or accused;
lack of a victim statement in private prosecution cases;
6) the absence of a court opinion on the presence of signs of a crime in the actions of one of the persons specified in paragraphs 1, 3 - 5, 9 and 10 of Part 1 of Art. 448 of the Code of Criminal Procedure of the Russian Federation, or the lack of consent of the Federation Council, respectively, The State Duma, The Constitutional Court RF, qualification board judges to initiate a criminal case or to attract as an accused one of the persons specified in paragraphs 1 and 3 - 5 h. 1 of Art. 448 of the Criminal Procedure Code of the Russian Federation.
According to Art. 25 of the Code of Criminal Procedure of the Russian Federation, the court, the prosecutor, as well as the investigator and the interrogating officer, with the consent of the prosecutor, have the right to terminate the criminal case for the reconciliation of the parties, if the person has committed a minor crime or moderate, made peace with the victim and made amends for the harm caused to him.
According to Art. 27 of the Code of Criminal Procedure of the Russian Federation, criminal prosecution against a suspect or accused is terminated on the following grounds:
Non-involvement of the suspect or the accused in the commission of the crime;
Termination of the criminal case on the grounds provided for in clauses 1 - 6 h. 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation;
As a result of the amnesty act;
The presence in relation to the suspect or the accused who entered into legal force a verdict on the same charge or a court ruling or a judge's order to terminate a criminal case on the same charge;
The presence of an uncancelled decision of the body of inquiry, investigator or prosecutor against a suspect or accused to terminate a criminal case on the same charge or to refuse to initiate a criminal case
Refusal of the State Duma Federal Assembly RF in giving consent to the deprivation of immunity of the President of the Russian Federation, who has terminated the exercise of his powers, and the refusal of the Federation Council to deprive of immunity of this person.
Criminal prosecution against a person who has not reached the age at which criminal responsibility occurs by the time of the commission of the act stipulated by the criminal law shall be terminated due to the absence of corpus delicti in the act (Art.
3 tbsp. 27 of the Criminal Procedure Code of the Russian Federation).
According to Art. 75 of the Criminal Code of the Russian Federation and Art. 28 of the Code of Criminal Procedure of the Russian Federation, the court, the prosecutor, as well as the investigator and the interrogating officer, with the consent of the prosecutor, have the right to terminate criminal prosecution against a person who first committed a crime of small or medium gravity, if after the commission of a crime he voluntarily confessed, contributed to the disclosure of the crime, compensated for the damage caused or otherwise in this way, she made amends for the harm caused as a result of the crime, and as a result of active repentance ceased to be socially dangerous.
In the theory of criminal procedure, there are different classifications termination of criminal cases. The most important of these is the classification of termination of cases on rehabilitating and non-rehabilitating grounds. Rehabilitating grounds (from Latin - restoration good name, reputation) is the absence of a crime event, the absence of corpus delicti in the act. All other grounds for terminating the case are non-rehabilitating.
The termination of a criminal case and criminal prosecution is formalized by a resolution, the structure and content of which are regulated by Art. 213 of the Criminal Procedure Code of the Russian Federation. In this decree, a decision must be made to cancel the preventive measure, as well as the seizure of property, correspondence, suspension from office, control and recording of negotiations; on material evidence. In addition, in the cases provided for by law, the decision must reflect the consent of the accused or the victim to terminate the criminal case. A copy of the decision is sent to the prosecutor; a person in respect of whom the criminal prosecution has been terminated; the victim; civil plaintiff; to the civil defendant.
From the meaning of Art. 214 of the Code of Criminal Procedure of the Russian Federation, it is clear that only a prosecutor can cancel a decision to terminate a criminal case or criminal prosecution, made at the stage of preliminary investigation, and resume proceedings on a case.
The procedure for drawing up an indictment has already been discussed in the chapter "Preliminary investigation".
Let's move on to the grounds and procedure for ending the preliminary investigation with the indictment.
The grounds for completing the preliminary investigation and drawing up an indictment is the establishment of all the circumstances to be proved in the case (Article 73 of the Code of Criminal Procedure of the Russian Federation), and the absence of circumstances leading to the termination of the case or criminal prosecution (Articles 24-25, 27-28
The compilation of the indictment is preceded by the fulfillment of the requirements of Art. 216 - 219 of the Code of Criminal Procedure of the Russian Federation. The investigator is obliged to notify the end of the investigation and familiarize the victim and his representative, the civil plaintiff and the civil defendant or their representatives, the accused and his defense counsel with the case. A special protocol is drawn up about this. In this case, it is necessary to keep in mind the following legal provisions: 1) among the listed participants, the accused and his defense counsel are the last to get acquainted with the case; 2) the victim, civil plaintiff, civil defendant and their representatives get acquainted with the case in whole or in part only if there is a request for this; 3) the accused and his defense counsel have the right to write out any information and in any volume, to make copies of documents using technical means; 4) the law allows separate familiarization of the accused and the defense attorney with the case materials; 5) the materials of the case are presented for review in a filed and numbered form; 6) the filming and sound recording materials attached to the case are reproduced to all the listed participants in the process; 7) after familiarization with the case, each of the participants has the right to submit oral or written requests, the first of which are entered into the minutes, and the second are attached to the case; 8) in case of full or partial refusal to satisfy the petition, the investigator issues a reasoned decision on this, which is announced to the person who filed the petition; 9) upon satisfaction of the petition to supplement the investigation, the investigator is obliged to repeat the fulfillment of the requirements of Art. 216 - 218 of the Code of Criminal Procedure of the Russian Federation.
After fulfilling the listed requirements, the investigator proceeds to draw up the indictment. An indictment is a final procedural document that sets out the course and results of an investigation. The meaning of this act lies in the fact that it gives the social and legal characteristics of the crime and the person who committed it; the principle of inevitability of punishment is implemented; the investigation materials are systematized and the limits judicial trial; the implementation of the right of the accused to defense is ensured.
The indictment contains the following information with references to sheets and volumes of the case:
information about the identity of each of the accused;
the nature of the charge, the place and time of the crime, its motives and goals (plot of the case);
the wording of the charge brought against each of the accused with the definition of the exact qualification of the crime, indicating the point, part, article of the Criminal Code of the Russian Federation;
list of evidence referred to by the defense;
circumstances aggravating and mitigating punishment in relation to each accused (art. 61
and 63 of the Criminal Code of the Russian Federation);
data on the victims, the nature and amount of harm caused to them;
information about the civil plaintiff and the civil defendant.
The indictment is signed by the investigator, indicating the place and date of its preparation.
Attached to the indictment is a list of persons to be summoned to the court session on the part of the prosecution and on the part of the defense, indicating their place of residence.
The indictment is also accompanied by a statement of the progress of the case. It indicates data on the timing of the investigation, on the selected preventive measures, indicating the time of detention, material evidence, civil action, measures taken to ensure civil action, procedural costs. In the help, a link is made to the sheets of the case.
The indictment is made in several copies so that the prosecutor can serve copies to the accused, as well as to the defense lawyer and the victim (if they request this), and keep one copy (part 2 of article 222 of the Code of Criminal Procedure of the Russian Federation).
After signing the bill of indictment, the investigator has no right to add anything to the materials of the investigation. He is obliged to immediately refer the case to the prosecutor.
The actions and decisions of the prosecutor in a criminal case received with an indictment constitute the final stage pre-trial proceedings, which confirms the final charge.
Based on the results of the check, the prosecutor makes one of the following decisions:
1) on the confirmation of the indictment and on the direction of the criminal case to the court. The prosecutor can draw up a new indictment;
to terminate a criminal case or criminal prosecution against individual accused in whole or in part;
on the return of the criminal case to the investigator for additional investigation or re-drafting of the indictment and elimination of the identified deficiencies with their written instructions;
on sending the criminal case to a higher prosecutor for approval of the indictment, if it is within the jurisdiction of a higher court.
The prosecutor has the right: 1) upon approval of the indictment, to change the scope of the charge or the qualification of the actions of the accused under the criminal law for less serious crime; 2) cancel or change the measure of restraint previously chosen by the accused; 3) supplement or shorten the list of persons to be summoned to court, with the exception of the list of witnesses on the part of the defense.
About any the decision the prosecutor must issue a reasoned decision (Art.221
After the approval of the indictment, the prosecutor sends the criminal case to the court, about which he notifies the accused, his defense lawyer, victim, civil plaintiff, civil defendant or their representatives and explains to them the right to file a motion for preliminary
The end of the preliminary investigation is its final stage, at which the final decision for this stage is made.
The final decision determines the types of termination of the investigation (part 1 of article 158 of the Criminal Procedure Code):
1) Termination of the criminal case,
* with an indictment, if the case was inquired in general order,
* with indictment if an inquiry was made in the case in an abbreviated form,
* with an indictment, if a preliminary investigation was carried out in the case,
* with a decision on the application of a compulsory measure of a medical nature, if the investigation was carried out in relation to the insane.
At the stage of the completion of the preliminary investigation, the following tasks are faced:
* check the quality of the pre-trial preparation of materials for the formation of the final charge or rejection of it;
* ensure the rights of the parties to familiarize themselves with the case, to advance their position and present their own evidence;
* if necessary, supplement the investigation materials and eliminate the procedural violations.
Termination of a criminal case and criminal prosecution
Termination of a criminal case is the final decision of the preliminary investigation stage, by which the criminal case is resolved on its merits.
Termination of criminal prosecution is a refusal by the prosecution to continue procedural activities to expose a suspect accused of committing a crime.
A criminal prosecution can only be terminated by a criminal prosecution body, and a criminal case is also entitled to terminate a court. The prosecution is terminated in relation to specific suspects and accused, while the criminal case is terminated in general on all facts. The termination of a criminal case always means the termination of criminal prosecution against all persons under investigation, and the termination of prosecution against one of several accused does not entail the termination of the entire criminal case.
The classification of grounds for dismissal and prosecution is made on several grounds:
According to the structure of the CPC, the grounds are divided into three groups:
* for refusal to initiate a case and grounds for termination of the case (Article 24),
* to terminate criminal prosecution (Art.27),
* termination of a criminal case and termination of criminal prosecution (Articles 25, 28, 28.1.).
By legal implications reasons are:
* rehabilitating (entailing rehabilitation - restoration of rights) and
* non-rehabilitative. Non-rehabilitating grounds imply proof that the accused (suspect) has committed an act, which, as a rule, contains signs of a crime, and are applied under the following conditions: the consent of the accused (suspect) himself, and in some cases - the consent of the manager investigative body or the prosecutor.
By their legal nature, the grounds are divided into groups:
* Factual (indicating the inconclusiveness of the prosecution's arguments): the absence of a crime event, the lack of involvement of the suspect or the accused in the commission of the crime;
* Legal procedural: there is an uncancelled decision on this charge, there is no statement of the victim in a private or private-public prosecution case, there is no consent of special bodies to overcome official immunity;
* Legal criminal law: absence of corpus delicti, death of the accused (suspect), expiration of limitation, amnesty, existence of grounds for exemption from criminal liability.
At the discretion of the law enforcement officer, the grounds are grouped into:
* Circumstances precluding the proceedings, subject to the rule of "lawfulness of the charge." The investigating body is obliged to refuse to initiate or discontinue the case when one of the circumstances of this group is established;
* Circumstances that exempt from criminal liability, subject to the rule of "appropriateness of the charge." The criminal prosecution body has the right, but is not obliged to terminate the criminal case upon reconciliation with the victim, active repentance, compensation for harm in cases of crimes in the field economic activity... Dismissal of the case is allowed for crimes of minor or medium gravity (as a general rule) with the consent of the head of the investigative body or the prosecutor and the absence of objections from the accused.
The procedural procedure for terminating a criminal case and criminal prosecution includes a set of actions for:
* choice of grounds for termination of the case,
* ruling and cancellation coercive measures,
* ensuring the rights of the parties to familiarize themselves with and appeal against this decision and to take, if necessary, measures to rehabilitate the accused or suspect.
The decision to terminate the case or criminal prosecution, made at the stage of preliminary investigation, can be canceled and the proceeding can be resumed by the head of the investigating body - the decision of the investigator, and the prosecutor - the decision of the inquiry officer or the body of inquiry.
Objective 1.
Minors Ivanov and Vlasov were charged with a crime under Part 2 of Art. 158 of the Criminal Code. Ivanov, as a preventive measure, was given surrender under the supervision of parents. Vlasov, a vocational school student whose parents live in another city, has a recognizance not to leave. In order to carry out investigative actions with the participation of both accused, the investigator took steps to summon them.
What is the procedure for summoning a minor accused?
In what cases, by whom and in what order can a preventive measure be changed (canceled)?
1.According to Article 424 of the Code of Criminal Procedure of the Russian Federation, the summons of a minor suspect, accused, who is not in custody, to an investigator, inquirer or to a court, is made through his legal representatives, and if the minor is held in a specialized institution for minors, through the administration of this institution.
2. In accordance with the Beijing Rules, when adjudicating a juvenile case and choosing measures of influence, the court must be guided by the principle of commensurability not only "with the circumstances and severity of the offense, but also with the situation and needs of the juvenile." As stated in the Beijing Rules, “A juvenile offender should not be deprived of his personal liberty unless he is found guilty of committing a serious violent act against another person or repeatedly committing other serious offenses.”
Existing international legal acts concerning the administration of juvenile justice are very humane regarding the application of a preventive measure. For example, as follows from the provisions of the Beijing Rules, pretrial detention of minors is used only as a measure of last resort and for the shortest period of time (Art. 13.1).
Also, the Court has the right to release a minor from punishment with a referral to a special educational or medical and educational institution (Article 402 of the CCP). If, when considering a case of a crime of average gravity, it is recognized that the goals of punishment can be achieved by placing a juvenile who has committed a crime in a special educational or medical and educational institution for minors, the court shall have the right, by deciding a guilty verdict, to release the minor from serving the sentence and in accordance with from st. 92 of the Criminal Code to send him to one of these institutions for a period until he reaches the age of majority.
Objective 2.
Three were accused of robbery against citizens in order to seize personal property. By the end of the preliminary investigation, it turned out that the fourth was with them - Lobov, who did not take part in the criminal actions, but he saw everything and did not report the crime to the police. The crime remained unsolved for a month.
The investigator summoned Lobov to be charged with concealment and, upon establishing personal data, found out that Lobov had turned 18 on the day of the robbery. However, the investigator did not ensure the participation of the defense attorney in this action, explaining his decision by the fact that at the time of the charge Lobov was an adult and, in addition, the investigation period in the case had expired.
Did the investigator do the right thing?
What decision should have been taken if Lomov was charged with two crimes, the first of which he was 17 years old and the second 19 years old?
1. The investigator acted unlawfully in relation to Lobov, charging him with concealment for robbery under Part 2 of Article 162, since there are no signs of corpus delicti in Lobov's actions. Criminal liability is provided for by Article 316 of the Criminal Code of the Russian Federation, which has not been promised in advance to conceal particularly grave crimes.
Objective 2.
Students of the tenth grade Kozlov and Levin were prosecuted for repeated theft of other people's property (part 2 of article 158 of the Criminal Code of the Russian Federation).
All thefts were committed late in the evening or at night. With the money obtained by criminal means, teenagers traveled by taxi, visited nightclubs and discos. While studying the materials of the case, the judge of the district court drew attention to the fact that the parents of the defendants inappropriately fulfilled the duties of raising their children. In both families, there was no control over their behavior, they could come home late at night or not spend the night at all at home. Kozlov's parents abused alcohol. They were not interested in how their son lives, when he is at home and what kind of things he brings home (everything stolen was kept in the apartment). Levin grew up without a father. Lyovin's mother overly spoiled her son, did not show due demands on him.
Such an attitude of parents to raising children, according to the court, was one of the reasons that led adolescents to a criminal path.
What is the importance of establishing the living conditions and upbringing of a minor?
What measures of influence (punishment) can be applied to parents for failure to fulfill their responsibilities for raising a minor?
Make a decision for the judge considering the case of Kozlov and Lyovin
1. Establishment of the living conditions and upbringing of a minor, the level of mental development and other characteristics of his personality is required for a comprehensive study of the physical and mental state of a teenager, the level of intellectual and moral development, and his personality traits. Data on the environment in which the personality of a minor was formed is necessary to establish the motives of the crime, the circumstances associated with his attitude to the deed, to take measures to prevent the commission of other crimes and on the responsibility of parents or educators.
Living conditions and upbringing, the level of mental development and other personality traits of a minor are found out by collecting data about the minor's family, his parents (persons replacing them), about the minor's studies (work), participation in the life of the team, everyday environment, connections, pastime and the circle interests, behavior at home and in everyday life
2. Failure to fulfill obligations means complete inaction, improper performance- mixed inaction, in which the responsibilities of education and control are not performed in in full(lack of due attention to the behavior of a teenager, a complacent attitude to "pranks", constant nagging at the child on a trifling matter and without a reason, etc.).
In itself, non-performance or improper performance of duties is immoral behavior or entailing administrative, property or other legal responsibility... So, Art. 69 of the SK provides for the possibility of deprivation of parental rights, in particular, when the parents (or one of them) evade the responsibility of raising the child.
Failure to perform or improper performance of the educational function becomes a crime if it is combined with cruel treatment of a minor, which is prohibited by law.
In relation to Kozlov's parents, such a measure of punishment as deprivation of parental rights can be applied.
A punishment such as a warning or a fine can be applied to Levin's mother, in accordance with Article 5.35 on administrative offenses
3. Since we are dealing with minors, according to Art. 88 of the Criminal Code of the Russian Federation in relation to Kozlov and Lyovin, the court will impose a sentence in the form of a suspended sentence of up to 5 years, as well as compensation for damage to those who have suffered.
Introduction
1. The concept, essence and types of the end of the preliminary investigation
2. Completion of the preliminary investigation by drawing up an indictment
3. Termination of a criminal case and criminal prosecution
3.1 Concept and grounds for termination of a criminal case
3.2 Procedural procedure for terminating a criminal case
4. Features of the completion of the preliminary investigation in cases of socially dangerous acts of insane persons and in criminal cases against minors
4.1. The end of the preliminary investigation with the drawing up of a decision to send the case to the court for the application of a compulsory medical measure to a person
4.2. Termination of criminal prosecution and initiation of a petition before the court for the application of a coercive measure of an educational nature to a minor accused
Conclusion
Bibliography
Introduction
The topic of this term paper is devoted to the study of such a stage of the criminal process as the end of the preliminary investigation.
Termination of a criminal case is one of the forms of termination of the preliminary investigation, which has a rather long history of its existence and is often used. However, according to statistics, the number of criminal cases terminated by the investigation and inquiry bodies in recent times has a clear downward trend. Many theorists, as well as practitioners, do not have the question of what to mean by the termination of a criminal case from the point of view of the definition of this concept. However, this question, in my opinion, should have a fairly specific answer.
It is this, in our opinion, that justifies the relevance of the chosen direction of research.
The aim of the work is to disclose the content of this stage, with the definition of the concept and grounds, as well as the procedural procedure for ending the preliminary investigation with the preparation of an indictment, terminating the criminal prosecution and the criminal case at the preliminary investigation stage, as well as considering the peculiarities of the completion of the preliminary investigation by issuing a decision on the direction of the criminal case to the court for the application of compulsory measures of a medical nature and the termination of criminal prosecution with the initiation of a petition before the court for the application of compulsory measures of educational influence to the minor.
In the course of writing the work, both educational and scientific literature were studied, such authors as: Kruglikov A.P., Vandyshev V.V, Gavrilov B.Ya., Miriev B.A., Bordilovskiy E.I., Kuznetsova Yu.V. ., Nominova K.D., Petukhovsky A.A., Ryzhakov A.P., Fomin I.V.
Chapter 1. The concept, essence and types of the end of the preliminary investigation
The end of the preliminary investigation is the final stage of pre-trial proceedings in a criminal case, which “... is characterized by a set of procedural actions aimed at verifying the completeness, comprehensiveness, objectivity of the evidence collected in the case, to fill in the gaps in the investigation, and finalization in accordance with the requirements of the law investigative proceedings» .
At the end of the preliminary investigation, the investigator sums up, analyzes and evaluates the entire set of case materials, systematizes the materials, formulates and substantiates conclusions on the merits.
The end of the preliminary investigation is not single action, but a complex of procedural actions and the corresponding legal relations, formalized by certain procedural acts.
Given the great importance of the final stage of the preliminary investigation, some authors speak of it as an independent stage in the criminal process. The position of SP Efimichev seems to be correct, who writes: “... even taking into account the fact that some properties of the stage of the criminal process find their own expression at this stage of the investigation, it is impossible to consider it as a separate stage of the criminal process. This is just a stage in the preliminary investigation stage. "
The grounds for separating the complex of actions at the final stage of the investigation into an independent stage of the criminal process are as follows: 1) the criminal procedural stage is specific in its specific tasks arising from the general tasks of criminal proceedings; 2) it is unique in terms of the expression of the basic principles of the criminal procedure; 3) is characterized by a special range of subjects of criminal procedural activity and the corresponding legal relationship; 4) typical for her acts of application of law, expressing either a decision government body on individual issues, or fixing individual investigative and judicial actions.
The combination of these properties determines the relative independence and completeness of the corresponding complex of criminal procedural actions and legal relations, gives it the character of a stage of the criminal process, inextricably linked with all other stages common tasks, principles and necessary consistency.
“It is quite justified to characterize the completion of the preliminary investigation as a special, relatively independent part of the preliminary investigation, which has its own specifics. This will allow to emphasize the importance of the totality of its constituent procedural actions for establishing the truth in the criminal process, to show their internal unity, the presence of a “cross-cutting idea” in them, the need to consider these procedural actions as closely related, and not mechanically following each other. "
Thus, the end of the preliminary investigation can be defined as the final stage of the preliminary investigation, the content of which is a set of procedural actions and the corresponding legal relations aimed at checking the completeness, comprehensiveness and objectivity of the materials collected on the case, at filling the gaps in the investigation, finalizing the investigation, formulating and justification of the conclusions of the preliminary investigation, ensuring the rights and legitimate interests participants in the process, to check the conclusions of the investigation using the methods of prosecutor's supervision and determine the further direction of the criminal case.
The norms of the criminal procedural law concerning the end of the preliminary investigation are a detailed system of rules of conduct for the investigator and other subjects of the criminal process in the final part of the pre-trial proceedings in the case. These norms can be represented as three interrelated groups.
The first of them includes the rules defining the conditions under which the investigator has the right to proceed to the final part of the investigation (part 1 of article 212, part 1 of article 215 of the Criminal Procedure Code of the Russian Federation).
The second group is made up of norms concerning the actions of the participants in this stage of the investigation. These include the rules defining the circle of persons involved at this stage, their rights and obligations, guarantees of their rights and legitimate interests, the essence of the actions of the subjects of the criminal process at the end of the investigation (Articles 213, 215-220, 439, etc. of the Criminal Procedure Code of the Russian Federation).
The third group of rules determines the order of the final procedural act preliminary investigation.
The combination of all these norms emphasizes the importance of this stage of the preliminary investigation and ensures the validity of the investigator's decision to end the collection of evidence, the correct procedure for the participants in the investigation at its end, as well as the legality of the final act of pre-trial proceedings.
As for the forms of termination of the preliminary investigation, the law and, as a rule, the theory distinguish them the following types: a) referral of the case to the court with an indictment; b) termination of the criminal case; c) referral of the criminal case to the court with a decision on the application of compulsory medical measures; d) referral of the criminal case to the court with a decision on the application of compulsory measures of an educational nature.
The combination of these forms with one concept "the end of the preliminary investigation" is due, as K. A. Savelyev correctly notes, not only by the presence of a number of similar norms relating to the procedure for the production of these actions, but also by their common legal nature, which makes it possible to combine them into a specific criminal procedure. procedural institute.
Indeed, all forms of termination of the preliminary investigation are characterized by: the decision taken by the investigator to complete the collection of evidence; systematization of case materials; the possibility of presenting case materials to interested parties; verification of the legality and validity of the conclusions of the investigation by the persons involved in the case; the formulation of the final findings of the investigation.
According to GM Minkovsky, “... an isolated consideration ... of the forms of termination of the preliminary investigation without showing their general purposefulness, the same essence of the analytical work of the investigator and the prosecutor veils the meaning and objectives of the final part of the preliminary investigation as mandatory in any case, no matter what it is. ended. "
Chapter 2. Completion of the preliminary investigation by drawing up an indictment
The end of the preliminary investigation with the referral of the criminal case to the court most acutely affects the interests of a particular person, among these interests - ensuring the right to defense.
In accordance with the requirements of Art. 215 of the Code of Criminal Procedure of the Russian Federation, the preliminary investigation should end with the drawing up of an indictment only when the investigator comes to the conclusion that he has fully clarified and investigated all the circumstances to be proved in a criminal case (Article 73 of the Criminal Procedure Code), all necessary investigative actions have been taken of the versions that arose during the investigation did not remain untested.
In addition, the proceedings in a criminal case may end with the drawing up of an indictment if the investigation was carried out in accordance with the requirements of the procedural law, scientifically developed methodology and tactics of preliminary investigation, and the evidence collected corresponds to objective reality and is sufficient for the consideration and resolution of the case by the court.
Thus, the grounds are: 1) established all the circumstances to be proven; 2) the guilt of the accused is confirmed by evidence; 3) there are no circumstances excluding him criminal liability(grounds for termination of the criminal case).
The end of the preliminary investigation with the indictment has a number of procedural features(chapters 30-31 of the CPC). This form of completion of the preliminary investigation process involves the performance of the investigator in mandatory a number of chronologically interconnected procedural actions, which can be subdivided into the following stages:
1. Preparatory actions for the end of the preliminary investigation.
Before presenting the materials of the criminal case for review, they must be systematized in a certain way, this makes it easier for the accused, the victim and other participants in the process to exercise their right to familiarize themselves with the case. It is also important for the prosecutor and the court.
There are two orders of systematization of case materials: chronological and thematic. The chronological order assumes the grouping of the case materials in the sequence in which they were compiled and received by the investigator. The thematic order of systematization is applied to criminal cases that are complex in terms of plot and large in volume. With this systematization order, the case materials are grouped by episodes. ...
2. Notifying interested participants about the end of the preliminary investigation and explaining their rights.
After the investigator establishes that the collected evidence is sufficient to draw up an indictment, he is obliged to notify all interested persons that all investigative actions in the criminal case have been carried out and explain their rights to them. Art. 215 of the Criminal Procedure Code is provided for special order notifying the accused and his defense counsel with the materials of the criminal case, about which a protocol is drawn up in accordance with Art. 166 and 167 of the Criminal Procedure Code of Russia.
The notification can be either written (for example, a subpoena by mail) or oral (telephone message), as well as in the case of a personal appearance of the indicated persons to the investigator. It is important that these circumstances are reflected in the case by attaching copies of the relevant documents (letters, telephone messages, minutes) to it.
At the same time, the legislator has not clearly defined the procedure for notification, which may lead to different interpretations and misapplication of the provisions of the Criminal Procedure Code in practice. ...
3. Familiarization of the victim, civil plaintiff, civil defendant and their representatives with the materials of the criminal case.
The civil plaintiff, civil defendant or their representatives get acquainted with the materials of the criminal case in the part that relates to the civil claim.
A number of scientists suggest that the indicated participants in criminal proceedings should familiarize themselves with all the materials of the criminal case. In support of their position, legal scholars cite the following arguments: 1) that it is very difficult to isolate the materials of a criminal case related to a civil claim; 2) in addition, according to the legislator, the selection (determination) of these materials should be carried out by the investigator, who, due to subjective discretion, may incorrectly establish the volume of the relevant materials; 3) finally, the dividing union “or” in the title of the article and in its content is completely inappropriate, since the literal interpretation of the law leads to the conclusion that it only allows separate familiarization of the main participants in the process and the participants who represent their interests. However, this conclusion is incorrect, because it contradicts Part 3 of Art. 45 of the Criminal Procedure Code and part 2 of Art. 55 of the Code of Criminal Procedure, which established that the legal representatives and representatives of the victim, the civil plaintiff, the private prosecutor and the representative of the civil defendant have the same procedural rights as the persons they represent.
Familiarization is carried out in the manner prescribed by Articles 217 and 218 of the Criminal Procedure Code and contains a number of features.
Firstly, the victim, civil plaintiff, civil defendant and their representatives get acquainted with the materials of the criminal case only at their declared request in whole or in part.
Secondly, proceeding from Art. 217 of the Code of Criminal Procedure, the victim, civil plaintiff, civil defendant and their representatives, after the investigator notifies the parties about the end of the preliminary investigation, are the first to get acquainted with the materials of the criminal case, i.e. until the accused, his defense lawyer, and legal representative get acquainted with them.
Third, if it is impossible for representatives of the victim, civil plaintiff and civil defendant to appear to familiarize themselves with the materials of the criminal case at the time appointed by the investigator after 5 days, as well as these participants in the proceedings themselves, relieves him of the obligation to familiarize himself with the case in terms of their ...
Having familiarized themselves with the materials of the case, the indicated participants have the right to file petitions for supplementing the investigation. If these petitions can be significant for the case, then they are subject to mandatory satisfaction.
In case of refusal to satisfy the request, the investigator issues a reasoned decision, which is announced to the applicant (Article 122 of the CCP).
A protocol is drawn up on the acquaintance of these persons with the materials of the criminal case, in which it is noted with which particular materials of the case they have familiarized themselves, what petitions they have made (written petitions are attached to the case).
4. Familiarization of the accused and his defense counsel with the materials of the criminal case.
The procedure for familiarizing the accused with the materials of the criminal case, provided for by Art. 47-53, 215-218 of the Code of Criminal Procedure, has some procedural features.
Familiarization with the materials of the criminal case is a right, not an obligation of the accused. The accused and his defense counsel are the latest to get acquainted with the materials of the criminal case, since they must see the materials with all the complaints and petitions of other participants in the criminal proceedings. The accused and his defense counsel can get acquainted with the case both together and separately, if there is a corresponding request.
If several accused are involved in the case, each of them shall be presented with the case materials separately for review.
If the defense lawyer, the legal representative of the accused, for valid reasons, cannot appear to get acquainted with the materials of the criminal case at the appointed time, then the presentation of the materials of the case may be postponed for a period of not more than 5 days. If it is impossible for the defense counsel chosen by the accused to appear, the investigator, after 5 days, has the right to propose to him to choose another defense counsel or, if there is a petition from the accused, takes measures for the appearance of another defense counsel. If the accused refuses the appointed defense lawyer, then the investigator presents him with the materials of the criminal case for review without the participation of the defense lawyer, except in cases where the participation of the defense lawyer in the criminal case is mandatory. In addition, it is important that the defendant's refusal from a defense lawyer is not forced. The duty of the investigator is to assist the accused in choosing a defense lawyer and ensuring his attendance to familiarize himself with the materials of the criminal case, if necessary.
If the accused, who is not in custody, does not appear to familiarize himself with the materials of the criminal case without good reason, then the investigator, upon expiration of 5 days from the date of the announcement of the end of the investigative actions or from the day of the end of acquaintance with the materials of the criminal case of other participants in the proceedings, draws up an indictment and sends materials of the criminal case to the prosecutor (part 5 of article 215 of the Criminal Procedure Code).
The rules for familiarization with the materials of the criminal case are the same for all participants in the process. The materials of the case are presented for review in a filed and numbered form. At the request of interested persons, they are also presented with material evidence, photographs, audio, video recordings and other attachments to the protocols of investigative actions (Article 217 of the Criminal Procedure Code). However, materials regarding personal data, biographical and other information about the participants in the process may not be provided, if it is necessary to ensure their safety, as well as the safety of their loved ones.
When familiarizing themselves with the materials of the case, the participants in the process have the right to write out any information from it and in any volume, to make copies of documents, including with the help of technical means. However, they cannot be limited in time. At the same time, if the accused and his defense lawyer are clearly delaying familiarization with the case materials, the judge, at the request of the investigator, may set a certain time limit for this. If, however, within this period they do not familiarize themselves with the case materials without good reason, the investigator has the right to stop familiarization with his decision, which is noted in the protocol (part 3 of article 217 of the Criminal Procedure Code).
5. Application and consideration of applications.
Upon completion of the acquaintance of the accused and his defense lawyer with the materials of the criminal case, it is necessary to find out what petitions they have to supplement the investigation or other statements on the circumstances relating to this case. It is also imperative to find out questions about witnesses, experts, specialists who, in their opinion, are subject to summons to the court session for interrogation and to ensure the position of the defense.
In addition, at this stage, the investigator must explain to each accused his rights, specified in part 5 of Art. 217 of the Criminal Procedure Code.
6. Drawing up a protocol on familiarization of the accused and his defense lawyer with the materials of the criminal case.
The investigator draws up a protocol on the presentation of all the materials of the criminal case to the accused and his defense counsel (in accordance with Articles 166 and 167 of the Criminal Procedure Code). The protocol should indicate where, for how long and with what materials of the criminal case the accused, his defense lawyer (with his participation in the case) got acquainted. The number of volumes and pages with which they were familiarized, what material evidence, other materials (audio, video recordings, photographs, etc.) were presented to them is indicated. It is noted whether the audio, video recording was in demand, how the acquaintance with the case materials took place (by personal reading or reading the text and by whom).
The minutes, without fail, indicate the start and end dates of familiarization with the case materials (date, hour, minute) in accordance with the attached schedule for familiarization with the case (if any). It reflects what applications and other applications were received. Written petitions are attached to the criminal case, oral petitions and statements are entered directly into the minutes of familiarization with the materials of the criminal case.
The protocol also reflects whether the accused has expressed a desire to exercise his right under Part 5 of Art. 217 of the Code of Criminal Procedure, indicating his specific petition regarding the application of the provisions of Art. 30, 31, 314, 229 of the Criminal Procedure Code, with the wording of his wishes according to them with the words “I wish” or “I do not wish”.
The protocol is signed by the accused, the defense attorney, if he participated in the case, the investigator, reflecting in it the information by whom it was read and the content of the comments made on it or lack thereof.
If the accused refuses to familiarize himself with the criminal case, the protocol must indicate the reasons why he refused to exercise his right. At the request of the accused, he may state the reasons for his refusal to familiarize himself with the case materials in his own hand.
In cases where the accused and the defense attorney, at their request, got acquainted with the materials of the criminal case separately, then two protocols are drawn up, reflecting in them all the necessary provisions regarding the procedure, course and result of the specified procedural action and reflecting the reasons for the separate acquaintance.
7. Resolution of petitions (Chapter 15 and Art. 219 of the Code of Criminal Procedure).
First of all, the investigator should be guided by the fact that each petition is subject to consideration and resolution immediately after its application. If an immediate decision on a petition filed when familiarizing with the criminal case is impossible, it must be allowed no later than 3 days (Article 121 of the Criminal Procedure Code).
Regardless of which of the participants in the criminal proceedings filed a request to supplement the preliminary investigation, if it concerns the clarification of the circumstances that are important for its correct resolution, the investigator is obliged to satisfy it. At the same time, petitions for supplementing the investigation cannot be rejected for reasons of a subjective nature.
Upon satisfaction of any stated request of one of the participants in the criminal proceedings, the investigator, without waiting for the completion of familiarization with the criminal case of the other participants, performs the necessary investigative actions to supplement the preliminary investigation, without interrupting the process of familiarizing other participants in the proceedings.
After completing the investigation, the investigator is again obliged to acquaint all the participants listed in Part No. 1 and 2 tbsp. 215 of the Code
In the event of a full or partial refusal to satisfy the stated petition, the investigator issues a reasoned decision, announces it to the interested party and explains at the same time the procedure for appealing against this decision (part 3 of article 219 of the Criminal Procedure Code).
The general procedure for appealing against the actions and decisions of the investigator is regulated in a number of articles of Ch. 16 of the Criminal Procedure Code.
7. Drafting of the indictment.
An indictment is a final procedural document that sets out the course and results of the preliminary investigation, entailing the transfer of the criminal case to the court.
The indictment is of great socio-legal and reference and technical significance.
The socio-legal significance of the indictment is as follows: firstly, in the indictment, the essence, volume and scope of the upcoming trial are determined, the list of those facts of an accusatory nature that should be, in the opinion of the investigation, investigated in court, the circle of persons whose actions subject to research and the list of procedural measures carried out during the preliminary investigation, as it were, of a providing and reference nature for the implementation of the possibility of judicial proceedings.
Secondly, the announcement of charges in court proceedings ensures public control, helps to strengthen the rule of law and law and order, and ensures the legal and moral education of citizens.
Thirdly, the court has the right to consider the question of the guilt of only those persons who are named in the indictment as accused and only within the limits of the accusation formulated in it. Changing the charge in court proceedings is possible only in cases where this does not worsen the position of the defendant and does not violate his right to defense (Article 252 of the Code of Criminal Procedure of the Russian Federation).
An indictment helps the accused to better organize his defense. For this purpose, the law establishes that the trial of a criminal case cannot be started earlier than 7 days from the date of delivery of a copy of the indictment to the accused (part 2 of article 265 of the CCP).
For reference and technical value.
As quite rightly and subtly noted by some authors in the special legal literature, in the indictment, the investigator brings into the system everything significant and confirmed by evidence, which gives a clear idea of committed crime and the person involved in it. The core of this system is the accusation formula and legal qualifications of the deed.
The systematization of the materials of the preliminary investigation in the compiled indictment makes it easier for the court and other participants in the process to familiarize themselves with the case at the stage of preparation for its consideration in the court session and during the trial. The indictment must also meet the requirements of legality, validity, motivation and fairness. The content of the indictment must comply with the requirements of Art. 220 of the Criminal Procedure Code.
The indictment, based on the information and circumstances to be reflected in it, can be conditionally divided into three parts: introductory (indictment), evidentiary and reference.
In the introductory (accusatory) part of the procedural document the information provided for in Part 1 of Art. 220 of the Code of Criminal Procedure Reflection in the introductory part of detailed information characterizing the personality of the accused is an objective need for a court to make a decision on criminal motivation, affecting the degree of his guilt and determining a fair punishment for him.
The evidentiary part of the indictment, at its core, should include: 1) a list of evidence supporting the accusation; 2) a list of evidence referred to by the defense party; 3) information about the victim, the nature and amount of harm caused to him by the crime; 4) data on civilian and a civil defendant.
When describing the circumstances named in paragraph 3 of Part 1 of Art. 220 of the Code of Criminal Procedure, the indictment must reflect how they were established during the investigation, the position of the accused in the criminal case must be indicated: whether he pleads guilty to the charges brought, does not admit or even refuses to give any testimony at the preliminary investigation.
In paragraphs 5 and 6 of Part 1 of Art. 220 of the Code of Criminal Procedure, it would seem, indicates the possibility of a simple listing of the evidence supporting the accusation, as well as the evidence referred to by the defense. but arbitrage practice testifies to the fact that the judges insist on the coverage by the investigator of the content of each of the evidence. This approach was supported by The Supreme Court RF, which in the decree of March 5, 2004 No. 1 "On the application by the courts of the norms of the Criminal Procedure Code Russian Federation» .
The indictment shall be signed by the investigator indicating the place and date of its preparation, to which prosecutor the criminal case together with the indictment was sent.
An independent and important part of the indictment is its reference part. According to paragraphs. 4 and 5 Art. 220 of the Code of Criminal Procedure of the Russian Federation, a list of persons to be summoned to the court session both by the prosecution and by the defense is attached to the indictment. In relation to these persons, their place of residence or location is indicated, as well as sheets of the criminal case, on which their testimonies are stated or the opinions of experts or specialists are given.
The indictment is also accompanied by a certificate on the timing of the investigation, on the measures of restraint chosen, indicating the time of detention and house arrest, material evidence, a civil claim, measures taken to secure a civil claim and possible confiscation of property, procedural costs, and if the accused has, victim's dependents - on the measures taken to ensure their rights. The certificate must indicate the relevant sheets of the criminal case.
Investigative practice testifies to the fact that sometimes the investigator draws up another certificate on group and multi-episode criminal cases - about the location of the materials of the criminal case by volume, otherwise it will be difficult for the court to navigate its materials during the trial.
8. Consideration by the prosecutor of the indictment, decision-making.
In accordance with part 1 of article 221 of the Criminal Procedure Code, the prosecutor examines the case and within 10 days makes one of the following decisions on it: 1) to approve the indictment and send the criminal case to the court; 2) on the return of the criminal case to the investigator for additional investigation, changing the scope of the accusation or qualifying the actions of the accused or re-drafting the indictment and eliminating the identified deficiencies with their written instructions; 3) on the direction of the criminal case to a higher-ranking prosecutor for the approval of the indictment, if it is within the jurisdiction of the higher court. In each case provided for in paragraphs 2 and 3, the prosecutor issues a reasoned decision.
If violations of the requirements of part 5 of article 109 of the Criminal Procedure Code are established, and the deadline for keeping the accused in custody has expired, the prosecutor cancels this measure of restraint (part 2 of article 221 of the Criminal Procedure Code).
Part 4 of Article 221 of the Criminal Procedure Code enshrines the right of the investigator, with the consent of the head of the investigative body, to appeal the decision of the prosecutor to a higher prosecutor. The higher-ranking prosecutor, within 72 hours from the moment of receipt of the relevant materials, makes one of the following decisions: 1) on the refusal to satisfy the request of the investigator; 2) on cancellation of the decision of a lower prosecutor. In this case, the higher prosecutor approves the indictment and sends the criminal case to the court.
An appeal against the decision of the prosecutor in the manner prescribed by part 4 of article 221 of the Criminal Procedure Code suspends its execution (part 5 of article 221 of the Criminal Procedure Code).
After approval of the indictment, the prosecutor sends the criminal case to the court. He notifies all interested parties about this and explains to them the right to file a request for holding preliminary hearing in the manner established by Chapter 15 of the Criminal Procedure Code (part 1 of Article 222 of the Code of Criminal Procedure).
Copies of the indictment with all attachments are handed over by the prosecutor to the accused and, at the appropriate request, to the defender and the victim (part 2 of article 222 of the Criminal Procedure Code).
If the accused is in custody, a copy of the indictment is handed over to him by the administration of the place of detention on receipt, which is presented to the court indicating the date and time of delivery. If the accused refused to receive a copy of the indictment, or did not appear when summoned, or otherwise avoided receiving a copy of the indictment, the prosecutor sends the criminal case to the court indicating the reasons why the copy of the indictment was not served on the accused (part 4 of article 222 Criminal Procedure Code).
Chapter 3. Termination of a criminal case and criminal prosecution
3.1 The concept and grounds for the termination of a criminal case
Termination of a criminal case is one of the forms of termination of the preliminary investigation (part 1 of article 158 of the CCP) and means the actual resolution of the criminal case by the investigator without further transfer to the court. The termination of the preliminary investigation by the termination of the case may take place at any time of the investigation of the criminal case (prosecution) by the preliminary investigation body; it is sufficient only to establish the existence of circumstances with which the law connects the termination of the criminal case. It follows from the content of part 3 of article 24 and part 1 of article 212 of the Criminal Procedure Code that the termination of a criminal case entails at the same time the termination of criminal prosecution. This is confirmed by the meaning of Art. 239, 254 of the Criminal Procedure Code. Meanwhile, the termination of criminal prosecution does not always entail the termination of the criminal case.
The properties of the termination of a criminal case (prosecution) by a preliminary investigation body as an institution of pre-trial investigative proceedings in a criminal case: the grounds and procedure for termination of a criminal case are strictly regulated by law; the termination of the criminal case, although it is based on an assessment of the merits of the case, only resolves the issue of the likelihood of guilt or innocence of the accused; the procedure for reopening the proceedings in a case terminated during the preliminary investigation is simplified in comparison with the procedure for reopening a criminal case in which judgment; the decision to terminate the criminal case terminates the criminal prosecution and excludes the onset of criminal legal consequences, but in the event of termination of the case on non-rehabilitating grounds, it is associated with certain restrictions on the rights and interests of the person in respect of whom it was issued; the decision to terminate the criminal case (prosecution) must be assessed according to the criteria of legality, validity and motivation (part 4 of article 7 of the Criminal Procedure Code); the decision to terminate the criminal case is subject to verification both by the leadership of the investigating authorities and by the judicial control authorities.
The Code of Criminal Procedure of the Russian Federation provides for an exhaustive list of grounds for terminating a criminal case and criminal prosecution. Moreover, these grounds are clearly delineated: 1) grounds for refusal to initiate a criminal case and its termination (Articles 24-26); 2) grounds for termination of criminal prosecution (Articles 27-28).
All the grounds for the termination of a criminal case and criminal prosecution listed in the law are usually subdivided into: 1) substantive legal grounds and 2) procedural ones.
The first group consists of those grounds that are contained in the norms of criminal legislation. These norms initially contain preconditions that eliminate the possibility of bringing someone to criminal responsibility, and, consequently, the need to terminate the criminal case and criminal prosecution. Such grounds of the Code of Criminal Procedure of the Russian Federation include: 1) the absence of the crime event itself (clause 1 of part 1 of article 24); 2) absence of corpus delicti in the act of a certain person (clause 2 of part 1 of article 24); 3) the expiration of the statute of limitations for criminal prosecution (clause 3 of part 1 of article 24); 4) death of a suspect or accused who has committed a crime (clause 4 of part 1 of article 24); 5) the reconciliation of the victim with the suspect, the accused, in the cases provided for by Art. 76 of the Criminal Code of the Russian Federation (Article 25); 6) failure of the guilty person to reach the age from which criminal liability arises, as well as the lag of a minor in mental development, not associated with a mental disorder, could not fully understand the actual nature of his actions (inaction) and control them (part 3 of article 27); 7) the presence of an act of amnesty (clause 3 of part 1 of article 27); 8) active repentance of the suspect, the accused in the cases provided for by Art. 75 of the Criminal Code of the Russian Federation (Art.28).
The second group of grounds for termination of a criminal case and criminal prosecution are procedural grounds.
When determining such grounds, it cannot only be about establishing the fact of the presence or absence of a criminal act, the guilt or innocence of a certain person (persons) in committing it and other circumstances with which the criminal law connects the grounds and the need to bring the perpetrators to criminal responsibility. V in this case, despite the presence of the fact of a criminal act, the popularity of persons involved in criminal acts (inaction), by virtue of a special instruction of the criminal procedure law, or the possibility of initiating a criminal case against a certain category of persons is generally excluded due to the lack of procedural conditions for this, or when a criminal the case excludes the possibility of their criminal prosecution. This may even be when establishing, in the course of the preliminary investigation, the fact of their direct involvement in the commission of acts provided for by the Criminal Code of the Russian Federation. Among such procedural grounds for the termination of a criminal case and criminal prosecution should, in particular, be attributed: 1) the establishment, during the investigation, of the non-involvement of the suspect accused of committing a crime (clause 1 of part 1 of article 27); 2) the absence of a statement by the victim in cases of private and private-public prosecution (clause 5 of part 1 of article 24), except for the cases provided for in part 4 of art. 20 of the Criminal Procedure Code of the Russian Federation; 3) the lack of a conclusion of the relevant court on the presence of signs of a crime in the actions of one of the persons specified in paragraphs 1, 3-5, 9 and 10 h. 1 of Art. 448 of the Criminal Procedure Code; 4) the existence of a verdict against the suspect or the accused on the same charge or a court ruling, a judge's decision to terminate the criminal case on the same charge (clause 4 of part 1 of article 27), as well as the presence of a suspect or the accused uncanceled decision of the body of inquiry, the investigator or the prosecutor to terminate the criminal case on the same charge or to refuse to initiate a criminal case (clause 5 of part 1 of article 27); 5) the refusal of the State Duma of the Federal Assembly of the Russian Federation to give consent to the deprivation of the immunity of the President of the Russian Federation, who has ceased to exercise his powers and (or) the refusal of the Federation Council to deprive the immunity of this person (clause 6, part 1 of article 27).
This type of grounds should include the grounds for the termination of a criminal case and criminal prosecution provided for by federal laws and international treaties, consolidating the so-called procedural immunity of certain categories of persons.
In addition, all the grounds can be divided into rehabilitating ones - when in relation to the suspect, the accused cannot be applied (and if they were applied, then they are canceled) measures of procedural coercion. Their list is determined by law.
In turn, those grounds for terminating a criminal case and criminal prosecution, in which the facts of committing crimes and punishability are considered non-rehabilitating grounds criminal behavior there are certain persons (the event of a crime has been established, the presence of corpus delicti in the act, the involvement of the suspect or accused in the commission of a crime has been proven), however, by virtue of a special instruction of procedural and criminal law, the possibility of bringing them to justice is excluded. These include the expiration of the statute of limitations for criminal prosecution, the active repentance of the suspect, the accused, the reconciliation of the victim with the suspect, the accused and some other grounds that do not exclude the person's guilt in committing a crime (for example, release due to an act of amnesty (paragraph 3 of part 1 of Art. 27 of the Criminal Procedure Code).
Termination of a criminal case in the presence of certain grounds is its final resolution based on the conclusion of the investigator - either on the absence of a crime, innocence of the person in the act for which it was initiated, or in the presence in the criminal and (or) criminal procedure law legal regulations preventing the criminal prosecution of a certain category of persons, under the conditions established by law.
3.2 Procedural procedure for terminating a criminal case
Termination of a criminal case is one of the procedural forms of termination of a preliminary investigation. The procedure for restoring the violated rights and interests of both the suspects, the accused and other participants in the proceedings depends on the reasons for the termination of the criminal case and (or) the criminal prosecution (rehabilitating or non-rehabilitating).
General procedural order termination of the criminal case and criminal prosecution on pre-trial stage production is regulated by Art. 212-214 of the Criminal Procedure Code of the Russian Federation. The criminal case and criminal prosecution are terminated by a reasoned decision of the investigator, a copy of which is sent to the prosecutor to ensure supervisory proceedings. It sets out the essence of the case, as established by the investigation, the evidence confirming the validity of the termination of the criminal case and criminal prosecution, indicates the motives and procedural grounds for termination.
The resolution, which has an introductory, descriptive, motivating and operative part, necessarily indicates its main provisions concerning not only the essence of the case, but also circumstances that are important for all participants in criminal proceedings in this case.
When deciding on the termination of a criminal case and (or) criminal prosecution, the investigator must be guided by the provisions of the law that the termination of criminal prosecution on the grounds specified in paragraph 3.4 of part 1 of article 24, paragraph 3 of part 1 and part 3 of article ... 27 of the Criminal Procedure Code, as well as in Articles 25, 28, 427, paragraph 1 of Part 1 of Art. 439 of the Code of Criminal Procedure is not allowed if the suspect or the accused objects to this.
In addition, the termination of a criminal case in the event of the death of a suspect or an accused cannot take place if there is a need for further criminal proceedings and trial of such a case in order to rehabilitate the deceased. In such cases, the proceedings on the case shall continue in the usual manner established by the Criminal Procedure Code.
Therefore, even before the decision is made, the investigator must resolve a number of procedural issues. If, in accordance with the law (part 2 of article 27 of the Criminal Procedure Code), the termination of criminal prosecution is allowed only with the consent of the suspect, accused to terminate the criminal case and (or) criminal prosecution (see paragraphs 3 and 6 of part 1 of Article 24 , Articles 25 and 28, clauses 3, 6, part 1 of Article 27, Article 427 of the Code of Criminal Procedure), their consent must be obtained and reflected in the decision to discontinue the case if such consent exists. In case of termination of criminal prosecution on the basis of Art. 23, 25 of the Criminal Procedure Code (reconciliation of the parties and in case of refusal commercial organization from criminal prosecution for crimes under Art. 23 of the Criminal Code of the Russian Federation), the investigator must obtain the consent of the injured party for this.
If the accused (suspect) was in custody, measures are taken for his immediate release. The property seized as material evidence must be returned to its legal owners, and if the crime remains unsolved, the investigator is obliged to take measures to preserve it.
A copy of each decision to terminate a criminal case and (or) criminal prosecution shall be sent to the supervising prosecutor without fail, as well as handed over (sent) to the suspect, the accused, and other persons in respect of whom the criminal prosecution has been terminated and to all interested persons. If a criminal case and (or) criminal prosecution is terminated on the grounds provided for in paragraphs. 2-6 h. 1 tbsp. 24, art. 25, pp. 2-6 h. 1 tbsp. 27 and art. 28 of the Code of Criminal Procedure, the investigator must explain to the victim and the civil plaintiff their right to bring a claim in accordance with the procedure civil proceedings.
The decree on the termination of the criminal case and criminal prosecution, without fail, notes that the interested parties have been explained the procedure for appealing it to the prosecutor, the head of the investigative body and to the court at the place of the preliminary investigation (Articles 124, 125).
The head of the investigative body approves the decision of the investigator to terminate the criminal proceedings (clause 9, part 1, article 39 of the CCP), gives the investigator consent to the termination of the criminal case in the cases specified in the CCP (articles 25, 28, 427 of the CCP). He is authorized to give instructions to the investigator to terminate the criminal case (prosecution) (part 3 of article 39 of the CCP).
For the legality and validity of the decisions of the preliminary investigation bodies to terminate the criminal case, prosecutor supervision(part 1 of article 37 of the Criminal Procedure Code) and judicial control(Article 125 of the Criminal Procedure Code).
Chapter 4. Features of the completion of the preliminary investigation in cases of socially dangerous acts of insane persons and in criminal cases in relation to minors
4.1 The end of the preliminary investigation with the preparation of a decision to send the case to the court for the application of a compulsory medical measure to a person
Based on the provisions of Part 1 of Article 433 of the Criminal Procedure Code, the stage of completion of the investigation of cases of crimes of persons: a) committed acts, provided for in Articles The special part of the Criminal Code of the Russian Federation, in a state of insanity; b) who, after committing a crime, have a mental disorder that makes it impossible for them to impose the execution of punishment; c) those who have committed a crime and are suffering from mental disorders that do not exclude sanity; differs from the usual, regulated general rules CPC, only the possibility of the absence of the accused, the removal of the latter from participation in familiarization with the materials of the criminal case, as well as the name and content of the document completing the preliminary investigation.
For this category of crimes, it is compulsory to carry out a preliminary investigation. The investigator finishes his activity by drawing up a resolution on sending the case to the court to resolve the issue of applying compulsory medical measures only when: 1) all the circumstances that are subject to proof have been established; 2) it has been confirmed by evidence that the socially dangerous act was committed by a person suffering from a mental disorder; 3) based on the nature of the socially dangerous act and mental state, the person who committed it poses a danger to society, himself or others.
Procedural actions of the investigator:
1. notification and familiarization with the materials of the criminal case of the victim, civil plaintiff, civil defendant or their representatives.
2. familiarization of the defense lawyer of the person who committed a socially dangerous act, the legal representative with the materials of the criminal case.
In the proceedings on the application of compulsory measures of a medical nature, the participation of a defense attorney is mandatory from the moment the decision is made to appoint a forensic psychiatric examination against a person, if the defense attorney has not previously participated in this criminal case.
The legal representative of the person in respect of whom the proceedings on the application of compulsory measures of a medical nature are being conducted shall be involved in the criminal case on the basis of the decision of the investigator or the court. His rights are spelled out in Art. 437 of the Criminal Procedure Code of the Russian Federation.
The procedure for familiarizing these participants is similar to the procedure for familiarizing the accused and his defense lawyer with the materials of the criminal case at the end of the preliminary investigation with the preparation of the indictment.
3. drawing up a resolution on sending the case to the court to resolve the issue of the application of compulsory medical measures
The resolution on sending the criminal case to the court for the application of compulsory medical measures must set out: the grounds for the application of compulsory medical measures; arguments of the defense attorney and other persons challenging the grounds for the application of a compulsory medical measure, if they have been expressed.
The decision made is motivated, the decision must necessarily indicate information about the commission of a socially dangerous act by this person, an analysis of the collected evidence is given, the conclusion about public danger a person and the presence or absence of the need to apply compulsory medical measures against him.
The decision of the investigator, together with the case, is sent to the prosecutor, who makes one of the following decisions: to approve the decision of the investigator and to send the criminal case to the court; on the return of the criminal case to the investigator for additional investigation; to terminate the criminal case on the grounds specified in paragraph 1 of Part 1 of Art. 439 of the Criminal Procedure Code. A copy of the decree on sending the criminal case to the court for the application of a compulsory medical measure is handed to the defender and legal representative (part 6 of article 439 of the Criminal Procedure Code).
4.2 Termination of criminal prosecution and initiation of a petition before the court for the application of a coercive measure of an educational nature to a minor accused
Article 427 of the CCP provides for two procedures for the termination of a criminal case against a juvenile accused. In the case provided for in Part 1 of Art. 427 of the Code of Criminal Procedure, a criminal case may be terminated by an investigator with the consent of the head of the investigative body, and then sent to court to decide on the application of compulsory measures of educational influence against a minor. Based on the results of consideration of this decision, the judge alone makes a decision on the application of compulsory measures of educational influence to the minor.
The investigator has the right to terminate the criminal prosecution (criminal case) in the manner prescribed by Part 1 of Art. 427 of the Criminal Procedure Code, in the presence of the following circumstances: it was established that a crime of small (part 2 of article 15 of the Criminal Code) and medium (part 3 of article 15 of the Criminal Code) gravity was committed; the person has not reached 18 years of age; the correction of this juvenile accused can be achieved without the application of criminal punishment by applying coercive measures of educational influence, provided for in Part 2 of Art. 90 of the Criminal Code; the consent of the head of the investigative body, firstly, to terminate the criminal case, and secondly, to initiate a petition before the court for the use of compulsory measures of educational influence.
A minor accused or suspect must have a defense lawyer (clause 2, part 1, article 51 of the CCP), as well as a legal representative (article 426 of the CCP). A minor accused must fully admit his guilt in the crime incriminated to him and sincerely repent of his deed. A criminal case cannot be terminated if the accused denies his guilt. Repentance is a prerequisite to decide on the termination of the criminal case in the manner prescribed by Part 1 of Art. 427 of the Criminal Procedure Code. An important indicator of remorse for the deeds where material damage, is compensation for damage.
The presence of the victim's consent to terminate the criminal prosecution on this basis. Although it is not stipulated in the law, the body of public prosecution, of course, must take into account the position of the victim. The investigator is obliged to serve the victim with a copy of the decision to terminate the criminal prosecution and to initiate a petition before the court for the application of a coercive measure of educational influence to the accused minor. He must be explained his rights and the consequences of this procedural decision.
Conclusion
The end of the preliminary investigation is the final stage of pre-trial proceedings in a criminal case, which is characterized by a set of procedural actions aimed at checking the completeness, comprehensiveness, objectivity of the evidence collected in the case, to fill the gaps in the investigation, and to finalize the investigation proceedings in accordance with the requirements of the law. The law and, as a rule, theory distinguish the following types of termination of the preliminary investigation: a) referral of the case to the court with an indictment; b) termination of the criminal case; c) referral of the criminal case to the court with a decision on the application of compulsory medical measures; d) referral of the criminal case to the court with a decision on the application of compulsory measures of an educational nature.
The grounds for completing the preliminary investigation with the indictment are: 1) all the circumstances to be proved have been established; 2) the guilt of the accused is confirmed by evidence; 3) there are no circumstances precluding his criminal liability (grounds for termination of the criminal case).
Termination of a criminal case - means the actual resolution of the criminal case by the investigator without further transfer to the court. The peculiarity of the end of the preliminary investigation with the drafting of a decision on sending the case to the court for the application of a compulsory measure of a medical nature to a person are: no charge is brought against a person who has committed a socially dangerous act in a state of insanity, or a person who has become mentally ill after the commission of a crime; the name of the final preliminary investigation of the document; mandatory participation defense counsel and at the request of the participation of a legal representative of a person who has committed a socially dangerous act in a state of insanity.
Bibliography.
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Consultant Plus 2010
Nominova K.D. The end of the preliminary investigation // Topical issues of the application of Criminal law and criminal legislation in the process of investigating crimes. Part 1. M .: 2009 .-- S. 354-357.
A.P. Kruglikov Criminal procedure of the Russian Federation: textbook.- M .: Prospect, 2009, p. 470.
Vandyshev V.V. Criminal procedure: a course of lectures. - SPb .: "Legal Center Press", 2004. S. 487.
Volynskaya O.V. New in criminal procedure legislation on the termination of a criminal case // Russian investigator. 2007. No. 19. P.23.
Yu.V. Kuznetsova Suspension and end of preliminary investigation // Investigator. 2000. No. 9. S. 18-25.
I.A. Nasonova Procedural actions at the stage of completion of the preliminary investigation // Society and Law. 2008 No.3.P.18
Forms for ending the preliminary investigation (investigation) are the procedural grounds established by the Code of Criminal Procedure of the Russian Federation and the procedure for completing the preliminary investigation (investigation), due to the issuance of the final procedural decisions, entailing various legal consequences.
The preliminary investigation may end:
- termination of a criminal case and (or) criminal prosecution;
- sending the criminal case with the indictment to the prosecutor;
- by drafting an indictment
- sending the criminal case to the prosecutor with a decision to send the criminal case to the court for the application of a compulsory medical measure, and then to the court.
Comment
In cases where a preliminary investigation is underway according to the rules established for inquiry, another option for ending is possible - the adoption of a resolution to bring the suspect as an accused and to bring charges against him. In such cases the inquiry ends, but not the preliminary investigation... It continues, but according to the rules established for the preliminary investigation.
Termination of a criminal case and (or) criminal prosecution
Termination of a criminal case and (or) criminal prosecution- This is one of the forms of termination of the preliminary investigation, entailing the termination of the production of any procedural actions due to the presence of circumstances precluding the need or the possibility of applying the criminal law. In the criminal procedural sense, the termination of a criminal case and (or) criminal prosecution is a decision of the commissioner official to refuse further proceedings in the criminal case due to the existence of legal grounds for this.
Specific traits:
- the grounds and procedure for the termination of a criminal case and (or) criminal prosecution are the same regardless of the form in which the preliminary investigation is carried out - in the form of a preliminary investigation or inquiry;
- after the termination of the criminal case, the production of any investigative actions or the adoption of procedural decisions is not allowed (terminated criminal cases are not subject to transition to subsequent stages);
- the termination of a criminal case is the only procedural form of termination of the preliminary investigation, which makes it possible to completely complete criminal proceedings out of court and make the final decision on the case to the investigator (in some cases with the consent of the head of the investigative body) or the inquiry officer (in some cases with the consent of the prosecutor).
More details
Criminal prosecution - procedural activity, carried out by the prosecution in order to expose the suspect accused of committing a crime (paragraph 55 of article 5 of the Criminal Procedure Code).
The normative regulation of the grounds and procedure for the termination of a criminal case and (or) criminal prosecution is contained in Ch. 4 (vv. 24-28) and ch. 29 (Art. 212-214) of the Criminal Procedure Code, which establishes the corresponding order (procedure).
Grounds for termination of a criminal case and (or) criminal prosecution - these are factual circumstances provided for by the criminal and criminal procedural law, entailing the impossibility of further proceedings in the criminal case or testifying to the absence of the need to continue it.
Grounds for termination of a criminal case and (or) criminal prosecution:
- absence of a crime event;
- absence of corpus delicti in the act;
- expiration of the statute of limitations for criminal prosecution;
- death of a suspect or accused, except in cases of rehabilitation of the deceased;
- the absence of a statement from the victim, if a criminal case can be initiated only at his statement;
- the absence of a court conclusion on the presence of signs of a crime in the actions of one of the persons specified in clauses 2 and 2.1 of part one of Article 448 of this Code, or the lack of consent, respectively, of the Federation Council, the State Duma, the Constitutional Court of the Russian Federation, the qualification collegium of judges to initiate a criminal case or involve as an accused one of the persons specified in clauses 1 and 3 - 5 of the first part of Article 448 of this Code;
- reconciliation of the parties.
Grounds for Terminating Criminal Prosecution:
- non-involvement of the suspect or the accused in the commission of the crime;
- termination of the criminal case on the grounds indicated above;
- as a result of the amnesty act;
- the existence of a valid sentence against the suspect or the accused on the same charge, or a court ruling or a judge's order to terminate the criminal case on the same charge;
- the presence of an uncancelled decision of the body of inquiry, investigator or prosecutor regarding the suspect or the accused to terminate the criminal case on the same charge or to refuse to initiate a criminal case;
- the refusal of the State Duma of the Federal Assembly of the Russian Federation to give consent to the deprivation of immunity of the President of the Russian Federation, who has terminated the exercise of his powers, and (or) the refusal of the Federation Council to deprive the immunity of this person;
- Termination of criminal prosecution due to active repentance;
- Termination of criminal prosecution in cases of crimes in the field of economic activity.
Termination of a criminal case and (or) criminal prosecution is allowed at all stages of the criminal process. However, the preliminary investigation stage is the first stage of the criminal process, where it becomes possible to make a decision to terminate the criminal case and (or) criminal prosecution.
The grounds and procedure for terminating a criminal case and (or) criminal prosecution are the same regardless of the form in which the preliminary investigation is carried out - in the form of a preliminary investigation or inquiry. After the termination of the criminal case, it is not allowed to carry out any investigative actions or make procedural decisions. On this basis, terminated criminal cases are not subject to transition to subsequent stages. Therefore, the termination of a criminal case is the only procedural form of termination of the preliminary investigation, which makes it possible to completely terminate the criminal proceedings out of court and make a final decision on the case to the investigator (in some cases with the consent of the head of the investigative body) or the inquiry officer (in some cases, with the consent of the prosecutor).
It is necessary to distinguish between the concepts of “termination of a criminal case” and “termination of criminal prosecution”. The termination of a criminal case always entails the termination of criminal prosecution (part 3 of article 24 of the CCP). This is due to the fact that criminal prosecution is part of criminal proceedings. Therefore, the termination of a criminal case also excludes the possibility of continuing the criminal prosecution within the framework of this criminal case from the moment of its termination. Whereas upon termination of criminal prosecution, the criminal case as a whole does not stop. Only the criminal prosecution of a specific person is terminated due to the presence of certain circumstances, and the criminal proceedings continue (part 4 of article 27 of the CCP).
Besides, termination of criminal prosecution is always personalized, i.e. the criminal procedural activity in relation to a specific person or group of persons is terminated. Whereas the termination of a criminal case is not always personalized, because it is possible to terminate criminal procedural activity due to the absence of the crime event itself (clause 1 of part 1 of article 24 of the Criminal Procedure Code).
The procedure for terminating a criminal case and (or) criminal prosecution
If there is evidence confirming the existence of conditions for the termination of a criminal case and (or) criminal prosecution on a specific basis, the investigator or interrogator makes a decision on the termination of a criminal case or on the termination of criminal prosecution (part 1 of article 213 of the Criminal Procedure Code).
The decree consists of three parts:
1) introductory part:
- the date and place of the decision are indicated;
- position, surname, initials of the person who issued it (clauses 1, 2, part 2 of article 213 of the Criminal Procedure Code);
- the number of the criminal case, as well as
- the circumstances that gave rise to and the basis for the initiation of a criminal case, paragraph, part, article of the Criminal Code, providing for a crime on the basis of which a criminal case was initiated (paragraphs 3, 4, part 2 of article 213 of the Criminal Procedure Code).
2) descriptive part:
- the results of the preliminary investigation, indicating the data on the persons against whom the criminal prosecution was carried out,
- the measures of restraint applied (clauses 5, 6, part 2 of article 213 of the Criminal Procedure Code).
3) operative part:
- the actual decision of the investigator to terminate the criminal case or criminal prosecution (paragraph, part, article of the Criminal Procedure Code, on the basis of which a criminal case and (or) criminal prosecution is terminated).
Separately, the decision must resolve the issue of material evidence (clause 9, part 2 of article 213 of the Criminal Code), in respect of which specific administrative measures should be indicated.
After a decision has been made to terminate a criminal case or criminal prosecution the investigator is obliged to perform the following actions:- regardless of the grounds for the termination of the criminal case and (or) criminal prosecution, a copy of the relevant resolution is sent to the prosecutor (part 1 of article 213 of the CCP), as well as to the person in respect of whom the criminal prosecution was terminated, the victim, the civil plaintiff and the civil defendant (part 1 of Art. 4 article 213 of the Criminal Procedure Code);
- if the criminal case and (or) criminal prosecution is terminated on the grounds provided for in paragraphs 2-6 h. 1 of Art. 24 of the Criminal Procedure Code, art. 25, 28 of the Criminal Procedure Code, clauses 2-6 h. 1 of Art. 27 of the Criminal Procedure Code. then simultaneously with the sending of a copy of the decision to terminate the criminal case or criminal prosecution to the victim, the civil plaintiff is explained the right to sue in civil proceedings (part 4 of article 213 of the Criminal Procedure Code);
- if a criminal case and (or) criminal prosecution is terminated on exonerating grounds (clause 1.2 of part 1 of article 24 of the CCP, clause 1 of part 1 of article 27 of the Criminal Procedure Code), then the investigator and (or) the prosecutor must accept the measures provided for in Ch. 18 of the Code of Criminal Procedure for the rehabilitation of the person.