The question of judicial participation on the preliminary investigation. Judicial control in the preliminary investigation stage in the production of individual investigative actions. Procedural procedure for compiling, filing and consideration of complaints. Participation of a lawyer in the wasp

For each case to be proceeding in court with the participation of jury, a preliminary hearing is required. The foundations of the preliminary hearing on the case are listed in Art. 229 Code of Criminal Procedure.

This is an important step of judicial consideration of the criminal case, the predetermining possibility of its complete, comprehensive and objective proceedings on the merits. On the one hand, it performs a control function, warning the arrival for the proceedings by the court of jurisces, investigated with violation of the law. On the other hand, during it, there are a number of important preparatory actions for the consideration of the case. Therefore, a lawyer is obliged to pay due attention to the preliminary hearing.

According to cases where the accused is becoming a jury, familiarization with the materials of the case should be provided to the participants of the process from the date of the appointment of the case to the legal proceedings in the order of the preliminary hearing. On the bottom of the appointment of a preliminary hearing, the participants in the process must be notified in a timely manner.

In this regard, the lawyer assigns a duty to carefully examine all the materials of the criminal case and find out the following questions:

• 1) Are there any grounds for consideration of the case in court with the participation of jury and whether there are no obstacles to such a decision of the issue (this is especially important on cases of crimes committed by a group of persons, where a petition about the consideration of the case of the jury declares one of the accused, and the rest object against it);
• 2) whether it is enough in the case file of evidence confirming the commitment of the crime by the accused, and there is no reason to believe that some evidence cannot be represented in court, as they are obtained in violation of the criminal procedure law and are unacceptable;
• 3) What applications were announced when familiarizing with the materials of the case by the accused, victims and other participants in the process and how fully and rightly they are permitted by the investigator.

In the course preparations for the preliminary hearing The lawyer may encounter a number of difficulties. So, if a few people are accused of a case, consideration by his jury is made, if at least one of them stated a petition about it (part 2 of Art. 325 of the Code of Criminal Procedure of the Russian Federation). In the presence of such an objection against the consideration of the case, the court of jury should be resolved the issue of the allocation of a case in relation to the accused, opposed against the jury court in the manner prescribed in Art. 30 Code of Criminal Procedure.

At the same time, the lawyer must be borne in mind that the allocation of the case is possible only under the condition that this will not affect the comprehensiveness, the completeness and objectivity of its research and permission. In this case, the selection of cases is permissible, for example, in connection with the suspension of production, when any of the accused disappeared; in the case of a mental or other serious illness of the accused; With the uninstaluation of any of those subject to criminal liability, as well as in relation to a minor, attracted as accused together with adults.

The allocation of cases of group crimes without previously listed circumstances is greater complexity for the court and is usually unacceptable. This is explained by the fact that with a separate consideration of cases about accomplices, it is very difficult, and most often it is impossible to establish by the court of all the circumstances within the subject of proof, and especially delimitation of the degree of guilt of the accused and identify the circumstances affecting the degree and nature of the responsibility of each.

It is also unacceptable to allocate the case in cases where the accused committed a crime together with respect to one object, as well as if a separate consideration of the case may result in a change in the qualifications of the deed. The allocation of business can be made only with strict observance of the rights and legitimate interests of the accused, victims, civil plaintiffs, civilian respondents.

If it is impossible to allocate a criminal case into a separate production, a criminal case is generally considered by the court with the participation of jurors.

When familiarizing the accused with all the materials of the case at the end of the preliminary investigation, the investigator is obliged to clarify the accused of his right to apply for the court of jury (in cases provided for by paragraph 1 of Part 3 of Article 31 of the Code of Criminal Procedure), as well as legal consequences of satisfaction of such a petition, including Features of appeal and consideration of complaints about the sentences of the jury (paragraph 5 of Art. 217 of the Code of Criminal Procedure).

The petition of the accused of consideration by his case by the court of jury or his refusal to use the right to consider his jury by the court, as well as another position of the accused of this regard, the investigator is obliged to fix in a separate protocol, which is subscribed to the investigator and the accused.

Meeting the materials of the case, the lawyer must check this circumstance and make sure that in the case there is really a corresponding protocol (on cases of crimes committed by a group of persons, the protocols should be drawn up separately in relation to each accused).

The accused, who did not declare the petition for the court of jury, should be in a timely manner (before drawing up the indictment) is notified of the statement of such a petition to another accused. At the same time, he should be explained the right to declare an objection to the consideration of the case on the rules established by Section. XII of the Code of Criminal Procedure Regulatting Production in the Jury Court.

The lawyer should keep in mind that the investigator about such an explanation should also compile a special protocol, which is signed by him and accused. The accused who did not declare the petition about the consideration of the court of jury, regardless of this uses all the procedural rights provided to the accused, which declared the specified petition, including the right to participate in the preliminary hearing of the case.

The participation of the defender for all cases that can be considered by the Jury Court, when declaring the end of the preliminary investigation and presentation of all the materials of the case, at the preliminary hearing of the case of the judge and in the proceedings of the case by the court of jurors (Article 51 of the Code of Criminal Code of the Russian Federation). If a case that can be considered by the Jury Court is accused of several persons, then all of these stages of production should be provided with defenders, regardless of what articles of the Criminal Code of the Russian Federation they are charged.

At the same time, the investigator and the prosecutor in the procedure established by law are obliged to ensure the participation of a defender for such cases, if the defender was not invited by the accused themselves or other persons on his instructions. Refusal to the defender in cases provided for by paragraph 2-7 h. 1 of Art. 51 and part 4 art. 247 of the Code of Criminal Procedure, in any stage of production on cases considered by the Jury Court, is not required for the court, the investigator and the prosecutor.

The absence of a defender of the accused will be a significant violation of the criminal procedure law. This is due to the fact that the participation of protection in this stage gives the accused of the opportunity after familiarizing with the materials of the case and the petitions of other accused not only to accept the deliberate decisions on the choice of court, which can be considered by his business, and the consequences of his refusal of the application for the court of jury, But also correctly appreciate the legal consequences of satisfying such a petition, including the features of appeal and consideration of complaints of the sentences of the jury.

Preliminary hearing The judge is made alone in a closed meeting with the obligatory participation of not only the prosecutor, but also the accused, which announced the petition for the court of jury, and his defender.

In the preliminary hearing of the case, the victim and his lawyer is entitled to participate.

If the case is accused of several persons and there is a petition for the consideration of the case by the court of jurors of one of those accused of the absence of objections from other accused of such a procedure for consideration, the preliminary hearing is carried out with the participation of all accused cases.

The preliminary hearing in the absence of the accused can be carried out in cases where it applies to the consideration of the case in its absence either on its own initiative refuses to participate in the meeting (Art. 234 of the Code of Criminal Procedure). Therefore, in such cases, the lawyer must make sure that his prostrate on his own will, and not at anyone, forced refused to attend the preliminary hearing of the case. A relevant written petition or statement of the accused should be attached to the matter.

In case of failure to appear in the meeting of the defender for disrespectful reasons, as well as when the participation of the defendant elected defender in the preliminary hearing is impossible for a long time, the judge is obliged to take measures to participate in the meeting of the lawyer appointed by him.

The failure of the victim should not prevent the preliminary hearing of the case.

The preliminary hearing is based on the principle of adversarity. As a rule, the participation of the victim in the preliminary hearing is happening in cases where the prosecutor refuses the prosecution or makes significant changes.

However, the lawyer must take into account that the victim does not have the right to object against the ceases. At the same time, the chairman must clarify him of his rights, according to which the termination of the case in view of the refusal of the state prosecutor from the charge, as well as the change in the charges, does not impede the subsequent presentation and consideration of a civil law in civil proceedings.

During the meeting, the lawyer has the right to declare various petitions and express his opinion on the petitions declared by other persons. In order to solve these issues correctly, the lawyer when familiarizing with the materials of the case should carefully study all the petitions previously declared by anyone under the preliminary investigation.

If some of them were unreasonably rejected or partially considered by the investigator or the prosecutor, the lawyer has the right to declare them again at the preliminary hearing stage.

Expressing your opinion on the petitions of others, the lawyer is obliged to bring arguments in favor of his point of view. If necessary, at this stage, the lawyer has the right to declare applications about the announcement of documents introduced to the case, to verify the admissibility of evidence.

If there is sufficient grounds for the appointment of the court session, the lawyer should express its judgment about this, as well as about what persons he considers it necessary to call at the court hearing.

The lawyer should be borne in mind that at the requests declared in the preliminary hearing of the case and other participants in the process, the court, after finding out the opinion of the Parties, may decide on the challenge to the court hearing of new witnesses, experts and specialists, about recovery and attachment to the case of real evidence and documents, about changing the accused measure of the preventiveness, about the civil suit and measures of its collateral, as well as the production of expertise, if the circumstances that are important for the presentation of the conclusion do not require additional clarification and at the same time the rights of the accused and other participants in the process are not violated criminal procedure law.

In addition, the lawyer must remember that the decision of the judge on the consideration of the case of the jury by the court is final and in the future cannot be revised on the motive of the refusal of the accused of consideration by this court (part 5 of Art. 325 of the Code of Criminal Code of the Russian Federation).

One of the features of the preliminary hearing stage of the Jury Court is also the fact that in accordance with Part 1 of Art. 237 Code of Criminal Procedure The judge on his own initiative is entitled to direct the case to the prosecutor to eliminate the obstacles to his court in cases where:

• 1) establish that the indictment or indictment is drawn up with violations of the requirements of the Criminal Procedure Code, which eliminates the possibility of a decision by the court of sentence or to make a different decision on the basis of this conclusion or an act;
• 2) a copy of the indictment or indictment was not awarded to the accused;
• 3) there is a need to draw up a prosecution or indictment in a criminal case, aimed at the court with a decree on the application of a forced medical measure;
• 4) there are grounds for connecting criminal cases;
• 5) When familiarizing the accused with the materials of the criminal case, he was not clarified by the rights provided for by Part 5 of Art. 217 Code of Criminal Procedure.

No less important issue resolved at the preliminary hearing of the case is the question of the admissibility of evidence in the case. It can also be considered in the stage of trial, but most often arises precisely on the preliminary hearing of the case.

The requirement to verify the admissibility of evidence used in permission of a criminal case is characteristic of not only the process involving jurors. It used to be inherent in Russian legal proceedings, although it was not formulated in the Code of Criminal Procedure in general, and it was reflected in fragmentary, in individual articles, mainly in a negative form.

For example, h. 2 art. 9 of the Code of Criminal Proof of the RF prohibits the admission to the testimony of the accused and other parties involved in the use of violence, torture and other illegal measures. Therefore, the evidence obtained by such an illegal way should be admitted by the court are invalid and not used to justify the charges. The actual data reported by the witness cannot serve as evidence if it cannot indicate a source of his awareness (Art. 75 of the Code of Criminal Procedure), and others.

According to Art. 75 Code of Criminal Procedure The evidence obtained in violation of the law is unacceptable. Invalid evidence does not have legal force and cannot be based on the prosecution, as well as to be used to evaporate any of the circumstances provided for in Art. 73 Code of Criminal Procedure. Therefore, this rule should be applied for all cases, regardless of what the court, with the participation of or without the participation of jury, they are considered.

At the same time, the specified position in the jury Court is becoming special. This is due to the fact that under the usual order of trial, the issue of admissibility of one or another evidence is solved in its assessment, after the study, checking both of this evidence and the entire totality of evidence. As a rule, this is done when sentencing.

Since some special decision on this issue is not required, it is often disregarded, and the evidence obtained in violation of the law appear in the sentence along with others. In addition, if the court recognized them with a violation of the law, this data could somehow influence the decision of judges.

As for the cases considered with the participation of jury, if they are considered, invalid evidence should not be known to the jury meetings at all, and therefore the law requires that they are excluded in advance, if possible, in the course of the preliminary hearing of the case or in trial in the absence jury.

The fulfillment of this requirement suggests that the lawyer is clearly aware of the essence of the notion of evidence. It can be determined as an unsuitability of evidence to resolve the case in terms of compliance with the procedural form, i.e. The legality of sources, methods and techniques for obtaining evidence.

As already noted, only such information on the basis of which the court, the prosecutor, the investigator, the investigator, in the manner defined by the Criminal Code of the Russian Federation, establishes the presence or absence of circumstances to be proof in criminal proceedings, as well as other circumstances, may be recognized as permissible evidence. What is important for a criminal case (part 1 of article 74 of the Code of Criminal Procedure). These include: the testimony of the witness, the victim, the suspect, the accused, the conclusion and testimony of the expert, the conclusion and testimony of the specialist, the physical evidence, the protocols of investigative and judicial actions and other documents.

This list is exhaustive, so the evidence obtained from the sources not specified in the law is unacceptable. For example, the theory and practice was reasonably not adopted at one time suggestions to use as evidence the fact of the sample of a service dog by the smell of a person or subject.

In principle, evidence can be obtained from any source called in Art. 74 Code of Criminal Procedure. However, in some cases the law contains mandatory requirements for a source of certain information.

So, in Art. 196 of the Code of Criminal Procedure lists cases when the production of examination is required. These include:

• 1) establishing the causes of death;
• 2) the establishment of the nature and degree of harm caused to health;
• 3) determining the mental or physical condition of the accused or suspect when doubts arise in their savers or ability to independently protect their rights and legitimate interests in criminal proceedings;
• 4) the definition of the possibility of the victim, taking into account his mental or physical condition, to correctly perceive the circumstances of the importance for the criminal case and give indications about them;
• 5) Establishing the age of the accused, suspected and victim, when it matters for a criminal case, and documents confirming its age are absent or cause doubt.

All this means that these data should be obtained only by the production of expertise and no other (for example, by the extermination of any medical certificates, interrogation of witnesses, etc.).

In order to be used in judicial proof, the mined data should acquire the status of evidence, i.e. Must be obtained by the investigator or judgment of the sources mentioned above by producing procedural action provided by the law. For example, a video recorder fixing the detention with a polishing group of extortionists, after an official presentation by its body carrying out operational investigative activities, must be attached in accordance with the protocol to the case; must be questioned as a witness a person who has made such a record; Other investigative actions were held to find out the question of when, and under what circumstances the record was made to check the authenticity of the video, explanations on this occasion of suspects and accused, etc.

A lawyer must be borne in mind that any type of necrossal information does not have the property of admissibility. By themselves, the data obtained, for example, as a result of operational investigative activities, are not evidence, because they do not comply with the normative definition of evidence. Also among the evidence to be exceeded from the circle of evidence as invalid, a significant place is taken by the testimony of persons published on the preliminary investigation as witnesses, but according to the law that cannot be such.

Thus, the court declared invalid proof of the testimony of the defendant I., which were given to them at the first interrogation as a witness, based on the constitutional provision that no one must testify against himself (Art. 51 of the Constitution of the Russian Federation). The testimony of close relatives of the defendant was also excluded if they were not clarified at the interrogation of the constitutional right to refuse to date the testimony (Article 51 of the Constitution of the Russian Federation).

However, if their testimony has no information of the accusatory nature in relation to the defendant G., such testimony was allowed by the court as evidence. At the same time, in the case of R., accused of intentional murder, and P. - in the hiddenness of this crime, the court excluded the testimony of the wife of one of the accused - Maria P., which, when interroging, was not clarified by the right to refuse cottages Indications. The court reasonably considered that although Maria P. did not rise in them with her husband, and another defendant - G., However, they were very closely connected, thereby actually gave testimony and against their spouse.

The court reasonably excluded from among the evidence in the case of Brothers B. Indications P., who expressed the defendants, because he was recognized as an examination and unable to give the right testimony about the circumstances of the case.

Evidence must be obtained only by a controlled person, i.e. The person who, in accordance with the law, competely produce investigative actions on the case (included in the investigative brigade, etc.). Thus, the Moscow Regional Court for the Affairs of the G. and Z. reasonably recognized invalid testimony of witnesses interrogated by investigators who did not affect their production.

How invalid should be excluded and the evidence obtained by the person producing inquiry, the investigator, the prosecutor or the judge should be excluded, if it turns out that such a person is to be discovered due to any circumstances testifying to its interest in the outcome of the case. For example, the Moscow Regional Court recognized the testimony of witnesses that did not have evidentiary power obtained at the interrogation by the police officer A., \u200b\u200bwhich was later recognized by the victims later.

Quite often, the cause of excluding evidence as invalid is the violation of the procedural rules for obtaining evidence. It is about the fact that the materials received by the production of investigative actions before the initiation of a criminal case (except for inspection of the scene), explaining eyewitnesses of the incident, the future of the accused, etc.

The protocol of a personal search of the accused and the protocol inspection of the scene of the incident is also subject to exception, if these actions in violation of the law were produced without the participation of those who are understood; The data on the withdrawal of weapons, which was not issued documented in accordance with the law; the testimony of the accused questioned with the participation of the defender against whom he objected to; The testimony has not reached 14 years old witness questioned on the preliminary investigation without the participation of the teacher.

Often considering the question of the admissibility of any evidence in connection with the violation of the procedural rules of its receipt, the lawyer has to be addressed: any such violations can serve as a basis for excluding evidence or only significant? In our opinion, the second decision will correct. This is due to the fact that the rule that only significant violations of the procedural norms in the production of investigative actions and decision making give reason to recognize these actions and decisions illegal, is one of the general provisions of the Code of Criminal Code of the Russian Federation.

Significant violations of the Criminal Procedure Act recognize such violations of articles of the Code of Criminal Procedure of the Russian Federation, which by deprivation or constraints guaranteed the rights of participants in the process when considering the case or otherwise prevented the court to comprehensively consider the case and influenced or could affect the decision of a legitimate, justified and fair sentence.

It should be recognized as invalid and evidence obtained with a violation of constitutional guarantees, the rights and freedoms of a citizen, for example, as a result of a search, excavation of correspondence, while listening to telephone conversations conducted against the law without a court decision.

The value of violations that are not so significant should be estimated in each particular case depending on whether they influenced or could affect the accuracy of the evidence obtained; Whether the data obtained is irretrievably lost for business or the violation allowed can be eliminated, fill the gaps and save proof, especially if it is important for the permission of the case.

For example, in the protocol of investigative action should, in particular, to indicate the time of its beginning and end. Of course, the absence in the interrogation protocol of the accused these data is not a reason to exclude readings recorded in it, since, as a rule, the exact time of interrogation has no significant value. However, if, for example, there will be serious reason to believe that the interrogation was made at night, and even for a long time, this may, taking into account specific data, indicate pressure on the accused and entail the elimination of this protocol from the number of evidence in the case.

In another case, if the accused in a timely manner was not clarified by his right to declare a discharge expert, and therefore he could not take advantage of this right, although, from his point of view, had a foundation for this, an expert opinion could be recognized as invalid proof.

At the same time, the lawyer cannot agree with the court, when one, for example, excludes from among the evidence, the conclusion of a forensic examination for those reasons that the victim was not familiar with it in a timely manner. Such a violation does not undermine the accuracy of the conclusion, it can be easily eliminated, having acquainted the victim with this conclusion directly at the court hearing and listening to its objection on the merits.

In the preliminary hearing of the case, evidence is not investigated in essentially, therefore, it is possible to exclude the proof at this stage only if its illegality can be established without such a study if they are evident from the written materials of the case. To verify the admissibility of the evidence available, documents adopted to the case may be announced.

Thus, on the preliminary hearing of the case, it is possible to come to the conclusion about the inadmissibility of evidence if they were obtained:

• 1) from the sources not provided for by law;
• 2) uncontrolled face;
• 3) as a result of investigative actions made in violation of the law without a court decision, with an obvious violation of procedural rules, etc.

In cases where it requires its direct study or finding out the conditions under which it was obtained, and it is impossible to implement it in the preliminary hearing, the permission of this issue must be left before the trial.

It cannot be resolved in the preliminary hearing of the case and application for the exception of indications based on application by interrogation on the preliminary investigation of violence, threats and other illegal measures, since this requires a direct study and a thorough verification of testimony data at the court session.

Since the evidence obtained in violation of the law is often excluded by the evidence court, it should oblige a lawyer carefully and demanding to verify the compliance of the existing evidence of the law. Finding such violations, the lawyer must raise the question of the recognition of certain evidence unacceptable. At the same time, he should be reasonable and argued to object to the exclusion of evidence that are not unacceptable.

A rather complicated procedure is formation of the Board of Jury. It is indisputable that the jury should consist of objective, respectable and sensible people living in a given locality. For this, the procedure for attracting citizens to fulfill the duties of jury meetings was developed.

For example, general and spare jury lists are drawn up by the local administration based on voter lists by random sampling. From lists, persons who are not eligible to be jurors are excluded, as well as persons who submitted the relevant written statements.

Sometimes, when drawing up lists of jury, violations are allowed. Thus, the lists include persons who have no removed or not redeemed conviction that have not reached 25 years and other citizens who are not eligible to be jurors. To ensure the objectivity of the jury on a specific case, the procedure for the formation of the jury collegium in the preparatory part of the trial stage is extremely important (Article 327-334 of the Code of Criminal Procedure).

The jury challenge is carried out by the court apparatus in accordance with the order of the presiding number of persons included in the list of assessors, through random sample in the amount of at least 20 people (Article 327 of the Code of Criminal Procedure).

In accordance with the principle of publicity of the judicial proceedings, including a lawyer, it is entitled to apply for them to be informed about how the meeting was challenged (by computer sample, draw, etc.). This is necessary for the process participants to make sure that the established procedure for attracting citizens to the fulfillment of jury duties.

Presiding at the court session during the selection of jury meetings, it is obliged to exempt from the performance of the duties of jury, whose objectivity is raised by the reasonable doubt due to the illegal impact that they have a prevailing opinion, awareness of the circumstances of the case subject to consideration. In addition, suspected suspects or accused of committing a crime is exempt from execution of jury; Persons who do not speak the language on which the proceedings are underway (in case of insecurity in the trial of synchronous translation); Silent, deaf, blind and other disabled (in the absence of organizational or technical capabilities of their full participation in the court session).

In order to identify persons to be released from participation in the consideration of the case, the chairperson asks the jury issues proposed in writing by the lawyer and other participants in the process, as well as other issues at their discretion. Singing jury involves the activity of the parties. The success of the lawsuit of the education procedure for the formation of the joint assessment board is largely determined by his ability to formulate the questions with which he addresses citizens invited to the court for the selection procedure into the composition of the Board.

Jury meetings can be asked, for example, the following questions:

• Do you know anything about the circumstances of the specified case, from which sources, what exactly?
• Are you familiar with the judge, the prosecutor, the victim, the defendants, other participants in the process, if so, what character is this acquaintance?
• Did you have an impact on you to prevent an unbiased attitude to the case?
• Were you either your close to ever victims of crimes, what exactly?
• Do you work or do any of your loved ones in law enforcement agencies?
• Do you live in this area constantly?
• Have you been a jury (folk) as a jury, when exactly?
• What are your social status, education, occupation? (Part of these information lawyer can get from officially handed over to him the jury.)
• Do you have good reasons for liberation from the duties of the jury at this case?

Of course, such questions are affected by the jury formulate a lawyer in cases where they were not supplied by the chairperson on his initiative. In addition, the lawyer has the right to declare a discharge to jurry, which is permitted by the court in the manner prescribed by law. Thus, a dishone of persons who are not eligible to be jury, if they have not been released from the responsibility of the jury by the presidency of the chairmanship. The selection of the jury is completed with the draw.

Parties are given the opportunity unmotivated jury. This discharge is required for the court. If during the survey of the jury, the lawyer will come to the conclusion about the possible bias of any of them or the inability due to other reasons to accomplish the entrusted duties, he, in coordination with his client, is entitled to declare twice, for which it should, without announce, strike out the list of these facial and return the list of presiding officer (paragraph 2 of Part 5 of Art. 327 of the Code of Criminal Procedure).

The question arises, in what cases does the lawyer be taking advantage of the right to unmotivated jurry? In our opinion, jurisders who are aware of the circumstances of the case of non-incomplete sources should be released from participation in the trial, for example, from familiar or from the media.

According to awareness, it should be borne in mind such a degree of awareness of the circumstances of the case, which may affect the objectivity of the jury, if the latter has already formed an opinion on the case. The awareness of the jury about the circumstances of the case serves as a basis for the discharge only in cases where this may prevent the assessment objectively to evaluate the evidence under investigators and influence its position when submitting verdict.

Sometimes it is difficult to find jury members who are not aware of the circumstances of the case under consideration. Therefore, the decision should be adopted by a lawyer in each specific case, taking into account the nature and volume of information on the case, a well-known assess. This is due to the fact that on the direct question of the jury: "Do you consider yourself biased in this case?" Most likely, a negative answer will be given, although it will not always be truthful.

Therefore, for judgment about the real bias of the jury, it is obviously necessary to ask him indirect questions. So, if the jury declares that he learned about this crime on television, the lawyer should ask him, for example, issues: "What exactly did you hear and saw on TV?", "How trusted reports of this kind to the media, in particular, television? " et al., In order to conclude on the answers to conclude about the bias or unpredictment of the assessment.

In the judicial practice of a number of foreign countries, there is a reasonable rule, according to which it is advisable to remove the jury, former victims of crime (especially similar in which the defendant is accused), since they are not easy to show objectivity, as well as persons whose loved ones work in law enforcement agencies (pressure on these jury can be put pressure).

Also, the lawyer should take advantage of the right of an unmotivated discharge in order to eliminate the person who during the survey expressed explicit reluctance to fulfill the duties of the assessment, because there will be nothing worse than that "Sleeping Judge." It will be advisable to receive a lawyer and in the event that he had the opinion that someone from the assetempts due to low-education, low intellectual and cultural level could not cope with their responsibilities in this case.

The lawyer can also take advantage of the following method. So, after the setting of "uncomfortable" questions, the jury presiding the right to have the right to suggest those of those who wanted to inform anything, as well as the prosecutor and the defender, and listen to the jury, thus keeping some confidentiality. This is especially true of cases in which racial or national feelings are affected. Using such a reception, presiding and the parties can be fulnent to ensure the objectivity of the jury jury. Interestingly, the first thing examined by the jury after the revival of this institute in the Russian Federation, it was such a character.

So, the brothers M. - Gypsies by nationality - accused of murdering with the mercenary goal of three Russians. Nevertheless, the jury, among which there was not a single gypsy, made a fair verdict, consider the initial charges unproved, and in accordance with the results of the trial, they were recognized as defendants by murder if the limits of the necessary defense were considered.

In addition, in the selection of jurors, a lawyer should first pay attention to their personal qualities - law-abradiance, respectableness (how much about them can be judged by the available data). It is also possible to make a lawyer of special issues. At the same time, it is necessary to keep in mind that almost no one is openly recognized in nationalism or chauvinism, so questions should be well thought out. It is also unacceptable that they are humiliating to defendants, victims and jury themselves.

For example, at the I mentioned the case of the M. Brothers, asked the question: "Have you had previously conflicts with the people of Gypsy nationality?" The question, in our opinion, was quite correct and at the same time allowed us to find out the existence of objective reasons for the assessors biased to treat people a certain nationality.

It is indisputable that the nationality of the assessors in their selection should be taken into account by a lawyer, but at the same time unacceptably the liberation of jury or their discharge only in connection with the national affiliation (for example, the exclusion from the jury of all persons of one nationality with the accused).

In principle, the jury for a successful solution to the lawyer tasks should include people of different social status, gender, age, education and classes.

Drying in one direction or another can be detly. Imagine that these days, when social tensions reaches a critical point, an entrepreneur accused of enrichment by criminal fraud is the defendant, and the jury will be fully consisting of people receiving minimal income. Can the jury objectively treat the accused? Unlikely. It is likely that the top will take emotions, a vulnerable sense of social justice.

A. F. Koni, at one time, reasonably acted against "excessive jury, who gave rise to an artificial selection of composition, is preferably intelligent, simple and immediate, depending on the interests and goals of the discrepancing."

After the selection of jury meetings and permission to make the challenges, presiding the draw should begin procedure for Education Board of Jury As part of 12 complete and two spare assessors.

If, when solving the issue of discharges or during the formation of a jury, any violations, which influenced the correctness of the formation of the board of the jury, the lawyer has the right to apply for an announcement of the procedure invalid and conducting it in full, or in part.

So, in one case, considered with the participation of jurors, 31 people were included in the list of induced assessors, but the meeting room was 33. Further, after the implementation of the selection procedure, taps, the draw turned out that in one of the tickets, laid down In the urn for the draw, the name of the assessor was indicated, which was absent in the courtroom and was not listed in the list of induced persons. The lawyer, in our opinion, in this situation quite reasonably made a statement about the need for dissolution of the jury collegium in connection with the violations of the law approved during the formation of the jury, and the presidential agreed with him.

Before bringing the assessors to the oath, the lawyer has the right declare trendyness Total the composition of the Board of the jury (Art. 330 of the Code of Criminal Procedure of the Russian Federation), if it comes to the conclusion that due to the nature of the case under consideration, this composition of the Board may be unable to endure an objective verdict. The lawyer's statement must be motivated. This is a special form of participation of the parties in the formation of the board. The specified right is enshrined by a lawyer and other subjects of the process, along with the possibilities, actively participate in the selection of jurors by removing specific biased assessors.

The statement of a lawyer on the tendentiousness of the board may be justified if due to the violation of the rules for compiling the lists of jurors, the order, in accordance with which citizens call for the fulfillment of the duties of jury assessors, or by virtue of other reasons, the principle of proportional representation of the population in the jury collegium turned out to be disturbed so much that Good grounds to doubt the objectivity of the jury.

As an example, a deliberate exception to the jury representatives of a certain nationality, if the nature of the case is such that national feelings may affect the position of the assessors. Other situations are possible.

Thus, in the case of rape of the 13-year-old girl, the jury turned out to be formed so that its composition of 14 people (12 complete and two spare assessors) included 12 women and two men. Therefore, the lawyer reasonably made a statement about the dissolution of the jury collegium due to its tendency. The statement was satisfied with the chairperson, since, on rape cases, the sexual affiliation of the jury is voluntarily or unwittingly affect their perception of the circumstances of the case, and with the like composition of the jury - lead to one-sidedness of his position.

• Archive of the Moscow Regional Court for 2007
• Archive of the Moscow Regional Court for 2009
• Archive of the Moscow Regional Court for 2011
• Koni A. F. Judicial speeches. St. Petersburg., 1905. P. 865.
• Archive of the Moscow Regional Court for 2006
• Archive of the Moscow Regional Court for 2010

On the competence and procedure for the formation of the Institute of Investigation Judges in the Russian Federation

1. The purpose of the establishment of the Institute of Investigation Judges in Russia is the fundamental modernization of the Russian criminal procedure so that it is fully implemented by the requirement of the Constitution of the Russian Federation on the contestual construction of legal proceedings (Part 3 of Article 123), and active judicial participation and real judicial controls have spread to all Stages of the criminal process. The main defect of the current Code of Code of Criminal Procedure ─ The domination at the so-called pre-trial stages of the process of the prosecution and the actual procedural unequivociety with it as a result of protection, as a result of which the judicial evidence is formed, in fact, by the public prosecutor (by the investigator, in the investigator), while the other side ─ Protection ─ This feature does not possess. The lack of competition in the preliminary investigation manifest itself in the weakness of the court, which is content here only formal and limited judicial control over the observance of the rights of the participants in the process. In fact, judicial in nature, the function of legal proceedings associated with the formation of judicial evidence at pre-trial stages is fulfilling the prior investigation authority. The revolving side of such a quasi-judicial and quasis-bearing proceedings of legal proceedings is redundant formalization of the preliminary investigation, its written-protocol procedural form, is quite appropriate for court sessions, but the foreign onwards for the preliminary investigation, because it deprives its flexibility and speed, it is exampering the investigation time, as well as the time of detention accused of custody.
2. The task of the investigative judge should be to implement an active judicial control over the investigation, however, without the adoption of the functions of criminal prosecution. Incidental judge, in no case should lead criminal prosecution, i.e. Search and expose the guilty ─ is the natural function of the accusation organs. The investigative judge should not be initiative and to collect new evidence to confirm or refute the versions of the charge and protection, and is authorized only to check and evaluate the information provided by the parties.

To fulfill the task, the investigative judge must be endowed with the following powers:

1) on the control of legality and validity

2) according to the refusal to agree on the initiation of criminal prosecution (case), as well as to terminate the criminal case in the event of insufficient evidence given by the part of the accusation of the substantiation of the above decisions;

3) under the application of the parties ─ charges and protection ─ so-called judicial investigative actions, as a result of which the information pre-assembled by the parties can be legalized after their inspection of the investigative judge as judicial evidence, that is, such that can be used in legal proceedings, including The number of the investigative judge by themselves when making them decisions in the case, and allowed in the trial stage. Information that did not pass such a preliminary competition court may not be made by the court as the basis for procedural decisions in the case on the preliminary investigation, nor in subsequent stages, although they can be represented by the parties to the subsequent configuration and recognition by judicial evidence;

4) to be appointed at the investigation stage - in the conditions of a court session with the participation of the parties - judicial expertise (at the request of the parties, or - in cases of compulsory examination - on its own initiative);

5) in order to solve the authorities of the preliminary investigation to police (prosecutor's) and operational-search actions that limit the constitutional rights of the individual;

6) to make decisions (at the request of the part of the accusation) on the preventive measures and other measures of procedural coercion;

7) to consider complaints against actions (inaction) and solutions to the preliminary investigation bodies and the prosecutor, including on the inadmissibility of evidence received by the Parties and a violation of a reasonable term for the proceedings;

8) to consider complaints about the protection of criminal prosecution in the presence of a judicial act confirming the challenge of actions committed by the suspect (accused).

9) By adoption (at the request of the part of the accusation), the final for the preliminary investigation stage of the decision on the transfer of the case with the accusatory conclusion in the court.

At the same time, the judicial function should be carried out by the investigative judge discretely, in the form of judicial investigative and other procedural actions (on the initiation of criminal prosecution, the country of consent to conduct police or prosecutory actions) or in the form of competing court hearings (upon presentation of the charges, resolving issues on preventive measures, Consideration of petitions and complaints, the transfer of business to the Court), in the intervals between which the investigation in the prescribed manner only parties exercise.

If the parties for reasons of the elect procedural tactics are not interested in immediate legalization as judicial and the volume of information and materials they have, they are entitled to present the protocols collected by them, objects, witnesses, experts, etc. At the subsequent judicial stages (first of all, on the preliminary hearing), where ─, subject to the earlier acquaintance with them, the participants in the process ─ may address the recognition of such materials as permissible in the court proceedings. However, the prosecution, in any case, is obliged to take efforts to take efforts to obtain and legalize before the investigative judge of the aggregate of judicial evidence, which, at least, is sufficient to attract a person as an accused, and subsequently for the legend of the accused Court.

3. Thanks to the transition to such a system, the process should be fully configured: the judicial function for consideration and resolution of procedural issues on the preliminary investigation significantly lines the capabilities of the parties to the charges and protection; Guarantees the accuracy of judicial evidence, as well as the immediate transfer of the case to the Court (since judicial evidence, which immediately become known to both parties with an opposing court of their acquisition, as a rule, cannot wait for a long time), respectively, reduced the prior detention periods ; The possibility of the so-called parallel ("lawyer") investigation becomes the possibility of the so-called parallel ("lawyer) in the investigation bodies, since evidence is recognized as permissible investigative judges, the time is released for effective disclosure of crimes.

The introduction of the Institute of Investigative Judges is promoting substantial benefits and judicial system as a whole:

• participation in the process of the investigative judge will fully liberate the district courts from the burden of issues of issues in the order of Art. 29 (Ch.ch. 2-3), 125, 165 of the Code of Criminal Procedure;
• the presence of interrogation protocols obtained during the preliminary investigation by the investigative judge and already acquired the status of judicial evidence, will facilitate their use in court proceedings without complying with such conditions as the announcement of previously data testimony of witnesses and victims with the consent of both parties (part 1 of Art. 281 Code of Criminal Procedure); There practically exclude cases when the testimony of the suspect or the accused must be recognized by invalid evidence if they were obtained on the preliminary investigation without the participation of the defender and were not confirmed by him in the trial (paragraph 1 of Part 2 of Art. 75 of the Code of Criminal Procedure);
• in many ways (if not completely), the problem of returning a criminal case by the court to the prosecutor for an additional investigation or to correct other shortcomings of the preliminary investigation.

It seems that all this will reduce the burden on the courts both when considering them on the merits in the first instance and in the higher courts.

1. The procedure for preliminary investigation with the participation of investigative judges could be applied differentially: on cases of crimes quite high severity (especially grave, grave and a number of centers), while crimes of a small severity could be investigated mainly in the simplified form of inquiry With the subsequent transfer of the prosecutor, the case directly to the court for consideration on the merits. This would optimize the amount of load perinuvement, as well as the criminal prosecution authorities.
2. Taking into account the above subject contrast, the Institute of Investigative Judges would be appropriate to introduce at the level of regional, regional and republican courts, whose members would be both before imposing the responsibilities of the investigative judge and after their release from this function (with the immutability used during their appointments for the positions of the existing judges of the order of their selection). It seems that the term of office of investigative judges should not be less than 3-5 years: the allocation of their special competence and their rotation, contributing to the provision of independence and the necessary specialization in legal proceedings, would allow to strengthen anti-corruption practices in the law enforcement system and courts, contributed to the increase in the authority of judicial authorities. However, the law should be especially stated that the investigative judge exercises its authority regardless of anyone, including the court at which it consists.

6. Duty control over the decisions of investigative judges will require the creation of a separate investigative chamber with the powers of the appellate instance in the regional, edge and equal in the level of ships. There is an opportunity to take advantage of the positive domestic experience of control over the investigative judges from the investigative chambers (chambers) of the appellate courts (Article 491, 492, 504-507, 534, and others. Charter of criminal proceedings of 1864). So, the following actions were assigned to the subject of verification in order of such control: consideration of complaints of procedural disorders admitted by the investigative judge at the preliminary investigation stage, the incompleteness of the investigative actions and the refusal to conduct them, the wrong refusal to initiate criminal prosecution, as well as the decision to excitation and continuation in the presence of circumstances excluding production. In the latest cases, the investigative chamber needs to be given the right to terminate a criminal case.

In addition to consideration of complaints of current acts of investigative judges, the investigative chamber also will also be able to monitor the legality and validity of their decisions on the transfer of cases to the court for consideration on the merits, which, besides, will relieve a judge that makes a case to its consideration, from The need to make it binding it - to one degree or another - the decision to led the accused Court. Therefore, the appellate control would not be predetermined by the decision of the guilt, because it is only about procedural issues of investigative actions or their completeness (as it was established, for example, Art. 491 Charter of criminal proceedings). In addition, the appellate instance should not have a collective "head of the investigative authority" in relation to the investigative judges, so that any responsibility for the preliminary decisions of the investigative judge regarding the charges.

Head of Standing Committee

in civil participation in legal reform

Council under the President of the Russian Federation

for the development of civil society and human rights T.G.Morchechkova

As practice shows, not all defenders know how to work with jury, directly during the court sessions. What to say, about preparing for the court of jurors at the stage of preliminary investigation. Meanwhile, at this stage it's time to prepare the ground for success in the subsequent lawsuit ...

Required reservations.By deciding on the choice of a form of legal proceedings with the participation of jury, it is natural necessary to take into account the corresponding outproduction factors that were partially described in the article "Factors influencing the jury." .

The next stage of preparation of the case to the court of jury, is the development of a security strategy suitable for this particular case. On this issue, we will not stop separately, because it was disclosed in detail here -; .

Repeat earlier, there is no point. Therefore, in the future we will proceed from the premise that the conscious choice of the jury has already been made, and the protection strategy (at least in general terms) is scheduled.

Another nuance. Earlier, disclosing the topic of protection strategy, I did not have the need to hide some individual moments. Unfortunately, the same cannot be said about the reasoning on the topic of protection tactics. Talking about the tactics of countering individual investigative actions, the topic is extremely interesting, but unfortunately, it is according to it and have to restrain himself. And the point here is absolutely not in my "greed" and unwillingness to share the techniques and methods with colleagues and defenders.

In some cases, the disclosure of the tactical secrets of the activities of the defender may entail a decrease in the effectiveness of a specific admission (up to its full use), and for the use of individuals, in general, you can "fly out of the advocacy" or worse. Unfortunately, the effectiveness of tactical protection techniques is very often the inverse dependence on their secrecy for the accusation, and sometimes on the degree of their legality.

Therefore, it is not always possible to illustrate their theses with specific examples, not only from its own practice, but also simply, abstract examples, without avoiding the threat to reduce their effectiveness or to reduce it to zero, and even having gained problems for their application earlier. And if I have no reason to secrete methods in front of colleagues or defenders, I would absolutely won't want my revelations to have a court or charges. Therefore, in the Tactics section, of course, I will certainly try to give some (permissible) examples, but in some cases will have to be limited to hints or purely theoretical arguments.

I suppose the reader understands that the reasons for this are very and very respectful. Thus, my task becomes not so much to bring specific techniques, techniques and illustrating examples, how much to encourage the reader to think in the right direction.

Voluntary and compulsiveness in the choice of jury. The choice of legal proceedings with the participation of jurors is the right, and not the duty of the defendant. At the same time, this right is realized in court, during the preliminary hearing, on which the defendant declares or confirms the previously made a petition for the consideration of his case with the participation of jury. However, said absolutely does not mean that the jury's court begins with a preliminary hearing. This form of legal proceedings should be started to think even on the preliminary investigation.

It would seem according to the current legislation, the choice of jury is a conscious and voluntary choice of the defendant himself, however, exceptions are often arising from this rule. There may be situations where the defendant can get to the jury's court himself not wanting, and on the contrary, to be deprived of this opportunity, despite the presence of such a desire.

I will not open America, if I say that neither the consequence nor the prosecutor's office does not like the jury, but in some cases it is even afraid. Accordingly, if the investigation and the prosecutor's office regard the likelihood of making an exclusive verdict as high, then the likelihood is that they will accept all the measures dependent on them in order to deprive the defendant such an opportunity and the first of the following methods to change the charge. Thus, to eliminate the procedural opportunity to consider the case by the court of jury.

In this aspect, one of the strategic issues to protect the question is when it should be to declare the desire to consider the case by the court with the participation of jury. Code of Criminal Procedure provides for two stages of legal proceedings on which such a statement is officially made. First, on the investigation, at the end of the acquaintance with the case materials, secondly, on the preliminary hearing in court.

Moreover, if the petition about the consideration of the case with the jury assessors was made after the 217th, then at the preliminary hearing, the defendant still repeatedly ask if he confirms his petition or refuses it (which has full right).

So, in most cases, if the accused is seriously tuned to the court with the participation of jurors, the petition about the jury trial makes sense to declare on the preliminary hearing, but not in the course of familiarization with the case materials in order. This is important for the reason that the situation systematically arises when the investigation, having learned about the intention of the accused to go to the jury, takes measures to prevent such an opportunity. What exactly?

About this below.

The inverse situation is possible when the application for the consideration of the case by the court with the participation of jurors is made on the preliminary investigation precisely in order to scare the charge and force it, for example, to change the qualifications on a less serious. Sometimes, this maneuver works well, especially in relation to such criminal "delights" as, for example, Art. 210th of the Criminal Code "Organization and participation in the criminal community", since this composition for evidence in the court jury is unusually difficult.

At the same time, saying the petition for familiarization with the case file, no one bothers the accused to abandon him on the preliminary hearing in court. Thus, stating such a petition as a result of the accused, in essence does not lose anything, leaving itself the opportunity to consider the case of the judge alone.

Jury Court, contrary to the will of the defendant.The situation when the fate of the defendant solves the jury collegium, contrary to his desire, is systematically developing on cases in which there are several defendants. In this case, a situation is possible when the opinion of the need for the jury of the defendants can differ diametrically.

Moreover, in the event that someone from the defendants will apply for the jury, the objections of the remaining defendants will not be accepted for this form of legal proceedings. This must be understood, it is necessary to monitor and, if necessary, change its strategy to protect it under the situation.

Of course, the law provides for the consequence of the opportunity to allocate the case in relation to the accused not wanting the courts of jury in separate production, that's just in practice it is almost never found. Is that a specific accused concluded a deal with a consequence and his case is considered in a special order.

The question of which cases of the jury can be useful, and in which harmful, we have previously disassembled and there is no point to stop at this again. In any case, if the defendant had no reason to desire jury, but it was still drawn (or they are going to draw) into this form of legal proceedings, it is necessary to change the strategy of protection or in any case it is essential to adjust it.

Why is one or another defendant refuses the jury? Occasionally, this is the result of an objective assessment of the position of the parties to the charges and protection in the case, the analysis of the existing and demand for such a process. Sometimes - the result of non-comprising accusation agreements.

But more often is the question of personal faith or disbelief in this institute, and faith / disbelief exclusively irrational, not based on an adequate assessment of the situation. Of course it is unpleasant to overestimate the possibilities of the jury, hope for a mild sentence, and in the end, to get an accusatory verdict, throughout the amount of the charge.

However, there are also different situations when the defendant, who fell to the jury, besides his will, receives an unexpected "gift" from the jury.

So, in particular, it was in the Ryno-Skachevsky (group of skinheads that carried out at the end of zero a number of high-profile attacks on foreigners). On the court of jury in this process, the side of the protection of one single defendant - Avvakumova S. was requested, and as a result of the verdict of jury, in addition to it, another defendant was fully justified.

Another defendant is the only adult, which, taking into account the amount of accusation, would almost certainly be convicted of a professional judge to life imprisonment, received a consecutive jury and in the end, was not small, but still the final sentence period.

A similar situation took place in the process of "white wolves", when thanks to the intensive and active protection of the defendants of Isakin, Solovyov and Sobolev, a number of other defendants were completely or partially justified.

In some cases, situations are possible when there are no resources for self-defense in the court of jurors (funds for examinations, competent lawyers, etc.) the defendant can "go" on the resources of other defendants. For example, it happened in the first process of Saransky businessman Yu.V. Shortchev.

So, exclusively by virtue of social statuses, the defendants of Yu.V. had the strongest defense. Shortchev. At the same time, his "accomplices" (or rather, to say, the poor, whom the investigation defined him in the "accomplices") as such protection was not organized and used the services of attitudes for their intended purpose.

According to the prosecution version, Yu.V. Shortchev was led by an armed group, which carried out the murder of criminal authorities of Saransk (why it took him, it could not be accused). In the process of developing and subsequent implementation of the protection strategy, the defense of Yu.V. Shortcheva came to the conclusion that the most optimal and effective will be challenged the very fact of involvement of members of this armed group (Oskina, Bogachev and Sorokina) to the murders incriminated to them.

At the same time, the version was distributed as follows:

Bogachev At the preliminary investigation, he gave fully confusative testimony, although I only partially recognized my guilt.
- Oskin. He recognized his guilt completely and gave confessions.
- Sorokin. He recognized his guilt completely, gave confessions. It was convicted in the order of special advocacy.

After the sentence entry into force when he stopped presenting interest to law enforcement agencies, he was given an opportunity to operate in a vein chamber and die from blood loss, under the sight of surveillance cameras.

During the court, Oskin remained at his position. Bogachev changed the testimony and denied his guilt throughout the amount of the prosecution with the exception of one only episode.

Proving the innocence of Shortchev Yu.V., the side of the defense challenged as the fact that he gave Oskinu, Bogachev and Sorokin any instructions for the commission of crimes and the fact that Oskin, Bogachev and Sorokin participated in any crimes (except One single episode). The challenge was carried out primarily by identifying and analyzing numerous, principal differences in the description of alleged crimes by the partners themselves.

As a result, Shortchev Yu.V, was fully justified, and Oskin and Bogachev were justified throughout the amount of the accusation, with the exception of the only episode, the blame in which he recognized the Bogachev. The recognition of Oskin on the investigation and the jury did not believe.

Refusal to the right to jury.However, there are inverse situations. When the implementation of the right to legal proceedings with jury is hampered not only by objective circumstances, but also the actions of the part of the accusation.

In addition to the desire for the defendant, procedural conditions must be completed for consideration by the Jury Court. All necessary procedural requirements are formulated in the Code of Criminal Procedure. There is a list of articles on which it is possible for the jury and for which you can only dream of jury.

To bring this list (copying it from the Criminal Procedure) does not make sense. Here I also want to say about some of the "maneuvers" charges, with the help of which the accused manage to realize the right to the jury court.

Prosecutors and judges fear (and not unfounded) processes with the participation of jury meetings, so try to reduce the likelihood of the direction of affairs to the jury to a minimum.

Such techniques can be attributed to the imposition of some kind of crime (albeit in the absence of evidence) of the criminal case from under the jury (and let the trade union retrain the act or recognizes it unproved, the proper result will still be obtained).

For example, if the accused for the "murder" (coming to the jury) "to grant" - "terrorism", then according to the current legislation, the case will be unlternately considered by the top of the trade case. Another common way, it is generally excluded from the qualifying of any formulations providing for the jury.

I will give specific examples:

So in the widespread case of Daniel Konstantinova, the latter was initially imputed. At the same time, the idea of \u200b\u200bthe direction of the case to the jury was voiced by the party of protection, not even after the end of the preliminary investigation and the fulfillment of the requirements of Art. 217th of the Code of Criminal Procedure, but before, in the investigation stage.

As a result, it's perfectly realizing that no jury, being in the right mind and solid memory, does not recognize Konstantinov guilty of incriminated murder (since all the accusations were built on an honest word of one single criminal drug addict), the investigation in the accusation in the final edition excluded the motive of national hostility And hate (although during the entire investigation insisted that the murder was committed precisely because of the nationalist convictions of Konstantinova) and a group of persons on the preliminary conspiracy (although in the initial version of the events appeared and accomplices.) Thus, Konstantinov was imputed not to the right to the jury court.

Another case of "flirting" of the investigation with the jurisdiction of cases occurred in the case of Tikhomirov, accused of killing Japaridze. Initially (first of all, due to the "confessions" torture obtained from him), Tikhomirov's actions were qualified by software.

On the intention to go to the jury, the defense stated only on the preliminary hearing in the Moscow City Court, so that the investigation was already deprived of the possibility of retraining.

Taking into account the fact that, besides the aforementioned "confessions", the accusation of any other evidence of Tikhomir's involvement in this murder was not, at the end of the presence of evidence, the accusation stated a petition for the return of the business to the prosecutor, to eliminate obstacles in the consideration of the case (the foundations were completely crazy), But the court immediately took a goat and the case returned. Protection appealed this decision, but the appellate instance left him in force.

As a result, when it came to the investigator, he crushed the accusation on the grounds that after receiving Japaridze a few blows with a knife, he, according to eyewitnesses, still lived a few minutes (and spit a consequence of "confessions" in which Tikhomirov was forced to subscribe under By what he walked to kill Japaridze). As a result, the case was enrolled in the District Court, where Tikhomirov, despite the lack of evidence, was punished in the form of 10 years L. SV (although the prosecutor asked 15).

In general, the situation when the mention of the definition of a desire to apply about the court of jury is forced a consequence to retrain the act, repeated with enviable systematic.

However, there is no humus without good. Sometimes reference to the desire to go to the jury, it becomes a good way to manipulate and (regardless of whether such a desire is in fact) forces a consequence to retracted the incriminated accused of acting.

An illustration of this is an episode from the practice of lawyer of the lawyer's chamber of the Murmansk region Chebykina N.V. :

"A few years ago I defended the serviceman. He was killed with his colleague in the territory of the margin, extorted money from soldiers. The case was investigated by the fleet investigators.

Claimed a qualified 105 Criminal Code on the basis of a group of persons. And on the principle - the better, the better. I then applied one psychological reception.

We are climbing right in the investigator when the investigation was nearing completion, began to discuss the possibility of consideration of the case with the participation of jury and attracting the attention of the public organization "Soldier Mothers" (previously such). So, the investigator went to court, considering cases involving jurors for a consultation, there he was told that things would not only have seen, but did not hear.

The investigator then admitted to me himself. As a result, the case was qualified under Art. 108 of the Criminal Code, we asked for a special order. "

One of the rare examples when the defendant consciously went on the deterioration of his position (achieved the imposition of the Criminal Code of the Criminal Code of the Russian Federation providing for the court of jury) and ultimately implemented its right to the jury, brought in the book I. Mironov "Jury Court. Strategy and tactics of court war ":

"Being objectively guilty of the legs to the head, thanksi have come out of the jury, I went out absolutely "dry". I was charged that I attacked the investigator, hit him in my face, applying my eyes to "Suverbital injury, threw feces in it, for which I was threatened by the punishment of twelve years of imprisonment. I was also accused of damaging documents.

The day after the commission of this crime, I was taken from Caracera to a court, where, as a result of my actions, an insult and violence against the judge and the prosecutor were imposed, as well as the resistance to employees of a convoy regiment. They shorted the "needles", for each of which I had to answer the court.

What would not give me a chance of jury, the investigation began to mention or change the articles of the Criminal Code to lighter, not providing for the consideration of the case with the participation of twelve. They removed the accusation of the attempt at the prosecutor and the judge, retrained the article "Attack on the investigator", which also fell under the jury, in Art. 318 (The use of violence against the authority), removed the insult of the prosecutor. And although now I threatened the term not from twelve to twenty, but only to five years, but without jury, but, it means, for sure.

However, not everything turned out to be lost, another jury was left, which also wanted to remove - this is an insult to the court. Understanding what the result is a consequence, I give confessions about the insult of the judge.

The investigator on the joys of my recognition leaves this article. And I was able to choose a jury board, which justified me. " (Solddinov Fail-Moscow Notary, accused of the murder of the journalist Paul Khlebnikov. After the court sentence of the court on this case adopted on May 6, 2006, he was released and again arrested in a few days - on charges of fraud. January 31, 2007 Notary was sentenced to nine years in prison for fraud with apartments. In 2011, he was released on par.)

The illustration of the "Promotion" by the defendant articles with the jury under the jurisdiction of the jury can serve as the case "NSO-North". Thus, in the case of the "NSO-North" to the participants of the group were imputed "terrorism" (and, accordingly, they agrees with the possibility of going to the jury) on the grounds that one of the defendants, after all known, but officially categorical denied methods for obtaining "comprehensive Recognition "told the investigator that he and Comrade-de planned to arrange an explosion on one of the Moscow region of power plants in order to achieve certain political goals.

In addition to these recognition and a certain number of explosives (obviously insufficient for causing serious damage), the investigation no longer had anything, however - was shown. As a result, our "most objective and impartial" recognized the proven and this episode, and all other imputed episodes (most of which had an approximately similar evidentiary base).

On this yet with examples will finish.

Thus, you can summarize the above-mentioned task in preparing for the jury, under the preliminary investigation, is the creation of the necessary conditions in which this form of legal proceedings is generally possible in the case.

General moments in preparation for the jury.

Initially, the question may arise - how can you prepare for the jury, when is it still in the manufacture of the investigator? I assure you - you can and need. Yes, of course, the possibilities of such training in the case are significantly limited, since according to any investigated case, an active role as a rule belongs primarily to the consequence, and the side of protection in most cases performs the "catching" function, but this does not mean that they are not at all.

In addition to the standard in all cases, the defender's activities are not preliminary investigation, the Jury Court requires certain specific actions to prepare the process.

First, the preliminary investigation stage should be used to collect, fixate and attachment to the case of evidence of protection precisely taking into account the subsequent jury court. Not every proof of protection can be subsequent. First of all, with regard to such evidence, inflated relevance requirements are presented.

For example, refuse to present proof of protection due to the fact that they establish circumstances not subject to clarification in the court of jury, or the "vicious" of the prosecution witnesses is a favorite maneuver of any judge. Requirements for evidence used by protection in the jury Court is a separate big question and it will be reviewed in an independent publication.

Secondly, attention should be paid to the planning of the course of the court with jury. Preparation and directing evidence of protection, challenging evidence and assertions of the charges used for this techniques, methods play in court of jury at least the evidence itself. It should be thought out how to convey to jury, such or other information, how to interrogate witnesses of protection and accusation (taking into account the specifics of the jury), for which evidence and how exactly the attention of the jury meetings should be paid.

Thirdly, in some cases, in the case of the investigation, at all, it is possible to begin to draw up a draft speech in debates, recording arguments that come to mind, analyzing the evidence of protection and accusations. This is all the more useful, because during the writing of the defensive speech, the deficiencies of protection and gaps in the evidentiary base are becoming visible, which will be able to fill in the course of legal proceedings.

Fourthly, a preliminary investigation is a stage on which it is possible and it is necessary to pay attention to the preparation of the accused himself, to interrogation in the presence of jury. Printing elementary concepts about the rules of public speech, to warn and work out the actions in the event of a sabotage of its testimony from the court and the prosecutor's office.

With this planning, it is necessary to take into account both serious procedural restrictions on the volume and themes of the jurles of the jury themselves, as individuals who do not possess specific legal knowledge, not dealing with legal terminology and law rules.

The amount of protection of protection on the preliminary investigation is strongly limited in comparison with its powers in court. The most common protection action on the preliminary investigation (which we will consider below) can be attributed:

Collection and admission to the case of a variety of documents,
- Participation along with the proportion in investigative actions and, above all, such as checking testimony in place, the investigative experiment, a full-time rate, identification, inspection.
- providing interrogations of witnesses of protection, their stay, preparation for interrogation (nothing illegal, just briefing about what particular information is of interest to protect and investigate), and ensuring their appearance to the investigator for testimony (first of all, the task of achieving consent to interrogation from The investigator itself).
- Finally, the most voluminous and, in general, SAAMA is an important action in which a lawyer has to take part in the preliminary investigation, this interrogation of the accused.

It is possible to formulate several general requirements for evidence-proofs intended for the jury.

FirstlyThe proof must be understandable for a wide range of citizens (that is, for the jury), it should require the minimum of explanation, and it is better not to demand them at all.

SecondlyThe proof must be convincing confidence. Unfortunately, the current procedure of legal proceedings speaks Participants from the need to be convincing, replacing it with the requirements of formal compliance with the proof of the law. With jury everything is different. The jury cannot (and do not have much desire) to solve the issues of the admissibility of evidence. More importantly for them, as far as proof is convincing, reliably.

Thirdly, The proof should be aimed at proving or refuting the facts and comprise a minimum of appeals to the procedural aspects.

These are general requirements, but we will talk about specifics below.

The defendant recognizes the guilt.

Recognition of guilt and cooperation with the accusation on the investigation, deprives the sense of the subsequent statement of the petition for the consideration of the case by the court of jury. The court of jurors and is valuable that within the framework of this procedure, much more chances to challenge the prognosis of the accusation as a whole or its part than the profession. What kind of reason to go to the jury, if the defendant his guilt fully recognizes?

The other ways of protection are the appeal to any procedural aspects or emphasis on the presence of mitigating circumstances in the court of jury, no advantages before considering the Affairs of Affairs, no advantages are no advantage.

That is, situations when the defendant will fall on the jury, the defendant voluntarily recognizing his guilt (if not to take into account the situation of complete insaneness of the accused and his defender) is possible only in the cases described above. And this in turn indicates the contradiction of the defendants' protection strategy. And hence, a direct path to conflict protection.

That's about it and you have to remember, preparing for the upcoming Jury Court.

First of all, learning about the presence of a desire to go to the jury from any of the accomplices, or simply "calculating" such a chance by sensible reflection on the materials of the case, should be asked - "there is no need to adjust its position in the case?". In the described situation, outputs for the accused of a non-desired jury - two.

Or adjust its protection strategy in such a way that the consideration of the case by the Jury Court could go for the benefit and to him, refute some episodes of incriminated crimes, or, if there is no such possibility, to at least get condescension from jury. Of course, the condescension from the jury, it is not always necessary to defend.

Sometimes it, which is more successful, replace the acclaimed arrangements with a party to charges and the court. I - you need the necessary testimony, you are a minimal punishment. But this aspect we will not consider this aspect in this article, since it is too specific, individual and to a certain extent "Intim".

The first case (change in the defense strategy) we will consider below, but the second is right now. If the protection strategy provides for further receipt of the approach of jury, accordingly, it is necessary to bring to their information (including through the protocols of the investigative actions) the information they consider a sufficient justification for the adoption of the required decision. And for this, it is necessary to convince the jury at our sincere repentance and harmlessness to others. That is, even intending to admit the guilt, it is still better to do that, taking into account the specifics of the jury.

In general, such information can be anything that one way or another can cause jury sympathy, pity, respect for the defendant. First of all, you can specify the circumstances listed in the mitigating the circumstances listed in. No, of course, the conversation is not about to dry and formally list the jury these the most mitigating the circumstances that are contained in the case file regarding the defendant.

First, such a purely procedural approach to the question will most likely be prohibited by the presiding party, secondly, in itself the formal listing of mitigating circumstances is unlikely to make any impression on the jury. The task of protection to convey this information to the jury in such a way that this would cause them the appropriate emotional reaction, bowed them to the opinion that the defendant lost its public danger (and in human language - is not dangerous for them, jurors) and deserves What would bear the punishment in the reduced volume.

Jury is important precisely the essence of the circumstances, and not their formal name. It is also necessary to take into account the fact that the story is not perceived by Profsowy, but the jury, which means to express them should not be a dry legal language, but is accessible to the perception of a person who does not have legal education.

However, it is not enough to say in the court on mitigating circumstances, it is necessary to fix them in the case materials at the investigation stage. Otherwise, the prosecution can take advantage of this, saying that this is a fiction and an attempt to avoid punishment. By informing the circumstances mitigating guilt, it is necessary to firmly link them with the circumstances unambiguously subject to clarification in the presence of jury.

One of the serious reasons that gave reason to expect to condensate the jury is the fact of cooperation with a specific defendant with a consequence. In particular, it was the fact that cooperation with law enforcement agencies served as the basis to give condesception to the members of the murder of the deputy. Chairman of the Central Bank of Russia Kozlovanobokopitov and Pereorversky. It looks advantageous against the background of other defendants, whose wines are obvious for jury, but nevertheless not recognizing their guilt.

However, it is necessary to cooperate with the investigation too. Not always active cooperation with the prosecution guarantees the consension of the jury.

It should look exactly like repentance, sincere and sincere, and not as an attempt to overtake yourself in a sentence. Accordingly, since the preliminary investigation stage should be prepared by materials indicating active repentance and cooperation with the investigation.

Councils with obeda, confessions recorded in the protocols of various investigative actions, applications with requests to carry out certain investigative actions (for example, testing testimony in place), in order to inform the additional circumstances of the incident or allow revealing new facts of criminal acts, etc. Moreover, with the obligatory indication of noble, causing sympathy among others, the motives of this decision.

However, the announcement of the testimony in court, the data accused during the investigation, is associated with well-known procedural constraints.

In this regard, there is a fair amount of difficulties, for example, in proving the jury of repentance and cooperation with a consequence. So there is a considerable share of the probability that the accused does not allow the opportunity to draw the attention of the jury on the fact that he told about the event before the other defendants, or that it was due to his testimony and cooperation with the investigation, the investigation received additional evidence or conducted investigative Actions giving evidence. It must be remembered, and it is necessary to think about exactly how you can bypass these limitations.

So, for example, if the defendant decided to make a recognition or report information that was previously known to be known (and the reference to this circumstance is going to use as a basis for improving the jury), it will be logical to arrange it as an application or an obese appearance, and not, For example, in the interrogation protocol. Since the statements and appears on the obey court are announced as a different document, while complications may arise with the announcement of the interrogation protocol.

It will also be reasonable to directly indicate in the appearance or a statement that this information was previously not known to be a consequence, and at the present moment the accused it reports because it repents in the deed and wants to divorce caused damage, etc ..

Speaking about other circumstances to affect the adoption of jury decisions on the condescension, it should be said that it should not be a speech to hope for legal grounds to bring to jury about the property situation, family composition, characteristics from the place of residence and work, etc. Which in principle can have a positive effect on the opinion of the jury about the condesception.

This information will have to "demote" into the process of grains, small fragments, one two phrases in the interrogation or protocol of investigative action so that it would not be for the presiding party to react to it and cut into it before the fact is brought to the attention of the jury.

For each mitigating fault, it is necessary to select its ways and forms of reporting to jury. Thus, the fact of bringing an apology to the victim and compensation to it caused damage to it can be quite organically and embedded in the interrogation of the victim himself (if it comes to interrogation in the courtroom) or in the full-time protocol (if the conversation is about fixing this fact of preliminary investigation materials). Accordingly, work on a consequence must first of all set in front of them to documented (and in evidence to be brought to the attention of jury) mitigating circumstances.

Well, for example, for a regular court, it would be enough for a positive characteristic from the work of the defendant. However, such a document, no one and ever in front of the jury. Accordingly, it would be nice to get around this ban, it would be nice to invite to give the testimony of any of the colleagues, for the giving testimony on some, albeit insignificant, occasion. During the interrogation "Woven" into its course of questions (for predetermined responses in advance) characterizing the defendant from the positive side.

Naturally, such answers must be diligently (ahead) "smeared" by interrogation text. So thus bring the desired information chances will increase significantly.

Well, in order for the court to make this witness before interrogation before the jury, it would be nice to interrogate it according to the required circumstances as a result.

Cooperation with a consequence, it is certainly good, but not always enough to get the jury. It is extremely desirable to bring the jury reasonable, causing the credibility of an explanation (and for good reasons) why the accused went on a crime, and in the future I decided to cooperate with the investigation. But here they can lie difficulties.

For example, if the defendant was forced (or "forced") to participate in a crime, the chance is great that the story will be associated with significant difficulties, since it does not apply to the charges. You will also have to show ingenuity to convey to the jury the fact of bringing an apology to the victims or payments to them for damage caused, since this does not apply to the subject of proof in the court of jurors.

It is also necessary to understand that the defendant is repentable and recognizing the blame, in most cases becoming an attack object by the defendants who do not recognize the guilt. As a rule, one way or another, the thought is voiced by the idea that it is recognized, simply, it will simply push himself a mitigation of punishment and sake of this and the other defendants.

In another case, cooperation with the investigation will make a particular accused by the object of a coordinated "attack" by the remaining defendants that will begin to testify to it (no matter related to reality or not). This moment is also necessary to calculate and take into account when planning protection.

In general, conflict protection, and the speech here is about it, it will also be given a separate publication.

Naturally, it is important to cooperate or "cooperating" with the investigation, it is important that the indications given by the accused were plausible. It should not be doubted that the side of the protection of other defendants, in the course of the court, will deteriorate from the testimony of "cooperating" all contradictions. So cooperating, you should still not blindly go to

The procedure for the implementation of this constitutional law is determined by the Criminal Procedure Code of the Russian Federation, with the application of the norms of which the legal positions of the Constitutional Court of the Russian Federation and the practice of the European Court of Human Rights should be taken into account.

Ensuring the right to defense is the responsibility of the state and a prerequisite for fair justice.

For the purposes of uniform permission, the courts arising in the practice of applying legislation that ensures the right to defense in criminal proceedings, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, and the Federal Constitutional Law of February 5, 2014 N 3-FKZ "On the Supreme Court of the Russian Federation, "decides to give the following explanations:

1. To draw the attention of the courts to the fact that within a sense of article 16 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure) ensuring the right to defense is one of the principles of criminal proceedings operating in all its stages. By virtue of this, the right to defense has: a person in respect of whom the procedural actions on the verification of a crime report in the manner prescribed by Article 144 of the Code of Criminal Procedure are carried out in relation to its rights and freedoms; suspect; accused; defendant; convicted; justified; A person in respect of which production is conducted or conducted on the use of compulsory medical measures; minor to which a forced measure of educational impact was applied; The person in respect of which a criminal case (hereinafter - the case) or criminal prosecution was discontinued; A person who received a request or decided to issue; As well as any other person, the rights and freedoms of which are significantly affected or can be significantly affected by the actions and measures indicating the accusatory activities directed against him, regardless of the formal procedural status of such a person (hereinafter - the accused).

2. Courts must be borne in mind that the right of defendant on protection includes not only the right to use the help of the defender, but also the right to defend themselves personally and (or) with the help of a legitimate representative by all non-prohibited law and means (part 2 of Article 16, paragraph 2 11 of part 4 of Article 46, paragraph 21 of Part 4 of Article 47 of the Code of Criminal Procedure of the Russian Federation), including to give explanations and testimony about the suspicion existing ones or refuse to give explanations and indications; object to the accusation, to testify on charged to him or refuse to testify; submit evidence; claim petitions and taps; give explanations and testimony in the native language or the language he owns, and to use the help of the translator for free, in cases where the accused does not own or there is not enough to speak the language on which the proceedings are being conducted; participate in the course of the trial in the study of evidence and judicial debate; pronounce the last word; bring complaints against actions, inaction and solving bodies engaged in the proceedings; Get acquainted in the procedure established by law with the case file. The procedural rights of the accused cannot be limited in connection with the participation of his defender and (or) of the legal representative.

3. Based on the interrelated provisions of part 1 of article 11 and part 2 of Article 16 of the Code of Criminal Procedure of the Russian Federation, the obligation to clarify the accused of his rights and obligations, as well as to ensure the possibility of implementing these rights imposed on persons engaged in the verification of a crime report in the manner prescribed by Article 144 of the Code of Criminal Procedure, and a preliminary investigation into the case: in the investigator, the body of the inquiries, the head of the body or the division of the inquiry, the investigator, the head of the investigative body, the prosecutor, and during the court proceeding.

The rights provided for by the norms of the Criminal Procedure Law should be clarified in the amount determined by the procedural status of the person in respect of which proceedings are underway, taking into account the stages and features of various forms of legal proceedings. In particular, when considering the case on the merits of the first instance court, the accused is subject to not only the rights referred to in paragraph 4 of Article 47 of the Code of Criminal Procedure, but also the other rights in the trial, including the right to apply for participation in the debate of the parties along with the defender ( Part 2 of Article 292 of the Code of Criminal Procedure of the Russian Federation), and in the absence of a defender - to participate in the debate of the parties (part 1 of Article 292 of the Code of Criminal Procedure), the right to the last word (Code of Criminal RF).

4. The right of the accused personally to implement its defense, implemented through his participation in the trial, is provided by the court. In relation to the defendants contained in custody or serving a sentence in the form of imprisonment, the court of first instance takes measures to ensure their participation in the court session directly either in cases provided for by part 6.1 of Article 241 and part 2 of Article 399 of the Code of Criminal Procedure, by using video conferencing systems Communication. The question of the form of participation of such persons in the court sessions of the courts of higher instances is solved by the court, considering the case (part 2 of Article 389.12, part 2 of Article 401.13 of the Code of Criminal Procedure of the Russian Federation).

5. Courts should be checked whether the accused of the date, time and place of the session of the court of the first, appellate or cassation instance in the time limits established by respectively part 4 of Article 231, part 2 of Article 389.11, part 2 of Article 401.12 of the Code of Criminal Procedure of the Russian Federation. In case of non-compliance with the specified deadlines, the court finds out the accused whether it had enough time to prepare for protection. If the court recognizes that this time was clearly not enough, as well as in other cases at the request of the accused, in order to ensure the requirements of part 3 of Article 47 of the Code of Criminal Procedure, the court announces a break in the court session or postponing it for a certain period.

6. If, after making a sentence or other court decision, the accused and (or) his defender apply for additional familiarization with the case file for the preparation of the appeal, the court, in the production of which is the case, should be clarified which materials of the case are needed. When permitting such a petition, the court finds out if the accused and (or) his defender got acquainted at the end of a preliminary investigation with all the materials of the case and whether they were not limited to the right to write any information and in any amount, at their own expense to make copies from the case materials, and Whether they were acquainted with the trial of the court session. In case of satisfaction of the petition, the court determines the period for additional familiarization with the established circumstances.

7. By virtue of the requirements of part 2 of Article 123 of the Constitution of the Russian Federation and Part 1 of Article 247 of the Code of Criminal Procedure of the Russian Federation, the proceedings of the case in the court of first instance are carried out with the obligatory participation of the accused. Consideration of the case in the absence of the accused is allowed only in cases provided for by the Federal Law.

Based on the provisions of Parts 1 and 4 of Article 247 of the Code of Criminal Procedure of the RF, the request of the accused, not evading the appearance of the appearance, about the consideration of the case in its absence can be satisfied with the court only on cases of crimes of small and medium severity.

If the accused, stating a petition for abundant consideration of the case, refers to the circumstances that impede his participation in the trial, the court has the right to recognize this petition forced, refuse to satisfy it and appoint a court session with the participation of the accused or, if there is reasonable, suspend Production in the case.

8. In accordance with the provisions of part 2 of Article 243, Article 257 of the Code of Criminal Procedure and the norms of chapter 36 of the Code of Criminal Procedure of the Russian Federation in their interrelationships, the presiding in the preparatory part of the court clarifies all participants of the trial not only their right, but also duties, introduces the regulations of the court session. At the same time, it is also subject to explanation of the provisions of Article 258 of the Code of Criminal Procedure, which provides for the measure of impact on the violation of the order at the court session, the unobliness of the orders of the presiding or bailiff, including the possibility of removing from the meeting room to address the presiding (draft judges) and the consequences of such removal.

If the violation of the order at the court hearing, the unsobulsion of the orders of the presiding or bailiff admits the accused, then, depending on the nature of violations, it is preventing the chairperson for the inadmissibility of such behavior either on the motivated decision of the presiding (judges' collegium) is removed from the meeting room for a certain period (for example, for the period Interrogation of the victim or witness; until the end of the judicial investigation or the completion of the debate of the parties).

It should be borne in mind that the law does not provide for the obligation of the court to notify the accused of returning to the court hearing on the content of judicial actions conducted in its absence and the evidence investigated. In the presence of the accused of obtaining such information, the court provides him with time to appeal for help to his lawyer.

9. If, when considering the case in the absence of the accused in accordance with Part 4 of Article 247 of the Code of Criminal Procedure, the defender is not invited by the accused themselves, his legal representative or another person on behalf of the accused, the court in order to ensure competition and equality of the parties and the rights of the accused of defense takes measures To the appointment of the defender. The following measures must be taken in the case when the accused is removed from the courtroom, and the case listens in the absence of a defender.

10. Courts need to be borne in mind that the provisions provided for by part 1 of Article 50 of the Code of Criminal Procedure The right to invite the defender does not mean the right of the accused to choose any person as a defender at its discretion and does not imply the opportunity to participate in any person as a defender. In the meaning of the provisions of part 2 of Article 49 of the Code of Criminal Procedure of the Russian Federation, only a lawyer is entitled to protect the accused in pre-trial production.

In addition, if any of the circumstances referred to in Article 72 of the Code of Criminal Procedure of the Russian Federation, the participation of the defender is excluded in all stages of criminal proceedings.

If there is one lawyer between the interests of the accused, the protection of which is carried out by one lawyer (recognition of the accusations by one and challenging by another on the same episodes of the case; expulsion by one accused another, etc.), then such a lawyer is to be equipped (paragraph 3 of Part 1 of the article. 72 Code of Criminal Procedure, subparagraph 2 of paragraph 4 of Article 6 of the Federal Law of May 31, 2002 N 63-FZ "On Advocacy and Advocacy in the Russian Federation", paragraph 1 of Article 13 "Code of Professional Ethics of Lawyer" (adopted by the All-Russian Congress of Lawyers on January 31, 2003 of the year).

Based on the interrelated provisions of Part 1 of Article 72 of the Code of Criminal Procedure, the limit established in paragraph 3 of this Regulation refers to cases when the defender in this or the case dedicated from it provides or previously provided during the pre-trial production or in previous stages of court proceedings and court sessions. Legal assistance The person whose interests contradict the interests of the accused by them. However, this does not exclude the possibility of removing the defender and in other cases of identifying such contradictions that do not allow him to participate in this case.

11. When permitting the application of the accused, declared in accordance with Part 2 of Article 49 of the Code of Criminal Procedure of the Russian Federation on the admission of one of the close relatives or other persons as a defender, the court should not only verify the absence of the circumstances referred to in Article 72 of the Code of Criminal Procedure, but also take into account the nature Features of charges, as well as the consent and possibility of this person, in accordance with the procedure established by law, protect the rights and interests of the accused and provide him with legal assistance in the work in the case.

In case of refusal to satisfy such a petition, the court decision must be motivated.

12. By virtue of part 1 of article 50 of the Code of Criminal Procedure, the defender or several defenders can be invited to participate in the case of both the accused themselves and its legal representative, as well as other persons on behalf of or with the consent of the accused.

If the accused is stated a petition for postponement of the court session for the invitation of the defender elected by him, then the accused should be explained that by virtue of the provisions of part 3 of Article 50 of the Code of Criminal Procedure of the Russian Federation in the failure of the defender of them for 5 days or for a different longer, but reasonable time from the day Statements of such a petition The court has the right to offer the accused to invite another defender, and in case of refusal - to take measures to appoint it.

In the same manner, the court at the discharge of a single lawyer who protects the accused takes measures to ensure participation in the court session of another lawyer.

When the defendant of the accused is carried out by several invited lawyers, the failure to appear on any of them with the proper notification of the date, time and place of the trial does not prevent its holding with the participation of at least one of the lawyers.

13. According to Part 1 of Article 51 of the Code of Criminal Procedure, the participation of the defender in criminal proceedings is obligatory if the accused did not refuse him in the manner established by Article 52 of the Code of Criminal Procedure of the Russian Federation. At the same time, participation in the court hearing of the prosecutor (state prosecutor) is not an unconditional basis for ensuring the participation of the defender, since the accused at any stage of production is entitled to refuse to help defenders at any stage in writing.

When resolving such a statement, the court should be borne in mind that the reluctance of the accused to use the help of the defender should be explicitly explicitly and unequivocally. In court of the first instance, the rejection of the defender can be adopted, provided that the participation of the defender at the court session is actually provided by the court.

The statement of the accused of refusal to the defender due to the lack of funds for the payment of the services of a lawyer or the failure to appear at the court hearing of the lawyer invited or appointed by him, as well as the refusal of a particular lawyer cannot be regarded as a refusal to help the defender provided for in Article 52 of the Code of Criminal Code of the Russian Federation.

If the Court adopted the refusal of the defendant accused of defenders, the decision to be motivated.

14. Based on the provisions of part 2 of Article 50, paragraph 1 of Part 1 and part 3 of Article 51 and Article 52 of the Code of Criminal Procedure of the Russian Federation in their relationship, the court takes measures to appoint a defender in all cases where the defendant in the trial did not take advantage of his right to invite a defender and At the same time, he did not stated in the prescribed manner of refusal to the defender, or such a refusal was not accepted by the court. It should be borne in mind that the law does not provide for the rights of the accused to choose a specific lawyer, which must be appointed to implement its protection.

15. To persons who, in accordance with paragraph 3 of Part 1 of Article 51 of the Code of Criminal Procedure, due to their physical or mental deficiencies, cannot independently exercise their right to defense; in particular, those who have a mental disorder that does not exclude changes As well as persons suffering from a significant defect of speech, hearing, vision or other ailment, limiting their ability to use procedural rights. In order to create the necessary conditions for implementing such persons of procedural rights and, if there are grounds, the court should discuss the need to attract to participate in relevant specialists (owning the skills of the Survival, the use of the braille system, etc.).

One of the manifestations of the competition of the parties at pre-trial production was empowered by significant powers of an impartial participant. These powers on the preliminary investigation are covered by only one direction of court activities, called judicial control. The current Criminal Procedure Code of the Russian Federation, in contrast to the Code of Criminal Procedure of 1960 1, significantly expanded the competence of a court as a body that implements the function of justice on the preliminary investigation and, along with the traditional Russian criminal procedure, the control of each subsequent stage for the previous one, provided a fairly wide range Cases of court participation at pre-trial production.

Under judicial control is meant, the court for verifying the legality and validity of actions and decisions of criminal prosecution authorities at pre-trial production is understood as a criminal procedure. Judicial control is the most important manifestation of the main procedural function of the court, reflects the actual role of this body in ensuring the legality in the criminal process.

Modern legislation governing the production of a preliminary investigation, two types of judicial control are familiar: preliminary (promising) and subsequent (retrospective).

The first of them acts as a way to prevent unreasonable restrictions of constitutional rights and freedoms. The current Code of Code of Criminal Procedure to the Excellent Powers of the Court at pre-trial production was carried out by decision-making: the election of preventive measures in the form of detention, home arrest; on the extension of the detention period; On the premises of the suspect, accused, not in custody, in a medical or psychiatric hospital for production, respectively, forensic or forensic examination; on the production of housing inspection in the absence of the consent of those living in it; on the production of search and (or) notches in the dwelling; on the production of personal search; on the production of removal of objects and documents containing information on deposits and accounts in banks and other credit institutions; on the imposition of an arrest for correspondence, permission to inspect and recess in communication institutions; on the imposition of arrest on property, including funds for individuals and legal entities, which are in accounts and deposits or by storage in banks and other credit institutions; about temporary removal of the suspect or accused of office; on control and recording of telephone and other negotiations; On the exhumation of the corpse in the presence of the objection of the relatives of the deceased (paragraph 1-11. Part 2 of Art. 29 and Part 3 of Art. 178 of the Code of Criminal Procedure of the Russian Federation).

In the criminal procedural law, the requirements of the Constitution of the Russian Federation (Article 22, 23 and 25) were implemented, and a logical series of procedural actions was complemented, the production of which requires obtaining permission from the court, although directly and not specified in the main law of the country, but affecting the constitutional rights of citizens.

In addition to the authorization of the application of individual preventive measures and the production of some investigative actions, preliminary judicial control is also expressed in the country of conclusion on the actions of individual categories of individuals of crime signs in order to address the issue of initiation against the criminal case (paragraph. 1-5, 9, 10 h. 1 Art. 448 of the Code of Criminal Procedure).

Retrospective (subsequent) Court control over the activities of the investigator is the consideration of complaints of the participants in the criminal process to violate their rights.

The procedure for the implementation of the judicial control over the legality of the production of investigative actions is provided for by Art. 165 Code of Criminal Procedure. A feature of the judicial procedure for obtaining permits for the production of investigative actions is the lack of a security part. The Participation of the Protection Party in the judicial procedure of obtaining consent to the production of investigative actions, as a rule, would exclude any meaning of their conduct. The awareness of the protection part of the existence of an initiated petition of the investigator on the production of investigative action leads to the inexpediency of its production.

The petition of the investigator on obtaining permission to the production of investigative action, coordinated with the head of the investigative body is considered by the district court at the place of investigation within 24 hours from the date of receipt. At the same time, the prosecutor and the investigator have the right to participate at the court hearing (part 3 of Art. 165 of the Code of Criminal Procedure). The legislator admits that consideration of the application of the investigator can be considered without the participation of the subject by the accusation, that is, it is assumed that their functions can be carried out and the court (which is happening in practice even with the participation of the investigator and the prosecutor). This provision contradicts the constitutional norm on the competition of legal proceedings (part 3 of Article 123 of the Constitution of the Russian Federation, Art. 15 of the Code of Criminal Procedure). The decision of the judge following the consideration of the application of the investigator is chosen in the form of a resolution, which can be appealed in cassation. A feature of appealing this resolution is the fact that the Protection Party acquires the possibility of its appeal, as a rule, only after the actual production of investigative action. In this connection, the appeal appeal is often conjugate with the need to restore the term for appeal.

In exceptional cases, when the production of housing, search, searches and recesses in the home, personal search, as well as the removal of the thing laid down or stored in the pawnshop, the imposition of arrest on the property specified in Part 1 of Art. 104.1 of the Criminal Code of the Russian Federation, no deposit, these investigative actions can be made on the basis of the decision of the investigator or the investigator without receiving a court decision. In this case, the investigator or the investigator within 24 hours from the beginning of the production of investigative action notifies the judge and the prosecutor to the production of investigative action. Copies of the decision on the production of investigative action and the investigative protocol for verifying the legality of the decision on its production are attached to the notification. Having received the specified notice, the judge checks the legitimacy of the investigative effect on 24 hours and makes a decree on its legality or illegality. In the event that the judge recognizes the investigative effect of illegal, all evidence obtained during such an investigative action is invalid in accordance with Art. 75 Code of Criminal Procedure.

The current criminal procedural legislation provides for two independent procedures for the application and permission of complaints of participants in criminal proceedings and other persons whose rights are affected by procedural actions and (or) decisions of officials and government agencies. These forms depend on who filed complaints: the prosecutor, the head of the investigative authority or the court.

At pre-trial proceedings, actions (inaction) of the investigator, the investigator, the head of the investigative body and the prosecutor in the manner prescribed by Art were may be appealed to the court. 125 Code of Criminal Procedure. The subject of judicial appeal at pre-trial production is limited. In order for a participant in criminal proceedings, the procedural right to judicial appeal against the action (inaction) and the decisions of the investigator, the investigator, the head of the investigative body and the prosecutor, the actions (inaction) or decisions should meet the following requirements.

First, at pre-trial production, the decisions of the investigator and the investigator on the refusal to initiate a criminal case and its termination may be appealed. The law specifically allocates these two decisions of the investigating authorities, since their legality is closely related to the achievement of criminal proceedings. Consequently, the illegal refusal to initiate a criminal case and termination of a criminal case, on the one hand, do not protect victims from crimes, and on the other hand, they may become such restrictions on the rights and freedoms of citizens who are not due to constitutionally justified goals.

Secondly, there may be other solutions and actions (inaction) of the investigator, the investigator, the head of the investigative body and the prosecutor, which are able to cause damage to the constitutional rights and freedoms of participants in criminal proceedings or make it difficult to access citizens to justice. Thus, all other solutions and actions can be appealed only when they respond to one of the two criteria. They must have the ability to:

• - cause damage to constitutional rights and freedoms of participants in criminal proceedings;
• - It makes it difficult to access citizens to justice.

The most important element of these criteria is such a category as "ability". That is, the appeal does not require the onset of negative consequences of the adoption of an illegal decision or committing an illegal action, it is enough just to create a threat to the onset of such consequences.

The complaint is considered in the district court. It can be submitted to the court by the applicant, his defender, legal representative or representative directly either through the investigator, investigator, head of the investigative body or prosecutor. The consideration of the complaint is carried out by the judge alone in the abbreviated time. The court session for consideration of the complaint should take place no later than 5 days from the date of its receipt. Consideration of the complaint is carried out in open court, with the exception of cases directly stipulated by the Criminal Procedure Code of the Russian Federation. At the court session, the applicant and his defender, a legal representative or representative, if they participate in a criminal case, other person whose interests are directly affected by the appealed by action (inaction) or decision. The participation of the prosecutor at the hearing for consideration of the complaint necessarily. The non-appearance of persons in a timely notified of the consideration time and not insisting on its consideration with their participation is not an obstacle to the consideration by the court.

If the applicant participates at the court hearing, he independently justifies his complaint. After that, other people who appeared at the court hearing are heard.

The applicant is given the opportunity to speak with a replica.

According to the results of the consideration of the complaint, the judge makes one of the following regulations:

• 1) on the recognition of the action (inaction) or the solution of the relevant official with illegal or unreasonable and his obligation to eliminate the violation of the violation;
• 2) on leaving complaints without satisfaction.

RESOLUTION issued on the results of consideration

complaints may be appealed in appeal. The complaint does not suspend the production of the contested action and the execution of the appealed decision, if it does not find it necessary to make the body of the inquiry, the investigator, the investigator, the head of the investigative body, the prosecutor or the judge.