How does the accused respond to the prosecutor’s appeal submission? Objections to the prosecutor's appeal in a criminal case. Everything about criminal cases

In any matter of public importance, it is necessary to observe, first of all, the legality of the actions performed. This directly applies to the criminal process, since it is during this period that it is very easy to violate the human rights and freedoms of not only the one who is prosecuted for the crime, but also the one who is a witness or victim.

The execution of the legality of each action of employees of the investigative department of the police or the inquiry department is monitored by the prosecutor.

Functions of the prosecutor

The prosecutor differs in his functions from other citizens and officials in criminal proceedings. For him, the legislation (“Federal Law “On the Prosecutor’s Office”, in the Code of Criminal Procedure of the Russian Federation) provides special articles and provisions according to which he is responsible for observing the legality of the activities carried out procedural actions. In this case, the public prosecutor performs only a supervisory function and in no case should he himself participate in investigative actions.

The prosecutor, according to the Code of Criminal Procedure of the Russian Federation, can only give written or oral instructions on the implementation of any actions, and also has the right to freely check the case materials, the compliance of the actions carried out by investigators or inquiry officers, and the norms of the criminal procedure code.

The prosecutor himself does not perform any procedural function and cannot directly interfere in the affairs of investigators or interrogators.

Performance

In court, the prosecutor is the state prosecutor, performing his main functions - upholding the law. In the event that the rights of the parties have been significantly violated or legislative norms, and the prosecutor saw this, he can make a presentation.

The prosecutor's presentation is an act of the prosecutor's response to a violation of the law, submitted to the body or official that is authorized to consider such cases.

The document consists of several parts, namely: introductory, descriptive and operative.

The prosecutor's presentation is an example of what public prosecutor can not only petition for the imposition of punishment, as many are accustomed to think, but also monitor compliance with the law in any area of ​​public life.

Appeal

After a verdict has been rendered in the court of first instance, the prosecutor has the authority to appeal the court decision, which does not yet have legal force, that is, he has the same rights as other participants in the criminal process.

An appeal (prosecutor's appeal) can be used if initially the evidence related to the case was not presented in court, the declared witnesses were not called, and significant motions were rejected. The essence of the case itself does not matter, and the prosecutor’s presentation in a criminal case contains only a description of the violated criminal procedural norms of the law.

It should be noted that evidence or witnesses can only be accepted if they were previously stated in the court of first instance, but were not accepted. This rule applies not only to the prosecutor’s presentation, but also to all appeals to the appellate authority.

The prosecutor can appeal court decisions, including sentences Judicial Collegium in criminal cases, and sentences in military cases Supreme Court RF.

Time limits for appeal

The prosecutor is given 10 days from the date of the verdict in the court of first instance to make an appeal. If this deadline is missed, the public prosecutor is returned the presentation, but he can petition for the restoration of the missed deadlines, indicating the valid reasons for which this period was missed.

Within 14 days from the date of the submission, the body to which this document was sent must make a decision. If the response to review the document is positive, the prosecutor also participates in the process, filing petitions and presenting evidence.

It is necessary to note the importance of the participation of the prosecutor in court of appeal. He must be present so that the process is carried out according to the law, without infringing on the rights and freedoms of citizens, that is, the principle of competition is applied.

Cassation

The prosecutor's cassation submission is somewhat different from the appellate submission, but carries the same semantic load. The difference is that the appeal is filed against the decision of the magistrates, while the cassation is filed against all others.

This document describes in the same way all violations of criminal procedural norms if they were committed in court at the first stages of consideration of the case. There must be indications of exactly which articles were applied incorrectly, which resulted in a violation of the rights of one of the parties involved in the case.

In addition, the appeal presentation of the prosecutor, just like the cassation presentation, contains a solution to the issue of applying the code in the correct version. The deadlines for filing submissions and actions if they are missed are 10 days from the date of the verdict, or a petition to restore the missed period.

If the prosecutor, after making a submission, decides to refuse this action, he has the right to withdraw the document.

Supervisory representation

In the event that a court hearing has already been held, but the prosecutor’s cassation submission is not satisfied, he can appeal the decision to supervisory procedure.

According to Federal law“On the Prosecutor's Office”, the prosecutor has the right to demand any case in the court office, even for which the deadlines for filing a complaint or presentation have been missed, and appeal it in the manner of supervision. If appealing such cases is not within the competence of this prosecutor, he may make a written request that the prosecutor's supervisory submission be made to a higher public prosecutor.

According to the law, an appeal in the supervisory procedure has a special procedural status. That is why the law provides for courts that have the right to consider such submissions. According to Article 403 of the Criminal Procedure Code Russian Federation, supervisory representations can be brought by the prosecutor of the subject or the Prosecutor General of the Russian Federation.

Reply to the prosecutor

The response to the prosecutor's submission in the supervisory procedure can be either positive or negative. If the answer is positive, the case is considered and a certain decision is made, for example, to cancel the decision of the court in which the case was heard. In this case, the materials are sent for further investigation, if necessary, or an acquittal is rendered.

If the court's answer is negative, then further appeal occurs in next order: determinations of the presidiums of the courts of the constituent entities of the Russian Federation or the Judicial Collegium for Criminal Cases can be appealed in the manner of supervision, as stated earlier. Resolutions of the Presidium of the Supreme Court of the Russian Federation are not subject to appeal, except in cases of discovery of new circumstances.

Resolution submission

In addition to the proposal, which is submitted to the court and contains a set of violated norms, there is also a proposal from the prosecutor to eliminate the violations. Subject of this document may constitute violations of the law in various areas social activities and contain requirements to involve any person (or persons) in material or disciplinary liability. The response to the submission must be sent to in writing to the prosecutor who submitted the document to the competent authority for consideration.

Classification of representations

It is also worth highlighting, based on the above, that there is an illegal classification for this type of document, such as a presentation made by the prosecutor. There are supervisory and non-supervisory representations.

Non-supervisory documents are precisely those that are brought to the court office - appeal, cassation and by way of supervision.

Supervisory representations are related to the direct function of the prosecutor in exercising supervision and identifying facts of violation of laws. This applies primarily to officials employed in the public service.

Complaint about performance

To any representation of the prosecutor, if the case concerns individuals or legal entities, and is being considered in court, you can file a complaint.

In the event that the prosecutor does not agree with the ruling or decision of the court and asks to tighten the penalty or increase the fine already convicted person, this person has the right to file a complaint in the same court as the prosecutor - appellate or cassation instance. In any case, the convicted person can raise objections that are based only on the provisions of the law, in writing, independently or with the help of third parties.

Protest and performance

IN current legislation protest and representation are defined in different articles, but the second term is increasingly used, although the functions of these documents are different. In order not to get confused in the diversity procedural documents, which the prosecutor may introduce and declare, it is necessary to precisely establish the meaning of these terms.

Representation, as stated earlier, is the prosecutor’s act of responding to violations. This concept has begun to be used much more often in court hearings. Protest involves strong disagreement with something. And such an approach would be considered contempt of court. Therefore, the term representation - as more democratic - began to be used in most cases.

However, if a protest is a statement about a violation of a single norm of the law, then the proposal submitted by the prosecutor is a complex document. Its subject is several violations of provisions in the law that need to be corrected or certain persons held accountable.

It should also be noted that all these documents must be considered regardless of what decision is planned to be made. It is unacceptable to voice a refusal to the prosecutor to take measures to eliminate violations if there are no grounds for this.

The information that each prosecutor's submission must contain is quite typical for court order. However, the need to enter information is determined by the practical significance of this document:

1. Name of the court.
2. Name of the person submitting the representation (prosecutor) and procedural position(state prosecutor).
3. An indication of which court decision is being appealed or which the prosecutor does not agree with.
4. Prosecutor's requirements.
5. Reasons why the prosecutor believes the decision was wrong.
6. List of documents and evidence that may be attached to the submission.

You can see what the prosecutor’s submission (a sample is given as an example) to eliminate violations in the penal legislation looks like in the photo below.

Thus, the prosecutor, fulfilling his direct duties, must not only identify facts of incorrect application of the law or violation of its norms, but is also obliged to demand any information related to the case and give instructions to eliminate the violation.

With changes in the criminal procedure code, which occurred first in 2007 and then in 2014, the prosecutor was somewhat limited in his powers, but this gave him the right to take the position of an observer and become a disinterested party in any case.

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When submitting an application to the court, each of the parties to the process hopes for an honest and fair decision. Of course, if someone is not satisfied with the decision, then the law gives him the right to challenge such a decision in the courts highest authority, for 10 days. Sometimes, due to their lack of awareness of legal procedures, people do not notice violations on the part of the judge himself, and are satisfied with his decision, even if it is far from their expectations. To defend legal rights and the interests of the people, the prosecutor is present at the meetings. He has the appropriate qualifications and can himself file objections to the prosecutor’s appeal in a criminal case if he discovers inconsistencies in the actions of the judge with the laws of the Russian Federation.

The Criminal Procedure Code characterizes an objection to the prosecutor’s appeal in a criminal case as a written complaint against a court verdict regarding a specific judicial trial, which has not entered into force legally.

The prosecutor is a guardian of the law; his very presence at the meeting acts as a certain guarantee of fairness and objectivity in the consideration of the case. Therefore, claims can be made not only against the parties to the process, but also against the presiding officer himself. The representative of the prosecutor's office is obliged to react in a timely manner and prevent any possible mistakes in legal proceedings, since the correctness of court decisions and the legality of their adoption has a short time frame for appeal. During the trial, the prosecutor's responsibilities include monitoring:

• characteristic features of legal relations between the parties to the case;
• compliance with the jurisdictional and judicial part of the process;
• lack of circumstances to terminate the criminal case;
• involvement of all interested parties in the production;
• the correctness of the judge’s interpretation of the circumstances of the case;
• the presence of the necessary evidence taken into account by the court;
• compliance of the judge’s decision on the crime in question with existing laws;
• application procedural law in proper form.

During court session, the prosecutor can raise an objection regarding the fact that the judge incorrectly interprets the circumstances of the case, and this significantly affects the outcome of the procedure, and also accepts irrelevant, unreliable or unfounded evidence into the facts. The appeal type submission from the prosecutor must contain all of the above points. An employee of the prosecutor's office may also indicate in his complaint that the judge, during the trial and sentencing, used laws that contradict the case, or did not use articles that correspond to the case on the merits.

The appeal, whichfiled by the prosecutor must meet all the requirements and standards described in Art. 389.6 Code of Criminal Procedure of the Russian Federation.Code of Criminal Procedurealso includes the procedure for drawing up an appeal from the public prosecutor and its content. In accordance with existing legislation, the prosecutor has the right to submit a writtenappeala court decision only if he personally participated in the process.

The public prosecutor submits his objection to the court of cassation or appeal, but the written appeal itself is referred to district court. The disagreement of the prosecutor's office must be accepted for consideration no later than 14 days from the date of submission. The difference is that the prosecutor can file an appeal before entering into legal force previously adopted resolution, and in court of cassation an objection is filed only after the decision has entered into force. The fact is that the cassation court can only make a decision on the legality of the decision already made.

To understand the essence of the prosecutor's appeal, it is necessary to consider real example situations. If at the court hearing the arguments of the defense were stronger during the debate of the parties to the trial, and the judge imposed a punishment on the criminal, much softer than what was required in his indictment prosecutor, then the latter has every reason to file an appeal, as in principle do other participants in the process. The basis of the prosecutor's complaint in this situation may also be the fact that the defense's arguments became more convincing only because the court did not satisfy the prosecution's request to bring new witnesses in the case, who, in the prosecutor's opinion, could prove the defendant's guilt, but the court considered they were not a priority and were rejected.

According to the law, all case materials sent by the prosecutor to the appellate court are re-examined, and a copy of the complaint is sent to all participants in the process for review. Judges of the second instance carefully study the arguments of the prosecutor regarding the illegality of the decision, violations in the work of the judge of the first instance, and make a decision to uphold the objection or reject it.

If the prosecutor's arguments are considered unfounded, then the decision of the court of first instance enters into legal force within 10 days. If the objection is approved, the case will be considered in the court of appeal, and the parties will be notified by letter of the date of the hearing.

Sample appeal

In order to understand what the prosecutor's appeal is, it is necessary to understand the difference between a protest and a presentation. Those who are not very familiar with legal terminology think that these are the same thing, but in fact, they are not. Although the purpose of both documents is the same, the essence of their presentation differs. For example, the prosecutor’s report contains violations of legislative acts, both criminal and procedural, described by the state prosecutor, which were committed at the trial court hearing. As for the protest, it contains categorical disagreement with the judge’s decision as a whole.

Many legal scholars argue that protest constitutes disrespect for the court as an authority; therefore, in practice, complaints in the form of protest are accepted much less frequently.

The principle of drawing up both documents is the same; the difference will only be in the main part, where the prosecutor will describe either individual violations or his disagreement with the decision as a whole.

The structure by which the public prosecutor draws up an appeal to the appellate court is as follows:

1. The name of the body that will consider the complaint (court of cassation or appeal) and its address.
2. Information about the applicant: name and position.
3. Details of the case (number of proceedings, which court heard it) and participants (defendant and applicant).
4. Document's name.
5. The main part of the protest. In this part of the appeal, the prosecutor gives a detailed description of the violations of the law. It is necessary to briefly describe the reasons why the sentence passed by the trial court can be considered illegal. Be sure to include links to articles and law enforcement acts.
6. Petition to the court of second instance. The prosecutor may overturn the sentence in whole or in part and order a new trial. Also, the prosecutor may be dissatisfied with a specific part of the court’s decision and demand that it be corrected; for example, the state prosecutor is dissatisfied with the amount of the punishment and demands that its size be reviewed.
7. List of attached documentation.
8. Date of compilation and signature of the prosecutor.

The text of the complaint should not contain a repetition of the decision issued by the court of first instance. A copy of the verdict will be attached to the complaint. It is necessary to clearly describe only the claim and the evidence that confirms its legitimacy. It is important to indicate in the text of the complaint the deadline for fulfilling the requirements; this period must necessarily correspond to the time during which the defendant and his lawyer will be able to familiarize themselves with the prosecutor’s claim. According to the Code of Criminal Procedure of the Russian Federation, this period can vary within 30 days.

If the court of second instance accepts the complaint for consideration, then the same defendants in the case will be called to the hearing, but if they cannot appear at the trial, then the case will be considered without their presence. The parties will be notified of the results by letter. The decision of the appellate court can be different - the panel of judges, which often considers the prosecutor's claims, can leave the decision unchanged, cancel or change the decision of the first instance court in whole or only in part, and even cancel the court decision and close criminal proceedings on business. There are many options for the outcome of the situation, but all of them are provided for by Chapter 39 of the Code of Civil Procedure of the Russian Federation.

According to Art. 35 of the Law “On the Prosecutor’s Office”, the prosecutor is obliged to promptly take measures provided for by law to eliminate violations of the law, no matter who they originate from. The same requirements are provided for in Art. 25 of the Code of Criminal Procedure of Ukraine. This means that the district (city) prosecutor must organize work to support state prosecution in such a way as to respond to every illegal and unreasonable decision court by making an appeal or a separate submission to the appellate court. Persons who have the right to appeal against an illegal and unfounded court decision, specified in Article 348 of the Code of Criminal Procedure: “the prosecutor who took part in the consideration of the case by the court of first instance, as well as the prosecutor who approved closing indictment- within the limits of the accusation, supported by the prosecutor who took part in the consideration of the case by the court of first instance." The Law of Ukraine "On the Prosecutor's Office" determines the circle of officials of the prosecutor's office who have the right to file an appeal - the prosecutor and deputy prosecutor within the limits of their competence, regardless of their participation in the consideration of the case in the court of first instance; the assistant prosecutor, prosecutors of departments and departments - only in cases in which they participated (Article 37 of the Law).

Art. 355 of the Code of Criminal Procedure provides that the prosecutor’s submission on the verdict, ruling or determination of the court before the start of the consideration of the case in the appellate court may be withdrawn by the person who filed the appeal, the prosecutor who supported the prosecution, or the one who approved the indictment.

The duty to verify the legality and validity of court decisions as determined by law appeal period(fifteen days) is assigned to the state prosecutor. The court's decision in the case becomes known to the prosecutor from the moment it is announced, but this does not relieve him of the need to check the legality and validity of this decision.

No later than the next day after the court considers a criminal case, the public prosecutor is obliged to inform the head of the prosecutor's office or his deputy about the results of its consideration. A copy of the certificate is sent to the prosecutor's office top level to verify the legality of the decisions taken in the case.

During the deadline for appealing court decisions that have not entered into legal force, the public prosecutor must familiarize himself with the materials judicial investigation, appeals and complaints from other participants in the process. If there are grounds, he is obliged to submit written comments on objections and the minutes of the court session and on appeals, submit documents prosecutor's response to illegal court decisions(clauses 4.6, 4.7 of the order of the Prosecutor General of Ukraine No. 3 dated March 30, 2004).

When familiarizing yourself with the protocol of the court session, the prosecutor draws attention to the correctness of the resolution of issues that arose during the trial, as well as compliance with the rules of conduct judicial actions: interrogations, examination of material evidence, appointment and conduct of examinations, inspection of the crime scene and other investigative actions.

It is important to check the legality and validity of the sentence in the correct classification of the crime of which the defendant was found guilty, the compliance of the punishment with the degree of social dangerous actions, taking into account the circumstances mitigating or aggravating the responsibility of the convicted person, as well as data characterizing his personality.