Clarification of legislation on the topic: "Features of the consideration of criminal cases in a special procedure of the trial." When does a special procedure for considering a criminal case in court applied? Punishment with a special procedure for considering a criminal case

The head of the 40 Criminal Procedure Code of the Russian Federation provides for a special procedure for considering a criminal case. What is the peculiarity of the trial in a special order?

The special order of the trial is a "simplified" form of a trial, in which the court does not investigate the criminal case materials confirming the guilt of the defendant in the commission of the crime incriminated to it. With a special order of the court session, only materials characterizing the identity of the defendant are investigated.

Mandatory conditions for considering a criminal case in a special order

• recognition of the defendants of the guilt in full and its agreement with the prosecution;
• maximum Punishment for the Perfect Crime should not exceed ten years in prison;
• the public prosecutor, the lawyer and the victim do not object to the consideration of the case in a special order, and the defendant itself applies to this;
• timely statement by the defendants of the petition for the consideration of the criminal case in a special order. In accordance with the criminal procedural legislation of the Russian Federation, a statement on the consideration of the criminal case is in a special procedure possible only at the following stages of the criminal process: when familiarizing with the materials of the case in accordance with Art. 217 Code of Criminal Procedure or during the preliminary hearing at the court hearing. If the petition is not stated in these moments, the subsequently declared such a petition will not be satisfied with the court.

It should be noted that all these conditions are necessary in the aggregate.

The law provides for the restrictions on the consideration of the criminal case in a special procedure for some categories of defendants. So, criminal cases cannot be considered in a special procedure on the application of compulsory medical measures and in relation to minor defendants.

At the court hearing carried out a special order the court does not investigate evidence of the defendant, and only materials are investigated, characterizing the identity of the defendant (characteristics, information on criminal record, information about the family composition and the availability of dependents, about the place of work, about the state of health, etc.). At the same time, the law does not contain a ban on the interrogation at the court session of witnesses according to the personality characteristic of the defendant. As a rule, relatives and other close persons of the defendant are acting as such witnesses; They are interrogated by the petition.

The main advantage of the consideration of the criminal case in a special order is a significant decrease in the prescribed sentence. In accordance with the law, in the case of a criminal case in a special order, the amount of the prescribed sentence cannot exceed two thirds of the maximum term of the most strict type of punishment provided for by the authorization of the article.

An important consequence of the consideration of the criminal case in a special procedure is that it is possible to appeal such a sentence in terms of the sentence (i.e., if the punishment in your opinion is too strict or, on the contrary, too soft). Appeal against the sentence for the unprincipledness of the defendant or inconsistency of the conclusions of the court the actual circumstances of the case

In order regulated by ch. 40, only the conviction is declared. This follows from the meaning of Part 1 of Art. 314, Art. 315 and 316 CPC. If the judge does not conclude the guilty of the defendant upon the charges presented to him, doubts the legality and validity of the accusations with which the Protection Party and the Party of Charge agree, the judge must conduct a trial in the usual basis. And only in this case, the judge is entitled to take another decision, in addition to the decision of the indictment, including to terminate the criminal case or make an acquittal. The Plenum of the Supreme Court of the Russian Federation in connection with this explains: "When considering the case in a special order (section of the X Code of Criminal Procedure), the law provides for the decree only an accusatory sentence. Therefore, in cases where the judge before the sentencing establishes that there are any circumstances that impede the submitting sentence, or there are grounds for changing the qualifications of the deed, termination or justification of the defendant, he makes a decree on the cessation of a special order of trial and Appoints the consideration of the criminal case in general order "Paragraph 28 Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 dated March 5, 2004" On the applications by the courts of the norms of the Criminal Procedure Code of the Russian Federation "// Bul. Top. Court of the Russian Federation. - 2004. - № 5. - P. 6 ..

Special (abbreviated) procedure for the proceedings provided for in ch. 40 Code, is not allowed in criminal cases regarding minors and in the work on the application of compulsory medical measures.

On the other hand, the possibility of its application does not affect what form was carried out pre-trial production in a criminal case. Although there are features of the application of this procedure for cases, according to which the preliminary investigation was carried out in the form of a preliminary investigation or in the form of an inquiry or in the form of pre-trial training in the case of a private accusation carried out by the victim.

This procedural procedure is allowed when permitting cases of private, private and public prosecution.

As you know, the Code of Criminal Procedure provides that the state prosecutor for cases under which a preliminary investigation was conducted in the form of an inquiry may be a representative of an inquiry authority - the investigator or an investigator who conducted an inquiry authorized to maintain the public accusation by the prosecutor. However, the consent of the investigator (investigator) on the use of a special procedure for making an indictment will not have legal force if he was not authorized to give him the overall prosecutor.

Private prosecutor according to Art. 43 Code of Criminal Procedure has all the procedural powers of the prosecution. The private prosecutor has the right to agree to the application of the procedure under consideration for private accusation cases considered by the magistrate. If the prosecutor in accordance with part 3 of Art. 318 Code of Criminal Procedure entered into a case of private accusations, it is necessary for the mutual consent of it and the victim to apply a special order.

Under the "court" referred to in Article 314 of the Code of Criminal Procedure 314, as a plenipotentiary judicial authority, are: a global judge (paragraph 4 of part 2 of article 30, part 1 Art. 31, 324 of the Code of Criminal Procedure), District Court (part 2 of Article 31 ), the court of the subject of the Russian Federation (part 3 of article 31 of the Code of Criminal Procedure), as well as the garrison or district military courts (part 5, 6, Article 31 of the Code of Criminal Code), considering and resolving criminal cases on the first instance (paragraphs 48, 52 of Art. 5, Clause 1 of Part 2 of Art. 30, Art. 321 CPC).

The case is in a special order regarded by the judge alone: \u200b\u200bthe world judge, the judge of the federal court of general jurisdiction, or the judge of the Military Court.

The grounds and conditions for the implementation of a special order of trial. The title of Article 314 of the Code of Criminal Procedure indicates that it contains norms regulating "grounds" for the use of "special order".

Since in art. 314 Code of Criminal Procedure is talking about the foundations in the plural, the postolon can talk about several bases. We believe that here is meant here, firstly, the "legal basis", and secondly, the "actual basis". Note that the actual base is those proof ofwhich justifies the prosecution, and which confirm the circumstances make it possible to conclude a deal. However, here we will talk more about legal basis Applications "special order". So, here we indicate that in part 3 of Art. 314 Code of Criminal Procedure in the circumstances given in parts 1 and 2 of the same article, already as "conditions", which makes it possible to use such a procedure. Meanwhile, in part 2 of Art. 314 Code of Criminal Procedure states on the "case provided for in the first of this article." In addition, it is necessary to take into account the fact that in paragraph 2 of Part 5 of Art. 217 Code of Criminal Procedure states the use of a special order of trial: "In cases provided for in Article 314 of this Code". Thus, the legislator uses differentterms and wording for qualifying in Art. 314 Code of the circumstances constituting in the aggregate "Legal Foundation".

Systemic analysis of the norms contained in Articles 314-316 and paragraph 2 of Part 5 of Art. 217 Code, it allows us to conclude that under the "case" referred to in part 1 of Art. 314 Code, it is necessary to see a complex legal composition, which forms "criminal law" basis and several "procedural" conditions that can be called the terms of the "first queue". This is the "legal basis" of the application of a special order of trial. Creation of "case" conditions of the first turn Specified in Part 1 of Art. 314 CPC. The clarification of these conditions takes place in paragraph 2 of Part 5 of Article 217, Article 218 and Article 315 of the Code of Criminal Procedure.

The remaining conditions determine the features of the passage of such a case in certain stages, as well as the possibility of making an accusatory sentence, and besides this, the features of the use of the procedure under consideration for some categories of affairs. W. sounds of the second stage Listed in paragraph 2 of Part 5 of Art. 217, Art. 218, Part 2 Art. 314, as well as in Art. 315 and part 1-7 tbsp. 316 CPC. Obviously, they can be divided into two groups of conditions: "Conditions for the application and registration of a petition" (paragraph 2 of Part 5 of Art. 217, Articles 218 and 315 of the Code of Criminal Procedure) and the "Conditions of the sentence" (part 8 of Article 316 of the Code). Below they will be given.

The accusation filed in procedural order (paragraph 22 of Art. 5 of the Code of Criminal Procedure), which agreed to accused, constitute a criminal law on the application of a special order provided for by Chapter 40 of the Code of Criminal Procedure. In other words, under the "criminal law (material) basis", referred to in Part 1 of Art. 314 CPC, you need to understand corpus delicti imputed to the blame accused, for which the punishment does not exceed 10 years in prison. According to Art. 8 of the Criminal Code of the Russian Federation the basis of criminal responsibility is the commission of an act containing all signs of the composition of the crime provided for by this Code. From part 1 tbsp. 14 CPC it follows that this basis (as a completed composition) is established by the judgment of the court that entered into legal force.In itself, the commission forms only background For the formation and nomination of the law enforcement of the state (represented by indictment) to the court on recognition in the actions of the accused composition of the crime. The composition of the crime, which forms the subject of the accusation (and the subject of the transaction about the recognition of the criminal claim), is the product of the procedural activity of the part of the accusation and protection. Each of the elements of the crime of the crime is the circumstance of the case with which the law binds, in accordance with Art. 73 CPC, the possibility of its permission. The contractual moment is not excluded in the relationship between the accusation and protection about the formation of the subject, the amount of the charge. The use of a special order of permission of the criminal case should depend not on the actually committed crime, but from the composition of the crime indicated by the prosecutor in the text of the charges. Only the text of the indictment (act) Reaen for the court in terms of determining the subject of judicial review. In addition, there is no other reality, with respect to which the court should take any legally significant decisions.

So, under legal (criminal law), referred to in part 1 of Art. 314 CPC, it is understood the accusation, recognize which agreed by the accused. The mutual agreement of the accusation and parties to the application for the application of the procedure under consideration constitutes the first indispensable condition that is part of the basis of this order. Other factors specified in Part 1 of Art. 314 Code of Criminal Procedure, with the need to determine the possibility of the implementation of a special order, and therefore constitute a criminal law of an inseparable unity called us criminal procedure.

The procedural conditions of the first stage To apply abbreviated judicial procedures are:

• 1. Consent parties accusations Person a) of the state prosecutor - the prosecutor and the victim, his representative b) of the private prosecutor or his legal representative, the representative of the criminal cases of private accusation (paragraph 59 of Article 5 of the Code of Criminal Procedure) with the subject and amount of accusation imposed by the accused, as well as their consent on the use of a special order of trial.
• 2. The consent of the accused with the accusation charged to him and on the use of a special order of trial.

Conditions of the second stage Specify, complement the conditions of the first stage. These include:

1. The case should be charged (a decree was made to attract as an accused (Art. Art. 172, 173 of the Code of Criminal Procedure), an indictment was drawn up and the accused is familiar with him (Articles 225, 226 of the Code of Criminal Procedure). In the case of private accusation, the global judge should A decree was made to accept the application of the victim to their production and awarded a copy of the accused submitted by the private prosecutor (Articles 318, 319 of the Code).

It should be borne in mind that with the presence of the accused, declared in the manner specified in paragraph 1 of Part 2 of Art. 315 Code of Criminal Procedure, the prosecutor has the right when approving the indictment to change the amount of charge or the qualifications of the actions of the accused criminal law on a less severe crime (paragraph 1 of Part 2 of Art. 221 of the Code of Criminal Procedure. Similarly, the prosecutor can do with the indictment (part 2 of Art. 226 of the Code of Criminal Procedure). In the preliminary hearing stage, the prosecutor can change the accusation towards the softening (part 5 of Art. 236, Part 7 of Art. 246, Part 5 of Art. 37 CPC).

In such cases, the norm is becoming relevant contained in part 4 of Art. 314 CPC. All those mentioned in it, including the victim in the case of public prosecution, should be agreed with the prosecutor and the accused. Otherwise, the judge is obliged to appoint a court hearing in general. The judge must make sure that all stakeholders mentioned in the law were aware of the change in the legal framework of the transaction about the recognition of a criminal claim.

The court is obliged to proceed upon consideration of the case from that accusation for which the case was enrolled in the court. In the final form, the upper limit of the charge is determined in the judge's decision on the appointment of the court session. It is agreement with this accusation that is the last condition necessary for conducting a special procedure for a criminal proceedings in court.

Recognition by accused of their guilt upon submitted accusations.

If the defendant fails to recognize his guilt, the judge, by virtue of Part 3 of Art. 314 and part 6 tbsp. 316 Code of Criminal Procedure, has the right to decide on the cessation of a special order and conducting a trial in general.

The accused requires not repentance in the moral sense of the word, formal, although unconditional recognition of guilt upon the charges, which can be preceded by bargaining with the indictment about the subject and limits of the charge.

The accused agree to compensation for harm caused by his criminal actions, in full satisfy the material claims of the civil plaintiff.

A possible condition for the use of a special order may be accused of accused of positive post-crime actions covered by the concept of "active repentance".

The presence of a properly decorated and stated petition of the accused of applying a special order of trial.

In a criminal case, according to which a preliminary investigation was carried out, the procedure for the accused of applications is provided for in paragraph 2 of Part 5 of Art. 217, Art. 218, paragraph 4 of Part 2 of Art. 229, Articles 315 and 236 of the Code of Criminal Procedure.

According to which the preliminary investigation was carried out in the form of an inquiry, the application accused is declared in the order of Part 2 of Art. 225 Code, but taking into account the above provisions, in the course of familiarization with the materials of the criminal case.

In addition, it should be borne in mind the provisions of Chapter 15 of the Code of Criminal Procedure, which determines the general procedure for statement, consideration and permission of petitions.

The authority leading a criminal case is obliged to make sure that the accused is aware of the nature and consequences of the petition declared.

If the accused has a legal representative, the consent of the legal representative to apply the procedure for making an indictment is necessary.

The petition must be stated voluntarily and after consulting with the defender. According to paragraph 7 of Part 1 of Art. 51 Code of Criminal Proizian In a criminal case, if the accused declared a petition for the consideration of the criminal case in the manner prescribed by Chapter 40 of the Code. In accordance with part 2 Art. 51 Code of Criminal Procedure In cases provided for in paragraph 7 of part 1 of this article, the participation of the defender is ensured since the statement of at least one of the accused petitions on the consideration of the criminal case in the manner prescribed by ch. 40 CPC.

If in the case of a statement at least one of the accused petitions on the consideration of the criminal case in the manner prescribed by ch. 40 CPC, the defender is not invited by the accused himself, his legal representative, as well as other persons on behalf of or with the consent of the accused, then the investigator, the investigator, the prosecutor or the court ensures the participation of a defender in criminal proceedings (part 3 of Art. 51 of the Code of Criminal Procedure.

The position of the defender may not coincide with the position of the prosthetic accused regarding the application of the procedure for the permission of the criminal case. In accordance with paragraph 3 of Part 4 of Art. 6 FZ "On advocacy and lawyer in the Russian Federation" The lawyer has the right to occupy a position in the case against the will of the principal in the event that is convinced of the presence of a self-shaped principal. If the defender is convinced that the accused (defendant), not guilty of anything, accepts someone else's guilt or confessed in a crime, in fact they are not perfect, then in such cases it is entitled and obliged to defend the accused (defendant) Wishes and ask for the production of preliminary and judicial investigation in order to prove that the consciousness of the defendant is not confirmed or is even refuted by the circumstances of the case. If the confession of the accused in the crime committed it is doubtful for the court, the request of the defender about the production of a trial in the usual order should be satisfied with the court, the special procedure does not apply.

The primary petition of the accused on the use of a special order made during pre-trial production, later must be confirmed by him in the presence of a defender in court (part 1 of article 315, part 2 of Art. 316 Code of Criminal Procedure.

In particular, confirmation is required by the defendant for the statement of a sentence without a court proceedings in connection with consent to the prosecution on the preliminary hearing.

The previously existing rule on the obligatory conduct of the preliminary hearing in the case (public or private and public prosecution), according to which the petition was stated by the accused of a sentence without a trial (paragraph 4 of Part 2 of Art. 229 of the Code of Criminal Procedure) is now canceled. However, the accused is entitled to declare such a petition at the preliminary hearing, when it is carried out by virtue of Art. 229 CPC. And the court has the right to satisfy it in compliance with the conditions established by law.

If in a criminal case, a petition about the decision of the sentence without a court proceedings is declared one of the accused, and other accused of such applications did not declare, it is to be considered generally in a general procedure for all accused.

With the participation in the victim, civil plaintiff, they are entitled to attend and directly control the observance of their rights and legitimate interests at all preliminary stages of the special order (for example, in the preliminary hearing) and in the trial stage in the final form to confirm their consent to the decree of the conviction Without a trial on satisfying their conditions.

The petition for the resolution of the sentence without the conduct of the trial in connection with the submitted accusation of the accused is entitled to declare at the time of familiarization with the materials of the criminal case in the presence of a defender. This makes an appropriate entry in the minutes of familiarization with the materials of the criminal case in accordance with Part 2 of Art. 218 CPC. Obviously, during the end of the preliminary investigation, the participation of the defender in the case should provide the investigator.

According to Part 2 of Art. 52 Code of Criminal Procedure is not required for the investigator, investigator, prosecutor and court in the case of the accused petitions on the consideration of the criminal case in the manner prescribed by ch. 40 CPC.

If, when applying, at least one of the accused petitions about the consideration of the criminal case in the manner prescribed by ch. 40 CPC, the defender is not invited by the accused himself, his legal representative, as well as other persons on behalf of or with the consent of the accused, the investigator, the investigator, the prosecutor or the court must ensure the participation of the defender in criminal proceedings (part 3 of Art. 51 of the Code of Criminal Procedure. Therefore, the indication in part 1 of Art. 315 Code of Criminal Procedure, as the only authority, designed to ensure the participation of the defender upon receipt of the application of the accused is not accurate. This is obliged to make the body in the production of which at the time of the request was a criminal case: the investigator, the investigator, the prosecutor, the judge. This follows from Part 2 of Art. 119 CPC.

This kind of application accused can make earlier the end of the preliminary investigation. The accused is not limited in this regard (this follows from the general meaning of the analyzed legal institution, the principal provisions of Articles 16 and 47 of the Code of Criminal Procedure and is provided by part 1 of Article 120 of the Code of Criminal Procedure. The investigator can clarify the accused of his right to statement of such a petition when the accusable accused fully admitted his guilt. This is done by the appropriate entry in the interrogation protocol of the accused.

The question of the possibility of meeting the request for a sentence without conducting a trial in connection with consent to the prosecution can be allowed and prosecutor, which is superior to the preliminary investigation.

The investigator, the investigator, the prosecutor is obliged to make a resolution on the satisfaction of the petition or on the full or partial refusal to satisfy it (Appendix No. 156 to Art. 476 of the Code of Criminal Procedure. Although the refusal to satisfy the petition in relation to the situation under consideration is unlikely, since it is implied to the preliminary achievement of the consent of the parties, however, theoretically, such a decision may be appealed by the protection party in court.

The prosecutor has the right to agree with the application of the procedure provided for in ch. 40, when the criminal case came to him with an accusatory conclusion or indictment (Art. 221, 226 of the Code of Criminal Procedure).

From part 3 tbsp. 229 Code It follows that the petition from the accused of a sentence without a court proceedings in connection with the concluded accusation may be received after familiarization with the materials of the criminal case or after the direction of the case with the indictment or indictment to the court within 7 days from the date of receipt of the accused Copies of the indictment or indictment.

The prosecution must express their consent to the charge and support the application of the accused of a sentence without a court proceedings in connection with acceptance of the prosecution in writing. The prosecutor makes it by making a resolution or imposition of a resolution to the application of the accused. The victim can express his consent in writing - by submitting an application or orally. In the latter case, its position should be enshrined in the interrogation protocol or other procedural action (in particular, in the report of familiarization with the materials of the case). The private prosecutor expresses its position regarding the possibility of holding the order provided for by Chapter 40 of the Code of Criminal Procedure, in a written statement addressed to the judge to whom the case is coming up.

The protection side must be given a real opportunity to fulfill the conditions provided for by Part 2 of Art. 314 CPC. These conditions should be provided to those government agencies, in whose production is the case. The participation of the defender does not exempt the state body from the obligation provided for by Part 1 of Art. 11 CPC. Including, the accused should be clarified by the consequences of satisfying his petition provided for by part 4 of Art. 316 and article 317 CPC.

In case of trial, the defendant must confirm his petition in the presence of a defender. The judge, in the production of which is the case on the first instance, should ensure the participation of a defender at the court hearing in resolving the issue of a sentence without trial.

As defenders, in the presence of which the petition of the considered type is made, there may be different lawyers: under the preliminary investigation stage, a preliminary hearing and a trial.

The right of the accused of refusal to help a specific defender provided for Art. 52 CPC, it cannot be limited and in the implementation of the production under consideration. The state body leading a criminal case, there is a duty that the participation of the defender was ensured and the right of protection was not violated.

According to Part 2 of Art. 49 Code of Code by definition or judgment of the Court as a defender can be allowed along with a lawyer, one of the close relatives of the accused or other person, who apply to the accused. In the production of the magistrate, the specified person is allowed instead of a lawyer.

If, in the case of a private accusation, the accused declared a petition for a sentence without a court proceedings in connection with consent to the prosecution, the global judge is obliged to ensure the participation of a defender to fulfill the conditions provided for by Part 2 of Art. 314 CPC.

In a criminal case of a private accusation, an agreement with the submitted accusation may be made accused and before, and after the decision of the Justice of the court session.

At the stage of the trial, the judge conducts a preparatory part of the court session according to the rules provided for by ch. 36 Code of Criminal Procedure, for those withdrawals that follow from the order of the accusatory sentence, provided for by ch. 40. In view of the lack of witnesses, an expert, a specialist, other participants in the process are not fulfilled by the requirements of Articles 264, 268-270 Code.

In the preparatory part of the court session, participation should be ensured, along with the defendant and his defender, public or private prosecutor, the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 // Bulletin of the Supreme Court of the Russian Federation. - 2004. - № 5. - P. 6 .. Participation at the court session of the Civil Plaintiff and the Civil Respondent is necessary if the terms of the parties include the obligation of the latter to compensate the harm caused by the crime.

In the failure of the defendant and (or) his defender, the trial is postponed (part 2 of Art. 248, 253 of the Code of Criminal Procedure). The replacement of the defender is made in accordance with Part 3 of Art. 50 CPC.

By the prosecution, the participation of the state prosecutor (Ch.ch. 1, 2 Article 246), i.e. or the prosecutor, or the investigator, the investigator that supports the accusation on behalf of the prosecutor.

For private accusation, the direction of the prosecution must submit the victim, who acts as a private prosecutor. In order for the state judge to decide the conviction in the order of Art. 316 CPC participation of the private prosecutor is mandatory. According to Part 3 of Art. 149 The Code of Code of the Private Prosecutor without a valid reason entails the termination of a criminal case on the basis provided for by paragraph 2 of Part 1 of Art. 24 CPC.

According to public or private and public prosecution, the judge has the right to consider a criminal case in the absence of the victim, except in cases where the victim's turnout will be recognized by the court of mandatory. For example, in order for the judge to make sure that the requirement provided for in Part 4 of Art. 314 CPC. In criminal case, there must be materials confirming the consent of the victim to the application of the procedure provided for in Ch. 40 (in the interrogation protocol, trial of the court session, a written statement). However, the judge is entitled to demand from the victim confirmation of its position on this issue in court proceedings in oral and direct form.

If against the application of the procedure provided for by ch. 40, in the preparatory part of the court session stands at least one of the participantslisted in part 1 tbsp. 314 and part 6 tbsp. 316 Code of Criminal Procedure, the judge is obliged to conduct a trial in the usual basis. In such a case, the presiding judge must make a decision on the depositing of the trial for a certain period. After renewal, the trial is carried out in general. When one of the sides of his one-sided action breaks the agreement reached earlier, the judge is entitled to make a decision provided for in Part 6 of Art. 316 CPC. At the same time, if, during the court session, the parties will perform with a joint application for a partial change in the accusation, according to which the accused was devoted to the court, the judge is entitled to continue the procedure provided for by Art. 316 CPC.

Consideration of the application of the defendant begins with presentation by the state prosecutor to the defendant accusations in accordance with the requirements of Art. 273 CPC.

Further, the judge finds out the parties to their consent on the use of a special order of the accusatory sentence, provided for by ch. 40 and certifies the basis and compliance with all the conditions provided for by law to apply a special order.

The judge polls the defendant, is it clear to him, whether he agrees with the accusation and supports his petition for the sentence without conducting a trial, whether this petition is stated voluntarily and after consulting the defender, whether he is aware of the consequences of a sentence without a court proceedings.

The judge clarifies the defendant, who suffered the consequences of satisfying the application of the defendant and the decision of the indictment in accordance with Art. 316 CPC. If a civil lawsuit was announced in a criminal case, the defendant should be explained by the consequences of the indictment for him to satisfy the claimant's claims in the Civil Court.

With the objection of the defendant, the state or private prosecutor who suffered a judge against the decision of the sentence without conducting a judicial proceedings, the judge makes a decree on the termination of a special procedure for the trial and appointment of the consideration of the criminal case in a general manner. If against the application of the procedure provided for by ch. 40, acts at least one of the participants listed in Part 1 of Art. 314 Code of Criminal Procedure, the judge is obliged to produce a trial in the usual basis.

The basis for the adoption of a judge decision to carry out a reduced trial is the evidence of a perfect crime, which gives rise to the domestic belief in the guilt of the defendant in committing a crime, according to which he was devoted to the court. Conditions for making such a decision will be: 1) Complete recognition of his guilt when answering the question of judge during the court session - whether he recognizes himself guilty; 2) confirmation of the petition from the defendant on the resolution of the sentence without conducting a trial in connection with the agreement with the charge 3) an explanation of the rights of the defendant and the consequences of his petition, including those provided for by Art. 317 CPC; 4) the presence of a defender and confirmation from its part of the awareness and voluntary action of the defendant; 5) the consent of the victim, the private prosecutor, the state prosecutor with the use of this order.

The inner conviction of the judge as to the fact that the accusation with which the defendant agreed is reasonable is confirmed by the evidence collected in a criminal case, on the basis of the study of the materials of the criminal case, the results of the preliminary hearing, the views of the Parties expressed at the court hearing. If there is a doubt, the judge is obliged to conduct a trial in the usual basis.

Decision of the decision in the case provided for by Part 6 of Art. 316 CPC, is the responsibility of the court. The position of the Supreme Court of the Russian Federation on this issue is quite clear: if the court has any doubts about the evidence contained in the case or there are grounds for retraining actions of the defendant and the like. To hold a court session according to the rules of chapter 40 of the Code of Criminal Procedure, see: Mercoshov A.E. Some issues of practicing the courts of criminal procedural norms in the implementation of justice // Bul. Top. Court of the Russian Federation. - 2004. - № 8. - P. 31 .. Therefore, if there is reasonable doubt Significated specific actual data, in the correct application of the procedure for a special order of trial, the judge on its own initiative makes a decree on the termination of a special order of trial and appointment of the criminal consideration in general. If the court, if there is reason, did not accept such a decision, then the accusing sentence made in a special order is subject to cancellation. And on the contrary, the parties can appeal in the appeal or cassation order, the judge, who, in their opinion, unreasonably discussed the special procedure for the trial.

The judge is obliged to start a trial in the usual basis in the following cases: 1) if the defendant does not fully recognize its guilt, does not recognize a civil lawsuit; 2) if the defendant or his defender does not want to express his attitude to the charges, i.e. If the defendant is silent, does not give any answer to the question of guilt, refuses to testify or gives an answer unclear or disagreeable with the circumstances of the case, so that the judge remains reasonable doubts about his guilt, legality and validity of the accusations with which the accused agreed; 2) if the judge, in view of the discovery of new circumstances during the court session, suspects the participation of other persons in the Acts committed by the defendant; 3) the presence of a counter complaint in the case of a private accusation of the defendant received in the preparatory part; 4) on cases of crimes committed by a group of persons, if at least one of the defendants objects to conducting a special order of the decree of the accusatory sentence in the case and the case in relation to it is impossible to allocate in separate production; 5) If the judge had doubts about the samentedness of the defendant.

The change in the court proceedings is allowed only towards mitigation (part 2 of Art. 252 of the Code of Criminal Procedure). The judge cannot ignore the results of the agreement of the parties relative to the accused acceptable for the prosecutor, simply by virtue of the rules on the "identity of the criminal claim". Neither directly indirectly the judge on his own initiative cannot change the position of the accused / defendant for the worse, go beyond the accusations of which the case was sent to the court hearing. The judge is obliged in the trial stage to resolve the case on the merits: or terminate the criminal case (Art. 254 of the Code of Criminal Procedure) or make a sentence (Article 302 of the Code of Criminal Procedure).

Since the court himself is not entitled to reconsider the accusation for the worse, so far, in case of disagreement with the accusation, according to which the case was transferred to the court, or when a violation of the conditions for the application of the procedure provided for in Ch. 40, he has the opportunity to change the accusation only in the direction of improving the position of the defendant or to justify it in general when the judge will come to the conclusion in the usual procedure, the judge will come to the conclusion about the presence of one of the grounds provided for by Part 1 of Art. 302 CPC.

Judicial proceedings carried out in a special order does not exclude the debate of the parties and the last word of the defendant. As clarified the Plenum of the Supreme Court of the Russian Federation, "the court is not entitled to refuse to parties in the ability to participate in the debate, and the defendant in the last word to speak on these issues in the manner prescribed by Articles 292 and 293 of the Code of Criminal Procedure" Paragraph 28 Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 // Bul. Top. Court of the Russian Federation. - 2004. - № 5. - P. 7 ..

The principal of the parties may be the type and amount of punishment or even exemption from it. As part of the special production of the debate of the parties, permissible to the extent that they do not question the validity of the charge and the legal qualifications of the deed.

Finding out the position of the parties and consider the results of the abbreviated judicial investigation sufficient to make a decision the court is removed in the delivering room to decree.

Within the framework of the procedure under consideration, the court may endure any type of accusatory sentence, referred to in part 5 of Art. 302 CPC.

Requirements for the decree of the accusatory sentence under the category of cases are the same as in other matters. The exception is the permission of the assignment of punishment.

The conviction with the appointment of punishment to be serviced by the convict shall be submitted in cases where the court considers that the defendant for the perfect crime is subject to punishment and there are no obstacles both for appointment and its serving (no longer expired, there is no act of amnesty, etc.) . Deciding the conviction with the appointment of punishment to be serving the convicted person, the court must accurately determine the type of punishment, its size and the beginning of the calculation of the term of departure (Article 308 of the Code of Criminal Procedure).

The judge decides to convict and prescribe a defendant punishment that cannot exceed two thirds of the maximum period or size of the most strict type of punishment provided for for the commission of a crime upon submitted accusative charges (part 7 of Art. 316 Code of Criminal Procedure

When prescribing a punishment, the court is obliged to make the motives for the partial or complete addition of punishments (Art. 69 of the Criminal Code), on the appointment of punishment for the combination of crimes and sentences (Art. 69, 70 of the Criminal Procedure), on the appointment of a more strict punishment provided for by law Completing the crime by a group of persons in a preliminary conspiracy, organized by the Group, criminal community, grave and especially grave crimes, at a relapse: Paragraphs 2, 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 40 of June 11, 1999. "On the practice of appointment by the courts of criminal punishment / / Bul. Top. Ships. RF. - 1999. - № 8. - P. 3 ..

Features of the appeal of the indictment, declared in accordance with Art. 316 CPC

Article 317 of the Code of Criminal Procedure of the Russian Federation, which determines the limits of appealing the indictment made in the manner prescribed by Art. 316, it is indicated that this sentence cannot be appealed by the parties in the appellate or cassation basis on the basis provided for by paragraph 1 of Art. 379 CPC. There is a terminological inaccuracy of a sign. In Article 379, the CPC is not about Foundations appeal, and Ob. the grounds are canceled or a change in court decision in cassation.In addition, it is necessary to keep in mind that a similar kind of base is provided in paragraph 1 of Part 1 of Art. 369. Meanwhile, as a reference to it in Art. 317 was not made, although it is both appealing and cassational procedure for the appeal of the court of first instance that has not entered into legal force, declared in accordance with Article 316 of the Code of Criminal Procedure. The fact that we are talking about the same basis follows from Art. 380, which reveals the content of this base, as well as the sent down nature of the norm contained in paragraph 1 of Part 1 of Art. 369 CPC.

The legislator's difficulty is explained: in this case, there is a shortage of funds for legal equipment to express the idea that the parties cannot question (appeal) the conclusions of the court enshrined in the indictment, in connection with their not the correspondence of the actual circumstances of the case.

We can talk about the appearance of a new procedural fiction, namely: in the indictment, the court's conclusion is allowed by the actual circumstances of the case. However, his fictitiousness cannot be challenged by the parties and is not subject to a revision by a higher court.

Thus, the parties agreed on the decree of the indictment in the order of ch. 40, can only appeal it in connection with the violations of the law - material or procedural, as well as the injustice of the sentence. They are not right to appeal his actual side.

Restricting the limits of the appeal of the sentence declared in accordance with Art. 316 Code of Code, indicates the formal nature of the truth attached in it. The court of the second instance is not entitled to cancel the conviction of the court of first instance in establishing the inconsistency of the conclusions of the court set out in the sentence, actual circumstances cause, established by the court of the first or appeal instance.

Since the article contains an indication only on the basis provided for by paragraph 1 of Art. 379, Fasting on appeal, the case can be revised on the grounds provided for in P.P. 2-4 h. 1 Art. 369. And in cassation - on the grounds provided for by P.P. 2-4 tbsp. 379 CPC.

There is no such basis for revising the indictment declared in accordance with Art. 316, and in supervisory order (part 1 of article 409 of the Code of Criminal Procedure). In order of oversight, the grounds for cancellation or change of the sentence, which entered into force, may be grounds provided for by P.P. 2-4 tbsp. 379 CPC. Thus, the actual side of the indictment, declared in accordance with Art. 316 CPCs are not subject to appeal by the parties and revise in any of the higher courts.

If there is no need to enter into custody, a protocol on a violation can be drawn up, which outlines all the circumstances of the violation. A copy of the protocol is awarded to the violater, indicating the date of consideration of his case in a correctional or police court, which is subject to cases of criminal misdement or offenses.

Simplified production in pre-trial stages can be combined with the general procedure for consideration of the case in court. However, the modern legislator allows for the possibility of simplifying the criminal proceedings and in court stages, primarily when considering a criminal case in the first instance. The most famous forms of simplified consideration of the case in court, as a correspondence consideration of the case, the issuance of a judicial (criminal) order, a transaction about the recognition of guilt and a special order of trial.

As noted above, the correspondence consideration of the case was known to criminal proceedings for a long time and so far it remains in the legislation of many countries. There are two approaches to the correspondence of criminal cases: 1) in cases where this is allowed by the legislator due to the simplicity of the case, the shortage of the crime, at the request of the accused of considering the case in his absence; 2) In cases where the accused evasion from the appearance of the court, which hinders the consideration of the case and makes it difficult to criminal proceedings. As a rule, the correspondence consideration of the case simplifies the judicial procedure just because the court is not obliged to interrogate the defendant, and this is a certain extent reduces the severity of the dispute or at all removes the dispute of the protection parties with the court hearing. Such a row is provided for, for example, part 4 of Art. 247 CPC.

But the criminal proceedings allow for absentee consideration and in a fundamentally different situation when the accused evasion from the appearance of the court at the court session (part 5 of Art. 247 of the Code of Criminal Procedure). Then the reduction in the proceedings procedure may be very significant. For example, under the laws of France in such cases, cases are considered by the court without the participation of the jury (representatives of the population). The participation of the defender is not allowed, do not interrogate witnesses. Relatives or friends are given the right to explain only about the causes of evasion of the accused of appeal at the court session. The sentence made in absentia in such cases cannot be appealed in cassation. Other, very hard measures of impact are applied to the accused: civil rights is suspended, property arrest is imposed, access to justice is prohibited. If the court declares the excerpt from it to be published in local press, and a copy of the sentence is postponed on the doors of the accused, in the mayor's office in the reception court. The property of the accused is imposed on the sequestration, and it is transferred to the management of the relevant municipal authorities, and the family, if necessary, is provided with financial assistance. If subsequently, the accused will be in court, correspondence production is canceled and the case is subject to consideration in general. From this it is clear that in this case the goal is prosecuted not so much simplifying and accelerating the process, how much to create extremely unfavorable conditions for a person hiding from justice, and coordinates him to the Court of Jaw.

The issuance of a judicial (criminal) order is also known to criminal proceedings for a long time. At least in the XIX century. This form has already been used in criminal proceedings of Germany, Austria, Norway, Hungary, France. In the first years after the October Revolution, there was also a proceeding procedure in Russia, but since 1938 this form does not apply in Russian criminal proceedings.

Simplifying criminal proceedings when applying a court order, as a rule, is that, according to obvious cases of crimes that do not represent a large public danger, when the accused does not object, the prosecutor sends to the court the document provided by law, which sets the essence of the prosecution and asks to appoint a certain Punishment guilty. Usually the accused is notified of this and has the right to send his objection within a certain period, if he does not agree with production in the form of a court order. If the accused does not mind, the court without a court proceedings makes an order that a person is recognized as guilty of committing this crime and is prescribed by punishment. Determining the type and amount of punishment, the court is not obliged to follow the requirement of the prosecutor, but the prosecutor in this case receives the right to appeal the order. In case of disagreement of the accused with the order, he is also entitled to appeal it. In the case of appeal, the order loses strength, and the case can be considered in general.

The most acute discussions in modern criminal proceedings cause such a form of simplifying and accelerating the trial, as a transaction for the recognition of guilt. The deal about the recognition of guilt as a form of permission of a criminal case initially arose in the practice of US criminal proceedings. Later, she received certain legal regulation and is currently very widely applied when considering criminal cases.

Strictly speaking, the deal of confession of guilt precedes judicial proceedings and is more likely to be necessary to reduce the process. A deal of confession of guilt acquires meaning and can generate legal consequences only on condition that the legislator grants the parties to the discretionary authority to change the amount of accusation and qualifications of acts. By how many criminal proceedings, the United States comes from the criminal claim, the result of the proceedings to a certain extent depends on the position of the parties. Therefore, the recognition of the accused of its guilt is becoming crucial, which allows the court to resolve the case without a trial.

The essence of the recognition of guilt is that the parties of the charges and protection before the start of the trial conclude a kind of agreement. The accused agree to recognize his guilt in a certain part of the accusation and not challenge this charge.

In exchange for this, the prosecutor agrees to retrain his actions on an article about a less serious crime or ask for a court on appointing punishment within the limits defined by this agreement.

Negotiations on the possibility of a transaction about the recognition of guilt can initiate any of the parties. As a rule, this is due to the procedural position of the party and its interest in achieving a certain result in this case. The statement of the accused of recognition of guilt takes the court. Therefore, the parties are informed about the agreements reached before he accepts the accused statement.

The judge usually does not participate in the negotiations, but he must agree with the agreements achieved by the parties and be sure that the evidence of the progress is indicated by the guilt of the accused. If the judge has doubts about the guilt of the accused, he can reject the deal and assign the hearing of the case in full. The adoption of the statement of the accused on the recognition of guilt and the conditions for the recognition of guilt frees the judge from the need to conduct the entire proceeding procedure in full. He gets the opportunity to make a sentence, recognizing the accused of responsible in that crime, in which he recognized himself guilty, qualify his actions as a prosecutor asks for this, and impose a punishment within the agreements reached by accusation and protection.

A fundamentally different approach took place when establishing a special order of trial in Russia (Section of the Criminal Procedure). Unlike a deal of confession of guilt, the special procedure of the trial is not an agreement between the parties in a particular criminal case. This provision remained unchanged even after the introduction by the Federal Law of June 29, 2009 No. 141-FZ of such an institution as a pre-trial agreement on cooperation, which will be stated below. The conditions and procedure for this procedure are established by law and in no way depend on the agreement of the parties. The legislator himself allows the possibility of simplifying the judicial procedure and legally, the same for all cases establishes certain "benefits" for the accused in cases of its agreement with the accusation and refusal to dispute with the court or conclude agreement on cooperation with the accusation (part 7, 10 of Art. 316, Art. 317.6, 317.7 CPC).

The prosecutor does not have the right to artificially "underestimate" the level of charge. He impresses the accused what they are actually committed and what has been proved by evidence collected in the case. The accused in this case receives directly prescribed by law and a pre-known reduction in the size of the maximum punishment. It can also receive some other benefits, for example, procedural costs are not charged. Therefore, the simplification of the trial here it becomes possible due to the transaction and mutual concessions of the Parties, but as a result of the consent of the accused with the accusation filed.

Finding the ability to differentiate criminal proceedings, given the objective differences in criminal cases, led to the search for alternatives to criminal proceedings and punitive criminal policies of the state. Of particular importance is the possibility of using alternative ways to resolve criminal cases of crimes not representing a large public danger, the crimes of minors.

Unlike simplified production, alternative ways of permission of criminal cases are essentially applied outside the criminal proceedings. They may take place at the time of making a decision on the initiation of criminal prosecution, and in this case their application "replaces" criminal proceedings. There is experience in applying alternative measures and in judicial stages when their application outside the process leads to the termination of the process. Legislative consolidation and regulation of alternative methods of permission of criminal cases in different states are different. Without going into details of procedures, it can be said that the most common in Europe in the second half of the twentieth century. There were such alternative methods as official warning, transaction and mediation.

Official warning applies in English criminal proceedings against minors who have committed a crime that does not represent a large public danger when the circumstances of the case are established and the violator recognizes its guilt. The accusations authorities constitute an official document on the prevention of this person on the anti-paragraph of its actions and the possibility of applying criminal prosecution to it, if during the prescribed period (or before the age of majority), he will repeat the criminal act. If a minor makes a re-act, the court when considering a new criminal case regarding this person is entitled to take into account the official warning as a criminal record, and this may affect the amount of the prescribed sentence.

A wide distribution receives a transaction ("Fine by agreement"). Such an alternative form of a state reaction for a crime is known to criminal proceedings of Belgium, the Netherlands, France, and others. The essence of transaction is that when solving the issue of initiating public persecution of the crime, the prosecution authority is granted the right to propose a guilty of a number of conditions that will allow him to free it from public persecution and trial. Among such conditions, it is primarily provided for by the payment of a certain amount in the treasury. Size, deadlines, the order of op Latin defines the prosecution authority, taking into account the severity of the crime, the personality of the violator and its material situation. At the same time, the prosecution authority can also be appointed a number of other conditions, such as the fulfillment of public works in a certain amount, full or partial compensation to the victim caused by harm.

The violator can offer to voluntarily transfer objects to the state, which are a crime gun, or acquired for funds mined by criminal, or subject to confiscation by law.

At the heart of the recognition and development of mediation as an alternative form of permission of criminal and legal conflicts lies with the idea that crimes encroaching on the interests of a specific man in the victims of crime should not be considered by the state as acts that are only public. This kind of crime generates primarily conflict relations between the criminal and his victim. Therefore, in criminal proceedings in relation to such crimes, the interests and rights of the victim should be priority. The principle of inevitable punishment turns out to be insufficient. It requires add-on and (or) replacement by its principle of inevitability to harm the injury to the victim and society who committed a crime. Mediation leads to recognition of the priority of the rights of persons who have suffered from the crime. The need to timely and complete satisfaction of these rights, it recognizes more important and preferable than the penalty of the perpetrator. Such ideas and procedures are sometimes called rehabilitation justice.

The essence of mediation is that when harming the victim to the victim, the prosecution authority at the stage of initiations of public persecution or in a different phase of criminal proceedings, the Independent Medicator transmits this case for conciliatory negotiations between the accused and his victim. For the cottage of the mediator - to assist people who are in a state of deep conflict in order to start negotiations, hear and understand each other. The accused gets the opportunity to apologize and ask the victim about reconciliation. The victim gets the opportunity outside the formal procedure to tell the accused of his experiences, about the reproach, etc., and so on. The purpose of the conciliation negotiations is to bring parties to discuss opportunities to exit the established conflict situation.

The parties themselves can discuss the possibility and conditions of reconciliation, while achieving a mutually acceptable agreement. The agreement achieved, the actions of the perpetrators of the harm caused, the consent of the victim to forgive and accept such a discount becoming a basis for the subsequent liberation of the offender from further proceedings.

From the transaction about the recognition of guilt, from transaction, from a special order of trial, mediation is different precisely the fact that the accused align his guilt is not before the faceless and abstract state, but in front of a real person, to whom he caused harm, pain, experience. Remaining, to which the accused comes, changes himself. The result of mediation, as a rule, is timely and voluntary performance by the accused obligations taken by him in relation to the victim. No less important is the extremely low level of repeated offenses committed by those who have passed the procedure of mediation. Obviously, these advantages explain such widespread dissemination in the practice of criminal proceedings.

In the Russian legislation of Art. 76 of the Criminal Code and Art. 25 CPCs allow the possibility of termination of a criminal case due to reconciliation of the parties, i.e., create a legal framework for using mediation. Now scientists and practices discuss the legislative regulation of the conditions and the procedure for the use of mediation in criminal proceedings, identifying the material and legal and legal consequences of mediation for the parties to the conflict.

The overall characteristics of the special procedure of the trial in the Criminal Procedure Code of the Russian Federation

The desire of the legislator to find a balance between the simplification of the judicial procedure and the preservation of guarantees of human rights and guarantees of justice finds its expression in the continuous improvement of the new institution and the practice of its application. After the implementation of the Code of Criminal Procedure (July 1, 2002), on July 4, 2003, legislative clarifications were made to regulate the special procedure for the trial. Twice, in 2004 and 2006, the procedure for applying the rules of ch. 40 UPC was the subject of clarification of the Plenum of the Supreme Court of the Russian Federation. In June 2009, section. The XPC was supplemented by a new ch. 401 "Special procedure for making a court decision when concluding a pre-trial agreement on cooperation." Taking into account all changes in the legislation and clarification of the Plenum of the Supreme Court of the Russian Federation, now the special procedure for the trial may occur if there are the following conditions:

1) the accusation of the accusation presented to him the defendant in this case, and he declares agreement with the accusation of the volume, which includes the factual circumstances, the form of guilt, the motives of the act, its legal assessment, nature and amount of harm caused by this act;

2) The accused declares a petition for consent to his case in a special order or a petition for the conclusion of a pre-trial agreement on cooperation;

3) the petition must be declared in the presence of a defender;

4) The accused is aware of the nature and consequences of the petition declared and declares it without coercion by goodwill;

The absence of at least one of these conditions does not allow to apply a simplified form of a trial, therefore the court monitors the compliance with the terms listed, as well as the procedure established by the law when appointing the consideration of the criminal case in a special procedure and in the course of its consideration at the court hearing. A special meaning of the legislator gives the verification by the court of awareness and the voluntaryness of the statement of the accused of agreement with the charge and his petition for the special procedure of the trial. If during the trial in this case it turns out that at least one of the conditions listed above is absent, the judge is obliged to stop the special procedure of the trial and to appoint a hearing of the case in general.

The main differences of the trial and decision of the court at a special basis are as follows:

1) The trial is carried out with the obligatory presence of the defendant, his defender, state or private prosecutor. The victim is notified about the time and place of the trial, but the failure to appear in a timely notified victim does not interfere with the court session. Other participants (with the exception of the translator, if necessary), are not called at the hearing;

2) The trial is carried out in accordance with the requirements of Ch. 35, 36, 38 and 39, but taking into account the requirements of Art. 316 and 317.6, 317.7 CPC;

3) In the trial, direct research and evidence assessment is not carried out in order to establish the actual circumstances of the case, and their sufficiency is assessed by the judge on the basis of the case, therefore the provisions of Ch. 37 CPC, as a rule, do not apply;

4) the subject of research at the court session are good liberty and awareness of the statement of the accused of agreement on the charge and its consent to the case on the consideration of the case, the consent of the prosecutor and the victim for consideration of the case in a special procedure, as well as the identification data for the accused, softening and aggravating Circumstances affecting punishment. At the conclusion of a pre-trial agreement on cooperation, in addition, the observance of all conditions and obligations provided for by the Agreement is also investigated;

5) the accused may be appointed a sentence in the amount of the share of the maximum period or the size of the most strict punishment provided for by law for this crime, which is directly indicated in the Criminal Procedure in relation to the grounds for the special procedure of the trial, and it is exempt from the recovery of procedural costs;

6) The sentence decisled in a special procedure of a trial does not require the presentation of evidence.

Statement of petition for the consideration of the case in a special procedure of trial

Statement of petition for a special procedure for making a court decision. The question of the possibility of applying a special procedure for making a court decision is still in the preliminary investigation stage. Completing the investigation of the criminal case, the investigator and the investigator are obliged to take into account the prospect of such a procedure, to promptly explain the accused of its rights and the conditions for the application of this order.

First, the investigator and the investigator should take into account this when investigating all cases of crimes for which the criminal law provides for the maximum punishment of up to 10 years of imprisonment (part 1 of Article 314 of the Code of Criminal Procedure. In the initial editorial board of this norm, the maximum punishment was indicated not higher than five years of imprisonment, but in 2003 the corresponding changes were made in the Code of Criminal Procedure, which significantly expanded the possibilities of using a simplified form of a trial.

Secondly, the investigator and the investigator are obliged to take into account that the special procedure for making a court decision within the framework of ch. 40 Code of Criminal Procedure is possible if the accused agrees with the charge presented to him (part 1 of article 314 of the Code of Criminal Procedure). The attitude of the accused to the presented charge begins to form at the investigation stage. At the same time, the consent of the accused with the charge and recognition of their guilt should be distinguished. The condition for the possibility of applying a special procedure for taking a court decision within the framework of ch. 40 Code of Code is precisely agreement with the accusation, and not recognition of guilt.

Recognition of the accused faults in a certain way reflected on the establishment of the actual circumstances of the case. The circumstances established during the investigation, in this case coincide with the testimony of the accused, conclusions about the circumstances of the crime to a certain extent are based on these testimony, after which they are confirmed by other evidence in the case. Consent with the prosecution is not associated with the position of the accused regarding the actual circumstances of the case. He may not give testimony at all, but not to argue with the accusation. It is the procedural aspect of the investigation that the procedural aspect of the investigation is of determining importance: whether the accused with the accusation or refuses such a dispute.

The legislator does not require the clarification of his consent with the accusation. It does not matter that it encourages the accused of such an agreement: the sufficiency of evidence that is issued, the desire to speed up the process, obtain certain "benefits" in solving the issue of punishment, court costs, etc. Therefore, during the investigation, taking into account the position of the suspect, the accused of the case The investigator and the investigator are obliged to directly explain to him the procedural importance and the consequences of its attitude towards charges and the conditions for using them the right to apply a special order of the trial.

The legislator requires that the consent of the accused submitted accusation be expressed in his statement, which allows him to declare a procedural application for a sentence without a trial (part 1 of article 314 of the Code of Criminal Procedure. Therefore, it is important to ensure the accused of doing such a statement and arrange the appropriate petition at that time of production when it can generate procedural investigation. For the first time this opportunity appears in the accused after familiarization with the materials of the case (paragraph 2 of Part 5 of Art. 217 of the Code of Criminal Procedure). The investigator, having finished familiarizing the accused and his defender with the materials of the case, is obliged to clarify the accused of the right to apply a special procedure for taking a court decision within the framework of ch. 40 CPC in the presence of two conditions: 1) Possible punishment for the crime should not exceed 10 years and 2) The accused must declare agreement with the charged prosecution. In the report on familiarization with the materials of the case, a record of clarification of the accused of the right to consider his case in a special procedure of a trial and outlines his opinion on this issue: a petition for holding a court session in this form or refusal to use this right (part 2 of Art. 2 218 CPC). If, at the end of the investigation, these requirements of the law are not fulfilled by the investigator or the investigator, the Court may, on this basis, return the case to the prosecutor to eliminate this procedural disorder (paragraph 5 of Part 1 of Art. 237 of the Code of Criminal Procedure.

The accused can make a statement of agreement with the accusation and apply for a special procedure for making a court decision in the preparation of a case for a trial when conducting a preliminary hearing on any of the grounds provided for by Art. 229 CPC. Such a situation may also arise when, after familiarization with the materials of the case, the accused did not declare such a petition (paragraph 2 of Part 2 of Art. 315 of the Code of Criminal Procedure).

It seems that the accused can take advantage of the accused and in the case when he initially refused to make a special order of trial, but having received a copy of the indictment, once again appreciated his position in the case, came to the conclusion about the appropriateness of the application for a special procedure for trial . The law does not contain provisions prohibiting the accused after the refusal in accordance with Part 2 of Art. 218 CPC again declare a petition for a special order, but already in the preliminary hearing. At the same time, the Plenum of the Supreme Court of the Russian Federation clarified that in the case of a petition in the preliminary hearing, the court had the right to restore the rights of the accused, forested paragraph 2 of Part 5 of Art. 217 and Part 2 of Art. 218 CPC, and immediately appoint a court session in a special order.

In cases of private accusation, the petition for the special procedure of the trial may be announced in the period from the moment the statement of the statement of the victim to bring it to criminal liability before the judgment of the judgment on the appointment of the court hearing. The world judge is obliged to clarify the person in the presence of the defender, in respect of which it is filed, the right to apply for the use of a special order of trial and find out if he wishes to take advantage of this right. The judge is obliged to find out also at the victim, whether he does not mind the satisfaction of the petition of the person involved in responsibility.

In any case, the petition of the accused of a special procedure of the trial should be announced only before the appointment of the case for the hearing. This position was formulated by the Supreme Court of the Russian Federation in paragraph 4 of the Resolution of the Plenum dated December 5, 2006 No. 60. Thus, a discussion issue was allowed on the possibility of applying a special order if the application for agreement with the charge and a petition for the consideration of his case in a simplified procedure was defended For the first time stated only in the preparatory part of the court hearing. Plenum recognized it unacceptable. The rights of the accused can be properly provided only when considering and resolving its petition about the special procedure of the trial to the appointment of the case to the hearing.

Another guarantee of the rights of the accused with a special procedure of the trial is the prescription of Part 1 of Art. 315 Code that the application and registration of such a petition of the accused should always occur in the presence of his defender. The accused has the right to consult the defender for the procedure and the consequences of a special order, and the investigator, the investigator and the court are obliged to provide the accused of this right.

The procedure for trial and resolutions of the sentence. With vowelno part 1 tbsp. 316 Code of Code The court session when considering a criminal case in a special procedure of the trial begins, as in the usual basis, with the preparatory part of the court session (Ch. 36 of the Code of Criminal Procedure). Consequently, presiding for the appointed time opens the court session, announces what business is to be proceeding. The turnout on the court check only relatively under tried and his defender, state or private prosecutor and the victim. If any of the participants do not own the language proceedings, the participation of the translator is generally ensured. The chairperson is obliged to establish the identity of the defendant and find out the timeliness of the presentation of a copy of the indictment or indictment. He is obliged to declare the composition of the court and clarify the right of removal, find out if there is a tap, and allow them. Only after that, he can continue the court hearing.

An important point of the preparatory part is an explanation for the presiding defendant and the victim of this court hearing in order to make sure that these participants are correctly and fully understand its procedure and legal consequences. Only after the fulfillment of these actions, the presiding party can move to the discussion of the defendant.

Article 271 of the Code of Criminal Procedure refers statement by the parties to the petitions and their permission to the preparatory part of the court session. But with a special procedure, it is from consideration by the application of the defendant on the resolution of the sentence without a trial begins the study of those circumstances that allow you to carry a solution on the merits. The judicial investigation is not allocated by the legislator as an independent part of the court session in a special order (part 1 of article 316 of the Code of Criminal Procedure). However, this does not mean that the court does not produce a study of the circumstances of the case.

Consideration of the application of the defendant begins with the statement of the prosecuted charges. If in a special order, the case of private accusation is considered, the prosecutor sets out the prosecutor. As a normal order, the prosecution is one of the elements of the judicial consequence (Art. 273 of the Code of Criminal Procedure), and in a special order, this occurs within the framework of the preparatory part. After that, the presidential responds to the defendant, is it clear to him the charge and he agrees with him. Such a survey allows the judge to check the validity and proof of the charge and give an assessment of the combination of evidence available in the case file (part 3-7 of Article 316 of the Code of Criminal Procedure).

If there is an indication of the accused in the case of the case, from which it follows that he did not recognize himself guilty, the actual circumstances set out to them during interrogation otherwise than they are set forth by the prosecutor, it can give rise to the judge of doubts about the validity and prognosis of the charge. The presence of doubt may prevent the consideration of the case in a special order (part 6, 7 of Art. 316 of the Code of Criminal Procedure). Therefore, in practice, in order to verify the validity and prosecution, the judge at this moment of the court session often asks for the accused to tell about the circumstances of the case, checking how much they coincide with the statement of the prosecutor.

Presiding the defendant, whether he supports his petition for the resolution of the sentence without a court proceedings in general; whether this is a voluntary petition; Was the defendant the opportunity to consult with the defender; Is it aware of the consequences of the sentence in this order. With participation in the court session of the victim, the judge finds out his attitude to the petition declared by the defendant. If the victim does not participate in the court session, the judge must otherwise "make sure that the victim has been properly notified about the place and time of the court session, objections to the accused of the accused of a sentence without a court proceedings in general."

In the practice of many vessels, it is used to require from under the patient written confirmation (statement, a telephone, letter by email, etc.) of consent to the case in a special order or reporting the absence of objections against it. The presence of such a confirmation in the case file allows the court and with the failure of the victim to consider the case in a special order. If the court does not have materials, clearly and unambiguously expressing the attitude of the victim to the possibility of consideration of the case in a special order, and the victim is missing at the court hearing, then the consideration of the case in a special procedure should be terminated and the court appoints the consideration of the case in general.

Further, the court and the parties are entitled to explore the circumstances characterizing the identity of the defendant, and the circumstances aggravating or mitigating punishment. The plenum of the Supreme Court of the Russian Federation explained that in the study of such circumstances, the use of all methods provided for by the criminal procedure law was allowed. Including the study of additionally presented materials, conducting interrogations of witnesses for these circumstances. It follows from this that the norms of ch. 37 Code of Criminal Procedure in such cases are still applied, and certain elements of the judicial investigation are also present with a special procedure for trial.

The judicial debate and the last word defendant also have a reduced form. The parties can only concern the issues discussed in a special procedure for making a court decision in view of the consent of the accused submitted accusation: characteristics of the personality of the defendant, circumstances mitigating or aggravating punishment. It matters to make a fair sentence and for motivation in the sentence of prescribed punishment.

In the debate or last word, the arguments of the parties may be made and on the issue of a civil lawsuit, if this does not question the actual circumstances of the case. In paragraph 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 5, 2006, No. 60 explains that the consent of the accused with the presented charge concerns including the nature and size of the harm caused by the act of the accused. However, further in paragraph 12 of this resolution, the Plenum explains that the court is not obliged to satisfy a civil lawsuit if there is grounds for refusing to satisfy, terminate the proceedings on the claim or transfer it to consideration in civil proceedings. The grounds for such decisions may be represented by the Court by the parties in the debate.

The subject of debate can also be qualifications, since in paragraph 12 of the named Resolution of the Plenum states the possibility of retraining the paid accused. Circumstances can also be presented to stop production in this case. The main limitation of the content of the judicial debate and the last word in such cases is the indication of the plenum that such decisions should not require the study of the evidence collected in the case and actual circumstances should not be changed.

The guarantee of the judgment of the sentence is to indicate the law that the Parties can at any time consider the case to express objections to the consideration of the case in a special order. The court on his own initiative may also refuse this procedure. In such cases, the special procedure of the trial is subject to termination, and the court appoints the consideration of this case in a general manner (part 6 of Article 316 of the Code of Criminal Procedure.

The consideration of the case in a special procedure is completed by the decision of the sentence or decree on termination. The sentence is characterized by a number of features. It can only be a conviction. Its descriptive-motivating part must contain a description of the criminal act, with the accusation of which the defendant agreed. Unlike sentences that are generally submitted, in the descriptive-motivation part of this sentence, it is not necessary to state, analyze and evaluate evidence. Further, the court must state its conclusions in this part of the sentence on compliance with all the conditions established by the law necessary for the resolution of the sentence without conducting a trial in general. The court should also motivate his decision on the application of punishment to the defendant, to recognize it guilty, to determine the form and amount of punishment and resolve civil lawsuit. When permitting a civil law, the court has the right to satisfy it. However, if it does not entail the changes in the actual circumstances of the case and there are relevant reasons, the court has the right to leave a claim without satisfaction, refuse to satisfy it, stop production on the suit or transfer it to civil proceedings.

In determining the amount of punishment, the court must take into account the explanations, data in the resolution of the Plenum of the Supreme Court of the Russian Federation of December 5, 2006 No. 60. The law establishes that the punishment appointed by the defendant may not exceed two third maximum deadlines or the size of the most strict type of punishment provided for The sanction of the article by the Criminal Procedure. This requirement does not apply to additional and alternative punishment specified in the sanctions of the applied articles. At the same time, if, according to the circumstances of the case, the rules of punishment provided for by Art were may be applied. 62, 64, 66, 68-70 of the Criminal Court is obliged to apply the rules of these articles. At the same time, the court determines the maximum period or the amount of punishment, which can be appointed guilty of reference to the prescription of these articles, and only later in accordance with Part 7 of Art. 316 Code Code Reduces this period (size).

The verdict made in a special procedure of the trial may be appealed. A feature is the inadmissibility of appealing this sentence due to the inconsistency of the court's conclusions by the actual circumstances of the case (Art. 389.16, Art. 389.27 of the Code of Criminal Procedure. This is due to the fact that with a special procedure of the trial, the court of first instance does not investigate the actual circumstances and evidence. The privilege is based on the actual circumstances of the charges, with which the defendant agreed. But this does not exclude the possibility of appealing the sentence on other grounds. Violation of the procedural law, the incorrect application of the criminal law, the injustice of the sentence (paragraph 2-4 of article 399.15 of the Code of Criminal Procedure) can lead to its cancellation or change if the actual circumstances are not changed.

The plenum explained that when checking such a sentence in an appeal order, the court of appeal, as well as the court considered the case in a special order, is not entitled to explore evidence and cannot verify the compliance of the conclusions of the court of first instance by the actual circumstances of the case. Using the right to appeal to change the sentence to the side, the worsening position of the convicted person, the Court cannot impose a sentence of more than two third maximum deadlines or the size of the most strict type of punishment provided for for the crime for which the accused is convicted.

Procedure of the trial and sentence

The emergence of this type of proceedings of the proceedings (ch. 401 of the Code) is due to the needs of practice, in particular the problem of combating organized crime and disclosure of crimes committed by a group of persons. The creation of criminal and legal and criminal procedural conditions stimulating the recognition by suspected or accused of their guilt and consent to promote the authorities of the investigation in the disclosure of a crime, the expulsion of accomplices, the search for property mined as a result of the crime should, in the thoughts of the legislator, contribute to the disclosure of crimes, which without cooperation with These persons are extremely difficult or impossible.

The person who agreed on such cooperation receives a number of legal benefits when prescribing punishment, as well as the right to simplify the procedure for consideration of the criminal case by the court. However, the positions of ch. 401 OKK as well as ch. 40 CPC, are not equivalent to the transaction about the recognition of guilt. The legislator does not provide the prosecutor of discretionary powers regarding the decrease in the amount of accusation at the conclusion of a pre-trial agreement with a suspect, accused, and the benefits provided are applied not as a result of the concession of the prosecutor and the corresponding "transaction" of the prosecutor with this person, but in view of the direct indication of criminal and criminal procedure legislation. Features of production, installed ch. 401 CPC, can be divided into two groups: features of the investigation associated with the conclusion of a pre-trial agreement on cooperation and the features of the trial.

Features of the investigation. At the pre-trial stages, this form of production in a criminal case does not actually provide for procedural simplifications. Rather, on the contrary, the investigator, the head of the investigative body and the prosecutor appear new duties associated with the conclusion of a pre-trial agreement on cooperation. The first condition for the conclusion of the pre-trial agreement on cooperation is to determine the category of affairs in which the issue of concluding such an agreement can be discussed. Unlike ch. 40 CPC, in ch. 401 Code of Criminal Proof directly not specified formal criteria for the selection of such cases. Content h. 2 tbsp. 317.1, p. 1 Part 2 and Part 4 of Art. 317.6 Code of Criminal Procedure allows us to conclude that the cooperation agreement is possible only in the case of a crime committed by a group of persons whose investigation is provided only in the form of the investigation.

The second condition should be the consent of the suspect, accused with the accusation against him. This indicates the location of the ch. 401 CPC in section. X "The special order of the trial." In addition, in part 1 of Art. 317.1 The Code of Criminal Procedure states that the court session and the resolution of the sentence against the defendant with which a pre-trial agreement on cooperation is concluded in the same manner, as with the consent of the accused with the accusation (Article 316 of the Code).

Finally, the third and defining condition is that the suspect, accused of committing a crime by a group of persons, without challenging his suspicion or accusation, is ready to promote a consequence: in disclosure and investigation of the crime; initial and criminal prosecution of accomplices; The search for property mined as a result of a crime. As follows from Part 4 of Art. 317.6 Code of Criminal Procedure, if the suspect or the accused is ready to inform only about his criminal actions, it cannot be needed by changing the order provided for by ch. 401 CPC. Analyzing the position of ch. 401 Code of Criminal Procedure, several stages of procedural activities related to the conclusion of a pre-trial agreement on cooperation can be distinguished.

1. The investigator, having established that the crime investigated by him was committed by a group of persons, identifying the procedural status of these persons and the role of each suspect accused of committing this crime assesses the possibility of imprisonment of a pre-trial cooperation agreement. The question of the conclusion of a pre-trial agreement on cooperation may arise at the time of the initiation of a criminal case against specific persons, at the time of the detention of any of the partners or the use of preventive measures to them before the charge (paragraph 1-3 part 1 of Article 46 of the Code of Criminal Procedure. It may arise at the time of attracting a person as the accused and at any incurring the moment of investigation before the announcement of its end (part 2 of Article 317.1 of the Code of Criminal Procedure).

The right to conclude an agreement on cooperation and all the criminal law and procedural consequences of such an agreement should be timely explained by the suspect, accused. The legislator did not consolidate the investigator in the Code of Criminal Procedure, in connection with which a number of questions about the procedure and time of familiarization of the suspect, accused with the provisions of the Church, arises in practice. 401 CPC. Most likely, the investigator is not obliged to clarify this right to all partners, but he has the right to clarify him only to that of them, on cooperation with which it expects and which can be a consequence of real assistance in the disclosure of a crime. Should the investigator show the initiative and to offer cooperation, or can the initiative come only on the suspect accused? How to be if there are several partners or all of them express a desire to conclude such an agreement? Answers to these questions are associated more with the investigation tactics, the psychological characteristics of the suspects accused, the circumstances of a particular case, which are taken into account in real practice when concluding pre-trial agreements.

2. Installed Art. 317.1 Code of Criminal Procedure Application for the conclusion of a pre-trial agreement on cooperation assumes that the suspect, the accused should discuss the petition with the defender, therefore, the participation of the defender at this moment of production in the case.

3. The petition is written in writing and is signed not only by a suspect, accused, but also a defender. It is submitted to the name of the prosecutor, but through the investigator leading the consequence of this case. The law requires that the petition is indicated what actions the suspect, the accused undertakes to commit in order to promote a consequence in the disclosure and investigation of the crime, the initiation and criminal prosecution of other partners of the crime, the search for property mined as a result of the crime (part 2 of Article 317.1 of the Code of Criminal Procedure .

4. The investigator for three days from the date of receipt of the petition considers it and coordinates with the head of the investigative authority possible solution. It can make a reasoned decision on the initiation of the prosecutor's prosecution about the conclusion with a suspect, accused of a pre-trial agreement on cooperation and with the consent of the head to send this resolution together with the petition of the suspect accused by the prosecutor. Or the investigator can make a decree on refusal to satisfy the application for the conclusion of a pre-trial agreement on cooperation, which may be appealed by a suspect, accused, his defender to the head of the investigative body (part 3-4 of Article 317.1 of the Code of Criminal Procedure.

5. The prosecutor, having received the decision of the investigator and the petition of the suspect, the accused, over the course of three days, considers them and makes a decision to satisfy the application for the conclusion of a pre-trial agreement on cooperation or to refuse to satisfy it. The ruling of the prosecutor about the refusal to satisfy the petition can be appealed to the investigator suspected, accused, his defender to the superior prosecutor (Art. 317.2 of the Code of Criminal Procedure).

6. Having decided to satisfy the petition, the prosecutor invites the investigator, the suspect, the accused and the defender to compile a pre-trial agreement on cooperation (part 1 of Article 317.3 of the Code of Criminal Procedure. In paragraph 61 of Art. 5 APC pre-trial agreement on cooperation is defined as "Agreement between the parties to the charge and protection, in which these parties agrees the terms of responsibility of the suspect or accused, depending on its actions after the initiation of a criminal case or charges."

This definition requires clarification. First, to the side of the accusations, as you know, the victim or his representative also belongs. However, the participation of these subjects in the compilation of the Agreement is not provided, and still remains not clear how the rights of the victim in such cases will be ensured. Secondly, the phrase "coordinate the terms of responsibility of the suspect or accused depending on its actions after the initiation of a criminal case or charges" are not correct. Once again we emphasize that the prosecutor is not entitled to arbitrarily reduce the amount of charge or the qualification of the act of the suspect, the accused. The only "responsibility condition", which can be taken into account when concluding a pre-trial agreement on cooperation, is directly provided by the law court right to reduce the defendant, who fulfilled all the terms of the agreement, the punishment provided for by the relevant article of the Criminal Code. But this condition is regulated by criminal law and cannot depend on the agreement of the parties.

According to paragraph "and" part 1 of Art. 61 of the Criminal Code of the Okavka, the active promotion of the disclosure and investigation of the crime, the initiation and criminal prosecution of other deliberates of the crime, the search for property mined as a result of the crime is attributed to the number of circumstances mitigating punishment. In the presence of such circumstances, the court when prescribing punishment cannot exceed half of the maximum term or size of the most strict type of punishment provided for by the article in accordance with which the defendant condemns all the terms of the agreement (part 2 of Art. 62 of the Criminal Code). If the crimes committed by the defendant, which entered into an agreement and fulfilling all its conditions, provide for life imprisonment or the death penalty, these types of punishment are not applied. The term or size of the prescribed punishment cannot exceed two third maximum deadlines or the size of the most strict punishment in the form of imprisonment for this crime (part 4 of Art. 62 of the Criminal Code).

This is confirmed by the provisions of Part 2 of Art. 317.3 CPC. The agreement on cooperation in the introductory part should indicate the date and place of the compilation, the official of the prosecutor's office, which concludes an agreement by the accusation, the name, name and patronymic of the suspect, the accused entering into the protection agreement, the date and place of his birth. In the descriptive part of the agreement, the actual circumstances of the commission of a crime, indicating the time, the place of its commitment, as well as other circumstances to be proof in accordance with paragraph 1-4 h. 1 of Art. 73 CPC; The point, part, an article of the Criminal Code, which are responsible for this crime, as well as the actions that the suspect, the accused undertakes to commit to promote a consequence in the disclosure and investigation of the crime, the initiation of others (with an indication of whom it is) accomplices, promoting the wanted list of property mined in The result of the crime. From said it follows that the prosecutor cannot make concessions to a suspect, accused of issues of charges and qualifications of the crime committed by him. Therefore, in the final part of the agreement (paragraph 7 of Part 2 of Art. 317.3 of the Code of Criminal Procedure), only those listed above the norms of the Criminal Code may be indicated, giving a suspect, accused of which this agreement, benefits when establishing mitigating circumstances and reduce the punishment for their crimes committed. The pre-trial agreement on cooperation is signed by the prosecutor suspected, accused, his defender.

The case in relation to the suspect, the accused, with whom a pre-trial agreement on cooperation was concluded in separate production in accordance with paragraph 4 of Part 1 of Art. 154 CPC. The preliminary investigation of the dedicated criminal case is carried out in the manner prescribed by ch. 22-27 and 30 CPC, taking into account the characteristics provided for by Art. 317.4 CPC. Among these features, it is necessary to allocate the following three.

Firstly, the petition of the suspect, the accused, and the Resolution of the investigator, and the Resolution of the Prosecutor, and the Cooperation Agreement itself are members of the Supper Associated Criminal Procedure.

Secondly, the cooperation agreement and the actions of the suspect, the accused, aimed at fulfilling the obligations under the conclusion of the Agreement, can establish a threat to the security of this person, as well as its loved ones. In such cases, the investigator is obliged to take measures to ensure the safety of these individuals. The law allows these documents in such cases to "classify" the specified documents, keeping them in the case in a sealed envelope (part 3 of Article 317.4 of the Code of Criminal Procedure). Along with this, the use of security measures and state protection provided for in law for victims, witnesses and other participants in the process (Article 317.9 of the Code) is allowed. Such measures are applied both with respect to the most suspected accused with which a pre-trial agreement on cooperation and relatives, relatives, close persons concluded.

Thirdly, after the end of the investigation and the direction of the case with the accusatory conclusion of the prosecutor, along with ordinary actions and decisions in the case, it is obliged to consider the materials confirming compliance with the accused terms and fulfillment of the obligations provided for by the pre-trial agreement on cooperation (part 1 of Article 317.5 of the Code of Criminal Procedure. Only when fulfilling the obligations accused of all the obligations of the Prosecutor, approving the indictment, has the right to make an idea of \u200b\u200ba special procedure of the trial and making a criminal case against the accused, with which a pre-trial agreement on cooperation is concluded. In this presentation, the prosecutor must indicate:

1) the nature and limits of promoting the accused in the disclosure and investigation of the crime, in the initiation and criminal prosecution of other partners of the crime, the search for property mined as a result of the crime;

2) the value of the specified cooperation with the accused;

3) crimes or criminal cases discovered or initiated as a result of cooperation with the accused;

4) The degree of threat of personal security, which was subjected to accused as a result of cooperation with a party to the accusation, as well as his close relatives, relatives and close faces.

This kind of information may not always be in the case file allocated in separate production regarding this accused. Therefore, the investigator is advisable to submit to the Curroo and other additional materials, including certificates or protocols of procedural actions from other criminal cases, with respect to other persons who have helped to expose this accused.

The presence of such materials is necessary and judge to address the issue of the possibility of consideration of this case in a special order. Moreover, the prosecutor according to the submitted materials will be able to objectively check and evaluate the truthfulness and completeness of information reported by the accused, in the fulfillment of the conditions and obligations of the agreement with it. This assessment should be reflected in the presentation of the prosecutor, which will ensure its validity.

The presentation of the prosecutor is essential for the accused, so a copy of this presentation must be awarded to the accused and his defender, they may comments that the prosecutor must take into account if there are grounds (part 3 of Art. 317.5 Code of Criminal Procedure. Within three days from the moment the accused and his defender, the prosecutor sends a criminal case and his submission to court to consider it in a special order.

Features of the trial. Preparation for the court session is undergoing general rules of ch. 33, 34 CPC. If there are no grounds for holding a preliminary hearing, the judge solves all the issues of this stage alone, in the general procedure for preparing for the court session. The special task of the judge when considering the case received with the presentation of the prosecutor about the special procedure of the proceedings provided for by ch. 401 Code of Criminal Procedure, is to check the presence of base and conditions for the use of a special order.

The law establishes that the only basis allowing to apply ch. 401 Code of Criminal Procedure - Enrollment of a criminal case with the presentation of the prosecutor about the consideration of the case in this order. At the same time, the judge must make sure that the pre-trial agreement was concluded by the accused voluntarily and with the participation of the defender, and the public prosecutor confirmed the active assistance of the accused consequence. At the preparation for the court session, the judge does not investigate evidence directly, as a result of which the conclusions make only on the basis of the materials of the case and the presentation of the prosecutor.

The general rule of the special order of the trial is that the doubt of the judge in the prognosis of the charge does not allow him to appoint a trial in a special order. Applied to ch. 401 Code of Criminal Procedure cannot also be applied in cases where the above conditions or assistance of the accused consequence actually consisted only in communicating information about their own criminal activity (part 3, 4th Article 317.6 of the Code of Criminal Procedure. In such cases, the judge decides on the appointment of a trial in a general manner.

The court hearing and the resolution of the sentence in relation to under trial, with which a pre-trial agreement on cooperation is concluded, are carried out in the same manner as the decision-making with the consent of the accused with the charge (Article 316 of the Code of Criminal Procedure). In § 3 of this chapter, this procedure has already been reviewed in detail, and here it should be stopped only on features characteristic of a particular procedure for making a court decision when concluding a pre-trial agreement on cooperation. The court session in such cases is also held without judicial consequences, evidence of the charges are not investigated directly, however, the court must make sure that:

1. the defendant agrees with the charge presented to him;
2. evidence confirming his guilt, in the case of case enough and they are not contradictory;
3. the petition for the conclusion of a pre-trial agreement on cooperation, he stated voluntarily after consultation with the defender;
4. the defendant understands the peculiarities of the order of this form of the trial and voluntarily chooses such a form.

All these issues the court should figure out already in the preparatory part of the trial. When considering the case, the subject of research at the court hearing is significantly expanded. The public prosecutor sets the court to the court submitted to the court, confirms the promotion of the defendant consequence and explains the court to which this assistance was expressed (part 3 of Article 317.7 of the Code of Criminal Procedure. At the same time, the Court must investigate a number of circumstances (paragraph 1-5 part 4 of Art. 317.7 of the Code of Criminal Procedure), associated with the case allocated in from wearing the defendant and with the affairs of its partners:

1) the nature and limits of facilitating the defendant in the disclosure and investigation of the crime, the initiation and criminal prosecution of other partners of the crime, the search for property mined as a result of the crime;

2) the importance of cooperation with the defendant to achieve these goals;

3) crimes or criminal cases discovered or initiated as a result of cooperation with the defendant;

4) the degree of threat of personal security, which was subjected to the defendant as a result of cooperation with a party to the accusation, his close relatives, relatives and close persons;

5) Circumstances characterizing the defendant mitigating or aggravating punishment.

At the same time, the legislator does not indicate, on the basis of what and in what order, all these circumstances should be investigated if the judicial investigation is not provided for this form of the trial. Should the court order to establish the listed circumstances to explore evidence? Can he announce the relevant protocols of investigative actions from different criminal cases? Enough to investigate these questions on the text of the presentation of the prosecutor or the court may limit the introductory presentation by the state prosecutor of these circumstances? Unfortunately, Art. 317.7 Code of Code does not give an answer to these questions, but the provision of the investigator to the prosecutor of additional materials confirming the results of the accused of obligations taken over in a pre-trial agreement allows you to solve this problem.

Another question did not find enough clear regulation in ch. 401 Code: Should the victim should participate in the court proceedings and does its opinion affect the possibility of consideration of the case in accordance with Art. 317.7 CPC? To answer this question, it should be processed from the instructions of Part 1 of Art. 317.7: "The court hearing and the resolution of a sentence against the defendant, with which a pre-trial agreement on cooperation is concluded in the manner established by Article 316 of this Code, taking into account the requirements of this article." It follows from this that all the provisions of Art. 316 Applicable with a special procedure for making a court decision when concluding a pre-trial agreement on cooperation, and in addition to them, the features provided for by Art are applied. 317.7. Since in art. 317.7 No special reservations regarding the participation of the victim, it is necessary to apply the provisions of Part 6 of Art. 316 CPC.

The court must notify the victim about the time and place of consideration of the case, as well as on the peculiarities of the procedure applied and its consequences. The attitude of the victim to consider the case in a special procedure for the adoption of a court decision should be also clarified at the conclusion of a pre-trial agreement on cooperation. In the event of an objection to the victim against such a procedure, the court should be guided by chapter 6 of Art. 316 Code of Criminal Procedure and to endure a decree on the cessation of a special order of trial and appointment of the case in general. This, however, does not exclude the application to the defendant, which concluded a pre-trial agreement on cooperation, all provided for by the Criminal Code during the appointment by the court punishment to this person.

The study of the circumstances listed in paragraph 1-5 h. 4 of Art. 317.7 Code of Criminal Procedure, it allows the judge to make sure that all conditions are followed by the defendants and carried out all the obligations provided for by the pre-trial agreement on cooperation. In this case, the judge has the right to make a conviction, presenting a description of a criminal act in the descriptive-motivative part, committed the defendant and the conclusions of the court on compliance with the conditions and obligations of the concluded agreement. When solving the issue of punishment, the court applies the provisions of Art. 64, 73, 801 of the Criminal Code, and may also impose a sentence softer than it is provided for by the sanction, conditional condemnation or to free the defendant from serving the sentence.

If the judge comes to the conclusion that the conditions and obligations provided for by the pre-trial agreement are not completed, it is entitled to terminate the consideration of the case in a special order and appoint a hearing of the case in general. Obviously, in such a situation to the defendant, the provided challenges will not be applied. 401 OPC benefits when prescribing punishment and all issues of criminal case will be solved in general. This indicates Art. 631 of the Criminal Code: "If it is established that the face entered into a court agreement on cooperation was provided with false information or hidden from the investigator or the prosecutor of any other significant circumstances of the crime, the court appoints him a sentence in general without the use of the provisions of the second parts , the third and fourth Article 62 of this Code, concerning the term and size of punishment, and Article 64 of this Code. "

At the same time, other judicial practice begins to be formed. There are cases when the Court establishes that the defendant did not realize the investigation. For example, accomplices and without his promotion were given in the case of confessions, and the case was disclosed by the investigator without facilitating the defendant. The foundations for the use of ch. 401 UPC in this case is not. However, the court sees in this case the opportunity to consider the case on charges of this person in the order of ch. 40 Crafts in the same court session due to the fact that the person according to the accusation filed. This practice still requires learning and evaluating its legality.

The sentence made in a special procedure regarding the defendant, which concluded a pre-trial agreement on cooperation is to appeal in a general manner (part 7 of Art. 317.7 of the Code of Criminal Procedure). However, after appointment, the defendant punishment will be found that when considering the case in a special procedure, the defendant deliberately informed false information, deliberately concealed any significant information, then the sentence is subject to revision in the order of supervision or in view of the newly discovered or new circumstances (Section XV Code of Criminal Procedure (Art. 317.8 CPC).

Judicial consideration of the case is one of the stages of criminal proceedings. In the course of it, it is familiar with the materials, the opinions of the parties and experts heard, the arguments of the participants are considered. As a result, an indictment or acquittal decision is made. The law provides.

Key features

According to the provisions of the law, the trial is based on the principles:

1. Perception.
2. Publicity.
3. Equality of the parties.
4. Objectivity.
5. The constant composition of the court.

Stages

The trial begins after a preliminary investigation. It consists of the following stages:

1. Preparation. In the course of it court of first instance Plans and appoints subsequent events.
2. Preliminary meeting. It is carried out at the request of the parties or to address the issue of attracting jury.
3. Hearing. In the course of it, the parties are exploring proof of the criminal caseThe accused says the last word, a decree is made.

Any party, not consonant with the verdict, may challenge him. In this case, the case goes to appeal. If the decision to challenge the sentence was made after its entry into force, the complaint is directed to the cassation.

The status of the accused

The prosecutor, the investigator, the court must clarify the person of his duties and rights, as well as to ensure the ability to protect all the available means and methods. The status of the accused allows you to:

1. To know for what reason it is involved.
2. Get a copy of the act on the use of preventive measure.
3. Express disagreement with the accusation, testify. The investigator interrogates a citizen immediately after nominating the charges.
4. Present evidence. The obligation to collect them is assigned to authorized employees.
5. Declare taps.
6. Use (for free including) the services of a defender.
7. Participate in investigative activities carried out by his petition or statement of a lawyer, with the permission of an authorized employee.
8. Get acquainted with the decision to conduct an examination, ask questions by a specialist.
9. Examine the results of the investigation, make copies of materials.
10. To declare a petition about the proceedings in a special order.

Goal

Production is directed to:

1. Establishment or refutation of a crime fact.
2. Studying materials to ensure the legal evaluation of the event in terms of legislation.
3. Submission of the decision on the innocence or guilt of the subject.

In cases provided by the norms, it is allowed to consider it in detail.

Relevance of the issue

Many citizens involved in responsibility for the first time do not know how to properly enroll in case of harmonization. Difficulties arise due to the fact that persons do not know. Meanwhile, it is practical and for the accused, and for the authority authorized for the proceedings.

Characteristic

Forms various rights for the accused. If he agrees with the accusation that he put forward to him, and the maximum sanction for the act does not exceed 10 years in prison, he can choose a way of doing proceedings. This may be a standard procedure, the steps of which were considered above, or a special procedure for considering a criminal case. OPC contains ch. 40. It consistent with key provisions governing a special procedure. The conditions for which the proceedings are not allowed by the standard rules are defined by Art. 314 Code of Criminal Procedure. If we say simply, the special procedure is the type of production used in cases where the citizen fully recognizes the guilt. As the consent of the private / state prosecutor, as well as the victim for sentencing without proceedings.

Limitation

Maximum should not be more than 10 years. In the Criminal Code there are several relevant articles. To them, for example, include:

1. Theft (158th article).
2. Fraud (norm 159).
3. Embezzlement (Art. 160).

For such crimes as murder (article 105), causing health care, which caused the death of the victim by negligence (Art. 111, the fourth part), is appointed more than 10 years. Respectively, criminal proceedingsin any of these cases, it is carried out according to the standard procedure.

Nuances

Does not imply deprivation of a citizen of the right to make the production materials that characterize it personally were investigated. The authorized body can interrogate witnesses, examine medical documents to determine the presence of mitigating circumstances. In general, the court does not exercise a judicial effect, does not interrogate the victims and other persons about the circumstances of the incident, the evidence is not investigated, written materials are not appointed by expertise and so on. The special procedure of the proceedings does not provide advisory, debate and other events.

Rule

The final choice of procedure implements court of first instance. The legislation establishes a special prescription on this. The sentencing without proceedings is allowed if the authorized body made sure that:

1. A citizen understands the nature and consequences of his petition.
2. The application with a request was written by the accused voluntarily, after a conversation with the defender.

If these conditions are not met, the consideration will be carried out in general. A similar result follows in the event that at least one participant will receive an objection. He can express the prosecutor, the defender, the defendant, the victim.

Code is allowed to present a petition?

Criminal Procedure Code of the Russian Federation Determines 2 points when the interested person can send a request:

1. When familiarizing with the materials of the completed investigation.
2. During the preliminary hearing.

It should be said that the preparatory meeting is not always carried out. Accordingly, the most suitable will be the moment of familiarization with the results of the investigation.

Benefits

Consideration of criminal cases by the courts in a special orderAs described above, it is practical and for the accused, and for authorized bodies. First of all, the legislator introduced a special procedure in order to save time. In general, production can delay a long time. At the same time, even the most simple proceedings are stretched for several hearing. Consideration of criminal cases by the courts in a special ordercarried out for 1-2 meetings. The authorized body is obliged to verify the reality and validity of the accusation with which the subject agrees. When sentencing sentencing, the convicted penalty softens.

That is, it is prescribed 2/3 of the maximum size of the most strict sanction for the crime. This relaxation is considered the key advantage of the procedure. Another advantage of a special order is considered to be the rule of deliverance from compensation of the costs provided for by Art. 131 Code of Criminal Procedure, including the cost of paying a lawyer services participating in the proceedings on purpose. The corresponding provisions fixes the 316th article. Actually, these two aspects and make up all the advantages of the procedure.

As practice shows, as part of the consideration of cases for general, the courts are rarely prescribed more than 2/3 from the maximum size of sanctions. This especially often takes place in cases where a citizen is attracted for the first time, and aggravating factors have not been identified. In this regard, lawyers recommend to think well before agreeing on a special procedure, guided only by the rule of the impossibility of getting a sentence exceeding 2/3 from the maximum.

Negative moments

First of all, it is worth saying that the legislation does not prescribe the negative consequences that may cause the consideration of the criminal case in a special order. Cons appear solely in practice. As it was said above, an authorized body must establish that the accusation with which the citizen agrees is justified. It must be confirmed by the evidence that were collected. This circumstance acts as an additional guarantee of a person involved in responsibility. However, as the defenders note, the illusions do not need to test.

This is due to the fact that in a number of cases, it is not possible to determine the validity of the accusation. Consider an example. The court considered the case of a crime committed several pre-agreed persons. It turned out that the proceedings of one of the citizens were classified as separate production. Subsequently, it was considered without hearings, in a special order. As a result, the subject was convicted, it was imputed with the relevant sanctions. After time, the consideration began in relation to other persons. But in the proceedings, it was not possible to prove that they were members of the criminal group. Accordingly, this part of the accusations with them was removed. The same entity that recognized the guilt earlier, in connection with the choice of a special order lost the right to challenge his sentence, since he was agreed with him initially.

conclusions

Considering the above, you can imagine the following list of negative consequences:

1. To consider the case on special rules, a citizen must recognize the accusation completely. In fact, in this case, the face agrees with each word in conclusion.
2. In disagreement, a citizen will not challenge him. Agreeing with the accusation, the person loses the opportunity to subsequently appeal against the factual circumstances, to prove innocence.

At the same time, the legislation provides for the right to challenge various procedural violations by the authorized bodies or employees. A citizen can also appeal the sentence due to excessive severity (when appropriating too harsh sanctions).

More about challenging

Often convicts turn to defenders with the question associated with the ability to appeal the verdict made in a special order. Such right is indeed provided for in the legislation. However, its implementation is significantly limited in comparison with the possibilities established for the general procedure for consideration of cases. This consists of another negative consequence for a person who recognized the guilt. The condition for which the sentence is allowed to appeal, the 317th article is determined. Normally, it is said that it is possible to challenge the decree in appeal in the inconsistency of the conclusions of the court given in it, the actual circumstances established during the proceedings. This circumstance significantly narrows the area of \u200b\u200bchallenge. The fact is that the protection side loses the opportunity to appeal the actual circumstances, which in many cases themselves are a good reason for filing an appeal. Legislation allows for challenging for other reasons. They are given in Art. 389.15. As grounds can be:

1. Significant violation of legislation.
2. Invalid application of norms.
3. Injustice of the sentence and so on.

Meanwhile, in practice, appeal against the resolutions made in a special procedure is limited only by requests for mitigating punishment. All these circumstances must be taken into account when applying for a petition.

Conclusion

In practice, there is a situation that production in a special order is primarily the accusatory side. It is determined by the following. Cases in which there are no qualitative confirmation materials, thanks to this order, it is easy to grow into indictments. Stopping a petition, it is necessary to rely primarily on the actual circumstances, personal position, an opinion agreed with a lawyer. Lawyers do not recommend hoping that the court will be able to figure it out in everything. It is necessary to think about all the advantages and disadvantages of the procedure, providing consequences. Special attention should be paid to limited the possibility of a subsequent challenge of the sentence.

Given her, the prosecution and the court itself will almost not be afraid of the abolition of the ruling. The ability to realize the right to appeal against the sentence issued within the framework of special production is extremely small. Often, the guilty themselves are also treated for lawyers, but also their relatives. They talk about disagreement with the verdict, in some cases, persons begin to deny their involvement in a crime, indicate the presence of evidence. However, all these actions are already unlikely to lead to something. The maximum that can be achieved is to mitigate punishment. Meanwhile, one should not exclude the possibility of proceedings within the framework of a special procedure. After all, a special order has virtues. It is advisable to take into account in those cases where the crime really had a place, and there is no point in abandoning the involvement. If a citizen is really repents in the deed, and the involvement of responsibility takes place for the first time, it is advisable to declare a corresponding petition. In any case, before making a decision, you must consult with the defender. He, knowing all legal subtleties, having a practical experience, will be able to suggest the most correct way out of the situation. In many cases, without the help of a lawyer, it's just not to do.

A special procedure for consideration of the criminal case is a kind of criminal "simplist". The procedure is accelerated due to the fact that many actions related to the need for the parties to the accusation and protection are remained beyond the production framework.

Competition disappears, because the accused recognizes his guilt or begins cooperation with the investigation. And although the law seems to meet those who contribute to justice, is such a consideration of the accused himself?

Facts and reflections set forth in the article will definitely help you understand what is a special procedure for considering criminal cases. Perhaps even help to navigate, is it necessary in your particular case.

However, each business is individually, and when solving this issue, you should be guided by the advice of an experienced lawyer and, ultimately, their head. If you have not yet found a specialist who will protect you in court, we recommend doing it as soon as possible.

A special procedure for consideration of the criminal case: what is it?

The criminal proceeds implies the advisory of the prosecution and protection. The goal is to find out whether the defendant in committing a specific crime is guilty.

This is one of the differences from civil proceedings: the latter may not have advice (orderly production), and here it does not matter, you really are guilty or not. If you want to meet the requirements of the plaintiff, even just with the reluctance to argue - please, no one will interfere with.

In legal proceedings, regulated by the OPC standards, not so: if you recognize yourself guilty, voluntarily taking someone else's guilt, the court will make a conviction, without being confident in the justice of such a decision. That is, here is not to resolve the dispute here, namely to get to the truth and appoint a fair sentence (ideally).

Knowing this, it is easier to understand the phenomenon of a special procedure for considering a criminal case in the court of first instance established in 2009 by Section 10 of the Criminal Procedure Code.

It is assumed that there are 2 procedures for entry into such production: the consent of the accused with the accusation charged to him and the conclusion of a pre-trial agreement on cooperation between the protection and charges (chapters 40 and 40.1 of the Criminal Procedure, respectively).

But the principle is one: the accused recognizes his guilt (directly or indirectly, as in the case of a pre-trial agreement) in exchange for some softening of the sentence, which greatly facilitates and speeds up the work of the court and the load on the judicial system as a whole.

The court does not deepen the details of the case, does not investigate evidence and circumstances (except, for example, those that characterize the identity of the accused), as the parties refuse to match.

That is why the consent of each participating party is important here. A special procedure for criminal cases is not applied to minors due to their incapacity. Also in both cases the defendant is exempt from paying court costs. To better figure out than one procedure differs from the other, consider each separately.

A special order due to the recognition of the accused of his guilt

The special procedure for consideration of the criminal case due to the recognition of the accused of its guilt is governed by Articles 314-317 of the Code of Criminal Procedure. Such consideration is available exclusively at the initiative of the defendant, which is logical. However, it is not always possible to recognize your guilt and ask for a special order.

The Criminal Procedure states that for this, a crime in which the person is accused should not be treated to the category of particularly serious. The wording of Article 314 concerns not a category of crime, but the highest possible term for it is 10 years. And under this category there are crimes of small gravity, moderate gravity, according to Article 15 of the Criminal Code of the Russian Federation.

The second condition - the existence of agreement on the transition to such a procedure for the part of the accusation: the state prosecutor (prosecutor), the victim and the private prosecutor, which is victim in the affairs of private and private and public prosecution (it can be slander, violence, beatings, injuries without loss of victims disability and other).

And especially allocated by the legislator: the accused should go to this step voluntarily, having previously consulted with his defender, and should be aware of the nature and consequences of his petition.

And the consequences of such a petition are serious: making an indictment. This is the only outcome for a criminal case, which is considered in a special order. It would seem, you can appeal. But the borders of the appeal are significantly narrowed: you will not be able to challenge the conclusions of the court, based on actual circumstances, and in fact - you cannot change the conviction on the justification.

Available foundations for appeal in appeal under Article 389.15 Code of Criminal Procedure: Violation of the judge of the Code of Criminal Procedure, the incorrect application of the norms of the Criminal Code, making an unfair sentence. This means that you will potentially be able to achieve only sentencing, but not more.

It is important here to note that the court, having reasonable suspicions of the innocence of the accused, can abolish the special procedure for consideration of the criminal case and move to the total. The latter, in turn, has at least two outcome options: making an indictment or acquittal.

The court refuses to a petition for a special order and if the special conditions set out above are not observed. The replacement for a general procedure occurs not only at the initiative of the court, but also at the request of the accused, prosecutor or the victim (that is, before making a sentence, it can be changed).

The petition is declared during familiarization with the materials of the case, which will be noted in the protocol of the procedure, or during a preliminary hearing, if it is impossible to do without it (rules of Article 229 of the Code of Criminal Procedure).

If the case is beginning to be considered in a special order, they take a major order as the basis and change it a bit.

First, consideration without the accused and his defender is not allowed. The procedure for the meeting is:

• announced the accusation (by the prosecutor or private prosecutor);
• the judge finds out, is it clear to the defendant accusation, whether he agrees with him whether it wishes to the transition to a special order, does it understand that it will mean for him;
• aggravating and softening circumstances are investigated, as well as those that allow identifying personal qualities of the defendant (although they may not be investigated);
• the conviction is made and the right to appeal is explained - only if no one objects to the court that the court has enough evidence of the guilt of the face.

Many accused who agree on a particular procedure in a criminal case make such a choice based on the fact that judges in this case do not have the right to appoint more than two thirds of the volume of punishment (term, fine, etc.). However, is it really that for which it is worth recognizing your guilt?

Practice shows that judges relatively rarely appoint a timeline exceeding two thirds of the maximum - defenders usually manage to achieve mitigation. Therefore, in this context, this is a very doubtful plus procedures.

And on the background of minuses - to make an exclusively indictment and the impossibility of changing it to the acquittal in the order of appeal revision - the more worth it to think very thoroughly.

It is advisable to petition about the beginning of such a procedure, it is advisable to do when you are guilty, plus a lot of aggravating circumstances and you are reinforced with a long time.

A special procedure for reviewing a criminal case in connection with the conclusion of a pre-trial agreement

A somewhat different things are in particular order when it is entered in connection with the conclusion of a pre-trial agreement. It suggests that the prosecution and defense agree on how the responsibility of the person will be mitigated if he has special actions to help the investigation.

The introduction of a special procedure for criminal cases provides for the preparation of two documents:

• signed by the defender of the written request of the suspect in the name of the prosecutor's conclusion;
• the agreement itself, in which the actions are specifically listed that the person undertakes to implement.

They should contribute to the investigation, the disclosure of the personalities of accomplices, the search for the missing property. There may be a maximum of three days between the petition and the answer to it from the prosecutor.

At the same time, the applicant himself must also meet in a special time: from the beginning of criminal prosecution and before the completion of the preliminary investigation (because the agreement is called pre-trial).

There is a logical question: should the accused to recognize his guilt to conclude a pre-trial agreement? The law does not contain such a requirement. However, the design of this mechanism does not provide for the possibility of making an exclusive sentence or termination of the procedure for rehabilitation grounds.

Such confirmation is a special indication of Article 317.7 of the Code of Criminal Procedure, according to which, the procedure for holding a court session in this case is identical to the procedure provided for for special consideration of cases in connection with the recognition of its guilt.

Paragraph 5 of the Article itself states that after carrying out all the necessary procedures, the judge makes an accusatory sentence. Therefore, it is not necessary to count on the active assistance of the investigation.

Despite the fact that the outcome is the same as we have been described in the previous paragraph, it is more variable. The punishment may be softer (this thought in law is not specified), may be expressed as a conditional condemnation. Another option is released from serving a sentence. These conditions are more loyal than for those who simply recognized their guilt, because, roughly speaking, they need to be earned.

Although the court, as in the first case, does not explore the actual circumstances and evidence, it explores how the defendant fulfilled all the conditions and responsibilities that took over in the pre-trial agreement.

The sequence of actions in judicial review is similar to the one that was previously represented by us. Difference: the prosecutor describes how the person fulfilled the requirements taken over the claims, then the defendant itself does the same. The emphasis in the study is on this, so it is important to find out:

• how exactly and in which volume contributed to the defendant;
• as affected and what value for the disclosure of the crime was facilitating the defendant;
• whether any crimes were discovered or other criminal cases were initiated as a result of cooperation with the defendant;
• whether due to such cooperation, the threat of personal safety of the defendant, his relatives and other close persons, and what was her degree - that is, how much risked the defendant, promoting justice, and what state protection measures needed to be applied;
• circumstances characterizing the identity of the defendant, as well as those that soften and aggravate the punishment.

Separately, you need to say about the revision of such sentences. Their appeal appeal takes place in the same order as in the case with the recognition of his guilt.

However, according to Article 317.8 of the Code of Criminal Procedure, an cassation appeal may be submitted for such sentences if it was found that sentenced to give false information than violated the conditions of the pre-trial agreement.

It is impossible to unambiguously say whether the accused or suspect is beneficial to the special procedure for consideration - it depends on the set of circumstances of the criminal case.

It happens that the suspect intentionally goes to a pre-trial agreement in order to delay the deadlines - this may afford to avoid punishment for crimes of small gravity, the period of limitations on which is relatively short.

It happens that innocent specifically takes guilty, for example, covering his loved one - for this, the possibility of transition to a general order at the initiative of the court has been established.

In any case, a special procedure for criminal cases is more profitable to the court than other parties to the process.

Sources:

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