According to Art. 42 of the Code of Criminal Procedure of the Russian Federation, the victim has the right to know about the charges brought against the accused; to participate, with the permission of the investigator or interrogating officer, in proceedings carried out at his request or at the request of his representative; get acquainted with the protocols of investigative actions carried out with his participation, and submit comments on them; get acquainted with the decision on the appointment of a forensic examination and the expert's opinion.
In practice, the investigator (inquirer) tries not to bother himself extra work and not to notify (notify late) the victim and his representative about the possibility of familiarization with the procedural documents during the investigation. Work on the principle - the victim is not interested in the investigation of a criminal case, so he does not need it.
At the same time, passivity in the behavior of the victim, failure to exercise the rights provided for by law can lead to a negative result in a criminal case, up to its termination due to non-rehabilitating circumstances.
In addition to these documents, the victim has the right to receive copies of the recognition of him as a victim, the refusal to select a measure of restraint in the form of detention in relation to the accused, the termination of the criminal case, the suspension of the proceedings in the criminal case.
In practice, a copy of the resolution on recognition as a victim is issued by the investigator on the day it is issued, since the resolution provides for the investigator's obligation to explain the rights of the victim against signature. The decision of the court on the refusal to select a preventive measure in the form of detention in respect of the accused shall be sent to the injured judge.
Other procedural documents that the victim has the right to receive and familiarize with them are issued, as a rule, at the request of the victim or his representative.
The most controversial issue in practice is the realization of the right of the victim to receive, upon request, a copy of other procedural documents affecting his interests, but this is a separate topic for another article.
Similar rights to familiarize with the documents are assigned to the suspect (accused) in Art. 46, 47 Code of Criminal Procedure of the Russian Federation. According to them, the suspect (accused) has the right to receive a copy of the decision to initiate a criminal case against him, as well as other documents on the basis of which they have this procedural status (a copy of the protocol of detention, or a copy of the decision to apply a measure of restraint to him, to receive a copy of the decision on being charged as a defendant).
In addition, the suspect (accused) may participate, with the permission of the investigator or interrogating officer, in investigative actions carried out at his request or at the request of his defense counsel or legal representative, get acquainted with the protocols of these actions and submit comments on them. Get acquainted with the decision on the appointment of a forensic examination, put questions to the expert and get acquainted with the expert's opinion.
This is not a complete list of documents that the victim, suspect and accused have the right to familiarize themselves with. Separate articles of the Code of Criminal Procedure of the Russian Federation provide for the possibility of familiarization with other procedural documents of the participants in the process. For example, when performing a search (seizure), the investigator is obliged to present the decision to the person who is conducting this investigative action.
In everyday work, the investigator (inquirer) is guided by the Code of Criminal Procedure of the Russian Federation, which describes how and in what cases to familiarize the defense and prosecution parties with documents from the materials of the criminal case, as described above.
But, in fact, the rights of the victim, suspect, accused to familiarize themselves with individual documents of the criminal case are much greater than those listed in the Code of Criminal Procedure of the Russian Federation.
The interpretation of certain provisions of the Code of Criminal Procedure of the Russian Federation on the application of the rights of participants in criminal proceedings is indicated in the decisions of the Constitutional Courts Russian Federation on complaints from citizens (for example, the right to familiarize with the decision to extend the procedural deadlines is provided, which is not expressly permitted by the Code of Criminal Procedure of the Russian Federation). In some cases, court decisions have recognized the right not only to familiarize themselves with documents, but also to receive copies of them.
The possibility of familiarization with the materials of a criminal case is also provided for at court hearings during the investigation of a criminal case (for example, when choosing a measure of restraint by the court).
Thus, despite the secrecy of the preliminary investigation, the knowledge and ability of the participants in the criminal process and their representatives to exercise their rights provides a sufficient opportunity to familiarize themselves with the individual materials of the criminal case during the preliminary investigation.
Questions, comments and feedback please leave in the form below, we will be happy to communicate with you.
After resolving all the issues provided for in the preparatory part court session, the presiding judge announces that the court proceeds to the judicial investigation. It begins with a presentation by the public prosecutor of the essence of the charge brought against the defendant. According to the meaning of the law, it is determined in the operative part of the indictment. If, upon approving the indictment by the prosecutor, the volume of the charge is changed or the actions of the accused are reclassified under the criminal law on a less serious crime, the charge brought against the defendant is formulated by the public prosecutor, taking into account these circumstances. Also, the public prosecutor makes appropriate adjustments to the previously filed charge in the event that the charge is changed by the prosecutor during the preliminary hearing of the criminal case. In cases of private prosecution, the judicial investigation begins. statements to the victims. The law does not contain a mention of a civil plaintiff or his representative, although he refers them as participants in criminal proceedings to the prosecution. It seems that it is advisable to provide an opportunity for the civil plaintiff or his representative to state the essence of the stated claims for compensation for material damage and moral damage. This opinion is based on the fact that from the meaning of the norms of the law, which provide the defendant with the right to defense, it follows that he must know both the essence of the charge and the amount of claims brought against him for compensation for property damage caused by the crime and property compensation for moral damage. The significance of the very fact of the formulation by a public or private prosecutor of the essence of the charge brought against the defendant lies in the fact that it determines the scope and limits of the forthcoming judicial investigation of the circumstances of the criminal case. The law requires that the presiding judge then ask each defendant whether he understands the charge. The fulfillment of these requirements of the law is directly aimed at ensuring the defendant's right to defense. After that, the presiding judge asks each of the defendants whether he pleads guilty and whether he or his counsel wants to express his attitude to the charge. If there is such a desire, the court provides an opportunity for the defendant or his defense lawyer to substantiate his position on the criminal case being considered by the court. The order in which the evidence is examined is determined by the party presenting the evidence to the court. The sequence of examination of evidence by both the prosecution and the defense is determined by them independently, taking into account a number of circumstances: the position of the defendant to the charges brought, the position of the victim, the nature of the punishment of witnesses, the need for an expert examination in the trial, the study of documents, etc. The side of the prosecution is the first to present evidence to the court: the prosecutor, the private prosecutor, the victim, his legal representative and representative, civil plaintiff and his representative. Within the meaning of the law, they are entitled to present any evidence they have at their disposal. After the evidence provided by the prosecution is examined, the evidence that the defense decided to present to the court is examined: the accused, his legal representative, defense counsel, civil defendant, his legal representative and representative. Examination of the evidence presented by the parties, Iip0. produced according to the rules established by the Code of Criminal Procedure. During the interrogation of the defendant, he independently decides whether to give evidence during the trial. If the defendant agrees to testify, it is expedient to give him the opportunity in a free story to give explanations that he considers to be the most important or of significant importance. The defense counsel asks the defendant first, and then the participants judicial trial from the protection side. After that, the public prosecutor (private prosecutor) and participants in the trial from the side of the prosecution may use the right to ask questions with the permission of the presiding judge. The presiding judge is obliged to reject leading questions and questions that are not related to the criminal case being considered by the court. In the course of a free story and when answering questions from the participants in the trial, the defendant has the right to use written notes. As a rule, this refers to digital data about the time of certain actions, etc., which are difficult to keep in memory, especially in multi-episode cases. The court has the right to demand from the defendant these written notes for review. After interrogation of the defendant by the parties, the right to ask him questions is granted to the court. When this is required by the interests of establishing the circumstances of a criminal case, the court may, at the request of the parties or at own initiative issue a ruling on the interrogation of the defendants in the absence of each other. This applies to such cases when the presence of other defendants may affect the testimony of the interrogated, when it is necessary to conduct a detailed interrogation of the defendants about certain circumstances of the case, if there is evidence that the defendants tried to agree to give certain testimony, or when they put forward new versions in court about the circumstances of the crime. When the defendant is interrogated in the absence of another defendant, the presiding judge, after the removed defendant returns to the courtroom, reports the content of the testimony given in his absence, and provides him with the opportunity to ask questions to the interrogated. In the course of the judicial investigation, it is possible to read out the testimony of the defendant given by him during the preliminary investigation. It is also allowed to reproduce photographs, audio and video recordings, filming of his testimony attached to the protocol of interrogation. Such a right is retained at the request of any of the parties in three cases: If there are significant contradictions between the testimony given by the accused during the preliminary investigation and the testimony of the defendant, which he gives during his interrogation in the trial, except in cases of inadmissibility evidence (Article 75 of the Code of Criminal Procedure); when considering a criminal case in the absence of the defendant, when in a criminal case about a crime a small and moderate the defendant petitions for the resolution of this case in his absence and the court agrees with this; when the defendant refuses to testify, if the requirements of n. 3 h. 4 Article. 47 Code of Criminal Procedure. The same procedure is provided for the reading out of the testimony of the defendant, given earlier in the course of the trial. In this case, the testimony of the defendant recorded by the secretary of the court in the minutes of the court session shall be read out. The law obliges to first read out the testimony of the defendant contained in the relevant protocol. It is only after that that photographic negatives and photographs, transparencies made during the course of this investigative measure may be shown in court. The same rules are established for the reproduction of audio and video recordings, as well as filming. For these purposes, it is desirable to invite a specialist, allowing him, in the manner prescribed by law, to participate in the trial. If several defendants are involved in a criminal case, the order in which they present evidence is determined by the court, taking into account the opinions of the parties. Interrogation of the victim and witness. The victim shall be interrogated in the same manner as established for the interrogation of witnesses. Given the special position of the victim as a participant in criminal proceedings, the law grants him the right, with the permission of the presiding judge, to testify at any time during the judicial investigation. The law requires that witnesses be examined separately and in the absence of unexamined witnesses. Witnesses removed from the courtroom to the preparatory section are called in for questioning as needed. Before interrogating a witness, the presiding judge establishes his identity, i.e. finds out the last name, first name, patronymic, place and time of birth and other data, if necessary, as well as his relationship to the defendant AND the victim. Then the presiding judge explains to the witness the rights, his civic duty and obligation to truthfully tell everything known in the case and warns about the responsibility for refusing to testify and for giving knowingly false testimony. The witness gives a signature about this, which is attached to the minutes of the court session. These circumstances are recorded in the minutes of the court session by the secretary of the court. After the witness freely tells about the circumstances of the criminal case known to him, the party at whose request he is summoned to the court session first asks him questions. Naturally, among the participants in the trial, both on the side of the prosecution and on the side of the defense, the first is given the right to ask questions to the one who petitioned to summon this witness to court. Then other representatives of the same side ask questions. And only then have the right to ask questions to the witness the participants in the trial relating to the opposite side. The judge finds out the questions that have arisen for him after the interrogation of the witness by the parties. Interrogated witnesses may leave the courtroom until the end of the judicial investigation. This is allowed only with the permission of the presiding judge, who first finds out the opinion of the parties about this and takes this into account when making a decision. In cases where it becomes necessary to ensure the safety of a witness, his close relatives, relatives and close persons (threats of murder, violence, destruction or damage to their property, or other unlawful acts (Article 1 of the Code of Criminal Procedure)), the court has the right to conduct an interrogation without disclosure of full data on the identity of the witness and in conditions that exclude visual observation of the witness by other participants in the trial. This presupposes an appropriate Technical equipment courtroom. The performance of such an investigative action is allowed only by a court ruling or by a judge's decision. Any of the participants in the proceedings may file a petition to this effect. If in the course of such an interrogation of a witness, the parties file a petition for the disclosure of full information about the person giving evidence, in connection with the need to protect the defendant or establish any circumstances significant for the consideration of the criminal case, the court has the right to provide them with the opportunity to familiarize themselves with this information. However, the law requires that such a request be substantiated. The court considering a criminal case, if necessary, may decide to interrogate a witness or a victim by using videoconferencing systems. During the interrogation, both the victim and the witness have the right to use written notes. It seems that this is possible when examining digital data and information that is difficult to keep in memory, etc. At the request of the court, these written notes must be produced. During interrogation in court proceedings, the victim and witnesses have the right to disclose documents that are relevant to their testimony. These documents are presented to the court and, by its decision, can be attached to the case file, if with their help it is possible to verify or evaluate any circumstances that are subject to proof in a criminal case. ABOUT decision The court makes a decision, and the judge makes a decision. In order to obtain objective evidence from minor victims and witnesses and create the necessary psychological environment during their interrogation, a teacher participates in the trial. The law provides for his mandatory participation in the interrogation of the victim and witness under the age of 14. The teacher may also participate in the interrogation at the discretion of the court, taking into account the personal characteristics of the victim and witness aged 14 to 18 years. If the minor victim and witness have any physical or mental disabilities, the presence of a teacher is mandatory in all cases. A person who has Teacher Education. If a teacher participates in the interrogation of a minor victim, witness, the presiding judge explains his rights. The list of these rights is not established by law. It seems that conditionally, according to the procedural provision, he can be equated with a specialist. The teacher should explain the purpose of his summoning to the court session, explain that he has the right, with the permission of the presiding judge, to ask questions to interrogated minors, draw the attention of the court to certain circumstances related to the interrogation of a minor victim and accused, etc. An appropriate entry shall be made in the minutes of the court session on the performance of this action. During the interrogation of a minor victim and witness, their legal representatives may also take part in the trial. When interrogating a minor victim or witness under the age of 14, the participation of a legal representative is mandatory. In the case of interrogation of such persons, the court decides on the participation of a legal representative, taking into account the specific circumstances of the case, the personality of the person being interrogated and the opinion on this issue of the participants in the trial. Legal representatives have the right, with the permission of the presiding judge, to put questions to the person being interrogated. To the victim and witness under the age of 16, the Presiding Officer explains the importance of their full and truthful testimony for the correct resolution of the criminal case. They are not warned about the responsibility for refusing to give and for knowingly giving false evidence, and their subscription is not taken away. Underage victims and witnesses aged from Ifi up to 18 years of age give such a signature after warning them about this by the presiding judge. Considering age features minors, in order to ensure their rights, the interrogation of the victim and witness under the age of 18 may take place in the absence of the defendant. This is allowed both at the initiative of the court itself, and at the request of the parties. The court is obliged to issue a ruling on this, and the judge - a resolution. However, the law obliges, after the defendant returns to the courtroom, to inform him of the essence of the testimony of persons made in his absence. He should also be given the opportunity to question them about their testimony. After interrogation in a court session, a minor victim or witness, as well as a teacher or legal representative who participated in his interrogation, may be released from further participation in the court session with the permission of the presiding judge. The law determines the cases when it is possible to read out the testimony of the victim and the witness, which they had previously given both during the preliminary investigation and during the trial. The first of the grounds is the existence of significant contradictions between the previously given testimonies and the testimonies that they give directly during their interrogation at the court session. The court has the right to decide on the disclosure of testimony in this case only at the request of the party. The second reason - in case of failure to appear at the court session of the witness or the victim in the following cases: death; a serious illness preventing attendance at court; refusal of the victim or witness, who is a foreign citizen, to appear when summoned to court; natural disaster or other extraordinary circumstances preventing the appearance in court. In this case, the court has the right to make a decision to read out the testimony both at the request of the party and on its own initiative (part 2 of article 281 of the Code of Criminal Procedure). The announcement of the testimony of the victim and the witness, previously given during the preliminary investigation or trial, as well as the demonstration of photographic negatives and pictures taken during interrogations, playback of audio and (or) video recordings, filming of interrogations is allowed only on mutual consent the prosecution and defense, except for those specified in Part 2 of Art. 281 Code of Criminal Procedure. After the testimony of a witness or victim is read out, each participant in the trial should be given the right to ask questions to the defendant, other victims, if any, an expert, a specialist in connection with the testimonies examined. When evaluating the testimony of a witness, as well as the victim, examined in the trial, the court must establish whether these testimony relate to the case under consideration, whether they are admissible and whether they are reliable. If the evidence in its content has the ability to establish or refute any circumstance included in the subject of proof, it is considered to be related to the criminal case being resolved. Admissible should be recognized such testimony of a witness that is received and examined in accordance with the requirements of the criminal procedure law. This means that only those persons who are specified in the law can be witnesses; that they know the origin of the information about which they give evidence and that this testimony may be subject to verification; that the interrogation was carried out in strict accordance with the requirements of the criminal procedure law. Having established that the testimony of a witness is relevant to the case under consideration and is admissible, the court must determine their reliability, i.e. analyze the nature and significance of the factual data reported by the witness, checking how correctly he perceived the facts, whether he remembered them well and kept them in memory before interrogation, how faithfully and fully he reproduced them. In this regard, the court needs to analyze all the prerequisites that could have influenced the formation of the testimony of the witness: his age, education, level of development, the conditions for perceiving the event, taking into account the state of the witness at that moment and the ability in this regard to correctly assess the events that took place (state health, the suddenness of the actions of the defendant and the fear of the witness in connection with this, the observation of events in a state of intoxication, etc.). Thus, the court must evaluate both the source of information itself and all the factors that could influence the formation of the testimony of the persons interrogated in the trial. In court proceedings, the court, upon request or on its own initiative, has the right to summon for interrogation an expert who gave an opinion during the preliminary investigation. An interrogation may be carried out in order to clarify or supplement the conclusion given by him. The interrogation of the expert is carried out after the announcement of the expert's opinion. The law contains restrictions on the subject of an expert's interrogation: an expert cannot be interrogated about information that became known to him in connection with the forensic examination, if they do not relate to the subject of the conclusion given by the expert. Although the norms of the Code of Criminal Procedure on the procedure for conducting a trial do not mention the questioning of a specialist, from an analysis of the content of Art. 80 of the Code of Criminal Procedure, it follows that such an interrogation is possible if necessary. The specialist may be re-addressed in order to clarify the conclusion given by him during the preliminary investigation, and after giving such an opinion during the trial. In addition, a specialist may be interrogated about circumstances requiring special knowledge that arose during the trial. The procedure for questioning a specialist is the same as for questioning an expert. The right to be the first to ask questions to an expert or a specialist has the party on whose initiative an expert examination was appointed or a specialist's opinion was given. If necessary, the court has the right to give the expert or specialist the time that he needs to prepare answers to the questions of the parties and the court. At this time, a break is announced in the court session or questions that are not related to expert research or the conclusion of a specialist are examined. After preparing answers to the questions put by the parties and the court, the interrogation of the expert or specialist continues in accordance with the rules established by law. The Code of Criminal Procedure establishes that an expert examination in court proceedings is appointed in cases where special knowledge in science, technology, art and craft is required. Therefore, in cases where, in the opinion of the court, special knowledge is required to establish any circumstances that are part of the subject of proof, and during the preliminary investigation an examination was not carried out, the court has the right to decide to conduct an examination in court. Such a decision may be taken by the court and at the request of any of the participants in the trial. Of no small importance is the question of whether in all cases of an examination during a preliminary investigation it is necessary to summon an expert to a court session. Article 240 of the Code of Criminal Procedure, revealing the concepts of immediacy and orality of the trial, requires the court, when considering a criminal case, to hear an expert's opinion. From this we can conclude that the court has the right to hear the expert's opinion given by him both in the trial and during the preliminary investigation. Consequently, following the examination carried out during the preliminary investigation, it is not always required to conduct it in court proceedings. For example, "summoning an expert to a court session seems redundant - if his opinion obtained during the preliminary investigation" gives clear and exhaustive answers to the questions posed, if the expert based his research on those initial data that were sufficiently fully and objectively identified during investigation and received their confirmation at the hearing. By virtue of Art. 240 of the Code of Criminal Procedure, which requires that the verdict be based only on the evidence that was examined in the court session, the court must announce the expert opinion in the case, giving the participants in the trial an opportunity to clarify their questions in connection with this. In case of insufficient clarity or completeness, the same expert who conducted the examination during the preliminary investigation is summoned to court, if there is no doubt about his competence. The production of an expert examination may also be entrusted to another expert, but in this case he is allowed to participate in the trial only after the court has issued a decision on the production of an additional expert examination. If the expert opinion given during the preliminary investigation is insufficiently substantiated or there are doubts about its correctness, a re-examination is appointed. It is entrusted to another (other) expert. In this case, the court in accordance with Art. 28 and 271 of the Code of Criminal Procedure may allow the participation of an expert in the investigation of the circumstances of the case only after a ruling on the appointment of an expert examination has been issued. When deciding who exactly should be summoned to court as an expert, it should, of course, be taken into account that the staff members of expert institutions are trained in special program, where they not only improve their theoretical knowledge, but also master the methodology of expert research. In any case, when reading the expert opinion in the case and assessing the opinion given by the expert in court, it is necessary to find out whether the initial data taken by the expert as the basis of the study correspond to what was established by the court, what calculations the expert made and what degree of their accuracy , the correctness of the research methods used by him, as well as the validity, objectivity and consistency of the conclusions of his conclusion. First of all, it is these circumstances, and not the position held by the expert, his rank and length of service, that should be taken into account by the court. An expert entrusted with the performance of an expert examination in court has the right to participate in the study of the circumstances of the case relating to the subject of the expert examination. During the judicial investigation, he may ask questions to the defendant, victim and witnesses, participate in the inspection of the scene, in the performance of Other investigative actions. The law provides for one very important rule : before asking questions, the expert needs to find out all the circumstances that are important for giving an opinion during the judicial investigation. After that, the presiding judge invites the prosecutor, defense counsel, defendant, as well as the victim, civil plaintiff, civil defendant and their representatives to submit questions in writing to the expert. These issues are announced in court, and on each of them the opinion of each participant in the trial is heard. After that, the court discusses the questions presented by the participants in the trial, eliminates those that are not relevant to the case, and formulates new ones. Questions before an expert should be formulated only in a ruling or in a ruling of the court, in which the court is obliged to give reasons why certain questions submitted for resolution by the participants in the trial were rejected. The court must perform these actions by retreating to the deliberation room. The ruling of the court shall be announced at the court session. If the expert does not have additional requests to examine the evidence in connection with the questions posed to him by the court, then the expert proceeds to draw up an opinion. For the period necessary for the expert for this purpose, the court session may be adjourned, or the court may continue to investigate the circumstances not related to the performance of the expert examination. The expert gives a written opinion. When conducting comprehensive examinations, experts have the right to draw up a joint opinion, indicating what research each of them has conducted, what facts have been established and what conclusions have been drawn. Each expert has the right to sign the entire conclusion or that part of it, which reflects the course and results of his own research. If the materials submitted to the expert are not sufficient to give an opinion, or if the issues raised for his decision are beyond the scope of his competence, the expert has the right to refuse to give an opinion. Refusal to give an opinion is drawn up by the expert in writing with a statement of the reasons for the refusal. The expert's conclusion is announced by him at the court session and attached to the case along with questions. If necessary, the expert is asked questions to clarify or supplement the conclusion given by him. First, these questions are asked by the judges, then by the prosecutor, the victim, the civil plaintiff, the civil defendant and their representatives, as well as the defense counsel and the defendant. The current Code of Criminal Procedure in Art. 81 quite accurately defined the range of subjects that can be recognized as material evidence in a criminal case. These are, first of all, instruments of crime and objects that have retained traces of a crime; money, valuables and other property obtained as a result of a crime; other objects and documents that can serve as means for detecting a crime and establishing the circumstances of a criminal case. as material evidence as an instrument of crime can be recognized vehicle if it was used directly to achieve a criminal result. When examining physical evidence during a trial, it is very important to establish its relevance: data on the origin of the item, indicating the place, time, conditions and method of its discovery, must be contained in the protocol of the corresponding investigative action (inspection of the scene, search, seizure, etc.) . I Ie less important is the establishment of the admissibility of material evidence: verification of compliance during the preliminary investigation with the conditions provided for by law, the procedure for the production and execution of investigative actions and the recognition of the discovered object as material evidence and compliance with the rules established by law for its subsequent storage until the criminal case reaches the court. On the recognition of these items as material evidence in a criminal case, an investigator's decision must be issued in compliance with the requirements of Art. 81 Code of Criminal Procedure. Inspection of material evidence may be carried out at any time during the judicial investigation. It can be combined with the interrogation of the defendant, victim, witnesses, if, taking into account the specific circumstances of the criminal case, this is appropriate. Ho, in our opinion, the examination of material evidence should always be preceded by the announcement of the protocol of the investigative action, during which the material evidence was discovered (the protocol of the inspection of the scene, seizure, search, etc.) and the investigator's decision to recognize the discovered object as material evidence and the conditions of its storage during criminal proceedings in accordance with Art. 82 Code of Criminal Procedure. Prior to the examination of physical evidence, the participants in the trial must make sure that the material evidence submitted for examination was actually discovered during the preliminary investigation in the criminal case being considered by the court. When examining physical evidence, a specialist may, if necessary, participate in the trial. At the same time, material evidence may be presented to witnesses if their testimony is related to the fact of discovery of material evidence. Physical evidence is examined by the participants in the trial. At the same time, they have the right to draw the attention of the court to certain circumstances related to the inspection. In addition, during the examination, the defendant, victim, witnesses, expert, specialist may be asked questions related to hallmarks material evidence being examined, methods of its detection, examination during the ongoing investigative action, etc. The results of the examination by the court of physical evidence are recorded in the minutes of the court session. According to Art. 83 of the Criminal Procedure Code, protocols of investigative actions and court hearings are allowed as evidence only if they meet the requirements established by law. Minutes of investigative actions and court hearings are written documents that are provided for by the current criminal procedure law, drawn up by authorized persons acting within their powers, if they contain circumstances and facts that are perceived by those directly involved in the production of this action and are important for resolution specific criminal case. The law provides for the preparation by the investigator during the preliminary investigation of protocols: inspection, examination, investigative experiment, search, seizure, identification, detention. The law also provides for the preparation of minutes of the court session at the pre-trial stages: - consideration by the court of the investigator's petition, filed with the consent of the head of the investigative body, or the petition of the interrogating officer with the consent of the prosecutor to choose a measure of restraint in the form of detention, house arrest and bail; - consideration by the court of the petition of the investigator, filed with the consent of the head of the investigative body, or the petition of the interrogating officer with the consent of the prosecutor on the election of other measures of procedural coercion in the form of temporary removal from office of the suspect or the accused; on the seizure of the property of the suspect, the accused or persons who, under the law, are financially responsible for their actions; - consideration by the court of the petition of the investigator, declared with the consent of the head of the investigative body, or the petition of the interrogating officer with the consent of the prosecutor on the performance of investigative actions, in the cases provided for in clauses 4-9 and 11, part 2 of Art. 29 UG1K: - consideration by the court of complaints against the decisions of the investigator or the interrogating officer on the refusal to initiate a criminal case, on the termination of the criminal case, as well as other decisions and actions (inaction) of the interrogating officer, investigator and prosecutor, which are capable of causing damage to constitutional rights and freedoms participants in criminal proceedings or hinder citizens' access to justice. Keeping minutes of the court session is also provided for during a preliminary hearing in a criminal case. When the verdict is annulled on appeal, cassation with the direction of the criminal case for retrial to the same court, but in a different composition of the court, the protocol of the court session prepared in the trial during the initial consideration of the criminal case may be used as evidence in the criminal case. The protocols of investigative actions and the court session are, first of all, one of the means of establishing the circumstances that are included in the subject of proof in a criminal case. In addition, they can also be used to verify other evidence collected in a criminal case. Information relating to a particular case shall be set out in the minutes in writing. As optional means of fixation, photography, filming, video filming, drawing up plans, diagrams can be used. They are integral part the protocol of the investigative action and without the presence of the protocol of evidentiary value do not have. In order for these protocols to be used as evidence, they must necessarily be drawn up in strict accordance with the rules provided for by the criminal procedure law: - only by the relevant official; - only with the appropriate agreement and with the receipt of a court decision in cases provided for by law; - with the participation of persons provided by law; - while observing the rights of persons participating in the production of the investigative action. Deviation from the rules established by the criminal procedure law may result in the inadmissibility of evidence329. During the judicial investigation, the court must also assess the facts and circumstances that are recorded in the protocols of investigative actions carried out in the course of the preliminary investigation. It is advisable to coincide with the announcement of the protocols of the inspection of the scene, search, seizure, investigative experiment, identification and others by the time of interrogation of those persons who testify about the facts established in these protocols. After the announcement of the protocol of the relevant investigative action, the party that requested its announcement, or the court, asks the interrogated questions related to this, and then the participants in the trial should be given the right to ask their questions in connection with the announcement of the protocol. Protocols may be read out in whole or in part on the basis of a court order. The study of documents is important for establishing the factual circumstances of a criminal case and its correct resolution. The law determines that the documents attached to the case or presented at the court session, if the circumstances relevant to the case are stated or certified, are subject to disclosure. In practice, in order to ensure the completeness and comprehensiveness of the study of evidence and the creation of appropriate conditions for the evaluation of documents, it is advisable to time their announcement to the moment when the defendant, victim or witness testifies about the facts being verified in them. This also contributes to the speed of litigation. The participants in the trial are entitled to clarify the questions that have arisen in connection with the read out document. They may relate to the following points: to whom, when, by whom and for what purpose the document was issued; what registration data is on it; when and by whom the document was signed; the content of the document; data on the imprint of stamps and seals, etc. At their request, the participants in the trial must be presented with a document for review. If the document was presented directly at the court session by any of the participants in the trial or demanded by the court, it shall be attached to the case file by a court decision. If for some reason it is impossible to attach such a document, the minutes of the court session must record what circumstances were stated or certified in the examined document. Documents not attached to the materials of the criminal case shall be returned to the applicant. Protocols of investigative and judicial actions, documents are read out both in full and in part at any time of the judicial investigation, both at the initiative of the court and at the request of the participants in the trial. These actions of the court must be reflected in the minutes of the court session, i.e. the protocol must indicate which pages of this document were read out, which facts related to the criminal case were examined in the trial. Inspection of the area and premises can be carried out both in cases where it was not born during the preliminary investigation, and in cases where the study of the protocol of the inspection of the area or premises carried out by the investigator was not enough to establish the actual circumstances of the criminal case and it is required to conduct a more detailed survey of the area and premises. It can be carried out by the court in order to detect traces of a crime and material evidence, and most often in order to clarify and clarify the situation of the incident. As judicial practice shows, most often such a need arises during the trial in the presence of contradictions in the testimony of the defendants and victims, and in the case when, during the preliminary investigation, the examination of the scene of the incident was not carried out in full or in insufficient detail. If the inspection of the area can be carried out both at the request of the participants in the trial, and at the initiative of the court without a preliminary decision, then when examining the premises, a reasoned decision of the court is required, which is set out by the judge in the decision, and by the court in the ruling. After the announcement of the court decision on the inspection of the area or premises, the court announces a break to prepare for its conduct. Particular attention should be paid to ensuring the safety of persons involved in the inspection of the scene. Arriving at the place of inspection, the presiding judge announces the court session as continued and, together with the participants in the trial, proceeds to the inspection. The presiding judge in a criminal case directs the examination, takes measures for the full and objective conduct of this investigative action and compliance with all requirements of the criminal procedure law that determines its production. A specialist may be invited to participate in the examination, and forensic techniques may be used during the examination. During the inspection, the participants in the trial may pay attention to certain circumstances that, in their opinion, are important for establishing certain circumstances of the criminal case. They may, with the permission of the presiding judge, ask the defendant or the victim questions they have in connection with the examination and request that certain facts established during the examination be reflected by the secretary in the minutes of the court session. During the inspection, photography, filming and video filming can be carried out, measurements can be taken, diagrams, plans, etc. can be made, which are attached to the materials of the criminal case and serve to more objectively perceive the situation and fully reflect the discovered facts in the protocol of the court session, which continues lead by the secretary of the court session. The minutes of the court session describe in detail the situation at the site of the inspection, objects found during the inspection, indicating their individual properties; statements and petitions of persons participating in the inspection, etc. are taken into account. An investigative experiment in a trial may be carried out both at the request of the parties, and on the court's own initiative. At the same time, it can be repeated, after the announcement of the protocol of the investigative experiment conducted during the preliminary investigation, in order to clarify certain circumstances. There may be situations when, during the trial, it becomes necessary to conduct an investigative experiment for the first time to verify and clarify the data relevant to the criminal case by reproducing actions, as well as the situation or other circumstances of a certain event (for example, when the testimony of the defendants changes). The law in Art. 288 of the Code of Criminal Procedure indicates that the court conducts an investigative experiment in accordance with the requirements of Art. 181 UG1K, which determines the procedure for conducting an investigative experiment during the preliminary investigation. Naturally, this should also take into account the procedure for conducting a trial. From the content of Art. 181 and 288 of the Code of Criminal Procedure, it follows that the investigative experiment is carried out only on the basis of a court order or ruling. Participation of the parties must be ensured in the conduct of the investigative experiment. The experiment should be carried out under conditions that are as close as possible to those in which the event occurred, the possibility of the implementation of which is verified empirically. To do this, a break in the trial and the implementation of all necessary preparatory measures for its conduct is possible. It should be borne in mind that non-compliance with the conditions corresponding to those in which the event actually took place, judicial practice is regarded as a violation of the norms of the criminal procedure law, entailing the loss of the probative value of the data obtained during its conduct. The law prohibits conducting an investigative experiment if it creates a danger to the life and health of the persons participating in it. Conducting an investigative experiment should be preceded by thorough preparation, during which the following are determined and specified: the place and time of the investigative experiment; ^ the persons participating in its conduct, taking into account the equality of the rights of the parties and the duty of the court not only to explain to them the rights provided for by law, but also to ensure real the opportunity to use them; what actions, how many times and how they will be reproduced during the investigative experiment; how the participants in the trial will be able to observe these events; how their safety will be ensured during the investigative experiment; how interaction with the police will be organized; what technical means who will use them and how. Arriving at the place of the investigative experiment in in full force persons participating in the trial, the presiding judge announces that the court session is continued, and the court proceeds with the production of an investigative experiment. The participants in the trial must be provided with a real opportunity to observe the process of conducting an investigative experiment, ask questions that arise in connection with its conduct, draw the attention of the court to individual moments, petition for the reflection in the minutes of the court session of the circumstances that, in their opinion, are important for the correct resolution of the criminal case. Unlike inspection and investigative experiment, re-holding which is allowed, the presentation for identification of the same person by the same identifying person can be carried out only once. In practice, presentation for identification during the trial is possible when the need for this arises for the first time in connection with the discovery of new circumstances or when identification was not carried out during the preliminary investigation. The law in Art. 289 of the Code of Criminal Procedure determines that in court proceedings, identification is carried out in accordance with the requirements of Art. 193 Code of Criminal Procedure. From the content of these articles, it follows that when presented for identification in court proceedings, the following conditions must be met: - presentation for identification can be carried out at the request of the parties or at the discretion of the court; - a court decision on presentation for identification is formalized in a procedural decision: a judge's decision or a court ruling; - can be presented for identification individuals Or items; - the accused, the victim, the witness can act as identifying persons; - prior to presenting a person or objects for identification, the identifying persons must be interrogated in court proceedings about the circumstances under which they saw the person or object that will be presented to them for identification at the court session, about signs and features by which they can identify them during the planned investigative action; - a person is presented for identification together with others, if possible outwardly similar to him, including at least three; - before the start of the identification, the person to be identified has the right to take any place among the persons to be identified at his own discretion, this is recorded by the secretary in the minutes of the court session; - if the identifying person points to one of the persons presented to him for identification, then the identifying person should be given the right to explain by what signs or features he identified this person. At the same time, no one has the right to ask leading questions to the identifying person. - in the case of a request by the identifying person to ensure his safety, the identification is carried out under conditions that preclude visual observation of the identifying person by the person being identified. It should be noted that this investigative action should be carried out only in cases where the identified person was not previously acquainted with the identifying person, or is familiar to him, but he denies this, and the identifying person saw him in connection with the events investigated in the trial. With this in mind, when interrogating the identifying person before the identification, it is necessary to find out in detail whether they were previously acquainted, whether the person identifying the person being identified by chance did not see the person being identified during other investigative actions, when summoning him for questioning to the investigator, when summoning him to participate in the trial, etc. .P. It is also necessary, when interrogating the identifying person, to find out in detail the circumstances that preceded the observation of the person to be identified: when and where he first saw him, in what conditions it happened, who else could observe this person, find out the objective factors of perception: time, place, illumination , the presence of unauthorized persons, the duration of observation, etc., as well as subjective factors of perception: the state of vision, well-being, etc. It should also be emphasized that non-compliance with the conditions of identification provided for by law may lead to the loss of the probative value of the data obtained during its implementation. Thus, judicial practice recognizes a significant violation of the norms of the criminal procedural legislation, entailing the recognition of evidence as inadmissible if the persons presented for identification had significant differences in physique, height, age, hair color, hairstyle, color and style of clothing, or one of them had special features. The same circumstance should be taken into account when presenting objects for identification: the homogeneity of objects means not only the same names and purpose of the object (for example, watches), but also their similarity in size, model, color, shape, etc. The protocol of the court session reflects the procedure for presentation for identification in full. At the same time, it is advisable to state the testimony of the identifying person about the signs or signs by which he recognized the identified person or object, verbatim. An examination can be carried out in court proceedings both for the first time in the criminal case under consideration, and again, after the court examines the protocol of the examination conducted during the preliminary investigation, to clarify previously identified circumstances or, if necessary, to find out new data, information about which was obtained directly in the court session. . Examination is carried out by order of a judge or a court order. It can be carried out in relation to the accused and the victim. Examination of a witness is allowed, but only with his consent, except for the case when the examination is necessary to assess the reliability of his testimony. Certification according to Art. 179 and 290 of the Code of Criminal Procedure can be carried out in order to detect special signs, traces of a crime, bodily injuries on a person’s body, to identify a state of intoxication or other properties or signs that are relevant to the case, but if this does not require a forensic examination. The examination can be carried out both at the request of the parties, and at the initiative of the court. In cases where the examination of a person is accompanied by his exposure, the law provides for a special procedure. In this case, after the court makes a decision on the examination, a doctor or other specialist is summoned to the court session. According to the law, the court is obliged to establish the identity of the summoned person, to determine his ability to perform the action entrusted to him, to find out the opinion of the parties on the admission of this person to the trial, to explain to him the rights as a specialist (Article 58 of the Code of Criminal Procedure), to warn about the responsibility for disclosing data that has become eMy known in connection with participation in legal proceedings in a criminal case. After performing this procedure, the doctor is given the opportunity to examine the examined person in a separate room, where the doctor draws up an examination report. Then the doctor and the testified return to the courtroom. Vran, in the presence of the parties and the person being examined, informs the court about the traces and signs found by him on the body of the person being examined, and provides the court with the certificate of examination drawn up by him during the investigative action. Representatives of the parties and the court have the right to ask him questions related to the investigative action carried out. By decision of the court, the certificate of examination is attached to the materials of the criminal case.
The judicial investigation is the central part of the trial, in which the court, in the conditions of the most complete implementation of the principles of the criminal process, examines all available evidence in order to establish the actual circumstances of the crime.
The activity of the court and the parties in the study of evidence, which is the content of the judicial investigation, creates the foundation on which the subsequent judicial debate and the court verdict are based. Therefore, the legality and validity of the sentence is largely determined by the quality of the judicial investigation.
The judicial investigation is not a repetition of the preliminary investigation. This is an independent study of all the actual circumstances of the case, carried out regardless of the materials previously collected during the investigation. The judicial investigation is carried out by other subjects of procedural activity- by the court with the active role of the parties and other participants in the process, and simultaneous analysis of all evidence is ensured with different positions.Judicial investigation is underway
in a special procedural form of a vowel, oral, direct, continuous study of evidence, which makes it possible to most reliably recreate the picture of what happened. Finally, the court is not bound by the conclusions of the investigator and the prosecutor and the evidence they have received. In the course of proving in a judicial investigation, all possible versions events;
the court does not follow one of them, which is formulated in the indictment, and is obliged to make a decision based on the evidence examined in the court session, including additional data obtained by the court.
Due to the specifics of the procedural conditions of proving in a judicial investigation, the actions of the court in the study of factual data have a certain difference from the investigative actions carried out during the investigation of crimes. Although the law provides for the possibility of the court to perform any investigative actions (Article 70 of the Code of Criminal Procedure), in practice, in a judicial investigation, search, seizure, and exhumation of a corpse are excluded. Significantly limited is the production at the court of identification and confrontation, which more often appear here as an integral part of the interrogation by the court of certain persons. As the main judicial actions characteristic of the process of proving in a judicial investigation, the Code of Criminal Procedure names the interrogation of the defendant, victim, witness, examination, inspection of material evidence, disclosure of documents, inspection of the area and premises. However, the conduct of an investigative experiment, examination, and obtaining samples for research is not excluded.
The examination of evidence in a judicial investigation is preceded by the announcement of the documents formulating the charge, as well as the discussion and establishment of the procedure for the examination of evidence.
The purpose of the reading of the indictment is to publicly announce which charge is the subject of the trial. In cases where the accusation is changed by the judge, when deciding on the appointment of a court session, the decision of the judge is also announced (part 1 of article 278 of the Code of Criminal Procedure).
If no preliminary investigation or inquiry into the case has been carried out, the judicial investigation begins with the announcement of the victim's statement (Part 2, Article 278 of the Code of Criminal Procedure). If the case is presented civil action, the statement of claim should also be made public.
The Code of Criminal Procedure of the Russian Federation does not establish (for most cases, with the exception of those considered by the jury), who should disclose these documents. In practice, they are usually read
presiding. Sometimes it is entrusted to the people's assessor. However, this practice gives the activity of the court an accusatory character, which is not consistent with its position in the adversarial process, in which the procedural function of the prosecution is separated from the function of the court to resolve the case. The indictment, proceeding from the logic of the division of procedural functions, must be announced by the prosecutor, and in his absence, by the secretary of the court session. The victim and the civil plaintiff read out their statements themselves.
After the announcement of the indictment, the court finds out the attitude of the defendant to the charge, for the study of which the case is to be tried. The presiding judge asks the defendant (and if there are several, then each of them), whether he understands the charge, if necessary, explains the essence of the charge to the defendant and asks if he pleads guilty (Article 278 of the Code of Criminal Procedure). At the request of the defendant, the presiding judge gives him the opportunity to motivate his answer so that he can fully disclose his attitude to the prosecution.
This is followed by a discussion and establishment of the procedure for examining evidence, i.e. decision by the court with the participation of the parties of the issue of the sequence of consideration of all available in the case and additionally submitted data. While regulating in detail the procedural order of each judicial action, the law, at the same time, does not establish a predetermined sequence of their production due to the specifics of judicial evidence in each criminal case. It gives the court the right at the beginning of the judicial investigation to determine the most appropriate procedure for examining the case for the examination of evidence. To this end, the court listens to the proposals of the accuser, the defendant, the defense counsel, the victim, the civil plaintiff, the civil defendant and their representatives on the sequence of interrogations of the defendants, victims, witnesses, experts and issues a ruling (decree) on the procedure for examining evidence (Article 279 of the Code of Criminal Procedure). At any time of the judicial investigation, the court has the right to change the previously chosen procedure, on which a corresponding decision is also made.
The court establishes the order of investigation of various sources of available evidence, decides, for example, when to interrogate the defendants, witnesses, victims, determines the moment of referring to each specific evidence from those belonging to a certain type, i.e. decides in what sequence to interrogate the defendants, in what order to interrogate witnesses, etc. Wherein
the court takes into account the attitude of the defendant to the charges brought, the possibility of influencing his testimony by the testimony of other interrogated persons, the volume and significance of the information contained in a certain source of evidence, the possibility of verifying some evidence with the help of others, etc.
The most commonly used procedure is that the defendant is first interrogated if he wants to testify, and then the victim, witnesses, and other evidence is examined. Thus, the court and all participants in the trial are immediately introduced to the course of the case, and the defendant exercises his right to defense to the greatest extent. If there are several defendants, then those who plead guilty and expose their accomplices are usually interrogated first, although this procedure may contribute to the manifestation of an accusatory bias and overestimation of the accused's confession of guilt.
In accordance with Part 2 of Art. 287 of the Code of Criminal Procedure, the victim, as a rule, is interrogated earlier than witnesses due to the fact that, being interested in the outcome of the case, he must be in the courtroom during the interrogation of all witnesses and have the opportunity to take part in the study of their testimony. The sequence of interrogation of witnesses can be established depending on the significance of their testimony, as well as the chronological sequence of the development of the crime and its individual episodes.
The examination in court should be based on the study of other evidence, but its production should not be unreasonably delayed, since this may adversely affect the verification of its conclusions.
Inspection of physical evidence, inspection of the area and premises, disclosure of documents, which are often referred to the end of the judicial investigation, in a particular case may be more effective during the interrogation of the defendant, victim and witness.
When considering complex, large-scale cases, it is advisable to establish a procedure for examining evidence in relation to each episode separately. This helps to focus the attention of the court and the participants in the trial on a certain part of the charge and to clarify all the circumstances related to it more fully. Sometimes, depending on the degree of complexity of the case and the amount of evidence, only the testimonies of the accused or the testimonies of the accused and witnesses are checked episode-by-episode, while “steel evidence is examined in relation to all episodes.
Interrogation of the defendant. As a result of this action, it becomes known important information about many circumstances of the committed crime or about the facts refuting its commission, the position of the defendant and the content of his arguments are fully disclosed with partial or complete denial of guilt by him. In order to ensure the defendant's right to defense, the completeness of the study of evidence, the court must interrogate him on all counts of the accusation.
At the same time, giving evidence in court is a right, not a duty, of the defendant. The accused is not obliged either to prove his innocence (Article 49 of the Constitution of the Russian Federation), or to report the circumstances of the crime if he admits his guilt. Inviting the defendant to testify about the accusation and the circumstances of the case known to him (part 1 of article 280 of the Code of Criminal Procedure), the presiding judge must at the same time explain to him that, according to Art. 51 of the Constitution of the Russian Federation, he is not obliged to testify against himself and his close relatives. Refusal to testify cannot be considered as an admission of guilt or as a violation of the order of the court session and entail any negative consequences. In this case, the presiding judge must explain to the defendant the importance of communicating information known to him in order to protect his rights and legitimate interests. The defendant may exercise his right to testify during the entire trial.
The interrogation of the defendant begins with his free story. The defendant has the right to report everything that he considers necessary in this case. Judges and other participants in the trial should not stop him, interrupt him with questions. But the presiding judge and the composition of the court may raise separate questions of a clarifying nature. If the defendant speaks about circumstances that are not relevant to the case, the presiding judge has the right to interrupt him, proposing to testify on the merits.
After the defendant has presented his testimony, the court and the parties, in the sequence established by law, put questions to him. They can be aimed at clarifying, supplementing and verifying the reported information. Leading questions containing a hint or suggesting a specific answer are not allowed.
The presiding judge and other judges are the first to ask questions to the defendant. Further, the interrogation is conducted by the prosecutor, the victim, the civil plaintiff, the civil defendant and their representatives, the defense counsel. The last to ask questions are the other defendants and their defense lawyers (Part 1, Article 280 of the Code of Criminal Procedure). The right to ask questions
the defendant also possesses an expert (Article 288 of the Code of Criminal Procedure). The law allows judges to ask questions of the defendant at any time during the trial. When posing questions, the presiding judge has the right to eliminate those of them that are not relevant to the case.
Enshrining in law the duty of judges to be the first to interrogate the defendant, as well as victims, witnesses, experts, leads to the fact that the main burden of establishing the circumstances of the case indicated in the indictment falls on the court, and the parties do not show due activity in proving. As a result, the court performs an accusatory function that is not characteristic of it in an adversarial process, which calls into question the objectivity, impartiality of judges and undermines the principle of adversarialism and equality of the parties. , in which they are first interrogated by the prosecutor and other participants in the trial, who carry out the function of the prosecution, then by those whose activities are aimed at the defense, and the last by the judges, if they have such a need.
____________________
* Such an organization of the judicial investigation is provided for in the Concept of judicial and legal reform, implemented in the norms of the Code of Criminal Procedure on the jury trial and is one of the significant prospects for reforming judicial research in accordance with international legal standards for the organization of justice, carried out by an independent and impartial court, from which it is impossible to demand the performance of functions incompatible with his status (See Article 14 § 1 of the International Covenant on Civil and Political Rights, “Procedures for the effective implementation of the basic principles of the independence of the judiciary” , approved by the resolution of the UN Economic and Social Council of 1989, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms)
The testimony of the defendant is not limited to his initial interrogation. The law provides the defendant with the opportunity to testify with the permission of the presiding judge at any time during the judicial investigation (part 1 of article 280 of the Code of Criminal Procedure). Defendants, as a rule, also testify in connection with the examination of other evidence: interrogations of other defendants, victims, and so on.
In order to ensure a more complete clarification of the circumstance about which the defendant testified, the presiding judge, after his interrogation by one of the participants in the trial, grants the other participants the right to ask questions concerning the same facts. The presiding judge himself and other judges may also put such questions. In addition, the participants in the trial, having asked questions to the defendant, have the right, with the permission of the presiding judge, to raise questions about the fact under investigation to the previously interrogated persons. - other defendant, victim, witness.
In order to eliminate the negative influence of an accomplice on the truthfulness of the testimony of the interrogated, the law allows the interrogation of the defendant in the absence of another defendant. The court issues a ruling (decree) on making such a decision. The removal of one of the defendants during the interrogation of an accomplice, if this is required by the interests of establishing the truth, is allowed only in exceptional cases, since the absence of the defendant during the examination of evidence may hinder the exercise of his right to defense. In order to exclude such consequences, the presiding judge, after the absent defendant returns to the courtroom, informs him of the content of the testimony given in his absence, and provides an opportunity to ask questions to the interrogated defendant (part 3 of article 280 of the Code of Criminal Procedure).
The court and the participants in the trial may not, in order to supplement and verify the testimony of the defendant, refer during his interrogation to the evidence available in the case that has not yet been examined during the judicial investigation. It is not allowed to replace the oral testimony of the defendant in the court session, freely expressing his position and arguments to the court, by the announcement of the protocol of his interrogation at the preliminary investigation and the proposal to answer the question of whether he confirms these previous testimony. . Only in certain specially stipulated cases, the law allows for the disclosure and further study of previous testimony obtained during the preliminary investigation or previous trial, and also allows the reproduction of an earlier sound recording of these testimony. This is noted in the minutes of the court session. The law allows listening to a sound recording only after the defendant's previous testimony contained in the interrogation protocol or the protocol of the previous court session has been read out.
In accordance with Art. 281 of the Code of Criminal Procedure, the disclosure of the testimony of the defendant, as well as the reproduction of the audio recording of these testimony attached to the protocol of interrogation, is permissible if there are significant contradictions between the previously given testimony and the testimony obtained during the trial. The disclosure here aims to establish the reasons for the discrepancy
in the testimony. To do this, it is important to listen to detailed explanations of the defendant regarding the indicated reasons, to find out the conditions for the initial interrogation of the defendant, to analyze in detail the content of the information obtained during it. trial in the absence of the defendant. The list of the indicated grounds for the disclosure of testimony is exhaustive. The court has no right either to read out the previous testimony, or to refer to the testimony read out by anyone, if there were no those specified in Art. 281 of the Code of Criminal Procedure of the grounds for disclosure, as well as if the accused, when he pleaded guilty at the preliminary investigation, was not explained under Art. 51 of the Constitution of the Russian Federation the right not to testify against oneself.
Interrogation of witnesses In accordance with Part 1 of Art. 283 of the Code of Criminal Procedure, witnesses are interrogated separately and in the absence of witnesses who have not yet been interrogated, in order to exclude the influence of the interrogated person on the formation of subsequent testimony of other persons. In some cases, it becomes necessary to interrogate a person who has not previously been called as a witness, but is present in the courtroom. Practice allows the interrogation of such persons as witnesses by a court order. But the fact of the presence of a person during the trial during the interrogation of other witnesses must be taken into account when assessing the testimony of this person.
Before interrogation, the presiding judge establishes the identity of the witness, explains his civic duty - the duty to truthfully tell everything known in the case - and warns of criminal liability for refusing to testify and for giving knowingly false testimony. A signature is taken from the witness stating that his duties and responsibilities have been explained to him. The witness certifies this by his signature in the minutes of the court session or on the subscription form attached to the minutes. Witnesses under the age of sixteen cannot be held criminally liable for such crimes as refusing to testify and knowingly giving false evidence. Therefore, the presiding judge explains to them only the importance for the case of full and truthful testimony (part 2 of article 282 of the Code of Criminal Procedure).
Further, the presiding judge clarifies the attitude of the witness to the defendant, the victim, and other participants in the process. These Data are relevant to the assessment of the testimony of the witness. The witness is then asked to report everything he knows about the case. The free story of the witness should not be interrupted. After his At the end, the witness may be asked questions by the court and participants in the process in the same sequence as the defendant. Judges have the right to put questions to the witness at any time during the trial.*
____________________
* This procedure, in which the witnesses are first interrogated by the court and the judges can, if necessary, additionally at any time during the process, continue this interrogation, indicates the active role of the court in the judicial investigation, is not consistent with its consistently adversarial structure. The court should not act as parties and take on themselves the task of proving the accusation or refuting it. Therefore, in a jury trial, interrogation is always initially carried out by the parties
If the witness is summoned to court at the request of one of the participants in the trial, this participant asks questions first, and then the witness is interrogated in the usual manner (part 3 of article 283 of the Code of Criminal Procedure). Questions that are not relevant to the case are eliminated by the chairman.
A witness, when testifying in court, cannot read out a pre-prepared text. However, in cases where the readings refer to any digital and other data that are difficult to keep in memory (explanations to diagrams and drawings, specifications mechanisms, products, etc.), he can use written notes. Notes must be presented to the court at its request.
The witness is allowed to read the documents in his possession relating to his testimony. These documents are presented to the court and, by its determination (decree), may be attached to the case (Article 284 of the Code of Criminal Procedure). At the request of the participants in the trial, the notes and documents used by the witness are presented to them for review. They have the right to draw the attention of the court to certain circumstances related to the notes and documents used by the witness.
A comprehensive and complete examination of all evidence in court requires, in some cases, the disclosure of the testimony given by the witness during the preliminary investigation, as well as the reproduction of a sound recording of his testimony. The law allows this, firstly, if there are significant contradictions between the previous testimony of the witness and his testimony in court, and secondly, if the witness is absent from the court session for reasons that exclude the possibility of appearing in court (Article 281 of the Code of Criminal Procedure). In accordance with the clarification of the Supreme Court of the Russian Federation and established practice, the circumstances excluding the appearance of a witness in court include, along with the death of a person, his serious illness, long-distance and long-term business trip, being on a voyage, leaving his place of residence when it is impossible to establish whereabouts.* If it was not possible to establish the reason for the absence of a witness, his testimony cannot be read out. The testimonies read out must be examined during the judicial investigation. A sound recording may be reproduced only after the announcement of the protocol of the interrogation during which it was made. At the hearing, the testimony of a witness interrogated by the court in accordance with Part 2 of Art. 277 of the Code of Criminal Procedure, i.e. if the court in the previous session on the case decided to postpone the trial, but heard the witnesses who appeared in order not to call them a second time.
______________________
* "Air Force of the RSFSR 1975 Ko 12 S 5-6,1997 №2 From 9-10
In the course of the judicial investigation, it may be necessary to re-examine the witness or to pose certain questions to him. Therefore, the interrogated witnesses remain in the courtroom and cannot leave until the end of the judicial investigation without the permission of the court. The presiding judge in some cases may allow the interrogated witnesses to leave the courtroom before the end of the judicial investigation, having previously heard the opinion of all participants in the trial (Article 283 of the Code of Criminal Procedure).
In order to ensure the credibility of the testimony of a minor witness, the law provides for some special rules for questioning him.*
_______________________
* See chapter 18 of this textbook,
Interrogation of the victim is carried out according to the rules established for the interrogation of witnesses (Article 287 of the Code of Criminal Procedure).
Expertise production. In order to establish facts relevant to the case, the study of which requires special knowledge in science, technology, art or craft, the court may conduct an expert examination at the court session, regardless of whether it was carried out in the course of the preliminary investigation. If a person who has not previously conducted an expert examination on this case, then the court in the preparatory part of the trial issues a decision (determination) on the appointment of an expert examination. The decision to conduct an examination can also be made during the judicial investigation.
The expert summoned to the court session and present at the court, in accordance with the rights granted to him, participates in the study of all evidence that relates to the subject of the expert examination. He has the right to ask questions to the defendant, the victim, witnesses, to take part in the examination of material evidence, the area and the premises, while drawing the attention of the court to the circumstances related to the subject of the examination;
participate in the production of other actions of proof that are relevant for giving an opinion (Articles 83, 288 of the Code of Criminal Procedure).
After the judicial investigation has clarified all the circumstances that are important for giving an opinion, the presiding judge invites the accuser, defense counsel, defendant, as well as the victim, civil plaintiff, civil defendant and their representatives to formulate questions in writing to the expert. If any of the participants cannot, for valid reasons, submit questions in writing, they can be stated orally. These questions are recorded in the minutes of the court session.
The presiding judge announces all the questions raised, after which the participants in the trial express their opinion on them. Further, the court considers these issues, eliminates those that do not relate to the case or the competence of the expert, and also formulates additional questions. The expert cannot be asked legal or other questions that go beyond his special knowledge. The final list of questions in accordance with Art. 261 and 288 of the Code of Criminal Procedure, the court formulates in the ruling (ruling) issued in the deliberation room. This document also indicates which issues and for what reasons the court rejected. Questions to the expert must be formulated in the ruling (decree) of the court both in cases where an expert who has not previously participated in the examination is summoned to the court session, and when the expert has already conducted an examination during the preliminary investigation.
After the ruling (decree) of the court is announced, the expert is given time to prepare an opinion, in connection with which a break in the court session may be announced or other judicial actions not related to the examination may be continued. Depending on the complexity of the examination, the need for laboratory tests and other circumstances, the expert carries out his activities either directly in court or outside the court. The court must ensure
conducting the necessary research by an expert. The expert submits a conclusion in writing.
Along with answers to the questions of the court, it may contain conclusions related to the competence of the expert and on those circumstances of the case, questions about which he was not raised. The expert's opinion and the ruling (decree) of the court, containing a list of questions for examination, are attached to the case (Article 288 of the Code of Criminal Procedure).
After the expert announces the conclusion, he may be asked questions in order to clarify or supplement the conclusion given by him. Questions to the expert are asked by all participants in the trial in the same manner as during interrogation of other persons in court (Article 289 of the Code of Criminal Procedure). Questions and answers of the expert are recorded in the minutes of the court session.
The examination in court is not repeated or additional in relation to the examination conducted during the preliminary investigation. This is always an independent study of the expert, although objectively his conclusions may coincide with the conclusion given during the preliminary investigation. The court may also appoint and conduct an additional or repeated expert examination after the first expert examination in court proceedings (Article 290 of the Code of Criminal Procedure). An additional expert examination is appointed after the expert gives an opinion in court, if it was not possible to eliminate the lack of clarity and completeness of his conclusions by interrogating the expert. A re-examination is appointed by the court if the expert’s opinion is unfounded, contradicts the actual circumstances of the case, or if new data are established during the trial that may affect the expert’s conclusions, as well as in cases where significant violations of the criminal procedure were committed during the appointment and production of the examination. law. However, the disagreement of the court with the conclusions of the expert is not a basis for the mandatory appointment of a re-examination. When resolving this issue, one should take into account the presence in the case of other evidence on the subject of the examination, as well as the practical possibility of conducting a repeated examination.
After the expert gives an opinion and checks it in the judicial investigation, the court has the right, taking into account the opinions of the participants in the trial, to release the expert from further presence in court, as indicated in the minutes of the court session.
The law does not require the mandatory participation in the trial of an expert who conducted an examination at the stage of preliminary investigation. The court has the right to consider the case in the absence of an expert and confine itself to the announcement of his conclusion obtained during the preliminary investigation. In accordance with established practice, an expert who has previously conducted an examination is summoned to court in cases where his conclusions are disputed by the participants in the process or are important in the system of evidence. But if the examination is not carried out in court anew, the previously given conclusion also cannot be accepted by the court without a deep and comprehensive study during the judicial investigation. It is subject to verification and evaluation along with all other evidence.
If there are grounds to doubt the competence or objectivity of the expert who gave an opinion during the preliminary investigation, the court has the right to summon another expert to the court session.
Conducting an examination in court is the main, but not the only form of using special knowledge in court proceedings. Some issues of a special nature can be clarified by calling a specialist to the court session. He is invited in cases where there is no need to conduct research, but special knowledge and skills may be required. The participation of a specialist is always carried out within the framework of any judicial action of proof carried out in court and cannot be considered as an independent action. Explanations given by a specialist, unlike an expert's opinion, are not a source of evidence.
Inspection of physical evidence carried out by the court and all participants in the proceedings. If necessary, this evidence may be presented to witnesses, an expert and a specialist. This action can be carried out at any time of the judicial investigation, both at the initiative of the court and at the request of the participants in the trial. Examination is subject to physical evidence obtained during the preliminary investigation, as well as presented during the trial (Article 291 of the PC). Examination of physical evidence should be carried out in such a way as to prevent damage to them. Precautions must also be taken against the possible destruction of this evidence by the defendant.
Persons who are presented with material evidence have the right to draw the attention of the court to their certain evidentiary features or other circumstances related to the examination. These statements are recorded in the minutes of the court session. The defendant, victim, witnesses, expert may be asked questions about the material evidence being examined.
Inspection of material evidence, which due to bulkiness and other reasons cannot be delivered to the court, is carried out, if necessary, by the entire composition of the court at the location of this evidence (Article 291 of the Code of Criminal Procedure).
If there is material evidence at the disposal of the court, the court is not entitled to replace its examination with the announcement and examination of the protocol of examination drawn up during the preliminary investigation. Such a right arises for the court only in the case when, for some reason, material evidence has not been preserved by the time the case is considered.
Announcement of documents. In order for the information contained in the documents to be used as the basis for the conclusions of the court, they must be announced and examined at the court session. Documents both attached to the case and presented during the trial may be disclosed. Not all documents are subject to disclosure, but only those of them that set out or certified circumstances relevant to the case (acts of audits, separate accounting documents, characteristics, health certificates, criminal records, etc.). The court must be announced, if necessary, and listed in Art. 87 of the Code of Criminal Procedure protocols of investigative actions.
Documents are read out in full or in part at any moment of the judicial investigation at the initiative of the court or at the request of the participants in the trial (Article 292 of the Code of Criminal Procedure). When examining a disclosed document, the court may interrogate the person who compiled it or who has any information about it;
receive other documents containing the same information for verification, etc. Along with written documents, the court also examines annexes to the protocols of investigative actions in the form of diagrams, plans, photographs, films, and magnetic recordings.
If the document is presented at the court session, the court must ensure that the participants in the proceedings, who express their opinion on the need to study this document, familiarize themselves with it. In cases where the document is recognized by the court as relevant to the case, it is subject to disclosure at the court session, is examined according to general rules and is attached to the case by court ruling (decree) (Article 292 of the Code of Criminal Procedure). All documents read out in court shall be attached to the case.
Inspection of the area and premises. The need for the production of this judicial action arises in cases where the court cannot establish the circumstances relevant to the case or eliminate the contradictions that have arisen without a direct survey and study of the relevant area or any premises. This inspection is attended by the entire composition of the court, all participants in the trial, and sometimes also witnesses, an expert and specialists (Article 293 of the Code of Criminal Procedure). The court issues a ruling (decree) on the inspection of the area or premises, which indicates the purpose for which it is carried out, what is subject to inspection and who will take part in it.
Departure of the court and participants in the proceedings to inspect the area and premises - component judicial investigation. Therefore, upon arrival at the place of inspection, the presiding judge announces the continuation of the court session, after which preparatory actions are carried out and the court proceeds to the inspection. -During the examination, the defendant, victim, witnesses, experts and specialist may be asked questions. The persons participating in the inspection have the right to draw the attention of the court to everything that, in their opinion, will contribute to the clarification of the circumstances of the case (Article 293 of the Code of Criminal Procedure). To consolidate the results of the inspection, the court may use such scientific and technical means as photography, filming, drawing up plans and diagrams. The entire course and results of the inspection are reflected in the protocol of the court session.
End of trial. After all judicial actions have been carried out and all evidence has been examined, the presiding judge asks the accuser, defendant, defense counsel, victim, civil plaintiff, civil defendant and their representatives whether they wish to supplement the judicial investigation and with what exactly (Article 294 of the Code of Criminal Procedure). Each of the listed participants in the trial has the right to request that the judicial investigation be supplemented by obtaining and examining new evidence; posing additional questions to persons previously interrogated in court; announcement of separate materials of the preliminary investigation not read out by the court; entering into the minutes of the court session a statement regarding any circumstances revealed during the verification of evidence. Each petition to supplement the judicial investigation is subject to discussion by the court, which issues a ruling (ruling) to satisfy the petition or to refuse it. If the petition is satisfied, the court continues the judicial investigation.
If there were no additions to the judicial investigation, and also after considering the petitions and performing the additional judicial actions deemed necessary, the presiding judge declares the judicial investigation completed (Article 294 of the Code of Criminal Procedure). From this moment on, the court has no right to investigate, and the participants in the trial cannot present evidence or ask for it to be demanded by the court, except for the cases of resumption of the judicial investigation provided for by law.
Only having made a decision to resume the judicial investigation, the court can start again to examine the evidence, including those that for some reason were not considered by the court. This resumption is possible by a reasoned ruling (decree) of the court if there are the following grounds: 1) when the participants in the judicial debate petition for the resumption of the judicial investigation due to the need to present new evidence (part 4 of article 295 of the Code of Criminal Procedure), 2) if the defendant in last word informed about new circumstances that are significant for the case (part 3 of article 297 of the Code of Criminal Procedure);
The activity of a criminal investigator can be effective only if it is properly organized, and all the actions of the investigating authorities are brought into a certain system. The investigation of crimes is, in fact, the work of checking the versions put forward and establishing the true circumstances of what happened. Planning is the logical basis for organizing an investigation.
The essence of planning is:
in determining the tasks to be solved;
logical development of a system of actions that ensure the successful solution of these problems with minimal time, effort and money.
The definition of the objectives of the investigation begins with the establishment of the circumstances that must take place if the version is correct. For example, the statement of a citizen about a robbery by her unknown man, to whom she resisted, is checked. During the arrest of a suspicious subject, a version was put forward about his involvement in the robbery. If the version is correct, then:
on the clothes and body of the suspect there must be traces of the victim's resistance;
the suspect at his place of residence, work may have money and valuables taken from the victim;
3) there must be traces of the victim and the suspect at the scene of the incident, etc.
From this follow the tasks of the investigator to check the presence of traces on the body and clothes of the suspect, as well as money and valuables of the victim, traces at the scene.
The development of a system of actions that need to be carried out is the definition of ways and means of solving the formulated tasks. In our example, this is the interrogation and examination of the suspect, his personal search, inspection of the scene, searches at the place of residence, work.
The distribution of available forces and means as an element of planning will consist in determining the performers of each of the activities and the deadlines for implementation. Employees of the operational-search subdivisions are usually involved in solving the crime. It is expedient for them to instruct the suspect to be checked according to the records in order to establish whether he was detained earlier, whether he was brought to criminal responsibility, etc. It is necessary to take measures to search for persons who can testify about the facts of interest to the investigation.
The organization of the investigation of crimes includes the optimization of the work of the investigator, the organization of the interaction of a group of investigators with operational units and other law enforcement services.
In forensic tactics, it is customary to distinguish between:
planning a criminal investigation;
planning of separate investigative and search actions.
In the first case, methods and means of solving investigative tasks in a criminal case as a whole are identified. Planning individual investigative and search actions helps to determine the ways and means of effectively solving intermediate tasks.
Each type of planning is specific. However, there are some general provisions that should guide the preparation of any investigation plan. These provisions are referred to as the planning principles and include:
individuality;
dynamism;
reality;
concreteness.
The individuality of planning an investigation is related to the peculiarity of a particular crime, which must be taken into account when drawing up a plan. Individuality does not preclude the possibility of identifying general trends in the same situations. Common features Homogeneous crimes contribute to the fact that at specific stages of the investigation, the same investigative actions and operational activities that make up a certain algorithm can be performed. However, the individuality of each crime always requires creativity to drawing up a plan, taking into account both general patterns and the specifics of the event under investigation. In other words, along with the algorithmic approach, a creative, heuristic approach is also needed.
Dynamism involves approaching the investigation and its planning as an evolving process. That is why they say that the plan is not a dogma, but a clear guide to action.
During the course of the investigation, new information, new facts emerge. Therefore, some of the planned actions lose their meaning, there is a need for additional ones. The dynamics of the investigation requires the flexibility of the plan, its compliance with the changed situation and new tasks.
The reality of the plan is its balance in terms of resources and time limit. The first means that the volume of work included in the plan must be ensured necessary forces and means. Balance in time consists in the execution of the number of actions scheduled for a given period of time. The plan should be tight, but within real opportunities investigator. Otherwise, it will not be a means of a clear organization of work, some of the activities will remain unfulfilled, and the quality of the investigation will suffer. And if the planned actions and deadlines are practically unrealistic, then the investigation of the crime is doomed to failure from the very beginning.
Concreteness implies a clear formulation in the plan of tasks to be solved during the investigation, actions scheduled for implementation, deadlines and executors.
Planning methodology. Planning a criminal investigation is a multi-stage process in which a number of common building blocks can be identified. These include obtaining initial data, determining the objectives of the investigation, the totality of investigative actions and search activities necessary to solve them, establishing the order, deadlines and executors, drawing up a plan.
Obtaining initial data means analyzing the materials of the criminal case to form a clear idea of what forensic evidence is available, which of them require further verification, how to obtain new evidence. Next, you need to familiarize yourself with the data obtained in the course of operational-search activities, find out which teaching materials and recommendations are given in the forensic literature to use the accumulated experience in investigating criminal cases of the corresponding category.
The definition of the objectives of the investigation is the clarification of the facts and circumstances that should be established in order to objectively resolve the criminal case. The logical basis for this is the derivation of consequences from the versions put forward in the case. A reliable establishment of the presence or absence of such facts makes it possible to decide which of the versions being worked out is true and which should be recognized as erroneous. Some other tasks may also be envisaged.
The determination of the necessary set of investigative actions and search activities takes place taking into account the criminal case under investigation. In this regard, the following recommendations are important:
a) the investigation plan for the case should be drawn up in such a way that the planned procedural actions and operational measures guarantee a thorough check of all the investigative leads put forward, the solution of all upcoming tasks;
b) the plan includes only those actions that guarantee the achievement of an objective result;
c) the planned investigative actions must ensure the reliable establishment of all the circumstances constituting the subject of proof in the criminal case under investigation.
Establishing the sequence, timing and executors of the planned investigative actions and operational measures should ensure the parallel development of the versions put forward and the completion of the investigation on time. It is necessary to take into account in a timely manner the nature and significance of the planned actions to detect and secure traces and material evidence that can quickly change or disappear in order to prevent the suspect (accused) from hiding from the investigation and court, and even more so from committing new crimes. When planning, forms of public participation in solving the crime, searching for the guilty person, identifying the causes and conditions that contributed to the commission of the crime are provided.
5. Drawing up an investigation plan. Planning is the mental activity of the investigator, who determines the tasks of the investigation and how to solve them, the alignment of forces and means. Its result is usually written plan. In the course of planning for complex criminal cases, some supporting documents are compiled to accumulate and systematize information. In bodies equipped with computers, information is entered into automated databases.
There is no single and universally binding form of the investigation plan. Sometimes it is compiled in the form of a list of investigative actions and operational-search measures, indicating the tasks to be solved, the executors and the deadlines for execution. This is preceded by summary case story. Most often, the plan is drawn up in the form of a table consisting of several columns. In the left (first) version, the verified version is indicated, then the circumstances to be clarified. Further in order: the name of the investigative action or operational-search measure; term and order of production; executor; a note on the results achieved.
Network planning has before the usual scheduling undeniable benefits. The purpose of its application is to improve the quality of planning, reduce the time of investigation by rational use time and constant monitoring of the implementation of the actions outlined in the plan. Calculation of the parameters of the network diagram on a personal computer helps to choose the option of activity that is optimal in terms of time and money. This method contributes to a clear formulation of all intermediate goals and objectives leading to the achievement of the main result of investigative activity, helps to visually trace the continuity between the initial and subsequent stages of the investigation of a crime, to identify “bottlenecks” in work in advance, to provide investigators with comprehensive information about the facts in a timely manner. state of affairs for each day of the investigation. Mastering the techniques of network planning already during the period of study is one of the important tasks of teaching forensic science at a university.
Supporting documents that facilitate planning and accounting for the work done are of several types. The most common are link schemes and so-called analytical references (sometimes they are called personal accounts).
Communication schemes are drawn up for multi-episode group cases. They help to organize and with the help of symbols clearly show which of the accomplices was involved in which episode of the crime. Schemes allow, for example, to trace the movement of contraband items from the moment they are imported into the country to the moment they are sold, which is often done through a chain of intermediaries. According to the scheme, the investigator sees which episodes have been worked out and which ones need additional verification. This makes it easier to plan, analyze the case and determine its judicial perspective.
During the investigation, there is a need to systematize data on the crimes of each person involved in the case. Information comes from different sources, the information is quite extensive and contradictory, and therefore it is far from easy to understand them. In such cases, the investigator keeps a record sheet (“personal account”) for each suspect (accused). In it, in the order of receipt, all data on a particular subject are entered with an indication of their sources.
Systematized in one document, information about a particular accused facilitates the assessment of the degree of proof of his guilt, eliminates the search for data among the extensive materials of a criminal case, often multi-volume. This is important for concretizing the direction of further investigation. Such a document is very useful when an accusation is formulated, in particular an indictment is drawn up.
In connection with the requirement of Art. 4 of the Code of Criminal Procedure on the obligation of the bodies of inquiry, preliminary investigation, the prosecutor's office and the court to initiate, within their competence, a criminal case on each fact of a crime, in practice many questions arise, and among them, first of all, the question: does this provision apply to cases where the fact of committing a crime specific person revealed during the inquiry or preliminary investigation?
This question has a direct practical value, since it is in practice that courts often refer criminal cases to additional investigation on the grounds that during the process of inquiry or preliminary investigation of newly discovered crimes, no criminal cases were initiated, although episodes criminal activity were later incriminated by the accused, i.e. According to the court, this was done in violation of Art. 4 of the Criminal Code of Ukraine. Is it so? Consider this question in details. In the process of inquiry and preliminary investigation, a wide variety of crimes can be established with the help of well-known procedural means. Some of them may be only an episode in ongoing criminal activity and therefore are assessed as identical or of the same name with those on the fact of which a criminal case has already been initiated. For example, during the investigation of a case initiated under Art. 140 of the Criminal Code, five new episodes of theft are being investigated. Is it necessary in the course of the investigation to issue five new resolutions on the initiation of a criminal case, to accept them to the same investigator for his proceedings and, guided by Art. 26 of the Code of Criminal Procedure, connect new cases with the one that is already in the production of this investigator? It seems not. The commission of identical crimes (in our example, new thefts) indicates continued criminal activity by the same person, and since a case has already been initiated in relation to one of its episodes, it is not necessary to initiate new criminal cases for each newly established fact.
At the same time, one should not confuse similar or identical crimes with homogeneous ones. The latter include those offenses that are included in one and the same chapter of the Criminal Code. Identification of new facts of criminal activity prohibited by a specific norm of the Criminal Code of this chapter involves the initiation of new criminal cases. With regard to identical crimes, it is not necessary to issue a decision to initiate a criminal case for each newly revealed criminal fact.
At the same time, the time and place of commission of the same (identical) crimes does not matter. The main thing is that the case on one of the episodes of identical criminal activity has already been initiated and the investigation of other episodes of such crimes should be continued in the same proceedings.
In this case, the investigator, guided by Art. 22 of the Code of Criminal Procedure, took measures for a comprehensive, complete and objective investigation of the circumstances of the criminal case and, on this basis, charged the accused with new episodes of his criminal activity.
A different legal situation arises in the event that the person conducting the inquiry or the investigator discovers a new non-identical, even homogeneous, and even more so different crime, which should be charged to this person as a new accusation. In such cases, the investigator must initiate a new criminal case and, guided by Art. 26 of the Code of Criminal Procedure, decide whether to combine it with the one that is in its production or separate it into independent proceedings, if this does not adversely affect the comprehensiveness, completeness and objectivity of the study and resolution of both criminal cases on the merits.
If the above procedure is not observed, the actions of the investigator will be contrary to the requirements of Art. 4 of the Code of Criminal Procedure, in connection with which they should receive a negative assessment from both the prosecutor and the court.
Similarly, the issue should be resolved in cases where new persons guilty of committing a crime are identified in the process of investigation.
If an accomplice in a crime against which a criminal case has already been initiated (i.e., an organizer, instigator, accomplice or perpetrator) is identified in the course of an inquiry or investigation, then a new criminal case should not be initiated on this fact. This raises only the question of attracting this person to criminal liability as an accused and to change (supplement) the charges against those persons who were already charged with charges, but turned out to be incomplete due to the identification of new accomplices in criminal activity. What is the peculiarity of initiating such cases? First of all, in the specifics of the source of information about the crime committed, from which the body of inquiry or the investigator learns about the deed by a specific person. In this case, such a source is the materials of the criminal case and, therefore, we should talk about the direct discovery of the signs of a crime by the person in charge of the criminal case (clause 5, article 94 of the Code of Criminal Procedure). Even if the attention of the bodies of inquiry or the investigator is drawn to the new facts of criminal activity, the persons participating in the case (the victim, the defender, etc.) will still be the reason for initiating a criminal case if the body conducting the process directly detects the signs of a crime.
In this case, the decision to initiate a criminal case also has a certain specificity. If such a decision is made on the basis of statements in the pre-investigation criminal process on the basis of data obtained during the production of pre-investigation procedural actions (selection of explanations, demand for documents, etc.), then in the case under consideration, the investigator’s decision to initiate a criminal case on a new charge or against a new person is based on the totality of evidence obtained in the investigative process in the course of performing well-known investigative actions and reflected in the relevant final documents - protocols. Such documents or their copies will be selected by the investigator from the main proceedings and will be included in the structure of the new criminal case as the original documentary fund.
Thus, if the facts and circumstances underlying the decision to initiate a criminal case on an application or report on a crime have not yet been the subject of an inquiry or preliminary investigation on an initiated criminal case, then in decisions taken on the facts of the discovery of new crimes and the persons who committed them, circumstances and evidence already investigated in the process of inquiry or preliminary investigation are given.
So, if in the course of the investigation new, but identical crimes are revealed for one of which the case was initiated, then a new decision to initiate a criminal case should not be issued. In such cases, there is only the task of changing the charge previously brought against the person. If, in the course of the investigation, facts of criminal activity are revealed that qualify under the new article of the Criminal Code, then a new decision should be made to initiate a new criminal case and decide whether to combine it or separate it from the existing one in accordance with Art. 26 Code of Criminal Procedure.
More on the topic §6. Initiation of criminal cases on newly revealed criminal facts during the investigation:
- §9. Initiation of criminal cases on statements of reports on newly discovered circumstances.
- I. CRIMINAL PROCEEDINGS AND PRELIMINARY INVESTIGATION
- § 3. Initiation of proceedings due to new and newly discovered circumstances and their investigation
- §2. Initiation of a criminal case and the initial stage of the investigation
- Danilova S.I. Features of establishing and taking measures to eliminate the circumstances that contributed to the commission of a crime in the course of a preliminary investigation in criminal cases: a scientific and practical guide. - M .: VNII of the Ministry of Internal Affairs of Russia, 2010. - 114 p., 2010
