Request for a preliminary hearing in a criminal case. Petition to dismiss a criminal case at a preliminary hearing Is it possible to file petitions at a preliminary hearing

Conducting a preliminary hearing in a case is mandatory in cases where the judge, when assigning the case for hearing, is not able to single-handedly resolve the entire range of problems that have arisen in the case. By virtue of Art. 229 of the Code of Criminal Procedure, a preliminary hearing is held: 1) if there is a party’s request to exclude evidence, stated: a) after familiarization with the materials of the criminal case, b) after sending the criminal case with the indictment (indictment) to the court within three days from the date of receipt by the accused copies of this document; 2) if there are grounds for returning the criminal case to the prosecutor; 3) if there are grounds for suspension or termination of the case; 4) to decide on the consideration of the case with the participation of a jury.

The investigator is obliged to explain to the accused, his legal representative, as well as the victim, civil plaintiff, civil defendant, and their representatives the right to apply for a preliminary hearing of the case, the grounds for its appointment. Failure by the investigator to comply with the above requirements of the law is grounds for returning the case to the prosecutor.

If the petition is filed by a party after the decision has been made to send the case to court, then a preliminary hearing can be requested no later than three days from the date the accused receives the indictment (indictment). The period within which a party may file a motion for a preliminary hearing is binding on both the defense and the prosecution. If a court hearing is appointed by a single judge in the manner provided for in Art. 231 of the Code of Criminal Procedure, then the parties no longer have the right to file a petition: a) for a preliminary hearing (clause 2, part 5, Article 231 of the Code of Criminal Procedure); b) on the consideration of a criminal case by a court with the participation of a jury (clause 1, part 5, article 231 of the Code of Criminal Procedure).

The procedure for conducting a preliminary hearing is determined taking into account the tasks facing this stage, the general conditions of proceedings in the court of first instance, as well as special rules relating directly to this stage. The preliminary hearing is conducted: 1) by a single judge; 2) in a closed court session; 3) with the participation of the parties, if they expressed their desire; 4) with the participation of a translator or specialist, if provided by law.

Failure of timely notified participants in criminal proceedings to appear at a court hearing does not prevent the holding of a preliminary hearing. Notification of summoning participants to the court hearing must be sent no less than three days before the date of the preliminary hearing. The court must notify all participants in the process, including those who did not apply for a preliminary hearing.

In accordance with Part 4 of Art. 235 of the Code of Criminal Procedure, the burden of refuting the defense’s arguments about obtaining evidence in violation of the criminal procedure law is placed on the prosecutor. In accordance with this norm, the public prosecutor at the stage of preliminary hearing is obliged to determine: 1) whether in the materials of the criminal case, the petitions of the accused and his defense attorney attached to it, there is information about circumstances that exclude, according to Art. 61 of the Code of Criminal Procedure, participation of a judge, prosecutor, investigator, inquirer in criminal proceedings; 2) are there any provisions provided for in Art. 229 of the Code of Criminal Procedure, grounds for a judge to appoint a preliminary hearing; 3) whether there are grounds for the judge to make, in addition to the decision to schedule a court hearing, any other decision from those listed in Art. 236 of the Code of Criminal Procedure (on the direction of a criminal case according to jurisdiction; on the return of the case to the prosecutor; on the termination of a criminal case or criminal prosecution; on the suspension of criminal proceedings).

If the listed grounds exist, the public prosecutor must prepare motions: 1) to exclude evidence; 2) on the interrogation of persons who know anything about the circumstances of the investigative actions or the seizure and inclusion of documents in the case, with the exception of persons with witness immunity; 3) on requesting additional evidence or items relevant to the case, including summoning new witnesses, experts, and specialists to the court hearing; 4) on the demand and inclusion of material evidence and documents in the case; 5) on changing the preventive measure for the accused; 6) about a civil claim and measures to ensure it. If necessary, the public prosecutor is obliged to: 1) formulate in writing the grounds and motives for the complete or partial refusal of the charge; 2) prepare the formulation of a new charge.

To avoid misunderstandings when recording the position of the public prosecutor in the minutes of the court session, it is advisable to state it in writing for subsequent inclusion in the minutes.

A change in charges by the prosecutor may result in a change in the jurisdiction of the criminal case. In this case (Part 5 of Article 236 of the Code of Criminal Procedure), the judge reflects the change in the charges in the decision and forwards the case to jurisdiction.

Termination of criminal prosecution on the grounds provided for in paragraphs 3 and 6 of Part 1 of Art. 24 of the Code of Criminal Procedure is allowed only in cases where the accused does not object to this. Otherwise, the proceedings should continue as usual. Before dropping charges, the state prosecutor must find out the attitude of the accused.

If at the preliminary hearing other grounds for termination of the criminal case or criminal prosecution are revealed: 1) the presence of an amnesty act (clause 3, part 1, article 27 of the Code of Criminal Procedure); 2) the presence in relation to the suspect or accused of a sentence on the same charge that has entered into legal force or a court ruling or a judge’s decision to terminate the criminal case on the same basis (clause 4, part 1, article 27 of the Code of Criminal Procedure); 3) the presence in relation to the suspect or accused of an unrescinded resolution of the inquiry body, investigator or prosecutor to terminate the criminal case on the same charge or to refuse to initiate a criminal case (clause 5, part 1, article 27 of the Code of Criminal Procedure); 4) reconciliation with the victim of a person accused of committing a crime of minor or medium gravity, if this person has made amends for the harm caused to the victim (Article 25 of the Code of Criminal Procedure); 5) active repentance of a person accused of committing a crime of minor or moderate gravity (Article 28 of the Code of Criminal Procedure) - the public prosecutor may petition to terminate the criminal case or criminal prosecution, and if such a petition is made by the victim or the defense, expresses his opinion on this matter . Termination of criminal prosecution on the grounds specified in Art. Art. 25, 28 Code of Criminal Procedure, as well as paragraphs 3 and 6 of Part 1 of Art. 27 of the Code of Criminal Procedure is not allowed if the accused objects to this (Part 2 of Article 27 of the Code of Criminal Procedure).

Consideration of requests to exclude evidence at a preliminary hearing allows the parties, before the hearing of the case, to exclude from the list of evidence those that do not have admissibility properties, and evaluate the evidence without taking into account those that have already been declared unsuitable by the court.

By virtue of Part 4 of Art. 88 of the Code of Criminal Procedure, the court has the right to declare evidence inadmissible at the request of the parties or on its own initiative in the manner established by Art. Art. 234 and 235 Code of Criminal Procedure. If a motion is filed to exclude evidence, a copy of this document is given to all other participants in the process on the day the motion is submitted to the court. The obligation to serve copies rests with the court.

Evidence is recognized as obtained in violation of the law if, during its collection and recording, the following were violated: 1) human and civil rights guaranteed by the Constitution; 2) the procedure for collecting and securing them established by criminal procedural legislation; 3) if the collection and recording of evidence was carried out by an improper person or body; 4) if the collection and recording of evidence was carried out as a result of actions not provided for by procedural rules (see Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 31, 1995 N 8 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice” (as amended on February 6, 2007 )).

BVS RF. 1996. N 1; 2007. N 5.

The legislator has provided for the possibility of familiarizing the accused with the materials of the criminal case. If the materials of the criminal case are presented to the accused in custody and his defense attorney later than 30 days before the end of the maximum period of detention, then the court must necessarily cancel the preventive measure in the form of detention.

Returning the criminal case to the prosecutor to remove obstacles to its consideration by the court. The judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where: 1) the indictment or indictment was drawn up in violation of the requirements of the Code of Criminal Procedure, which excludes the possibility of the court passing a verdict or making another decision based on this conclusion or act; 2) a copy of the indictment or indictment was not served on the accused, except in cases where the court recognizes as legal and justified the decision of the prosecutor made in the manner established by Part 4 of Art. 222 or part 3 of Art. 226 Code of Criminal Procedure; 3) there is a need to draw up an indictment or indictment in a criminal case sent to the court with a decision to apply a compulsory measure of a medical nature; 4) there are provisions provided for in Art. 153 Code of Criminal Procedure grounds for joining criminal cases; 5) when familiarizing the accused with the materials of the criminal case, the rights provided for in Part 5 of Art. 217 Code of Criminal Procedure. In cases provided for in Part 1 of Art. 237 of the Code of Criminal Procedure, the judge obliges the prosecutor to ensure that the violations are eliminated within five days. When the criminal case is returned to the prosecutor, the judge decides on the preventive measure against the accused.

Currently, it is believed that the return of a criminal case by the court to the prosecutor for additional investigative or other procedural actions in order to eliminate violations committed during pre-trial proceedings (if this is not related to making up for the incompleteness of the inquiry or preliminary investigation) does not contradict the Code of Criminal Procedure.

Until the legislator makes appropriate changes to Art. 237 of the Code of Criminal Procedure, when resolving issues related to the return by a judge of a criminal case from the preliminary hearing stage, it is necessary to be guided not only by criminal procedural norms, but also by the decisions of the Constitutional Court of the Russian Federation.

Of particular interest is the process of developing grounds for returning criminal cases to the prosecutor in order to remove obstacles to their consideration.

For the first time, the question of the nature of obstacles to the consideration of a criminal case by the court, possible ways to eliminate them became the subject of research in the Resolution of the Constitutional Court of the Russian Federation dated March 4, 2003 N 2-P “In the case of verifying the constitutionality of the provisions of clause 2, part 1 and part 3 of article 232 Criminal Procedure Code of the RSFSR in connection with complaints from citizens L.I. Batishchev, Yu.A. Evgrafov, O.V. Frolov and A.V. Shmelev."

Russian Aerospace Forces. 2003. N 3.

Within the framework of constitutional proceedings, the existence of the court’s right to demand from the preliminary investigation authorities on personal initiative: -

clarification of the charges, since “the resolution to bring L.I. Batishchev as an accused did not indicate which specific clauses of the charter of the joint-stock company, of which he was the general director, were violated by him”; -

restoration of “the right to defend the accused A.V. Shmelev, for whom the participation of a lawyer was ensured after the end of the preliminary investigation - at the stage of familiarization with the case materials.”

At the same time, the right of the court, on its own initiative, to extend the period of detention of the accused in custody in the event of the return of the criminal case to the prosecutor to remove obstacles to its consideration was disputed. The applicants argued that “their criminal cases were unreasonably sent to the prosecutor,” the court does not have the right, on its own initiative, to demand from the preliminary investigation bodies to fill gaps in their work, it is obliged to make a decision on the basis of the materials of the criminal case provided at its disposal by the defense, in other words, render an acquittal in the case only due to the fact that there are obstacles to its consideration in the case. The authors of the complaints also argued that the court, by returning the case to the prosecutor, does not have the right to maintain a preventive measure against them.

Clarifying the subject of the study, the Constitutional Court of the Russian Federation indicated that the legal position regarding the inadmissibility of the court initiating additional investigative activities to collect new evidence was formulated by it, therefore “the subject of consideration of the Constitutional Court of the Russian Federation in this case is the interrelated provisions contained in paragraph 2 of part 1 of article 232 of the Code of Criminal Procedure RSFSR, - in the part that allows for the return of a criminal case to the prosecutor to eliminate significant violations of the criminal procedure law, if this is not related to making up for the incompleteness of the investigation, and in Part 3 of the same article, on the basis of which the judge, when sending the case for additional investigation, resolves the issue on the preventive measure against the accused." “If procedural violations are identified by the bodies of inquiry or preliminary investigation, the court, independently administering justice (Article 120 of the Constitution), has the right to take measures in accordance with the criminal procedural law to eliminate them in order to restore violated rights, which allows for a comprehensive and objective consideration of the case essentially. This ensures everyone's right to judicial protection of their rights and freedoms (Article 46 of the Constitution) and the right of the victim to access justice and compensation for damage caused (Article 52 of the Constitution). The basis for returning criminal cases of citizens L.I. to the prosecutor is Batishcheva, Yu.A. Evgrafova, O.V. Frolov and A.V. Shmeleva were caused by significant violations of the criminal procedural law committed by the preliminary investigation bodies, which could not be corrected during the trial. A significant procedural violation is an obstacle to the consideration of the case, which the court cannot eliminate on its own and which, as resulting in the deprivation or restriction of the rights of participants in criminal proceedings guaranteed by law, excludes the possibility of rendering a lawful and reasonable verdict and in fact does not allow the court to implement the function of administering justice entrusted to it by the Constitution. Such procedural violations do not concern either factual circumstances or questions of qualification of actions and proof of the guilt of the accused, and their elimination does not imply addition to the previously brought charges. By sending a criminal case to the prosecutor in these cases, the court does not replace the prosecution; it only points out the identified violations that infringe on the procedural rights of participants in criminal proceedings, demanding their restoration. The return of the criminal case to the prosecutor is aimed at bringing the preliminary investigation procedure into compliance with the requirements established in the criminal procedure law, which makes it possible, after eliminating the identified significant procedural violations, to again send the case to the court for consideration on the merits and making a decision. This ensures the constitutionally guaranteed right of the accused to judicial protection and the right of the victim to access justice and compensation for damage caused (Articles 46 and 52). Thus, clause 2, part 1, art. 232 of the Code of Criminal Procedure of the RSFSR, in the part in which it allows for the return of a criminal case to the prosecutor to eliminate significant violations of the criminal procedural law, if this is not related to making up for the incompleteness of the inquiry or preliminary investigation, does not contradict the Constitution."

The Constitutional Court of the Russian Federation confirmed its legal position that achieving the goals of justice allows for the restriction of the rights and freedoms of citizens.

Guided by the above, the Constitutional Court of the Russian Federation made a conclusion, included in the operative part of the resolution, that the provisions of the criminal procedure law that allow: -

return of the criminal case by the court to the prosecutor to eliminate significant violations of the criminal procedural law, if this is not related to making up for the incompleteness of the inquiry or preliminary investigation; -

extension by the court in this case of a preventive measure against the accused.

For the second time, the court’s obligation to return the criminal case to the prosecutor in order to remove obstacles to its consideration was subjected to fundamental verification in the Resolution of the Constitutional Court of the Russian Federation of December 8, 2003 N 18-P “In the case of checking the constitutionality of the provisions of Articles 125, 219, 227, 229, 236, 237 , 239, 246, 254, 271, 378, 405 and 408, as well as chapters 35 and 39 of the Criminal Procedure Code of the Russian Federation in connection with requests from courts of general jurisdiction and complaints from citizens."

Russian Aerospace Forces. 2004. N 4.

The reason was requests from a number of courts, as well as complaints from citizens S.S. Zimin, L.M. Kurilko, V.A. Kukhranova, L.S. Larina, D.N. Mamedova, L.N. Melnikova, L.G. Nosova, G.V. Pavlyuk and V.L. Fadeeva, in which the constitutionality, including the provisions of Art. Art. 236, 237 of the Code of Criminal Procedure, obstructing the trial: -

take measures to eliminate violations of the rights of the accused committed during the preliminary investigation; -

consider requests to return the criminal case for additional investigation in order to restore the violated rights of the participants in the process; -

return the case to the prosecutor if “there is no investigator’s signature under the text of the resolution to bring citizen M.V. Zubarev as an accused.”

The constitutionality of the absence was also disputed: -

the court has the power to return the case to the prosecutor if there are grounds to charge the defendant with more serious crimes; -

Participants in the process have the right to appeal a judge’s decision to suspend criminal proceedings, issued following a preliminary hearing.

The subject of consideration by the Constitutional Court of the Russian Federation was: -

provisions of Parts 1 and 4 of Art. 237 of the Code of Criminal Procedure, limiting the possibility of the court of first instance returning a criminal case to the prosecutor in the event of violations of the criminal procedure law committed in pre-trial proceedings in a criminal case; -

provision of Part 7 of Art. 236, which excludes an appeal in cassation against the judge’s decision to suspend the proceedings in the case, made following the results of the preliminary hearing.

Based on the results of the consideration of the case by the Constitutional Court of the Russian Federation, the following conclusions were made.

A significant procedural violation is an obstacle to the consideration of a case, which the court cannot eliminate on its own and which, as resulting in the deprivation or restriction of the rights of participants in criminal proceedings guaranteed by law, excludes the possibility of rendering a lawful and reasonable verdict and in fact does not allow the court to implement the function of administering justice entrusted to it by the Constitution; such procedural violations do not relate to either factual circumstances or questions of qualification of actions and proof of the guilt of the accused, and their elimination does not imply the addition of the previously brought charges; By sending a criminal case to the prosecutor in these cases, the court does not replace the prosecution - it only points out the identified violations that infringe on the rights of participants in criminal proceedings, demanding their restoration.

The return of the criminal case to the prosecutor is aimed at bringing the preliminary investigation procedure into compliance with the requirements established in the criminal procedure law, which makes it possible - after eliminating the identified significant procedural violations and providing the participants in criminal proceedings with the opportunity to exercise the relevant rights - to again send the case to the court for consideration according to merits and decision-making; thereby ensuring the constitutionally guaranteed right of everyone, including the accused, to judicial protection and the right of the victim to access justice and compensation for damage caused (Articles 46 and 52).

A court of general jurisdiction, when conducting proceedings in a criminal case, may, at the request of a party or on its own initiative, return the case to the prosecutor to remove obstacles to its consideration by the court in cases where significant violations of the criminal procedural law were committed in pre-trial proceedings that cannot be eliminated in court proceedings, if the return of the case the prosecutor is not concerned with making up for the incompleteness of the inquiry or preliminary investigation; At the same time, the elimination of committed violations presupposes the implementation of the necessary investigative and other procedural actions. Otherwise, participants in criminal proceedings whose rights and legitimate interests were violated during pre-trial proceedings would essentially be deprived of judicial protection.

According to Part 1 of Art. 237 of the Code of Criminal Procedure, the judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where: the indictment or indictment was drawn up in violation of the requirements of this Code, which excludes the possibility of the court passing a sentence or making another decision based on this conclusion or act (clause 1); a copy of the indictment or indictment was not served on the accused, except in cases where the court recognizes the decision of the prosecutor made in the manner prescribed by Part 4 of Art. 222 or part 3 of Art. 226 Code of Criminal Procedure (clause 2); there is a need to draw up an indictment or indictment in a criminal case sent to the court with a decision to apply a compulsory measure of a medical nature (clause 3); there are provisions provided for in Art. 153 Code of Criminal Procedure grounds for joining criminal cases (clause 4); when familiarizing the accused with the materials of the criminal case, the rights provided for in Part 5 of Art. 217 Code of Criminal Procedure (clause 5).

From Articles 215, 220, 221, 225 and 226 of the Code of Criminal Procedure, according to which an indictment or indictment as the final documents of an investigation or inquiry, issued upon completion, are drawn up when investigative actions in a criminal case have been carried out and the collected evidence is sufficient for drawing up of these documents, it follows that if at the pre-trial stages of the criminal proceedings there were violations of the norms of the criminal procedural law, then neither the indictment nor the indictment can be considered drawn up in accordance with the requirements of the Code of Criminal Procedure.

Within the meaning of clause 1, part 1, art. 237 in conjunction with paragraphs 2 - 5 of part 1 of the same article, as well as with Art. Art. 215, 220, 221, 225 and 226 of the Code of Criminal Procedure, return of the case to the prosecutor in case of violation of the requirements of the Code of Criminal Procedure when drawing up an indictment or indictment may take place at the request of a party or on the initiative of the court itself, if this is necessary to protect the rights and legitimate interests of participants in criminal proceedings, in confirmation of the statement made at the court hearing by the accused or victim, as well as their representatives, about violations committed at the pre-trial stages that cannot be eliminated during the trial. In this case, the basis for returning the case to the prosecutor, in any case, is significant violations of the criminal procedural law committed by the inquirer, investigator or prosecutor, due to which the possibility of a court ruling or other decision is excluded. Such violations in the pre-trial proceedings of the requirements of the Code of Criminal Procedure, which cannot be eliminated in a court hearing and exclude the adoption of a court decision in the case that meets the requirements of justice, always indicate, among other things, the inconsistency of the indictment or indictment with the requirements of the Code of Criminal Procedure.

Provisions of Part 1 of Art. 237 of the Code of Criminal Procedure do not exclude - in their constitutional and legal meaning in their interrelation - the power of the court, at the request of a party or on its own initiative, to return the case to the prosecutor in order to eliminate obstacles to its consideration by the court in cases of significant violations of the criminal procedural law that cannot be eliminated in court proceedings, if the return the case to the prosecutor is not related to making up for the incompleteness of the inquiry or preliminary investigation. Giving a different meaning to these provisions of the criminal procedure law would unlawfully limit the right to judicial protection, access to justice and compensation for damage caused (Parts 1 and 2 of Article 46, Article 52, Part 3 of Article 55 of the Constitution), as well as the prerogatives of the court to administer justice and ensure the rights and freedoms of man and citizen (Article 18, Parts 1 and 2 of Article 118 of the Constitution).

Meanwhile, the provision of Part 4 of Art. 237 of the Code of Criminal Procedure, which does not allow the investigative and other procedural actions necessary to eliminate the detected violations, excludes any effective restoration of the violated rights of participants in legal proceedings not only by the investigative bodies that committed these violations, but also during the subsequent trial of the case by the court, which is not consistent with the requirements independent, impartial and fair administration of justice, arising, in particular, from Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, within the meaning of which everyone, including the accused and the victim, must be guaranteed fair justice when determining his rights and obligations. In the system of current criminal procedural norms, this means a violation of Part 1 of Art. 45, part 1 and 2 art. 46 and art. 52 of the Constitution and is also inconsistent with the requirements of its Art. Art. 18, 49, 50 and 118 (parts 1 and 2).

Unconstitutional Part 7 of Art. 236 of the Code of Criminal Procedure, which does not allow an appeal in cassation against a court decision made following a preliminary hearing to suspend the proceedings in the case, “since this objectively creates obstacles to the further progress of the case, and the impossibility of appealing them creates the danger of an unjustified and illegal delay in making a decision on the case and violations of the rights of citizens, whose judicial protection cannot be ensured in the future or cannot lead to their effective restoration.”

The operative part of the resolution states: -

contained in Part 1 of Art. 237 of the Code of Criminal Procedure, the provisions in their constitutional and legal meaning in the system of norms do not exclude the power of the court, at the request of a party or on its own initiative, to return the case to the prosecutor to remove obstacles to its consideration by the court in all cases where significant violations of the law were committed in pre-trial proceedings that cannot be eliminated in judicial proceedings, if the return of the case is not related to making up for the incompleteness of the inquiry or preliminary investigation; -

unconstitutional part 4 art. 237 Code of Criminal Procedure and Part 7 of Art. 236 of the Code of Criminal Procedure, which excludes an appeal of a court decision issued following a preliminary hearing to suspend proceedings in the case, have no legal force from the moment of adoption and are not subject to application.

For the third time, the provisions of Art. 237 of the Code of Criminal Procedure were the subject of constitutional proceedings in the Ruling of the Constitutional Court of the Russian Federation dated 02.02.2006 N 57-O “On the refusal to accept for consideration the request of the Vsevolozhsk City Court of the Leningrad Region to verify the constitutionality of parts two and five of Article 237 of the Criminal Procedure Code of the Russian Federation.”

Russian Aerospace Forces. 2006. N 3.

By the decision of the judge of the Vsevolozhsk City Court of the Leningrad Region dated May 24, 2005, a criminal case against citizen A.S. Kharkov was returned to the prosecutor to eliminate violations of criminal procedural legislation, which were expressed in the fact that the decision to initiate this criminal case did not indicate who issued it, the preliminary investigation was carried out by the investigator without accepting the case for his proceedings, as a result of which the evidence included in the basis of the indictment could not be recognized by the court as admissible; In addition, the indictment does not contain information about the defendant’s criminal record.

The investigator accepted the criminal case for proceedings, the period of preliminary investigation was extended for three months, during which investigative actions were carried out aimed at re-collecting evidence, including interrogations of the victim and witnesses, and a forensic medical examination. On August 31, 2005, the criminal case with the indictment approved by the prosecutor was again submitted for consideration to the Vsevolozhsk City Court of the Leningrad Region.

The judge who accepted the criminal case A.S. Kharkov for proceedings, believing that he does not have the right to conduct a trial on it, since the evidence cited in the indictment was obtained as a result of investigative actions carried out after five days, which were determined by the court on the basis of Art. 237 of the Code of Criminal Procedure, in order to eliminate violations of the law committed during the preliminary investigation, suspended the proceedings in the case and addressed the Constitutional Court of the Russian Federation with a request to verify the constitutionality of Parts 2 and 5 of Art. 237 Code of Criminal Procedure.

According to the applicant, the contested legal provisions obliging the prosecutor to ensure that in a criminal case returned to him the elimination of procedural violations that are an obstacle to the consideration of this case by the court within five days and declaring inadmissible evidence obtained after the expiration of the specified procedural period, prevent participants in criminal proceedings from exercising the rights guaranteed by them Part 1 Art. 45, part 1 art. 46 and Art. 53 of the Constitution.

The Constitutional Court of the Russian Federation has confirmed the authority of a court of general jurisdiction in carrying out criminal proceedings at the request of a party or on its own initiative to return the case to the prosecutor in cases where in pre-trial proceedings there were significant violations of the criminal procedural law that cannot be eliminated in judicial proceedings, which entail the deprivation or restriction of rights guaranteed by law participants in criminal proceedings are an obstacle to the consideration of a criminal case, excluding the possibility of the court implementing the function of administering justice entrusted to it by the Constitution.

The Constitutional Court of the Russian Federation recognized that the return by the court of a criminal case to the prosecutor in cases of identification of significant procedural violations committed during pre-trial proceedings is aimed at bringing the preliminary investigation procedure into compliance with the requirements established in the criminal procedure law, so that after eliminating the identified violations and providing the participants with a criminal case legal proceedings, the opportunity to exercise the relevant rights to re-refer the case to the court for consideration on the merits and adoption of a decision, thereby ensuring the guarantees guaranteed by the Constitution, its Art. Art. 46 and 52, the right of everyone, including the accused, to judicial protection and the right of the victim to access justice and compensation for damage caused.

Having recognized Part 4 of Art. 237 of the Code of Criminal Procedure, which did not allow the implementation of the investigative and other procedural actions necessary for this, which did not comply with the Constitution, the Constitutional Court of the Russian Federation indicated that the inadmissibility of such actions would deprive the sense of returning the criminal case to the prosecutor and would not allow the restoration of the violated rights and legitimate interests of participants in criminal proceedings, depriving their real judicial protection. Within the meaning of the above legal positions, in cases where the court returns a criminal case to the prosecutor on grounds related to the need to eliminate significant violations of the law that cannot be eliminated in judicial proceedings, the requirement to comply with a five-day period, during which the prosecutor is obliged to ensure the elimination of others specified in Part 1 of Art. . 237 of the Criminal Procedure Code cannot prevent obstacles to the consideration of a criminal case by a court. At the same time, however, in such cases, the return of the criminal case to the prosecutor with the subsequent implementation of the necessary procedural actions on it should not be associated with solving the problem of making up for the incompleteness of the inquiry or preliminary investigation as an independent task.

For the fourth time, the provisions of Art. 236 of the Code of Criminal Procedure were the subject of constitutional proceedings in the Ruling of the Constitutional Court of the Russian Federation dated July 18, 2006 N 290-O “On the refusal to accept for consideration the complaint of citizen Anatoly Vladimirovich Margin about the violation of his constitutional rights by part seven of Article 236 of the Criminal Procedure Code of the Russian Federation.”

Based on the results of the preliminary hearing in the criminal case initiated against citizen A.V. Margin, the judge issued a decision to schedule a court hearing, without reflecting the decisions taken in the form of separate decisions to reject the defense’s requests to exclude certain evidence and to allow participation in the case as a defense attorney along with the lawyer of the invited A.V. Margin of the person, as well as to satisfy the victim’s request to summon the same person to the court hearing for questioning as a witness. The district court refused A.V. Margin in a request to send his complaint against the said decision to the cassation court, citing the fact that such court decisions are not subject to appeal.

The Constitutional Court of the Russian Federation recognized as permissible deferred control over the legality and validity of interim court decisions made by the court of first instance related to the resolution of petitions filed by the parties, in particular regarding the examination of evidence, since this does not prevent the defendant from exercising his right to defense, re-submitting a corresponding petition during trial and appeal the refusal to satisfy it to higher courts simultaneously with filing a complaint against the final decision in the case made by the court of first instance.

The legal position set out earlier in the decisions of the Constitutional Court of the Russian Federation regarding the grounds for recognizing an acceptable delay in monitoring the legality of interim court decisions fully applies to interim decisions made by the court during and following the results of a preliminary hearing that do not directly affect the constitutional rights and freedoms of the individual (on rejecting and satisfying petitions of the parties for the examination or exclusion of evidence, summoning certain persons to the court hearing for questioning as witnesses, for admission to participate in the case as a defense attorney along with the lawyer of another person chosen by the accused). Such decisions do not prevent the defendant from re-submitting these motions during the trial and appealing the refusal to satisfy them to higher courts simultaneously with the appeal of the final court decision. In addition, the decision to schedule a court hearing in itself does not create obstacles to the further progress of the criminal case, but, on the contrary, is aimed at ensuring its consideration by the court within the time frame established by the criminal procedure law, without undue delay.

Circumstances preventing the consideration of a criminal case and the procedure for eliminating them. The Resolution of the Plenum of the Armed Forces of the Russian Federation dated 03/05/2004 N 1 “On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation” (as amended on 01/11/2007) provides explanations on the application of Art. 237 Code of Criminal Procedure.

BVS RF. 2004. N 5; 2007. N 2; N 4.

Violations of the requirements of the criminal procedure law committed during the preparation of the indictment or indictment should be understood as such violations of the provisions of Art. Art. 220, 225 of the Code of Criminal Procedure, which exclude the possibility of the court making a decision on the merits of the case on the basis of this conclusion or act. In particular, the possibility of issuing a court decision is excluded in cases where the charge set out in the indictment or indictment does not correspond to the charge set out in the decision to bring the person as an accused; when the indictment or indictment is not signed by the investigator, inquiry officer or approved by the prosecutor; when the indictment or indictment does not indicate the past convictions of the accused, information about the location of the accused, information about the victim, if he has been identified in the case, etc.

If there is a need to eliminate other obstacles to the consideration of the criminal case specified in clauses 2 - 5, part 1 of Art. 237 of the Code of Criminal Procedure, as well as in other cases when, in pre-trial proceedings, significant violations of the law were committed that cannot be eliminated in a court hearing, and the elimination of such violations is not related to making up for the incompleteness of the inquiry or preliminary investigation, the judge, in accordance with Part 1 of Art. 237 of the Code of Criminal Procedure on one’s own initiative or at the request of a party in the manner prescribed by Art. Art. 234 and 236 of the Code of Criminal Procedure, returns the case to the prosecutor to eliminate the violations. At the same time, the judge, in accordance with Part 3 of Art. 237 of the Code of Criminal Procedure makes a decision on the preventive measure against the accused (including detention). In cases where a significant violation of the law, committed at the pre-trial stage and which is an obstacle to the consideration of a criminal case, is revealed during the trial, the court, if it cannot eliminate such a violation on its own, at the request of the parties or on its own initiative, returns the case to the prosecutor to eliminate the specified violation, provided that it is not associated with making up for the incompleteness of the inquiry or preliminary investigation.

When deciding to return a criminal case to the prosecutor, the court must proceed from the fact that a violation at the pre-trial stage of the constitutionally guaranteed right of the accused to judicial protection and the right of the victim to access justice and compensation for damage caused excludes the possibility of rendering a lawful and reasonable verdict. It should also be borne in mind that in such cases, after the case is returned by the court, the prosecutor (as well as, on his instructions, the investigator or inquiry officer) has the right, based on constitutional norms, to carry out investigative or other procedural actions necessary to eliminate the identified violations, and, guided by Art. Art. 221 and 226 of the Code of Criminal Procedure, draw up a new indictment or a new indictment (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 03/05/2004 N 1).

After the entry into force of the Code of Criminal Procedure, a significant part of the cases returned to prosecutors were cases in which there was no information about the delivery of a copy of the indictment to the accused. Established judicial practice already allows us to conclude that the absence in the case of a receipt indicating that the accused has actually received a copy of the indictment (if there is no evidence of the accused’s evasion of receiving this document) is recognized by the courts as an obstacle to the consideration of the case.

If the accused refused to receive a copy of the indictment or indictment (Part 4 of Article 222 and Part 3 of Article 226 of the Code of Criminal Procedure) and the case was submitted to the court with the prosecutor indicating the reasons why a copy of the indictment (indictment) was not served on the accused , the court makes one of the decisions specified in paragraphs 1 - 3 of part 1 of Art. 227 Code of Criminal Procedure. When scheduling a court hearing in such a case, the court conducts its preparatory part in compliance with the rules provided for in Chapter 36 of the Code of Criminal Procedure, with the exception of those set out in Part 2 of Art. 265 of the Code of Criminal Procedure establishes that the trial can begin no earlier than seven days from the date of delivery to the accused of a copy of the indictment (indictment).

At the same time, in each specific case, the court must find out for what reasons the accused was not given a copy of the indictment (indictment), whether the refusal to receive it was formalized in writing, whether the fact of failure to appear when called was documented, etc. If the accused fled and his whereabouts are unknown, the judge makes a decision in accordance with Part 2 of Art. 238 of the Code of Criminal Procedure (clause 15 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 5, 2004 No. 1).

Failure to provide a copy of the indictment due to its content of information constituting state secrets is grounds for returning the criminal case to the prosecutor.

By virtue of clause 2, part 4, art. 47 Code of Criminal Procedure, Part 2, Art. 222 of the Code of Criminal Procedure, the decision to charge as an accused and the indictment are subject to mandatory delivery to the accused. In this regard, these documents should not contain information that would prevent the delivery of copies to the accused, including those that constitute state secrets.

Having made this conclusion, the Investigative Committee of the Armed Forces of the Russian Federation recognized that it was justified to return the criminal case to the prosecutor in order to remove obstacles to its consideration due to the failure to serve the accused with a copy of the indictment, on the grounds that it contained information constituting a state secret (see.

Definition of the IC of the Armed Forces of the Russian Federation N 15-O06-3с).

The blanket disposition involves the inclusion in the structure of the resolution to charge a person as an accused with information from special normative acts (laws, resolutions, orders, instructions, etc.).

Based on the provisions of Ch. 34 of the Code of Criminal Procedure, on received criminal cases of crimes under Art. Art. 198, 199, 199.1 and 199.2 of the Criminal Code, courts should check whether the decision to charge as an accused or the indictment contains data on what specific provisions of the legislation on taxes and fees in force at the time of the crime were violated by the accused, as well as deadlines for payment of a specific tax or fee. The absence of the above and other information in the indictment excludes the possibility of the court passing a sentence or making another decision based on this conclusion. By virtue of Art. 237 of the Code of Criminal Procedure, at the request of a party or on his own initiative, the judge must decide the issue of returning the case to the prosecutor to remove obstacles to its consideration (see Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 N 64 “On the practice of courts applying criminal legislation on liability for tax crimes”) .

BVS RF. 2007. N 3.

The judge, pointing out the shortcomings of the preliminary investigation as circumstances impeding the trial, is obliged to indicate exactly how this violation impedes its consideration (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated February 21, 2006 N 74-O06-1).

Inconsistency of the decision to charge a person as an accused with the requirements of paragraph 4 of part 2 of Art. 171 of the Code of Criminal Procedure (description of the crime), and the indictment to the requirements of paragraph 3 of part 1 of Art. 220 of the Code of Criminal Procedure (the essence of the charge, description, characteristics and circumstances of the crime) - the basis for returning the criminal case to the prosecutor.

The Investigative Committee of the Armed Forces of the Russian Federation in its cassation ruling indicated that the preliminary investigation authorities, bringing charges against G. for contempt of court, expressed in insulting the participants in the process, limited themselves to citing the fact that the insult was expressed in an indecent form, but what exactly is this form expressed in the resolution was not specified. The concept of “indecent form” is evaluative and is determined based on the nature of the admitted statements, suggesting a cynical form of humiliating communication between a person and a person, deeply contrary to moral norms and rules of behavior in society (see Definition of the IC of the Armed Forces of the Russian Federation N 53-O06-10).

The presence of contradictions in the indictment is the basis for returning the criminal case to the prosecutor.

Accused N. testified at the preliminary investigation stage that Yu. stabbed the victim with a knife, and he finished him off with a sledgehammer. The prosecution did not present any other evidence of Yu’s guilt in committing the murder. The preliminary investigation authorities charged N. with kicking the victim. In the indictment, the investigator, listing the evidence confirming the validity of N.’s accusation of participation in the murder, cited his testimony that he “finished off the victim with a sledgehammer.” The Sverdlovsk Regional Court, by its decision, returned the criminal case against N. and Yu. to the prosecutor in accordance with Art. 236 of the Code of Criminal Procedure and proposed to eliminate the contradiction between N.’s testimony contained in the indictment and the information contained in the resolution to bring him in as an accused. The cassation ruling of the Investigative Committee of the Armed Forces of the Russian Federation overturned the decision of the Sverdlovsk Regional Court. This decision is motivated by the fact that the court of first instance, when resolving the issue of whether the indictment complies with the law, included an assessment of the evidence (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated June 19, 2006 N 45-O06-57).

The above decision of the Investigative Committee of the Armed Forces of the Russian Federation is not indisputable, since by virtue of paragraph 1 of Part 1 of Art. 237 of the Code of Criminal Procedure, a criminal case is returned to the prosecutor if the indictment was drawn up in violation of the law. In accordance with clause 5, part 1, art. 220 of the Code of Criminal Procedure, the indictment contains a list of evidence confirming the accusation. In the case against N., the indictment contains completely different evidence. At the court hearing, N. testified that he struck with both a knife and a sledgehammer. Yu did not strike. Ultimately, by the verdict of the Sverdlovsk Regional Court, N. was convicted of stabbing with a knife and a blunt hard object. The question of what should be meant by it—legs or a sledgehammer—remained unanswered in the verdict and has not yet been challenged by the defense. Yu. is acquitted in this episode, since N.’s testimony regarding his participation in the murder is contradictory. A cassation submission was filed against the verdict, which raises the question of canceling the verdict in terms of acquitting Yu., the court is asked to re-evaluate N.’s testimony. The cassation submission of the Investigative Committee of the Armed Forces of the Russian Federation was rejected, since the preliminary investigation bodies did not agree with N.’s initial testimony that the victim he finished it off with a sledgehammer.

The actions of the accused must be qualified with an indication of the paragraph and part of the relevant article of the Special Part of the Criminal Code.

By decision of the Sverdlovsk Regional Court, the criminal case against K. and others was returned to the prosecutor to remove obstacles to its consideration by the court. From the materials of the criminal case it follows that the preliminary investigation authorities charged K. with the fact that he committed criminal acts aimed at taking the life of B. for hire. Despite this, what he did under paragraph “z” of Part 2 of Art. 105 of the Criminal Code was not qualified.

In the cassation submission, the Deputy Prosecutor of the Sverdlovsk Region, without disputing the presence of the above-mentioned contradiction in the indictment, asks to cancel the decision and send the case for a new trial, citing the fact that the court “in order to make a lawful and informed decision should have examined the evidence available in the criminal case,” “to exclude from the charges the indication that K. committed a crime for hire.”

The Investigative Committee of the Armed Forces of the Russian Federation found the resolution legal and justified and left it unchanged for the following reasons. The fact that there is a contradiction in the indictment between its descriptive-motivational and operative parts is not disputed by the authors of the cassation presentation and cassation complaints.

The resolution to charge a person as an accused must indicate the description of the crime (clause 4, part 2, article 171 of the Code of Criminal Procedure) and the paragraph, part and article of the Criminal Code (clause 5, part 2, article 171 of the Code of Criminal Procedure). It follows from the indictment that K. was charged with the fact that he committed criminal acts aimed at taking B.’s life for hire (clause 4, part 2, article 171 of the Code of Criminal Procedure). Under such circumstances, what he did should have been qualified by the preliminary investigation authorities under paragraph “h” of Part 2 of Art. 105 of the Criminal Code (clause 5, part 2, article 171 of the Criminal Procedure Code). This requirement of the criminal procedural law was not fulfilled by the preliminary investigation authorities.

At the stage of the preliminary hearing, the state prosecutor admitted the presence of the above contradiction in the indictment; he did not refuse to accuse K. of hiring him for the purpose of depriving B. of his life; he left the resolution of the controversial issue to the discretion of the court. Under such circumstances, the court justifiably decided to return the criminal case to the prosecutor to remove obstacles to its consideration by the court, since the indictment was drawn up in violation of the requirements of the law (clause 1, part 1, article 237 of the Code of Criminal Procedure).

As for the argument of the author of the cassation submission that the court should have examined the evidence available in the case in its entirety and excluded the indication that K. committed a crime for hire, it is not tenable, since at the stage of preparation for the court hearing the resolution of these issues is not within the competence of the court enters. The argument that, by virtue of Art. 15 of the Code of Criminal Procedure, the court does not have the right to return the criminal case to the prosecutor so that the indictment is brought into compliance with the requirements of the law by qualifying K.’s act in accordance with the charge brought against him.

At the stage of preparing the case for trial, the court performs a control function. In this case, his competence includes identifying facts of violation of the law when drawing up an indictment. As follows from the decision to return the criminal case to the prosecutor, the court revealed just such a violation. It lies in the fact that the preliminary investigation authorities, while qualifying K.’s act as committed for hire, did not indicate, as required by law, the relevant point of accusation (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation N 45-O06-12).

The investigator’s refusal to include defense witnesses in the list of persons to be summoned to the court hearing is grounds for returning the criminal case to the prosecutor in order to remove obstacles to its consideration by the court (see Determination of the Investigative Committee of the Supreme Court dated 04/06/2005 N 74-O05-11).

Another reason for returning the case to the prosecutor is the situation when the need to draw up an indictment in a case sent to the court with a decision to apply a compulsory measure of a medical nature is identified. This situation may arise when a judge recognizes that the mental disorder of the person against whom the criminal case has been sent to court has not been established or that the illness of the person who committed the crime is not an obstacle to applying criminal punishment to him (Part 5 of Article 443 of the Criminal Procedure Code ). However, by sending, on his own initiative, a criminal case to the prosecutor in order to bring to criminal responsibility a person who was previously, by decision of the investigative authorities, actually exempted from this responsibility, the judge, in essence, will go beyond the limits outlined in Part 3 of Art. 15 of the Code of Criminal Procedure, according to which the court is not a criminal prosecution body.

Within the meaning of Art. 217 of the Code of Criminal Procedure, defendants and their defense attorneys have the right to familiarize themselves with all materials of the criminal case, and not only those that directly relate to episodes of their criminal activity.

The preliminary investigation in criminal cases No. 382233 against M., Ts. and No. 742233 against Z. was carried out separately. At the end of the preliminary investigation, the accused only became familiar with the materials relating to the episodes directly related to their criminal activities. The prosecutor of St. Petersburg combined these cases into one proceeding, assigning it N 383333, and, without fulfilling the requirements of Art. 217 of the Code of Criminal Procedure in a consolidated criminal case, sent it to court for consideration on the merits. The judge regarded this circumstance as an obstacle to the trial and returned the criminal case to the prosecutor. The cassation ruling of the Investigative Committee of the Armed Forces of the Russian Federation left the judge's ruling unchanged (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated June 2, 2005 N 78-O05-38).

If the investigator has not considered the petition to separate the criminal case into separate proceedings in relation to persons who do not want the criminal case to be tried by a court with the participation of a jury, then it must be returned to the prosecutor (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation N 77-O05-1).

If the accused does not agree to have the criminal case against him examined by a court with the participation of a jury, then he has the right to file a petition to separate the criminal case against him into separate proceedings only if the requirements of Art. 217 Code of Criminal Procedure.

During the preliminary hearing, several defendants requested that the criminal case against them be tried by a jury, while others insisted that their case be tried by a single judge. Based on the results of the preliminary hearing, the criminal case was returned to the prosecutor due to the need to separate materials regarding several accused into separate proceedings.

The Investigative Committee of the Armed Forces of the Russian Federation, canceling this resolution, indicated that the issue of separating a criminal case into separate proceedings is decided by the investigator only if the requirements of Part 5 of Art. 217 Code of Criminal Procedure. If a request for the allocation of materials of the criminal case is made by the accused at subsequent stages of the criminal case, then it is left unsatisfied, since the law does not provide for this circumstance as a basis for returning the criminal case to the prosecutor and does not give the court of first instance the right to allocate the materials of the criminal case ( see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated February 21, 2006 N 74-O06-1).

The grounds and procedure for making decisions to suspend criminal proceedings are established by Art. 238 Code of Criminal Procedure. They are comprehensive. The judge is not bound by the opinions of the parties and has the right to make a decision even in the absence of a party’s request for this. This conclusion follows from Art. 229 of the Code of Criminal Procedure, according to which the court, on its own initiative, has the right to schedule a preliminary hearing when there are grounds for suspending the criminal case.

The issue of legal regulation of the resumption of trial after the grounds for suspending the proceedings have been eliminated is very important, since it has not been resolved by law. In this case, the judge must again schedule a preliminary hearing (if there are grounds provided for in Article 229 of the Code of Criminal Procedure) or schedule a court hearing in the manner provided for in Art. 231 Code of Criminal Procedure.

The decision to return the criminal case to the prosecutor can be appealed in cassation, since its issuance impedes the forward movement of the case (see Determination of the IC of the Armed Forces of the Russian Federation N 74-O05-11).

The following Determination of the Investigative Committee of the Armed Forces of the Russian Federation has precedent significance.

In the case against V. and P., the defendants’ defenders promptly filed a motion to exclude a number of evidence as not having the qualities of admissibility. In this regard, a preliminary hearing was scheduled in the case, but the defense attorneys' request to exclude evidence was not considered, since the case was returned to the prosecutor to re-draft the indictment. Despite the fact that the above motions were not withdrawn by the defense, a second trial was scheduled without a preliminary hearing. In this regard, the defense filed a cassation appeal against the decision to schedule a court hearing, which raised the issue of canceling the decision to schedule a court hearing without holding a preliminary hearing. This complaint was rejected, since the petition to exclude evidence without prejudice to the case could be resolved at a court hearing (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated September 26, 2005 N 33-O05-65).

In judicial practice, there are cases of illegally leaving a cassation appeal without consideration.

By a decision of the federal judge of the Ukhta City Court of the Komi Republic dated March 12, 2004, the criminal case against L. was returned to the prosecutor on the grounds provided for in Art. 237 Code of Criminal Procedure. The defense, believing that the court of first instance incorrectly applied the criminal procedure law, raised the issue of repealing the Resolution before the cassation court.

The Judicial Collegium of the Supreme Court of the Komi Republic left the cassation appeal without consideration and terminated the proceedings on it, citing the fact that the return of the case to the prosecutor in accordance with Art. 237 of the Code of Criminal Procedure is not included in the list of subjects of the cassation audit (material on the supervisory complaint No. 3-у05-323).

This decision contradicts Art. 19 of the Code of Criminal Procedure, the legal position of the Constitutional Court of the Russian Federation, judicial practice, as well as the general theoretical provision that all decisions and actions that impede the normal progress of the case are subject to verification.

In judicial practice, there are cases of unjustified return of a criminal case to the prosecutor in order to remove obstacles to its consideration by the court.

The preliminary investigation authorities initiated a criminal case against Ya. on the grounds of Part 3 of Art. 33, part 1 art. 30, paragraph "z" part 2 art. 105 of the Criminal Code. During the preliminary investigation, Y. was found to have a mental disorder that prevented the conduct of procedural actions against her. The preliminary investigation authorities went to court to resolve the issue of placing Ya. in a psychiatric hospital. The court returned the criminal case to the prosecutor, based on the violation of Ya.’s right to defense, which was reflected in the erroneous classification of Ya.’s crime and the incompleteness of the materials presented to the court.

The Investigative Committee of the Armed Forces of the Russian Federation canceled the judge's decision to return the criminal case to the prosecutor, since the preliminary investigation authorities did not commit any violations that would prevent the consideration of the case against Ya in court. The court should have resolved the issue of the possibility of placing Ya. in a psychiatric hospital on the basis of the materials provided to him (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation No. 38-O06-21).

Resolution to return the criminal case to the prosecutor in accordance with Art. 237 of the Code of Criminal Procedure must be motivated.

During the preliminary hearing, the state prosecutor filed a motion to return the criminal case to the prosecutor, since, in her opinion, what the accused had done should not have been classified under clauses “c” and “z” of Part 2 of Art. 105 of the Criminal Code, clause “c”, part 4 of Art. 162 of the Criminal Code, and according to clauses “c”, “k”, part 2 of Art. 105 of the Criminal Code, clause “c”, part 4 of Art. 162 of the Criminal Code. This petition was granted by the judge of the Supreme Court of the Komi Republic.

In the cassation appeal, the defendant's lawyer raised the question of canceling the resolution, since he believes that his client committed the murder of the boy not after committing a robbery, but during it.

Canceling the judge’s decision, the Investigative Committee of the RF Armed Forces indicated that from the record of the court session it is unclear on what basis the conclusion about the change in the classification of the actions of the accused is based, since the state prosecutor did not express any judgments regarding the qualification of his actions in terms of stealing someone else’s property. The court's conclusion about the need to change the classification of the accused's actions also remained unmotivated (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated September 6, 2006 No. 3-O06-24).

Based on the results of the preliminary hearing, the actions of the accused may be reclassified as a less serious crime, and the criminal case may be sent for jurisdiction to a lower court (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated December 29, 2005 N 81-O05-117).

Removing obstacles to the consideration of a criminal case after its return by the court in accordance with Art. 237 of the Code of Criminal Procedure can be expressed: in reducing the volume of charges, changing the jurisdiction of the case.

By a decision of the judge of the Moscow City Court dated June 1, 2006, the criminal case against P. and others was returned to the Prosecutor General of the Russian Federation to remove obstacles to its consideration.

The cassation ruling of the Investigative Committee of the Armed Forces of the Russian Federation dated July 20, 2006 (see Determination No. 5-O06-77c) left the decision of the judge of the Moscow City Court regarding the return of the criminal case to the prosecutor unchanged. The court of second instance agreed that “the wording of the charges brought against P. and others impedes the consideration of the case by the court, since it excludes the possibility of raising questions to be considered by the jury.”

After this, the criminal case against P. and others was accepted by the preliminary investigation authorities, the terms of the preliminary investigation and the detention of the accused were extended; for a number of episodes the criminal case was terminated, and for a number of others it was separated into separate proceedings; in the rest sent to the Bryansk Regional Court for consideration on the merits.

Based on the results of the preliminary hearing, by the decision of the judge of the Bryansk Regional Court dated December 27, 2006, the criminal case against P. and others was scheduled for hearing.

In cassation appeals, the defense raised the issue of canceling this Resolution, since all of the above procedural actions were carried out by the preliminary investigation bodies outside the framework of the criminal procedure law, the criminal case against P. and others should be considered by the court to which it was returned to remove obstacles.

The Investigative Committee of the Armed Forces of the Russian Federation left the resolution of the Bryansk Regional Court on the appointment of a court hearing unchanged, motivating its legal position as follows. The criminal case was returned to the prosecutor to remove obstacles to its consideration, including by clarifying the charges. This court decision was not challenged by the defense. However, clarification of the charges is impossible without investigative and procedural actions. In this regard, the preliminary investigation authorities, acting strictly within the limits of their powers, reduced the scope of the charges, which ultimately led to a change in the jurisdiction of the criminal case. The argument contained in cassation appeals that a criminal case should be considered by the court to which it was returned to remove obstacles to its consideration is not based on the law (see Definitions of the IC of the Armed Forces of the Russian Federation N 83-O07-4, N 83-O07- 5).

Returning the criminal case to the prosecutor to fulfill the requirements provided for in Part 2 of Art. 217 of the Code of Criminal Procedure does not entail the re-drafting of the indictment.

The criminal case was returned to the prosecutor to fulfill the requirements of Part 5 of Art. 217 Code of Criminal Procedure. Returning this case to the prosecutor for the second time, the court indicated that after fulfilling the requirements of Art. 217 of the Code of Criminal Procedure, the preliminary investigation authorities should have re-drafted the indictment.

The Investigative Committee of the Armed Forces of the Russian Federation canceled the decision to return the criminal case to the prosecutor, citing the fact that in this case the re-drafting of the indictment is not required, since no new investigative actions were carried out in the criminal case (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation No. 75-O06-17).

The criminal case is returned to the prosecutor to remove obstacles to its consideration due to significant violations of the criminal procedure law.

According to Art. Art. 217, 218 of the Code of Criminal Procedure, the investigator, having familiarized the accused and his defense attorney with the materials of the criminal case, explains to the accused the rights provided for in Part 5 of Art. 217 of the Code of Criminal Procedure, and draws up a protocol according to the rules provided for in Art. Art. 166, 167 Code of Criminal Procedure. From the materials of the criminal case it follows that the accused and his defense attorney were familiar with the materials of the criminal case, but the implementation of this procedural action was not completed by drawing up the above-mentioned protocol.

The indictment was drawn up outside the period of the preliminary investigation.

The preliminary investigation authorities, citing in the indictment the accused’s violation of the requirements of Art. Art. 15, 16 of the Law of the Russian Federation “On the Police” did not indicate which provisions of these articles were violated by the accused, thereby violating the latter’s right to defense (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation No. 19-O06-3c).

In judicial practice, there are cases of illegal return of a criminal case to the prosecutor from the preparatory part of the court hearing.

Based on the results of the preliminary hearing, a criminal case against three persons, at the request of one of them, M., was scheduled for trial with the participation of a jury. During the preparatory part of the court session, the defenders of the other two defendants filed a motion to separate the criminal case against their clients into separate proceedings. This petition was granted by the court: the criminal case was returned to the prosecutor to resolve the issue of separating the criminal case against two persons into separate proceedings.

The state prosecutor, in a cassation submission, raised the issue of canceling the court decision to return the criminal case to the prosecutor, citing the fact that M. also refused to have her criminal case considered by a jury.

Since Ch. 36 and art. 327 of the Code of Criminal Procedure do not provide for the consideration in the preparatory part of the court session of requests for consideration or non-examination of a criminal case with the participation of jurors, the Investigative Committee of the Armed Forces of the Russian Federation canceled the court's decision to return the criminal case to the prosecutor, and sent the criminal case for consideration to the same court from the stage of trial (see. Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated January 27, 2006 N 48-O05-117).

When fulfilling the requirements of Art. 237 of the Code of Criminal Procedure, the position of the accused cannot be worsened on the initiative of the court.

The preliminary investigation against P. was carried out in the form of an inquiry, which ended in an indictment. From this document it was clear that P.’s actions contained elements of two crimes: -

contempt of court, expressed in insulting participants in the trial (Part 1 of Article 297 of the Criminal Code); -

contempt of court, expressed in insulting a judge participating in the administration of justice (Part 2 of Article 297 of the Criminal Code).

Despite the presence of a combination of two crimes, the plot of the case in the indictment was presented as a single whole, and what P. did was qualified under one article of the Special Part of the Criminal Code - Part 2 of Art. 297. Since P. was charged with two elements of crime, it was unclear from the contents of the indictment which specific actions of hers qualified under Part 2 of Art. 297 CC.

The vagueness in the presentation of the circumstances of the case, the violation of the requirements of the law when qualifying P.’s act, the court reasonably regarded as a circumstance preventing the consideration of the case in accordance with the provisions of the criminal procedure law. According to the protocol of the court session, during the preliminary hearing, the presiding officer drew the attention of the state prosecutor to the violation of the rules of substantive and procedural law by the prosecution. The state prosecutor did not express any judgment on this issue, leaving the resolution of the problem to the discretion of the court. Other participants in the process on the part of the prosecution did not appear at the court hearing, although they were duly notified of its holding; they did not express opinions regarding the presence of contradictions in the case by submitting written statements, petitions, or complaints.

In accordance with Art. Art. 236 - 237 of the Code of Criminal Procedure, the criminal case against P. was returned to the prosecutor to eliminate the shortcomings that prevented its consideration. The parties agreed with this court decision. The indictment against P. was re-drafted, her actions were classified as a set of crimes under Part 1 of Art. 297 and part 2 of Art. 297 CC. Based on the results of the trial under Part 2 of Art. 297 of the Criminal Code a guilty verdict was rendered, and under Part 1 of Art. 297 of the Criminal Code, the criminal case against her was terminated. The state prosecutor in the cassation submission and the victim in the cassation appeal raised the issue of canceling the decision to terminate the criminal case, citing the fact that the generally accepted legal position of the Constitutional Court of the Russian Federation is that in the course of removing obstacles to the consideration of the criminal case, the position of the accused cannot be worsened, including by accusing him of crimes for which he had not previously been charged.

The Investigative Committee of the Armed Forces of the Russian Federation, in the Cassation ruling dated February 21, 2007, indicated on this matter, terminating the criminal case against P. under Part 1 of Art. 297 of the Criminal Code that the court correctly applied the criminal procedure law, since from the materials of the criminal case it follows that the charge under Part 1 of Art. 297 of the Criminal Code, the convict was charged solely on the initiative of the court, despite the fact that in accordance with Art. 15 of the Code of Criminal Procedure, the function of prosecution cannot be assigned to the court.

The decision adopted by the court of first instance fully complies with the legal positions of the Constitutional Court of the Russian Federation regarding the division of procedural functions in criminal proceedings. From the materials of the criminal case it clearly follows that the prosecution’s right to formulate charges against P. was not fully exercised either when drawing up the first indictment, or when the court resolved the issue of its compliance with the requirements of the criminal and criminal procedural laws (see Definition IC of the Armed Forces of the Russian Federation dated February 21, 2007 N 3-O06-30).

An application for consideration of a criminal case with the participation of a jury must be submitted by the accused no later than the moment the judge retires to the deliberation room to make a decision to schedule a trial.

The defendant in the cassation appeal asks to cancel the decision to schedule a court hearing, and to send the criminal case for a new trial from the preliminary hearing stage, since before this decision was made, he filed a petition for the case to be considered by a court with the participation of a jury. The Investigative Committee of the Armed Forces of the Russian Federation left the resolution on scheduling a court hearing unchanged. According to the protocol of the court session, the accused, during the preliminary hearing, insisted that the criminal case against him be considered by a single judge. He submitted a request to have the case examined by a jury after the judge had retired to the deliberation room to make a decision based on the results of the preliminary hearing. Under such circumstances, the defendant’s request to have his case examined by a court with the participation of a jury was not subject to consideration as filed outside the preliminary hearing (see Determination of the IC of the Armed Forces of the Russian Federation N 78-O06-25).

The judge’s decision, adopted based on the results of the preliminary hearing, regarding the refusal to satisfy the petition to terminate the criminal case is not subject to cassation appeal (see Determination of the IC of the Armed Forces of the Russian Federation N 78-O06-25).

In cases of crimes that form an ideal totality, presentation of evidence for each crime is not required.

A. was charged with committing crimes under paragraph “z” of Part 2 of Art. 105, paragraph "c" part 2 of Art. 162 of the Criminal Code.

On January 30, 2007, the Tyumen Regional Court, at the request of the defense, filed during the preliminary hearing, returned the criminal case against A. to eliminate violations committed when drawing up the indictment.

On April 26, 2007, the Investigative Committee of the Armed Forces of the Russian Federation, following the cassation submission of the state prosecutor, canceled this Resolution, indicating the following.

A. is accused of committing crimes that form an ideal set. A list of evidence separately for each of the crimes in this case is not required (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated April 26, 2007 N 89-O07-13).

The basis for returning a criminal case to the prosecutor are significant violations of the criminal procedural law, which exclude the possibility of a court ruling or other decision.

T. was charged with committing crimes under paragraphs “a”, “b”, “d”, “g”, “h”, “j”, part 2 of Art. 105, part 1 art. 131, part 3 art. 158, paragraph "c" part 4 of Art. 162, part 2 art. 167, part 1 art. 244 of the Criminal Code, B. - paragraphs “a”, “b”, “d”, “g” part 2 of Art. 105, paragraph "c" part 4 of Art. 162, part 2 art. 167 of the Criminal Code.

On February 5, 2007, the Kurgan Regional Court, following a preliminary hearing, returned the criminal case against them to the prosecutor to remove obstacles to its consideration by the court.

The court of first instance considered the following to be violations that impede the consideration of the case.

T. and B., during a robbery against G., took possession of property worth 1,620 rubles, took the lives of G. and K., and destroyed K.’s property by arson in the amount of 97,950 rubles. The indictment documents do not reflect who exactly suffered the damage or whether it was significant. This violates the rights of their relatives participating in the case as victims.

In the list of evidence confirming the accusation of committing both robbery and murder, the investigator indicated only sources containing evidence and other documents in another criminal case (record of interrogation of witness G., copy of the resolution to initiate a criminal case against T., copy of the statement K., a copy of the indictment in another case, etc.), but did not disclose them.

On March 26, 2007, the Investigative Committee of the Armed Forces of the Russian Federation, following the cassation submission of the state prosecutor, canceled this Resolution, indicating the following.

According to the Resolution of the Constitutional Court of the Russian Federation dated December 8, 2003 N 18-P “In the case of verifying the constitutionality of the provisions of Articles 125, 219, 227, 229, 236, 237, 239, 246, 254, 271, 378, 405 and 408, as well as Chapters 35 and 39 of the Criminal Procedure Code of the Russian Federation in connection with requests from courts of general jurisdiction and complaints from citizens,” within the meaning of paragraph 1 of part 1 of Art. 237 of the Code of Criminal Procedure, the return of the case to the prosecutor in the event of violation of the requirements of the Code of Criminal Procedure when drawing up an indictment may take place if this is necessary to protect the rights and legitimate interests of participants in criminal proceedings. In this case, the basis for returning a criminal case to the prosecutor are significant violations of the criminal procedural law, which exclude the possibility of a court ruling or other decision.

The proper persons were recognized as victims in the case.

The qualifying feature “causing significant damage” is an evaluative category; in the opinion of the preliminary investigation authorities, it is contained in the actions of the perpetrators. The final conclusion about its existence is within the competence of the court. There are no obstacles to making such a decision.

The indictment contains an extensive list of evidence confirming the guilt of T. and B.

Some of the sources of evidence that the court cited in its decision, such as the decision to initiate a criminal case, the indictment, are not evidence.

The fact that the contents of the interrogation of witness G., a copy of K.’s statement and a copy of the interrogation protocol of T. are not disclosed in the indictment does not exclude the possibility of a verdict or other court decision in the case (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated March 26, 2007 N 82 -O07-12).

B. was charged with committing crimes under Part 1 of Art. 105, part 3 art. 30, paragraph "a" part 2 art. 105 of the Criminal Code.

On February 2, 2007, the Supreme Court of the Karachay-Cherkess Republic, following a preliminary hearing, returned the criminal case against B. to eliminate violations committed when drawing up the indictment.

The court of first instance considered the fact that the investigator did not include the testimony of the accused in the indictment at the preliminary investigation stage as a violation that prevented the consideration of the case.

On March 28, 2007, the Investigative Committee of the Armed Forces of the Russian Federation, following the cassation submission of the state prosecutor, canceled this Resolution, indicating the following.

It is the prerogative of the investigator to include or not include evidence in the indictment.

By instructing the preliminary investigation bodies to include the testimony of the accused in the indictment, the court, as correctly stated in the cassation submission, went beyond the powers granted to it (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated March 28, 2007 N 30-O07-8).

The law does not provide for the possibility of returning a criminal case to the prosecutor to change the charge to a more serious one.

L. and B. were charged with attempted murder with particular cruelty - by arson, as well as with the destruction and damage of other people's property by arson, in the last episode the crime was qualified under Part 1 of Art. 167 of the Criminal Code.

On February 14, 2007, the Stavropol Regional Court, following a preliminary hearing, returned the criminal case to eliminate violations committed in drawing up the indictment, since, in its opinion, the qualification of the actions of the accused under Part 1 of Art. 167 of the Criminal Code presupposes the need to exclude arson as a method of murder.

On April 24, 2007, the Investigative Committee of the Armed Forces of the Russian Federation, following the cassation submission of the state prosecutor, canceled this Resolution, indicating the following.

Damage or destruction of someone else's property by arson in accordance with Part 2, Clause 6 of Resolution of the Plenum of the Armed Forces of the Russian Federation dated 06/05/2002 N 14 “On judicial practice in cases of violation of fire safety rules, destruction or damage to property by arson, or as a result of careless handling with fire", the deliberate destruction or damage of individual objects using fire under conditions that preclude its spread to other objects, must be qualified under Part 1 of Art. 167 of the Criminal Code, if the victim suffered significant damage.

BVS RF. 2002. N 8; 2007. N 5.

In this regard, the qualification of the actions of the accused under Part 1 of Art. 167 of the Criminal Code was unreasonably regarded by the court as a violation of the law, preventing the court from considering the case on the merits.

Attempted murder by arson and intentional damage, destruction of someone else's property by arson, as correctly stated in the cassation submission, are independent crimes.

We cannot agree with the court’s conclusion that the qualification of damage or destruction of someone else’s property by arson under Part 1 of Art. 167 of the Criminal Code excludes the possibility of qualifying attempted murder by arson.

According to the Resolution of the Constitutional Court of the Russian Federation of April 20, 1999 N 7-P "In the case of verifying the constitutionality of the provisions of paragraphs 1 and 3 of part one of Article 232, part four of Article 248 and part one of Article 258 of the Criminal Procedure Code of the RSFSR in connection with requests from the Irkutsk District Court of Irkutsk region and the Sovetsky District Court of the city of Nizhny Novgorod" the Constitution of the Russian Federation does not comply with the obligation of the court, on its own initiative, to return a criminal case to make up for the incompleteness of the investigation, to change the charge to a more serious one (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated April 24, 2007 N 19-O07-17).

Russian Aerospace Forces. 1999. N 4.

During the preliminary investigation, the lawyer defended two accused, despite the fact that the interests of one contradicted the interests of the other. The court, having identified this fact, reasonably regarded it as a circumstance preventing the consideration of the case by the court, and returned the case to the prosecutor to eliminate it.

Lawyer L., at the preliminary investigation stage, defended the accused Gavrilova and Gavrilov, despite the fact that the latter exposed the former in committing crimes, and Gavrilova denied her involvement in criminal activities.

On May 29, 2006, the Voronezh Regional Court, at the request of interested parties, granted the petition to disqualify lawyer L. and returned the criminal case against the Gavrilovs to the prosecutor to eliminate violations committed when drawing up the indictment.

The court rightfully removed the lawyer, since at the preliminary investigation stage he defended the interests of the Gavrilovs, despite the fact that the interests of one accused contradicted the interests of the other.

In accordance with Part 6 of Art. 49, clause 3, part 1, art. 72 of the Criminal Procedure Code, this excludes the possibility of a lawyer’s participation in the case. This circumstance indicates a violation of Gavrilova’s right to defense at the preliminary investigation stage. Violation of Gavrilova’s right to defense at the stage of preliminary investigation is an obstacle to the consideration of the case in court (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated September 22, 2006 N 14-O06-31).

The refusal of the preliminary investigation authorities to provide a translator to a person who does not speak the language in which criminal proceedings are being conducted is grounds for returning the criminal case to the prosecutor.

On July 5, 2007, the Investigative Committee of the Armed Forces of the Russian Federation upheld the decision of the Orenburg Regional Court to return the criminal case to the prosecutor, indicating the following.

In accordance with Part 2 of Art. 18 of the Code of Criminal Procedure, participants in criminal proceedings who do not speak the language in which the criminal proceedings are conducted must be provided with an interpreter.

As follows from the materials of the criminal case, L. does not speak Russian.

After sending the criminal case to the prosecutor with the indictment, the investigator issued a resolution “On the advisability of presenting an interpreter to the accused L.”

The court twice returned the criminal case to the prosecutor to eliminate a significant violation of the criminal procedure law, but both court decisions were not implemented.

Under such circumstances, the court reasonably came to the conclusion that L. was unlawfully deprived of the right to have a proper translator during the investigation of a criminal case (see Determination of the Investigative Committee of the Armed Forces of the Russian Federation dated July 5, 2007 N 47-O07-57).

Resolution to schedule a court hearing without a preliminary hearing

§ 2. PARTICIPATION OF A LAWYER AT THE COMPLETION OF THE PRELIMINARY INVESTIGATION IN CASES WHICH, AT THE REQUEST OF THE ACCUSED, MAY BE SENDED FOR TRIAL IN COURT WITH THE PARTICIPATION OF A JURY

A preliminary hearing in a criminal trial is a stage of the proceedings that is only possible under certain circumstances. They are established in Art. 229, part 2 of the Code of Criminal Procedure. Let's look at them in more detail in the article.

Grounds for holding a preliminary hearing in criminal proceedings

The circumstances under which the considered stage of the proceedings is permitted include:

1. Receipt of a request from one of the parties to exclude evidence.
2. Detection of circumstances under which the return of materials to the prosecutor is permitted.
3. Discovery of facts, the presence of which may result in termination or suspension of the proceedings.
4. Receipt of a petition from the accused to schedule a hearing with the participation of a jury.

An application serving as the basis for a preliminary hearing in criminal proceedings may be filed after the defendant has familiarized himself with the materials or within three days after the prosecutor has sent them to the court and served the indictment (conclusion) on the subject.

Regulations of the Code of Criminal Procedure

The preliminary hearing begins if there is a corresponding order from the judge. The general rules of production are based on the provisions of the Code of Criminal Procedure, which govern it in general. They are defined in Chap. 35 and 36 of the code. The procedure for conducting a preliminary hearing in criminal proceedings is also regulated by specific provisions. They are present in Art. 234 Code of Criminal Procedure. This norm determines that:

Additional rules

During the preparation or preliminary hearing, the defense may file a motion to call a witness to corroborate the defendant's alibi. This application must be granted by the court in any case. In addition, the defense may submit a motion to request additional items or evidence. If the court finds that they are essential to the proceedings, the request must be granted. Witnesses can be any subjects who know anything about the circumstances of the implementation of investigative actions, the seizure or inclusion of documents in the materials considered at the meeting.

Important point

It is necessary to indicate a number of nuances that accompany a preliminary hearing in a criminal case. The minutes must contain all events occurring at the meeting. The result of the proceedings is reflected in the decision. In this case, the court decision, as a rule, is not subject to appeal. You can only challenge the decision to terminate the case or choose a preventive measure. In addition, the Constitutional Court recognized the admissibility of an appeal in case of suspension of proceedings or change of jurisdiction.

Motion to exclude evidence

The above procedure for conducting a preliminary hearing in criminal proceedings is specified depending on the circumstances. When a petition is received to exclude evidence, the court must decide the issue of eliminating certain information from the list that will be considered at the hearing. This statement from the party must be submitted in writing. In this case, the form established in Art. 235, part 2 of the Code of Criminal Procedure. The motion must specifically identify the evidence that the party believes should be excluded. In addition, the applicant must provide the reasons on which this decision was made and the circumstances confirming them. The judge, in turn, must review the petition. During the process, he has the right to attach the document specified in the application to the case, to announce the contents of acts and other documents. If the petition was filed on the basis that the evidence was obtained in violation of the provisions of the Code of Criminal Procedure, the prosecutor will have to refute these arguments. In other cases, the defense is required to prove the validity of the grounds.

Results of satisfying the application

Recognition of a statement means that specific evidence loses its legal effect and cannot be taken into account when making a sentence or other decision. In addition, it cannot be used or examined during the trial. If a preliminary hearing in a criminal case involves a jury, the parties or other entities involved in the consideration of the materials do not have the right to inform the assessors about the existence of evidence excluded by the court from the list. Disclosure of the circumstances justifying this decision is also prohibited. The court order scheduling a hearing based on the results of the preliminary hearing must indicate both the excluded evidence and the materials in accordance with which it was excluded from the process. At the same time, it is allowed, during subsequent consideration, to file a petition to recognize them as admissible.

Circumstances for returning materials to the prosecutor

If they exist, a preliminary hearing in the criminal case is scheduled. This is allowed at the initiative of the judge or at the request of the party. The circumstances under which materials must be returned to the prosecutor are violations of the requirements of the Code of Criminal Procedure when drawing up an indictment (conclusion), if they exclude the possibility of a verdict or other decision by the court.

Uncertainty of the Code of Criminal Procedure

The Code does not establish a clear definition of violations that may be committed when drawing up a conclusion or an act of accusation. The Code of Criminal Procedure does not provide for criteria by which one can judge whether the court has the opportunity to make a decision or does not have it. In this regard, quite often in practice there are disputes about the legality of decisions made on the return/non-return of materials to prosecutors. Explanations were given at the time by the Constitutional Court and the Supreme Court. The first, in particular, in the Resolution of December 8, 2003, noted that the provisions of Art. 237, part 1 of the Code of Criminal Procedure does not exclude the power of courts on their own initiative or in accordance with a party’s request to return materials to the prosecutor if, during pre-trial proceedings, there were significant violations of the law that cannot be eliminated during the proceedings, if such a decision is not related to the completion of the preliminary investigation or inquiry. More specific explanations were given by the Plenum of the Supreme Court in the Resolution of March 5, 2004. In particular, the Supreme Court indicated that non-compliance with the provisions of Art. 220, 225 of the Code of Criminal Procedure, excluding the possibility of making a decision on the merits in accordance with the document. The latter, in particular, occurs when:

Taking into account the above, we can conclude that a preliminary hearing in criminal proceedings is appointed if there are violations in the drawn up indictment/conclusion, if:

1. They are significant.
2. Prevent the court from making a decision.
3. Eliminating their consequences is not associated with making the investigation or inquiry complete.
4. A copy of the report/conclusion was not served on the accused.
5. Elimination of consequences does not require time expenditure exceeding 5 days.

The purpose of returning materials to the prosecutor if a copy of the report was not served on the accused is quite clear. The official is obliged to ensure the execution of the speaker as one of the key procedural means that guarantees the subject’s exercise of his right to defense. However, the court itself cannot correct this violation. This is due to the presence of a general requirement that the authority does not have the right to take any actions that cast doubt on his involvement with the prosecution.

Other circumstances of the return of materials to the prosecutor

If there is a need to draw up an indictment/conclusion when a decision is made to apply compulsory medical measures, a preliminary hearing in criminal proceedings is also scheduled. This circumstance is revealed when the question of placing the accused under medical supervision is raised. After reviewing the materials, the court may not agree with the decision to apply compulsory medical measures. In this regard, he may admit that the proceedings should be carried out according to general rules - with the investigation carried out in full and the indictment/conclusion drawn up based on its results. A preliminary hearing in criminal proceedings is also appointed when:

Legal requirements

When returning materials to the prosecutor, a number of provisions must be taken into account. They must be observed regardless of what circumstances served as the reason for returning the case to the prosecutor. The legislation requires the following:

1. The question of choosing a preventive measure for the accused, the materials on the crime of which are returned to the prosecutor, is decided by the judge.
2. Evidence obtained to correct violations that were committed during the preparation of the indictment/conclusion, if it took more than 5 days, is a priori considered unacceptable.

Suspension or termination of production

The procedure for a preliminary hearing in a criminal trial in this case is prescribed in the presence of circumstances similar to those that guide the inquiry officers/investigators during the investigation. However, there are two significant differences. In the list of circumstances that a judge may be guided by when scheduling a preliminary hearing in criminal proceedings, there is no provision specified in Art. 208 part 1 clause 1 of the Code of Criminal Procedure - “failure to identify the subject who is subject to prosecution as an accused.” This is quite justified, since the authorities cannot receive materials for which the perpetrator has not been identified. At the same time, the list of grounds is supplemented by a condition under which the court can suspend proceedings if a request is sent to the Constitutional Court regarding the constitutionality of the law to be applied when considering the materials. Another circumstance is the acceptance of a complaint from any party to the proceedings. In it, the participant in the process must indicate a violation of his constitutional rights as a result of the application or possible application of a norm that is not consistent with the Basic Law of the Russian Federation.

Explanations of the RF Armed Forces

In the Resolution of October 31, 1995, the Plenum indicated that, firstly, the court’s request must be made in writing. Secondly, the document must provide the exact name, date of adoption, number, source of publication and other data about the legislative act to be verified. In addition, the court in its request indicates the reasons for which the decision to send the application was made. Also in this Resolution, the Supreme Court recommended that the authorities simultaneously change the measure of restraint for the accused if he was in custody at that moment. This is a fairly important note, since consideration of requests by the Constitutional Court takes a significant period of time.

Valid solutions

If the proceedings are suspended, the judge has the right to make a decision to return the materials to the prosecutor. In this case, there are 2 possible solutions:

1. If an accused person in custody escapes, a resolution is issued in which the prosecutor is instructed to ensure the search for the person.
2. If the subject, who was at large, disappeared, a decision is made on the initiative of the judge to search for, detain and place him in custody.

Exceptions

During the preliminary hearing, the court cannot decide to dismiss the case if circumstances have been identified that indicate the existence of rehabilitative grounds for closing the proceedings or ending the prosecution. In this case, production is carried out according to general rules. If the discovered rehabilitating circumstances are confirmed, the court makes a decision. During the preliminary hearing, additional grounds may be identified that oblige the decision to terminate the proceedings. This is the prosecutor's refusal to bring charges. In this case, the rules specified in Art. 246 part 7 of the Code of Criminal Procedure.

Jury participation

A preliminary hearing in criminal proceedings if there is a request to involve assessors is based on general rules. However, given the specifics of such proceedings, the legislation establishes a number of reservations:

1. A crime for which several subjects are held accountable is considered against all of them if at least one of them has submitted a request for a jury.
2. If the relevant request was not sent or was not confirmed during the meeting, the proceedings are carried out in another court. It is determined according to the rules of Art. 30 Code of Criminal Procedure.
3. The resolution that sets up a preliminary hearing in a criminal case, in addition to resolving other issues, determines the number of candidate jurors to be called, which must be at least 20.

The decision to schedule a jury trial is final. Subsequently, the defendant’s refusal to consider the case in such a composition is not accepted. At the request of the parties, they are given copies of the resolution.

Specifics of the procedure

To more fully characterize the institution of a preliminary hearing, it is also necessary to say that if two or more grounds for its appointment are identified, one meeting is held. Based on its results, appropriate decisions are made. For example, in practice there are quite frequent cases when preliminary hearings are held before a meeting with the participation of a jury, at which issues of excluding evidence or adding to their list are also considered. The decisions taken are usually recorded in one resolution.

Conclusion

The Code of Criminal Procedure, unfortunately, does not explain the very concept of a preliminary hearing in criminal proceedings. As you know, there are several stages in it. First, inquiry officers or investigators are engaged in clarifying the circumstances. After this, the materials go to the prosecutor. He issues an indictment/conclusion and sends the case to court. Proceedings at the authority may be carried out according to general rules. However, if the circumstances discussed above exist, a preliminary hearing will be scheduled. In general, it is necessary to remove obstacles to proceedings according to general rules. If the defendant has a lawyer, then a preliminary hearing in a criminal case is not carried out without a lawyer. Moreover, in many cases his presence is extremely important and necessary. A lawyer will be able, for example, to competently, based on the law, justify the reasons for excluding evidence from the case file. When scheduling a hearing, judges should take into account not only the norms of the Code of Criminal Procedure, but also the explanations of the Constitutional and Supreme Courts. Their Resolutions specify the legislative rules and explain the specifics of their application. Particular attention should be paid to resolving the issue of attracting a jury to the meeting. The accused who submits the relevant petition must be explained the requirements of the law and warned that his subsequent refusal to be heard in such a composition will not be accepted. You should also comprehensively study the indictment received from the prosecutor.

At the preliminary hearing, the lawyer may file the following petitions: to declare evidence inadmissible, to declare evidence irrelevant, to call additional witnesses, to order an initial examination, to suspend the case, to terminate the case, to return the case to the prosecutor, to include objects and documents in the case file. etc.

In what cases should a lawyer make these motions? Firstly, there must be appropriate grounds for filing a petition. Second, the filing of each of these motions must be tactically justified. What does this mean?

These motions should not result in an “improvement of the charge.” Improving the prosecution means eliminating investigative errors, filling gaps in the evidence base, etc.

These motions should not prematurely reveal the defense's cards to the prosecutor. Even if the court grants the defense's motion to declare the evidence inadmissible, the prosecutor still has the opportunity to reiterate the admissibility of the evidence. At the same time, he will already know all the arguments of the defender.

In addition, some of these motions have certain restrictions, for example, a motion to declare evidence inadmissible can only be made in relation to the prosecution evidence specified in the indictment. It should be noted that a petition to declare evidence inadmissible must be submitted in writing.

When filing motions to declare evidence inadmissible if the case is tried by a jury, the lawyer must remember that if such motions are considered during the trial, the jury will be removed to the deliberation room for the duration of their consideration. As practice shows, such situations cause the jury to have a negative attitude towards that side, because of which they are forced to go back and forth, and this can also distract their attention.

Issues of participation of a defense lawyer in procedural actions carried out at a preliminary hearing

The most common procedural actions performed at a preliminary hearing are: questioning of witnesses in relation to the circumstances of the investigative actions and reading out documents. Regarding the questioning of witnesses, the following can be recommended:

If a lawyer makes a request to question a witness at a preliminary hearing, it is advisable to summon this witness to the court in advance so that he will be in court for his possible questioning. In this situation, the court will have no reason to refuse such a request.

The lawyer must monitor the range of questions that are asked of the witness in order to prevent the interrogation from going beyond the scope of clarifying the circumstances of the investigative action.

When the prosecutor reads out certain materials of the criminal case, the lawyer must monitor copies of similar documents to ensure that there are no distortions in the text of the read document.

The protection of rights in the Russian legal system is very similar to the international one. A large variety of tools are used in this regard.

But the most effective thing will be to understand how to file a petition in court. Although this is not the only option for influencing the investigation.

Basic moments

Protecting human rights and interests in court requires the use of different options for influence. All of them are prescribed in legislation. The most common option is a petition. The judicial system of the Russian Federation allows for various procedures. Both individuals and legal entities have the same rights in court.

It is worth noting that they are equal in them. Therefore, the protection applies to both the accused, the defendant, and the plaintiff, the victim. The use of the petition is carried out on the basis of regulation by law. Only with the permission of regulatory legal acts can one count on the approval and adoption of a document.

What it is

A motion is a statement that a party to a case has the right to make during a trial. It may contain a specific set of data and be expressed in several ways:

In the case of an oral statement, the request is recorded in documents. But it is worth considering that this action is performed by the secretary. He regulates the process textually, and therefore takes into account the moment of filing the application. And this fact is included in the case materials.

What is his role

The main role of the petition is to convey any information to the judicial institution. Through this document, the procedural transfer of information is carried out. The petition itself is of particular importance.

It is capable of transmitting the petitions of the parties to the case. During the trial, requests are transmitted only through this paper. Although it is worth noting that the law also allows the recording of a petition during a meeting by the secretary. This means that you don’t have to make a paper version, but make an application orally.

There are a large number of situations that require filing a petition. This document allows you to direct the investigation and regulate the processes in it. And in this regard, all participants in the proceedings have the right to use the petition.

This factor should be taken into account, since you may encounter a conflict of interest. All legislative norms regulate the possibilities of appeal by the parties to the case.

If the point is indicated in the procedural code or judicial practice, you can count on a positive decision on the petition. In other cases, it is better to refrain from filing a document or filing a petition. This action leads to exaggeration of one's rights in the process.

The legislative framework

Regulation of the use of the petition is reflected in all basic documents. The legal basis for this action is set out in the following codes:

Civil procedural	It is worth considering Article 166 - it establishes options for resolving petitions. The rights of all parties involved in the case are stated in Article 35 of the Code of Civil Procedure of Russia
Criminal procedural	This document allocates a separate chapter for petitions - 15 in the fourth section. The rights of petition applicants are described in Article 119. But the procedure for carrying out this action is directly discussed in Article 120. The time frame for consideration is also established and regulated by Article 121
Arbitration procedural	A document of this nature also includes the concept of a petition and aspects of working with it. You should rely on Article 159. Its provisions are responsible for providing such a right to protect interests
About administrative offenses	This document also contains provisions regarding petitions. It is worth considering article 24.4 here
Administrative proceedings	Article 154 deals with the means of resolving applications. They control the circulation of such opportunities

How to write a petition to the court correctly

Drawing up petitions involves studying structural aspects and content. To write a document correctly, you should pay attention to the following components:

• use of an official business style when writing in the text;
• the use of language that is within the legal framework;
• establishing links to legislative acts;
• normalization of text by confirming a specific fact with a set of documents.

Each of these points should be considered carefully and applied to the document. Based on them, the court considers the possibility of approving the petition. Because the most important thing is to create a professional text.

The arguments for the execution of the request are also placed there. The court will study them too, in connection with the current legislation and attached documents. It is important to use existing samples. Although the law does not clearly regulate the format of the petition. Therefore, its compilation is carried out in a free structure.

What are the types

There are a large number of motions that need to be satisfied for the purposes of the parties to the case. Depending on what type the compiler is starting from, the structure and content are chosen. The document will not always be written within certain limits. And in each situation, the specifics should be taken into account.

The following options should be considered:

• rescheduling the court hearing;
• the need to require evidence;
• restoration of the statute of limitations;
• implementation of interim measures;
• calling a specialist, translator, witness, expert, or other competent person;
• changing the preventive measure;
• bringing a third party to the court hearing.

These are the main options that are used when considering cases. Although the legislation establishes a wider list of possibilities.

Document structure

The petition has a varied structure. It changes when a different type of document is used. The topic of the petition also controls the structure.

But there is a standard version that includes the main points of the paper:

Structure	Filling
A cap	This part is responsible for establishing the details of the case. They include data: about the court, the investigator to whom the paper is submitted; about the applicant; about the parties to the case under consideration
Document's name	Here it is worth indicating not only the word petition, but also the direction of this paper. For example, you can write a request for additional interrogation
Main content	This part contains information regarding office work. And then they include the argumentation of their position regarding the request. At the end, you can place the request itself in one sentence. This allows you to structure the document
Applications	Includes placement of the names of documents that are attached to the petition. These are all those papers that are designed to protect the facts set out in the main text
Conclusion	It contains the date of preparation of the application, full name and signature of the applicant

It is worth considering that other aspects of the structure can be introduced. For example, when using a request for interrogation, a list of questions must be specified. They are corrected by the court, but form the argument for the existence of grounds for such an action.

If the petition refers to an examination, it is worth posting information about where it is possible to obtain an expert opinion. Plus, they indicate the cost of the action and payment options.

Sample of writing an application for a preliminary hearing

A preliminary hearing is held based on certain information. The rules for conducting such a procedural action are prescribed by law.

They are reflected in the following factors:

• motion to exclude evidence;
• there are grounds for returning criminal proceedings to the prosecutor;
• the possibility of suspending criminal proceedings;
• request for a hearing;
• there is a need to resolve a criminal case with a jury.

The document is written based on these grounds. And all the points are added to each other. You can use this form as a form:

Photo: Motion for Preliminary Hearing

Submission conditions

The main requirement for such a document is the legality of its use. Thus, the law allows all participants in the case to file a petition, but nothing more. To draw up petitions, the representative must have a power of attorney from the person indicating such powers.

When writing, you should definitely rely on legal grounds. Based on them, the legality of the document is established. And its consideration will begin with the processing of precisely these points.

What to do if your request is rejected

In the event that the approval of the application was rejected, it is worth using the option of filing a complaint or challenging it. These two options differ depending on the situation.

If there are obvious violations of rights, a complaint should be made to the court. Further, it is possible to challenge the situation. But if the grounds for refusal are significant, then it is worth pursuing disputes only if there is positive judicial practice.

The use of motions in court is quite widespread in all systems of the world. The use of such a document allows you to resolve controversial situations and set up the conduct of the case. The Procedural Code fully contains all the necessary data.

But still, sometimes you cannot do without the help of a lawyer who has the ability to correctly apply all the rules of the law.

UDC 343.1

T.A. ERMAKOVA,
postgraduate student of the Department of Criminal Procedure of Moscow State Law Academy

This article discusses current issues of the participation of the prosecutor at the preliminary hearing.
An analysis of judicial and prosecutorial practice shows that there is a need to expand in the Criminal Procedure Code of the Russian Federation the list of grounds for holding a preliminary hearing, which should include petitions from the prosecutor-prosecutor:
1) on changing the charge towards mitigation at the preliminary hearing;
2) on the extension of a preventive measure in the form of detention or house arrest, chosen during pre-trial proceedings, for the period of consideration of the criminal case in court.

The Criminal Procedure Code of the Russian Federation provides that the preparation of a criminal case for hearing can be carried out by a single judge in a general manner (Chapter 33 of the Code of Criminal Procedure of the Russian Federation) or in the form of a preliminary hearing with the participation of the parties (Chapter 34 of the Code of Criminal Procedure of the Russian Federation). Preliminary hearing is a new institution in Russian criminal proceedings, which has extended the principle of adversarial law to the stage of assigning a case to hearing. For the first time, the institution of a preliminary hearing was introduced into Russian criminal proceedings with the adoption of the Law of the Russian Federation of July 16, 1993 No. 5451-1 “On introducing amendments and additions to the Law of the RSFSR “On the Judicial System of the RSFSR”, the Criminal Procedure Code of the RSFSR and the RSFSR Code of Administrative Offenses.” A preliminary hearing was held only if the defendant requested a jury trial. In accordance with the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 8, 1999 No. 84 “On the practice of courts’ application of legislation regulating the referral of criminal cases for additional investigation,” a preliminary hearing is also held in cases of filing a petition to return the case for additional investigation on the grounds provided for in paragraphs 1, 3 and 4 parts 1
Art. 232 of the Code of Criminal Procedure of the RSFSR, i.e. in cases of incompleteness of the inquiry or preliminary investigation, which cannot be filled in at a court hearing; if there are grounds for bringing another charge against the accused, related to the one previously brought, or for changing the charge to a more serious one or significantly different in factual circumstances from the charge contained in the indictment, as well as if there are grounds for bringing other persons to criminal liability in this case if it is impossible to identify case materials about them. The Code of Criminal Procedure of the Russian Federation provides for the appointment of a preliminary hearing for all categories of criminal cases considered by courts of general jurisdiction, in the presence of at least one of the grounds listed in Part 2 of Art. 229 of the Code of Criminal Procedure of the Russian Federation. Thus, bringing a case to a preliminary hearing is allowed at the request of a party or at the initiative of the court to resolve issues: on the exclusion of evidence; on the return of the criminal case to the prosecutor if there are grounds provided for in Part 1 of Art. 237 Code of Criminal Procedure of the Russian Federation; on the suspension or termination of a criminal case; on holding a trial in the absence of the defendant in cases provided for in Part 5 of Art. 247 Code of Criminal Procedure of the Russian Federation; on scheduling the case for a hearing with a jury. The court may not schedule a preliminary hearing for any other reason.
According to the Code of Criminal Procedure of the Russian Federation, during the preliminary hearing the judge must ensure the possibility of participation of the parties and compliance with the general conditions of the trial provided for by Chapters 33, 35-36 of the Code of Criminal Procedure of the Russian Federation. Due to the importance of the issues resolved at the preliminary hearing, the need to conduct an adversarial procedure at the court hearing, the participation of the prosecutor at this stage of the criminal process in all cases of public, private-public and private prosecution, if the criminal case was initiated by the investigator or with the consent of the prosecutor by the interrogating officer, is mandatory. Clause 1.7 of the order of the Prosecutor General’s Office of the Russian Federation dated November 20, 2007 No. 185 “On the participation of prosecutors in the judicial stages of criminal proceedings” also indicates the need for the mandatory participation of the prosecutor at this stage of criminal proceedings, since the burden of refuting the defense’s arguments lies with the prosecutor.
Previously (according to the Code of Criminal Procedure of the RSFSR of 1960), the judge was obliged to find out whether evidence had been collected in a criminal case brought to court,
sufficient to consider the case in court (clause 3 of Article 222), thereby actually performing control and verification actions in relation to the preliminary investigation and bringing the accused to trial. The Code of Criminal Procedure of the Russian Federation, following the constitutional principle of adversarial construction of criminal proceedings, completely attributed these powers to the competence of the prosecutor in the pre-trial stage of the process. Therefore, the presentation of the accused to the court today is carried out by the prosecutor when approving the indictment (indictment), and the judge, at the stage of assigning the case to hearing, resolves organizational and administrative issues and, through a preliminary hearing, removes obstacles to considering the criminal case on the merits, without going into an assessment of the factual side of the prosecution. A preliminary hearing in modern conditions of criminal proceedings is given fundamental importance, which, as correctly noted in the theory of criminal proceedings, lies in “... the timely removal of obstacles in the case before it is resolved on its merits at the trial stage and the identification of violations of the requirements of the procedural law regarding the collection of evidence, which should lead to the recognition of the evidence as inadmissible and its exclusion from the case.”
Despite the importance of a preliminary hearing in criminal proceedings, prosecutors rarely request one. This situation is largely due to the shortcomings of regulatory regulation: the absence of Part 2 of Art. 229 of the Code of Criminal Procedure of the Russian Federation of relevant legal grounds. Thus, one of the obstacles to considering a criminal case on the merits, to eliminate which, in our opinion, a preliminary hearing should be held, is the erroneous qualification of the actions of the accused, including the qualification of their actions “with reserve”, allowed by the preliminary investigation authorities in indictments ( indictments). For example, the district prosecutor's office sent a case to court accusing S. of committing crimes under Part 1 of Art. 112 and part 1 of Art. 105 of the Criminal Code of the Russian Federation. The preliminary investigation body established that S.’s crime was committed under the following circumstances: “S. during a mutual quarrel, he punched the victim Ts. several times in the head and body, threw a rope loop over his legs and dragged him about 50 m, causing him moderate harm to his health through his actions in the form of a mild closed craniocerebral injury, as well as abrasions on face. Continuing the quarrel, S. knocked the victim down with a blow of his fist, and then squeezed his neck with his hands and strangled him.” The court qualified what S. did as one crime under Part 1 of Art. 105 of the Criminal Code of the Russian Federation, since all of S.’s actions were committed against the same victim during a quarrel, within a short period of time.
Another example. Zh. was accused by the preliminary investigation body under Part 1 of Art. 30 and paragraph “a”, part 3, art. 162 of the Criminal Code of the Russian Federation. The court qualified J.'s actions under Part 1 of Art. 30 and paragraph “a”, part 3, art. 162 of the Criminal Code of the Russian Federation was declared unnecessary, since his actions were covered by the completed crime. As it was established during the preliminary investigation, in mid-September 1999, an organized group consisting of G., Zh., V. in a car driven by D. arrived at the apartment of victims G. with the aim of committing a robbery. Having opened the door, the victim recognized Zh. and stated that she would call the police, after which all members of the organized group fled the crime scene. On October 20, 1999, the same organized group again arrived at the victims’ apartment with the aim of committing a robbery. The group members attacked the victim G., demanding the keys to the apartment. During the struggle, while holding the victim, Zh. inadvertently fired a pistol, as a result of which the victim G. was killed. Zh.’s actions, committed in mid-September 1999, were qualified by the preliminary investigation body as preparation for robbery, i.e., as an unfinished crime. Meanwhile, the crime was over, since on October 20, 1999, an organized group of the same composition again arrived with the aim of committing a robbery at the apartment of the victims G. and, threatening with a weapon, attacked G. at the entrance of the house in order to take possession of the keys to the apartment. As the court pointed out, “J.’s actions in relation to the same object of a criminal attack, aimed at achieving a single result, committed with the same goals and motives, should be considered as a single crime that does not require additional qualification of J.’s actions preceding the completed attack, like preparation for a crime."
These examples show that the materials of the criminal case often provide grounds for changing the charges already at the preliminary hearing. However, changing the charge by the prosecutor in the direction of mitigation, unfortunately, is not provided for in the Code of Criminal Procedure of the Russian Federation among the grounds for holding a preliminary hearing. Although the legislator mentions this right of the prosecutor, for example, in Part 5 of Art. 236 of the Code of Criminal Procedure of the Russian Federation in the following context: “If during the preliminary hearing the prosecutor changes the charge, then the judge also reflects this in the decision...” It turns out that the prosecutor can use this right only if the preliminary hearing has already been scheduled for any to another of the few reasons for its holding, provided for in Part 2 of Art. 229 of the Code of Criminal Procedure of the Russian Federation.
There are other arguments that indicate the advisability of adding Part 2 of Art. 29 of the Code of Criminal Procedure of the Russian Federation on the basis in question. It must be taken into account that in practice, the prosecutor who approved the indictment (indictment) and the prosecutor participating in the preliminary hearing, as well as supporting the charge during the trial (prosecutor-prosecutor), are often not the same person. In most criminal cases, assistant prosecutors are entrusted with supporting the prosecution, who, according to the criminal procedure law, are procedural officers in court.
independent figures. They have the right to file petitions and challenges, present evidence, participate in their study, speak in judicial debates (Article 244 of the Code of Criminal Procedure of the Russian Federation), and before the court leaves the deliberation room to pronounce the verdict, they can change the charge towards mitigation by: exclusion from legal qualifications acts of signs of a crime, aggravating punishment; exclusion from the charge of a reference to any norm of the Criminal Code of the Russian Federation or reclassification of the act in accordance with a norm of the Criminal Code of the Russian Federation providing for a more lenient punishment (Part 8 of Article 246 of the Criminal Procedure Code of the Russian Federation). Accordingly, the prosecutor-prosecutor cannot be bound by the arguments of the indictment (indictment), since he did not approve it; after familiarizing himself with the materials of the criminal case, he may form his own opinion, different from the opinion of the prosecutor who approved the indictment (indictment), about the legality and validity of the charge brought. In practice, a fairly common situation is when the prosecutor-prosecutor, having become convinced of the need to change the charge, for example, to reclassify the act in accordance with the norm of the Criminal Code of the Russian Federation, providing for a more lenient punishment, does not have the opportunity to petition the court to schedule a preliminary hearing on this basis, since .2 tbsp. 229 of the Code of Criminal Procedure of the Russian Federation does not provide such a basis for scheduling a preliminary hearing. It seems that holding a preliminary hearing on the prosecutor’s request to change the charge towards mitigation would contribute to the timely elimination of errors in the classification of crimes at the initial stages of the process or change the charge towards mitigation in another way, and would increase the efficiency of the prosecutor’s work, who is obliged to ensure the legality and validity of the charges against him. during judicial proceedings in a criminal case (Part 3 of Article 37 of the Code of Criminal Procedure of the Russian Federation), and, accordingly, would strengthen the authority and trust of the participants in the process in the prosecutor-prosecutor.
Conducting a preliminary hearing on the prosecutor's request to change the charge towards mitigation will serve to ensure that a criminal case with a reasonable amount of charges is assigned to trial. After all, according to Part 3 of Art. 231 of the Code of Criminal Procedure of the Russian Federation, the judge’s decision on scheduling a trial must contain a decision in relation to each accused on the qualification of the crime charged to him. Due to a change in the charge at the preliminary hearing, the criminal case may become subject to the jurisdiction of another court; in this case, the court that made the decision to change the charge is obliged to make a decision on the direction of the criminal case according to jurisdiction (part 1 of article 34, part 5 of article 236 of the Code of Criminal Procedure of the Russian Federation), since, according to the Constitution of the Russian Federation, no one can be deprived of the right for consideration of his case in that court and by the judge to whose jurisdiction it is assigned by law (Part 1 of Article 47).
On the issue of changing the charge at the preliminary hearing, there is an opinion that “... the prosecutor’s refusal of the charge or changing the charge to a more lenient one during the preliminary hearing is premature...”. In support, it is argued that since the law allows for the possibility of recognizing excluded evidence as admissible during the consideration of a criminal case on its merits, changing the charges at the preliminary hearing will be premature. However, we believe that this position does not seem entirely justified. The exclusion of this or that evidence cannot significantly affect the accusation, since according to the law it must be confirmed not by a single piece of evidence, but by their totality (Article 17 of the Code of Criminal Procedure of the Russian Federation). It should be taken into account that in accordance with Part 1 of Art. 46 of the Constitution of the Russian Federation guarantees everyone the right to judicial protection. The exercise of this constitutional right of a citizen, including the accused, directly depends on the legality and validity of the accusation brought to trial. In addition, Art. 6 of the Code of Criminal Procedure of the Russian Federation states that criminal proceedings are intended to protect the individual from illegal and unfounded accusations. Consequently, the prosecutor-prosecutor must, at the preliminary hearing, change the charge towards mitigation in all cases where there are legal grounds for this. According to clause 1.1 of the order of the Prosecutor General's Office of the Russian Federation dated November 27, 2007 No. 189 “On the organization of prosecutorial supervision over the observance of the constitutional rights of citizens in criminal proceedings,” prosecutors are required “at all stages of criminal proceedings to ensure effective supervision over the observance of the rights and freedoms of citizens guaranteed by the Constitution of the Russian Federation... " Therefore, a change in the charge brought against a person towards mitigation by the prosecutor at the preliminary hearing corresponds not only to the norms of the law on the state ensuring the citizen’s right to judicial protection, but also to the order of the Prosecutor General’s Office of the Russian Federation.
Another new basis for holding a preliminary hearing, which is proposed to be introduced into the Code of Criminal Procedure of the Russian Federation, addresses the issue of a preventive measure in the form of detention or house arrest during the consideration of a criminal case in court.
Detention and house arrest are the most severe measures of criminal procedural coercion. The law also includes measures of procedural coercion as measures of restraint not related to deprivation of liberty, in the form of a written undertaking not to leave, bail, personal guarantee, etc. (Article 98 of the Code of Criminal Procedure of the Russian Federation), and other measures of procedural coercion: detention of a suspect, obligation to appear, imprisonment, temporary removal from office, seizure of property, monetary penalty (Article 111 of the Code of Criminal Procedure of the Russian Federation). As is known, the characteristics of procedural coercive measures include “coerciveness, their use only in relation to a limited circle of persons, as well as their focus on preventing inappropriate behavior of participants in criminal proceedings and facilitating the collection and study of evidence in a criminal case.” The purpose of using all coercive measures is to prevent the suspect or accused from escaping, destroying evidence, threatening witnesses and other participants in criminal proceedings, etc. Therefore, it is quite obvious that the initiative in using coercion should belong to the prosecution. During the preliminary investigation, this issue was resolved unambiguously: the initiative here belongs to the one who prepares the charges and submits the materials to the court. As follows from the law, if during pre-trial proceedings the period of detention of the accused expires, the prosecutor must take care of its extension and, for this purpose, apply to the court with a petition. In this regard, the question arises of who should decide at the judicial stages to extend the preventive measure in the form of detention or change it to a more lenient one. In practice, as a rule, this issue is decided by the court on its own initiative. It seems that at the judicial stages of the process, the initiative to use coercion (extension of a preventive measure in the form of detention or house arrest, chosen during pre-trial proceedings) should also come from the prosecutor-prosecutor. For this purpose, the Code of Criminal Procedure of the Russian Federation should consolidate the consideration of the issue of extending a preventive measure in the form of detention or house arrest in a criminal case received from the prosecutor at the stage of preliminary hearing, subject to a corresponding request from the prosecutor-prosecutor.
According to paragraph 3 of Art. 228 of the Code of Criminal Procedure of the Russian Federation, in each criminal case received from the prosecutor, the judge must find out whether the preventive measure chosen for the accused during pre-trial proceedings is subject to cancellation or change. In particular, regarding the preventive measure in the form of detention or house arrest, the following is checked: whether the period of detention of the accused in custody, established by the court at the stage of preliminary investigation, has not expired; whether factual circumstances continue to exist on the basis of which the court concluded that the accused would abscond or continue to engage in criminal activity if he remained free, and therefore justify the need to isolate him from society. If there are no grounds for changing or canceling the preventive measure, the judge decides to leave the preventive measure unchanged, including in the form of detention or house arrest, and reflects this in the decision to schedule a court hearing without holding a preliminary hearing (clause 6 of Part 2, Article 231 of the Code of Criminal Procedure of the Russian Federation). However, the sole procedure for the court to resolve the issue of a preventive measure in the form of detention or house arrest at the stage of scheduling the case for hearing does not meet the modern rules of criminal proceedings, since it does not provide the accused with the opportunity to present his objections and supporting arguments to the court on the issue of the validity of the extension of these preventive measures for the period of consideration of the criminal case in court. In this regard, the Constitutional Court of the Russian Federation received a number of complaints from citizens. The Constitutional Court of the Russian Federation in its resolution dated March 22, 2005 No. 4-P “In the case of verifying the constitutionality of a number of provisions of the Criminal Procedure Code of the Russian Federation, regulating the procedure and timing of the use as a measure of restraint/detention at the stages of criminal proceedings following the end of preliminary investigation and referral of the criminal case to the court, in connection with complaints from a number of citizens,” recognized Articles 227 and 228 of the Code of Criminal Procedure of the Russian Federation in the part establishing the procedure for the judge to resolve the issue of a preventive measure at the stage of preparation for the court hearing, not contradicting the Constitution of the Russian Federation, “since the contained the provisions in them, in their constitutional and legal meaning, presuppose the need to ensure the accused the right to participate in the court’s consideration of the issue of choosing a preventive measure in the form of detention, on extending the period of detention or on leaving this preventive measure unchanged, to state his position and submit to its confirmation is necessary evidence.” However, the corresponding basis for holding a preliminary hearing was not enshrined in Part 2 of Art. 229 of the Code of Criminal Procedure of the Russian Federation, therefore, the procedure for ensuring the accused at the stage of assigning a case to a hearing the right to participate in the court’s consideration of the issue of extending a preventive measure in the form of detention or house arrest for the period of consideration of the criminal case in court remains unregulated.
In this regard, the practice of resolving the issue of extending a preventive measure in the form of detention for the accused during the consideration of a criminal case in court is not uniform. As a study of the materials of criminal cases considered by district courts in 2008 has shown, the issue of extending the preventive measure in the form of detention is resolved at the stage of scheduling the case for hearing. It seems that consideration of the issue of extending a preventive measure in the form of detention or house arrest in a criminal case received from the prosecutor should still be enshrined in the Code of Criminal Procedure of the Russian Federation at the preliminary hearing stage, since the procedure for conducting a preliminary hearing established in the law, providing for the participation of the parties, compliance general conditions of judicial proceedings, guarantees at the stage of assigning a case for hearing the right of the accused to participate in resolving the issue of a preventive measure in an adversarial environment, equality of rights of the parties.
The study showed that state prosecutors often file motions to change the defendant's preventive measure to detention in the preparatory part of the trial. For example, in the criminal case of B., who was accused of
committing a murder by a group of persons by prior conspiracy, as well as committing robbery, in the preparatory part of the court hearing, at the request of the state prosecutor, the court ruling in relation to B. changed the preventive measure from a written recognizance not to leave the place to detention. From the case materials it is clear that B. was accused of committing a particularly serious crime during the probationary period with a suspended sentence. “From the message of the criminal correctional inspection of the Avtozavodsky district of Nizhny Novgorod it follows that after his release from custody due to an acquittal verdict, he violated the conditional sentence regime by not appearing for registration. From the note available in the case materials from the defendant B. during his stay in the pre-trial detention center, it follows that during the investigation of this criminal case, he tried to influence witnesses, thereby interfering with the proceedings in the case.”
Another example. G. was accused of committing murder by a group of persons by prior conspiracy. In the preparatory part of the court hearing, at the request of the state prosecutor, the court ruling in relation to G. changed the preventive measure from a written undertaking not to leave the place to detention. From the case materials it is clear that G. was accused of committing a particularly serious crime. G. “after the jury’s verdict of not guilty
assessors was detained on suspicion of committing a crime under Art. 161 of the Criminal Code of the Russian Federation, and the criminal case is currently under investigation. These circumstances indicate that G. may continue to engage in criminal activity.”
These examples showed that prosecutors formed a reasonable opinion about the need for the accused to change the preventive measure to detention. Since the grounds for changing the preventive measure to detention appeared even before the consideration of the criminal case on the merits, the addition of Part 2 of Art. 229 of the Code of Criminal Procedure of the Russian Federation, the corresponding basis would allow considering the issue of changing the measure of restraint for the accused to detention or house arrest at the request of the prosecutor-prosecutor at an earlier stage of the process, i.e. at the preliminary hearing. Untimely consideration by the court of the issue of changing the preventive measure in the form of detention or house arrest may create obstacles to the objective consideration of the criminal case in the future, since the accused may escape or influence witnesses and victims.
Expanding the list of grounds for holding a preliminary hearing in connection with the need to consider the question of a preventive measure at the stage of assigning a case for hearing was proposed in some dissertations. A.V. Shigurov established that a preliminary hearing should be held when “there are grounds for choosing, changing or canceling a preventive measure.” However, it should be noted that the subject of consideration at the preliminary hearing should be such exceptionally strict preventive measures as detention and house arrest, otherwise the time before the start of consideration of the case on the merits will be unreasonably delayed. T.N. Dolgikh proposed adding Part 2 of Art. 229 of the Code of Criminal Procedure of the Russian Federation on the following basis: “to resolve the issue of selecting, canceling or changing a preventive measure in relation to the accused in the form of detention or house arrest.” According to the law, when the issue of choosing a preventive measure in the form of detention or house arrest arises in court, the court must make a decision on this in the manner provided for in Art. 108 of the Code of Criminal Procedure of the Russian Federation, i.e. quite quickly, therefore it is unnecessary to provide for a preliminary hearing on this basis. In addition, the resolution of the issue of the use of procedural coercive measures at the judicial stages in the form of detention and house arrest in accordance with the principle of adversarial behavior of the parties (Article 15 of the Code of Criminal Procedure of the Russian Federation) should be resolved at the request of the prosecutor.
Thus, in accordance with the above, it is proposed to supplement Part 2 of Art. 229 of the Code of Criminal Procedure of the Russian Federation on the following grounds:
- “if there is a request from the prosecutor to change the charges brought in cases provided for in Part 8 of Art. 246 Code of Criminal Procedure of the Russian Federation;
- if there is a request from the prosecutor to change the preventive measure to detention or house arrest or to extend these preventive measures for the period of consideration of the criminal case in court.”
This proposal can be taken into account by the legislator during the preparation of amendments and additions to the criminal procedure legislation.

Bibliography
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