As can be seen from the materials of the criminal case, the indictment was drawn up in violation of the requirements of Art. 220 of the Code of Criminal Procedure of the Russian Federation, which excludes the possibility of the court making a final decision on the basis of this indictment when considering the case on the merits. These actions of Sh. were qualified by the preliminary investigation authorities under Part 2 of Art. 109 of the Criminal Code of the Russian Federation.
Resolution on the return of the criminal case by the court to the prosecutor dated July 20, 2007 // Archive of the Zubovo-Polyansky District Court of the Republic of Moldova. 2007. In a criminal case against P., an indictment was drawn up in the presence in the materials of the criminal case of two decisions to terminate criminal prosecution against P. on the charge brought due to the absence of corpus delicti in his actions and in the absence of information about the cancellation in the materials of the criminal case the said resolutions; 2. Violations committed when presenting the plot of the criminal case, the formulation of the accusation and the qualification of the criminal acts of the accused.1.
Incorrect indication in the indictment (indictment) of information about the identity of the accused, as well as about the victim and other participants in the process; In addition, the investigation did not indicate where the criminal actions of D.I. Bakholdin were stopped, when his criminal activities ended. The Bryansk prosecutor's office mistakenly charged Bakholdin with narcotics charges - the indictment or act does not contain reliable information to identify the accused (for example, the identity of the accused, who refused to identify himself during the preliminary investigation, has not been accurately established); 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 four of Article 222 or part three of Article 226 of this Code; It is not taken into account that there are fundamental differences in the procedural position of the defense lawyer and the prosecutor. ensure the participation of prosecutors in the trial of all criminal cases of public and private-public prosecution, including in the consideration of cases initiated in accordance with Part 4 of Art. 20 and part 3 of Art. 318 Code of Criminal Procedure by a justice of the peace;
Returning the criminal case to the prosecutor
The changed criminal procedure law does not provide for the return of a criminal case by the court for an additional investigation in order to fill its incompleteness, orienting the prosecutor to improve supervisory activities. Was the indictment or indictment drawn up in violation of the Criminal Code? Therefore, the problem of returning a criminal case to the prosecutor in accordance with Art. 237 of the Code of Criminal Procedure, which has recently attracted increased interest from practitioners.
Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation provides for a mandatory condition under which it is possible to return the case to the prosecutor, namely: the violations specified in the law must prevent the consideration of the case by the court.
Differences and similarities between an indictment and an act
Judgment
In criminal proceedings there is another concept - the indictment of the Criminal Procedure Code, which many confuse with a resolution, but, in fact, these are two different documents that differ from each other according to the following criteria:
- An indictment does not mean the end of the investigation, but confirms the crime in the actions of the suspect, which allows his case to be sent to court for sentencing.
- The main difference is that the content of the act corresponds to the specific investigative action carried out, in particular, it is drawn up based on the results of an inquiry, inspection or examination of the incriminated act.
- The act always precedes the drawing up of the resolution and must be drawn up no later than 10 days before the cases are sent to court.
Important! Despite the fact that the act and the decision made are two different documents, their content, with the exception of the header, in most aspects repeats each other, but at the same time they are not interchangeable documents.
Closing indictment
Returning the case to the prosecutor [Article 237 of the Code of Criminal Procedure]
The purpose of this judicial procedure is not to fill the incompleteness and gaps of the preliminary investigation, and not to eliminate any shortcomings and omissions of the criminal prosecution authorities, which was typical for the legal institution of sending cases for additional investigation, but only to eliminate obstacles to the consideration of the case by the court.
Previously, on this basis, the court did not have the right to return the case to the prosecutor, since this would lead to a worsening of the situation of the person brought to criminal liability. Moreover, on May 7, 2013, changes to the criminal procedure law introduced by Federal Law No. 64-FZ of April 26, 2013 came into force. The right to return a criminal case to the prosecutor on the specified grounds is granted to the courts of the first, appellate and cassation instances.
Grounds and procedure for the court to return a criminal case to the prosecutor in accordance with Art.
If the violation is significant, but can be eliminated by the court, then there is no need to return the UD. If the violation cannot be corrected, the UD is returned to the prosecutor.
According to Part 2 of Art. 237 of the Code of Criminal Procedure of the Russian Federation, after the return of the UD, the prosecutor must eliminate the violations within 5 days.
not signed by the investigator, inquiry officer, not approved by the prosecutor; 6) violation of the victim’s right to access to justice, violation of the defendant’s right to defense. The judge, at the request of the party, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where.
What procedural significance does the ruling have?
Resolution of the magistrate in an administrative case
The indictment is of extreme importance for the future judicial investigation, since it briefly reflects the entire essence of the act charged to the accused. So, before scheduling the first hearing in the case, the judge gets acquainted with the materials of this particular paper, which should reflect the following main points regarding the crime in question:
- This document contains the final conclusions of the head of the investigation team regarding the present case, and also confirms the authenticity of all the evidence presented.
- The document contains the investigator’s resolution on the investigative actions carried out by both the operational workers and the prosecutor’s office employee, which certifies the legality of the charges brought and reflects to the maximum extent the objectivity of the article of the Criminal Code of the Russian Federation incriminated against the suspect.
- In accordance with Article 222 of the Code of Criminal Procedure of the Russian Federation, a duplicate of the resolution must be handed over to the accused person in order for him to build a procedure for protecting his interests in court by contacting a lawyer.
- One of the obvious factors concerning the resolution is that it clearly outlines the boundaries of the criminal case, namely, a specific list of incriminated articles within the framework of which all legal proceedings will take place. Thus, according to Article 252 of the Code of Criminal Procedure of the Russian Federation, the court has the right to interrogate only those participants in the process and witnesses who appear in this resolution.
- The defense can always sort out the evidence collected in the case into those that are relevant to the case and false or fabricated information that in no way proves the guilt of his client. In this way, as a rule, the degree of proof of the suspect’s guilt in relation to a given crime is determined.
- A resolution in a present criminal case can only be called a document in accordance with which a person suspected of committing a crime can be brought to trial, and this must be recognized by several officials at once - the investigator, the prosecutor, the judge and the lawyer.
Work of the prosecutor's office
Important! If the court considers the indictment to be insufficiently substantial to begin a judicial investigation, the authorized person has the right to send all materials to the investigative committee for revision.
THE NATURE OF “TYPICAL ERRORS AND VIOLATIONS COMMITTED WHEN INVOLVEMENT OF A PERSON AS AN ACCUSED
The procedural significance of such errors is quite large, as can be seen if you pay attention to judicial practice.
75 Review of judicial practice of the Ryazan Regional Court dated July 1, 2003 “Review of violations of procedural law committed by preliminary investigation bodies // ATP “Consultant Plus”.
Technical errors may be associated with simple ignorance of certain norms of criminal procedural legislation or deliberate ignorance of its provisions.61 Resolution of the judge of the Central District Court of the city of Prokopyevsk, Kemerovo Region dated February 27, 2013 in case No. 1-89/2013. Summarizing the presented review and the generalizations made, we can give the following definition of the concept of “mistakes and violations made when bringing a person as an accused.” This term, in our opinion, should be understood as any non-compliance with the requirements of criminal procedural legislation that constitute the procedure for filing charges, entailing the court returning the criminal case to the prosecutor or other procedural consequences.
Establishing the inadmissibility of evidence obtained after the expiration of the procedural deadlines (part 5 of Article 237 of the Code of Criminal Procedure as amended at that time), the law proceeded from the provisions of Article 75 of the Code of Criminal Procedure: evidence is inadmissible. received in violation of the requirements of the Code of Criminal Procedure, i.e. illegally. However, the requirement of legality in Article 7 and other relevant articles of the Code of Criminal Procedure of the Russian Federation applies not only to evidence, but also to procedural decisions of the court and preliminary investigation bodies, and these requirements are the same. The peculiarities of the prosecutor's participation in proceedings on the application of compulsory measures of a medical nature (Chapter 51 of the Code of Criminal Procedure of the Russian Federation) are as follows.
Grounds for recognizing the indictment (act) drawn up in violation of the Code of Criminal Procedure of the Russian Federation:
not signed by the investigator, interrogating officer, not approved by the prosecutor;
The judge, at the request of the party, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where: According to Part 2 of Art. 237 of the Code of Criminal Procedure of the Russian Federation after the return of the UD, the prosecutor must eliminate the violations committed within 5 days.5. When familiarizing yourself with the materials of the Criminal Code, the accused was not explained the rights provided for in Art. 217 of the Code of Criminal Procedure of the Russian Federation.
Contents of the indictment
Resolution to initiate criminal proceedings
A resolution is an official document that follows a certain structure when drafting it. This paper is part of the internal document flow of government agencies and is provided to citizens participating in the process only for informational purposes, and its body contains the following information on the merits of the charges brought, regulated by Art. 225 Code of Criminal Procedure of the Russian Federation:
- The header of the document contains the date and address at which it was compiled.
- All regalia of the person authorized to prepare the paper, usually one of the members of the investigative team in the present case.
- Information from an identity card about a citizen suspected of committing a crime.
- The main text of the paper indicates the circumstances under which the criminal act was committed, namely, the date, time, place of the crime, as well as the motives and nuances that preceded the illegal actions.
- Links to articles of the criminal code, according to which the prosecution has the opportunity to send the case to court.
- What follows is a list of evidence in this case, according to which the guilt of the suspect is indirectly confirmed, including a sincere confession, if obtained.
- After this list, the existence of circumstances in accordance with which a mitigation of the sentence of the accused person is allowed is indicated.
- Information about the person who is the victim in this criminal case, or about his relatives or proxies.
- At the end of the paper, all citizens and officials who must take part in the judicial investigation are listed in order to reach a fair verdict in this case.
Important! After registration, the resolution is signed by its author, as well as by the senior command staff of the department and certified by the round seal of the institution, after which it is issued to the prosecutor in order to form an indictment base for the court.
Trial
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