Commentary on Article 159 of the Code of Criminal Procedure of the Russian Federation
1. The commented article duplicates the provisions on the mandatory consideration and resolution of petitions (Chapter 15 of the Code of Criminal Procedure of the Russian Federation) in relation to procedural activities at the stage of preliminary investigation. Consideration and resolution of petitions by virtue of Part 1 of the commented article is the direct responsibility of officials of pre-trial proceedings, regardless of the form in which - preliminary investigation or inquiry - it is carried out.
2. Part 2 of the commented article establishes cases when a person’s request cannot be denied. In this case, the main criterion is the possibility or impossibility, with the help of those investigative actions for which the petition has been submitted, to establish circumstances relevant to the criminal case. Since in Part 1 of Art. 74 of the Code of Criminal Procedure of the Russian Federation stipulates that evidence is any information on the basis of which the presence or absence of circumstances subject to proof in criminal proceedings is established, as well as other circumstances relevant to the case, it seems that almost any petition for investigative actions must be satisfied.
3. From the content of part 2.1 of the commented article it follows that if a request for an investigative action filed by a defense attorney or a protected person is granted, the defense attorney is required to be notified of the place and time of its conduct. Participation in such investigative actions of the defense attorney is his right, but not his obligation.
As for suspects and accused, they participate in investigative actions carried out at their request or at the request of their defenders or legal representatives, with the permission of the investigators (clause 9, part 4, article 46, clause 10, part 4, article 47 of the Code of Criminal Procedure RF).
4. The rules enshrined in Part 2.1 of the commented article do not apply to cases when it is necessary to ensure security measures during a particular investigative action.
5. In order for evidence, including expert opinions, to be added to criminal cases as evidence, the relevant petition should indicate which particular circumstances of significance for the criminal case can be confirmed or refuted. However, even in the absence of such justification in the text of the petition, the investigator or interrogating officer is obliged to consider each petition for compliance with the above criterion.
6. The decision to completely or partially refuse to satisfy the petition is formalized by a resolution of the investigator or inquiry officer (Part 3 of the commented article). This provision does not fully comply with the content of Art. 122 of the Code of Criminal Procedure of the Russian Federation, since it prescribes that a decision must also be made when the petition is granted. However, the investigator can both make this decision and satisfy the petition in fact, having carried out all those investigative actions and made decisions about which the petition was filed.
7. Part 4 of the commented article states that a decision to refuse a petition can be appealed both to the immediate supervisor of a criminal justice official and to the court (Chapter 16 of the Code of Criminal Procedure of the Russian Federation). In the same manner, a decision on a partial refusal to satisfy a petition in the part in which it was not satisfied can also be appealed.
8. In addition to the complaint, a person whose petition was denied may file a petition during the further development of the criminal case (both within the same stage and at subsequent stages of criminal proceedings).
Everything about criminal cases
Go to the text of the Code of Criminal Procedure
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Mandatory consideration of the application
- part 1 159 of the Code of Criminal Procedure
each application is subject to mandatory consideration
Can't be denied
- Part 2 159 Code of Criminal Procedure
investigative actions cannot be denied if they are important
- Part 2 159 Code of Criminal Procedure
cannot be refused:
- Part 2 159 Code of Criminal Procedure
examination of witnesses cannot be refused
- Part 2 159 Code of Criminal Procedure
examination cannot be refused
- Part 2 159 Code of Criminal Procedure
other investigative actions cannot be denied
Participation in investigative actions
- Part 2.1 159 Code of Criminal Procedure
the defender cannot be denied participation in the actions
Inclusion of evidence
- Part 2.2 159 Code of Criminal Procedure
evidence cannot be refused to be included in the case
- Part 2.2 159 Code of Criminal Procedure
it is impossible to refuse the inclusion of expert opinions
Conditions for joining the case
- Part 2.2 159 Code of Criminal Procedure
circumstances must be relevant to the case
- Part 2.2 159 Code of Criminal Procedure
circumstances must be supported by evidence
Refusal of the application
- Part 3 159 Code of Criminal Procedure
a decision is made to refuse the application
- Part 4 159 Code of Criminal Procedure
appealing the refusal of a petition in accordance with the Head of the Code of Criminal Procedure
When are petitions submitted?
Points to serve
petitions at the investigation stage, convenient moments
Refusal of the application
Refusal of the application
at the pre-trial stage, appeal under
124
and
125 of the Code of Criminal Procedure.
Inclusion of evidence
How to include
conclusion of a specialist on the materials of a criminal case?
Article 159 of the Code of Criminal Procedure. Mandatory consideration of the application
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Resolution of petitions
Resolution of petitions
at the investigation stage, mandatory mechanism
1) The investigator, inquiry officer is obliged to consider
each petition filed in a criminal case in the manner established by Chapter 15 of the Criminal Procedure Code.
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Rights to Gather Evidence
- clause 2 part 1 53 Code of Criminal Procedure
defense lawyer's right to collect evidence
- Part 3 86 Code of Criminal Procedure
the defense attorney has the right to collect evidence
- Part 2.2 159 Code of Criminal Procedure
evidence cannot be refused
— Part 3 Article 6
N 63-FZ rights of a lawyer to collect evidence
Appeal
- clause 3.1
Plenum No. 1, refusal of evidence cannot be appealed under
Article 125 of the Code of Criminal Procedure
- Part 2 389.2 of the Code of Criminal Procedure
The court's refusal of a petition cannot be appealed until the final decision.
Investigative actions requested by the following cannot be refused:
- suspect or accused,
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Rights of the defense attorney to collect evidence
- clause 2 part 1 53 Code of Criminal Procedure
defense lawyer's right to collect evidence
- Part 3 86 Code of Criminal Procedure
the defense attorney has the right to collect evidence
- Part 2.2 159 Code of Criminal Procedure
evidence cannot be refused
— Part 3 Article 6
N 63-FZ rights of a lawyer to collect evidence
- defender,
- victim,
-
civil plaintiff, defendant or their representative;
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— 73 Code of Criminal Procedure
circumstances to be proven are important for the case
if the circumstances for which they request to be established are significant
for the given criminal case.
The following cannot be refused:
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—
clause 4
of Plenum No. 55, the defendant has the right to question witnesses
Right to questioning
The right of the defendant
for questioning witnesses and victims
- interrogation of witnesses,
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Mandatory examination
Mandatory production
examination and when it doesn't work
- production of forensic examination,
- and other investigative actions.
2.1) The defense attorney cannot be denied participation in investigative actions carried out at his request or at the request of the suspect or accused, except in the case provided for in Part 3 11 of the Code of Criminal Procedure. The failure to appear of a defense attorney who was promptly notified of the place and time of the investigative action is not an obstacle to its implementation.
2.2) The persons specified in Part 2 cannot be denied access to the materials of the criminal case:
- evidence,
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Submission of the conclusion
How to include
conclusion of a specialist on the materials of a criminal case?
— including expert opinions,
if the circumstances for which they seek to establish:
- are relevant for the given criminal case,
- and are confirmed by this evidence.
3) In case of complete or partial refusal to satisfy the petition, the investigator or inquiry officer makes a decision.
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— 122 Code of Criminal Procedure
appealing a refusal of an application
Refusal of the application
Refusal of the application
at the pre-trial stage, appeal under
124
and
125 of the Code of Criminal Procedure
4) The decision to refuse to satisfy the petition can be appealed in the manner established by Chapter 16 of the Criminal Procedure Code.
Return to the text of the Code of Criminal Procedure
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CASE No. 1-201/2021
RESOLUTION
October 08, 2022 Central District Court <address> of the Republic of Crimea of the Russian Federation composed of: presiding judge - FULL NAME2,
under the secretary - full name9
with the participation of the state prosecutor – FULL NAME3,
defendant - FULL NAME1,
defender – FULL NAME6,
victims – Victim No. 2, Victim No. 1,
Having examined in open court in the city of Simferopol a criminal case on charges FULL NAME1, DD.MM.YYYY year of birth, native <address>, Uzbek SSR, citizen of the Russian Federation, with higher education, married, with young children born in 2015, 2022 g.r., not officially employed, not previously convicted, registered and residing at the address: <address>, lane. Lugovoi, <address>, in committing crimes under Part 2 of Art. 159, part 2 art. 159 of the Criminal Code of the Russian Federation,
INSTALLED:
The preliminary investigation body, FULL NAME1 is accused of DD.MM.YYYY, in the daytime, at approximately 11 o’clock, while in the premises of the “Otlichny” store, located at: <address>, where during a conversation with a previously acquaintance Victim No. 1 became aware of the need for her to pass a practical exam at the MREO STSI for the Republic of Crimea in order to obtain a driver’s license for the right to drive a category “B” vehicle, at that moment FULL NAME1 suddenly had a criminal intent aimed at fraud, that is theft of funds through abuse of trust Victim No. 1, for the purpose of personal material enrichment.
For this purpose, DD.MM.YYYY, in the daytime, at approximately 11 o’clock, while in the premises of the “Otlichny” store, located at: <address>, FULL NAME1, during a conversation with Victim No. 1, he told her a knowingly false information about the existence of a trusting relationship with officials in the MREO STSI at <address> and the opportunity to pass a practical exam in order to obtain a driver’s license for the right to drive a category “B” vehicle, without passing the exam, and Victim No. 1 indicated the cost of passing the practical exam in the amount of 16,000 rubles and agreed to meet with her on DD.MM.YYYY in the premises of the above store. DD.MM.YYYY, at 09.00 o'clock, Victim No. 1, being in the premises of the "Otlichny" store, located at the address: <address>, transferred funds to Full Name 1 in the amount of 16,000 rubles as payment for passing a practical exam in order to obtain a driver's license certificates for the right to drive a category “B” vehicle, and FULL NAME1, in turn, implementing a criminal intent aimed at stealing someone else’s property, by breach of trust, acting intentionally, aware of the illegal nature and social danger of his actions, for selfish reasons, for personal enrichment, knowing with certainty that he will not fulfill his obligations to pass a practical exam in order to obtain a driver’s license for the right to drive a category “B” vehicle due to the lack of trusting relationships with officials in the MREO of the State Traffic Safety Inspectorate at <address>, in 09 o'clock, while in the premises of the Excellent store, located at: <address>, he received money from Victim No. 1 in the amount of 16,000 rubles, thereby stealing them by abuse of trust. Having taken possession of the funds, FULL NAME1 fled from the scene of the crime and disposed of the stolen property at his own discretion.
The actions of FULL NAME1 by the preliminary investigation body are qualified under Part 2 of Art. 159 of the Criminal Code of the Russian Federation - fraud, that is, the theft of someone else’s property through abuse of trust, committed with causing significant damage to a citizen.
DD.MM.YYYY, at approximately 09 o'clock, being near <address>, located at <address> in <address>, FULL NAME1 during a conversation with a previously acquaintance Victim No. 2 became aware of the need to pass a practical exam at the MREO STSI in the Republic of Crimea, his wife FULL NAME4, in order to obtain a driver’s license for the right to drive a category “B” vehicle. At this moment, FULL NAME1 suddenly had a criminal intent aimed at fraud, that is, theft of funds through abuse of trust Victim No. 2, for the purpose of personal material enrichment.
For this purpose, DD.MM.YYYY, at approximately 09 hours 05 minutes, near <address>, located at <address> in <address>, FULL NAME1, during a conversation with Victim No. 2, told him deliberately false information about he has a trusting relationship with officials in the MREO STSI at <address> and the opportunity to pass his wife FULL NAME4 a practical exam in order to obtain a driver’s license for the right to drive a category “B” vehicle, without passing the exam and Victim No. 2 indicated the cost of passing the practical exam in the amount of 15,000 rubles and agreed to meet with him on DD.MM.YYYY near <address> in <address>.
Victim No. 2, DD.MM.YYYY, at 19:30, being near <address>, located at <address> in <address>, handed over FULL NAME1 funds in the amount of 15,000 rubles as payment for surrender by his wife FULL NAME4 practical exam for the purpose of obtaining a driver’s license for the right to drive a vehicle of category “B”, and FULL NAME1, implementing a criminal intent aimed at stealing someone else’s property, by breach of trust, acting intentionally, aware of the illegal nature and social danger of his actions, for selfish reasons, for the purpose of personal enrichment, reliably realizing that he will not fulfill his obligations to pass a practical exam in order to obtain a driver’s license to drive a category “B” vehicle due to the lack of trusting relationships with officials in the MREO of the State Traffic Safety Inspectorate at <address >, at 19 hours 30 minutes, being near <address>, located at <address> in <address>, received money from Victim No. 2 in the amount of 15,000 rubles, thereby stealing them by abuse of trust. Having taken possession of the funds, FULL NAME1 fled from the scene of the crime and disposed of the stolen property at his own discretion.
The actions of FULL NAME1 by the preliminary investigation body are qualified under Part 2 of Art. 159 of the Criminal Code of the Russian Federation - fraud, that is, the theft of someone else’s property through abuse of trust, committed with causing significant damage to a citizen.
The victims Victim No. 2, Victim No. 1 at the court hearing filed a petition to terminate the criminal case against FULL NAME 1, in connection with the reconciliation of the parties, since the latter fully compensated for the moral damage and material damage caused, the victims have no claims, and they reconciled.
The defendant agreed with the petition and asked to dismiss the criminal case.
The defendant's defense lawyer asked to terminate the criminal case due to the reconciliation of the parties.
The state prosecutor did not object to the termination of the criminal case against FULL NAME1 for reconciliation of the parties.
Having heard the opinions of the participants in the process and examined the case materials, the court comes to the following conclusion.
According to Art. 25 of the Code of Criminal Procedure of the Russian Federation, the court has the right, on the basis of a statement from the victim, to terminate a criminal case against a person accused of committing a crime of minor or medium gravity, in cases provided for in Art. 76 of the Criminal Code of the Russian Federation.
By virtue of Art. 76 of the Criminal Code of the Russian Federation, a person who has committed a crime of minor or medium gravity for the first time may be released from criminal liability if he has reconciled with the victim and made amends for the harm caused to the victim.
The court found that FULL NAME1 is accused of committing crimes under Part 2 of Art. 159 of the Criminal Code of the Russian Federation (victim Victim No. 1), part 2 of Art. 159 of the Criminal Code of the Russian Federation (victim Victim No. 2), related to criminal acts of moderate gravity, had no previous convictions, compensated the victims for moral damage and material damage caused by the crime, and they reconciled.
The court comes to the conclusion that it is possible to terminate the criminal case against FULL NAME1 by virtue of Art. 25 of the Code of Criminal Procedure of the Russian Federation, in connection with the reconciliation of the parties, with his release from criminal liability on the basis of Art. 76 of the Criminal Code of the Russian Federation.
There are no procedural costs. There is no physical evidence.
Guided by Article 76 of the Criminal Procedure Code of the Russian Federation, Article 25, 254 of the Code of Criminal Procedure of the Russian Federation, the court –
DECIDED:
Criminal case against FULL NAME1 accused of committing crimes under Part 2 of Art. 159 (victim Victim No. 1), part 2 of Art. 159 (victim Victim No. 2) of the Criminal Code of the Russian Federation, terminate in connection with the reconciliation of the parties, in accordance with Art. 25 of the Code of Criminal Procedure of the Russian Federation.
Based on Art. 76 of the Criminal Code of the Russian Federation FULL NAME1 FULL NAME1 exempt from criminal liability.
The preventive measure FULL NAME1 in the form of a written undertaking not to leave the place and proper behavior shall be left unchanged until the resolution enters into legal force.
The decision can be appealed to the Supreme Court of the Republic of Crimea of the Russian Federation through the Central District Court <address> within 10 days from the date of its issuance.
Judge: Gulevich Yuri Grigorievich
