1. If there is sufficient evidence providing grounds for accusing a person of committing a crime, the investigator makes a decision to charge this person as an accused.
2. The resolution must indicate: 1) the date and place of its preparation; 2) who drew up the resolution; 3) last name, first name and patronymic of the person involved as an accused, day, month, year and place of his birth; 4) a description of the crime indicating the time, place of its commission, as well as other circumstances subject to proof in accordance with paragraphs 1-4 of part one of Article 73 of this Code; 5) paragraph, part, article of the Criminal Code of the Russian Federation, providing for liability for this crime; 6) a decision to charge a person as an accused in a criminal case under investigation.
3. When a person is accused of committing several crimes provided for by different paragraphs, parts, articles of the Criminal Code of the Russian Federation, the resolution to bring him as an accused must indicate what acts are charged with him under each of these norms of the criminal law.
4. When several persons are brought as defendants in one criminal case, a decision to bring them in as defendants is made in relation to each of them.
Commentary on Article 171 of the Code of Criminal Procedure of the Russian Federation
1. The article under comment establishes the general procedure for bringing a person as an accused. According to Part 1 of Art. 47 of the Code of Criminal Procedure of the Russian Federation, an accused is a person against whom a decision has been made to charge him as an accused (during a preliminary investigation), an indictment (during an inquiry) or an indictment has been drawn up (based on the results of an inquiry in an abbreviated form). Therefore, the procedure established by the commented article concerns those cases when the preliminary investigation is carried out in the form of a preliminary investigation (Part 2 of Article 150 of the Code of Criminal Procedure of the Russian Federation) or when the need to bring as an accused arose when it was impossible to draw up an indictment within a period not exceeding 10 days from the date of conclusion the suspect into custody (parts 2–3 of Article 224 of the Code).
2. The significance of being brought as an accused is that, firstly, criminal proceedings cease to be probabilistic in nature and focus on proving the guilt of a specific person, and, secondly, the person is given a new procedural status, allowing him to properly defend his position in the criminal case.
3. The basis for implicating a person as an accused is sufficient evidence that allows one to put forward and substantiate an indictment against a specific person. Charge according to paragraph 22 of Art. 5 of the Code of Criminal Procedure of the Russian Federation is an allegation that a certain person has committed an act prohibited by criminal law, put forward in the manner established by this Code.
4. In Part 1 of the commented article there is no formal list of evidence that is necessary to bring a person as an accused. It seems that this is impossible to do, since in each specific case the investigator evaluates the evidence for its sufficiency according to his inner conviction, based on the totality of evidence available in the criminal case, guided by the law and conscience (Article 17 of the Code of Criminal Procedure of the Russian Federation). At the same time, the totality of evidence must be sufficient so that with their help the circumstances to be proven can be established, or at least those of them that characterize the act as criminally punishable and confirm the involvement of a specific person in its commission (Art. 73 Code of Criminal Procedure of the Russian Federation).
5. When implicating a person as an accused, the investigator must be completely sure of his guilt. However, such a conviction is not necessary for the prosecutor and the court, who will also evaluate the evidence according to their inner conviction, applying criteria such as relevance, admissibility, reliability and sufficiency (Article 88 of the Code of Criminal Procedure of the Russian Federation).
An accusation cannot be based on conflicting information. If the accusation is subsequently not proven, all procedural decisions on which it was based are subject to cancellation.
An accusation cannot be considered justified if other versions of the crime remain uninvestigated in the criminal case.
An accusation based on the testimony of a person interested in the outcome of a criminal case, not supported by other objective data, is unproven.
6. Involvement as an accused should not be equated with bringing a person to criminal liability, since the latter occurs only after the court’s conviction has entered into legal force.
7. The most important requirement characterizing the procedure for bringing an accused is its timeliness. If a person is accused without sufficient evidence, this significantly violates his rights. On the other hand, unreasonably delaying the moment of being brought as an accused is unacceptable, since a person who has the status of a witness is actually subject to criminal prosecution, but the procedural rights included in the content of the status of an accused are not granted to him.
8. A person cannot be brought as an accused for a crime on the basis of which a criminal case has not been initiated, if the act is not an integral part of the crime for which the person is being prosecuted.
9. The initiation of a criminal case against the perpetrator of a crime does not deprive the investigator of the opportunity to subsequently bring charges in the framework of this criminal case against other identified accomplices of the crime.
10. For the illegal and unfounded prosecution of a person, the investigator bears legal responsibility. Among other cases specified in Part 2 of Art. 133 of the Code of Criminal Procedure of the Russian Federation, a person who was brought as an accused has the right to rehabilitation, if subsequently the criminal prosecution against him was terminated on the grounds provided for in paragraphs 1, 2, 5 and 6 of Part 1 of Art. 24, paragraph 1 and 4–6, part 1, art. 27 Code of Criminal Procedure of the Russian Federation.
11. Part 2 of the commented article contains the requirements for the form and content of the decision to bring the person as an accused.
12. When describing the crime, the circumstances to be proven in accordance with paragraphs 1–4 of Part 1 of Art. 73 of the Code of Criminal Procedure of the Russian Federation: event of a crime (place, time, method and other circumstances of its commission); the guilt of a particular person in committing a crime, the form of his guilt and motives; circumstances characterizing the personality of the accused; the nature and extent of the harm caused by the crime. Other circumstances from those enshrined in Art. 73 of the Code of Criminal Procedure of the Russian Federation are not cited in the resolution, since they can be established during subsequent pre-trial proceedings.
The resolution also provides a precise legal qualification of the offense, indicating the article (part, paragraph of the article) of the Special Part of the Criminal Code of the Russian Federation, which provides for liability for this crime. The investigator does not have the right to give a legal qualification that does not correspond to the act actually committed and does not follow from the established circumstances in the criminal case.
13. The government order by which a person is granted the status of an accused is the decision formulated in the resolution to charge the person as an accused in the criminal case under investigation.
14. The absence in the operative part of the resolution on bringing as an accused an indication of the criminal case in which the person is being charged is a significant violation of the criminal procedure law.
15. If a person is accused of committing several crimes, then a single resolution is drawn up to charge him as an accused. At the same time, it must clearly define what acts the person committed and what criminal law provisions provide for liability for the commission of each of them.
16. The absence in the decision to charge him as an accused with information about what specific actions (inactions) he is accused of is recognized as a significant violation of the law.
17. The accused must be charged with all the qualifying signs of the crime he committed. The absence in the decision to bring an accused as an accused indicating a specific qualifying characteristic and complete data on the nature of the committed act is unacceptable and entails the reversal of the conviction.
18. If the crime was committed with complicity (Chapter 7 of the Criminal Code of the Russian Federation), then the decision to bring the person as an accused is made in relation to each of the accomplices separately. At the same time, the text of the resolution must specify the role of each of the accomplices, however, legal qualification is given only to the acts of the accomplice in respect of whom this document was issued.
Article 171 of the Code of Criminal Procedure of the Russian Federation. Procedure for bringing an accused (current version)
1. Involvement as an accused is the bringing forward of an initial charge (an allegation that a certain person has committed an act prohibited by criminal law - clause 22 of Article 5 of the Code of Criminal Procedure). The filing of charges takes place in the form of the investigator making a decision to bring the person as an accused.
The initial accusation can sometimes coincide with the final one, then there is no prosecution as a separate procedural institution. This happens when a victim’s statement is accepted in cases of private prosecution (Part 7 of Article 318), when an indictment is issued at the end of the inquiry (Article 225). Involvement as an accused is tantamount to bringing a person to criminal liability, but not its occurrence (implementation), because the accused is considered innocent until the court verdict enters into legal force (Article 14 of the Code of Criminal Procedure). It is in this meaning that the term “bringing to criminal liability” is used in the Criminal Procedure Code (Clause 2, Part 1, Article 154, Part 3, Article 214, Part 3, Article 414) and in the Criminal Code (Article 299). Filing an initial charge is the central stage of the preliminary investigation stage and has the following procedural significance:
— determines the limits of further proceedings, which will be conducted only in relation to the involved persons and only for those crimes for which they were brought to criminal liability as accused. This is where the rule of “inadmissibility of turning for the worse” comes from;
- means the appearance in the process of such a participant as the accused (Part 1 of Article 47 of the Code of Criminal Procedure), as well as the beginning of the defense against a certain charge;
— creates ordinary conditions for the application of procedural coercive measures against the accused.
2. The grounds for bringing a person as an accused simultaneously consist of the following elements:
1) the case has established that a specific person has committed a specific crime (factual basis). By the time a decision is made to charge a person as an accused, all legally significant points necessary for qualification, provided for in paragraphs 1 - 2, 5 of Part 1 of Art. 73 Code of Criminal Procedure. Other circumstances specified in Art. 73 of the Code of Criminal Procedure, can be established at the next stage of the preliminary investigation;
2) the presence in the case of sufficient criminal procedural evidence about this (informational basis), i.e. information that has the property of admissibility. Data of a non-procedural nature (for example, operational-search data) cannot substantiate the accusation. For more information about this, see the comment. to Art. Art. 74, 75, 89. To a limited extent, certain elements of the charge may be established by presumption, prejudice and common knowledge. See comment about this. to Art. Art. 73, 90. The evidence must be sufficient to convince the investigator that a given person has committed a crime. If, when initiating a case, the basis was probability, then when bringing a person as an accused, it was reliability. Therefore, the investigator has the right to change the classification of the crime given when initiating the case. Bringing a knowingly innocent person to criminal liability is a crime (Article 299 of the Criminal Code). At the same time, the specified reliability as a subject of assessment is relative (see commentary to Article 88). At this point, guilt has been proven for the investigative body (prosecutor), but not for the court, since the accused is objectively considered innocent. However, even for the prosecutor, guilt has been established without taking into account the defense's arguments. Therefore, after bringing a person as an accused, the process of proof can continue in three main directions: a) refutation or confirmation of the defense’s arguments; b) proof of new or other significant circumstances of the commission of a crime identified by the investigator on his own initiative; c) establishing the remaining elements of the subject of proof, which may not determine the qualification of the crime if they were not clarified earlier. If it is necessary to change the charge, the rules of Art. 175 Code of Criminal Procedure. The complete disappearance of the grounds entails the termination of the case or criminal prosecution;
3) recognition by criminal law of the act established in the case as a crime (legal basis).
The emergence of grounds for bringing forward an initial charge determines the moment of the investigation when it is necessary to make a decision to bring an accused: excessive haste leads to its unfoundedness, and a delay in making it infringes on the right to defense. For example, if a person is suspected of committing several crimes, it is necessary to make a decision to charge him as an accused when it is proven that this person has committed at least one of them.
3. Involvement as an accused is possible subject to the following conditions:
a) charges can only be brought against events (facts) that are identical, in terms of their factual content, to those for which the criminal case was initiated. For example, in the framework of a criminal case initiated only on the fact of illegal carrying of a weapon by a person, it is impossible to charge him with murder or illegal sale of drugs - this requires the initiation of new criminal cases and their connection with this case. At the same time, if the established event(s) are identical, the classification of the crime given when initiating the case can be freely changed to another or supplemented - for example, the illegal possession of firearms is reclassified as its illegal manufacture, the qualification of hooliganism is supplemented by the intentional infliction of a serious crime during their commission or moderate harm to health, etc. ;
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On this, see the Definitions of the Constitutional Court of the Russian Federation of December 21, 2006 N 533-O; dated July 18, 2006 N 343-O.
For more details on the need to initiate a new criminal case, see the commentary. to Art. 146.
b) the proper subject of the accusation. A decision to bring the person as an accused may be made by an investigator, the head of the investigation team (and the investigator in the cases provided for in Article 224) who is not subject to recusal, who has accepted the case for proceedings in compliance with the rules of investigative jurisdiction;
c) lack of official immunity for a potential accused (Article 447). A special procedure has been established for bringing charges against such persons (see commentary to Article 450).
4. A resolution to implicate a person as an accused must fully and accurately reflect the factual and legal aspects of the initial accusation.
The factual side of the charge (the substance or its scope) is a detailed description of the specific circumstances of each crime charged. General statements are not allowed. In this case, it is necessary to describe all the elements of the crime and all qualifying circumstances. At the same time, unnecessary details (not having legal significance) should be avoided.
The legal side of the charge means its criminal legal formulation and assessment. It is set out in the resolution in accordance with the disposition of the criminal law norm, indicating the points, parts and articles of the Criminal Code. In this case, if necessary, reference should be made to the norms of the General Part of the Criminal Code (complicity, unfinished crime, relapse). In practice, we encounter a phenomenon called reserve qualification, when the investigator, at the slightest doubt about the legal assessment of the act, tries to charge the accused with the most serious crime possible in this case. In this case, the calculation is made that the state prosecutor and the court can soften the qualifications, but will not be able to tighten them. This practice is against the law. As a result, the prosecution is based on an unfounded assumption, and its excessive gravity is a condition for the application of more stringent measures of procedural coercion.
5. Part 2 of the commented article does not require the resolution to provide references to evidence confirming the accusation. The literal interpretation of this article of the Code of Criminal Procedure usually leads in practice to the fact that evidence is not indicated in the decision to bring the accused as an accused. However, this provision is in conflict with the general requirement that decisions must be motivated (Part 4 of Article 7), i.e. written analysis of all the reasons for decisions made in their text itself. But the most important element of the grounds for prosecution as an accused is the evidence of the prosecution (Part 1 of Article 171). The absence of references to the evidence of the prosecution in the decision to charge as an accused not only infringes on the right to defense, but also contradicts the international legal right of the accused “to be immediately and in detail notified in a language he understands of the nature and basis of the charge brought against him” (subsection “a”) "Clause 3, Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950). A detailed notification of the grounds for the accusation means familiarization with the evidence (we emphasize that it is precisely this that Part 1 of Article 171 of the Criminal Procedure Code considers as the basis for the accusation). Without notification of the evidence substantiating the accusation, the defense cannot fully perform its function. If a person only knows what he is accused of, but does not know on what basis, he cannot fully challenge the arguments of his procedural opponent. This not only does not contribute to the true validity of the accusation, but also violates the equality of the parties as an element of adversarial proceedings (Part 3 of Article 123 of the Constitution of the Russian Federation, Article 15 of the Code of Criminal Procedure), giving an unfair advantage to the accuser. Considering the priority of international legal and constitutional norms over industry legislation, it is necessary, in our opinion, to recognize the investigator’s obligation to indicate the main evidence of the accusation in the decision to charge a person as an accused. However, the implementation of this responsibility is a matter for the future. At the moment, it is not supported by proper sanctions, since the practice of appealing this decision to the court has not yet developed. At the same time, the Constitutional Court of the Russian Federation has already recognized the right to judicially appeal a decision to initiate criminal proceedings against a specific person (Determination of the Constitutional Court of the Russian Federation of December 27, 2002 N 300-O). Moreover, the motives for this decision may well be extended to the original accusation.
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A similar position was previously expressed in the literature: Zhogin N.V. Prosecutor's supervision of the preliminary investigation of criminal cases. M., 1968. S. 139 - 140; Levi A.A., Shadrin V.S. On the participation of the defense attorney in the preliminary investigation // Socialist Legality. 1987. N 4. P. 87; Zinatullin Z.Z. Common problems of prosecution and defense. Izhevsk, 1989. P. 24.
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
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Involvement as an accused
- part 1 171 of the Code of Criminal Procedure
issuing a decision to impeach
Resolution on attraction
- Part 2 171 Code of Criminal Procedure
The recruitment resolution shall indicate:
— clause 1 part 2 171 Code of Criminal Procedure
date, place
- clause 2, part 2 171 Code of Criminal Procedure
who made the decision
— clause 3, part 2 171 Code of Criminal Procedure
FULL NAME. accused, date of birth
— clause 4, part 2 171 Code of Criminal Procedure
description of the crime
- clause 5 part 2 171 Code of Criminal Procedure
article of the Criminal Code (qualification)
— clause 6, part 2, 171 Code of Criminal Procedure
a decision is made to impeach
Plurality (of articles of the Criminal Code and persons)
- Part 3 171 Code of Criminal Procedure
if there are several articles of the Criminal Code, then the resolution indicates all
- Part 4 171 Code of Criminal Procedure
if there are several persons, then a decision is made for each
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Active cooperation
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clause "i" part 1 61 of the Criminal Code
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Confessions
before accusation - proof of cooperation
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clause 4, part 2 171 of the Code of Criminal Procedure
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affairs, what is meant by them
Article 171 of the Code of Criminal Procedure. Procedure for bringing in as an accused
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sufficiency - when there is enough evidence to resolve the case
1) If there is sufficient evidence,
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- part 1 173 of the Code of Criminal Procedure
must be questioned immediately after the accusation is filed
Appeal
- clause 3.1
Plenum No. 1, the involvement of the accused is not appealed under Article
125 of the Code of Criminal Procedure
, which gives grounds for accusing a person of committing a crime, the investigator makes a decision to attract this person as an accused.
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Note:
- in the future, these wordings must coincide with clause 4, part 1 of 220 Code of Criminal Procedure
2) The decision to implicate the accused must indicate:
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Active cooperation
Confessions
before accusation - proof of cooperation
1). date and place of its preparation;
2). who drew up the resolution;
3). surname, name and patronymic of the person involved as an accused, date, month, year and place of his birth;
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— clause 14
Plenum No. 28 discrepancy with the charge brought, return
Facts of the case
Factual circumstances
affairs, what is meant by them
To confirm active cooperation
(
clause "i" part 1 61 of the Criminal Code
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Comparing the description
acts - to prove assistance in the investigation
4). description of the crime indicating the time, place of its commission, as well as other circumstances to be proven in accordance with clause 1 - clause 4 of part 1 of 73 of the Code of Criminal Procedure;
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Qualification
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at the stage of prosecution
5). paragraph, part, article of the Criminal Code providing for liability for this crime;
6). a decision to charge a person as an accused in a criminal case under investigation.
3) When a person is accused of committing several crimes under different articles of the Criminal Code, the resolution to bring him as an accused must indicate what acts are charged with him under each of these provisions of the criminal law.
4) When several persons are brought as accused in one criminal case, a decision to bring them in as accused is made in relation to each of them.
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