New edition of Art. 158 Code of Criminal Procedure of the Russian Federation
1. The preliminary investigation ends:
1) in criminal cases in which a preliminary investigation is mandatory - in the manner established by Chapters 29 - 31 of this Code;
2) in other criminal cases - in the manner established by Chapter 32 of this Code.
2. Having established, during pre-trial proceedings in a criminal case, circumstances that contributed to the commission of a crime, the inquiry officer, the head of the investigative body, the investigator has the right to submit to the relevant organization or the relevant official a proposal to take measures to eliminate these circumstances or other violations of the law. This submission is subject to consideration with mandatory notification of the measures taken no later than one month from the date of its issuance.
Bodies authorized to apply Art. 158 Code of Criminal Procedure of the Russian Federation
Law enforcement agencies are authorized to make a decision. So, the inquiry officer or investigator makes a decision in accordance with Art. 158 of the Code of Criminal Procedure of the Russian Federation on completing the investigation by issuing a resolution. The act is signed by the head of the inquiry or investigative body. The investigator or inquiry officer himself is not authorized to sign such a document.
All criminal cases are first sent to the prosecutor to verify the legality and validity of the decisions made by authorized officials.
Termination of a criminal case: grounds and procedural order
The implementation of the procedure for ending a criminal case (UD) occurs as follows: a decision is made without notifying the court and without holding a trial stage. Thus, if during the investigation grounds have emerged that impede further investigation, or the investigation is approaching completion, the measure described above is applied.
In accordance with Article 212 of the criminal federal legislation of Russia, the act comes into force if circumstances are found that do not allow further investigation and if the authorized person exonerates the suspect by proving his innocence, as well as if grounds are found to release the person from prosecution liability through obtaining the consent of the supervisory authority.
Stages of preliminary investigation
Preliminary investigation is the activity of authorities aimed at investigating the circumstances of the incident.
The first stage is a statement about the commission of a crime and registration in the KUSP or KRSP (crime register). After this, in accordance with the law, a period of three days is established for the body that registered the case to make a decision by making a decision to refuse the VUD, about the VUD, or to extend the investigation. They can extend it up to 10 days or up to 30, depending on the circumstances. For example, if the examination takes time to carry out.
After the VUD, the inquiry is given 1 month, and the investigative agency - 2 to investigate the crime. These deadlines may also be extended. The terms of the inquiry are extended with the permission of the prosecutor's office, the terms of the investigation - by the head of the department or a higher authority.
Deadlines in accordance with Art. 158 Code of Criminal Procedure of the Russian Federation
Termination of an investigation and other actions based on the expiration of the statute of limitations takes place during the investigation. Thus, for crimes of minor gravity the statute of limitations is 2 years, for moderate crimes - 6 years, for serious crimes - 10 years, and for especially serious crimes - 15 years. It is possible to resume proceedings under the UD if new and newly discovered circumstances are established. Time limits begin to be taken into account from the day the crime was committed.
Time periods may vary depending on circumstances. For example, there is a fact of resumption of the investigation. This situation is regulated by procedural federal legislation.
The circumstances of the case of theft under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation
Lawyer A.V. Zuev a citizen was defended on charges of theft under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation. The commission of this crime is punishable by up to 5 years in prison. The defendant did not deny the fact that he had committed a crime, since what he had done was confirmed by the evidence in the case. Under such circumstances, the defendant, after consultation with a lawyer, fully admitted guilt in committing the crime, and at the end of the preliminary investigation, a petition was filed to consider the case in a special trial procedure. The case has been sent to court.
It should be noted that this was the first time the defendant was brought to criminal responsibility and had no previous convictions. In addition, the crime committed falls into the category of crimes of medium gravity.
Resumption of the preliminary investigation
Resumption is the continuation of the investigation by the investigator or inquiry officer (Article 158 of the Code of Criminal Procedure of the Russian Federation) according to the Criminal Code. The case can be reopened if there are no longer reasons to cancel the investigation, as well as if the investigative actions do not require the presence of the suspect.
The initiation, suspension, termination and renewal of a criminal case is necessarily supervised by the prosecutor's office. Within three days, the assistant prosecutor is obliged to make a decision on the legality and validity of the act adopted by law enforcement officers.
If the case has gone through all the authorities and the prosecutor has approved the indictment, the court will consider the case. However, he can return the case on the basis of Article 237 of the Code of Criminal Procedure of the Russian Federation due to poor quality of investigation or careless preparation of the indictment. In this case, the preliminary investigation stage is resumed, the prosecutor prepares documents for transferring the case materials to the inquiry or investigation with a precise indication of the actions that need to be performed by law enforcement agencies. This measure has a significant impact on the work of officials of the procedural state system.
Commentary on Article 158 of the Code of Criminal Procedure of the Russian Federation
1. The preliminary investigation may also end with the referral of the criminal case to the prosecutor for transfer to the court for the application of compulsory medical measures against the insane (see com. to Article 439).
2. Part 2 of the commented article provides for presentation as the main tool in the arsenal of investigative bodies to eliminate the circumstances that contributed to the commission of a crime.
3. The circumstances that contributed to the commission of the crime are part of the subject of proof in a criminal case (Part 2 of Article 73 of the Code of Criminal Procedure). It follows from this that the investigative bodies are obliged to establish them (on the obligation of proof, see Article 14), that for this purpose judicial evidence can be obtained, including the necessary investigative actions. As a procedural sanction for failure to fulfill this obligation, the criminal case may be returned for additional investigation by the head of the investigation department (clause 11, part 1, article 39) or the prosecutor (clause 2, part 1, article 221, clauses 2 and 4 Part 1 Article 226).
The circumstances that contributed to the commission of a crime are its causes and conditions. Among them, it is customary to distinguish <1> three groups of circumstances: 1) the antisocial orientation of the accused person himself; 2) the conditions for its formation; 3) the circumstances of the crime. The first group is established within the framework of the personality characteristics of the accused (clause 3, part 1, article 73). The second group is usually established in cases involving minors (clause 2, part 1, article 421). The third group of circumstances is the most extensive to identify in other cases. It includes factors that facilitated the commission of a crime, gave rise to it, and contributed to the onset of more serious consequences.
——————————— <1> See, for example: The theory of evidence in Soviet criminal proceedings. M., 1973. S. 178 - 179; Shestakov D.A. Criminology. St. Petersburg, 2001. P. 133; Gilinsky Ya. Criminology. St. Petersburg, 2002. P. 91.
The presentation can serve as a means to eliminate the circumstances of the second and third groups indicated. In addition to the presentation, the investigative body has the right to use other preventive measures: a) of a procedural nature (measures of procedural coercion - according to the circumstances of the first group; instructions to the inquiry body - clause 4, part 2, article 38 of the Code of Criminal Procedure; requirements - part 4, article 21 of the Code of Criminal Procedure); b) of a non-procedural nature (discussions at a meeting, speeches by the investigator in the media, oral messages to officials).
4. According to the location of this norm in the Code of Criminal Procedure, the presentation must be made at the final stage of the investigation, but before the case is terminated or sent to the prosecutor. At the same time, the proposal may be made earlier if its grounds are proven. The submission must meet the requirements of validity and motivation, in particular, it must pay special attention to: a) indicating the circumstances that contributed to the commission of the crime (it is advisable to indicate the evidence on the basis of which they were established); b) specific measures that need to be taken to eliminate these circumstances. In this case, it is necessary to take into account: a) the inadmissibility of interference in the administrative, organizational, managerial, and economic activities of organizations or officials; b) the presumption of innocence. The submission should not state or prejudge the guilt of specific individuals in crimes or administrative offenses.
Article 158.1 Reinstatement of criminal cases
Extracts from Part 1 of Art. 158 of the Criminal Code of the Russian Federation
A decision to terminate the preliminary investigation is made in the case where a preliminary investigation is mandatory in a criminal case (as opposed to an inquiry) and in other cases provided for in Chapter. 32 of the Criminal Procedure Code of the Russian Federation.
Art. 158 of the Code of Criminal Procedure of the Russian Federation with comments states that when a criminal case is terminated, the materials are not transferred to the court and are not considered in this instance. The criminal case is placed in the archives of the law enforcement agency and stored there until the expiration date.
Article 158 of the Code of Criminal Procedure of the Russian Federation. End of the preliminary investigation (current version)
1. The preliminary investigation may also end with the referral of the criminal case to the prosecutor for transfer to the court for the application of compulsory medical measures against the insane (see commentary to Article 439).
2. Part 2 of the commented article provides for presentation as the main tool in the arsenal of investigative bodies to eliminate the circumstances that contributed to the commission of a crime.
3. The circumstances that contributed to the commission of the crime are part of the subject of proof in a criminal case (Part 2 of Article 73 of the Code of Criminal Procedure). It follows from this that the investigative bodies are obliged to establish them (on the obligation of proof, see the commentary to Article 14), that for this purpose judicial evidence can be obtained, including the necessary investigative actions. As a procedural sanction for failure to fulfill this obligation, the criminal case may be returned for additional investigation by the head of the investigation department (clause 11, part 1, article 39) or the prosecutor (clause 2, part 1, article 221; clauses 2 and 4 Part 1 Article 226).
Thus, the Investigative Committee under the Prosecutor's Office is entrusted with the task of organizing and implementing, within its powers, identifying the causes and conditions conducive to the commission of crimes, taking measures to eliminate them (clause 5, part 2 of the Regulations on the Investigative Committee under the Prosecutor's Office of the Russian Federation, approved by Presidential Decree RF dated August 1, 2007 N 1004 “Questions of the Investigative Committee under the Prosecutor’s Office of the Russian Federation”).
The circumstances that contributed to the commission of a crime are its causes and conditions. Among them, it is customary to distinguish three groups of circumstances: 1) the antisocial orientation of the accused person; 2) the conditions for its formation; 3) the circumstances of the crime. The first group is established within the framework of the personality characteristics of the accused (clause 3, part 1, article 73). The second group is usually established in cases involving minors (clause 2, part 1, article 421). The third group of circumstances is the most extensive to identify in other cases. It includes factors that facilitated the commission of a crime, gave rise to it, and contributed to the onset of more serious consequences.
———————————
See, for example: The theory of evidence in Soviet criminal proceedings. M., 1973. S. 178 - 179; Shestakov D.A. Criminology. St. Petersburg, 2001. P. 133; Gilinsky Ya. Criminology. St. Petersburg, 2002. P. 91.
The presentation can serve as a means to eliminate the circumstances of the second and third groups indicated. In addition to the presentation, the investigative body has the right to use other preventive measures: a) of a procedural nature (measures of procedural coercion - for the circumstances of the first group; instructions to the inquiry body - clause 4, part 2, article 38 of the Code of Criminal Procedure; requirements - part 4, article 21 of the Code of Criminal Procedure); b) of a non-procedural nature (discussions at a meeting, speeches by the investigator in the media, oral messages to officials).
5. According to the provisions of this norm, the presentation must be made at the final stage of the investigation, but before the case is closed or sent to the prosecutor. At the same time, the proposal may be made earlier if its grounds are proven. The submission must meet the requirements of validity and motivation, in particular, it must pay special attention to: a) indicating the circumstances that contributed to the commission of the crime (it is advisable to indicate the evidence on the basis of which they were established); b) specific measures that need to be taken to eliminate these circumstances. In this case, it is necessary to take into account: a) the inadmissibility of interference in the administrative, organizational, managerial, and economic activities of organizations or officials; b) the presumption of innocence. The submission should not state or prejudge the guilt of specific individuals in crimes or administrative offenses.
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
Extracts from Art. 158 Criminal Code of the Russian Federation, part 2
If, during the investigation of a criminal case, an authorized person (law enforcement officer) establishes circumstances that contributed to the commission of an unlawful act by the perpetrator, a representative of the authorities is obliged, in accordance with federal law, to make a submission that forces the organization or official to counteract the violation of the law and prevent subsequent violations (158 of the Code of Criminal Procedure of the Russian Federation, part 2).
Another comment on Art. 158 Criminal Procedure Code of the Russian Federation
1. The completion of an investigation in a criminal case depends mainly on whether a preliminary investigation has been carried out, which is mandatory for this case. If it was carried out, then the end of the proceedings is possible in two forms: 1) termination of the criminal case; 2) sending a criminal case with an indictment to the prosecutor. For other criminal cases, the termination is regulated by the norms of Art. 32 of the Code of Criminal Procedure of the Russian Federation. It deals with the completion of the inquiry in cases in which a preliminary investigation is not necessary.
2. Part 2 of the commented article establishes the rule according to which the investigative body, having completed the criminal proceedings, has the right, along with the criminal prosecution of the perpetrator of the crime, to take preventive measures. It consists of the inquirer or investigator submitting to the relevant organization or official a proposal to take measures to eliminate the circumstances conducive to the commission of a crime identified during pre-trial proceedings in a criminal case. The submission is subject to consideration within a month, and the organization or official is obliged to notify the investigation body about the measures taken. The commented norm has a controversial aspect. A statement by the investigative body, even before the trial, of the circumstances of the crime itself and the circumstances conducive to its commission, especially if this statement is associated with a conclusion about the guilt of a certain person, seems premature and cannot give rise to legal relations, the content of which includes any legal obligation arising from the criminal case. organization or official before the facts are certified by a court verdict that has entered into legal force.
Lawyer at the stage of completion of the preliminary investigation
After the preliminary investigation stage is completed, the criminal case is transferred to court. The office registers incoming correspondence and transmits it to the judge’s office. The study of the case determines the date of the hearing and notifies the parties that the hearing will be held at the court premises. Failure to appear is grounds for rescheduling the hearing.
The defense attorney takes part in the court hearing and takes an active role in justifying evidence and arguing between the parties.
Thus, in a criminal trial, the presence of a defense attorney for the accused (suspect) is mandatory, so during a complex process a citizen will not be able to independently defend his interests. In accordance with the Code of Criminal Procedure of the Russian Federation (Article 51), a citizen who is suspected of committing a criminal offense is provided with a free lawyer. However, a person has the right to refuse such assistance and hire another lawyer after twenty-four hours. The defense attorney has the right to familiarize himself with the materials, make copies and personally meet with the defendant an unlimited number of times at any time of the day. A person who is a suspect or accused can completely trust the defense lawyer.
In addition, the legal adviser has the right to appeal the court decision and represent interests in appeal, cassation and supervisory proceedings.
Lawyers work in different structures, such as a chamber, an office and others. You can get help from any legal firm that specializes in the cases described above. It is best to enter into an agreement with a lawyer who has experience. The effectiveness of such a lawyer will be at its best, and the resolution of the case will please the customer.
