New edition of Art. 221 Code of Criminal Procedure of the Russian Federation
1. The prosecutor reviews the criminal case with the indictment received from the investigator and, within 10 days, makes one of the following decisions on it:
1) on approval of the indictment and on sending the criminal case to court;
2) on the return of the criminal case to the investigator for additional investigation, changing the scope of the charge or qualification of the actions of the accused or restating the indictment and eliminating identified deficiencies with their written instructions;
3) on sending the criminal case to a higher prosecutor for approval of the indictment, if it is within the jurisdiction of a higher court.
1.1. In case of complexity or large volume of the criminal case, the period established by part one of this article may be extended at the motivated request of the prosecutor by a higher prosecutor up to 30 days.
2. Having established that the investigator violated the requirements of part five of Article 109 of this Code, and the deadline for keeping the accused in custody has expired, the prosecutor cancels this preventive measure.
2.1. Having established that the period of prohibition of certain actions provided for in paragraph 1 of part six of Article 105.1 of this Code, the period of house arrest or the period of detention turns out to be insufficient for making a decision in the manner established by this article, or for the court to fulfill the requirements provided for in part three of Article 227 of this Code, the prosecutor, if there are grounds, files a petition with the court to extend the period of these preventive measures.
3. In the cases provided for in paragraphs 2 and 3 of part one of this article, the prosecutor issues a reasoned decision.
4. The prosecutor’s decision to return the criminal case to the investigator may be appealed by him within 72 hours from the moment the criminal case was received by him with the consent of the head of the investigative body to a higher prosecutor, and if he disagrees with his decision - to the Prosecutor General of the Russian Federation with the consent of the Chairman of the Investigative Committee of the Russian Federation or the head of the investigative body of the relevant federal executive body (under the federal executive body). The superior prosecutor, within 10 days from the receipt of the relevant materials, makes one of the following decisions:
1) to refuse to satisfy the investigator’s request;
2) to cancel the decision of the lower prosecutor. In this case, the superior prosecutor approves the indictment and sends the criminal case to court.
5. An appeal against the decision of the prosecutor specified in paragraph 2 of part one of this article, in the manner established by part four of this article, suspends its execution.
Commentary on Article 221 of the Code of Criminal Procedure of the Russian Federation
1. The commented article establishes the procedure for consideration and resolution of issues by the prosecutor after he has received a criminal case with an indictment.
2. Before the prosecutor makes one of the decisions provided for in Part 1 of the commented article, he is obliged to carefully study all the materials of the criminal case. The deadline for making a decision on a criminal case is 10 days; in case of complexity or large volume of the criminal case, it can be extended to 30 days.
3. Having made a decision to approve the indictment and to send the criminal case to court (clause 1, part 1 of the article under comment), the prosecutor puts down an approving resolution in the document (Article 220 of the Code of Criminal Procedure of the Russian Federation). From this point on, the prosecutor is responsible for carrying out criminal prosecution during the trial.
4. In accordance with paragraph 2 of part 1 of the commented article, the criminal case is returned to the investigator for additional investigation in cases where the preliminary investigation was not carried out in full. If at the time of return of the criminal case the period for preliminary investigation has expired, then after receiving the criminal case the investigator decides on extending this period. According to Part 6 of Art. 162 of the Code of Criminal Procedure of the Russian Federation, in the event that the prosecutor returns a criminal case to the investigator, the period for the investigator to carry out the prosecutor’s instructions or to appeal the prosecutor’s decision is established by the head of the investigative body. In any case, such a period cannot exceed one month from the date the criminal case was received by the investigator. Further extension of the period of preliminary investigation is carried out on a general basis.
5. A change in the scope of the charge or the qualification of the actions of the accused may also trigger investigative actions. This is not required when the prosecutor gives instructions to partially terminate the criminal prosecution, since for this the investigator only needs to issue a decision and draw up a new indictment. A copy of the resolution is sent to interested persons and their representatives, but they are not re-acquainted with the materials of the criminal case.
6. Re-drafting of the indictment can also act as an independent basis for returning the criminal case to the investigator. This occurs in cases where pre-trial proceedings were carried out properly, but the investigator incorrectly drafted the indictment (for example, incorrectly grouped evidence, made factual errors, etc.). In this case, the original indictment is withdrawn from the criminal case.
7. Re-drafting of the indictment is not an additional investigation, therefore the investigator, having received a criminal case, does not have the right to carry out investigative actions on it.
8. The prosecutor does not have the right to independently draw up an indictment.
9. The indictment must be approved by a prosecutor of the same level as the court to which the criminal case will subsequently be sent. The criminal case is sent to a higher prosecutor for approval of the indictment in cases where it is within the jurisdiction of the court of a constituent entity of the Russian Federation (Part 3 of Article 31 of the Code of Criminal Procedure of the Russian Federation).
10. The prosecutor resolves the issue of changing the preventive measure if there are appropriate grounds (Articles 97, 110 of the Code of Criminal Procedure of the Russian Federation). On the other hand, if there are grounds, the prosecutor has the right to file a petition with the court to extend the period of the ban on leaving the premises in which the accused lives during certain periods of time, the period of his house arrest or the period of detention.
11. Since the return of the criminal case to the investigator indicates shortcomings in his procedural activities, the investigator has the right, having received the consent of the head of the investigative body, to appeal the prosecutor’s decision to a higher prosecutor. If the superior prosecutor does not cancel the decision of the inferior prosecutor, then the investigator obtains the consent of the chairman of the Investigative Committee of the Russian Federation or the senior head of the investigative body of another department, and then turns to the Prosecutor General of the Russian Federation, whose decision is final.
12. The investigator’s appeal to the head of the investigative body and the superior prosecutor suspends the prosecutor’s decision to return the criminal case to the investigator for conducting a preliminary investigation, changing the scope of the charge or qualifying the actions of the accused, or restating the indictment and eliminating identified deficiencies.
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Prosecutor's decision in the case
— Part 1 221 Code of Criminal Procedure
a case received from an investigator is considered within 10 days
- Part 1.1 221 Code of Criminal Procedure
for complex, voluminous cases in 30 days
I).
Confirmation of the indictment
- Clause 1 Part 1 221 Code of Criminal Procedure
the prosecutor approves the conclusion and sends the case to court
II).
Returning the case to the investigator
— Clause 2 Part 1 221 Code of Criminal Procedure
return case:
— Clause 2 Part 1 221 Code of Criminal Procedure
return of the case for additional investigation
— Clause 2 Part 1 221 Code of Criminal Procedure
return of the case to change the scope of the charge
— Clause 2 Part 1 221 Code of Criminal Procedure
return of the case for re-drafting the conclusion
- Part 3 221 Code of Criminal Procedure
a reasoned decision is issued to return the case
III).
Referral of the case to a higher prosecutor
— Clause 3 Part 1 221 Code of Criminal Procedure
the prosecutor sends it to a superior if the jurisdiction is higher
Detention
- Part 2 221 Code of Criminal Procedure
the prosecutor releases after the expiration of the maximum period of custody
- Part 2.1 221 Code of Criminal Procedure
the prosecutor provides the court with an extension of the period of custody
Appealing the return of the case
- Part 4 221 Code of Criminal Procedure
the investigator will appeal to a higher prosecutor within 72 hours
- Part 4 221 Code of Criminal Procedure
the investigator will then appeal to the Prosecutor General
- Part 4 221 Code of Criminal Procedure
superior prosecutor within 10 days:
— clause 1 part 4 221 Code of Criminal Procedure
refuses to satisfy the investigator's request
— clause 2, part 4, 221 Code of Criminal Procedure
cancels the decision of the lower prosecutor
- Part 5 221 Code of Criminal Procedure
appeal suspends execution
Article 221 of the Code of Criminal Procedure. Prosecutor's decision in a criminal case
1) The prosecutor reviews the criminal case received from the investigator with an indictment,
- and within 10 days makes one of the following decisions on it:
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— P.14
Plenum No. 28, a case not approved by the prosecutor is returned by the court
1). on approval of the indictment and on sending the criminal case to court;
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- clause 15 part 2 37 Code of Criminal Procedure
the prosecutor has the right to return the case with written instructions
- Part 6.1 162 Code of Criminal Procedure
investigation period when the case is returned by the prosecutor: 1 month
- clause 3.1
Plenum No. 1, the return of the case to the investigator is not appealed under
Article 125 of the Code of Criminal Procedure
2). on the return of the criminal case to the investigator for:
— conducting an additional investigation;
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- part 1 175 of the Code of Criminal Procedure
change of charge
— changes in the scope of charges or qualifications of the actions of the accused;
- or restate the indictment and eliminate the identified deficiencies with their written instructions;
3).
on sending a criminal case to a higher prosecutor for approval of the indictment, if it is within the jurisdiction of a higher court.
1.1) In case of complexity or large volume of the criminal case, the period established by part 1 of this article may be extended at the motivated request of the prosecutor by a higher prosecutor up to 30 days.
2) Having established that the investigator violated the requirements of Part 5 109 of the Code of Criminal Procedure, and the deadline for keeping the accused in custody has expired, the prosecutor cancels this preventive measure.
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- Part 8.3 109 Code of Criminal Procedure
in the case provided for in
Part 2.1 221 of the Code of Criminal Procedure
, extension for 30 days
— paragraph 31
Plenum No. 41 extension of preventive measures when transferring a case to court
2.1) Having established that the period of prohibition of certain actions provided for in paragraph 1 of Part 6 of 105.1 of the Code of Criminal Procedure, the period of house arrest or the period of detention is insufficient for making a decision in the manner established by this article, or for the court to fulfill the requirements provided for in Part 3 227 of the Code of Criminal Procedure, the prosecutor, if there are grounds, initiates a petition before the court to extend the period of these preventive measures
.
3) In the cases provided for in paragraph 2, paragraph 3 of part 1 of this article, the prosecutor issues a reasoned decision.
Url Additional information:
- clause 5 part 2 38 Code of Criminal Procedure
the investigator's right to appeal the return of the case from the prosecutor
- clause 10 part 1 39 Code of Criminal Procedure
consent of the head of the investigation office to appeal the return of the case
- Part 3 162 Code of Criminal Procedure
The time for appeal is not included in the investigation period
4) The prosecutor’s decision to return the criminal case to the investigator may be appealed by him within 72 hours from the moment the criminal case was received by him, with the consent of the head of the investigative body - to a
higher prosecutor,
and in case of disagreement with his decision - to the Prosecutor General with the consent of the Chairman of the Investigative Committee or the head of the investigative body of the relevant federal executive body (under the federal executive body).
The superior prosecutor, within 10 days from the receipt of the relevant materials, makes one of the following decisions:
1). on refusal to satisfy the investigator's request;
2). to cancel the decision of the lower prosecutor. In this case, the superior prosecutor approves the indictment and sends the criminal case to court.
5) An appeal of the prosecutor’s decision specified in clause 2 of part 1 of this article, in the manner established by part 4 of this article, suspends its execution.
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Article 221. Decision of the prosecutor in a criminal case
Article 221. Decision of the prosecutor in a criminal case
[Code of Criminal Procedure] [Part Two] [Section VIII] [Chapter 31]
. The prosecutor reviews the criminal case with the indictment received from the investigator and makes one of the following decisions on it within 10 days:
- 1) on approval of the indictment and on sending the criminal case to court;
- 2) on the return of the criminal case to the investigator for additional investigation, changing the scope of the charge or qualification of the actions of the accused or restating the indictment and eliminating identified deficiencies with their written instructions;
- 3) on sending the criminal case to a higher prosecutor for approval of the indictment, if it is within the jurisdiction of a higher court.
1.1. In case of complexity or large volume of the criminal case, the period established by part one of this article may be extended at the motivated request of the prosecutor by a higher prosecutor up to 30 days.
. Having established that the investigator violated the requirements of part five of Article 109 of this Code, and the deadline for keeping the accused in custody has expired, the prosecutor cancels this preventive measure.
2.1. Having established that the period of prohibition of certain actions provided for in paragraph 1 of part six of Article 105.1 of this Code, the period of house arrest or the period of detention turns out to be insufficient for making a decision in the manner established by this article, or for the court to fulfill the requirements provided for in part three of Article 227 of this Code, the prosecutor, if there are grounds, initiates a petition to the court to extend the period of these preventive measures.
. In the cases provided for in paragraphs 2 and 3 of part one of this article, the prosecutor issues a reasoned decision.
. The prosecutor's decision to return the criminal case to the investigator may be appealed by him within 72 hours from the moment the criminal case was received by him with the consent of the head of the investigative body to a higher prosecutor, and if he disagrees with his decision - to the Prosecutor General of the Russian Federation with the consent of the Chairman of the Investigative Committee of the Russian Federation or the head investigative body of the relevant federal executive body (under the federal executive body). The superior prosecutor, within 10 days from the receipt of the relevant materials, makes one of the following decisions:
- 1) to refuse to satisfy the investigator’s request;
- 2) to cancel the decision of the lower prosecutor. In this case, the superior prosecutor approves the indictment and sends the criminal case to court.
. An appeal of the prosecutor's decision specified in paragraph 2 of part one of this article, in the manner established by part four of this article, suspends its execution.
