Article 237 of the Code of Criminal Procedure of the Russian Federation. Returning the criminal case to the prosecutor

In accordance with the current legislation of the Russian Federation, the prosecutor is responsible for the quality of the investigated case and must monitor the progress of the investigation. Previously, the court, if it disagreed with the presented materials, returned the case for additional investigation.

Changes in legislation have led to the fact that it is returned to the prosecutor's office, and its future fate is decided there. The return of a criminal case to the prosecutor often causes discrepancies in the applicable rules, and such a procedure requires special analysis.

What does Art. 237 Code of Criminal Procedure of the Russian Federation?

Article 237 of the Code of Criminal Procedure of the Russian Federation is devoted to the return of a criminal case to the prosecutor. It clearly states that the judge has the right to return documents to the prosecutor's office only if necessary to eliminate obstacles to a full trial.

He does this on his own initiative or at the request of one of the parties. Refunds should be considered a temporary measure, i.e. until serious violations are eliminated.

The latest changes affecting Article 237 have seriously changed the essence of the procedure under consideration.

Now the judge cannot return the case for further investigation, having discovered gaps and shortcomings in the work of the investigators (Part 4 of Article 237). The purpose of this decision is to eliminate procedural obstacles that make it impossible to consider the case in court.

This is done to ensure that accused or injured persons have the opportunity to fully exercise their rights to defense and compensation for damages suffered after the case is re-filed in court. It is this goal that was confirmed by the Constitutional Court of the Russian Federation.

When returning the case, the judge must clearly indicate the reasons for his decision, and their list is indicated in Part 1 of Article 237. At the same time, he decides on the measure of restraint for the defendant while the violations are corrected. Detention is regulated by Article 109 of the Code of Criminal Procedure.

The new version has another important change. Clause 6.1 of Article 237 provides the opportunity to return the case to the prosecutor’s office for reclassification if participation in a more serious crime than was previously charged is detected. This affected persons for whom the use of medical and coercive measures is envisaged when a more serious, socially dangerous act is established. In this case, the case can be returned only at the request of the prosecutor's office.

Comments on Article 237 of the Code of Criminal Procedure

The activities of the prosecutor have always been the focus of a criminal case. According to the law, it is he who is responsible for the correctness and objectivity of the pre-trial proceedings. Based on this, it is not at all strange that the judge, having discovered errors in the indictment, initiates an additional investigation and entrusts the prosecutor to correct the errors.

The Code of Criminal Procedure allows an additional investigation to be initiated to eliminate the incompleteness of the indictment, and it is necessary for the prosecutor to improve the supervisory activities of the inquiry and investigation bodies.

The list of grounds for returning case materials to the prosecutor, given in Article 237 of the Code of Criminal Procedure of the Russian Federation with comments, is exhaustive. At the same time, it is obvious that filling some of the procedural gaps necessary to consider the case in court is impossible without further investigation of the criminal case.

Violations of established requirements, as a basis for returning the case to the prosecutor, must be

To return the case to the prosecutor, not all errors in the conclusion can be grounds for applying the article, but only those that prevent the court from passing a sentence. For example, it is illegal to make a judicial decision in a case if the charge in the indictment does not correspond in content to the charge described in the summons to bring a person as an accused.

A judge’s decision cannot be based on an indictment that has not been signed by the investigator or inquiry officer. If the decision is missing important information about the accused (his criminal record and whereabouts), the judge will not be able to make the right decision. The fact is that unspent criminal records indicate a relapse and an increased danger of the attacker, as does his concealment from the investigation, and this entails a more severe punishment.

Grounds for returning a case

Part 1 of Article 237 of the Code of Criminal Procedure provides an exhaustive list of grounds for returning the case to the prosecutor:

• serious flaws in the execution of the indictment that prevent the court from making a fair decision;
• the accused is not familiar with and has not received the indictment;
• the advisability of taking compulsory medical measures;
• consolidation of several criminal cases;
• the rights arising from Article 217 of the Code of Criminal Procedure were not explained to the defendant;
• the presence of circumstances for reclassifying the case to a more serious article.

Experts identify the following main groups of causes causing the above violations:

1. Incorrect information about the participants in the process, primarily about the accused. The data presented must exclude any doubts about personal identification. Any inaccuracies and doubts are subject to verification. Inaccuracies in providing information about victims are a violation of clause 8, part 1, article 220 of the Code of Criminal Procedure.
2. Violations in the presentation of the plot, essence and wording of the charges given in the indictment. Examples of violations: contradictions in the presentation of circumstances; absence of specific accusations against one of the participants; incomplete statement of the essence of the accusation; lack of accusatory wording or its incomplete presentation; insufficiently qualified drafting of the indictment or insufficient specification.
3. Violations in the evidence base. The indictment document must set out the evidence of the prosecution and defense (clause 5, part 1, article 220 and clause 6, part 1, article 225 of the Code of Criminal Procedure of the Russian Federation). It is a violation to list evidence without disclosing its essence.
4. Other violations and inaccuracies in the preparation of the conclusion. For example, according to Part 4 of Article 220 of the Code of Criminal Procedure, it must be accompanied by a list of persons to be summoned to trial. The absence of a list may be considered a clear violation.

A separate group of reasons consists of violations of criminal procedural norms. It especially highlights:

• failure to familiarize the accused with the indictment;
• failure to ensure the use of his native language, which causes a misunderstanding of the essence of the document;
• violation of the rights to defense and other rights of the accused or victim;
• failure to involve all accomplices in the act;
• failure to recognize a victim who suffered as a result of a crime;
• violation of deadlines for attracting persons;
• failure to take into account the requests of the accused and the victim;
• lack of notification about the referral of the case to the courts and the completion of investigative actions.

Everything about criminal cases

Go to the text of the Code of Criminal Procedure

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Grounds for returning the case to the prosecutor

:

— Part 1 237 Code of Criminal Procedure

grounds for returning the case to the prosecutor:

I).

— Clause 1 Part 1 237 Code of Criminal Procedure

if there are violations in the indictment

II).

— Clause 2 Part 1 237 Code of Criminal Procedure

if a copy of the indictment has not been served

— Clause 2 Part 1 237 Code of Criminal Procedure

if delivery is not lawful, the case will not be returned

III).

— Clause 3 Part 1 237 Code of Criminal Procedure

if the court decided that medical measures are not required (
Part 5 443
)

IV).

— clause 4 part 1 237 Code of Criminal Procedure

if you need to join criminal cases

V).

— Clause 5 Part 1 237 Code of Criminal Procedure

if the rights are not explained when reading the case (
Part 5 217
)

VI).

Increased charges

— Clause 6 Part 1 237 Code of Criminal Procedure

When studying the case, the need to tighten

— Clause 6 Part 1 237 Code of Criminal Procedure

the court hearing revealed the need to tighten

— Part 1.3 237 Code of Criminal Procedure

the court must justify the return to a more serious charge

VII).

— Part 1.1 237 Code of Criminal Procedure

an abbreviated form of inquiry is impossible, transition to a general

VIII).

— clause 1 part 1.2 237 Code of Criminal Procedure

new grave consequences have come

IX).

— clause 2 part 1.2 237 Code of Criminal Procedure

new or newly discovered circumstances

Preventive measure

— Part 3 237 Code of Criminal Procedure

the preventive measure when returning the case is determined by the judge

PLENAMA OF THE Supreme Court

- paragraph 14

Plenum No. 28 return of the case to the prosecutor from the stage of preparation for trial

— P.

Plenum No. 51 return of the case to the prosecutor from the stage of consideration of the first instance

Additional Information

— Part 3 389.2 Code of Criminal Procedure

this decision can be appealed before sentencing

- Part 6.1 162 Code of Criminal Procedure

the period of investigation when the case is returned by the prosecutor is 1 month

Returning the case to the prosecutor

Returning the case to the prosecutor

at the pre-trial stage, to eliminate violations

Delivery of a copy of the indictment

Presentation of the indictment

conclusions: all aspects useful for defense

SITUATIONS from practice

Request for refund

case to the prosecutor, at what point can it be reported?

Article 237 of the Code of Criminal Procedure. Returning the criminal case to the prosecutor

1) The judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor to remove obstacles to its consideration by the court in cases where:

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- paragraph 14

Plenum No. 28 violations interfering with a judicial decision

— P.

Plenum No. 1 violations in the indictment, act

CASE No. 7U-4224/2021

Example

- indication of the approximate time in the indictment (return to the prosecutor)

1).
the indictment, indictment or indictment resolution was drawn up in violation of the requirements of the Criminal Procedure Code, which excludes the possibility of a court passing a sentence or making another decision based on this conclusion, act or resolution;
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- paragraph 15

Plenum No. 28 failure to serve an indictment, act

Delivery of a copy of the indictment

Presentation of the indictment

conclusions: all aspects useful for defense

2). the accused was not given a copy of:

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— Part 2 222 Code of Criminal Procedure

delivery of a copy of the indictment to the accused

- indictment,

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- Part 3 226 Code of Criminal Procedure

delivery of a copy of the indictment to the accused

- indictment,

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- Part 3 226.8 Code of Criminal Procedure

handing the accused a copy of the indictment

- or
an indictment,
except in cases where the court recognizes as legal and justified the decision of the prosecutor made in the manner established by
Part 4 222 of the Code of Criminal Procedure or Part 3 226 of the Code of Criminal Procedure ;
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— Part 5 443 Code of Criminal Procedure

return to the prosecutor if medical measures are not taken

— clause 18

Plenum No. 6 return of the case for drawing up an indictment

3).
there is a need to draw up an indictment or indictment in a criminal case sent to the court with a decision to apply a compulsory measure of a medical nature;
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Connection of criminal cases

—
33 Code of
Criminal Procedure jurisdiction when joining cases

- part 1 153 of the Code of Criminal Procedure

situations where cases can be connected - at the investigation stage

-
239.2 of the Code of
- connection of criminal cases - at the judicial stage

— clause 4 part 1 237 Code of Criminal Procedure

return to the prosecutor - if it is necessary to combine criminal cases

4). there are grounds provided for in 153 Code of Criminal Procedure for joining criminal cases;

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— clause 11

Plenum No. 28 failure to clarify the right to a special procedure, return of the case

— clause 4

Plenum No. 60 failure to clarify the right to a special procedure, return to the prosecutor

5).
when familiarizing the accused with the materials of the criminal case, the rights provided for in Part 5 217 of the Code of Criminal Procedure were not explained to him;
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IV). Re-involvement of the judge

Repeated participation

judges after returning for tightening (
clause 6, part 1, 237 of the Code of Criminal Procedure
)

6). The factual circumstances set out in the indictment, indictment, indictment, decision to send a criminal case to court for the application of a compulsory measure of a medical nature indicate:

- on the existence of grounds for classifying the actions of the accused (the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature) as a more serious crime, a socially dangerous act;

- or during a preliminary hearing or trial, factual circumstances have been established indicating the existence of grounds for classifying the actions of these persons as a more serious crime, a socially dangerous act.

1.1) In the presence of the circumstances specified in 226.2 of the Code of Criminal Procedure and Part 4 of 226.9 of the Code of Criminal Procedure, the judge, at the request of a party or on his own initiative, returns the criminal case to the prosecutor for transferring it to jurisdiction and conducting an inquiry
in the general manner.
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— P.

Plenum No. 51 return under
Part 1.2 237 of the Code of Criminal Procedure
only at the request of the party

1.2) 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:
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- P.20

Plenum No. 55 what is considered a change to a more serious charge

1).
after the criminal case was sent to court, new socially dangerous consequences of the act charged to the accused occurred, which are the basis for charging him with committing a more serious crime;
2). a sentence, ruling or court order previously passed in a criminal case are canceled in the manner prescribed by
Chapter 49 of the Criminal Procedure Code, and the new and newly discovered circumstances that served as the basis for their cancellation are, in turn, the basis for charging the accused with committing a more serious crime.
1.3)
When returning a criminal case to the prosecutor on the grounds provided for in paragraph 6 of Part 1 of this article, the court is obliged to indicate the circumstances that are the basis for qualifying the actions of the accused, the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature, as a more serious crime , socially dangerous act.
In this case, the court does not have the right to: - indicate the article
of the Special Part of the Criminal Code , according to which the act is subject to new classification;
- and also draw conclusions about
the assessment of evidence, about the guilt of the accused, about the commission of a socially dangerous act by the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature.
2) Lost power.

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— paragraph 33

Plenum No. 41 preventive measures when returning the case to the prosecutor

3) When returning the criminal case to the prosecutor, the judge decides on the measure of restraint against the accused. If necessary, the judge extends the period of detention of the accused for investigative and other procedural actions, taking into account the deadlines provided for in 109 of the Code of Criminal Procedure.

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Return procedure

The return of the case is carried out by the judge if the above violations are identified and a full judicial review and sentencing are impossible. This procedure can be carried out on the judge’s own initiative, as well as at the request of the defense or prosecution.

Procedure

The return procedure includes the following steps:

1. The judge's decision to return the case. The reason can only be compelling reasons specified in Article 237 of the Code of Criminal Procedure of the Russian Federation.
2. Drawing up a court order or ruling. It indicates the following: date and place of registration; who made the decision; Full name of the accused and information about him; the nature of the crime, its date and place; specific violations with reference to a clause in the Code of Criminal Procedure that make it impossible to pass a sentence.
3. Transfer of the court decision and the criminal case to the prosecutor, indicating the necessary measures and the timing of their implementation.

Further actions

The Code does not regulate the actions of the prosecutor after the return of the case. He makes his own decisions based on his authority. If inaccuracies are identified in the execution of the indictment document, the prosecutor's office itself takes measures to eliminate the shortcomings. If additional measures are necessary, the prosecutor forwards the returned case to the head of the investigative agency. In this case, instructions are mandatory.

Thus, further actions include issuing specific instructions to the investigative body and placing their execution under prosecutorial control. The investigator (who previously conducted investigations in this case, or newly appointed) carries out the necessary procedural measures to eliminate the detected violations.

After all the comments have been eliminated, the case is re-sent to the prosecutor's office and then to the court. In some cases, the prosecutor may decide to terminate it (amnesty, expiration of the statute of limitations, proof of the innocence of the accused, etc.).

Returning the case to the trial stage

The judge may schedule a hearing at the request of one of the parties (Article 217 of the Code of Criminal Procedure of the Russian Federation). The following have the right to it: the defense lawyer, the accused himself and the prosecutor. The petition is sent within 3 days after receiving the indictment or immediately after the court hearing. The decision to return is made on the following grounds:

• the violations noted in the petition correspond to Part 1 of Art. 237 Code of Criminal Procedure;
• they cannot be eliminated during the trial;
• they are not related to the incompleteness of the preliminary investigation.

What does judicial practice show under this article?

The outcome of the case directly depends on the correctness of the indictment. Sometimes, in the indictment, the investigator reflects the evidence and the picture of the event so accurately that there is no doubt at all about the guilt of the subject of the proceedings. However, the displayed data should in no way influence the judge's decision.

In practice, the importance of a conviction can be demonstrated in a rape case. Citizen Pyatakov was handed a summons, according to which he is accused of raping a certain citizen. The crime occurred on May 25, 2018.

Grounds for refusal to initiate a criminal case under the Code of Criminal Procedure of the Russian Federation, Article 24

After investigative measures, an indictment was issued and sent to court. The judge at the preliminary hearing found inconsistencies in the documents, because the name of the accused is not Pyatakov, but Pitakov, which is a gross violation. The fact is that a completely different person is brought to justice, who does not appear in the case at all.

In this regard, the judge returned the indictment to the prosecutor to correct the error. The defense additionally identified a discrepancy in the dates of the incident in the indictment and summons, but did not immediately announce this and deliberately remained silent. This was necessary so that later there would be an opportunity to once again apply for the return of the case and thus better prepare for the main court hearing.

What decisions are most often made under Article 237 of the Code of Criminal Procedure?

A judge has no right to accept an indictment that is incorrectly formulated or drafted; this is a gross violation of the rights of citizens, for which an official can pay not only with work, but also with freedom.

The title of a judge is a standard of honesty, integrity and objectivity, therefore a person holding this position, for his part, must make every effort to ensure that there is no violation of procedural law in documents that decide the fate of a person.

During its operation, the legal institution of returning case materials to eliminate procedural errors has become one of the most effective options for protecting the rights of participants in the trial. At the same time, there is always a need to change some norms of the Code of Criminal Procedure of the Russian Federation concerning the procedure for appealing decisions. Recently, cunning lawyers, together with their clients, have been filing petitions at the later stages of consideration of a criminal case, thereby delaying the sentencing and selection of punishment.

The legislator establishes the right of the accused to petition for the return of the case as many times as he likes, but if there are grounds, and an experienced lawyer can find many such grounds (an incorrectly formulated sentence, inaccuracy of one of the facts, etc.). Based on this, it is necessary to legislate additional grounds for the return of materials at specific stages of the trial, as well as to give the judge the opportunity to reject such a request if it is obviously unlawful.

Application example

If violations are identified in the indictment, the defendant's lawyer has the right to file a Petition to return the criminal case to the prosecutor. He sends it to the court where the case has been transferred for consideration, in accordance with the relevant notice. In the document, the lawyer indicates his information and confirms his authority to defend the accused.

The petition indicates the specific case and information about the accused. The following describes the discovered violation, which can be considered the reason for the return of the case on the basis of Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation. The expanded justification for the claim provides an analysis of the violation for compliance with other regulations. In particular, Resolution of the Constitutional Court of the Russian Federation dated December 8, 2003 No. 18-P, Resolution of the Supreme Court of the Russian Federation dated March 5, 2004 No. 1, Art. 74, 220 and 225 of the Code of Criminal Procedure of the Russian Federation and other articles of the Laws of the Russian Federation can be used.

The arguments presented must clearly indicate:

1. For procedural violations.
2. Failure to take into account evidence presented by the defense.
3. Incorrect personal identification and other facts.

The main part makes a request to return the case to the prosecutor with reference to a violation of legal norms.

What is the article of the Code of Criminal Procedure about?

The main purpose of criminal proceedings and judicial proceedings is to respect the legitimate rights and interests of citizens. This goal can be achieved by correctly and objectively conducting investigative measures and, ultimately, drawing up a reasoned indictment. In the indictment, the investigator must reflect all investigative stages, physical evidence, witness testimony and other equally important facts about the guilt of a particular person.

If errors are made in this procedural document, the judge returns the case materials to the prosecutor for revision. It is important to note that the return of the case materials cannot be associated with making up for the incompleteness of the investigative actions or inquiry carried out.

The judge makes a decision precisely on the basis of the indictment and on the basis of the facts available in the decision. If these facts are distorted, misinterpreted, or procedurally incorrect, the judge's sentence itself will be unlawful. 237 of the Code of Criminal Procedure of the Russian Federation regulates the grounds for returning a criminal case to the prosecutor within the framework of a preliminary court hearing.

Basic provisions

In criminal proceedings, there is not a single event that occurs on its own; all actions of officials must be reasoned and legal. The return of a criminal case to the prosecutor must also have compelling reasons. The first reason for return is the presence of a violation of the requirements of the law, which in itself excludes the possibility of a court making a decision without eliminating the violations committed.

An equally important violation is the failure to serve the accused with a copy of the indictment. A person who appears in a case as an accused must be familiar with the charges brought against him - this is his legal right. This situation significantly violates procedural law, since the accused is deprived of the opportunity to prepare for trial, that is, he is deprived of the right to defense and a fair trial.

The court may return the case to the prosecutor if a decision on compulsory treatment has been received, but during the proceedings the question arises of the need to draw up an indictment or there are grounds for combining several cases. The lack of jurisdiction of the case also serves as a reason for sending materials back to the prosecutor.

The materials can be returned if the investigator did not explain to the accused the rights at the hearing of his case by a jury, during proceedings by a panel of judges, the application of a special procedure for the proceedings, and against the background of a preliminary hearing in the case.

The presence in the indictment of information that allows the crime to be reclassified to a more serious one will also be the basis for returning the document for revision. If, at the time the indictment is received by the court, information is received about more serious consequences of the crime, the case materials are returned for revision, and the criminal act is reclassified.

If the judge's previously passed sentence was overturned, the case is returned to the prosecutor for revision. The discovered circumstances should become the basis for reclassification of the act and re-trial.

Most common violations

According to statistics, most often a criminal case is returned for additional investigation by the court due to an incorrect drafting of the indictment. Sometimes, errors in this document not only eliminate the opportunity to make an objective decision, but also to draw it up in principle, without eliminating the errors.

Preparing for a court hearing in criminal proceedings: general procedure under the Criminal Procedure Code

Violations can be classified into the following groups:

• Incorrect or incomplete indication of personal data of the accused, victim or other participants in the process, when their presence at the meeting is mandatory or systematic.
• The actual circumstances of the incident and the wording of the charges are not sufficiently stated; there is the presence of ambiguous phrases and contradictions.
• Lack of indication of the time, place and method of committing the crime, inaccuracies in the qualification of the crime are also unacceptable.
• Violations related to the presentation of evidence in the case. That is, an incomplete list of evidence is provided or there is no brief content of the evidence provided.
• Other violations, which may include unspecified corrections in the text of the document. If there are corrections or additional information was added without the approval of the prosecutor, the reliability of the indictment will be questionable.

At the preliminary hearing, the judge evaluates the correctness of the indictment and compliance with established legislative norms. The activities of the judge at this stage of the proceedings are not related to the evidentiary procedure. The judge examines the document to determine whether there are grounds for returning the case to the prosecutor for revision. If there are no such grounds, the case is accepted for judicial proceedings, and proceedings on the merits begin.

Is a lawyer necessary to return a case to the prosecutor?

Of course, the accused himself can seek to return the case to the prosecutor, but will he be able to take full advantage of this right? The following circumstances raise doubts:

• The preventive measure is often associated with restriction of movement. This interferes with the collection of evidence;
• the need to have legal knowledge to be able to use the entire base of regulatory information and its application in specific cases;
• complexity and ambiguity of interpretations of various articles of the Laws;
• the need to competently draw up an application, and control the order and timing of its consideration.

All of the above suggests that only with an experienced lawyer is it possible to obtain a positive court decision. The chances of this are significantly increased by using the services of a qualified lawyer who has the appropriate license to defend the accused in a criminal case.

The legislation of the Russian Federation provides for the return of a criminal case to the prosecutor in case of violations of procedural actions. This measure is aimed at ensuring all the rights of citizens provided for by the Constitution and eliminating unfair sentences. The law clearly regulates the grounds for this procedure. If violations are identified, the judge, the defense, or the accused himself can seek their elimination.