New edition of Art. 321 Code of Criminal Procedure of the Russian Federation
1. The magistrate considers a criminal case in the general manner with the exceptions provided for in this article.
2. The trial must begin no earlier than 3 and no later than 14 days from the date the application or criminal case was received by the court.
3. The consideration of an application in a criminal case of private prosecution may be combined into one proceeding with the consideration of a counter-application. The joining of statements is allowed on the basis of a decision of the magistrate before the start of the judicial investigation. When combining applications into one proceeding, the persons who filed them participate in criminal proceedings simultaneously as a private prosecutor and a defendant. To prepare for the defense in connection with the receipt of a counter-statement and the joining of proceedings at the request of the person in respect of whom the counter-statement was filed, the criminal case may be postponed for a period of no more than 3 days. The interrogation of these persons about the circumstances stated by them in their statements is carried out according to the rules for interrogating the victim, and about the circumstances set out in counter-complaints - according to the rules for interrogating the defendant.
4. The accusation at the court hearing is supported by:
1) public prosecutor - in cases provided for by part four of Article 20 and part three of Article 318 of this Code;
2) private prosecutor - in criminal cases of private prosecution.
5. The judicial investigation in criminal cases of private prosecution begins with the presentation of a statement by the private prosecutor or his representative. When a counter-statement is being considered simultaneously in a criminal case against a private prosecution, its arguments are presented in the same order after the arguments of the main statement are presented. The prosecutor has the right to present evidence, participate in its examination, express to the court his opinion on the merits of the charge, on the application of the criminal law and the sentencing of the defendant, as well as on other issues arising during the trial. The prosecutor may change the charge if this does not worsen the situation of the defendant and does not violate his right to defense, and also has the right to withdraw the charge.
6. If during the trial the actions of the person in respect of whom the application was filed, signs of a crime not provided for in part two of Article 20 of this Code are established, then the magistrate makes a decision to terminate the criminal prosecution in the case and forward the materials to the head of the investigative body or the chief body of inquiry to resolve the issue of initiating a criminal case by way of public or private-public accusation, of which the victim or his legal representative is notified.
Article 321 of the Code of Criminal Procedure of the Russian Federation. Consideration of a criminal case in court (current version)
1. The magistrate considers a criminal case in the general manner with the exceptions provided for in this article.
2. The trial must begin no earlier than 3 and no later than 14 days from the date the application or criminal case was received by the court.
3. The consideration of an application in a criminal case of private prosecution may be combined into one proceeding with the consideration of a counter-application. The joining of statements is allowed on the basis of a decision of the magistrate before the start of the judicial investigation. When combining applications into one proceeding, the persons who filed them participate in criminal proceedings simultaneously as a private prosecutor and a defendant. To prepare for the defense in connection with the receipt of a counter-statement and the joining of proceedings at the request of the person in respect of whom the counter-statement was filed, the criminal case may be postponed for a period of no more than 3 days. The interrogation of these persons about the circumstances stated by them in their statements is carried out according to the rules for interrogating the victim, and about the circumstances set out in counter-complaints - according to the rules for interrogating the defendant.
4. The accusation at the court hearing is supported by:
1) public prosecutor - in cases provided for by part four of Article 20 and part three of Article 318 of this Code;
2) private prosecutor - in criminal cases of private prosecution.
5. The judicial investigation in criminal cases of private prosecution begins with the presentation of a statement by the private prosecutor or his representative. When a counter-statement is being considered simultaneously in a criminal case against a private prosecution, its arguments are presented in the same order after the arguments of the main statement are presented. The prosecutor has the right to present evidence, participate in its examination, express to the court his opinion on the merits of the charge, on the application of the criminal law and the sentencing of the defendant, as well as on other issues arising during the trial. The prosecutor may change the charge if this does not worsen the situation of the defendant and does not violate his right to defense, and also has the right to withdraw the charge.
6. If during the trial the actions of the person in respect of whom the application was filed, signs of a crime not provided for in part two of Article 20 of this Code are established, then the magistrate makes a decision to terminate the criminal prosecution in the case and forward the materials to the head of the investigative body or the chief body of inquiry to resolve the issue of initiating a criminal case by way of public or private-public accusation, of which the victim or his legal representative is notified.
Everything about criminal cases
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Consideration of a private prosecution case
- Part 1 321 Code of Criminal Procedure
the case is considered in the general manner
- Part 2 321 Code of Criminal Procedure
the case is considered no earlier than 3 and no later than 14 days
Counter-statement
- Part 3 321 Code of Criminal Procedure
joining into one proceeding with a counter-claim
- Part 3 321 Code of Criminal Procedure
connection before the start of the judicial investigation.
- Part 3 321 Code of Criminal Procedure
simultaneously as a private prosecutor and defendant
- Part 3 321 Code of Criminal Procedure
set aside for 3 days for preparation
- Part 3 321 Code of Criminal Procedure
the counter-applicant is questioned as a victim
- Part 3 321 Code of Criminal Procedure
according to complaints against him, interrogated as a defendant
The accusation is supported
— clause 1 part 4 321 Code of Criminal Procedure
public prosecutor
- clause 2, part 4 321 Code of Criminal Procedure
the victim himself
Judicial investigation
- Part 5 321 Code of Criminal Procedure
the prosecutor makes a statement
- Part 5 321 Code of Criminal Procedure
the counter's arguments are stated after the main statement
- Part 5 321 Code of Criminal Procedure
prosecutor's rights:
- Part 5 321 Code of Criminal Procedure
the private prosecutor has the right to change the charges
- Part 5 321 Code of Criminal Procedure
a private prosecutor has the right to withdraw charges
- Part 6 321 Code of Criminal Procedure
if a non-private crime is revealed, the consequences
Article 321 of the Code of Criminal Procedure. Consideration of a criminal case in court
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— Section IX of the Code of Criminal Procedure. Proceedings in the court of first instance (general procedure)
1) The magistrate considers a criminal case in the general manner with the exceptions provided for in this article.
2) The trial must begin no earlier than 3 and no later than 14 days from the date the application or criminal case was received by the court.
3) Consideration of an application in a criminal case
of private prosecution may be combined into one proceeding with consideration of a counter-application.
The joining of statements is allowed on the basis of a decision of the magistrate before the start of the judicial investigation.
When combining applications into one proceeding, the persons who filed them participate in criminal proceedings simultaneously as
a private prosecutor and a defendant.
To prepare for the defense in connection with the receipt of a counter-statement and the joining of proceedings at the request of the person in respect of whom the counter-statement was filed, the criminal case may be postponed for a period of no more than 3 days.
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— 277 Code of Criminal Procedure
interrogation of the victim in court
The interrogation of these persons about the circumstances they set out in their statements is carried out according to the rules
for interrogating the victim,
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— 275 Code of Criminal Procedure
interrogation of the defendant in court
and about the circumstances set out in the counter-complaints - according to the rules for interrogating the defendant.
4) The accusation at the court hearing is supported by:
1).
public prosecutor - in cases provided for in Part 4 20 and Part 3 318 of the Code of Criminal Procedure;
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- Part 3 246 Code of Criminal Procedure
in a private prosecution, instead of the prosecutor, the victim himself
- Part 3 249 Code of Criminal Procedure
failure of the private prosecutor to appear results in the termination of the case
2).
private prosecutor - in criminal cases of private prosecution.
5) The judicial investigation in criminal cases of private prosecution begins with the presentation of a statement by the private prosecutor or his representative.
When a counter-statement is being considered simultaneously in a criminal case against a private prosecution, its arguments are presented in the same order after the arguments of the main statement are presented.
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- paragraph 16
Plenum No. 28 examination in private prosecution cases
The prosecutor has the right:
- present evidence,
- participate in their research,
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— clause 4, part 2 171 Code of Criminal Procedure
essence of the charge description of the crime and qualification
- express to the court his opinion on the merits of the charge, on the application of the criminal law and the sentencing of the defendant, as well as on other issues arising during the trial.
The prosecutor may change the charge:
- if this does not worsen the situation of the defendant,
- and his
right to defense is not violated,
and he also has the right to refuse the accusation.
6) If during the trial the actions of the person in respect of whom the application was filed show signs of a crime not provided for in Part 2 20 of the Code of Criminal Procedure, then the magistrate:
- makes a decision to terminate criminal prosecution in the case,
- and sending materials to the head of the investigative
body or the head of the inquiry body to resolve the issue of initiating a criminal case in the form of a public or private-public accusation
- of which the victim or his legal representative is notified.
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Commentary on Article 321 of the Code of Criminal Procedure of the Russian Federation
1. The commented article establishes the peculiarities of consideration of criminal cases by a magistrate at a court hearing. The rest of the consideration takes place according to the general rules established by Chapter. 36–39 Code of Criminal Procedure of the Russian Federation.
2. According to Part 2 of the commented article, the countdown for the start of the trial (from 3 to 14 days) begins from the day the application or criminal case is received by the court. Thus, this period is also subject to a 7-day period, during which the magistrate must carry out the preparatory actions specified in Part 3 of Art. 319 Code of Criminal Procedure of the Russian Federation. Therefore, the start of the trial in less than 7 days can occur only in cases where during this time the person against whom the application was filed is summoned, the person is familiarized with the materials of the criminal case of private prosecution, etc.
3. In the case of a criminal case of private-public and public accusation received by the magistrate, the preparatory actions specified in Chapter. 33 Code of Criminal Procedure of the Russian Federation.
4. Part 3 of the commented article establishes that in criminal cases of private prosecution, the application can be combined into one proceeding with the consideration of a counter-application. In this case, counter statements are considered to be statements that contain information regarding the same event that occurred with the participation of the same persons.
5. The combination of an application and a counter-statement into one proceeding is allowed only before the start of the judicial investigation, since the connection at a later stage of the consideration of the criminal case will not allow establishing all the circumstances necessary for its resolution. At the same time, this does not deprive a person of the right to subsequently appeal to a magistrate with a statement in the general manner (Article 318 of the Code of Criminal Procedure of the Russian Federation).
6. After combining the statement and counter-statement, each of the applicants acquires dual status - both the victim and the defendant. Therefore, the magistrate explains to them the essence of both procedural statuses and ensures the implementation of the rights included in their content.
7. Part 4 of the commented article indicates who exactly supports the prosecution in criminal proceedings before a magistrate. This depends on the category of criminal cases, as well as on the order in which they were initiated. Thus, the state prosecutor supports the prosecution in cases provided for in Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation and Part 3 of Art. 318 of the Code of Criminal Procedure of the Russian Federation, i.e. in situations where there is no statement from the victim, if the crime was committed against a person who is in a dependent state or for other reasons is not able to independently exercise his rights. In addition, it should be borne in mind that, according to Part 2 of Art. 246 of the Code of Criminal Procedure of the Russian Federation, the participation of the public prosecutor is mandatory in the trial of all criminal cases of public and private-public prosecution, including those considered by a magistrate.
8. According to part 5 of the commented article, the judicial investigation in criminal cases of private prosecution, in contrast to other categories of criminal cases, begins with the private prosecutor or his representative making a statement. It is the statement that sets the limits of the charges that will be considered at the trial. If, in a criminal case of private prosecution, the statement and the private statement were combined into one proceeding, then the trial by the magistrate is carried out step by step: first, one statement is stated, and then another.
The rest of Part 5 is devoted to specifying the powers during the trial of a criminal case by a magistrate.
9. Part 6 of the commented article establishes a rule according to which the magistrate, upon discovering that the defendant’s act contains signs of a crime, the criminal prosecution of which is carried out as a public charge, terminates the proceedings on a private charge. After this, the materials are sent, depending on the jurisdiction, to the head of the investigative body or the head of the inquiry body to organize the criminal prosecution of the person in a public or private-public manner.
10. If the victim previously filed an application to initiate a criminal case of private prosecution, and subsequently it turned out that the person committed an act for which criminal prosecution is carried out in a private-public manner, then the person must submit a new application, which will contain a request to initiate a criminal case namely private-public accusation. For criminal cases of public prosecution, such a statement is not necessary, since proceedings are initiated regardless of the opinion of the person who was the victim of the crime.
