Initiation of a criminal case under the Criminal Procedure Code of the Russian Federation: procedure and grounds

Criminal proceedings are initiated only if there are serious and justified reasons, because we are talking about the possibility of applying a fairly severe punishment. Initiating a criminal case (according to the Code of Criminal Procedure of the Russian Federation) is permissible on the basis of a number of reasons clearly defined by the legislator. Timely initiation of a criminal case facilitates the prompt implementation of investigative measures and ensures the protection of the injured party from illegal actions.

This article will examine the procedural procedure for initiating a criminal case, the reasons and grounds for carrying out such actions, as well as the reasons for refusing to initiate it. In addition, the stages of initiating a criminal case will be studied.

The concept and essence of the stage of initiating a criminal case

The stage of initiating a criminal case represents the beginning of the course of criminal proceedings as an activity; this is its first stage. Like any other stage of a criminal court, the initiation of a criminal case is a period of time during which a certain type of criminal procedural activity is to be carried out, which is called verification of a message or statement of a crime.

This is the essence of this stage.

The initiation of a criminal case is not only a decision of a procedural nature, not only an institution of law, although, of course, these can also be called the initiation of a criminal case, this is, first of all, a stage that always exists if criminal proceedings take place.

The investigation is carried out only after the initiation of a criminal case. This means that the initiation of a criminal case must precede the conduct of the inquiry and preliminary investigation and cannot form its stage.

The independent nature of the stage of initiating a criminal case is established by the fact that it represents a whole stage of activity of a criminal procedural nature and corresponding legal relations, moreover, not a single criminal case can bypass this stage or be formed outside of this stage.

The essence of the stage of initiating a criminal case is to investigate and resolve reports and statements about a crime and, in certain cases, perform procedural actions (obtaining explanations, conducting audits and checks of documents, requesting certain materials), which are aimed at establishing the characteristic features of a crime in order to in order to make a legal and informed decision related to the initiation or refusal to initiate a criminal case.

Who can initiate a case

Most often, questions arise about the existence of the right to initiate criminal cases among the following authorized persons:

prosecutor;
judges;
district police officer

The prosecutor has the authority to supervise compliance with the law.

It is the prosecutor who is referred to criminal cases to determine jurisdiction.

He has the right to recognize as legal and justified the decision of the investigating authorities to initiate a criminal case, or to protest this decision.

That is, the prosecutor does not initiate a criminal case on his own, but agrees to the right of the investigative body to initiate this case if there are grounds.

The judge (court) has the power to initiate criminal proceedings in certain cases. These cases are strictly regulated by law:

Cases of private prosecution (Article 115, 116, Part 1 of Article 128.1 of the Criminal Code). When considering cases of private prosecution, the judge examines the complaint filed by the injured person against the offender. According to the law, the judge must, before initiating a case, take measures aimed at reconciling the victim and the guilty person.
Cases initiated during a court hearing when it was established that the defendant had committed another crime for which he was not charged (Article 255 of the Code of Criminal Procedure).
Cases initiated during a court hearing when circumstances were established indicating that an offense had been committed by a person not brought to criminal liability (Article 256 of the Code of Criminal Procedure).

The district police officer refers to the body of inquiry from the point of view of its affiliation with the territorial department of the Ministry of Internal Affairs.

But the district police officer himself is not a direct investigator.

Accordingly, he has the right to initiate a criminal case as an authorized person from internal authorities , but does not have the right to conduct preliminary investigative measures in the case.

After initiating a case, the district police officer must transfer it for further study to the appropriate investigative body.

How to initiate a criminal case through court

In some cases, victims are helped by filing a complaint to the Supreme Court. If the requirements in the application sent to the investigative bodies and the prosecutor's office have no effect, this is an exceptional way to achieve the restoration of your rights.

In practice, it often turns out that the accused, against whom it is planned to initiate a criminal case, has the right to petition within 30 days to dismiss the appeal (open the process).

Our task will be to convince the judge to open a case against a criminal who was not charged under a specific article and, accordingly, was not brought to justice.

Who doesn't have this right?

There are groups of persons who take part in the proceedings of a criminal case, but do not have the right to perform actions aimed at initiating it. Here you can specify persons such as:

duty officers who receive complaints from victims;
detectives carrying out direct investigative activities;
private prosecutors and lawyers of the injured person;
judges who do not have such powers.

Thus, it can be noted that the law establishes a strictly regulated range of persons who have the right to initiate legal proceedings if there are specific grounds.

Reasons and grounds for initiating a criminal case: the difference between the terms

In jurisprudence, two terms are often used: “reason” and “ground”. The difference between these two judgments is significant, but one cannot exist without the second.

There are three most important pretexts for initiating a criminal case (Article 140 of the Code of Criminal Procedure):

A statement that a crime is about to be carried out or has already been committed.
Arrival with the confession of a criminal or a citizen who was just preparing to become one.
A report from a person on duty who has received notification of the circumstances that led to the offense or preparation for it.

Also, a pretext for opening proceedings can be a prosecutor’s order that attention should be focused on the available information.

The applicant’s visit is the main reason for initiating a criminal case

Article 141 of the Code of Criminal Procedure of the Russian Federation is devoted to the statement, as one of the main pretexts for initiating a case.

It says there that:

The application comes in two configurations: verbal and handwritten.

With the second, everything is clear: a citizen came to the police, prosecutor’s office or court to inform about a planned or committed crime, and he wrote about it without delay in the presence of a government representative.

The oral form is considered to be the recording of testimony directly into the protocol, which the applicant must then sign. In addition to the testimony, information about the applicant is also recorded in the protocol so that, if necessary, he can be found and identified without problems.

An anonymous statement is not a reason to open a case.

If the prosecutor's office/police/court received a letter, received a call or information was delivered in another way, but the informant refuses to identify himself, then the official has every reason to refuse to initiate a case, but at the same time check the information specified in the anonymous letter, if it worth attention.

The statement does not guarantee the triumph of justice, but only gives an incentive to the investigation.

The applicant is not required to tell in detail how exactly the crime was committed and provide a file on the criminals.

Its task is to inform the authorities about criminal intentions or offenses committed. And the investigator must deal with the evidence base and other things.

Confession is the second reason for starting investigative work

Less often, the pretext for initiating a case is the confession of an attacker who has already committed a crime or only intended to do something illegal.

Also read: What is the penalty for theft of state property?

A citizen who has come to surrender himself with a confession can give information to the investigation in verbal or handwritten form.

If we are not talking about a slander against oneself (often people thirsting for fame or mentally ill people show interest in high-profile cases), then this is a clear reason for detaining the attacker and initiating an investigation.

Confession is the basis for:

mitigation of a sentence for a criminal (Article 61 of the Criminal Code of the Russian Federation);
releasing him from punishment (in certain episodes provided for in Article 291 of the Criminal Code of the Russian Federation);
choosing a light measure of restraint for the offender (for example, a written undertaking not to leave the place instead of arrest).

And naturally, according to Article 142 of the Code of Criminal Procedure, confession is one of the main evidence of the perpetrator’s guilt:

A person’s report during execution is a reason or basis for initiating a criminal case

If the investigation has neither evidence from the applicant nor an appearance with repentance, then the reason for starting the investigation may be notifications of various types received from various sources, including anonymous ones.

A note, telephone conversation, or other anonymous method of conveying information is not able to initiate an official investigation.

But, if an official believes that the information he has received deserves attention, no one is stopping him from reacting to it and, upon receiving confirmation of a planned or committed crime, submit a report, which will become a pretext for continuing work.

A report rarely becomes the basis for proceedings, because police officers do not consider it necessary to complicate their lives and verify information coming to them from anonymous sources.

That is why, having information about an attacker or a crime, it is important not to be afraid to file an official statement and tell the person at execution everything that is known. Otherwise, the offender may otherwise avoid deserved punishment.

Prosecutor's resolution

The prosecutor's decision acts as a reason that can initiate a criminal case if he identifies criminal acts in the course of prosecutorial and supervisory activities. This also includes explanations, acts, reports that were drawn up as a result of the personal observation of the prosecutor.

From the moment it acquired the status of an independent reason, which is intended to initiate a case, the prosecutor’s decision became a legal fact . The law associates it with the legal obligation of the investigator or interrogating officer to make a decision to initiate a criminal case or refuse to do so.

This resolution gives rise to criminal procedural relations. With its appearance, the procedural activity begins to make a decision to initiate a case and the deadlines begin to be calculated .

Review of judicial practice on appealing the initiation of criminal cases

Questions regarding acceptance of a complaint

The court cannot refuse to accept a complaint while simultaneously starting to evaluate its arguments (that is, in fact, to consider it) (Appeal Resolution of the Moscow City Court of December 22, 2022 in case No. 10-189716/2020).

Failure to comply with the requirement to immediately notify a person that a criminal case has been initiated against him may cause damage to the constitutional rights of the suspect, which in itself is the subject of judicial control (Appeal Resolution of the Moscow City Court of August 3, 2022 in case No. 10-13810/2020).

The requirement, formulated as “recognize the resolution as not complying with Part 4 of Art. 7 of the Code of Criminal Procedure of the Russian Federation" is nothing more than a requirement to recognize it as illegal and unfounded, and such a complaint is subject to acceptance (Resolutions of the Presidium of the Ivanovo Regional Court dated September 8, 2022 No. 44u-24/2017, No. 44u-23/2017 and No. 44у-22/2017).

According to the law, a complaint must be returned if it does not contain the necessary information, which prevents its consideration. The fact that the court previously expressed a position on the legality of the appealed decision does not apply to such grounds (Appeal Resolution of the Moscow City Court dated June 29, 2016 No. 10-9335/2016).

If the applicant indicates in the complaint that there are no proper reasons and grounds for initiating a criminal case, he cannot be denied its acceptance due to the lack of a subject for appeal (Appeal Resolution of the Moscow City Court of October 7, 2015 in case No. 10-4645/2015) .

Lack of reason and grounds for excitement

The court must evaluate all the arguments of the complaint and directly examine the materials that served as the basis for initiating a criminal case (Appeal Resolution of the Moscow City Court dated June 18, 2014 in case No. 10-7658/2014, Appeal Resolution of the Moscow City Court dated June 4, 2014 No. 10-6807/2014, Appeal Resolution of the Supreme Court of the Republic of Dagestan dated July 9, 2022 No. 22K-1191/2019, Appeal Resolution of the Supreme Court of the Republic of Dagestan dated April 10, 2022 No. 22K-458/2018).

The court cannot assess the existence of grounds for initiating a criminal case without examining the audit material. In addition, from the arguments of the complaint it followed that the check was carried out against the lawyer, but the case was initiated without complying with the requirements of Art. 448 of the Code of Criminal Procedure of the Russian Federation (Appeal Resolution of the Moscow City Court dated June 19, 2022 No. 10-11349/2019).

The court must not only request and examine the inspection materials that served as the basis for initiating a criminal case, but also attach copies of them. Otherwise, the appellate court does not have the opportunity to verify the legality and validity of the court’s decision on the complaint (Appeal Resolution of the Supreme Court of the Republic of Dagestan dated November 5, 2022 No. k-2173/2019).

The resolution to initiate a criminal case does not contain a reference to a specific reason for initiating a criminal case (Article 140 of the Code of Criminal Procedure of the Russian Federation). As a basis, the investigator referred to the conclusion of a purchase and sale agreement, which in itself does not indicate either the theft itself, or its size, or the damage caused by this transaction (Appeal Resolution of the Moscow Regional Court dated February 18, 2014 in case No. 22k -565).

The decision to initiate a criminal case does not contain reference to any of the reasons provided for in Art. 140 of the Code of Criminal Procedure of the Russian Federation (Decision of the Moscow Regional Court dated May 5, 2011 in case No. 22k-2788).

The court of first instance did not assess the legally significant circumstances for resolving the complaint, namely: whether there is a reason and grounds for initiating a criminal case, whether there are any circumstances precluding proceedings in the case (Appeal Resolution of the Moscow City Court dated June 17, 2022 No. 10-9990 /2021).

The court of first instance did not examine the conclusion that formed the basis for the decision to initiate a criminal case (Appeal Resolution of the Supreme Court of the Republic of Dagestan dated June 6, 2022 in case No. 22-641/2018).

The decision to initiate a criminal case does not provide data indicating the signs of a specific crime, including information about causing damage, as well as specific signs that make it possible to distinguish embezzlement from other methods of theft (Appeal Resolution of the Supreme Court of the Republic of Dagestan dated June 5, 2022 in the case No. 22K-848/2018).

Other violations identified by the courts

Qualification of actions under Art. 30, part 4 art. 159 of the Criminal Code of the Russian Federation without indicating a specific part of Art. 30 of the Criminal Code of the Russian Federation is improper fulfillment of the requirements of paragraph 4 of Part 2 of Art. 146 of the Code of Criminal Procedure of the Russian Federation (Cassation ruling of the Moscow Regional Court dated August 2, 2012 in case No. 22k-5431).

The complaint is in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation cannot be reconsidered by the same panel of the court that has already expressed its opinion (Appeal Resolution of the Moscow City Court dated May 25, 2021 in case No. 10-9424/2021).

The resolution to separate a criminal case for a new crime does not contain a decision to initiate a criminal case, as required by Part 3 of Art. 154 of the Code of Criminal Procedure of the Russian Federation (Resolution of the Krasnodar Regional Court of September 9, 2016 No. 4U-2854/2016).

If the reasoning part of the decision to initiate a criminal case refers to the commission of a crime by a specific person, but the case was initiated in fact (in relation to an unidentified person), it makes sense to point out the inconsistency of the decision (Appeal Resolution of the Supreme Court of the Republic of Dagestan dated September 22, 2022 in the case No. 22-1818/2021).

If one of the paragraphs of the operative part of the resolution speaks of the initiation of a criminal case under Part 2 of Art. 159 of the Criminal Code of the Russian Federation, and the second paragraph is about initiating a criminal case against a specific person under Part 3 of Art. 159 of the Criminal Code of the Russian Federation, this also indicates inconsistency (Appeal Resolution of the Supreme Court of the Republic of Dagestan dated February 28, 2022 No. 22K-420/2020).

The initiation of two criminal cases simultaneously by two different investigators for one criminal act excludes proceedings in both cases, since it is impossible to establish which decision was made first (Appeal Resolution of the Supreme Court of the Republic of Dagestan dated October 10, 2022 in case No. 22-1603/2018).

What to remember when filing a complaint

If the investigation into a criminal case is completed and it is sent to the court for consideration on the merits, depending on the stage, the court considering the complaint in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, issues a resolution to refuse to accept the complaint for consideration or to terminate the proceedings on the complaint (Cassation ruling of the Fourth Cassation Court of General Jurisdiction dated May 19, 2022 in case No. 77-1492/2021).

The judge does not have the right to prejudge issues that may subsequently become the subject of judicial proceedings on the merits of the criminal case (Cassation ruling of the Fourth Cassation Court of General Jurisdiction dated January 18, 2022 in case No. 77-40/2021).

The investigator has the right to initiate a criminal case, carry out urgent investigative actions and transfer it to territorial jurisdiction. Such actions are not regarded as violating the requirements of the Code of Criminal Procedure of the Russian Federation (Cassation ruling of the Fourth Cassation Court of General Jurisdiction dated March 4, 2022 No. 77-250/2020).

Arguments about disagreement with the qualification of actions, as well as about the assessment of the collected evidence, cannot be the subject of verification in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, since they are subject to clarification when considering a criminal case on the merits (Appeal Resolution of the Moscow Regional Court of February 12, 2015 in case No. 22k-807/2015).

The lack of official status of a suspect does not allow him (his lawyer) to appeal the decision to initiate a criminal case in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation (Appeal Resolution of the Moscow City Court dated March 11, 2022 in case No. 10-864/2021, Appeal Resolution of the Moscow City Court dated October 12, 2022 in case No. 10-17434/2020).

Time limits for initiating criminal proceedings

Let's consider the algorithm of actions regarding reporting a criminal act and making a decision:

A citizen must write a statement about the dangerous action carried out in relation to the citizen himself or other persons, property or interests. At the same time, the words are recorded in the protocol, then the citizen must put his signature on it and confirm its veracity.
Employees of the authorized body explain to the applicant his rights and responsibilities, legal consequences and the risks of criminal penalties for knowingly giving false information.
The citizen is given a coupon indicating the acceptance of the application indicating the date and time. The position and full name of the responsible employee who will conduct this paperwork is also recorded.
Upon acceptance of the application, a verification is carried out. Within 3 days, the investigator or responsible person must make a verdict, and this period can be extended to 10 days or up to 30 days when a decision is made by the responsible authority. Basically, the period is extended for economic and tax crimes. The reason for this is that it is necessary to obtain documents from the tax office and other authorities before finding evidence of a dangerous act.
After this period, a verdict is made: initiation of office work, refusal to begin office work, direction of office work in the appropriate sequence. The case may be redirected to another authority if, for example, a criminal act was committed on the border with another area, or if the case is classified as a private charge (intentional infliction of minor harm, etc.).
The citizen receives notification of the verdict. If criminal proceedings have been initiated, the applicant is promptly notified of this.
Beginning of pre-trial investigation.

Let us note that immediately from the day the criminal case is opened, a suspected citizen appears.

Time limits for consideration of applications to initiate criminal proceedings

Representatives of the authorities are obliged to accept and consider any received report of a crime within 3 days .

In addition, during this time, the prosecutor, or a person replacing him, must make a decision - to initiate a criminal case and send it for investigation, or to refuse to initiate the case (Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation).

The period for consideration of your appeal may be extended to 10 days, according to the same article.

This only happens when it is necessary to:

Forensic examination.
Control and reliability of documents.
Checking items, murder weapons, etc.
Examination of the corpse.

It happens that the prosecutor increases the period for consideration of cases to 30 days . It is this period that is required to carry out activities aimed at searching and verifying something or someone (Part 3 of Article 144 of the Code of Criminal Procedure of the Russian Federation).

Of course, every decision will be justified. If the period for consideration of your application is increased, you will definitely know about it. According to Article 145 of the Code of Criminal Procedure of the Russian Federation, the police must inform the applicant about the decision. In addition, you should be told about your right to appeal the decision.

But it also happens that the applicant is not notified, although the papers in the authorities say otherwise. Call by phone, come in person and try to find out at what stage your case is stuck. If you hear evasive phrases in response, you should write a statement of complaint to the prosecutor.

Time frame for the investigation

The moment to open a case and conduct an investigation is the order to initiate criminal proceedings. For the category of cases of private and private-public prosecution, a written statement from the victim or his legal representative is required. The standard period for carrying out preliminary investigation measures is 2 months from the date of commencement of the case, as stated in Art. 162 of the Code of Criminal Procedure of the Russian Federation.

This article also states that the period can be extended:

up to 3 months in case of a decision made by the head of the investigative agency;
up to 12 months if special difficulties arise during the investigation process;
for a longer period, if there are substantial grounds, by the chairman of the investigative body of the Russian Federation, the heads of investigative departments and their deputies.

All measures during the preliminary investigation must be recorded in the protocol. At the moment when a decision is made to bring a citizen to justice as an accused, he is reclassified to a different status - from a suspect to an accused. Until this moment, he was in a pre-trial detention center or at large, at this stage he is summoned and charged under a certain article. These stages take place within 2 months from the date of initiation of the proceedings.

The algorithm of actions is as follows:

after the initiation of a case, a preliminary investigation and collection of evidence is carried out;
issuing a resolution on assigning the status of an accused to a citizen, the resolution must indicate the date and place of formation of the document, the data of the responsible person and the accused, a description of the criminal act with all significant circumstances must be indicated, the article of the Criminal Code of the Russian Federation, under which the corresponding penalty is prescribed, must also be stated on considering the subject as an accused;
within 3 days, the accused must be notified of the issuance of an order by the administration of the detention center or a summons for interrogation;
in the presence of a lawyer, charges are brought against the accused and his rights are read out, after which both the lawyer and the accused put their signatures on the resolution; if the citizen refuses to sign, a corresponding note is made to this effect;
the accused and his lawyer are given a copy of the document, it is also sent to the prosecutor, then the accused is interrogated under Art. 173 of the Code of Criminal Procedure of the Russian Federation, during which a protocol is drawn up; in case of refusal of interrogation, a note is recorded;
then the collection of evidence is carried out to confirm the accusation (inquiries, collection of witness statements, examinations and examination of the location of the criminal act);
After collecting evidence, a conclusion of the prosecution is drawn up, and investigative measures are stopped and the next stage of paperwork begins.

Article 223.1 of the Code of Criminal Procedure of the Russian Federation. Notification of suspicion of committing a crime (current version)

1. Suspicion of committing a crime is an assumption that a certain person has committed a crime, entailing criminal prosecution. Suspicion precedes accusation, and unlike it, it is not based on complete and reliable evidence. For the accusation, see comment. to paragraph 22 of Art. 5. Only such suspicion has legal significance that objectively limits or threatens restrictions on the rights of the suspected person (see Resolution of the Constitutional Court of the Russian Federation of June 27, 2000 N 11-P), since it is related to his criminal prosecution - activities to expose the alleged criminal (Article 20). The presence of suspicion gives rise to the status of a suspect (Clause 4, Part 1, Article 46), who is guaranteed the right to defense (Article 16).

2. The notification of suspicion provided for in the commented article is an analogue of the procedure for bringing a person as an accused (Chapter 23 of the Code of Criminal Procedure). The notice applies only when the inquiry is carried out in a case initiated upon the commission of a crime. If a criminal case has been initiated against a specific person, then suspicion is formulated in the decision to initiate the case (see commentary to Part 2 of Article 140). In addition, suspicion may be recorded in the arrest report or a decision on the selection of a preventive measure before charges are filed (see commentary to Article 46). However, according to the literal meaning of the commented article, this does not relieve the investigator from the obligation to notify.

3. The basis for drawing up a written notification of suspicion in Part 1 of the commented article recognizes “sufficient data giving grounds to suspect a person of committing a crime.” Comparison of this norm with the content of Art. 171 of the Code of Criminal Procedure allows us to draw a number of conclusions:

a) the basis for suspicion may be not only evidence, but also other data;

b) the data must be sufficient to make a presumptive conclusion about the guilt of the suspect. This data may be similar to the grounds for detaining a suspect (Article 91) or initiating a criminal case against a specific person, or serve as the basis for carrying out investigative actions to expose the suspect (presenting him for identification, searching his home, etc.). The principle of ensuring the right to defense requires the immediate preparation of a notice of suspicion.

4. A notice of suspicion is issued subject to the same conditions as the initial accusation. See comment about them. to Art. 171.

5. The procedure for notifying of suspicion consists of the following actions of the investigator:

1) drawing up a written notification (about it, see the commentary to Part 2 of Article 223.1);

2) calling a suspected person; his identity card; giving him a copy of the notice; clarification of the rights of the suspect; drawing up a protocol about this. According to the literal meaning of the commented article, a copy of the notice must be delivered to the suspect personally. The law does not specify a time limit within which a copy of the written notice must be served. By analogy with Part 1 of Art. 172 we can conclude that this period should not be more than 3 days from the date of drawing up the notification, since an inquiry is a shorter form of investigation than a preliminary investigation. At the same time, the law does not contain a requirement for personal delivery of a copy of the decision to initiate a case against a specific person (another form of suspicion);

3) the interrogation of the suspect on the merits of the suspicion must follow no later than 3 days from the date of delivery of a copy of the notification. In this case, it is necessary to ensure the right of the suspect to use the services of a defense lawyer.

Noteworthy is the difference in the start time of the interrogation of the suspect and the accused (Article 174). The latter must be questioned immediately after the accusation is filed, and the suspect must be questioned no later than 3 days after notification of suspicion. The purpose of setting a time for the commencement of questioning is to give the suspect sufficient time to prepare his defense and to give him the opportunity to testify as quickly after notification of the suspicion as he wishes. When interrogating a suspect, you can use a similar procedure for interrogating the accused (Article 174).

6. Part 2 of the commented article regulates the content of the notification of suspicion. Taking into account the probable nature of the grounds for drawing up the notification and its focus on ensuring the right to defense, it should be recognized that the content of paragraphs 3 and 4 of part 2 of the commented article may not be fully indicated in the notification. Otherwise, the investigator will be forced, even before drawing up the notification, to expose the person in committing a crime, finding out all the circumstances of his commission of this crime. For example, the investigator does not know the exact date and place of birth of the suspect, but there is sufficient information about his participation in the commission of the crime. The procedural law will be violated if the inquiry officer, instead of notifying of suspicion, interrogates this person as a witness about his date and place of birth.

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

Deadlines for reviewing materials

According to the Code of Criminal Procedure of the Russian Federation, documentation significant for the criminal case is considered:

Resolution on the initiation of criminal proceedings. This stage presupposes the presence of a suspect, but there are no charges yet and the collection of evidence is required.
Resolution on transferring a suspect to the status of an accused. At this stage, rights and responsibilities are explained, an interrogation is carried out, since employees of the investigative agency must prove that a specific citizen committed a crime.
The indictment is the key document, after which the accused must be familiarized with the case materials and these actions must be recorded in the protocol. This document includes a descriptive and operative part, and is also accompanied by a list of citizens required to be summoned to a hearing to consider the case in court. Attached are certificates of material evidence, the existence of a civil claim, measures taken to secure this claim, confiscation of property, legal costs, etc.

In this regard, the period of familiarization with the case materials is virtually unlimited.

Also read: Resolution to terminate criminal prosecution: grounds, sample document

Video about the timing of criminal proceedings

From this material you learned what the deadlines for initiating criminal proceedings are. In most cases, this period is 3 days, but if the investigation becomes more complicated, it can be extended to 10 or 30 days to clarify all the circumstances. The time frame for initiating criminal proceedings is clearly regulated. The basis for starting a case is an application and a decision to initiate a case.

Forms of criminal prosecution

There are three forms of criminal prosecution:

Public order . This form of criminal prosecution involves the initiation of a case by authorized bodies without obtaining the consent of the victim. Reconciliation of the parties in this form of criminal prosecution is not a reason to terminate the proceedings on the offense.
Private-public policy .
The case is initiated solely on the basis of a complaint from the victim himself. If, for objective reasons, the injured person cannot file a complaint on his own, a legal representative can do this for him. Reconciliation of the parties is also not a basis for termination of the case.
Private order . Cases of this kind are accepted for consideration by authorized bodies on the basis of an application (complaint) of the injured party. Reconciliation of the parties is the basis for termination of the case.

Private, private-public criminal prosecution begins with the filing of an application by the injured party against a specific person, or the person specified in Article 447 of the Code of Criminal Procedure of the Russian Federation.

To determine jurisdiction, the case is sent to the prosecutor for review. A corresponding note is made about this. If there are grounds, officials with the necessary competence initiate a case.

This fact is confirmed by the resolution .

The document contains information about the place and time of the decision and the identified grounds.

Also, the name of the organization and details of the official who made the decision are indicated.

A copy of the resolution is sent to the prosecutor for review . The prosecutor, after studying the presented materials of the case, may come to the conclusion that the charges against the guilty person are unfounded, or that the actions of authorized persons are illegal.

In this case, according to the law, he has the opportunity, within 24 hours after receiving the case materials, to make a decision to cancel the received decision.

Cancellation of the document occurs on the basis of a reasoned decision of the prosecutor himself.

A copy of this document is handed over to the person who initiated the case. After receiving the prosecutor’s refusal to initiate a criminal case, the authorized person notifies the applicant (injured party) and the accused about this.

If a citizen files a claim in the magistrate’s court without having the necessary information about the culprit of the incident, the judge will not accept the document.

In this case, the case is transferred by the judge to the investigative authorities, the inquiry authorities .

Excitation order

The stage of initiating a criminal case is the first in the process. According to Article 144 of the Code of Criminal Procedure of the Russian Federation, authorized persons are obliged to accept and verify any statements about the possible commission of criminal acts. The decision to initiate a criminal case on their basis is made within 3 days. This period can be increased to 10 working days if there is a motivated request from the investigator or inquiry officer. In addition, if there is a need to verify documents, examinations and other activities, then the period may even be increased to 30 calendar days.

The initiation of a criminal case in the Criminal Procedure Code is considered the first stage of the criminal process. In this case, the order of excitation directly depends on a number of factors, namely:

type of illegal action;
official position of a person suspected of committing a criminal offense;
differences in the powers of officials who have the right to initiate cases.

It should be noted that according to Russian legislation, violation of the procedure for initiating a criminal case entails the invalidation of all procedural actions performed later. In simple words, if a case was initiated with violations of these rules, then all subsequent procedural measures and their results will be declared invalid.

A criminal case is initiated upon the commission of a crime and against a specific person. In the latter case, it is necessary to indicate the crime of a specific person.

Article 20 of the Code of Criminal Procedure of the Russian Federation states that criminal prosecution directly depends on the severity, degree and nature of the unlawful act. Persecution may be private, public or private-public. In this regard, the procedure for initiating a case also differs. If we are talking about a private or private-public accusation, then writing a statement to initiate a case is required.

Features of public prosecution cases

Article 146 of the Code of Criminal Procedure of the Russian Federation states that cases of public prosecution can be initiated by the following officials:

investigator;
investigator or investigative body;
captains of long-distance vessels, heads of wintering and geological exploration;
heads of diplomatic missions of the Russian Federation in other countries.

The above officials are required to accept all reports of illegal actions. At the same time, the procedure for initiating criminal cases stipulates that the above-mentioned persons can act exclusively within the limits of their powers. In turn, this means that initiation of a case is possible only with the consent of the prosecutor. It must be said that such a procedure is an innovation for the Code of Criminal Procedure of the Russian Federation. It was introduced on September 1, 2016 in order to prevent the groundless and unlawful initiation of criminal cases.

Having found out who initiates criminal cases of public prosecution, you need to talk about the corresponding decision made by the official. It must contain the following information:

time and place of the decision;
who drew up and passed the resolution;
reason and reason;
articles of the criminal code on the basis of which the case was opened.

A copy of the decision is sent to the prosecutor without delay. He, in turn, decides whether to initiate a case or not. The prosecutor's decision can be appealed within the time limits established by law.

The procedure for initiating a criminal case in the Russian Federation - authorities and authorized persons

A citizen of the Russian Federation has the right to contact the police and ask to initiate a criminal case.

The order of this procedure is as follows:

1. A citizen comes to the police department of a city or district with a written appeal - a statement , which contains a request to initiate a criminal case, and also indicates the grounds for this action.

Copies of documents confirming the criminal act can be attached to the application.

2. Issuance of a certificate-notification of acceptance of the application

According to Part 4 of Article 144 of the Code of Criminal Procedure, the person who accepted the document must issue a notification indicating his data, date and signature.

3. After submitting the application, the employee of the inquiry agency, who is also the interrogator, must take testimony from the applicant and ask everything regarding the current situation

In addition, witnesses may be interviewed, and the specialist may demand to present documents and items that will establish information about the case.

All circumstances and characteristics of the crime that the investigator learns will be set out on paper and certified by the signature of an employee of the inquiry agency.

4. At the next stage, all documents are submitted to the investigator or prosecutor

Remember, only the prosecutor can open a criminal case.

In some cases, this right is given to the investigator or interrogating officer, but these officials must have written consent from the prosecutor.

A case will be opened if:

The prosecutor will find evidence of a crime by reviewing the documents.
The investigator independently discovered the criminal act while examining other cases. The specialist, as a rule, must petition the prosecutor and ask for his consent to consider a new criminal case.
The investigator needs to carry out urgent investigative actions indicated in Part 1 of Article 157 of the Code of Criminal Procedure of the Russian Federation. Usually, the body of inquiry, just like the investigator, makes a petition to the prosecutor.
The authorities received a report of a crime committed in public against a private person. Please note that in the place of the victim there must be a person who is in a dependent state, or who has not taken advantage of his full rights to protection. As a rule, the authorities cannot hesitate and need to investigate.

5. Then the prosecutor either initiates a criminal case, sending it to the court, or writes a refusal to initiate

Note that no other government official except the prosecutor can initiate a criminal case.

The applicant will be informed whether a criminal case has been initiated. Usually a written decision is sent to his specified address.

It is worth knowing that there is a slightly different procedure for initiating and considering criminal cases

It depends on the type of case in question.

For example:

1. Case of private prosecution provided for in Articles 115, 116, 128.1 of the Criminal Code of the Russian Federation

In this case, the applicant must contact the magistrate. It is he who accepts the statement from the victim.

Such cases, as a rule, can be terminated if the parties reconcile (Part 2 of Article 20 of the Code of Criminal Procedure of the Russian Federation).

2. The case of private-public prosecution, described in articles 131,132, 137-139, 145-147, 159-159.6, 160, 165 of the Criminal Code of the Russian Federation

When considering such cases, reconciliation between the parties is impossible. The application is also written to the magistrate.

The accused in such cases, as a rule, will be punished (Part 3 of Article 20 of the Code of Criminal Procedure of the Russian Federation).

Remember: if a citizen cannot defend his rights on his own due to dependence or helplessness, then a case is created automatically - in the general manner.

3. Cases of public prosecution specified in Article 447 of the Code of Criminal Procedure of the Russian Federation

They are considered in the same way as the previous ones, only with public disclosure if the parties so desire.

A case can be initiated by a representative of the inquiry body, an investigator, in accordance with Article 146 of the Code of Criminal Procedure of the Russian Federation.

Reasons for excitement

Initiation of a criminal case as a stage of the criminal process is an integral, priority part of a set of measures aimed at restoring justice, in particular punishing those guilty of committing illegal actions dangerous to society. Having understood that the first stage is the initiation of a criminal case, it is necessary to consider in detail the reasons for the execution of this action by the responsible persons.

Such reasons include sources of information about the commission of illegal actions. They are perceived by the law as a legal fact. According to Article 140 of the Code of Criminal Procedure of the Russian Federation, there are only 4 reasons:

a statement about the commission of a crime or its preparation;
confession of the person who committed the criminal act;
a message about the commission of illegal actions received from any other sources;
resolution of a prosecutor's office to send materials to the competent authorities to resolve the issue of possible prosecution.

The initiation of a criminal case in the Code of Criminal Procedure of the Russian Federation is given quite a lot of importance. In this regard, it is necessary to consider all possible reasons in more detail.

Statement about the commission of a crime or its preparation

Allegation of illegal actions is the most common reason. This action means notifying the competent authorities about the commission of illegal actions, regardless of whether the applicant was injured or not. The application can be made either orally or in writing. The written application must be signed by the applicant.

An oral statement about the commission of illegal actions or preparation for their implementation is recorded in the protocol, which must be signed by the applicant and the person who received the message. In addition, the protocol must contain information about the applicant, confirmed by an identification document.

A person who decides to report the commission of a crime or preparation for it is warned in advance that, according to Article 306 of the Criminal Code of the Russian Federation, a false denunciation is also an illegal act. This information is recorded in the document and confirmed by the signature of the applicant.

It should be noted that criminal acts can also be reported anonymously. Such a statement is not a cause for concern. In such a situation, only verification of information received anonymously is allowed.

Confession

Such a reason is a person’s confession to a responsible law enforcement officer that he has committed illegal actions. Confession is characterized by the presence of two mandatory features:

voluntariness;
indication of their criminal acts.

A confession can be made orally or in writing. The oral statement is recorded in the protocol in accordance with the standards established by Part 3 of Article 141 of the Code of Criminal Procedure.

Reporting illegal activities

This reason is various information about illegal acts that was obtained by officials in the process of performing their official functions. This type of reason includes reports in the media and other sources about a crime that has already occurred or is just being prepared.

Such messages are not addressed to competent employees of the inquiry or investigative bodies. However, they must be checked to ensure that the information they contain is accurate. The official who discovers signs of a crime must draw up a report. This document serves as the basis for initiating proceedings. This issue is regulated by Article 143 of the Code of Criminal Procedure.

Commentary on Article 140 of the Code of Criminal Procedure of the Russian Federation

1. The reason for initiating a criminal case is a message about a crime committed, being committed or being prepared, received from the source provided for in the commented article, the receipt of which obliges the investigative authorities (and in cases of private prosecution, the judge) to begin procedural activities.

For the application see com. to Art. 141, about confession - to Art. 142.

2. A report of a crime received from other sources as a reason for initiating a case actually appears in the form of a report on the discovery of signs of a crime (clause 43 of article 5, article 143 of the Code of Criminal Procedure). Information about a crime does not entail the obligation to perform procedural actions until it comes to the attention of law enforcement agencies and is filed in the form of a report.

3. In accordance with the Federal Law of December 28, 2010 N 404-FZ, the prosecutor’s decision to send relevant materials to the preliminary investigation body to resolve the issue of criminal prosecution is an independent reason for initiating a criminal case; accordingly, such a decision is subject to appropriate registration and procedural verification and does not need in any additional format with a report <1>. The prosecutor can draw up this resolution as a result of general supervision over compliance with the law or consideration of citizens’ appeals (Article 10 of the Federal Law “On the Prosecutor’s Office of the Russian Federation”). It appears that what is provided for in Part 2 of Art. 144 of the Code of Criminal Procedure, the prosecutor’s order must also be formalized by a resolution in accordance with paragraph 4 of Part 1 of Art. 140.

——————————— <1> See: clause 1.3 of the Order of the Investigative Committee of the Russian Federation dated January 15, 2011 N 1 “On the organization of procedural control in the Investigative Committee of the Russian Federation.”

At the same time, the special significance of the prosecutor’s decision as a reason for initiating a case is emphasized by the fact that, based on the results of its consideration, the investigator can refuse to initiate a case only with the consent of the head of the investigation department (Part 1.1 of Article 148 of the Code of Criminal Procedure). These norms are intended to some extent compensate for the lack of the prosecutor’s right to independently initiate a criminal case.

4. Part 1.1 com. Article (introduced by the Federal Law of December 6, 2011 N 407-FZ) limits the grounds for initiating criminal cases for crimes under Art. Art. 198 - 199.2, Criminal Code only with materials from the tax authorities. Such materials are a special type of statement about a crime and must be received in accordance with the Tax Code of the Russian Federation. This provision is aimed at preventing unjustified inspections by public criminal prosecution bodies of bona fide taxpayers <1>, however, at the expense of reducing the effectiveness of criminal prosecution for these types of crimes. That is, within the meaning of this norm, the tax authority becomes the only “proper prosecutor” (authorized to initiate criminal procedural activities provided for in Article 144 of the Code of Criminal Procedure). At the same time, this norm does not prohibit, in order to protect society from criminal attacks, sending to the tax authorities the results of the operational investigation, during which signs of tax crimes were identified, so that the relevant materials are taken into account when deciding whether to initiate criminal prosecution by the tax authority itself.

——————————— <1> The purpose of this norm to weaken law enforcement pressure specifically on small and medium-sized businesses is noted in the literature: see, for example: Bastrykin A.I. Prospects for creating a financial police in Russia and ways to improve activities to combat financial crime // Website of the RF IC. Access mode: https://www.sledcom.ru/blog/detail.php?ID=85628. Date of access: 02/16/2012.

5. The Code calls the basis for initiating a case the presence of sufficient data indicating signs of a crime. This provision must be interpreted taking into account the following circumstances:

a) the data must be sufficient to reasonably conclude that a crime has occurred. The decision to initiate a criminal case is auxiliary, interim, and therefore can be based on presumably established facts. To initiate a case, a reasonable assumption that a crime may have occurred is sufficient. The probable nature of the grounds determines the approximate classification of the crime when initiating a criminal case;

b) the data must indicate the signs of a crime: public danger, guilt, illegality, punishability (Part 1 of Article 14 of the Criminal Code). To initiate a case, it is not necessary to identify all the elements of a crime; this is the task of subsequent stages. Signs of a crime at the stage of initiating a case are, first of all, identified by establishing the object and objective side of the crime (in the terminology of the Criminal Procedure Code - the events of the crime). The subject and subjective side of the crime can be assumed. For example, the corpse of a person with signs of violent death is discovered. This is the basis for initiating a case upon the discovery of a corpse (regardless of the identification of the subject of the crime, his age, sanity, form of guilt). The emphasis of the commented norm not on the crime itself, but on its signs allows us to consider the correct formulation that the case is initiated not on the fact of theft (i.e. the crime itself), but on the fact of loss (i.e. signs of the crime).

6. As a general rule, a criminal case is initiated upon the commission of an act containing elements of a crime. The law does not connect the initiation of a case with the characteristics of the subject of the crime (the person who committed the act). However, in a number of cases, the Code of Criminal Procedure provides for the initiation of a criminal case against a person (clause 1, part 1, article 46, clause 2, part 3, article 49, part 4, article 146, part 3, article 154, part 6 Article 318, Part 1, Article 448). In connection with the possibility of initiating a case against a person, the content of Part 2 of Art. 140 of the Code of Criminal Procedure should be recognized as lacunae and subject to broad interpretation. If a criminal case is initiated against a person, then the basis for its initiation (except for the data specified in Part 2 of Article 140 of the Code of Criminal Procedure) are sufficient data indicating that the act was committed by this person <1>. At the same time, in order to ensure the right to defense in the presence of such data, the body of inquiry, the inquiry officer or the investigator are obliged to initiate a case against the person, and not based on the fact. Then the relevant person acquires the status of a suspect (Part 1 of Article 46) and has the right to receive a copy of the decision to initiate a case. A criminal case should always be initiated against specific persons on the basis of such crimes that can be committed by a precisely defined person (for example, malicious evasion of payment of funds for the maintenance of children or disabled parents - Article 157 of the Criminal Code; refusal of a witness or victim to testify - Art. 308 of the Criminal Code, etc.).

——————————— <1> See: Determination of the Constitutional Court of the Russian Federation dated 02/05/2009 N 249-О-О // SPS “KP”.

What is not considered a reason or reason

Opening a criminal case is the initial independent stage of the process of investigating an offense. It must be carried out in accordance with the law in order to guarantee the validity of the decision made .

If a case is filed or not filed without justification, this means a violation of the law and harm to the interests of citizens, society and the country.

Cannot act as reasons:

Anonymous statements. However, when the letter contains specific information about the place and time of the incident, it is sent to specialized services for investigation.
Applications signed by a non-existent name.
A statement made orally, not recorded in the protocol.

How reports of criminal offenses are processed

Initiating a criminal case as a procedure begins with obtaining information. This is the same stage of the criminal process, subject to procedural rules. This work is usually carried out by the duty officer of the district office. His responsibilities include:

receiving information in a way that is convenient for the applicant;
registration of application;
initial check and making an appropriate decision.

The duty officer must accept and register any information. Refusal based on inconsistency of the type of act, place of commission or completeness of the information provided is unacceptable. The application goes through the registration procedure, and the citizen is given a coupon containing the number, date and time of reception.

The application is submitted to the investigative body. It is entrusted with the responsibility to carry out verification activities. That is, the tasks of the inquiry, in the context of the second stage of initiating a criminal case, come down to collecting information confirming or refuting the essence of the statement. The methods and content of the work depend on the completeness of the initial information.

During the initial inspection, the body of inquiry uses non-coercive methods of collecting information. These include:

obtaining explanations from the applicant and witnesses;
ordering certificates or samples (as appropriate);
sending a request to organize an audit (if necessary);
work with documents;
other activities not related to coercion.

The problems of initiating a criminal case based on information disseminated through the media are dealt with in Article 21 of the Code of Criminal Procedure. Thus, the investigator is obliged to contact the editorial office of the relevant media outlet and request information about the identity of the informant. However, the head of the publication is given the right to refuse to disclose personal information if such a requirement was a condition of the transaction.

During the initial inspection, a general description of the offense is drawn up. At this stage of initiating a criminal case, it is necessary to resolve the issue of whether there are signs of a crime in the event specified in the statement. An exact qualification of the offense is not required. A specific article may be changed (reclassified) during the course of the investigation.

After completing the verification activities, a decision is made:

about the initiation of a case against a person or in fact;
about a reasoned refusal;
on the transfer of materials according to jurisdiction or jurisdiction.

Hint: The applicant is informed of the decision in writing.

Procedural issues

The initiation of a criminal case necessarily goes through the third stage; the concept and meaning is associated with the need to monitor the legality of the activities of the law enforcement system. This work is performed by the prosecutor's office as part of its supervisory function. The relationship method is as follows:

The corresponding decision is transmitted to three procedural persons: the prosecutor, the author of the application and the suspect immediately.
The prosecutor's office checks the data contained in the document to identify procedural and legislative violations. In particular, the availability of the following data is checked: date, time and place of the issuance, reason and grounds, legal qualifications.

At the start of criminal proceedings, prosecutors are given 24 hours to study the text and the motivating part of the refusal. If violations are detected, this law enforcement body has the right to cancel the decision to initiate criminal prosecution (Article 37 of the Code of Criminal Procedure). In addition, the prosecutor may request materials from the initial inspection, if required to make an appropriate decision.

Some criminal cases are dealt with privately. This involves direct appeal to the magistrate. Private prosecution is brought for offenses that do not have qualifying characteristics. An example of such is light beatings, insults, etc. (Article 20 of the Code of Criminal Procedure). Moreover, criminal prosecution, the basis for which was a private accusation, is subject to termination in the event of reconciliation of the parties.

Verification of the circumstances described in the application may lead to abandonment of the criminal procedure. Such a decision is made on the following grounds (Article 24 of the Code of Criminal Procedure):

the data specified in the application did not take place in reality;
the act does not fall within the description of the crime;
the statute of limitations for this type of violation of the law has expired;
the suspect has died (there are exceptions);
the victim refused to file a statement (if required by law);
the competent authority refused to give consent to prosecute a person with official immunity.

Procedural refusal to initiate criminal prosecution has the following consequences:

is stated by a resolution containing a motivating part (explanation);
leads to consideration of the issue of initiating prosecution for a false denunciation;
requires publication of information in the media in respect of which the application was submitted;
sending a copy of the document to the prosecutor's office within 24 hours.

The legislation requires inquiry and investigation workers to carry out explanatory work with suspects and other participants in the process. They are informed of their legal rights and obligations against their signature.

Grounds for refusal

Upon receiving a report of a crime being committed or preparation for it, officials must conduct an investigation to determine the presence or absence of grounds for initiation. If there are no grounds, then a decision must be made to refuse initiation. The grounds for refusal are listed in Article 24 of the Code of Criminal Procedure. They are:

there is no fact of committing a crime;
there is no corpus delicti;
the statute of limitations has expired;
the accused or suspect has died. The exception is cases when rehabilitation of the deceased is required;
There is no statement from the victim.

When the case ends, the persecution ends. A copy of the refusal to initiate proceedings must be sent to the prosecutor and the applicant no later than 24 hours. In accordance with Russian legislation, the applicant has the right to appeal the refusal in various instances. The complaint can be submitted to the leadership of the investigative body, the prosecutor or the judge. This possibility is regulated by Articles 125 and 124 of the Code of Criminal Procedure of the Russian Federation.

Grounds for initiating a criminal case under the Criminal Code of the Russian Federation

You can’t open a case just like that; there needs to be compelling reasons for this.

According to Part 2 of Article 140 of the Code of Criminal Procedure of the Russian Federation, first of all, the prosecutor looks at the data, which should indicate all sorts of signs of the committed act and confirm it. Such information must reflect the external and internal aspects of the crime committed against the laws of the Russian Federation.

When determining the presence of signs, the prosecutor or a person replacing him - an investigator, an interrogating officer - notes:

What is the object of the crime?
Was the event socially dangerous and illegal?
How was the crime committed?
What means, tools, devices were used to influence the victim.
Where the illegal act was committed, at what time.
What is the identity of the criminal, are any facts known from the suspect’s biography. For example, has he been convicted, is he sane?
What is the age of the person who committed the crime. In the Russian Federation, criminal liability begins at the age of 14 and 16 years.
What was the purpose, motive and intent of the crime.

It is also taken into account whether there are grounds for refusal listed in Article 24 of the Code of Criminal Procedure of the Russian Federation. If they are missing, then a criminal case is initiated.

Main conclusions

A document requesting to initiate a criminal case must be drawn up only if the applicant is absolutely sure of the guilt of a certain individual;
The structure of the document is standard - “header”, main part and details;
The applicant must indicate that he is aware of giving false testimony on the basis of Article 306 of the Criminal Code of the Russian Federation;
The text of the document indicates the circumstances under which the violation of criminal norms was committed, the place where it occurred, as well as the time;
The applicant must have evidence confirming that the text he wrote is not unfounded.

How quickly and within what time frames are criminal cases initiated?

In the event that the relevant authorities receive a message about a completed or impending illegal action, the reaction of officials should be swift.

Three days are given to consider the materials, after which a specific decision must be made (an appropriate resolution is issued or the opening of the process is refused).

Do not forget that the grounds and procedure for initiating a criminal case imply the existence of the rights of individual officials. Thus, the head of the inquiry (investigation) department has the right to consider the case for another 10 days. An increase in the consideration period must be confirmed by a corresponding petition.

Also, a lawyer who reliably knows the time frame for initiating criminal cases can remind you, as a victim, that the period for considering the data on the case and adopting a resolution can be further extended, but not more than a month. In this case, you will have to endure and answer questions from the investigation, preferably in the presence of a lawyer.