Article 214 of the Code of Criminal Procedure of the Russian Federation. Cancellation of a decision to terminate a criminal case or criminal prosecution (current version)

A complaint about the termination of a criminal case is, as a rule, filed by victims of unlawful inactions of the investigator to bring the perpetrators to justice.

ATTENTION: our criminal lawyer will help you competently draw up and present a complaint aimed at restoring justice in the case for the injured party.

How to initiate a criminal case?

To achieve the initiation of a criminal case against the offender, it is necessary, first of all, to file a statement with the police to initiate a case, and then act according to the situation.

If a case is initiated based on the application, the issue will be resolved.

If the initiation of a case is refused or the proceedings are terminated, then such refusal (termination) must be appealed to higher management, to the prosecutor’s office, or to the court.

It may be necessary to repeatedly file complaints, appeal against the actions (inactions) of the investigative authorities, but, in the end, the truth may be on your side and a criminal case will be initiated.

In what cases is a complaint filed to terminate a criminal case?

This complaint is filed against a decision to terminate criminal proceedings issued by the investigative, inquiry, and prosecutor's offices. A decision to terminate criminal proceedings is made in cases where there is no crime, there is no corpus delicti in the acts, in the event of the expiration of the statute of limitations for criminal prosecution and on other grounds.

The result of the above decision is the automatic termination of criminal prosecution against the suspect (accused). The victims, their legal representatives, and defenders (lawyers) cannot agree with this injustice and illegal actions of public authorities; our line of work is protecting the victim especially for such victims (read more at the link).

Everything about criminal cases

Go to Site Map

Termination of a criminal case, selection of materials

Failure to terminate a case contrary to legal grounds ( clause 1, part 2 389.17 of the Code of Criminal Procedure

)

CONSENT of a person to terminate the case ( Part 2 27 of the Code of Criminal Procedure

)

Two options

Depending on whether the accused gives his consent to dismiss the case or does not give it, there are two options for the court to act:

Url Additional information:

- paragraph 25

Plenum No. 19, if the person agrees to terminate, the case is terminated

A)

if the accused consents: the case is dismissed.

Url Additional information:

- paragraph 25

Plenum No. 19 in case of disagreement, sentence with release from punishment

- part 8 302 of the Code of Criminal Procedure

guilty verdict, but exempt from punishment

— clause 2, part 5 302 Code of Criminal Procedure

with punishment - and release from serving it

b)

if the accused does not consent: a sentence is pronounced with release from punishment.

ILLUSTRATION

— an example from a cassation appeal: an argument is given about the incorrect application of the mechanism for exemption from punishment after the statute of limitations for the crime has expired.

— the court had to find out the defendant’s opinion on dismissal of the case:

A)

with the consent of the defendant: the court must dismiss the case.

b)

if you refuse to give consent: the court must pronounce a sentence and release you from punishment.

Url Additional information:

- paragraph 21

Plenum No. 19 clarification by the court of the right to object to termination

- the court had to explain to the defendant ( paragraph 21

Plenum No. 19) the possibility of choice (to give or not to give consent).

- the court, without explaining this right, immediately passed a sentence (applied the second option), which violates the rights of the defendant.

“- the convicted person was released from punishment by the court of appeal on the basis of Article 78 of the Criminal Code

, which provides for exemption from criminal liability due to the expiration of the statute of limitations for criminal prosecution

- I believe that the court of both the first and appellate instances should have released the convicted person not from punishment, but from criminal liability.

— in this case, the court referred to Part 8 302 of the Code of Criminal Procedure

, establishing that if the grounds for termination of a criminal case and (or) criminal prosecution (including the expiration of the statute of limitations) are discovered during the trial, then the court continues to consider the criminal case in the usual manner until it is resolved on the merits. In this case, if the statute of limitations has expired, the court issues a guilty verdict and releases the convicted person from punishment.

- however, as a condition for termination of the criminal case on the specified basis in accordance with Part 2 27 of the Code of Criminal Procedure

is the consent of the accused.
The application of rules 78 of the Criminal Code
on the basis of the provisions of
Part 8 302 of the Criminal Procedure Code
is possible only if the accused objects to the termination of the criminal case due to the expiration of the statute of limitations for criminal prosecution. At the same time, disagreement with the charge cannot be considered an objection to the termination of the criminal case due to the expiration of the statute of limitations for criminal prosecution.

And these are not my personal conclusions - this is the approach of the Supreme Court of the Russian Federation (Cassation ruling of the Supreme Court of the Russian Federation dated December 24, 2009 in case No. 66-O09-197 - in a similar situation in this case the verdict was overturned by the Supreme Court of the Russian Federation).

- no one asked the defendant’s consent to terminate the case or his opinion on this issue. The appellate court, without any questions, retired to the deliberation room and issued a ruling, which confirmed the guilty verdict and released the defendant from punishment (Minutes of the court hearing of the appellate court, volume _, pp ____). I believe that the court, having established the grounds for terminating the criminal case, should have found out whether I was convicted in this regard, but did not do so.

According to the explanations of the Constitutional Court of the Russian Federation in the case on checking the constitutionality of Article 78 of the Criminal Code

and the defendant, these rules are applied taking into account the provisions of
Part 2 27 of the Code of
and imply the release of a person from criminal liability, taking into account his consent or lack thereof.
If the accused objects to the termination of the criminal case, it is subject to consideration in the usual manner, and in the event of a guilty verdict
, he is given a sentence with exemption from serving it (Definition of the Constitutional Court of the Russian Federation of November 2, 2006 N 488-O, Determination of the Constitutional Court of the Russian Federation dated 06/05/2014 N 1533-O).

Thus, a guilty verdict was passed against the defendant. However, the law establishes for such cases a mechanism for terminating a criminal case without a conviction ( clause 25

Plenum No. 19).

The judicial practice of lower courts also proceeds from the fact that the expiration of the statute of limitations is recognized as a basis for exemption from criminal liability, which can only be achieved by terminating the criminal case, and not by passing a conviction, if the defendant does not object to this. The provisions of part 8 302 of the Code of Criminal Procedure

are subject to application only in cases where termination of a criminal case turns out to be impossible due to the defendant’s objection to this (Determination of the Leningrad Regional Court dated October 14, 2010 N 22-1690/10).

I believe that Part 8 302 of the Code of Criminal Procedure

applied without proper justification. Such a violation of procedural law is significant, since it violates the right of the convicted person to be exempt from criminal liability.”

Note

: This post talks about the dismissal of a criminal case.
Perhaps the antagonist of this publication will also be useful for you: Initiating a criminal
case, a selection of practical materials.

Return to Site Map
Request a consultation

Grounds for canceling a decision to terminate a criminal case

The Code of Criminal Procedure of the Russian Federation specifies two grounds for canceling a decision that terminated a criminal case, if the decision is illegal or the decision is unfounded.

But the decision may be illegal or unfounded because the investigator:

• the circumstances of the case are incorrectly determined
• the decision was made without any reasoning
• if not all circumstances of the case have been clarified
• persons who have information on the crime committed were not interrogated
• documents and evidence of the crime committed were not requested from third parties or government agencies
• there are contradictions in the explanations between the persons already interviewed
• if there are other circumstances of the case that can be clarified with the help of our lawyer for the protection of the rights of the victim in Yekaterinburg

Thus, the investigator can terminate a criminal case for various reasons, but it is not a fact that such termination will be legal.

Participation of a lawyer in appealing a decision to initiate a criminal case

Appealing a decision to initiate a criminal case is a complex process that is beyond the power of a person who is little familiar with the norms of the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation and, without the appropriate knowledge, can significantly complicate the further implementation of the defense against the charges brought forward.

In addition, depending on the goals of appealing the decision to initiate a criminal case and its cancellation, the lawyer will determine effective tactics and sequence of actions, and also use the information received with maximum benefit for the subsequent protection of the interests of the principal.

How to file a complaint against the termination of a criminal case?

The person who makes a decision to terminate criminal proceedings must indicate the grounds for making such a decision.

When filing a complaint you must:

1. assign a criminal legal analysis of the decision made by the investigation
2. examine the evidence collected in the case
3. study the testimony of all participants in criminal proceedings, and if there are insufficient grounds for canceling the decision, it is necessary to conduct a lawyer's investigation in order to establish new facts that were ignored by the investigation or simply went unnoticed, to identify new witnesses to the crime.

The complaint must contain the maximum number of specific facts on which the investigative authorities made an incorrect decision; it is necessary to reflect all the rules of law that were violated during the preliminary investigation and during investigative actions.

IMPORTANT: the main thing when preparing a complaint is its motivation, taking into account the rules of law, why the refusal to initiate a case or its termination, in the opinion of the applicant, is illegal or unfounded.

Deadline for filing a complaint against a decision to terminate a criminal case

A complaint against a decision to terminate a criminal case may be filed with the prosecutor's office or with a higher investigative body in accordance with Art. 124 of the Code of Criminal Procedure of the Russian Federation, as well as to the district court in accordance with Art. 125 Code of Criminal Procedure of the Russian Federation. The decision to terminate the case may be appealed within the period specified in the relevant decision, which is 10 days .

The period for appeal should begin from the moment the person learned that the case was terminated.

However, the Code of Criminal Procedure of the Russian Federation does not indicate specific deadlines for appealing a decision to terminate a criminal case. At the same time, there is no point in delaying filing a complaint, especially if the decision specifies a deadline for appeal, stick to 10 days or restore the missed procedural deadline, more about this in our VIDEO

Procedure for filing a complaint with the court

The procedure for filing a complaint is defined in Art. 125 Code of Criminal Procedure of the Russian Federation. The complaint may be filed with the court by the applicant, his defense attorney, legal representative or representative directly or through the investigator, head of the inquiry unit, head of the inquiry agency, inquiry agency, investigator, head of the investigative agency or prosecutor.

The complaint shall indicate in detail all the violations and shortcomings committed by the official who made such a decision, as well as arguments in support of the stated position (absence of elements of a crime, absence of damage, etc.)

The appealed document must be attached to the complaint.

Complaint consideration period

The judge checks the legality and validity of the appealed decision no later than 5 days after the receipt of the complaint at the court hearing.

Participating in the court hearing:

• applicant,
• his protector
• representative (if one is involved in the case),
• prosecutor,
• investigator/head of the investigative body.

The consideration of the complaint is carried out in open court.

Judge in a court session:

1. Considers the arguments of the complaint,
2. Studying the materials that served as the basis for initiating a criminal case,
3. Listens to the opinions of the parties.

After which it makes a decision to recognize the action (inaction) or decision of the relevant official as illegal or unfounded and on his obligation to eliminate the violation or to leave the complaint unsatisfied.

When considering the arguments of the complaint, the judge checks:

1. Is the procedure for making this decision followed?
2. Did the official who made the relevant decision have the necessary powers to
3. Are there reasons and grounds, are there any circumstances that preclude proceedings in the case.

The court is obliged to check whether the preliminary investigation body took into account all the circumstances, including those specified in the complaint, which could significantly influence its conclusions, and whether it examined these circumstances at all.

Drawing up a complaint about the termination of a criminal case in Yekaterinburg

A complaint about the termination of a criminal case is one of the most effective levers for protecting the victim in restoring violated rights to access to justice; it is an opportunity to bring the perpetrator to criminal liability.

You cannot put off protecting your rights until tomorrow; it is impossible to allow a guilty person to avoid criminal punishment for the act committed..

Call our criminal lawyer at the Law Office “Katsailidi and Partners” right now and he will help you make the competent authorities work and bring the guilty person to justice. A complaint regarding a criminal case will be drawn up for you in the shortest possible time and to achieve the desired result.