1. After fulfilling the requirement of Article 216 of this Code, the investigator presents the accused and his defense attorney with the filed and numbered materials of the criminal case, except for the cases provided for in part nine of Article 166 of this Code. Material evidence is also presented for review and, at the request of the accused or his defense attorney, photographs, audio and (or) video recordings, filming and other attachments to the protocols of investigative actions. If it is impossible to present material evidence, the investigator makes a decision to this effect. At the request of the accused and his defense attorney, the investigator provides them with the opportunity to familiarize themselves with the materials of the criminal case separately. If several defendants are involved in a criminal case, the sequence of providing them and their defense attorneys with the materials of the criminal case is established by the investigator. 2. In the process of familiarizing with the materials of a criminal case, consisting of several volumes, the accused and his defense attorney have the right to repeatedly refer to any of the volumes of the criminal case, as well as write out any information in any volume, make copies of documents, including using technical funds. Copies of documents and extracts from the criminal case, which contains information constituting state or other secrets protected by federal law, are stored in the criminal case and are provided to the accused and his defense attorney during the trial.
3. The accused and his defense attorney cannot be limited in the time they need to familiarize themselves with the materials of the criminal case. If the accused and his defense attorney, who have begun to familiarize themselves with the materials of the criminal case, clearly delay the time of familiarization with these materials, then on the basis of a court decision made in the manner established by Article 125 of this Code, a certain period is established for familiarizing themselves with the materials of the criminal case. If the accused and his defense attorney, without good reason, have not familiarized themselves with the materials of the criminal case within the time period established by the court, the investigator has the right to decide to end the proceedings of this procedural action, about which he issues an appropriate resolution and makes a note in the protocol of familiarization of the accused and his defense attorney with the materials criminal case.
4. After the accused and his defense attorney have familiarized themselves with the materials of the criminal case, the investigator finds out what petitions or other statements they have. At the same time, it becomes clear from the accused and his defense attorney which witnesses, experts, and specialists are to be summoned to the court hearing for questioning and confirmation of the defense’s position.
5. The investigator explains to the accused his right to petition: 1) for the consideration of a criminal case by a court with the participation of a jury - in the cases provided for in paragraph 1 of part three of Article 31 of this Code. At the same time, the investigator explains the peculiarities of the consideration of the criminal case by this court, the rights of the accused in the trial and the procedure for appealing the court decision. If one or more accused refuses to be tried by jury, the investigator decides to separate the criminal cases against these accused into separate proceedings. If it is impossible to separate a criminal case into separate proceedings, the criminal case as a whole is considered by the court with the participation of a jury; 1.1) on the consideration of a criminal case by a panel of three judges of a federal court of general jurisdiction - in the cases provided for in paragraph 3 of part two of Article 30 of this Code; 2) on the application of a special procedure for judicial proceedings - in cases provided for in Article 314 of this Code; 3) on holding preliminary hearings - in cases provided for in Article 229 of this Code.
Basic provisions
Familiarization with the materials of a criminal case under the Code of Criminal Procedure of the Russian Federation is carried out after passing through all stages of the investigation, which are provided for by law. All materials, as well as material evidence, etc., are provided for reading. The defense may file a motion to review photographs and video materials.
When it is not possible for one reason or another to satisfy the specified request, the person conducting the preliminary investigation makes a decision. The procedure for familiarizing yourself with these materials of the criminal case may be separate. The defense side gets acquainted at different times. This provision can be implemented if there is a statement written by the lawyer and the accused. The form is provided by the investigator.
The bodies of inquiry and investigation (when applying the general procedure) cannot limit a person in the time it takes to read all the materials. The Code indicates that it is possible to limit the period under consideration if a situation arises that indicates deliberate delay on the part of the perpetrator. The decision is made by the judge. If the court comes to the conclusion that the defense intends to delay the acquaintance, a certain period is established during which the defense must read the materials.
If the acquaintance process is not completed within the established time period, the investigative body adopts a resolution providing for the completion of the proceedings. After which you can submit the document for judicial review.
If there are several persons in the case who are accused of a crime, they will be examined in the order established by the person conducting the investigation.
When studying the materials contained in the case, the defense may be able to go back to any of them and read them again. In addition, it is allowed to write out various types of information and copy sheets. When data is stored that constitutes a secret protected by the state, it is necessary to familiarize the culprit and the defense attorney at a court hearing. Current legislation provides that at the end of the meeting, the investigator needs to find out what objections, comments, and wishes there are. It is necessary to find out which participants in the case the defense wants to call to court.
It can be:
- experts;
- witnesses;
- consultants;
- other persons.
Upon completion of the review, a procedural document is drawn up in the prescribed form.
Arbitrage practice
The archive contains a large number of criminal cases in which claims were filed in appeal and cassation proceedings. In particular, in many cases, relatives or the perpetrators themselves file an appeal, pointing out that the familiarization was carried out in violation of the law, including on a day off, etc. It is indicated that the investigator refused to read the materials. However, the judge takes into account that serving a sentence is an undesirable measure for the criminal, and he is trying to change his situation.
In this situation, courts refer to materials of criminal cases, where there are notes made by the prisoner in his own hand. Such records give reason to believe that the perpetrator, as well as his defense attorney, were fully familiar with the case. Suspension of the consideration of the case in this situation is not required.
In addition to the above example, a review of court practice allows us to point out the following reasons for appealing decisions:
- After conviction, persons indicate that the charge specified in the indictment does not coincide with what was reflected in the resolution on the basis of which he was charged as an accused. Proving this point will be quite problematic, provided that the criminal does not have a copy of the resolution in his hands.
- They claim that the investigator refused to review the material evidence. For example, such a statement was received in the Moscow region. The accused indicated that he was not presented with a bumper case for introduction. In this case, the judge pointed out the absence of statements and motions from the defense when signing the protocol.
- The arguments of the perpetrators also include the fact that despite such circumstances as the minor and his defense attorney were not familiar with the materials, the court accepted the case for proceedings and the process had an accusatory bias and the goal was only to convict the person without delving into his guilt. In this situation, the appeal commission points to the participation in the case, in addition to lawyers, of the legal representatives of the young offender, who also became familiar with the case. This is confirmed through the schedule and protocols on file.
- An additional reason for filing claims on appeal is that the provisions of Article 217 of the Code of Criminal Procedure of the Russian Federation were not explained to the person. The review and decision-making by the commission is associated with the study of the case materials. In this situation, the position of the prosecution is not confirmed, since the protocols contain signatures indicating that the case has been read.
- An attempt to change the sentence may also be due to the fact that the process of familiarization with the case was disrupted, since the guilty person was familiarized with it alone, in the absence of a defense lawyer. Conventionally, this reason may be a basis for overturning the sentence, however, often in the case there is a statement from the accused and his defense attorney for a separate reading. The culprit refers to the fact that the lawyer was absent and did not explain to him all the rights. The decision-making in the situation under consideration remains with the court and, as a rule, the verdict does not change. Otherwise, this may mean that the investigative authorities have no guarantees.
- In addition, the defendant may indicate that he wanted to make a deal with justice, however, the investigator did not take into account his wishes. The basis for refusal in such a situation is the absence of statements and petitions in the protocol, as well as the presence of the signature of the defense party.
There are a lot of examples of cases considered by courts. Over the past year, a large number of similar complaints have been received.
What does judicial practice show under this article?
The need to become familiar with the procedural papers can be considered using the trivial example of Article 111 of the Criminal Code of the Russian Federation. Citizen Petrov was brought to justice for beating his friend in a dark alley. On the eve of the event, Petrov, the victim and another acquaintance, Lavrov, were drinking alcohol. Lavrov and the accused Petrov quarreled. Lavrov left in a fit of anger and left the accused and the victim alone.
The men, having finished their alcohol, decided to continue the celebration and went to the store. According to the case file, on the way the men quarreled, and the accused beat his comrade half to death, after which he ran away. The materials also contain testimony from witness Lavrov, a third comrade who saw Petrov beating the victim. The accused claims that he did not do this, he allegedly went to the store and left his friend on the street, and when he returned, he was no longer there. Accordingly, he went home, deciding that the holiday was over.
The procedure for interrogating an accused in criminal proceedings and the time limits under the Code of Criminal Procedure, Article 173
In the process of studying the criminal case, the accused, together with his lawyer, identified an inconsistency in the testimony of a witness who initially indicated that he had gone home, but then turned out to be an eyewitness to the incident. The witness lives on the other side of the city, so he physically would not have had time to go home and then return to the scene and notice the fight.
The investigator was informed of the inaccuracies and the witness was interrogated again. During the interview, the investigator identified a lie on the part of Lavrov, who harbored a grudge against Petrov, and thus decided to take revenge on him. Since there was no other strong evidence against Petrov, and the victim did not see the attacker, criminal prosecution against him was stopped, and Lavrov was prosecuted for false denunciation and slander. Thus, a careful study of the case saved a person from punishment for an uncommitted crime.
What decisions can be made under Article 217 of the Code of Criminal Procedure?
Judicial practice in the matter of familiarization with case materials is quite monotonous. All the people who had read the indictment and the evidence base in advance understood the essence of the problem and at the court hearing did everything possible to avoid punishment.
At the same time, people who refused to familiarize themselves with the documents were unable to exercise their legal rights and defend themselves properly at the court hearing, which led to what they considered to be an unlawful verdict and many disputes and appeals.
None of the controlling authorities can deny the legal right of a party to the process to familiarize themselves with the materials of the criminal case. If such a situation exists, it is necessary to file a complaint with higher management.
It should be noted that the accused may refuse to familiarize himself with the case materials; this does not entail any penalties for him, and is not a reason for postponing the trial. The court hearing takes place as usual, just one of the procedural stages is omitted.
Current problems of familiarizing the accused with a criminal case
Familiarization with the case materials makes it possible to assess the comprehensiveness and objectivity of the investigation, as well as determine the completeness of investigative measures. For study by the parties, the materials are submitted ready-made, stitched and numbered. The lawyer, together with the ward, can make extracts from the documents, but taking into account the large volume of papers, this is difficult to do.
That is why the legislator allows copies to be made. In such a resolution lies the first problem. According to the established procedure, copies are made at the expense of the accused or his defense attorney; if there is no photocopier in the place where the case is being studied, or they cannot pay for it, it will not be possible to make a duplicate. Accordingly, the right of the accused is violated in advance when a room is provided for reviewing the papers.
Based on this, it should be noted that it is necessary to expand the possibilities associated with making copies to comply with the rights of the defense. If a lawyer was represented to the accused by the state, then the production of copies is carried out at the expense of the state budget, therefore the investigator himself must provide the desired copies of the documents.
The second, no less important problem is the concept of “delaying” the deadlines for familiarization. For some people, studying a 100-page case file takes several days, while for others it takes a month. Each person captures and processes information in their own way, so it is impossible to draw hasty conclusions about what is happening.
An investigator may perceive a scrupulous study of papers as a deliberate delay in judicial proceedings, and limit the rights of the accused, which in fact is prohibited by the Constitution itself. Due to the ambiguity in the interpretation of the concept of “delaying,” discussions have been ongoing for decades, but so far no solution has been found. The period of review is limited according to the personal opinion of the investigator.
