Article 317.3 of the Code of Criminal Procedure of the Russian Federation. The procedure for drawing up a pre-trial cooperation agreement (current version)

A pre-trial cooperation agreement is provided for in Art. 40.1, 317.1—317.9 of the Code of Criminal Procedure of the Russian Federation is a way of formalizing a kind of “contractual” relationship between the accused (suspect) and the investigation. Files in .DOC: Form of pre-trial agreementSample of pre-trial agreement

Within the framework of this “contractual” cooperation, the accused and his defense attorney assist the investigative authorities in order to fully and comprehensively disclose the crime and the response of the investigation to mitigate or exclude the criminal liability of the accused, as a form of approval and recognition of cooperation.

Submitting an application

The accused or suspect, who decides to formalize cooperation with the investigative authorities, submits an application for a pre-trial agreement to the prosecutor through the investigator.

In addition to the proposal to conclude a pre-trial agreement, the application must contain:

• full or partial admission of guilt;
• repentance for what he has done;
• incrimination of accomplices with a description of the actions of each of them in the crime committed.

Within 3 days from the receipt of the application, the investigator must assess the prospects for cooperation.

If cooperation promises to be promising, then the investigator agrees with the head of the investigative body on a request to conclude a pre-trial agreement and submits it, along with the application and materials of the criminal case, to the prosecutor.

The prosecutor, in turn, evaluates the entire body of evidence and, taking into account the opinion of the investigator, within 3 days makes a decision either to conclude a pre-trial agreement or to refuse to conclude it.

If the investigator considers cooperation futile, he will issue a decision to refuse to enter into a pre-trial agreement.

The accused or his defense attorney has the right to appeal the investigator's decision on the refusal to the head of the investigative body, and the prosecutor's decision on the refusal - to a higher prosecutor's office.

Pre-trial agreement under Art. 131-135 of the Criminal Code of the Russian Federation

Every criminal lawyer, in his work, strives to ensure that the criminal case against his client, if he is not guilty, is dropped. If, however, there is enough evidence against his client, he admits his guilt and does not challenge the charge, the task of a criminal lawyer is to minimize the punishment, i.e. to ensure that his client remains in custody for a minimum short period of time or to protect him from this altogether.

The same situation exists in cases involving accusations of sexual crimes, with some exceptions, those convicted of crimes against sexual integrity cannot be given a suspended sentence (clause “a”, part 1, article 73 of the Criminal Code of the Russian Federation). Parole can be granted only after serving at least four-fifths of the term of imprisonment (clause “e”, part 3, article 79 of the Criminal Code of the Russian Federation).

All this forces the sex crimes lawyer to direct his efforts to ensure that the sentence that will be assigned to the accused is as minimal as possible, i.e. find circumstances that are grounds for mitigating the punishment (Articles 61, 64 of the Criminal Code of the Russian Federation).

One of these methods is the conclusion of a pre-trial cooperation agreement (Chapter 40-1 of the Code of Criminal Procedure of the Russian Federation). A pre-trial agreement is concluded in order to assist the investigation in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, and searching for property obtained as a result of a crime. Therefore, a person accused of a sex crime must “interest” the investigation in the fact that he will help solve and investigate this crime. Due to the fact that crimes against sexual integrity do not include property that was obtained as a result of the crime, the investigation may only be “interested” in exposing other participants in the sexual crime, but this is only possible if the crime was committed by a group of people.

Thus, the accused (suspect) understands that he has something to “interest” the investigation and he decides to enter into a pre-trial agreement.

What should he do and what should he do?

First of all, you need to discuss this with your lawyer who deals with cases of this category, because only a lawyer for sexual crimes, a lawyer under Articles 131-135 of the Criminal Code of the Russian Federation can analyze the situation and foresee all the “pitfalls” and here’s why.

Like any phenomenon, a pre-trial agreement has its advantages, but there are also disadvantages. In order to understand what are the pros and cons of a pre-trial agreement, it is necessary to consider in more detail what a pre-trial agreement is in general.

A pre-trial agreement, or as it is also called a “bargain with the investigation,” is an agreement concluded between the prosecution represented by the investigator and the prosecutor and the defense represented by the accused (suspect) and his lawyer. Based on this agreement, the accused (suspect) undertakes to give the investigation information that the investigation does not possess about new episodes of crime committed by the accused (suspect) himself and (or) accomplices. Provide information about new accomplices in the crime, etc. For this, the investigation undertakes to separate his case into separate proceedings, apply mitigating circumstances against him, and the case must be considered in a special manner. The agreement may also stipulate the maximum sentence that can be imposed on the accused upon sentencing.

The advantages of a pre-trial agreement, as can be seen from the above, is the penalty, which, by virtue of Art. 316 of the Code of Criminal Procedure of the Russian Federation, cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed. It is impossible to obtain such “privileges” without concluding a pre-trial agreement, because Cases for especially serious crimes are not considered in a special manner.

The disadvantages of a pre-trial agreement include the risk of termination of the pre-trial agreement. A pre-trial agreement can be terminated in cases where the accused (suspect) provided only information about his own participation in the committed act. He reported information already known to the preliminary investigation authorities. Also, the pre-trial agreement can be terminated if the person refuses to give evidence incriminating other accomplices in the crime. It may be terminated if other data is revealed indicating that the accused (suspect) has failed to comply with the conditions and has failed to fulfill the obligations stipulated by the pre-trial cooperation agreement.

If the pre-trial agreement is terminated, then all the “benefits” that the accused (suspect) could receive are canceled, and all the testimony that he gave earlier will be used as evidence.

All these circumstances indicate that before deciding to enter into a pre-trial cooperation agreement, you need to weigh everything very carefully and discuss it with your lawyer under Art. 131-135 of the Criminal Code of the Russian Federation.

Sexual Offenses Lawyer Art. 131-135 CC.

Drawing up a pre-trial agreement

We provide our users with the opportunity to make a pre-trial agreement and familiarize themselves with a sample of its completion. To personalize the form, you will need to enter the following information:

• date and place of drawing up the agreement;
• Full name and position of the person signing the agreement on the part of the prosecution;
• Full name and personal data of the suspect or accused;
• information about the crime committed and qualification of the actions of the accused;
• a list of actions that the accused undertakes to perform as part of the pre-trial agreement.

An agreement is drawn up in the number of copies required for all interested parties.

What the law says

The very possibility of concluding agreements appeared in legislation not so long ago - namely in 2009, when the corresponding federal law came into force.

In essence, the suspect has the opportunity to make a deal with justice:

1. He cooperates with the investigation and admits his guilt.
2. The trial takes place in a simplified (and accelerated) form, and the punishment is mitigated.

Thanks to this, the very concept of a pre-trial cooperation agreement is introduced, and the corresponding procedures in criminal proceedings are approved:

1. The definition of the concept is contained in the Code of Criminal Procedure. The need to draw up a written agreement is implied, and requirements for its content are introduced.
2. The document must be signed by three parties – i.e. the prosecutor (to whose name it is submitted), the accused himself and his defense attorney.
3. It can only be drawn up voluntarily (which is separately explained to the suspect) and only if the investigation requires cooperation in the criminal process.
4. Once satisfied, production will proceed in a special manner.

During the trial, the defendant has the right to revoke his agreement, and then the case will be considered in the general manner. Accordingly, it will be impossible to count on a reduction in punishment due to cooperation.

The necessary conditions

grounds for conclusion

In general, pre-trial detention can be concluded for absolutely any defendant, regardless of the category of the crime, guilt and the number of persons brought to justice.

But the point of the deal is not to conclude it, or even to conscientiously carry it out. The goal pursued by the suspect/accused is to ensure a guaranteed reduced punishment. This goal works for serious crimes with severe, significant sentences.

Here, for example, is there any reason to enter into an agreement if a minor theft has been committed. According to Part 1 of Art. 158 of the Criminal Code of the Russian Federation, the maximum term of imprisonment is 2 years. According to the law, when executing a pre-trial contract, the punishment cannot be more than half of the maximum term of this article. So, let's see, the maximum term of Article 158 is indicated in Part 4 and is 10 years. Accordingly, ½ is five years. And this is still more than the maximum level of sane part 1. Therefore, in the above case, there is absolutely no need to agree.

As you can see, one of the logical conditions for concluding a transaction is expediency, which applies to grave and especially grave violations of the law.

There are a number of other strict criteria for the agreement:

1. initiative must come voluntarily, without pressure or coercion;
2. it is possible only within the framework of a preliminary investigation, but not during an investigation in the form of an inquiry;
3. The presence of aggravating circumstances is not allowed. Otherwise, the punishment will not be reduced.
4. You cannot completely refuse to testify. Let's say, referring to Art. 51 of the Constitution of the Russian Federation. Or completely deny your guilt and declare your innocence in the offense. This is a completely different situation in the case, incompatible with the possibility of establishing agreements with the prosecutor.

Benefit for the suspect

The question of how beneficial it is to sign it from the point of view of the interests of the suspect does not yet have a clear answer. On the one hand, its advantages are guaranteed by law - the punishment is mitigated.

However, the legislation does not contain a specific description of the mechanism for protecting a suspect. This is especially true in the case of possible reprisals against a collaborating citizen, if we are talking about cases related to organized criminal activity. This circumstance is pointed out by many lawyers specializing in criminal law (below is a quote from the author’s article by assistant lawyer Irina Katalymova).

Accordingly, judging by the norms of legislation and actual judicial practice in criminal proceedings, we can say that a pre-trial agreement on cooperation is more useful to the investigation than to the accused (suspect) himself.

Video commentary from another lawyer:

Briefly, the main advantages of the agreement for the accused and the investigation can be presented as follows: