The testimony of the accused is often not checked from all sides and aspects, and the norms by which charges are filed during the preliminary investigation are violated.
Any process can never proceed without the person accused of committing a crime. Unfortunately, in our time and in the criminal procedure itself, many gross violations are allowed. And this contradicts Article 172 of the Code of Criminal Procedure of the Russian Federation. Other omissions are also common. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00
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Procedural form of involving a citizen as an accused
Any investigative actions against a person who has committed a criminal act assist in imposing a fair and lawful punishment.
What is needed for this?
Compliance with all procedural norms, establishing reliable facts and circumstances of the crime itself, a person’s guilt and other important aspects that one way or another play an important role in a serious criminal case.
Let's consider all the provisions of the law governing the procedure for 2017.
Before Article 51 of the Constitution of the Russian Federation, law enforcement agencies obliged the suspect to give true testimony incriminating himself. But even those same legislative norms cannot prevent violations.
Involving a citizen as an accused should exclude using him in another status - a suspect or already a witness. At the same time, these procedures provide for the appearance of procedural documents, one of which is a resolution. A person is considered accused from the moment when the decision was made, but not from the moment when it was signed.
When doing this, the following information must be provided:
- Compilation time.
- The city where the document was drawn up.
- The person who made the application.
- Full name of the person involved and date of birth of the accused.
- The incriminated act.
If a case is opened under several articles, then the resolution takes into account and describes the facts for each article of the code.
Such a resolution must already contain specific data on the accusation itself, otherwise the case will be sent for further investigation. The right of the accused himself to such defense is also violated, since the wording is very vague. If this resolution does not contain articles of the Criminal Code, its parts and paragraphs, then such a case is sent for additional thorough investigation. For example, when accusing small minors, characteristics of the accused are needed. This is very, very important for building the defense and the prosecution itself.
When a person is prosecuted for such a crime, for example, based on assessment factors, one cannot refer only to this criterion. The resolution itself must contain conclusions about the specific presence of this characteristic. Absolutely all conclusions must and in the first order must be based on the materials of the criminal case under consideration. Data about this crime, such as place, as well as time and method, play a significant role, therefore they must be reflected in the criminal case.
A decision is not made until there is evidence that such a crime was committed by this person, he is sane, it was he who committed this act, intentionally or not. It is when these signs are established that a person is held accountable.
However, there are special signs - the status of the person, specific conditions of commission, for example, a fatal accident with a violation of traffic rules, due to negligence, etc.
The purpose of the act can also be included in the characteristics. There is always a selfish motive in theft. The nature of the damage entails a decision on the technique of the crime, the degree of implementation, mitigating circumstances, the amount of damage, etc.
The damage can be moral and physical.
When mentioning Article 150 of the Criminal Code of the Russian Federation, the involvement of a minor is possible if the circumstances of his involvement in criminal activity are established.
The resolution signed by the official conducting the inquiry is approved by the head of the relevant agency of inquiry that carried out the arrest. For example: the head of a police department, a military prosecutor, etc.
There is a special procedure for holding judges and various kinds of officials accountable. These categories of people can be recognized as accused only if additional conditions are met. For example, to accuse a judge, you need the consent of the circle of the panel of judges, and of a deputy, the consent of the circle of the chamber of parliament in which the deputy is a member. It is possible to bring charges against the President of the Russian Federation himself only in case of high treason or the commission of any serious crime. This does not deprive him of immunity if the President does not resign from office within 3 months. For example, persons with diplomatic immunity and citizens of the CIS are not subject to involvement, regardless, of course, of their nationality or citizenship.
If during the investigation the accused cannot be identified, then, referring and in accordance with Art. 208 of the Code of Criminal Procedure of the Russian Federation, investigative actions must be suspended. The date of this presentation of this charge is already considered the time when the present decision on the specific involvement of a person was made. The date of signing the verdict is mistakenly considered.
It is important to note that errors in making this decision can significantly delay investigative and already judicial progress and actions, since when they are corrected, the case is each time sent for an additional thorough investigation. There are many examples in practice where cases fell apart in court or required further investigation due to the fact that saving time forces the investigator to use templates for similar cases. Often, data from these cases ends up in the resolution.
Commentary on Article 172 of the Code of Criminal Procedure of the Russian Federation
1. The charge referred to in the commented article is what the accused is accused of - the content of the descriptive and operative parts of the decision to charge the person as an accused. Meanwhile, other types of charges are also known to criminal proceedings.
2. According to the Constitutional Court of the Russian Federation, in some cases the concept of “bringing charges” should be interpreted in its constitutional and legal sense, and not in the narrower sense given to it by the criminal procedure law. Under the charge, recorded in the Resolution of the Constitutional Court of the Russian Federation of June 27, 2000 N 11-P “In the case of verifying the constitutionality of the provisions of part one of Article 47 and part two of Article 51 of the Criminal Procedure Code of the RSFSR in connection with the complaint of citizen V.I. Maslov”, in the sense of Article 6 of the Convention, the European Court of Human Rights understands not only the official notification of charges, but also other measures related to the suspicion of having committed a crime, which entail serious consequences or significantly affect the position of the suspect <917>. In other words, not only a formal, but also a substantive understanding of the accusation is possible <918>. ——————————— <917> See: decision of 27 February 1980 in the case of Deweer, Series A, No. 35, para 44, 46; judgment of 15 July 1982 in the Eckle case, Series A no. 51, para 73; judgment of 10 December 1982 in the Foti case, Series A, no. 56, para 52.
<918> See: Resolution of the Constitutional Court of the Russian Federation of June 27, 2000 N 11-P “In the case of verifying the constitutionality of the provisions of part one of Article 47 and part two of Article 51 of the Criminal Procedure Code of the RSFSR in connection with the complaint of citizen V.I. Maslova" // Collection. legislation of the Russian Federation. 2000. N 27. Art. 2882.
3. Presentation is a specific kind of process that begins with certain steps of the investigator (inquirer, etc.) and ends with the receipt of information from the investigator (inquirer, etc.) by the accused himself (his defense attorney), to whom the accusation is brought.
4. In this regard, charges will be brought only after the accused has certified with his signature the fact that the meaning of the formulated charges, as well as his rights, duties and responsibilities, have been explained to him. In the narrow sense of the word (as an act), bringing charges consists of announcing to the accused (his defense attorney) the decision of the investigator (inquirer, etc.) to bring him in as an accused and in providing the accused (his defense attorney) with the opportunity to certify his signature on this resolution is the fact of announcing the named procedural document to him <919>. ——————————— <919> The definition of V.Z. is taken as a basis. Lukashevich. See: Lukashevich V.Z. Guarantees of the rights of the accused in Soviet criminal proceedings. L., 1959. P. 94.
5. It would be more accurate to say that when bringing charges, the investigator (investigator, etc.) is obliged:
a) announce to the accused (his defense attorney) the decision to implicate him as an accused, that is, read out, and upon receipt of the appropriate petition, also allow the accused (his defense attorney) to read the text of this procedural document aloud;
b) explain to the accused the essence of the accusation formulated in relation to him, set out in the descriptive part of the resolution on bringing him as an accused, that is, explain the content of the requirements of the criminal law and answer the questions that the accused will have in connection with the fact of the accusation being brought against him;
c) list and explain to the accused his criminal procedural rights (duties and responsibilities);
d) invite the accused, and if he participates, his defense attorney, to certify the fact that on a certain day and time he announced a resolution to bring him as an accused, explained the formulated charge and the rights (responsibilities and responsibilities) of the accused.
6. By giving such an explanation, we understand that in some part we are departing from the letter of the law. Part 5 of the commented article talks about the explanation to the accused by the investigator (interrogating officer, etc.) after the announcement of the decision to bring as the accused not the formulated (put forward) charges, as we indicated above, but the brought charges. It turns out that the filing of charges is just the announcement of a decision to bring the person as an accused, since after that the charge has already been filed. Otherwise, it is impossible to explain the essence of the “brought” charge. Such a position regarding the understanding of the institution of bringing charges is possible <920>. But it seems to us that we are not dealing with the principled approach of the legislator, enshrined in Part 5 of the commented article, but with the fact of an unsuccessful formulation of the legal provision. That is why we understand the filing of charges as a process after which the accused will not only understand what he is accused of, but also what rights (duties, responsibilities) he has. ———————————
Note:
Textbook V.V. Vandyshev “Criminal trial. General and Special Parts" is included in the information bank according to the publication - Contract, Wolters Kluwer, 2010. <920> See, for example: Vandyshev V.V. Decree. op. P. 456.
7. Charges are brought against the accused only. A person becomes an accused not from the moment charges are brought against him, but in connection with the adoption of a decision to charge him as an accused.
8. In accordance with the rules of Part 2 of Art. 128 of the Code of Criminal Procedure, the period referred to in the commented article expires at 24 hours of the last day. “No later than 3 days” means that if the charge was brought on the third day after the day the decision was made to charge the person as an accused, then this requirement is not violated. In Part 2 of Art. 128 of the Code of Criminal Procedure also establishes a rule according to which, if the end of a period falls on a non-working day, then the last day of the period is considered to be the first working day following it.
9. As a general rule, the period specified in Part 1 of the commented article can exceed three days only when the location of the accused is not known or he did not appear in a timely manner when called by the investigator (inquiry officer, etc.). In practice, however, there are no problems associated with the delay in filing charges and the absence of an invited defense attorney at the appointed time. If the accused and (or) his defense attorney fail to appear at the time appointed by the investigator (interrogating officer, etc.), charges may be brought even after the expiration of the period specified in Part 1 of the commented article. This circumstance is directly indicated by the text of Part 6 of the commented article
10. In addition, you should know that, according to Part 3 of Art. 203 of the Code of Criminal Procedure, in the event of a suspect being placed in a medical organization providing psychiatric care in an inpatient setting, for a forensic psychiatric examination and a subsequent decision to charge him as an accused, the period during which he must be charged in accordance with the commented article, is interrupted until expert opinion is received.
11. The investigator (inquiry officer, etc.) is obliged to bring charges in the presence of a defense lawyer, not only when the latter has already taken part in this particular criminal procedural proceeding, but also in the case where the participation of a defense lawyer in such at the time of filing charges is mandatory .
12. Being present at the presentation of charges, the defense lawyer has the opportunity to take advantage of the right granted to him to meet with the client in private and confidentially explain to the accused the essence of the charges, his rights, duties, responsibilities, the content of the articles of the Criminal Code and the Code of Criminal Procedure, the meaning of specific legal terms, to draw the attention of the investigator (investigator and etc.) on the existing (if any) shortcomings of the decision to bring the defendant as an accused, the course of the filing of charges, other violations of the rights and legitimate interests of the defendant.
13. What should be added to what has been said is that the defendant may be charged (re-presented) more than once during the preliminary investigation. The defense attorney has the right to be present at each of these charges. Moreover, he should be given the opportunity to personally familiarize himself with each of the decisions made by the investigator (inquiry officer, etc.) to bring the client as an accused and to make extracts from them <921>. ——————————— <921> Other scholars also write about the right of the defense attorney to make extracts from the decision to bring the client as an accused. See: Commentary on the Criminal Procedure Code. M.: Exam XXI, 2002. P. 151; and etc.
14. An adult accused who is at large is summoned to appear before the investigator (interrogating officer, etc.) by sending a written notice - a summons - to his address. Based on the rule enshrined in Part 4 of the commented article, his summons is carried out in the general manner for summoning a witness for questioning. It therefore appears that the rules for issuing a summons served on such an accused are similar to the requirements for a summons served on a witness. Summoning a minor accused is carried out somewhat differently. To notify him of the filing of charges, a subpoena is issued taking into account the structure of that provided for summoning for questioning a witness who has not yet turned sixteen years old.
15. A minor accused, as a general rule, is summoned to the investigator (interrogating officer, etc.) through his legal representative (one of the parents, adoptive parents, guardians or trustees, representatives of institutions or organizations in whose care he is), through the administration at his place of work ( studies) or through the administration of the specialized institution for minors in which he is located (Article 424 of the Code of Criminal Procedure of Russia). A different procedure for inviting a minor accused is allowed only if it is due to the circumstances of the criminal case.
16. The investigator (inquiry officer, etc.) is obliged to notify the accused not only of the date, but also of the time, as well as the place where the charges are scheduled to be filed.
17. Explanation of the right to independently invite a defense attorney or to request the participation of a defense attorney by the investigator (inquiry officer, etc.) in the manner established by Art. 50 of the Code of Criminal Procedure must necessarily take place. However, the legislator did not specify in what forms this clarification should be carried out. In this regard, any form of clarification, both written and oral, should be considered legitimate. Meanwhile, we recommend recording the fact of explaining the relevant consequences in the materials of the criminal case. This can be done by attaching a copy of the summons, which will explain the above provisions in detail.
18. Before a lawyer begins to participate in criminal proceedings as a defense attorney for the accused by invitation, the following must happen:
1) the accused did not refuse a defense lawyer in the manner prescribed by Art. 52 of the Code of Criminal Procedure, and (or) the accused files a petition to invite a lawyer to participate in criminal proceedings as his defense attorney;
2) the accused, his legal representative and (or) other persons, on behalf of and (or) with his consent, invite (in other words, ask to participate in the appropriate capacity in criminal proceedings) a lawyer;
3) it is determined whether the lawyer (other person) is subject to challenge in accordance with the requirements of Part 1 of Art. 72 of the Code of Criminal Procedure (clause 2, part 4, article 6 of the Federal Law of May 31, 2002 N 63-FZ “On advocacy and the legal profession in the Russian Federation” <922>); ——————————— <922> See: Collection. legislation of the Russian Federation. 2002. N 23. Art. 2102.
4) the lawyer gives his consent to take over the defense;
5) the lawyer enters into an agreement with the client on the provision of legal assistance;
6) a lawyer in the appropriate legal profession receives a warrant to execute an assignment to carry out defense in criminal proceedings;
7) the lawyer presents to the investigator (inquiry officer, etc.) his lawyer’s certificate and the above-mentioned order;
a lawyer participates in criminal proceedings as a defense attorney.
19. Along with notifying the minor accused of the date, time and place of the arraignment and simultaneously explaining to him the right to independently invite a defense lawyer or to petition for the participation of a defense attorney by the investigator (inquiry officer, etc.) in the manner established by Art. 50 of the Code of Criminal Procedure, the right in question is the right to petition for the participation of a defense lawyer by the investigator (inquiry officer, etc.) in the manner established by Art. 50 of the Code of Criminal Procedure must also be explained to the legal representative of the minor accused.
20. Ensuring the participation of a defense attorney is the active actions of the investigator (interrogating officer, etc.), the result of which is to provide the accused with a real opportunity to benefit from the assistance of a defense attorney. If a corresponding request is received, the investigator (investigator, etc.) must do everything possible to ensure that the accused has a defense attorney. When the accused was not provided with a defense attorney, and the corresponding petition was filed, it should be considered that the investigator (investigating officer, etc.) did not fulfill his duty to ensure the participation of the defendant’s defense attorney.
21. Part 3 of the commented article refers to the “administration”, and not to a representative of the administration. Accordingly, this is a slightly different concept than a representative of a legal entity in civil law, which is discussed in Chapter 10 of the Civil Code. The “administration” can be any employee of a place of detention who carries out managerial functions and who has been notified of the day of arraignment against the accused being held there. He will be such even when the head of the institution in question did not instruct him to receive the notification. For an official to participate in this capacity, it is sufficient for the investigator (interrogating officer, etc.) to meet with him and for the latter to make a decision to assign this particular officer to the place of detention, ensuring the appearance of the person held here to bring charges. Meanwhile, undoubtedly, if this cannot negatively affect the results of the action carried out by the investigator (interrogator, etc.), the head of the place of detention should be given the opportunity to make his own decision about which of his employees will ensure the appearance of the accused before the investigator (interrogator and others). etc.).
22. Before arraignment begins, it is necessary to verify the identity of the accused. Identification is carried out by checking the document proving his identity, as well as by finding out the personal data of the person who has appeared and comparing them with the information contained in the materials of the criminal case.
23. Before filing charges, the investigator (investigator, etc.) is obliged to verify not only the identity of the accused, but also the identity of all other persons participating (present) in the production of the procedural action. In addition, he makes sure that the defender has instructions to conduct the defense. The investigator (inquiry officer, etc.) checks whether the person who introduced himself as a defense attorney has the appropriate identification and a warrant for legal defense.
24. After which, in accordance with the rules enshrined in part 5 of the commented article, he announces to the accused and his defense attorney, if the latter is involved in the criminal case, a resolution to implicate this person as an accused. The “announcement” of the said resolution is understood as an official message <923>, bringing to the attention of the accused (his defense attorney), announcement <924> to him of the decision to implicate this person as an accused. ——————————— <923> See: Brief explanatory dictionary of the Russian language. P. 113.
<924> See: Ozhegov S.I. Decree. op. P. 377.
25. An explanation to the accused of the substance of the charge brought must be carried out during the trial or immediately after the announcement of the decision to charge him as an accused. Explaining the essence of the accusation is the responsibility of the investigator (interrogating officer, etc.).
26. The essence of the accusation lies primarily in the content of the accusation: what crime (crimes) with what qualifying features is charged with the accused and why, what is the meaning of the special terms used by the investigator (inquiry officer, etc.) when formulating the accusation, what is the punishment for charged crime. All this must be explained in detail by the investigator (interrogating officer, etc.) to the accused.
27. Immediately after completing the explanation of the substance of the formulated accusation, the investigator (investigating officer, etc.) is obliged to begin explaining to the accused his rights, duties and responsibilities. Moreover, based on the requirements of Part 1 of Art. 11 of the Code of Criminal Procedure, the investigator (inquiry officer, etc.) is obliged to explain to the accused not only the rights provided for in Art. 47 of the Code of Criminal Procedure, but also all its procedural rights.
28. The term “failure to appear,” which the legislator used in Part 6 of the commented article, should be interpreted as the absence of the accused at the place designated by the investigator (investigator, etc.) at the time specified in the notice (summons). The failure of the accused to appear may be for either a disrespectful or a valid reason. In both cases, she will still be a “no-show.” In a legal sense, these two groups of failures to appear differ only in their legal consequences. For failure to appear for a good reason, the accused cannot bear criminal procedural liability, be it a arrest, a change in the preventive measure to a more strict one, or the application of another measure of procedural coercion to him.
29. The provisions enshrined in Part 6 of the commented article also apply to cases when measures taken by the investigator (inquiry officer, etc.) find out (discover) where exactly the accused is at the time when (within 3 days) he should be charged is not possible.
30. The refusal of the accused to sign the resolution is expressed in inaction or in the statement of the accused that he will not put his signature on the procedural document in question. In such a situation, the investigator (investigator, etc.) explains to the accused that with his signature he certifies the fact of the announcement of the procedural document, an explanation of the essence of the charges brought against him and the rights of the accused, and not the correctness or inaccuracy of the information contained in the decision to bring the accused as an accused. If the above arguments do not convince the accused, the investigator (inquirer, etc.) has the right to certify with his own signature on the decision to bring him as an accused the fact that the contents of the named procedural document were announced to the accused, the essence of the accusation formulated in relation to his and the rights of the accused were explained and that the accused after I refused to sign this.
31. It is further advisable to provide the accused with an opportunity to state in writing the reason for his refusal to sign. If he does not want to indicate it with his own hand here, on the decision to bring him as an accused, it is permissible to give him a blank piece of paper and again invite him to write on it why he does not want to certify with his signature the fact that he has been familiarized with the relevant decision.
32. It is recommended to attach to the materials of the criminal case a copy of the covering letter with which a copy of the decision to bring the person as an accused was sent to the prosecutor. The named procedural document will indicate that the investigator (inquiry officer, etc.) has fulfilled the requirements of Part 9 of the commented article. The recording of this circumstance in the materials will also be facilitated by the entry made on the decision to bring the person as an accused, certified by the signature of the investigator (inquiry officer, etc.) .
33. The procedure for bringing charges established by law guarantees the accused a timely and complete understanding of the facts that he is accused of, and gives the opportunity to use the rights granted by law for his defense.
34. See also commentary to Art. Art. 47, 50, 51, 141, 188, 189 Code of Criminal Procedure <925>. ——————————— <925> For a more complete commentary on this article, see: Ryzhakov A.P. Procedure for bringing charges. Commentary on Article 172 of the Code of Criminal Procedure of Russia. M., 2006; Ryzhakov A.P. Bringing charges and interrogating the accused: Scientific and practical guide. M.: Exam, 2007.
Arraignment
According to Article 172 of the Criminal Code of the Russian Federation, charges can be brought on the basis of sufficient evidence. If, at the time of this presentation, the investigation by the authorities is not fully completed, then the accusation, naturally, will not be fully completed.
Charges will be filed. In this case, the investigator operates with facts, having enough truthful evidence. But, due to verification of various kinds of versions, the case itself may be sent for further investigation, and the accusation may be amended.
What is the essence of the procedure called bringing charges? The following order is provided:
- Reading the text of the resolution.
- The accused signs the text of the resolution (if he refuses, then a mark is made by the investigator).
- Familiarization of a citizen with his rights provided for by law.
All these so-called signs and factors themselves, united by various types of damage and circumstances, which can already be mitigating or, say, aggravating guilt. But they can already be sorted out and clarified only after the presentation of an indictment document.
When a case requires the mandatory presence of a defense attorney, a special procedure is allowed for issuing an indictment.
These are such sensitive points as physiological or even mental illness of a person, insufficient command of the language in which justice is administered, when convicted of acts involving the death penalty, when accusing persons under the age of majority.
If a person committed an offense before reaching the age of majority, then he has the right to have his lawyer participate in the specific investigation. And this does not depend on whether he reached the age of majority at the time he was brought to this responsibility or not. This procedure is, of course, also applicable in the case, for example, when the first crime was committed before reaching the age of 18, and another later.
The participation of a lawyer during the investigation is agreed upon with the accused or his close associate. This right must be fully explained by the investigator. The investigator must allow the defense attorney to participate in the trial. These cases are provided for by law.
An investigative officer conducting an investigation has no right to appoint a lawyer until he is satisfied that the accused has given his consent.
There is also a procedure for replacing one lawyer with another. Persons under the age of eighteen, as well as those with physical and mental disabilities, are unable to independently defend themselves. Therefore, it is the investigator who is obliged to appoint a defense attorney, if one was not invited by the accused (in accordance with Part 5 of Article 127 and Part 7 of Article 47 of the Code of Criminal Procedure).
The accused has the right to challenge the defense lawyer, and this will be his right. This failure can occur at any time. The investigative authorities cannot influence or somehow force the accused to challenge the defense lawyer.
If a minor (of any age) or a person with physical or mental disabilities refuses protection, this process of the investigative authorities will not be mandatory based on Article 50 of the Code of Criminal Procedure.
The case is already subject to additional thorough investigation without respect for the rights of the accused himself to defense from the moment the charge was brought.
14.3. Change of previously filed charge
Having filed charges, the investigator continues to carry out investigative actions and collect evidence. In this case, there may be grounds for changing or adding to the charges. For example, it may be established that the accused committed some other crimes, or, conversely, did not commit some of those that were charged against him; committed a crime not alone, but in a group of people; the amount of damage caused turned out to be more or less than what was indicated in the initial decision to impeach. In all these cases, the investigator is obliged to bring a new charge against the accused in compliance with all the requirements of the law and interrogate him on the charges brought against him. During the investigation, the charge may change several times. At the same time, the investigator draws up a new resolution on bringing the person as an accused, in which he reformulates the charge, taking into account additionally discovered circumstances. Then this resolution is presented to the accused, the essence of the charge, his rights are again explained to him, and he is interrogated about the new charge. A new charge is brought both in case of deterioration and in case of improvement of the accused's situation, since the exact wording of the charge brought during the preliminary investigation must be fully set out in the indictment and, in addition, it determines the scope of the trial. However, if during the preliminary investigation the accusation brought in any part was not confirmed, the investigator, along with a new decision to bring the person as an accused, is obliged to issue a decision to terminate the criminal prosecution in this part, which is announced to the accused.
Time limits for arraignment procedure
What is the time frame for this procedure?
Depending on the specific case, the order is as follows:
- The deadline for filing charges is 3 days from the moment the decision was made in this case.
- If a person is detained - on the same day as the arrest, in accordance with the norms of the legislation of the Russian Federation.
- The deadlines can be shifted only for reasons that should not depend on the investigator in the present criminal case.
A defendant who is not in custody must be served with a summons. The date of its receipt is recorded in the file. If a suspect is placed in a hospital for a forensic medical examination, then charges will be brought after the expert's conclusion or not at all if the person is declared incompetent.
It happens that the deadlines change due to the fact that the location of the accused person is unknown or could not be established, as well as failure to appear before the investigator when summoned. Then the accusation, in principle, can be in absentia. The main thing is that the invited defense attorney is not at the meeting at the first, second, or third appearance, then under Article 148 of the Code of the Russian Federation one can doubt the correctness of bringing this charge.
The essence and significance of being brought as an accused
The law does not contain a definition of being brought as an accused. In the theory of criminal proceedings, this issue is controversial and is covered differently.
To understand what it means to be brought as an accused, you need to proceed, first of all, from the norms contained in the Criminal Code of the Russian Federation (Articles 19 - 23, 299) and the Code of Criminal Procedure of the Russian Federation (Clause 22, Article 5, Clause 1, Part. 1 article 47, paragraph 1 part 3 article 49, article 53, 171, 225, 226, 476, etc.).
It should immediately be noted that the term “involvement as an accused” is contained only in the title of Chapter. 23 Code of Criminal Procedure of the Russian Federation. Subsequently, the law uses, along with this concept, the phrases “bringing a person as an accused” and “the procedure for bringing a person as an accused” - Art. 171 Code of Criminal Procedure of the Russian Federation.
It is also important to note that provided for in Art. 171 of the Code of Criminal Procedure of the Russian Federation, the procedure for bringing a person as an accused is valid during the preliminary investigation.
Part 1 art. 171 of the Code of Criminal Procedure of the Russian Federation establishes that if there is sufficient evidence to accuse a person of committing a crime, the investigator makes a decision to bring this person as an accused. It follows from this that bringing a person as an accused consists of the investigator making a decision to this effect.
The essence of this procedural action is the formulation by the investigator of an accusation - an allegation that the crime under investigation was committed by an identified person (clause 22 of Article 5) and, thus, recognition of him as an accused (clause 1 of Part 1 of Article 47 of the Code of Criminal Procedure of the Russian Federation). From a criminal legal point of view, this act means imputation to a person of a criminally punishable act provided for by the Special Part of the Criminal Procedure Code of the Russian Federation (Part 3 of Article 171 of the Criminal Procedure Code of the Russian Federation), otherwise - bringing to criminal liability (Article 299 of the Criminal Procedure Code of the Russian Federation, Article 225 of the Criminal Procedure Code of the Russian Federation) .
In this regard, based on Part 2 of Art. 171 of the Code of Criminal Procedure of the Russian Federation, the resolution to bring as an accused must indicate: a description of the crime indicating the time, place of its commission, as well as other circumstances to be proven in accordance with paragraphs 1 - 4 of Part 1 of Art. 73 Code; clause, part, article of the Criminal Code, providing for liability for this crime (clause 4 and clause 5 of Article 171 of the Code of Criminal Procedure of the Russian Federation), otherwise, taking into account Art. 73 of the Code of Criminal Procedure of the Russian Federation, - the event of the crime (time, place, method and other circumstances of the commission of the crime), as well as the nature and extent of the damage caused by the crime (Clause 1, Part 1, Article 73 and Article 47 of the Code of Criminal Procedure of the Russian Federation).
It seems that in order to avoid unjustified prosecution as an accused, at the time the relevant decision is made, the absence of circumstances excluding criminality and punishability of the act, and circumstances that may entail release from criminal liability and punishment must be established (clause 5 and clause 7 of 1 article 73 of the Code of Criminal Procedure of the Russian Federation).
Considering that this act is of exceptional importance, both for the investigator and for the person brought to criminal responsibility, the decision to bring as an accused must indicate who committed the crime: last name, first name and patronymic of the person brought as an accused , date, month, year and place of his birth (part 1 of article 47, clause 3 of part 2 of article 171, appendix 92 to article 476 of the Code of Criminal Procedure of the Russian Federation), as well as the person’s guilt in committing a crime, forms of his guilt and motives, circumstances characterizing the personality of the accused (clause 2 and clause 5 of part 1 of article 73 of the Code of Criminal Procedure of the Russian Federation). This resolution states the existence in objective reality of a crime and its commission by a certain person identified by the investigator. From the moment it is issued, the bringing of a person as an accused, and therefore to criminal liability, is considered to have taken place. By the way, this should be taken into account when applying Art. 299 (bringing a knowingly innocent person to criminal liability) and Art. 300 (illegal exemption from criminal liability) of the Criminal Code of the Russian Federation.
The charge formulated in the decision to bring a person as an accused establishes the content of the charge at subsequent stages of criminal proceedings. It is reflected in the indictment (Part 1 of Article 220 of the Code of Criminal Procedure of the Russian Federation). The indictment predetermines the actions and decisions of the prosecutor in the criminal case received by him (Article 221 and Article 222 of the Code of Criminal Procedure of the Russian Federation). The prosecutor may agree with the charges brought by the investigator, approve the indictment and send the criminal case to court. The judge in a criminal case brought to court, if there are grounds for it, issues a resolution to schedule a court hearing, indicating the surname, name and patronymic of the accused and the qualifications of the crime charged to him (Part 1 and Part 3 of Article 231 of the Code of Criminal Procedure of the Russian Federation). The charge brought against the accused determines the limits of the trial (Article 252 of the Code of Criminal Procedure of the Russian Federation).
A decision to charge a person as an accused cannot be based on assumptions. It is issued if there is sufficient evidence providing grounds for accusing a person of committing a crime (Part 1 of Article 171). Evidence must establish, firstly, the crime (event, time and place of its commission and other circumstances subject to proof - Article 73 of the Code of Criminal Procedure of the Russian Federation), secondly, that the crime was committed by a very specific person (last name, first name and patronymic the person brought as an accused, his age and place of birth - clause 3, part 2, article 171 of the Code of Criminal Procedure).
What the body of evidence must be to support a charge of a crime depends on the case. In any case, there must be as much evidence as is necessary to establish each of the circumstances indicated in the resolution. It is important to remember that all doubts about the guilt of the accused, which cannot be eliminated in the manner established by the Code, are interpreted in favor of the accused (Part 3 of Article 14 of the Code of Criminal Procedure of the Russian Federation), and also that everyone accused of committing a crime is considered innocent until his guilt will not be proven in the manner prescribed by federal law and established by a court verdict that has entered into legal force (Part 1 of Article 49 of the Constitution of the Russian Federation).
The decision to bring an accused as an accused indicates the appearance of the accused in criminal proceedings (clause 1, part 1, article 47 of the Code of Criminal Procedure of the Russian Federation). From the moment this decision is made, the accused becomes an authorized participant in criminal proceedings - he acquires rights (Part 4 of Article 47 of the Code of Criminal Procedure of the Russian Federation) and at the same time the ability to protect them and his legitimate interests.
With the decision to bring a person as an accused, quite definite legal relations are established between the investigator and the real accused. The investigator has an obligation to ensure that the accused can exercise his rights (Article 11 of the Code of Criminal Procedure of the Russian Federation), to decide on the use or non-application of a preventive measure, and on the temporary removal of the accused from office (Article 114 of the Code of Criminal Procedure of the Russian Federation). It should be borne in mind that when several persons are brought as accused, a decision to bring as an accused is made in relation to each of them (Part 4 of Article 171 of the Code of Criminal Procedure of the Russian Federation). When a person is accused of committing several crimes under different articles of the Criminal Procedure Code of the Russian Federation, the indicated resolution must indicate what acts are charged with him under each of these articles (Part 3 of Article 171 of the Criminal Procedure Code of the Russian Federation).
Interrogation of the accused
This procedure is carried out in the following order:
- The investigator asks the citizen whether he considers himself guilty.
- It turns out whether the accused wants to testify on the essence of the charges that have been brought against him.
- If the accused refuses to testify on the essence of the accusation, then the investigator creates a corresponding comment in the paper record of the interrogation.
If you refuse to testify at the first interrogation, a secondary interrogation should be carried out only if the citizen himself wishes.
There is a nuance in the procedure for questioning the accused. According to Art. 173 part 1, such an interrogation should be carried out by the investigator after reading the charge, but there are inconsistencies here with the presumption of innocence and other norms that can provide protection to the accused.
The lawyer may petition to postpone the interrogation because he does not have enough time to study the circumstances and express his attitude to the accusation together with the client.
Amendment and addition of charges and partial termination of criminal prosecution
When bringing charges, interrogating the accused, as a result of various types of motions made by the defense attorney, or as the investigator establishes new circumstances, it may become necessary to change the charges. The Criminal Procedure Law establishes that if during the preliminary investigation there are grounds for changing the charged charge, the investigator issues a new decision to bring the accused as an accused and presents it to the accused in the manner prescribed by Art. 172 of the Code of Criminal Procedure of the Russian Federation (Part 1 of Article 175 of the Code of Criminal Procedure of the Russian Federation).
If during the preliminary investigation the accusation was not confirmed in any part of it (for example, in cases provided for in Article 24 and Article 27 of the Code of Criminal Procedure of the Russian Federation), the investigator, by his resolution, terminates the criminal prosecution in the relevant part. The accused, his defense attorney, as well as the prosecutor are notified of this (Part 2 of Article 175 of the Code of Criminal Procedure of the Russian Federation).
A number of authors equate being brought as an accused to criminal liability or bringing charges; others consider it as a combination of issuing a decision to bring in as an accused and presenting this document to the person brought in as an accused, as well as interrogating the accused; others consider it an integral part of bringing charges.
Drawing up a protocol of interrogation of the accused
When carrying out interrogation in each specific case, the investigator is obliged to maintain a document called an interrogation protocol, referring to Article 190 of the Criminal Code of the Russian Federation.
During the initial interrogation, the following information about the citizen is revealed:
- passport information about the citizen;
- date and city of his birth;
- nationality of the accused;
- information about graduation from an educational institution;
- marital status, number of citizens living with him;
- status and type of activity of a citizen;
- where he lives;
- existence, if any, of a criminal record;
- any other information relevant to the case.
If all the citizen’s data did not change during subsequent interrogations, then only full name can be indicated.
