Changing the application of a special procedure for making a judicial decision in criminal proceedings.

Special procedure in criminal cases

WHAT IS “SPECIAL ORDER”?

When the entire process of collecting evidence confirming the guilt of the alleged criminal comes to an end, the person brought to criminal responsibility often hears from the investigator a question, sometimes in the form of urgent advice: does the accused want to take advantage of the “special procedure”? In practice, this question-wish is sometimes heard even during the first interrogation of a suspect, when the investigator, persuading him to confess, describes the numerous and unconditional advantages of using a “special order”, as a result of which the suspect will receive such a minimal punishment that it will be lower than anything that can draw your wildest imagination.

Few law enforcement officials convey to the person the whole essence of this procedure and all its legal consequences. Meanwhile, in my opinion, it is in the consequences of using the “special order” that all its pros and cons for the defendant, all the problems, pitfalls and pitfalls lie.

So, what is the “special procedure” that any accused person will hear about more than once during the investigation?

“Special procedure” is a specific proceeding for the consideration of criminal cases in courts, consisting of special legal relations and actions of subjects of criminal proceedings with the general and leading role of the presiding judge, which consists of researching and determining the presence or absence of reasons and grounds allowing the conduct of a trial in relation to specific person through a shortened and simpler sentencing procedure.

The procedure for conducting criminal proceedings in a special manner was introduced in 2001 and was determined by the desire of legislators to save effort, time and material resources of law enforcement, investigative and judicial authorities in conditions where the defendant fully agrees with the position of the investigative authorities reflected in the final procedural documents of the preliminary investigation, such , such as an indictment. In order for a criminal case to be considered according to this procedure, certain legal and factual grounds are required, which the judge is actually called upon to establish:

• Category of crime. The defendant pleads guilty to a minor, moderate, or felony crime. Accordingly, the maximum punishment that threatens the defendant should not exceed ten years in prison.
• Full admission of guilt. This means that a person must agree with absolutely all the factual circumstances of the act, the form of guilt and motives for committing the act, the legal assessment of the act (clause, part of the article of the Criminal Code of the Russian Federation), as well as the nature and extent of the harm caused by the act. In other words, the accused unconditionally agrees with the accusation in full, with every word, with every letter!
• Statement by the defendant on the use of this form of trial. Moreover, it must be submitted in writing or reflected in the protocol.
• The moment of decision. An application to consider a case under a special procedure is made only before the start of the case in court. That is, it is necessary to declare a special procedure either when the defense examines the case materials after the completion of the entire investigation, or at a preliminary hearing, if it is mandatory.
• Participation of the defender. The petition must be submitted only in the presence of a lawyer. It is understood that the participation of a professional defense attorney ensures that the person making the application under consideration will be aware of both the essence and all the legal consequences of the application made by him.
• Consent of the prosecution. If the case involves a victim, a prosecutor or a private prosecutor, then they must all agree that the process will take place in a “truncated” format. Moreover, none of them is obliged to in any way motivate their agreement or disagreement with this.
• The validity of the accusation. The accusation must be based on specific facts and circumstances of the case, allowing for a reasoned conclusion about the guilt of the person, and also be supported by a body of evidence.
• There are no grounds for terminating the criminal case.

SPECIAL ORDER: PROS AND CONS

So, let's look at everything that is positive and negative about considering a case under a special procedure.

If we talk about the positive aspects of this institute, then, in my opinion, there are not very many of them.

The most important thing, perhaps, is that in a trial conducted in a special manner, the defendant is guaranteed that the amount of the most severe punishment will be reduced by at least one third. That is, if a person has committed an act for which the maximum that can be imposed on him is 9 years of imprisonment, then the court cannot determine a punishment exceeding 6 years of imprisonment. In addition, there is a real significant saving in the time of consideration of a criminal case. The court does not call or interrogate witnesses, does not examine other evidence (expert reports, protocols, documents, physical evidence, etc.), and certainly does not double-check them. Therefore, if, for example, a person is detained, he avoids numerous grueling transportation in paddy wagons, undergoing inspections in a pre-trial detention center, etc. If a person is at large, then he is not distracted from normal activities, does not take time off from work, and has the opportunity to earn material resources to support his family, pay for lawyers, etc.

If we are talking about the negative aspects of using a special order, then I believe there are many more of them. They are all interconnected, interdependent and flow from one another.

Firstly, as already mentioned, when considering the grounds for using this institution, you will have to agree not only with the qualification of your actions, but also with all the other circumstances of the crime charged to you. That is, the law requires that you agree with virtually every letter of the charge brought against you. In practice, this means that even if the accusation contains, although it does not affect qualifications, circumstances and facts that do not correspond to reality, no matter how absurd they may seem to you, no matter how obvious it is to you that a specific fact is indicated in a distorted form or it did not exist at all and this is entirely a fantasy of the investigation, you will have to agree with him.

The second and, perhaps, the most important point: the defense cannot appeal against the verdict that the court passed in a special manner in terms of challenging the factual circumstances. Thus, having initially agreed with all the facts and circumstances set out by the investigation, you will not be able to appeal the verdict, which “confirms” the plot of the crime, that is, you will not be able to subsequently challenge something that you previously agreed to, you will not be able to prove your innocence in court appellate and cassation instances. The verdict can be appealed only due to procedural violations committed by the court, or due to the injustice of the imposed punishment due to its excessive severity.

In addition, by agreeing with the accusation, you will be forced to agree with the extent of the harm caused by the crime and, therefore, with the civil claim, which is usually filed by the victims in the case. As in the case of circumstances directly related to the commission of a crime, if you disagree with the amount of the civil claim, you will not be able to appeal the verdict in terms of disagreement with the civil claim.

Unfortunately, these provisions of the institution discussed in this article are very often not brought to the attention of suspects and accused. People sometimes learn or delve into all these subtleties only when the verdict passed does not suit them for one reason or another. Naturally, this most often happens when a severe punishment is imposed. At the same time, it very often happens that it is no longer possible to correct the injustice, because the court formally imposed a punishment within the allotted 2/3 of the maximum punishment, and the defendant’s expectations regarding the minimum punishment, or a punishment below the lower limit, remain his expectations.

This does not mean that the possibility of considering a criminal case in a special manner should be ignored. Each case is individual and it would be wrong to give advice for all occasions. Of course, cases were considered in a special order, including with my participation. However, for the above reasons, the selection of a special procedure as a mode for considering a specific criminal case should be treated with particular scrupulousness and caution.

In this regard, I consider it advisable to observe the following rules:

1. Do not rely on the words of law enforcement officials regarding the advisability of choosing a special procedure and be guided solely by your own understanding of the situation.
2. Do not make a decision ahead of time, especially if we are talking about the first interrogation. Giving evidence and the possibility of applying a special procedure are in no way related concepts. If you provide the investigation with a confession, it is far from a fact that, firstly, the case will be considered in a special manner, and, secondly, you will receive a minimum punishment. This may not happen for many reasons: for example, the victim will object to the “special order”. In addition, from the first interrogation until the moment a special procedure is chosen as a form of legal proceedings, a lot of time will pass, during which the actual circumstances of the crime charged to you, the qualification of the act may change, as a result of which the case simply may not fall into the category of cases, considered in a special manner. The confession will remain at the disposal of the investigation as evidence of your guilt. It can be extremely difficult to challenge them later. On the other hand, the law says that the condition for applying a special procedure is an admission of guilt, not a confession. Therefore, if you generally refuse to testify at the first or subsequent interrogations, this will in no way prevent you from choosing a special procedure subsequently.
3. It is necessary to consider the advisability of choosing a special procedure only after the final charge has been presented at the final stage of the investigation.
4. If you really fully agree with every letter of the accusation, which is formulated in the final procedural documents, you should make a decision after receiving reliable information about the evidentiary material collected in the case that confirms your guilt. This happens after familiarization with the materials of the criminal case and their careful analysis for their reliability and sufficiency.
5. The final decision should be made solely after consultation with a lawyer who has no relationship with the investigator and whom you completely trust. A lawyer will help you understand and analyze all the procedural aspects of using a special procedure, explain its pros and cons as applicable to your specific case, and give advice on the amount of the imposed penalty that you will face, both in the case of using a “special procedure” and in the event that you the usual order will be followed.

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Added02/04/2016 | Articles that will help you, Criminal cases

What is the difference

What is a special order? In addition to the fact that the time for meetings is reduced and a verdict is passed faster, there are other nuances in the case when the court uses a special procedure:

• The examination in a special order takes place without interrogation of both parties to the criminal case (the perpetrator, the victim), without interrogation of witnesses.
• With this procedure for considering criminal cases, written evidence of the crime committed is not studied.
• How does the case proceed? Usually only one meeting is held to make a decision or sentence.
• The convicted person may receive a shorter sentence compared to the one that would have been assigned to him in a normal trial.
• He also has to pay less legal fees.

But it must be taken into account that it is impossible to appeal a sentence passed when a special procedure is applied (with rare exceptions).

Peculiarities

How does a court hearing proceed when a special procedure for considering a case is applied? The judge must name the defendant, explain his legal rights, and remind him of Article 51 of the State Constitution and Article 314 of the Criminal Code.

Then the judge checks whether there are any statements against the special procedure, because one of the participants in the meeting could change his decision. The indictment is read out

The defendant must confirm that he agrees to plead guilty. If he protests, the trial of the case begins in the usual manner; if not, the state prosecutor gives a characterization of the accused. It is necessary to indicate whether he is registered in psychiatry, narcology, and whether this citizen has any previous criminal records.

The next stage is when a proposal for punishment comes from the prosecutor and a proposal to mitigate it from the defense attorney. Then the criminal speaks with his last word, and the court goes to a meeting. After some time, the verdict is pronounced.

The special procedure involves a quick trial of the case and a more lenient sentence. But this is only possible under certain articles of the crime, with the consent of all parties to the case.

Legal side of the issue

At the legislative level, the issue is regulated by the Code of Criminal Procedure. Chapter 40 of the codified law contains data on methods of considering criminal cases:

The Code of Criminal Procedure and its articles are specified by Resolution passed by the Plenum of the Supreme Court N60 of 2006.
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Petition

A petition to consider a case of a crime in a special manner is made only by the defendant, the guilty party. There is a certain procedure for this matter.

• First you need to familiarize yourself with the criminal case. Every criminal has the right to familiarize himself with his file; it is enshrined in Article 217 of the Code of Criminal Procedure. According to the article, the defendant has the right to familiarize himself, and the defense attorney is obliged to provide him with such an opportunity.
• The lawyer is also obliged to explain to his client all the features of the special consideration procedure and the advantages that it has. The defendant must confirm in writing that he is familiar with the case materials and the possibility of drawing up a petition.
• The perpetrator can also raise the issue of a special procedure at a preliminary hearing. The initiative can come from him or from the court, from the injured party

What the defendant needs to know

The criminal's lawyer is obliged to notify his defense lawyer of the possibility of requesting a special procedure for consideration of the case in court, and of the consequences of such an action. First of all, you need to familiarize yourself with Article 314 of the Criminal Code. Before filing a motion, the defendant must confirm to the attorney several times that he understands the process and its consequences.

1. When considering a criminal offense in this way, there can be no acquittal, only a guilty verdict.
2. It will be possible to appeal the verdict only regarding the punishment.
3. The penalty upon conviction is no more than 2/3 of the maximum term. But at the same time, the defendant can receive a number of benefits, which, combined with the term of punishment, make the sentence more lenient.
4. When the court considers a case in the usual manner, the defendant also has to pay significant legal costs associated with a certain number of court hearings. With a special procedure, there is only one hearing, there are fewer court costs, and in some cases the defendant is completely exempt from payment.