1. Representatives of the victim, civil plaintiff and private prosecutor may be lawyers, and representatives of the civil plaintiff, who is a legal entity, may also be other persons authorized in accordance with the Civil Code of the Russian Federation to represent his interests. One of the close relatives of the victim or civil plaintiff or another person for whose admission the victim or civil plaintiff applies may also be admitted as a representative of the victim or civil plaintiff. 2. To protect the rights and legitimate interests of victims who are minors or, due to their physical or mental condition, are deprived of the ability to independently defend their rights and legitimate interests, their legal representatives or representatives are involved in mandatory participation in the criminal case.
2.1. At the request of the legal representative of a minor victim under the age of sixteen, against whom a crime against the sexual integrity of a minor was committed, the participation of a lawyer as a representative of such a victim is ensured by the inquiry officer, investigator or court. In this case, the costs of paying a lawyer are compensated from the federal budget.
2.2. By order of the inquirer, investigator, judge or court ruling, the legal representative of a minor victim may be removed from participation in a criminal case if there are grounds to believe that his actions are detrimental to the interests of the minor victim. In this case, another legal representative of the minor victim is allowed to participate in the criminal case.
3. Legal representatives and representatives of the victim, civil plaintiff and private prosecutor have the same procedural rights as the persons they represent.
4. Personal participation in a criminal case of a victim, civil plaintiff or private prosecutor does not deprive him of the right to have a representative in this criminal case.
Commentary on Article 45 of the Code of Criminal Procedure of the Russian Federation
1. Representatives must act only in the interests of those represented, but not to their detriment.
2. This article deals with both representatives by agreement (contractual representation) and legal representatives (by virtue of direct instructions of the law). From the number of persons who can be legal representatives, Art. 45 only close relatives are directly mentioned. Here we must keep in mind all the persons named in paragraph 4 of Art. 5 Code of Criminal Procedure.
According to the legal position of the Constitutional Court of the Russian Federation (Decision of December 5, 2003; Determination of February 5, 2004), part one of Article 45 of the Code of Criminal Procedure of the Russian Federation should not be interpreted in such a way as to exclude the participation of a person who does not have the status of a lawyer as a representative of the victim during criminal proceedings. Such a representative can be any person, including a close relative, whose admission to participate in the case is requested by the victim or civil plaintiff <1>.
——————————— <1> Russian Aerospace Forces. 2004. N 3; N 6.
3. Representatives are allowed to participate in the case after confirming their powers with relevant documents. They are: power of attorney; legal advice order for lawyers; documents confirming relationship for close relatives; documents confirming your official position.
4. The scope of rights of representatives is derived from the rights of the represented person. Representatives have the right to exercise almost all the rights that the subjects whose interests they represent have, with the exception of rights that are personal in nature - the right to testify, the right to reconciliation with the accused, the right to conclude a settlement agreement or renounce a claim. The representative of the victim participates in the process along with the victim himself, and representatives of the civil plaintiff and civil defendant can act both along with them and instead of them.
5. Legal representatives participate in the case to protect the interests of persons who are incapacitated or do not have full legal capacity (minors), as well as persons recognized in the prescribed manner as having limited legal capacity. The peculiarity of the participation of legal representatives in the case is that they can be questioned as witnesses.
6. According to part 4 of the commented article, the victim, civil plaintiff and private prosecutor have the right, while personally participating in the case, to also have a representative. However, this general rule is not consistently expressed in specific regulations. For example, in accordance with Art. 216 of the Code of Criminal Procedure, the victim gets acquainted with the case together with his representative, and the civil plaintiff can either do this himself or be replaced by a representative. In accordance with Art. 225 of the Code of Criminal Procedure, the victim and his representative, when familiarizing themselves with the materials of the completed inquiry, are forced to choose who will exercise this right. Article 321 of the Code of Criminal Procedure contains an indication that a private prosecutor supports the prosecution during the proceedings before a magistrate. As for the representative of the private prosecutor, he is not mentioned here at all.
Concept and meaning
The presence of a representative of the victim in criminal proceedings is expressly provided for in Chapter 6. 45 art. Criminal Procedure Code of the Russian Federation. This chapter establishes all possible participants in such procedural actions as investigation and trial. The presence of a lawyer-representative in the case of Article 45 is considered as a right and not an obligation in cases of a defendant who is required to be provided with a lawyer for his defense.
The institution in question is expressed in specific forms, but always implies the replacement of one person by another in the process. However, if we talk about the norm under consideration, then the prosecution in the person of victims and plaintiffs does not act as the subject who, according to the law, is entitled to a defense lawyer. That is, finding a lawyer is not the responsibility of the investigation in relation to these persons.
The procedure of the article under consideration, as well as the commentary to it, can be implemented to protect the legitimate interests of the following persons:
- victim;
- the plaintiff who filed his statement in court or at the investigation stage;
- person of private prosecution.
Suspects, accused, defendants are also given the right to defense, but this is regulated by a different rule and requires a different implementation procedure. The only participant in the process who must appear in person is the witness.
Access to the interests of the victim and their protection can be granted not only to a professional, but also to any other citizen if the appropriate power of attorney has been issued to him.
Separately, it should be said about such a group of attorneys as a legal representative (the Code of Criminal Procedure of the Russian Federation speaks of which as an obligatory participant, but subject to certain conditions). The law directly provides for such situations. Legal representatives in criminal proceedings are citizens who act in the interests of a minor child, adults, insane or incompetent persons. Such participants in the investigation may submit a petition, the sample of which has been established, including the request for additional protection.
Such attorneys are fundamentally different from the option of hiring a specialist. In the first case, the presence of an attorney is mandatory, since the victim is not able to defend his interests himself. The second option, on the contrary, is considered voluntary, hence the need to conclude cooperation agreements, pay for a lawyer, and so on. In addition, when the investigation begins to suspect or accuse someone, it is obliged to provide a public legal consultant, but this will not apply to the victim either.
Another commentary on Article 45 of the Criminal Procedure Code of the Russian Federation
1. According to part one of Article 48 of the Constitution of the Russian Federation, everyone is guaranteed the right to receive qualified legal assistance. The obligation to provide such assistance is primarily that of lawyers - members of professional associations of qualified legal practitioners operating on the principle of self-government, carrying out their activities on a contractual basis with individuals and legal entities. The participation of lawyers in criminal proceedings as representatives of the victim, civil plaintiff and private prosecutor is one of the forms of qualified legal assistance guaranteed by the Constitution of the Russian Federation.
2. If a legal entity, and not an individual, is recognized as a victim or civil plaintiff in accordance with the procedure established by law, its representative in criminal proceedings may be, defending property interests, the bodies of this legal entity, through which it, in accordance with the law, other legal acts and constituent documents acquires civil rights and assumes civil responsibilities (Article 53 of the Civil Code of the Russian Federation).
3. According to the final provision of part one of the commented article, by decision of the magistrate, one of the close relatives of the named participants in the process or another person for whose admission they apply can be admitted as a representative of the victim or civil plaintiff. The circle of close relatives is determined by paragraph 4 of Article 5 of the Code of Criminal Procedure. This is a spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren.
4. For the legal representatives of the victims, who are mentioned in the second part of the commented article, see paragraph 12 of Article 5 of the Code of Criminal Procedure.
5. Within the meaning of Part 4 of the commented article, representatives of the victim and civil plaintiff in criminal proceedings can act both instead of the person represented and along with him.
Kinds
The service in question involves a large number of nuances. At the stages of investigation, trial and even enforcement proceedings, rules may apply. Changes in the law rarely affect the appointment of attorneys, but it should be understood that taking into account the status of the participant in the process, the powers will be determined. Therefore, a gradation is established for the types of trust relationships.
The new version of the law states that both lawyers and other persons can act as attorneys. However, during the investigation phase of a case, only lawyers can take part in this role.
A common option for implementing such an opportunity as involving a proxy is the participation of both the victim (plaintiff) and the lawyer in the case. A lawyer is considered as a consulting party, and also acts on behalf of his client directly in court hearings.
Taking into account some features of the participation of authorized entities, such representation involves the following types:
- Legal. These are cases where the trustee is required to be present during the investigation and trial. These are situations with minors and incompetents who cannot speak for themselves. The constant participation of a lawyer in the case of a defendant is also mandatory.
- Conciliatory. In this case, an agreement on the provision of legal services is drawn up. This applies to victims, plaintiffs, defendants in civil and arbitration cases, and private prosecution. This also includes cases where the accused invites his lawyer, refusing to receive the assistance of a public defender and also entering into an agreement.
The first option should be implemented at the investigation stage, and the latter during any period of investigation and trial. A contract lawyer can be fired at any time.
Speaking about who specifically can act as a trusted subject of citizens in criminal proceedings, it should be noted that the victim has the freedom to choose his own attorney. The only limitation mentioned above is that investigative actions are always accompanied by the presence of only a lawyer. The trial allows the participation of other persons. In addition, during the investigation phase, although a lawyer is present, it is mandatory for attorneys to be present by law if required.
Legal entities occupy a special place in matters of fiduciary participation in criminal proceedings. It is known that they cannot act as subjects of a crime; the accused is always a manager or chief accountant. In the case of victims, everything is different; organizations can have a similar status.
To represent such a legal entity, it is still necessary to involve another entity:
- company lawyer;
- outside lawyer;
- the manual itself.
The company itself decides how to protect its interests, but practice shows that it is preferable to have a lawyer involved in the case.
A peculiarity of the procedural position of proxies is their inability to testify for the victim or plaintiff. Explanations about the case can only be given by an eyewitness or a person who has information that is important to the case. For testimony to be considered evidence, it must be transmitted in the prescribed manner. The same principle applies to the accused, the witness, and so on. The lawyer also does not give evidence in the case, but can explain his client’s position in all areas.
Conditions
The legislator does not provide any requirements for attorneys.
The basis for contacting a lawyer or inviting another person as support in the court process is the very fact of the existence of proceedings. There is no need to present a representative or provide reasons for your decision. The victim himself decides whether to fire the lawyer or not. The investigation and the court cannot influence this. The only requirement is the provision of a document reflecting the powers of the authorized entity. For a lawyer this is an agreement, for other persons it is a power of attorney.
It is necessary to consider these documents in more detail, since in their absence, representation will be impossible:
- Power of attorney. It is a paper that contains information about the principal and the attorney, reflects the granting of the right to represent the interests of the victim, and lists all the capabilities of the trusted entity, which is mandatory for the document in question. Also, the power of attorney must have a validity period, which is often limited to the period of investigation and trial.
- Agreement. It is between the client and the lawyer. Such an agreement should also determine the scope of the lawyer’s capabilities and the duration of his work. Terms of cooperation and payment, since a lawyer always provides a service for money.
Of course, the lawyer always has the advantage. He is a specialist, fully versed in the legal field and can resolve emerging issues. Other persons acting as trusted entities can only give explanations, voice the position of the principal and defend his interests.
If a citizen decides to hire a specialist to help with the matter, then you should also take care of other documents in addition to the agreement. We are talking about certificates and warrants. At the investigation stage, they are provided to the investigator. The order is filled out independently by the lawyer, and it must be the original document, and not a copy. The certificate is needed, rather, when implementing activities necessary to obtain information on the case.
In the case of the category of subjects who, in any case, are obliged to act as attorneys for minors and incapacitated citizens, it is necessary to confirm the possibility of their participation in the case.
The investigation and the court should subsequently submit documents confirming the fact that a person has a disease that makes him unable to independently defend his rights, or those that establish the return of a child under eighteen years of age.
It is mandatory to have a written request in the form of a petition to engage an attorney on the part of the victim or plaintiff.
Filing an application is considered a procedural aspect. This once again confirms the ability of individuals to use third parties as attorneys, but at the same time with control over this by the investigative authorities and the court. In most cases, practice shows that such requests are granted. This application rule applies only to relatives who wish to become an attorney. Other persons simply submit a written request.
Representatives in criminal proceedings.
Representation in legal proceedings is the replacement of one person in the process by another (representative), in which the procedural activity of the representative creates the rights and obligations of the represented person. However, due to the personal nature of criminal procedural activity, representation in criminal proceedings, as a rule, does not exclude, but, on the contrary, presupposes the simultaneous participation of both the representative and the represented person - the victim, civil plaintiff, civil defendant, etc. The exception is when the represented person is not an individual, but a legal entity, which is entirely personified through its representative. Representation can be legal when the interests of the represented person are protected by a certain person who is obliged to do so by virtue of the requirements of the law, and by agreement, if the representative acts by virtue of the agreement. Legal representation in Russian criminal proceedings has two varieties: a) legal representation of a minor suspect, accused or victim by one of his parents, guardian, trustee or representatives of institutions and organizations in whose care the minor is, or by guardianship and trusteeship authorities (clause 12 of Art. 5, article 48); b) protection of the suspect or accused by a lawyer appointed by the inquirer, investigator, prosecutor or court (Parts 3-5 of Article 50). Representation under the agreement has the following forms:
1) representation in criminal proceedings of the interests of the principal - the victim, private prosecutor, civil plaintiff, civil defendant - by a lawyer (Part 1 of Article 45);
2) protection of a suspect or accused by a lawyer by agreement (part 1 of article 50 of the Code of Criminal Procedure);
3) representation of the interests of a legal entity recognized as a victim, a civil plaintiff or a civil defendant by its head (management body) or another person acting on the basis of a power of attorney issued by the head (part 1 of article 45, part 1 of article 55 of the Code of Criminal Procedure, art. 53.185 Civil Code of the Russian Federation);
4) representation of the victim and civil plaintiff in the magistrate’s court, and the civil defendant - in all cases by one of their close relatives or another person for whose admission they apply (part 1 of article 45, part 1 of article 55 of the Code of Criminal Procedure).
Representatives of the victim, civil plaintiff and private prosecutor - individuals - can only be lawyers. They cannot appear in pre-trial proceedings, as well as in federal court, close relatives of the victim or civil plaintiff or other persons. Such a right may arise for close relatives of the victim or civil plaintiff or another person whose admission is requested by the victim or his legal representative, as well as the civil plaintiff, only in the magistrate’s court. However, as representatives of the civil defendant, these persons may be admitted to the process (Part 1 of Article 55 of the Code of Criminal Procedure).
Representatives of the victim, civil plaintiff and private prosecutor are allowed into the process by a court ruling or by order of a judge, prosecutor, investigator, or inquirer. A lawyer is allowed to perform the duties of a representative on the basis of an appropriate warrant. Other persons who can also perform the duties of a representative in the magistrate’s court are allowed at the request of the victim or civil plaintiff submitted to the magistrate. Persons representing a legal entity present a power of attorney or a document certifying their right to act on behalf of the legal entity without a power of attorney (constituent documents of the organization and identity card).
If victims who are minors or, due to their physical or mental condition, are deprived of the opportunity to independently defend their rights and legitimate interests, do not have legal representatives, the investigator, inquiry officer, prosecutor and the court may involve employees of the guardianship and trusteeship authority to participate in the process as their representatives (Article 34 of the Civil Code of the Russian Federation).
The legal representatives and representatives of the victim, civil plaintiff and private prosecutor have the same procedural rights as the persons they represent. However, a representative cannot testify in place of a victim or a civil plaintiff, and in any case this is expressly prohibited for a representative lawyer to do so by law (Part 2 of Article 56).
101. Criminal procedural rules. Their features .
A norm of criminal procedural law is a mandatory rule written in the law, containing an indication of the basis and conditions for its application, the subjects of regulated relations, their rights and obligations, sanctions for failure to fulfill an obligation or for violating a prohibition.
Different legal norms perform different functions in the process of legal regulation. Some norms are of a general nature for all activities, defining the purpose, principles, legal status of subjects of criminal procedural relations, others - the conditions of production at a certain stage, others regulate the conditions and procedure for a specific investigative or judicial action, etc. Thus, the purpose of criminal proceedings and its principles are defined in Chapter. 2 Code of Criminal Procedure. The powers of the bodies conducting legal proceedings are indicated, for example, in Art. Art. 29, 37 - 41 Code of Criminal Procedure.
The rights of citizens - participants in criminal proceedings on the part of the prosecution in Art. Art. 42, 43 Code of Criminal Procedure, on the part of the defense in Art. Art. 46, 47 Code of Criminal Procedure. In the new Code of Criminal Procedure, the procedural position of participants in criminal proceedings is regulated by establishing what they “have the right” and what they “don’t have the right” to do (see, for example, part 4 of article 47, part 3 of article 54, part 4 of art. 57 Code of Criminal Procedure).
The rules of law contain prohibitions. The prohibition is expressed, for example, in Art. 75 of the Code of Criminal Procedure “Inadmissible evidence”. In Part 4 of Art. 164 states that “during investigative actions, the use of violence, threats and other illegal measures is unacceptable...”.
In criminal proceedings, only those actions and decisions are permissible that are permitted by law, and in the manner established by law.
This method of legal regulation is called permissive. It is characteristic of the criminal process, since in this area of state activity possible actions affecting the constitutional rights and freedoms of man and citizen, their legitimate interests, and the rules of procedural law must clearly define the grounds, conditions, and procedure for such actions. Power relations are always regulated by indicating in the norm that an official is allowed to take this or that action by law, and therefore the second subject of the legal relationship is obliged to obey his demand. It is in the sense of permission to perform certain actions that the Code of Criminal Procedure uses the term “has the right” when it comes, for example, to detention (Article 91 of the Code of Criminal Procedure), the application of preventive measures (Article 97 of the Code of Criminal Procedure), etc., which does not mean an obligation in every case, use the granted right to detain or select a preventive measure.
Due to the peculiarities of the subject of legal regulation, most criminal procedural norms are binding, imperative, prescribing the commission of certain actions (for example, Articles 21, 148, Part 2 of Article 381 of the Code of Criminal Procedure).
At the same time, among the norms addressed to government bodies and officials conducting criminal proceedings, there are those that provide them with a choice of one or another method of action depending on a number of specific conditions of the case (for example, Art. 97, 98, 99 Code of Criminal Procedure).
The rules granting certain rights are addressed, for the most part, to citizens - participants in the process, on whose will it depends whether to use or not to use the granted right (for example, a suspect, accused have the right to file a petition, challenge, file complaints, etc. (Article 46). , 47 Code of Criminal Procedure)).
Depending on the type of procedural norms, their implementation is expressed either in the exercise of powers and rights, while observing prohibitions and restrictions, or in the performance of duties, or in the use of subjective rights, the performance of duties.
These forms of implementation of norms are characteristic of both the bodies conducting criminal proceedings and all persons participating in them. Often they completely exhaust the implementation of one or another procedural legal norm. For example, the use by the investigator of the right to examine the suspect and the latter’s fulfillment of the ensuing obligation constitute the implementation of the norm provided for in Art. 179 Code of Criminal Procedure.
Fulfillment by a person of the procedural duties of a witness means compliance with the requirements of the norm contained in Art. 56 Code of Criminal Procedure.
2. In the mechanism of criminal procedural regulation, to ensure the fulfillment of duties, measures of compulsory performance of duties are applied through the use of preventive coercion measures, restoration of violated rights (restorative sanctions) and penalties.
———————————
See: Vetrova G.N. Sanctions in judicial law. M., 1991.
In the case when a witness does not comply with the requirements of the law and does not appear without a good reason when summoned by an investigator or to court, the implementation of the legal norm occurs through coercion, i.e. the witness may be brought in (part 7 of article 56 of the Code of Criminal Procedure).
This sanction for violation of duty, imposed in criminal proceedings, is considered as a type of criminal procedural liability.
Coercion in criminal proceedings can also be used as a preventive measure when there is reason to believe that a person may commit an offense (for example, a preventive measure is chosen when there is reason to fear that the accused will hide from the investigation and trial or commit another crime).
3. One article of the law may contain two or more norms or, conversely, organic parts of one norm are sometimes located in several articles of the Code of Criminal Procedure. Legal regulations that essentially constitute a single norm of criminal procedural law may be contained in two or more sections of the Code of Criminal Procedure (for example, the rule on the right of a defense attorney to participate in the trial of a criminal case in courts of different instances, clause 9, part 1, article 53 of the Code of Criminal Procedure , in Article 248, Article 377 and others of the Code of Criminal Procedure).
———————————
See: Larin A.M. Criminal procedure: structure of law and structure of legislation. M., 1985.
4. To understand the norms of the Code of Criminal Procedure of the Russian Federation, it is important to turn to the basic concepts used in the Code of Criminal Procedure (Article 5 of the Code of Criminal Procedure), without understanding which it is impossible to disclose the content of a specific norm (for example, the concept of criminal prosecution makes it possible to disclose the content of the norm on the powers of the investigator).
When disclosing the content and application of the rules governing production at one or another stage of the process, it is necessary to refer to the “General Provisions” of the Code of Criminal Procedure (part one of the Code of Criminal Procedure).
5. A criminal procedural norm, like any legal norm, must contain instructions: 1) under what circumstances this legal norm must be followed; 2) who are the subjects of the relationship regulated by this legal norm, and what behavior is prescribed or permitted by this legal norm for each of the participants in the legal relationship; 3) what consequences entails failure to comply with the requirements of this norm.
The elements of the norm - hypothesis, disposition and sanction - are also inherent in the criminal procedural norm.
The hypothesis of the criminal procedural norm indicates the conditions under which one should (possibly) act in a certain way, for example, cases that allow the testimony of an absent witness to be read out in court (clauses 1, 2, part 1, article 286 of the Code of Criminal Procedure).
Disposition is the rule itself (for example, reading out testimony in court).
A criminal procedural sanction is a consequence of failure to comply with the requirements of a criminal procedural norm. The sanction is not a mandatory part of the article of criminal procedure law. The sanction may apply only to the norm set out in this article (Part 7 of Article 56 of the Code of Criminal Procedure), or one article of the law may set out a sanction for violation of a number of norms of the criminal procedure law (for example, by virtue of Article 379 of the Code of Criminal Procedure, the abolition or amendment sentence may occur due to violations of many norms set out in various articles of the criminal procedure law).
Criminal procedural sanctions are mainly of a legal restoration nature; they are aimed at eliminating committed violations of the law, restoring the rule of law (for example, by canceling an illegal and unfounded sentence - Articles 379, 384 - 387 of the Code of Criminal Procedure).
The types of criminal procedural sanctions also include the use of a more severe preventive measure in cases of violation of the obligations given by the accused (Article 110 of the Code of Criminal Procedure).
A sanction is also a monetary penalty, which can be imposed in cases of failure by participants in criminal proceedings to fulfill procedural duties, as well as their violation of order at a court hearing (Article 117 of the Code of Criminal Procedure).
The use of restorative or other criminal procedural sanctions does not limit the sanctions applied for violation of criminal procedural norms. Violation of the criminal procedural law by persons conducting proceedings in a case may entail disciplinary liability (for example, imposition of disciplinary liability on the investigator) or criminal liability (for example, liability of a witness for knowingly false testimony or a translator for knowingly false translation) (Art. Art. 301, 303 CC). Thus, the execution of the requirements of criminal procedural law is protected both by criminal procedural sanctions and by the norms of other branches of law.
102. Peculiarities of proceedings in court with the participation of jurors.
A court with the participation of jurors is formed and functions on a fundamentally different basis in comparison with the court of sheffen (a court with the participation of lay judges or a court consisting only of professional judges). Scheffen courts are always a single judicial panel, resolving all issues by voting by a simple majority of votes. In contrast to the above-mentioned courts, a jury trial consists of two panels. The first panel consists of 12 jurors who decide so-called questions of fact. The second panel is usually composed of a single professional judge who, taking into account the opinions of the prosecution and defense, resolves “questions of law” determined by the content of the verdict rendered by the jury.
Of course, trial by jury is not a panacea for all our law enforcement and judicial woes. In this regard, in the legal literature there are points of view of authors ranging from acute rejection to uncritical praise. Nevertheless, we have a positive attitude towards a jury trial because its existence provides the accused with an additional choice of the court hearing the criminal case and hope for social justice.
Statistical data testifies to the correctness of the path chosen by the legislator to improve criminal procedural legislation. Thus, since the revival of jury trials in modern Russia, about 20% of those accused of committing crimes within the jurisdiction of a regional court annually declare that their criminal cases will be considered by a jury. In addition, we must not lose sight of the fact that this form of criminal proceedings guarantees the constitutional right of citizens to participate in the administration of justice and, therefore, in the management, albeit indirectly, of the state.
Taking into account the above positions regarding the existence of a jury trial, we can propose the following definition of the special proceeding under consideration.
Proceedings in a jury trial are a special proceeding consisting of legal relations and the activities of all its participants with the determining role of jurors and a professional judge in establishing the presence or absence of factual and legal grounds for resolving, respectively, issues of fact and law in cases of crimes within the jurisdiction of the regional court.
The activities of the court with the participation of jurors are determined generally by the principles of the criminal process and the general conditions of the trial in the court of first instance. Of course, in this case, the general conditions for the functioning of a court with the participation of jurors acquire certain features.
General conditions for trial by jury are legislatively established organizational and legal provisions based on the principles of criminal proceedings that characterize the nature, essence and content of the activities of the court with the participation of jurors.
These, in accordance with the current criminal procedure law, include the following provisions.
1. The relationship between the specific rules for considering a criminal case in court with the participation of jurors and the general rules of criminal proceedings (Article 324 of the Code of Criminal Procedure). The consideration of a criminal case by a court with the participation of a jury is carried out in accordance with the general rules of criminal proceedings in Russia (general procedure) and taking into account the features provided for by the norms of Chapter. 42 Code of Criminal Procedure (Articles 324 - 353).
2. Compliance with the rules of jurisdiction of criminal cases in court with the participation of jurors (Article 30 of the Code of Criminal Procedure). The jury considers cases only of crimes listed in Part 3 of Art. 31 Code of Criminal Procedure, i.e. criminal cases within the jurisdiction of the regional court (clause 2, part 2, article 30 of the Code of Criminal Procedure), with the exception of acts that were defined by deputies as crimes of a terrorist nature. In this case, society is dealing with a clear deviation from the democratic and humanistic principles of the domestic criminal process. A jury trial consists of a judge and a panel of 12 jurors.
3. The mandatory presence of a petition from at least one of the accused to have his criminal case examined by a court with the participation of a jury (Article 30 of the Code of Criminal Procedure). This petition can be submitted by the accused at the time he finishes familiarizing himself with the materials of the criminal case, within three days from the date of receipt of a copy of the indictment, a preliminary hearing at the stage of assigning the criminal case to trial (bringing it to trial), appointed to resolve any other issues .
4. Mandatory participation of the defense lawyer and the public prosecutor in the consideration of a criminal case by a court with the participation of a jury (Articles 51 and 246 of the Code of Criminal Procedure). The participation of a defense attorney is mandatory in a case subject to trial by a court with the participation of a jury, from the moment at least one of the accused files a petition to have his criminal case considered by a court with the participation of a jury. If several persons are accused in a criminal case that can be tried by a jury, all of them must be provided with defense lawyers, regardless of what articles of the criminal law they are charged under. In criminal cases considered by the court with the participation of jurors, the participation in the trial of the prosecutor as a public prosecutor is mandatory on the basis of Art. 246 Code of Criminal Procedure. The mandatory participation of these persons is due to the fact that the subject of the proceedings in this case is a criminal legal dispute between the parties of the prosecution and the defense.
5. The appointment of a court hearing (arraignment) in court with the participation of a jury is carried out in the manner of a preliminary hearing, characteristic of traditional criminal proceedings, taking into account the requirements of Art. 325 Code of Criminal Procedure. These requirements boil down to the following:
1) a criminal case in which several defendants are involved is considered by a court with the participation of jurors in relation to all defendants, if at least one of them submits a petition for the case to be considered by a jury in this composition. In this case, the file must contain a reasoned decision of the investigator on the impossibility of separating the criminal case against other accused into separate proceedings. In the absence of such a resolution from the investigator, the case must be returned to the prosecutor from the stage of scheduling a court hearing (from the moment of the preliminary hearing) to eliminate the violation of the procedural law (clause 2, part 1, article 236 of the Code of Criminal Procedure);
2) if the defendant has not stated or confirmed at the stage of bringing the accused to trial a petition for consideration of his case by a court with the participation of a jury, then this case is considered by another panel of the court in the manner established by Art. 30 Code of Criminal Procedure.
In the decision to appoint a case for trial by a jury, the judge in charge of the case must: a) determine the number of juror candidates to be summoned to court, of which there must be at least 20; b) indicate whether the trial will be held open, closed, in whole or in part. In the latter case, the judge must determine what part of the trial will be held in camera.
The judge's order ordering a trial by jury is final. The defendant's subsequent refusal to undergo a jury trial will not be accepted. A copy of the judge's decision to appoint a criminal case to be heard by a jury is given to the parties upon their request.
After a trial has been scheduled by the court with the participation of a jury, preparation for the trial begins, which differs in significant features. These actions relate primarily to the stage of scheduling a trial.
By order of the presiding judge, the secretary of the court session or an assistant judge selects candidates for jurors from the general and reserve lists in the court by random sampling. The general list includes all citizens of a constituent entity of the Russian Federation, and the reserve list includes citizens living in a regional, regional or other center of a constituent entity of the Russian Federation. Random sampling is carried out using a special computer program. The specified persons (secretary or assistant) conduct an initial check of the presence of circumstances preventing the participation of persons as jurors in the consideration of a criminal case. In this case, the same person cannot participate in court hearings as a juror more than once during the year.
The procedure for compiling lists of candidates for jurors in the cities of Moscow and St. Petersburg has certain features. According to Art. 5 of the Federal Law of August 20, 2004 N 113-FZ “On jurors of federal courts of general jurisdiction in the Russian Federation” in these cities the specified lists can be compiled:
1) the highest executive body of state power;
2) another executive body of state power authorized to do so;
3) the executive and administrative body of intra-city municipalities, if this is provided for by the laws of the cities of Moscow and St. Petersburg.
The general and reserve lists of juror candidates, changes and additions to them are subject to publication in the media. In this case, publications must contain indications only of last names, first names and patronymics.
Upon completion of the selection of juror candidates to participate in a criminal case, the court secretary or assistant judge draws up a preliminary list indicating their surnames, first names, patronymics and home addresses, which is signed by the court secretary or assistant judge who compiled this list. The names of candidates for jurors are included in the preliminary list in the order in which the random selection took place. Candidates included in the preliminary list for jurors are given notices indicating the date and time of arrival in court no later than seven days before the start of the trial.
Upon oral or written application of juror candidates, the presiding judge may exempt from jury duty:
1) persons over 60 years of age;
2) women who have a child under three years of age;
3) persons who, due to religious beliefs, consider it impossible for themselves to participate in the administration of justice;
4) persons whose distraction from the performance of official duties could cause significant harm to public or state interests;
5) other persons who have valid reasons for not participating in the trial (Article 326 of the Code of Criminal Procedure).
