1. Charges must be brought against a person no later than 3 days from the date of the decision to charge him as an accused in the presence of a defense lawyer, if he is involved in a criminal case.
2. The investigator notifies the accused of the day of arraignment and at the same time explains to him the right to independently invite a defense attorney or to petition for the investigator to ensure the participation of a defense attorney in the manner established by Article 50 of this Code.
3. The accused, who is in custody, is notified of the day of arraignment through the administration of the place of detention.
4. The accused, who is at large, is notified of the day of arraignment in the manner prescribed by Article 188 of this Code.
5. The investigator, having verified the identity of the accused, announces to him and his defense attorney, if he is participating in the criminal case, a resolution to bring this person as an accused. At the same time, the investigator explains to the accused the essence of the charge, as well as his rights provided for in Article 47 of this Code, which is certified by the signatures of the accused, his defense attorney and the investigator on the resolution indicating the date and time of filing the charge.
6. If the accused or his defense attorney fails to appear at the time appointed by the investigator, as well as in the case where the location of the accused is not established, charges are brought on the day of the actual appearance of the accused or on the day of his arrest, provided that the investigator ensures the participation of the defense attorney.
7. If the accused refuses to sign the resolution, the investigator makes a corresponding entry in it.
8. The investigator hands the accused and his defense attorney a copy of the decision to charge this person as an accused.
9. A copy of the decision to bring the person as an accused is sent to the prosecutor.
Commentary on Article 172 of the Code of Criminal Procedure of the Russian Federation
1. Under the term “accusation” in part one of com. Article refers to the decision to bring the accused as a written expression of the accusation.
2. If a defense attorney has not previously participated in the case, then before bringing charges against the accused, his right to the assistance of a defense attorney is explained and ensured. See com. to Art. 50.
3. According to the literal interpretation of part 2 - 4 com. article, the accused is not simply summoned, but notified of the day of arraignment. This means: a) calling in advance so that the accused can prepare, including receiving the assistance of a defense lawyer; b) the need to notify the accused even when he is not summoned anywhere. For example, an accused person held in a pre-trial detention center must be notified in advance of the day on which he will be charged in the same pre-trial detention center.
4. Charges are brought after 3 days, also if the accused or his defense attorney fails to appear; the impossibility of calling the accused if his whereabouts are unknown; short-term illness of the accused; placing the accused in a psychiatric hospital for a forensic psychiatric examination (Part 3 of Article 203); natural disaster, etc.
5. If the decision to bring the accused as an accused remains not presented to the accused, then the case cannot be sent to court (especially considered in court in the absence of the defendant under Parts 4 and 5 of Article 247 of the Code of Criminal Procedure), and if the specified violations in the trial, the defendant, in our opinion, is subject to acquittal under paragraph 2 of part 2 of Art. 302 (non-involvement in the commission of a crime) due to the lack of proof of his guilt in the manner prescribed by law (Part 1 of Article 14). It is more difficult to resolve the issue of the legal consequences of the investigator missing the 3-day deadline for filing charges from the date of the decision to charge the person as an accused (in the absence of the circumstances specified in the previous paragraph of this commentary). It seems that if the specified period is violated slightly (within a few days), then the procedural consequences of such a violation, if the investigator is guilty, may be his removal from further conduct of the case (clause 6, part 1, article 39 of the Code of Criminal Procedure) and/or application to investigator of disciplinary measures. However, when the established deadline is violated significantly (for example, a decision to charge a person as an accused was presented to him only along with the materials of the completed investigation) or the accused was kept in custody at that time, there is a significant violation of the accused’s right to defense, and the case must be returned by the prosecutor to the investigator to conduct an additional investigation (clause 2, part 1, article 221) starting from the moment the charge was filed. At the same time, the results of all investigative actions that were previously carried out with the participation of such an “accused” must be declared unacceptable (parts 2, 3 of Article 88). The issuance of a new (but identical to the first) decision to bring the defendant as an accused in such cases is unlawful (has no legal force), because according to Part 1 of Art. 175 it can be accepted only if there are grounds for changing the previously brought charge.
6. Illegal actions (inaction) when bringing charges (but not related to the unfoundedness of the charges themselves) within the meaning of the Constitutional Court of the Russian Federation of 07/02/2009 N 1009-О-О and from 12/17/2009 N 1636-О-О can be appealed to the court in accordance with Art. 125 Code of Criminal Procedure.
7. Due to the legal position of the Constitutional Court of the Russian Federation, the investigator is obliged to bring to the attention of the victim not only the very fact of bringing charges against a specific person, but also the content of the decision to bring him as an accused <1>.
——————————— <1> See: Determination of the Constitutional Court of the Russian Federation of July 11, 2006 N 300-O on the complaint of citizen A.I. Andreev for violation of his constitutional rights by paragraphs 1, 5, 11, 12 and 20 of the second part of Article 42, the second part of Article 163, the eighth part of Article 172 and the second part of Article 198 of the Code of Criminal Procedure of the Russian Federation // Collection of Legislation of the Russian Federation. 2006. N 47. Art. 4940.
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Arraignment
- part 1 172 of the Code of Criminal Procedure
charges are brought within 3 days after the decision
Notification of the accused
- Part 2 172 Code of Criminal Procedure
notice of the date of arraignment and the right to defense counsel
- Part 3 172 Code of Criminal Procedure
notification through the administration of the pre-trial detention center
- Part 4 172 Code of Criminal Procedure
the person at large is notified in accordance with Article
188 of the Code of Criminal Procedure
Procedure for bringing charges
- Part 5 172 Code of Criminal Procedure
the accused is given a decision to commit
- Part 5 172 Code of Criminal Procedure
the accused is informed of the substance of the charge brought against him
- Part 6 172 Code of Criminal Procedure
in case of failure to appear, charges are filed on the day of appearance
- Part 7 172 Code of Criminal Procedure
If a person refuses to sign a resolution, a record of this is made
Copies
- Part 8 172 Code of Criminal Procedure
a copy of the decision is given to the accused and the defense attorney
- part 9 172 of the Code of Criminal Procedure
a copy of the decision is sent to the prosecutor
Article 172 of the Code of Criminal Procedure. Procedure for bringing charges
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- part 1 100 of the Code of Criminal Procedure
the suspect is charged within 10 days
- Part 3 203 Code of Criminal Procedure
the period is interrupted for a psychiatric examination
1) Charges must be brought against a person no later than 3 days from the date of the decision to charge him as an accused in the presence of a defense lawyer, if he is involved in a criminal case.
2) The investigator notifies the accused about the day of arraignment and at the same time explains to him the right:
- invite a defense attorney yourself;
- or apply for the participation of a defense attorney by the investigator in the manner prescribed by Article 50 of the Code of Criminal Procedure.
3) The accused in custody is notified of the day of arraignment through the administration
of the place of detention.
4) The accused, who is at large, is notified of the day of arraignment in the manner prescribed by 188 of the Code of Criminal Procedure.
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- Part 2 171 Code of Criminal Procedure
contents of the decision to bring as an accused
5) The investigator, having verified the identity of the accused, announces to him and his defense attorney, if he is participating in the criminal case, a resolution to implicate this person as an accused.
In this case, the investigator explains to the accused:
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— clause 4, part 2 171 Code of Criminal Procedure
description of the crime
- clause 5 part 2 171 Code of Criminal Procedure
article of the Criminal Code
-
the essence of the accusation;
- as well as his rights provided for in Article 47 of the Code of Criminal Procedure, which is certified by the signatures of the accused, his defense attorney and the investigator on the resolution indicating the date and time of the presentation of charges.
6) If the accused or his defense attorney fails to appear at the time appointed by the investigator, as well as in the case where the location of the accused is not established, the charge is brought on the day of the actual appearance of the accused or on the day of his arrest, provided that the investigator ensures the participation of the defense attorney.
7) If the accused refuses to sign the resolution, the investigator makes a corresponding entry in it.
The investigator hands the accused and his defense attorney a copy of the decision to charge this person as an accused.
9) A copy of the decision to bring the person as an accused is sent to the prosecutor.
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Procedure for bringing charges
Arraignment is an activity to familiarize the accused with the decision to charge him as an accused. The procedure for bringing charges is regulated in Art. 172 of the Code of Criminal Procedure of the Russian Federation. This procedure includes the following procedural actions:[12]
· notifying the accused of the day of arraignment;
· explaining to him the right to independently invite a defense attorney or to petition for the investigator to ensure the participation of a defense attorney;
· identification of the accused;
· announcement of the decision to charge as an accused and explanation of the substance of the charges;
· explaining to the accused his rights;
· handing over to the accused and his defense lawyer a copy of the decision to bring him in as an accused;
· sending a copy of the decision to bring the person as an accused to the prosecutor.
The investigator notifies the accused, who is at large, about the day of arraignment by sending him a summons (Part 4 of Article 172 of the Code of Criminal Procedure of the Russian Federation).[13] It indicates who is summoned as an accused, to whom and at what address, the date and time of appearance, as well as the consequences of failure to appear without good reason. According to the rules of Art. 188 of the Code of Criminal Procedure of the Russian Federation, which regulates the general procedure for summoning, a summons is handed to the accused against a signature or transmitted via means of communication. If the accused is temporarily absent, the summons is given to an adult member of his family or transferred to the administration at his place of work or, on behalf of the investigator, to other persons and organizations who are obliged to hand it over to the accused. Exceptions to the general rule of summoning the accused are provided for:[14]
· minor accused who are summoned through legal representatives or through the administration of a specialized institution for minors, if they are kept there (Article 424 of the Code of Criminal Procedure of the Russian Federation);
· accused military personnel who are summoned through the command of a military unit (part 5 of article 188 of the Code of Criminal Procedure of the Russian Federation);
· accused persons in custody who are summoned through the administration of the place of detention (Part 3 of Article 172 of the Code of Criminal Procedure of the Russian Federation).
The summons to appear explains the right of the accused to invite or request a defense attorney.
Before announcing to the accused and his defense attorney the decision to implicate him as an accused, the investigator is obliged to verify his identity. To do this, perform the following actions:
· verification of passport and other identification documents;
· the investigator may ask questions such as year and place of residence, etc.
The purpose of this action is to make sure that this particular citizen, in respect of whom a decision was made to charge him as an accused, appeared when called. It is also necessary to verify the powers of the defense attorney (availability of a lawyer’s certificate and a warrant).
In order to ensure the rights and legitimate interests of the accused who does not speak the language of criminal proceedings, the investigator invites an interpreter in the manner prescribed by law (Article 59 of the Code of Criminal Procedure of the Russian Federation), who translates the decision to bring him as an accused.
Then the investigator announces to the accused and his defense attorney the decision to charge the person as an accused and explains the essence of the charge. The law allows two ways to announce a resolution:
1) personal reading by the accused of the text of the resolution;
2) reading the text of the resolution out loud by the investigator.
At the same time, the investigator explains to the accused his rights under Art. 47 of the Code of Criminal Procedure of the Russian Federation, which is certified by the signatures of the accused, his defense attorney and the investigator on the resolution indicating the date and time of the presentation of charges. In this case, it is necessary to explain to the accused that his signature does not indicate an admission of guilt in committing a crime. But if the accused refuses to sign the resolution, the investigator makes a corresponding entry in it. The procedure for bringing charges is completed by handing over to the accused and his defense attorney a copy of the decision to bring him or her as an accused. A copy of the decision is also sent to the prosecutor, indicating the date it was sent.
As a general rule, the filing of charges must take place no later than 3 days from the date of the decision to bring the person as an accused (Part 1 of Article 172 of the Code of Criminal Procedure of the Russian Federation). An exception to this rule occurs when the accused or his defense attorney fails to appear within the time appointed by the investigator, or the location of the accused is not established, if he has disappeared or for other reasons does not appear before the investigator. In these cases, the charge will be brought on the day of the actual appearance of the accused or on the day of his arrest, subject to the investigator providing a defense attorney (Part 6 of Article 172 of the Code of Criminal Procedure of the Russian Federation).
Involvement as an accused should be carried out as soon as sufficient evidence for this is collected. Involvement as an accused immediately before the end of the preliminary investigation (inquiry) does not allow for a comprehensive verification of the accused’s explanations. In these cases, he is also deprived of the opportunity to timely and fully use procedural rights.
Before charges are filed, a person may be interrogated as a suspect, but if this does not happen, then the person is interrogated (after charges are filed) immediately as an accused.
Arraignment is an activity to familiarize the accused with the decision to charge him as an accused. The procedure for bringing charges is regulated in Art. 172 of the Code of Criminal Procedure of the Russian Federation. This procedure includes the following procedural actions:[12]
· notifying the accused of the day of arraignment;
· explaining to him the right to independently invite a defense attorney or to petition for the investigator to ensure the participation of a defense attorney;
· identification of the accused;
· announcement of the decision to charge as an accused and explanation of the substance of the charges;
· explaining to the accused his rights;
· handing over to the accused and his defense lawyer a copy of the decision to bring him in as an accused;
· sending a copy of the decision to bring the person as an accused to the prosecutor.
The investigator notifies the accused, who is at large, about the day of arraignment by sending him a summons (Part 4 of Article 172 of the Code of Criminal Procedure of the Russian Federation).[13] It indicates who is summoned as an accused, to whom and at what address, the date and time of appearance, as well as the consequences of failure to appear without good reason. According to the rules of Art. 188 of the Code of Criminal Procedure of the Russian Federation, which regulates the general procedure for summoning, a summons is handed to the accused against a signature or transmitted via means of communication. If the accused is temporarily absent, the summons is given to an adult member of his family or transferred to the administration at his place of work or, on behalf of the investigator, to other persons and organizations who are obliged to hand it over to the accused. Exceptions to the general rule of summoning the accused are provided for:[14]
· minor accused who are summoned through legal representatives or through the administration of a specialized institution for minors, if they are kept there (Article 424 of the Code of Criminal Procedure of the Russian Federation);
· accused military personnel who are summoned through the command of a military unit (part 5 of article 188 of the Code of Criminal Procedure of the Russian Federation);
· accused persons in custody who are summoned through the administration of the place of detention (Part 3 of Article 172 of the Code of Criminal Procedure of the Russian Federation).
The summons to appear explains the right of the accused to invite or request a defense attorney.
Before announcing to the accused and his defense attorney the decision to implicate him as an accused, the investigator is obliged to verify his identity. To do this, perform the following actions:
· verification of passport and other identification documents;
· the investigator may ask questions such as year and place of residence, etc.
The purpose of this action is to make sure that this particular citizen, in respect of whom a decision was made to charge him as an accused, appeared when called. It is also necessary to verify the powers of the defense attorney (availability of a lawyer’s certificate and a warrant).
In order to ensure the rights and legitimate interests of the accused who does not speak the language of criminal proceedings, the investigator invites an interpreter in the manner prescribed by law (Article 59 of the Code of Criminal Procedure of the Russian Federation), who translates the decision to bring him as an accused.
Then the investigator announces to the accused and his defense attorney the decision to charge the person as an accused and explains the essence of the charge. The law allows two ways to announce a resolution:
1) personal reading by the accused of the text of the resolution;
2) reading the text of the resolution out loud by the investigator.
At the same time, the investigator explains to the accused his rights under Art. 47 of the Code of Criminal Procedure of the Russian Federation, which is certified by the signatures of the accused, his defense attorney and the investigator on the resolution indicating the date and time of the presentation of charges. In this case, it is necessary to explain to the accused that his signature does not indicate an admission of guilt in committing a crime. But if the accused refuses to sign the resolution, the investigator makes a corresponding entry in it. The procedure for bringing charges is completed by handing over to the accused and his defense attorney a copy of the decision to bring him or her as an accused. A copy of the decision is also sent to the prosecutor, indicating the date it was sent.
As a general rule, the filing of charges must take place no later than 3 days from the date of the decision to bring the person as an accused (Part 1 of Article 172 of the Code of Criminal Procedure of the Russian Federation). An exception to this rule occurs when the accused or his defense attorney fails to appear within the time appointed by the investigator, or the location of the accused is not established, if he has disappeared or for other reasons does not appear before the investigator. In these cases, the charge will be brought on the day of the actual appearance of the accused or on the day of his arrest, subject to the investigator providing a defense attorney (Part 6 of Article 172 of the Code of Criminal Procedure of the Russian Federation).
Involvement as an accused should be carried out as soon as sufficient evidence for this is collected. Involvement as an accused immediately before the end of the preliminary investigation (inquiry) does not allow for a comprehensive verification of the accused’s explanations. In these cases, he is also deprived of the opportunity to timely and fully use procedural rights.
Before charges are filed, a person may be interrogated as a suspect, but if this does not happen, then the person is interrogated (after charges are filed) immediately as an accused.
Implementation by the court of the institution of absentee proceedings in criminal proceedings
Bibliographic description:
Alekseenko, S. A. Implementation by the court of the institution of absentee proceedings in criminal proceedings / S. A. Alekseenko. — Text: immediate // Legal sciences: problems and prospects: materials of the VI International. scientific conf. (Kazan, October 2022). - Kazan: Buk, 2022. - pp. 68-71. — URL: https://moluch.ru/conf/law/archive/281/12954/ (access date: 03/03/2022).
Criminal procedural legislation does not contain the concept of “proceedings in absentia” and does not establish this institution, which provides for the consideration of criminal cases in the absence of the defendant, as a separate proceeding.
Thus, in the scientific literature, Tikhomirova L.V., Tikhomirov M.Yu. give a definition: “In criminal proceedings, proceedings in absentia mean consideration by the court of a case in the absence of the defendant” [1, p. 334].
The defendant’s desire to hide from court, one might say, is his desire to defend himself using illegal methods and means. It is with the aim of countering these illegal methods, the defendant’s evasion of appearing in court, that the legislator has provided for a procedure for considering a criminal case in the absence of the defendant - called proceedings in absentia.
It is important to note that individual issues relating to the consideration of a case in the absence of the defendant, appealing a verdict in absentia or a court ruling, as well as the review of a criminal case in the usual manner are not allocated to a separate block of the Code of Criminal Procedure of the Russian Federation, but are scattered across a number of norms of the code.
The institution of absentee proceedings is not new to Russian criminal procedure legislation. Thus, Chapter Five of the Charter of Criminal Proceedings of 1864 “On sentencing in absentia” states: “If the accused of an offense for which the punishment is not more than arrest, does not appear and does not send an attorney by the appointed time, or even though he sends an attorney, but in such a case , for which he himself was summoned in person, then the magistrate renders a verdict in absentia.”, and also this proceeding was conducted in the Trial Chamber when considering the case in the manner of appeal and cassation. In all other cases, the case should have been postponed and at the same time, measures should have been taken to ensure that the defendant appeared at the next trial to consider the case.
According to Part 1 of Article 247 of the Code of Criminal Procedure of the Russian Federation, the mandatory participation of the defendant in the hearing of the trial court is a general rule of judicial proceedings. This ensures the defendant’s right to personal participation in the trial, the right to express his attitude to the charges brought, to object to the charges, as well as a full and comprehensive examination of the evidence, the ultimate goal of which is a legal and reasonable verdict.
The grounds for considering a criminal case in absentia are enshrined in Article 247 of the Code of Criminal Procedure of the Russian Federation and are exhaustive and exclusive.
In this Code of Criminal Procedure of the Russian Federation, it can be said that two procedures for absentee proceedings are regulated. So, in part 4 of Art. 247 of the Code of Criminal Procedure of the Russian Federation provides for the following conditions: the crime must be of minor or moderate gravity, the need for the defendant to petition for consideration of this criminal case in his absence. Along with this, part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, names the following conditions: the crime must be grave or especially grave, the need for the defendant to be outside the territory of the Russian Federation and (or) evading appearance in court, if this person has not been brought to justice in the territory of a foreign state in this criminal case .
A number of authors, for example, Maslikova N.V., Kogamov M.Ch., Eralina L.A., classify the procedure for considering a criminal case in absentia as a simplified proceeding; Rustamov Kh.U, Tukiev A.S., on the contrary, consider it a proceeding with a more complex procedural form compared to the usual order [2, 3, 4, p. 304, 5, p. 21].
So, one of the main conditions for conducting proceedings in absentia is the absence of the defendant. According to Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, an absent defendant is a person who is located outside the territory of the Russian Federation and who evades appearing in court. It is impossible to bring this person to court, although the location is known.
The next basis for declaring a defendant absent is his failure to appear in court, although the defendant may be located both on the territory of Russia and also abroad. His whereabouts are unknown. Let's give an example: A. was put on the wanted list by a decision of the Sovetsky District Court of Krasnodar. It was established that A. fled from court, his whereabouts are unknown. A search case No. 5324123 has been opened against A. In order to establish the whereabouts of A., the Karasun District Police Department opened a duplicate search case for the district. The operational search activities carried out to establish the whereabouts of A. did not achieve any positive results. Taking into account the public danger of the crime with which A. is accused, taking into account the fact that the rights of the victim to judicial protection from criminal attacks have been violated for a long time, the court recognizes as exceptional circumstances allowing the criminal case on charges of A. to be considered in his absence, in the order Part 5 Art. 247 Code of Criminal Procedure of the Russian Federation.
The location of the defendant outside the Russian Federation does not in all cases determine the consideration of the criminal case in absentia. So, for example, the defendant may be on a business trip, on vacation, or for other reasons.
It should be noted that for a positive resolution of the issue of considering a criminal case in the absence of a defendant who is abroad, it does not matter whether he is a citizen of the Russian Federation, a foreign citizen or a stateless person.
One of the important conditions is the exclusivity of the case. First of all, the law does not explain what should be understood by exceptional cases of criminal proceedings in the absence of the defendant.
According to some authors, the uncertainty of the “exceptional” criterion indicates the impossibility of considering a case involving the defendant and the associated prospect of loss of evidence, death of witnesses, victims, non-extradition of the defendant to a foreign state, and so on [6, p. 16].
Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 2009 No. 28 “On the application by courts of the norms of criminal procedural legislation governing the preparation of a criminal case for trial”
under exceptional cases, it provides: a special social danger of the crime of which the defendant is accused, the need to compensate the victim for significant harm caused by the crime, cases where the search for the accused did not produce positive results, the impossibility of extraditing the accused.
The reason for considering a criminal case in absentia is the corresponding petition filed by a party to the case. However, the law does not indicate which party has the right to file such a petition. It is important to note that the court, on its own initiative, cannot make such a decision to consider the case in absentia.
When filing a petition, the party must present evidence that confirms the existence of conditions for trial in absentia. In addition, the party must justify the exceptionality of the case for consideration of the case in absentia proceedings. If the request to consider the case in the absence of the defendant is granted, the court issues an appropriate ruling or resolution.
Thus, an example is the proceedings in the Dinsky District Court, upon the fact that a person committed a crime under Part 3 of Art. 159 of the Criminal Code of the Russian Federation. Due to the fact that Ts., accused of committing a serious crime, violated the previously chosen preventive measure in the form of a written undertaking not to leave the place and proper behavior and fled from court, by a court order dated October 28, 2016, the criminal case against the defendant was suspended, Ts. was put on the wanted list and a preventive measure in the form of detention was chosen against him. At the preliminary court hearing, the state prosecutor filed a petition to conduct a trial in a criminal case against Ts., accused of committing a serious crime, in the absence of the defendant on the basis of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, in connection with his failure to appear in court. The defendant's defense attorney and the victim did not object to the trial in the defendant's absence at the preliminary court hearing. Based on the above, the court considers it necessary to schedule a court hearing in the absence of the defendant on the basis of Part 5 of Art. 247 of the Code of Criminal Procedure of the Russian Federation, in connection with his failure to appear in court. Guided by Art. Art. 231, 236 of the Code of Criminal Procedure of the Russian Federation, the judge decided to schedule an open court hearing in the criminal case against Ts., on the basis of Part 5 of Art. 247 Code of Criminal Procedure of the Russian Federation.
It is important to note that such a petition, for example, by the defense, will contradict the requirements of the Federal Law of May 31, 2002 No. 63-FZ “On Advocacy and the Bar in Russia”, according to which a lawyer is obliged to honestly, reasonably and conscientiously defend the rights and legitimate interests of the principal by all means not prohibited by the legislation of the Russian Federation. This leads to a limitation of the rights of the defendant, since consideration of the case according to the rules of proceedings in absentia provides only for a guilty verdict.
Consideration of the case on the merits and trial in absentia are carried out in accordance with the general procedure for conducting a court hearing. The procedure for considering a criminal case is similar to an ordinary case, with the exception of the opportunity for the defendant to personally exercise his rights as a participant in the process. All rights of the defendant are exercised by his defense attorney.
In the case of consideration of criminal cases of grave and especially grave crimes, the participation of a defense lawyer in the criminal case is mandatory. Whereas, consideration of a case in absentia proceedings in criminal cases of crimes of minor or medium gravity, carried out at the request of the defendant, does not provide for the mandatory participation of a defense lawyer in the process.
When considering a case in the absence of the defendant, his testimony given during the preliminary investigation, at the request of the parties, can be read out on the basis of clause 3 of part 1 of Art. 276 Code of Criminal Procedure of the Russian Federation.
If issues arise that cannot be resolved without the defendant, preventing the adoption of a lawful and reasoned decision, the court, on its own initiative, or at the request of the prosecutor or lawyer, must suspend the consideration of the case. And if the defendant is found, the case will be considered in the usual manner.
In Part 7 of Art. 247 of the Code of Criminal Procedure of the Russian Federation establishes that if the circumstances specified in Part 5 of the said article are eliminated, the sentence or ruling of the court passed in absentia, at the request of the convicted person or his defense attorney, is canceled in the manner of supervision, after which the proceedings are conducted in the usual manner.
It follows from these provisions of the law that if a person convicted in absentia appears in court, the court sentence that has entered into legal force is canceled.
Thus, O. V. Khitrova believes: “It is completely unclear why the legislator grants such privileges to a person who did not take advantage of his subjective right and at the same time violated the procedural obligation to appear in court [7, p. 155].
It is impossible to agree with this statement, since the defendant did not fully realize his rights during the consideration of the case, for example: to participate in criminal proceedings, object to the charges, testify, present evidence, file motions and challenges, appeal decisions ships, etc.
The procedure for filing a petition to cancel a sentence passed in absentia to a supervisory court is defined in Chapter 48 of the Code of Criminal Procedure of the Russian Federation. The court, based on the results of consideration of the petition of the supervisory authority, has the right to cancel the verdict and transfer the criminal case to the court of first instance for a new trial in the general manner. When considering this petition, the supervisory court does not check the court decision for legality and validity. The only and sufficient condition for canceling a sentence in absentia, in the presence of a submitted petition, is to establish the location of the convicted person.
The entire mechanism for reviewing criminal cases by way of supervision is intended solely to correct judicial errors contained in court decisions that have entered into legal force, in the interests of protecting the rights of convicted persons [8, p. 303].
The trial of criminal cases in absentia raises many questions, both theoretical and practical, but still remains an almost unexplored scientific problem. It finds both opponents who demand an extreme narrowing of the grounds for conducting criminal proceedings in the absence of the defendant, and supporters who are convinced that due to the growing number of minor crimes and wanted persons, this model of legal proceedings will be increasingly in demand [9, p.41 –42].
Based on all of the above, we can say that this legal institution needs to be improved.
It is necessary to make the following changes: to allocate the institution of proceedings in absentia to a separate chapter of the Code of Criminal Procedure of the Russian Federation, to establish the mandatory participation of a defense lawyer in all cases of consideration of a criminal case in absentia, to exclude the excessive simplification of proceedings conducted in absentia, to include mandatory interrogation of witnesses, to ensure the opportunity for a convicted or acquitted person to familiarize himself with the verdict in a timely manner its absence by a court verdict, which will serve as the implementation of the right to appeal, the introduction of a clear procedure and grounds for canceling the sentence (resolution) passed following the results of a court hearing in absentia, in the event that the convicted or acquitted person appears in court and (or) presents evidence of valid reasons for his absence.
Such changes will help increase the degree of guarantee of everyone’s right to judicial protection, eliminate contradictions and inconsistency between different types of judicial proceedings.
Literature:
- Tikhomirova L. V., Tikhomirov M. Yu. Legal encyclopedia. - M., 2006.
- Maslikova N.V. Consideration of the case in absentia under the Code of Criminal Procedure of the Russian Federation as amended by the Federal Law of July 27, 2006. Access mode: https://law.edu.ru/doc/document.asp?docID=1251834, free.
- Kogamov M. Ch., Eralina L. A. Sentence in absentia: history of the issue and needs of the practice of criminal proceedings. Access mode: https://www.supcourt.kz/site/supcourt.nsf/Documents/BD60E8F0068EEAD1C6256D8300288A58?OpenDocument, free.
- Rustamov Kh. U. Criminal process. Forms: Textbook. allowance. M.: Law and Law; UNITY, 1998.
- Tukiev A. S. Problems of the procedural form of criminal proceedings in absentia: Author's abstract. dis.cand. legal Sci. Karaganda. 2005.
- Kukushkin P., Kurchenko V. Absentee proceedings // Legality. 2007. No. 7.
- Khitrova O.V. Trial in the absence of the defendant // Bulletin of OSU. 2006. N 9. Appendix.
- Scientific and practical manual on the application of the Code of Criminal Procedure of the Russian Federation. / Ed. V. M. Lebedeva. M., 2004.
- Rustamov Kh. Justice in absentia: reality and prospects // Russian justice. 1997. N 8.
Key terms
(automatically generated)
: Russian Federation, proceedings in absentia, absence of the defendant, consideration of the case, court, trial, case, Russian Federation, criminal case, verdict in absentia.
