In practice, there are enough examples when the basis of refusal is the motive that such a type of Code of Criminal Procedure does not contain. Love, the request of the process participants should be considered, but the courts do not always comply with this rule. The investigation of criminal cases is accompanied by a number of procedures, among whom a petition application is included in accordance with ch. 15 Code of Criminal Procedure. The law guarantees citizens the right to protect all the available ways. Requirement direction official person, about committing or abstaining from procedural action - one of the methods of impact on the course of the process. This chapter contains the rules governing the reception, filing, making decisions at all stages of the investigation.
The circle of citizens endowed with the right is defined by Article 119 of the Code of Criminal Procedure and the norms defining the rules of other participants.
These include:
- accused;
- protection lawyer;
- expert;
- civil plaintiff, defendant;
- victim;
- anyone whose interests are affected by the crime.
The document is attached to the materials, the oral application is reflected in the Protocol.
The witness by the procedural possibility is endowed in accordance with paragraph 5 of Part 4 of Art. 56 in the aggregate of the art. 119 CPC. This is stated in the definition of the Constitutional Court of December 16, 2008 No. 1036-O-P.
The investigator, the investigator for committing necifications should get a decision judicial authority.
These include:
- Extending the validity period of a crime report.
- Determination of preventive measure.
- Search, searches for documents and things.
- Overlaying property and correspondence.
- Recording and listening to telephone, other negotiations.
The investigation person has no right to independently specified in paragraphs 4-9, 11 of Part 2 of Article 29, Art. 165, Part 3 Art. 108 Code of Criminal Procedure.
Protection lawyers prefer to compile petitions in writing. This allows you to monitor the actions of authorized persons, avoid unlawful solutions, incorrect conclusions.
What requirements are possible:
- carrying out various kinds of expertise;
- liberation from imprisonment;
- closing the case due to the lack of composition or event of a crime;
- recognition of evidence is invalid;
- on the release of the detainee;
- participation of law-headed in investigative activities;
- interrogation of witnesses;
- promotion to the materials of evidence.
The range of issues solved through the petitions, the law is unlimited. The participant of the process has the right to send requirements at any time.
Accounting and registration are conducted by the investigator, the investigator in accordance with Instruction No. 707 of September 12, 2013. The performers are responsible for complying with the requirements of existing regulatory acts.
Legislation has established a time frame. An authorized person is given three days for the design of the ruling and visiting the supervisory leadership. After that, the decision must be awarded to the stakeholder.
The final solution to the profound of evidence, the production of other actions by the prosecution. Protection has the right to appeal the illegal action (inaction) of an authorized person in a part that is of fundamental importance for business.
Part 1 of Article 271 of the Code of Criminal Procedure of the Russian Federation contains a list of requirements that may be declared interested persons in the meeting.
You can ask:
This list is not exhaustive, other petitions can be stated by participants in the process.
Legislation allows you to submit a petition as much as necessary for compliance legal rights Participants. However, the presiding charges violate the law and resort to unacceptable methods for restricting the rights of the defendants, declare the consideration of the requirement simultaneously with the sentencing.
Article 256 of the Code of Criminal Procedure provides for the procedure for making decisions.
Part The second regulatory position contains a list of issues subject to consideration in the advice room:
Decision making is made at the discretion of the presiding party. Resolutions, the definitions are announced, the data are recorded in the minutes of the court session.
Lawyer N.I. Fedorov, acting in the interests of the defendant P.M. Ivanova, filed a requirement for clarifying him rights, which can be used to identify, establish truth. Such an unusual appeal was provoked by the court, which is limited to protecting the protection in the study of the case materials.
Namely, the court:
In fact, the chairman forced to keep silent defender and the defendant, depriving the possibilities of refuting the arguments of the prosecution.
Therefore, a re-estimate was filed with the following requirements:
- Does the lawyer have the right to the petitions and what provisions should be guided by its implementation.
- How the defense tactic is elected and should preliminarily consult with the court, whether additional permission is necessary for this.
- What rules of the law allow to limit the lawyer in providing evidence.
- Is it possible to re-state the requirements. If not, then what the law data is installed.
- Does the right defendant on a fair trial, in which it is expressed.
Failure to satisfy the petition was subsequently appealed. The appellate act canceled the decision, the revision of the case allowed to send the materials to the prosecutor.
The case described above is a job of a lawyer that provides competent client's protection from non-violent solutions. Legislation contains norms that allow to defend their version of the crime, provides participants to the right to legal procedure of legal proceedings.
Do not try to independently defend interests in the investigation of the criminal case, especially in the status of the suspect or the accused. Competition of the Parties implies equal in knowledge of the struggle for freedom and honest name in court and consequence. Establishment of justice, the correction of previous errors takes a lot of time, forces, financial resources.
The practicing lawyer in agreement will always speak on the client's side, will provide psychological assistance, it will help to collect evidence, appeals the illegal action of an official, explain the consequences of a particular action.
The pre-trial process will bring less trouble and trouble. Information and commentary of the actions received from the defender, fixation of all procedures, the claims of evidence, the correct complaint will allow confidently to navigate in what is happening.
The realities of life are such that the dominant right is always in the hands of the charges, the Code of Honor in the investigation of criminal cases exists only in words, so insignificantly little in the country of exclusive sentences.
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The text of Article 120 of the Code of Criminal Procedure in the new edition.
1. The petition may be declared at any time of production in a criminal case. A written petition is attached to a criminal case, oral - entered into the protocol of the investigative action or court session.
2. Deviation of the petition does not deprive the applicant of the right to reiterate a petition.
N 174-FZ, Code of Criminal Procedure.
Comment to Art. 120 Criminal Procedure Code of the Russian Federation
Comments on the OPC articles will help to deal with the nuances of criminal procedure law.
1. The petition may be declared by the interested person at any stage of production in a criminal case. Even expiration preliminary investigation It can not be the basis or a motive for refusing to accept and resolve the petition if it matters to the case. At the same time, in some cases the law limits the applicant with certain temporary borders for the application of the petition. Thus, the defendant has the right to declare a petition for the consideration of his business by a collegium of three judges only before the start of the court session (paragraph 3 of Part 2 of Article 30 of the Code of Criminal Procedure); The accused can declare a petition for appointing a punishment without a trial at the time of familiarization with the materials of the case (paragraph 1 of Part 2 of Art. 315); The civil plaintiff has the right to present a civil lawsuit after initiating a criminal case, but before the end judicial investigation (Part 2 of Art. 44 CPC).
2. The use of persons who belong to them by the right to statement by the petition is directly dependent on the knowledge of this right. Therefore, officials leading proceedings are required to promptly clarify the relevant participant about the presence of such rights and ensure the necessary conditions for its implementation. The fact of clarification is reflected in the relevant decision, the protocol of the investigative action or this includes a separate protocol.
3. Positions can be written and oral. Written petitions are attached to the case, orals are recorded in the protocol of the investigative action or court session. The applicant has the right to justify the petition of references to the law and the actual circumstances of the case, submit documents to the petition to the petition documents confirming the validity of the stated petition.
4. The Code of Criminal Procedure in some cases requires the rationale for the claimed petitions. Such a requirement, in particular, has been established for the applications stated by the parties in court, on the challenge of new witnesses, experts, specialists, about recovery real evidence and documents or on the exclusion of evidence obtained in violation of the Code requirements (part 1 of article 271 of the Code of Criminal Procedure). Therefore B. necessary cases The investigator, the investigator, is entitled to receive from the person who declared a petition, an explanation for the substantiation of his request.
Next comment on Article 120 Code of Criminal Procedure
If you have questions about Art. 120 CPC, you can get advice of a lawyer.
1. The Code provides a number of exceptions from the general rule on the application of the petitions at any time of the proceedings. So, the petition of the party to conduct a preliminary hearing may be declared within 3 days from the date of receipt of the accused indictment or indictment (part 3 of Art. 229 of the Code of Criminal Procedure), a petition for the use of a special procedure for adoption judicial decision - At the time of familiarization of the accused with the materials of the criminal case or before the end of the preliminary hearing (part 2 of article 315 of the Code of Criminal Procedure).
2. And oral, and written petition from the procedural point of view have the same force (that is, the applicant at its discretion determines the most appropriate form of a petition statement). However, the practice shows that the application of petitions in writing is still more preferable, since independently of the decision taken according to the declared application, the admission of the document originates from the document in which it was originally formulated, allows for the need to appeal against legality (including number of validity) of the decision made at the request.
3. The legislator for the first time as a general rule consolidated the principle, according to which the deflection of the petition does not deprive the applicant of the right to reiterate a petition. In the event of the disagreement of the applicant with the decision made at the request, he is entitled to appeal it (see Art. 122 of the Code of Criminal Procedure and Comment on It), or re-declare a petition with new arguments of the same body or official or to declare a petition in the other process stage.
The petition in the criminal case is compiled in cases where you need to make any edits in the form of requests. The petition must be aimed at performing specified action: On mitigating punishment, about retraining, about familiarization with the materials of the case, etc.
The concept and purpose of filing
Petition - This is the official petition submitted to the court or an official who has sufficient authority to consider the application and making a decision on it. The petition can be drawn up for various purposes, including a criminal case aimed at the considered.
A petition is one of the ways to protect our own rights and freedoms. According to, a citizen has the right to use a petition for changing procedural decisions and changes in relation to it.
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The petition may contain a petition:
- On holding any action that will subsequently be attached to the case in quality.
- Oh, and so on.
The petition is created to establish new circumstances of the case or the protection of the rights and interests of the applicant.Feeding Rules for:
- The document must be decorated in accordance with the generally accepted form.
- The petition should be directed towards those individuals and organizations that have sufficient powers for.
- The feed can only be carried out by persons who have the right to.
- The petition should be sent to a certain criminal case and on a specific circumstance.
Who can be the applicant
The applicant can act one of the following participants in the case:
- investigator;
- defender;
- prosecutor;
- accused;
- victim;
- representative of the Defender;
- investigator;
An important part of the petition is to whom it is drawn. This officer must be competent when considering a request, depending on and other nuances of the case.
How to make a petition
Legislation provides an opportunity to submit an application in writing or oral form:
- If the petition is fed in writing, the paper is attached to the case.
- If the petition is submitted in orally, it is entered into the protocol during the investigation or court session.
The petition can be made up and transmitted at any stage of legal proceedings or investigation, even after the sentencing and entry into force.
About excitation / termination
The petition for exciting or termination of the criminal case is required if it is necessary to start a business or finish so that the execution of the sentence has begun, or the case was closed.
Termination of the investigation is configured to prevent all executive actions:
- detention;
- subscription of the unseen and so on.
In order to determine whether there are sufficient grounds for termination or initiating the case, you should familiarize yourself with. The text of the appeal must contain a petition, information about the case and base.
On the discharge of judges in the criminal process
Circumstances in which this stage of the proceedings will be held:
- Were according to the petition from any Party.
- Additional circumstances were discovered, which implies the return of the case for consideration by the prosecutor.
- Additional circumstances were discovered, which lead or stop the proceedings.
- The accused filed with the petition for the transfer of the jury.
Sample 2020.
How to submit a petition in a criminal case
The petition can be compiled in writing and orally. After that, the petition is attached to the case under consideration. Legislation does not adapt to submit a petition several times.
Attention! In case of receipt, the applicant has the right to file a petition, or contact to dispute the decision due to its illegality.
The judge is obliged to consider the applied petition immediately. Violation of the law will be the decision to consider the passage at the time of the decision of the sentence. Such an action will not allow the person to re-submit in the event that it is rejected.
At the preliminary investigation stage
Consideration of the petition filed at the preliminary investigation stage is regulated. The legislative act indicates that the petition is considered immediately after submitting the application. But not in all cases there is the possibility of immediate consideration of the petition, so the court or executive person is given Three days to make a decision.
At court session
In preparing for the court session, each of the Parties provides his petitions if there are such. Persons can be directed to the following items:
- Challenge additional persons (witnesses, experts, specialists).
- Providing additional evidence or.
- On the exclusion of evidence and documents that were obtained in violation of procedural norms.
Term of consideration
After the petition was filed, the court accepts it for consideration and makes its decision. If you make an immediate decision on a petition, which was submitted during a preliminary investigation, it is impossible, then permission is given no more than three days.
If the petition was satisfied, then the person (investigator, judge, the investigator) makes a decision, and the court is a definition. According to the Code of Criminal Procedure, the petition is considered by the court in a deliberative manner if the petition is directed to:
- termination of the work in connection with the reconciliation of the parties;
- the transfer of the case to the prosecutor;
- revision of penalties;
- extension of detention;
- taps;
- conducting the accused.
In other cases, the petition is considered during the meeting and is submitted to the Protocol..
Causes of refusal
The petition may be rejected in the following cases:
- Inquisitive information is provided.
- Insufficient bases for circulation.
- The officer is a person who has no right.
- The petition was not compiled in accordance with the existing rules.
The investigation and consideration of any criminal cases is accompanied by a number of procedures. In accordance with Chapter 15 of the Code of Criminal Procedure, their number includes a petition. The prerequisite for the inclusion of this procedure in the criminal investigation and trial process was the fact that the law guarantees citizens the right to protect any practices with any methods. In essence, the Code of Criminal Procedure is the direction of the request to the official of the commission or abstinence from certain procedural actions. As mentioned above, this procedure is regulated by 15 head of the Code of Criminal Procedure, which will be considered in more detail in this article.
Citizens endowed with the right to submit a petition, 119 articles and norms defining the rights of all participants in the process are defined in the Criminal Procedure. This list includes:
- under investigation;
- lawyer of a context citizen;
- experts attracted to investigate the criminal case;
- the victim and its legal representatives;
- any other citizens, provided that their interests were affected by committing a crime.
The Code of Criminal Procedure of the Russian Federation is written statements that must be attached to the case file. At the same time, the fact of filing a petition must be fixed in the protocol.
The right to file the petition of the Code of Criminal Procedure endowed and witnesses. This issue is regulated by the fifth paragraph of the fourth part of 56 of the article in aggregate with Article 119 of the Code of Criminal Procedure. In addition, such an opportunity is referred to in the definition of the Constitutional Court of NO 1036-OP dated December 16, 2008.
Considering issues related to the application of petitions, it is necessary to pay attention to the fact that investigators and the investigators are not entitled to fulfill a number of procedural actions without a court decision. The main one should include:
- extending the deadline for checking the fact of making an illegal, criminal action in accordance with the reporting report;
- determination of preventive measure for a person under investigation;
- conducting a search and seizure of various things;
- the imposition of arrest on the property of the estate and its correspondence;
- listening to telephone and other negotiations.
Simple words, the persons carrying out investigations are not entitled to independently perform actions provided for by 4-9 points of the second part of 39 of Article 165 of Art., And the third part 108 of Art. Criminal Procedure Code of the Russian Federation.
Most often, the requirements for petition relate to the following questions:
- liberation from custody;
- the closure of criminal proceedings due to the lack of an event or the composition of the crime;
- recognition of preventable proofs are unacceptable, including those produced illegal means;
- call for interrogation of additional witnesses;
- advisions to the materials of the case of additional evidence and evidence.
Chronicles of the Code of Criminal Procedure of the Russian Federation does not contain information regarding the circle of issues and the permissible amount of petitions. The participants in the process have the right to put forward demands at any time and in any quantity. According to the Code of Criminal Procedure, the petition is registered by investigators and investigators. In addition, this issue is regulated by the relevant instruction for internal use by representatives of the investigation.
According to the legislation, no more than three days are given for consideration. After this period, the authorized person must give a decision to the interested party. The decision at pre-trial production is made by the public prosecutor. In turn, protection has the full right to appeal against the actions or inaction of the prosecutor.
Petition in trial
According to the first part of 271 of the head of the Code of Criminal Procedure of the Russian Federation, the following series of petitions can be announced in court:
- Or repeated interrogation of previously speaking faces. Most often, this is necessary if previously unknown facts were revealed during the court session;
- Interrogation of specialists and experts in different areas. Expert specialization can be the most diverse: starting from ballistics and ending with cryptography;
- Receipt of the study of documents and evidence having a direct or indirect attitude to the case under consideration;
- Exception of evidence obtained by illegal means. An example of such evidence can be indicated by pressure obtained;
- Repeated reading. This is also practiced at the opening of previously unknown factors;
- Appointment of forensic examination, For example, if the defendant observes signs of mental disorder;
- Recharge actions of the defendant. Often, during the trial, it is possible to prove that the crime was committed not for evil intent, but by negligence;
- Termination of legal proceedings Due to the expiration of the deadlines of limitation. AT civil processes Such a petition is applied when the parties came to the agreement;
- Video and audio recordings trial. In most cases, this is allowed, with the exception of situations where it is considered when closed doors;
- Return of the case on request in connection with newly discovered circumstances or flaws of the investigating authorities.
Additionally, it is necessary to note another petition that can often sound in court. We are talking about the reference of the judge. According to the Code of Criminal Procedure, such a petition can be satisfied in a number of cases.
The list listed is not exhaustive. There are still a number of applications voiced during the trial, but those listed are the most common.
According to russian legislation In particular, chapter 15 of the Code of Criminal Procedure, it is possible to file petitions any number of times, even if they were previously rejected. Despite this, presiding judges often violate established order and resort to invalid from the point of view of the law methods, which in essence limit the rights of defendants. They declare consideration of the claim at a time with sentencing.
The procedure for consideration and decision-making is carried out according to 256 of the Criminal Procedure of the Code of Criminal Procedure. The second part of this article contains a list of issues to be considered in the advice room. To their number should be attributed:
- termination of criminal prosecution of the defendant;
- election and cancellation of a previously selected preventive measure;
- extending the term of detention in the SIZO or under house arrest;
- the possibility of a trial without the participation of the defendant. Such cases are considered in detail in 5 part 247 of the Code of Criminal Procedure of the Russian Federation;
- taps of participants of the court proceedings;
- return of the case under consideration for the investigation.
The deposancy of the decision on the stated petitions is the prerogative of the presiding judge. The decision must be announced at the court hearing and are listed in the Protocol secretary.
Application lawsuit
Practice of petitions in russian courts Rich enough. In most cases, such statements make the defendants' lawyers, because often state prosecutors seek to overlapping the investigation, actions that contradict these legislation. Often, judges act unprofessional. It happens due to inexperience or banal bias, which is in principle incompatible with their position. The following vessels can be served as a bright example:
- a ban on the provision of the protection of evidence in the case;
- refusal to call to the expert court;
- note The protection side in response to legitimate work methods.
In essence, with his actions, the judge forced the direction of protection to be silent, and deprived the defendant to defend themselves. In such a situation, the defense should nominate a number of petitions, the meaning of which should be reduced to one - whether the defendant is eligible for a fair trial and what is expressed in connection with the actions previously listed. Of course, the court will reject such statements, but they can be easily appealed to the higher authority.
It should be understood that the criminal process is a combination of a number of events that cannot be passed without an experienced lawyer who can defend the rights of the defendant. If in civil proceedings You can do without a defender and win the process, then it is impossible for criminal cases. With a high probability of probability, the accused will face bias or at least negligence.