What is understood as the term "existence" violation of the criminal procedure law (hereinafter - the UPP)? When we use the concept of "significant violation" in everyday life, then for each of us, materiality criterion is purely individual, subjective. The OPC offers such a criterion for the materiality of the violation of the UPP: this is such a violation, which by depriving or restricting the rights of participants of the UPP, violated these rights - or the procedure of legal proceedings was not observed, or such rights of participants of the UPP were affected, the violation of which was influenced by a fair, legitimate and reasonable solutions.
To this kind of violations, the law relates a whole group of conditions:
1. Continuation of procedural activities in cases where there were grounds for termination of criminal proceedings (hereinafter - d). Those. Improvation of criminal proceedings, persecution if there are grounds for termination.
2. The illegal composition of the court or the illegal composition of the Board of Jury.
What the composition of the court in this particular case will be considered asaKONOM Firstly, this is the composition in which the judge was discontinued, the authority or a person was suspended, which is not yet endowed with the status of the judge. Each specific judge is appointed by a decree in each specific court. Therefore, if the judge from another court took part in the court, be it a higher or lower court, the composition of the court will be illegal. The jurgile composition of the court may be such a composition of the court, when there is grounds for the discharge of at least one of the members of the Court members, and the court was declared a discharge, was not satisfied. If the removal was not satisfied, then the judge did not declare a self-degree.
What can be the grounds for the discharge? For example, one of the judges is related relations with the prosecutor, another judge, a defendant and other participant of the process. Either these are related relations, or inherent relationships. When we are talking about the illegal composition of the court, it is considered to be such a composition of the court in which at least one of the members of the Board of Judges earlier participated in the consideration of the UD, i.e. Repeated participation in consideration by UD.
what concerns the jury collegium, then the Code of Criminal Procedure regulates the formation of the board of the jury. Common requirement: 12 complete assessors and 2 spare jury. In the event that the composition of the joint assessors included persons who did not participate in the qualifying round, in the qualifying part of the preparatory period of the trial, the composition of the board is considered illegal.
In addition, when we are talking about the illegality of the jury, here to this kind of inappropriate members of the board of jury meetings will also be those persons who are not approved in the lists of jury meetings as basic and spare lists. Let's just say, asked someone to sit instead of someone, etc. When there is grounds for any of the jury assessors regarding any of the jury, the discharge was not satisfied or was not declared a self-segment. We will talk in detail later.
3. when it comes to absentee legal proceedings. In cases where the law does not provide for such a trial. We remember that there are two grounds for absentee legal proceedings: 1. For cases of small and middle severitywhen the defendant said the petition and the court satisfied; 2. When, in cases of hard and especially serious, the face is outside the Russian Federation and evades the appearance of the court or is located outside the Russian Federation, its location is unknown.
According to Part 5 of Article 247 of the Code of Criminal Procedure, the Code also requires a court decision, indicating the grounds for absentee consideration of If the grounds for absentee consideration of the CD was not, nevertheless, the case was considered in the absence of a defendant, in this particular case we refer to substantial violations of the UPR.
4. The non-participation of the defender in cases where the participation of the defender is mandatory.
Art. 51 Code of Criminal Procedure establishes a complete list of situations where the participation of the defender is mandatory. If there is no defender - it is a significant violation of the right to defend. The legislator refers to a violation of the rights to protection Any other violation of the rights of the accused to use the help of the defender: when a date with a defender is not provided, or when a date with the defender is controlled in one way or another, the use of video recording, recording devices, the right of the accused to choose a defender can also be violated. In addition, the implementation of the accused of its procedural status, not the provision of accused of certain rights is considered as a significant violation of the SIR and is the basis for cancellation or change of the sentence.
5. Violation of the principle of accessibility of legal proceedings for individuals who do not speak the language of legal proceedings, in particular, for the defendant.
If the defendant cannot perceive the judicial procedure normally, because he does not own the language proceedings, the translator is not provided to him - this is considered as a significant impairment of the SIR. In this regard, the right to testify in his native language is violated or in the language that he owns sufficiently in order to understand the process of legal proceedings and perceive its procedural status (dispose of rights and implement its procedural duties). If the person does not understand what is said, in this particular case, we are talking about the possibility of appealing or canceling the corresponding decision.
6. Inspection of the right to participate in the debate.
7. Failure to submit the right to the last word.
This is also seen as one of the special cases of violation of the right to defense. The right to participate in debate is provided at the request of the defendant in cases where the defendant's defendant does not take part. Regardless of the behavior of the defendant, the right to last word is preserved. When we talk about the violation of the rights, which are established in paragraph 6-7, the participation of the defendant in the form of video conferencing is not a violation of rights. We said that it is possible in a number of cases, incl. In order to ensure the safety of the participants of the UPP, the use of video conferencing, the application in this case is not considered as a significant violation. The same position occupies the ECHR.
8. Violation of the secrecy of the meeting as a jury collegium when submitting verdict and judges when a sentence is resolved.
What is understood as a violation of the secret of the judges' meeting? The secret of the deliberative room suggests that during the resolution of the Verdict or sentence, no one except members of the composition of the court or the jury collegium cannot be in this particular case. As for the jury, recently, two or three years ago, the film "Twelve" [ in reality, came out in 2007], This is a remake of the old English film "Twelve angry men" about how the jury meets in the deliberate room, as they discuss all the questions.
Indicates a violation of the secrets of the deliberative room the possibility of judge to leave this room? If we are talking about breaking for sleep, making food or for physiological needs, this is not considered as a violation of the secrecy of the meeting. In addition, it is not considered a violation of the secrets of the Judges Meeting and the Secrets of the Jury Break of the Weekend, when people leave, rest, then returned. In order for this break is not considered as a violation of the secrecy of the meeting, it is necessary that the jury and judges do not discuss issues related to the sentence, did not communicate with the participants of the UPP.
Is it possible to talk on the phone during the resolution of the sentence or the submission of verdict? It is impossible. Consultations on the sentence, consultation on the verdict, they during the decision of the relevant decision are not allowed. If someone from the participants in the process heard as a judge in the deliberate room talks or consults with someone, even if this call is not related to the decision of the decision on this particular case, this may be considered as a basis for the abolition of the relevant decision, i.e. The secret of the meeting of judges, the mystery of the jury of the sacred and is inviolable is the sacred cow of the UPP.
In addition, under violation of the secrets of the meeting of judges and jury, the disclosure of all that happened in the deliberation room was found in the consignment of the sentence. We said that someone from the judges can remain with a special opinion, one of the jury can vote for the impartial verdict, it is not allowed to disclose judgments about who did it and how it happened. This all refers to the secret of the meeting.
9. Using invalid evidence.
We said that in the materials of the UD, regardless of whether the evidence is permissible or not, they persist, they do not disappear. Nevertheless, the use of invalid evidence entails the decision of an illegal sentence. General verdicts: validity, legality, justice. It is impossible to substantiate the court decision by the materials and evidence that were illegal and was found illegal.
10. Lack of signature of the judge or one of the judges if the criminal case was considered by the court of collegially, in the relevant judicial decision.
The requirement of a formal nature, compliance with the UPE, an important requirement for the entire Armed Forces, both at pre-trial stages and at the stage of the court proceedings. The lack of signatures of one of the members of the Board of Judges or the judge, if the case was considered solely, refers to the categories of a significant impairment of the SIR. Why?
We said that any protocol at the pre-trial stage requires signature, any decision of the investigator requires the signature of the investigator, the same applies to the stage of the trial, the protocol is signed inclusive. The presiding judge must subscribe to the judge, thereby the presence of a signature of the judge testifies to the certificate of the judge of that decision, which was submitted on this UD. If there is no signature of the judge, we say that this is one of the solutions, perhaps the initial decision that the judge made, perhaps one of the participants of the UPP made a sentence, i.e. There is no identification sign of a court decision, the signature of the judge is the identifier of this particular court decision.
Significant violations of the criminal procedure law recognize such violations that, by deprivation or constraining the rights of participants in the criminal procedure guaranteed by the Law, when considering a criminal case or otherwise, it was prevented by a comprehensive, fully and objectively explore the circumstances of the criminal case and influenced or could affect the decision of a legitimate and reasonable sentence. . To such violations, the law relates the following cases:
1) when the criminal proceedings did not stop under the presence of the circumstances provided for in Article 303 of the Code of Criminal Procedure, which enhanced its termination;
2) the sentence decides by the illegal court;
3) a criminal case is considered in the absence of the accused, except for the cases specified in Article 294 of the Code of Criminal Procedure, providing for the consideration of the criminal case in the absence of the accused;
4) a criminal case is considered without the participation of the defender in cases where according to the law (Article 45 of the Code of Criminal Procedure) is obligatory;
5) the secret of the meeting of the judges in the resolution of the sentence is violated;
6) the sentence is not signed by any of the judges, except for the cases allowed by law, when the judge, remaining with a special opinion, does not sign the sentence (part 2 of Article 358 of the Code of Criminal Procedure);
7) There is no report of the court session in the criminal case.
The above circumstances are definitely significant violations of the Criminal Procedure Code. In all cases, they entail the death cancellation.
However, the Court has the right to recognize significant and other violations of the norms of the Criminal Procedure Code, if it establishes that they influenced the constraint of the rights of the participants in the process, the establishment of the truth in the case. These include such violations of the criminal procedural law, as the inconsistency of the charge, a violation of the jurisdiction of a criminal case, a forced refusal of the defender or the absence of the participation of the defender, etc.
Incorrect application of the Criminal Law (Article 392 of the Code of Criminal Procedure)
Under the incorrect application of the criminal law, i.e., the incorrect qualification of the crime is understood:
1) the application of the law not subject to use;
2) the non-use of the law to be applied;
3) interpretation of the law contrary to its exact meaning.
The first two disorders merge in essence in one, expressing, for example, in the fact that the law was applied, which has lost strength or not entered into force; It was incorrectly distinguished by the last or continued crime; The law was incorrectly applied when attracting responsibility for an attempted crime; Not in accordance with the criminal law, punishment was applied, etc.
However, the incorrect application of the criminal law does not necessarily entail the cancellation of the sentence. The error made may be corrected by the cassation itself if the retraining of the act does not impair the provisions of the accused. Otherwise, the sentence is canceled and the criminal case is sent to a new trial in the same court, but in other composition or to another court.
Incomprehence of the crime and personality of the accused (Article 393 of the Code of Criminal Procedure
This basis reflects the criminal law characteristics of the injustice of punishment, which, although not beyond the limits of the penalties provided for by the criminal law, however, on its term or size is either overly soft or excessively severe.
Bajev V., Honored Science Worker Russian Federation, Doctor of Legal Sciences, Professor.
The current criminal procedural law provides for the basis of the abolition or change of the sentence violation of the criminal procedure law (Art. Art. 379, 381 of the Code of Criminal Procedure). In similar cases, the previously operating law (Art. Art. 342, 345 of the Code of Criminal Procedure of the RSFSR) provided for substantial violations of the criminal procedure law as a basis. Despite the indicated changes in terminology, the top courts of the Russian Federation did not refuse to allocate significant violations of the Code of Criminal Procedure from the total number of procedural disorders<1>.
<1> See, For example: Resolution of the Constitutional Court of the Russian Federation of December 8, 2003 N 18-p // Bulletin of the Constitutional Court of the Russian Federation. 2004. N 1; Definishing the Constitutional Court of the Russian Federation of February 2, 2006 N 57-O // Bulletin of the Constitutional Court of the Russian Federation. 2006. N 3; Resolution of Plenum Supreme Court Of the Russian Federation of March 5, 2004 N 1 // Bulletin of the Supreme Court of the Russian Federation. 2004. N 5; Resolution of the Presidium of the Supreme Court of the Russian Federation of December 11, 2002 // Bulletin of the Supreme Court of the Russian Federation. 2003. N 11. S. 19.
The interpretation of the violations of violations as essential (or insignificant) is still important. Overcoming emerging difficulties often helps appeal to the practice of previous years of the highest courts of Russia, as well as knowledge of literature published before and after the last codification of Russian criminal procedure laws.
- The courts of cassation (and supervisory) instance traditionally some violations of the Code of Code of Criminal Procedure, as before, in some cases are recognized as essential, in others - no. From this, however, it does not follow that any violation of the criminal procedural law may be (at the discretion of the court) recognized as significant. The criteria for their assignment to the number of significant legislator successfully, judging by the half-century practice of higher courts, was determined in Art. 345 UPC RSFSR 1960. Part 1 of this article also recognized substantial violations of violations of the Code of Criminal Procedures, which by deprivation or constraints of the laws guaranteed by the law, in order to investigate the case or otherwise, prevented the court to comprehensively disassemble the case and influenced or could affect the decision of legitimate and reasonable sentence.
The long-term practice of the courts of Russia showed that such violations of the procedural norms are allowed during the consideration of criminal cases, which in all cases are questioned by the judgment of the sentence. Therefore, they were declared by the legislator, regardless of the circumstances of the criminal case, the reasons for the presence of which they are allowed, as well as the consequences. In h. 2 tbsp. 345 Code of Criminal Procedure of 1960 was provided that the sentence is subject to cancellation in any case, if: 1) by the court in the presence of grounds provided for by Art. 259 Code of Criminal Procedure (Article 254 of the Code of Criminal Procedure), the criminal case was not discontinued; 2) the sentence was brought by an illegal composition of the court; 3) the case is considered in the absence of the defendant in cases where, according to the law, its presence is required; 4) the case is considered without the participation of the defender, when, by law, its participation is obligatory; 5) the secret of the meeting of the judges in the resolution of the sentence is violated; 6) the sentence is not signed by any of the judges; 7) There is no report of the court session.
According to the previously active law (Part 2 of Art. 345 of the Code of Criminal Procedure of the RSFSR), these disorders could not be recognized as insignificant. The Higher Court in all cases was obliged to recognize them substantial and cancel the sentence. These violations of the law in practice and in scientific literature are still recognized not simply significant, but unconditional foundations of the cancellation of the sentence. The developers of the latest version of the Code of Criminal Project of the Russian Federation rejected the possibility of consumption in the title and text of Art. 381 Code of Criminal Procedure (corresponding to Art. 345 of the Code of Criminal Procedure of the RSFSR) of the phrase "essential violations", limiting the term "violations", but the judicial practice still allocates them.
The presence of violations recognized by the court is essential, does not entail the obligatory cancellation of the sentence. The sentence can be changed. The listing of unconditional substantial grounds for cancellation of the sentence (part 2 of article 345 of the Criminal Procedure of the RSFSR) is precisely because it made sense that the unconditional cancellation of the sentence was connected with them, even if he did not cause complaints with them.
- Underestimation of the practical importance of the allocation of other procedural violations of significant violations of the criminal procedure law can entail as unreasonable cancellation sentences and leaving unchanged erroneous court decisions. Meanwhile, the long-term practice of the courts of general jurisdiction (before and after the start of the Code of Criminal Procedure of the Russian Federation) confirms that procedural violations of the Code of Code of Criminal Procedure are far away and can cause various consequences: the cancellation of the sentence, a change in the sentence, the decision of a private definition (decree) with the leaving of the sentence unchanged.
The legislator, as noted, in the past (Art. 345 of the Code of Criminal Procedure of the RSFSR) gave the general formula of significant disorders of the Code. At the same time, the recognition of the procedural disorder was not substantially strictly affected by the onset of disadvantaged consequences as a result of this violation. In art. 345 UPC RSFSR was one requirement: when checking the legality and validity of the sentence, a higher court recognize violations with significant only when they influenced, but even when they could only influence the decree of a legitimate and reasonable sentence. As the same (part 2, Art. 345 of the Code of the RSFSR) and the current (part 2 of article 381 of the Code of Criminal Procedure of the Russian Federation), a number of violations of the Code of Criminal Procedure are marked, which in any case under the Code of Criminal Procedure of the RSFSR 1960 will attract sentencing - His cancellation or change. The presence of these violations is not simply significant violations of the criminal procedural law, but unconditional grounds for cancellation, according to the current Code of Criminal Procedure - to cancel or change sentence.
Article 381 of the Code of Criminal Procedure of the Russian Federation, as the previously operating law (Art. 345 of the Criminal Procedure of the RSFSR), maintains significant violations of the law, which can be found in verifying the courts of the cassation instance of sentences and other acts of the court of first instance. Meanwhile, essential procedural disorders can be allowed in the stage preliminary investigation. Therefore, the constitutional and supreme courts of the Russian Federation recognize the possibility and the need to return the criminal case to the prosecutor if the significant violations of the Code of Criminal Code cannot be eliminated in the trial (Art. 237, Part 2 of Art. 256 of the Code of Criminal Code of the Russian Federation). The courts of appellate and supervisory instances are directly oriented in these stages of these grounds for cancellation or a change in the court decision (Article 369, Part 1 of Art. 409 of the Code of Criminal Procedure of the Russian Federation). Thus, although the rules contained in Art. 381 Code of Criminal Procedure, placed in ch. 45 Code, the legislator recognized them with general-persistent importance.
2.1. Structure Art. 381 Code of Criminal Procedure, devoted to the description of the violations of the Criminal Procedure Law, as a basis for the cancellation or a change in court decisions of the court of first instance, is not originality. It is based on the text Art. 345 UPC RSFSR 1960, which, unfortunately, was not improved. In h. 2 tbsp. 345 Code of RSFSR, as is well known, the meaning of procedural disorders, which enhance only the abolition of the main act of the court of first instance is a sentence. Creators Art. 381 CPC tried by the "cosmetic" edit of the text Art. 345 OPC 1960 G. to give general grounds for the cancellation or change by the court of a second instance of any court decision of the lower court, as under the appointment of the court session and in trial. The futility of attempting to create such "universal" grounds for revising the decisions of courts "for all occasions" was obvious. The practice of applying the Criminal Code of the Russian Federation confirmed this inconsistency. If we take into account the positions of Part 2 of Art. 381 (given to the development of Part 1 of this article), it becomes obvious that all 11 points of the list of procedural violations relate to such violations of the law in the trial, which are questioned by the legality and validity of the sentence.
It is difficult to assume why the concept of "essential violations", implemented not only in the texts of laws, but for many years widely used in the judicial practice of vessels of different levels, did not satisfy the developers of the latest version of the Code of Criminal Code of Criminal Project. Unlike the creators of the charter of criminal proceedings of 1864, they did not leave the detailed explanations of these Novel, which became the property of the draft law, and then the law itself - the Code of Criminal Procedure.
Judging by the text Art. 381 Code of Criminal Procedure, its developers by simplifying the text of Art. 345 UPC RSFSR tried to make it more affordable. If so, then this goal deserves attention. But to achieve it, not all means are good, since the idea should not be affected, initially laid in the legal norm. And she just suffered, as evidenced by the experience of the application of Art. 381 Code of Criminal Procedure. When in Art. The 345 Code of Criminal Procedure of the RSFSR was presented with a general formula of violations recognized by substantially, it was assumed (and still confirmed by practice), which may occur and less significant violations are insignificant that are not entitled to the same procedural consequences that cause significant violations. Inclusion in the text Art. 381 Code of Criminal Procedure The words "essential" did not bring any wonderful improvements in practice, did not make the provisions of this article more "efficient." Moreover, judicial practice (including the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation) only confirmed the erroneousness of the "Improvements". It is no secret that the concept of "substantial violations" reflects the estimated submission of the law enforcement about a particular application or non-statement of the law, including the procedural violation. But evaluation mental activity is an inevitable satellite of the power entity, which makes decisions on the case at a particular stage of production in the case. The higher subject of criminal procedure should be able to check and understand how fruitful is the estimated activity of the lower entity (investigator, his leader, judges, courts appeals instance etc.). And this should draw the attention of a higher court, consulting with its procedural functions involved in the lawyer's business that protects the interests of the convict or representing the interests of the victim. It is impossible to avoid generally appreciated activities in the field of criminal procedure relations.
- The allocation of significant disorders of the criminal procedure law, admitted by the courts of first instance and in pre-trial production, has a deep meaning. The fact is that deprivation, limitation or constraint procedural law The participants in criminal proceedings affect the final results of the consideration of the case in different ways. for example, Procedural disorders during such an investigative action, as presentation for identification, may cause recognition of information (ie evidence) unacceptable. In other cases, the same violations may question the entire system of evidence, on which the sentence is based, or at least a number of major evidence. A similar situation may arise in violation of the rights of the participants in the process in the manufacture of a search, announcement in the court session of the protocols of the testimony of witnesses and the victims (Art. 281 of the Code of Criminal Procedure) in case of their failure to appear in the court, etc. Many other investigative and judicial activities Also cause or may cause ambiguous procedural consequences. In other words, during the proceedings in the case there may be violations of the Code of Criminal Procedure, which in some cases are recognized as essential, in others - no. That is why the allocation of the total number of procedural disorders is essential (see. 1 Art. 345 of the Criminal Procedure of the RSFSR) had primarily a practical meaning. It is not by chance that the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation still identifies them (significant violations) from among other violations, with which the prosecutor of the Code of Criminal Code of the Code of Criminal Code) or the cancellation of the Code of Code of the Code of the Code of the Code of the Code of the Code of the Code of Criminal Procedure and the Supreme Court of the Russian Federation. Unlike them, insignificant were recognized in theory and in practice such violations of the criminal procedural law, which did not affect and could not affect the decision of a legitimate, justified and fair sentence.
In the Criminal Procedure of the RSFSR 1960. Part 2 of Art. 345, developing the provisions of Part 1 of this article, provided for a list of unconditional essential disorders, which in all cases attracted the cancellation of the sentence. Thus, at the same time, it was emphasized that, along with unconditional grounds for the cancellation of the sentence (Part 2 of Art. 345) there are "conditional" significant violations of the OPC norms, i.e. Such procedural disorders that may cause the sentencing, and may not entail these consequences. Judicial practice to essential violations of the Code of Criminal Procedure, entailing the cancellation of the sentence, was carried out, for example, inferiority or late presentation by the accused of a copy of the indictment; infringement of the right of the accused (defendant) to the choice of defender (lawyer); Protection by one face of two and more defendants with contradictory interests; The need of the rights of the victim or its representatives, which prevented the protection of the interests of the persons affected by the crime, etc.
Judicial practice did not perceive the innovations of Art. 381 Code of Criminal Procedure, in the text of which does not provide for the allocation of significant procedural disorders. Long before the last codification of procedural legislation in Russian literature, judgments were expressed in separate authors that any procedural violations are unacceptable. Because of this, it was questioned the need for substantial procedural disorders in the law. It's hard to say that in such judgments there are more: elementary misunderstanding of the process, demagogue, hypocrisy or legal ignorance?! Note that the experience of vessels of different levels confirms that the differences in the texts of Art. 345 OPC RSFSR and Art. 381 Code of Criminal Procedure is not an object of academic disputes, but the search for real means of permission during the consideration of criminal cases of the procedural offenses. As already noted, the allocation of significant procedural disorders (from the total number of procedural violations) recognizes the Constitutional Court of the Russian Federation. Confirms the "vitality" of significant violations of the criminal procedure law and the Plenum of the Armed Forces of the Russian Federation. The specified distinctions in their current practice of the Board and the Presidium of the Russian Federation of the Russian Federation, as well as other courts of the general jurisdiction of the Russian Federation are taken into account. Thus, the Supreme Court of the Russian Federation recognized the admissible interrogation of a lawyer at the request of the prostum in order to confirm its Alibi, but regarded as a significant violation of the law further exercise by this person to protect the specified person<2>. For a long time, he also regards as a significant violation of the Code of Code of Criminal Procedure of the Criminal Procedure by the court without the participation of the defender due to the refusal of him, although the participation of the specified lawyer to the beginning of the court session was not provided<3>. Also, a significant violation of the law, the Supreme Court of the Russian Federation acknowledges the court of declared defendant for the refusal of the defender<4>.
<2> Bulletin of the Supreme Court of the Russian Federation. 2001. N 9.
<3> Bulletin of the Supreme Court of the Russian Federation. 2003. N 7.
<4> Ibid.
Position p. 1 h. 1 Art. 51 Code of the mandatory participation of the defender, if the accused did not refuse him in accordance with the procedure established by law, is often perceived in practice only as a requirement relating only to the main stages of the criminal proceedings - a preliminary investigation and a trial. This position was rejected by the Presidium of the Supreme Court of the Russian Federation, categorically emphasizing in one of the relatively recently adopted decisions, that consideration of the case without the participation of the defender, when its participation is obligatory, is a significant violation of the law and leads to the abolition of a court decision. Considering this right of accused of protection as the principle of the criminal process, the Presidium of the Supreme Court of the Russian Federation stressed that he (this principle) applies to all stages of the criminal process<5>.
<5> See: Resolution of the Presidium of the Supreme Court of the Russian Federation N 118P2005 // Bulletin of the Supreme Court of the Russian Federation. 2006. N 3. P. 16.
We will pay attention to the consistent position of the Supreme Court of Russia, which recognizes a significant violation of the Criminal Procedure Law, the lack of an investigator in order to investigate a fully or partially investigation of the crime, on making a case to its production<6>. Recall in this regard, that the Plenum of the Supreme Court of the Russian Federation is still in the decision of October 31, 1995 N 8 "On some issues of applying the courts of the Constitution of the Russian Federation in the implementation of justice" (paragraph 16) formulated the situation, until now, not losing importance in Process evidence. Plenum, in particular, emphasized: "... The evidence should be recognized by the violation of the law, if, when they were gathering and consolidated, guaranteed by the Constitution of Human Rights and Citizen or established by criminal procedure legislation, the order of their collection and consolidation, as well as if Collection and consolidation of evidence carried out in improper face or body or as a result of the actions not provided for by the procedural regulations "<7>.
<6> Determination of the judicial board of the Supreme Court of the Russian Federation of March 10, 2004 in case No. 66-O03-221.
<7> Collection of decisions of the Plenums of the Supreme Courts of the USSR, RSFSR and the Russian Federation. M.: Lawyer, 2008. P. 64.
- Proving the existence of significant violations of the criminal procedure law made by the court consider the court of first instance is carried out on general grounds. Since the verification of the legality and validity of the sentence in the court of cassation is carried out on complaints or (and) submissions, in the complaint of the defender, it is necessary to clearly and arguely state the rod question: in connection with which the reasons are the question of canceling or changing the sentence? In this regard, it may be necessary to arguely show the errors of the lower court in the study and use of evidence, their assessment in the sentence. Since the law allows for confirmation (or refutation) arguments of complaints to explore not only evidence reflected in the case file, but also additional materials (part 5 of Art. 377 of the Code of Criminal Procedure), it is necessary to specifically indicate them in the list of materials attached to the complaint (clause 5 h. 1 Art. 375 CPC).
Causes bewilderment of Part 4 of Art. 377 Code of Criminal Procedure of the Russian Federation, who admits the possibility of the court of cassation at the request of the parties to directly investigate the evidence in accordance with the requirements of Ch. 37 CPC. Meanwhile, the existing procedure for consideration of cases in the court of cassation does not provide for conditions for conducting judicial investigation In accordance with the rules of this chapter: not a challenge to witnesses and other persons, it is not necessary to participate parties in the meeting, not provided for maintaining the protocol, etc. To somehow "help" the legislator or developers of the Code of Criminal Project, but, apparently, giving himself a report in impractication of the provisions of Part 4 of Art. 377 CPC, the Plenum of the Supreme Court of the Russian Federation explained that under the study specified in the Mentioned Article Code of Criminal Procedure, it is necessary to understand the verification of the evidence of the evidence of the court of first instance in the criminal case, through the announcement of the testimony of witnesses, the victim, the conclusion of the expert, etc.<8>. Explanation is essentially the correct, but not confirming the indicated principle of the immediance in the court of cassation.
<8> Paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 N 1 "On the applications of the norms of the Criminal Procedure Code of the Russian Federation".
Corresponding to the provisions of ch. 45 Code of Criminal Procedure, there is reason to believe that the presence of significant violations of the criminal procedure law admitted by the court of first instance is justified by those common procedural means, which any other grounds are confirmed (Art. 379 - 383 of the Code of Criminal Procedure). As for the principle of the benchmark, it should be borne in mind that his work is envisaged only when considering the case of the court of the first (Article 240 of the Code of Criminal Procedure of the Russian Federation) and to a certain extent - the appellate (part 4, 5 of Art. 365 of the Code of Criminal Procedure.
The forensic examination is made by state judicial experts and other experts from among those with special knowledge. 3. The investigator introduces a decree to appoint a judicial examination of the suspect, the accused, his defender and explains the rights provided for in Article 198 of this Code.This includes a protocol signed by the investigator and persons who are familiar with the decision.
Article 38.
In case of disagreement with the requirements of the prosecutor to eliminate violations of federal legislation admitted during the preliminary investigation, the investigator is obliged to submit his written objections to the head of the investigative body, which informs the prosecutor about it.Comment to Art. 38 Code of Criminal Procedure 1.
Paragraph 1 of the commented article partially reproduces the definition contained in paragraph 41 of Article 5 of the Code of Criminal Procedure, according to which the investigator is executiveCommissioner exercise preliminary investigation In a criminal case, as well as other powers provided for by the Code of Criminal Procedure.
Investigators violate the Code of Criminal Procedure
And now the court would seem to begin, the prosecutor announced the accusation.But it was not there. Due to the fact that the investigator did not deign in time to extend the investigation and revealed the case for 4 months longer, the accusation was recognized as illegal, and the case was returned to the investigator.
The victim is not clear, why postpone the case if the scammers were recognized.
Legal promptness in most population seeks to zero.
They are not uncommon that the following instance may cancel the court decision if violations of the Code of Criminal Code of the Russian Federation are established.
Also in Pskov, the criminal case against the head of the Gdovsky district of Nikolai Mironova is practically scattered in front of the eyes.
Conference Yurkluba
Can I recover moral damage, the costs of a lawyer who will accumulate damage and is there such a judicial practice?Can I attract this not a competent investigator to disciplinary and criminal liability?
KUSCHMIR 08 May 2011 The investigator issued a decree on the production of the investigative action from the car was made of a seizure.
If the investigator violates the procedural time of the investigation
46 of the Constitution of the Russian Federation, Art.123, part 1 Art. 125 CPC). For violation of the procedural deadlines, the investigator, the prosecutor, the judge is carried disciplinary responsibility Valery Pugachev Profi (681) 3 years ago The answer is higher correct, I want to supplement - it is only necessary to find out, therefore the deadlines are violated, perhaps any expertise is appointed, the production of which sometimes stretches 3 or more than a month!
In this case, it is useless to complain.
Violations of the Code of Criminal Procedure by the investigator
Such a bill introduced the Parliament of the Kabardino-Balkarian Republic to the State Duma.At the same time, destination lawyers require raising salary almost 5 times.
March 29 
The Parliament discusses the possibility of expanding the ways to proof during the arbitral, civil, criminal and administrative proceedings.
The investigator violates Code of Criminal Code if
Article 217 of the Code of Criminal Procedure
However, no one prevents you from first to read the materials in Tom Blower, in which the investigator presents them, and then require them to provide them again in any order.in addition, in the protocol of familiarization with the materials of the case, you can write to the investigator all that you think about the legality of the investigative action.
in many cases, violation of the rights of the accused in familiarization with the materials of the criminal case is an obstacle to the consideration of the case on the merits and return to the prosecutor.
March 22, 2009 at 22:11 # Article 9 of the Criminal Code of the Russian Federation of course does not have anything to resolve this issue.
Definition of the Leningrad Regional Court from N 22-1186-10 Violation by the investigator of Article 217 of the Code of Criminal Procedure, which caused incomplete acquaintance of the accused and his defender, as well as the victim with the materials of the criminal case, is essential and indicates that the indictment is drawn up with violations of the Code of Code of Criminal Procedure, which eliminates the decision by the court of sentence or the adoption of a different decision on the basis of this indictment and entails the return of the criminal case to the prosecutor to eliminate the obstacles to its consideration by the court
N 22-1186-10 Judge: Yashina L.S.
The judicial board in criminal cases of the Leningrad Regional Court as part of: Chairmaning Perfilician G.V.