Exercise by the defense attorney of the right to file motions at the end of the investigation of the criminal case

Grounds for holding a preliminary hearing in criminal proceedings and the timing of its appointment

The norms of Part 2 of Art. 229 of the Code of Criminal Procedure of the Russian Federation defines the grounds for holding a preliminary hearing:

• petition of the parties to join criminal cases (cases are joined under Article 139.2 and 153 of the Criminal Procedure Code of the Russian Federation);
• the basis for separating a criminal case (a case is segregated under Article 139.1 of the Code);
• a sentence that has not entered into force if the person against whom a new criminal case has been filed has a suspended sentence for a crime he committed in the past;
• settlement of nuances in the consideration of a criminal case (CD) by a court with a jury;
• petition of the party to carry out proceedings in court under Part 5 of Art. 247;
• grounds for suspension or termination of the case (they are provided for in Articles 238 - 239);
• grounds for returning the case to the prosecutor (under Article 237 of the Code);
• a request of a party that excludes any evidence when it is stated under Part 3 of Art. 229.

At least one such ground must be present for a preliminary hearing to be held.

The deadline for scheduling a preliminary hearing in a criminal case is specified in Part 3 of Art. 227 Code of Criminal Procedure of the Russian Federation. According to this norm, it amounts to a maximum:

• 30 days from the date of receipt of the UD by the court - in the usual manner;
• 14 days from the date of such receipt - in cases where the accused are kept in custody.

According to Part 4 of Art. 227 of the Code of Criminal Procedure of the Russian Federation, copies of the judge’s decision that sets the hearing are sent to:

• to the prosecutor;
• to the victim;
• to the accused.

On the procedure for considering and submitting applications

If the protocol is drawn up far from your place of residence, write anywhere in the protocol: “Please send the protocol for consideration at your place of residence .

It's in the protocol. Anywhere. At least in the fields. But usually there is a place for this.

Situations arise when the IDPS suggests writing a petition on a separate sheet or on a special form. And then these sheets disappear and it turns out that there was no petition.

The transfer of the case to the place of registration of the vehicle was canceled a long time ago. Keep in mind. People still call and ask what to look for in the protocol, which states “at the place where the vehicle is registered.” The protocol with such a request (at the place of registration of the vehicle) will not be transferred anywhere and will be considered at the place where the protocol was drawn up. In addition, by writing about the transfer at the place of residence in the protocol, the decision made by the inspector will be illegal, and can be easily and easily canceled by the court. Be sure to write in the protocol that a defender is needed. A decision made without the participation of a defense attorney can just as easily be overturned by the court.

REVIEW

legislation and judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2010

Question 4. Can a judge, body, or official refuse a person brought to administrative responsibility to satisfy a petition to consider a case of an administrative offense at his place of residence if such a petition was sent to the court by telegram?

Answer. According to Part 1 of Article 24.4 of the Code of Administrative Offenses of the Russian Federation, persons participating in proceedings in a case of an administrative offense have the right to submit petitions that are subject to mandatory consideration by the judge, body, or official in charge of which the case is pending.

In accordance with Part 1 of Article 29.5 of the Code of Administrative Offenses of the Russian Federation, a case of an administrative offense is considered at the place where it was committed. At the request of a person against whom proceedings for an administrative offense are being conducted, the case may be considered at the place of residence of this person.

Arbitrary refusal to satisfy a request to consider a case at the place of residence of a person brought to administrative responsibility is not allowed, and a person’s right to consider a case at his place of residence can be limited only if it is necessary to protect public interests or the interests of other participants in the proceedings on an administrative offense . A similar position is contained in the Review of Legislation and Judicial Practice of the Supreme Court of the Russian Federation for the second quarter of 2009, approved by the resolution of the Presidium of the Supreme Court of the Russian Federation dated September 16, 2009.

At the same time, the judge, body, or official who is prosecuting the case of an administrative offense must take into account that by virtue of Part 2 of Article 24.4 of the Code of Administrative Offenses of the Russian Federation, the only condition that must be fulfilled by the persons participating in the case when filing a petition for case of an administrative offense, is compliance with the written form of the petition.

Since all procedural rights in a case of an administrative offense are vested only in the participants in the proceedings in a case of an administrative offense, persons authorized to do so by law, or persons representing their interests, the judge, upon receipt of a telegram with a request to consider the case of an administrative offense at the place of residence of the person, brought to administrative responsibility, must establish the fact of the statement of such a petition by the person in respect of whom the proceedings are being conducted, or his defense attorney, authorized in the prescribed manner to carry out such actions, that is, check the authenticity of the will of such a person to change the jurisdiction of the case.

In this regard, when discussing the petition, the judge must have confirmation that the telegram was sent by the person against whom the proceedings are being conducted.

Therefore, in the case of filing a petition by sending a telegram, it is necessary to be guided by the Rules for the provision of telegraph communication services, approved by Decree of the Government of the Russian Federation of April 15, 2005 No. 222 (hereinafter referred to as the Rules), which are mandatory for both telecom operators and its users.

In accordance with clause 44 of the Rules, if it is necessary to transfer to the addressee data about the name and address of the person who sent the telegram, this data must be included by the sender in the text of the telegram.

Due to the fact that information about the place of residence (address) of the person who filed a petition for consideration of the case at his place of residence, as well as his last name, first name and patronymic, is necessary to identify him as a participant in the proceedings on an administrative offense and resolve the issue on the direction of the case to territorial jurisdiction if the relevant petition is granted, this information must be indicated in the text of the telegram without fail.

As a general rule, a petition submitted in writing, in addition to information about the person who submitted it, must also contain the signature of such person.

Taking into account the above, the applicant’s telegram about filing the relevant petition must be drawn up in accordance with paragraph 51 of the Rules, that is, his signature must be certified by the telecom operator.

On the telegram form “certified by the telecom operator”, official notes are made - extracts from the sender’s identity documents. All certification entries made by the telecom operator are included in the text of the certified telegram (clause 51).

Thus, a petition in a case of an administrative offense must be filed by sending a telegram to the court, taking into account the requirements listed above.

Provided that the telegram contains the above information about such a person and his signature, certified in the prescribed manner by the telecom operator, and there are no other grounds for refusing to satisfy the relevant request, the judge, body, official does not have the right to refuse the person, brought to administrative responsibility, in satisfying the petition for consideration of the case of an administrative offense at the place of his residence only on the basis that the petition was sent to the court by telegram.

The procedure for conducting a preliminary hearing in criminal proceedings

Based on Art. 234 of the Code of Criminal Procedure of the Russian Federation, a preliminary hearing in a criminal case takes place in the following mode.

The parties call by notice, which must be sent in advance - at least three days before the date of the preliminary hearing. The accused may be absent if a corresponding petition is sent on his behalf or on behalf of one of the parties. If other participants notified on time do not appear at the hearing, it will not be postponed and will take place without them.

In case of an exclusive evidentiary request of the party, which is submitted within the framework of Art. 235 of the Code of Criminal Procedure of the Russian Federation, the judge determines whether there are any objections. If there are none, such a request is granted. Then a court hearing is scheduled.

A request for additional evidence or items submitted by the defense will be granted if these additions are valuable to the case.

Those who know anything about the investigative actions carried out, the seizure and inclusion of documents in the criminal record, can (at the request of the parties) be questioned as witnesses. Only holders of witness immunity are not interrogated in this regime (clause 40 of Article 5 of the Code).

Minutes are taken during the hearing.

Delaying the process through a statement of falsification

Axiom for a lawyer: “If the client is wrong in a case, then report falsification.”

Of course, to verify the application, an examination will be required, and then, you see, the expert will be interrogated and re-examined. So a year will pass, and a second...

Example No. 1 – a falsified arbitration award.

In this case, the bankruptcy creditor challenged a 2012 ruling recognizing and enforcing a foreign arbitration award. The debtor's creditor believed that there was no disputed arbitration at all, and that the disputed creditor was controlled by the debtor. For this reason he began to challenge the ruling on recognition of the decision of a foreign arbitration court. The bankruptcy creditor persisted. I reached the Presidium of the Supreme Arbitration Court of the Russian Federation, which returned the matter to a new circle.

At the new round, the bankruptcy creditor announced that the arbitration court decision itself was falsified under Article 161 of the Arbitration Procedure Code of the Russian Federation, allegedly, it was made “retroactively.” The court of first instance refused to consider it: “The statement of PC ElTechMontazh LLC about falsification does not indicate either the subject of the falsification or the arguments used to support the statement. In addition, the applicant ... without providing a genuine statement of falsification, without submitting proposals for the selection of experts.”4

Example No. 2 – failure to appear in court as a way to delay the case

Once again, the plaintiff raises the issue of falsification, but here a new aspect of the issue arises. He declared falsification, but did not appear in court to consider the application. Strange behavior, isn't it? So the courts regard it not just as strange, but as malicious.

For example, in the Eltekhmontazh case, he declared falsification without indicating either the subject of the falsification or the arguments used to support the statement. In addition, the courts pointed out the abuse of rights on the part of the applicant: “...due to the fact that he... does not appear at court hearings during the retrial of the case and does not present reasonable arguments in favor of the statement of falsification of evidence.”5 Therefore, the information content of the statement of falsification, personal The appearance in court when considering an application depends on the qualification of the party’s behavior and the result of considering the application.

Who can apply to whom?

The petition can be submitted by any participant in the process or case to the person considering the case: a judge, an official.

Please note that Article 24.4 expressly states that this document can only be filed during the proceedings. If, for example, a road inspector has already issued a ruling, he may legally refuse to accept additional requests. The only exception is a petition to restore the missed deadline for paying a fine at a discount (Part 1.3 of Article 32.2 of the Code of Administrative Offenses of the Russian Federation) - it is submitted after the fine has been issued and arrived by mail to the owner of the car.

Thus, not only the person held accountable, but also other participants in the administrative case can apply:

• victim (if there was an accident),
• witness,
• attesting witness
• representative or defense attorney in the case.

Will I be satisfied or denied?

It depends on what exactly you are asking for, how and on what basis. But there are general rules. Refusal is only possible if motivated - that is, if a judge or inspector refuses to satisfy a request, they must legally explain why. If you ask for what the law provides you with, then they cannot refuse you.

In addition, depending on the types of “moves” there is a different probability of satisfaction:

• requests for legal assistance are rarely denied, since this possibility is prescribed by the Constitution, and employees are severely punished for violating it,
• if you ask to consider the case at your place of residence, then they may refuse, citing the fact that transferring the case to another city, district, region, and so on will interfere with a comprehensive study of the materials,
• when “moving” to impose a minimum sentence, replacing one sanction with another within the limits of the Code of Administrative Offenses of the Russian Federation, or issuing an oral remark, everything depends on the factors prescribed in the legislation and the prevailing judicial practice October 09, 2021,
• the situation is similar when applying for the restoration of the discount period on the fine - if you actually received a letter with a traffic police fine after 20 days from the date of the decision, then satisfaction will not be denied,
• nor has the right to refuse to admit your evidence or attract witnesses.

What are the review deadlines?

There are none, from the word “at all”. The deadline for consideration of an application in 2021 is not regulated by any law or other legal act.

But there are deadlines for consideration of the case:

• if it is considered by a traffic police officer, then the period is 2 months, after which the official is obliged to issue a decision or determination of refusal,
• if the case is considered by a judge, then this is already 3 months.

During this entire period, petitions from the parties to the case are subject to consideration. But the case itself cannot be considered without studying such “moves”.