Commentary on Article 231 of the Code of Criminal Procedure of the Russian Federation
1. The main task of the stage of preparation for the court hearing is to find out whether at the previous stage all the requirements of the Criminal Procedure Code to ensure the rights of the accused are met, and whether there are other obstacles to the consideration of the case in court. When the judge has not established the facts that prevent the appointment of a court hearing, he solves the problem of preparing the court session.
2. It should be borne in mind that a trial can be scheduled provided that the case is within the jurisdiction of this court and there are no circumstances leading to its termination, suspension or return of the criminal case to the prosecutor, and if other issues listed in Art. 228 Code of Criminal Procedure of Russia.
3. If you disagree with changing the charge to a less serious one or excluding certain counts from the indictment made by the prosecutor when approving the indictment, the judge or court does not have the right to reinstate the previous charge.
4. Hearings of cases should be scheduled at certain times, taking into account their complexity and the number of persons summoned to the court hearing <1343>. ——————————— <1343> See: Resolution of the Plenum of the Supreme Court of the Russian Federation of February 7, 1967 N 35 “On improving the organization of trials and improving the culture of their conduct” // Ibid. P. 441.
5. When resolving the issue of persons to be summoned to a court hearing as a victim, a civil plaintiff, a civil defendant, their representatives, witnesses, experts and specialists, the court is not required to compile a list of persons to be summoned to a court session compiled by the investigator <1344> . ——————————— <1344> See: Resolution of the Presidium of the Supreme Court of the Russian Federation of September 26, 1996 // Bulletin of the Supreme Court of the Russian Federation. 1997. N 2.
6. The list of issues related to the preparation for consideration of a case in court in the commented article cannot be considered exhaustive. So, for example, based on the provisions of Art. 11 of the Federal Law “On Bailiffs”, the judge, in addition, instructs the bailiff to ensure the safe delivery of material evidence to the place of the criminal trial.
7. When scheduling a court hearing and in the process of preparatory actions for the court hearing, the judge must check whether the investigator (investigating officer, etc.) has fulfilled the requirements to identify the circumstances that contributed to the commission of the crime and take measures to eliminate them. In necessary cases, in order to more fully study these circumstances, the issue of calling additional witnesses to the court session, requesting relevant documents, as well as information about the results of considering the presentation of the investigator (inquiry officer, etc.), if it was submitted in the case <1345 >. ——————————— <1345> See: Resolution of the Plenum of the Supreme Court of the USSR dated September 29, 1988 N 11 “On the practice of courts issuing private rulings (rulings)” // Ibid. P. 301.
8. The decision to schedule a court hearing provides a legal assessment—qualification—of the act committed, the meaning of which is determined by the fact that, in accordance with Art. 252 of the Code of Criminal Procedure, the court has the right to change the qualification of actions from one to another paragraph of the article of the Criminal Code if the new charge, in its factual circumstances, does not differ significantly from the charge contained in the decision to schedule a court hearing, does not worsen the situation of the defendant and does not violate his right to defense.
9. In accordance with Part 1 of Art. 389.19 and part 1 of Art. 401.16 of the Code of Criminal Procedure, when considering a case in appeal, as well as in cassation, the court will be obliged to check whether the court has observed the rights of the participants in the process guaranteed by law, and whether the content of the decision to schedule a court hearing complies with the requirements of the law.
10. See also: commentary to Art. Art. 30, 34, 227, 241, 251, 317.6, 440 Code of Criminal Procedure of Russia.
Rights and obligations of the victim in a criminal case
In the legal organization ANO legal education "Globus", a separate area of activity is devoted to the protection of the rights of victims in criminal cases. An integrated approach allows you to protect the interests of both individuals and legal entities, defend rights in criminal and civil proceedings, and achieve real restoration of social justice.
So, the rights of the victim (Part 2 of Article 42 of the Code of Criminal Procedure of the Russian Federation):
- know about the charges brought against the accused;
- give evidence;
- refuse to testify against yourself, your spouse and other close relatives, the circle of whom is defined in paragraph 4 of Art. 5 Code of Criminal Procedure of the Russian Federation. If the victim agrees to testify, he must be warned that his testimony may be used as evidence in a criminal case, including in the event of his subsequent refusal of this testimony;
— present evidence;
— file petitions and challenges;
- give evidence in his native language or a language he speaks;
— use the help of a translator for free;
- have a representative;
— to participate, with the permission of the investigator or inquiry officer, in investigative actions carried out at his request or at the request of his representative;
- get acquainted with the protocols of investigative actions carried out with his participation and submit comments on them;
— get acquainted with the decision on the appointment of a forensic examination and the expert’s conclusion;
- to get acquainted at the end of the preliminary investigation, including in the event of termination of the criminal case, with all the materials of the criminal case, to write out any information from the criminal case and in any volume, to make copies of the materials of the criminal case, including using technical means. If several victims are involved in a criminal case, each of them has the right to get acquainted with those materials of the criminal case that relate to the harm caused to this victim;
- receive copies of decisions to initiate a criminal case, to recognize him as a victim, to refuse to select a preventive measure against the accused in the form of detention, to terminate a criminal case, to suspend proceedings in a criminal case, to send a criminal case to jurisdiction, to appoint preliminary hearing, court hearing, receive copies of the verdict of the court of first instance, decisions of the courts of appeal and cassation. Upon application, the victim has the right to receive copies of other procedural documents affecting his interests;
- to participate in the trial of a criminal case in the courts of the first, second, cassation and supervisory instances, to object to the passing of a sentence without a trial in the general manner, as well as in cases provided for by the Code of Criminal Procedure of the Russian Federation, to participate in a court hearing when the court considers issues related to the execution of the sentence ;
- speak in court debates;
- support the accusation;
— get acquainted with the protocol and audio recording of the court hearing and submit comments on them;
- bring complaints against the actions (inaction) and decisions of the inquiry officer, the head of the inquiry unit, the head of the inquiry body, the inquiry body, the investigator, the prosecutor and the court;
- appeal the verdict, ruling, court order;
- know about the complaints and submissions brought in the criminal case and file objections to them;
- apply for the application of security measures in accordance with Part 3 of Art. 11 Code of Criminal Procedure of the Russian Federation;
- on the basis of a resolution, a court ruling, adopted at the request of the victim, his legal representative, representative, submitted before the end of the debate of the parties, to receive information about the arrival of a person sentenced to imprisonment at the place of serving the sentence, including when moving from one correctional institution to another, about travel of the convicted person outside the institution executing the sentence of imprisonment, about the time of release of the convicted person from places of imprisonment, as well as to be notified of the court's consideration of issues related to the execution of the sentence on the release of the convicted person from punishment, on the postponement of the execution of the sentence or on the replacement of the convicted person with the unserved part punishment with a more lenient type of punishment;
— exercise other powers provided for by the Code of Criminal Procedure of the Russian Federation.
The victim is provided with compensation for property damage caused by the crime, as well as expenses incurred in connection with his participation during the preliminary investigation and in court, including the costs of a representative, in accordance with the requirements of Art. 131 of the Code of Criminal Procedure of the Russian Federation (Part 3 of Article 42 of the Code of Criminal Procedure of the Russian Federation, paragraph 34 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 29, 2010 N 17).
If a civil plaintiff is recognized as a victim, in addition to the rights provided for in Part 2 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, the court explains other rights that, in accordance with Part 4 of Art. 44 of the Code of Criminal Procedure of the Russian Federation, he is endowed as a civil plaintiff with the right to support a civil claim, give explanations and testimony on it, abandon the civil claim brought against him before the court retires to the deliberation room to render a verdict (clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 13, 2020 N 23 “On the practice of courts considering a civil claim in a criminal case”).
Upon a claim by a victim for monetary compensation for moral damage caused to him, the amount of compensation is determined by the court when considering a criminal case or in civil proceedings (Part 3 of Article 42 of the Code of Criminal Procedure of the Russian Federation).
The legal representative of a victim under the age of sixteen, against whom a crime against the sexual integrity of a minor has been committed, must be explained by the court not only the right to file a petition for the participation of a lawyer as a representative of such a victim, but also the provision that the costs of remuneration for such the lawyer is compensated from the federal budget (clause 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 29, 2010 N 17).
Victim:
- is obliged to appear when summoned by the inquirer, investigator and to the court (if the victim fails to appear without good reason or evades appearing at the court hearing, if the participation of the victim in the consideration of the case is considered mandatory, the victim may be brought in in the manner prescribed by Article 113 of the Code of Criminal Procedure of the Russian Federation, and in the cases specified in Article 117 of the Code of Criminal Procedure of the Russian Federation - monetary penalty (Part 6 of Article 42 of the Code of Criminal Procedure of the Russian Federation, paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 29, 2010 N 17));
- is obliged to give truthful testimony (for giving knowingly false testimony, the victim is liable in accordance with Article 307 of the Criminal Procedure Code of the Russian Federation, for refusing to give testimony - in accordance with Article 308 of the Criminal Procedure Code of the Russian Federation (Part 7 of Article 42 of the Criminal Procedure Code of the Russian Federation));
- does not have the right to disclose the data of the preliminary investigation if he was warned about this in advance in the manner established by Art. 161 Code of Criminal Procedure of the Russian Federation; For the disclosure of preliminary investigation data, the victim is responsible in accordance with Art. 310 of the Criminal Code of the Russian Federation (Part 7 of Article 42 of the Criminal Procedure Code of the Russian Federation);
- does not have the right to avoid undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from providing handwriting and other samples for comparative research. For evasion from undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from providing samples of handwriting and other samples for comparative research, the victim is liable in accordance with Art. 308 of the Criminal Code of the Russian Federation (Part 7 of Article 42 of the Criminal Procedure Code of the Russian Federation).
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Procedure of trial
Criminal proceedings proceed in a special procedural form regulated by law, which is a system of successively changing and interdependent stages:
1) preparatory part;
2) judicial investigation;
3) the debate of the parties and the last word of the defendant;
5) the decision of the verdict by the court.
Currently, the changes made to the Criminal Procedure Code have practically not affected the procedure for conducting trials in criminal cases. Such amendments changed and supplemented only some of the conditions for the trial and sentencing.
Each trial must invariably begin with a preparatory part - the first stage, in which a system of actions is carried out aimed at checking the existence and creating procedural conditions for the consideration of a criminal case in court, and including:
opening of the court session;
court appearance check;
explaining to the translator his rights;
removal of witnesses from the courtroom;
establishing the identity of the defendant and the timeliness of serving him with a copy of the indictment or indictment;
announcement of the composition of the court, other participants in the trial and explanation of the right of challenge to them;
explaining to the defendant his rights;
explaining to the victim, civil plaintiff and civil defendant their rights;
explaining to the expert and specialist their rights;
application and resolution of applications;
resolving the issue of the possibility of considering a criminal case in the absence of any of the participants in criminal proceedings6.
A specific feature of this part of the court session can be considered that the main burden of all the work falls on the share of the presiding officer, who performs the organizational and administrative functions that are unique to him and regulated by the Code of Criminal Procedure of the Russian Federation.
The opening of the court session by the presiding officer and the announcement by him which case is to be tried means the beginning of the trial stage in the criminal process.
The next stage of the court hearing is verification of court appearance. As a technical, extra-procedural action, the attendance of participants in the trial is checked before the start of the court session by the secretary of the court session. In the courtroom, i.e. already in process, the results of the inspection are just being announced. These results are recorded and acquire important procedural significance. Depending on them, taking into account the opinions of those who appeared at the court hearing, the fundamental issue is decided - whether to continue the trial or to postpone it7.
Explaining the rights of “other participants in criminal proceedings,” that is, a translator, expert and specialist, is an integral part of the trial. An expert is a person who is a specialist in the field of science, technology, art or craft, who is involved in the examination at the stage of judicial proceedings in accordance with the procedure8. First of all, the expert is warned about criminal liability for carrying out a knowingly false examination9.
The procedural position of a specialist in criminal proceedings and the grounds for his participation in the trial are discussed in the Code of Criminal Procedure of the Russian Federation10. If a specialist took part in investigative actions during a preliminary investigation, the presiding officer explains that his warning about criminal liability for non-disclosure of data from this investigation does not apply to his testimony at the court hearing11. The specialist is obliged to answer questions from the court regarding the case under consideration.
Witnesses are removed from the courtroom prior to their summons for questioning immediately after checking their appearance in court in order to exclude the influence of the trial itself on the formation of their testimony under the impression of the testimony of the defendant, other witnesses, and the positions of the parties expressed during the discussion of the stated motions , for example, on the return of a criminal case for an additional investigation or its termination, etc. 12.
Witnesses removed from the courtroom must remain in a designated room while awaiting a call, or the bailiff must otherwise prevent their communication with the interrogated witnesses. It is also acceptable for some of the witnesses to be released from the court premises with summonses to appear in court on other days or times.
Establishing the identity of the defendant and the timely delivery of a copy of the indictment or indictment to him is regulated by the Code of Criminal Procedure of the Russian Federation13. The personality of the defendant, including his personal data, is thoroughly studied at the stage of preliminary investigation; without this, it (the investigation) cannot be considered completed. The court checks this data and compares the defendant's answers with documented information contained in the preliminary investigation materials.
If the case is considered in the manner provided for in Part 5 of Article 247 of the Code of Criminal Procedure of the Russian Federation, the presiding judge will find out whether and when exactly the following has been handed over to the defendant’s defense lawyer:
a) a copy of the indictment;
b) the prosecutor's decision to change the charges.
Moreover, if the case is considered in the manner prescribed by Part 5 of Article 247 of the Code of Criminal Procedure of the Russian Federation, the trial cannot begin earlier than seven days from the date of delivery of a copy of the relevant document to the defendant’s defense lawyer14.
Clarification of the rights, duties and responsibilities of the persons participating in the case, namely the presiding officer explains the rights to the defendant, as well as the rights, duties and responsibilities of the victim, civil plaintiff, civil defendant and their representatives, expert, specialist.
In the preparatory part of the court session, the presiding officer is obliged to find out whether the parties have requests to call new persons - bearers of evidentiary information - and to take appropriate judicial actions in order to obtain new evidence with the help of these persons (witnesses, experts, specialists), as well as to request material evidence and documents or the exclusion of evidence obtained in violation of the requirements of the law. After hearing the requests of the parties and other participants in the trial, the court is obliged to find out their opinion regarding the stated requests and only after that make an appropriate decision. The court's decision to refuse to satisfy the petition must be motivated in the ruling or ruling15. In this case, the court does not have the right to refuse to satisfy a request to question a witness or specialist who has appeared in court at the initiative of the parties.
Resolving the issue of the possibility of considering a criminal case in the absence of any of the participants in criminal proceedings completes the preparatory part of the trial, after which the presiding officer announces the start of the judicial investigation.
If any of the persons summoned to the court session fail to appear, the court hears the opinions of the parties on the possibility of proceedings in the case in the absence of the person who failed to appear. After which he issues a ruling or order to postpone the trial or to continue it. At the same time, the court takes measures to summon or bring the participant who failed to appear.
The next stage of the trial is the judicial investigation, which is the central part of the trial, in which the court, with the participation of the parties, directly examines the evidence in order to establish the circumstances necessary for the legal, reasonable and fair resolution of the criminal case.
The judicial investigation in cases of public prosecution begins with the state prosecutor presenting the charges brought against the defendant—an innovation. In the previous Code of Criminal Procedure of the RSFSR of 1960, there was no specific indication of who should formulate the charge at the very beginning of the trial. It only contained a general provision, according to which “the judicial investigation begins with the announcement of the indictment” (Part 1 of Article 278) 16. According to the tradition that has developed in practice, the indictment was announced by the presiding judge at the court hearing.
The solution to this procedural issue contained in the current Code of Criminal Procedure of the Russian Federation, of course, is much more consistent with the role of the court, as well as the role of the presiding judge in the court session and the role of the public prosecutor in criminal proceedings.
The next stage of the judicial investigation is the procedure for examining evidence, which reflects the principle of adversarial criminal proceedings: the prosecution presents evidence first in the trial, then the defense; the order of examination of the evidence presented by each party is determined by the party, based on the tactics it chose in the trial. If several defendants are involved in a criminal case, the order in which they present evidence is determined by the court.
Then the defendant is interrogated. Then the parties interrogate the victim. Witnesses are called for questioning into the courtroom from the room where they are waiting to be called, one by one, while witnesses who have already been questioned remain in the courtroom. This procedure is intended to ensure the interrogation of witnesses in conditions that exclude communication between interrogated and unexamined witnesses to “coordinate” their testimony.
The moral and legal core of the interrogation of a witness in court forms a constitutional provision, according to which no one is obliged to testify against himself, his close relatives and his spouse.
If the witnesses who appeared at the court session testify about the same circumstances of the crime committed or data characterizing the defendant’s personality, marital status, etc., due to which one of the parties makes a motion to terminate the interrogation of other witnesses summoned to testify about in the same circumstances of the case, the court does not have the right to satisfy it if the party on whose initiative the request for their interrogation was filed objects to this17.
An integral procedure of a judicial investigation is the examination of material evidence18. In accordance with the requirements of orality and immediacy, information contained in material evidence can be used as the basis for a verdict only after their inspection and oral judgment during such an inspection, which must be reflected in the minutes of the court hearing. Not only the parties and not only experts and specialists can take part in the examination of material evidence; objects and documents - material evidence - can also be presented during the interrogation of witnesses.
The process and results of the judicial examination of physical evidence must be clear to all participants in the trial and the public. The examination of objects using special technical means, the operation of which is understandable only to a specialist, is not an inspection. This action falls into the category of expert research19. Inspections of bulky material evidence, such as damaged cars, airplanes, etc., are carried out by the court together with the parties at their location. The progress and results of the inspection are recorded in the minutes of the court session at the inspection site.
Along with examining physical evidence, the court may also carry out some investigative actions: inspection of the area and premises, examination, investigative experiment, presentation for identification.
The final stage of the judicial investigation is its completion, when the presiding judge believes that the evidence, both collected in the criminal case during the preliminary investigation and presented directly at the court hearing, has been fully examined. If, in response to the subsequent question of the presiding officer, none of the parties declares the need to study new evidence, the judicial investigation is declared completed and it can be resumed only if there are special reasons provided for by the Code of Criminal Procedure.
The next stage of the trial is the debate between the parties and the final word of the defendant20.
Debate is a stage of the trial, consisting of speeches by the prosecutor and defense attorney, as well as speeches by other participants in which they sum up the results of the judicial investigation. As a rule, speeches should analyze the proof of the crime, its factual circumstances, the consequences that occurred (moral, physical or property harm), the legal assessment of the act, information about the identity of the victim and the defendant, the causes and conditions that contributed to the commission of the crime. The speech must contain conclusions about the guilt (innocence) of the defendant, provide justification for the qualification of the crime, indicate the type and amount of punishment or exemption from it or acquittal of the defendant, express thoughts about the fate of the civil claim, as well as other issues arising from the case21.
The importance of judicial debates lies in the fact that they serve to form the internal conviction of judges based on a comprehensive and in-depth analysis of all the circumstances of the case. They help participants in judicial debates understand the positions of other participants in the negotiations, and citizens present in the hall - understand the essence and circumstances of the case, understand the degree of danger of the crime and its consequences. The law establishes an exhaustive list of participants in the debate of the parties: the prosecutor, the defense lawyer, the defendant in the absence of a defense lawyer, the victim and his representative. The civil plaintiff, civil defendant, their representatives and the defendant have the right to petition for participation in the debate of the parties.
Participation in judicial debates is mandatory for the public prosecutor and defense attorney.
If the victim and his representative take part in the judicial debate, they make their speeches before the defense attorney or the defendant speaks (if the defense attorney does not participate in the trial).
After speeches have been made by all participants in the debate, the presiding officer is obliged to find out the desire of the participants in the judicial debate to take the floor for a remark.
At the end of all speeches, the presiding judge declares the judicial debate over and gives the last word to the defendant. The last word of the defendant is an independent part of the trial, in which the defendant addresses the court and expresses his attitude to the crime charged to him and the results of the trial. During the last word, no questions are allowed to the defendant. In this case, the court does not have the right to limit the duration of the last word, but the judge has the right to stop the defendant in cases where the circumstances outlined by him are not relevant to the criminal case under consideration22. Pronouncing the last word is not an obligation for the defendant. He has the right to refuse it without giving a reason. The defendant's refusal to speak must be recorded in the minutes of the court hearing.
The defendant cannot be deprived of the last word for improper behavior in a court session, even if he was removed from the courtroom before the end of the arguments of the parties. And in this case he should be given the right to the last word. The last word may be interrupted by the presiding judge if the defendant behaves inappropriately, for example, uses foul language, insults participants in the process or other persons, or makes threats against them or the court. The court has the right to do this if the defendant divulges state secrets or tries to provide information about the intimate side of the lives of participants in the process or other persons23.
The decision to resume the judicial investigation is made by the court if the participants in the process during the judicial debate or the defendant in the last word report new circumstances relevant to the case, or declare the need to present new evidence to the court for examination. After the judicial investigation, the court reopens the debate between the parties and gives the last word to the defendant.
Having heard the last word of the defendant, the court immediately retires to the deliberation room to make a decision and further pronounce the verdict, which the presiding officer announces to those present in the courtroom, and also notifies the participants in the proceedings about the time the verdict is announced24.
The final stage of criminal proceedings is the sentencing, which is the procedure established by law for the court to make a given judicial decision on the basis of directly examined evidence. Deciding a verdict is a complex concept; its content is made up of judges discussing issues to be resolved, voting on these issues, drawing up a verdict, signing it and proclaiming it. The Code of Criminal Procedure established that “the verdict is decided by the court in the deliberation room”25. This does not mean at all that the proclamation of the verdict, which takes place in the courtroom, is not covered by the concept of “delivery of a sentence.” Only after the pronouncement of the verdict can it be argued that its decision has taken place.
A verdict is a decision on the innocence or guilt of the defendant and the imposition of punishment on him or on his release from punishment, made by a court of first instance or appellate instance26. The significance of the verdict lies in the fact that it is the main act of justice in criminal cases, since a person is found guilty only by a court verdict that has entered into legal force27. It is the court verdict that has entered into legal force that is the basis for the execution of the punishment. 28
Legality, validity and fairness - these most important properties of a sentence - are considered in the Code in organic unity, which gives the sentence a new, integral quality of “justice”. The law establishes criminal liability for judges passing a “knowingly unjust sentence”29.
The Code of Criminal Procedure of the Russian Federation directly provides for issues that must be resolved by the court when rendering a sentence.
When rendering a verdict, the court in the deliberation room resolves the following issues:
1) whether it has been proven that the act of which the defendant is accused took place;
2) whether it has been proven that the defendant committed the act;
3) whether this act is a crime and what paragraph, part, article of the Criminal Code of the Russian Federation provides for it;
4) whether the defendant is guilty of committing this crime;
5) whether the defendant is subject to punishment for the crime he committed;
6) whether there are circumstances mitigating or aggravating the punishment;
7) what punishment should be imposed on the defendant;
are there any grounds for passing a sentence without imposing punishment or exemption from punishment;
9) what type of correctional institution and regime should be determined for the defendant when assigning him a sentence of imprisonment;
10) whether the civil claim is subject to satisfaction, in whose favor and in what amount;
11) other issues resolved within the framework of civil proceedings30.
The law also distinguishes between the types of sentences passed by the court in criminal cases. The existence of acquittal and conviction is due to the differences in the decisions they contain on the main issues of the criminal case. If the court does not establish the event of a crime, or the defendant is not involved in the commission of a crime, or there is no corpus delicti in the defendant’s act, or, finally, an acquittal is rendered against the defendant, the court issues an acquittal. Conversely, the court pronounces a guilty verdict if the defendant’s guilt of the crime is proven in the manner established by the Code of Criminal Procedure. Everyone accused of committing a crime is considered innocent until his guilt is proven in the prescribed manner and established by a court verdict that has entered into legal force. This is the essence of the presumption of innocence of the accused.
The guilt of the defendant can be proven if it is confirmed by a sufficient and consistent body of evidence examined in court. A conviction cannot be based on assumptions.
The verdict in a criminal case consists of three parts: introductory, descriptive and motivating and operative. The content of the introductory part is the same for all types of sentences, but the descriptive, motivational and operative parts of acquittal and conviction sentences are different.
After signing the verdict, the court returns to the courtroom and the presiding judge announces the verdict.
To summarize this issue, we can say that criminal proceedings, consisting of successive and interdependent stages, are represented by: the preparatory part, the judicial investigation, the pleadings of the parties, the last word of the defendant and the decision of the verdict by the court. These stages together, which make up the trial, are aimed at a complete, objective and effective consideration of criminal cases on the merits and sentencing to guilty persons.
Changing the application of a special procedure for making a judicial decision in criminal proceedings.
On July 20, 2020, Federal Law No. 224-FZ dated July 20, 2020 was published, in accordance with which amendments were made to Articles 314 and 316 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) regarding the application of a special procedure for judicial proceedings in a criminal case with consent the accused with the charge brought against him.
Currently, a special procedure can only be applied in criminal cases involving crimes of minor or medium gravity. To do this, the accused has the right to declare his agreement with the charge brought against him and petition for a verdict without holding a trial in the general manner.
The essence of the special order is that the accused pleads guilty to committing a crime.
In this case, the court does not consider the case on its merits, and evidence of the person’s guilt is not examined.
In fact, the amount of punishment, which when considering a case in a special order cannot be more than 2/3 of the maximum punishment, is influenced by characterizing data about the personality of the accused.
Until this moment, a special procedure could be applied in criminal cases, the maximum punishment for which does not exceed 10 years of imprisonment for intentional crimes.
With the entry into force of No. 224-FZ of July 20, 2020, the number of categories of crimes for which a special procedure can be applied has significantly decreased.
The legislator took the path of tightening the application of this procedure, prohibiting its use for serious crimes.
Justifying the changes being made, the legislator explained that the investigation of serious crimes is particularly difficult; therefore, the use of a special order in this category of cases, in the opinion of the RF Armed Forces, will not be able to provide a high degree of procedural guarantees of fair justice.
“It is possible to provide such guarantees only when considering a case in the general procedure of judicial proceedings under the conditions of the principle of immediacy and oral examination of evidence at a court hearing” is indicated in the explanatory note to the adopted law.
Thus, a large number of defendants were deprived of the opportunity to reduce their sentences by 1/3 of the maximum by applying a special procedure for serious crimes.
Their admission of guilt in itself does not guarantee a reduction in the sentence.
Thus, the Code of Criminal Procedure of the Russian Federation enshrines a differentiated approach to this issue - for crimes of minor and medium gravity, admission of guilt and consent to a special procedure is a guarantee for mitigation of the maximum punishment; for serious crimes there is no such guarantee anymore.
As an example, Art. 199 of the Criminal Code of the Russian Federation - evasion of taxes, fees payable by an organization, and (or) insurance premiums payable by an organization paying insurance premiums.
Part one of this article provides that when committing a crime on a large scale, which is set at more than 15 million rubles, the maximum punishment is provided in the form of imprisonment for up to two years.
Part two of the same article provides for the commission of a crime by a group of persons by prior conspiracy and/or on an especially large scale, exceeding 40 million rubles, and sets a maximum penalty of 6 years of imprisonment.
Thus, for the same crime, the possibility of applying a special procedure depends on the amount of established damage.
