FAQ: Imposing a court fine with exemption from criminal liability

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.

CONCEPT AND TYPES OF JUDICIAL ACTIONS OF AN INVESTIGATIVE NATURE

Abstract: The concept of judicial actions of an investigative nature is defined, the issues of classifying the disclosure of testimony of the defendant, victim and witness, protocols of investigative actions and other documents as judicial actions of an investigative nature, as well as issues of openness of the list of judicial actions of an investigative nature are analyzed.

CONCEPT AND TYPES OF LEGAL PROCEEDINGS THE INVESTIGATIVE NATURE OF CONCEPT AND KINDS OF JUDICIAL ACTIONS OF THE INVESTIGATIVE NATURE OF

Kurochkina JS

Udmurt state University, Izhevsk

Abstract: a notion of Judicial conduct investigation of nature, focuses on the issue of attributing the announcement of the testimony of the defendant, the victim and witnesses, protocols of investigative actions and other documents for court action the investigation of nature, and the openness of the list of judicial investigative nature.

In criminal procedural science, the issues of defining the concept of “judicial actions of an investigative nature”, the list of types of judicial actions of an investigative nature, as well as the openness (closedness) of the list of judicial actions of an investigative nature remain controversial to this day. This is largely due to the lack of a legislatively defined concept of the judicial actions of an investigative nature under consideration.

In the scientific literature, many authors express their point of view regarding this definition.

S.A. Aleksandrova defines judicial actions of an investigative nature as “procedural joint actions of participants in criminal proceedings carried out within the framework of a judicial investigation under the organizational leadership of the court, whose purpose is to collect, verify, evaluate evidence, the progress and results of which are recorded in a single source of evidence - the protocol of the court session” [ 1].

According to S.V. Shvets “judicial actions of an investigative nature as procedural actions to obtain, study and evaluate evidentiary information, carried out by participants in criminal proceedings jointly within the framework of a judicial investigation under the organizational leadership of the court” [8].

From L.A.'s point of view Zashlyapina “judicial actions of an investigative nature are procedural actions carried out by the court during the judicial investigation for the purposes of direct research, verification and evaluation of evidence presented by the prosecution (preliminary investigation bodies) and the defense” [4 p. 98].

We believe that the position of the above authors regarding the definition of a concept through genus and species differences is logically justified and formally logical.

In accordance with Article 5, paragraph 32 of the Code of Criminal Procedure of the Russian Federation - a procedural action - investigative, judicial or other action provided for by this Code. From the content of this norm of law it follows that any judicial action is a procedural action, which is its generic characteristic.

When determining the specific characteristics (that is, the characteristics by which judicial actions of an investigative nature differ from other procedural actions), the positions of the authors S.A. Alexandrova, S.V. Shvets and L.A. Zashlyapina diverged somewhat.

S.A. Alexandrova and S.V. Shvet, one of the specific features of the concept under consideration includes the joint conduct of judicial actions by participants in criminal proceedings. L.A. Zashlyapin, in turn, emphasizes that these procedural actions are carried out by the court. L.A.'s position Zashlyapina seems more justified not only in connection with the arguments he presented. To confirm the correctness of this judgment, it should be noted that a judicial action is carried out on the basis of a procedural court decision on its conduct (as a necessary element of the system of judicial actions of an investigative nature):

- the defendant and the victim have the right to testify at any time during the judicial investigation with the permission of the presiding judge (Article 254, Part 3 of the Code of Criminal Procedure of the Russian Federation, Article 277, Part 2 of the Code of Criminal Procedure of the Russian Federation);

- the decision to question an expert and order an examination is decided by the court on its own initiative or at the request of the parties (Article 282, Part 1 of the Code of Criminal Procedure of the Russian Federation, Article 283, Part 1 of the Code of Criminal Procedure of the Russian Federation);

- the disclosure of protocols of investigative actions, expert opinions, data during the preliminary investigation, as well as other documents attached to the criminal case or presented at the court hearing, is carried out on the basis of a ruling or court order (Article 285 Part 1 of the Code of Criminal Procedure of the Russian Federation);

— the examination is carried out on the basis of a ruling or court order (Article 290, Part 1 of the Code of Criminal Procedure of the Russian Federation).

The content of some norms of criminal procedure legislation directly stipulates the conduct of judicial action by the court, as follows:

- examination of material evidence can be carried out by the court at the place of its location (Article 284, Part 2 of the Code of Criminal Procedure of the Russian Federation);

- an inspection of the area and premises is carried out by the court with the participation of the parties (Article 287, Part 1 of the Code of Criminal Procedure of the Russian Federation);

— the investigative experiment is carried out by the court with the participation of the parties (Article 288 Part 1 of the Code of Criminal Procedure of the Russian Federation);

The judicial investigation is one of the most important stages of the trial, which is carried out by the unchanged composition of the court (Article 242 of the Code of Criminal Procedure of the Russian Federation). This principle of judicial proceedings is very important, since the final decision in a criminal case can only be made by the judge (court panel) who directly examined all the evidence presented. It is the court, within the framework of the judicial investigation, that organizes and conducts judicial actions of an investigative nature. The remaining participants in the trial only participate in the actions carried out by the court.

The position of S.A. deserves a positive assessment. Aleksandrova, who indicated as a specific feature of judicial actions of an investigative nature - recording the progress and result of these actions in the minutes of the court session. The correctness of this judgment lies in the fact that this type of feature is specific to judicial actions of an investigative nature and distinguishes it from other procedural actions, for example, investigative ones. In accordance with Article 74 Part 2 of the Code of Criminal Procedure of the Russian Federation, protocols of investigative and judicial actions are allowed as evidence. According to Article 259, Part 3 of the Code of Criminal Procedure of the Russian Federation, the minutes of the court session must indicate, among other things: the actions of the court in the order in which they took place during the court session; detailed content of the testimony; questions asked to the interrogated and their answers; the results of inspections and other actions to examine evidence carried out at the court hearing. From the foregoing it follows that recording the progress and results of judicial actions of an investigative nature in the minutes of the court session gives legitimacy to the evidence obtained and the possibility of their use by the court when making a final decision in a criminal case.

It is advisable to include in the concept of “judicial actions of an investigative nature” an indication that they are strictly regulated by the criminal procedural law. An analysis of the scientific literature shows that the issue of openness and closure of the list of judicial actions of an investigative nature is debatable.

E.B. Kuzin supported the point of view of V.M. Bozrov and V.M. Kobyakov, coming to the conclusion that this list is open, which allows the court to carry out investigative actions at a court hearing that are not directly included in the list of judicial actions of an investigative nature, but provided for by criminal procedural legislation during the preliminary investigation [5].

L.A. Zashlyapin quite reasonably criticizes the position of E.B. Cousin on this issue, noting that

“the criminal procedure law provides a clear list of procedural actions of procedural actions (Articles 275, 277, 278, 280, 282, 283, 284, 287, 288, 289, 290 of the Code of Criminal Procedure of the Russian Federation), which together with the normatively defined goal of implementing these actions (h 1, Article 240 of the Code of Criminal Procedure of the Russian Federation - direct research) give an obvious (closed in the criminal procedure law) scope of the concept ... "[3]. L.A.’s arguments are logical and justified. Zashlyapin that the use in judicial practice of investigative actions that are not directly included in the list of judicial actions of an investigative nature is a manifestation of right-wing nihilism, leading to the formation of unacceptable evidence[3]. These arguments are fully consistent with the basic provisions of the criminal procedure law, which exclude any arbitrariness in the actions of participants in legal proceedings, including the court:

- the procedure for criminal proceedings established by this Code is mandatory for courts, prosecutors, preliminary investigation bodies and inquiry bodies, as well as other participants in criminal proceedings (Part 2 of Article 1 of the Code of Criminal Procedure of the Russian Federation);

— violation of the norms of this Code by a court, prosecutor, investigator, investigative agency or interrogator during criminal proceedings entails the recognition of evidence obtained in this way as inadmissible (Part 3 of Article 7 of the Code of Criminal Procedure of the Russian Federation).

Taking into account the above, the following concept of judicial actions of an investigative nature is proposed - these are procedural actions provided for by the criminal procedural legislation, carried out by the court during the judicial investigation, aimed at direct research, verification and evaluation of evidence, the progress and results of which are recorded in the minutes of the court session.

Types of judicial actions of an investigative nature are listed in Chapter 37 of the Code of Criminal Procedure of the Russian Federation: interrogation of the defendant (Article 275 of the Code of Criminal Procedure of the Russian Federation), reading out the testimony of the defendant (Article 276 of the Code of Criminal Procedure of the Russian Federation), interrogation of the victim (Article 277 of the Code of Criminal Procedure of the Russian Federation), interrogation of witnesses (Article 278 of the Code of Criminal Procedure of the Russian Federation) RF), announcement of the testimony of the victim and witnesses (Article 281 of the Code of Criminal Procedure of the Russian Federation), interrogation of an expert (Article 282 of the Code of Criminal Procedure of the Russian Federation), conducting a forensic examination (Article 284 of the Code of Criminal Procedure of the Russian Federation), disclosure of protocols of investigative actions and other documents (Article 285 of the Code of Criminal Procedure of the Russian Federation ), inspection of the area and premises (Article 287 of the Code of Criminal Procedure of the Russian Federation), investigative experiment (Article 288 of the Code of Criminal Procedure of the Russian Federation), presentation for identification (Article 289 of the Code of Criminal Procedure of the Russian Federation), examination (Article 290 of the Code of Criminal Procedure of the Russian Federation).

Disputes continue in the scientific community about the possibility of classifying judicial actions of an investigative nature - the disclosure of testimony of the defendant, victim, witnesses, protocols of investigative actions and other documents.

S.A. Aleksandrova classifies these actions as judicial actions of an investigative nature, indicating that the purpose of these actions is not only to obtain new evidence, but also to study, verify and evaluate evidence collected during the preliminary investigation, as well as to identify and eliminate contradictions between the content of evidence [ 1, p.129].

O.Ya. does not agree with this position. Baev and I.B. Mikhailovskaya, pointing out that during the reading of testimonies of participants in the process, protocols of other investigative actions and other documents, no new evidence is collected and presented [2 p. 220, 223, 6 p. 46]. E.B. adheres to the same position. Kuzin, noting that when reading out the testimony of participants in the process, protocols of investigative actions and other documents, the court does not control cognitive activity and does not have direct contact with the carriers of evidentiary information[5]. This opinion is shared by L.A. Zashlyapin, pointing out that these judicial actions do not meet the fundamental provision on the directness of the study of evidence, are not a study of evidence [4 p.101].

Supporting the point of view of S.A. Alexandrova, the arguments of her opponents seem unfounded and contradictory. L.A.'s position Zashlyapina that the disclosure of testimonies of participants in the process, protocols of investigative actions and other documents do not constitute an examination of evidence and have no logical and legal justification. In accordance with Art. 74 Part 1 of the Code of Criminal Procedure of the Russian Federation - evidence in a criminal case is any information on the basis of which the court, prosecutor, investigator, inquirer, in the manner prescribed by this Code, establishes the presence or absence of circumstances to be proven, as well as other circumstances relevant to the criminal case affairs. By virtue of Article 74 Part 2 of the Code of Criminal Procedure of the Russian Federation, protocols of investigative and judicial actions, an expert’s opinion, a specialist’s opinion, and other documents are allowed as evidence. Based on the specified norms of criminal procedural legislation - protocols of interrogation of the accused (suspect, victim, witness, protocols of investigative actions, expert opinions, specialist opinions and other documents - are evidence in a criminal case that can be examined by the court by reading them out during the judicial investigation The principle of immediacy, provided for in Article 240 Part 1 of the Code of Criminal Procedure of the Russian Federation, is not violated when examining this evidence, since the court directly contacts and examines it. Otherwise, this evidence would not be possible to form the basis of a verdict. Here we can only talk about indirectness the type of evidence itself, but not about the indirectness of the perception of this evidence.

The arguments that in this case new evidence is not collected and presented do not fully correspond with the content of Article 285 Part 1 of the Code of Criminal Procedure of the Russian Federation, according to which the disclosure of protocols of investigative actions and other documents also includes documents presented for the first time at the court hearing. These also include an expert’s conclusion given based on the results of a forensic examination, as well as an examination report carried out during a judicial investigation, since other articles do not provide for the disclosure of these documents.

I would also like to note that each of the discussed judicial actions (disclosure of testimony of the defendant, victim, witnesses, protocols of investigative actions and other documents) fully complies with all the specific characteristics of the concept “judicial actions of an investigative nature” proposed in this article, as well as the specific characteristics defined in terms of the authors S.A. Alexandrova, S.V. Shvets, L.A. Shlyapina. This is decisive when deciding whether to include them in the list of judicial actions of an investigative nature.

Bibliography

1. Alexandrova S.A. Judicial actions carried out by the court of first instance in criminal proceedings in Russia: concept, types, procedural regime // dissertation of a candidate of legal sciences. Voronezh, 2010.

2. Baev O.Ya. Fundamentals of methods of criminal prosecution and professional defense against it: scientific and practical manual//M 2009.

3. Zashlyapin L.A. Feedback from the official opponent on Evgeniy Borisovich Kuzin’s dissertation for the degree of candidate of legal sciences on the topic “Improving the system of judicial investigative actions in order to ensure justice” // https://www.iuaj.net/node/868.

4. Zashlyapin L.A. Judicial actions of an investigative nature as a scientific metaphor // Yurlitinform. M. 2010.

5. Kuzin E.B. On the issue of openness of the list of judicial actions of an investigative nature // Bulletin of SUSU. No. 27. 2011.

6. Mikhailovskaya I.B. The relationship between judicial and investigative evidence//State and Law. No. 9. 2006.

7. Criminal Procedure Code of the Russian Federation//M. EXMO. 2015.

8. Shvets S.V. Tactical features of judicial actions of an investigative nature in the conditions of the need to use translation // Theory and practice of social development No. 14. 2014.

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.

Commentary on Article 291 of the Code of Criminal Procedure of the Russian Federation

1. By supplementing the judicial investigation we mean carrying out additional judicial investigative actions to collect and verify evidence, as well as the court’s addition to the case at the request of the parties of new objects and documents as evidence. However, if necessary, the trial may be postponed.

2. The announcement of the end of the judicial investigation does not mean that the judicial investigation in this case can no longer be resumed (see about this in Article 294). If the parties declare before the end of the defendant’s last word about the need to present new evidence, the court, by its decision, has the right to resume the judicial investigation. The presentation of new evidence after the end of the judicial investigation is announced and before a decision is made to resume it is unacceptable.

Another comment on Article 291 of the Code of Criminal Procedure of the Russian Federation

1. By the end of the judicial investigation, the court must find out whether all the evidence has been examined. If it turns out that not all the evidence has yet been examined, the court is obliged to continue the judicial investigation, and, if necessary, postpone further trial.

2. The defendant, defense attorney, public prosecutor, private prosecutor, as well as the victim, civil plaintiff, civil defendant and their representatives have the right to apply to the court with petitions to call additional witnesses, to order an examination, to request documents, etc. These persons have the right to petition for carrying out any investigative actions that may be carried out by the court.

3. Each of the submitted petitions, including those previously rejected, is subject to discussion and resolution. The court has the right to satisfy or reject the stated petition.

A reasoned ruling or resolution is issued to reject the petition. If the petition is granted, the court is obliged to take measures to implement it: carry out the necessary procedural actions or postpone the consideration of the case for this purpose and even suspend the proceedings on it.

4. In cases where no applications to supplement the judicial investigation have been received, or when the petition is rejected by the court, or when the court has completed the necessary actions on the stated petitions, the presiding officer declares the judicial investigation completed.