Stages of a court hearing in civil proceedings. Thesis: Litigation
Introduction
Chapter 1. The essence and significance of the trial stage
1.1 Trial as a stage of the criminal process and its general conditions
1.2 Participants in the trial
Chapter 2. Characteristics of the stages of the trial
2.1 Preparatory part of the trial
2.2 Judicial investigation
2.3 Argument of the parties and the last word of the defendant
2.4 Sentencing
Conclusion
Bibliography
Introduction
The trial and its stages are the central stage of the criminal process, in which not only the outcome of all previous procedural activities is summed up, but, most importantly, the main issues of the criminal case are finally resolved - the presence or absence of a crime and the guilt of the defendant in committing it. Being one of the forms of implementation judiciary, the trial is designed to ensure the establishment of all the circumstances of the case under consideration, their correct legal assessment and the issuance of a final decision on this basis - a sentence. Only based on the results of a study conducted at the trial stage, a person can not only be found innocent and acquitted (rehabilitation of an innocent person is also possible at other stages of the process), but also found guilty of a crime and subjected to criminal punishment.
Trial is a stage of the criminal process at which the court, in its hearing, based on the examination of evidence, decides on the guilt or innocence of the defendant, on the imposition of criminal punishment and some other related issues. It is usually called the central and main stage, because it is at this stage that the issue of the criminal liability of a citizen who has violated a criminal law prohibition before the state is decided. No one can be found guilty of committing a crime, or subjected to criminal punishment except by a court verdict, which is decided based on the results of the trial. It is at this stage that justice is administered in criminal cases.
The trial has important for the formation of civil legal consciousness. A legal, justified and fair verdict, as well as another judicial decision that crowns this stage, is not only a legal prerequisite for the application of a system of state coercive measures against the perpetrator, but also a strong prophylactic, the effect of which extends to everyone, proving the inevitability of punishment, strengthening faith in the triumph of legality and justice. And, of course, on the contrary, judicial injustice, an error, no matter how it is caused, has a negative effect on legal consciousness, has a corrupting influence on it, undermining respect for justice, and ultimately the authority of all state power; its support loses stability.
Chapter 1. The essence and significance of the trial stage
§1.1 Trial as a stage of the criminal process and its general conditions
The trial is subject to the rules established by law - requirements that, by specifying and detailing the principles of the criminal process, apply to the trial at the named stage, reflecting its essential features. These rules are called the general conditions of trial. From general conditions it is necessary to distinguish between the regulatory rules of judicial proceedings - a set of norms of conduct established by the Code of Criminal Procedure of the Russian Federation for participants in judicial proceedings, which determine outside court session, giving it, in a certain sense, a ritualistic and solemn character, designed to provide an educational impact and beneficial influence procedures for the administration of justice on the formation of civil legal consciousness. According to Article 257 of the Code of Criminal Procedure of the Russian Federation, when judges enter, everyone present in the courtroom stands up. All participants in the trial address the court, testify and make statements while standing. Deviations from this rule may only be permitted with the permission of the presiding officer. Participants in the trial, as well as other persons present in the courtroom, address the court with the words “Dear Court”, and the judge - “Your Honor”.
Among the general conditions, in the first place are three interrelated rules - on immediacy, orality and publicity of the trial.
Immediacy as a general condition of judicial proceedings relates to the examination by the court of first instance of evidence in a criminal case and lies in the fact that the court (judge) must conduct an appropriate judicial investigation (interrogation, inspection, reading out documents, hearing
expert opinions) must be performed only by yourself. It cannot entrust any of these actions to another court (for example, if it is impossible for a witness to appear), as is the case during the preliminary investigation. A court verdict can be based only on the evidence that was examined in this court hearing, the progress and results of the investigation of which were reflected in the minutes of this court session. The most convincing materials of the preliminary investigation, bypassing the direct perception of the court, cannot be used to substantiate the conclusions contained in the court verdict.
The oral nature of the trial means that all factual data constituting the content of any evidence in the judicial investigation must be read out and heard in the courtroom, that the entire criminal proceeding constitutes a court agreement and that not a single piece of evidence obtained during the preliminary investigation and silently studied by the judge , cannot be the basis of the sentence under any circumstances.
The publicity of a criminal trial is expressed in the fact that the case is considered in open court. Therefore, any adult citizen, as well as representatives of state and municipal media, have the opportunity to record everything that happens in him and report on the process unlimitedly to a wide circle persons, and no one has the right to prevent this. The transparency of judicial proceedings is derived from the transparency of all public life, and such transparency is one of the most reliable indicators of the health of a democratic civil society. The principle of publicity of legal proceedings is reflected in the Universal Declaration of Human Rights of 1948 (Article 10) and in the International Covenant on Civil and Political Rights of 1966 (Article 14). According to Article 123 of the Constitution of the Russian Federation, proceedings in all courts are open. Hearing a case in closed session is allowed only in cases provided for by federal law. Part one of Article 241 of the Code of Criminal Procedure of the Russian Federation states that criminal proceedings in all courts are open, except for the cases provided for by this article.
Case one: when public proceedings may lead to the disclosure of state or other secrets protected by federal law. Most often, the need to close the process arises when a criminal court is considering materials obtained by bodies carrying out operational investigative activities (special services), primarily the criminal police, including its units for combating organized crime, and authorities Federal service security, because the information they use when carrying out covert, secret operational-search activities, about the results of such activities, about persons embedded in organized groups, about full-time and non-staff employees embedded in such groups, about persons providing assistance to special services on a confidential basis, and about many other things contain state secrets (Article 13 of the Federal Law “On Operational-Investigative Activities”).
The second case: when criminal cases of crimes committed by persons under the age of sixteen are considered. IN similar cases the closure of the trial was dictated by educational and moral considerations, because there is a teenager in the dock.
The third case: when the consideration of a criminal case against sexual integrity and sexual freedom of the individual and other crimes may lead to the disclosure of information about intimate parts the lives of participants in criminal proceedings or information that humiliates their honor and dignity. This rule follows from the principle of respect for the honor and dignity of the individual in criminal proceedings, formulated in Art. 9 of the Code of Criminal Procedure of the Russian Federation.
The fourth case: when the closure of the process is required by the interests of ensuring the safety of the participants in the trial and their close relatives.
A person under the age of sixteen, if he is not a participant in criminal proceedings, is allowed into the courtroom with the permission of the presiding judge.
In all cases, the decision to close the trial is allowed by a ruling of the court, if it is sitting in a collegial composition, or by a decision of the judge, if the case is being considered by him alone. A criminal case in a closed court session is considered in compliance with all the rules of criminal proceedings. A court ruling or order to consider a criminal case in a closed session may be made in relation to the entire trial or its relevant part.
Correspondence, recordings of telephone conversations, telegraphic, postal and other messages of persons may be read out in an open court session only with their consent. IN otherwise the specified materials are read out and examined in a closed court session. These requirements also apply when examining photographic materials, audio and (or) video recordings, and filming of a personal nature.
Persons present at an open court hearing have the right to keep a written record. Photographing, video recording and (or) filming is permitted with the permission of the presiding judge at the court hearing and with the consent of the parties, if this does not create obstacles to the trial. These types of recording of a trial are prohibited, regardless of whether the prohibition applies to a member of the public, a member of the media, or participants in the trial. It (the prohibition) is considered justified mainly in cases where the use of appropriate recording technology causes objections from the parties, including the defendant, when it creates noise, tension and fuss in the courtroom, and also when the prohibition is dictated by considerations of ensuring the safety of the participants in the process, because in this regard, any measure is not superfluous. Audio recording cannot be prohibited, which is often used because a person has difficulty seeing, hearing, perceiving or remembering, but wants to understand the matter from the recording. Audio recording is silent and fuss-free; its ban would be equivalent to the ban on recording in pencil, which would mean an unjustified “truncation” of the publicity of the trial.
The court's verdict is announced in open court in all cases without exception. If a criminal case is considered in a closed court session, only the introductory and operative parts of the verdict may be read out. In this way, the factual circumstances (plot) of the case remain closed.
According to Article 242 of the Code of Criminal Procedure of the Russian Federation, a criminal case is considered by the same judge or by the same collegial composition of the court. If one of the judges is deprived of the opportunity to continue participating in the court session, he is replaced by another judge, and the trial of the criminal case begins again. This general condition to which judicial proceedings is subject is organically connected with the requirement of immediacy. Only the judge who participated in it from beginning to end can directly examine the evidence in a trial and make a final decision in a criminal case based on a personal, direct perception of the results of the court agreement. Deviation from this requirement is considered a significant violation of the criminal procedure law, entailing the reversal of the sentence and the return of the case for a new trial.
According to Article 243 of the Code of Criminal Procedure of the Russian Federation, the presiding judge presides over the court session, takes all prescribed measures to ensure adversarial and equal rights of the parties, ensures compliance with the order of the court session, explains to all participants in the trial their rights and obligations, the procedure for their implementation, and also introduces the rules of the court session, established by Article 257 of the Code of Criminal Procedure of the Russian Federation. Objections of any participant in the trial against the actions of the presiding officer are recorded in the minutes of the court session.
If a criminal case is considered by a single judge, he combines the responsibilities of both the entire court and the presiding judge at the given court session. If the case is considered collectively, the function of the presiding officer in this court session, on behalf of the head of the judicial body, is assumed by one of the members of the judicial panel. It is he who is obliged to take all measures provided for by law in order to provide all the conditions for a solemnly businesslike, thorough and, if possible, uninterrupted court hearing, to explain the rights and legitimate interests of all participants in the process without exception and to ensure their implementation. The authority of the court and justice in general largely depends on the behavior of the presiding judge.
Being at the disposal of the presiding officer, order in the court session is ensured by the bailiff - an official in the public service in the justice authorities, who has received the necessary special training and has the right to carry firearms and special means. When performing official duties, the bailiff wears a uniform. He carries out the orders of the presiding judge at the court hearing and exercises other powers assigned to him by law, namely: ensures the safety of judges and other participants in the process; executes court decisions on the application of procedural coercive measures to the defendant and other citizens; provides security for the meeting room; carries out the bringing of persons who evade appearing in court (Articles 4 and 11 of the Federal Law of the Russian Federation of July 21, 1997 “On Bailiffs”).
If order is violated at a court hearing, or disobedience to the orders of the presiding judge or bailiff, a person present in the courtroom is warned of the inadmissibility of such behavior, or is removed from the courtroom, or a monetary penalty is imposed on him in the manner established by Articles 117 and 118 of the Code of Criminal Procedure RF. If the prosecutor or defense attorney does not comply with the orders of the presiding judge, the hearing of the criminal case may be postponed by determination or order of the court, if it is not possible to replace this person with another without prejudice to the criminal case. At the same time, the court informs the superior prosecutor or the bar association about this. The defendant may also be removed from the courtroom until the end of the arguments between the parties. The verdict in this case must be proclaimed in his presence or announced to him against his signature immediately after the proclamation.
The secretary of the court session keeps the minutes of the court session. He is obliged to fully and correctly state in this protocol the actions and decisions of the court, as well as the statements, petitions and actions of the participants in the trial that took place during the court session. The secretary of the court session checks the appearance in court of persons who must participate in the court session, and, on instructions from the presiding officer, carries out other actions provided for by the Code of Criminal Procedure of the Russian Federation.
Before the start of the court session, the secretary of the court session, on behalf of the judge, performs a number of important organizational and technical actions: preparing and distributing subpoenas, notifying the prosecutor and lawyer if they are participating in this process, compiling and posting a list of cases to be considered at the court session. These are extra-procedural actions. Along with them, the secretary of the court session at the stage of the trial in a criminal case is an obligatory participant in the process, endowed with the corresponding procedural rights and responsibilities, the main and fundamental of which is keeping a protocol, competently, objectively and as fully as possible reflecting the progress of the court session as a whole and each judicial investigation separately. The secretary of the court session may be challenged; the issue of recusal is decided by the court. This circumstance also indicates that we are not talking about a technical figure, but about a participant in criminal procedural activity, on whose objectivity and impartiality the decision on the merits of the criminal case directly depends.
In judicial proceedings, there are objectively favorable conditions to implement the constitutional principle of administering justice on the basis of adversarialism and equality of the parties. Therefore, the legislator regulates in detail the participation of the parties in the court of first instance. According to Article 244 of the Code of Criminal Procedure of the Russian Federation, in a court hearing the parties have equal rights to file challenges and petitions, present evidence, participate in their research, speak in judicial debates, and submit written statements to the court on all issues arising during the trial.
According to Parts 1 and 2 of Article 246 of the Code of Criminal Procedure of the Russian Federation, the participation of a public prosecutor is mandatory in court hearings in criminal cases of public and private prosecution. If during the trial it becomes clear that it is impossible for the public prosecutor to further participate, he may be replaced. The court provides the public prosecutor who has re-entered the trial with time to familiarize himself with the materials of the criminal case and prepare for participation in the trial. Replacement does not entail a repetition of actions that have been taken during the trial at that time.
At the request of the public prosecutor, the court may repeat the interrogations of witnesses, victims, experts, or other judicial actions. The state prosecutor presents evidence and participates in its examination, expresses to the court his opinion on the merits of the charge, as well as on other issues arising during the trial, expresses to the court his assumptions about the application of the criminal law and the sentencing of the defendant, presents or supports the charges brought in a criminal case civil claim, if required by the protection of citizens' rights, public or state interests.
If during the trial the public prosecutor becomes convinced that the evidence presented does not support the charge brought against the defendant, he renounces the charge and sets out to the court his reasons for the refusal. A complete or partial refusal by the public prosecutor to withdraw charges during the trial entails the termination of the criminal case or criminal prosecution in whole or in the relevant part on rehabilitative grounds.
Such a refusal means the state abandons the “criminal claim” against the citizen; it predetermines the court's decision in accordance with the position of the public prosecutor, since the law proceeds from the fact that criminal proceedings are carried out on the basis of the principle of adversarialism and equality of the parties, and the formulation of the charge and its maintenance before the court is ensured by the prosecutor (clause 29 of the Plenum resolution Supreme Court RF dated March 5, 2004 No. 1 “On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation”). Since such a refusal excludes the conviction of the accused, in a number of cases it significantly infringes on the interests of the victim, who never received satisfaction and does not agree with the position of the state prosecutor. The Constitutional Court indicates the following way to resolve such conflicts: issuing a court decision on the rehabilitation of the defendant, conditioned by the refusal of prosecution, is permissible only after completing a study of the relevant materials of the case and hearing the opinions on this matter of the participants in the court hearing from the prosecution (the victim and his representative) and the defense. The legality, validity and fairness of such a decision can be certified by a higher court. At the same time, a superior prosecutor, if he establishes that public interests were not ensured by a lower prosecutor, has the right and obligation to cancel decision and (or) by stopping the actions he is carrying out, in other words, to disavow the refusal of the charge and resume it. Before the court retires to the deliberation room to decide the verdict, the public prosecutor may also change the charge towards mitigation by:
Exclusions from the legal qualification of the act of signs of a crime that aggravate the punishment;
Reclassification of the act in accordance with the norm of the Criminal Code of the Russian Federation, providing for a more lenient punishment.
A review of a court ruling or ruling to terminate a criminal case due to the public prosecutor's refusal to charge is allowed only in the presence of new and newly discovered circumstances. The termination of a criminal case due to the refusal of the state prosecutor to charge, as well as his change of charge, does not prevent the subsequent filing and consideration of a civil claim in accordance with the procedure civil proceedings.
The trial of a criminal case is carried out with the mandatory participation of the defendant. If the defendant fails to appear, the consideration of the criminal case must be postponed. The court has the right to bring a defendant who fails to appear in court without good reason, as well as apply or change a preventive measure against him.
The trial takes place with the participation of the victim and (or) his representative, unless otherwise provided by parts 2 and 3 of this article.
In criminal proceedings, the defendant’s defense attorney also participates, examines the evidence, makes motions, expresses to the court his opinion on the merits of the charge and its proof, on the circumstances mitigating or justifying the defendant’s punishment, on the measure of punishment, as well as on other issues that arise. during the trial.
An important separate group of general conditions of a trial is formed by the rules-requirements for the limits (framework, format) of the trial, the meaning of which is that the trial is conducted only in relation to the accused and only on the charge brought against him. Changing the charge in court proceedings is allowed only if this does not worsen the situation of the defendant and does not violate his right to defense (Article 252 of the Code of Criminal Procedure of the Russian Federation). In other words, during the trial of a criminal case, the defendant cannot be charged with anything that is not contained in the three most important criminal prosecution cases. procedural acts: a) a decision to implicate him as an accused; b) indictment; c) the judge’s decision to schedule a court hearing - in a word, what he suddenly learned about, about which he was not questioned and from which he did not defend himself before the trial.
Nevertheless, changing the charge at the trial stage is possible, but only with the strictest adherence to the rule about the inadmissibility of a turn for the worse (for the defending party). This means that the charge in a court hearing can legally be changed only by: a) excluding from it certain episodes of criminal activity; b) requalification to another article of the Special Part of the Criminal Code of the Russian Federation, providing for a less severe punishment; c) reducing the amount of harm caused by the crime; d) excluding indications of circumstances aggravating criminal liability and other circumstances having a criminal legal significance of a negative nature, unfavorable for the defendant. If, at the trial court hearing, one of several charges has not been confirmed by evidence, then the trial of the case should end with the acquittal of the defendant on this charge and a guilty verdict on other charges (for example, acquitted of robbery and convicted of rape). But even if the rule on the inadmissibility of a turn for the worse in a court hearing is observed, the charge cannot be changed so much that its factual basis differs significantly from the original one. In other words, it cannot be allowed to become “unrecognizable,” since such an unexpected turn in the criminal prosecution, by its suddenness, violates the accused’s right to defense.
During the trial, sometimes circumstances arise that make it impossible to conduct the trial due to the failure of any of the participants in the trial or other summoned persons to appear at the court hearing, as well as due to the need to require new evidence. In particular, the law recognizes the mandatory participation of a private prosecutor in the trial of cases of public and private prosecution (parts 1-3 of Article 246 of the Code of Criminal Procedure of the Russian Federation). The trial is also postponed if the defense attorney fails to appear and it is impossible to replace him (Part 2 of Article 246 of the Code of Criminal Procedure of the Russian Federation). A defense attorney who has re-entered the process, replacing a defense attorney who has not appeared, has the right to familiarize himself with the materials of the criminal case and be given time to prepare for participation in the trial. During this period, the trial is also postponed. In accordance with the requirements of Part 2 of Article 247 of the Code of Criminal Procedure of the Russian Federation, if the defendant fails to appear, the consideration of the criminal case must be postponed. Trial in the absence of the defendant may be allowed if the criminal case involves a minor or moderate severity the defendant requests consideration of this criminal case in his absence (part 4 of article 247 of the Code of Criminal Procedure of the Russian Federation).
If, in order to properly resolve the case, the court needs to request new evidence (for example, a document stored in an institution or with citizens), then the hearing of the case may also be postponed until it is received. If a forensic examination is ordered in the case, the production of which requires significant time, the hearing of the case is postponed.
It is necessary to distinguish the stay of the trial from the adjournment of the trial. The law includes the following circumstances as grounds for suspension:
1) in the case when the accused has disappeared and his whereabouts are unknown;
2) in case serious illness the accused, if it is confirmed by a medical report;
3) if the court sends a request to the Constitutional Court Russian Federation or acceptance by the Constitutional Court of the Russian Federation for consideration of a complaint about the compliance of the law applied or to be applied in this criminal case with the Constitution of Russia;
4) in the case where the location of the accused is known, but there is no real possibility of his participation in the trial.
In the case provided for by paragraph 1 of part one of Article 238 of the Code of Criminal Procedure of the Russian Federation, the judge suspends the criminal proceedings and, if the accused who is in custody has escaped, returns the criminal case to the prosecutor and instructs him to ensure the search for the accused or, if the accused who is not in custody has escaped , chooses a preventive measure in the form of detention and instructs the prosecutor to ensure his search.
In accordance with Art. 103 of the FKZ “On the Constitutional Court of the Russian Federation” and clarifications on the procedure for applying this article contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 31, 1995 No. 8, the court has the right to suspend the proceedings in connection with an appeal to the Constitutional Court of the Russian Federation with a request to verify the constitutionality the law applied or subject to application.
If the basis for suspending the trial in a criminal case does not apply to all defendants, but to one of them, the court suspends the proceedings only in relation to this defendant - until the obstacles to the normal administration of justice are eliminated. For the rest, legal proceedings are carried out as usual. If a separate trial prevents the consideration of a criminal case, then the proceedings against all defendants are suspended.
On issues resolved by the court during a court session, the court issues rulings or decisions that are subject to announcement at the court session. Determination or ruling on the most important issues(on the return of a criminal case to the prosecutor, on the termination of a criminal case, on changing or canceling a preventive measure against the defendant, on extending the period of his detention, on challenges, on the appointment of a forensic examination) is issued in the deliberation room and is set out in the form of a separate procedural document, signed a judge or judges if the criminal case is being considered collectively. All other rulings or decisions at the discretion of the court are made in the courtroom.
During the trial, the court has the right to select, change or cancel a preventive measure against the defendant. If detention is chosen by the defendant as a preventive measure, then the period of his detention from the date of receipt of the criminal case in court and the sentencing cannot exceed 6 months. The court in charge of the criminal case, after 6 months from the date of receipt of the criminal case in court, has the right to extend the period of detention of the defendant in custody. At the same time, extension of the period of detention is allowed only in criminal cases of grave and especially grave crimes, and each time for no more than 3 months. The court's decision to extend the period of detention of the defendant may be appealed in cassation, but such an appeal does not suspend the criminal proceedings in the court of first instance.
The progress and results of the trial are subject to mandatory recording in the minutes of the court hearing (Article 259 of the Code of Criminal Procedure of the Russian Federation). The significance of this procedural document is determined by the fact that it serves as the main source of information regarding both the content of the evidence examined by the court and the observance by the court and the participants of the meeting of the procedure for conducting the trial. If the court's examination of any evidence is not reflected in the minutes of the court session, reference to this evidence when appealing the verdict is unacceptable. The absence of a court hearing in the case file, as making it impossible to verify the court's compliance with legislative requirements, is an absolute basis for the cancellation of the sentence passed in this case (clause 11, part 2, article 381 of the Code of Criminal Procedure of the Russian Federation).
According to Article 259 of the Code of Criminal Procedure of the Russian Federation, the protocol indicates: the place and date of the meeting with the designation of its start and end times, the name and composition of the court, the secretary, translator, prosecutor, defense lawyer, defendant, victim, civil plaintiff and civil defendant and their representatives, as well as other persons summoned by the court and appearing at the hearing, the case under consideration, information about the identity of the defendant and the measure of restraint applied by the court against him.
Further, the protocol must indicate the actions of the court in the order in which they took place, challenges, statements, objections and petitions of persons participating in the case, rulings or resolutions issued by the court, information about explanations to participants in criminal proceedings of their rights, duties and responsibilities.
The following must be reflected in the protocol: detailed content of the testimony of the defendant, victim, witnesses, expert; actions taken by the court to collect and examine evidence. Testimony given at the court hearing should be recorded in the first person as completely as possible. If the persons participating in the case ask for certification of certain facts in the protocol, this must also be reflected in the protocol.
The protocol briefly outlines the main content of the judicial debate and the last word of the defendant, indicates the removal of the court to the deliberation room to pronounce the verdict, the announcement of the verdict and an explanation of the procedure and deadlines for appealing it, and an explanation of the right to petition for participation in the court hearing of the cassation (appellate) instance.
If during the proceedings there was a violation of order in the courtroom, the nature of this violation, information about the person who committed it, and the measures taken by the court or the presiding judge are also recorded in the protocol.
In order to ensure completeness and objectivity of recording during a court hearing, shorthand may be used, and technical means may also be used if the court has allowed their use. Results of use technical means are attached to the minutes of the court session, in which a note is made about this.
The protocol is drawn up by the secretary of the court session in handwritten form, on a typewriter or using a computer, and signed by the presiding officer and the secretary in the courtroom. If the trial takes place over a long period of time, it is allowed to prepare and sign the protocol in parts, which, on the one hand, ensures its more objective and high-quality preparation, and on the other hand, gives the court the opportunity to use ready-made protocols in the deliberation room when preparing the verdict, and thirdly, it allows the persons involved in the case (especially the state prosecutor or defense attorney entering the process that has begun) to better build a justification for their position. A protocol can be prepared and signed no later than three days after the end of the court hearing.
The parties are provided with the opportunity to familiarize themselves with the minutes of the court session if they submit a written request for this within three days from the date of the end of the court session. If this deadline is missed for a valid reason, it may be reinstated.
In addition to the parties, the opportunity to familiarize themselves with the protocol of the court session is provided to other participants in the process, but only to the extent that their testimony is recorded in the protocol. If, due to objective circumstances, the protocol has not yet been prepared during the specified period, the presiding officer must notify interested parties of the time when they can familiarize themselves with it. The time for familiarization with the protocol is set by the presiding judge depending on the volume of the protocol or part of it that the participant in the trial wishes to familiarize himself with.
In accordance with Art. 260 of the Code of Criminal Procedure of the Russian Federation, within three courts from the date of completion of familiarization with the protocol of the court session, comments may be applied to it, which are immediately considered by the individual presiding officer at the court session, regardless of whether the case was heard by him alone or as part of a panel of judges. IN necessary cases the presiding officer has the right to call the persons who submitted the comments if additional explanations or clarifications regarding the submitted comments are required on their part.
Based on the results of consideration of the comments, the presiding judge makes a reasoned decision to certify their correctness or to reject them, which, together with the comments, is attached to the minutes of the court session. Remarks, the correctness of which was certified by the presiding officer, during subsequent verification of the legality and validity of the sentence, can be used as the basis for a decision of the cassation or supervisory court. Rejected comments on the protocol cannot be used in this capacity, however, if their content gives rise to court doubts about the legality and validity of the verdict, they can be taken into account when the verdict is overturned and the case is sent for a new trial.
From the above, we can conclude that trial is an independent stage of the criminal process, which consists of considering a criminal case on the merits in a court of first instance, with the adoption of a final decision based on the results of such consideration, determining the fate of a specific person participating in this stage as the defendant.
§1.2 Participants in the trial
The main participant in the trial is the court of first instance, acting in the person of one professional judge, or as part of a panel of three professional judges (a court composition, in which twelve jurors participate along with a professional judge, can very conditionally be designated as collegial, since collegial jurors the question of the guilt of the defendant is decided - all other issues are decided solely by the presiding judge). The judges who are members of the panel enjoy equal rights to resolve all issues arising during the meeting. In this case, one of the judges who are members of the panel, or the judge considering the case alone, in addition to the main duty - making a decision on the merits of the case - is assigned an additional function - to preside over the court hearing.
The presiding officer directs the course of the process, both in the courtroom and in the deliberation room when discussing and making decisions, and takes all measures provided by law to ensure competitiveness and equality of the parties. He: 1) opens the meeting, announces the composition of the court; 2) takes all measures provided by law for a comprehensive, complete and objective study of the circumstances of the case and to eliminate from the trial everything that is not relevant to the case, directing the course of the study of evidence in accordance with the procedure established by law and the decision adopted by the entire composition of the court; 3) establishes the identities of the participants in the court session, explains to them their rights and obligations, provides other judges and other participants in the process with the opportunity to exercise their rights and procedural obligations; 4) ensures that order is maintained in the courtroom by both the participants in the court hearing and the public; 5) ensures the correct keeping of the minutes of the court session, signs them and makes a decision to certify the correctness or to reject comments on the minutes; formulates issues to be resolved at the court hearing and in the deliberation room, announces decisions made by the court.
The actions and orders of the presiding officer are binding on all participants in the trial and persons present in the courtroom. At the same time, persons whose interests are directly affected by these actions and orders may express their objections to them, which are subject to entry into the minutes of the court session and can be satisfied by a panel of judges (if the case is considered by a panel of the court).
The secretary of the court session keeps the minutes of the court session, ensuring that it fully and correctly reflects the actions and decisions of the court, as well as the actions of other participants in the trial. He also checks the appearance of persons summoned to court, finds out and reports to the court the reasons for their absence, takes measures to summon them, ensures the receipt of documents and materials requested by the court, and carries out other actions on behalf of the presiding judge.
The key role in judicial proceedings is played by the prosecution and defense, since in most cases it is their initiative that is the impetus for certain judicial actions and decisions. By virtue of Part 3 of Article 123 of the Constitution of the Russian Federation and Article 244 of the Code of Criminal Procedure of the Russian Federation, the parties in a court hearing have equal rights to file challenges and petitions, present evidence, participate in their research, speak in court debates, submit written statements to the court on issues of proving guilt the defendant and his punishment, as well as the formulation and consideration of other issues by the court. This presupposes, in particular, the duty of the presiding officer to provide each of the participants in the process with the opportunity to both personally give the necessary explanations and testimony in the case, and to present to the court objects, documents and other materials that can be used as evidence, to make motions to call witnesses, to order examinations , requesting documents, etc. The parties should also be provided with the opportunity to express their opinion on the results of the examination of evidence during the judicial debate.
The prosecution side in a court hearing is first represented by the state prosecutor, who may be an official of the prosecutor's office, and in criminal cases, the investigation of which was carried out in the form of an inquiry, and on behalf of the prosecutor - also by an inquiry officer or an investigator. The participation of the public prosecutor in court proceedings in cases of public and private public prosecution is mandatory. In cases of private prosecution, the public prosecutor takes part in the trial in cases where, in accordance with Part 4 of Article 20 and Part 3 of Article 318 of the Code of Criminal Procedure of the Russian Federation, the corresponding criminal case was initiated by the prosecutor, investigator or investigator with the consent of the prosecutor in the absence of a statement a victim who is unable, due to a helpless state or for other reasons, to independently defend his rights and legitimate interests.
By calling the public prosecutor the prosecutor participating in the trial stage and other officials who acted on the prosecution side during pre-trial proceedings, the law thereby emphasizes their special status at this procedural stage, different from their status at the preliminary investigation stage, where they ( especially the prosecutor) had authority, and therefore their actions and decisions were binding on other participants in the proceedings. In a court hearing, the prosecutor, like any other public prosecutor, acts only as one of the parties competing before the court, taking part in the examination of evidence, providing the court with his thoughts on the existence of grounds for applying the criminal law and possible measure punishment against the defendant. In order to protect the rights of citizens, public or state interests, the prosecutor in court proceedings may bring or support a civil claim. This subject does not have any powers that place the public prosecutor in a privileged position compared to other participants in the hearing, acting on the side of the prosecution or on the side of the defense, and giving him the opportunity to make decisions that are binding on other participants in the process. The opinion of the public prosecutor on issues arising during the trial (except for cases of refusal of the charge or change of charge by him) is not binding on the court.
When supporting the prosecution in court, the public prosecutor is obliged to be guided by the requirements of the law and the law and his inner conviction, based on an analysis of all the circumstances of the case. Therefore, if he comes to the conclusion that the data of the judicial investigation indicate that the charges brought against the defendant are unfounded, both in terms of its factual grounds and in terms of the legal assessment of the act accused of the defendant, or that there are circumstances that preclude proceedings in the case, he is obliged to declare a change in the charges or refuse the charge, stating to the court the reasons for his decision. The possibility of the public prosecutor withdrawing the charge can be exercised at any stage of the trial before the court retires to the deliberation room.
Changing the charge by the state prosecutor during the trial excludes the possibility of continuing the trial within the framework of the previously brought charge against the defendant; the refusal of the public prosecutor to withdraw the charge in whole or in some part of it entails the termination of the criminal case or criminal prosecution in full or in the relevant part on the grounds provided for in paragraphs 1, 2, part 1 of article 24 and paragraph 1 of art. 27 Code of Criminal Procedure of the Russian Federation.
The participation of the prosecutor in the trial of criminal cases of public and private public prosecution is recognized by law as mandatory. The number of prosecutors providing support for state prosecution has increased. This factor made it possible to ensure, under the conditions of the Code of Criminal Procedure of the Russian Federation, the participation of prosecutors in the consideration of all cases of public and private-public prosecution.
Reducing the number of cases considered by the courts and increasing the staffing of prosecutors would significantly increase the efficiency of criminal prosecution in court. However, the number of acquittals, although slightly, has increased, and the number of prosecutors refusing charges has also increased.
As the main reasons for this state of affairs, government prosecutors cite errors made by investigators and interrogators during the investigation process, which are difficult or impossible to eliminate during the trial. This fact significantly affects the effectiveness of criminal prosecution, but it is not the only one. It is also influenced by the qualifications of the public prosecutors themselves, as well as their experience working in an adversarial criminal process. Improving the quality of maintaining public prosecution largely depends on the legislative improvement of this institution. There is a need to reform it.
In the Russian Federation, the prosecutor who approves the indictment and supports the prosecution in court are often different officials. The assistant prosecutor, who is typically tasked with maintaining the government's prosecution in court, receives the criminal case file after the investigation has been completed and the indictment has been approved. Thus, he had nothing to do with the formation of the evidence base and did not analyze it during the investigation or after its completion from a judicial perspective. He had not previously communicated with witnesses and victims and did not have the procedural opportunity to directly evaluate their testimony from the point of view of relevance, admissibility and reliability. Sometimes evidence that seems reliable at first glance undergoes transformation in court, the scope of the charge changes and the public prosecutor is forced to completely or partially drop the charge.
In criminal cases of private prosecution, the prosecution in court proceedings is supported by the victim, who in this case is given the status of a private prosecutor in the magistrate's court. At the court hearing, the private prosecutor sets out the essence of his statement about the crime committed against him, presents evidence, participates in the examination of evidence, expresses his opinion on the merits of the charge, on the application of the criminal law and the sentencing of the defendant, as well as on other issues during the trial . A private prosecutor may change the charge in a way favorable to the defendant or abandon the charge altogether, including in cases where a criminal case was initiated on the initiative of a prosecutor, investigator or interrogator.
The participation of a private prosecutor in a court hearing is mandatory; if he fails to appear for a good reason, the hearing on the case must be postponed; if he fails to appear without good reason, the criminal case is subject to termination (Part 3 of Article 249 of the Code of Criminal Procedure of the Russian Federation).
The victim personally or through his representative also supports the prosecution in cases of public and private-public prosecution, but in this case he acts as a subsidiary prosecutor. In this capacity, he has the right to participate in the discussion of all issues arising at the court hearing, including presenting evidence and participating in its examination, expressing to the court his opinion on the merits of the charge, the legal assessment of the actions of the defendant and his responsibility. The position of the victim on all these issues is subject to mandatory assessment and consideration by the court, however, it does not have imperative significance for him. A victim who has suffered material damage or moral damage subject to material compensation by a crime has the right to file a civil claim before the end of the judicial investigation and support it during the trial.
In many criminal cases, such a subject as the victim may not participate in criminal proceedings, and not only at the trial stage (for example, in a case of high treason). Failure to appear at a court hearing by a victim participating in the case general rule does not interfere with the consideration of the case. However, in cases where the victim who requested his participation in the hearing of the case did not appear for a good reason, the court hearing must be postponed.
The hearing is also postponed if the court hearing the case concludes that the victim’s appearance is mandatory; in this case, the court may decide to forcefully bring him.
The central figure in the trial is the defendant, whose participation in the trial court hearing is mandatory. The requirement that the defendant must participate in the trial contains an important guarantee of his constitutional right to defense, which implies, among other things, the need to provide him with the opportunity to personally present before the court and give his explanations on the merits of the charges brought against him (subsection “c”, paragraph 3 of Art. .14 International Covenant on Civil and Political Rights). While participating in a court hearing, the defendant has the right to express his attitude to the charges brought against him, file motions and challenges, present evidence and determine the order of its examination, participate in the examination of evidence, speak in court debates (if a defense lawyer is not involved in the case), and express his opinion on the merits of the charge brought and on other issues to be resolved during the court hearing.
In accordance with Part 4 of Art. 24 of the Code of Criminal Procedure of the Russian Federation, a trial in the absence of the defendant may be allowed if, in a criminal case for a crime of minor or medium gravity, the defendant requests that the case be considered in his absence. Considering the exceptional nature of the trial in absentia of a criminal case, the court in each special case must make sure that there is a directly expressed (oral or written) request for such consideration, not due to any objective obstacles to appearing in court (illness, lack of funds to travel to the court, etc.).
Based on clause 4, part 1, article 24 of the Code of Criminal Procedure of the Russian Federation, trial in the absence of the defendant is also possible in the event of his death, if consideration of the case is necessary for his rehabilitation.
By virtue of Part 3 of Art. 258 of the Code of Criminal Procedure of the Russian Federation, the possibility of hearing a case in the absence of the defendant is also allowed in cases where, by a court decision, he is removed from the courtroom due to a violation of order at the court hearing and disobedience to the orders of the presiding judge or bailiff. The law does not provide for mandatory condition, in which it is possible to remove the defendant from the courtroom, the malicious nature of the violations committed by him, however, it seems that, taking into account the importance of the defendant’s right to participate in the trial, his removal from the courtroom for a single fact of violation of order or disobedience to the requirements of the presiding officer should be considered unacceptable. Consideration of a criminal case in the absence of the defendant without sufficient grounds should be regarded as a violation of the criminal procedural law and entail the reversal of a conviction, if one was passed.
An important guarantee of the constitutional rights of the defendant in criminal proceedings are the provisions of Part 2 of Article 48 of the Constitution of the Russian Federation and Clause 8 of Part 4 of Art. 47 of the Code of Criminal Procedure of the Russian Federation, which guarantees the right of this participant in the process to the assistance of a defense lawyer. The defense attorney, fulfilling his procedural obligation to use all means and methods of protecting the defendant that are not prohibited by law, participates in the study of evidence, makes motions, expresses to the court his opinion regarding the merits and proof of the charge, the correctness of the legal qualification of the actions of his client, the circumstances mitigating the defendant’s punishment or exonerating it, penalties, as well as other issues arising during the trial (Part 1 of Article 248 of the Code of Criminal Procedure of the Russian Federation).
In accordance with Part 2 of Art. 49 of the Code of Criminal Procedure of the Russian Federation, lawyers can act as defense counsel in court proceedings, and, by determination or order of the court, along with a lawyer, another person for whose admission the defendant, in particular his close relative, applies. In proceedings before a magistrate, such a person may be admitted as a defense attorney and instead of a lawyer. In cases where the defendant, for one reason or another, is deprived of the opportunity to invite a lawyer, but does not refuse the assistance of a defense lawyer, his participation in the consideration of the case must be ensured by the court; For these purposes, only a lawyer can be called.
If an invited defendant, his proxies, or a summoned defense attorney fails to appear and it is impossible for him to appear within five days, the court must either invite the defendant to invite a new defense attorney, or take measures to appoint one, thereby postponing the trial for a certain time. A defense attorney entering the process for the first time or replacing a retired defense attorney must be given time to familiarize himself with the materials of the criminal case and prepare for the trial. Replacing a defense attorney does not entail a repetition of actions that had been performed in court by that time, although it does not exclude this if the defense attorney files a corresponding petition.
The refusal of the defendant to have a defense lawyer, either invited by the defendant himself or at his request or with his consent by other persons, or appointed by the court, is not mandatory for the court. In each case of a defendant’s refusal of a defense lawyer (both a defense lawyer in general and a specific lawyer), the court must check the reasons that caused such refusal. If it is revealed that the refusal is forced (due to the failure of the defense attorney to appear at the court hearing, lack of money to pay for legal assistance, etc.), consideration of the case without the participation of a defense attorney should be regarded as a violation of the accused’s right to defense.
When participating in court proceedings, the defense attorney has the right to act only in the interests of his client, without allowing any actions that could worsen the latter’s position. If, based on his legal knowledge and research into the circumstances of a particular case, the defense attorney comes to a conclusion that is opposite to the position of his client, he does not have the right to draw the court’s attention to this contradiction and argue with the defendant.
A special category of participants in the trial includes the civil plaintiff, civil defendant and their representatives, whose procedural status is determined by the fact that they act respectively on the side of the defense and prosecution only within the framework determined by the interests of resolving the civil claim brought in a criminal case.
Taking into account the fact that the issue of a civil claim is optional for criminal proceedings, the failure of the civil plaintiff and (or) his representative to appear at the court hearing, as a rule, entails leaving the claim without consideration. The court may consider a civil claim in the absence of the civil plaintiff and his representative only if one of the following conditions: firstly, if the civil suit is supported by the prosecutor; secondly, if the civil plaintiff or his representative requests this; thirdly, if the civil defendant, in particular the defendant, fully agrees with the civil claim brought.
The failure of a civil defendant or his representative to appear in court within the meaning of the law does not prevent the consideration of a civil claim.
Thus, the participants in the trial are the court, represented by one or more professional judges, the prosecution represented by the public or private prosecutor and (or) the victim, the defense represented by the lawyer and the defendant, the civil plaintiff and the civil defendant, as well as the secretary.
Chapter 2. Characteristics of the stages of the trial
§2.1 Preparatory part of the trial
Being the first stage of the trial, its preparatory part is intended to check the existence of conditions under which a trial of a criminal case on the merits can take place.
The court session begins with its opening by the presiding officer and the announcement of which criminal case is to be tried. An important point in the opening of a court session, which is indicated by the criminal procedure law and which from the very beginning creates a business atmosphere during the proceedings, is the observance of the pre-set time for the opening of the session.
Then the presiding officer checks the attendance of the parties at the court hearing, as well as other persons who, according to the resolution on scheduling the meeting, were summoned to court (witnesses, experts, translator, etc.). About appearance specified persons or the reasons for their failure to appear are reported to the court by the secretary of the court session, who is obliged to clarify these issues before its opening.
If a translator is called to a court hearing, the presiding judge explains to him his rights, duties and responsibilities for knowingly incorrect translation, about which he is required to sign on a special form.
In order to ensure the objectivity of the testimony of witnesses called to the court session and to prevent the influence on them of the information that will be announced in the courtroom, the presiding officer removes them from the courtroom, and the bailiff takes measures to ensure that witnesses who have not been questioned by the court do not have the opportunity to communicate with witnesses already questioned, as well as with other persons present in the room (in particular, with relatives of the defendant or victim).
After removing witnesses from the courtroom, the presiding judge establishes the identity of the defendant (his last name, first name, patronymic, year, month, day and place of birth, place of residence, occupation, proficiency in the language of court proceedings and other circumstances that may be relevant, in particular, resolving issues related to ensuring the rights of the defendant in the trial or imposing punishment), and also makes sure that he has been given a copy of the indictment (indictment) and checks the date of its delivery. If, when approving the indictment (indictment) or when scheduling a trial, changes were made to the charge, the accused must also be given a copy of the relevant resolution. These procedural decisions must be served no later than seven days before the start of the trial. If this condition is not met, the meeting must be adjourned.
Next, the presiding judge announces the composition of the court, informs who is the prosecutor, defense lawyer, victim, civil plaintiff, civil defendant and their representatives, court secretary, expert, specialist and translator. In this case, not only the last names, first names and patronymics of the relevant participants in the proceedings must be indicated, but also such data about these persons that may be important for deciding whether they have the necessary powers (if we are talking about a public prosecutor, then what position does he hold? : the prosecutor, his deputy or assistant; if about a lawyer - a member, which bar he is, etc.).
The parties explain their right to challenge the entire composition of the court or any of the judges, as well as other above-mentioned participants. The decision to challenge is made by the court in accordance with the grounds and procedure provided for in Art. 61 - 66, 68 - 72 Code of Criminal Procedure of the Russian Federation. A challenge can be filed and considered, as a rule, before the start of the judicial investigation, but it is not excluded at later stages of the proceedings.
After the court considers the requested challenges, the presiding officer explains to the defendant, victim, civil plaintiff and civil defendant their rights in the trial, listed respectively in Art. 47, 42, 44, 54 Code of Criminal Procedure of the Russian Federation. If a defense lawyer, a legal representative of the defendant, representatives of the victim, civil plaintiff and civil defendant who are not professional lawyers take part in the court hearing, the corresponding rights specified in Art. 45, 53, 55 of the Code of Criminal Procedure of the Russian Federation are also explained to them. In addition, the presiding officer must explain the rights, duties and responsibilities provided for in Art. 57 and 58 of the Code of Criminal Procedure of the Russian Federation, the expert and specialist summoned to the court hearing, about which they give an appropriate signature attached to the minutes of the court session.
The next step in the preparatory part of the trial is the hearing and resolution of motions. Among the petitions that the parties can submit at this stage of the proceedings, Article 271 of the Code of Criminal Procedure of the Russian Federation names those that relate to the completeness and admissibility of the collected evidentiary material in the criminal case under consideration: to call new witnesses, experts and specialists, to reclaim objects and documents or to exclude evidence obtained in violation of criminal procedural law. In this part of the trial, other petitions can be submitted: to change the defendant’s preventive measure, to terminate the criminal case, for example, in connection with the abolition of the criminal law establishing responsibility for the act charged to the defendant, to suspend the proceedings, to hold a closed court hearing.
Each request is subject to discussion and resolution immediately after its application. The person filing the application must
bring the appropriate petition, must provide appropriate arguments in support of it, after which opinions on the merits of this petition of other participants in the proceedings, both the prosecution and the defense, are heard. Based on the results of the discussion of the petition, the court (judge) makes a ruling (decision) to satisfy the petition or to refuse to satisfy it. The court does not have the right to refuse to satisfy a request for questioning at a court hearing as a witness or specialist of a person who has appeared in court at the initiative of the parties.
The preparatory part ends with the resolution of the question of the possibility of any of the persons summoned to the court hearing. For these purposes, the court listens to the opinions of the parties on this issue, and then makes a ruling (decision) to continue the trial or to postpone it due to the failure of persons summoned to appear at the court hearing. The court may also decide to re-summon a person who has failed to appear or to bring him in if this person avoids appearing in court without good reason.
Thus, the preparatory part of the court session is important for the successful trial of a criminal case. This stage court session is intended to create and verify the conditions for the administration of justice in strict accordance with the law.
§2.2 Judicial investigation
Judicial investigation is the most important part of the trial, in which the court, in conditions of orality, publicity, immediacy, adversarial equal parties, as well as the most complete implementation of other principles of the criminal process and the general conditions of the trial, examines the evidence collected in the case in order to establish all the factual circumstances of the case, guilt of the defendant and a fair resolution of the case. In relation to the judicial investigation, all materials of the criminal case are preliminary in nature (it is no coincidence that the preliminary investigation is called that). They are necessarily subject to a new, judicial study and only after that can they be used to justify the final decision in a criminal case. The judicial investigation is not bound by the version of the indictment; at the request of the parties, it can take a completely different direction.
Due to the specific nature of judicial activity, an investigation in court differs from the activities of investigative bodies in collecting evidence in a set of legal means. This excludes the possibility of conducting a search, seizure, or exhumation of a corpse; Confrontations, investigative experiments and presentations for identification acquire significant specificity; interrogations do not represent a dialogue between the person being interrogated and the interrogator “in the quiet of an office,” but a public questioning of the accused, witnesses and the victim: first by the parties and only then by the court.
The judicial investigation begins with the state prosecutor presenting the charges brought against the defendant (Part 1 of Article 273 of the Code of Criminal Procedure of the Russian Federation). This is an innovation. The previously in force Code of Criminal Procedure of the RSFSR of 1960 did not contain specific instructions on who should formulate the act charged to the defendant at the very beginning of the trial, but only contained general position, Whereby
“The judicial investigation begins with the announcement of the indictment” (Part 1 of Article 278). According to the tradition that has developed in practice, the indictment was announced by the presiding judge at the court hearing. However, the Constitutional Court of the Russian Federation, which took action in 1998 - 2000. a number of the most important steps to restore the adversarial sense of justice, in one of his decisions indicated that “... the role of the court in criminal proceedings predetermines that the presiding judge, authorized... to lead the court hearing, has the right to establish the procedure for announcing the indictment in court, and the prosecutor participating in the case cannot refuse to have the indictment read out in court.” 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, the role of the presiding judge in the court session, the principle of adversarialism and the functions of the prosecutor in criminal proceedings. According to the above considerations, the judicial investigation in cases of private prosecution also begins with the speech of the prosecutor, but not a public one, but a private one, who sets out not an indictment, but his statement.
After the state prosecutor has presented the charge brought against the defendant, or the statement made by the private prosecutor, the presiding officer, as his first procedural action, asks the defendant whether he understands the charge and whether he or his defense attorney wishes to express his attitude to the charge. The defending party has the right to refrain at the moment from such an expression of opinion, which does not deprive it of the right and opportunity to express its attitude to the accusation at subsequent stages of the trial.
The next procedural stage of the judicial investigation is subordinated to the task of determining the most effective sequence research of evidence (Article 274 of the Code of Criminal Procedure of the Russian Federation). This sequence is based on the principle of adversarial criminal proceedings: the prosecution presents evidence first, then the defense, and the order of examination of the presented evidence is determined by each party based on the tactics chosen by both in the trial. If several defendants are involved in a criminal case, the order in which they present evidence is determined by the “owner of the process,” that is, the court. The recognition by the defendant of his guilt entails, as a rule, the establishment of such a procedure for the judicial investigation in which it begins with the interrogation of the defendant, who, with his testimony, can lay the evidentiary foundations of the leading version, requiring verification during subsequent proceedings. If the defendant denies his guilt, the judicial investigation usually begins with an examination of the evidence, and in order to listen to the testimony of the defendant, taking into account their legal influence.
Having determined the sequence of examination of the evidence, the court begins to interrogate the defendant (Article 276 of the Code of Criminal Procedure of the Russian Federation). If the defendant agrees to testify, he is questioned first by the defense attorney and trial participants on the defense side, then the state prosecutor and trial participants on the prosecution side. The presiding judge rejects leading questions and questions that are not related to the criminal case. The defendant has the right to use written notes, which are presented to the court upon his request. The court asks questions to the defendant after questioning by the parties. The interrogation of a defendant in the absence of another defendant is permitted at the request of the parties or at the initiative of the court, for which a ruling or resolution is made. In this case, after the defendant returns to the courtroom, the presiding judge informs him of the content of the testimony given in his absence and gives him the opportunity to ask questions of the defendant interrogated in his absence. If several defendants are involved in a criminal case, the court has the right, at the request of a party, to change the above procedure for their interrogation.
Due to the requirements of the law on orality and immediacy in the examination of evidence by the court, the verdict as evidence may contain reference only to those testimonies of the defendant that were given at the trial court hearing. However, in order to clarify the reasons for the contradictions and establish the truth in the case at a court hearing, it is possible to read out the defendant’s testimony given earlier - both during the preliminary investigation and in court, as well as play back audio recordings of previous interrogations. The announcement of the defendant's testimony given during the preliminary investigation and in court, as well as the reproduction of photographic, audio and (or) video recordings and filming of his testimony attached to the interrogation protocol may take place at the request of the parties in the following cases:
1) if there are significant contradictions between the testimony given by the defendants during the preliminary investigation and in court;
2) when the criminal case is pending legally is considered in the absence of the defendant.
It is not allowed to demonstrate photographic negatives and photographs taken during the interrogation, as well as playback of a video recording of the interrogation without first reading out the testimony contained in the corresponding interrogation protocol or the judicial investigation protocol.
The law (Articles 277-281 of the Code of Criminal Procedure of the Russian Federation) pays significant attention to the interrogation of victims and witnesses in court. The block of criminal procedural norms devoted to this procedure resolves the following set of interrelated issues: establishing the identity of a witness - explaining his duties - warning about liability for refusal to testify and for knowingly false testimony - the interrogation itself - the use of written notes and documents by the witness - announcement on court testimony given by a witness during an inquiry or preliminary investigation. A relatively isolated set of rules enshrined in Article 280 of the Code of Criminal Procedure of the Russian Federation is devoted to the judicial procedure with the participation of a minor victim and witness.
Witnesses are examined separately and in the absence of unexamined witnesses. Before the interrogation, the presiding officer establishes the identity of the witness, ascertains his relationship to the defendant and the victim, explains to him the rights, duties and responsibilities, about which the witness gives a receipt, which is attached to the minutes of the court session. The first to ask questions of the witness is the party at whose request he was summoned to the court hearing. The judge asks questions to the witness after he has been questioned by the parties. Interrogated witnesses may leave the courtroom with the permission of the presiding judge, who takes into account the opinions of the parties. If it is necessary to ensure the safety of a witness or his close relatives, the court, without disclosing the true information about the identity of the witness, has the right to conduct an interrogation in conditions that preclude visual observation of the witness by other participants in the trial, about which the court issues a ruling or resolution. If the parties file a justified request for disclosure of true information about the person giving testimony, in connection with the need to defend the defendant or to establish any circumstances significant for the consideration of the criminal case, the court has the right to provide the parties with the opportunity to familiarize themselves with this information. The victim and witness are allowed to read the documents in their possession relevant to their testimony. These documents are presented to the court and, by its determination or order, can be added to the materials of the criminal case.
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 this (clause 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 “On the application by courts of the norms of the Code of Criminal Procedure of the Russian Federation”) . Otherwise, the Supreme Court of the Russian Federation believes, it would contradict Part 4 of Article 241 of the Code of Criminal Procedure of the Russian Federation, according to which the court does not have the right to refuse a request to interrogate at a court hearing a person as a witness or specialist who has appeared in court at the initiative of the parties.
During the interrogation of victims and witnesses under the age of fourteen, and at the discretion of the court - at the age of fourteen to eighteen, a teacher participates. The interrogation of minor victims and witnesses with physical or mental disabilities is carried out in all cases in the presence of a teacher. Before the interrogation of the minor, the presiding officer explains to the teacher his rights, about which a corresponding entry is made in the minutes of the court session. The teacher has the right, with the permission of the presiding officer, to ask questions to the minor victim and witness. If necessary, their legal representatives are called to participate in the interrogation of minor victims and witnesses, who can, with the permission of the presiding officer, ask questions to the interrogated person. The interrogation of a victim or witness under fourteen years of age is carried out with the mandatory participation of his legal representative.
Before interrogating victims and witnesses under the age of sixteen, the presiding officer explains to them the importance of complete and truthful testimony for a criminal case. These persons are not warned about liability for refusal to testify and for knowingly false testimony and their subscription is not taken. In order to protect the rights of minors, at the request of the parties, as well as at the initiative of the court, the interrogation of victims and witnesses under the age of eighteen may be carried out in the absence of the defendant, about which the court issues a ruling or resolution. After the defendant returns to the courtroom, he must be given the testimony of these persons and given the opportunity to ask them questions. At the end of the interrogation, the victim or witness who has not reached the age of eighteen years, the teacher who was present during his interrogation, as well as the legal representatives of the victim or witness may leave the courtroom with the permission of the presiding judge.
In the context of the impoverishment of the country's population, the decline of civil legal consciousness and the lack of means of ensuring the personal safety of witnesses and victims, the failure of these participants in criminal proceedings to appear at court hearings has become widespread and has given rise to a very acute problem, the solution of which is partly intended to be solved by the institution of reading out the testimony of the victim and witness, previously given during the preliminary investigation. investigation or trial, as well as the demonstration of photographic negatives and photographs, transparencies taken during interrogations.
According to Article 271 of the Code of Criminal Procedure of the Russian Federation, in court proceedings it is allowed: the announcement of previous testimony of a witness and a victim given by these participants during the preliminary investigation in a given criminal case or in a given court hearing, but earlier in time; demonstration of photographic negatives and photographs taken during interrogations of witnesses and victims, as well as reproduction of audio and (or) video recordings of such interrogations.
Both actions are united by the fact that, in derogation from the general rule, according to which judicial evidence that can form the basis of a verdict is only such testimony of the witness and the victim that was heard “here and now” in front of the court and in the presence of the parties and the public, the announcement previous testimony and the demonstration of technical means of recording them is always associated with a reminder, a hint, and even shame and exposure of a lie. That is why the rules on this topic require special care and delicacy, both in wording and in practical application. Legal actions about which we're talking about, are allowed under the following conditions: a) failure of a witness or victim to appear; b) consent of the parties to the disclosure of testimony, demonstration and reproduction of technical recording of the interrogation.
The court's announcement of previously given testimony of a victim or witness at the request of a party or on its own initiative is also permitted in special cases non-appearance of the specified participants in the process, or rather, their absence at the court hearing for particularly valid reasons, an exhaustive list is contained in the law, namely: 1) death of these persons; 2) serious illness that prevents you from appearing in court; 3) refusal of a victim or witness who is a citizen of a foreign state to appear in court; 4) a natural disaster or other emergency circumstances preventing an appearance in court. In this case, mutual consent of the parties is not required for the disclosure of evidence (clause 19 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 No. 1 “On the application by courts of the norms of the Code of Criminal Procedure of the Russian Federation”).
At the same time, for demonstration and playback, another, additional, special condition: such an action is permitted only after the reading of the testimony recorded in the interrogation protocol at the preliminary investigation or in the trial protocol. So there can be a reading of testimony without a demonstration and reproduction of the technical recording of the interrogation, but there cannot be such a demonstration and such reproduction without the reading of testimony.
According to Part 3 of Article 281 of the Code of Criminal Procedure of the Russian Federation, the disclosure of previously given testimony of a witness is also permitted in cases where the indicated persons appeared at the court hearing and were interrogated; They are here, but there are significant contradictions in their testimony at the preliminary investigation and in court, the reasons for which are unclear. The disclosure of evidence in such cases is carried out only at the request of the prosecution and defense in order to clarify these reasons.
If it is necessary to ensure the safety of a witness or his close relatives, the court, without disclosing the true information about the identity of the witness, has the right to interrogate him in conditions that exclude visual observation of the witness by other participants in the trial, about which the court issues a ruling or resolution. If the parties submit a justified request for disclosure of true information about the person giving testimony in connection with the need to defend the defendant or to establish any circumstances significant for the consideration of the criminal case, the court has the right to provide the parties with the opportunity to familiarize themselves with the specified information (Part 5 of Article 278 Code of Criminal Procedure of the Russian Federation).
The rules in question are controversial and extremely doubtful in their theoretical and practical validity. They violate the most ancient principle of justice (“the court does not keep anything behind the scenes,” that is, it deals only with what is demonstrated openly, publicly). Secret interrogation by the court of a witness with legendary data about his identity is nothing more than depriving both parties - both the prosecution and the defense - of the legal right and real opportunity to participate in the study of specific evidence, which turns them into simple observers of some mystical action. This circumstance turns the entire structure of open adversarial proceedings on its head and returns to the body of justice the unusual inquisitorial function of being the first to delve into everything, to seek the truth alone, and even secretly from everyone - both from the participants in the process and from the public. It seems that such rules, which are more characteristic of covert operational investigative activities rather than legal proceedings, are unlikely to take root in reality, especially since the world practice of witness protection is based on completely different principles.
trial
Another relatively independent complex legal norms regulating the judicial investigation, is devoted to examination in court (Articles 282-283 of the Code of Criminal Procedure of the Russian Federation). The procedure for its appointment and production at the trial stage has obvious specifics compared to a similar procedure at the preliminary investigation. A forensic examination can be ordered either at the request of the parties or on the court’s own initiative. The expert is required to be summoned to the court hearing, after which the presiding judge invites the parties to submit questions to the expert in writing. The questions raised must be announced and the opinions of the participants in the trial heard on them. Having considered these questions, the court, by its ruling or ruling, rejects those that do not relate to the criminal case or the expert’s competence and formulates new questions. Criminal procedural legal relations develop in the same way as is the case during an examination during a preliminary investigation. It ends with the drawing up of an expert opinion, which is presented to the court. After the expert's conclusion is announced, he may be asked questions (interrogation of the expert). In this case, the first question is asked by the party on whose initiative the examination was appointed. If necessary, the expert may be given time to prepare answers to questions that can significantly supplement the content of the written report. If there are contradictions between expert opinions that cannot be overcome in court proceedings by questioning experts, the court, at the request of the parties or on its own initiative, orders a repeat or additional forensic examination.
The third group of rules regulating the judicial investigation is formed by the rules providing for the judicial examination of evidence during the direct perception (observation) by the court composition of the parties of information related to the case, through: inspection of material evidence (Article 284 of the Code of Criminal Procedure of the Russian Federation), b) announcement of investigative reports actions and other documents (Article 285 of the Code of Criminal Procedure of the Russian Federation); c) adding documents submitted to the court to the materials of the criminal case (Article 286 of the Code of Criminal Procedure of the Russian Federation); d) conducting an inspection of the area and premises (Article 287 of the Code of Criminal Procedure); d) production investigative experiment(Article 288 of the Code of Criminal Procedure of the Russian Federation); f) presentation for identification of a person or object (Article 289 of the Code of Criminal Procedure of the Russian Federation); g) examination (Article 290 of the Code of Criminal Procedure of the Russian Federation).
Inspection of material evidence is carried out at any time during the judicial investigation at the request of the parties. Persons who are presented with material evidence have the right to draw the attention of the court to circumstances relevant to the criminal case. Inspection of material evidence may be carried out by the court at its location (Article 284 of the Code of Criminal Procedure of the Russian Federation).
Protocols of investigative actions, an expert’s opinion presented during the preliminary investigation, as well as documents attached to a criminal case or presented by the parties at a court hearing, may be read out in full or in part on the basis of a ruling or court order, if they state or verify the circumstances relevant for the criminal case (Article 285 of the Code of Criminal Procedure of the Russian Federation). Based on a court ruling or ruling, documents submitted by the parties or requested by the court may be added to the materials of the criminal case after proper examination (Article 286 of the Code of Criminal Procedure of the Russian Federation). Protocols of investigative actions, expert opinions and other documents are disclosed by the party that requested their disclosure or by the court.
An inspection of the area and premises is carried out by the court with the participation of the parties, and, if necessary, with the participation of witnesses, an expert and a specialist. The inspection of the premises is carried out on the basis of a court ruling or order. Upon arrival at the inspection site, the presiding judge announces the continuation of the court session and the court begins the inspection, while the defendant, victim, witnesses, expert and specialist may be asked questions in connection with the inspection (Article 287 of the Code of Criminal Procedure of the Russian Federation).
According to Article 288 of the Code of Criminal Procedure of the Russian Federation, in court proceedings it is possible to conduct an investigative experiment according to the rules established for this procedural action at the preliminary investigation stage. It seems that the legislator made a terminological error here; investigative actions cannot be carried out in court. In all likelihood, the mentioned article refers to a judicial experiment, the production of which is subject to the rules of an investigative experiment (the former Code of Criminal Procedure of this action did not provide for it in court).
According to Article 289 of the Code of Criminal Procedure of the Russian Federation, at the stage of trial it is possible to identify a person or object, which is carried out according to the rules established for the conduct of the investigative action of the same name (Article 289 of the Code of Criminal Procedure of the Russian Federation).
According to Article 290 of the Code of Criminal Procedure of the Russian Federation, an examination is possible during the judicial investigation, which is also carried out in relation to the rules established for this action at the stage of preliminary investigation of Article 179 of the Code of Criminal Procedure of the Russian Federation. The examination is carried out on the basis of a ruling or court order. When it is accompanied by nudity of the face, the examination is carried out in a separate room by a doctor or other specialist, who draws up and signs the examination report, after which these persons return to the courtroom. In the presence of the parties and the person being witnessed, the doctor or other specialist reports on the marks and signs on the body of the person being examined, if they are found, and answers questions from the parties and the judges. The inspection report is attached to the materials of the criminal case.
The judicial investigation ends with the presiding officer asking the parties whether they wish to supplement the judicial investigation and with what exactly. If petitions are filed to supplement the investigation, the court discusses the petitions, resolves them, takes additional steps to examine the evidence and declares the judicial investigation completed (Article 294 of the Code of Criminal Procedure of the Russian Federation).
Thus, the judicial investigation is a part of the trial, which consists of examining evidence by the court with the participation of the prosecutor, defendant, defense attorney, victim, civil plaintiff, civil defendant and their representatives. It is one of the main parts of the trial, because the court makes its conclusions in the verdict only on the basis of the evidence considered at the trial.
§2.3 Debate of the parties and the last word of the defendant
Judicial debates are oral presentations by participants in the trial on the part of the prosecution and on the part of the defense regarding the proof or unprovenness of the charge, the classification of the crime, the type and amount of punishment for the defendant, as well as other issues to be resolved when rendering a verdict (including a civil claim or about the fate of material evidence). The speeches of the parties in judicial debates, being a manifestation of the principle of adversarialism in criminal proceedings, are important means bringing these participants in criminal proceedings to the attention of the court of their opinion on the issues under consideration and thereby defending their rights and legitimate interests in the criminal case.
Participants in judicial debates establish an exhaustive list of participants in judicial debates. The main ones are the prosecutor (public or private) and the defense attorney or defendant, and both the state prosecutor and the defense attorney (if he participates in the case) are obligatory participants in the debate, who, due to their professional and procedural role, do not have the right to refuse to speak . According to the meaning of the law, the defendant can speak in court debates even in cases where a defense attorney is involved in the case, but in this situation he must specifically petition for this (Part 2 of Article 292 of the Code of Criminal Procedure of the Russian Federation).
In addition to the named persons, the victim, his representative, as well as the civil plaintiff, civil defendant and their representatives may participate in the debate. The civil plaintiff, civil defendant and their representatives participate in the debate subject to the following conditions: a) they must apply to participate in the debate; b) in their speeches they can only touch on those issues that are related to the civil claim, its grounds, size, security measures, etc.
The first to speak in the debate is the prosecutor (public or private), and the last is the defendant and his defense attorney. Likewise, the civil defendant and his representative always speak in the debate after the civil plaintiff. The order of speeches in judicial debates of other participants in the court session or the sequence of speeches of several defendants and their defense attorneys participating in the case is determined by the court.
The criminal procedure law does not provide for the possibility of the court limiting the length of time the parties can speak in the debate; however, the presiding officer has the right to stop the debate if it concerns issues not related to the criminal case under consideration, as well as evidence declared inadmissible. The presiding officer acts in a similar manner when participants in judicial debates make offensive statements addressed to other participants in the proceedings or other persons.
After all participants in the judicial debate have made speeches, each of them can speak again with a remark. The content of the remark must be related to the previous speeches of other participants in the judicial debate, during which distortions of facts, erroneous statements, and incorrect legal assessments were made. In its meaning, a party’s speech with a remark does not imply simply strengthening a previously expressed position or supplementing its previous speech with new information. The right of the last remark belongs to the defendant and his defense attorney.
The prosecutor, defense attorney, defendant, his legal representative, victim, civil plaintiff, civil defendant and their representatives have the right to submit to the court in writing proposed formulations on the main issues to be resolved by the court when rendering a verdict: on the proof of the crime and the guilt of the defendant in committing it, and also about the qualification of this crime and circumstances mitigating or aggravating the punishment. These proposals do not have binding force for the court, but they can more fully and adequately take into account the positions of the parties when discussing and rendering a verdict.
After listening to the parties' speeches and their remarks, if any, the judge announces the end of the judicial debate and gives the defendant the last word. The last word of the defendant cannot be limited by any time frame and cannot be interrupted by the presiding judge or other participants in the court session, except in cases where the defendant refers to circumstances that are not related to the criminal case under consideration, or allows expressions that degrade honor, dignity and business reputation of citizens, institutions and organizations.
In themselves, the information and judgments contained in the speeches of the participants in the judicial debate or in the last word of the defendant do not have evidentiary value, therefore they report on any circumstances that have not been examined by the court, but may be important for the resolution of the case, or provide assessments requiring clarification of factual circumstances, the court issues a ruling (decision) to resume the judicial investigation, after which the parties are again debated and the defendant gives the final word.
Having heard the last word of the defendant, the court immediately retires to the deliberation room to pronounce the verdict.
Judicial debate (debate of the parties) is a part of the trial, within which the parties, by making speeches, sum up the results of the judicial investigation and, taking into account its results, justify their final position in this criminal process, and also express to the court their thoughts regarding the resolution of fundamental issues in this criminal case.
§2.4 Sentencing
A crime gives rise to a legal relationship with the subject composition “state - citizen”. The content of this legal relationship is the right of the state, having publicly proclaimed the guilt of a citizen of committing a crime, to thereby condemn him on behalf of society, to subject him to a fair punishment and the obligation of the convicted person corresponding to this right to obey and suffer a well-deserved punishment. If the defendant is acquitted, the essence of this main legal relationship is that the state drops all charges against the citizen and thereby declares itself responsible for the mistake or abuse committed by its employee, and a debtor to the rehabilitated citizen.
Ultimately, the subject authorized by the state to condemn and apply punishment, as well as to justify, is not the court, but the state as such. Therefore, according to Article 296 of the Code of Criminal Procedure of the Russian Federation, a court verdict is pronounced and solemnly proclaimed in the name of the state - the Russian Federation.
“Sentencing is a complex and responsible process, intellectual and emotional. He demands that: all issues essential to the case be judged and resolved; on an equal basis for all judges; in an environment conducive to free and calm deliberation, in which judges ... would not fear adverse consequences for themselves for expressing and defending their opinions.”
The sentence must be legal, justified and fair (Article 298 of the Code of Criminal Procedure of the Russian Federation).
The legality of the sentence means that the sentence was pronounced in strict accordance with the law, that is, the sentence in its form corresponds to the law, in its content it is based on the materials of the case, which was considered by the court at the hearing in accordance with the principles of criminal proceedings and other norms of the Code of Criminal Procedure of the Russian Federation. The legality of a sentence means that it correctly applied the criminal law, other laws and regulations.
The validity of the verdict means that when making its decision, the court proceeded from the case materials examined at the court hearing, based its conclusions on a body of reliable evidence that excludes the possibility of making a different decision; having deeply analyzed the corpus delicti and its qualifying features; if the defendant was found innocent, he acquitted him, and if he was found guilty, he imposed a fair punishment.
Courts sometimes unreasonably apply Articles 64 and 73 of the Criminal Code of the Russian Federation to persons who have committed robbery or robbery under aggravating circumstances, and do not always discuss the issue of application to them additional measures punishments in cases provided by law.
An analysis of criminal records for robbery and robbery shows that the number of people who have been sentenced to actual imprisonment for committing these crimes is constantly decreasing. If in 1984 there were 73% of the total number of convicts, then in 2008 their number fell to 63%. Moreover, 80% of persons who committed a robbery will not serve even the minimum required by criminal law in prison, since, according to the rules of Article 64 of the Criminal Code of the Russian Federation, the courts found it possible to assign them a more lenient punishment than that provided for by the Criminal Code of the Russian Federation.
The fairness of the sentence means that the punishment imposed by the court corresponds to the goals of restoring social justice, as well as the goals of correcting the convicted person and preventing new crimes (Part 2 of Article 43 of the Criminal Code of the Russian Federation). The fairness of the verdict also means that the court must render acquittal when there are sufficient grounds for this (there was no event of an act, there is no corpus delicti in the actions of the perpetrator, his guilt has not been proven or there is doubt about his guilt).
Legality, validity and justice are different, but closely related concepts. For example, the legality of a sentence in a certain sense includes its validity, since validity is a requirement of criminal procedural law. It follows from this that an unfounded verdict is always illegal. The unfoundedness of a sentence, as a general rule, entails its illegality, since the norms of criminal procedural law establish the most appropriate procedure for legal proceedings, ensuring the validity of the sentence. In addition, the sentence must be motivated. It must explain why the court made this or that decision regarding the crime, the innocence or guilt of the defendant, and a specific punishment (Article 305 of the Code of Criminal Procedure of the Russian Federation).
According to Article 298 of the Code of Criminal Procedure of the Russian Federation, the verdict is decided by the court in the deliberation room. During the sentencing, only judges who are members of the court hearing the criminal case may be in this room. At the end of working hours, as well as during the working day, the court has the right to take a break for rest by leaving the deliberation room. Judges do not have the right to disclose judgments that took place during the discussion and rendering of the verdict. The secrecy of the meeting of judges (the secrecy of the deliberation room) is the most important and a necessary condition calm, business-like and impartial discussion of issues related to the decision of a court verdict. It is designed to exclude any influence on judges in resolving these issues and means not only that no other persons can be present in it except the judges who are members of the given court, but it also excludes telephone and other contacts with “external peace" during a meeting of judges.
The legal requirements regarding the secrecy of the deliberation room are also mandatory for the judges themselves. They do not have the right to disclose information related to the discussion of issues related to the sentencing, including what position each judge takes. When discussing issues related to sentencing, including what position each judge takes. When discussing issues related to the sentencing, no minutes are kept, which is also directly related to the secrecy of the deliberation room. The secrecy of the deliberation room is also ensured by: “non-disclosure of voting results” in the event that the court does not reach a unanimous opinion on all issues to be resolved; “by signing the verdict by the entire composition of the court, including the judge who remained in the minority during the voting and did not agree with the verdict.”
In cases where it was not possible for the judges to discuss issues related to the decision of the verdict within one day, with the onset of night time, that is, 10 p.m., the court has the right to interrupt the meeting and leave the deliberation room for rest.
According to Article 301 of the Code of Criminal Procedure of the Russian Federation, when rendering a verdict in the deliberation room, if the criminal case was considered by the court collectively, the presiding judge presides over the deliberation and raises issues for resolution. Discussion of issues is carried out in the order and sequence specified in Part 1 of Article 299 of the Code of Criminal Procedure of the Russian Federation. The following questions are resolved:
1) whether it has been proven that the act of which the defendant is accused took place. Judges analyze the evidence and determine the place and time of the crime. If the judges come to the conclusion that the crime did not actually occur, they are obliged to issue an acquittal. Further discussion of the issues specified in Part 1 of Article 299 of the Code of Criminal Procedure of the Russian Federation is terminated, with the exception of the issues specified in paragraphs 10-13 of this article;
2) whether this act is a crime, and what clause, part, or article of the Criminal Code of the Russian Federation provides for it. Judges compare the signs of a crime with the signs of the article of the Criminal Code of the Russian Federation under which it is qualified, and establish the specific elements of the crime, check the correct application of the criminal law. If necessary, individual episodes or counts of the charge are excluded from the indictment. If there is no corpus delicti in the act, the court, if necessary, discusses the issues specified in paragraphs 10 - 13, part 1 of Article 299 of the Code of Criminal Procedure of the Russian Federation, and issues an acquittal;
3) whether it has been proven that the defendant committed the act. Judges determine whether there is indisputable evidence that the acts or omissions were committed by the defendant and not by another person;
4) whether the defendant is guilty of committing this crime. Criminal liability occurs only if the defendant is guilty. This obliges judges to determine whether the defendant acted with intent - direct or indirect - or recklessly, through negligence or recklessness. If necessary, if the defendant acted intentionally, the court establishes the motives for committing the crime. If guilt is not established, the court is obliged to acquit the defendant;
5) whether the defendant is subject to punishment for the crime he committed. Finding the defendant guilty does not in all cases entail the application of punishment. The court, although it makes a guilty verdict, may not apply punishment, for example, it imposes compulsory educational measures on the person in accordance with the requirements of Chapter 50 of the Code of Criminal Procedure of the Russian Federation (Clause 3, Part 1, Article 29)
6) whether there are circumstances mitigating or aggravating the guilt. These circumstances relate both to the crime itself and to the personality of the defendant. Judges determine the presence or absence of such circumstances, and then, if they exist, compare and determine their purpose to determine the type and amount of punishment;
7) what punishment should be imposed on the defendant. Discussion this issue begins with the possibility of applying a non-custodial sentence. If the answer is positive, the type and amount of punishment is determined. When assigning punishment, one must keep in mind the instructions of the Plenum of the Supreme Court of the Russian Federation No. 40 of June 11, 1999 “On the practice of imposing criminal punishment by courts”; are there any grounds for passing a sentence without imposing punishment;
8) what type of correctional institution and regime should be determined for the defendant when imposing a sentence of imprisonment. When discussing this issue, judges are guided by Article 58 of the Criminal Code of the Russian Federation;
9) whether the civil claim can be satisfied and in what amount. A civil claim is satisfied if the defendant is found guilty of causing physical harm to the victim (for example, money is collected for the treatment of the victim), material damage or moral harm. These issues are discussed by the court when rendering both a conviction and an acquittal. When rendering a guilty verdict, judges check the validity of the requirements for the amount of the civil claim and, depending on the specifics of the case, satisfy the claim in full or in part or deny it. Having considered issues related to a civil claim, judges check whether measures to ensure a civil claim were previously taken in this case. If such measures have not been taken, the judges have the right, before the verdict enters into force, to legal force decide to seize the property of the defendant or other persons who, by force of law, are responsible for the damage caused by the defendant. When discussing issues of acquittal, judges: a) refuse to satisfy a civil claim if the event of a crime has not been established or the defendant’s participation in the commission of a crime has not been proven; b) leave the claim without consideration if the defendant is acquitted for lack of corpus delicti;
10) what to do with property that has been seized to secure a civil claim. The seizure of property is canceled upon a verdict of acquittal, except in cases where a civil claim is left without consideration;
11) what to do with material evidence. They are returned as they belong or are stored with the file or are subject to destruction (Article 81 of the Code of Criminal Procedure of the Russian Federation);
12) to whom and in what order procedural costs should be imposed. These issues are resolved on the basis of Article 131 of the Code of Criminal Procedure of the Russian Federation, taking into account the materials of the criminal case considered by the court;
13) whether the court, in the cases provided for in Article 48 of the Criminal Code of the Russian Federation, should deprive the defendant of a special, military or honorary title, class rank, as well as state awards. This issue is discussed only in cases where the defendant has committed a serious or especially serious crime. In addition, the court must take into account whether the defendant used the title and awards when committing the crime, as well as data characterizing the defendant’s personality; Can educational measures be applied in cases provided for in Articles 90 and 91 of the Criminal Code of the Russian Federation? When judges come to the conclusion that it is necessary to apply educational measures against a minor, they make a decision on this. The defendant is assigned one or more educational measures (Part 2 of Article 90 of the Criminal Code of the Russian Federation), taking into account the personality of the defendant and the circumstances of the crime committed;
14) whether compulsory medical measures can be applied in cases provided for in Article 99 of the Criminal Code of the Russian Federation. These measures apply to persons who have committed an act in a state of insanity, and persons who have suffered from a mental disorder after committing a crime, as well as persons who have committed a crime in a state of limited sanity. The latter is provided for in Part 2 of Article 22 of the Criminal Code of the Russian Federation. It says that mental disorder, which does not preclude sanity, is taken into account by the court when assigning punishment and can serve as a basis for imposing compulsory medical measures. Having recognized that the defendant was in a state of insanity at the time of committing the act, or that the defendant developed a mental disorder after committing the crime, depriving him of the ability to realize the actual nature and social danger of his actions (inaction) or to direct them, the court makes a decision in the manner established by Chapter 51 Code of Criminal Procedure of the Russian Federation. It appears that compulsory treatment, provided for in Part 2 of Art. 22 of the Criminal Code of the Russian Federation. Decision on compulsory treatment accepted taking into account the conclusion of a forensic psychiatric examination;
15) whether the preventive measure against the defendant should be canceled or changed. When rendering an acquittal, judges are obliged to cancel any previously chosen preventive measure in the form of detention in a pre-trial detention center.
The listed issues are resolved in the sequence as they are set out in the law. This procedure ensures the necessary completeness of the sentence.
When resolving each issue, none of the judges has the right to abstain from voting, except for the cases provided for in part three of Article 301 of the Code of Criminal Procedure of the Russian Federation, which states that the judge who voted to acquit the defendant and remained in the minority is given the right to abstain from voting on issues of application of the criminal law . All issues are resolved by majority vote. The presiding officer votes last. A judge who voted to acquit the defendant and remained in the minority is given the right to abstain from voting on issues of application of criminal law. If the judges’ opinions on the qualification of a crime or the measure of punishment differ, then the vote cast for acquittal is added to the vote cast for the classification of the crime under the criminal law, which provides for a less serious crime, and for the imposition of a less severe punishment. The death penalty can be imposed on the guilty person only by unanimous decision of all judges (Part 4 of Article 301 of the Code of Criminal Procedure of the Russian Federation). The judge who has a dissenting opinion on the verdict has the right to state it in writing in the deliberation room. The dissenting opinion is attached to the verdict and is not subject to announcement in the courtroom.
In the above rules, the legislator established an extremely simple procedure, verified by many years of criminal justice practice, and at the same time (or precisely because of its simplicity!) the procedure for developing a final judicial decision in a criminal case, which in the vast majority of cases allows one to avoid serious, insoluble conflicts. However, it is a relatively rare situation in the deliberation room that all three judges disagree on major issues. For example, one judge is in favor of finding the defendant guilty, convicting him and imposing a sentence of imprisonment, another is in favor of a complete acquittal, and a third is in favor of convicting and imposing a sentence not related to imprisonment. The dominant opinion of experts in their views on this problem is that in such cases a verdict must be rendered expressing a middle opinion between the two extremes. In our case, this is a conviction with a non-custodial sentence. The logic of this position is based on the fact that such a verdict, although not directly in everything, is supported by two out of three votes.
Really:
Three judges found the defendant guilty, this is the main thing;
On the issue of punishment for the judge who spoke in favor of acquittal, the closer opinion is to discuss the defendant without imprisonment.
Therefore, even without direct support for this position on the part of this judge, a guilty verdict with a sentence without imprisonment turns out to be the most consistent with the opinion of the majority of judges.
Let us note that this opinion was expressed before the adoption of the current Code of Criminal Procedure of the Russian Federation; Based on the example of a slightly different, but similar situation, it received the support of the legislator.
As stated above, a judge who votes to acquit and remains in the minority has the right to be excused from voting on issues related to the verdict of guilty. However, the criminal procedure law does not connect the removal of this judge from making the final decision on the criminal case under consideration with such circumstances. The judge can continue to take an active part in voting, or use this right and take a passive position - in any case, he will be the subject resolving the case on the merits, that is, exercising his right of casting vote.
If the judge who voted for acquittal and remained in the minority continues to vote when deciding other issues related to the verdict of guilty, it is natural that he will cast his vote in favor of the least severe decision for the defendant on the issue of his guilt, assigning him the least punishment, etc. .
The situation is resolved in almost the same way if such a judge refuses to vote further. In fact, according to Part 3 of Article 301 of the Code of Criminal Procedure of the Russian Federation, if the judges’ opinions on the qualification of a crime or the punishment differ, then the vote cast for acquittal is added to the vote cast for the classification of the crime under the criminal law, which provides for a less serious crime, and for imposing a less severe punishment.
Along with the concept of “sentencing”, which means discussing the issues that constitute it and making a decision on them, there is the concept of “drawing a sentence”, meaning producing its text by hand or using technical means, in particular, computer technology or in the same language where the trial was held. The verdict is signed by all judges, including the judge with a dissenting opinion.
The verdict in accordance with Article 302 of the Code of Criminal Procedure of the Russian Federation can be acquittal or conviction.
An acquittal is rendered if: 1) the event of the crime has not been established; 2) the defendant is not involved in the commission of a crime; 3) there are no signs of a crime in the defendant’s act; 4) the jury returned a not guilty verdict against the defendant.
Based on the defendant’s non-involvement in committing a crime, an acquittal is rendered when during a court hearing it is established that the defendant did not commit a crime, or when the evidence presented, in the opinion of the court, was insufficient for an indisputable conclusion about his guilt.
The court also renders an acquittal in cases where the fact of the defendant’s action or inaction is established, but these actions (inaction) do not have signs of a crime. This may be a disciplinary or administrative offense, an act subject to settlement through civil proceedings. The reason for justification may be an act that is lawful and corresponds to the norms of human society.
The acquittal of the defendant by a jury verdict obliges the judge to issue a verdict of not guilty.
Acquittal on any of the grounds provided for in Part 2 of Article 302 of the Code of Criminal Procedure of the Russian Federation means recognizing the defendant as innocent and entails his rehabilitation in the manner established by Chapter 18 of the Code of Criminal Procedure of the Russian Federation.
A conviction can be rendered only on the basis of evidence confirming the formulation of the charge, which the court recognized as established. It cannot be based on assumptions and is decided only on the condition that during the trial the defendant’s guilt in committing a crime is confirmed by the totality of the evidence examined. A conviction is rendered: 1) with the imposition of a sentence to be served by the convicted person; 2) with the imposition of a sentence and release from serving it; 3) without imposing punishment.
A conviction with a punishment for the crime committed is the most common type of such sentences. In a sentence of imprisonment and other types of punishment that are limited to certain terms, the type and amount of punishment, the beginning of the calculation of the term of punishment are determined, and, if necessary, the regime of the correctional colony is indicated.
A guilty verdict with the imposition of punishment and the release of the defendant from serving it is rendered in cases where: a) the statute of limitations established by Article 78 of the Criminal Code of the Russian Federation has expired; b) an amnesty act has been published, releasing the defendant from punishment; c) the time the defendant is in custody in this criminal case, taking into account the rules for offsetting the punishment established by Article 72 of the Criminal Code of the Russian Federation, absorbs the punishment imposed on the defendant by the court; d) a sentence of suspended sentence or deferment of execution of punishment was passed (Article 302 of the Criminal Procedure Code of the Russian Federation, Article 82, 73 of the Criminal Code of the Russian Federation).
A guilty verdict without imposing punishment is issued when the accused has no grounds for his rehabilitation.
Having found the defendant guilty only of some of the crimes that he is accused of, the court acquits the defendant on unconfirmed charges, and on other, confirmed charges, renders a guilty verdict, which in general is a guilty verdict.
At a court hearing and when rendering a verdict in the deliberation room, the question of terminating the criminal case may arise. This includes, firstly, the cases specified in paragraphs 1 - 3, part 1, article 24 and paragraphs 1 - 3, part 1, article 27 of the Code of Criminal Procedure of the Russian Federation. If relevant circumstances are discovered during the trial, the court continues to consider the criminal case until it is resolved on the merits. Moreover, in the cases provided for in paragraphs 1 and 2 of part 1 of Article 24 (absence of a crime and absence of corpus delicti in the act) and paragraphs 1 and 2 of part 1 of Article 27 (non-involvement of the defendant in the commission of a crime), the court rules an acquittal sentence, and in cases provided for in clause 3, part 1, article 24 and clause 3, part 1, article 27 of the Code of Criminal Procedure of the Russian Federation (expiration of the statute of limitations for criminal prosecution, issuance of an amnesty act), the court pronounces a guilty verdict with the release of the convicted person from punishment.
Secondly, the court issues a resolution (ruling) to terminate the criminal case in cases where: the suspect or accused has died, except for the need for rehabilitation of the deceased; there is no statement from the victim in private prosecution cases; there are no victim statements in private prosecution cases; there is no court conclusion on the presence of signs of a crime, decisions of the State Duma of the Russian Federation, and in relation to judges - decisions of the qualification board of judges in cases involving persons specified in Articles 447, 448 of the Code of Criminal Procedure of the Russian Federation; there is a verdict against the suspect or accused that has entered into legal force on the same charge or a court ruling (decision) to dismiss the case on the same charge; there is a decision to terminate the case, made by the investigator, investigator, prosecutor, on the same charge; an act of amnesty was issued; The statute of limitations for criminal prosecution has expired (the last two grounds of the Code of Criminal Procedure of the Russian Federation also apply to the issuance of a guilty verdict with exemption from criminal liability) Part 6 of Article 302 of the Code of Criminal Procedure of the Russian Federation. Thus, there is some sublimation of the provisions provided for in Articles 24, 27 and 264 of the Code of Criminal Procedure of the Russian Federation.
After resolving the issues specified in Article 299 of the Code of Criminal Procedure of the Russian Federation, the court proceeds to drawing up a verdict. The verdict consists of introductory, descriptive and operative parts. The introductory part of the sentence contains information of public, state and legal significance. They relate to the characteristics of the court, the participants in the process, the defendant, and the crime he committed, but do not affect the essence of the case. In accordance with Article 304 of the Code of Criminal Procedure of the Russian Federation, the introductory part of the sentence indicates: 1) the sentence was passed in the name of the Russian Federation; 2) date, time and place of sentencing; 3) the name of the court that rendered the verdict, the composition of the court, the secretary of the court session, the prosecutor, the defense attorney; 4) the name, patronymic and surname of the defendant, the year, month, day and place of his birth, place of residence, work, occupation, education, marital status and other information about the personality of the defendant that is relevant to the case; 5) a paragraph, part of an article of the Criminal Code of the Russian Federation, providing for liability for the crime of which the defendant is accused.
It is also indicated whether the case was considered in a closed or open court session.
The introductory part of the sentence does not affect the essence of the case and contains details that are equally applicable to both an acquittal and a conviction.
Descriptively, the reasoning and operative parts of acquittal and conviction are different; they reflect the essence of the decision made by the court.
The descriptive and motivational part of the acquittal states: 1) the essence of the accusation; 2) the circumstances of the criminal case considered by the court; 3) the grounds for the acquittal of the defendant and the evidence supporting them; 4) the reasons why the court rejects the evidence presented by the prosecution; 5) reasons for the decision regarding the civil claim.
Among the requirements for an acquittal, one should pay attention to Special attention on the basis of the acquittal of the defendant. The court is obliged to refute the evidence of the prosecution or, in any case, to convincingly cast doubt on it. Not a single piece of evidence of the accusation should be left without attention and the corresponding motivation for its inconsistency. The law also does not allow the inclusion in the acquittal sentence of language calling into question the innocence of the acquitted person (Part 2 of Article 305 of the Code of Criminal Procedure of the Russian Federation).
The operative part of the acquittal must contain: 1) the surname, first name, patronymic of the defendant; 2) the decision to find the defendant innocent and the grounds for his acquittal; 3) the decision to cancel the preventive measure, if it was chosen; 4) a decision to cancel measures to ensure compensation for harm, if such measures were taken; 5) an explanation of the procedure for compensation for damage associated with criminal prosecution (Part 1 of Article 306 of the Code of Criminal Procedure of the Russian Federation).
When rendering an acquittal, issuing a resolution or ruling to terminate a criminal case on the grounds provided for in clause 1, part 1, article 24 and clause 1, part 1, article 27 of the Code of Criminal Procedure of the Russian Federation, the court refuses to satisfy the civil claim. In other cases, the court leaves the civil claim without consideration. Leaving a civil claim without consideration by the court does not prevent its subsequent presentation and consideration in civil proceedings (Part 2 of Article 306 of the Code of Criminal Procedure of the Russian Federation). The descriptive - motivational part of the guilty verdict must contain: 1) a description of the criminal act recognized by the court as proven, indicating the place, time, method of its commission, form of guilt, motives, goals and consequences of the crime; 2) the evidence on which the court’s conclusions regarding the defendant are based, and the reasons for which the court rejects other evidence; 3) an indication of the circumstances mitigating or aggravating the punishment, and if the charge is found to be unfounded in any part or the crime is incorrectly classified - the grounds and motives for changing the charge; 4) motives for resolving all issues related to the imposition of a criminal punishment, release from it or from serving it, and the use of other measures of influence; 5) justification for decisions made on other issues specified in Article 299 of the Code of Criminal Procedure of the Russian Federation, which have already been discussed in detail.
Criminal procedural law, therefore, proceeds from the fact that the wording of the charge in the sentence must contain all the most significant circumstances of the crime, indicating the place, time, method of its commission, the nature of the guilt, the motives and consequences of the crime, and circumstances affecting responsibility. The formulation of the charge ends with specific legal conclusions, which assess the nature of the guilt and the social danger of the crime, and indicate the legal qualifications. All other conclusions of the court contained in the verdict depend on the legal assessment of the crime committed. This wording in the sentence should not go beyond the wording of the indictment. It can be changed, but within the limits that preclude worsening the situation of the defendant and violating his right to defense.
The reasons for the conviction must contain an analysis of the evidence confirming its validity. A reference to the defendant's admission of guilt is not enough. It is significant provided that such a confession is consistent with the circumstances of the crime, and when confirmed by other evidence. The court must confirm the defendant's guilt in committing a crime with evidence established at the trial. This can be either evidence collected during the preliminary investigation and verified in court, or new evidence obtained as a result of calling additional witnesses, conducting an examination, examining physical evidence, etc.
The wording in the verdict, widespread in the practice of some courts, according to which “the guilt of the defendant is proven by the evidence available in the case,” does not convince of the validity of the verdict and does not comply with the requirements of the Code of Criminal Procedure of the Russian Federation.
The verdict must justify not only the type and amount of punishment, but also the use of probation, deferment of execution and other decisions related to the chosen punishment. In these cases, the court provides, if necessary, mitigating circumstances.
The verdict of guilty shall indicate the reasons for the decision made in the deliberation room on civil suit. Such a decision must be justified by relevant arguments and evidence.
The operative part of the guilty verdict must indicate: 1) the surname, name and patronymic of the defendant; 2) a decision to find the defendant guilty of committing a crime; 3) paragraph, part, article of the Criminal Code of the Russian Federation, providing for liability for the crime of which the defendant was found guilty; 4) the type and amount of punishment imposed on the defendant for each crime of which he was found guilty; 5) the final penalty to be served on the basis of Articles 70 - 72 of the Criminal Code of the Russian Federation; 6) the type of correctional institution in which the person sentenced to imprisonment must serve his sentence, and the regime of this correctional institution; 7) the duration of the probationary period in case of a suspended sentence and the responsibilities that are assigned to the convicted person; 8) decision on additional types punishment in accordance with Article 45 of the Criminal Code of the Russian Federation; 9) a decision to count the time of preliminary detention, if the defendant was detained before the verdict was pronounced or preventive measures were applied to him in the form of detention, house arrest, or he was placed for examination in a medical or psychiatric hospital; 10) the decision on the preventive measure against the defendant before the sentence enters into legal force (Article 308 of the Code of Criminal Procedure of the Russian Federation).
The operative part of any sentence must indicate the articles of the Criminal Code of the Russian Federation under which the defendant was acquitted or under which he was convicted. In appropriate cases, it also indicates the release of the defendant from serving a sentence or the imposition of a sentence without imposing a punishment. The decision on a civil claim is also provided here; if necessary, a calculation is made of the amounts to be recovered jointly or personally when there are several tortfeasors among those convicted. In addition, the court is obliged to indicate the distribution of procedural costs (Article 309 of the Code of Criminal Procedure of the Russian Federation).
The operative part of the sentence must also contain an explanation of the procedure and deadlines for appealing it in accordance with the requirements of Chapter. 43-45 of the Code of Criminal Procedure of the Russian Federation, on the right of a convicted and acquitted person to petition for participation in the consideration of a criminal case by a court of cassation.
If, during the consideration of the case in a court session, violations of the law are established during the inquiry or preliminary investigation, circumstances that contributed to the commission of the crime, as well as violations of the rights and freedoms of citizens, the court has the right to issue a private ruling or resolution, which draws attention to these circumstances and violations of the law , requiring adoption necessary measures. When rendering a sentence, the court has the right to issue a private ruling or resolution in other cases if it finds it necessary (Part 4 of Article 29 of the Code of Criminal Procedure of the Russian Federation). It appears that the private ruling or order is not announced at the conclusion of the trial.
According to Article 310 of the Code of Criminal Procedure of the Russian Federation, after signing the verdict, the court returns to the courtroom, and the presiding judge announces the verdict. Everyone present, including the court, listens to the verdict standing. If the sentence is pronounced in a language that the defendant does not speak, then the translator translates the sentence out loud into a language that the defendant speaks, synchronously with the proclamation of the sentence or after its proclamation. When pronouncing the verdict, the presence of the defendant is mandatory and the presence of other participants in the process (parties) is desirable. Proclamation of a verdict in the absence of the defendant is allowed only in cases where he did not legally participate in the trial in this criminal case.
The proclamation of the verdict, although it does not coincide in time with its entry into legal force, has important legal consequences:
From the moment the verdict is announced, the deadlines for its appeal or cassation appeal, that is, filing a protest by the prosecutor and/or complaints by other participants in criminal proceedings, are calculated;
Once the verdict is announced, changes to it can only be made in accordance with the procedure established by law;
The announcement of an acquittal, as well as a conviction with the imposition of a non-custodial sentence, obliges the court to immediately release the defendant from custody in the courtroom;
Only after the court has announced its verdict, those who participated in its decision have the right to begin considering other court cases.
No matter how voluminous the court's verdict, it is subject to oral proclamation in full, from the first to the last line. Failure to comply with this rule applies to significant violations criminal procedural legislation that can mislead the parties and thereby restrict their legal right to appeal the verdict. The exception is situations when a criminal case is heard in a closed court session. Moreover, in accordance with part seven of Article 241 of the Code of Criminal Procedure of the Russian Federation, on the basis of a ruling or court order, only the introductory and operative parts of the sentence can be announced. However, in such cases, the parties have the right to familiarize themselves with the full text of the verdict. According to Article 311 of the Code of Criminal Procedure of the Russian Federation, a defendant in custody is subject to immediate release in the courtroom in cases of acquittal or conviction:
Without assigning punishment;
With the imposition of punishment and with release from serving it;
With the imposition of a punishment not related to imprisonment, or a suspended sentence in the form of imprisonment.
The main meaning of these rules is that an acquitted person cannot remain in custody after the verdict is announced, despite the fact that the verdict has not yet entered into legal force. The acquitted must not be slowly, in the courtroom, released in the courtroom. The return of a rehabilitated person under escort to a pre-trial detention center with subsequent release cannot contribute to the educational impact of the process and strengthening the authority of justice, because in the eyes of not only the convicted person, but also the public, such an action cannot look logical and fair. It also applies to convicts who are not subject to imprisonment based on a declared conviction (those released from punishment in general, those released from serving a sentence; those sentenced to a punishment not related to actual deprivation of liberty). These persons are not subject to actual release from custody in the courtroom only in one case: if a preventive measure in the form of detention was applied to them in another criminal case.
Within five days from the date of proclamation of the verdict, copies of it are handed over to the convicted or acquitted person, his defense attorney, as well as the prosecutor. Within the same period, copies of the verdict can be handed over to the victim, civil plaintiff, civil defendant and their representatives if there is a petition from these persons (Article 312 of the Code of Criminal Procedure of the Russian Federation). This rule is intended to serve as a guarantee of the right of a convicted and acquitted person to appeal and cassation appeal verdict, if they request this, the presiding officer is obliged to provide the opportunity to familiarize themselves with the verdict on the court premises. Those convicted and acquitted who are not familiar with the language in which the proceedings were conducted must be given a copy of the verdict translated into their native language. If a person sentenced to imprisonment has minor children, other dependents, as well as elderly parents in need of constant care, the court, simultaneously with the verdict of guilty, shall issue a resolution or ruling on the transfer of these persons to the care of close relatives or other persons or their placement in orphanages or social institutions. If the convicted person has property or a home that remains unattended, the court issues a ruling or order to take measures to protect them. If an appointed defense attorney participates in a criminal case, the court, simultaneously with the verdict, issues a determination or resolution on the amount of remuneration to be paid for the provision of legal assistance.
The listed court decisions and actions go beyond the content of both the conviction and acquittal, but are closely related to it and are subject to resolution, as a general rule, simultaneously with the pronouncement of the sentence. At the same time, such decisions, expressed in the form of independent judicial documents - court rulings and judge's decisions - at the request of the parties, can be made even after the verdict is announced. The law (part four of Article 313 of the Code of Criminal Procedure of the Russian Federation), which allows for this possibility, does not link the adoption of these decisions with the entry into force of the sentence.
Thus, a verdict is a court decision on the guilt or innocence of the defendant and on imposing punishment on him or releasing him from punishment. The sentence is pronounced in the name of the Russian Federation, thereby expressing the will of the state for the act committed by the defendant. The decision contained in the verdict can be either acquittal or acquittal. The verdict must be legal, reasonable and fair.
Conclusion
In my graduate work, I explored issues related to the stages of legal proceedings. Currently, this topic is very relevant, since the trial is the central stage of the criminal process, at which the court, in its hearing, based on the examination of evidence, decides on the guilt or innocence of the defendant, on the imposition of criminal punishment and some other related issues. It is the court, represented by one or more professional judges, that decides the future fate of the defendant, therefore the trial has great importance throughout the entire criminal process system.
The place and significance of the trial is determined, firstly, by the fact that it is thanks to it that the tasks of criminal proceedings as a whole are realized. All other stages of the process are designed to either prepare and ensure the effective conduct of the trial, or to identify and correct violations and errors made by the court of first instance when considering the case on the merits; secondly, by the fact that, based on the evidence obtained during pre-trial preparation and the conclusions formulated by the inquiry bodies or investigators, it still represents an independent study of the circumstances of the event that became the subject of consideration; thirdly, by the fact that during the trial the rights and obligations of almost all subjects of the criminal process are exercised to the greatest extent and the principles of criminal proceedings are most fully realized.
In the first chapter of my thesis on the topic: “Stages of trial,” I examined the general conditions of trial. Thus, some of the general conditions of judicial proceedings are immediacy, publicity, immutability of the composition of the court and equality of the parties. Directness refers to the examination by the court of first instance of evidence in a criminal case and lies in the fact that the court (judge) must carry out the corresponding judicial investigation only itself. He cannot entrust any of these actions to another court. The basis for a court verdict can be based only on the evidence that was examined in a given court session, the progress and results of which were reflected in the minutes of that court session. The publicity of a criminal trial is expressed in the fact that the case is considered in open court. Therefore, any adult citizen, as well as representatives of state and municipal media, have the opportunity to record everything that happens in it, report the process to an unlimited number of people, and no one has the right to prevent this. The next issue that my work was devoted to is the question of the participants in the court session. The participants in the trial are the court, represented by one or more professional judges, the prosecution represented by a public or private prosecutor and (or) the victim, the defense represented by a lawyer and the defendant. A special category of participants in a court session includes a civil plaintiff, a civil defendant and their representatives, whose procedural status is determined by the fact that they act respectively on the side of the defense and the prosecution only within the framework determined by the interests of resolving the civil claim brought in a criminal case.
In the second chapter, I examined in detail each of the stages of the trial. There are four stages of the trial - the preparatory part, the judicial investigation, the oral argument and the final word of the defendant. The final stage The court hearing is a verdict, which is passed in the name of the Russian Federation based on the results of examining the evidence and listening to the parties.
Thus, judicial proceedings, being one of the forms of exercise of judicial power, are designed to ensure the establishment of all the circumstances of the criminal case under consideration, their correct legal assessment and the issuance of a final decision - a sentence.
Bibliography
1.Regulatory and legal acts
1.1. Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // “Rossiyskaya Gazeta” dated December 25, 1993, No. 237
1.2. “Universal Declaration of Human Rights” (Adopted on December 10, 1948 by the UN General Assembly) // Rossiyskaya Gazeta. 1995. April 5.
1.3. International Covenant of December 16, 1966 “On Civil and Political Rights” // “Bulletin of the Supreme Court of the Russian Federation”, No. 12, 1994
1.4. Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation” // “Rossiyskaya Gazeta”, No. 138-139, 07.23.1994
1.5. Criminal Code of the Russian Federation dated 06/13/1996 No. 63-FZ // “Collection of Legislation of the Russian Federation”, 06/17/1996, No. 25, Art. 2954
1.6. Criminal Procedure Code of the Russian Federation dated December 18, 2001 No. 174-FZ // “Collection of Legislation of the Russian Federation,” December 24, 2001. No. 52 st. 4921
1.7. Criminal Procedure Code of the RSFSR 10/27/1960 // “Code of Laws of the RSFSR”, vol. 8, p. 613
1.8. The federal law dated 08/12/1995 No. 144-FZ “On operational investigative activities” // “Rossiyskaya Gazeta”, No. 160, 08/18/1995
1.9. Federal Law of July 21, 1997 No. 118-FZ “On Bailiffs” // Collection of Legislation of the Russian Federation 07/28/1997, No. 30, Art. 3590
1.10. Decree of the President of the Russian Federation of January 24, 1998 No. 61 “On the list of information classified as state secrets” // Rossiyskaya Gazeta, No. 20, 02/03/1998
2. Monographs
2.1. Bushuev G.I. Meeting of judges when deciding a sentence. Moscow, 1988
3. Textbooks and teaching aids
3.1. Bashkatov L.N. Criminal procedural law of the Russian Federation. Textbook -
2nd edition. M.: Prospekt, 2007
3.2. Bezlepkin V.T. Russian criminal procedure: tutorial- 3rd edition, revised and expanded. Moscow: Knorus, 2006
3.3. Bozhyev V.P. Criminal process. Textbook. Higher education. Moscow, 2006
3.4. Gutsenko M. Criminal process. Textbook for law students. Moscow, 2000
3.5. Kolosovich S.A. Criminal process. Textbook. Moscow, 2003
3.6. Lupinskaya P.A. Criminal procedural law. Moscow, 2003
3.7. Petrukhina I.L. Commentary on the Code of Criminal Procedure of the Russian Federation. 3rd edition. Moscow 1994
3.8. Ryzhakov A.P. Criminal procedure: Textbook for universities. - 2nd edition, modified and expanded. - Moscow: Publishing House “Norma”, 2003
4. Articles in magazines
4.1. Bozrov V.M. On the problem of justice in criminal proceedings.//Russian judge. 2005 No. 4
4.2. Gromov N.A. Bandurin S.G. The verdict is the result of the administration of justice.//Russian judge. 2005 No. 1
4.3. Gromov N.A. Ivensky A.I. The procedure for reinstatement and proclamation of the verdict.//Investigator. 2004 No. 5
4.4. Kapustyansky V.D. Stage of trial in criminal proceedings of the Russian state.//Russian judge. 2004 No. 3
4.5. Kirillova N. State prosecution in court. // Legality. 2004 No. 5
4.6. Kolokolov N. Legality, validity and fairness of a sentence are integral qualities of any judicial decision.//Russian judge. 2003 No. 4
4.7. Ovsyannikov V.S. The structure of the system of main issues resolved by the court when rendering a sentence.//Law and Law. 2003 No. 11
4.8. Solovey A.A. Some features of the judicial investigation under the new Code of Criminal Procedure of the Russian Federation.//Russian judge. 2004 No. 8
5. Law enforcement practice
5.1. Definition Constitutional Court RF “On checking the constitutionality of the provisions of Chapters 35 and 39 of the Code of Criminal Procedure of the Russian Federation in connection with requests from courts of general jurisdiction and complaints from citizens” dated December 8, 2003. Russian newspaper 2003 No. 23
5.2. Resolution of the Constitutional Court of the Russian Federation “On the refusal to accept for consideration the request of the court of the Novgorod region to verify the legality of the constitutional provision of Chapter 1, Article 248 of the Code of Criminal Procedure of the RSFSR” dated December 21, 2000. Russian newspaper. 2001
5.3. Resolution of the Plenum of the Armed Forces of the Russian Federation “On the application by courts of the norms of the Code of Criminal Procedure of the Russian Federation” dated March 15, 2004. No. 1. Bulletin of the Armed Forces of the Russian Federation 2004. No. 5
5.4. Definition Judicial Collegium on criminal cases of the Armed Forces of the Russian Federation dated February 14, 1995. Bulletin of the Armed Forces of the Russian Federation 1995 No. 10
5.5. Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 31, 1995. No. 8. Bulletin of the Armed Forces of the Russian Federation 1996 No. 1
5.6. Resolution of the Plenum of the Armed Forces of the Russian Federation “On the practice of imposing criminal punishment by courts” dated June 11, 1999. No. 40. Bulletin of the Armed Forces of the Russian Federation 1999
RG 5.04.1995 No. 67
BVS RF 2004 No. 5
BVS RF 2004 No. 5
Kutsova E.F. Sentencing/Criminal trial. Textbook for law students. Universities. Ed. K.F. Gutsenko. M., 2000.
Bushuev G.I. Meeting of judges when deciding a sentence. M., 1988
Morshchakova T.G. Judicial proceedings/Criminal procedural law of the Russian Federation. Responsible editor P.A. Lupinskaya. M., 2003
BVS RF. 1999 pp. 5 – 7.
Performs the most important function - monitors the strict implementation of laws and administers justice. The main form of the latter is litigation.
In the legal literature, judicial proceedings are understood as a system-forming part of the civil process, aimed at a comprehensive consideration and fair resolution by a judge of a dispute about the rights of the parties.
However, it should be remembered that the term “trial” can be understood in two ways. Firstly, from the point of view of its focus, this process represents a completely independent function of legal proceedings, and secondly, the court in the proceedings of a civil case has the right and obligation to apply all available rules to make a fair decision.
from the point of view of legal practice, it must fulfill the task of identifying the party to the dispute that, in a given situation, acted in accordance with current legislation. In addition, often the judge must explain to the citizen his rights at a specific point in time in order to eliminate the legal ambiguity that has arisen in his legal relationship. In this regard, judicial proceedings are absolutely accessible to every citizen; moreover, the judge begins any process by allowing the opposing parties to resolve the dispute on their own, without resorting to the help of a third party.
Any trial should be carried out as quickly as possible, without significant costs for both the disputing parties and the court itself. At the same time, the judge in this process has the responsibility important function organizer and arbiter of destinies, who must strictly adhere exclusively to the letter of the law.
In practice, the following stages of litigation are distinguished:
1. The stage of judicial investigation, which includes evidence from both parties, including the demonstration of documents and the questioning of witnesses. This stage ends with the opportunity for the plaintiff or the defendant to make an addition, that is, to present evidence that was not voiced during the investigation.
2. Judicial debate: the prosecution, the victim, the defense and the defendant speak in turn, trying to interpret the presented facts in the light they need. After each speech, the opposing side has the opportunity to make a remark, that is, to explain certain phrases of the opponents.
3. The last word of each of the defendants, in which they can Once again draw the judge’s attention to certain aspects, including once again declaring one’s innocence, or asking for a mitigation of the sentence, citing certain circumstances.
4. The ruling and announcement may not be announced if the judge was unable, based on the facts presented, to form a picture of what happened. In this case, the case will be sent for further investigation.
Thus, the trial is difficult process, aimed solely at establishing the truth in a particular legal dispute.
Stages of trial
The trial is carried out by a single judge or collegiately composed of a judge and two people's assessors (in arbitration court– composed of three professional judges).
The court session is presided over by a judge, i.e. manages its entire course, ensures a complete and comprehensive clarification of all the circumstances of the case, the rights and obligations of the parties, etc.
Showing contempt of court on the part of persons participating in the case or citizens present at the court hearing may result in liability (warning, removal from the courtroom, fine, arrest for up to 15 days). If the actions of the violator contain elements of a crime (for example, hooliganism), then the prosecutor is informed about this or a criminal case is initiated by the court.
There are four stages of the trial.
1. Preparatory stage. Here it becomes clear whether everything necessary persons appeared, and if not, is it possible to do without their appearance, do the persons participating in the case trust them, and do they have any challenges to the court; participants in the process are explained their procedural rights and responsibilities, etc.
2. Investigation of the circumstances of the case begins with a report of the essence (plot) of the case by the judge, after which the parties supplement and clarify their demands and objections. Then the court hears explanations from the plaintiff, defendant, and other persons involved in the case. Persons participating in the process have the right to ask each other questions. After hearing the explanations of the persons involved in the case, the court begins to examine the circumstances of the case, consider and verify the evidence. In practice, the examination of evidence most often begins with an interview with witnesses (first those invited by the plaintiff, then witnesses from the defendant). After the witness's free story, with the consent of the court, questions are asked. The presiding officer has the right to reject a question that is not related to the subject of proof. Consideration of written evidence is carried out by reading it out, after which the persons participating in the case can give explanations. Physical evidence is usually examined by examining it in court. After this, the results of the examination are considered, if one was appointed. If all the evidence has been considered, the judge finds out which of the participants in the process has additions, after which the court proceeds to the judicial debate.
3. Judicial debate summarize the examination of evidence. First, the floor is given to the plaintiff or his representative, and then to the defendant or his representative. The prosecutor participates in the debate in a civil or arbitration case if it was initiated at his request, and in this case he speaks first. The right of last reply always belongs to the defendant and his representative.
4. Making a decision. It is carried out after the judicial debate, when the judge (court) retires to the deliberation room.
Appeal against judicial decisions. In some cases, when making court decisions Miscarriages of justice occur. That is why the law establishes the possibility of appealing the decision. A court decision can be appealed within a month from the date of its adoption.
Court decisions are executed by bailiffs.
This must be remembered
1. Judicial order consideration of property disputes is regulated by the Arbitration procedural code RF (disputes between legal entities) and the Civil Procedure Code of the Russian Federation (if one of the parties is a citizen).
2. Parties to trial are the plaintiff and the defendant.
3. Plaintiff is a person whose rights a dispute has arisen.
4. Defendant is a person brought to justice by the court in connection with the assumption that he violated the rights and interests of the plaintiff.
5. Responsibilities of the parties in litigation:
– conscientiously fulfill their procedural duties;
– provide facts to support your claims and objections;
– prove these facts;
– inform the court about a change of residence;
– appear in court;
– bear legal expenses, etc.
6. Court expenses initially borne by the plaintiff, and if his claims are satisfied, they are transferred to the defendant.
7. Judicial evidence is factual data (information, information), on the basis of which the court establishes the presence or absence of circumstances that are important for the correct resolution of the case.
8. Types of evidence:
– explanations of the parties;
- witness's testimonies;
– written evidence;
- evidence;
– expert opinions, etc.
9. The trial has four stages:
1) preparatory;
2) examination of evidence;
3) debate between the parties;
4) making a decision.
10. You can appeal a court decision to a higher court within a month.
11. The execution of court decisions is entrusted to bailiffs.
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