Litigation is the procedure for examining a case. Thesis: Litigation
Stages of litigation
Trial performed by a single judge or collegiately consisting of a judge and two people's assessors (in arbitration court- consisting of three professional judges).
The court session is led by a judge, i.e. manages its entire course, provides a complete and comprehensive clarification of all the circumstances of the case, the rights and obligations of the parties, etc.
The manifestation of disrespect for the court by the persons participating in the case or citizens present at the court session may entail liability (warning, removal from the hall, fine, arrest 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 litigation.
1. Preparatory stage. Here it turns out that all necessary persons appeared, and if not, is it possible to do without their appearance, do the persons participating in the case trust, and do they have any challenges to the court; participants in the process are explained their procedural rights and obligations, 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 requirements and objections. Then the court hears the explanations of the plaintiff, the defendant, as well as other persons participating in the case. The persons participating in the process have the right to ask each other questions. Having listened to the explanations of the persons participating in the case, the court proceeds to investigate the circumstances of the case, consider and verify the evidence. In practice, the study of evidence most often begins with a questioning of witnesses (first those invited by the plaintiff, then witnesses from the defendant's side). After the free story of the witness, he is asked questions with the consent of the court. The presiding judge has the right to reject a question that is not related to the subject of proof. Consideration of written evidence is carried out by their announcement, after which the persons participating in the case can give explanations. Physical evidence is usually examined by examining it in court. After that, the results of the examination, if it was appointed, are considered. If all the evidence is considered, the judge finds out which of the participants in the process has additions, after which the court proceeds to judicial debate.
3. Judicial Debate sum up the examination of the 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 on a civil or arbitration case, if it is initiated on his application, and in this case he speaks first. Right last replica 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 solutions. In some cases, when making judgments, there are judicial errors. That is why the law establishes the possibility of appealing the decision. The judgment may be appealed within one month from the date of its issuance.
Performed judgments bailiffs.
This must be remembered
1. court order consideration of property disputes is regulated by the Arbitration Procedure Code of the Russian Federation (disputes between legal entities) and the Civil Procedure Code of the Russian Federation (if one of the parties is a citizen).
2. The parties in the lawsuit are the plaintiff and the defendant.
3. Claimant - a person, but about whose rights a dispute has arisen.
4. Respondent - a person brought to justice by the court in connection with the assumption that he violated the rights and interests of the plaintiff.
5. Obligations of the parties in the litigation:
– conscientiously fulfill their procedural duties;
- present facts to substantiate their claims and objections;
- to prove these facts;
– to inform the court about the change of one's place of residence;
- appear in court;
- bear legal costs, etc.
6. Court expenses initially borne by the plaintiff, and if his demands are satisfied, they are shifted to the defendant.
7. Judicial evidence is factual data (information, data), 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 opinion, etc.
9. The trial has four stages:
1) preparatory;
2) examination of evidence;
3) debate of the parties;
4) making a decision.
10. You can appeal the court decision to a higher court within a month.
11. The execution of court decisions is entrusted to bailiffs.
Introduction
Chapter 1. The essence and significance of the stage of trial
1.1 Trial as a stage of the criminal process and its general conditions
1.2 Participants in the proceedings
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 results of all previous procedural activities are summed up, but, most importantly, the main issues of the criminal case are finally resolved - about the presence or absence of a crime and the defendant's guilt in committing it. Being one of the forms of exercise of judicial power, 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 on the basis of the results of a study conducted at the trial stage, a person can not only be found innocent and acquitted (rehabilitation of the innocent is 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 session, on the basis of an examination of evidence, decides on the guilt or innocence of the defendant, on the imposition of a criminal penalty, and some other related issues. It is customary to call it central and main, because it is at this stage that the question of the criminal liability of a citizen who has violated a criminal-legal prohibition before the state is decided. No one can be found guilty of committing a crime, and also subjected to criminal punishment except by a court verdict, which is decided on the basis of the results of the trial. It is at this stage that criminal justice is carried out.
The trial has importance for the formation of civil legal consciousness. A lawful, justified and fair sentence, as well as another judicial decision that crowns this stage, is not only a legal prerequisite for the application of a system of state coercion measures against the guilty, but also a strong prophylactic, whose effect applies to everyone, proving the inevitability of punishment, strengthening faith in the triumph of law and justice. And, of course, on the contrary, judicial injustice, an error, whatever its cause, negatively affects legal consciousness, has a corrupting effect on it, undermining respect for justice, and ultimately the authority of the whole state power; its support loses its stability.
Chapter 1. The essence and significance of the stage of trial
§1.1 Trial as a stage of criminal proceedings and its general conditions
The trial is subject to the rules established by law - the requirements that, specifying and detailing the principles of the criminal process, apply to the trial at the named stage, reflecting its essential features. These rules are referred to as the general conditions of the trial. From general conditions it is necessary to distinguish between the procedural rules of the trial - the totality of the norms of behavior of the participants in the trial, established by the Code of Criminal Procedure of the Russian Federation, which determine outside court session giving it, in a certain sense, a ritual and solemn character, designed to provide an educational impact and beneficial effect 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, all those present in the courtroom stand up. All participants in the trial address the court, testify and make statements while standing. Deviation from this rule can be allowed only with the permission of the presiding judge. The participants in the trial, as well as other persons present in the courtroom, address the court with the words “Dear Court”, and to the judge - “Your Honor”.
Among the general conditions in the first place are three interrelated rules - on the immediacy, oral and publicity of the trial.
Immediacy as a general condition of the trial 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 conduct an appropriate judicial investigation (interrogation, inspection, reading out documents, hearing
expert opinions) to perform only himself. 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. Only the evidence that was examined in this court session, the course and result of the study of which was reflected in the minutes of this court session, can be used as the basis for a court verdict. None of the most convincing materials of the preliminary investigation, bypassing the direct perception by the court, can be used to substantiate the conclusions contained in the court verdict.
The oral nature of the trial means that all the factual data that make up the content of any evidence in the judicial investigation must be announced and sounded in the courtroom, that the entire trial of a criminal case is a judgment and that not a single piece of evidence obtained during the preliminary investigation and silently studied by the judge , the basis of the sentence should not be under any circumstances.
The publicity of the trial in a criminal case is expressed in the fact that the case is considered during open doors court session. Therefore, any adult citizen, as well as representatives of state and municipal media, have the opportunity to record everything that happens in it, report on the process unlimitedly. a wide range persons, and no one has the right to prevent this. The publicity of a trial is derived from the publicity of all public life, and such publicity is one of the most reliable indicators of the health of a democratic civil society. The principle of publicity of legal proceedings was 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, the proceedings in all courts are open. Hearing a case in a closed session is allowed only in cases stipulated by federal law. Part one of Article 241 of the Code of Criminal Procedure of the Russian Federation states that the trial of criminal cases in all courts is open, except for the cases provided for by this article.
The first case: when an open trial may lead to the disclosure of state or other secrets protected by federal law. Most often, the need to close the process arises when the court considers a criminal case based on materials obtained by the bodies carrying out operational-search activities (special services), primarily the criminal police, including its units to combat organized crime, and bodies Federal Service security, because the information they use in carrying out covert, secret operational-search measures, about the results of such measures, 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, they contain state secrets (Article 13 of the Federal Law “On operational-search activity”).
The second case: when criminal cases are considered on crimes committed by persons under the age of sixteen. 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 consideration of a criminal case against sexual inviolability and sexual freedom of an individual and other crimes may lead to the disclosure of information about intimate parts lives of participants in criminal proceedings or information degrading 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 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, 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 decision of the court, if it sits in a collegiate composition, or by decision of the judge, if the case is considered by him alone. A criminal case in a closed court session is considered in compliance with all norms of criminal proceedings. A court ruling or ruling on the consideration of a criminal case in a closed session may be issued in respect of the entire trial or its corresponding part.
Correspondence, recording telephone conversations, telegraphic, postal and other communications of persons may be read out in an open court session only with their consent. IN otherwise these materials are read out and examined in a closed court session. These requirements are also applied in the study of photographic materials, audio and (or) video recordings, filming, of a personal nature.
Persons present at an open court session have the right to keep a written record. Photographing, video recording and (or) filming is allowed with the permission of the chairperson of the court session and with the consent of the parties, if this does not create obstacles to the trial. These types of fixation litigation are prohibited, whether the prohibition applies to a member of the public, a member of the media, or a participant in legal proceedings. It (the prohibition) is thought to be justified mainly in cases where the use of appropriate recording equipment raises objections from the parties, including the defendant, when it creates noise, tension and bustle in the hall, and also when the prohibition is dictated by considerations to ensure the safety of the participants in the process, because in this respect, any measure is not superfluous. Audio recording cannot be prohibited, which is often used because a person does not see, hear, perceive or remember well, but wants to delve into the matter from the recording. The audio recording is silent and fussy, its ban would be equal to the ban on writing with a pencil, which would mean an unjustified "truncation" of the publicity of the trial.
The verdict of the court is proclaimed 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 judgment may be announced. In this way, the actual 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 collegiate composition of the court. If any of the judges is deprived of the opportunity to continue participating in the court session, then he is replaced by another judge, and the trial of the criminal case begins anew. This general condition to which judicial proceedings are subject is organically connected with the requirement of immediacy. Only the judge who participated in it from the beginning to the end can directly examine the evidence in the trial and make the final decision on the criminal case on the basis of a personal, direct perception of the results of the judgment. Deviation from this requirement is considered as a significant violation of the criminal procedure law, entailing the annulment 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 leads the court session, takes all the prescribed measures to ensure the competitiveness and equality of the parties, ensures compliance with the court session schedule, explains to all participants in the trial their rights and obligations, the procedure for their implementation, and also acquaints them with the rules of the court session, established by Article 257 of the Code of Criminal Procedure of the Russian Federation. The objections of any participant in the court proceedings against the actions of the presiding judge shall be recorded in the minutes of the court session.
If a criminal case is considered by a single judge, he combines in his person the duties of both the entire court and the presiding judge in this court session. If the case is considered collectively, the function of the presiding judge in this court session, on behalf of the head of the judicial body, is assumed by one of the members of the judicial collegium. It is he who is obliged to take all measures provided for by law in order to provide all conditions for a solemn, businesslike, thorough and, if possible, uninterrupted court session, to explain the rights and legitimate interests of all participants in the process without exception and to ensure their implementation. The authority of the chairman largely depends on the behavior of the chairman. this court and justice in general.
Being at the disposal of the presiding judge, order in the court session is ensured by the bailiff - an official who is on public service in the judiciary, who has received the necessary special training and has the right to carry firearms and special means. When on duty, the bailiff wears a uniform. He carries out the instructions of the chairperson of the court session 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 measures of procedural coercion to the defendant and other citizens; provides security for the meeting room; carries out the bringing of persons evading appearance in court (Article 4 and 11 of the Federal Law of the Russian Federation of July 21, 1997 "On bailiffs".
In case of violation of order in the court session, disobedience to the orders of the presiding judge or the bailiff, the person present in the courtroom shall be warned about the inadmissibility of such behavior, or removed from the courtroom, or imposed on him pecuniary recovery in the manner prescribed by Articles 117 and 118 of the Code of Criminal Procedure of the Russian Federation. If the accuser or defense counsel fails to comply with the orders of the presiding judge, the hearing of the criminal case may be postponed by ruling or decision of the court, if it is not possible, without prejudice to the criminal case, to replace this person others. At the same time, the court informs the higher prosecutor or the bar association about this. May be removed from the courtroom before the end of the debate of the parties and the defendant. The verdict in this case must be proclaimed in his presence or announced to him against receipt immediately after the proclamation.
The secretary of the court session shall keep 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 the persons who must participate in the court session, on behalf of the presiding judge, performs other actions provided for by the Code of Criminal Procedure of the Russian Federation.
Prior to 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 involved in this process, compiling and posting a list of cases to be considered at the court session. These are non-procedural actions. Along with them, the secretary of the court session at the stage of trial in a criminal case is an obligatory participant in the process, endowed with appropriate procedural rights and obligations, the main and main of which is keeping a record that competently, objectively and as fully as possible reflects the course of the court session as a whole and each judicial investigation. separately. The secretary of the court session may be challenged; the issue of withdrawal 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 a criminal case directly depends.
In litigation, there are objectively favorable conditions to implement the constitutional principle of the administration of justice on the basis of competitiveness 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 session, the parties enjoy 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 a court session in criminal cases of public and private-public prosecution. If the impossibility of further participation of the public prosecutor is discovered during the trial, he may be replaced. The court shall give time to a public prosecutor who has entered the court proceedings again to familiarize himself with the materials of the criminal case and to prepare for participation in the court proceedings. The substitution does not entail a repetition of the actions that had been committed in the course of the trial up to that point.
At the request of the public prosecutor, the court may repeat the interrogation of witnesses, victims, experts, or other judicial actions. The public prosecutor presents evidence and participates in their examination, expresses to the court his opinion on the merits of the accusation, as well as on other issues arising in the course of the trial, expresses to the court his assumptions about the application of the criminal law and the imposition of punishment on the defendant, presents or supports the one presented in the criminal case civil action, if it is required by the protection of the rights of citizens, public or state interests.
If in the course of the trial the public prosecutor comes to the conclusion that the evidence presented does not confirm the charge brought against the defendant, he waives the charge and sets out to the court his reasons for refusal. The full or partial refusal of the public prosecutor from the prosecution during the trial entails the termination of the criminal case or criminal prosecution in whole or in the corresponding part on rehabilitating grounds.
Such refusal means refusal of the state from "criminal action" to the citizen; it predetermines the adoption by the court of a 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 competition and equality of the parties, and the formulation of the charge and its support before the court is ensured by the prosecutor (paragraph 29 of the decision of the Plenum Supreme Court RF dated March 5, 2004 No. 1 "On the application by the courts of the norms of the Code of Criminal Procedure 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 has not received satisfaction and does not agree with the position of the public prosecutor. The Constitutional Court indicates the following way of resolving such conflicts: the issuance of a judicial decision on the rehabilitation of the defendant, conditioned by the dismissal of the prosecution, is admissible only after the completion of the study of the materials of the case that are significant for this and hearing the opinions on this matter of the participants in the court session from the side of the prosecution (the victim and his representative) and the defense. The legality, validity and fairness of such a decision may be certified by a higher court. At the same time, the higher prosecutor, if he establishes that the public interests were not secured by the lower prosecutor, has the right and is obliged to cancel decision and/or, by ceasing his actions, in other words, disavow the waiver of the accusation and resume it. Prior to the removal of the court to the deliberation room for sentencing, the public prosecutor may also change the charge in the direction of mitigation by:
Exceptions from the legal qualification of the act of signs of a crime, aggravating punishment;
Re-qualification of an act in accordance with the norm of the Criminal Code of the Russian Federation, which provides for a more lenient punishment.
Revision of a court ruling or decision to terminate a criminal case due to the refusal of the public prosecutor 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 public prosecutor from the charge, as well as the change of the charge by him, does not prevent the subsequent filing and consideration of a civil claim in accordance with the procedure civil litigation.
The trial of a criminal case is carried out with the obligatory participation of the defendant. If the defendant fails to appear, the hearing of the criminal case must be adjourned. The court has the right to subject the defendant who has not appeared to the court without valid reasons to be brought, as well as to apply to him or change the measure of restraint.
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.
The defense counsel of the defendant also participates in the trial in a criminal case, who examines the evidence, makes motions, sets out to the court his opinion on the merits of the accusation and its proof, on the circumstances mitigating the punishment of the defendant or justifying him, on the punishment, as well as on other issues arising during the trial.
An important isolated group of general conditions of the 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 the trial is allowed only if this does not worsen the position 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 something that is not contained in the three most important procedural acts: a) a decision to bring him as an accused; b) the indictment; c) the decision of the judge on the appointment of a court session - in a word, what he suddenly learned about, about which he was not interrogated and from which he did not defend himself before the trial.
Nevertheless, it is possible to change the charge at the trial stage, but only with the strictest observance of the rule on the inadmissibility of a turn for the worse (for the defending side). And this means that the charge in a court session can legally be changed only by: a) excluding certain episodes of criminal activity from it; b) retraining to another article of the Special Part of the Criminal Code of the Russian Federation, which provides for a less severe punishment; c) reducing the amount of damage caused by the crime; d) with the exception of indications of circumstances that aggravate criminal liability, and other circumstances that have a criminal law significance of a negative, unfavorable nature for the defendant. If, however, one of the several accusations was not confirmed by evidence at the hearing of the court of first instance, then the proceedings should end with the defendant's acquittal on this charge and the passing of 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 session is observed, the accusation cannot be changed so much that, in its factual basis, it differs significantly from the original one. In other words, it cannot be allowed to become "unrecognizable", since such unexpected turn in criminal prosecution, by its suddenness violates the right of the accused to defense.
In the course of the trial, circumstances sometimes arise that make it impossible to conduct the trial due to the absence of any of the participants in the proceedings or other summoned persons, as well as due to the need to demand new evidence. In particular, the law recognizes mandatory participation in the trial of cases of public and private - public prosecution - a private prosecutor (parts 1-3 of article 246 of the Code of Criminal Procedure of the Russian Federation). The trial is also postponed in case of non-appearance of the defense counsel and the impossibility of replacing him (Part 2, Article 246 of the Code of Criminal Procedure of the Russian Federation). A defense counsel who has newly joined the process, replacing a defense counsel who did not appear, has the right to familiarize himself with the materials of the criminal case and to 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 Criminal Procedure Code of the Russian Federation, if the defendant fails to appear, the consideration of the criminal case should be postponed. Trial in the absence of the defendant may be allowed if, in a criminal case involving a crime, there is little or moderate the defendant petitions for the consideration of this criminal case in his absence (part 4 of article 247 of the Criminal Procedure Code of the Russian Federation).
If, in order to correctly resolve the case, the court needs to request new evidence (for example, a document stored in an institution or from citizens), then the proceedings may also be postponed until it is received. If a forensic examination has been appointed in a case, the production of which requires considerable time, the trial is adjourned.
Suspension of proceedings must be distinguished from adjournment of proceedings. The grounds for suspension include the following:
1) in the case when the accused has fled and the place of his stay is 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 when 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 proceedings on the criminal case 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 fled , selects a measure of restraint for him in the form of detention and instructs the prosecutor to ensure his search.
In accordance with Art. 103 of the Federal Law “On the Constitutional Court of the Russian Federation” and clarifications on the procedure for applying this article contained in the Decree 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 constitutionality applicable or applicable law.
If the basis for suspending the trial in a criminal case does not apply to all the defendants, but to one of them, the court suspends the proceedings only in respect of this defendant - until the obstacles to the normal administration of justice are removed. In relation to the rest, legal proceedings are carried out in the usual manner. If a separate trial hinders the consideration of a criminal case, then the proceedings on it in respect of all the defendants are suspended.
On issues resolved by the court during the court session, the court issues rulings or resolutions, which are subject to announcement in the court session. Determination or ruling on the most important issues(on the return of the criminal case to the prosecutor, on the termination of the criminal case, on the change or cancellation of the measure of restraint in respect of the defendant, on the extension of the term of his detention, on challenges, on the appointment of a forensic examination) is taken out in the deliberation room and is set out in the form of a separate procedural document signed by the judge or judges, if the criminal case is considered jointly. All other rulings or rulings at the discretion of the court shall be made in the courtroom.
During the trial, the court has the right to choose, change or cancel the measure of restraint in relation to the defendant. If detention is chosen for the defendant as a measure of restraint, then the term of his detention from the day the criminal case is received by the court and the sentence is passed may not exceed 6 months. The court in whose proceedings the criminal case is located, after 6 months from the date of receipt of the criminal case by the court, has the right to extend the period of detention of the defendant in custody. At the same time, the extension of the period of detention is allowed only in criminal cases on grave and especially grave crimes, and each time for no more than 3 months. The decision of the court to extend the period of detention of the defendant in custody may be appealed in cassation, but such an appeal does not suspend the criminal proceedings in the court of first instance.
The course and results of the trial are subject to mandatory recording in the minutes of the court session (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 session of the procedure for conducting the trial. If the examination by the court of any evidence is not reflected in the minutes of the court session, reference to this evidence when appealing against the verdict is unacceptable. The absence of the minutes of the court session in the case file, as it makes it impossible to verify the court's compliance with legislative requirements, is an unconditional 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 minutes indicate: the place and date of the meeting with the designation of the time of its beginning and end, the name and composition of the court, the secretary, translator, prosecutor, defense counsel, defendant, victim, civil plaintiff and civil defendant and their representatives, as well as other persons summoned by the court and who appeared at the hearing, the case under consideration, data on 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 the persons participating in the case, rulings or decisions issued by the court, information on explaining to the participants in criminal proceedings their rights, duties and responsibilities.
Mandatory reflection in the protocol are subject to: detailed content testimony of the defendant, victim, witnesses, expert; actions taken by the court to collect and examine evidence. Testimony given at the court session should be recorded in the first person as completely as possible. If the persons participating in the case ask for certain facts to be certified in the protocol, this should also be reflected in the protocol.
The protocol briefly sets out 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 pass the verdict, the announcement of the verdict and an explanation of the procedure and terms for appealing it, the explanation of the right to petition for participation in the session of the court of the cassation (appeal) instance.
If during the proceedings there was a violation of order in the courtroom, the nature of this violation, data on the person who committed it, and on the measures taken by the court or the presiding judge are also recorded in the protocol.
In order to ensure the completeness and objectivity of the minutes during the court session, stenography may be used, and technical means may also be used if the court has allowed their use. Results of use technical means 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 with the help of a computer, signed by the presiding judge and the secretary in the courtroom. If the trial takes place for a long time, it is allowed to produce and sign the protocol in parts, which, on the one hand, ensures its more objective and high-quality compilation, and on the other hand, gives the court the opportunity to use ready-made protocols in the deliberation room when preparing the verdict, and on the third, it allows the persons participating in the case (especially the public prosecutor or defense counsel entering the process that has begun) to build the rationale for their position in the best way. The protocol may be prepared and signed no later than three days after the end of the court session.
The parties are provided with the opportunity to familiarize themselves with the minutes of the court session if they file a written request to this effect within three days from the date of the end of the court session. If this period is missed for a good reason, it can be restored.
In addition to the parties, the opportunity to familiarize themselves with the protocol of the court session is also provided to other participants in the process, but only in the part in which their testimony is recorded in the protocol. If during the specified period, due to objective circumstances, the protocol has not yet been prepared, the chairman must notify the interested persons 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 its part, with which the participant in the trial wishes to familiarize himself.
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 can be applied to it, which are immediately considered by the sole chairperson of 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 remark if additional explanations or clarifications are required on their part regarding the submitted remarks.
Based on the results of consideration of the comments, the presiding judge shall issue a reasoned decision to certify their correctness or to reject them, which, together with the comments, shall be attached to the minutes of the court session. The remarks, the correctness of which was certified by the presiding judge, during the subsequent verification of the legality and validity of the verdict, may be taken as the basis for the decision of the court of cassation or supervisory instance. Rejected comments on the protocol cannot be used in this capacity, however, if their content gives rise to doubts in the relevant higher court about the legality and validity of the verdict, they can be taken into account when canceling the verdict and sending the case back for a new trial.
From the foregoing, we can conclude that the trial is an independent stage of the criminal process, which consists in considering a criminal case on the merits at a court session of the first instance, with the issuance of a final decision based on the results of such consideration, determining the fate of a particular person participating in this stage as the defendant.
§1.2 Participants in legal proceedings
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 (the composition of the court, in which, along with a professional judge, twelve jurors participate, can very conditionally be designated as collegiate, since collegiate jurors the question of the guilt of the defendant is decided - all other issues are decided by the presiding judge alone). Judges who are members of the collegium enjoy equal rights to resolve all issues that arise during the session. At the same time, one of the judges who are members of the collegium, 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 session.
The presiding judge directs the course of the process, both in the courtroom and in the deliberation room during discussion and decision-making, takes all measures provided for by law to ensure the competitiveness and equality of the parties. He: 1) opens the session, announces the composition of the court; 2) takes all measures provided by law for a comprehensive, complete and objective examination of the circumstances of the case and for the elimination of everything that is not relevant to the case from the trial, directing the course of the examination of evidence in accordance with the procedure established by law and adopted by the entire composition of the court by the decision; 3) establishes the identity of the participants in the court session, explains their rights and obligations, provides other judges and other participants in the process with the opportunity to exercise their rights and procedural obligations; 4) ensure the observance of order in the hall both by the participants in the court session and by the public; 5) ensures the correct keeping of the protocol of the court session, signs it and makes a decision to certify the correctness or to reject the comments on the protocol; formulates issues to be resolved in the court session and in the deliberation room, announces the decisions taken by the court.
The actions and orders of the presiding judge 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 against them, which are subject to entry into the minutes of the court session and can be satisfied by the panel of judges (if the case is considered by the collegial composition of the court).
The secretary of the court session shall keep the minutes of the court session, while ensuring the full and correct reflection in it of 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 receipt of documents and materials requested by the court, and performs other actions on behalf of the presiding judge.
The prosecution and defense parties play a key role in the trial, 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 the court session enjoy equal rights to file challenges and motions, present evidence, participate in their research, speak in judicial debates, and present written statements to the court on issues of proof of guilt the defendant and his punishment, as well as the formulation and consideration of other issues by the court. This implies, in particular, the duty of the presiding judge to ensure that each of the participants in the process has the opportunity both to personally give the necessary explanations and testimony on the case, and to present to the court objects, documents and other materials that can be used as evidence, to file petitions to call witnesses, to appoint expert examinations. , reclaiming documents, etc. The parties should also be provided with the opportunity to express their opinion on the results of the study of evidence in the process of judicial debate.
The side of the prosecution in the court session is represented primarily by the public prosecutor, which 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 inquirer or investigator. The participation of the public prosecutor in the 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 Criminal Procedure Code of the Russian Federation, the relevant criminal case was initiated by the prosecutor, investigator or interrogating officer with the consent of the prosecutor in the absence of an application a victim who is unable due to a helpless state or for other reasons to independently protect his rights and legitimate interests.
By naming the prosecutor participating in the stage of the trial and other officials who acted on the side of the prosecution during the pre-trial proceedings as the state prosecutor, the law thus, as it were, emphasizes their special status in this procedural stage, different from their status in the preliminary investigation stage, where they ( especially the prosecutor) possessed powers of authority, in connection with which their actions and decisions were binding on other participants in the proceedings. In a court session, 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 views on the existence of grounds for the application of criminal law and possible measure punishment for 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 put the public prosecutor in a privileged position compared to other participants in the meeting, speaking on the side of the prosecution and on the side of the defense, and giving him the opportunity to make decisions binding on other participants in the process. The opinion of the public prosecutor on issues arising during the court session (with the exception of cases when he refuses to accuse or changes the accusation) is not binding on the court.
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 testify to the groundlessness of the accusation brought against the defendant, both in terms of its actual grounds and in terms of the legal assessment of the act incriminated to the defendant, or in the presence of circumstances excluding proceedings in the case, he is obliged to declare a change in the charge. or drop the charge, explaining to the court the reasons for its decision. The possibility of the public prosecutor's waiver of the charge can be exercised at any stage of the trial before the court retires to the deliberation room.
Changing the charge by the public prosecutor during the trial excludes the possibility of continuing the trial within the framework of the charge previously brought against the defendant; the refusal of the public prosecutor from the charge in whole or in some part of it entails the termination of the criminal case or criminal prosecution in whole or in the relevant part on the grounds provided for in paragraphs 1, 2 of part 1 of article 24 and paragraph 1 of article. 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 who ensure the maintenance of public 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.
A reduction in the number of cases considered by the courts and an increase in the staff of prosecutors should have significantly increased the effectiveness of criminal prosecution in court. However, the number of acquittals, albeit slightly, has increased, and the number of prosecutors' refusals to charge has also increased.
As the main reasons for this state of affairs, public prosecutors name the mistakes made by investigators and interrogators in the course of the investigation, 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 of 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 confirms the indictment and who defends the charge in court are often different officials. The assistant prosecutor, who is usually tasked with maintaining public prosecution in court, receives the criminal case file after the investigation is completed and the indictment is confirmed. 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 the point of view of the judicial perspective. He had not previously communicated with witnesses and victims and had no procedural opportunity to directly assess their testimony in terms of relevance, admissibility and reliability. Sometimes the evidence, which at first glance seems to be reliable, undergoes transformation in court, the volume of the charge changes and the public prosecutor is forced to fully or partially withdraw the charge.
In criminal cases of private prosecution, the prosecution in the trial 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 session, the private prosecutor sets out the essence of his statement about the crime committed against him, presents evidence, participates in the study of evidence, expresses his opinion on the merits of the accusation, on the application of the criminal law and sentencing the defendant, as well as on other issues during the trial . A private prosecutor may change the accusation in a favorable direction for the defendant or refuse the accusation altogether, including in cases where a criminal case has been initiated at the initiative of the prosecutor, investigator or interrogating officer.
The participation of a private prosecutor in a court session is mandatory; if he fails to appear for a good reason, the hearing on the case should be postponed, and 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 in the court session, including the presentation of evidence and participation in their study, to express his opinion to the court 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 an imperative value for him. The victim, to whom the offense was the infliction of material damage or moral damage subject to material compensation, has the right to file a civil claim until the end of the judicial investigation and support it during the trial.
In many criminal cases, such a subject as a victim may not participate in criminal proceedings, and not only at the stage of trial (for example, in a case of high treason). Failure to appear at the court session of the victim participating in the case, as a general rule, does not prevent the consideration of the case. However, in cases where the victim who applied for his participation in the hearing of the case did not appear for a good reason, the court session must be adjourned.
The hearing is also adjourned if the court considering the case comes to the conclusion that the presence of the victim is obligatory; in this case, the court may decide on his forced drive.
The central figure in the trial is the defendant, whose participation in the session of the court of first instance is mandatory. The requirement for the obligatory participation of the defendant in the court session 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 (subparagraph "c" of paragraph 3 of Art. .14 International Covenant on Civil and Political Rights) . Participating in the court session, the defendant has the right to express his attitude to the charge brought against him, to make motions and challenges, to present evidence and determine the procedure for their examination, to participate in the examination of evidence, to speak in judicial debates (if the defense lawyer does not participate in the case), to express his opinion on the merits of the charges brought and on other issues to be resolved during the court session.
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 on a crime of small or medium gravity, the defendant requests that the case be considered in his absence. Given the exceptional nature of the hearing of a criminal case in absentia, the court in each separate case must make sure that there is an express (verbal or written) request for such a review, not due to any objective obstacles to appearing in court (illness, lack of funds to travel to the place of court, etc.).
On the basis of clause 4, part 1, article 24 of the Code of Criminal Procedure of the Russian Federation, a trial in the absence of the defendant is also possible in the event of his death, if the consideration of the case is necessary for his rehabilitation.
By virtue of h.3 Article. 258 of the Code of Criminal Procedure of the Russian Federation, the possibility of trying 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 in the court session and disobedience to the orders of the presiding officer or bailiff. The law does not provide for mandatory condition, in which the removal of the defendant from the courtroom is possible, the malicious nature of the violations committed by him, however, it seems that, given the importance of the right of the defendant to participate in the trial, his removal from the courtroom for a single fact of violating order or disobeying the requirements of the presiding judge should be recognized as unacceptable. The consideration of a criminal case in the absence of the defendant without sufficient grounds should be regarded as a violation of the criminal procedure law and entail the annulment of the guilty verdict, if such 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 paragraph 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 defender, realizing his procedural obligation to use all means and methods of defending the defendant not prohibited by law, participates in the study of evidence, makes petitions, sets out to the court his opinion on the essence and proof of the charge, the correctness of the legal qualification of the actions of his client, the circumstances mitigating the punishment of the defendant or justifying him, the punishment, as well as other issues arising in the course of the trial (part 1 of article 248 of the Criminal Procedure Code of the Russian Federation).
In accordance with Part.2 Article. 49 of the Code of Criminal Procedure of the Russian Federation, lawyers can act as a defense counsel in court proceedings, and by a court ruling or order, along with a lawyer, another person whose admission is requested by the defendant, in particular his close relative. In proceedings before a magistrate, such a person may be admitted as a defense counsel 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 at the same time does not refuse the help of a defense lawyer, his participation in the consideration of the case must be ensured by the court; only a lawyer can be called for these purposes.
If the invited defendant, his proxies or summoned counsel fail 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 counsel, or take measures to appoint him, thereby postponing the trial for a certain time. A defense counsel who has joined the process for the first time or who has replaced a retired defense counsel must be given time to familiarize himself with the materials of the criminal case and prepare for the trial. The replacement of the defense counsel does not entail a repetition of the actions that had been committed in court by that time, although it does not exclude this if the defense counsel makes a corresponding request.
Refusal by the defendant of counsel, either invited by the defendant himself or at his request or with his consent by other persons, or appointed by the court, is not binding on the court. In each case of refusal of the defendant from the defense counsel (both from the defense counsel in general and from a specific lawyer), the court must check the reasons that caused such a refusal. If at the same time it is revealed that the refusal is of a forced nature (due to the absence of the defense counsel at the court session, the lack of money to pay legal assistance etc.), consideration of the case without the participation of a defense lawyer should be regarded as a violation of the right of the accused to defense.
Participating in the trial, the defender has the right to act only in the interests of his client, not allowing any actions that could worsen the situation of the latter. If, on the basis of his legal knowledge and examination of the circumstances of a particular case, the defender comes to a conclusion that is opposite to the position of his client, he does not have the right to draw the attention of the court to this contradiction and argue with the defendant.
A special category of participants in the trial 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 to the extent that are determined by the interests of resolving a civil claim filed 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 session, 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 so requests; thirdly, if the civil defendant, in particular the defendant, fully agrees with the civil claim brought.
The failure of the 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 a public or private prosecutor and (or) the victim, the defense represented by a lawyer and the defendant, a civil plaintiff and a civil defendant, as well as a 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 the conditions under which the trial of the criminal case on the merits can take place.
The court session begins with its opening by the presiding judge and the announcement of which criminal case is subject to trial. An important point in the opening of the court session, which is indicated by the criminal procedure law and which from the very beginning creates a businesslike atmosphere in the proceedings, is the observance of the pre-arranged time for the opening of the session.
Then the presiding judge checks the attendance at the court session of the parties, as well as other persons who, according to the decision on the appointment of the session, were summoned to court (witnesses, experts, translator, etc.). About turnout specified persons or the reasons for their non-appearance are reported to the court by the secretary of the court session, who is obliged to clarify these issues before opening it.
If an interpreter is summoned to the court session, the presiding judge explains to him his rights, obligations and liability for deliberately incorrect translation, about which he is asked to sign a signature on a special form.
In order to ensure the objectivity of the testimonies of the witnesses summoned to the court session and to prevent the influence on them of the information that will be announced in the courtroom, the presiding judge removes them from the courtroom, and the bailiff takes measures to ensure that witnesses who have not been interrogated by the court do not have the opportunity to communicate with already interrogated witnesses, as well as with other persons in the hall (in particular, with relatives of the defendant or the victim).
After the witnesses are removed 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, knowledge of the language of court proceedings and other circumstances that may be important, in particular, in case of resolving issues related to ensuring the rights of the defendant in the process or with the imposition of punishment), and also makes sure that he was served a copy of the indictment (indictment), and checks the date of its delivery. If changes were made to the charge when approving the indictment (indictment) or when scheduling a court session, the accused must also be given a copy of the relevant decision. 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.
Further, the presiding judge announces the composition of the court, informs who is the accuser, defense counsel, victim, civil plaintiff, civil defendant and their representatives, secretary of the court session, expert, specialist and translator. At the same time, not only the surnames, names and patronymics of the relevant participants in the proceedings should 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, what position does he hold? : the prosecutor, his deputy or assistant; if a lawyer is a member, which bar association 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 by 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 for more than late stages proceedings.
After consideration by the court of the objections, the presiding judge 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 participates in the court session, legal representative defendant, representatives of the victim, civil plaintiff and civil defendant who are not professional lawyers, the relevant rights specified in Art. 45, 53, 55 of the Code of Criminal Procedure of the Russian Federation, are explained to them. In addition, the presiding officer must explain the rights, duties and responsibilities under Art. 57 and 58 of the Code of Criminal Procedure of the Russian Federation, summoned to the court session to an expert and specialist, about which they give an appropriate signature attached to the protocol of the court session.
The next step in the preparatory part of the court session is the hearing and resolution of petitions. Among the petitions that the parties may file at this stage of the proceedings, Article 271 of the Criminal Procedure Code of the Russian Federation names those that relate to the completeness and admissibility of the evidence collected in the criminal case under consideration: on the summoning of new witnesses, experts and specialists, on the reclamation of objects and documents or exclusion evidence obtained in violation of the criminal procedure law. In this part of the trial, other petitions can also be made: to change the defendant's measure of restraint, 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, suspension of the proceedings, holding a closed court session.
Each petition is subject to discussion and resolution immediately after its application. The person making the application must
bring the appropriate petition, should give the appropriate arguments to substantiate it, after which the 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) issues a ruling (ruling) to satisfy the petition or to refuse to satisfy it. The court is not entitled to refuse to satisfy the petition for interrogation in a court session as a witness or a specialist of a person who 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 session. For these purposes, the court listens to the opinions of the parties on this issue, and then issues a ruling (decree) on the continuation of the trial or on its postponement due to the absence of the persons summoned to the court session. The court may also decide to re-summon a person who has not appeared or to bring him in if this person avoids appearing in court without good reason.
Thus, the preparatory part of the court session is essential for the successful trial of a criminal case. This stage court session is designed to create and test the conditions for the administration of justice in strict accordance with the law.
§2.2 Judicial investigation
The judicial investigation is the most important part of the trial, in which the court, in the conditions of oral, publicity, immediacy, competitiveness of equal parties, as well as the fullest 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 actual circumstances of the case, guilt of the defendant and a fair resolution of the case. In relation to the judicial investigation, all the materials of the criminal case are of a preliminary nature (it is no coincidence that the preliminary investigation is called that way). They're in without fail are subject to a new, judicial investigation and only after that can be used as a justification for 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 specifics of judicial activity, the investigation in court differs from the activities of the investigative bodies in collecting evidence also in a set of legal means. Here, the production of a search, seizure, exhumation of a corpse is excluded; confrontation, investigative experiment and presentation for identification acquire significant specifics, while interrogations are not a dialogue between the interrogated person and the interrogator “in the quiet of the 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 presentation by the public prosecutor of 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 earlier Code of Criminal Procedure of the RSFSR of 1960 did not contain specific instructions on who should formulate the act incriminated 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 read out by the presiding judge at the hearing. However, the Constitutional Court of the Russian Federation, which took in 1998 - 2000. row critical steps on the restoration of the adversarial meaning of justice, in one of his decisions, he indicated that “... the role of the court in criminal proceedings is predetermined that the presiding judge, authorized ... to lead the court session, has the right to establish the procedure for reading the indictment in court, and the prosecutor participating in the case cannot refuse from the announcement of the indictment at the court session. The solution of this procedural issue contained in the current Code of Criminal Procedure of the Russian Federation, of course, is much more in line with the role of the court, the role of the presiding judge in the court session, the principle of competitiveness and the functions of the prosecutor in the criminal process. According to the above considerations, the judicial investigation in cases of private prosecution also begins with the speech of the accuser, but not the public prosecutor, but the private one, who sets out not the indictment, but his statement.
After the presentation by the public prosecutor of the charge brought against the defendant, or the statement set forth by the private prosecutor, the presiding judge, as his first procedural action, asks the defendant whether he understands the charge and whether he or his defense counsel wants to express his attitude towards the charge brought. The defending party has the right to abstain this moment from such an expression of opinion, which does not deprive her of the right and opportunity to express her attitude towards the charge at the subsequent stages of the trial.
The next procedural stage of the judicial investigation is subject to the task of determining the most efficient sequence examination of evidence (Article 274 of the Code of Criminal Procedure of the Russian Federation). This sequence is based on the principle of the adversarial nature of the criminal process: the prosecution presents evidence first, then the defense, while the order in which the evidence presented is examined is determined by each of the parties 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 "master 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, by his testimony, is able to lay the evidentiary foundations of the leading version, which requires verification in the course of subsequent proceedings. If the defendant denies his guilt, the judicial investigation usually begins with an examination of the evidence, but in order to listen to the testimony of the defendant, taking into account their legal influence.
Having determined the sequence of examination of evidence, the court proceeds to the interrogation of the defendant (Article 276 of the Criminal Procedure Code of the Russian Federation). If the defendant agrees to testify, he is first interrogated by the defense attorney and participants in the trial on behalf of the defense, then the public prosecutor and participants in the trial on the prosecution side. The presiding judge shall reject leading questions and questions not related to the criminal case. The defendant has the right to use written notes, which are presented to the court at his request. The court puts questions to the defendant after interrogation by the parties. The interrogation of the defendant in the absence of another defendant is allowed at the request of the parties or at the initiative of the court, on which a ruling or resolution is issued. 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 put questions to 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.
By virtue of the requirements of the law on orality and immediacy in the examination of evidence by the court, in the verdict, as evidence, reference can only be made to those testimonies of the defendant that were given in the session of the court of first instance. However, in order to clarify the reasons for the contradictions and establish the truth in the case at the court session, it is possible to read out the testimony of the defendant, given by him earlier - both at the preliminary investigation and in court, as well as play the sound recording of previous interrogations. The disclosure of the testimony of the defendant, given during the preliminary investigation and in court, as well as the reproduction of photographic, audio and (or) video recording, filming of his testimony attached to the protocol of interrogation 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 on legal basis considered in the absence of the defendant.
It is not allowed to demonstrate photographic negatives and photographs taken during the interrogation, as well as to reproduce the video recording of the interrogation without prior disclosure of the testimony contained in the relevant protocol of interrogation or the protocol of the judicial investigation.
The law (Article 277-281 of the Criminal Procedure Code of the Russian Federation) pays considerable attention to the interrogation of victims and witnesses in court. The block of criminal procedural norms devoted to this procedure solves the following set of interrelated issues: establishing the identity of a witness - explaining his duties - warning about liability for refusing to testify and for knowingly false testimony - interrogation proper - use of written notes and documents by a witness - announcement of court of evidence given by a witness in the course of an inquiry or preliminary investigation. A relatively isolated set of norms enshrined in Article 280 of the Code of Criminal Procedure of the Russian Federation is devoted to a judicial procedure involving a minor victim and witness.
Witnesses are interrogated separately and in the absence of unexamined witnesses. Before interrogation, the presiding judge establishes the identity of the witness, ascertains his attitude towards 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 to the witness is the party at whose request he is summoned to the court session. 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 opinion of the parties. If it is necessary to ensure the safety of a witness, his close relatives, the court, without disclosing the true data on the identity of the witness, has the right to interrogate in conditions that exclude visual observation of the witness by other participants in the trial, about which the court issues a ruling or a decision. If the parties file a substantiated petition for the disclosure of true information about the person giving evidence, in connection with the need to protect the defendant or 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 the witness are allowed to read the documents in their possession relating to their testimony. These documents are presented to the court and, by its determination or resolution, may be attached to the materials of the criminal case.
If the witnesses who appeared at the court session testify about the same circumstances of the committed crime or data characterizing the identity of the defendant, marital status, etc., whereby one of the parties submits a motion to terminate the interrogation of other witnesses called to testify about in the same circumstances of the case, the court is not entitled to satisfy it if the party, on whose initiative the request for their interrogation was filed, objects to this (paragraph 20 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 “On the application by the 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 be contrary to Part 4 of Article 241 of the Code of Criminal Procedure of the Russian Federation, according to which the court is not entitled to refuse to satisfy a request for interrogation in a court session of a person as a witness or specialist who 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 - and at the age of fourteen to eighteen, a teacher participates. Interrogation of juvenile victims and witnesses with physical or mental disabilities is carried out in all cases in the presence of a teacher. Prior to the interrogation of a minor, the presiding judge explains to the teacher his rights, about which an appropriate entry is made in the minutes of the court session. The teacher has the right, with the permission of the chairperson, to ask questions to the minor victim and witness. If necessary, to participate in the interrogation of minor victims and witnesses, their legal representatives are summoned, who may, with the permission of the presiding judge, ask questions to the person being interrogated. The interrogation of a victim or a witness under the age of fourteen is carried out with the obligatory participation of his legal representative.
Before interrogation of victims and witnesses who have not reached the age of sixteen years, the presiding judge explains to them the importance of full and truthful testimony for the criminal case. These persons are not warned about the responsibility for refusing to testify and for deliberately false testimonies and no signature is taken from them. 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 who have not reached the age of eighteen years may be carried out in the absence of the defendant, about which the court issues a ruling or decision. After the defendant returns to the courtroom, he must be informed of 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 awareness and the lack of means to ensure the personal safety of witnesses and victims, the failure of these participants in the criminal process to appear at the court session has become widespread and has given rise to an 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 production of preliminary 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 a trial it is allowed: the announcement of the previous testimony of a witness and a victim given by these participants at the preliminary investigation in a given criminal case or at a given court session, but earlier in time; demonstration of photographic negatives and photographs taken during the interrogation of the witness and the victim, as well as playback of audio and (or) video recordings of such interrogations.
Both actions are united by the fact that, in derogation from general rule, according to which judicial evidence that can form the basis of the verdict are only such testimony of the witness and the victim, which sounded "here and now" in the face of the court and in the presence of the parties and the public, the announcement of previous testimony and the demonstration of technical means of fixing them is always associated with a reminder, a hint, and even shame and exposure in a lie. That is why the rules this topic require special care and delicacy, both in wording and in practical application. Judicial actions, which in question, are allowed under the following conditions: a) absence of a witness or a victim; b) consent of the parties to the reading out of testimony, demonstration and reproduction of the technical recording of the interrogation.
Announcement by the court of previously given testimony of the victim or witness at the request of the party or on its own initiative is also allowed in special occasions non-appearance of the indicated participants in the process, or rather, their absence from the court session for especially valid reasons, an exhaustive list is contained in the law, namely: 1) the death of these persons; 2) a serious illness preventing attendance at court; 3) refusal of the victim or witness who is a citizen of a foreign state to appear in court; 4) a natural disaster or other extraordinary circumstances preventing the appearance in court. In this case, the mutual consent of the parties is not required to read out the testimony (paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 5, 2004 No. 1 “On the application by the courts of the norms of the Code of Criminal Procedure of the Russian Federation”).
At the same time, for demonstration and reproduction, one more, additional, special condition: such an action is allowed only after the announcement of the testimony recorded in the protocol of interrogation during the preliminary investigation or in the protocol of the court session. So there can be reading out of testimony without demonstrating and reproducing the technical fixation of the interrogation, but there cannot be such a demonstration and such reproduction without reading out the testimony.
According to Part 3 of Article 281 of the Code of Criminal Procedure of the Russian Federation, the disclosure of previously given testimonies of a witness is also allowed in cases where the indicated persons appeared at the hearing and were interrogated; they are here, but in their testimony at the preliminary investigation and in court, there are significant contradictions, the reasons for which are unclear. Announcement of testimony in such cases is made 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, his close relatives, the court, without disclosing the true data on the identity of the witness, has the right to interrogate him under conditions that exclude visual observation of the witness by other participants in the trial, about which the court issues a ruling or a decision. In the event that the parties make a substantiated petition for the disclosure of true information about the person giving evidence, in connection with the need to protect the defendant or 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 viability. They violate the most ancient principle of justice (“the court keeps nothing behind the scenes”, that is, it deals only with what is demonstrated openly, publicly). The secret interrogation by the court of a witness with legended 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 mere observers of some mystical action. This circumstance turns the whole structure of open adversarial proceedings on its head and returns to the organ of justice the inquisitorial function, unusual for it, to delve into everything first, 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-search activity than of legal proceedings, are unlikely to take root in reality, especially since the world practice of witness protection is based on completely different principles.
litigation
Another relatively independent complex legal regulations, regulating the judicial investigation, is devoted to examination in court (Article 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 in comparison with a similar procedure at the preliminary investigation. A forensic examination may be appointed both at the request of the parties, and on the court's own initiative. The expert must be summoned to the court session, 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 must be heard on them. Having considered these issues, the court, by its ruling or resolution, rejects those that do not relate to the criminal case or the competence of the expert, and formulates new issues. Criminal procedural legal relations develop in the same way as it takes place in the production of an examination during the preliminary investigation. It ends with the preparation of an expert opinion, which is presented to the court. After the announcement of the expert's opinion, he may be asked questions (interrogation of the expert). In this case, the first questions are 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 opinion. If there are contradictions between the opinions of experts that cannot be overcome in court proceedings by interrogating experts, the court, at the request of the parties or on its own initiative, appoints a repeated or additional forensic examination.
The third group of rules governing the judicial investigation is formed by the rules providing for forensic research evidence during direct perception (observation) by the court composition of the information relevant to the case, by: conducting an inspection of material evidence (Article 284 of the Code of Criminal Procedure of the Russian Federation), b) announcement of protocols of investigative actions and other documents (Article 285 of the Code of Criminal Procedure of the Russian Federation); c) attaching 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) inspection of the area and premises (Article 287 of the Code of Criminal Procedure); e) production investigative experiment(Article 288 of the Code of Criminal Procedure of the Russian Federation); f) presenting a person or object for identification (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 physical evidence is carried out at any time during the judicial investigation at the request of the parties. Persons who are presented with physical evidence have the right to draw the attention of the court to the circumstances that are important for the criminal case. Inspection of material evidence may be carried out by the court at the place of their location (Article 284 of the Code of Criminal Procedure of the Russian Federation).
Minutes of investigative actions, the conclusion of an expert submitted by him during the preliminary investigation, as well as documents attached to a criminal case or presented by the parties in a court session, may be read out in full or in part on the basis of a ruling or court order, if they set out or verify the circumstances relevant to the criminal case (Article 285 of the Criminal Procedure Code of the Russian Federation). On the basis of a court ruling or ruling, documents submitted by the parties or requested by the court may be attached to the materials of the criminal case after their proper examination (Article 286 of the Code of Criminal Procedure of the Russian Federation). The protocols of investigative actions, the conclusion of an expert and other documents are announced by the party that requested their disclosure, or by the court.
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. Inspection of the premises is carried out on the basis of a ruling or a court order. Upon arrival at the place of inspection, the presiding judge announces the continuation of the court session and the court proceeds with 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 a trial, it is possible to conduct an investigative experiment according to the rules established for this procedural action for the preliminary investigation stage. It seems that the legislator made a terminological mistake here; no investigative action can be taken in court. In all likelihood, the mentioned article refers to a forensic experiment, the production of which is subject to the rules of an investigative experiment (former Code of Criminal Procedure this action did not provide for in court).
According to Article 289 of the Code of Criminal Procedure of the Russian Federation, at the stage of the trial, it is possible to identify a person or object, which is carried out according to the rules established for the production of an 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 in the judicial investigation, which is also carried out in relation to the rules established for this action in the preliminary investigation stage 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 a court order. When it is accompanied by the exposure of the face, the examination is carried out in separate room a doctor or other specialist who draws up and signs the examination report, after which the said persons return to the courtroom. In the presence of the parties and the testified person, the doctor or other specialist shall report on the traces and signs on the body of the examined person, if any, and answer the questions of the parties and judges. The certificate of examination shall be attached to the materials of the criminal case.
The judicial investigation ends with the presiding judge asking the parties whether they wish to supplement the judicial investigation and with what exactly. In the case of filing motions to supplement the investigation, the court discusses the motions, resolves them, executes additional actions on the examination of 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 in the examination of evidence by the court with the participation of the accuser, the defendant, the defense counsel, the victim, the civil plaintiff, the civil defendant and their representatives. It is one of the main parts of the trial, because the court draws its conclusions in the verdict only on the basis of the evidence considered in the court session.
§2.3 Argument of the parties and the last word of the defendant
Judicial debates are oral presentations by the participants in the trial on the part of the prosecution and the defense regarding the proof or lack of proof of the charge, the qualification of the crime, the type and amount of punishment for the defendant, as well as on other issues to be resolved when the verdict is passed (including on a civil claim or about the fate of physical evidence). The speeches of the parties in judicial debates, being a manifestation of the operation of the adversarial principle in criminal proceedings, are an important tool 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 a 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 defender or the defendant, and both the public prosecutor and the defense lawyer (if he participates in the case) are mandatory participants in the debate, who, due to their professional and procedural role, are not entitled to refuse to speak. . Within the meaning of the law, the defendant can speak in judicial debates even in cases where a defense counsel is involved, 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, the civil defendant and their representatives may participate in the debate. The civil plaintiff, the civil defendant and their representatives participate in the debate subject to the following conditions: a) they must apply for participation in the debate; b) in their speeches, they can only touch on those issues that are related to a civil claim, its grounds, size, security measures, etc.
The first to speak in the debate is the prosecutor (public or private), and the last - the defendant and his defense counsel. In the same way, the civil defendant and his representative always speak after the civil plaintiff in the debate. The order in which other participants in the court session speak in court debates or the sequence in which several defendants participating in the case and their defense lawyers speak are determined by the court.
The criminal procedure law does not provide for the possibility for the court to limit the duration of the speeches of the parties in the debate, however, the presiding judge has the right to stop the debate if they relate to issues that are not related to the criminal case under consideration, as well as evidence recognized as inadmissible. The presiding judge acts in a similar way when the participants in judicial debates make offensive remarks against other participants in the proceedings or other persons.
After all the participants in the judicial debate have delivered speeches, each of them may speak again with a remark. The content of the remark should 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, the speech of the side with a remark does not imply a simple strengthening of the previously expressed position or the addition of new information to its previous speech. The right of the last remark belongs to the defendant and his counsel.
The prosecutor, defense counsel, defendant, his legal representative, victim, civil plaintiff, civil defendant and their representatives have the right to submit to the court in writing the proposed wording on the main issues to be resolved by the court when passing a sentence: on the proof of the crime and the guilt of the defendant in its commission, and also about the qualification of this crime and the circumstances mitigating or aggravating the punishment. These proposals are not binding on the court, but they can more fully and adequately take into account the positions of the parties when discussing and passing the verdict.
After listening to the speeches of the parties and their remarks, if any, the judge announces the end of the judicial debate and the provision of the last word to the defendant. The last word 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 citizens, institutions and organizations.
By 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 investigated by the court, but may be important for resolving the case, or assessments are given, requiring clarification of the actual circumstances, the court issues a ruling (decree) on the resumption of the judicial investigation, after which the parties again debate and the defendant makes the last word.
After hearing the last word of the defendant, the court immediately retires to the deliberation room to pass the verdict.
Judicial debate (argument of the parties) is a part of the trial, in 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 expresses to the court their views on the solution of fundamental issues on this criminal case.
§2.4 Decree of the sentence
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 in committing a crime, to thereby declare him a censure on behalf of society, to subject him to a just punishment and the corresponding given right the duty of the condemned to obey and suffer the 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 the 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, the court verdict is decided 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 essential issues for the case be condemned and resolved; on equal grounds for all judges; in an atmosphere conducive to free and calm deliberation, in which the judges ... would not be afraid of adverse consequences for themselves for expressing and defending their opinion.
The verdict must be legal, reasonable and fair (Article 298 of the Code of Criminal Procedure of the Russian Federation).
The legality of the verdict means that the verdict was delivered in strict accordance with the law, that is, the verdict in its form complies with the law, in its content is based on the materials of the case, which was considered by the court in a court session in accordance with the principles of criminal proceedings and other norms of the Code of Criminal Procedure of the Russian Federation. The legality of the sentence means that the criminal law, other laws and by-laws are correctly applied in it.
The validity of the verdict means that when deciding on it, the court proceeded from the materials of the case examined at the court session, based its conclusions on the totality of reliable evidence that excludes the possibility of making another decision; having deeply analyzed the composition of the crime, its qualifying features; if the defendant was found not guilty, he acquitted him, and if he was found guilty, he appointed him a just 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 applying to them additional measures penalties in the cases prescribed by law.
An analysis of convictions for robbery and robbery shows that the number of persons who are sentenced to real imprisonment for committing these crimes is constantly decreasing. If in 1984 there were 73% of total number convicted, in 2008 their number fell to 63%. Moreover, 80% of persons who committed a robbery will not serve even the minimum amount provided for by the criminal law in places of deprivation of liberty, since, according to the rules of Article 64 of the Criminal Code of the Russian Federation, the courts found it possible to impose a punishment on them that is milder than that provided for by the Criminal Code of the Russian Federation.
The justice 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 convict 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 issue acquittal when there are sufficient grounds for this (there was no event of the 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).
Legitimacy, 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 the criminal procedure law. It follows that an unreasonable sentence is always illegal. The groundlessness of the sentence, as a general rule, entails its illegality, since the norms of the criminal procedural law establish the most expedient procedure for legal proceedings that ensures the validity of the sentence. In addition, the sentence must be motivated. It is necessary to explain why the court made this or that decision regarding the crime, the innocence or guilt of the defendant, the 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 considering this criminal case can 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 with an exit from the deliberation room. Judges are not entitled to divulge the judgments that took place during the discussion and decision of the verdict. The secrecy of the meeting of judges (the secret of the deliberation room) is the most important and necessary condition calm, business-like and impartial discussion of issues related to the decision of the 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 in it, except for judges who are members of this court, but also excludes telephone and other contacts with “external peace” during the meeting of the judges.
The requirements of the law regarding the secrecy of the deliberation room are obligatory for the judges themselves. They are not entitled to disclose information related to the discussion of issues related to the decision of the verdict, including the position taken by each of the judges. When discussing issues related to the decision of the verdict, including what position each of the judges takes. When discussing issues related to the decision of the verdict, the minutes are not kept, which is also directly related to the secret deliberation room. The secrecy of the deliberation room is also ensured by: “non-disclosure of the voting results” if the court did not reach a unanimous opinion on all issues to be resolved; “the signing of the verdict by the entire composition of the court, including the judge who remained in the minority during the vote and did not agree with the verdict.”
In cases where it was not possible to finish the discussion of issues related to the decision of the verdict by the judges within one day, with the onset of night time, that is, 22 hours, 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 passing a sentence in a deliberation room, if the criminal case was considered by the court collectively, the presiding judge leads the meeting and raises questions for resolution. Discussion of issues is carried out in the order and sequence specified in Part 1 of Article 299 of the Criminal Procedure Code of the Russian Federation. The following questions are allowed:
1) whether it has been proven that the act of which the defendant is accused has taken place. The judges analyze the evidence, establish the place and time of the crime. If the judges come to the conclusion that the event of the crime did not actually take place, 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 paragraph, part, 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, according to which it is qualified, and establish a specific corpus delicti, check the correctness of the application of the criminal law. If necessary, certain episodes or points of the charge are excluded from the charge. If there is no corpus delicti in the act, the court discusses, if necessary, the issues specified in paragraphs 10 - 13 of part 1 of article 299 of the Code of Criminal Procedure of the Russian Federation, and issues a verdict of not guilty;
3) whether it is proved that the act was committed by the defendant. Judges ascertain whether there is indisputable evidence that the act or omission was committed by the defendant and not by another person;
4) whether the defendant is guilty of committing this crime. Criminal liability comes only if the defendant is at fault. This obliges the judges to establish whether the defendant acted with intent - direct or indirect - or through negligence, 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 committed by him. The recognition of the defendant as guilty does not in all cases entail the application of punishment. The court, although it decides a guilty verdict, may not apply the punishment, for example, it assigns compulsory measures of educational influence to 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 find out the presence or absence of such circumstances, and then, if they exist, compare and determine their purpose in order 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 punishment not related to deprivation of liberty. If the answer is positive, the type and amount of punishment is determined. When imposing 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”; whether there are grounds for passing a sentence without sentencing;
8) what type of correctional institution and regime should be determined for the defendant when sentencing in the form of deprivation of liberty. When discussing this issue, the judges are guided by Article 58 of the Criminal Code of the Russian Federation;
9) whether the civil claim is subject to satisfaction and in what amount. A civil claim is satisfied if the defendant is found guilty of causing the victim physical harm(for example, money is collected for the treatment of the victim), material damage or moral damage. These issues are discussed by the court when issuing both a guilty verdict and an acquittal. When issuing a guilty verdict, the judges check the validity of the requirements for the size of the civil claim and, depending on the specifics of the case, satisfy the claim in full or in part, or refuse it. After considering issues related to a civil claim, the judges check whether measures have been taken to secure a civil claim in this case. If such measures have not been taken, the judges have the right, before the entry of the verdict into legal force decide on the seizure of the property of the defendant or other persons who, by virtue of law, are liable for the damage caused by the defendant. When discussing the issues of an acquittal, judges: a) refuse to satisfy a civil claim if the event of a crime is not established or the participation of the defendant in the commission of a crime is not proven; b) leave the claim without consideration if the defendant is acquitted due to the absence of corpus delicti;
10) how to deal with property seized to secure a civil claim. The seizure of property is canceled when an acquittal is issued, except in cases where a civil claim is left without consideration;
11) how to deal with material evidence. They are returned according to their belonging or stored with the case or are subject to destruction (Article 81 of the Code of Criminal Procedure of the Russian Federation);
12) on whom and in what order the procedural costs must 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 by Article 48 of the Criminal Code of the Russian Federation, should deprive the defendant of a special, military or honorary rank, class rank, as well as state awards. This issue is discussed only in cases where the defendant has committed a grave or especially grave crime. In addition, the court must take into account whether the defendant used the title and awards in the commission of the crime, as well as data characterizing the identity of the defendant; whether measures of educational influence can be applied in the cases provided for by Articles 90 and 91 of the Criminal Code of the Russian Federation. When judges come to the conclusion that it is necessary to apply measures of educational influence in relation to a minor, they make a decision about this. The defendant is assigned one or more measures of educational influence (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 coercive measures of a medical nature can be applied in cases provided for in Article 99 of the Criminal Code of the Russian Federation. These measures are applied to persons who committed an act in a state of insanity, and persons who fell ill with a mental disorder after committing a crime, as well as persons who committed a crime in a state of limited sanity. The latter is provided for by part 2 of article 22 of the Criminal Code of the Russian Federation. It says that mental disorder, which does not exclude sanity, is taken into account by the court when imposing a sentence and may serve as the basis for imposing compulsory medical measures. Having recognized that the defendant was in a state of insanity at the time of the commission of the act, or the defendant, after the commission of the crime, developed a mental disorder that deprives him of the opportunity to realize the actual nature and social danger of his actions (inaction) or to control them, the court issues a decision in the manner prescribed by Chapter 51 Code of Criminal Procedure of the Russian Federation. It seems that in the same order, compulsory treatment is prescribed, provided for in Part 2 of Art. 22 of the Criminal Code of the Russian Federation. Decision on compulsory treatment is 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 issuing a verdict of not guilty, judges are obliged to cancel any previously chosen measure of restraint 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 by part three of Article 301 of the Code of Criminal Procedure of the Russian Federation, which states that a judge who voted for the acquittal of 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 chairman votes last. The judge who voted for the acquittal of the defendant and remained in the minority is given the right to abstain from voting on questions of the application of the criminal law. If the opinions of the judges on the issues of the classification of the crime or the measure of punishment differ, then the vote given for the acquittal joins the vote given for the qualification of the crime under the criminal law, which provides for a less serious crime, and for the imposition of a less severe punishment. The punishment in the form death penalty can be assigned to 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. A dissenting opinion is attached to the verdict and is not subject to announcement in the courtroom.
In the above rules, the legislator fixed the extremely simple and at the same time (or precisely because of its simplicity!) The procedure for developing the adoption of a final court decision in a criminal case, verified by many years of practice in criminal proceedings, which in the vast majority of cases allows avoiding serious, unresolvable conflicts. However, it may be relatively rare in a deliberation room for all three judges to 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 - for a full acquittal, and a third - for conviction and sentencing not related to deprivation of liberty. The prevailing opinion of experts in the views on this problem lies in the fact that in such cases a verdict should be passed, expressing an average opinion between the two extremes. In our case, this is a guilty verdict with a non-custodial sentence. The logic of this position is based on the fact that such a sentence, although not in everything directly, is supported by two votes out of three.
Really:
The defendant was found guilty by three judges, this is the main thing;
On the issue of punishment, the judge, who spoke in favor of acquittal, is closer to the opinion of discussing the defendant without deprivation of liberty.
Therefore, even without direct support for this position on the part of this judge, a guilty verdict with sentencing without imprisonment turns out to be the most consistent with the opinion of the majority of judges.
Note that such an opinion was expressed before the adoption of the current Code of Criminal Procedure of the Russian Federation; on the example of a somewhat different, but similar situation, it received the support of the legislator.
As stated above, a judge who votes for acquittal and remains in the minority has the right to be exempted from voting on issues related to the issuance of a guilty verdict. However, the criminal procedure law does not connect the removal of this judge from making a final decision on the criminal case under consideration with such circumstances. The judge may continue to take an active part in the voting, or exercise 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 to a decisive vote.
If the judge who voted for acquittal and remained in the minority continues to vote in deciding other issues related to the decision of the guilty verdict, it is natural that he will cast his vote in favor of the least severe decision for the defendant on the question of his guilt, imposing the least punishment on him, etc. .
In almost the same way, the situation is resolved in the event that such a judge refuses to continue voting. Indeed, according to Part 3 of Article 301 of the Code of Criminal Procedure of the Russian Federation, if the opinions of judges on the issues of qualifying a crime or the measure of punishment differ, then the vote cast for acquittal joins the vote cast for qualifying the crime under the criminal law, which provides for a less serious crime, and for less severe punishment.
Along with the concept of "sentencing", which means discussing the issues that make it up and making a decision on them, there is the concept of "drafting a sentence", which means making its text by hand or using technical means, in particular, computer technology or in the same language. where the trial took place. The verdict is signed by all judges, including the judge who has a dissenting opinion.
The verdict in accordance with Article 302 of the Code of Criminal Procedure of the Russian Federation may be acquittal or accusatory.
An acquittal is issued if: 1) the event of a crime has not been established; 2) the defendant is not involved in the commission of the crime; 3) there are no signs of a crime in the act of the defendant; 4) the defendant has been acquitted by the jury.
On the basis of the defendant's non-participation in the commission of the crime, an acquittal is issued when it is established during the court session that the defendant did not commit the crime, or when the evidence presented, in the opinion of the court, was insufficient for an indisputable conclusion about his guilt.
The court also delivers an acquittal in the case when the very fact of the defendant's action or inaction is established, but these actions (or inaction) do not have signs of a crime. This may be a disciplinary or administrative offense, an act subject to settlement in civil proceedings. The reason for justification may be an act that is lawful, corresponding to the norms of human society.
The acquittal of the defendant by the verdict of the jury 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 the recognition of the defendant as innocent and entails his rehabilitation in the manner prescribed by Chapter 18 of the Code of Criminal Procedure of the Russian Federation.
A guilty verdict can be decided only on the basis of evidence supporting the wording of the charge, which the court found 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 guilty verdict is passed: 1) with the imposition of a sentence to be served by the convict; 2) with the appointment of punishment and release from serving it; 3) without sentencing.
A guilty verdict with a sentence for a crime committed is the most common type of such verdicts. In the sentence to imprisonment and other types of punishment, which are limited to certain periods, the type, amount of punishment, the beginning of the calculation of the term of punishment, and, if necessary, the regime of the correctional colony is indicated.
A guilty verdict with the appointment of a sentence and the release of the defendant from serving it is decided in cases where: a) the statute of limitations established by Article 78 of the Criminal Code of the Russian Federation has expired; b) an act of amnesty has been published, releasing the defendant from the application of punishment; c) the time spent by the defendant in custody in this criminal case, taking into account the rules for offsetting 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 suspended sentence or a suspended sentence has been issued (Article 302 of the Code of Criminal Procedure of the Russian Federation, Articles 82, 73 of the Criminal Code of the Russian Federation).
A guilty verdict without imposition of punishment is passed when the accused, and there are no grounds for his rehabilitation.
Having found the defendant guilty only of part of the crimes that he is charged with, the court acquits the defendant on unproven charges, and on other, confirmed ones, issues a guilty verdict, which is generally a guilty verdict.
In a court session and when passing a sentence in a deliberation room, the question of terminating a criminal case may arise. This includes, firstly, the cases indicated in paragraphs 1 - 3 of part 1 of article 24 and paragraphs 1 - 3 of part 1 of article 27 of the Code of Criminal Procedure of the Russian Federation. If relevant circumstances are discovered during the trial, the court continues the consideration of the criminal case until it is decided on the merits. At the same time, in the cases provided for in paragraphs 1 and 2 of part 1 of article 24 (absence of an event of a crime and the 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 decides to acquit sentence, and in the cases provided for in paragraph 3 of part 1 of article 24 and paragraph 3 of part 1 of article 27 of the Criminal Procedure Code of the Russian Federation (expiration of the limitation period for criminal prosecution, issuance of an amnesty act), the court decides a guilty verdict with the release of the convicted person from punishment.
Secondly, the court issues a decision (determination) to terminate the criminal case in cases where: the suspect or the accused has died, except for the need to rehabilitate the deceased; there is no statement of the victim in cases of private prosecution; there is no statement of the victim in cases of private prosecution; there is no court opinion on the presence of signs of a crime, decisions State Duma of the Russian Federation, and in relation to judges - decisions of the qualification board of judges in cases of persons referred to in Articles 447, 448 of the Criminal Procedure Code of the Russian Federation; there is a final verdict against the suspect or the accused on the same charge or a ruling (resolution) of the court to dismiss the case on the same charge; there is a decision to dismiss the case, issued by the investigator, the investigation, the 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 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 Criminal Procedure Code of the Russian Federation, the court proceeds to draw up a verdict. The verdict consists of introductory, descriptive and resolutive parts. The introductory part of the verdict contains information of social, state and legal significance. They relate to the characteristics of the court, the participants in the process, the defendant, the crime he committed, but does 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 verdict states: 1) the verdict was passed in the name of the Russian Federation; 2) the date, time and place of the judgment; 3) the name of the court that delivered the verdict, the composition of the court, the secretary of the court session, the prosecutor, the defense counsel; 4) the name, patronymic and surname of the defendant, year, month, day and place of his birth, place of residence, work, occupation, education, marital status and other information about the identity 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 verdict does not affect the merits of the case and contains details that are equally applicable to both an acquittal and a guilty verdict.
The descriptive - motivational and resolutive parts of the acquittal and guilty verdicts are different, they reflect the essence of the decision made by the court.
The descriptive-motivational part of the acquittal shall set out: 1) the essence of the charge; 2) the circumstances of the criminal case considered by the court; 3) the grounds for acquittal of the defendant and the evidence confirming them; 4) reasons why the court rejects the evidence presented by the prosecution; 5) reasons for the decision in relation to the civil action.
Among the requirements for an acquittal is Special attention on the basis of the defendant's acquittal. The court is obliged to refute the evidence of the accusation or, in any case, convincingly question them. Not a single evidence of the accusation should be left without attention and the appropriate motivation for its inconsistency. The law also does not allow the inclusion in the verdict of acquittal of wordings that cast doubt on 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 last name, first name, patronymic of the defendant; 2) the decision to declare the defendant not guilty 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 have been taken; 5) clarification of the procedure for compensation for harm associated with criminal prosecution (part 1 of article 306 of the Code of Criminal Procedure of the Russian Federation).
When issuing an acquittal, issuing a decision or ruling to terminate the criminal case on the grounds provided for in paragraph 1 of part 1 of Article 24 and paragraph 1 of part 1 of 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) description criminal act recognized by the court as proved, 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 motives on which the court rejects other evidence; 3) an indication of the circumstances mitigating or aggravating the punishment, and if the accusation is found to be unfounded in any part or an incorrect qualification of the crime is established, the grounds and motives for changing the charge; 4) motives for resolving all issues related to the imposition of a criminal sentence, release from it or from serving it, the application of other measures of influence; 5) substantiation of decisions taken on other issues specified in Article 299 of the Code of Criminal Procedure of the Russian Federation, which have already been considered in detail.
The criminal procedural law, therefore, proceeds from the fact that the wording of the charge in the verdict must contain all the most significant circumstances of the commission of the crime, indicating the place, time, method of its commission, the nature of the guilt, the motives and consequences of the crime, and the circumstances affecting liability. The wording of the accusation ends with specific legal conclusions, which assess the nature of the guilt and the social danger of the crime, and indicate the legal qualification. All other conclusions of the court contained in the verdict depend on the legal assessment of the crime committed. This wording in the verdict should not go beyond the wording of the indictment. It may be changed, but within the limits that exclude the deterioration of the position of the defendant and the violation of his right to defense.
The reasoning of the guilty verdict must contain an analysis of the evidence confirming its validity. It is not enough to refer to the defendant's confession of his guilt. It is significant, provided that such a confession is consistent with the circumstances of the crime, and if supported by other evidence. The guilt of the defendant in committing a crime, the court must confirm the evidence established in the court session. This can be both evidence collected during the preliminary investigation and verified in court, as well as new evidence obtained as a result of calling additional witnesses, conducting an examination, examining material evidence, etc.
The wording in the verdict, which is common in the practice of some courts, according to which “the guilt of the defendant is proved by the evidence available in the case”, does not convince of the validity of the verdict and does not meet the requirements of the Code of Criminal Procedure of the Russian Federation.
Not only the type and amount of punishment, but also the application of probation, suspension of the execution of the sentence and other decisions related to the chosen punishment should be justified in the verdict. In these cases, the court cites, if necessary, mitigating circumstances.
The guilty verdict indicates the reasons for the decision taken in the deliberation room on civil suit. Such a decision must be justified by appropriate arguments and evidence.
The operative part of the guilty verdict must contain: 1) the last name, first name and patronymic of the defendant; 2) a decision to recognize the defendant guilty of committing a crime; 3) paragraph, part, article of the Criminal Code of the Russian Federation, which provides for liability for a crime of which the defendant is 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 measure of punishment 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 deprivation of liberty must serve his sentence, and the regime of this correctional institution; 7) the duration of the probationary period in case of conditional conviction and the obligations that are assigned to the convict in this case; 8) decision on additional types punishment in accordance with Article 45 of the Criminal Code of the Russian Federation; 9) a decision to set off the time of pre-trial detention, if the defendant was detained before the sentence was passed or measures of restraint in the form of detention were applied to him, house arrest, or he was placed for examination in a medical or psychiatric hospital; 10) a decision on a measure of restraint in relation to the defendant until the sentence enters into force (Article 308 of the Code of Criminal Procedure of the Russian Federation).
In the operative part of any sentence, the articles of the Criminal Code of the Russian Federation under which the defendant is acquitted or under which he is convicted must be indicated. In appropriate cases, it also indicates the release of the defendant from serving a sentence or the imposition of a sentence without imposing a sentence. It also provides a decision on a civil claim, if necessary, a calculation is made of the amounts to be recovered jointly and severally or personally, when there are several tortfeasors among the convicts. In addition, the court is obliged to indicate the distribution of procedural costs (Article 309 of the Criminal Procedure Code of the Russian Federation).
The operative part of the verdict must also contain an explanation of the procedure and terms for its appeal in accordance with the requirements of Ch. 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 at the court session, violations of the law are established during the inquiry or preliminary investigation, the 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 decision, which draws attention to these circumstances and violations of the law requiring acceptance necessary measures. When passing a sentence, the court has the right to issue a private ruling or ruling in other cases, if it considers it necessary (part 4 of article 29 of the Code of Criminal Procedure of the Russian Federation). It appears that a private ruling or ruling is not made public at the conclusion of the trial.
According to Article 310 of the Criminal Procedure Code of the Russian Federation, after signing the verdict, the court returns to the courtroom, and the presiding judge pronounces the verdict. All those present, including the composition of the court, hear the verdict standing. If the verdict is pronounced in a language that the defendant does not speak, the interpreter shall translate the verdict aloud into a language that the defendant knows, either simultaneously with the pronouncement of the verdict or after its pronouncement. When pronouncing the verdict, the presence of the defendant is mandatory and the presence of other participants in the process (parties) is desirable. Pronouncement of the 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 pronouncement of the verdict, although it does not coincide in time with its entry into force, has important legal consequences:
From the moment the verdict is announced, the time limits for its appeal or cassation appeal, that is, the filing of a protest by the prosecutor and/or a complaint by other participants in criminal proceedings shall be calculated;
With the proclamation of the verdict, changes to it can only be made in the manner prescribed by law;
The pronouncement of an acquittal, as well as a guilty verdict with the imposition of a sentence not related to deprivation of liberty, obliges the court to immediately release the defendant from custody in the courtroom;
Only after the pronouncement of the verdict by the court, those participating in its decision have the right to proceed to the consideration of other court cases.
No matter how voluminous the verdict of the court may be, it is subject to oral pronouncement in full, from the first to the last line. Failure to comply with this rule applies to material violations criminal procedure 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 considered in a closed court session. At the same time, in accordance with part seven of Article 241 of the Criminal Procedure Code of the Russian Federation, on the basis of a ruling or court order, only the introductory and operative parts of the verdict can be announced. However, in such cases, the parties have the right to familiarize themselves with full text sentence. According to Article 311 of the Criminal Procedure Code of the Russian Federation, a defendant in custody is subject to immediate release in the courtroom in cases of an acquittal, as well as a guilty verdict:
without sentencing;
With the appointment of punishment and with the release from serving it;
With the appointment of a punishment not related to deprivation of liberty, or a punishment in the form of deprivation of liberty on probation.
The main meaning of these rules is that the person acquitted by the court after his pronouncement of the verdict cannot remain in custody, 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 person rehabilitated under escort to a pre-trial detention center with subsequent release cannot contribute to the educational impact of the process and strengthen the authority of justice, because in the eyes of not only the convict himself, but also the public, such an action cannot look logical and fair. It also applies to convicts who are not subject to deprivation of liberty according to the proclaimed guilty verdict (released from punishment in general, released from serving a sentence; sentenced to punishment not related to real 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 has been applied to them in another criminal case.
Within five days from the date of pronouncement of the verdict, copies of it shall be handed over to the convicted or acquitted person, his defense counsel, and also to the prosecutor. Within the same period, copies of the judgment may be handed over to the victim, civil plaintiff, civil defendant and their representatives, if there is a petition from the said 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 the convicted and acquitted to appeal and cassation appeal sentence, if they so request, the presiding judge must provide an opportunity to familiarize themselves with the sentence in the courtroom. Convicted and acquitted, not familiar with the language in which the proceedings were conducted, a copy of the verdict must be served in translation into 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 judgment of conviction, issues a decision 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 dwelling that is left unattended, the court shall issue a ruling or a decision on taking measures to protect them. In the case of participation in a criminal case of a defense counsel by appointment, the court, simultaneously with the decision of the verdict, issues a ruling or a decision on the amount of remuneration payable for the provision of legal assistance.
The listed court decisions and actions go beyond the content of both a guilty and acquittal verdict, however, they are closely related to it and are subject to resolution, as a general rule, simultaneously with the decision of the verdict. At the same time, such decisions, clothed in the form of independent judicial documents - court rulings and judge's decisions - at the request of the parties, can be adopted even after the verdict is pronounced. The law (part four of Article 313 of the Code of Criminal Procedure of the Russian Federation), which allows for such a possibility, does not link the adoption of these decisions with the entry into force of the sentence.
Thus, the verdict is a court decision on the guilt or innocence of the defendant and on the imposition of punishment on him or his release from punishment. The verdict is passed in the name of the Russian Federation, thereby expressing the will of the state to the act committed by the defendants. The decision contained in the verdict can be both acquittal and accusatory. The verdict must be lawful, reasonable and fair.
Conclusion
In my thesis, I explored issues related to the stages of litigation. Currently, this topic is very relevant, since the trial is the central stage of the criminal process, at which the court, in its session, based on the examination of evidence, decides on the guilt or innocence of the defendant, on the imposition of a criminal penalty and some other related issues. It is the court, represented by one or more professional judges, who decides further fate defendant, so the trial has great importance throughout the criminal justice 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 effective implementation 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 the pre-trial preparation and the conclusions formulated by the bodies of inquiry or investigators, it still represents an independent study of the circumstances of the event that has become the subject of consideration; thirdly, the fact that in the course of 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 implemented.
In the first chapter of my thesis on the topic: "Stages of litigation" I considered the general conditions of litigation. Thus, one of the general conditions of the trial is immediacy, publicity, immutability of the composition of the court and equality of the parties. Immediacy refers to the investigation 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 relevant judicial investigation only itself. It cannot entrust any of these actions to another court. Only the evidence that was examined in this court session, the course and result of the study of which was reflected in the minutes of this court session, can be used as the basis for a court verdict. Publicity of the trial in a criminal case is expressed in the fact that the case is considered in open court session. 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 wide range of people, and no one has the right to prevent this. The next issue to which my work was devoted 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 those limits that are determined by the interests of resolving a civil claim filed in a criminal case.
In the second chapter, I discussed in detail each of the stages of the trial. There are four stages of the trial - this is the preparatory part, the trial, the debate of the parties and the last word of the defendant. final stage the court session is the decision of the verdict, which is pronounced in the name of the Russian Federation based on the results of examination of evidence and hearing of the parties.
Thus, the trial, being one of the forms of exercise of judicial power, is designed to ensure the establishment of all the circumstances of the criminal case under consideration, their correct legal assessment and the issuance of the final decision - the verdict.
Bibliography
1. Normative - legal acts
1.1. The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Rossiyskaya Gazeta dated December 25, 1993 No. 237
1.2. "The Universal Declaration of Human Rights" (Adopted on December 10, 1948 by the UN General Assembly) // "Rossiyskaya Gazeta". 1995. April 5.
1.3. International pact of 12/16/1966 "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 No. 63-FZ dated June 13, 1996 // Collection of Legislation of the Russian Federation, June 17, 1996, No. 25, art. 2954
1.6. Criminal - procedural code of the Russian Federation dated December 18, 2001 No. 174-FZ // "Collection of Legislation of the Russian Federation", December 24, 2001. №52 st.4921
1.7. Code of Criminal Procedure of the RSFSR 10/27/1960 // Code of Laws of the RSFSR, vol. 8, p. 613
1.8. The federal law dated 12.08.1995 No. 144-FZ “On operational-search activity” // “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 of July 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, 03.02.1998
2. Monographs
2.1. Bushuev G.I. Meeting of judges at the decision of the verdict. Moscow, 1988
3. Textbooks and tutorials
3.1. Bashkatov L.N. Criminal - procedural law RF. Textbook -
2nd edition. M.: Prospekt, 2007
3.2. Bezlepkin V.T. Russian criminal procedure: tutorial- 3rd edition, revised and enlarged. Moscow: "Knorus", 2006
3.3. Bozhev V.P. Criminal process. Textbook. Higher education. Moscow, 2006
3.4. Gutsenko M. Criminal process. Textbook for students of law schools. 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, revised and enlarged. - Moscow: Norma Publishing House, 2003
4. Articles in magazines
4.1. Bozrov V.M. On the problem of justice in criminal proceedings.//Russian judge. 2005 #4
4.2. Gromov N.A. Bandurin S.G. The verdict is the result of the administration of justice.//Russian judge. 2005 #1
4.3. Gromov N.A. Ivensky A.I. The procedure for the restoration and pronouncement of the verdict.//Investigator. 2004 #5
4.4. Kapustyansky V.D. The stage of trial in the criminal proceedings of the Russian state.//Russian judge. 2004 No. 3
4.5. Kirillova N. State prosecution in court.//Legality. 2004 #5
4.6. Kolokolov N. Legitimacy, validity and fairness of the sentence are essential qualities of any court decision.//Russian judge. 2003 #4
4.7. Ovsyannikov V.S. The structure of the system of main issues resolved by the court when passing a sentence.//Law and law. 2003 #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 #8
5. Law enforcement practice
5.1. Definition Constitutional Court of the Russian Federation “On the verification of the constitutionality of the provisions of Chapters 35 and 39 of the Code of Criminal Procedure of the Russian Federation in connection with the requests of the courts general jurisdiction and complaints of citizens" dated December 8, 2003. Russian newspaper 2003 #23
5.2. Determination 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 of Article 248 of the Code of Criminal Procedure of the RSFSR" dated 12/21/2000. Russian newspaper. 2001
5.3. Decree of the Plenum of the Supreme Court of the Russian Federation "On the application by the courts of the norms of the Code of Criminal Procedure of the Russian Federation" dated March 15, 2004 No. No. 1. Bulletin of the Armed Forces of the Russian Federation, 2004 #5
5.4. Definition Judicial Board on criminal cases of the Armed Forces of the Russian Federation of February 14, 1995. Bulletin of the Armed Forces of the Russian Federation, 1995. #10
5.5. Decree of the Plenum of the Armed Forces of the Russian Federation of December 31, 1995 No. No. 8. Bulletin of the Armed Forces of the Russian Federation, 1996. #1
5.6. Decree of the Plenum of the Supreme Court of the Russian Federation "On the practice of imposing criminal penalties by the courts" dated 11.06.1999 No. No. 40. Bulletin of the Armed Forces of the Russian Federation, 1999
WG 5.04.1995 No. 67
BVS RF 2004 #5
BVS RF 2004 #5
Kutsova E.F. Sentencing/Criminal process. Textbook for law students. universities. Ed. K.F. Gutsenko. M., 2000.
Bushuev G.I. Meeting of judges at the decision of the verdict. M., 1988
Morshchakova T.G. Litigation/Criminal Procedural Law of the Russian Federation. Responsible ed. P.A. Lupinskaya. M., 2003
BVS RF. 1999 pp. 5 - 7.
Performs the most important function - monitors the precise implementation of laws and administers justice. The main form of the latter is litigation.
In the legal literature, litigation is understood as a system-forming part civil process aimed at a comprehensive consideration and fair resolution by the judge of the 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 orientation, this process is a completely independent function of legal proceedings, and secondly, the court in a civil case has the right and is obliged to apply all existing rules to make a fair decision.
from the point of view of legal practice, should perform the task of identifying the party to the dispute, which in this situation acted in accordance with current legislation. In addition, often a judge must explain to a citizen his rights at a particular point in time in order to eliminate the legal ambiguity that has arisen in his legal relationship. In this regard, the trial is 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 conducted 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 is important function organizer and arbiter of destinies, who must strictly adhere exclusively to the letter of the law.
In practice, allocate next steps judicial trial:
1. The stage of the judicial investigation, which includes evidence by 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 the evidence that was not voiced during the investigation.
2. Judicial debate: the prosecution, the victim, the defense and the defendant speak in turn, who try to interpret the facts presented in the light they need. After each performance, the opposite side has the opportunity to make a cue, that is, to explain certain phrases of the opponents.
3. The last word of each of the defendants, in which they can Once again to draw the judge's attention to certain aspects, including once again declaring one's innocence, or to ask for a mitigation of the sentence, referring to certain circumstances.
4. The pronouncement and announcement may not be announced if the judge could not draw up a picture of what happened on the basis of the facts presented. In this case, the case will be sent for additional investigation.
Thus, litigation is difficult process, aimed solely at establishing the truth in a particular legal dispute.
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