Consideration of criminal cases by courts in a special order. A special procedure for considering a criminal case

Domestic legislator, trying to withstandthe right course in combating crime for economy of forces, time and money, integrated into the procedural law a special procedure for making a judicial decision, provided that the accused agrees with the charge brought against him.

Special order: concept and essence

This is a special, specific production,passing in the first court instance. It consists in the special legal relations and activities of all its participants, with the primary and decisive role of the world or district court, in establishing the presence or absence of legal and factual grounds that will make it possible to convict the defendant of the offense, in a reduced order, of the procedure for judicial investigation and other decisions .

Naturally, the features that havea special procedure for legal proceedings provided for by law extends not only to the trial process, but also to the preliminary investigation stage. Some sources state that the main tasks assigned to the production in question are as follows:

• simplification of the nature of the trial in accordance with the criminal cases specified in the law;
• acceleration of the criminal process in the judicial stages of production, after the prosecutor's office files the criminal case in court;
• reduction of the workload of judges of world and regional courts.

It is absolutely unacceptable to apply the practice of examining criminal cases by a court in a special order, where the accused person is underage or insane.

Grounds for applying a special order

The Code of Criminal Procedure of the Russian FederationThe Federation in the first part of Article 314 fixes the right of the accused, if there is consent of the injured person and the prosecutor (public or private) in the case, declare consent with the charge against him and petition that the verdict be pronounced without proceeding. This applies only to those crimes, the punishment for which under the Criminal Code does not exceed ten years of imprisonment.

Grounds for resolving a criminal casealone or in a collegially special order are sufficient evidence that confirms the legality and validity of the prosecution. Indirectly, this is confirmed at the time of the judge's verdict. He must come to the conclusion that the indictment with which the defendant agrees is lawful and is confirmed by the evidence that this criminal case contains (under Article 316 of the CCP).

Special order applications: conditions

1. The statement submitted by the accused about the consent with the charge, which is presented to him, should be of an official nature.
2. The accused must (if he so wishes) declarea petition for the decision of the verdict without proceeding in court proceedings, in the presence of the defense counsel. The legislator also establishes special periods for this (Article 315 of the Code of Criminal Procedure), that is, at the time when the materials on the criminal case or during the preliminary hearing are being made, when it is mandatory.
3. 3 A person who is accused of committing a crime must be aware of the nature and possible consequences of his application if a special procedure for the trial takes place.
4. A private or state representative on the part of the prosecution should agree and not object.
5. The term of imprisonment for a criminal act in which the person is accused is not more than ten years.
6. Grounded nature of the charge and its confirmation by evidence collected in the case.
7. A person must understand the essence of the charge against him and agree with him completely, with every "letter" in the indictment.
8. There should be no grounds for ending the case.

Appointment and consideration of criminal case: the order of preparation

Judge in criminal cases for which it is statedthe petition must ensure that the accused fully understands the nature and essence, as well as the consequences of his request, and that this was done on a voluntary basis and only after prior consultation with the defense counsel. These issues are to be determined in the process of preparation for the trial.

Request for approval of a special procedurethe trial is not binding for the court. If it is determined that the statutory requirements for filing a petition have been violated or that a victim or prosecutor (state or private) speaks out against this, it will be refused. The court may at the same time order the trial in a general, ordinary manner.

Court session: procedure

Consideration of criminal cases by courts in a specialprocedure is regulated by Article 316 of the Code of Criminal Procedure. But it is worth bearing in mind some features. In the law there are no clearly established rules concerning the composition of the court, which will conduct the proceedings in the case. From the theoretical point of view, it is quite possible that the accused states two motions. The first with a request for special consideration, and the second - a collegial hearing of the case, consisting of three federal judges, since the jurisdiction of such a composition is the prerogative of resolving criminal cases for serious crimes and especially grave (paragraph 3 of Part 2 of Article 31 of the Code of Criminal Procedure of the Russian Federation ). However, in reality such situations are rare. The consideration of criminal cases by courts in a special order can be applied according to the first part of Article 31 of the Code of Criminal Procedure by the magistrates.

The court session is held in a mode thatestablished in the court of first instance for consideration and resolution of the criminal case, that is, in general, except for a number of features. First, the participation of the accused and his lawyer or advocate is mandatory and necessary. In this case, the rule that establishes the Code of Criminal Procedure of the Russian Federation in the fourth part of Article 247 does not apply. It speaks about the possibility of holding a court session on cases of moderate or minor gravity without the participation of the accused, if a request has been made on his part. Also necessarily takes part private or public prosecutor, he speaks at the very beginning and expounds the essence of the charge.

Then the court interrogates the defendant in partunderstanding of what he is accused of, his consent to this. The issue of maintaining the previously announced petition is being addressed. If the victim is present, he is asked a similar question. If he is absent, the judge must make sure that he was notified when the trial will take place (CCP RF), namely, time, place, and also in the absence of motions on his part against the request made by the defendants.

In the framework of this procedure, a studycorrectness of the procedure as a general rule is not carried out. This can be done only with regard to circumstances that give an idea of ​​the identity of the defendant, as well as aggravating or mitigating punishment. The fact that he agrees with the charges against him does not mean that the criminal case and the evidence contained in it are not studied carefully.

The verdict and its appeal

The guilty verdict is imposed only inif the judge has a firm internal conviction of the defendant's guilt. It should not be unfounded, but based on an assessment of the evidence contained in the criminal case. The consideration of criminal cases by courts in a special order allows a softer sanction, the amount can not exceed two-thirds of the maximum possible time of the most severe punishment that is established by the Criminal Code for the commission of this crime.

The guilty verdict in the narrative andof the reasoning part must contain a statement of the essence of the criminal assault and an indication of the charge of committing it, according to which the defendant agreed, as well as the final conclusions of the court on the fulfillment of the terms of its decision in the mode of trial under a special order. The analysis of evidence and its assessment are not reflected.

The convict has the right to appeal the sentencea verdict of guilt in the appellate instance, except for the grounds specified in paragraph 1 of Article 379 of the Code of Criminal Procedure (the findings of the court, stated in the verdict, do not in fact correspond to the circumstances of the criminal case).

Is it possible to decide otherwise?

Consideration of criminal cases by courts in a specialorder provides for sentencing, which according to the general rules is a prosecution. But at the same time, in the 40th chapter of the Code of Criminal Procedure there are no norms prohibiting other decisions. True, if this is not required to investigate the evidence collected, and the facts of the case (actual) do not change at the same time. For example, this is a decision to change the qualification of the deed (solely in the direction of mitigating punishment), the termination of the criminal case because of the expiration of the statute of limitations, the amendment of the criminal law, reconciliation with the victim, an act of amnesty or as a result of the public prosecutor's refusal to accuse.

If it is necessary to study evidence fordecisions of acquittal, the judge makes a decision to stop the criminal case in a special order and is assigned its consideration under general rules.

Conclusion of agreement on cooperation (pre-trial)

This is understood as a special treaty concludedbetween the parties to the defense and the prosecution, in which they agree on the terms of the accused's (suspect's) responsibility, depending on their actions after the moment when a criminal case or charge is brought. According to this Criminal Procedure Law, a request for a cooperation agreement (pre-trial) is submitted by a suspect (or accused), necessarily in writing to the prosecutor's office with the signature of a lawyer or lawyer. It can be declared on time, starting from the moment of criminal prosecution, and up to the time when the preliminary investigation will be announced. It should contain indications of what actions the accused or the suspect is obligated to commit to facilitate the investigation of the crime, the exposure of other accomplices, the search for the missing property. The prosecutor considers the petition within a period not exceeding three days, and then passes a resolution on satisfaction or refusal.

Preliminary investigation is carried out inin accordance with the Code of Criminal Procedure of the Russian Federation (Chapters 22-27 and 30), taking into account the specifics specified in Article 317.4. After its termination the criminal case is transferred to the public prosecutor who together with the indictment deduces representation. In the latter, he indicates the fulfillment of the obligations by the accused, which he assumed.

After the case goes to court together with the submission (which is the basis, according to the Code of Criminal Procedure, Article 317.6), the question is resolved to approve a special procedure for considering a criminal case.

Tasks with a special order of the case

1. Guaranteed protection of the rights and interests of allinvolved in the process of the criminal case of persons in the conditions of reduction of means of procedural nature, which are used to establish the circumstances under which the crime was committed.
2. Justified and lawful punishment for the person who pleaded guilty, the court does not establish the immediate circumstances of the commission of the crime.
3. Significant reduction in terms of consideration and investigation of the case.
4. Reduction of the time of detention in case this precautionary measure is applied to the defendant.

A more thorough and scrupulous examinationcourts of complex, voluminous criminal cases, in relation to which the application of the procedure of "special order" is unacceptable, due to the prompt and prompt resolution of cases of the category in question.

Positive moments of a "special order"

Strange as it may seem, but not soa lot of. The very first and most important is that the accused, when they agree with the charges brought against them, get an opportunity to ease their fate at least 1/3 of the severest punishment provided for the article on which the crime is qualified. For example, if you have committed a crime, the upper limit for which is 6 years of imprisonment, then under a "special procedure" the maximum period will not be more than 4 years. The second advantage is a quick examination of the case in court, it simplifies, shortens the terms of the criminal case, and also introduces a number of special moments in the production at other stages of the criminal process. Well and the third plus (for the state) - economy of procedural and material resources.

Negative sides

• First, it will be necessary to agree completely withAll that is presented, in full, with each letter of the indictment. Only under such conditions it is possible to examine the case in a "special order".
• Secondly, if a person does not agree withsentenced, it has no right to appeal against it in part of the actual circumstances of the case. In other words, the convicted person will not be able to prove that he did not commit a crime. Appeal can only be any violations of procedural nature made by the court, as well as the severity of the sentence, referring to his injustice.
• And, thirdly, in full the confession of guilt is notmeans consent with a civil suit if it was also filed. If to agree with him in a special order, then the subsequent complaint about the verdict in terms of disagreement with the claims of the plaintiff will be rejected.

In any case, it must be remembered that no one has the right to coerce anyone to submit this petition. This is a purely voluntary matter.

The practice of applying the trial toThe special order is not new and is widely used in the world, for example, in the USA, Israel, India, some European countries. In Russia it was introduced relatively recently, in 2009. Whatever the name of this criminal-legal institution, it has quite serious prospects, but, of course, requires further development and improvement.