Article 217 of the Code of Criminal Procedure of the Russian Federation in a new edition. Theory of everything

Familiarization with the entire criminal case and the materials contained therein is very important for the accused and his defense counsel. This is simply necessary so that in court you can correctly build your line of defense and not lose to the prosecution. At the same time, a detailed study of all numbered sheets of the case will help to become familiar with all the testimony of witnesses and other participants in the process, which will significantly facilitate the work of the lawyer in defending the accused at the trial.

Study of all sheets of the case by the accused

After the victim and his lawyer have familiarized themselves with the case, it is the turn of the accused and his lawyer to familiarize themselves with it. When carrying out this procedural event, the lawyer and his client cannot be limited in time. In the case when familiarization with the materials of the criminal case is delayed, and the investigator is sure that the accused and his defense attorney are doing this on purpose, then on the basis court decision Time for familiarization with the case for these participants in the process may be limited.

If, within the period established by the court, the lawyer and his client have not familiarized themselves with the case materials, then the investigator has the right to complete this procedural procedure and record this in the appropriate protocol.

If the case consists of several volumes, then the lawyer and his client can refer to the study of each volume repeatedly, while making extracts, making copies and taking photographs.

Petition

Before familiarizing yourself with the case materials, the accused and his lawyer may submit a corresponding petition to the investigator with a request to study the case independently from each other. Submitting such an application to in this case mandatory, because such a rule is provided for in Art. 217 of the Code of Criminal Procedure of the Russian Federation and is subject to mandatory implementation participants in the process.

When expressing a written official request, the investigator should draw up a petition using the following example:

Investigator of the Investigation Department of the Ministry of Internal Affairs of the city of Luchezarny, Captain of Justice Koshechkin

lawyer Shlyapnikov, acting on the basis of warrant No. 11111

in the interests of the accused Lipovnik under Art. 155 of the Criminal Code of the Russian Federation

Petition

I ask you to give me the opportunity to familiarize myself with the materials of criminal case No. ___ on charges of Lipovnik G.G. of committing a crime under Article 155 of the Criminal Procedure Code of the Russian Federation separately from my client, with subsequent granting him the same right on the basis of Article 217 of the Criminal Procedure Code of the Russian Federation.

Defender __________________ Shlyapnikov

After the investigator has accepted procedural decision By this issue, he will also send a corresponding response to the applicant.

If the request to familiarize yourself with the materials of the criminal case is rejected by the investigator, you can appeal this refusal through the court on the basis of Article 125 of the Code on

Familiarization with the victim's case

If the victim and his defense attorney want to familiarize themselves with the case materials, they must inform the investigator about this, because familiarization with the materials of the criminal case of the victim and his defense attorney, as well as the civil plaintiff, occurs only after they have submitted a corresponding petition.

If a positive response is received from the investigator, these participants in the process can familiarize themselves with the case according to the same rules as the accused and his defense attorney. The victim and his defense attorney have the right to make extracts and copies, as well as photographs using cell phone, if the camera quality allows it.

And his representative can study the case only in that part that is relevant to the statement of claim filed by them.

In the event that the investigator for some reason does not allow these participants in the process to familiarize themselves with the case, then such actions procedural person may be appealed through a judicial authority.

The victim becomes familiar with the materials of the criminal case before the accused and his defense attorney study it - this is a rule of criminal proceedings.

Case materials that are not subject to disclosure

The accused and his defense attorney have the right to familiarize themselves with all the materials of the case, including material evidence, except for that information that is not subject to disclosure on the basis of Part 9 of Article 166 of the Code of Criminal Procedure. This happens if there is certain risk for the life of the victim, as well as witnesses and their relatives. Therefore, in order to classify the data of these participants in the process, the investigator makes an appropriate decision with the permission of commanding staff or independently, if he is not present, after which he seals the decree on non-disclosure of data of the victim, witness and their relatives in an envelope that is kept in the file. The information in it is not subject to disclosure or familiarization.

In this case, fictitious data about the identity of the victim and witnesses are entered into the protocol of the investigative action, after which the participants in the process get acquainted with it and also put fictitious signatures for their own safety. At the first opportunity, the investigator must report this to his superiors.

Time to get to know the case

When reviewing the materials of a criminal case, participants in the process cannot be limited in any way by time, especially if the case is quite large and consists of several volumes. The accused and his defense lawyer, as well as the victim and his lawyer, civil plaintiff get acquainted with the case on the basis of Art. 217 of the Code of Criminal Procedure of the Russian Federation, which states that the defense lawyer and the accused cannot be limited in time when studying the case.

If a situation occurs when a lawyer and his client deliberately delay studying all the materials of the case, then the investigator can apply to the court with a request to establish a time limit for these participants in the process to familiarize themselves with the case. After which the deadlines for familiarization with the materials of the criminal case will be established in court.

In the event that the accused and his defense attorney have not familiarized themselves with the case within the time period established by the court, the investigator has the right to complete this procedural action and make an entry about this in the protocol, but only if the participants in the process did not have the right to do so. good reasons. If the lawyer and his client have not familiarized themselves with the case due to extenuating circumstances (health reasons, business trip of the defense attorney), then the time for familiarizing themselves with the materials of the criminal case should be increased.

Protection

Every suspect and accused in a criminal case has the right to receive qualified legal assistance from a lawyer. If a given participant in the process cannot afford to hire and pay for such a specialist on his own, then he should be provided with a public defender who will provide services to his client free of charge.

In modern times, the services of a criminal lawyer are quite expensive, and not all defense lawyers meet their client’s expectations. It also happens that a government lawyer performs his functions much better than a defense attorney who has been paid a lot of money.

Before concluding an agreement with a lawyer, you need to carefully study each clause of the contract and, if necessary, change it. The services of a lawyer in criminal cases must not only be described on paper, but also clearly deciphered point by point, so that in the event of a losing case, it is possible to return part of the amount paid to the defender.

Proof

When familiarizing yourself with the case, the accused and his defense lawyer need to be very attentive to the study of the evidence that testifies against the alleged culprit. This is especially true for physical evidence that you can touch and see how it is packaged and stored, whether the sealed package has been opened, and whether this item has been used by anyone else.

Physical evidence in a criminal case must be presented by the investigator for familiarization with it by the defense attorney and the accused. In the event that the investigator does not have the opportunity to provide this evidence to the participants in the process for review, he must make an appropriate decision.

Possible objections

After studying and familiarizing with all available materials of the criminal case, the lawyer and his client have the right to express their objections and other comments regarding the conduct of the entire preliminary investigation. The investigator must ask these participants in the process about filing a petition or other statement after they have fully familiarized themselves with the case. If such statements exist, they are communicated to the investigator orally or writing, after which they are entered into the protocol of the investigative action.

Taking the case to court

After everything is completed, the investigator transfers the case to the court, which will subsequently decide the fate of the accused. The time frame for consideration of a case after it is referred to the court is quite different and is set by the court independently. At the moment when the case is already in court, it is allowed for the defense attorney to familiarize himself with the materials of the criminal case again, since sometimes it happens that the lawyer who represented the interests of his client during the period preliminary investigation, did not live up to his hopes, and therefore he has to be replaced with another defender. At the same time, repeated familiarization of the accused with the materials of the criminal case after its transfer to court is no longer allowed. That is why studying the case before the court hearing is the direct responsibility of the new lawyer.

Arbitrage practice

Currently, judicial practice is structured in such a way that all criminal cases that reach the stage judicial review and have sufficient evidence collected by the prosecution always ends in a guilty verdict. The conviction rate is very low and practically not allowed by the prosecution.

Judicial practice in criminal cases relating to road accidents, only in one out of ten verdicts completely exonerates the innocent driver; in other cases, unlucky drivers are sentenced to real terms and serve their sentences in places of deprivation of liberty, thereby receiving a criminal record and debt as compensation moral damage victims, which is usually paid only after the convicted person is released. While behind intentional crimes courts also give the perpetrators the opportunity to reform outside of isolation from society.

An example of one court verdict

The citizen committed burglary, after which he sold all the stolen property through a friend and made money from it. Illegally obtained funds specified citizen spent on repaying a loan debt that he had not already paid for a long time, which was confirmed by bank employees and video camera recording. As a result of search activities this man was detained, after which he realized his guilt and repented of his actions. The court found him guilty of the crime and sentenced him to 1 year of suspended imprisonment with a fine of 60 thousand rubles.

From the above example it is clear that judicial practice in criminal cases is almost always the following: the court imposes a punishment on offenders that has nothing to do with isolation from society, because they are aware of their guilt and can correct themselves outside the colony.

An example from court practice in a traffic accident case

The citizen was driving her car along the street at night and, having violated the driving rules, allowed a collision with a pedestrian, who received a head injury and subsequently died, which is confirmed by the examination. As a result of the investigative measures carried out and the evidence collected, the court found the woman guilty and ordered her to serve her sentence in prison with compensation for harm to the victims in the amount of several million rubles, which is fair at the discretion of the court.

From the above examples it is clear: it often happens that the punishment for a deliberate crime is not as severe as for a careless one. Unfortunately, paradoxes are eternal companions judicial practice in our country.

New edition of Art. 217 of the Criminal Code of the Russian Federation

1. Violation of safety rules at explosive facilities or in explosive workshops, if this could lead to the death of a person or caused harm major damage, -

shall be punishable by a fine in the amount of up to eighty thousand rubles or in the amount wages or other income of the convicted person for a period of up to six months, or restriction of freedom for a term of up to three years with deprivation of the right to occupy certain positions or study certain activities for a period of up to three years or without it.

2. The same act, which caused the death of a person through negligence, -

punished forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

3. The act provided for in part one of this article resulting in the death of two or more persons through negligence, -

shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by imprisonment for a term of up to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without one.

Commentary on Article 217 of the Criminal Code of the Russian Federation

1. Public danger The crime consists of undermining the public security of Russia, causing death to a person or major damage to the owner, or creating a threat of death to a person.

The main elements of the crime are revealed in Part 1 of the comment. articles and describes socially dangerous acts included in the category of crimes light weight. Qualified personnel are provided for part 2 comments. articles and includes acts included in the category of crimes moderate severity. Particularly qualified personnel are enshrined in Part 3 and reveal intentional acts related to serious crimes, as well as careless acts included in the category of crimes of medium gravity.

2. Main object criminal offense is public safety regulated by safety rules at explosive facilities or in explosive workshops. Optional objects can be human life and property relations. In a qualified and special qualified personnel crimes a person's life - additional object encroachments.

3. The objective side of the crime is expressed in the form of action or inaction. An active form of criminal behavior is reflected, for example, in violation of the production process, operation of faulty equipment, and careless handling of fire. Passive criminal behavior possible, for example, if actions ensuring safe technological process production.

4. Mandatory feature objective side elements of a crime is the place where it was committed, which may be an explosive facility or an explosive workshop.

4.1. An explosive object is a section of terrain (room, storage) on which explosive substances are placed, such as gunpowder, TNT, nitroglycerin, and products containing them, in particular ammunition, pyrotechnic products, explosive devices, etc.

4.2. An explosive workshop is a section of terrain equipped with production equipment, where work is carried out related to the production or use of explosive substances and products containing these substances.

5. The disposition of the article is of a reference-blanket nature, see paragraph 7 of the comment. to Art. 216.

6. According to the legislative structure, the corpus delicti provided for in Part 1 of the comment. article is formal and material. The crime is completed (by composition) at the moment of its commission in public dangerous act- violation of safety rules at explosive objects or in explosive workshops, which created a real threat of causing the death of at least one person through negligence, or at the time of the occurrence of major damage to the owner as a result of a socially dangerous act.

6.1. Major damage is determined according to the note to Art. 216 and is recognized as such if the amount of damage caused exceeds 500 thousand rubles.

7. The elements of the crime provided for in parts 2 and 3 of the comment. Articles, by legislative design, are material. The crime is completed (by elements) at the moment of occurrence due to negligence as a result of violation of the specified safety rules, corresponding to the death of at least one person (Part 2) or the death of two or more persons (Part 3). Here there must be a necessary cause-and-effect relationship between the violation of safety rules and the resulting material, socially dangerous consequence.

7.1. For the death of a person, see paragraph 11.2 of the commentary. to Art. 247.

8. Subjective side elements of a crime are characterized by guilt in the form of intent or negligence. In the first case, for example, guilty person realizes that he is violating safety rules at explosive objects, foresees the possibility of major damage as a result of this, and although he does not want it, he consciously allows it to occur or is indifferent to its occurrence. In the second case, for example, the guilty person does not foresee the possibility of major damage as a result of his behavior, although with the necessary care and forethought he should and could have foreseen this consequence.

8.1. In parts 2 and 3 comments. Articles of wine can be characterized by two forms. Here the mental attitude of the perpetrator to committed act may be expressed in a deliberate violation of safety rules at an explosive facility and the creation real threat causing major damage, deliberately allowing this consequence (Part 1), causing the death of one person through negligence (Part 2) or the death of two or more persons (Part 3).

9. The subject of a criminal offense is a sane individual who has reached the age of 16 at the time of committing the crime, who is obliged to comply with safety rules at explosive facilities or in explosive workshops and (or) responsible for their compliance. These may be officials, specialists responsible for work areas, performers of work at explosive objects (in explosive workshops).

Another comment on Art. 217 of the Criminal Code of the Russian Federation

1. The victim can be any person.

2. The objective side is a violation of safety rules at explosive facilities or in explosive workshops. Violation of these rules can be expressed both in the form of action (exceeding the maximum concentration limits of explosive substances) and inaction (failure to provide workplaces with ventilation devices).

Violation of these rules entails criminal liability only if it: a) could lead to the death of a person. The corpus delicti in this case refers to the elements of a specific danger. The crime is considered completed from the moment of violation of these rules. Socially dangerous consequences are outside the scope of the composition; b) caused major damage. According to the note to Art. 216 of the Criminal Code of the Russian Federation, damage is recognized as large, the amount of which exceeds five hundred thousand rubles. In this case, the composition becomes material, the crime is considered completed from the moment the socially dangerous consequences occur.

3rd place - explosive objects- is mandatory feature the objective side of the crime being analyzed.

• Up

In some regions, the practice of countering evasion has recently been formed by using Part 5 of Art. 215 of the Code of Criminal Procedure of the Russian Federation. Let's quote it in full:

"5. If the accused, who is not in custody, does not appear to familiarize himself with the materials of the criminal case without good reason or otherwise avoids familiarization, then the investigator, after 5 days from the date of announcement of the end of investigative actions or from the date of completion of familiarization with the materials of the criminal case of other participants criminal proceedings specified in part two of this article, draws up an indictment and sends the materials of the criminal case to the prosecutor.”

So, the investigator has the right to forward the case to the prosecutor without fulfilling the requirements of Art. 217-218 Code of Criminal Procedure of the Russian Federation in the presence of the following mandatory conditions:

a) the accused does not appear before the investigator, or otherwiseevades from familiarization;

b) failure to appear or “other evasion” does not have valid reasons;

c) 5 days have passed since the announcement of the completion of investigative actions (Code of Criminal Procedure of the Russian Federation, Appendix No. 148), or the same 5 days have passed since the end of familiarization with the materials of the case of victims, civil plaintiffs, civil defendants and their representatives.

Note that the legislator gave the prosecution the opportunity to decide for itself what it is: “the accused otherwise evades...”. At the same time, the norm does not speak about refusal of familiarization, but about evasion from it 13. But the investigator must be ready to present to the prosecutor or the court 14 reasonable and sufficient arguments that failure to appear and “other means of evasion” were allowed by the accused specifically without good reason. These could be:

See below for information about denial of access.

For example, in the process of considering a complaint against his actions in accordance with Art. 125 Code of Criminal Procedure of the Russian Federation.

Obviously too slow familiarization with the small volume of case materials;

failure of the chosen defense attorney to appear;

refusal of the defender proposed in accordance with Part 4 of Art. 215 Code of Criminal Procedure of the Russian Federation;

refusal to get acquainted with the case jointly or separately with the defense attorney, etc.

We emphasize that this is not about the fact that the listed reasons are always disrespectful (quite the contrary!), but about the fact that they can be recognized as such based on the circumstances of a particular case.

If the accused’s evasion of familiarization is in one way or another connected with the participation of a defense lawyer in procedural actions, the investigator is obliged to take the measures provided for by the Code. So, in accordance with Part 4 of Art. 215 of the Code of Criminal Procedure of the Russian Federation, if it is impossible for the defense attorney chosen by the accused to appear to familiarize himself with the materials of the criminal case, after 5 days the investigator has the right to invite the accused to choose another defense attorney or, if there is a request from the accused, takes measures for the appearance of another defense attorney. If the accused refuses the appointed defense lawyer, then the investigator presents him with the materials of the criminal case for review without the participation of a defense lawyer, except for cases where the participation of a defense lawyer in the criminal case in accordance with Article 51 of this Code is mandatory.

So, all measures to ensure the right to defense have been taken; the accused does not appear or refuses to familiarize himself; his reasons are not valid; five days have passed.... What's next? How can and should an investigator record all this?

We believe that as follows:

Requirements of Art. 217-218 of the Code of Criminal Procedure of the Russian Federation are carried out in a truncated volume. A protocol is drawn up for familiarizing the accused and (or) his (her) defense attorney with the materials of the criminal case (Code of Criminal Procedure of the Russian Federation, Appendix № 151)" 5. The protocol indicates the reasons, obstacles

15 If these persons have partially familiarized themselves with the materials, a familiarization schedule is attached (CPC RF, Appendix No. 149). In this case, this graph will be incomplete.

necessary for familiarization, the circumstances of failure to appear or evasion are described (see the list above - a, b, c);

In any case, it is necessary to clarify the rights provided for in Parts 4-5 of Art. 217 Code of Criminal Procedure of the Russian Federation;

an indictment is drawn up, and the certificate accompanying it 16, as well as the protocol (Article 218 of the Code of Criminal Procedure of the Russian Federation), describes the reasons for non-familiarization, the circumstances of failure to appear or evasion (see the list above - a, b, c);

Documents are filed with the case confirming the investigator’s arguments about the completion of the preliminary investigation without familiarizing the accused with the case materials: reports, summons counterfoils, requests, notifications to the legal consultation office, certificates from medical institutions, etc.

the case with the indictment is sent to the prosecutor in accordance with Part 6 of Art. 220 Code of Criminal Procedure of the Russian Federation.

Now let’s look at the algorithm of the investigator’s actions in cases where the accused, who is not in custody, and/or his defense attorney comes to the investigator, gets acquainted with the case materials, but refuses to certify this legal fact with their signatures.

As rightly, but rather briefly noted in the above information letter of the GVP, in the event that the accused and/or his defense attorney actually studied and studied in in full materials of the criminal case, but refuse to sign the protocol in accordance with Art. 218 of the Code of Criminal Procedure of the Russian Federation, the following procedure for processing documents does not contradict the law:

1. A familiarization schedule is drawn up (Code of Criminal Procedure of the Russian Federation - Appendix 149) in which all valid factual data (date, time, studied volumes and sheets of the case) are indicated in each line dedicated to the date of familiarization, and in the column “signature of the person who became familiar with the case” indicates: “accused (defender)

refused to sign." At the same time, the law (Article 167 of the Code of Criminal Procedure

RF) does not require certification of this fact by witnesses 17. But their presence and signatures in such a case would not be superfluous.

Code of Criminal Procedure of the Russian Federation, Appendix No. 158. Information is indicated in paragraph 10-P of the certificate-appendix to the indictment.

At the same time, let us note that Art. 167 of the Code of Criminal Procedure of the Russian Federation is devoted to protocols of investigative actions, to which the protocol is in accordance with Art. 218 of the Code of Criminal Procedure of the Russian Federation does not relate to

Each daily refusal and its circumstances (alleged reasons, statements, etc.) are recorded in a report from the investigator addressed to the prosecutor.

If the accused refers to a painful condition, he is sent for an appropriate examination. The certificate is then attached to the case file.

When drawing up a protocol in accordance with Article 218 of the Code of Criminal Procedure of the Russian Federation, all necessary information, including orally stated requests, comments, etc. If the defense refuses to sign the protocol, an entry similar to the one given earlier is made: “the accused (defender) refused to sign.”

Refusal to sign the protocol in accordance with Art. 218 of the Code of Criminal Procedure of the Russian Federation is recorded in a report from the investigator addressed to the prosecutor.

In the absence of objections from the prosecutor, as well as from the court, if, for example, the corresponding decision of the investigator was appealed in accordance with Art. 124-125 Code of Criminal Procedure of the Russian Federation, requirements of Art. 217-218 of the Code of Criminal Procedure of the Russian Federation can be considered fulfilled.

The practice we have studied shows that with such decisive actions by the investigator, in the overwhelming majority of cases, the accused and their defenders, already at stages 5 and 6 of the list, seriously think about the futility and even the “fraughtness” of such opposition to the investigation. And after thinking, they begin to familiarize themselves, sign the protocol in accordance with Article 218 of the Code of Criminal Procedure of the Russian Federation. So sometimes it is useful to even just start the indicated procedure.

Please note that, in contrast to the refusal of the accused, the refusal to sign on the part of the defense attorney is a gross violation of the law and ethics on his part. We are talking about a violation of Part 2 of Art. 1 Code of Criminal Procedure of the Russian Federation, clause 1, part 1, art. 7 of the Federal Law “On advocacy and the legal profession in the Russian Federation” and a number of provisions of the Code of Professional Ethics for Lawyers. A lawyer not only does not have the right to refuse

sits. We believe that in this case there is a legislative error. The norm should be interpreted broadly.

writing, but he himself is obliged to certify the fact of such a refusal (Part 1 of Article 167 of the Code of Criminal Procedure of the Russian Federation). For such violations, he may bear disciplinary, and in some cases, civil and criminal liability 18.

The same applies to the lawyer’s refusal to familiarize himself with the case materials. Only for the defendant the opportunity to get acquainted is a right (clause 12-13, part 1, article 47 of the Code of Criminal Procedure of the Russian Federation). For a defender, such a norm is nowhere formulated as a “right” - it is his duty.

The argument of some unscrupulous defenders that they do not have the right to take a position contrary to the will of the principal (clause 3, part 4, article 6 of the Federal Law “On advocacy and the Bar in the Russian Federation") is not based on law. Familiarization with the case materials does not constitute an expression of position on the case. Fulfillment by the lawyer of the requirements of Art. 217-218 of the Code of Criminal Procedure of the Russian Federation cannot bring anything but benefit to the accused. On the contrary, refusal to familiarize yourself is a refusal to defend (part 7 of article 49 of the Code of Criminal Procedure of the Russian Federation, etc.), since it deprives the lawyer of an objective opportunity to defend competently.

More on this in the last paragraph.

The reader probably noted that this paragraph does not present samples. Unfortunately, the author-compiler did not find cases and documents on them, where such methods were not only used, but also “passed” the stages judicial control, that is, the procedure for appealing the actions of an investigator or prosecutor to the court; the court's decision; cassation appeal by the defense; decision of the cassation authority; etc.

I again invite you to cooperate and ask you to send the relevant documents to our address.

See below chap. 4, samples 13-16, and also: Garmaev Yu.P. The limits of the rights and powers of a lawyer in criminal proceedings and typical offenses. 3rd ed., revised. and additional - Irkutsk: IPKPR State Tretyakov Gallery of the Russian Federation, 2005. - 390 p. Comes with a CD-R with sample documents and comments.

4. Can the investigator limit the right of the accused and the defense attorney to receive copies of the case materials in accordance with Part 2 of Art. 217 Code of Criminal Procedure of the Russian Federation? Is it worth it?

Samples 10-12 present a selection of sample documents on the seizure of copies of the case materials from the defense attorney in accordance with Part 2 of Art. 217 of the Code of Criminal Procedure of the Russian Federation.

The selection includes:

resolution on the seizure of copies and extracts from the materials of the criminal case in accordance with Part 2 of Art. 217 Code of Criminal Procedure of the Russian Federation;

seizure protocol;

fragment cover letter prosecutor to send the case to court.

Access to a wider range of documents during the investigation, the ability to copy case materials using technical means(Clause 7, Part 1, Article 53 of the Code of Criminal Procedure of the Russian Federation and Clause 6, Part 3, Article 6 of the Law “On Advocacy and the Legal Profession in the Russian Federation”) not only expands the possibilities of legal protection, but also provides unique opportunities for all kinds of illegal actions .

In fact, it turns out that every lawyer has the right to have in his personal archive, in full and indefinite disposal, and without any security or safety measures, tens and hundreds of volumes of copies of criminal cases in which he participated as a defense lawyer. Unscrupulous lawyers are seriously tempted to use the information received (in a huge volume), contrary to the interests of justice.

So can the prosecution neutralize, including prevent, possible illegal opposition by legal means? Our opinion is that it not only can, but also must.

Firstly, investigators, interrogators, and prosecutors are recommended to warn the defense attorney about criminal liability for disclosing preliminary investigation data (Article 161 of the Code of Criminal Procedure of the Russian Federation) and take out the appropriate subscription (Appendix 50 of Article 476 of the Code of Criminal Procedure of the Russian Federation).

Secondly, if the materials of the criminal case contain information constituting state secret, it is necessary to take a subscription from him about non-disclosure of such information (Part 5 of Article 49 of the Code of Criminal Procedure of the Russian Federation).

Thirdly, if the case contains data that constitutes other types of secrets protected by law (commercial, personal and family, banking, medical, etc.), the investigator has the right to obtain a non-disclosure agreement for this data as well.

And finally, fourthly, a special mechanism for protecting information constituting protected federal law secret, laid down in Part 2 of Art. 217 of the Code of Criminal Procedure of the Russian Federation. This provision states that the accused and the defense attorney, although they have the right to make copies of documents in the criminal case, make extracts from it after the completion of the preliminary investigation, but if this case contains information that constitutes a state or other secret protected by federal law, then all these copies and extracts cannot be issued, but are kept in the criminal case and presented to the accused and his defense attorney during the trial. One of the “other” secrets protected by federal law (Code of Criminal Procedure of the Russian Federation) is the secret of the preliminary investigation.

What is the “secret of the preliminary investigation”, what of the contents of the criminal case relates to it? Although nowhere in the law is there this concept, in part 3 of Art. 161 of the Code of Criminal Procedure of the Russian Federation actually lists the signs of this secret: they recognize any data, the disclosure of which, in the opinion of the prosecutor, investigator or inquiry officer, contradicts the interests of the preliminary investigation and may violate the rights and legitimate interests of participants in criminal proceedings. That is, it can be any data, any document from a criminal case, or even all documents, the entire case.

Thus, based on the literal interpretation of Part 2 of Art. 217 of the Code of Criminal Procedure of the Russian Federation, the investigator has the right not to give out copies of the case materials taken by the accused and the defense attorney at their own expense, as well as extracts from the case made by them themselves, if these extracts and copies contain data constituting any of the secrets protected by federal law. Taking into account the breadth of signs of “preliminary investigation secrecy”, the investigator may in fact not issue a single copy, not a single document from the completed criminal case and not a single extract from it.

However, one should be objective and admit that such an “extreme position” of the investigator, although it can be recognized as formally legitimate, based on the provisions of Part 2 of Art. 217 of the Code of Criminal Procedure of the Russian Federation, but in many ways contradicts the principle of inadmissibility of abuse

knowledge of law. As the Constitutional Court noted on a similar issue, methods of protecting the state (as well as other things protected by law. - SOUTH.) secrets in criminal proceedings must be commensurate with both the significance of the protected secret and the legal status of the relevant participants in the criminal process 19 .

We believe that investigators need to be guided by the fact that those copies and extracts can and should be issued that contain data, the dissemination of which will not actually violate secrets protected by law, in particular will not harm the interests of the preliminary investigation, and will not violate the rights and legitimate interests of participants in legal proceedings.

Here it may be objected that the disclosure of any data at the stage of the process under consideration cannot cause damage to the preliminary investigation, since it has already been completed at the time the defense begins to familiarize itself with the materials of the criminal case. However, we should not forget that the prosecutor, by his decision, has the right to return the criminal case for additional investigation in accordance with Art. 221 Criminal Code of the Russian Federation (part 1, paragraph 3) and then the investigation can continue for another month or more.

Below is a draft resolution on the seizure of copies and extracts from the materials of the criminal case in accordance with Part 2 of Art. 217 of the Customs Code of the Russian Federation, as well as the protocol to it. Like others, these documents are based on real events in a criminal case. Since the documents are not provided for in Art. 476 of the Code of Criminal Procedure of the Russian Federation “List of forms of procedural documents of pre-trial proceedings”, in accordance with Art. 475 of the Code of Criminal Procedure of the Russian Federation, they were drawn up in compliance with the structure of the form for the decision on seizure and the requirements of the Code regulating the implementation of this investigative action.

Paragraph 6 of the Constitutional Court Resolution No. 8-P dated March 27, 1996 “In the case of verifying the constitutionality of Articles 1 and 21 of the Law of the Russian Federation dated July 21, 1993 “On State Secrets” in connection with complaints from citizens V.M. Gudzhiyantsa, V.N. Sintsova, V.N. Bugrova and A.K. Nikitin."

SAMPLE 10

RESOLUTION

on the seizure of copies and extracts from the materials of the criminal case in accordance with Part 2 of Art. 217 Code of Criminal Procedure of the Russian Federation

Senior investigator of the N district prosecutor's office, lawyer 3

class, having examined the materials of criminal case No. ______

on charges of Mr. S. of committing a crime under paragraph “a” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation,

INSTALLED:

The present criminal case was initiated on December 2, 2003 in connection with the murder of M. and K, citizen S., while drinking alcohol together.

On March 20, 2004, the preliminary investigation in this case was completed and on March 22, 2004, its materials were presented to the accused and his defense attorney in accordance with Article 217 of the Code of Criminal Procedure of the Russian Federation.

In the process of familiarizing themselves with the materials of the criminal case, consisting of 2 volumes (volume one on 215 sheets, volume two on 196 sheets), the accused and his defense lawyer R. were given the right to make copies of documents using technical means (copier).

During the period from March 22 to March 30, 2004, lawyer R. familiarized himself with all the materials of the case and made copies of the following documents:

volume 1, pp. from 1 to 20;

volume 1, pp. from 54 to 63;

volume 1, pp. from 110 to 154;

volume 2, pp. from 12 to 23;

volume 2, pp. from 68 to 93;

volume 2, pp. from 160 to 195.

Today, March 30, the requirements of Art. 217-219 of the Code of Criminal Procedure of the Russian Federation by the accused S. and his defense lawyer R. were fulfilled.

In accordance with Part 2 of Art. 217 of the Code of Criminal Procedure of the Russian Federation, copies of documents and extracts

records from the criminal case, which contain information constituting a state or other secret protected by federal law, are stored in the criminal case and are provided to the accused and his defense attorney during the trial.

In accordance with Part 1 of Art. 161 of this Code, data from the preliminary investigation are not subject to disclosure, except in cases provided for by part third of this article.

Thus, the materials of this criminal case are another secret protected by federal law (Code of Criminal Procedure of the Russian Federation) and can be made public only with the permission of the prosecutor, investigator, inquirer and only to the extent that they consider this permissible, if disclosure does not contradict the interests of the preliminary investigation. investigation and is not related to a violation of rights and legitimate interests participants in criminal proceedings (Part 3 of Article 161 of the Criminal Code of the Russian Federation).

In this criminal case, disclosure of data from the preliminary investigation by providing the lawyer with the listed copies of the case materials containing testimonies of victims, witnesses, expert opinions and

other important information, contrary to the interests of the preliminary investigation. In addition, during the interrogation, victim M., in particular, explained that providing the defense with copies of the case materials, including the protocol of her interrogation, protocols before the questioning of witnesses, contradicts her interests as a participant

legal proceedings. Witnesses gave similar testimony ______

(vol. 1, pp.) 20.

The fact that the preliminary investigation has been completed does not deprive the materials of the criminal case of the status of documents containing a secret protected by federal law, since on the basis of clause 3 of part 1 of Art. 221 of the Code of Criminal Procedure of the Russian Federation, the prosecutor has the right to return the criminal case to the investigator for additional investigation.

20 Please note that the law does not oblige the investigator to substantiate his decision with the opinion of the participants in criminal proceedings. As is known, the form of such a resolution is not in the list provided for in Chapter 57 of the Code of Criminal Procedure of the Russian Federation. However, such justification may be useful to the prosecution as part of a possible appeal. decision taken in accordance with Art. 1 25 Code of Criminal Procedure of the Russian Federation.

Based on the above, guided by Part 2 of Art. 2J7 and 161 Code of Criminal Procedure of the Russian Federation,

DECIDED:

1. Confiscate lawyer R from the accused’s defense attorney S.

copies of the materials of the criminal case No., taken by him with the help

technical means in the course of fulfilling the requirements of Art. 217 Code of Criminal Procedure of the Russian Federation:

Volume 1, pp. from 1 to 20;

volume 1, pp. from 54 to 63; -vol. 1, pp. from 110 to 154;

volume 2, l.d.

volume 2, pp. from 68 to 93;

from 12 to 23;

volume 2, pp. from 160 to 195,

since these copies contain information that constitutes a secret of the preliminary investigation protected by federal law (Code of Criminal Procedure of the Russian Federation).

2. Explain to the accused and his defense attorney that the confiscated copies will be kept in the criminal case and can be provided to them during the trial.

3. Send a copy of this resolution to the prosecutor

3. Send a copy of this resolution to the prosecutor

Investigator

SAMPLE 11

PROTOCOL

seizure of copies and extracts from the materials of the criminal case in accordance with Part 2 of Art. 217 Code of Criminal Procedure of the Russian Federation

The seizure began at _____ hours.

Seizure completed in 1 hour.

Senior investigator of the N district prosecutor's office, lawyer 3

in the presence of witnesses:

and with the participation of the accused S. and his defense lawyer R. on the basis of the resolution of March 30, 2004 and in accordance with part 2 of Art. 217 of the Code of Criminal Procedure of the Russian Federation confiscated in the investigator’s office from lawyer R. copies of the materials of criminal case No., taken by him using technical means in the course of fulfilling the requirements of Art. 217 Code of Criminal Procedure of the Russian Federation.

Before the seizure begins, the persons involved are explained their rights and responsibilities.

Persons involved:

In addition, before the seizure began, the witnesses were explained their rights, duties and responsibilities under Art. 60 Code of Criminal Procedure of the Russian Federation. The participants were also informed about the use of technical means

Before the start of the seizure, the investigator presented a decree on the seizure of copies and extracts from the materials of the criminal case in accordance with Part 2 of Art. 217 of the Code of Criminal Procedure of the Russian Federation of March 30, 2004, after which lawyer R. was asked to provide copies of the materials of criminal case No., which he had taken using technical means.

These copies were issued by lawyer R. voluntarily.

During the seizure, the following copies of documents were obtained:

volume 1, pp. from 1 to 20;

volume 1, pp. from 54 to 63; -vol. 1, pp. from 110 to 154; -vol. 2, pp. from 12 to 23;

volume 2, pp. from 68 to 93;

volume 2, pp. from 160 to 195.

All copies of documents are filed in one volume and numbered. During the seizure there was carried out (orlater video recording).

Before, during or after the withdrawal from the participating persons

statements. Contents stated:

(received, not received)

Other persons involved:

The protocol has been read

Notes on the protocol

Other persons involved:

3. Send a copy of this resolution to the prosecutor

A copy of the protocol was received by (date) Lawyer R

SAMPLE 12

FRAGMENT OF COVERING LETTER TO THE COURT

district court

In addition, copies of the materials of this

criminal case, confiscated from the defendant’s defender S., lawyer R. on the basis of the investigator’s resolution dated March 30, 2004 (vol. 2, pp.

) and in accordance with Part 2 of Art. 217 Code of Criminal Procedure of the Russian Federation. Copies on sheets of paper are sewn separately and numbered.

It was explained to the accused and his defense attorney that, in accordance with. Part 2 Art. 217 of the Code of Criminal Procedure of the Russian Federation, the seized copies will be provided to them during the trial.

1. After fulfilling the requirement, the investigator presents the accused and his defense attorney with the filed and numbered materials of the criminal case, except for the cases provided for. Material evidence is also presented for review and, at the request of the accused or his defense attorney, photographs, audio and (or) video recordings, filming and other attachments to the protocols of investigative actions. If it is impossible to present material evidence, the investigator makes a decision to this effect. At the request of the accused and his defense attorney, the investigator provides them with the opportunity to familiarize themselves with the materials of the criminal case separately. If several defendants are involved in a criminal case, the sequence of providing them and their defense attorneys with the materials of the criminal case is established by the investigator.

2. In the process of familiarizing with the materials of a criminal case, consisting of several volumes, the accused and his defense attorney have the right to repeatedly refer to any of the volumes of the criminal case, as well as write out any information in any volume, make copies of documents, including using technical funds. Copies of documents and extracts from the criminal case, which contains information constituting state or other secrets protected by federal law, are stored in the criminal case and are provided to the accused and his defense attorney during the trial.

3. The accused and his defense attorney cannot be limited in the time they need to familiarize themselves with the materials of the criminal case. If the accused and his defense attorney, who have begun to familiarize themselves with the materials of the criminal case, clearly delay the time of familiarization with these materials, then on the basis of a court decision made in the manner established, it is established certain period to familiarize yourself with the materials of the criminal case. If the accused and his defense attorney, without good reason, have not familiarized themselves with the materials of the criminal case within the time limit established by the court, the investigator has the right to decide to terminate the proceedings of this case. procedural action, about which he makes a corresponding decision and makes a note in the protocol of familiarization of the accused and his defense attorney with the materials of the criminal case.

4. After the accused and his defense attorney have familiarized themselves with the materials of the criminal case, the investigator finds out what petitions or other statements they have. At the same time, it becomes clear to the accused and his defense attorney which witnesses, experts, and specialists are to be called to the court hearing for questioning and confirming the position of the defense.

5. The investigator explains to the accused his right to petition:

1) on the consideration of a criminal case by a court with the participation of a jury - in cases provided for. At the same time, the investigator explains the peculiarities of the consideration of the criminal case by this court, the rights of the accused in trial and the procedure for appealing a court decision. If one or more accused refuses to be tried by jury, then the investigator decides on separating criminal cases against these accused in separate production. If it is impossible to separate a criminal case into separate proceedings, the criminal case as a whole is considered by the court with the participation of a jury;

1.1) on consideration of a criminal case by a panel of three judges federal court general jurisdiction- in cases provided for;

2) on the application of a special procedure for judicial proceedings - in cases provided for;

3) on holding preliminary hearings - in cases provided for.

Commentary to Art. 217 Code of Criminal Procedure of the Russian Federation

2. If several defendants are involved in the case, each of them is presented with all the materials of the case. Accordingly, these materials are presented to each of the defenders, if there are several of them in the case. On multi-volume cases about group crimes Investigators maintain special schedules for familiarizing the accused and defense attorneys with the case materials, which indicate the number of the volume of the case that must be familiarized with this participant affairs in specific date. The schedule is optional for the accused and the defense lawyer; it has a purely technical nature. The rule that every accused and every defense lawyer must be provided real opportunity familiarize yourself with all investigative proceedings sent for trial, does not tolerate any exceptions or reservations. In particular, at any time several criminal cases are combined into one proceeding, all defendants and their defense attorneys must be familiar with the entire combined criminal case, even if such consolidation took place after the criminal cases were sent to the prosecutor with indictments (see: Definition Judicial Collegium in criminal cases Supreme Court RF dated June 2, 2005 in the case of Zolotarev, Minin and Tsvetkov // Bulletin of the Supreme Court of the Russian Federation. 2006. N 6. P. 28).

3. Upon completion of familiarization of the accused and his defense attorney with the case materials, the investigator is obliged to interview each of them whether they request to supplement the investigation and what exactly. Petitions can be made either orally or in writing. Oral petitions are entered into the protocol, written ones are attached to the case. The accused and defense attorneys have the right to file petitions on all issues that they consider necessary, in particular on additional investigative actions, on changing the preventive measure, on terminating the criminal case, etc.

4. If the accused or defense lawyer needs some time to think over and formulate requests, the investigator must provide them with such an opportunity.

5. When the defense party familiarizes itself with the materials of the preliminary investigation in a criminal case, jurisdictional court mid-level federal courts of general jurisdiction (the supreme court of the republic, regional or regional court, city court federal significance, court autonomous region and the court Autonomous Okrug), the investigator is obliged to explain to the accused his right to petition for his case to be considered by a jury and the main distinctive features criminal proceedings in such a court. If, at the end of the preliminary investigation, there were no grounds for considering and resolving the issue of separating a criminal case (at the time of signing the protocol on such termination, none of the accused, in contrast to one of them, declared their refusal to consider the case with the participation of a jury), then the court, a criminal case cannot be returned to the prosecutor to resolve this issue (Bulletin of the Supreme Court of the Russian Federation. 2006. N 3. P. 15). (And since the court itself does not resolve questions about the division of criminal cases, in practice this means that the entire criminal case is subject to trial with the participation of a jury.)

6. In cases of crimes for which the punishment does not exceed ten years of imprisonment, the investigator, after familiarizing the accused with the materials of the completed preliminary investigation, is obliged to explain to the accused his right to petition for the possibility of considering his case using a shortened trial procedure, or rather, for assigning him punishment without trial (see).

7. In all criminal cases, the investigator, having familiarized the defense with the materials of the completed preliminary investigation, is obliged to explain to the accused his right to petition for a this case preliminary court hearing(see text to it).

8. The Supreme Court of the Russian Federation clarifies that the criminal procedure law does not require that the will of the accused to exercise each of the rights provided for in part five of the commented article be reflected in the protocol: recording is sufficient general information on explaining to the accused in the presence of a defense lawyer the content of this norm on the day of familiarization with the materials of the criminal case (Resolution of the Presidium of the Supreme Court of the Russian Federation of November 10, 2004 in the case of Skrapstin and others).

9. Since in cases of grave and especially serious crimes the accused is given the right to decide for himself in what composition - a single judge or a panel of three judges - his case will be considered in the first instance, upon reviewing the materials of the final investigative proceedings this right must be explained to him, and the expression of will on this issue (choice) must be recorded. This choice is taken into account when scheduling a court hearing and is of decisive importance in determining the composition of the court (see).

10. Part three of the commented article is legislative basis to resolve the most acute conflicts between the parties of prosecution and defense in connection with the deliberate actions of the latter in order to delay familiarization with the materials of the completed investigative proceedings so that they expire deadlines keeping the accused in custody, achieving his release and thereby strengthening his position. The right to limit the period of familiarization is given to the judge. This decision meets the general line of the legislator to strengthen judicial control over the preliminary investigation, although it, of course, is somewhat cumbersome and puts the investigator before a daunting task prove to the judge that the defense is dishonest.

1. After fulfilling the requirement of Article 216 of this Code, the investigator presents the accused and his defense attorney with the filed and numbered materials of the criminal case, except for the cases provided for in part nine of Article 166 of this Code. Material evidence is also presented for review and, at the request of the accused or his defense attorney, photographs, audio and (or) video recordings, filming and other attachments to the protocols of investigative actions. At the request of the accused and his defense attorney, the investigator provides them with the opportunity to familiarize themselves with the materials of the criminal case separately. If several defendants are involved in a criminal case, the sequence of providing them and their defense attorneys with the materials of the criminal case is established by the investigator.

2. In the process of familiarizing with the materials of a criminal case, consisting of several volumes, the accused and his defense attorney have the right to repeatedly refer to any of the volumes of the criminal case, as well as write out any information in any volume, make copies of documents, including using technical funds. Copies of documents and extracts from the criminal case, which contains information constituting state or other secrets protected by federal law, are stored in the criminal case and are provided to the accused and his defense attorney during the trial.

3. The accused and his defense attorney cannot be limited in the time they need to familiarize themselves with the materials of the criminal case.

4. After the accused and his defense attorney have familiarized themselves with the materials of the criminal case, the investigator finds out what petitions or other statements they have. At the same time, it becomes clear from the accused and his defense attorney which witnesses, experts, and specialists are to be summoned to the court hearing for questioning and confirmation of the defense’s position.

5. The investigator explains to the accused his right to petition:

1) on the consideration of a criminal case by a court with the participation of a jury - in the cases provided for in paragraph 1 of part three of Article 31 of this Code. At the same time, the investigator explains the peculiarities of the consideration of the criminal case by this court, the rights of the accused in the trial and the procedure for appealing the court decision. If one or more accused refuses to be tried by jury, the investigator decides to separate the criminal cases against these accused into separate proceedings. If it is impossible to separate a criminal case into separate proceedings, the criminal case as a whole is considered by the court with the participation of a jury;

2) on the application of a special procedure for judicial proceedings - in cases provided for in Article 314 of this Code;

3) on holding preliminary hearings - in cases provided for in Article 229 of this Code.

1. Before familiarizing the accused and his defense attorney with the materials of the criminal case: a) they must be bound and numbered; b) the accused and his defense attorney must be informed of the end of the investigative actions and a protocol must be drawn up (Part 2 of Article 215; Appendix No. 76); c) the requirements of Art. 216 Code of Criminal Procedure.

1.1. In the order of the commented article, familiarization with the case is made and legal representatives accused (see commentary to Article 426 of the Code of Criminal Procedure).

2. The moment and order of familiarization of the accused and their defense attorneys is determined by the investigator at his own discretion, however, if the accused is kept in custody, then the familiarization must begin no later than 30 days before the expiration of the 12 or 18 month deadline for detention, respectively (Part 5 of Art. 109 Code of Criminal Procedure). On the extension of the period of detention for familiarization with the case, see the commentary to Art. 109 Code of Criminal Procedure.

2.1. It is possible to “parallel” familiarize yourself with various volumes of the criminal case of several accused and their defense attorneys. Literal interpretation of Part 1 of Art. 217 does not allow “parallel” familiarization between victims and accused.

3. For review, the case materials are presented in full (material evidence, upon request - attachments to the protocols of investigative actions), with the exception of information about the identity of witnesses and victims, in respect of whom security measures have been taken in accordance with Part 9 of Art. 166 Code of Criminal Procedure. “Classified” information is contained in a resolution, sealed in a separate envelope in a criminal case.

3.1. In cases of minors, it is possible that the minor may not be presented with part of the case materials that may have an impact on him negative impact. On this, see the commentary to Part 3 of Art. 426 Code of Criminal Procedure.

4. By general rule familiarization of the accused and the defense attorney with the case materials occurs jointly, since the defense attorney provides legal assistance. Their separate familiarization with the case is allowed at the request of either the accused or the defense attorney (but in the absence of objections from the accused). When reviewed separately, different protocols are drawn up in accordance with Art. 218.

5. An investigator familiarizes himself with the case. He takes measures to preserve the case materials. To prevent and suppress attempts to destroy case materials by the accused, an employee of the inquiry agency may participate in this procedural action (which is reflected in the protocol).

6. The investigator determines the procedure for presenting the case materials (which volumes, when and to which of the accused to read; for this, a reading schedule can be drawn up), however, the initiative to study and copy specific information belongs to the accused and the defense counsel themselves. They have the right to repeatedly (but before completing the review as a whole) refer to any of the volumes of the case.

Copying of case materials is carried out at the expense of the accused and his defense attorney (the investigator only provides the materials).

Copies and extracts of information containing secrets protected by federal law are protected in a criminal case and are provided to the accused and defense counsel during the trial. On the types of protected secrets, see the commentary to Part 3 of Art. 183 Code of Criminal Procedure. At the same time, the abundance of all kinds of secrets in practice can nullify the right to copy case materials.

The investigator has the right to take a subscription (remind about the previously given subscription) about non-disclosure of preliminary investigation data (Article 161 of the Code of Criminal Procedure).

7. For restrictions on the rights of the accused and the defense attorney to familiarize themselves with the case, see the commentary to Parts 4-5 of Art. 215 Code of Criminal Procedure.

8. Based on the results of familiarization with the case, the investigator finds out what petitions and statements the accused and defense counsel have. They can be declared before the end of the familiarization process.

Petitions can be addressed to the investigator (then he resolves them), the prosecutor or the court (then they are resolved when the case is received by them). When resolving petitions, the investigator and prosecutor are guided by the requirements of Art. 121-122, 159 Code of Criminal Procedure.

When familiarizing yourself with the case, it is advisable for the defense attorney to file a petition for delivery of a copy of the indictment in accordance with Part 2 of Art. 222 Code of Criminal Procedure. This petition is addressed to the prosecutor, but in order to satisfy it, the investigator must first prepare the necessary copies.

8.1. Requests to supplement the investigation materials are resolved in accordance with Art. 219 Code of Criminal Procedure.

8.2. Other petitions (to change the preventive measure, to terminate the case or criminal prosecution, to change the legal wording of the charges, to allow visits with relatives, etc.) are resolved in general procedure(Articles 119-122, 159 Code of Criminal Procedure).

8.3. To form a list of witnesses, specialists and experts from the defense as an appendix to the indictment (Part 4 of Article 220), the investigator finds out the corresponding desire of the accused and the defense lawyer.

When applying this rule, two circumstances should be taken into account: a) the Code does not require justification for the list of defense witnesses; b) a petition to subpoena previously unexamined witnesses may lead to the resumption of the investigation. For example, the defense calls a new eyewitness to the crime who is able to confirm the innocence of the accused. In this case, there is an incompleteness of the investigation, which the investigator is obliged to eliminate by interrogating a new witness.

Thus, the terms “witness”, “specialist”, “expert” are subject to literal interpretation. That is, the list of persons subject to summons by the defense includes only those who have previously participated in the case (summoned, interrogated, conducted an examination) or whose participation in the case was refused by the investigator. A petition to summon other persons should be considered as a petition to supplement the investigation, considered in accordance with Art. 219.

At the same time, the defense certainly has the right to petition to summon new witnesses, specialists and experts to the court, but this is already a petition addressed to the court and for judicial proceedings.

9. Part 5 of the commented article provides for the obligation of the investigator to explain to the accused the right to petition the court for further order movement of the criminal case.

9.1. The right to have a case tried by a jury with the participation of a jury is guaranteed at the constitutional level (Part 2 of Article 20; Part 2 of Article 47 of the Constitution of the Russian Federation). On the jurisdiction of the court with the participation of a jury, see the commentary to Part 3 of Art. 31 Code of Criminal Procedure.

Until January 1, 2003, the right to a trial by jury is ensured only in those regions where it already exists (Article 8 of the Law on the Introduction of action of the Code of Criminal Procedure).

The main features of proceedings in court with the participation of a jury are: 1) making an unmotivated decision on the issue of the defendant’s guilt by lay judges (jurors); 2) the possibility of imposing punishment in the form death penalty(on the execution of which a moratorium has been imposed); 3) the impossibility of overturning the verdict of the jury due to the discrepancy between the court’s conclusions set out in the verdict and the actual circumstances of the case, established by the court first instance. For details of the consideration of a criminal case with the participation of jurors, see the commentary to Art. 324-353 Code of Criminal Procedure.

On separating the case into separate proceedings in relation to those accused who refused to have the case considered by a jury, see the commentary to Art. 154 Code of Criminal Procedure. If it is impossible to separate the case, the criminal case as a whole is considered by the court with the participation of a jury.

9.2. In addition to the petitions indicated in the commented article, it is advisable for the investigator to find out the position of the accused regarding the jurisdiction of the criminal case by a court of three judges of a federal court of general jurisdiction in accordance with paragraph 3 of part 2 of Art. 30 of the Code of Criminal Procedure and other cases of jurisdiction at the choice of the accused (for example, in accordance with Article 452 of the Code of Criminal Procedure).

Until January 1, 2004, for serious and especially serious crimes, instead of a panel of three judges, a criminal case can be considered at the request of the accused by a panel consisting of a judge and two people's assessors, and without a request - by a judge alone (Article 7 of the Law of the Russian Federation “On the Enforcement of Code of Criminal Procedure of the Russian Federation").

9.3. The accused has the right to submit a motion to agree to the charge brought against him so that his case will be considered in special order, provided for by Chapter 40 of the Code of Criminal Procedure. This petition can be submitted provided that the charge brought by the Criminal Code of the Russian Federation does not provide for a greater punishment than 5 years of imprisonment.

The investigator is obliged to explain to the accused that in this case: 1) conviction may be issued without trial; 2) the imposed punishment will not exceed 2/3 of the maximum possible; 3) the accused will not be recovered legal costs; 4) the verdict cannot be appealed due to the discrepancy between the court’s conclusions set out in the verdict and the factual circumstances of the case established by the court of first instance.

When the said petition is filed by one of several accused, the issue of separating a criminal case should be considered (see commentary to Article 154 of the Code of Criminal Procedure).

The filing of this petition means the mandatory participation of a defense attorney in the case (Article 51 of the Code of Criminal Procedure), therefore, if the accused has not previously used the help of a defense attorney, then his participation must be ensured. In this case, the accused’s request must be confirmed in the presence of a defense lawyer, after consultations with him(clause 2, part 2, article 314, part 1, article 315 of the Code of Criminal Procedure). It follows from this that the defense attorney newly involved in the proceedings must prepare to perform his functions (for consultation), that is, familiarize himself with the investigation materials in accordance with Art. 217 Code of Criminal Procedure.

For consideration of the case in a special manner, see the commentary to Art. 314-317 Code of Criminal Procedure.

9.4. The grounds for holding preliminary hearings must be explained to the accused. About them, see the commentary to Art. 229 Code of Criminal Procedure.

It should be taken into account that such grounds for carrying out preliminary hearing, as petitions to exclude evidence, to return the case to the prosecutor, to suspend and terminate the case may no longer be necessary due to their resolution by the investigator or prosecutor himself. In turn, for the investigator and prosecutor, these petitions are a reason for quality checks the investigation carried out and the elimination of its shortcomings. After supplementing the investigation materials, the rules of Art. 219 Code of Criminal Procedure.

1. Upon completion of familiarization of the accused and his defense attorney with the materials of the criminal case, the investigator draws up a protocol in accordance with Articles 166 and 167 of this Code. The protocol indicates the start and end dates of familiarization with the materials of the criminal case, submitted petitions and other statements.

2. A record is made in the protocol of explaining to the accused his right, provided for in part five of Article 217 of this Code, and reflects his desire to exercise this right or renounce it.

1. A protocol is drawn up for each procedural action to familiarize the participants in the process with the materials of the case in accordance with Art. 216-217 Code of Criminal Procedure. If familiarization continues long time, appropriate entries can be made in the protocol: when familiarization was interrupted and when it was resumed (date and time). This information may be reflected in the familiarization schedule attached to the protocol.

1.1. If, after familiarization with the case, additional investigative actions, then the parties are presented with their results (additional materials). About getting acquainted with additional materials the protocol is drawn up again. In any case, the protocol on familiarization with the case materials must be latest document, preceding the indictment.

2. The protocol is drawn up in compliance with the general rules enshrined in Art. 166-167 Code of Criminal Procedure. See the commentary on them.

3. Special attention The following information should be reflected in the protocol:

A) About the presented case materials (volume numbers, sheets), physical evidence, appendices to the protocols of investigative actions.

B) On petitions for full or partial familiarization with the case, for presentation of a certain volume of the case again, for separate familiarization of the accused and his defense attorney.

C) About copies of documents kept in the case and made by participants in the process that contain secrets protected by federal law (Part 2 of Article 217).

D) On petitions and statements of participants in the process.

3.1. It is advisable to reflect in the protocol the fact of using technical means of copying certain materials.

4. The position of the accused on the use of his rights in accordance with Part 5 of Art. 217 of the Code of Criminal Procedure must be recorded in the protocol.

5. Protocol forms are provided for in Appendices No. 77, 78 to the Code of Criminal Procedure of the Russian Federation.

Schedule provided official form protocol of familiarization with the case materials, installed by Applications No. 77, 78 to the Code of Criminal Procedure.