domestic legislator, trying to sustain the right course in the fight against crime at saving energy, time and resources, integrated in Procedure Law a special procedure for the adoption of the court decision provided that the defendant agrees with the charges against him.
Special order: the concept and essence
This is a special, specific production passing in the first court.It is the specific legal relationship and the activities of all its members, with the leading and decisive role of the world's or district court to establish the presence or absence of legal and factual basis that will be found guilty of a crime of the defendant in a shortened procedure of judicial investigation and the adoption of other decisions.
Naturally, the features which has a special procedure for the trial provided by law, extend not only to the process of the court, but also on the stage of preliminary investigation.In some sources indicate that the main tasks assigned to the considered production, the following:
- simplifying nature of the proceedings by the law expressly stated in the criminal cases;
- acceleration of criminal proceedings in judicial stages of production after the prosecutor's office criminal case referred to the Court;
- decrease workload on the judges of the district courts and the world.
absolutely unacceptable use of the practice adjudication of criminal cases under special circumstances, where the accused person is a minor or mentally incompetent.
Grounds for application of a special order
Criminal Procedure Code of the Russian Federation in the first paragraph of Article 314 establishes the right of the accused, if the consent of the victim and the prosecutor (public or private) in the case, to declare agreement with the charges against him and request thatthat the sentence was passed without implementation of the trial.It applies only to those offenses for which the punishment of the Criminal Code does not exceed the period of ten years imprisonment.
grounds for the criminal case by a single judge or collegially in a special manner is sufficient evidence to support the validity of the charges.This is indirectly confirmed by the judge at the time of issuance of the sentence.It should come to the conclusion that the indictment, the defendant agrees with that, legally and supported by evidence, which includes the criminal case (Article 316 CCP).
use of special-order conditions
- applications made with the consent of the accused by the prosecution that it presented should be formal.
- accused must (if he so wishes) to file a petition asking for a sentence without a decision of the proceedings before the court in the presence of counsel.The legislator also establishes for this special period of time (Article 315 Code of Criminal Procedure), ie at a time when there is familiarization with the materials of the criminal case or during the preliminary hearing in those cases where it is mandatory.
- 3Litso, who is accused of committing a crime must be aware of the nature and possible consequences of their application if there will be a special procedure for the use of the trial.
- private or public representative of the prosecution must agree not to voice objections.
- term of imprisonment for a criminal offense, the commission of which the accused person, shall not exceed ten years.
- Reasonable nature of the charge and confirm the evidence collected in the case.
- person must understand the essence of the accusation against him and agree with him completely, with each "letter" in the indictment.
- should be no grounds for dismissal.
Function and consideration of the criminal case: the procedure for preparing
judge in criminal cases, which filed a petition, must make sure that the defendant was fully aware of the nature and essence, and the consequences of its request,and that it was done on a voluntary basis and only after prior consultation with counsel.These issues are to be installed in preparation for the trial.
petition to approve a special procedure for the trial is not binding for the court.If it is found that the law violated the approved requirements for filing petitions against this or that speaks the victim or the prosecutor (public or private), it will be denied.The Court thus can assign a trial in general, normal.
court session: order of
consideration of criminal cases by the courts in a particular order is regulated by Article 316 Code of Criminal Procedure.But it is necessary to bear in mind some of the features.The law does not clearly defined rules concerning the composition of the court, who will conduct the proceedings.In theory it is possible that the defendant said two petitions.The first request a review in a special manner, and the second - on the collective hearing, composed of three federal judges, as in the conduct of this composition is the prerogative of the resolution of criminal cases of serious crimes and particularly serious (Clause 3 of the two parts of Article 31 of the Code of Criminal Procedure).However, in reality, these rare situations.Consideration of criminal cases by the courts in a particular order can be applied according to the first part of Article 31 of the Code of Criminal Procedure magistrates.
trials are conducted in a mode that is set to the trial court for consideration and settlement of the criminal case, that is, in general, in addition to a number of features.Firstly, mandatory and necessary is the participation of the accused and his counsel or attorney.In this case, not the rule, which establishes the Criminal Procedure Code of the Russian Federation in the fourth part of Article 247. It speaks of the possibility to hold a hearing for a small or medium gravity without the participation of the accused if his hand was stated by the petition.Also be sure to participating private or public prosecutor, he appears at the beginning and sets are charged with.
Next, the court interrogated the defendant in terms of clarity of what he is accused of, his or her consent to this.Ask a question about maintaining the previously announced request.If provided with the presence of the victim, he asked a similar question.In his absence, the judge must make sure that he was notified of when the trial will take place (Code of Criminal Procedure), namely, the time, place, and in the absence of motions with his hand to the request, the defendant claimed.
Under this procedure, a study of the accuracy of the procedure as a general rule not be held.This can be done only in respect of the circumstances that give an idea of the identity of the defendant, as well as aggravating or mitigating punishment.The fact that he agreed with the prosecution that it presented, does not mean that the court a criminal case and the evidence contained therein, less studied carefully.
sentence and his appeal
guilty verdict shall be passed only if a judge has a firm inner conviction of the guilt of the defendant.It should not be unfounded, and based on the assessment of the evidence contained in the criminal case.Consideration of criminal cases by the courts under special circumstances allows a softer sanction, the amount may not exceed two-thirds of the maximum term of the most severe punishment, which established the Criminal Code for the crime.
conviction descriptive and motivation part should contain a statement of fact and an indication of a criminal assault on the charge of committing it, in which the defendant had agreed to, and the final conclusions of the court on the implementation of the terms of its resolution in the mode of trial by special order.Analysis of this evidence and its evaluation is not recognized.
the convict has the right to appeal the conviction on appeal, except for the base, designated in the first paragraph of Article 379 Code of Criminal Procedure (the conclusions set out in the judgment of the court, in fact do not correspond to the circumstances of the criminal case).
possible to decide otherwise
consideration of criminal cases by the courts in a special manner provides for sentencing, which according to the general rules is guilty.But at the same time, in the 40th chapter of the Criminal Procedure Code of the Russian Federation there are no rules prohibiting to make other decisions.However, if it is not required to investigate the evidence and the circumstances of the case (actual) is not changed.For example, the decision to change the qualification of the offense (only in the direction of leniency), the termination of criminal proceedings due to the expiration of the limitation period, changes in the criminal law, reconciliation with the victim, an act of amnesty or as a result of failure of the public prosecutor of the charges.
If you want to research evidence to decisions of acquittal, the judge shall order to stop production of a criminal case in a special order and is assigned to it by the general rules.
cooperation agreements (pre-trial)
This refers to a special contract between the defense and prosecution in which they agree on the conditions of responsibility of the accused (suspect), depending on their actions after the time when the criminal case orindicted.According to the Criminal Procedure Law, the petition requesting to enter into a cooperation agreement (pre-trial), gives the suspect (or accused), always in writing, signed by the prosecutor or the defense counsel.It can be stated in a term beginning on the date of prosecution, and up until the time that will be announced on completion of the preliminary investigation.It should include guidance on what actions the accused or the suspect agrees to make to facilitate the investigation of a crime, exposure of other accomplices, tracing the missing property.Examines the request of the prosecutor within a period not exceeding three days, and then makes a decision on approval or rejection.
preliminary investigation carried out in accordance with the Code of Criminal Procedure (chapters 22-27 and 30) with the specifications set forth in Article 317.4.After his graduation criminal case is referred to the prosecutor, who, along with the indictment makes presentation.In the latter, he points on the performance of obligations by the accused, which he took over.
After the case goes to court, along with the representation (that is the reason, according to the Code of Criminal Procedure, Article 317.6), the question of whether to establish a special procedure for the consideration of the criminal case.
tasks under a special procedure of the case
- Guaranteed protection of the rights and interests of all involved in the process of the criminal case of persons under reducing procedural tools that are used to establish the circumstances under which the crime was committed.
- justified and lawful punishment for a person to admit his guilt, the court in this case does not establish the immediate circumstances of the crime.
- significant reduction in terms of the review and investigation of the case.
- Reducing the time of detention in the case of application of this measure to the defendant.
more thorough and meticulous examination of the courts complex, the bulk of criminal cases in relation to the application of the procedure which is unacceptable "special order" at the expense of prompt and rapid resolution of cases of the category.
Positive aspects "special order»
Strange as it may seem, but not so much.The first and most important - it is the fact that the accused, when disagree with accusations brought against them, are able to ease their plight by at least 1/3 of the most severe punishment provided for the article, which qualifies for the crime committed.For example, if you committed a crime, for which the upper limit of 6 years in prison, then the "special procedure" the maximum term will not exceed 4 years.The second advantage - the rapid examination of the case in court, it simplifies, reduces the time of the criminal case, as well as making a number of special moments in the production at other stages of the criminal process.And the third, plus (for the government) - to save the procedural and material resources.
- Firstly, have to completely disagree with everything that impose, in full, with each letter of the indictment.Only then it is possible to be tried within a "special order".
- Second, if the person is not in accordance with the conviction, then it has no right to appeal in terms of factual circumstances.In other words, the convict will not be able to prove he did not commit the crime.Appeal can only be any breach of a procedural nature taken by the court, as well as the severity of the sentence, citing his injustice.
- And, thirdly, the full admission of guilt does not imply agreement with the civil suit if he, too, was served.If you agree with him in a special manner, the subsequent appeal against the sentence in part agree with the plaintiff's claim is rejected.
In any case, we must remember that to this procedure for filing petitions to force nobody has the right.This is a purely voluntary matter.
The practice of trial under the special procedure is not new and is widely used in the world, such as the US, Israel, India and some European countries.In Russia, he introduced relatively recently, in 2009.How named the Criminal Law Institute, he has quite good prospects, but, of course, requires further development and improvement.