In today's article, let's talk about the procedure for bringing charges. The principles on which this procedure is based are enshrined in the CPC. In general, the whole process consists of a set of sequential actions. Let's take a closer look.
General information
The procedural procedure for bringing charges is based on the following principles:
- Compliance with jurisdiction.
- Urgency.
- Mandatory subjective composition.
The procedure itself involves the following sequential steps:
- Verification of the identity of the accused and the defense counsel.
- Decision making.
- Clarification of the charges.
- Explanation to the accused of his rights.
- Fixing the fact of familiarization with the essence of the charge in the decision.
- Presentation of copies of the procedural document to the participants in the case.
- Addition / change to the content of the decision.
Procedure and timeframe for indictment
According to the Code of Criminal Procedure, charges are brought within 3 days from the date of the decision. However, the law provides for exceptions. So, the time limit for bringing charges can be increased. This requires the presence of objective circumstances. It can be:
- non-appearance of the accused or his lawyer;
- inability to call a citizen due to the unknown location;
- short-term facial disease;
- finding the accused in a hospital for a forensic psychiatric examination;
- force majeure circumstances (floods, catastrophes, etc.).
In accordance with the current procedure, within the established time period, charges are brought against a citizen in the presence of a defense counsel. The exception is the case provided for in paragraph 1 of paragraph 1 of Art. 51 of the Code of Criminal Procedure - a person’s refusal from a lawyer. If previously the defender did not participate in the case, in order to comply with the procedure for bringing charges, the defendant is explained his rights to the defender. If the subject of the crime is a minor, the presence of his legal representative must be ensured. If necessary, a translator is also involved in the process. The content of the decision must be translated into the native language of the person or the language that the subject speaks. Copies of the document must be handed over to the accused and filed to the case.
Notification
The procedure for notifying the accused of the day of indictment is enshrined in article 172 of the Code of Criminal Procedure. Advance notice to a citizen is necessary so that he can prepare and receive the assistance of a lawyer.
A subject in a pre-trial detention center is notified of the day of indictment in the same remand prison. The management of the place where the citizen is kept should ensure his participation in the procedure. According to the procedure for bringing charges, the administration of the institution provides special premises or transfers a person to an escort to carry out the following procedural actions.
Notification and calling of a person under the age of majority are made through his legal representatives or the management of the place of work / study. The grounds and procedure for indictment of a person serving in the Armed Forces is enshrined in Art. 188 Code of Criminal Procedure. According to the norm, a citizen is notified through the leadership of a military unit.
Proof of identity of the accused
It can be carried out not only with a passport or other document. As practice shows, these papers are often falsified or completely absent. An identification may be made to verify identity. In addition, an identity card is carried out with words or in other ways, including visually, if the investigator has already confirmed the identity (for example, during the interrogation of a subject involved as a suspect).
If there are grounds and the procedure for bringing charges is followed, the content of the decision may be changed. This is allowed in the case when the accused is actually not the person whose information is specified in the decision. Changing the content of the document is carried out according to the rules enshrined in part 1 of article 175 Code of Criminal Procedure.
The procedure for bringing charges provides for the possibility of declaring a decision by reading the text aloud by the investigator or the accused. Moreover, the defense has the right to demand a free copy of the document.
Clarification of the charges
This responsibility rests with the investigator. Its non-compliance is recognized as a violation of the procedure for bringing charges. At the same time, the fulfillment by the investigator of the requirement to clarify the essence of the decision does not exempt the defense counsel from fulfilling the obligation to provide assistance to the client. Otherwise, he may be challenged.
The investigator must explain to the citizen the essence of the charge, the legal significance of the circumstances imputed to him, and also explain the meaning of the terms and wording. To comply with the procedural procedure for bringing charges, the investigator must be guided by the provisions of Article 47 Code of Criminal Procedure. The employee must explain to the citizen his rights and obligations. The latter include turnout, assistance to the investigation, etc. In addition, when implementing the procedural procedure for bringing charges to a citizen, the consequences of failure to fulfill established obligations are explained.
In the decision, the investigator must record the fact of the implementation of the above actions. Under the relevant entries, the accused and the defense counsel affix their signatures. In this case, the investigator must prevent a possible refusal of the citizen from this. The clerk needs to explain to the accused that his signature does not constitute a guilty plea, but acts as an identification of the fact of indictment. In accordance with the procedure provided for in Articles 172 and 167 of the Code of Criminal Procedure, in the event of a person's refusal to sign the resolution, an appropriate entry is made in the document.
Nuances
A copy of the decision shall be transferred to the defense counsel, the accused and the prosecutor after calling the suspect. However, it is not always possible to comply with this procedure for bringing charges. In absentia, by law, you can make a decision and send it to these entities. Such a situation is possible if, for objective reasons, it is not possible to file a charge within three days. In accordance with Art. 42 of the CPC, the subject recognized as a victim has the right to know about the charge. Consequently, he needs to send a copy of the decision. For this, the victim writes a statement.
Due to the fact that the preliminary investigation is not yet completed, the process of collecting and analyzing evidence is still ongoing, the testimony of the accused himself has not yet been received and verified, the investigator’s conclusions about the person’s involvement in the commission of a specific crime are not final. It follows that the decision of the authorized employee may be based on unverified facts. The premature formulation of conclusions may entail the involvement of an innocent person as an accused and, consequently, causing harm to him.
However, if conclusions are made at the end of the preliminary investigation, this will lead to a violation of the defendant's rights to defense. An entity in respect of whom sufficient evidence has been collected to bring an indictment, but issues related to the procedure for attracting him in an appropriate status have not been resolved, throughout the investigation, he will be unable to use the rights of the accused, enshrined in law.
Call citizen
In practice, many questions arise regarding the procedure for indictment and interrogation of the accused. A conversation with a citizen is of great importance both for himself and for the investigator. Interrogation is allowed only after observing the procedural procedure for bringing charges. The grounds and circumstances confirming the need for its holding are fixed in the resolution.
During the interrogation, the investigator must establish the person’s attitude to the prosecution, verify the correctness of the conclusions he made, and also obtain information on other circumstances indicating additional facts of the commission of criminal acts by the accused or persons not yet held criminally liable.
In order to comply with the procedure for bringing charges in criminal proceedings, it is necessary to check all the circumstances related to the involvement / non-involvement of a person in an unlawful act. In this regard, the explanations of a citizen who denies guilt or points to facts mitigating responsibility are of great importance. In such a situation, the investigator gets the opportunity to carefully check everything that has been said by the subject and give them an objective assessment, based on the totality of the evidence collected. All this means that interrogation of a person is one of the means of realizing the right to defense, enshrined in the Constitution. At the same time, it must be taken into account that giving explanations / testimony is a right, and not an obligation, there may not be any interrogation at all.
In accordance with the current procedure, the indictment is preceded by a person's call for an explanation. At the same time, before interrogation, the citizen should be given the opportunity to talk in private with the defender. An explanation may be given without a lawyer if the accused refused him. An exception is cases of mandatory participation of a defender. It is, in particular, about:
- cases involving minors;
- cases when a citizen is not able to independently exercise his right to protection;
- the likelihood of imposing a sentence of imprisonment for a term of more than 15 years or life imprisonment;
- jury trials;
- cases where the accused seeks a sentence without a trial.
Interrogation
In contrast to the procedure for bringing charges, the rules for talking with a citizen appear to be clearer. If exceptions are permissible in the first case, then the interrogation is carried out according to a strictly specified scheme. So, first of all, the investigator must find out whether the citizen pleads guilty, whether he wants to testify on the merits of the charge. Meanwhile, according to a number of lawyers, such an order violates a person’s right to defense. Experts believe that it is necessary to begin the interrogation with a proposal to a citizen to tell about circumstances known to him. If the subject speaks of facts that are clearly irrelevant, he needs to be told about it. The investigator may ask questions at the end of the story to clarify and supplement the testimony. Moreover, questions should not be suggestive.
In accordance with the requirement of Art. 173 of the Code of Criminal Procedure, the interrogation must be carried out immediately after the indictment. This requirement forces the accused to comply, regardless of his will. According to S.I. Victorsky, a citizen should be given the right to choose: whether he wants to testify or prefers to "remain silent." In this case, the exercise of his rights is ensured. To implement this in practice, it is necessary to adjust the wording of Art. 173 Code of Criminal Procedure. S.I. Victorsky proposes to state the norm as follows: “After the charge is brought, the investigator offers the citizen to tell everything that he knows about the case. If the subject refuses, then a record is made of this in the protocol. ”
Repeated interrogation of a person who refused to testify on the same charge is possible only at his own request.
Important points
Despite the fact that the prosecution has already been charged, the collection of evidence in the case continues. During the investigation, the initial findings of the investigator may not be confirmed, at least to the extent that they were previously recorded in the decision. A slightly different assessment of the evidence is possible, the legal signs of action may change, the need for the application of another criminal norm may arise. All this often leads to the correction of the conclusions of the investigator and entails the introduction of amendments to them. In this regard, the charge during the investigation may be supplemented and changed.
If there are grounds for changing the charge, the investigator, on the basis of Art. 171 of the CPC, must make a new decision and present it to the participants in the process.
If during the investigation some conclusions are not confirmed, the case in the relevant part shall be dismissed. To do this, the investigator makes an appropriate decision and notifies the participants.
These standards are based on the idea that during the preliminary investigation, on the one hand, any changes to the content of the charge are allowed, and on the other, the accused must be aware of any adjustments before the investigation is completed. All this stems from the need to establish objective truth, which, in turn, helps to ensure the realization of the right to defense against charges, which can be clarified during the investigation.
Rights of the accused
They are referred to in Art. 47 Code of Criminal Procedure. A citizen endowed with the status of an accused has the right:
- To know and understand what exactly he is accused of. To do this, a copy of the decision is given to him and the contents of the document are explained.
- Get copies of all procedural papers, including on the application of preventive measures.
- To object to the accusation, to give explanations and testimony or to refuse it.
- To declare challenges, petitions.
- Present evidence.
- Explain / testify in the language he speaks.
- Use the services of a lawyer, including for free.
- Have confidential meetings in private with a lawyer, including before the first interrogation, not limited in time.
- Participate in investigative measures carried out at his request or at the request of counsel, with the permission of the investigator.
- To get acquainted with the content of the decision on the appointment of forensic medical examination, to formulate questions for the expert, to get acquainted with his conclusion.
- Make copies of the case materials (at their own expense), write out information in any volume.
- File complaints about inaction / actions, decisions of the inquiry officer, prosecutor, investigator, court, participate in their consideration.
- To object to the completion of proceedings on the grounds established by Art. 27 (part 2) of the CPC.
- Participate in court hearings of the first, second, supervisory (cassation) instances, in considering the issue of applying preventive measures to a person.
- Familiarize yourself with the contents of the trial record and submit comments on it.
- Appeal against rulings, decisions, sentence and receive copies of disputed decisions.
- Receive copies of complaints brought in the case, file submissions and objections to them.
- Take part in the consideration of issues related to the execution of the sentence.
- Carry out protection in other ways and means not prohibited by the CPC.
It should be noted that participation in the process of a legal representative or defense counsel cannot be a reason for infringing on any rights of the accused.
Waiver of a lawyer
The ability to declare it is enshrined in Art. 52 Code of Criminal Procedure. The norm establishes that the accused can refuse the defense counsel at any stage of the criminal proceedings. To do this, he needs to write a statement. The refusal of a defense counsel may be solely at the initiative of the accused / suspect.
If a citizen declares this during the course of the investigative action, the corresponding record must be recorded in the protocol.
Refusal from the defense counsel does not prevent the accused from further petitioning for his involvement in criminal proceedings. Moreover, the admission of a lawyer does not entail the repeated fulfillment of actions already performed by this moment.
Grounds for granting a citizen the status of an accused
The material basis is evidence. They should be enough to make a decision. The procedural basis is the presence in the case file of one of the following documents:
- indictment - if the investigation is carried out in the form of an inquiry;
- decisions on bringing the subject in the status of the accused - if the investigation is conducted in the form of a preliminary investigation.
The procedural statuses of the accused and the suspect are very similar. This is due to the fact that these citizens, according to preliminary information and conclusions, committed an unlawful act and therefore are prosecuted. However, it must be taken into account that the suspect is a subject participating in the production for a short period of time. In this status, a person can be under certain conditions for up to 30 days.
The accused, in turn, is recognized as one of the key participants in the proceedings. Due to this, his status is wider and more extensive than the procedural position of the suspect.