Art. 124 and Art. 125 Code of Criminal Procedure. The decision in accordance with Article 125 Code of Criminal Procedure

Domestic legislation provides an opportunity for individuals to appeal decisions taken in criminal proceedings. Actors and citizens whose interests affect the acts passed may act as subjects of law.

Claims Considerations

They are established by Art. 124, 125 Code of Criminal Procedure. These articles challenge the actions / omissions, as well as decisions:

1. Inquirer.
2. Investigator.
3. The body of inquiry.
4. The prosecutor.
5. Head of the Investigation Department.
6. Head of the interrogation unit.
7. Ships.

Art. 124, 125 of the Code of Criminal Procedure apply to:

1. Violations of reasonable timelines in pre-trial criminal proceedings.
2. Decisions, inaction / actions of officials, refusal to initiate, termination of proceedings - that is, procedures affecting the interests of participants and other persons, causing damage to their freedoms and rights, creating obstacles to justice.
   

Consideration of applications by the head of the investigating authority, prosecutor

The procedure in accordance with which claims are being processed by these officials is established in Art. 124 Code of Criminal Procedure. The head of the investigating authority, the prosecutor must consider the application within three days from the date of its adoption. In some cases, if you need to demand certain materials or take other measures, the period of the claim can be increased to 10 days. This must be notified to the applicant. As a result of the review, the official makes a decision on partial or full satisfaction of the complaint or on refusal to do so.

A comment

Upon satisfaction of the complaint drawn up and sent in the manner provided for in part 2, Article 123 of the CPC, the decision should contain instructions on the procedural actions that must be performed in order to expedite the consideration of the case materials. In addition, it sets the terms for their implementation. The provision of article 124, part 3, in the constitutional legal interpretation does not allow the prosecutor, the interrogating officer, the court, the investigator to refuse to study and evaluate the arguments that are given in the application (application) under consideration . At the same time, when making the appropriate decision, these officials are obliged to motivate it by pointing to the specific and sufficient grounds in accordance with the principle of reasonableness, according to which the justification was rejected or accepted. The applicant must be informed of the approved act, as well as the procedure for its subsequent appeal immediately. In cases stipulated by the Code, the investigator, the interrogating officer may challenge the decisions, omissions / actions of the head of the unit or the prosecutor to a higher official.

The complaint in accordance with Article 125 Code of Criminal Procedure

It is served on decisions to refuse to institute proceedings, to terminate criminal proceedings:

1. Head of Investigation Department / Authority.
2. Inquirer.
3. Investigator.

Other actions / omissions that may infringe on the freedoms and rights of interested citizens may also be filed with a complaint. Art. 125 of the Code of Criminal Procedure of the Russian Federation establishes that the claim should be directed to a district court located at the place of the preliminary investigation. The subject of law is the applicant, defense counsel, legal representative. Claim under Art. 125 of the Code of Criminal Procedure of the Russian Federation can be sent directly to the court or through the prosecutor, the head of the investigating authority, investigator, interrogating officer.

Important point

When contesting the decision of Art. 125 of the Code of Criminal Procedure of the Russian Federation allows the representative of the victim to participate in the consideration of the application for inaction / action or the decision of the prosecutor, investigator, inquiry officer. It will not matter if he has previously participated in the case or not. The representative must have the appropriate authority, confirmed in writing.

Court Objectives

Application filed under Art. 125 of the Code of Criminal Procedure of the Russian Federation (a sample document is presented in the article) should contain an accurate and clear statement of circumstances with which the author does not agree. The court, in turn, on the basis of the above arguments, checks the validity and legality of decisions, inaction / actions of officials. The norm establishes the period during which the claim for the decision is examined. In accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, it amounts to no more than 5 days. The calculation of days starts from the date of receipt of the application.

How is the appeal?

Art. 125 of the Code of Criminal Procedure establishes that the consideration of the claim is carried out in open session. An exception is cases provided for in Article 241 of the Code. The hearing involves the applicant, legal representative / defense counsel, as well as other citizens whose interests were affected by the contested decision or the conduct of the above officers. The failure of the parties to be notified in a timely and proper manner of the time and place of the meeting will not be an obstacle to the consideration of the claim. At the beginning of the hearing, the judge announces which application will be examined, is presented to the people who appear, and explains to the participants their duties and rights. After that, the applicant is given the right to substantiate his complaint. He gives relevant arguments, presents evidence. After his speech, other persons who came to the meeting are heard. The applicant has the right to make a replica. According to Art. 125 of the Code of Criminal Procedure, according to the results of the consideration of the claim, the court makes a decision. In accordance with it:

1. The action / omission or act of an official is recognized as unreasonable or unlawful. In this case, under Art. 125 of the Code of Criminal Procedure, the court will oblige the relevant employee to eliminate the violation.
2. The claim will be dismissed.
   

Copies of the decision adopted in accordance with Art. 125 of the Code of Criminal Procedure, should be sent to the head of the investigating authority, the prosecutor and the applicant. Acceptance of a claim is not a ground for suspension of the contested action, as well as enforcement of the decision. As an exception and if necessary, the judge, prosecutor, investigator, inquiry officer, head of the body of inquiry / investigation may suspend the appealed process .

Ways to submit applications

The complaint can be filed:

1. Personally, in the office of the investigative body, prosecutor's office, court.
2. By telegraph / mail.
3. Through the investigating officer.

Legislation allows the expression of a claim not only in writing, but also orally. In the latter case, it must be recorded in the protocol. This document, like a written complaint, is sent to the head of the investigating authority or to the prosecutor within 24 hours. The claim must be signed not only by the applicant, but also by the employee conducting the investigation. When sending a protocol and a complaint to higher persons, the latter must attach his explanations. A period of 10 days is set for the prosecutor to consider the application. This period is considered the maximum. It cannot be renewed under any circumstances.

Note

The content of Art. 125 of the Code of Criminal Procedure is based on constitutional provisions. In accordance with Article 46 of the Basic Law, every citizen is guaranteed judicial protection of his freedoms, interests and rights. Thus, unlawful actions / omissions, decisions of state authorities, municipal government, public organizations, as well as employees of the corresponding rank can be challenged in court. The provisions of the article in question apply only to those circumstances that occurred during the pre-trial proceedings. In particular, we are talking about the stage of initiation of proceedings, a preliminary investigation. Not only a citizen, but also a legal entity can act as an applicant.

Additionally

In the comments to Art. 124 of the Code of Criminal Procedure it is indicated that:

1. The prosecutor must prosecute the state on behalf of the state . At the same time, his authority includes supervision of the implementation of the procedural activities of the inquiry / investigation units.
2. The prosecutor examines and resolves complaints about the behavioral acts of officials involved in criminal proceedings, in accordance with the requirements established in the relevant Federal Law and Code of Criminal Procedure.
3. The accepted claim is investigated within three days. After this period, the prosecutor must make a decision. Part 6, Art. 148 of the Code, the time limit for considering certain applications for the decision of the investigator or interrogating officer to refuse to start criminal proceedings and the adoption of the relevant act is limited to 48 hours.
4. If it is not possible to resolve the claim in a three-day period, the prosecutor has the right to increase it to 10 days. Such a situation may arise if the materials received are not enough to make an objective decision. When extending the period for consideration of a complaint, the person who submitted it must be duly notified.
5. The period during which the claim was resolved shall be calculated from the date of its receipt by the prosecutor's office until the day the response is sent to the applicant.
6. If the application is recognized as justified, the prosecutor must take measures to eliminate violations of the law. In this regard, his decision may contain relevant instructions to the official on specific activities and actions that he should carry out, and a deadline for this.
   
7. A partial or complete refusal to satisfy a complaint must necessarily have a reasoned explanation, with references to legislative norms, evidence and other materials.
8. The applicant shall be notified in writing of the decision taken.
9. When the complaint is satisfied, the prosecutor is obliged to clarify the possibility of going to court or rehabilitation to restore the infringed rights.

The decision of the prosecutor may be appealed by a higher official.