Art. 148 of the Code of Criminal Procedure is devoted to the procedure for the examination of allegations of crime. It describes the procedures for criminal justice officials and describes the possible actions of the applicant. We must not forget about its relationship with other provisions of the Code.
General concept
Art. 148 of the Code of Criminal Procedure describes the actions of participants in a criminal process when a decision is made to refuse criminal prosecution.
Refusal is the completion of a whole stage of the criminal process, starting from the adoption of documents from the applicant and ending with the adoption of a negative or positive decision.
The actions of law enforcement agencies at this stage are carried out outside the framework of the criminal case, and the powers of the inspectors are not sufficiently indicated.
Art. 148 of the Code of Criminal Procedure regulates the execution of the results of verification of a statement of crime.
The value of the institution of failure
Groups of norms devoted to the refusal to open criminal cases are aimed at screening materials that do not contain a reason or reason to start a full-fledged production. After all, an unreasonable investigation leads to a diversion of the forces of investigators and investigators from cases that really need their attention.
The disclaimer is serious for the future. Any action on this material is no longer possible and the applicant will not be able to file an application again against the same person for the same actions. The only way is to cancel the decision itself.
Reasons to refuse
Art. 148 of the Code of Criminal Procedure refers to other provisions of the law, in particular, Art. 24 of the CPC, ordering to investigate whether there are no grounds for opening a case.
What is considered a reason for refusing to open a criminal case?
- lack of composition;
- absence of a crime event;
- a statement was made by a person who does not have the right to do so;
- death of a potential accused;
- the applicant missed the statute of limitations;
- cancellation of liability by excluding the relevant article from the Criminal Code
If production was started, despite the above circumstances, it is terminated as soon as they become known.
No composition
The lack of composition means that there are not all elements of a criminal act to hold a citizen accountable. For example, he did not reach the minimum age necessary or his mental state did not allow him to realize the danger of his misconduct.
Part 1, Art. 148 of the Code of Criminal Procedure permits the application of this provision when considering applications for a specific person. If an application is submitted without indicating a specific person, the link is not acceptable.
No crime event
This means that no socially dangerous act or omission has been committed. There are no formal reasons for the actions of the person to whom the application was received.
Incomplete Person
For almost all articles of the Criminal Code, proceedings begin with a statement from a person who somehow witnessed a crime that has been committed or is being prepared.
If we are talking about cases of private or public-private prosecution, they are instituted solely at the request of the victim.
The law at the same time gives the right to the head of the investigation department, with the consent of the prosecutor, to open proceedings in exceptional cases when the victim is unable to defend himself due to poor health, age, and dependence on the suspect.
Where does it all begin
Art. 144-148 of the Code of Criminal Procedure describes a set of actions by investigators and interrogators. Within the competence, applications are accepted and checks are carried out on them. What is included here?
- sample collection;
- demand for materials;
- appointment of expertise;
- research expert opinion.
Actively involved employees of operational units.
The law distributes the categories of criminal cases between the investigative services of different bodies: the Ministry of Internal Affairs, the Investigative Committee and the FSB.
If the application with the materials falls into a body that does not investigate cases under the relevant articles of the Criminal Code, measures are taken to transfer all materials to the competent structure.
Of course, police and other law enforcement officers refuse to accept statements under “alien” articles, but they are obliged to do this and take measures to preserve the place and traces of the crime. This is evident from a joint review of Art. 145 and 148 Code of Criminal Procedure.
Reluctance to engage in someone else's work is manifested even when citizens are mistaken with territorial jurisdiction. For example, an application should be referred to a neighboring department or department.
Application of results
Operational-search activity - public and secret activities of operational services aimed at identifying or solving crimes.
The work performed by operational services has its own specifics. At the same time, evidence obtained by them can be used in criminal proceedings subject to procedural guarantees. For example, penetration into housing was carried out by court order, control and recording of telephone conversations were also carried out with the permission of the court.
This is directly referenced in the law "On the operational-search activity."
If there have been violations, it is believed that the evidence was obtained illegally, in addition, criminal cases may be brought against employees.
The materials of the ARD are attached to the materials of the audit based on the report of the employees of the corresponding service.
The investigator or the inquirer shall attach the materials to the ORD by their decision, after which access to the applicant and his representative and other participants in the case is provided in accordance with the norms of the CPC.
The role of verification in criminal proceedings
At the same time, the actions of officials are not sufficiently regulated and they are not based on the law, but on by-laws. At the verification stage, an investigation is actually ongoing, although formally this is not so. All this leads to complaints to the prosecutor or the court. And supervisory authorities often agree with such complaints.
So, the procedure for checking financial documents, conducting audits is regulated by regulations that are not directly related to law enforcement.
Materials obtained during the audit are attached to the case subject to the right to defense. If he was violated, the results of interrogations are unacceptable.
If an examination was carried out at the stage of initiating proceedings, the defense party has the right to ask for a new examination and the investigator or inquiry officer is not entitled to refuse this.
Legal nuances
One of the rights of the prosecutor's office is to send documents for decision on the initiation of criminal proceedings. If there is no reason for this, the consent of the head of the investigation department is mandatory.
Along with the refusal to open a criminal case, the issue of false denunciation is resolved according to part 2 of art. 148 Code of Criminal Procedure. As a rule, cases of false denunciations hardly open. This paragraph affects statements about specific people.
Reporting to Applicant on Results
It is known that part 4 of Art. 148 of the Code of Criminal Procedure of the Russian Federation obliges the investigator or inquiry officer who made the decision to forward the decision to the applicant no later than one day later, in fact, the notification is provided within a month. It all depends on the degree of workload of a particular person.
What does the ruling look like?
- date, city or location of the inquiry officer or investigator;
- descriptive part;
- motivation part;
- operative part;
- Name, position and rank of official.
- the signature of the inquiry officer or investigator is put.
The narrative sets out who addressed what requirements and arguments.
The reasoning part shall indicate for what reasons the author of the official does not agree with the applicant's arguments.
If the refusal is unlawful, then the text most often contains the wording “for the lack of corpus delicti”.
The decisions are drawn up by the template method and in their preparation mistakes are constantly made, which are enough to achieve cancellation even by formal signs.
In the operative part, reference should be made to Part 5 of Art. 148 of the Code of Criminal Procedure of the Russian Federation: a refusal may be appealed against by a prosecutor, the head of the investigative department or in court.
Often, employees deliberately miss this point, trying to complicate the appeal procedure.
Appeal mechanism
The control mechanism is laid down in the law: all decisions with the attached materials are sent to the prosecutor's office for verification. The applicant is also entitled to write a complaint to the prosecutor.
For almost all decisions of the investigation or inquiry, the prosecutor's office takes a positive decision. Having received the complaint, the prosecutor can change his mind.
When canceling the decision, he must explain the reasons for the cancellation and indicate what actions the person conducting the investigation should take.
Similarly, there is departmental control over criminal proceedings.
The superior is also motivated by his decision to cancel and gives instructions on how to eliminate the shortcomings.
The court considers the material solely on the initiative of the complainant. The court decision has priority over the decision of the heads of the investigation departments and the inquiry and the prosecutor's office. A court order is annulled only by a higher court; no other body has the right to do so.
The law does not limit citizens in terms of appealing a refusal, but delaying can lead to a loss of meaning in repealing an illegal order.
Considering the issue of refusal at the beginning of criminal proceedings, it is necessary to take into account the close relationship of Art. 144, 145, 148 Code of Criminal Procedure.