The judicial power in the country is exercised through criminal, administrative, civil and constitutional proceedings. This provision is established in Art. 118 of the Basic Law of the Russian Federation. The protection of citizens' rights in the framework of legal proceedings covers many public relations. In this case, the norms of various legal sectors are used.
Legal personality
The ability to go to court is determined by the existence of legal and legal capacity. Within the framework of the latter, a person acquires legal opportunities and bears responsibilities. Legal capacity is recognized by all organizations and citizens equally. It is expressed in the opportunity to participate in procedural relations. Legal capacity is regulated by Art. 37 GIC. It consists in the possibility of the subject through the exercise of his actions to exercise the rights, bear duties, entrust his representative to the consideration of cases. Full legal capacity arises in persons upon reaching adulthood.
Legal capabilities of entities under the age of 18
The legal interests, freedoms and rights of minors 14-18 years of age, and persons of limited legal capacity shall be protected by their representatives in the framework of legal proceedings. They are:
- Parents.
- Guardians.
- Adoptive parents.
- Trustees.
- Other persons with relevant rights.
In h. 4 Article 37 of the Code of Civil Procedure, it was established that, in cases provided for by federal laws, the protection of the interests of minors from 14 to 18 years of age may be carried out by them personally in cases arising from family, labor, public, civil and other relations.
According to Art. 45 the prosecutor has the right to apply for the protection of the freedoms of a person if, due to his age, state of health, disability or other reasons, he cannot do it on his own.
The legislation also provides for cases when municipal, state authorities, citizens and organizations can send an appeal to the court in defense of the interests of a minor or a legally incapable subject, regardless of the request of the interested subject or his representative. This provision is enshrined in Art. 46 (part 1).
Representation
According to Art. 64 (part 1) of the UK parents act on behalf of their children under the age of 18 if there are no contradictions between them. According to Art. 47 adults are entitled to representation in accordance with the origin of minors, certified in the manner prescribed by law. Adopters are representatives of children under 18 years of age on the basis of an adoption decision that has entered into force, as well as a certificate of city registration of the act. Trustees and guardians act in court in the interests of the minor in accordance with the decree of the guardianship and guardianship authorities and the presented certificate.
These entities may include social protection institutions, adoptive parents, and so on.
Legal representatives carry out, on behalf of persons under the age of 18, all procedural actions, the ability to perform which belongs to the latter, with the restrictions provided by law.
Interrogation of a minor witness in court: Code of Civil Procedure
As part of the proceedings, it may be necessary to call a person under 18 years of age. The interrogation of a minor witness in a civil process under the age of 14 years is carried out in the presence of a teacher. At the discretion of the authority authorized to resolve the dispute, the teacher may be present when taking evidence from a subject 14-16 years old. If necessary, his parents, trustees / guardians may be summoned for interrogation of a minor witness in civil proceedings .
The nuances of the procedure
With the permission of the presiding teacher, the trustees / guardians / parents have the right to ask questions to the minor interrogated. They may also express their own opinions regarding the content of the testimony and personality of the subject. In some (exceptional) cases, if such a need is determined by the establishment of certain circumstances of the case, one or another person present, who is or is not a party to the proceedings, may be removed from the courtroom on the basis of the definition of an authorized person. After the subject returns to the hall, if he is a party to the matter, he is informed of the contents of the evidence taken from the minor and given the opportunity to ask questions.
In Art. 179 another special rule is defined for children under 16 years of age. After the interrogation of a minor witness in court is completed, he is removed from the courtroom. The exception is cases when the person authorized to conduct the proceedings considers his further presence necessary.
Additionally
According to Art. 57 of the IC of the Russian Federation, the court is obliged to listen to the opinion of the child on issues affecting his interests in any proceedings, and when he reaches the age of 10 years, decision-making in cases provided for in articles 154, 136, 143, 72, 134, 59, 132 of the Family Code, carried out exclusively with the consent of the child. In other situations, the opinion of the minor is taken into account if it does not contradict his own interests.
Child rights
The interrogation of a minor witness is carried out according to the rules provided for persons over 18 years of age. In particular, the subject is criminally liable for false testimony. She comes under Art. 307 of the Criminal Code since 16 years. In addition, from a specified age, liability is provided for evading or refusing to provide information known to a person. She comes under Art. 308 of the Criminal Code.
Before interrogating a minor witness, his rights and obligations are explained to him. In accordance with Art. 69 of the procedural law, a child may refuse to testify against himself and his relatives (brothers / sisters, parents / adoptive parents, grandparents).
Interrogation of a minor witness: Code of Criminal Procedure
The procedure for giving evidence in a criminal case has a number of specific features. First of all, an authorized employee is required to invite a teacher to an interrogation of a minor witness. The CPC establishes a specific factual basis for the call of the teacher. It is the child's failure to reach the age of 14 years. This fact is confirmed, as a rule, by a birth certificate.
Another reason for attracting a teacher will be the decision of an authorized official. If necessary, the interrogation of a minor witness by an investigator or inquiry officer may be carried out in the presence of a teacher, if the subject is 14-18 years old. This provision is enshrined in article 191, part 1 of the code. The participation of the teacher must be reflected in the case file. For this, a resolution may be drawn up, fixing the decision of an authorized employee to invite a teacher to interrogate a minor witness. The Code of Criminal Procedure of the Russian Federation allows the fixation of this fact also in the protocol.
Design specifics
If a pedagogical worker is invited to an interrogation of a minor witness, the protocol reflects information about him. In particular, it is recorded:
- FULL NAME.
- Education.
- Position.
- Place of activity as a teacher.
- Address of residence.
At the same time, it is advisable for the employee authorized to conduct the interrogation to find out the nature of the relationship between the minor and the teacher (if they exist). In addition, it is necessary to establish the presence / absence of conditions that create obstacles for the participation of the teacher in the procedure.
Teacher rights
With the permission of the investigator, the teacher may ask questions to the minor during interrogation. In this case, the employee has the right to raise one or another question. However, since it was set, this fact should be reflected in the protocol. This requirement is carried out in accordance with Art. 166 Code of Criminal Procedure (part 4). According to the norm, all actions are described in the protocol in the sequence in which they were committed.
The essence of the right of representative
It is worth saying that in the case of certain categories of cases, there is always a need to interrogate a minor witness. The jurisprudence in such cases is not as extensive as it might seem. This is probably due to the fact that carrying out this procedure involves certain difficulties of a psychological nature, primarily for the child himself. In this regard, the norms prescribe the mandatory presence of a representative during interrogation of minors.
Key conditions
Directly the very right of a given entity arises in accordance with Art. 191 of the Code of Criminal Procedure. The implementation of this legal opportunity is carried out in compliance with the established form. This means that before the subject has the right to participate in the interrogation of a minor, he must acquire the status of his legal representative. In addition, the admission of a person to the procedure is carried out upon application of the relevant application. It is drawn up according to the rules established by law, and is reflected in the case file. Another condition is that the representative can only participate in the investigative action in which the minor acts as an interrogated.
From this we can draw the following conclusions. On the one hand, this provision allows the representative to send a request for his participation not only in the interrogation of a minor, but also in person. At the same time, if a person under the age of 18 is brought to trial in a different status, then the claim of the interested subject may remain unsatisfied. Like a teacher, the legal representative should be given the right to ask questions to the interrogated minor with the permission of the investigator / inquiry officer. Each of them is reflected in the protocol. Fixations are subject to those questions that were asked, but allotted by the investigator / interrogator.
Conclusion
Often the participation of a minor in civil or criminal proceedings is of special evidentiary value. The subject may have information clarifying certain circumstances or information that may contribute to their clarification. In some cases, a minor may be wary of disclosing information known to him. In accordance with the law, law enforcement agencies must ensure the protection of persons involved in the case. If necessary, personal information about the witness can be hidden from public access.