Expert in criminal proceedings, forms of his participation in the course of the proceedings. Procedural independence of the investigator during criminal proceedings Suspension of proceedings in a case is mandatory for the court

Federal Law of the Russian Federation dated December 29, 2010 No. 433 - FZ “On amendments to the Criminal Procedure Code of the Russian Federation and invalidation of certain legislative acts (provisions of legislative acts of the Russian Federation)” introduced the concept of an interim decision, which includes all definitions and resolutions court, with the exception of the final court decision - a sentence or other court decision made during the trial, which resolves the criminal case on its merits.

There are several types of interim decisions: these are court decisions made during pre-trial proceedings in a criminal case (decisions made in the manner of judicial control over the actions and decisions of preliminary investigation bodies (decisions on complaints considered in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation), on the application preventive measures, searches, seizures, etc.); decisions made by the court when preparing the case for trial and based on the results of the preliminary hearing (on sending the case to jurisdiction or on changing jurisdiction, on returning the case to the prosecutor, on changing the preventive measure, on considering the case by a single judge or collectively, etc.)

Decisions made by the court during the trial itself: on resolving the motions of the parties, on challenges, on suspending proceedings, on ordering examinations, etc., which do not contain the final conclusions of the court on the sufficiency of evidence, on the guilt of a person, on the appointment punishment or release from it.

Interim court decisions are designed to create the necessary conditions for the participants in the process to exercise their rights and to ensure that they fulfill their procedural duties, for the correct resolution of the criminal case without undue delay.

In accordance with the provisions of the current Criminal Procedure Code of the Russian Federation, not all interim decisions made by the court are subject to independent appeal.

Thus, the possibility of appealing against court decisions adopted in the manner of judicial control over the actions and decisions of the preliminary investigation bodies, as a result of considering complaints from participants in the proceedings in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, is provided for before a criminal case is submitted to the court for consideration on the merits.

In addition, part 3 of Article 389.2 of the Code of Criminal Procedure of the Russian Federation contains a list of interim court decisions that can be appealed independently. These include: decisions of the magistrate to return the application to the person who filed it, or to refuse to accept the application for proceedings; court decisions or rulings on the selection of a preventive measure or on the extension of its validity, on the placement of a person in a medical or psychiatric hospital for a forensic examination, on the suspension of a criminal case, on the transfer of a criminal case to jurisdiction or on changing the jurisdiction of a criminal case, on the return of a criminal case to the prosecutor. As well as other court decisions affecting the rights of citizens to access justice and to consider the case within a reasonable time and preventing further progress of the case, as well as private rulings or decisions.

Determinations or decisions on the procedure for examining evidence, on satisfying or rejecting motions of participants in the trial, and other court decisions made during the trial are appealed on appeal simultaneously with the appeal of the final court decision in the case.

During the preliminary investigation, the investigator makes all decisions on the direction of the investigation, investigative and other procedural actions independently (clause 3, part 2, article 38 of the Code of Criminal Procedure of the Russian Federation). An exception to this general rule are cases when the Constitution of the Russian Federation and the criminal procedure law provide for obtaining a court decision and (or) sanction from the prosecutor. The Constitution establishes that certain procedural actions affecting the rights and freedoms of citizens are carried out on the basis of a court decision. A court decision (with the preliminary consent of the prosecutor) is necessary for the investigator to apply the following measures of procedural coercion: selection (cancellation or change) of a preventive measure in the form of house arrest (part 2 of article 107, part 4 of article 110 of the Code of Criminal Procedure of the Russian Federation); election (cancellation or change) of a preventive measure in the form of detention (Part 1 of Article 108 of the Code of Criminal Procedure of the Russian Federation); extension of the period of detention (Article 109 of the Code of Criminal Procedure of the Russian Federation); temporary removal of the accused from office (part 1 of article 114 of the Code of Criminal Procedure of the Russian Federation); seizure of property, including funds of individuals and legal entities held in accounts and deposits or stored in banks and other credit institutions (Part 1 of Article 115, Article 116 of the Code of Criminal Procedure of the Russian Federation). The judicial procedure for obtaining permission to carry out the above procedural actions is regulated by Art. 107-110, 114, 115 Code of Criminal Procedure of the Russian Federation.

Also, a court decision (with the preliminary consent of the prosecutor) is necessary for the investigator to carry out the following procedural and investigative actions: placement of a suspect, accused, who is not in custody, in a medical or psychiatric hospital for carrying out a forensic medical or forensic psychiatric examination, respectively (Part 2 of Art. 203 Code of Criminal Procedure of the Russian Federation); inspection of the home in the absence of the consent of the persons living in it (part 5 of article 177 of the Code of Criminal Procedure of the Russian Federation); search of a home (part 3 of article 182 of the Code of Criminal Procedure of the Russian Federation); personal search, except for the cases provided for in Art. 93 (part 1 of article 184 of the Code of Criminal Procedure of the Russian Federation); seizure of a home (Part 2 of Article 183 of the Code of Criminal Procedure of the Russian Federation); seizure of items and documents containing information about deposits and accounts in banks and other credit institutions (Part 4 of Article 183 of the Code of Criminal Procedure of the Russian Federation); seizure of correspondence and its seizure in communication institutions (Part 2 of Article 185 of the Code of Criminal Procedure of the Russian Federation); control and recording of telephone and other conversations (Part 1 of Article 186 of the Code of Criminal Procedure of the Russian Federation).

The judicial procedure for obtaining permission to carry out the above actions is enshrined in Art. 165 Code of Criminal Procedure of the Russian Federation. The sanction (consent) of the prosecutor (without a court decision) is required in the following cases: when initiating a criminal case (part 1 of article 146 of the Code of Criminal Procedure of the Russian Federation); upon termination of a criminal case due to reconciliation of the parties (Article 25 of the Code of Criminal Procedure of the Russian Federation); when using bail as a preventive measure (part 2 of article 106 of the Code of Criminal Procedure of the Russian Federation); when extending the period of preliminary investigation (Article 162 of the Code of Criminal Procedure of the Russian Federation); when excluding from the protocol of investigative action data on the identity of the victim, his representative, witness, their close relatives, relatives and close persons (part 9 of article 166 of the Code of Criminal Procedure of the Russian Federation); when seizing objects and documents containing state or other secrets protected by law (Part 3 of Article 183 of the Code of Criminal Procedure of the Russian Federation). The prosecutor also approves the indictment drawn up by the investigator in accordance with Art. 220 Code of Criminal Procedure of the Russian Federation.

As a general rule, written instructions from the prosecutor to the investigator are mandatory. Appealing received instructions to a higher prosecutor does not suspend their execution, except in cases where the investigator disagrees with the following decisions and instructions of the prosecutor: on bringing a person as an accused; on the qualification of the crime; about the scope of the accusation; on the selection of a preventive measure or the cancellation or change of a preventive measure chosen by the investigator in relation to the accused (suspect); on the refusal to give consent to initiate a petition before the court to select a preventive measure or to carry out other procedural actions provided for in clauses 2-11 of Part 2 of Art. 29 Code of Criminal Procedure of the Russian Federation; on sending a criminal case to court or its termination; on the recusal of the investigator or his removal from further investigation; about transferring the criminal case to another investigator. In case of disagreement with the above decisions or instructions of the prosecutor, the investigator has the right to present the criminal case to a higher prosecutor with a written statement of his objections. The superior prosecutor either agrees with the investigator’s arguments and cancels the order of the inferior prosecutor, or entrusts the conduct of the preliminary investigation in this criminal case to another investigator.

The conducted research allows us to conclude that the independence of this participant in criminal proceedings should not consist in simply granting him certain rights, such as, for example, the right to disagree with the instructions of the prosecutor or the head of the investigative department, but in guarantees of non-interference in his activities when making the most important decisions. Criminal procedural legislation must guarantee that if the investigator has come to a certain opinion, then no one can beg him - this is the independence of the investigator. At the same time, of course, there is no question that this decision cannot be verified by the prosecutor or the court to determine its legality and validity. Yes, the investigator is supervised by the prosecutor, the court may consider his decision and disagree with it, but he is still competent to make a decision on the case.

It should also be noted that an investigator can have procedural independence only if he is vested with the function of investigating a criminal case (resolving a criminal case at the stage of preliminary investigation), and not with the function of prosecution. The investigator, being a participant on the prosecution side and being a prosecutor, cannot be independent and independent, no matter what arguments are presented.

As for the problems of ensuring the independence of the investigator when initiating a criminal case, it should be noted that the procedure enshrined in the Code of Criminal Procedure of the Russian Federation for the investigator to obtain the consent of the prosecutor to initiate a criminal case from the moment of its adoption to the present day has been the subject of heated debate among procedural scientists and practitioners. At the same time, we can agree with the position of those authors who note that this requirement of the law is not sufficiently justified and often creates obstacles to carrying out urgent investigative actions, immediately fixing traces of a crime, applying procedural coercive measures in the form of detaining a suspect, and also presupposes the inconsistency and unprofessionalism of the investigator when making this decision. In this regard, in order to eliminate the above and ensure the procedural independence of the investigator, it is necessary to establish in the Code of Criminal Procedure of the Russian Federation the rights of the investigator to independently, without the consent of the prosecutor, make a decision to initiate a criminal case if there is a reason and grounds provided for in Article 140 of the Code of Criminal Procedure of the Russian Federation.

A limitation on the procedural independence of the investigator is also seen in his obligation to obtain the consent of the prosecutor to initiate a petition before the court to select a preventive measure in the form of detention, house arrest, or to perform another procedural action that is permitted on the basis of a court decision. In this situation, it seems advisable to exclude the procedure for obtaining appropriate consent from the criminal procedure law. However, in this case, the investigator is obliged to notify the prosecutor about sending the relevant petition to the court, and the prosecutor must have the right to participate in court proceedings when considering such petitions in order to present his position.

Also, the investigator does not fully have procedural independence regarding appealing the actions (inaction) and decisions of the prosecutor, as well as the instructions and decisions of the head of the investigative department. So, according to Part 3 of Art. 38 of the Code of Criminal Procedure of the Russian Federation, in case of disagreement with the actions (inaction) and decisions of the prosecutor, the investigator has the right to submit a criminal case to a higher prosecutor with a written statement of his objections. In accordance with Part 4 of Art. 39 of the Code of Criminal Procedure of the Russian Federation, the instructions of the head of the investigation department can be appealed to the prosecutor. Thus, in these situations, the investigator does not have the right to go to court. In this regard, it seems necessary, in order to increase the procedural independence of the investigator, to consolidate in the Code of Criminal Procedure of the Russian Federation the right of this subject of criminal proceedings to appeal the actions (inactions) and decisions of the prosecutor, as well as the instructions and decisions of the head of the investigative department directly to the court.

In Art. 74 of the Code of Criminal Procedure of the Russian Federation stipulates that the conclusion and testimony of an expert are one of the types of evidence in a criminal case, along with other evidence. Nevertheless, modern pre-trial criminal proceedings are based precisely on the results of forensic examination. For example, in order to collect and verify the evidence available in a criminal case, the correct qualification of the committed criminal act, etc. An analysis of investigative practice shows that in almost every criminal case investigated both in the form of a preliminary investigation and inquiry, a forensic examination is appointed either on the initiative of investigator (inquirer), less often - the victim, or at the request of the suspect (accused), their defense attorney. In 90% of criminal cases in which a forensic examination was carried out, the evidence base for accusing a person of committing a crime is based mainly on the expert’s opinion. Malysheva, O.A. Procedural problems of appointment and production of forensic examination / O.A. Malysheva // Forensic examination. - 2009. - No. 2. - P. 21.

The appointment of an examination in a preliminary investigation is a procedural action that is implemented subject to compliance with the grounds and conditions specified by law. It is not limited to drawing up a resolution on conducting an examination, although it is the only legal basis for its conduct. Nazarov, V.A. Appointment and conduct of examination in criminal proceedings: Author's abstract. dis...cand. legal sciences; Specialist. 120009 - Criminal process, criminology, theory of operational-search activity / V.A. Nazarov. - Ekaterinburg: B.I., 1999. - P.13.

So, for example, in a criminal case against B., accused of committing a crime under Part 1 of Art. 264 of the Criminal Code of the Russian Federation, at the stage of preliminary investigation, two forensic medical examinations were carried out in relation to the victim D.

Initially, the expert concluded that the medical documents submitted by the victim did not reveal information about the presence of bodily injuries; The victim’s existing medical condition – spondyloarthrosis and deforming spondylosis of the lumbar spine – contributed to her seeking medical help. As indicated in the descriptive part of the report, when conducting the study, the expert used consultations with specialist radiologist Ch.

An additional forensic examination was then ordered. The same expert in his conclusion indicated that a control X-ray examination revealed bone disorders in the form of a fracture of the rib on the right and the transverse process of the third lumbar vertebra on the left; These fractures are the result of the impact of blunt, hard objects, and they can be caused by the protruding parts of a moving car. The narrative of the report also stated that the expert used consultation with a specialist radiologist.

During the trial of the case, the defense cast doubt on all the conclusions of the forensic expert who conducted the examination at the stage of the preliminary investigation due to his incompetence, and also due to the fact that in fact the expert examination was carried out by a person who was not a participant in the criminal proceedings - a radiologist invited to participate in the examination by the experts themselves.

The court agreed with the arguments of the defense and ordered a commission forensic medical examination in the case with the participation of a radiologist. The experts came to the conclusion that in the conditions of the road traffic accident, the victim suffered bodily injuries in the form of a bruise on the back surface of the body, which caused an aggravated and prolonged manifestation of a pre-existing chronic disease, which was in no way the root cause of its formation from the accident.

As a result, the court issued an acquittal against B. Fomin, M.A. Expert opinion as evidence for the defense / M.A. Fomin // Criminal process. - 2008. - No. 7. - P. 40.

Due to the lack of clear and comprehensive legal regulation of the examination at the stage of initiating a criminal case, serious problems arise in law enforcement practice in the preliminary study of micro-objects, this is especially true for narcotic, psychotropic and potent substances.

The identified problem exists due to the fact that the current criminal procedural legislation superficially regulates the conduct of an examination at the stage of initiating a criminal case as an urgent investigative action. In Part 4 of Art. 146 of the Code of Criminal Procedure of the Russian Federation states that in the case of individual investigative actions to consolidate traces of a crime and identify the person who committed it (inspection of the crime scene, examination, appointment of a forensic examination), relevant protocols and resolutions are attached to the investigator’s resolution. It turns out that at the stage of initiating a criminal case, an examination can only be appointed, and carried out only after the initiation of a criminal case. Thus, one investigative action is “stretched” into two independent stages of criminal proceedings. But during this time, research objects may be lost or they will have to be examined twice. In addition, it can hardly be considered expedient to move from one stage to another if the verification, and even more so the investigative actions, planned and started in the previous stage, are not brought to their logical (not to mention procedural) completion.

Thus, Yu. Orlov believes that the procedural regulation of the conduct of a forensic examination at the stage of initiating a criminal case is not the only example of the low quality of legislative technology, the result of which is a contradiction between the letter of the law and its meaning. The meaning of Part 4 of Art. 146 of the Code of Criminal Procedure of the Russian Federation is that the conduct of a forensic examination before the initiation of a criminal case is allowed for the sole purpose of establishing the presence or absence of grounds for initiating a criminal case. Therefore, the appointment of an examination without obtaining a conclusion at this stage loses all meaning. Orlov, Yu. Is it possible to conduct a forensic examination at the stage of initiating a criminal case? / Yu. Orlov // Legality. - 2003. - No. 9. - P. 20.

According to V. Isaenko, this aspect should be considered both from the point of view of common sense and certainly from the point of view of legality. A criminal case can be initiated only if there are grounds and grounds provided for by law. The latter are considered signs of a crime, information about which is recorded in the relevant materials. A crime report is checked to detect these signs. Therefore, it is paradoxical to say that it is possible to order an examination before the initiation of a case, but it should be carried out only after the initiation of a case. With this approach, it turns out that in order to carry out procedural actions to detect signs of a crime, the subject of criminal proceedings is obliged to initiate a criminal case without having established signs of a crime, i.e. having no grounds for this, and therefore acting illegally. Isaenko, V. Using the capabilities of forensic examination in detecting signs of a crime / V. Isaenko // Legality. - 2007. - No. 2. - P. 6.

Thus, in criminal case No. 1234/2005, initiated by the investigation department of Sheremetyevo Customs on the discovery of 350 grams of white powder in the possession of Austrian citizen F., the examination was carried out on the second day, the powder turned out to be a harmless non-narcotic reagent. And as a result, a decision was made to terminate the criminal case and criminal prosecution.

If legal relations related to the examination at the stage of initiating a criminal case were properly regulated by criminal procedural legislation, many problems of law enforcement practice could be avoided. Saushkin, S.A. Proceedings before the initiation of a criminal case / S.A. Saushkin // Russian investigator. - 2005. - No. 9. - P. 12.

The possibility of appointing and conducting an examination at this stage was proposed to be allowed by such scientists as B.M. Komarintsev, E.M. Svetlakov, Yu.D. Fedorov. I.I. Martinovich proposed to allow examinations to be carried out in urgent cases (in order to prevent the loss of objects, modification of the properties of research objects).

One should agree with the opinion of the majority of scientists who come to the conclusion that the possibility of actually appointing and conducting forensic examinations before initiating a criminal case is not ensured by the legislator. Borzov, V. Labyrinths of the first procedural stage / V. Borzov // Criminal law. - 2005. - No. 2. - P. 74. A. Naumov believes that conducting a forensic examination in relation to participants at the stage of initiating a criminal case will lead to the receipt of unacceptable evidence, since this violates the requirements of the Code of Criminal Procedure of the Russian Federation. Naumov, A. Criminal prosecution at the stage of initiating a criminal case / A. Naumov // Legality. - 2005. - No. 3. - P. 50.

The investigator appoints an examination in cases where special knowledge in science, technology, art or craft is needed and its implementation is tactically feasible and possible (objects of future research have been collected, an expert institution or a specific expert has been identified, questions have been formulated, etc.). An examination should not be ordered when it is intended to obtain information about facts reliably established by other means of evidence, but at the same time, if the data obtained during other investigative actions raise doubts or are based only on the confession of the accused, an examination should be appointed . Thus, in practice, it is very often possible to observe facts of the accused admitting to signing a document at the stage of preliminary investigation and refusing to do so at the stage of trial.

The Code of Criminal Procedure does not establish the moment when an examination is ordered. It cannot be reduced only to writing a resolution ordering an examination. In each specific case, taking into account the circumstances of the case under investigation and the importance of the fact established through the examination. When deciding whether to order an examination, the investigator must take into account not only the features of the case under investigation, but also its prospects.

A decision to order an examination is possible only in a criminal case. However, in the legal literature and in practice, the issue of conducting an examination in parallel with the inspection of the crime scene has increasingly begun to be raised. One such form of research is a “preliminary study” of traces at the scene of the incident.

Preliminary research is called expert research due to the following circumstances: a) the expert is knowledgeable persons, any of their participation is caused by the need for the applied application of the special knowledge that they possess; b) the basis for a preliminary investigation of objects (not procedural, but organizational) is the initiative of the person conducting operational-search activities; c) the result of the research is a written document.

A creative attitude to work in expert investigative practice always gives positive results.

Thus, in a criminal case of the murder of a police officer, the investigative authorities established that the victim was struck with several objects, including a brake pad (on a railroad). The brake pad, identified individually as the murder weapon, was not found. The investigator made a correct and justified decision in this situation: during an additional examination, an ordinary, standard brake pad was removed from the scene of the incident, which could practically not differ in any way from the one that became the murder weapon. This block was presented to the expert commission to resolve the issue of the possibility of causing some of the damage with a similar object. The commission's findings were positive.

The defense filed a motion regarding the inadmissibility of such evidence in the case (expert opinion) due to the fact that it was not the murder weapon that was being examined. During the preliminary hearing in the case, the state prosecutor substantiated his position based on the above. The court agreed with the opinion of the state prosecutor. A court verdict has been issued in the case. Pysina, G. The value of the expert’s opinion on the case / G. Pysina // Legality. - 2003. - No. 9. - P. 27.

E.P. Grishina believes that the theoretical and legal design of “preliminary expert examination of objects” is not entirely successful. An expert cannot conduct research, much less draw up his conclusion at the scene of the incident. In the case under consideration, it is more correct to talk about research (special, but not expert), which it is advisable to entrust to a specialist rather than an expert. In addition, according to the current Code of Criminal Procedure, a specialist is involved in participation in procedural actions to assist in the detection and confirmation of the seizure of objects and documents. A specialist can examine these documents and give a specialist opinion, which will not be of the nature of inferential knowledge, in the sense that is acceptable for an expert opinion. Grishina, E.P. Non-procedural forms of using special knowledge in solving and investigating criminal cases (current problems of theory and practice) / E.P. Grishina // Law and politics. - 2007. - No. 1. - P. 98.

And in the end, I would like to say that the presented issue of conducting a forensic examination before initiating a criminal case can be resolved as follows. Such proceedings should be allowed only in cases where, without an examination, it is impossible to establish the existence of grounds for initiating a criminal case. Namely: before initiating a criminal case, a forensic examination must be allowed to establish the cause of death, the nature and extent of harm caused to health, as well as to study the properties of the subject of the crime directly specified in the relevant article of the Criminal Code (drugs, weapons, etc.), if for this Special knowledge is required. In all other cases, a forensic examination can be carried out only after the initiation of a criminal case.

The implementation of activities by a specially authorized entity, which is regulated by the criminal procedure code, is a criminal process. The stages of the criminal process are independent stages connected with each other. They are characterized by certain tasks and decisions arising from them, as well as by the bodies and persons involved in the case, the order, form of the procedural procedure and the nature of the relationship. allows you to establish the events of a crime and identify those responsible for its commission. The necessary measures provided for by law are also being taken to punish offenders.

Signs of stages

The concept and stages of the criminal process have specific characteristics.

1. Limit tasks that originate from general tasks in criminal proceedings.
2. A certain circle of bodies and persons participating in legal proceedings.
3. A procedural form or order of activity determined by the content of the immediate tasks of a particular stage. It is characterized by the peculiarities of the manifestation of general procedural principles in it.
4. The special nature of the relations that arise during the investigation between the objects of the production process in the case.
5. Final decision or procedural act. They are the final cycle of procedural relations and actions, after which the case is not terminated or suspended. It is being transferred to the next stage.

Stages of the criminal process: concept, system

Interconnected by the principles of legal proceedings and the objectives of the totality, the stages form a criminal procedural system. It consists of stages that are separate parts from each other. The stages alternate and replace one another in a strictly defined sequence. Forming a single system, the stages under consideration are interdependent and interconnected.

Let's consider the types of stages in the criminal process.

1. The stage at which a case is initiated.
2. Stage of preliminary investigation and inquiry.
3. Stage of proceedings in the court of first instance.
4. Stage of cassation and appeal proceedings.
5. The stage responsible for the execution of the court sentence.

The system and stages of the criminal process also include special proceedings. They are characterized by several factors:

1. A special procedure for the court to make a decision if a citizen agrees with the charge brought against him.
2. Peculiarities of proceedings by the magistrate's court.
3. Special factors of production in relation to certain categories of persons.
4. Features of judicial proceedings with the participation
5. Special factors in criminal proceedings in cases involving persons under the age of majority.
6. Peculiarities of proceedings in the case of applying measures to a citizen of a medical nature.

Specific features (stages of the criminal process)

Stages in criminal proceedings have a specific feature. This is the final procedural decision. This conclusion is accepted by the court. The final decision is the following documents.

1. (accusatory or acquittal).
2. Resolution on the application of measures that are of a medical nature through coercion.
3. A decision to end a criminal case, made in the execution of a sentence.

First stage

Initiating a case is the first stage. This is where the criminal process begins. The stages of the criminal process, flowing from one another, cannot be formed without passing this stage. At the moment under consideration, authorized state bodies and relevant officials make a decision. It is the basis for starting proceedings in the case if there is a statement, complaint or confession. At the initiation stage, the presence or absence of reasons and grounds for proceedings in the case is established.

The stage under consideration ends with a decision. It talks about the beginning of a criminal case. Or we are talking about refusal of this action. If a decision is made to initiate, then the corresponding resolution is the basis for moving to further stages of criminal proceedings.

Preliminary investigation

After the first stage, the preliminary investigation stage occurs. It is carried out by the body of inquiry or the investigative department. At this stage, the evidence base in the case is collected and studied to establish the absence or presence of a crime event and the persons responsible for its commission. Also studied at this stage are the size and nature of the damage caused as a result of the commission of a criminal act and other circumstances that may have any significance for the case. The second stage is the stage of pre-trial proceedings, therefore the conclusions drawn and the circumstances of the case are preliminary. They are expressed in an indictment. The findings in question are the version brought by the prosecution. And the court will have to investigate it. This will be the third judicial stage in which the criminal trial continues. The pre-trial stages of the criminal process end at the preliminary investigation stage. They do not flow into proceedings or a criminal case, that is, they are terminated without moving to the next stage. Except in cases of private prosecution. They do not require a preliminary investigation.

Proceedings in court

The judicial stage is responsible for the proceedings of the first instance. It's called the third. She is also responsible for proceedings in the superior court. This body checks the legality, fairness and validity of the decision made by the court of first instance. The stage under consideration also has several stages. The first is responsible for the powers of the judge before the trial and preparatory actions before the hearing. At this stage, the judge has the right to make one of the decisions.

1. Schedule a court hearing.
2. Return the case for further investigation.
3. Suspend production.
4. Stop the matter.
5. Refer the case to jurisdiction.

If the court decides to consider the case through a court hearing, then this instance will decide issues related to the preparation for consideration of materials. At this stage of the process, the question of the guilt of the accused is not decided. The judge determines whether there are grounds for further consideration of the case. If such grounds are present in the submitted materials, then the necessary actions are taken. They are aimed at preparing the case for trial.

The second stage of proceedings is the trial. At this stage, the case is examined on its merits. It decides the question that allows you to understand whether the defendant is guilty or not. A decision is also made regarding the application of criminal punishment to the defendant.

Proceedings in court end in indictment or other decisions may be made. For example, such a conclusion may be a decision to send the case for further investigation, to terminate it, etc.

Stage of cassation and appeal proceedings

The proceedings in the cassation instance, as in a higher judicial body, are a separate stage. This is another stage that forms the criminal process. The stages of the criminal process in the cassation instance begin with the initiation of consideration of the case on the basis of a cassation appeal, as well as protests filed by authorized persons. The judicial body of the second instance is responsible for verifying the validity and legality of the decision. The sentence is also determined. The first instance authority may also be discussed. Based on the results of consideration of the case by the second instance, the following versions of conclusions are adopted.

1. On leaving the decision unchanged.
2. Cancels the decision.
3. Changes the opinion adopted in the court of first instance.

An appeal and complaint is a stage of criminal proceedings for an appeal that has not been launched into the course of a court decision, which was announced in the first instance. The court considers cases within the limits of the arguments set out in the appeal.

Execution of court verdict

Execution of a sentence is a stage of the criminal process, which is responsible for the implementation of the authoritative orders of the court. For example, we are talking about who to apply them to and what needs to be done. This stage occurs after the expiration of the time limit for appealing to the court of second instance. It also comes into force after the case is considered by the authority.

Exceptional stage

Let's consider this concept. The exclusive stage of the criminal process is the proceedings in the supervisory authority, which is considered the next stage. At this stage, a trial is carried out, which is formed on the basis of the presented complaint or the subject of the appeal in order to eliminate what was admitted in the previous consideration of the case. During the proceedings, the supervisory authority checks the legality, fairness and validity of the court verdict that has taken effect.

Another exceptional stage is the resumption of criminal proceedings in the case due to the clarification of new or newly discovered factors.

So, the article examined the system and stages of the criminal process.

Case No. 2-2443/2015
G.

Predgorny District Court of the Stavropol Territory composed of:

Presiding judge Polivanov D.A.,

with the secretary of the court session Shonia Z.V.,

with:

plaintiff Romanova A.V.,

defendant Kalchenko L.V.,

having considered in open court in Art. Essentukskaya civil case at the request of Romanova A.V. in their own interests and in the interests of minors Romanova T.O., Romanova R.O. to Kalchenko L.V. on the collection of the down payment under the apartment purchase and sale agreement and late fees,

INSTALLED:

Plaintiff Romanova A.V. in their own interests and in the interests of minors Romanova T.O., Romanova R.O. filed a lawsuit to recover the down payment under the apartment purchase and sale agreement and late fees.

During the court hearing in this civil case, defendant L.V. Kalchenko filed a petition to terminate the proceedings in the case, since the decision of the Predgorny District Court dated DD.MM.YYYY in civil case No. that entered into legal force had previously refused to satisfy the same claims stated by A.V. Romanova. in their interests and the interests of their minor children, to Kalchenko L.V. on the collection of the down payment under the apartment purchase and sale agreement and penalties for late return. The claims now made by the plaintiff are similar. The case is subject to termination on the grounds of paragraph 3 of Art. 220 Code of Civil Procedure of the Russian Federation.

Plaintiff Romanova A.V. did not deny the fact that the earlier decision resolved her claims, and the claim for recovery of funds was denied.

Having heard the opinion of the parties on the received written petition, the court, having examined the submitted court decision dated DD.MM.YYYY, which has entered into legal force, taking into account the requirements of paragraph 4 of Art. 152 of the Code of Civil Procedure of the Russian Federation, the court comes to the following conclusion.

According to paragraph 3 of Art. 220 of the Code of Civil Procedure of the Russian Federation, the court terminates the proceedings in the case if there is a court decision or a court ruling on the termination of the proceedings in connection with the acceptance of the refusal that has entered into legal force and was adopted in a dispute between the same parties, on the same subject, and on the same grounds. from the claim, or by approval of a settlement agreement between the parties.

From the above procedural norm it follows that it is inadmissible to reconsider and resolve an identical dispute, that is, a dispute in which the parties, the subject and the basis of the claim coincide.

The subject of the stated claims should be understood as the substantive legal claim of the plaintiff against the defendant, and the basis of the claim - the circumstances on which the plaintiff bases his claim.

From the materials of this civil case it follows that the composition of the parties in the present case and the civil case No. previously considered by the court is the same.

The plaintiff's side in this case has not presented any new evidence to support its arguments.

The decision of the Predgorny District Court dated DD.MM.YYYY, which entered into legal force, established the factual circumstances of the case and gave a proper legal assessment of the evidence presented by the parties, including the circumstances referred to by the plaintiff in support of his claims against the defendant in this claim.

The claims on which the court made a judgment in the form of a court order are identical for this claim and the court considers the identity of these claims to be established.

This circumstance was also recognized by the plaintiff.

The circumstances established by a court decision that has entered into legal force in a previously considered case are binding on the court. The specified circumstances are not proven again and are not subject to challenge when considering another case in which the same persons are involved (clause 2 of Article 61 of the Code of Civil Procedure of the Russian Federation).

After the court decision has entered into legal force, the parties and other persons participating in the case cannot challenge the facts and legal relations established by the court in another civil proceeding (Article 209 of the Code of Civil Procedure of the Russian Federation).

Prejudice prohibits persons participating in a case from challenging in another civil proceeding the facts and legal relations established by a court decision that has entered into legal force, by repeatedly proving them.

A similar position is defined in the explanations contained in the resolution of the Plenum of the Armed Forces of the Russian Federation dated December 19, 2003 “On the court decision” (clause 9).

As follows from the case materials, when going to court in a previously considered case, the plaintiff gave arguments in support of them, similar to those set out in the present claim.

When establishing the identity of the grounds, the specific legal facts set out in the statement of claim must be compared with the facts that the plaintiff referred to in the original claim.

Identity of grounds will occur if all the factual circumstances of the case, to which the plaintiff refers in the new statement of claim, were previously included in the basis of the claim, on which a judicial act has already been adopted.

This decision was made on similar claims of the plaintiff to the same defendant, and this decision resolved the plaintiff’s claims on the merits, which are now again the subject of consideration by the Predgorny District Court of the Stavropol Territory.

These circumstances were confirmed during the consideration of the petition filed by the defendant: the claim, on which the court has already made a judgment in the form of a court ruling, is identical to this claim, and the identity of these claims has been established by the court.

No sufficient and admissible evidence was presented to the court that the above court decision was canceled or changed in accordance with the procedure established by law.

Termination of proceedings in a case is the end of the court’s activities in considering the case due to the lack of the plaintiff’s right to go to court or to resolve the dispute after the initiation of a civil case.

Thus, there are no legal grounds for considering the non-property claims made by the plaintiff against the defendant, and the plaintiff has no legal interest in resolving these claims on the merits, which is clear from the content of the written petition.

The court believes that the claims made by the plaintiff against the defendant cannot be considered on the merits, and the case must be terminated on the grounds provided for in paragraph 3 of Art. 220 Code of Civil Procedure of the Russian Federation.

Repeated appeal to the court in a dispute between the same parties, about the same subject and on the same grounds is not allowed.

Therefore, the court finds the petition filed by the representative of the defendant to terminate the consideration of the above civil case to be based on the law and subject to satisfaction.

Guided by Art. Art. 220 paragraph 3, 221, 224, 225, 331 Code of Civil Procedure of the Russian Federation, court,

DEFINED:

Petition of the defendant Kalchenko L.V. to terminate the proceedings in this civil case - to satisfy.

Proceedings in a civil case based on the claim of Romanova A.V. in their own interests and in the interests of minors Romanova T.O., Romanova R.O. to Kalchenko L.V. on the collection of the down payment under the apartment purchase and sale agreement and late fees - terminate.

The ruling can be appealed to the general court by filing a private complaint through the Predgorny District Court within 15 days.

JUDGE D.A. Polivanov.