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Private prosecutor in criminal proceedings (Article 43 of the Criminal Code)

Private prosecutor in criminal proceedings - the subject who filed the application in the manner prescribed by Article 318 of the Code of Criminal Procedure and supporting the prosecution in court. The corresponding provision is enshrined in Article 43 of the Code (Part 1). In fact, victim and private prosecutor in criminal proceedings - one person. private prosecutor

Crime Categories

What cases can apply private prosecutor? In criminal proceedings privately considered cases of crimes provided for:

  • 1 part 115 of the article of the Criminal Code - intentional infliction of light harm to health.
  • Part 1 116 of the norms of the Criminal Code - beatings.
  • Art. 129 h. 1 - libel in the absence of qualifying features.
  • 130 articles - an insult.

Production Features

The specifics is that things:

  • Open exclusively at the request of chafull accuser. In criminal proceedings however, the state prosecutor is not involved.
  • To be terminated upon conciliation of the parties.

According to general rules, in such cases a preliminary investigation is not carried out. The consideration is carried out by the justice of the peace in a special form provided for in Articles 318, 319, 321 of the Code of Criminal Procedure. representative of a private prosecutor in criminal proceedings

Explanations

Features of participation private prosecutor in criminal proceedings associated with a small public danger of crime. The object of the infringement is private interests.

The investigation and disclosure of such acts is not accompanied by any problems. Private prosecutor as a participant in criminal proceedings independently forms the evidence base. He himself carries out the prosecution of the subject involved in the crime.

The intervention of the state in the person of the state prosecutor can cause even greater damage to the interests of the victim than the crime itself.

The specifics of legal status

As stated above private prosecutor in criminal proceedings, this is the same victim, but endowed with broader rights. This term is used in criminal procedure law to denote the special legal status of the victim of an attack or his representative.

The main difference between the situation of the victim and the private prosecutor is that the latter is vested with special right to formulate and support the prosecution in court. private criminal prosecutor

Rights of a private prosecutor in criminal proceedings enshrined in 2 parts 43 of the article of the CPC with reference to the corresponding powers of the state prosecutor. His legal capabilities and features of participation in the case are defined in Art. 246 of the Code.

Private prosecutor

In criminal proceedings parties are entitled to have a representative. For the suspect / accused, he is a defense counsel. Private prosecutor can delegate its authority to any authorized person.

In this case, the representative is vested with the same rights as the subject in whose interests he acts.

Specificity of production excitation

The statement that the private prosecutor submits is, by its legal nature, similar to the indictment (act). Accordingly, it entails the involvement of the suspect / accused in the trial.

Meanwhile, it must be borne in mind that the mere fact of presenting an application to a magistrate court is not enough to initiate proceedings. It must comply with the requirements established by Article 318 of the Code of Criminal Procedure. Otherwise, the statement, by virtue of the provisions of 319 of the Code, will be returned to the subject concerned. rights of a private prosecutor in criminal proceedings

Nuances

If there are grounds, the justice of the peace refuses to accept the statement of the private prosecutor.Such a situation is possible if the citizen did not eliminate errors during registration, the necessary documents were not attached.

Meanwhile, the Code of Criminal Procedure lacks rules for drafting a statement in the case of a private prosecution. It seems that a citizen needs to be guided by the general procedure for filing applications in court.

Special situations

In the event of the death of a private prosecutor, the prosecutor may initiate proceedings on the appeal of the deceased's relatives. In such situations, the proceedings are opened according to general rules, i.e., a preliminary investigation is carried out. The case is considered by the court in a general manner.

The law also provides for the possibility of initiating proceedings for crimes that are usually considered in private, by the head of the investigation department, the interrogating officer, and the investigator with the consent of the prosecutor. In this case, production is opened and conducted according to general rules.

Such a need can be caused by the inability of the victim due to his helpless state or for other reasons to independently defend their interests. Other reasons include cases where there is no information about the person involved in the crime.

The involvement of the prosecutor does not deprive the parties of the opportunity to reconcile. problems of a private prosecutor as a participant in criminal proceedings

CC clarifications

Private prosecutors often face challenges in collecting evidence.

The CPC secures the applicant the right to formulate and support the prosecution, to confirm his arguments with evidence. In such a situation, law enforcement officers may be inactive. However, as pointed out by the Constitutional Court, this approach infringes on the rights of victims.

The provisions of part 3 of article 318 were found to be unconstitutional in that part, in which they did not impose on investigators / investigators the obligation to take measures to report the victim related to the identification of the person involved in the crime and aimed at bringing him to justice.

As the Constitutional Court explained, the criminal procedure rules cannot link the possibility of authorized employees and bodies to open cases in private with the personality traits of the victim of an assault. However, the law should provide for the obligation of these persons and structures to initiate proceedings and take measures to ensure that the perpetrator is held accountable in other cases, including if this subject is unknown to the victim.

Legal Opportunities

A private prosecutor has the right:

  • Make a statement in court.
  • Provide evidence.
  • Participate in a case study.
  • To make applications.
  • Express an opinion on the application of a specific criminal norm, amount / term of punishment.

The subject is also entitled to bring to the defendant a civil suit for compensation for harm suffered as a result of the crime.


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