Not all citizens of our country are satisfied with the work of law enforcement agencies, and indeed, often in response to an appeal for the restoration of justice, a decision is issued to refuse to institute criminal proceedings. The Code of Criminal Procedure provides for situations where this document can be challenged. We will analyze them in more detail.
What contains the Decision to refuse to institute criminal proceedings - an example
Sample Regulation is regulated Section 148 CPC. It also contains requirements for its content. It distinguishes three parts.
The introductory part contains the document number, date and place of its preparation, position, title and surname of the person who made the decision. It also indicates the reason and materials on which the refusal was issued. At the same time, in formulating the name of the materials of the audit, the person making the decision should not use an indictment in it (not “materials about the crime of Mr. Petrov K. K.”, but “materials about the theft of the vehicle of Mr. Sidorov N. E . ").
The second part is descriptive. It indicates information, supported by evidence that was ascertained during the audit.
In the final part, a conclusion is drawn about the absence in the actions for which the audit was conducted, corpus delicti. This conclusion is supported by an indication of specific articles of the Code of Criminal Procedure of the Russian Federation serving as its basis.
The document is certified by the signature of the official who composed it. Specific examples of the Decisions to refuse to open a criminal case can be found on the websites.
After execution of the Decision, the applicant is notified of the decision. Another copy is sent to the prosecutor.
Corpus delicti
In order for a criminal case to be instituted on an application, it is first necessary to prove that a certain set of events took place, known in the Criminal Code as a corpus delicti. It includes the characteristics of both the action that has taken place and the person who performed the action. According to all the canons of criminal law, this concept includes four mandatory components.
- The object of the crime is what the offender encroaches on (in theft - this is property, in the murder - life, in case of violence - sexual integrity).
- The objective side is the presence of an unlawful act, that is, the commission of a specific action (or inaction) that carries public danger and is prohibited by the Criminal Code (directly - theft, murder, violence).
- Subject - a competent citizen who has reached the age that allows him to bear criminal responsibility.
- The subjective side is the criminal's awareness of the unlawfulness of his actions or the ability to foresee that his actions can have dangerous and unlawful consequences.
It should be noted that if at least one of the above four points is missing, there is no corpus delicti, then the investigator or the inquirer has the right to issue a resolution refusing to institute criminal proceedings. An example of such a situation is very easy to find. With regard to a minor, such a decision will be made until he reaches 16 (in special cases - 14) years.
The most common causes of failure
Code of Criminal Procedure, namely, Art. 24 clearly defines the circumstances when a criminal case is not instituted in response to a citizen's action.
- In the absence of a crime event - that is, the criminal act itself was not committed. An example of such a circumstance is the proof that cause of death the victim was not murder, but suicide.
- If there is no corpus delicti in the action, this wording shall be rendered if the crime was committed, but there is no corpus delicti in the actions of the suspect. This is possible when, in the circumstances, the actions of the person were lawful (necessary self-defense), in the absence of mandatory elements that are part of the crime (murder in the absence of intent, that is, through negligence). Also, a decision to refuse to institute criminal proceedings is issued if the act does not constitute a public danger (Article 14, Part 2 of the Criminal Code). The same decision is made in the case of a voluntary refusal to bring the crime to the end (Article 31 of the Criminal Code), the commission of a crime in a state of insanity (Article 21 of the Criminal Code) if the age of the person who committed the wrongful act is lower than the age when criminal liability sets in (in RF, it is 16, but for especially serious crimes it can be reduced to 14 years) (Articles 20, 30 of the Criminal Code).
More grounds for refusal
In addition to the most common, there are a number of reasons that serve as the basis for adopting a decision to refuse to institute criminal proceedings. An example of such circumstances is detailed in the Criminal Code of the Russian Federation. In particular, the following situations apply to them.
- Expiry of the statute of limitations - A decision to refuse to institute criminal proceedings for this reason can only be made if the perpetrator has not attempted to escape from criminal prosecution. Otherwise, the statute of limitations is not taken into account.
- Criminal proceedings are not instituted against the deceased. This basis can be changed only if the consideration of the case is necessary for its rehabilitation.
- In private cases, criminal prosecution is not instituted without a statement from the victim. The exception is cases when the initiative comes from the prosecutor or investigator (interrogator) with the consent of the prosecutor.
- A criminal case against persons for whom a special procedure for conducting criminal cases is enshrined in law (senior government officials, judges, prosecutors, etc.) is not instituted without a court order or their consent.
Applicant Responsibility
When contacting law enforcement agencies with a statement about the charge of a crime of a particular person or group of people, it should be remembered that this is a rather serious action. If the verification did not find confirmation of the above facts and, based on its results, a decision was issued to refuse to initiate criminal proceedings, a sample of the collected materials can be submitted to consider initiating a counter criminal case, where charges will be brought knowingly false denunciation.
Excitation denied. What to do
So, you have received a decision not to institute criminal proceedings. A form of this document explaining the possibility of appeal is usually sent by letter. This can be done, although not easy. First of all, you should familiarize yourself with all the materials that were collected during the verification of your application. To do this, it is mandatory by registered mail with a notification that it was handed over to the office of the body where the employee who refused to initiate proceedings serves, a statement is sent to the head in which you ask permission to familiarize yourself with the materials collected during the audit. The application is drawn up in any form, but the following information must be present there:
- your status - are you the applicant or the person in respect of whom the audit was conducted;
- filing date and nature of the application;
- date, number of the audit (they are indicated in the Resolution);
- a request to familiarize oneself with the verification materials and apply technical means;
- a reference to part 2 of article 24 of the Constitution of the Russian Federation.
You can submit the application in person, but it would be better if you prepare it in duplicate, transfer the first to the office, and on the second, the person who received it from you should put a mark on admission, where the date and incoming number will be indicated.
Acquaintance with verification materials
In response to the application, information will be sent containing the place and time when the acquaintance will be held. As a rule, this happens where the Decision to refuse to institute criminal proceedings was adopted. It’s best not just to read the documents, but to make photocopies of them (the statement specifically mentioned the item on technical means). In the future, this will greatly facilitate the justification of the appeal. And it’s not necessary to personally pay this visit. If you have a power of attorney, your representative can do this. Please note: parents or guardians of minors do not need it. They only need a birth certificate or a document confirming the right to represent the interests of the child.
Complaint
After the audit materials have been carefully studied, you can proceed to compile a complaint. It is better if a legally literate person who knows criminal law does this. In this case, an appeal against the decision to refuse to institute criminal proceedings will have a better chance of success. The complaint must be concise and clear. When working on its text, you should not make it emotional, what looks good during ordinary correspondence is not always appropriate in an official document. The text of the complaint should be short. Another important quality of this document should be the validity and motivation of the complaint.
Complaint content
Like any document, a complaint has its own drafting procedure, and it should contain the following information:
- address and name of the authority where it is submitted;
- address and data (name) of the applicant;
- data on the procedural status of the applicant;
- details of the judgment you wish to appeal;
- arguments in favor of his statement, supported by references to the CPC and materials of the audit;
- an indication of exactly which rights have been violated (most often refer to Articles 45 and 46 of the Constitution of the Russian Federation);
- list of requirements of the applicant.
The complaint must try to prove that the decision was made prematurely and unreasonably, that is, the data set out in the materials of the audit were not sufficient to study the facts indicated in the statement of the crime. It should also be noted that the grounds by which the investigator or interrogating officer was guided are unmotivated and do not comply with the articles of the Code of Criminal Procedure of the Russian Federation. The content of the complaint should not only refute the arguments of the investigator who conducted the audit and his findings, but also give those facts that were not reflected in her materials. Having drawn up the document, do not forget to sign it.
Where to file a complaint
According to the norms of the Code of Criminal Procedure of the Russian Federation, a citizen can send a complaint both to the immediate supervisor of the person who issued the decision, and to the judicial authorities. In the event that a citizen decides to send a complaint to the prosecutor's office or the Investigative Committee, three days are allocated for its consideration. In some cases, this period may be extended to five days. When filing a complaint, you need to know exactly whom to address it, since if it is referred to the prosecutor and recognized by him as competent, then it is within his competence to cancel the decision, which was issued only by the interrogating officer. In the event that the decision was made by the investigator, the prosecutor can only transmit the submission to the head of the investigating authority, and he has the right to disagree with him. Thus, if the decision was made by the investigator, it is more reasonable to send a complaint to the direct head of the investigating authority in which he serves.
Judicial appeal
If a citizen decided to appeal the decision in court, the complaint is filed with the court at the place of the investigation.Five days are given for its consideration.
But not so simple. Even if the court takes your side, automatically the cancellation of the decision to refuse to institute criminal proceedings will not occur. According to the court’s decision, one more check will be carried out, and the decision will be made again based on its results. In the event that an employee of the investigating authority takes into account your arguments and agrees with them, the criminal case will be opened, but it is also possible that a repeated refusal will be made.
