Private criminal proceedings are far from rare in our time. Perhaps this form is common in Russia. And the rules and regulations laid down for the initiation thereof, are prescribed by law. More precisely, in Art. 318 Code of Criminal Procedure. We have to study it. Criminal private prosecution case It contains a lot of nuances and features. They should be known. After all, the order of consideration, the rights and responsibilities of the parties, the conditions for suspension of the case - all this is extremely important for every crime. Without knowing the law, you can simply be infringed on your rights. What does art. 318 Code of Criminal Procedure?
Paragraph 1
It should be noted right away - in our today's article there are many points and parts. Each of them regulates certain rules of a criminal case of a private nature. Where does it all start?
With the fact that criminal cases of offenses specified in article 20 (part 2, the Code of Criminal Procedure) are instituted against a specific person. This is precisely the process called private. In this case, the defendant is only one, he is charged with a crime. According to the text Art. 318 Code of Criminal Procedure, the application is submitted to the court by the legal representative or victim with rare exceptions. They are prescribed in Article 147 (part 1, paragraph 2, and also part 4) of this Code. So, it turns out that a private criminal case is opened based on an application filed with the courts. Usually this is done directly by the victim.
Death
There are times when you need to make an exception. For example, if the victim dies for one reason or another. In such circumstances, a petition to institute proceedings is submitted by the close relatives of the victim. But this is not the only option. Perhaps a statement in accordance with Art. 318 Code of Criminal Procedure (part 3).
In principle, in practice, when the victim dies, it is close relatives who are involved in filing an application with the court. They usually include spouses, parents, brothers and sisters (including step-parents), children, grandchildren, grandparents. All other family members are considered relatives. And they can apply only when the victim does not have close relatives, or they are missing or declared dead.
Consequence
What's next? Part 3, Art. 318 of the Code of Criminal Procedure (a comment is necessary, but one can do without it) indicates that in some cases a criminal case with a private “bias” begins without a statement from the victim. In this situation, it is submitted directly by the investigating authorities to the court. Further, the interrogator acts in his role, and the investigators begin a preliminary investigation of the case. Nothing difficult, right?
True, if you look at the text, you can see that the investigating authorities can file an application with the court to begin the process of organizing a criminal private trial in the cases provided for in paragraph 4 of Article 20. The same goes for the interrogators. Comments indicate that this operation is possible if the victim does not have representatives and close relatives, and he is in a helpless state. Or, as already mentioned, the death of a citizen followed. Simply put, Art. 318 of the Code of Criminal Procedure of the Russian Federation (part 3) can be understood as follows - when a crime was committed by one person, but there is no one to report him because of the death or helplessness of the victim, the application is submitted by the inquiry officers or investigating authorities. After submitting the application, each unit is engaged in its own business.
The prosecutor
What's next? Often, criminal cases on their own are terminated or the applicant is denied initiation. The second option is not considered in principle. But the termination of a private criminal case is not so rare.
Art. 318 of the Code of Criminal Procedure of the Russian Federation (with and without comments) indicates in part 4 that the prosecutor often intervenes. But this act cannot interfere with the reconciliation of the parties. This means that the presence of a prosecutor does not affect the termination of proceedings due to the reconciliation of the accused and the applicant. Yes, you need to consider many of the nuances of this incident. Nevertheless, it’s worth just remembering: the prosecutor who appeared during the judicial debate is not a ban on the world parties.
Application Rules
Part 5, Art. 318 of the Code of Criminal Procedure of the Russian Federation - these are the norms that must be observed when preparing an application for submission to the court. Please note that even the smallest errors can cause your request to be rejected legally. So to give this moment will have a lot of attention.
Without fail, the application shall indicate the court to which the application is submitted. His address and name are also written here. In principle, you can do without "location". But without an indication of the court itself with the name - no.
The following should be a description of the event, interpreted as a crime, with all its details. Namely, it is necessary to indicate the time, place, circumstances, the nature of the violation, damage (if any) and other important information. This is an integral part of the application.
After that, data on the victim and a request for the adoption of a criminal case are written. These are the next norms available in Art. 318 Code of Criminal Procedure. A statement (it’s difficult to find a sample; it’s its own for every crime) without indicating these data cannot be considered valid either. Especially if there is no information about the victim. For example, if there is no identity card.
It remains only to write data on a potential criminal. And, if the situation requires it (and there is also the opportunity), attribute all the witnesses who need to be summoned to court to testify. This is how the statement is made, according to Art. 318 Code of Criminal Procedure. At the end the date of application and signature of the applicant are affixed. The generated document must be sent or taken independently to the judiciary.
Part 6
The next paragraph also applies to the statement. As you can see, Art. 318 Code of Criminal Procedure contains mainly information on this document. After the private criminal case begins, the justice of the peace must explain all the conditions of reconciliation, as well as the consequences knowingly false denunciation in one case or another.
In addition, the petition is filed in court with several copies. By the number of persons in respect of whom a private criminal case is being instituted. Moreover, the denunciation, which is recognized as false, most often refers to the applicant. If it turns out that this citizen was lying in court, then he will be responsible for the consequences. Responsibility cannot be avoided. Moreover, according to Art. 318 of the Code of Criminal Procedure, punishment for false denunciations and information in court will be criminal.
For the prosecutor
Of course, every case considered by the judiciary is a business process. He has his own norms and limitations. And each side has rights and responsibilities. Responsibilities also exist in some way.
From the beginning of the clerical work, the judge (or his representative) must obligatorily explain to the prosecutor what he can and cannot do. That is, to clarify the rights, duties and responsibilities for certain violations of the process. Without these clarifications (even if it is assumed that the accused is aware of all the details), the meeting and office work cannot be considered to have begun. They can be interrupted legally.
By the way, a protocol is being drawn up on the provision of information. This is also an obligatory part of paperwork. It is signed by the judge, as well as by the person who has filed a petition to institute criminal proceedings.
Representatives and prosecutors
The next feature again applies to representatives and prosecutors. The fact is that sometimes there are cases when, after accepting an application for clerical work, the victim is recognized as helpless. Or, for some good reason, he simply cannot attend the court hearing.For example, for health reasons.
In such a situation, the judge must recognize the participation of the legal representative of the plaintiff or the prosecutor in the proceedings. Otherwise, it simply will not be considered lawfully implemented. After all, two parties must be present - both the victim and the accused. If the applicant does not have legal opportunities to participate directly in the meeting, he must be replaced without fail. In practice, we can say that most often the prosecutor acts instead of the plaintiff. Or close relatives of the victim (spouses, children, parents).
Comments
Art. 318 Code of Criminal Procedure has a number of important comments. They clarify all the nuances of a criminal case of a private nature. For example, an important point here is the absence of the so-called riddle. That is, a private criminal case can only be opened when the fact of the commission of a crime by a specific person is established. The option of conducting an investigation to establish a disclosure of a crime is not considered. In addition, a private criminal case is opened when the victim is familiar with the offender.
Special attention is also paid to legal representatives. The justice of the peace has the right to recognize as such persons not only the close relatives of the victim or the prosecutor. This also includes trustees and adoptive parents, guardians and guardianship authorities. Plus, not all disadvantaged and helpless have legal representatives. Therefore, it is the judge, in some cases, who must appoint a replacement for the applicant. Lawyers and lawyers are not taken into account.