A special procedure for considering a criminal case in court is provided with the aim of expediting the proceedings and giving certain guarantees to the defendants, without prejudice to their right to a fair trial.
Reasons for introducing a special order
Since 1996, the Criminal Code of the Russian Federation has provided articles according to which the mitigation of punishment for persons actively contributing to the disclosure of a crime is mandatory. There was no proper regulation of its implementation. Much remained at the discretion of the judge and depended on personal arrangements. Thus, the defendant did not have firm guarantees of his future, if he fully pleaded guilty.
The general review procedure takes a lot of time and effort; people are forced to repeat the previously told several times. In cases with many episodes, this is very inconvenient.
A special procedure for considering a criminal case in court solves these problems. The legislator tried to take into account the experience of other countries, to apply their own developments. Naturally, the created system has both positive and negative aspects.
Today, there are three forms of proceedings:
- general procedure;
- consideration of the case with the conclusion of a pre-trial agreement on cooperation;
- special order of consideration.
General proceedings
All collected evidence is examined, testimonies of witnesses, victims, defendants are listened if they agree to give them. Further, the sentence is pronounced taking into account all circumstances.
Special procedure with pre-trial agreement
Consider the first form of a special procedure for considering a criminal case in court.
The accused concludes a pre-trial agreement on cooperation with the consent and participation of the investigator and the prosecutor. The agreement indicates what the accused is obliged to inform. Measures are being taken to protect the informant and his family.
The verdict is based on the information provided. A judge has the right to choose a lenient sentence that is not provided for in the corresponding article of the Criminal Code.
A similar design is taken from the criminal codes of Western countries, in particular the United States, actively practicing the use of transactions in the investigation of crimes.
Special consideration
The second form of special criminal proceedings in a court is structured differently. The defendant fully admits his own crimes; disclosure of the actions of other persons is out of the question.
Legislative regulation
The rules on special procedures are set out in chapter 40 of the CPC. There is also a Resolution of the Plenum of the Armed Forces of the Russian Federation explaining its application.
It was originally intended to extend the simplified procedure to crimes, the most severe punishment for which is 5 years in prison. Then, in 2003, a change was made, and the right to rely on a special procedure was granted to those whose actions fall under articles that involve up to 10 years in prison.
In 2013, an amendment was introduced prohibiting the application of the facts established by the judgment imposed in the simplified procedures in other cases, in particular if there was complicity in the case.
What is this - a special procedure for considering a criminal case in court? For example, three stole a shop. One of the defendants decided to confess fully, the other two refused this opportunity. In this case, the case of the pleading guilty person is set aside and a separate sentence is pronounced against him. The facts established by the sentence cannot be used in relation to the other two accused.
Practical examples
For example, in all murder cases (Art.105 of the Criminal Code) the investigation is conducted in a general manner - the sentence exceeds the 10-year prison term.
The killing by the mother of a newborn child already implies the right to a special order, because the maximum sentence is less than 5 years in prison.
Its application can be determined by the fact according to which part of the Criminal Code article the investigator qualified the crime.
Does the special procedure for considering a criminal case in court apply to Art. 290 of the Criminal Code?
If you analyze the first 4 parts of the article, the maximum sentence involves up to 5 years in prison.
Starting from the 5th part, the punishment is increased to 12 years. Thus, if the receipt of a bribe is qualified, for example, according to Part 4, the procedure is applicable, but if the actions of the accused fall under Part 5 of the article, then the application of a simplified procedure is impossible.
Are there any judicial restrictions?
The bulk of cases in this category are dealt with by magistrates and district judges. There are no restrictions on the justices of the peace in using a special procedure.
Regional and regional and republican courts that hear cases in the first instance do not apply a special procedure because of the gravity of the crimes. The punishments for their commission almost always exceed the 10-year sentence.
Petition
The suspect has the right to declare his desire to apply a special procedure for considering a criminal case in court and at the investigation stage. No need to wait for the trial.
Grounds of application
The judge, considering that the case is ready for trial, finds out:
- whether the prosecutor and the victim or private prosecutor agree to a special procedure;
- Does the defendant understand the essence of the norms of the Code of Criminal Procedure of the Russian Federation on the special procedure for considering a criminal case in court;
- his statement was voluntary, with the mandatory participation of a defender, no one exerted any pressure.
A consent is made in the minutes of the court session. Some judges are asked to write a statement, insuring themselves against statements by participants in the process that there was really no consent.
The judge must ensure that the defendant is fully explained the consequences of such a decision.
If the defense attorney did not directly participate in the procedure for signing the petition for a simplified procedure at the investigation stage, the case will not be accepted for consideration by the court. Indeed, the right to defense in this case is considered violated.
According to the Code of Criminal Procedure of the Russian Federation with comments, the special procedure for considering a criminal case in court is not an obstacle to the subsequent cancellation of the sentence if there is no reliable evidence of the consent of the defendant.
Features of the proceedings
The investigation of the case is carried out in the general manner:
- requests are made;
- examination is scheduled;
- Witnesses are interrogated;
- other investigative actions are being conducted.
Then the case is sent to the prosecutor. The prosecutor approves the indictment and submits the case to court.
The judge checks the readiness of the case for consideration and calls the parties for a preliminary hearing. At this stage, the right to submit applications is given, in particular, the consent to a special procedure is confirmed.
The judge, having verified that there are no grounds for refusing the application, pronounces the verdict without examining the merits.
Thus, a special procedure for considering a criminal case in court is the exclusion of the stage of the judicial investigation, during which the version of the investigation is checked and all materials of the case are studied.
Features of the trial
The subject of the proceedings is the study of the identity of the defendant, the circumstances of his life - all that the court relies on, subsequently making its decision.
The judge verifies the identity of the defendant: asks to present a passport or other document with which his identity is confirmed.
The presence of extenuating and aggravating circumstances is being studied. Their list is given in the Criminal Code, and the list of aggravating circumstances is limited, mitigating - no.The defense has the right to invoke any circumstances that it considers significant.
It becomes clear whether the defendant has a criminal record and whether she is extinguished. If so, the court does not take it into account and it is believed that the defendant is brought to justice for the first time.
We study the characteristics issued at work, by the local police, and other organizations.
Sentencing Features
The judge makes the decision, retiring to the deliberation room. Then in the hall announces the verdict.
What paragraph of the law is referred to in the verdict, applying a special procedure for considering a criminal case in court? To article 316 of the CPC. A judicial act is drawn up in a general manner with one exception: in the narrative there is no assessment of the evidence collected by the investigation. The committed crime is described, reference is made to the application of a special procedure and the court's conviction of the correctness and validity of the charge.
The judge is limited in sentencing. It should not exceed two thirds of the maximum possible size. For example, if the most severe punishment is 6 years in prison, the maximum sentence may not exceed 4 years in prison.
If among the punishment options imprisonment, conditional punishment and a fine are provided, then the restriction applies to the most severe punishment.
The law allows you to appeal the sentence only in terms of the size of the sentence. In higher instances reviewing sentences, the circumstances of the case are not discussed.
As in the case of the general order of consideration, the court is interested in the opinion of the victims about what punishment should be imposed. If they do not oppose this and it is possible not to send a person to prison, the court uses it. Compensation is a more attractive option for both parties. Moreover, being in the status of a convicted person, people are more inclined to compensate for material damage.
Positive aspects of the special order
There are advantages to considering a criminal case in court in a special manner. It:
- Significant saving of court time (according to statistics, about half of all criminal cases are considered according to a simplified procedure);
- a special procedure, in fact, is provided for obvious cases, the circumstances of which do not raise many questions;
- the imposition of a lesser sentence;
- in the vast majority of sentences the sentence is not related to deprivation of liberty;
- the defendant is exempted from legal costs (for example, from the costs of the examination).
Disadvantages of a special order
It:
- it is allowed to appeal only the measure of punishment;
- the defendant must acknowledge all the episodes attributed to him;
- consent to a special procedure does not guarantee that a lighter sentence will be imposed instead of imprisonment;
- the refusal to examine the case materials leads to the unconditional satisfaction of the civil lawsuit by the court;
- the exposure refers only to the defendant, who agreed to a simplified procedure if there was complicity.
If we consider the disadvantages of a special procedure for considering a criminal case in court for the victim, it is difficult to name them. You can refer to the last point to a certain extent.
Otherwise, the verdict is passed quickly, no need to wait until the court to resolve the issue with a civil lawsuit. It quite suits victims.