Art. 318 of the Code of Criminal Procedure of the Russian Federation includes a description of the content of the application for initiating a private prosecution and the procedure for its submission to court.
Private prosecution cases
This category includes cases considered by the court on the basis of statements by victims. The investigation procedure and prosecutorial supervision are excluded. Only the victim has the initiative of excitement, and the involvement of the state, as a rule, is excluded.
All proceedings are held in a magistrate or military court at the crime scene.
Art. 20 of the CPC refers only to a few acts of private prosecution, for example, beatings. So that under Art. 318 of the Code of Criminal Procedure of the Russian Federation, few cases fall.
Who is entitled to send an application?
This is the victim or his legal representative. If the victim has died, close relatives are entitled to initiate proceedings. Who belongs to them according to the CPC? This includes: mother and father, brother and sister, adopted and adoptive parents, husband and wife, grandfather and grandmother.
Those who are not confident in their own abilities have the right to take the help of a lawyer or lawyer. He will draw up a statement and assist during the proceedings. Ignorance of the law and the practice of its application can adversely affect the results of the process. In addition, the participation of a competent and experienced representative will positively affect the behavior of a biased judge, as noted in Art. 318 Code of Criminal Procedure with comments.
What are the requirements for the application?
It is made up in writing, it must indicate the following information:
- name of the court (magistrate’s court of a certain district or garrison court);
- description of the crime event, time and place of the incident;
- information about the accused person (information from the passport);
- information about the applicant (information from the passport);
- request to court: accept the application for production;
- list of attached documents;
- Art. 318 of the Code of Criminal Procedure of the Russian Federation obliges to provide a list of witnesses;
- date and signature of the person submitting the application.
Copies of attached documents are added to the application (examination certificate, power of attorney for a representative, etc.)
The number of copies of the application depends on the number of defendants, and one set is required for the judge.
In a statement, the private prosecutor is obliged to report his awareness of the responsibility for false denunciation in accordance with Art. 306 Code of Criminal Procedure.
The statement allows you to request the recovery of material and moral damage.
Sample use
Can I use a sample application? Art. 318 of the Code of Criminal Procedure of the Russian Federation affects a few compositions of acts, but they differ significantly. There is a significant difference between rape and beatings, fraud has its own specifics, not to mention the fact that each individual case has a number of nuances.
It is advisable to study judicial practice on the corpus delicti. Reading verdicts in specific cases will help you see how the law is applied, what reasoning is valid, and how evidence is assessed. Judicial practice in each region has distinctive features, so it is advisable to study the practice of the court to which you plan to file an application.
How to get the necessary information?
It is not always immediately clear that the incident is subject to private prosecution. First of all, citizens call the police or send a statement to one of its branches. The application is examined, persons related to the incident are called (potential accused, witnesses), documents and other sources of information are studied.
As a result of the audit, police or UK officers may come to the conclusion that the case is not entirely within their competence.
Next, a decision is made to refuse to initiate proceedings, it explains the right to appeal to the court in accordance with Art. 318 Code of Criminal Procedure. The applicant is entitled to receive verification materials for research.
If there is no information about the person who, according to the applicant, has committed a crime, an application is still filed with the court. Why - explained below.
In the case of violent acts, calling the police is useful in that their officers will be referred to a medical examination bureau.
Court action
The judge checks the application, if there are flaws in it, a period is given for correcting them. What time to give the applicant, the judge decides for himself.
If it is clear from the application that there is no information about the alleged offender, the judge is required to send the materials to the police for a preliminary investigation.
You can, of course, complain to the prosecutor’s office and not waste time on the statement, which later as a result will still be in the police, but there remains the risk of the prosecutor’s agreement with the police. The court in this situation has no right to do otherwise. Otherwise, h. 1 Article. 318 Code of Criminal Procedure.
In addition, the decision of the court is more important than the decision of the prosecutor.
Attraction of the prosecutor and investigator
In the course of the proceedings, the judge has the right to admit that the participation of the prosecutor is necessary in the case. If the victim is helpless or dependent on the accused, because of which he may refuse to defend his rights.
Helplessness means circumstances related to mental, neurological problems and minority. Severe health conditions, such as cancer and other similar circumstances, can be included in the concept of helplessness.
Dependence implies the financial aspect of the victim’s relationship with the accused (employees and employers, relatives providing assistance or money, etc.)
By the decision of the head of the investigation department or the body of inquiry, with the consent of the prosecutor, a case is initiated even without the victim’s statement, if his helpless or dependent state is established. In this case, the investigation is conducted in a general manner without submitting an application in accordance with Art. 318 Code of Criminal Procedure.