The subjects of criminal proceedings include not only the accused and the victim, but also the civil defendant and the plaintiff, as well as their representatives. For all these entities, the CPC provides for certain procedural rights. So, the CPC secures the opportunity to familiarize the victim, civil defendant, civil plaintiff and their representatives with the materials of the criminal case. This right can be exercised in the manner prescribed by Article 216 of the Code. Consider its features.
The content of the norm
The parties to the criminal proceedings, as well as their representatives, have the right to partially or fully familiarize themselves with the case materials by sending a petition to the court. The indicated entities, however, cannot receive documentation for review, the list of which is fixed in Part 2. Art. 317.4 Code of Criminal Procedure. The civil defendant and the plaintiff, as well as their representatives, are provided with the case materials of only the part related to the claim.
Familiarization of the parties to criminal proceedings is carried out according to the rules enshrined in Articles 217 and 218 of the Code of Criminal Procedure.
Explanations
The civil plaintiff / defendant, their representatives, the lawyer and the victim, according to the CPC, are presented with production materials only if there is a corresponding application. The fact that these persons did not appear for review at the appointed time did not inform the interrogating officer / investigator of the desire to use their procedural right if there was an opportunity, is not an obstacle to the further progress of the case.
The priority of providing materials to the civil plaintiff / defendant, their representatives, as well as the victim in the CPC is not fixed. The investigator / interrogator may follow any order of familiarization. An authorized employee has the right to invite several people at once to provide them with the required materials. The review process and results should be recorded in the minutes. The authority to resolve petitions for familiarization with the criminal case materials rests with the investigating authority.
List of inaccessible documents
In accordance with the provisions of Article 216 of the Code of Criminal Procedure of the Russian Federation, subjects of law cannot get acquainted with:
- An application for concluding a cooperation agreement (transaction with the investigation).
- The investigator’s decision to file a petition with the prosecutor to conclude a cooperation agreement with the accused / suspect.
- The decision of the prosecutor on the satisfaction of the specified application.
- Pre-trial agreement between the investigation and the accused / suspect.
In the list, fixed in 2 parts of Art. 317.4 of the Code of Criminal Procedure, there is no decision on the refusal of the prosecutor to satisfy the application for signing the pre-trial agreement. Therefore, within the meaning of Art. 216 of the Code of Criminal Procedure of the Russian Federation, participants in legal proceedings can be acquainted with this document at their request.
Difficulty in practice
When applying Art. 216 of the Code of Criminal Procedure, often problems arise. So, for example, it’s not entirely clear that the civil plaintiff / defendant, the victim, representatives of these persons cannot familiarize themselves with the materials only when the case is set aside in an independent proceeding due to the existence of a threat to the accused, but as part of an unallocated case, when there was no such danger and the documents remained attached to the main case, these entities also have no right to familiarize themselves? In addition, it is unclear what is the situation with the information, the list of which is fixed in part 2 of Article 317.4 of the Code of Criminal Procedure, if the investigating authority has not made a decision on the basis of the provisions of paragraph 4 of Article 154 of the Code.
It appears that by making a number of changes to Art. 216 of the CPC, the legislator hoped to protect the accused, but not to raise artificial obstacles to the implementation of the principle of competition. The current version of the norm, however, does not provide an alternative, prohibits, upon completion of the investigation, the victim, civil plaintiff / defendant, their representatives from requesting the signing of a cooperation agreement between the investigation and the accused, the resolution of the investigator to send him to the prosecutor, the decision of the prosecutor to satisfy the request, as well as directly with the agreement itself.
This rule is implemented regardless of whether a decision was made during the preliminary investigation to save the named documents in a sealed envelope.
Expert opinion
Many lawyers are wondering why the legislator does not allow a civil defendant to the documents listed in part 2 of article 317.4 of the CPC? Indeed, according to the norms, he is a member of the defense, like the accused. It turns out that the accomplices against whom the subject testified have such a right when separating materials into a separate proceeding on the grounds specified in clause 4, paragraph 1 of part 154 of the Code, but the civil defendant and his representative are deprived of this opportunity.
According to some lawyers, the legislator in this case is a little inconsistent. The logic of the rulemakers could be seen if the investigating authority were obliged to allocate materials to independent production whenever a pre-trial agreement is concluded. But it is not fixed in the legislation. This means that in some cases the corresponding decision may not be made at all. Meanwhile, introduced in 1 part of Art. 216 of the Code of Criminal Procedure, the ban applies to these cases.
Important point
It should not be forgotten that the prohibition provided for in Article 216 applies only at the stage of completion of the preliminary investigation. At the next stage of the process, the parties again acquire the right to familiarize themselves with the materials. In this case, the prohibitions on the provision of documents provided in 2 parts of Art. 317.4 of the Code of Criminal Procedure, no.