What is a preliminary hearing in criminal proceedings?

A preliminary hearing in criminal proceedings is a stage of the proceedings, which is possible only in the presence of certain circumstances. They are installed in Art. 229, part 2 of the Code of Criminal Procedure. Consider them in more detail in the article.

Grounds for holding a preliminary hearing in criminal proceedings

The circumstances in the presence of which the considered stage of the proceedings is allowed include:

1. The receipt of a request from one of the parties to exclude evidence.
2. Detection of circumstances in which the return of materials to the prosecutor is allowed.
3. Detection of facts in the presence of which the termination or suspension of the proceedings is possible.
4. The receipt of the petition from the accused for an appointment with a jury.

An application serving as the basis for a preliminary hearing in criminal proceedings may be submitted after the defendant has familiarized himself with the materials or within three days after they are sent by the prosecutor to the court and the indictment (opinion) is delivered to the subject.

Code of Criminal Procedure

A preliminary hearing in a criminal proceeding begins when there is an appropriate decision of a judge. General rules of production are based on the provisions of the Code of Criminal Procedure, which regulate the trial as a whole. They are defined by Ch. 35 and 36 of the code. The procedure for conducting preliminary hearings in criminal proceedings is also regulated by specific provisions. They are present in Art. 234 Code of Criminal Procedure. This norm determines that:

1. A preliminary hearing in a criminal case is held in private session by a judge alone. In this case, the parties are present at the consideration of materials.
2. A preliminary hearing in criminal proceedings may also take place in the absence of the accused. In this case, he must send an appropriate request.
3. The notice of the call of the parties to the meeting shall be sent no later than three days before the day on which it is to take place.
4. The failure to appear of persons duly notified of the proceedings shall not be an obstacle to its conduct.
5. If this stage is due to the request of one of the parties to exclude evidence, and it turns out that the second participant agrees with him, the judge will satisfy him. In this case, a preliminary hearing in a criminal case is not scheduled.
   

Additional Rules

In the process of preparation or preliminary hearing, the defense may send a request for a witness to confirm the accused's alibi. This application must be satisfied by the court in any case. In addition, the defense may submit a request for the collection of additional items or evidence. If the court considers that they are relevant to the proceedings, the request must be granted. Witnesses can be any entities that know anything about the circumstances of the investigation, seizure or attachment of documents to the materials considered at the meeting.

Important point

It is necessary to indicate a number of nuances that accompany the preliminary hearing in a criminal case. The protocol should contain all the events occurring at the meeting. The result of the proceedings is reflected in the decision. In this case, the court decision, as a rule, is not subject to appeal. It is possible to challenge only the decision to dismiss the case or to choose a preventive measure. In addition, the Constitutional Court recognized the admissibility of the appeal when the proceedings were suspended or the jurisdiction was changed.

Request for exclusion of evidence

The above procedure for conducting a preliminary hearing in criminal proceedings is specified, depending on the circumstances. Upon receipt of a request for the exclusion of evidence, the court shall decide on the removal of any information from the list that will be considered at the meeting. This statement from the party must be submitted in writing. In this case, the form established in Art. 235, part 2 of the Code of Criminal Procedure. The petition must indicate specifically the evidence which, according to the party, should be excluded. In addition, the applicant should cite the grounds on which this decision was made and the circumstances confirming them. The judge, in turn, must verify the application. In the process, he has the right to interrogate witnesses, attach the document indicated in the application to the case, announce the contents of the acts and other documents. If the petition was submitted on the basis that the evidence was obtained in violation of the provisions of the Code of Criminal Procedure, the prosecutor will have to refute these arguments. In other cases, the defense is obliged to prove the validity of the grounds.

Application Satisfaction Results

Recognition of a statement means that the concrete evidence loses legal effect and cannot be taken into account when passing a sentence or other decision. In addition, it can not be used and investigated during the proceedings. If the preliminary hearing in a criminal case involves the jury, the parties or other entities involved in the examination of the materials are not entitled to inform the assessors of the existence of evidence that the court has excluded from the list. It is also not allowed to disclose the circumstances justifying this decision. The court ruling on the appointment of the meeting based on the results of the preliminary hearing should indicate both the excluded evidence and the materials in accordance with which they were eliminated from the process. Along with this, it is allowed in the course of subsequent consideration to file a petition on recognition of them as admissible.

Circumstances for returning materials to the prosecutor

If available, a preliminary hearing in the criminal case is scheduled. This is allowed on the initiative of a judge or at the request of a party. As a circumstance, according to which the materials should be returned to the prosecutor, there are violations of the requirements of the Code of Criminal Procedure when drawing up an indictment (opinion) if they exclude the possibility of a sentence or other decision by the court.

CPC Uncertainty

The Code does not establish a clear definition of violations that may be committed in drawing up a report or an act of prosecution. The CCP also does not provide for criteria by which to judge, the court has the opportunity to make a decision, or it is absent. In this regard, disputes about the legality of the issued decisions on the return / non-return of materials to prosecutors are quite common in practice. The clarifications at one time were given by the Constitutional Court and the Armed Forces. The first, in particular in the Decree of December 8, 2003, noted that the provisions of Art. 237, part 1 of the CPC do not exclude the power of the courts on their own initiative or, in accordance with the request of the party, to return the materials to the prosecutor, if during the pre-trial proceedings there were significant violations of the law that could not be eliminated during the proceedings, if this decision was not connected with the completion of the preliminary investigation or inquiry. The Plenum of the Supreme Court gave more specific clarifications in the Decree of March 5, 2004. In particular, the Supreme Court indicated that violations of the indictment (opinion) should be recognized as non-compliance with the provisions of Art. 220, 225 of the Code of Criminal Procedure, which excludes the possibility of making substantive decisions in accordance with the document. The latter, in particular, occurs when:

1. The absence in the document of indications of previous convictions of the subject, data on his whereabouts, information about the victim (when established), etc.
2. Inconsistencies of the accusation set out in the conclusion / act present in the decision on the involvement of the person as the accused.
3. The absence of the signature of the inquiry officer / investigator and the signature stamp of the prosecutor.
   

Based on the foregoing, it can be concluded that a preliminary hearing in a criminal process is appointed in the presence of violations in the indictment / opinion drawn up if:

1. They are significant.
2. Impede a court decision.
3. The elimination of their consequences is not associated with the completion of the investigation or inquiry.
4. A copy of the act / opinion has not been handed over to the accused.
5. The elimination of the consequences does not require time expenditures exceeding 5 days.

The purpose of returning the materials to the prosecutor in the event that a copy of the act was not delivered to the accused is understandable. The official is obliged to ensure the execution of the investigative action, acting as one of the key procedural means by which the subject guarantees his right to defense. Moreover, the court itself cannot correct this violation. This is due to the existence of a general requirement that the court has no right to take any action that casts doubt on its involvement in the prosecution.

Other circumstances for returning materials to the prosecutor

If there is a need to draw up an indictment / opinion, a preliminary hearing in criminal proceedings is also scheduled for a decision on the use of compulsory medical measures. This circumstance is revealed when the question is raised about placing the accused under medical supervision. After reviewing the materials, the court may disagree with the decision to apply medical coercive measures. In this regard, he can recognize that the proceedings should be carried out according to general rules - with the completion of the investigation in full and the preparation of the indictment / conclusion based on its results. A preliminary hearing in criminal proceedings is also appointed when:

1. Identification of circumstances allowing to combine production in one.
2. The lack of clarification of the rights provided for the accused under Art. 217, part 5 of the Code of Criminal Procedure, when familiarizing him with the materials.
3. The need for search measures in respect of a person hiding from the court.
   

Statutory provisions

When returning materials to the prosecutor, a number of provisions must be taken into account. They must be respected regardless of what circumstances caused the prosecutor to return the case. The legislation prescribes the following:

1. The question of choosing a preventive measure against the accused, the materials on the crime of which is returned to the prosecutor, is decided by the judge.
2. Evidence obtained to correct violations that were committed in the preparation of the indictment / opinion, if it took more than 5 days, is considered a priori inadmissible.

Suspension or termination of production

The procedure for a preliminary hearing of the criminal process in this case is appointed in the presence of circumstances similar to those that guide the interrogators / investigators in the investigation. However, there are two significant differences. The list of circumstances that a judge can be guided by setting a preliminary hearing in a criminal trial does not contain the provision specified in Art. 208 h. 1 p. 1 of the CPC - "failure to identify the subject who is to be involved as an accused." This is entirely justified, since materials on which the perpetrator has not been identified cannot get into the court. At the same time, the list of grounds is supplemented by the condition under which the court can suspend proceedings if a request is sent to the Constitutional Court on the constitutionality of the law to be applied when considering materials. Another circumstance is the acceptance of a complaint from any party to the proceedings. In it, the participant in the process must indicate a violation of his constitutional rights due to the application or possible application of a norm that is not consistent with the Basic Law of the Russian Federation.

Clarifications of the RF Armed Forces

In the Decree of 10.31.1995, the Plenum indicated that, firstly, the court’s request should be made in writing. Secondly, the document must provide the exact name, date of adoption, number, source of publication and other data on the legislative act subject to verification. In addition, the court in its request indicates the reasons for which it was decided to forward the application. Also in this Decree, the Supreme Soviet recommended that the authorities simultaneously change the measure of restraint for the accused if he was in custody at that moment. This is a rather important point, since consideration of requests in the COP takes a considerable time period.

Acceptable Solutions

If the proceedings are suspended, the judge has the right to order the return of materials to the prosecutor. In this case, there are 2 possible solutions:

1. When the defendant in custody escapes, a decision is issued in which the prosecutor is charged with ensuring the search for the person.
2. If the subject, who was at large, has disappeared, a decision is made on the initiative of the judge to search for, arrest and place him in custody.

Exceptions

At the preliminary hearing, the court cannot decide to dismiss the case if circumstances are identified that indicate the existence of rehabilitation grounds for closing the proceedings or completing the prosecution. In this case, the production is carried out according to general rules. Upon confirmation of the found rehabilitating circumstances, the court shall issue an acquittal. In the course of the preliminary hearing, an additional ground may be revealed which obliges the decision to terminate the proceedings. It is the refusal of the prosecutor of the charges. In this case, the rules specified in Art. 246 h. 7 Code of Criminal Procedure.

Jury participation

A preliminary hearing in criminal proceedings, if there is a request for the involvement of assessors, is based on general rules. However, taking into account the specifics of such production, the legislation establishes a number of reservations:

1. A crime for which several entities are held liable shall be considered in respect of all of them if at least one of them has received a petition for jury trials.
2. If the corresponding request was not sent or was not confirmed during the meeting, the proceedings shall be carried out in a different composition of the court. It is determined by the rules of Art. 30 Code of Criminal Procedure.
3. The decision, which appoints a preliminary hearing in a criminal case, in addition to resolving other issues, determines the number of candidates for assessors to be summoned, of whom there must be at least 20.

The decision to institute a jury trial is considered final. Subsequently, the defendant’s refusal to consider the case in such composition is not accepted. At the request of the parties they are handed copies of the decision.

Procedure specifics

For a more complete description of the preliminary hearing institution, it is also necessary to say that if two or more grounds for its appointment are identified, one meeting is held. According to its results, relevant decisions are made. For example, in practice, there are quite frequent cases when preliminary hearings are held before a jury trial, at which questions on the exclusion of evidence or the addition of their list are considered. Decisions made are usually recorded in one decision.

Conclusion

The CPC, unfortunately, does not explain the very concept of a preliminary hearing in criminal proceedings. In it, as you know, several stages. First, investigators or investigators are involved in clarifying the circumstances. After that, the materials go to the prosecutor. He issues an indictment / opinion and directs the case to court. The proceedings in the court may be carried out according to general rules. However, in the presence of the circumstances discussed above, a preliminary hearing is scheduled. In general, it is necessary to remove obstacles to the proceedings under the general rules. If the defendant has a defense counsel, then a preliminary hearing in a criminal case without a lawyer is not carried out. Moreover, in many cases, his presence is extremely important and necessary. A lawyer will be able, for example, competently, based on legislation, to substantiate the motives for excluding evidence from the case file. When setting a meeting, judges should take into account not only the norms of the Code of Criminal Procedure, but also the explanations of the Constitutional and Supreme Courts. Their Decisions specify the legislative rules, explain the features of their application. Special attention should be paid to resolving the issue of jury trials. , , , , . , .