Circumstances precluding participation in criminal proceedings. Taps and taps

The legislation provides for circumstances precluding participation in criminal proceedings (challenges). In norms, they are divided into two groups. The former are called general, the latter - special. We consider in the article the circumstances that exclude participation in criminal proceedings (briefly) .

Definition

Circumstances precluding participation in criminal proceedings are external objective factors. Their presence makes it reasonable to doubt the impartiality of a particular subject. In this regard, a person needs to withdraw from the proceedings. In case of failure to comply with this requirement, a challenge is applied to the subject.

Direct bans

Circumstances precluding participation in criminal proceedings are given in the second section of the Code of Criminal Procedure. The rules contain direct prohibitions on the involvement of specific individuals in the proceedings. So, according to Art. 41 (part 2), it is not allowed to assign powers, the implementation of which is related to the execution of the inquiry, to the subject who carries out or carried out operational investigative activities in this case. There are also circumstances precluding the participation of a defense attorney in criminal proceedings . So, one person is not entitled to be a lawyer for 2 accused / suspects, when the interests of the latter contradict each other. This provision is enshrined in Art. 49, para. 6. Circumstances precluding participation in criminal proceedings are also established in article 56. The norm defines persons who are not subject to interrogation as witnesses. The provisions of this article apply to specific entities and do not apply to other citizens involved in the proceedings.

Objective reasons

The legislation provides for circumstances independent of the will of the subjects , excluding participation in criminal proceedings . There are a number of factors that prevent a person from fulfilling the duties assigned to him and exercising his rights within the framework of the case. These circumstances arise before the subject is involved in the process and acquires the appropriate status.

Groups of persons

Chapter 9 of the Code of Criminal Procedure establishes several categories of entities in respect of which circumstances may apply that preclude participation in criminal proceedings . The groups include:

1. Officials directly involved in proceedings related to the case. In particular, they include the investigator, judge, etc. They are mentioned in articles 61-67.
2. Persons acting in the interests of other participants in the proceedings. This group includes a lawyer, representatives of civil plaintiffs / defendants, the victim. They are referred to in Article 72.
3. Persons ensuring the conduct of proceedings in a meeting. These include a translator, court clerk, expert, specialist. They are referred to in articles 68-71.

Circumstances precluding the participation of a prosecutor in criminal proceedings

The specified official shall not be allowed to consider the case if he:

1. Acts as a victim, plaintiff / defendant (civil), witness.
2. He was a jury, expert, translator, specialist, witness, secretary of the meeting, legal representative of any side of the matter.
3. Is a relative (including relatives) of any person involved in the proceedings.

These reasons also act as circumstances precluding the participation of a judge in criminal proceedings .

Explanations

In accordance with the above provisions, it can be concluded that the circumstances due to which the subjects are excluded from the legal proceedings are determined by the presence in them (both in the past and in the present) of a different procedural status or relations of a related nature with other entities involved in the case.

Nuance

An official is prohibited from conducting proceedings in a case not only in situations where he is vested with a different procedural status. The subject is subject to exclusion from the proceedings and in cases where this is due to the presence of factual grounds. For example, the investigator witnessed the crime. He cannot institute proceedings on this fact. The investigator in such a situation will be involved as a witness and interrogated. Accordingly, his information will become evidence in the case.

Additionally

The list, which is defined in Art. 61 is not considered exhaustive. The second part of the norm says that the prosecutor, investigator, as well as the official who directly reviews the case at the meeting, cannot participate in the proceedings if there are circumstances that suggest that they have a direct or indirect interest in the outcome of the proceedings. The list of these factors is not determined by law. Moreover, the rules do not provide for formal signs of interest. As a result, its presence is determined by the specifics of the case. It seems that the grounds indicating the presence of interest may be hostile or friendly relations between production participants, official or financial relations.

72 article of the CPC

It defines the circumstances that exclude the participation in the criminal process of a defender, a representative of a civil defendant / plaintiff, victim. The indicated persons shall not be allowed to proceed if they:

1. Previously performed in a different status. For example, this subject could be a judge, witness, expert, witness, translator, secretary of the meeting, interrogator, etc.
2. They are relatives (close including) to any party to the case or to third parties involved in the proceedings.
3. Provides or has previously provided legal services to a citizen whose interests are in conflict with the interests of the accused / suspect, civil plaintiff / defendant, victim, protected by him in this case. This provision extends the rule provided for in article 49.

The third group of subjects

It includes experts, meeting secretary, specialist, translator. This group is quite specific. In relation to the secretary, for example, the legislation does not provide for specific circumstances, according to which his participation in the proceedings is excluded. The norms indicate that the corresponding decision is made by the official conducting the direct consideration of the case. As for the remaining entities, they are prohibited from participating in the process if their incompetence is revealed. For the translator, for example, it is expressed in the inability to speak the languages ​​necessary for normal proceedings in a meeting. The specialist is not allowed to the process if he does not have special knowledge or is not able to apply them. The incompetence of an expert can be expressed by the lack of a theoretical basis or the necessary education.

Challenge Limitations

They cannot apply to civil plaintiffs / defendants, accused / suspects, victims and witnesses. This restriction is caused by the indispensability of these persons in business. The participation of these entities is directly related to the circumstances of the incident. These persons either have a personal interest in the outcome of the case, or act as carriers of information of significant evidentiary value.

Procedure

As mentioned above, when identifying circumstances that impede the further participation of a person in the process, he must be eliminated. If the entity has not complied with this requirement, the appropriate procedure applies. Under the law, other participants in the proceedings may challenge. The procedure will vary depending on the person who insists on eliminating the inappropriate citizen, the stage at which the event takes place.

Jury Candidates

For these individuals, the law also provides for a challenge procedure. For them, the rules apply not only to the articles discussed above. In particular, when forming a college, the parties shall have the right to challenge the circumstances stipulated in:

1. Art. 61-64. These rules establish the grounds for exclusion from the proceedings of a judge.
2. Art. 328 (parts 14-16). The norm provides for the right of the defendant or his lawyer, as well as the public prosecutor to declare an unmotivated challenge twice.
3. Art. 330. This norm defines the right to make a statement on the dissolution of the panel of assessors in connection with the tendentiousness of its composition.
   

Explanations on this issue are contained in the plenary resolution of the Supreme Council No. 23 of November 22, 2005. It should be specially noted that the legislation provides for the possibility of declaring challenges before the collegium of judges is finally formed. In a subsequent meeting, this right can only be exercised in an exceptional case. In particular, if a circumstance is revealed that was previously unknown to the applicant. The decision to remove the jury from the meeting shall be subject to permission by the presiding judge. In this case, the composition of the court in the deliberation room is not removed.