The domestic legislator, trying to maintain the right course in the fight against crime to save energy, time and money, has integrated into the procedural law a special judicial decision procedure, provided that the accused agrees with the charge against him.
Special order: concept and essence
This is a special, specific proceeding, taking place in the first court. It consists in special legal relations and the activities of all its participants, with the dominant and determining role of a magistrate or district court, in establishing the presence or absence of legal and factual grounds that will allow conviction of a defendant’s crime in an abridged procedure of judicial investigation and other decisions .
Naturally, the features that have a special judicial procedure, prescribed by law, extend not only to the trial, but also to the stage of the preliminary investigation. Some sources indicate that the main tasks assigned to the production in question are as follows:
- simplification of the nature of the trial in cases directly specified in the law;
- acceleration of the criminal process in the judicial stages of proceedings, after the prosecutor's office transfers the criminal case to court;
- reducing the workload of judges of the world and district courts.
It is absolutely unacceptable to apply the practice of court consideration of criminal cases in a special order, where the accused is a minor or insane.
Grounds for applying a special order
The Code of Criminal Procedure of the Russian Federation in the first part of Article 314 enshrines the right of the accused, if there is consent of the injured person and the prosecutor (public or private) in the case, to declare his consent to the charge against him and to request that the sentence be pronounced without a trial . This applies only to those crimes for which the punishment under the Criminal Code of the Russian Federation does not exceed a ten-year prison term.
The grounds for resolving a criminal case solely by a judge or collegially in a special manner are sufficient evidence that confirms the legality and validity of the charge. Indirectly, this is confirmed at the time the judge passes the verdict. He must come to the conclusion that the indictment, with which the defendant agrees, is lawful and confirmed by the evidence that the criminal case contains (under article 316 of the Code of Criminal Procedure).
Special Order Applications: Conditions
- The statement submitted by the accused to consent to the charge against him must be official.
- The accused must (if he so wishes) file a motion requesting a sentence without trial in court, in the presence of counsel. The legislator also establishes special terms for this (article 315 of the Code of Criminal Procedure), that is, at the moment when familiarization with the materials on the criminal case takes place or during the preliminary hearing, in cases where it is mandatory.
- 3A person who is accused of committing a crime must be aware of the nature and possible consequences of his application, if there is a special procedure for the trial.
- The private or public representative of the prosecution should agree and not object to it.
- The term of imprisonment for a criminal act, the commission of which the person is charged, shall not exceed ten years.
- The justified nature of the charge and its confirmation by evidence collected in the case.
- A person must understand the essence of the charges against him and agree with him completely, with each “letter” in the indictment.
- There must be no reason to dismiss.
Appointment and consideration of a criminal case: preparation procedure
The criminal judge for whom the petition is filed must ensure that the accused is fully aware of the nature and essence, as well as the consequences of his request, and that this was done on a voluntary basis and only after prior consultation with counsel . These issues are to be established in preparation for the trial.
A petition requesting approval of a special judicial procedure is not binding on the court. If it is established that the requirements for filing a petition approved by law are violated or that the victim or the prosecutor (public or private) speaks against this, then he will be refused. In this case, the court may order the trial in the general, usual manner.
Court session: procedure
The consideration of criminal cases by courts in a special manner is regulated by 316 articles of the Code of Criminal Procedure of the Russian Federation. But it is worth bearing in mind some features. The law does not have clear rules regarding the composition of the court that will conduct the trial. From the point of view of theory, it is quite possible that the accused makes two motions. The first, with a request for consideration in a special order, and the second, for a collegial hearing of the case, composed of three federal judges, since such a composition is the prerogative of resolving criminal cases for serious crimes and especially serious ones (Clause 3 of Part 2 of Article 31 of the Code of Criminal Procedure of the Russian Federation ) However, in reality, such situations are rare. The consideration of criminal cases by the courts in a special manner can be applied in accordance with the first part of article 31 of the Code of Criminal Procedure of the Russian Federation by magistrates.
The court session is held in the mode that is established in the court of first instance for consideration and resolution of the criminal case, that is, in general, except for a number of features. Firstly, the participation of the accused and his defense counsel or lawyer is mandatory and necessary. In this case, the rule that establishes the Code of Criminal Procedure of the Russian Federation in the fourth part of Article 247 does not apply. It speaks of the possibility of holding a trial in cases of moderate or minor gravity without the participation of the accused, if a request was made on his part. A private or public prosecutor also takes part, he speaks at the very beginning and sets out the essence of the charge.
The court further interrogates the defendant in terms of the understandability of what he is accused of, his consent to this. The question is asked about the support of the previously filed application. If the presence of the injured person is ensured, then he is asked a similar question. If he is absent, the judge must make sure that he was notified when the trial will take place (Code of Criminal Procedure), namely the time, place, and also in the absence of motions on his part against the request made by the defendant.
As part of this procedure, a study of the correctness of the procedure as a general rule is not carried out. This can only be done in relation to circumstances giving an idea of ​​the identity of the defendant, as well as aggravating or mitigating the punishment. The fact that he agrees with the charge against him does not mean that the court examine the criminal case and the evidence contained in it less carefully.
Sentence and appeal
A guilty verdict is issued only if the judge has a firm internal conviction of the guilt of the defendant. It should not be unfounded, but based on an assessment of the evidence contained in the criminal case. Consideration of criminal cases by courts in a special manner allows for a milder sanction, the size cannot exceed two thirds of the maximum possible term of the most severe punishment, which is established by the Criminal Code of the Russian Federation for the commission of this crime.
The guilty verdict in the descriptive and motivating part should contain a statement of the essence of the criminal assault and an indication of the charge of its commission, according to which the defendant agreed, as well as the final conclusions of the court on the fulfillment of the conditions of its decision in a special trial mode. Analysis of evidence and its assessment is not reflected.
The convicted person has the right to appeal the conviction in the appellate court, except for the grounds indicated in paragraph 1 of article 379 of the Code of Criminal Procedure (the findings of the court stated in the verdict do not correspond to the circumstances of the criminal case).
Is a different decision possible?
The consideration of criminal cases by courts in a special manner provides for the imposition of a sentence, which, according to the general rules, is indictable. But at the same time, in the 40th chapter of the Code of Criminal Procedure of the Russian Federation there are no rules prohibiting other decisions. True, if this does not require examining the evidence collected, and the circumstances of the case (actual) are not changed. For example, these are decisions on changing the qualifications of the deed (exclusively towards mitigation of punishment), terminating the criminal case due to expiration of the statute of limitations, changing the criminal law, reconciliation with the victim, an act of amnesty or as a result of the refusal of the state prosecutor to refuse the charge.
If it is necessary to study the evidence for the decision of the acquittal, the judge shall decide to terminate the criminal proceedings in a special manner and shall be appointed for its consideration according to the general rules.
Conclusion of a cooperation agreement (pre-trial)
This refers to a special agreement concluded between the parties to the defense and the prosecution, in which they agree on the terms of responsibility of the accused (suspect) depending on their actions after the moment when a criminal case is brought or an indictment is brought. According to this Criminal Procedure Law, a request to conclude a cooperation agreement (pre-trial) is submitted by a suspect (or accused), in writing to the prosecutor’s office with the signature of a defense attorney or lawyer. It may be filed at the time starting from the moment of criminal prosecution, and up to the time when the completion of the preliminary investigation will be announced. It should contain indications of what actions the accused or suspect undertakes to take to facilitate the investigation of the crime, the exposure of other accomplices, and the search for missing property. The prosecutor considers the application within a period not exceeding three days, and then issues a decision on satisfaction or refusal.
A preliminary investigation is carried out in accordance with the Code of Criminal Procedure of the Russian Federation (chapters 22-27 and 30), taking into account the features specified in article 317.4. After its completion, the criminal case is referred to the prosecutor, who, together with the indictment, makes a submission. In the latter, he indicates the fulfillment by the accused of the obligations that he had undertaken.
After the case is submitted to the court together with the submission (which is the basis, according to the Code of Criminal Procedure of the Russian Federation, article 317.6), the question of approving the special procedure for considering the criminal case is decided.
Tasks with a special case review procedure
- Guaranteed protection of the rights and interests of all persons involved in the criminal case in the face of a reduction in procedural funds that are used to establish the circumstances in which the crime was committed.
- Justified and legal punishment for a person who pleaded guilty, the court does not establish the immediate circumstances of the crime.
- Significant reduction in the time for consideration and investigation of the case.
- Reducing the time of detention in the case of application of this preventive measure to the defendant.
A more thorough and rigorous consideration by the courts of complex, voluminous criminal cases in respect of which the application of the “special procedure” procedure is unacceptable due to the prompt and quick resolution of cases in the category in question.
Positive aspects of the "special order"
No matter how strange it may seem, but there are not so many of them. The very first and most important is that the accused, when they agree with the charges against them, are given the opportunity to ease their fate by at least 1/3 of the most severe punishment provided for under the article that qualifies the crime. For example, if you have committed a crime, the upper limit for which is 6 years in prison, then with a “special order” the maximum term will be no more than 4 years. The second plus is a quick trial in court, it simplifies, shortens the time of the criminal case, and also introduces a number of special points in the proceedings at other stages of the criminal process. Well, the third plus (for the state) is the saving of procedural and material resources.
Negative sides
- Firstly, it will be necessary to agree completely with everything that is presented, in full, with each letter of the indictment. Only under this condition is it possible to consider the case in a “special order”.
- Secondly, if a person does not agree with the verdict, then he does not have the right to appeal against the factual circumstances of the case. In other words, the convict will no longer be able to prove that he did not commit a crime. It will be possible to appeal only any violations of a procedural nature made by the court, as well as the severity of the sentence, referring to its injustice.
- And thirdly, the full recognition of guilt does not mean acceptance of the civil lawsuit, if it was also filed. If you agree with him in a special manner, then a subsequent complaint about the verdict regarding disagreement with the requirements of the plaintiff will be rejected.
In any case, it must be remembered that no one has the right to force the application to submit a petition. This is a purely voluntary matter.
The practice of applying a trial under a special procedure is not new and is widely used in the world, for example, in the USA, Israel, India, and some European countries. In Russia, it was introduced relatively recently, in 2009. Whatever the name of this criminal law institution, it has quite serious prospects, but, of course, requires refinement and improvement.