Consideration of complaints received from participants in criminal proceedings is considered one of the mechanisms for the effective and prompt detection of violations of the law, their response and their elimination. In this regard, the CPC has established a special procedure for handling complaints that differs from the rules enshrined in Federal Law No. 59. The provisions of this normative act do not apply to appeals, the consideration of which is regulated by the criminal procedure law. This refers, in particular, to Art. 124, 125 Code of Criminal Procedure. What does the "special procedure for considering appeals of participants in criminal proceedings" mean ? Learn about this from the article.
Art. 124 Code of Criminal Procedure (as amended)
The first part of the norm establishes the deadlines for the consideration of complaints. The prosecutor or the head of the investigative unit studies the appeal within 3 days. from the date of receipt.
Only in exceptional cases, the provisions of Art. 124 of the Code of Criminal Procedure of the Russian Federation an increase of the indicated period to 10 days is allowed. This is possible if additional materials are needed to verify the complaint or other measures are required. The authorized person must notify the applicant of the extension of the term.
Decision Making Features
According to the results of consideration of the appeal, according to part 2 of Art. 124 of the Code of Criminal Procedure of the Russian Federation, an authorized employee draws up a decision on partial or full satisfaction of the application or on refusal to do so. In the first case, the decision should indicate the procedural measures that should be implemented to expedite the proceedings, and the timing of their implementation.
On the decision made by an authorized person, the applicant, in accordance with 3 parts of Art. 124 Code of Criminal Procedure, notified immediately.
Additionally
The investigator / interrogator may not agree with the decision of the head of the investigative department or the prosecutor. In the cases enshrined in the Code of Criminal Procedure, these persons are entitled to appeal the decisions to a higher prosecutor or to the head of a higher investigative unit.
Art. 124 Code of Criminal Procedure with comments
As mentioned above, the consideration of messages received from participants in criminal proceedings is carried out according to the rules that differ from those enshrined in the Federal Law No. 59. In particular, the examination of applications in accordance with Art. 124 of the Code of Criminal Procedure of the Russian Federation is carried out within a three-day period (in exceptional situations 10 days), when, according to the above-mentioned regulatory act, the time for consideration of applications is 30 days.
The period fixed in paragraph 1 of the commented article expires in 24 hours of the last day of the time allotted for consideration. If this day is non-working, then the deadline expires on the next business day.
Extension Features
An extension of the period for consideration of applications is allowed only in exceptional cases. In Art. 124 of the Code of Criminal Procedure of the Russian Federation , one of the circumstances is determined, the presence of which determines the extension of the period - the need to require additional materials to verify the message.
In addition, “other measures” are mentioned in the norm, the importance of the implementation of which may cause a longer review period. This, in particular, refers to the provisions of paragraph 1.3 of the Order of the Prosecutor General No. 162 of 2011. This paragraph provides for the possibility of conducting a survey of interested subjects and specialists as part of the verification of the validity and legality of the decision to refuse to open criminal proceedings.
Procedural issues
The prosecutor’s office decree to increase the inspection period to 10 days. handed down by the district prosecutor, the military prosecutor, equated to him, as well as an employee of another specialized prosecutor’s office, the head of the Main Directorate and departments of the Prosecutor General’s Office at the request of the relevant officer who is considering the message. At the same time, the latter must send the applicant a notice on the extension of the inspection time, the circumstances that caused the delay, the nature of the measures taken during the inspection.
Nuances of the application of legislation
Based on the provisions of Articles 5 (paragraph 25) and 124 (Part 2), a decision made after consideration of the complaint must be formalized by resolution. In practice, difficulties often arise in determining the procedure for studying received complaints. In particular, it is not always clear which provisions to use: the Code of Criminal Procedure or the Federal Law No. 59.
When applying the rules of the criminal procedure law, a decision is made. If the complaint was examined in accordance with Federal Law No. 59, such a document is not necessary. This conclusion is confirmed by the explanations present in a number of departmental acts.
For example, in clause 2.5 of the Instruction governing the rules for considering appeals from individuals by prosecution authorities, complaints about decisions, inaction / actions of investigators, investigators, their leaders and the prosecutor, against sentences, decisions and other court acts, including those adopted in the framework of pre-trial proceedings must be checked within the powers of the relevant persons and according to the rules enshrined in the procedural legislation.
According to the provisions of departmental Orders of the FSB, the procedure for considering citizens' applications to the bodies of the FSB, the Investigative Committee, the Ministry of Internal Affairs does not apply to appeals subject to adoption and consideration according to the rules established in other federal laws.
The specifics of the ruling
Having examined the complaint, the head of the investigative unit or the prosecutor draws up a document confirming its partial or full satisfaction or refusal to do so. Moreover, the decision must comply with the requirements enshrined in Part 4 of Article 7 of the Code of Criminal Procedure. The act in particular must be motivated, legal, justified.
The prosecutor is vested with powers of various sizes in relation to the investigator and the inquirer. Accordingly, the prosecutorial response measures that are taken after considering a complaint regarding the decisions and actions / omissions of these individuals also vary.
So, the prosecutor has the right to cancel the unlawful decision of the interrogating officer, to demand from him the elimination of the violation of the law. He can also give him a written instruction on the commission of certain procedural / investigative measures, mandatory for implementation.
Satisfaction of the complaint against the investigator’s decision, his actions / inaction implies the cancellation of the decision to refuse to open a criminal case, to suspend / terminate it. The prosecutor may also require the employee to rectify the violations. He is entitled to give instructions to the investigator only in cases directly stipulated in the CPC.
In the act on canceling the decision to refuse to open criminal proceedings, its termination or suspension, the prosecutor must state the circumstances, which should be further checked and investigated.
Upon satisfaction of the complaint about the violation of the terms of the preliminary investigation by the inquiry officer, in the decision the prosecutor indicates the procedural actions to be taken to expedite the process. The act is sent to the head of the inquiry body, and a copy is attached to the materials of the supervisory proceedings.