Refusal to initiate a criminal case is not a reason to remain inactive. If you or your loved ones are victims of a crime, and law enforcement agencies refuse to initiate a case and recognize you as the injured party, you can appeal the decision with which you do not agree.
Our criminal lawyers will conduct any necessary criminal legal analysis of crimes and give you recommendations on actions, and will also take on all the hassle of appealing decisions that violate your rights as a victim.
It should be noted that appealing the refusal to initiate a criminal case is a multi-stage procedure, but if you act correctly, you can achieve your goal, it all depends on your desire and perseverance, as well as on the professionalism of the lawyer. The first step is to obtain a resolution to refuse to initiate criminal proceedings. Be thoroughly familiar with the main points of the official ruling, including the area that provides the basis for the denial. Our lawyers often resort to a procedure such as a lawyer's investigation in criminal proceedings in order to find truly worthy grounds for canceling the refusal decision in the case.
Cancellation of refusal to initiate criminal proceedings
- The first stage is studying the resolution. If you have been refused to initiate a criminal case, you should not give up. You have to deal with refusals quite often - a person submits an application to the authorities, it is accepted, and then a decision is made that the case will not be initiated. Of course, this is not very pleasant, and you need to defend your rights. Defend your rights in criminal proceedings; there are all the necessary mechanisms for this. At this stage, it is better to trust a lawyer, he will help you overcome the system and bring the guilty person to justice, regardless of status and financial situation.
- The second important part , which should be emphasized, is the appeal of the decision by the investigator or inquiry officer (this text is located in the first part). Familiarize yourself with the arguments of the investigation, then, with the help of a specialist, draw up a complaint against the refusal to initiate a criminal case.
- The final stage is filing a complaint. Do you need to find out what the authorities have done? How did they work on the application? What motives guided them in making the refusal? It is better to check with an experienced lawyer; he will immediately find errors and points that can be used in the complaint. Once a case has been initiated, you can count on the participation of a lawyer in investigative actions. It is difficult for a non-specialist to understand the details of such documents, so an ally in the person of a lawyer will greatly help you.
USEFUL: our lawyer for the protection of the victim has more than once successfully overturned the refusal to initiate a criminal case, watch the VIDEO and write your question to the criminal lawyer in the comments of the video
Article 148 of the Code of Criminal Procedure of the Russian Federation. Refusal to initiate a criminal case (current version)
1. Refusal to initiate a case is the final decision at the stage of initiating a case, which ends the criminal proceedings as a whole. In this regard, the refusal to initiate a case is the main criminal procedural decision that finally resolves the criminal case (material). The decision to refuse to initiate a case has a preclusive meaning (from the Latin praeclusio - closing) - it is the basis for terminating future criminal prosecution against specific persons on the same suspicion (clause 5, part 1, article 27 of the Code of Criminal Procedure).
2. Part 1 of the commented article connects the refusal to initiate a case with the lack of grounds for initiating it. This provision requires a restrictive interpretation. The basis for refusal to initiate a criminal case as the main procedural decision is one of the circumstances specified in Art. 24 of the Code of Criminal Procedure, reliably established using criminal procedural evidence. For the grounds for refusing to initiate a case, see the commentary. to Art. 24. The lack of sufficient data on the signs of a crime does not exempt the criminal prosecution authorities from taking measures to establish the crime and expose the perpetrators. If, after the expiration of the preliminary verification of the crime report, it remains unclear whether a crime has been committed, then a criminal case must be opened to investigate the alleged event. Unlike the grounds for refusing to initiate a case, the grounds for initiating a case are probable. See comment. to part 2 art. 140.
A manifestation of the rule about the need to reliably establish the grounds for refusing to initiate a criminal case is the requirement of Part 1 of Art. 148 to identify the specific person who committed the act in order to refuse to initiate a case due to the absence of signs of a crime in the act (clause 2, part 1, article 24 of the Code of Criminal Procedure). Apparently, the legislator believed that a reliable establishment of the grounds for refusing to initiate a case ensures the rights of the victim (for whom it is easier to go to court for compensation for damage through civil proceedings). However, in practice this creates problems and sometimes leads to the opposite effect. The requirement to identify the persons who committed the act turns out to be excessive, for example, when it is of minor significance (Part 2 of Article 14 of the Criminal Code), when the absence of elements in the act is obvious, i.e. and without a face. By obliging the criminal prosecution authorities to identify all offenders, they were thereby doomed to the impossible. As a result, law enforcement officers try to circumvent the exorbitant norm of the law using two illegal methods: either they refuse to accept a statement of a crime, or they refuse to initiate a case due to the absence of a crime event (allegedly there was an event, but the event was not a crime, but another non-dangerous act - an offense). In fact, an act without public danger (insignificance) is the absence of an element of the objective side of the crime, i.e. a classic example of an act that does not contain elements of a crime. A different approach leads to a logical contradiction: if the person is not identified, then the event is missing, and if established, then the crime is missing. An unjustified refusal to initiate a case due to the absence of an event further violates the rights of the victim, as it creates obstacles for subsequent administrative and civil procedural proceedings. The least damaging way out of this problem is found by those investigators and interrogators who, in the decision to refuse to initiate a case, simply do not refer to the lack of corpus delicti, indicating the substantive basis - the insignificance of the act (Part 2 of Article 14 of the Criminal Code). To refuse to initiate a case due to the lack of corpus delicti, it is necessary to indicate exactly what crime with reference to the relevant paragraph, part, or article of the Criminal Code.
3. Taking into account the official interpretation of the Constitution of the Russian Federation (Articles 45, 46), given by the Constitutional Court of the Russian Federation (Resolution of the Constitutional Court of the Russian Federation of April 29, 1998 N 13-P; Determination of the Constitutional Court of the Russian Federation of July 6, 2000 N 191-O; Resolution of the Constitutional Court of the Russian Federation of February 18, 2000 N 3-P), all interested parties (whose rights are affected by the decision to refuse to initiate a case) have the right to familiarize themselves with this decision and the materials of the preliminary inspection. Therefore, a copy of the decision must be sent to the victim, even if he is not the applicant (clause 13, part 2, article 42 of the Code of Criminal Procedure); the person against whom the application was filed; a person in respect of whom the decision made unfavorable conclusions (for example, guilt in an administrative offense).
4. The Code provides for two procedures for canceling a decision to refuse to initiate a case: 1) the investigator’s decision is canceled by the head of the investigation unit both on his own initiative (clause 2, part 1, article 39), and based on the results of consideration of the prosecutor’s submission (part 6, art. 148), complaints from an interested person (Article 124), court decision (Article 125). By canceling the decision to refuse to initiate a case, the head of the investigation authority has the right to personally initiate a case if he accepts it for his proceedings; 2) the decision of the investigator, the inquiry body is canceled by the prosecutor on his own initiative (clause 6, part 2, article 37; part 6, article 148), or based on the results of consideration of the complaint (art. 124), or at the request of the head of the inquiry unit (clause 4 part 1 article 40). In this case, the prosecutor (according to Federal Law No. 87-FZ of June 5, 2007) does not have the right to personally initiate a criminal case, but must, with his instructions, send the relevant materials to the head of the inquiry agency, setting a specific deadline for conducting an additional inspection, taking into account the volume of necessary verification actions ( Clause 5 of the Order of the Prosecutor General of the Russian Federation dated September 6, 2007 N 137 “On the organization of prosecutorial supervision over the procedural activities of investigative bodies”).
However, the law does not determine the maximum duration of verification of reports of crimes after the cancellation of the decision to refuse to initiate a case. The establishment of such a period is attributed to the discretionary powers of the head of the investigation agency or the prosecutor. It seems that checking reports of crimes cannot replace a preliminary investigation, therefore its period should be less than the period of an ordinary inquiry - a shortened form of investigation (30 days).
5. On the court’s consideration of a complaint against the refusal to initiate a case, see the commentary. to Art. 125. Part 7 of the commented article as ed. Federal Law No. 87-FZ of June 5, 2007 establishes an unnecessarily cumbersome procedure for canceling a decision of an inquiry officer or an inquiry agency to refuse to initiate a case based on a court decision, which is sent to the head of the inquiry agency. Only the prosecutor is authorized to cancel this resolution (clause 6, part 2, article 37), and not the head of the inquiry body or the head of the inquiry unit. The latter has the right only to submit a petition to the prosecutor to cancel the illegal or unfounded decisions of the investigator to refuse to initiate a criminal case (clause 4, part 1, article 40.1). Considering that in many inquiry bodies there are no specialized inquiry units and their heads at all (see commentary to Article 40), it seems correct to send the court decision to the prosecutor on the basis of the above norm of Art. 37 Code of Criminal Procedure.
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
Timeframe for conducting an inspection before issuing a refusal
It must be remembered that the timing of the pre-investigation verification of a report of a committed or impending crime is clearly regulated by Article 144 of the Criminal Procedure Code of the Russian Federation. An official (head of the investigative department or inquiry department, investigator, inquirer) is obliged to check the received message and, within 3 days, make a reasoned procedural decision to initiate or refuse to initiate a criminal case.
- Most often, 3 days is not enough to conduct a full inspection, so the official requests an extension of the inspection period and extends it to 10 days if he has grounds for this.
- If the official does not make a procedural decision within 10 days, you can safely appeal his actions, citing delays in the inspection and red tape. This will also help with further appeals against the decision to refuse to initiate criminal proceedings.
Since the extension of the period for pre-investigation checks to 30 days is possible only in exceptional cases, namely if it is necessary to carry out documentary checks, conduct audits, examine seized documents and items, order and obtain the results of forensic examinations (for example, investigators of the Investigative Committee of the Russian Federation often extend materials pre-investigation check up to 30 days due to the fact that they did not receive the conclusion of the forensic medical examination of the corpse), as well as for carrying out operational search activities.
LAWYER ADVISES: the latter, unfortunately, is either not carried out at all, or is carried out without leaving the office, by drawing up a report by the detective, which states that the persons have not been identified, documents and objects have not been found, although all measures have been taken to identify them. To exclude this, you should request a search file. This is an exhaustive list of reasons for extending the pre-investigation check to 30 days. If the official indicates another reason for the extension to 30 days, this is a direct basis for canceling such a procedural decision. When reviewing the inspection materials, you must pay special attention to the basis for extending the deadline.
Constitutional Court on repeated refusals to initiate criminal proceedings based on one report of a crime
The Constitutional Court confirmed the possibility of repeated refusal to initiate a case, even if the illegality of similar decisions had previously been revealed, but indicated that a repeated refusal cannot be based on the same circumstances and rely on the same audit materials. On March 12, the Constitutional Court of the Russian Federation issued Ruling No. 578-O on a complaint from a citizen challenging the constitutionality of Parts 1, 6, 7 of Art. 148 of the Code of Criminal Procedure of the Russian Federation concerning the procedure for refusing to initiate a criminal case.
In January 2015, the lawyer of citizen Oleg Suslov appealed to the district department of the Ministry of Internal Affairs of Russia in Moscow with a statement to initiate a criminal case on the grounds of a crime under Part 4 of Art. 159 of the Criminal Code of the Russian Federation. In support of his claims, the defense attorney alleged that fraudulent actions had been committed against the principal, causing him damage on an especially large scale.
At first, the law enforcement agency refused to initiate a criminal case, but subsequently the prosecutor ordered an additional check of the materials. Subsequently, repeated decisions to refuse to initiate a criminal case were canceled by the head of the investigative body and the prosecutor. This circumstance also forced the prosecutor's office to send a proposal to the higher investigative body to bring to disciplinary liability the officials who violated the law during the pre-investigation check, and to strengthen control over the work of subordinates.
In July 2021, the Lefortovo District Court of the capital refused to recognize as illegal the latest decision to refuse to initiate a criminal case, citing the cancellation of the controversial decision by the prosecutor's office, but declared illegal the inaction of officials of the Department of Internal Affairs when considering the relevant complaint about a crime, which lasted more than three and a half years. In this regard, the court ordered the head of the investigative body to eliminate the violations. Nevertheless, in the fall of 2021, the investigator once again refused to initiate a criminal case, and his decisions were again canceled by the prosecutor as illegal and unfounded. As a result, the criminal case was opened only on December 10, 2021.
In his complaint to the Constitutional Court of the Russian Federation, Oleg Suslov argued that the norms he challenged in practice allow the head of the investigative body, investigator, inquiry agency or interrogator to repeatedly (up to the expiration of the statute of limitations for criminal prosecution) refuse to initiate a criminal case without conducting additional inspections, despite the recognition as illegal of their earlier decisions to refuse to initiate a case. According to the applicant, the controversial norms violate the rights of the victim, deprive him of judicial protection and illegally exempt the perpetrators from criminal liability.
Having studied the materials of the complaint, the Constitutional Court of the Russian Federation refused to accept it for consideration. The Constitutional Court recalled a number of its own legal positions, according to which verification of a report of a crime and the initiation of a criminal case represent the initial, independent stage of the criminal process, during which the presence or absence of sufficient data indicating signs of a crime is established. At this stage, circumstances precluding the initiation of a case are determined, a legal qualification of the crime is given, measures are taken to prevent or suppress the crime, consolidate its traces, ensure subsequent investigation and consideration of the case.
The court emphasized that the refusal to initiate a criminal case must be based on reliable information that can be verified in the prescribed manner. The Constitutional Court also confirmed the validity of the possibility of the prosecutor and the head of the investigative body canceling the decision to refuse to initiate a criminal case and sending the materials for additional verification. Taking into account the fact that an unjustified refusal to initiate a criminal case limits the right to access to justice, Art. 125 of the Code of Criminal Procedure of the Russian Federation directly classifies the decision to refuse to initiate or terminate a criminal case as decisions subject to challenge in the courts.
In this regard, the courts also have the right to consider, within their own competence, complaints about the ineffectiveness of verification of a crime report and investigation, if the latter arises from improper actions (inaction) and decisions of relevant officials. In these cases, the court is obliged to check whether the preliminary investigation body took into account all the circumstances, including those indicated in the complaint, which could significantly influence its conclusions, and whether it examined these circumstances at all. Consequently, the court has the authority to point out specific violations committed and the obligation to eliminate them.
At the same time, the Constitutional Court noted that the current criminal procedural legislation does not regulate the maximum number of cancellations of a decision to refuse to initiate a criminal case and does not provide for a deadline for additional checks carried out in connection with such cancellation. Accordingly, it is possible to repeatedly refuse to initiate a criminal case based on the same report of a crime, even if the prosecutor or court previously revealed the illegality of similar decisions.
The Court also explained that the preliminary investigation authorities should not repeatedly refuse to initiate a criminal case on the basis of the same factual circumstances, relying on the same materials for verifying the crime report. After eliminating the identified violations, they must re-evaluate both the factual and legal side of the case and make a new procedural decision, which must be legal, justified and motivated. “Otherwise would indicate the failure or improper fulfillment by the criminal prosecution authorities of their procedural obligation to verify the report of a crime, would lead to the loss of traces of the crime, to a decrease in efficiency or even to the impossibility of carrying out investigative actions to collect evidence, would deprive interested persons who are prohibited by criminal by law, the act caused physical, property or moral harm, not only the right to legal proceedings within a reasonable time, but also the right to effective judicial protection,” the definition noted.
Zinaida Pavlova. New lawyer newspaper
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Obtaining a decision to refuse to initiate criminal proceedings
Due to the heavy workload of officials, most of them carry out a mediocre inspection, sometimes even beyond the deadlines, already saying in advance that the initiation of a case will be refused, since there are no grounds for initiating it. At the same time, they do not issue a copy of the resolution, citing the fact that the materials are either being checked by the head of the department or by the prosecutor, and it is impossible to provide them. It is not true!!!
ATTENTION: you can receive a decision to refuse to initiate criminal proceedings at any time, no matter who has it. Therefore, it is extremely necessary to monitor the timing of the inspection in order to react in a timely manner to file a complaint against the decision if it does not suit you.
In fact, if the official actively refuses to give you a copy of the decision when the inspection period has expired, then pay attention to the following:
- Due to his own incompetence and the assumption of red tape, it is possible that the official is covering up the fact that he did not react in time and did not issue a decision to initiate a criminal case, although there are all grounds for this.
- Issuing a decision to initiate a criminal case outside the inspection period is a serious procedural violation and threatens sanctions for the official and senior persons exercising control.
- Allowing something like this to happen on the part of an official is a direct basis for canceling the refusal order and actually initiating a criminal case.
It is better to receive a decision to refuse to initiate a criminal case in person. They may tell you that the resolution was sent by mail and issuance is impossible. Do not believe this, you have every right to receive a copy of the decision immediately after contacting the investigative department or the prosecutor. Our lawyer can also help you get everything on time under the order; to provide this legal assistance, you do not need to issue a power of attorney, which saves you money.
The Constitutional Court called on the courts to more carefully check the grounds for refusing to initiate criminal cases
On June 15, the Constitutional Court issued Resolution No. 28-P in the case of verifying the constitutionality of clause 2 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation, which establishes the absence of corpus delicti in an act as a basis for refusal to initiate a criminal case or its termination.
Refusal to initiate a case due to the lack of corpus delicti, and not the act itself
Previously, David Mikhailov held the position of Deputy Chief of Police for the Protection of Public Order of the Department of Internal Affairs of Russia for the Maryina Roshcha district of Moscow. Based on the results of an inspection of received allegations of abuse by employees of this department of their official powers, the Investigative Committee of the Investigative Committee, guided by paragraph 2 of Part 1 of Art. 24 of the Code of Criminal Procedure, on April 18, 2021, issued a resolution to refuse to initiate criminal proceedings against Mikhailov due to the absence of corpus delicti in his actions under Part 1 of Art. 285 “Abuse of official powers” and Part 3 of Art. 290 “Taking a bribe” of the Criminal Code of the Russian Federation.
However, David Mikhailov appealed the decision under Art. 125 of the Code of Criminal Procedure, considering that the investigator incorrectly applied the criminal procedure law, since the refusal to initiate a criminal case due to the absence of elements, and not the occurrence of a crime, indirectly indicates the presence of a disciplinary offense in his actions.
When considering the complaint in court, the investigator reported that the verification of the statements did not confirm not only the arguments of the persons who applied with them and the presence of corpus delicti, but also the presence of the crime itself. Nevertheless, the court left the complaint unsatisfied, noting that when considering complaints under Art. 125 of the Code of Criminal Procedure, a judge does not have the right to give a legal assessment of the actions of the person being checked in connection with a statement of crime, as well as the collected materials regarding their completeness and the content of information relevant to establishing the circumstances to be proven, since these issues are resolved during the preliminary investigation and trial on the essence of the criminal case. Higher authorities, including the Supreme Court, agreed with this position.
In a complaint to the Constitutional Court, David Mikhailov indicated that clause 2, part 1, art. 24 of the Code of Criminal Procedure contradicts the Constitution, since it allows the refusal to initiate a criminal case due to the absence of corpus delicti in the act in the case where the act itself (the event of a crime) was absent, and does not allow the rights violated by this to be restored in court.
The Constitutional Court pointed out the inadmissibility of substituting grounds for refusing to initiate criminal cases
The Constitutional Court recalled that refusal to initiate a criminal case due to the lack of corpus delicti in the act is allowed only in relation to a specific person. Therefore, the application of the grounds provided for by the disputed norm presupposes preliminary confirmation by evidence collected in a volume sufficient to establish that a particular person has committed the most socially dangerous act in order to make a legal, well-founded and motivated procedural decision. “Otherwise, it would lead to the substitution of the grounds for refusal to initiate a criminal case (which are not identical from the point of view of assessing the factual circumstances underlying them and possible consequences), to a statement of the commission (involvement of the person) in respect of whom such a procedural decision is made , a socially dangerous act, in which the fullness of the elements of a crime is not seen, including in the absence of evidence,” the resolution noted.
Thus, the Court emphasized, in relation to persons belonging to the same category and in an equal legal situation, procedural decisions would be taken that would be different on legal grounds and possible legal consequences, which would indicate legal uncertainty, leading to an arbitrary choice of the rule subject to application would be contrary to the constitutional principle of justice and equality before the law. At the same time, doubts would remain regarding the impeccability of the behavior of the person in respect of whom the corresponding procedural decision was made, from the standpoint of the criminal legal claims brought against him, especially in the context of specific crimes or accompanying circumstances, which would entail a deviation from the requirements of the provisions of the Constitution of the Russian Federation.
“Refusal to initiate a criminal case is possible if there are grounds provided for in Part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation, the choice of which is determined by the factual circumstances of the case established or refuted in the proper manner. Within the meaning of the legal positions formulated by the Constitutional Court of the Russian Federation, a decision to refuse to initiate a criminal case must be based on reliable information that can be verified in the manner prescribed by the criminal procedural law. Otherwise, it would indicate the arbitrariness of the official’s conclusions regarding the probable event of a crime and the limitation of the ability of interested parties to challenge this procedural decision to the prosecutor, the head of the investigative body or to the court,” the Constitutional Court emphasized.
The Constitutional Court recalled that, considering the complaint according to the rules of Art. 125 of the Code of Criminal Procedure, the court should not limit itself only to fulfilling the formal requirements of the criminal procedural law and refuse to assess the presence or absence of a legal reason and basis for refusing to initiate or terminate a criminal case, the factual validity of the appealed actions (inaction) and decisions. Consequently, such an assessment naturally includes the power of the court to examine the materials that provided the grounds for refusing to initiate a criminal case. The court is obliged to check whether the preliminary investigation body took into account all the circumstances, including those indicated in the complaint, which could significantly influence its conclusions.
“Otherwise it would make it impossible for the court to assess the legality and validity of the decision to refuse to initiate a criminal case, would make the court’s decision on this issue dependent on the position of the prosecution, would indicate an irrefutable presumption of legality, validity and motivation of the procedural decision made by it, the finality and the indisputability of its conclusions regarding the establishment of circumstances giving grounds for qualifying an act as a crime constituting an event, the choice of grounds for refusing to initiate a criminal case, would be contrary to the goals of criminal proceedings, the role of the court as an organ of justice,” the Court emphasized.
As the Constitutional Court added, clause 2, part 1, art. 24 of the Code of Criminal Procedure in systematic connection with other provisions of the Code, including its Art. 125, gives the court, when considering a complaint against the decision of the inquirer or investigator to refuse to initiate a criminal case, the authority to comprehensively assess the legality and factual validity of such a decision. Thus, the Constitutional Court recognized the contested norm as not contradicting the Constitution, since it presupposes the following:
- refusal to initiate a criminal case due to the absence of corpus delicti in an act is possible only subject to the preliminary establishment of the presence and commission by a specific person of the most socially dangerous act containing objective signs of a crime;
- the legality and validity of the choice of grounds for refusing to initiate a criminal case are subject to judicial review based on a complaint from an interested person in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, taking into account all the facts available in the materials on the basis of which the corresponding decision was made, the circumstances influencing the conclusion about the existence of factual and legal grounds for refusing to initiate a criminal case on one or another basis, and the positions of the parties.
In this regard, the Constitutional Court ordered a review of the judicial acts in the applicant’s case.
Lawyers had mixed views on the ruling
The Chairman of the Presidium of the Lapinsky and Partners Committee, Vladislav Lapinsky, positively assessed the conclusions of the Constitutional Court. “The court conducted a systematic analysis of in which cases it is necessary to make a decision to terminate criminal prosecution for the absence of a criminal act, and in which cases it is necessary to terminate a criminal case for lack of corpus delicti. He explained that termination for lack of corpus delicti is possible only when the act itself has taken place, but in terms of its gravity it “does not reach” a criminal offense, and only for this reason the criminal prosecution is subject to termination under clause 2 of part 1 of Art. 24 Code of Criminal Procedure of the Russian Federation. In the latter case, another measure of responsibility may be applied to this person in an administrative or disciplinary manner, because the offense itself occurred. This constitutional judicial interpretation is of great importance for law enforcement practice, since a legal custom has developed according to which investigators “just in case” terminated criminal cases for lack of corpus delicti, even when there was no actual event of such an act,” he noted.
The expert also drew attention to the fact that the Constitutional Court also interpreted Art. 125 of the Code of Criminal Procedure in relation to the duty of courts to correct investigative errors, on the boundaries of judicial verification of the validity of the decision made by the investigator. “He also pointed out the duty of the court to intervene directly in the area of the investigator’s assessment of the issues in the criminal case. In terms of significance, this constitutional interpretation is even more important than the explanation of the norm contested by the applicant, since it “lays a mine” under the favorite slogan of the courts that the investigator, by virtue of Art. 38 of the Code of Criminal Procedure of the Russian Federation is so independent in his actions and judgments that his assessment cannot be verified and subjected to critical reflection and correction by the court, believes Vladislav Lapinsky. – Previously, the Constitutional Court made only timid attempts on this matter to correct the approach of the judges and, finally, made a judgment: the courts can and, moreover, are obliged to revise the positions and assessments of the investigator, evaluate all the circumstances that the investigator used as the basis for his position and, moreover, Moreover, they are obliged to radically revise them. Now, relying on this decision as a foundation, we will gradually force the courts to check, evaluate and correct any judgments of the investigative authorities.”
Lawyer of Law Firm "A2K" Dmitry Khomich called the Court's findings long-awaited for the legal community, because they very clearly specify the following postulate: first you need to establish the event of a crime and only then assess the guilt of a particular person. “This is stated very clearly in the resolution of the Constitutional Court of the Russian Federation under discussion; it is logical and obvious: if there is no fact of committing a criminal act, then an investigation of the guilt of any person is impossible. But in practice, the case under consideration is far from isolated. If we proceed from the contrary, then if the guilt of a certain person is not established, it is necessary to continue a set of measures aimed at exposing the person who committed the crime, which is absolutely meaningless in the absence of the crime itself,” he noted.
The expert drew attention to the clearly incorrect approach of the courts when considering complaints filed under Art. 125 of the Code of Criminal Procedure: “Everywhere there is a vicious judicial practice of refusing to consider such complaints, while the motivation almost always comes down to the reluctance of the court to exercise control over the preliminary investigation bodies. The principle of non-interference is flawed, given the number of violations of citizens' rights at the preliminary investigation stage. The very essence of judicial control at the stage of preliminary investigation is to protect the constitutional rights of citizens, and no one except the court will do this.”
The lawyer also drew attention to the widespread violation of the established procedural deadlines for consideration of complaints filed in accordance with Art. 125 Code of Criminal Procedure. “Personally, I am currently in the process of processing such a complaint, court hearings on which cannot take place due to the failure of representatives of the prosecutor’s office to appear in court,” said Dmitry Khomich. He added that, having been properly notified, the prosecutor simply does not come to the court hearing and the trial is postponed on this basis. “And - no court response. I don’t know how to explain to my client why the prosecutor doesn’t come to court. This, of course, is unacceptable and demonstrates the inequality of the parties in criminal proceedings,” he concluded.
Lawyer of the Vladimir Region Administration, Ph.D. Maxim Nikonov, on the contrary, believes that the Constitutional Court did not express any fundamentally new positions or containing an analysis of subtle legal “halftones”. “The conclusion that in order to refuse to initiate a criminal case due to the absence of corpus delicti in an act, it is necessary to first establish the fact of the act itself, essentially repeats the algorithm known to any student who has not taken a course in legal theory: “establishing circumstances - legal qualification established circumstances – determination of legal consequences.” If the fact itself has not been established, there is nothing to qualify under this or that article,” he believes.
According to the expert, the Constitutional Court of the Russian Federation also repeated its position that the court, when considering a complaint in the manner of judicial control, should not limit itself only to checking the formal requirements of the Code of Criminal Procedure and refuse to assess the presence or absence of a legal reason and grounds for refusing to initiate or terminate a criminal case , the factual validity of the actions being appealed. “This may be at least partly useful for practice - as another reminder for law enforcers, since, judging by the approaches of the courts of general jurisdiction in the example under consideration, the previously expressed constitutional and legal clarifications remained unread by them,” summed up Maxim Nikonov.
Study of the decision to refuse to initiate a criminal case and the materials of the pre-investigation check
After receiving the decision, you should study it in detail in order to understand what reasons the investigator used to make such a decision. It is also recommended to familiarize yourself with the materials of the pre-investigation check to verify the legality of the procedural decision and in order to avoid adding materials beyond the deadline and changing the text of the decision itself. Well, and, accordingly, knowledge of the complete material will facilitate the writing of a complete complaint, referring to specific sheets of verification material and the facts stated in them.
When reading the resolution and the materials of the inspection, special attention should be paid to the completeness of the inspection - all persons must be interviewed, the testimony set out in the explanations must be processed. It happens that an official, sometimes intentionally, sometimes due to inexperience, does not refer in the decision to any explanations, reports and other documents that may serve as a basis for extending the inspection period or initiating a criminal case.
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Complaint about refusal to initiate a criminal case in Yekaterinburg
When reviewing the materials, it is necessary to clarify the grounds for refusing to initiate a criminal case. If you find them unreasonable, you need to act. The surest way is to appeal the decision. The complaint provides arguments as to why you do not accept the conclusions of the investigation.
Every person has the right to appeal an unfounded refusal to initiate a criminal case. Most often, citizens have to deal with such moments at the level of police officers, so, as an option, the complaint is sent to the leadership of the department in which the application was considered.
You do everything yourself, delving into the specifics of legislation and procedural procedures, or engage a lawyer. Thus, our lawyer, the representative of the injured civil plaintiff, knows very well the procedure for refusing to initiate a criminal case, so his help will be helpful.
The complaint is submitted not only to the management of the department where your application was considered, but also to the prosecutor's office (often this is a more effective method), or to the court.
