Art. 124 and art. 125 of the Code of Criminal Procedure. Resolution in the manner of art. 125 of the Code of Criminal Procedure

Domestic legislation provides an opportunity for individuals to appeal decisions taken in the framework of criminal proceedings. Participants of the process and citizens whose interests affect the issued acts can act as subjects of law.

Features of claims review

They are installed art. 124, 125 of the Code of Criminal Procedure. These articles provide for challenging actions / omissions, as well as decisions:

1. The inquirer.
2. The investigator.
3. The body of inquiry.
4. The Prosecutor.
5. Head of the Investigation Department.
6. Head of Investigators' Unit.
7. Ships.

Art. 124, 125 of the Code of Criminal Procedure apply to:

1. Violations of reasonable time during pre-trial proceedings in a criminal case.
2. Decisions, omissions / actions of officials, refusal to initiate proceedings, termination of proceedings - that is, procedures that affect the interests of participants and other persons that damage their freedoms and rights, creating obstacles to justice.

Consideration of applications by the head of the investigative body, the prosecutor

The procedure according to which the claims are processed by these officials is established in art. 124 of the Code of Criminal Procedure. The head of the investigative body, the prosecutor must review the application within three days from the date of its adoption. In some cases, if you need to claim certain materials or take other measures, the period of the claim can be increased to 10 days. The applicant must be notified of this. As a result of consideration, the official issues a resolution on partial or complete satisfaction of the complaint or on refusal to do so.

A comment

When the complaint is satisfied, drawn up and sent in the manner provided for in Part 2, Art. 123 of the Code of Criminal Procedure, the decision must contain indications of procedural actions that must be carried out with a view to expediting the consideration of the case materials. In addition, it establishes the timing of their implementation. The provision of Article 124, part 3, in the constitutional legal interpretation does not allow the refusal of the prosecutor, the inquirer, the court, or the investigator to investigate and evaluate the reasons given in the application (petition) under consideration . At the same time, when making an appropriate decision, these officials are obliged to motivate him, pointing to the concrete and sufficient grounds in accordance with the principle of reasonableness, according to which the reasons were rejected or accepted. The applicant must be informed of the approved act, as well as of the procedure for his subsequent appeal immediately. In the cases provided by the Code, the investigator, the investigator may challenge the decisions, omissions / actions of the head of the division or the prosecutor to a higher-ranking official.

The complaint is in the order of art. 125 of the Code of Criminal Procedure

It is submitted for decisions on refusal to initiate a case, on the termination of criminal proceedings:

1. Head of the Investigation Department / Authority.
2. The inquirer.
3. The investigator.

Actions / omissions of a different nature that may infringe upon the freedoms and rights of concerned citizens can also be lodged with a complaint. Art. 125 of the Code of Criminal Procedure establishes that the claim must be forwarded to the district court located at the place of the preliminary investigation. As the subject of the law is the applicant, the defender, the legal representative. Claim under art. 125 of the Code of Criminal Procedure can be sent directly to the court either through the prosecutor, the head of the investigative body, the investigator, the investigator.

An Important Moment

When challenging the decision of Art. 125 of the CCP RF admits the representative of the victim to participate in the examination of the application for inaction / action or decision of the prosecutor, investigator, inquirer. It will not matter whether he participated earlier in the case or not. The representative must have the appropriate powers, confirmed in writing.

Tasks of the court

The application submitted under Art. 125 of the Code of Criminal Procedure of the Russian Federation (a sample of the document is presented in the article) should contain an accurate and clear statement of the circumstances with which the author does not agree. The court, in turn, on the basis of the arguments above, verifies the validity and legality of decisions, inaction / actions of officials. The norm establishes the period during which the claim for the decision is investigated. In the order of art. 125 of the Code of Criminal Procedure, it is not more than 5 days. Calculation of days starts from the date of receipt of the application.

How does the appeal take place?

Art. 125 of the Code of Criminal Procedure establishes that the consideration of the claim is carried out in an open session. Exceptions are cases provided for in Article 241 of the Code. The applicant, the legal representative / advocate, as well as other citizens whose interests were affected by the impugned decision or the conduct of the above-mentioned employees participate in the hearing. The failure of the parties to appear, which were timely and properly notified of the time and place of the meeting, will not be an obstacle to the review of the claim. At the beginning of the hearing, the judge announces which statement will be dealt with, submitted to the persons who appeared, explains the participants their duties and rights. After this, the applicant is given the right to substantiate his complaint. He gives the appropriate arguments, presents evidence. After his speech, other persons who appear at the meeting are heard. The applicant has the right to make a replica. According to Art. 125 of the Code of Criminal Procedure, the court makes a decision on the results of the consideration of the claim. In accordance with it:

1. The act / omission or act of an official is recognized as unreasonable or unlawful. In this case, Art. 125 of the Code of Criminal Procedure of the Russian Federation, the court will oblige the relevant employee to eliminate the violation.
2. The claim will be dismissed.

Copies of the resolution adopted in the manner of art. 125 CCP, should be sent to the head of the investigative body, the prosecutor and the applicant. Acceptance of the claim is not grounds for suspension of the impugned action, as well as execution of the decision. As an exception and if necessary, the judge, the public prosecutor, the investigator, the investigator, the head of the inquiry / investigation body may suspend the process complained of .

Ways of sending applications

You can file a complaint:

1. Personally in the office of the investigative body, the prosecutor's office, the court.
2. Telegraph / mail.
3. Through the employee conducting the investigation.

Legislation allows the expression of a claim not only in writing, but also orally. In the latter case, it must be recorded in the protocol. This document, like a written complaint, is sent within 24 hours to the head of the investigative body or to the prosecutor. The claim must be signed not only by the applicant, but also by the officials conducting the investigation. When sending a protocol and a complaint to a superior, the latter must attach their own explanations. For the prosecutor, a period of 10 days is set for the consideration of the application. This period is considered the maximum. It can not be renewed under any circumstances.

Note

The content of art. 125 of the Code of Criminal Procedure is based on constitutional provisions. In accordance with Article 46 of the Basic Law, every citizen is guaranteed judicial protection of his freedoms, interests and rights. Thus, illegal actions / omissions, decisions of state authorities, municipal government, public organizations, as well as employees of the appropriate rank can be challenged in court. The provisions of the article in question apply only to those circumstances that occurred during the pre-trial proceedings. In particular, we are talking about the stage of commencement of proceedings, conducting a preliminary investigation. As the applicant can act not only a citizen, but also a legal entity.

Additionally

In the comments to Art. 124 of the Code of Criminal Procedure states that:

1. The public prosecutor should carry out criminal prosecution on behalf of the state . At the same time, his authority includes overseeing the implementation of the procedural activities of the investigation / investigation units.
2. The prosecutor examines and resolves complaints about behavioral acts of officials involved in the conduct of criminal proceedings, in accordance with the requirements established in the relevant Federal Law and the Criminal Procedure Code.
3. The accepted claim is investigated in three days. At the end of this period, the prosecutor must issue an appropriate resolution. In part 6, art. 148 of the Code, the time for consideration of certain applications for the decision of the investigator, the investigator about the refusal to initiate criminal proceedings and the adoption of the relevant act is limited to 48 hours.
4. If the claim can not be resolved within a three-day period, the prosecutor may increase it up to 10 days. Such a situation can arise in the event that the received materials are not enough to make an objective decision. When extending the time for consideration of a complaint, the person who sent it should be notified accordingly.
5. The period during which the claim was resolved is calculated from the date of its receipt to the prosecutor's office until the day when the reply was sent to the applicant.
6. If the application is recognized, the prosecutor must take steps to eliminate violations of the law. In this regard, in his decision, there may be appropriate instructions to the official about the specific activities and actions to be carried out and the time limit for doing so.
7. Partial or complete refusal to satisfy the complaint must necessarily have a reasoned explanation, with references to legislative norms, evidence and other materials.
8. The applicant's notification of the decision is made in writing.
9. When the complaint is satisfied, the prosecutor must explain the possibility of going to court or rehabilitation to restore the infringed rights.

A prosecutor's decision may be appealed by a higher-ranking official.