What is a preliminary hearing in a criminal trial?

Preliminary hearing in a criminal trial is a stage of proceedings that is possible only if certain circumstances exist. They are installed in Art. 229, part 2 of the Code of Criminal Procedure. Let's consider them in detail in the article.

Grounds for conducting a preliminary hearing in criminal proceedings

To the circumstances, in the presence of which the considered stage of the proceedings is allowed, include:

1. Receipt of an application from one of the parties to exclude evidence.
2. Detection of circumstances under which materials can be returned to the prosecutor.
3. Detection of the facts, in the presence of which the termination or suspension of the proceedings is possible.
4. Receipt of an application from the accused for a meeting with the participation of a jury.

An application that serves as the basis for a preliminary hearing in criminal proceedings may be filed after the defendant acquainted himself with the materials or within three days after being sent to the court by the prosecutor and handed to the subject of an indictment (conclusion).

Prescriptions of the Code of Criminal Procedure

Preliminary hearing in criminal proceedings begins when there is a corresponding decision of the judge. The general rules of production are based on the provisions of the Criminal Procedure Code, which regulate the trial as a whole. They are defined ch. 35 and 36 of the Code. The procedure for conducting a preliminary hearing in a criminal proceeding is also regulated by specific provisions. They are present in art. 234 of the Code of Criminal Procedure. This norm determines that:

1. Preliminary hearing in a criminal case is held in private session by a single judge. In this case, the parties are present at the consideration of the materials.
2. Preliminary hearing in criminal proceedings can also take place in the absence of the accused. In this case, he must send a corresponding petition.
3. The notification of the summoning of the parties to the meeting shall be sent no later than three days before the day in which it is to take place.
4. The failure of the persons duly notified of the proceedings can not be an obstacle to holding it.
5. If the given stage is conditioned by the request of one of the parties to exclude the evidence, and it turns out that the second participant agrees with him, the judge satisfies him. At the same time, a preliminary hearing on the criminal case is not appointed.

Additional rules

In the process of preparation or preliminary hearing, the defense can send a petition for the involvement of a witness to confirm the alibi of the accused. This statement must be granted by the court in any case. In addition, the defense may submit a petition for the reclamation of additional items or evidence. If the court finds that they are essential to the proceedings, the petition must be granted. Witnesses may be any entities that know anything about the circumstances of the implementation of investigative actions, withdrawal or attachment of documents to the materials considered at the meeting.

An Important Moment

It is necessary to indicate a number of nuances that accompany the preliminary hearing in the criminal case. The record should contain all the events taking place at the meeting. The result of the proceedings is reflected in the decision. In this case, the ruling of the court, as a rule, is not subject to appeal. It is only possible to challenge a decision to terminate a case or to choose a preventive measure. In addition, the Constitutional Court recognized the admissibility of an appeal when the production is suspended or the jurisdiction is changed.

Petition for exclusion of evidence

The above procedure for conducting a preliminary hearing in a criminal trial is specified, depending on the circumstances. When an application is made to exclude evidence, the court must decide whether to remove any information from the list that will be considered at the meeting. This statement from the party must be submitted in writing. At the same time, the form established in Art. 235, part 2 of the Code of Criminal Procedure. In the petition, it is necessary to specify the evidence that the party believes should be deleted. In addition, the applicant must give reasons for which the decision was taken and the circumstances supporting them. The judge, in turn, must verify the petition. In the process, he has the right to interrogate witnesses, attach the document indicated in the application to the case, read out the contents of the acts and other documents. If the petition was claimed on the grounds that the evidence was obtained in violation of the provisions of the CPC, the prosecutor should refute these arguments. In other cases, the defense party must prove the validity of the grounds.

The results of the satisfaction of the application

Recognition of a statement means that a particular evidence loses legal effect and can not be taken into account when passing judgment or other decision. In addition, it can not be used and investigated in the proceedings. If a preliminary hearing in a criminal case presupposes the participation of juries, the parties or other entities involved in the examination of the materials do not have the right to inform the assessors about the existence of evidence excluded by the court from the list. It is also not permitted to disclose the circumstances justifying this decision. The court decision on the appointment of a meeting based on the results of the preliminary hearing should indicate both the excluded evidence and materials, according to which they were eliminated from the process. At the same time, it is allowed during the subsequent review to file an application for recognition as admissible.

Circumstances for returning materials to the prosecutor

If they are available, a preliminary hearing on the criminal case is appointed. This is allowed on the initiative of the judge or at the request of the party. As a circumstance according to which the materials must be returned to the prosecutor, violations of the requirements of the CPC when drafting the indictment (conclusion) are made, if they exclude the possibility of passing judgment or other decision by the court.

Uncertainty of the CCP

The Code does not provide a clear definition of violations that may be allowed in the preparation of a report or an act of prosecution. Not provided for in the CPC and the criteria by which you can judge, there is a possibility for the court to make a decision, or it is not. In this connection, disputes about the lawfulness of the decisions on the return / non-return of materials to prosecutors are quite frequent in practice. Explanations in due time gave KS and VS. The first, in particular in the Decree of 8.12.2003, noted that the provisions of Art. 237, part 1 of the Criminal Procedure Code do not exclude the power of the courts on their own initiative or in accordance with the request of the party to return the materials to the prosecutor if in the course of pre-trial proceedings there were significant violations of the law that can not be eliminated in the course of the proceedings, if this decision is not related to the completion of the preliminary Effect or inquiry. More specific explanations were given by the Plenum of the Armed Forces in the Decree of 5.03.2004. In particular, the Supreme Court indicated that violations in the preparation of the indictment (conclusion) should be recognized as non-compliance with the provisions of Art. 220, 225 of the Code of Criminal Procedure excluding the possibility of making a decision on the merits in accordance with the document. The latter, in particular, takes place when:

1. The absence in the document of instructions on the previous convictions of the subject, data on his whereabouts, information about the victim (when it was established), etc.
2. The discrepancy of the charge, stated in the conclusion / act, present in the decision on the involvement of the person as the accused.
3. Absence of the signature of the investigator / investigator, the approval stamp of the prosecutor.

In view of the foregoing, it can be concluded that a preliminary hearing in a criminal trial is appointed in the presence of violations in the written indictment / conclusion if:

1. They are essential.
2. Prevent the court's decision.
3. Elimination of their consequences is not connected with completing the completeness of the investigation or inquiry.
4. A copy of the certificate / report was not handed to the accused.
5. Elimination of consequences does not require time costs exceeding 5 days.

The purpose of returning materials to the prosecutor in case the copy of the act was not handed to the accused is understandable. The official is obliged to ensure the execution of the investigative action acting as one of the key procedural means by which the subject's right to protection is guaranteed. However, the court itself can not correct this violation. This is due to the existence of a general prescription that the authority has no right to commit any acts that cast doubt on its involvement in the prosecution.

Other circumstances of the return of materials to the prosecutor

If there is a need to draw up an indictment / conclusion in the decision on the application of compulsory medical measures, a preliminary hearing is also scheduled in the criminal trial. This circumstance is revealed when the question of placing the accused under medical supervision is raised. After reading the materials, the court may disagree with the decision on the use of medical coercive measures. In this regard, he can recognize that production must be carried out according to the general rules - with the implementation of the investigation in full and drawing up an indictment / conclusion on its results. Preliminary hearing in criminal proceedings is also appointed with:

1. Identifying the circumstances that allow to combine production into one.
2. Lack of clarification of the rights provided for the accused under Art. 217, part 5 of the Code of Criminal Procedure, when acquainted with the materials.
3. The need to take investigative measures against the subject hiding from the court.

Prescriptions of the law

When returning materials, the prosecutor must take into account a number of provisions. They must be observed, regardless of what circumstances caused the prosecutor to return the case. Legislation requires the following:

1. The question of choosing a measure of restraint to the accused, whose materials on the crime are returned to the prosecutor, is decided by the judge.
2. Evidence obtained for the correction of violations that were committed during the preparation of the indictment / conclusion, if it took more than 5 days, a priori are considered inadmissible.

Suspension or termination of production

The procedure for the preliminary hearing of the criminal process in this case is appointed in the presence of circumstances similar to those used by investigators / investigators in the investigation. However, there are two significant differences. In the list of circumstances that can guide a judge, appointing a preliminary hearing in criminal proceedings, there is no provision specified in art. 208 p. 1 p. 1 of the Criminal Procedure Code - "failure to recover the subject who is to be brought in as the accused". This is completely justified, since materials for which the guilty party is not located can not be brought to the instance. At the same time, the list of grounds is supplemented by the condition under which the court can suspend the proceedings if a request has been sent to the Constitutional Court on the constitutionality of the law to be applied when reviewing the materials. Another circumstance is the acceptance of a complaint from any party to the proceedings. In it, a participant in the process must indicate a violation of his constitutional rights by the application or possible application of a rule that is not in accordance with the Basic Law of the Russian Federation.

Explanations of the RF Armed Forces

In the Decree of 31.10.1995 the Plenum indicated that, firstly, the request of the court should be made in writing. Secondly, the document should include the exact name, date of adoption, number, source of publication and other data on the legislative act subject to verification. In addition, the court in its request indicates the reasons for which it was decided to send the application. Also in this Decree, the Supreme Council recommended the courts to simultaneously change the measure of restraint for the accused, if he was at that time in custody. This is quite an important observation, since the consideration of requests in the CC takes a considerable time span.

Admissible solutions

When the proceedings are suspended, the judge has the right to issue a resolution on the return of the materials to the prosecutor. In this case, there are 2 possible solutions:

1. During the escape of the accused, who is in custody, a decision is issued in which the prosecutor is instructed to ensure the search for a person.
2. If the subject who was at large disappeared, a decision is taken on the judge's initiative to search, detain and put him in custody.

Exceptions

At the preliminary hearing, the court can not decide on the termination of the case, if circumstances are revealed that indicate the existence of rehabilitating grounds for closing production or completing the prosecution. In this case, production is carried out according to general rules. Upon confirmation of the found rehabilitating circumstances, the court issues an acquittal. In the course of the preliminary hearing, an additional basis may be identified, which obliges you to take a decision to terminate the proceedings. They are the prosecutor's refusal of the charge. In this case, the rules specified in art. 246 part 7 of the Code of Criminal Procedure.

Jury participation

Preliminary hearing in the criminal proceedings in the presence of a petition for the involvement of assessors is based on general rules. However, taking into account the specifics of such production, the legislation establishes a number of reservations:

1. A crime, for which several entities are being brought to responsibility, is considered against all of them, if at least one of them has received a petition for bringing in the jury.
2. If the relevant application was not sent or was not confirmed during the meeting, the proceedings are conducted in a different composition of the court. It is determined by the rules of Art. 30 of the Code of Criminal Procedure.
3. In the resolution, which provides for a preliminary hearing in a criminal case, in addition to resolving other issues, the number of candidates for assessors to be called, which must be at least 20, is determined.

The decision to institute a jury trial is considered final. Subsequently, the defendant's refusal to consider the case in such a composition is not accepted. At the request of the parties, they are given copies of the order.

Specificity of the procedure

For a more complete characterization of the institute of preliminary hearings, it is also necessary to say that in case of revealing two or more grounds for its appointment, one meeting is held. According to its results, appropriate decisions are made. For example, in practice, it is often the case that preliminary hearings are held before a jury session, which also discusses the exclusion of evidence or the addition of their list. The decisions made are usually fixed in one resolution.

Conclusion

In the Code of Criminal Procedure, unfortunately, the very concept of preliminary hearing of the criminal process is not explained. As it is known, there are several stages in it. First, investigators are investigated by investigators or investigators. After that, the materials go to the prosecutor. He issues an indictment / conclusion and sends the case to the court. Proceedings can be conducted in accordance with general rules. However, in the presence of the circumstances discussed above, a preliminary hearing is scheduled. In general, it is necessary to remove obstacles to proceedings under general rules. If the defendant has a defender, then a preliminary hearing in the criminal case without a lawyer is not carried out. Moreover, in many cases, its presence is extremely important and necessary. The lawyer will be able, for example, correctly, relying on legislation, to justify the reasons for excluding evidence from the case file. When appointing a session, judges should take into account not only the norms of the Criminal Procedure Code, but also the explanations of the Constitutional and Supreme Courts. In their decisions, the legislative rules are specified, the specifics of their application are explained. Special attention should be paid to the solution of the question of bringing to the jury. The accused, who submits the relevant application, must clarify the requirements of the legislation, warn that his subsequent refusal to hear such a hearing will not be accepted. Also it is necessary to study comprehensively the indictment received from the public prosecutor.