CONTENT
INTRODUCTION 3
CHAPTER 1. STATEMENT OF A CRIME AS A REASON TO BRING CRIMINAL PROCEEDINGS.
1.1. Registration and verification of crime reports. Guarantees constitutional rights citizens when contacting law enforcement agencies.. 6
1.2. General characteristics of legal relations that arise when filing a complaint about a crime. 29
CHAPTER 2. FEATURES OF THE LEGAL STATUS OF THE APPLICANT DEPENDING ON THE TYPE OF CRIMINAL PROSECUTION.. 46
2.1. The legal status of the applicant when initiating a criminal case of public and partial public prosecution. 46
2.2. The legal position of the applicant in the proceedings on cases of private prosecution before the justice of the peace. 60
CONCLUSION. 68
LIST OF USED LITERATURE.. 73
INTRODUCTION
Protection of the rights and legitimate interests of the individual is a cross-cutting task of all criminal proceedings Russian Federation. According to Art. 2 of the Code of Criminal Procedure of the Russian Federation, criminal proceedings should contribute to the strengthening of law and order, the prevention and eradication of crimes, the protection of the interests of society, the rights and freedoms of citizens.
Each stage of the criminal process, except for the implementation of the general tasks of legal proceedings, has its own specific tasks, each of them has certain subjects.
An analysis of the current legislation and the practice of resolving information about crimes allows us to conclude that at this stage, a fairly wide range of persons performing various functions and defending various interests are involved in criminal procedure activities. Thus, when resolving information about crimes, as a rule, other persons are involved in procedural activities besides the applicant.
The relevance of the topic is due to the fact that the norms on reporting a crime provided for by the Code of Criminal Procedure of the Russian Federation are included in the system of norms on initiating a criminal case. Despite the short-term nature, the stage of initiating a criminal case is an important stage in the criminal procedure activities of the bodies of inquiry, the investigator, the prosecutor and the court. Legal and justified decisions at the stage of initiating a criminal case contribute to the effective fulfillment of the tasks of criminal proceedings and are the key to solving crimes, identifying the perpetrators, as well as ensuring the rights and legitimate interests of citizens. Thus, the stage of initiating a criminal case is an essential legal guarantee against unreasonable involvement of a person in the orbit of criminal proceedings. Often, the applicant's goals coincide with public and state ones and consist in attracting the accused precisely to criminal liability.
Therefore, the purpose of this work is to study the institute of reporting a crime and identifying the shortcomings of its legal regulation. The author sets the following tasks for the work:
1. Conduct an analysis of the norms of the current legislation governing the consideration of applications from victims and other persons.
2. Conduct an analysis of the provisions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, as well as judicial practice on this issue, to identify the position of judicial practice on the issue under consideration.
3. Consider the features of the legal status of a crime statement depending on the type of criminal prosecution.
4. Identify the problems of modern legal regulation of the institution in question and suggest ways to solve them.
Within the framework of these directions it is supposed to solve the following tasks:
– to identify trends in the development of the norms of Russian legislation on statements about a crime;
- to determine the forms, essence and social and legal significance of statements about a crime;
- define legal status applicant in criminal proceedings;
– to analyze the legislation of the Russian Federation on allegations of a crime, judicial practice.
The research methods used to study these problems are the modern provisions of the theory scientific knowledge social processes and legal phenomena. It seems appropriate to use the following private scientific methods: comparative legal, social legal, systemic and structural.
The degree of scientific development of the problem. The concept of reporting a crime is widely used in legal science and law enforcement practice.
The coverage of certain problems of reporting a crime in criminal proceedings takes place in the works of such scientists, as well as many others, in the comments on the criminal procedural legislation and textbooks on the criminal process. However, the solution of the tasks set for the work is complicated by the fact that at present there are no systematized scientific developments that make it possible to establish the legal nature, the fundamental theoretical characteristics of a statement about a crime in criminal proceedings.
The object and subject of research are determined by the subject of the work, its purpose and objectives.
The object of scientific analysis of this work is the statement about a crime as a theoretical category and as a legal phenomenon of social reality, the legal status of the applicant.
The subject orientation is determined by the selection and study, within the framework of the stated topic, legal sources, as well as judicial practice.
The empirical base of the study is built on normative material and judicial practice. The normative basis was: the Constitution of the Russian Federation, federal legislation. Judicial practice is represented by clarifications of the Supreme Court of the Russian Federation.
The scientific novelty of the study lies in the fact that it is one of the attempts of a comprehensive theoretical and legal analysis of the statement about a crime as a legal phenomenon, an institution present in the Code of Criminal Procedure of the Russian Federation.
CHAPTER 1. STATEMENT OF A CRIME AS A REASON FOR INITIATING A CRIMINAL PROCEEDING
1.1. Registration and verification of crime reports. Guarantees of the constitutional rights of citizens when applying to law enforcement agencies
Article 144 of the Code of Criminal Procedure of the Russian Federation is one of the most voluminous articles of Chapter 19 of the Code of Criminal Procedure of the Russian Federation. It provides for a preliminary verification of statements (reports) about a crime, some of the means of this verification and the procedure for their implementation, establishes the time limit for the stage of initiating a criminal case, the procedure and limits for its extension, guarantees for compliance with the requirements of the law regarding the acceptance of a statement about a crime, as well as other criminal procedural provisions. Meanwhile, not all commentators paid due attention to explaining its content. Some authors, in their comments on this article, basically repeat only what is written in it, while explaining almost nothing.
In the content of Article 144 of the Code of Criminal Procedure of the Russian Federation, especially in its part 1, the legislator fixes criminal procedural ideas somewhat conditionally. In this part, as well as in the second and third parts of the rule of law under study, we are talking about the inquirer, the body of inquiry, the investigator and the prosecutor. That is why most of the authors in their comments to this article also limit the circle of subjects carrying out criminal procedural activities at the stage of initiating a criminal case, only to the indicated officials and bodies. And some, moreover, speak of all law enforcement officers as persons who are entrusted with the duty of accepting a statement (report) about a crime.
Meanwhile, the obligation to accept and verify a statement (report) about a crime (the right, in certain cases, Part 2 of Article 144 of the Criminal Procedure Code of the Russian Federation) to demand from the editorial office, the editor-in-chief of the mass media, the documents and materials at his disposal confirming the report of the crime, as well as data about the person who provided the specified information, as well as to apply for an extension of the period for preliminary verification) is assigned (provided) not only to the persons specified in this article, but, however, not to all law enforcement officers.
Only an official whose competence includes initiating a criminal case is obliged and entitled to accept a statement (message) about a crime and carry out its preliminary verification.
In addition to the persons listed in Article 144 of the Code of Criminal Procedure of the Russian Federation, under certain conditions, one of which is obtaining the consent of the prosecutor, to initiate a criminal case, and therefore to accept a statement (report) about a crime, as well as to carry out its preliminary check, can (are obliged) also head of the investigation team (Article 163 of the Code of Criminal Procedure of the Russian Federation) and head of the investigation department. The fact that the status of the head of the investigation department allows him to have all the provisions of Art. 38 of the Code of Criminal Procedure of the Russian Federation with the rights of an investigator (part 2 of article 39 of the Code of Criminal Procedure of the Russian Federation), and therefore, provided for in paragraphs 1 and 5 of part 2 of Art. 38 Code of Criminal Procedure of the Russian Federation with the rights:
a) initiate a criminal case in accordance with the procedure established by the Code of Criminal Procedure of the Russian Federation;
b) to exercise other powers of the investigator provided for by the Code of Criminal Procedure of the Russian Federation.
The head of the investigation team has the right to separate criminal cases into separate proceedings in the manner prescribed by Art. Art. 153 - 155 Code of Criminal Procedure of the Russian Federation. And this means that he is also authorized to separate a criminal case into a separate proceeding for preliminary investigation a new crime, as well as in relation to a new person. The same decision according to the requirements of Part 3 of Art. 154 of the Code of Criminal Procedure of the Russian Federation cannot be adopted without simultaneously initiating a criminal case. The issue of the possibility of accepting a statement (message) about a crime and preliminary verification not by the head, but by a member of the investigation team remains controversial. And although it seems to us possible, a clear legal basis this judgment does not yet have. This suggests that in all cases when a member of the investigation team is contacted with a statement (report) about a crime, the latter is recommended to take measures to ensure that this fact becomes known to the head of the investigation team and that the authority to accept the statement (report) about crime and its preliminary verification by the head of a member of the investigation team were delegated, or the above actions were carried out with the participation of the head of the investigation team.
The concept of "law enforcement officer" is too broad to be used as a synonym for a group officials, obliged to accept statements (messages) about a crime.
A law enforcement body is an institution, and in some cases an official or other person (for example, a judge, an investigator, a citizen providing legal assistance), which, according to the law, is obliged and entitled to protect the rights, freedoms and legitimate interests of individuals (legal) persons, the state as a whole, subjects of the Russian Federation, municipalities and (or) ensure law and order.
In addition to persons authorized to receive statements (messages) about a crime and carry out other criminal procedural activities at the stage of initiating a criminal case, it is customary to include the following law enforcement agencies:
1) the Constitutional Court of the Russian Federation;
2) Constitutional, Charter courts of the constituent entities of the Russian Federation;
3) arbitration courts (the Supreme Arbitration Court of the Russian Federation, federal arbitration courts of districts, arbitration courts of constituent entities of the Russian Federation);
4) International Commercial Arbitration Court;
5) Maritime Arbitration Commission under the Chamber of Commerce and Industry of the Russian Federation;
6) Arbitration courts for resolving economic disputes;
7) Ministry of Justice of the Russian Federation;
8) Judicial Department under the Supreme Court of the Russian Federation;
9) notaries;
10) advocacy (bar association, law office, bar association, law office and legal advice);
11) some other law enforcement agencies that do not carry out criminal procedural activities.
Most of the employees of these law enforcement agencies are generally not subjects of the criminal process by their position. Only a lawyer can take part in criminal proceedings, but he is not entitled to receive statements (reports) about a crime.
It is also not only the inquirer and the investigator who have the right to apply for an extension of the term for the preliminary verification of an application (report) about a crime. The head of the investigation team may also have this right. If the head of the investigative department or the prosecutor conducts the above check independently, they are not required to apply to anyone for an extension of its term. They make this decision on their own. Nevertheless, the said decision in this case must also find its written reflection in the materials of the preliminary check.
Preliminary verification of statements (reports) about a crime is carried out by using procedural means of verification, as well as using the results of the use of non-procedural means of verification involved in the criminal process.
In the literature, the opinion has been expressed that the verification of the reason for initiating a criminal case is carried out taking into account the rules of Art. 87 Code of Criminal Procedure of the Russian Federation. Since the majority of proceduralists recognize the possibility of proving at the stage of initiating a criminal case, this thesis has the right to exist. It is only necessary to pay attention to the specifics of both proof and verification at the stage of initiating a criminal case, which is expressed in the means, tasks, subject and subjects of proof.
Article 144 of the Criminal Procedure Code of the Russian Federation repeatedly uses the concept of "reporting a crime". Even Part 4 of Article 144 of the Code of Criminal Procedure of the Russian Federation, where the right of the applicant to receive a document confirming the acceptance of his application, is referred to as a message, and not a statement.
Accordingly, “reporting a crime” in this article does not always mean the same concept. This term is used in one article in three meanings at once.
In Parts 1 and 5 of Article 144 of the Criminal Procedure Code of the Russian Federation, reporting a crime means not only a reason for initiating a criminal case, which is referred to in paragraph 3 of Part 1 of Art. 140 of the Code of Criminal Procedure of the Russian Federation, but also any other reason listed in the named article of the Code of Criminal Procedure of the Russian Federation, including a statement about a crime and a confession. In Part 2 of Article 144 of the Criminal Procedure Code of the Russian Federation, a report on a crime is understood only as a certain kind of report on a committed or impending crime received from other sources - a report on a crime distributed in the media. On the acceptance of such a message in accordance with the requirements of Art. 143 of the Code of Criminal Procedure of the Russian Federation, a report must be drawn up on the discovery of signs of a crime. In Part 4 of Article 144 of the Criminal Procedure Code of the Russian Federation, the term “reporting a crime” is used by the legislator in the meaning of a statement about a crime, that is, a reason for starting a criminal process (initiating a criminal case), provided for in paragraph 1 of Part 1 of Art. 140 and Art. 141 Code of Criminal Procedure of the Russian Federation.
If we do not pay special attention to some inconsistency of the legislator, which manifested itself in the wording of Parts 2 and 4 of Article 144 of the Criminal Procedure Code of the Russian Federation, we can conclude the following. Any reason for starting a criminal process (initiating a criminal case) can be checked by criminal procedural means at the stage of initiating a criminal case. The period of verification should be calculated from the date of the first receipt by the body of inquiry, the inquirer, the investigator, the head or member of the investigation team, the head of the investigation department or the prosecutor of information about the act (consequences) being prepared, being committed or committed, containing procedurally significant signs of the objective side of the corpus delicti.
In the manner prescribed by Art. Art. 124 and 125 of the Code of Criminal Procedure of the Russian Federation, a refusal to accept both an application for a crime and an application for surrender, as well as a message about a committed or impending crime received from other sources, can be appealed, but only in cases where these sources of information about crime were the first from which the authorities (officials) competent to initiate a criminal case learned about this particular socially dangerous act.
Part 1 of Article 144 of the Criminal Procedure Code of the Russian Federation states that the interrogating officer, the body of inquiry, the investigator and the prosecutor make a decision “within the limits of their competence” on an application (report) about a crime. This phrase is subject to broad interpretation. The competence of the body of inquiry, the inquirer, the investigator, the head or member of the investigative group, as well as the head of the investigative department, limits not only their right to initiate a criminal case, but also their ability to conduct a preliminary verification of a statement (report) about a crime. By general rule If the body or official is not authorized to initiate a criminal case on this specific fact of committing a socially dangerous act, then they are not entitled to carry out a preliminary check on it in full.
This legal position is reflected, for example, in the Federal Law "On the Prosecutor's Office of the Russian Federation". According to the requirements of Art. 42 of the Federal Law "On the Prosecutor's Office of the Russian Federation", only the prosecutor's office (investigators of the prosecutor's office and prosecutors) can verify reports of the facts of an offense committed by a prosecutor or an investigator of the prosecutor's office, and initiate criminal proceedings against them (except in cases where the prosecutor or investigator is caught when committing a crime).
As a prerequisite under which an official or body has the right to initiate a criminal case, the concept of “within its competence” aims the law enforcement officer to comply with the following two legal provisions.
Firstly, the investigator, the body of inquiry, the investigator, the head and member of the investigation team, the head of the investigation department and the prosecutor do not always have the right to initiate a specific criminal case. In a number of cases, the competence of the body of inquiry and the interrogating officer is limited to incidents under their jurisdiction. So, for example, the captains of sea and river vessels on a long voyage have the right to initiate criminal cases only about crimes committed on these ships (clause 1, part 3, article 40 of the Code of Criminal Procedure of the Russian Federation). Investigators, heads and members of the investigation team, heads of the investigation department, and in some cases prosecutors are not entitled to initiate a criminal case in cases where the legislator has granted the right to initiate it against a specific official to a strictly defined body of preliminary investigation. For example, according to the requirements of paragraphs 1 and 2 of part 1 of Art. 448 of the Code of Criminal Procedure of the Russian Federation, the decision to initiate a criminal case against a member of the Federation Council and a deputy State Duma may be adopted only by the Prosecutor General of the Russian Federation, and in relation to the Prosecutor General of the Russian Federation himself - by a body specially created for this purpose - a collegium consisting of three judges of the Supreme Court of the Russian Federation.
Secondly, an interrogating officer, an inquiry body, an investigator, a head and a member of an investigative group, the head of an investigative department have the right to initiate a criminal case only with the consent of the prosecutor (Part 1, Article 146 of the Code of Criminal Procedure of the Russian Federation). And when initiating criminal cases against certain categories of persons, the legislator provides additional guarantees for the observance of their rights and legitimate interests, additional guarantees of the inviolability of persons against whom the issue of initiating a criminal case is being decided.
Thus, the Prosecutor General of the Russian Federation may initiate a criminal case:
- in relation to a judge of the Constitutional Court of the Russian Federation on the basis of the conclusion of a panel consisting of three judges of the Supreme Court of the Russian Federation on the presence of signs of a crime in the actions of the judge and with the consent of the Constitutional Court of the Russian Federation (clause 3, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation);
- in relation to a judge of the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, the supreme court of a republic, a regional or regional court, a court of a city of federal significance, a court of an autonomous region and a court of an autonomous district, a federal arbitration court, a district (naval) military court on the basis of the conclusion of a collegium, consisting of three judges of the Supreme Court of the Russian Federation, on the presence in the judge's actions of signs of a crime and with the consent of the High Qualifications Board of Judges of the Russian Federation (clause 4, part 1, article 448 of the Criminal Procedure Code of the Russian Federation);
- in relation to other judges on the basis of the conclusion of a panel consisting of three judges of the supreme court of the republic, a regional or regional court, a court of a city of federal significance, a court of an autonomous region and a court of an autonomous district, on the presence of signs of a crime in the judge's actions and with the consent of the relevant qualification board of judges (Clause 5, Part 1, Article 448 of the Code of Criminal Procedure of the Russian Federation);
- in relation to a member of the Federation Council and a deputy of the State Duma, only upon receipt of the conclusion of a panel consisting of three judges of the Supreme Court of the Russian Federation on the presence of signs of a crime in the actions of a member of the Federation Council or a deputy of the State Duma and with the consent of the Federation Council and the State Duma, respectively (clause 1 part 1 article 448 of the Code of Criminal Procedure of the Russian Federation).
Moreover, if a member of the Federation Council, a deputy of the State Duma, in the process of expressing an opinion or expressing a position when voting in the corresponding chamber of the Federal Assembly of the Russian Federation or in carrying out other actions corresponding to the status of a member of the Federation Council and the status of a deputy of the State Duma, committed public insults, slander or other violations , liability for which is provided for by federal law, a criminal case is initiated against them only if a member of the Federation Council, a deputy of the State Duma is deprived of immunity (part 6 of article 19 of the Federal Law “On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation ").
The decision to initiate a criminal case against a deputy of the legislative (representative) body of state power of a constituent entity of the Russian Federation is made by the prosecutor of the constituent entity of the Russian Federation on the basis of the conclusion of a panel consisting of three judges of the supreme court of the republic, a regional or regional court, a court of a city of federal significance, a court of an autonomous region and courts of the autonomous district (clause 9, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation); and in relation to an investigator, a lawyer - by a prosecutor on the basis of the opinion of a judge of a district court, and in relation to a prosecutor - by a higher prosecutor on the basis of an opinion of a judge of a district court at the place of commission of the act containing signs of a crime (clause 10, part 1, article 448 of the Code of Criminal Procedure of the Russian Federation).
The presence of certain conditions that limit the limits of competence (subordination) of the body of inquiry, the inquirer, the investigator, the head of the investigation team, the head of the investigation department and the prosecutor, imposes a specific connotation on the concept of “any committed or impending crime” used in Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation.
It turns out that these officials (bodies) are not only not obliged, but also not entitled to accept and verify a statement (message) about any crime. They are obliged to accept and verify a statement (message) about any crime committed, being committed or being prepared under their jurisdiction.
The body of inquiry, the inquirer, the investigator, the head of the investigative group, the head of the investigative department and the prosecutor have the duty (and not only the right) to accept and verify a statement (message) about any crime under their jurisdiction within their competence.
This obligation is one of the manifestations of the general rule enshrined in Art. 2 of the Constitution of the Russian Federation, - the duty of the state to observe and protect the rights and freedoms of man and citizen. Article 144 of the Criminal Procedure Code of the Russian Federation enshrines one of the important components of the principle of publicity of the Russian criminal process, the essence of which is that the protection of the rights, freedoms and legitimate interests of citizens, an indefinite circle of persons or the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities from criminal encroachments is important and responsible duty of law enforcement agencies, and not the business of the citizens themselves.
The public beginning of the Russian criminal process is expressed primarily in the duties of the above officials and government agencies accept statements (reports) about a crime, resolve them, initiate criminal cases of public prosecution within its competence and carry out criminal prosecution based on procedural and substantive law in criminal cases. In most cases, criminal prosecution should be carried out regardless of whether the victim wishes it or not, whether he has reconciled with the accused (suspect) or not.
In other words, the criminal process begins, is conducted and ends with an appropriate decision not only and not so much in the interests of the prosecution (although this circumstance is also not discounted), but in the interests of the whole society, in the name of justice and in order to prevent the repetition of similar crimes in the future as by the same person and by others.
Exceptions to the principle of publicity are the provisions of Art. Art. 23, 25 of the Code of Criminal Procedure of the Russian Federation, the procedure for resolving statements about crimes listed in Art. 20 of the Code of Criminal Procedure of the Russian Federation, as well as consideration of cases of private prosecution.
Based on the wording of Part 1 of Article 144 of the Criminal Procedure Code of the Russian Federation, it can be concluded that both the first and second tasks are faced by the body of inquiry, the inquirer, the investigator, the head of the investigation team, the head of the investigation department and the prosecutor at the same time. This is the dual task of the stage of initiating a criminal case.
At the stage of initiating a criminal case, coercion is minimized. Most authors believe that in the production of a preliminary verification of a statement (message) about a crime, the use of measures of criminal procedural coercion is not allowed. The interrogated person cannot be held responsible and, accordingly, is not warned about the responsibility for refusing to testify and for giving knowingly false testimony, and also cannot be brought to justice. The legislator did not provide for the possibility of applying coercion to a person who has information about a crime at this stage of criminal procedure in order to obtain information from him. That is why the terms "selection" and "reclamation" seem to be less relevant to the action applied at this stage of the criminal process than the term "receipt". Explanations are obtained, not selected or demanded.
The list of means by which the tasks of the stage of initiating a criminal case are solved is quite wide, but not unlimited. Among them, only two can be called procedural: the requirement to transfer documents and materials and the inspection of the scene. Only they are covered by the procedural form. And although Art. 144 of the Criminal Procedure Code of the Russian Federation only mentions the requirement to transfer documents and materials, this action cannot be carried out without observing the principles of the criminal process.
The form of the requirement stipulated by part 2 of article 144 of the Criminal Procedure Code of the Russian Federation for the transfer of documents and materials confirming the report of a crime, as well as data on the person who provided the specified information, is not defined by law.
The request for the transfer of documents, materials and information should be addressed to the editorial board or the editor-in-chief of the mass media. Moreover, according to parts 9 and 10 of Art. 2 of the Law of the Russian Federation “On the Mass Media”, the editorial office of a mass media means an organization, institution, enterprise or citizen, an association of citizens engaged in the production and release of mass media; and the editor-in-chief is the person who heads the editorial office (regardless of the title of position) and makes the final decisions regarding the production and release of the media.
The analyzed requirement may be formalized by a request, a protocol of requirements and other written documents.
It is recommended that the record of the claim be drawn up by analogy with the form of the seizure record, with reference to Art. 144 Code of Criminal Procedure of the Russian Federation. It undoubtedly meets the requirements of the procedural form, procedural guarantees and principles of the criminal process to a greater extent than the protocol (act) of seizure not provided for by the Code of Criminal Procedure of the Russian Federation, but often used earlier.
In Art. 144, as well as other articles of the Code of Criminal Procedure of the Russian Federation, do not contain provisions that allow verification of statements (reports) about a crime by appointing any research. Meanwhile, without such results, it is sometimes impossible to make a legal decision to initiate or refuse to initiate a criminal case. A broad interpretation of the provisions of part 2 of article 144 of the Criminal Procedure Code of the Russian Federation would allow to resolve the problem posed.
The results of the research could be legally involved in the criminal process if the requirement mentioned in Part 2 of Article 144 of the Criminal Procedure Code of the Russian Federation could be addressed not only to the editorial office or the editor-in-chief. Then it would be possible to recommend drawing up, by analogy with the decision on the appointment of a forensic examination, a decision requiring the provision of research results. In such a decision, reference should be made to Art. 144 Code of Criminal Procedure of the Russian Federation. When drawing up this procedural document, the competent authority does not appoint a study, but requires the transfer of materials - the results of the study.
According to Art. 2 of the Law of the Russian Federation "On the Mass Media", the mass media means periodic printed edition, radio, television, video program, newsreel program, other form of periodic distribution of mass information and, accordingly, under mass media- printed, audio, audiovisual and other messages and materials intended for the general public.
Verification of a message about a crime circulated in any of the forms of periodic distribution of mass information can be carried out only on behalf of the prosecutor. Accordingly, without such a body of inquiry, an inquirer, an investigator, a head or a member of an investigative group and the head of an investigative department, there is no obligation to conduct this check.
However, the provisions of Part 1 in conjunction with the provisions of Part 2 of Article 144 of the Criminal Procedure Code of the Russian Federation suggest that the prosecutor has an obligation to instruct one of the above officials (bodies) to conduct an analyzed check in each case he discovers a message about a crime circulated in the media mass media.
Part 2 of Article 144 of the Criminal Procedure Code of the Russian Federation provides an opportunity for the editor-in-chief (editorial office) of a mass media outlet not to comply with the requirement to provide the preliminary investigation body with information regarding the person who reported the crime. He has such a right in the case when the person who reported the crime to the mass media has set a condition to keep information about it secret. Meanwhile, this rule applies only to the requirement that comes from the body of inquiry, the inquirer, the investigator, the head or member of the investigation team, the head of the investigation department or the prosecutor at the stage of initiating a criminal case. It does not limit the provisions of Part 4 of Art. 21, part 1, art. 86, art. Art. 182, 183 of the Code of Criminal Procedure of the Russian Federation, the powers of the prosecutor, investigator, body of inquiry and interrogating officer, which they have in the process of preliminary investigation.
If the request came from the court, in connection with the case being processed by it, the editorial office is obliged to disclose to the court the source of information and in any case name the person who provided the information to it, even when the information was provided on the condition of not disclosing the name of the informant (part 2 article 41 of the Law of the Russian Federation "On the Mass Media").
In accordance with the provisions of Part 1 of Article 144 of the Criminal Procedure Code of the Russian Federation, a decision must be made on an application (report) about a crime within three days. This rule is valid only when the reason for the beginning of the criminal process already contains sufficient data indicating the signs of the objective side of the corpus delicti, that is, there is no need to check it for a long time.
If in order to establish the presence or absence of grounds for initiating a criminal case (grounds for refusing to initiate a criminal case), it is necessary to carry out a more detailed and, accordingly, longer verification of a statement (report) about a crime, the investigator (head of the investigative team) or the interrogating officer initiates before the head of the investigative department, respectively ( prosecutor) or the head of the body of inquiry, a petition for an extension of the inspection period.
The inquirer shall file a petition with the head of the body of inquiry. As a general rule, the investigator (head of the investigation team) extends the term for the preliminary verification of the application (report) about the crime with his head - the head of the investigation department. Meanwhile, both the inquiry officer, the investigator, and the head of the investigative group have the right to apply to the prosecutor for an extension of the term. The fact that before that they were denied the extension of the term for the preliminary verification of an application (report) about a crime by the head of the body of inquiry or the investigation department does not deprive them of the opportunity to file a similar petition with the supervising prosecutor.
In some institutions, in the structure of which there are officials authorized to conduct a preliminary investigation, there are no investigative departments. A preliminary investigation is carried out by a group of investigators or even by a single investigator when there is only one investigator in a given institution. In such a situation, the powers of the head of the investigative department are vested in the senior investigator (leader of a group of investigators) or the investigator, who is the only body in the institution. preliminary investigation. Possessing a set of rights and obligations of the head of the investigative department, such an investigator has the right to independently extend the period for preliminary verification of an application (report) about a crime. Meanwhile, the decision taken by him should be reflected in writing in the materials of this particular preliminary check.
The legislator does not require a petition to extend the term for preliminary verification of an application (report) about a crime, as well as a decision taken on it in the form of a resolution. However, in any case, it must be in writing, and the content of this document must be motivated.
The head of the investigative department, the prosecutor, as well as the head of the body of inquiry, has the right to extend the check for any period, so that the period of the check does not exceed 10 days. Extending the check for a longer period is a violation of the law.
The verification must be completed either by the initiation or refusal to initiate a criminal case. The decision to transfer the message according to jurisdiction (jurisdiction) in accordance with paragraph 3 of part 1 of Art. 145 of the Criminal Procedure Code of the Russian Federation does not complete the term of the stage of initiating a criminal case and therefore does not affect the course (calculation) of the period for consideration and resolution of an application (report) about a crime.
The opposite point of view was expressed by Kalinovsky K.B. He believes that "if the message about the crime was transferred under jurisdiction, then the period of verification is calculated anew - from the moment the message was received by another investigation body."
It is difficult to agree with this approach. As Shevchuk A.N. correctly notes, “the law does not provide for the possibility of calculating the time limits under consideration anew (we are talking about calculating the period for preliminary verification after receiving a report on a crime transferred under jurisdiction) upon receipt of an application to a body or official under jurisdiction ... However, receiving in this manner, the application may serve as a basis for extending the 3-day period for its consideration.
If within 10 days it was not possible to collect sufficient data indicating the signs of the objective side of the corpus delicti, that is, the investigator (interrogating officer, etc.) has no grounds for initiating a criminal case, a decision is made to refuse to initiate a criminal case in accordance with the requirements Part 1 Art. 148 Code of Criminal Procedure of the Russian Federation. When, after some time, the grounds for initiating a criminal case appear, the legally issued decision to refuse to initiate a criminal case will be canceled and a criminal case will be initiated.
Enshrined in Part 4 of Article 144 of the Code of Criminal Procedure of the Russian Federation, the institution of issuing to the applicant a document on the receipt of a report of a crime indicating the data on the person who received it, as well as the date and time of its acceptance, is closely connected with the institution of registration of statements (messages) about a crime.
The requirement to issue the said document to the applicant was previously contained only in departmental regulations and was an additional departmental guarantee of the observance of the rights and legitimate interests of the applicant. At present, departmental guarantees have been supplemented by a criminal procedural requirement. Accordingly, the provisions of Part 4 of Article 144 of the Criminal Procedure Code of the Russian Federation cannot be considered in isolation from the rules for receiving and registering statements (messages) about a crime.
In the internal affairs bodies, the procedure for registering statements (messages) about a crime is regulated by the Instruction on the procedure for receiving, registering, recording and resolving in the bodies and institutions of internal affairs statements, messages and other information about crimes and incidents. In the bodies of the Federal Security Service of Russia - the Instruction on the Procedure for Considering Proposals, Applications and Complaints from Citizens in the Bodies of the Federal Security Service, etc.
Information about crimes and incidents, regardless of the place and time of their commission, as well as the completeness of the information reported, should be received in any internal affairs body around the clock by full-time duty officers, their assistants or employees assigned to duty in the manner established by the department.
Statements (messages) about crimes and incidents received by the office (secretariat) of the internal affairs body by mail, telegraph, by courier, etc., are registered according to the general rules for registering incoming correspondence, reported to the head of the internal affairs body or the person replacing him, which, depending on the information contained, give a written instruction on the registration of the application or message in the duty department and decide on the procedure for its verification. The transfer of such information for verification and execution without registration in the duty unit is strictly prohibited.
Upon receipt of a statement about a crime directly from the applicant and drawing up a “report on the acceptance of an oral statement about a crime”, the duty officer of the internal affairs body or another employee of the internal affairs body is obliged to immediately issue a notification coupon to the applicant. Coupon - notification consists of two parts - a tear-off sheet and a spine having the same registration number. A tear-off sheet is the document referred to in Part 4 of Article 144 of the Code of Criminal Procedure of the Russian Federation.
It is in it that information is indicated on the date of receipt of the statement about the crime, the official who received it and the applicant. Some proceduralists consider it necessary to reflect in the coupon - notification also information about which crime the application was accepted
Coupon - notice must be given to the applicant. The stub of the coupon, which contains information about the applicant, a summary of the application and the date of its receipt, as well as the number and date of its registration, remain with the official receiving the application for a crime. At the same time, the applicant should be given the opportunity to sign on the stub of the coupon - notification and to put down the time and date when he received the coupon - notification.
It may happen that the applicant filed a complaint about a crime on one day, and a document on the acceptance of a report about a crime is issued to him the next day or even after a few days. In this case, the applicant not only in the manner prescribed by Art. Art. 124 and 125 of the Code of Criminal Procedure of the Russian Federation, has the right to appeal against this illegal action (inaction) of the person who received the statement about the crime, but also to insist on reflection in the coupon - notification and the back to the coupon - notification of the true time and date of acceptance of the statement of crime from him.
The time and date of receipt of a report on a crime is the time and date when a person who is competent to receive a report on a crime was approached by a citizen with a complaint about a crime, or when such a person received it by mail, by courier, etc.
Statements and reports of crimes are immediately registered in the Book of Records of Statements and Reports of Crimes (abbreviated - KUP), and other information - in the Journal of Records of Information received by the internal affairs body by telephone, telegraph, in the form of triggering of burglar alarms and other signals about incidents (abbreviated as JUI).
Anonymous messages in the internal affairs bodies are not registered. They are either immediately destroyed or transferred to operational services for use in the suppression and detection of crimes.
When registering information about crimes and incidents received in writing, a registration stamp of the internal affairs body is affixed to the document, including: the date of registration, the serial number of the registration entry and the name of the person on duty who received the information. The records are signed by the duty officer of the internal affairs body.
According to clause 1.3 of the Order of the Ministry of Internal Affairs of Russia No. 1058 and the Prosecutor General's Office of the Russian Federation No. 72 of November 28, 2001 "On measures to strengthen the rule of law in the activities of the internal affairs bodies in the registration and recording of crimes", the concealment of crimes from registration is considered as an emergency. For each fact of violation of the procedure for registering and accounting for crimes, the role and responsibility of not only employees who are charged with this in their official duties, but also managers who did not timely identify and eliminate the conditions and causes contributing to this should be determined.
As noted above, Part 4 of Article 144 of the Code of Criminal Procedure of the Russian Federation refers only to the need to issue to the applicant a document on the receipt of a report on a crime indicating the data on the person who received it, as well as the date and time of its receipt. Nothing is said here about the right of the applicant, who is denied acceptance of the statement about the crime, to receive the corresponding document.
The applicant has the right to receive a document confirming the acceptance of a report of a crime. The legislator does not explain the content of this concept. This is probably why Kalinovsky K.B. among those also includes the person who came with a confession. It seems that such a broad interpretation of the concept under consideration is not entirely justified. The legislator nowhere in the Code of Criminal Procedure of the Russian Federation does not name the person who applied to the competent authority or to an official with a confession as an applicant. On the contrary, this term is constantly referred to as a person who has applied to the preliminary investigation body or to a justice of the peace with a statement about a crime. Therefore, it seems more consistent to use the concept of "applicant" to the victim (witness, etc.), from whom the statement about the crime was received, and, accordingly, not to use the concept of "applicant" in relation to the person who confessed.
Any applicant has the right to receive a document confirming the fact of acceptance of a statement about a crime. Both the one who turned to the body of inquiry, to the interrogator, investigator, head or member of the investigation team, the head of the investigation department or the prosecutor directly, and the one who sent the statement about the crime by mail, by courier, etc.
Meanwhile, the notification coupon is issued to the applicant when he visits the preliminary investigation body and cannot be sent to him by mail. This rule is valid due to the fact that, according to departmental regulations, the applicant must sign on the stub of the coupon - notification and put on it the time and date of receipt of the coupon - notification.
Part 5 of Article 144 of the Criminal Procedure Code of the Russian Federation does not indicate a person authorized to appeal against a refusal to accept an application (message) about a crime. Based on the content of Art. Art. 123 and 125 of the Code of Criminal Procedure of the Russian Federation, such are the applicant, his defense counsel, legal representative or representative, as well as other persons, if the refusal to accept an application (message) about a crime affects their interests.
Any form of refusal to accept an application (message) about a crime can be appealed: “When there is no response to the application at all or a negative response is received to the requirement to record the fact of the appeal.” The non-issuance or refusal to issue to the applicant a document confirming the acceptance of his statement about the crime can also be appealed.
A detailed analysis of the content of Article 144 of the Code of Criminal Procedure of the Russian Federation allows us to formulate most of the distinguishing features of the consideration of applications (messages) about a crime, as well as the entire initial stage of the criminal process - the stage of initiating a criminal case.
As you know, the stages of the criminal process (including the stage of initiating a criminal case) differ from each other:
1) immediate tasks;
2) means of achieving them;
3) a specific circle of subjects participating in the criminal procedure activities carried out at this stage;
4) the procedure for performing procedural actions, as well as
5) the final procedural decision.
Four of the five stage criteria are enshrined in Article 144 of the Code of Criminal Procedure of the Russian Federation.
The task of the stage is twofold - to respond to each fact of the commission of an act containing criminally procedurally significant signs of the objective side of the corpus delicti, and at the same time to protect the subsequent stages of the criminal process from considering incidents that are undoubtedly not related to the commission of a socially dangerous act.
The stage of initiating a criminal case has only two criminal procedural means: the requirement to transfer documents and materials (part 2 of article 144 of the Code of Criminal Procedure of the Russian Federation) and inspection of the scene (part 2 of article 176 of the Code of Criminal Procedure of the Russian Federation).
The criminal process at the stage of initiating a criminal case is carried out by the body of inquiry, the inquirer, the investigator, the head and (or) a member of the investigation team, the head of the investigation department and (or) the prosecutor. The content of Article 144 of the Criminal Procedure Code of the Russian Federation also allows us to speak about the possibility of the presence at this stage of such subjects of the criminal process as the applicant, the person against whom the issue of initiating a criminal case is being decided, the editorial office, the editor-in-chief of the mass media that disseminated the message about the crime, and about some others.
Based on its name, Article 144 of the Code of Criminal Procedure of the Russian Federation defines the procedure for considering an application (message) about a crime. In addition to the powers and deadlines fixed here (the procedure for extending these deadlines) for the production of a preliminary verification of a statement (report) about a crime, the analyzed rule of law introduces additional requirements for the procedure for verifying a message about a crime circulated in the media (Part 2 of Article 144 of the Criminal Procedure Code of the Russian Federation), additional guarantees of response to each received statement about a crime (parts 4 and 5 of the article of the Code of Criminal Procedure of the Russian Federation), etc.
In accordance with the provisions of Art. 10 of the Federal Law of May 31, 2002 No. 62-FZ (as amended on December 31, 2014) "On Citizenship of the Russian Federation", a document certifying citizenship of the Russian Federation is a passport of a citizen of the Russian Federation or another main document containing an indication of the citizenship of the person. The types of basic documents proving the identity of a citizen of the Russian Federation are determined by the Federal Law of August 15, 1996 N 114-FZ (as amended on December 31, 2014) "On the procedure for leaving the Russian Federation and entering the Russian Federation" (passport; diplomatic passport; service passport ).
According to the Regulations on the procedure for considering issues of citizenship of the Russian Federation (approved by Decree of the President of the Russian Federation of November 14, 2002 No. 1325 (as amended on August 06, 2014) "On approval of the Regulations on the procedure for considering issues of citizenship of the Russian Federation"), the presence of citizenship of the Russian Federation is certified by the following documents :
a) a passport of a citizen of the Russian Federation, including a foreign passport;
b) diplomatic passport;
c) official passport;
e) an identity card (military ID) of a serviceman with an insert indicating the citizenship of the Russian Federation;
f) a birth certificate, which contains information about the citizenship of the Russian Federation of the parents, one of the parents or the only parent;
g) a birth certificate with a mark confirming the citizenship of the Russian Federation, affixed by an official of the authorized body.
The only document confirming that a child has Russian citizenship, until he receives a passport, is a birth certificate. In case of its loss, you must contact the registry office where the birth of the child was registered or the registry office at the place of residence / temporary registration.
Not only the parents of the child, but also guardians, guardians of the child or representatives of the guardianship authority or the person in respect of whom the birth record was entered can apply for the restoration of a birth certificate.
To issue a duplicate certificate, you need:
1. Write an application for a duplicate;
2. Provide documents confirming the rights of the applicant - passports with records of children,
3. Pay the state duty for its issuance.
If the registry office in which the birth was registered is now located in another city, because you have moved, you need to contact the registry office at the place of residence, he will send your application to the desired registry office and after a few weeks you will be able to receive a duplicate certificate. However, in any case, it will be necessary to appear at the registry office at the place of birth, since a duplicate is issued only in person in the hands of a citizen.
Normative legal acts concerning confirmation of the status of a citizen of the Russian Federation:
"Tax Code of the Russian Federation (Part Two)" dated August 5, 2000 No. 117-FZ (as amended on December 29, 2014) (as amended and supplemented, effective from January 29, 2015);
Federal Law No. 114-FZ of August 15, 1996 (as amended on December 31, 2014) "On the procedure for leaving the Russian Federation and entering the Russian Federation"
Federal Law No. 143-FZ of November 15, 1997 (as amended on June 23, 2014) "On acts of civil status" (as amended and supplemented, effective from January 1, 2015)
In accordance with Art. 2 of the Law on Registration, state registration of legal entities is carried out by the federal executive body authorized in the manner established by the Constitution of the Russian Federation and the Federal Constitutional Law "On the Government of the Russian Federation".
According to Decree of the Government of the Russian Federation of May 17, 2002 N 319 "On the authorized federal executive body that carries out state registration of legal entities, peasant (farm) households, individuals as individual entrepreneurs" *(12) , the Ministry of the Russian Federation for Taxes and Duties of the Russian Federation is called such a body *(13) , or rather its territorial bodies. This is also reflected in paragraph 5.3.1 of the Regulations on the Federal Tax Service *(14) (approved by Decree of the Government of the Russian Federation N 506 of September 30, 2004), which states that one of the powers of the Federal Tax Service is "state registration of legal entities, individuals as individual entrepreneurs and peasant (farm) households."
The legal status of the registering body consists, in particular, of its rights and obligations. The Regulation on the Federal Tax Service (Part VI) defines its following powers, which can also be applied to the sphere of state registration of legal entities:
1) organize the conduct of the necessary studies, tests, examinations, analyzes and assessments, as well as scientific research on the issues of control and supervision in the field of state registration of legal entities;
2) request and receive information necessary for making decisions on state registration of legal entities;
3) give explanations to legal entities and individuals on issues of state registration of legal entities;
4) exercise control over the activities of the territorial bodies of the Service and subordinate organizations;
5) involve, in the prescribed manner, scientific and other organizations, scientists and specialists to study the issues of state registration of legal entities;
6) apply the measures of a restrictive, preventive and preventive nature provided for by the legislation of the Russian Federation, as well as sanctions aimed at preventing and (or) eliminating the consequences caused by the violation by legal entities and individuals of the mandatory requirements of state registration in order to prevent violations of the legislation of the Russian Federation;
7) create advisory and expert bodies (councils, commissions, groups, colleges) in the field of state registration of legal entities;
As a duty of the Federal tax service can be distinguished:
1) compliance with the law;
2) exercising control over compliance with the legislation in the field of state registration;
3) conducting explanatory work on the application of the legislation on state registration;
4) keeping records of registered legal entities and individual entrepreneurs in accordance with the established procedure;
5) storage of secret information about legal entities.
On behalf of the Federal Tax Service, inspectorates of the Federal Tax Service for a district, a district in a city, a city without district division and an inspectorate of the Federal Tax Service at the interdistrict level, as well as the Federal Tax Service department for the constituent entities of the Russian Federation participate in registration legal relations *(15) . At the same time, the authorities of the Federal Tax Service for the constituent entities of the Russian Federation are empowered to state registration only of legal entities in respect of which a special registration procedure has been established by federal laws (clause 6.3.1. Appendix N 5 to the Order of the Ministry of Finance of the Russian Federation of August 9, 2005).
In addition to the registering authorities, the opposite party also participates in the legal relationship of state registration of legal entities - applicants for state registration of legal entities, which can only be individuals.
In accordance with the third paragraph of the first paragraph of Art. 9 of the Registration Law, applicants may be the following persons:
o the head of the permanent executive body of the registered legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney;
o founder (founders) of a legal entity upon its creation;
o the head of the legal entity acting as the founder of the registered legal entity;
o bankruptcy trustee or head of the liquidation commission (liquidator) upon liquidation of a legal entity;
o another person acting on the basis of the authority provided for by federal law, or an act of a specially authorized state body, or an act of a local government body.
The legal status of the bodies of a legal entity (their composition, list, competence, etc.) is determined by the norms of the Civil Code of the Russian Federation, special laws that fix the legal status of certain organizational and legal forms of legal entities, and constituent documents. Accordingly, the legal status of a permanent executive body is regulated differently. For example, the legislation on business companies provides that the sole executive body for joint-stock companies may be, depending on the position fixed in the constituent documents, either a director, or a general director elected by a general meeting of shareholders, or a manager (individual entrepreneur who, under an agreement, exercises functions of the sole executive body); for limited liability companies, subsidiaries and affiliates, the name of this body is optional (director, president, chairman, etc.) and depends on the designation of this position in the constituent documents (it is also possible to conclude an agreement with the manager). The document confirming the election individual as the sole executive body of a business company, may be: a) protocol general meeting participants (shareholders); b) decision of the founder if the company is established by one natural person; c) minutes of the meeting of the board of directors (supervisory board); d) a civil law contract, according to which the functions of the sole executive body are carried out by the manager.
The sole executive body of a state and municipal unitary enterprise is the head, who is appointed by the owner or a body authorized by the owner and is accountable to him (Article 113 of the Civil Code of the Russian Federation). A document confirming the appointment of an individual as a head, in this case will be the appropriate decision of the owner.
Among other applicants, the founder (founders) of a legal entity during its creation is also indicated, i.e. the person who made the decision to establish a legal entity. As you know, both individuals and legal entities can act as founders, therefore the Registration Law divides applicants into direct founders and heads of legal entities acting as founders of a registered legal entity. This provision is quite justified, because it is difficult to imagine a legal entity as an applicant, which is essentially a legal fiction. The legislator allows the possibility of being applicants not at once for all the founders of a registered legal entity, but for some part of them or even any one. This is also consistent with the fact that a number of organizational and legal forms of legal entities provide for the possibility of registering a legal entity with one founder, who is the only founder - the applicant.
Domestic legislation also regulates in a differentiated way the issue of the composition of the founders of legal entities of specific organizational and legal forms. So, for business partnerships (general partnerships and limited partnerships), the opportunity to be founders extends to persons engaged in entrepreneurial activities (individual entrepreneurs and (or) commercial organizations). The founders or founders of business companies can be either an individual or a legal entity (for subsidiaries and affiliates, a legal entity - any economical society- must be present as a founder). At the same time, it must be taken into account that a legal entity cannot be the founder of a business entity consisting of one person (clause 2, article 88 and clause 6, article 98 of the Civil Code of the Russian Federation). As for the possibility of state authorities and local self-government bodies to be founders of economic companies, it is denied as a general rule. Exceptions to this rule apply to a) state and municipal institutions that can be founders of limited liability companies with the permission of the owner of the company (paragraph 4, clause 4, article 66 of the Civil Code of the Russian Federation); b) state property management bodies (at the federal level - the Government of the Russian Federation, as well as other bodies determined by the Government of the Russian Federation; at the regional level - state authorities specially authorized by the laws of the constituent entities of the Russian Federation) *(16) when privatizing state and municipal enterprises in accordance with the legislation on privatization, c) state and local authorities that can act as founders of closed joint-stock companies with 100% participation of the state or municipality, respectively.
The indication in the list of applicants of the bankruptcy commissioner or the head of the liquidation commission (liquidator) is due to the fact that, according to Russian legislation, based on global practice, the liquidation of legal entities is carried out not by the founders themselves, but by special bodies (liquidation commissions) or individuals (liquidators). This is necessary in order to fully exercise the rights of creditors to pay the liquidated debtor organization's accounts payable, as well as to accurately reflect the balance of property in the liquidation balance sheet. If the legal entity is in bankruptcy proceedings (namely, at the stage of bankruptcy proceedings), then the bankruptcy manager is an obligatory participant in this process, to whom the rights of the head of the debtor are transferred.
Particular attention should be paid to the last paragraph, which allows you to give the status of an applicant to any person who, by an act of a specially authorized state body or local government (for example, for registering unitary enterprises), or by federal law, has been granted the right to be an applicant. These acts are:
1) for state registration of federal state unitary enterprises - orders of the Government of the Russian Federation or federal executive bodies of the Russian Federation (part 2 of article 10, part 2 of article 8 of the Federal Law of November 14, 2002 N 161-FZ "On state and municipal unitary enterprises" *(17) );
2) for state registration of state unitary enterprises of constituent entities of the Russian Federation - acts of the highest executive body of state power of a constituent entity of the Russian Federation (part 2 of article 10 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises", p. " e" Part 2, Article 21 of the Federal Law of October 6, 1999 N 184-FZ "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" *(18) );
3) for municipal unitary enterprises - acts of a representative body of local self-government (part 2 of article 10 of the Federal Law of November 14, 2002 N 161-FZ "On state and municipal unitary enterprises"; paragraph 5 of part 10 of article 35 of the Federal Law of October 6, 2003 N 131-FZ "On general principles local self-government organizations in the Russian Federation" *(19) ).
When submitting an application and other documents to the registering body, the acts shall be certified by the signature of the head of the body entrusted with the said powers.
As noted in the Guidelines for filling out the forms of documents used for state registration of a legal entity, approved by Order of the Federal Tax Service dated November 1, 2004 N SAE-3-09 / [email protected] *(20) , applicants may be the following individuals:
1) the head of the permanent executive body of the registered legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney:
Upon state registration of a legal entity created through reorganization;
2) the founder (founders) of a legal entity, as well as the head of the legal entity acting as the founder of the registered legal entity:
Upon state registration of a legal entity upon creation;
3) another person acting on the basis of the authority provided for by federal law or an act of a specially authorized state body, or an act of a local self-government body:
Upon state registration of a legal entity upon creation,
Upon state registration of a legal entity created through reorganization,
During state registration of changes made to the constituent documents of a legal entity,
When making changes in the Unified State Register of Legal Entities to information about legal entity not related to amendments to the constituent documents,
When making an entry on the termination of the activities of the affiliated legal entity,
Upon state registration of the termination of the activities of a unitary enterprise in connection with the sale of its property complex;
4) head of the liquidation commission (liquidator), bankruptcy trustee:
Upon liquidation of a legal entity.
Bashinskaya Inna Gennadievna
PhD in Law, Associate Professor of the Department of Preliminary Investigation, Krasnodar University of the Ministry of Internal Affairs of Russia (e-mail: [email protected])
On the legal status of the applicant
at the pre-trial stage of criminal proceedings
The article is devoted to the legal status of the applicant at the pre-trial stage of criminal proceedings. The problems of ensuring the rights of persons affected by crimes at the stage of consideration of messages are considered.
Keywords Keywords: applicant, crime, victim, rights, obligations, complaint, pre-investigation check materials.
I.G. Bashinskaya, Master of Law, Assistant Professor of a Chair of Preliminary Investigation of the Krasnodar University of the Ministry of the Interior of Russia; e-mail: [email protected]
On the legal status of the applicant at the pre-trial stage of criminal proceedings
The article is devoted to the legal position of the applicant"s on pre-trial stage of criminal proceedings. The problems of ensuring the rights of victims of crime on stage of pending messages are considered.
Key words: complainant, crime, victim, rights, duties, complaint, investigation verification materials.
According to statistics, every year every tenth inhabitant of Russia becomes a victim of a particular crime, and the damage caused by criminal acts amounts to billions of rubles. Thus, according to the statistical reports of the Judicial Department under the Supreme Court of the Russian Federation, direct material damage from crimes, determined by sentences and court decisions, in 2007 amounted to 17.5 billion rubles. .
The speedy and complete restoration of the rights of people against whom certain crimes were committed, ensuring their unhindered access to justice and compensation for the harm caused to them is the main task of the state, which is solved at the constitutional and legislative levels.
For the reliable protection of their rights and legitimate interests, every citizen, regardless of his citizenship, has a number of constitutionally enshrined rights, such as the right to life, liberty and personal immunity (enshrined in Articles 20, 22 and 23 of the Constitution of the Russian Federation), the right to receive from state bodies information and documents that are directly related to his rights and freedoms (part 2 of article 24), the right to use his native language
(Article 26), the right to receive qualified legal assistance (Article 48), the right not to testify against oneself, one’s spouse or close relatives (Article 51), the right to state compensation for damage caused by illegal actions (inaction) of state bodies authorities or their officials (Article 53), the right to appeal to the courts decisions and actions (inaction) of officials, the right to apply to interstate bodies for the protection of human rights and freedoms, if all available domestic means have been exhausted legal protection in accordance with international treaties (art. 46).
These and other rights and freedoms of man and citizen may be restricted by federal law only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense and security of the state (Part 3 article 55).
The implementation of the protection of these constitutional rights is carried out through the criminal law, which defines specific unlawful acts that constitute the corpus delicti. Victims of crimes in accordance with Art. 52 of the Constitution of the Russian Federation have the right to access to justice and compensation for the damage caused.
An analysis of the above constitutional norms makes it possible to judge the realization of the right to protection of a person who has suffered from a crime from the moment he or she applies to a law enforcement agency, which coincides with the beginning of criminal procedural relations that arise at the stage of initiating a criminal case, namely, from the moment a person submits an application for a crime. crime.
Reporting a crime in accordance with Art. 140 of the Code of Criminal Procedure of the Russian Federation is the reason for initiating a criminal case, and, as practice shows, the most common.
By applying to a law enforcement agency, a person enters into criminal procedural relations, which are defined in Art. 141 of the Criminal Procedure Code of the Russian Federation, which prescribes the procedure and form for accepting a written statement about a crime and warning the applicant of criminal liability for knowingly false denunciation in accordance with Art. 306 of the Criminal Code of the Russian Federation. Article 144 of the Criminal Procedure Code of the Russian Federation regulates the procedure for considering a report of a crime, and Art. 145 of the Code of Criminal Procedure of the Russian Federation - decisions taken based on the results of consideration of a report on a crime.
However, despite the fact that the rules on the rights and obligations of the applicant are contained in various articles of the Code of Criminal Procedure of the Russian Federation, the applicant is not included in the number of participants in criminal proceedings, which means that his procedural and legal status is not regulated. The problem of regulating the rights of persons affected by crimes during the verification of a message has already been discussed in the legal literature. long time.
The status of the victim in accordance with Part 1 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, a person who has applied to a law enforcement agency with a statement about a crime can acquire it only after the inquirer, investigator or court issues an appropriate decision.
Only from the moment a decision is made to recognize a person as a victim, the rights regulated in Part 2 of Art. 42 Code of Criminal Procedure of the Russian Federation. In particular, the victim has the right to apply for the application of security measures against him and his close relatives, to know about the nature of the charges brought against his offender, to testify, present evidence, file motions and challenges, use the help of an interpreter free of charge, have a representative, participate with the permission of the interrogating officer or an investigator in conducting investigative actions, also get acquainted with the protocols of investigative actions, and at the end of the preliminary
investigation to get acquainted with all the materials of the criminal case, etc.
In order to overcome obstacles in the way of protecting their rights and legitimate interests, the applicant is forced to go through several psychologically and legally difficult stages, performing different roles: a complainant about a crime or, possibly, its witness, a private prosecutor or a civil plaintiff. Practice knows many cases when, after the initiation of a criminal case, the applicant receives the procedural status of a participant in criminal proceedings almost at the end of the investigation period, which does not allow him to take part in the collection of evidence in a timely manner.
In 2008 on this problem drew the attention of the Commissioner for Human Rights in the Russian Federation, pointing out that “the term for the adoption of a decision on recognition as a victim is not established by law. Because of this, the victim of a crime is often recognized as a victim only at the final stage of pre-trial proceedings. As long as he is not recognized as a victim, the victim of the crime is considered as a complainant. This, in turn, leads to a violation of the right of the victim to receive information about the progress and results of the preliminary investigation, to provide items and documents confirming his statement about the crime, etc.” In the same report, the Commissioner for Human Rights proposed to supplement Art. 146 of the Code of Criminal Procedure of the Russian Federation with the provision that a person who has suffered from a crime must be recognized as a victim simultaneously with the initiation of a criminal case.
It should be noted that the legislator listened to this proposal and the Federal Law of December 28, 2013 No. 432-FZ amended Art. 42 of the Criminal Procedure Code of the Russian Federation, which regulates the legal status of the victim, fixing that "the decision to recognize the victim is taken immediately from the moment a criminal case is initiated ...".
In our opinion, recognition as a victim of a person who has suffered from a crime, simultaneously with the initiation of a criminal case, of course, is progressive. However, its implementation will solve only one problem - it will ensure the participation of the victim, as a participant in criminal proceedings, from the beginning of the preliminary investigation. At the same time, the issue of exercising the right of these persons in the process of pre-investigation verification, provided for by Art. 140-145 Code of Criminal Procedure of the Russian Federation.
The lack of procedural regulation of the legal status of the applicant does not ensure the protection of his rights and legitimate interests, creates obstacles in access to justice, as well as difficulties in collecting evidence at the stage of initiating a criminal case.
Changes made to Part 2 of Art. 144 of the Code of Criminal Procedure of the Russian Federation Federal Law of March 4, 2013 No. 23-FZ obliges the investigator, the body of inquiry, the investigator, the head of the investigative body to explain the rights and obligations of persons participating in the production of procedural actions when verifying a report of a crime, and to ensure the possibility of exercising these rights to the extent that the procedural actions performed and the procedural decisions made affect their interests, including the right not to testify against themselves, their spouse (wife) and other close relatives, to use the services of a lawyer, and also to complain about actions (inaction ) and decisions based on the results of consideration of a report of a crime. Participants in the verification of a crime report may be warned about the non-disclosure of data from pre-trial proceedings. If necessary, a participant in pre-trial proceedings, including when receiving a report on a crime, must be provided with security.
Thus, the legislator made an attempt to protect the interests of affected persons at the stage of consideration of statements about a crime. At the same time, the question remains whether these persons can use the services of an interpreter free of charge, since the Code of Criminal Procedure of the Russian Federation does not regulate the mechanism for ensuring the right to use their native language when submitting an application. Although, in accordance with the principle of the national language of legal proceedings, any person has the right to apply to law enforcement agencies in his mother tongue, in part 2 of Art. 18 of the Code of Criminal Procedure of the Russian Federation states that an interpreter is provided to the persons participating in the case. However, at the stage of initiating a criminal case, the participants from the procedural point of view do not yet exist.
The current situation of the applicant deprives him of the opportunity to exercise even the criminal procedural rights granted to him. So, in accordance with Part 3 of Art. 145 of the Code of Criminal Procedure of the Russian Federation, the person who makes the decision based on the results of consideration of a report of a crime is obliged to notify the applicant of the decision and explain the right and procedure for appealing it.
In turn, the applicant in accordance with Art. 123-125 of the Criminal Procedure Code of the Russian Federation has the right to appeal this decision to a higher order of subordination or to a court (if the decision has caused damage to his constitutional rights and freedoms or hinders access to justice). However, in order to draw up a motivated complaint, the applicant does not need only one notification of the decision. In order to be convinced of the objectivity of the consideration of an application for a crime and the validity of the decision to refuse to initiate a criminal case, it is necessary to familiarize not only with the text of the decision to refuse to initiate a criminal case, but also all the materials (refusal material) on the basis of which this decision was made.
In law enforcement practice, there are cases when the applicant complains about the inaction of the inquirer or investigator and asks to be given the opportunity to familiarize himself with the materials of the verification of his statement about the crime, but he is denied this, referring to the fact that familiarization of the applicant with the materials of the verification is not provided for by the Code of Criminal Procedure RF.
In such cases, the applicant has the right to seek to provide him with materials for review by appealing against such actions in a higher order of subordination or in court. The Constitutional Court of the Russian Federation, in its resolution of February 18, 2000 No. 3-P, formulated the following legal position: citizens should be provided with materials that directly affect their rights and freedoms for review, even if such a right is not directly provided for by law. Therefore, if there is a petition, the person who reported the crime must be familiar with the materials of the verification of his statement about the crime in order to clearly substantiate his position in the complaint. This idea is also emphasized in later decisions of the Constitutional Court of the Russian Federation, for example, in the ruling of July 11, 2006 No. 300-O.
In order to ensure effective protection of the rights and interests of victims of crimes by the law enforcement and judicial system, it is necessary to improve the legislative framework and law enforcement practice.
In this regard, we consider it necessary at the legislative level to classify the applicant as a participant in criminal proceedings, i.e. add ch. 8 Code of Criminal Procedure of the Russian Federation, regulating
stating the legal status of other participants in criminal proceedings, the article "Applicant", which lists his rights and obligations.
The implementation of this proposal would allow:
1) to a person who applied for protection to a law enforcement agency, from the moment of filing an application for a crime, become full-fledged
1. Problems of protecting the rights of victims of crime: a special report of the Commissioner for Human Rights in the Russian Federation // Ros. gas. 2008. June 4.
2. Vasilenko L.A. Proceedings in cases of private prosecution: dis. ... cand. legal Sciences. Omsk, 2005.
3. In the case of checking the constitutionality of paragraph 2 of Article 5 of the Federal Law "On the Prosecutor's Office of the Russian Federation" in connection with the complaint of citizen B.A. Kekhman: decision of the Constitutional Court of the Russian Federation of February 18. 2000 No. 3-P. URL: http://www.consultant.ru/document/cons_doc_LAW_26325/
4. On the complaint of citizen Andrei Ivanovich Andreev about the violation of his constitutional rights by paragraphs 1, 5, 11, 12 and 20 of the second part of Article 42, the second part of Article 163, the eighth part of Article 172 and the second part of Article 198 of the Code of Criminal Procedure of the Russian Federation: definition of the Constitutional Court of the Russian Federation of July 11, 2006 No. 300-0. URL: http://www.consultant.ru/document/cons_doc_LAW_63720/
a participant in the criminal process and actively defend their rights and legitimate interests at the stage of initiating a criminal case and throughout the entire further investigation of the case;
2) to the body of inquiry, the inquiry officer and the investigator to expand the possibilities of proving at the stage of initiating a criminal case precisely by increasing the number of other procedural actions.
1. Problems of protection of rights of victims of crime: special report of the Commissioner for Human Rights in the Russian Federation // Rus. newsp. June 4, 2008
2. Vasilenko L.A. Production for private prosecution: diss.... Master of Law. Omsk, 2005.
3. In the case on the constitutionality of paragraph 2 of article 5 of the Federal Law "On the prosecutor"s office of the Russian Federation" in connection with the complaint of citizen B.A. Kehman: resolution of the Constitutional Court of the Russian Federation of Febr. 18, 2000 No. 3-P URL: http://www.consultant.ru/document/cons_doc_LAW_26325/
4. On the complaint of a citizen Andreev Andrei Ivanovich on violation of his constitutional rights with paragraphs 1, 5, 11, 12 and 20 of the second part of article 42, the second part of article 163, the eighth part of article 172 and the second part of article 198 of the Criminal procedure code of the Russian Federation: determination of the Constitutional Court of the Russian Federation of July 11, 2006 no. 300-0. URL: http://www. consultant.ru/document/cons_doc_LAW_63720/