Article 148 of the Code of Criminal Procedure. Refusal to initiate criminal proceedings

Art. 148 of the Code of Criminal Procedure is devoted to the procedure for considering applications for a crime. It describes the procedure for the actions of criminal justice officials and describes the possible actions of the applicant. One should not forget about its relationship with other provisions of the Code.

General concept

Art. 148 of the Code of Criminal Procedure describes the actions of participants in the criminal process when it is decided not to prosecute.

The refusal represents the completion of the whole stage of the criminal process, beginning with the adoption of documents from the applicant and ending with the adoption of a negative or positive decision.

The actions of law enforcement bodies at this stage are conducted outside the framework of the criminal case, and the powers of the inspectors are not sufficiently marked.

Art. 148 of the Code of Criminal Procedure regulates the registration of the result of the verification of the application for a crime.

Meaning of the failure

Groups of norms on the refusal to open criminal cases are aimed at screening out materials that do not contain any grounds and grounds for starting a full-scale production. After an unreasonable investigation leads to a distraction of the forces of investigators and operatives from the cases that really need their attention.

The decision on the refusal is of great importance for the future. Any action on this material is no longer possible and the applicant will not be able to apply again for the same person for the same actions. The only way is to cancel the decree itself.

Reasons for refusal

Art. 148 of the Code of Criminal Procedure refers to other provisions of the law, in particular, Art. 24 of the Code of Criminal Procedure, prescribing to investigate whether there are grounds for opening a case.

What is considered the reason for refusing to open a criminal case?

• Lack of composition;
• Absence of an event of crime;
• A person who does not have the right to do so has applied;
• Death of a potential accused;
• The applicant missed the limitation period for bringing to justice;
• Cancellation of liability by excluding the relevant article from the Criminal Code.

If production was started, despite the listed circumstances, it is terminated as soon as they become known.

No composition

The absence of a composition means that there are not all elements of a criminal act to bring a citizen to justice. For example, he did not reach the minimum necessary age or his mental state did not allow him to realize the danger of his misconduct.

Part 1 of Art. 148 of the Code of Criminal Procedure allows this provision to be applied when considering an application in relation to a particular person. If an application is submitted without specifying a particular person, the link is not acceptable.

No crime scene

This means that no socially dangerous action or inaction has been committed. There are no formal reasons for the actions of the person to whom the application was submitted.

Appeal of an unauthorized person

Almost in all articles of the Criminal Code, production begins with the application of a person who somehow witnessed a committed or preparing crime.

If we are talking about cases of private or public-private accusation, they are instituted solely on the application of the victim.

The law at the same time gives the head of the investigation department the right to open proceedings in exceptional cases, with the consent of the prosecutor, when the victim due to poor health, age, dependence on the suspect is not able to defend himself.

How it all starts

Art. 144-148 The Code of Criminal Procedure of the Russian Federation describes the complex of actions of investigators and investigators. Within the scope of competence, applications are accepted and checks are carried out on them. What is included here?

• Collection of samples;
• Demand for materials;
• Appointment of examination;
• Study of the expert's conclusion.

Employees of operational units are actively involved.

The law allocates categories of criminal cases between investigative services of different bodies: the Ministry of Internal Affairs, the Criminal Code and the FSB.

If the application with the materials falls into the body that does not investigate the cases under the relevant articles of the Criminal Code, measures are taken to transfer all the materials to a competent structure.

Of course, policemen and other law enforcement officers refuse to accept applications for "other" articles, but they must do this and take measures to preserve the place and traces of the crime. This can be seen from the joint examination of Art. 145 and 148 of the Code of Criminal Procedure.

Unwillingness to engage in someone else's work is manifested even when citizens are mistaken with territorial inferiority. For example, the application must be assigned to a neighboring department or office.

Application of the results of the SAR

Operational-search activity is the public and private activity of the operational services aimed at identifying or uncovering crimes.

The work performed by the operational services has its own specifics. At the same time, the evidence obtained by them can be applied in criminal proceedings, subject to procedural safeguards. For example, penetration into the housing was carried out by a court decision, control and recording of telephone conversations were also conducted with the permission of the court.

This is given a direct link in the law "On Operational-Investigative Activities".

If there were violations, it is believed that the evidence was obtained illegally, in addition, employees can start criminal cases.

The materials of the SOP are attached to the materials of the audit on the basis of the report of the employees of the relevant service.

An investigator or an investigator shall attach the materials of the RDD to the resolution, after which the applicant and his representative and other participants of the case are accessed in accordance with the norms of the CCP.

The role of verification in criminal proceedings

At the same time, the actions of officials are not sufficiently regulated and they rely not on the law, but on by-laws. At the verification stage, an investigation is actually going on, although formally this is not the case. All this leads to complaints to the prosecutor's office or court. And the supervisory authorities often agree with such complaints.

Thus, the procedure for verifying financial documentation, conducting an audit is regulated by by-laws that are not directly related to law enforcement.

Materials obtained during the audit are attached to the case subject to observance of the right to defense. If it is violated, the results of interrogations are unacceptable.

If an examination was conducted at the stage of initiation of the case, the defense party has the right to request a new examination and the investigator or investigator has no right to refuse this.

Legal nuances

One of the rights of the prosecutor's office is to send documents for the decision on them to start criminal proceedings. If there are no grounds for this, the consent of the head of the investigation department is necessary.

Together with the refusal to open a criminal case, the question of false denunciation according to Part 2 of Art. 148 of the Code of Criminal Procedure. As a rule, cases on false denunciations hardly ever open. This clause affects applications for specific people.

Communicating the results to the applicant

It is known that Part 4 of Art. 148 of the Code of Criminal Procedure obliges the investigator or investigator who made the decision to forward the decision to the applicant no later than a day later, in fact, notification is provided within a month. It all depends on the degree of workload of a particular person.

What does the ruling look like?

• Date, city or location of the investigator or investigator;
• descriptive part;
• Motivation part;
• Operative part;
• Name, position and title of official.
• The signature of the investigator or investigator is put.

The descriptive part sets out who with what requirements and arguments appealed.

The reasoning part indicates for what reasons the author of the official disagrees with the applicant's arguments.

If the refusal is illegal, then the text most often contains the wording "for lack of corpus delicti".

Decisions are made by a template method and when they are compiled, mistakes are made constantly, which are enough to achieve a cancellation even on formal grounds.

In the operative part, reference should be made to Part 5 of Art. 148 CCP RF: the refusal can be appealed from the prosecutor, the head of the investigation department or in court.

Often, employees deliberately miss this point, trying to complicate the appeal procedure.

Appeal mechanism

The law contains a control mechanism: all decisions with attached materials are sent to the prosecutor's office for verification. The applicant also has the right to write a complaint to the prosecutor's office.

Almost by all decisions of the investigation or inquiry, the prosecutor's office makes a positive decision. Having received the same complaint, the prosecutor can change his mind.

By repealing the decision, he must explain the reasons for the cancellation and indicate what actions the person conducting the investigation should commit.

Similarly, departmental control of the initiation of criminal cases.

The superior supervisor also motivates his decision on cancellation and gives instructions on how to eliminate the deficiencies.

The court considers the material solely on the initiative of the complainant. The decision of the court takes precedence over the decision of the heads of the investigation departments and the inquiry and the prosecutor's office. The judicial decision is canceled only by a higher court, no other body has the right to do so.

The law does not restrict citizens in terms of appealing against a refusal, but delaying may lead to a loss of meaning in the cancellation of an illegal decision.

Considering the issue of refusal in the beginning of criminal proceedings, it is necessary to take into account the close interrelation of Art. 144, 145, 148 of the Code of Criminal Procedure.