Circumstances precluding participation in criminal proceedings. Taps and withdrawals

The legislation provides for circumstances precluding participation in criminal proceedings (offenses). In the norms they are divided into two groups. The former are called general, the latter special. . Consider the circumstances in the article , excluding participation in criminal proceedings (briefly) .

Definition

, представляют собой факторы внешнего объективного характера. Circumstances precluding participation in criminal proceedings are external objective factors. Their presence makes it reasonable to doubt the impartiality of a particular subject. In this regard, a person must withdraw from the proceedings. In case of non-fulfillment of this requirement, the subject is subject to withdrawal.

Direct prohibitions

, приводятся во втором разделе УПК. Circumstances that exclude participation in criminal proceedings are given in the second section of the Criminal Procedure Code. The norms contain direct prohibitions on the involvement of specific individuals in the proceedings. Thus, according to Art. 41 (part 2), it is not allowed to impose the powers, the implementation of which is related to the execution of the inquiry, to the entity that carries out or conducted operative-search activity in this case. . There are also circumstances that preclude the participation of a defender in criminal proceedings . Thus, one person does not have the right to be a lawyer of 2 accused / suspects, when the interests of the latter contradict one another. This provision is fixed in Art. устанавливаются и в 56 статье. 49, p. 6. Circumstances that exclude participation in criminal proceedings are also established in Article 56. Normally, people who are not subject to interrogation as witnesses are identified. The provisions of this article apply to specific subjects and do not apply to other citizens involved in the proceedings.

Objective reasons

. The legislation provides for circumstances independent of the will of the subjects that exclude participation in criminal proceedings . There are a number of factors that prevent a person from fulfilling his duties and exercising his rights within the framework of the case. These circumstances arise earlier than the subject is involved in the process and acquires the corresponding status.

Groups of persons

. Chapter 9 of the CCP establishes several categories of entities in respect of which circumstances precluding participation in criminal proceedings may apply. The groups include:

1. Officials directly carrying out procedures related to the proceedings in the case. They include, in particular, the investigator, the judge, etc. They are mentioned in 61-67 articles.
2. Persons acting in the interests of other participants in production. This group includes a lawyer, representatives of civil plaintiffs / defendants, the victim. They are referred to in Article 72.
3. Persons providing for the conduct of proceedings in a meeting. They include an interpreter, a court clerk, an expert, a specialist. They are referred to in articles 68-71.

Circumstances precluding participation in criminal proceedings of the prosecutor

The said official is not allowed to consider the case if he:

1. Acts as a victim, plaintiff / defendant (civil), witness.
2. He was a jury, an expert, an interpreter, a specialist, a witness, the secretary of the meeting, the legal representative of any part of the case.
3. Is a relative (close in number) of any person involved in the proceedings.

. These reasons also appear as circumstances precluding the participation of a judge in criminal proceedings .

Explanations

In accordance with the above provisions, it can be concluded that the circumstances that cause the subjects to be excluded from the proceedings are conditioned by the presence of other procedural status or relations of a related nature with them (as in the past and in the present) with other entities involved in the case.

Nuance

The official is prohibited to conduct proceedings in the case not only in situations where he is endowed with another procedural status. The subject is subject to exclusion from the proceedings and in cases where this is due to the existence of factual grounds. For example, the investigator witnessed the crime. He can not bring a case against this fact. The investigator in such a situation will be brought in as a witness and interrogated. Accordingly, his information will be evidence in the case.

Additionally

The list, which is defined in Art. 61 is not considered exhaustive. In the second part of the norm it is said that the prosecutor, the investigator, and also the official who directly conducts the consideration of the case in the meeting, can not participate in the proceedings in the presence of circumstances that allow believing that they have direct or indirect interest in the outcome of the proceedings. The list of these factors is not determined by law. Moreover, the norms do not provide for formal signs of interest. As a consequence, its availability is determined by the specifics of the case. It seems that hostile or friendly relations between participants in production, official or financial ties can serve as grounds indicating interest.

Article 72 of the Code of Criminal Procedure

It defines the circumstances precluding the participation of a defender in the criminal proceedings, a representative of a civil defendant / plaintiff, the victim. The said persons are not admitted to the proceedings if they:

1. Previously, acted in a different status. For example, this subject could be a judge, a witness, an expert, a witness, an interpreter, a meeting secretary, an investigator, etc.
2. They are relatives (close among others) of any party to the case or to third parties involved in the proceedings.
3. Provides or previously provided legal services to a citizen whose interests are in conflict with the interests of the accused / suspect, civil plaintiff / defendant, the victim defended by him in this case. This provision extends the rule provided for in Article 49.

The third group of subjects

It includes experts, the secretary of the meeting, a specialist, an interpreter. This group is quite specific. Regarding the secretary, for example, the legislation does not provide for specific circumstances, according to which his participation in production is excluded. The norms indicate that the relevant decision is taken by the official who is conducting the direct examination of the case. As for other subjects, they are prohibited from participating in the process if their incompetence is revealed. For an interpreter, for example, it is expressed in the inability to master the languages necessary for a normal hearing in a meeting. A specialist is not allowed to the process if he does not have special knowledge or does not know how to apply them. Incompetence of the expert can be expressed by the lack of a theoretical basis or the necessary education.

Restrictions on taps

They can not be applied to civil plaintiffs / defendants, accused / suspects, victims and witnesses. Such limitation is determined by the indispensability of these persons in the case. The participation of these entities is in direct connection with the circumstances of the incident. These persons or have a personal interest in the outcome of the case, or act as a carrier of information that has significant evidentiary value.

Procedure

As was mentioned above, when identifying circumstances that prevent further participation of a person in the process, he must be eliminated. If the subject has not complied with this requirement, the appropriate procedure is applied to him. According to the legislation, other participants in the production can declare a challenge. The procedure will vary depending on the person who insists on eliminating the inadequate citizen, the stage at which the event takes place.

Candidates for jurors

For these persons, the legislation also provides for the procedure for withdrawal. For them, the norms of not only the articles reviewed above apply. In particular, when forming a panel, the parties have the right to declare a challenge in accordance with the circumstances stipulated in:

1. Art. 61-64. These standards establish the grounds for excluding the judge from the proceedings.
2. Art. 328 (Parts 14-16). Normally provides for the right of the defendant or his lawyer, as well as the public prosecutor to declare an unmotivated challenge twice.
3. Art. 330. This rule defines the right to make a statement on the dissolution of the panel of assessors in connection with the tendentiousness of its composition.

Explanations on this matter are contained in the plenary decision of the Supreme Council of the Armed Forces No. 23 of November 22, 2005. It should be specially noted that the law provides for the possibility of declaring withdrawals before the panel of assessors is finally formed. In the course of the subsequent meeting, this right can only be used in an exceptional case. In particular, if it reveals a circumstance that the applicant was not aware of before. The decision to remove a juror from the meeting is subject to the permission of the presiding officer. At the same time, the composition of the court in the advisory room is not removed.