Refusal to initiate a criminal case on such contrived motives is a violation of the law.
Refusal to initiate a criminal case on such contrived motives is a violation of the law.
The analysis of judicial practice shows that in some cases the courts did not timely identify the facts of non-compliance with the law governing the procedure for initiating proceedings. Sometimes, as a result of careless examination and trial of criminal cases, there are no circumstances that prevent the sentencing (for example, the decision to close the case on the same charge or to refuse to initiate a criminal case, etc.).
The court found T. guilty of carrying a cold steel weapon along with other crimes and convicted him under Part C of Art. 222 of the Criminal Code (under the new Criminal Code – Article 263). Meanwhile, in the case there is an undisputed decision of the investigator to refuse to initiate a criminal case on this charge. According to item 11 of Art. 6 of the CPC in this case, the criminal case can not be initiated, and the initiated is subject to closure. In the cassation procedure, the verdict against T. in terms of conviction under Part 2 of Art. 222 (now – Article 263) of the Criminal Code was repealed and the case was closed.
Procedural procedure for refusing to initiate a criminal case
When deciding whether to refuse to initiate a criminal case, the person making such a decision often has the materials of a preliminary inspection. In some cases, it is clear from the statement itself that there is no need to initiate a criminal case.
Preliminary inspection materials are required, for example, in the case of a refusal to initiate a criminal case due to circumstances that preclude criminal proceedings. To substantiate the decision in such cases, the following are required: an act (protocol) of administrative bodies drawn up at the crime scene, a written explanation of the perpetrator, a certificate of damages, written statements and explanations of citizens, characteristics of the offender, etc.
Documenting the crime is important not only for substantiating the decision to refuse to initiate a criminal case, but also for a possible appeal against the decision by interested parties.
In all cases, when the received application or notification decides not to initiate a criminal case, a decision is made to refuse to initiate a criminal case. Such a decision must be motivated.
Like the decision to initiate a criminal case, the decision to refuse to initiate a criminal case consists of three parts: introductory, descriptive and operative.
In the introductory part of the resolution the name of the document, time and place of drawing up by whom it is made, materials which were an occasion for the decision of a question on initiation of criminal case are specified.
The descriptive part of the decision to refuse to initiate a criminal case must meet the law’s requirement to be motivated. For example, if you refuse to initiate a criminal case under paragraph 1 of Art. 6 of the CPC, it is expedient to state the circumstances contained in the statement or notification of the crime, as well as the circumstances established by the person who made the decision to refuse.
If you refuse to initiate a criminal case under paragraph 2 of Art. b of the CPC, the circumstances of the act reported in the application are stated. As a rule, this should be a detailed statement of the act, so that it is possible to accurately trace the absence of corpus delicti in it.
Regarding the act committed when refusing to initiate a criminal case in the presence of the circumstances specified in paragraphs 4-11 of Art. 6 of the CPC, in all these cases it is set out in the descriptive part of the resolution, taking into account that it was clear when, by whom and what crime was committed. If the refusal to initiate a criminal case under paragraphs 1-2 of Art. 6 of the CPC in the main part may be information about a particular person to whom the act is attributed, in these cases, instructions on a particular person are required, as circumstances precluding criminal proceedings (paragraphs 4-11 of Article 6 of the CPC ), related to some extent to the person.
In case of refusal to initiate a criminal case in connection with effective remorse, reconciliation of the accused, defendant with the victim and the application of coercive measures of an educational nature, in the descriptive part of the decision when presenting the material it should be noted that the crime is not dangerous.
Thus, in the descriptive part of the decision when setting out the circumstances of the act should always emphasize those that are essential in this case to refuse to initiate a criminal case. This greatly facilitates the motivation of the descriptive part of the resolution.
Refusal to initiate a criminal case may be motivated only by the circumstances specified in the law.
The resolution should not state the circumstances that do not deny the initiation of a criminal case by law.
Individual employees of inquiry bodies and investigators adhere to arbitrary motivation for refusing to initiate a criminal case. For example, the district department of internal affairs received a statement from the head of shop # 17 of the Vulkan plant about repeated theft of things in the locker room of workers. Instead of taking measures to solve the crimes, the police issued a decision to refuse to initiate a criminal case on the following grounds: “800 workers pass through the household premises of the shop per day, so it is impossible to establish who committed theft . “
In some cases, decisions are made to refuse to initiate a criminal case, motivated by the fact that the victim “took the application and has no claims to the police” or “negligently treated his property,” and so on. Refusal to initiate a criminal case on such contrived grounds is a violation of the law.
The operative part should be a logical conclusion of the introductory and descriptive parts of the resolution. It formulates a conclusion: “to refuse to initiate a criminal case”, which is supplemented by a reference to the relevant circumstance that excludes the initiation of a criminal case, such as “in the absence of a crime.”
The person, institution, enterprise or public organization from which the application or notification of the committed crime was received shall be notified of the refusal to initiate a criminal case, and the right to appeal the decision shall be explained to them. Not in all cases this requirement of the law is fulfilled. This is due to the fact that decisions to refuse to initiate a criminal case are rarely appealed.
The study of practice also shows that some police officers and investigators not only do not explain the right to appeal the refusal to initiate a criminal case 123helpme.me, but also include in the decision to refuse such wording that creates the illusion that victims work on a statement or report about the crime continues.
For example, an operative of the BBC, refusing to initiate a criminal case on the fact of breaking the lock of a cafe in the cinema “Ray”, indicated in the decision that “the search for the criminal will continue.” With such wording, the victim or organization does not have the question of appealing such a decision, as it is believed that the search work is underway. In fact, such materials are often archived as substantively resolved statements or reports of a crime.
Appeals against decisions to refuse to initiate a criminal case
As already mentioned, in the absence of legal grounds and grounds, as well as in the presence of circumstances that preclude the initiation of a criminal case or give the right not to initiate it, the inquiry body, investigator, prosecutor or judge shall issue a decision to refuse to initiate a criminal case. stakeholders, enterprises, institutions and organizations.
Such a decision of the body of inquiry and the investigator on the refusal to initiate a criminal case may be appealed to the relevant prosecutor, and if the decision is made by the prosecutor – to a higher-level prosecutor. The complaint shall be filed by the person whose interests it concerns or by his / her representative within seven days from the date of receipt of a copy of the decision.
The investigator’s actions may be challenged by the prosecutor either directly or through the investigator.
Complaints can be both written and oral. Oral complaints are recorded by the prosecutor or investigator.
The investigator is obliged to send the complaint received by the prosecutor together with his explanations within 24 hours.
The filing of a complaint does not suspend the execution of the contested action unless the investigator or prosecutor deems it necessary.
The law does not limit the number of persons who may challenge the investigator’s actions. Complaints about actions followshall be sent to the prosecutor by the administration of the place of pre-trial detention not later than three days from the time of their submission (Part C of Article 13 of the Law on Pre-trial Detention).
The investigator’s explanation of the complaint against his actions must contain reasoned responses to the complainant’s arguments.
The investigator or prosecutor may suspend the execution of the contested action if the complainant’s complaint or request is found to be well-founded. In case of unreasonable refusal to initiate a case by an inquiry body or an investigator, the prosecutor shall revoke these decisions by his decision and initiate the case himself.
The complaint and a copy of the notice of the results of its resolution shall be attached to the case. The refusal to satisfy the complaint must be motivated.
Recognizing the complaint well-founded, the prosecutor: cancels the procedural act of the investigator; takes measures to eliminate the consequences of illegal actions of the investigator; establishes the violated rights and legitimate interests of the complainant; depending on the results of the inspection of the complaint, decides on the punishment of those guilty of illegal actions.
The prosecutor’s decision to refuse to satisfy the complaint must state the circumstances that refute it.
The materials of the prosecutor’s complaint review may also be attached to the case.
If the prosecutor refuses to revoke the decision to refuse to initiate a criminal case, the complaint against this decision is filed by the person whose interests it concerns, or his representative in court, in the manner prescribed by Article 236i of the CPC.
Complaint against the decision of the district, city and equivalent to them the body of inquiry, investigator, prosecutor to refuse to initiate a criminal case in the cases provided for in Part 2 of Art. 99i of the CPC, filed by the person whose interests it concerns, or his representative to the district (city) court at the location of the body or work of the official who issued the decision, within seven days of receiving notice from the prosecutor to refuse to cancel the decision.
The complaint of the interested person against the decision of the body of inquiry, investigator, prosecutor on the refusal to initiate a criminal case may be filed in court only after this decision was appealed to the prosecutor in the manner and within the period provided for in Part 1 of Art. 99 of the CPC, and the prosecutor refused to repeal it.