Denis Valentinovich Manturov Minister of Industry and Trade of the Russian ...
Section I.
Documents confirming the status of the applicant.
1. Individuals
1.1. The original of one of the identity documents:
Passport or document replacing it;
Identity card of an officer of the Ministry of Defense, the Ministry of Internal Affairs and other military formations and a certificate of registration at the place of residence - form-33;
Birth certificate (for citizens under 16 years old).
For foreigners, stateless persons, political emigrants:
National passport,
Identity card - for stateless persons,
Certificate of the Executive Committee of the SOKK - for political emigrants,
Residence.
Note. When changing the last name, first name, patronymic, an appropriate document on such changes from the registry office is provided.
1.2. In the event that the registration is carried out by a representative, in addition to the identity documents, one of the documents confirming the authority of the representative is presented:
Power of attorney certified in accordance with Art. 185 of the Civil Code of the Russian Federation;
Documents confirming guardianship, guardianship, patronage, with the attachment of a child's birth certificate, copies of decisions of judicial authorities on limitation of legal capacity.
2. Legal entities
2.1. The original or a notarized copy of the Charter with all amendments and additions and the original or a notarized copy of the certificate of state registration;
2.2. The original or a notarized copy of the decision on the appointment of the head of the legal entity or the person who signed the transaction on behalf of the legal entity, on the basis of which the right to the real estate object was declared for registration. (for example: according to the Charter, the right to dispose of property is granted to a certain governing body of a legal entity (for example: director), in this case, it is mandatory to submit a document confirming the fact of his appointment (election) to the position. directors (or other collegial body), then it is necessary to submit the original or a notarized copy of the decision of the Board of Directors (or other collegial body) to make a decision on the alienation of real estate and delegate to sign the agreement to an official (for example: director).
Bashinskaya Inna Gennadievna
Candidate of Law, Associate Professor of the Department of Preliminary Investigation of the 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 victims of crimes at the stage of consideration of messages are considered.
Key words: applicant, crime, victim, rights, obligations, complaint, pre-investigation 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 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 tenth resident of Russia becomes a victim of one or another crime every year, and the damage caused by criminal acts amounts to billions of rubles. Thus, according to the statistical reports of the Judicial Department at the Supreme Court of the Russian Federation, direct material damage from crimes, determined by verdicts and decisions of the courts, 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 are the main task of the state, which is solved at the constitutional and legislative levels.
To reliably protect their rights and legitimate interests, each citizen, regardless of whether he or she has citizenship, has a number of constitutionally enshrined rights, such as the right to life, liberty and security of person (enshrined in Articles 20, 22 and 23 of the Constitution of the Russian Federation), the right to receive information and documents from state bodies that are directly related to his rights and freedoms (part 2 of article 24), the right to use his native language
(Art. 26), the right to receive qualified legal assistance (Art. 48), the right not to testify against oneself, one's spouse or close relatives (Art. 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 a court of decisions and actions (inaction) of officials, the right to appeal to interstate bodies for the protection of human rights and freedoms, if all available domestic remedies have been exhausted in accordance with international treaties ( Article 46).
These and other human and civil rights and freedoms can be limited by federal law only to the extent necessary in order 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 by means of criminal legislation, which defines specific unlawful acts that form 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 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 turns to a law enforcement agency, which coincides with the beginning of criminal procedural relations arising at the stage of initiating a criminal case, namely, from the moment a person submits an application for the committed crime.
A statement of 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 submitting an application to a law enforcement agency, a person enters into criminal procedural relations, which are defined in Art. 141 of the Code of Criminal Procedure of the Russian Federation, which prescribes the procedure and form for accepting a written statement of 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 Code of Criminal Procedure 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 made based on the results of consideration of a crime report.
However, despite the fact that the rules on the rights and obligations of the applicant are contained in different 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 victims of crimes during the verification of the message has been discussed in the legal literature for a long time.
Victim status 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 of a crime can only be acquired after an inquiry officer, investigator or court issues an appropriate decision.
Only from the moment the decision on recognizing a person as a victim is issued, the rights regulated in Part 2 of Art. 42 of the Criminal Procedure Code 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 abuser, to testify, present evidence, make motions and recusals, use the help of an interpreter free of charge, have a representative, participate with the permission of the inquiry officer. or investigator in carrying out 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.
To overcome obstacles to the protection of his rights and legitimate interests, the applicant is forced to go through several psychologically and legally difficult stages, performing different roles: the applicant for a crime or, possibly, his 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 timely part in the collection of evidence.
In 2008, the Human Rights Ombudsman in the Russian Federation drew attention to this problem, pointing out that “the deadline for the adoption of a decision on recognition of a victim by the law is not established. Due to this, the victim of a crime is often recognized as a victim only at the final stage of pre-trial proceedings. Until he is recognized as a victim, the victim of the crime is considered an applicant. This, in turn, leads to a violation of the victim's right to receive information about the progress and results of the preliminary investigation, to provide items and documents confirming his statement of a 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 has listened to this proposal and by the Federal Law of December 28, 2013 No. 432-FZ amended Art. 42 of the Code of Criminal Procedure of the Russian Federation, regulating the legal status of the victim, stating that “the decision to recognize the victim is taken immediately from the moment a criminal case is initiated ...”.
In our opinion, the recognition of a victim as a victim of a crime, simultaneously with the initiation of a criminal case, of course, is of a progressive nature. 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 question of the implementation of the rights of these persons in the process of pre-investigation verification, provided for by Art. 140-145 of the 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 by the Federal Law of March 4, 2013 No. 23-FZ, oblige the investigator, the body of inquiry, the investigator, the head of the investigative body to explain the rights and obligations of the persons involved in the production of procedural actions when checking the report of the crime, and to ensure the possibility of exercising these rights insofar as the procedural actions carried out and the procedural decisions taken affect their interests, including the right not to testify against oneself, one's spouse and other close relatives, to use the services of a lawyer, and to lodge complaints about actions (inaction ) and decisions made based on the results of consideration of a crime report. Participants in the verification of a crime report may be warned about non-disclosure of data from pre-trial proceedings. If necessary, a participant in pre-trial proceedings, including when receiving a report of a crime, must be provided with security.
Thus, the legislator made an attempt to protect the interests of the victims at the stage of considering the statements of the crime. At the same time, the question of whether these persons can use the services of an interpreter free of charge remains out of sight, since the Criminal Procedure Code 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 native language, in part 2 of Art. 18 of the Code of Criminal Procedure of the Russian Federation states that an interpreter is provided to persons participating in the case. However, from a procedural point of view, there are still no participants at the stage of initiation of a criminal case.
The applicant's current situation 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, a person who makes a decision based on the results of considering a report of a crime is obliged to notify the applicant of the decision taken and explain the right and procedure for his appeal.
In turn, the applicant, in accordance with Art. 123-125 of the Code of Criminal Procedure of the Russian Federation has the right to appeal against this decision in a higher order of subordination or in court (if the decision made has caused damage to his constitutional rights and freedoms or hinders access to justice). However, to draw up a reasoned complaint, the applicant does not need a single notification of the decision. In order to be convinced of the objectivity of the consideration of the crime claim and the validity of the decision to refuse to initiate a criminal case, it is necessary to familiarize yourself not only with the text of the decision on the refusal to initiate a criminal case, but also with 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 inquiry officer or investigator and asks to be given the opportunity to familiarize himself with the materials of the verification of his statement about the committed 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 CCP RF.
In such cases, the applicant has the right to seek the provision of materials to him for review by appealing 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 for familiarization with materials that directly affect their rights and freedoms, even if such a right is not directly provided for by law. Therefore, if there is a petition, the person who has declared a crime must be familiarized with the materials of the verification of his statement of 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 the effective protection of the rights and interests of persons who have suffered from committed 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. supplement chap. 8 of the Criminal Procedure Code of the Russian Federation, regulating
the legal status of other participants in criminal proceedings, the article "Applicant", in which to list his rights and obligations.
The implementation of this proposal would allow:
1) a person who has applied for protection to a law enforcement agency, from the moment of filing a statement of a crime, become full-fledged
1. Problems of protecting the rights of victims of crimes: a special report of the Commissioner for Human Rights in the Russian Federation // Ros. gas. 2008.4 June.
2. Vasilenko L.A. Private prosecution proceedings: dis. ... Cand. jurid. 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 BA Kekhman: ruling of the Constitutional Court of the Russian Federation of 18 Feb. 2000 No. 3-P. URL: http://www.consultant.ru/ document / cons_doc_LAW_26325 /
4. On the complaint of citizen Andreyev Andrey Ivanovich about violation of his constitutional rights by paragraphs 1, 5, 11, 12 and 20 of part two of Article 42, part two of Article 163, part eight of Article 172 and part two of Article 198 of the Criminal Procedure Code 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 during the entire further investigation of the case;
2) the body of inquiry, the interrogating 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. 2008. June 4.
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 BA 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/
In accordance with Art. 2 of the Registration Law, state registration of legal entities is carried out by the federal executive body authorized in the manner prescribed by the Constitution of the Russian Federation and the Federal Constitutional Law "On the Government of the Russian Federation".
According to the 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 (farmer) enterprises, individuals as individual entrepreneurs" *(12) , such a body is the Ministry of the Russian Federation for Taxes and Duties of the Russian Federation *(13) , or rather its territorial bodies. This is reflected in clause 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 (farmer) households".
The legal status of the registering authority is formed, in particular, from its rights and obligations. The Regulation on the Federal Tax Service (part VI) defines its following powers, which can be applied to the sphere of state registration of legal entities:
1) organize the conduct of the necessary research, 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 the 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 scientific and other organizations, scientists and specialists in accordance with the established procedure 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 suppress the facts of violation of the legislation of the Russian Federation;
7) create advisory and expert bodies (councils, commissions, groups, boards) in the field of state registration of legal entities;
The duties of the Federal Tax Service include:
1) compliance with the law;
2) 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) keeping secret information about legal entities.
On behalf of the Federal Tax Service, inspections of the Federal Tax Service for a district, a district in a city, a city without a regional division and an inspection of the Federal Tax Service of the interdistrict level, as well as the department of the Federal Tax Service 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 register only legal entities in respect of which a special registration procedure is established by federal laws (clause 6.3.1. Appendix No. 5 to the Order of the Ministry of Finance of the Russian Federation of August 9, 2005).
In addition to the registration authorities, the opposite party to the state registration of legal entities also participates in the legal relationship - applicants for state registration of legal entities, which can only be individuals.
In accordance with the third paragraph of paragraph 1 of Art. 9 of the Registration Law, the following persons can be applicants:
o the head of a permanent executive body of a 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 commissioner 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 by an act of a specially authorized state body, or an act of a local self-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 establishing the legal status of individual organizational and legal forms of legal entities, and constituent documents. Accordingly, the legal status of a permanent executive body is regulated in different ways. For example, the legislation on business companies provides that the sole executive body for joint-stock companies can be, depending on the position enshrined in the constituent documents, either a director or a general director elected by the general meeting of shareholders, or a manager (an individual entrepreneur who, under a contract, carries out functions of the sole executive body); for limited liability companies, subsidiaries and dependent companies, 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 of an individual as the sole executive body of a business company may be: a) minutes of the general meeting of participants (shareholders); b) the decision of the founder if the company is founded by one natural person; c) minutes of the meeting of the board of directors (supervisory board); d) a civil contract, in accordance with which the functions of the sole executive body are performed by the manager.
The sole executive body of a state and municipal unitary enterprise is the head, who is appointed by the owner or the body authorized by the owner and is accountable to them (Article 113 of the Civil Code of the Russian Federation). The document confirming the appointment of an individual as a manager, in this case, will be the appropriate decision of the owner.
Among other applicants, the founder (s) of the legal entity is also indicated at its creation, i.e. the person who made the decision to create 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 reasonable, 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 all of the founders of the registered legal entity at once, but of some of them, or even of any one. This is consistent with the fact that a number of organizational and legal forms of legal entities provide for the possibility of registering a legal entity and one founder, who is the only founder - the applicant.
Domestic legislation also differentiatedly regulates the issue of the composition of founders of legal entities of specific organizational and legal forms. So, for business partnerships (general partnerships and limited partnerships), the opportunity to be founders applies to persons engaged in entrepreneurial activities (individual entrepreneurs and (or) commercial organizations). The founders or founder of business entities can be either an individual or a legal entity (for subsidiaries and dependent companies, a legal entity - any business entity - must be present as a founder). It should be borne in mind that a legal entity cannot be the founder of a business entity consisting of one person (clause 2 of article 88 and clause 6 of article 98 of the Civil Code of the Russian Federation). As for the possibility of public authorities and local self-government bodies to be founders of economic societies, it is generally denied. 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 for this 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, which can act as founders of closed joint-stock companies with 100% participation of the state or municipal formation, 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 by individuals (liquidators). This is necessary in order to fully exercise the rights of creditors to pay the accounts payable liquidated by the debtor organization, as well as to reliably reflect the balance of property in the liquidation balance sheet. If a legal entity is in bankruptcy proceedings (namely, at the stage of bankruptcy proceedings), then a mandatory participant in this process is the bankruptcy trustee, 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 grant the status of an applicant to any person who is granted the right to be an applicant by an act of a specially authorized state body or local self-government body (for example, for the registration of unitary enterprises), or by federal law. Such 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 the constituent entities of the Russian Federation - acts of the supreme executive body of state power of the 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 of Art. 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 Constituent Entities of the Russian Federation " *(18) );
3) for municipal unitary enterprises - acts of the 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"; clause 5 of part 10 of article 35 of the Federal Law Law of October 6, 2003 N 131-FZ "On the General Principles of Organization of Local Self-Government in the Russian Federation" *(19) ).
When submitting an application and other documents to the registering body, the acts are certified by the signature of the head of the body entrusted with these powers.
As noted in the Methodological Recommendations for filling out the forms of documents used for state registration of a legal entity, approved by Order of the Federal Tax Service of November 1, 2004 N SAE-3-09 / [email protected] *(20) , the following individuals can be applicants:
1) the head of a permanent executive body of a registered legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney:
At state registration of a legal entity created through reorganization;
2) the founder (founders) of the 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 by an act of a specially authorized state body, or by 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 to the information on the legal entity in the Unified State Register of Legal Entities, which are not related to the 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 activity of a unitary enterprise in connection with the sale of its property complex;
4) the head of the liquidation commission (liquidator), bankruptcy commissioner:
Upon liquidation of a legal entity.
In cases of public prosecution, it is not required for the complainant to make a request to prosecute the perpetrator in a crime statement. By virtue of the principle of publicity (officiality) in force in Russian criminal proceedings, this issue is resolved regardless of the applicant's will.
This rule does not apply to private prosecution cases, which, as a general rule, can be initiated only at the request of the victim Does not comply with the provisions of Part 1 and 2 of Art. 318 of the Code of Criminal Procedure of the Russian Federation, the statement of VN Grigoriev that private prosecution cases "are initiated only at the request of the victim." See: V.N. Grigoriev. Decree. slave. P. 314. or his legal representative, and in the event of the death of the victim - at the request of a close relative of the victim (parts 1 and 2 of Art. in relation to a person who is able to independently exercise his rights, they are initiated only at the request of the victim.
Public-private prosecution cases are initiated at the request of the victim. There is no direct indication in the Criminal Procedure Code of the Russian Federation that this category of cases can be initiated at the request of a legal representative, and even more so a close relative of the victim. Meanwhile, at a minimum, the legal representatives of the victim must have this right, based on the provisions enshrined in Part 3 of Art. 45 of the Code of Criminal Procedure of the Russian Federation, according to which the legal representatives of the victim have the same procedural rights as the person they represent About the existence of the legal representative of the same rights as the victim, some proceduralists often forget and therefore are among the persons from whom the application can be accepted about a crime in a private-public prosecution case, include some victims. See: L.N. Maslennikova Decree. slave. S. 298 - 299. as well as by analogy with Part 1 of Art. 318 of the Criminal Procedure Code of the Russian Federation. It seems that it would be consistent to grant this right to close relatives of the victim in the event of the death of the latter. Further, a victim in private prosecutions means his legal representative, and in the event of the death of the victim, also a close relative.
Only in connection with the receipt by the competent authority of the application (complaint) of the victim In this case, the term “victim” is not used in the meaning that is used in Art. 42 of the Code of Criminal Procedure of the Russian Federation, that is, not as a person in respect of whom an appropriate decision was made to recognize him as such, but as a person who has suffered a certain kind of harm. Such a subject of criminal proceedings can be called a victim. a criminal process may begin on such facts, and then a criminal case is initiated. Moreover, in the statement of the victims about the crimes, an exhaustive list of which is given in Art. 20 of the Code of Criminal Procedure of the Russian Federation, there must be a mandatory request to bring the perpetrator to criminal responsibility. Other authors share the same opinion. See: Bezlepkin B.T., Borodin S.V. Chapter 19. Reasons and grounds for initiating a criminal case // Commentary to the Criminal Procedure Code of the Russian Federation / Ed. I.L. Petrukhin. - M .: OOO "TK Welby", 2002. - P. 209; Bezlepkin B.T. Commentary on the Criminal Procedure Code of the Russian Federation (article by article). Pp. 177 - 178. The victim may ask to bring the person to "legal responsibility", and even the presence of this phrase in the complaint is not enough to start the criminal process.
Anchored in Art. 147 of the Code of Criminal Procedure of the Russian Federation, the procedure for initiating a public prosecution by a prosecutor, an investigator (body of inquiry, etc.) with the consent of the prosecutor of criminal cases is in many respects similar to the procedure for initiating public prosecutions. Bagautdinov F. Initiation of a criminal case under the Code of Criminal Procedure of the Russian Federation // Legality. - 2002. - № 7. - P. 42. As in the case of initiation of criminal cases of public prosecution:
1) to initiate a criminal case, it is necessary to have those provided for in Art. 140 of the Code of Criminal Procedure of the Russian Federation, reasons and grounds;
2) only a prosecutor can initiate a criminal case without obtaining anyone's consent;
3) the rest of the officials authorized to make the procedural decision under consideration shall forward the decision made by them to the prosecutor in order to obtain consent to initiate a criminal case;
4) it is obligatory to comply with the stipulated parts 2 and 3 of Art. 146 of the Code of Criminal Procedure of the Russian Federation and Appendices No. 7 and 8 to the Code of Criminal Procedure of the Russian Federation of the procedural form of a decision to initiate a criminal case;
5) prior to obtaining the consent of the prosecutor, it is possible to conduct an examination and appoint a forensic examination;
6) the prosecutor has the right to return the materials sent to him with the decision to initiate a criminal case for additional verification. An additional check can last no more than 5 days.
The preliminary investigation in cases of private-public prosecution, which begins after the initiation of a criminal case, can be carried out in the same way as in cases of public prosecution. This is one of the circumstances, in connection with the presence of which part 1 of Article 147 of the Code of Criminal Procedure of the Russian Federation states that the proceedings on such criminal cases of a private-public prosecution are conducted in a general manner.
The only difference between the procedures associated with the adoption and execution of a decision to initiate a criminal case of public and private-public prosecution is that public-private prosecution cases are initiated only at the request of the “victim” (the legal representative of the “victim”, and in the case of death of the “victim” - at the request of his close relative). The absence of a statement by the "victim" in this kind of criminal cases (except for the cases provided for by part 4 of article 20 of the Criminal Procedure Code of the Russian Federation) - provided for in paragraph 5 of part 1 of article. 24 of the Code of Criminal Procedure of the Russian Federation, the basis for refusal to initiate a criminal case. L.V. Golovko Alternatives to criminal prosecution in modern law. - SPb., 2002 .-- S. 458.
Without a complaint (statement) of the "victim", the prosecutor, as well as the investigator (body of inquiry, etc.), with the consent of the prosecutor, have the right to initiate a public-private criminal case only if the crime they become aware of has been committed against a person who cannot protect his rights and legitimate interests (he is in a dependent, helpless state or, for other reasons, is not able to independently use his rights). Otherwise, the decision to initiate a criminal case against a private-public prosecution may be deemed unfounded and, as a consequence, the sentence passed in the case was canceled. By analogy with the cancellation of the decision to initiate a criminal case against private prosecution. See: Review of the cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 1999 // Bulletin of the Supreme Court of the Russian Federation. - 2000. - No. 9.
Crimes, cases of which are referred to as cases of private-public prosecution, are listed in Part 3 of Art. 20 of the Criminal Procedure Code of the Russian Federation. These are crimes under Part 1 of Art. 131 (rape, that is, sexual intercourse with the use of violence or with the threat of its use against the victim or other persons, or with the use of the victim's helpless state), Part 1 of Art. 136 (violation of the equality of human and civil rights and freedoms, depending on gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, causing harm to the rights and legitimate interests of citizens) , part 1 of Art. 137 (illegal collection or dissemination of information about the private life of a person constituting his personal or family secret, without his consent, or the dissemination of this information in a public speech, publicly displayed work or mass media, if these acts were committed out of selfish or other personal interest and caused harm to the rights and legitimate interests of citizens), Part 1 of Art. 138 (violation of secrecy of correspondence, telephone conversations, postal, telegraph or other messages of citizens), part 1 of Art. 139 (illegal entry into a dwelling, committed against the will of the person living in it), Art. 145 (unjustified refusal to hire or unjustified dismissal of a woman on the grounds of her pregnancy, as well as unjustified refusal to hire or unjustified dismissal from work of a woman with children under the age of three, for these reasons), Part 1 of Art. 146 (illegal use of objects of copyright or related rights, as well as appropriation of authorship, if these acts caused major damage) and Part 1 of Art. 147 (illegal use of an invention, utility model or industrial design, disclosure without the consent of the author or applicant of the essence of the invention, utility model or industrial design before the official publication of information about them, attribution of authorship or coercion to co-authorship, if these acts caused major damage) of the Criminal Code of the Russian Federation.
In order to correctly understand the meaning of the expressions used in parts 1 and 2 of Article 147 of the Code of Criminal Procedure of the Russian Federation “are initiated only at the request of the victim”, one should understand the content of such terms as “initiation of a criminal case”, “application” and “victim ".
Initiation of a criminal case is a procedural decision, mental activity, as a result of which the competent authority comes to an inner conviction that there is a reason and basis for initiating a criminal case. When it comes to initiating a public-private criminal case and it is not initiated against a person who cannot defend his rights and legitimate interests, the reason for initiating it can only be a statement by the person who has suffered from the commission of this crime. Criminal Procedure in Russia: Textbook / A.S. Alexandrov, N.N. Kovtun, M.P. Polyakov, S.P. Serebrova; Sci. ed. V.T. Tomin. - M .: Yurayt-Izdat, 2003. - P. 132. The range of grounds for initiating criminal cases of a private-public prosecution is limited to those elements of crimes referred to in Part 3 of Art. 20 of the Criminal Procedure Code of the Russian Federation. Criminally procedurally significant signs of the objective side of one (several) of these corpus delicti and can be recognized as grounds for initiating a criminal case.
The initiation of a criminal case is a mental activity, but its results will not be able to play any criminal procedural role if they are not properly formalized by issuing a special decree.
The “victim's statement”, referred to in parts 1 and 2 of Article 147 of the Code of Criminal Procedure of the Russian Federation, is a kind of reason for initiating a criminal case, the form of which is enshrined in paragraph 1 of Part 1 of Art. 140 and art. 141 of the Criminal Procedure Code of the Russian Federation. This is the statement of the "victim" about the crime. And not about any crime, but only about one (several) crime, which is mentioned in part 3 of Art. 20 of the Criminal Procedure Code of the Russian Federation.
Being the reason for the initiation of a criminal case, the statement of the "victim" can be characterized as follows. The statement of the “victim” is the first source of awareness from the “victim” of the body of inquiry, the interrogator, the investigator, the head or member of the investigation team, the head of the investigation department or the prosecutor about the prepared, committed or committed act (the consequences thereof), containing procedurally significant signs of the objective side named in Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation of corpus delicti.
The considered reason for the initiation of criminal proceedings arises after the receipt of not any statement by the competent authority, but only the one in which the victim asks to bring the person to criminal responsibility. The fact that a statement on cases of private-public prosecution should indicate the request of the victim to initiate a criminal case (see: Khaliulin A.G. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation as amended by the Federal of the law of May 29, 2002 / Under the general and scientific editorship of A.Ya. Sukharev. - M .: NORMA-INFRA-M, 2002. - pp. 251 - 252) or a request “to bring the perpetrators to criminal responsibility” ( see: Kalinovsky K.B. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Edited by A.V. Smirnov. - SPb .: Peter, 2003. - P. 388), they say and other scientists. Even the phrase “I ask you to bring to legal responsibility” or “to administrative responsibility” See: KB Kalinovsky. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnov. - SPb .: Peter, 2003. - P. 388. should not be considered as a statement referred to in article 147 of the Criminal Procedure Code of the Russian Federation.
The statement may be about a crime of public prosecution, but by the time a criminal case is initiated, it becomes clear that there was rape without aggravating circumstances, violation of equality of human and civil rights and freedoms without aggravating circumstances, etc. In this situation, despite the fact that the statement at the beginning was about another crime, in order to make a decision to initiate a criminal case, it is necessary to have a duly completed statement of the victim. Accordingly, such a statement must reflect the victim's requirement to bring the offender to criminal responsibility.
The “victim's statement” referred to in Article 147 of the Code of Criminal Procedure of the Russian Federation can only be a message received by the body authorized to initiate a criminal case. This can be any institution (official) that has the right to decide on the initiation of a criminal case (an internal affairs body as an inquiry body, a preliminary investigation body, a prosecutor, etc.). See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation of December 22, 1994 // Bulletin of the Supreme Court of the Russian Federation. - 1995. - No. 7.
Article 147 of the Code of Criminal Procedure of the Russian Federation names only one subject that has the authority to initiate criminal proceedings against a private-public prosecution - the prosecutor. In the reviews of judicial practice, attention is drawn to the need to initiate such kind of criminal cases only by an authorized official. See: Review of the cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 1999 // Bulletin of the Supreme Court of the Russian Federation. - 2000. - № 9. Well-known scientists also pay attention to this circumstance. See: T.N. Moskalkova Chapter 20. Procedure for initiating a criminal case // Scientific and practical commentary to the Criminal Procedure Code of the Russian Federation / Under total. ed. V.M. Lebedev; Scientific ed. V.P. Bozhiev. - M .: Spark, 2002. - P. 302. Therefore, it is very important to define an exhaustive range of officials and bodies that have the right to decide on the initiation of a criminal case of private prosecution.
Edition of Part 2 of Art. 147 of the Criminal Procedure Code of the Russian Federation leads some proceduralists to duplicate its content in their comments. Accordingly, such comments by a law enforcement officer can be perceived as a statement that if the victim, due to a helpless state or for other reasons, cannot defend his rights and legitimate interests, only a public prosecutor can initiate a public-private criminal case. See: V.V. Golubev. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Under the General editorship of. IN AND. Radchenko. - M .: CJSC "Yuridicheskiy Dom" Yustitsinform ", 2003. - S. 330 - 331; Khaliulin A.G. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation as amended by the Federal Law of May 29, 2002 / Under total. and scientific. ed. AND I. Sukharev. - M .: NORMA-INFRA-M, 2002. - S. 252; A.P. Korotkov Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Otv. ed. D.N. Kozak, E.B. Mizulina. - M .: Jurist, 2002 .-- S. 307.
However, based on the content of Art. 20 of the Code of Criminal Procedure of the Russian Federation, in addition to the prosecutor, the investigator and the inquiry officer should also be recognized as such. They must obtain the consent of the prosecutor to initiate criminal proceedings. In this regard, I have to speak out against the statement of B.T. Bezlepkin. that “an investigator or an inquiry officer has the right to initiate any criminal case of a private-public prosecution”. See: B.T. Bezlepkin. Commentary on the Criminal Procedure Code of the Russian Federation (article by article). - M .: LLC "VITREM", 2002. - P. 33. If the prosecutor does not give consent to this, the decision made by the investigator or inquirer will lose its legal force.
The prosecutor is empowered to issue a decision to initiate a criminal case without seeking permission from anyone.
Edition of Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, as well as Part 2 of Article 147 of the Code of Criminal Procedure of the Russian Federation lead to the fact that the majority of authors in their comments to this article limit the range of subjects authorized to initiate a criminal case of a private-public prosecution only by the indicated officials and bodies See: Shevchuk A.N. Chapter 20. Procedure for initiating a criminal case // Commentary to the Criminal Procedure Code of the Russian Federation. New edition. - M .: IKF "EKMOS", 2002. - P. 274; Shevchuk A.N. Chapter 20. Procedure for initiating a criminal case // Commentary to the Criminal Procedure Code of the Russian Federation. Article by article / Ed. ON. Petukhova, G.I. Zagorsky. - M .: IKF "EKMOS", 2002. - P. 274; Commentary on the Criminal Procedure Code of the Russian Federation / Under total. ed. V.V. Mozyakova. - M .: Publishing house "Exam XXI", 2002. - P. 339; Moskalkova T.N. Chapter 20. Procedure for initiating a criminal case // Scientific and practical commentary to the Criminal Procedure Code of the Russian Federation / Under total. ed. V.M. Lebedev; Scientific ed. V.P. Bozhiev. - M .: Spark, 2002. - S. 301. or they do not even mention the participants in the adoption of the procedural decision in question. See, for example: Kalinovsky K.B. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnov. - SPb .: Peter, 2003 .-- P. 388; Bezlepkin B.T. Commentary on the Criminal Procedure Code of the Russian Federation (itemized) - M .: LLC "VITREM", 2002. - P. 183; Bezlepkin B.T. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. I.L. Petrukhin. - M .: OOO "TK Welby", 2002. - S. 213.
Meanwhile, to initiate a criminal case of a private-public prosecution in the absence of a complaint from the victim, if the latter, for example, due to illness was in a helpless state, has the right to any official who is entrusted with the performance of the duties of a prosecutor, and with the consent of the prosecutor - any person entrusted with fulfillment of the duties of an investigator or interrogator. See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation of February 5, 1997 // Bulletin of the Supreme Court of the Russian Federation. - 1997. - No. 8.
Not only these officials are endowed with the right to initiate criminal cases. Literal interpretation of clause 19 of Art. 5, part 1 of Art. 144, p. 1 h. 1 art. 145, part 4 of Art. 146, paragraph 3 of Art. 149 of the Code of Criminal Procedure of the Russian Federation directly indicates that the bodies of inquiry also have the right (are obliged) to initiate criminal cases.
Article 147 of the Code of Criminal Procedure of the Russian Federation refers to the “victim”. However, this concept is not used in the same sense that is used in Art. 42 of the Criminal Procedure Code of the Russian Federation. Scientists point out that the term “victim” used in Article 147 of the Code of Criminal Procedure of the Russian Federation is “inaccurate”. See: Kalinovsky K.B. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnov. - SPb .: Peter, 2003. - S. 388. According to Art. 42 of the Code of Criminal Procedure of the Russian Federation, dedicated to the concept and legal status of the victim, in the criminal process a decision is made on recognizing an individual or legal entity as a victim, which is formalized by a special decree. The form of the decision on recognition as a victim is enshrined in Appendix No. 23 to the Code of Criminal Procedure of the Russian Federation. In the introductory part of this document, the number of the criminal case must be indicated, after considering the materials of which, the "investigator (interrogator)" makes the decision under consideration. Accordingly, the content of the form of this document indicates that a person can be recognized as a victim only after the initiation of a criminal case.
Before the initiation of a criminal case, or otherwise, at the time of the decision on the initiation of a criminal case of a private-public prosecution, in the criminal process there is no person legally recognized as a victim, which means that from the point of view of the criminal process, there is no victim. Indeed, at the stage of initiation of a criminal case and even before the start of a criminal process, it is possible to find an individual to whom the crime has caused physical, property, moral damage, as well as a legal entity whose property and business reputation have been damaged by the crime. But until one of these is recognized as a victim by a special resolution, it will not be such from the standpoint of the criminal procedure law. Before being recognized as a victim, it is recommended that such a person be referred to as a victim. It was he who was given the right to file an application for the commission of one (several) of the crimes listed in Part 3 of Art. 20 of the Criminal Procedure Code of the Russian Federation. Accordingly, in Article 147 of the Criminal Procedure Code of the Russian Federation, it would be more correct and consistent to speak not about the victim's statement, but about the victim's statement.
The criminal procedural law enshrines the basic ideas characterizing the institution of representation and succession of a natural person who has suffered physical, property, moral harm by a crime, as well as a legal entity whose property and business reputation have been harmed by a crime. Criminal procedure: Textbook for universities / Otv. ed. A. V. Grinenko. - M .: Norma, 2004. - S. 140. According to these, the legal representatives and representatives of the victim have the same procedural rights as the persons they represent (part 3 of article 45 of the Code of Criminal Procedure of the Russian Federation). Moreover, in criminal cases of crimes, the consequence of which was the death of a person, the rights of the victim, provided for in Art. 42 of the Code of Criminal Procedure of the Russian Federation, are transferred to one of his close relatives (part 8 of Art. 42 of the Code of Criminal Procedure of the Russian Federation).
In these norms, as well as in article 147 of the Criminal Procedure Code of the Russian Federation, we are talking about the victim. Meanwhile, as we found out, in article 147 of the Criminal Procedure Code of the Russian Federation, the legislator understands a victim as a somewhat different subject of criminal proceedings. Despite the significant difference in the procedural status of these subjects, it seems possible to use, by analogy, the provisions of Part 3 of Art. 45 of the Code of Criminal Procedure of the Russian Federation and in relation to the victim, giving the legal representative and representative of the victim the right to apply to the competent authority with a statement about the commission of a crime in cases of private-public prosecution.
Part 8 of Art. 42 of the Code of Criminal Procedure of the Russian Federation speaks of crimes, the consequence of which was the death of a person. The consequence of the crime listed in Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, there can be no death of a person. Just as there can be no such consequences for crimes in cases of private prosecution. That is why in Art. 318 of the Code of Criminal Procedure of the Russian Federation, the provisions of Part 8 of Art. 42 of the Code of Criminal Procedure of the Russian Federation are interpreted somewhat differently. Here it is not about crimes, the consequence of which was the death of a person, but simply about the death of the victim. It seems that this idea will be consistently extended to the moment of initiation of a private-public (and not just private) prosecution. In this case, with a statement of a crime specified in Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, a close relative of the deceased victim (regardless of the reasons for his death) could apply to the body of inquiry, to the inquiry officer, investigator, head or member of the investigation team, head of the investigation department or prosecutor. Yurin V. The statement on an economic crime does not require approval // Russian justice. - 2001. - No. 7. - P. 50.
So far, these ideas have not found their direct reflection in the law. Therefore, the judgments presented here are largely theoretical. Meanwhile, they can be used in the practical activities of the bodies of preliminary investigation. They should be taken into account when deciding on the initiation of criminal cases of a private-public prosecution in accordance with Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, when a crime was committed against a person who is dependent or, for other reasons, is not able to independently use his rights.
Part 2 of Article 147 of the Code of Criminal Procedure of the Russian Federation speaks of the helpless state of the victim as one of the conditions for initiating a public-private criminal case. The helplessness of the victim's condition should not be at the time of the commission in relation to his crime, but at the time when the prosecutor, investigator, interrogator (body of inquiry, etc.) became aware of the commission of a crime listed in part 3 of Art. 20 of the Criminal Procedure Code of the Russian Federation.
The institution of finding a person in a helpless state was analyzed in relation to certain elements of crimes. Analysis of these clarifications of the Supreme Court of the Russian Federation allows us to single out the criteria for a helpless state as a criminal procedural category.
Thus, the victim should be recognized as being in a helpless state when he is unable due to his physical or mental state (state of health, disability See: Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 1999 // Bulletin of the Supreme Court of the Russian Federation. - 1999. - No. 7.), as well as old or young age to protect themselves, to take active steps to protect their rights and legitimate interests. See: Review of the supervisory practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 2001 // Bulletin of the Supreme Court of the Russian Federation. - 2002. - No. 10.
To persons in a helpless state, the Supreme Court of the Russian Federation includes, in particular, seriously ill and elderly people, young children, persons suffering from mental disorders, depriving them of the ability to correctly perceive what is happening. See: Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2002 // Bulletin of the Supreme Court of the Russian Federation. 2002. No. 12; Review of the cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 2001 // Bulletin of the Supreme Court of the Russian Federation. - 2002. - No. 9.
In practice, finding a person in a helpless state is sometimes recognized due to the disability of the victim. See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation of September 5, 2001 // Bulletin of the Supreme Court of the Russian Federation. - 2003. - No. 1.
A.P. Korotkov believes that the victim's condition can be recognized as helpless due to his dumbness, deafness, blindness, as well as the presence of somatic diseases accompanied by acute painful symptoms or are chronic. He also draws attention to the fact that the dependence of the victim can be "not only service, but also material or other." See: A.P. Korotkov. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Otv. ed. D.N. Kozak, E.B. Mizulina. - M .: Jurist, 2002 .-- S. 307.
In the literature, there are other examples of the "helpless state" that allow us to formulate its criminal procedural analogs. An example of a helpless state can be considered a situation when the copyright holder has no representative in Russia, his work is not subject to legal circulation in Russia, but the copyright of the owner is widely and grossly violated. By analogy with the idea of A. Galuzin See: A. Galuzin Criminal legal protection of copyright and related rights // Legality. - 2001. - № 5. Objects of copyright are illegally used, as well as authorship is appropriated, and these acts caused him major damage.
Whatever circumstances are perceived by an official authorized to initiate a criminal case against a private-public prosecution as evidence that the victim is in a dependent, helpless state or that for other reasons he is not able to independently exercise his rights, these should be indicated in descriptive and motivating part of the decision to initiate a criminal case. This requirement is shared by others. See: Commentary on the Criminal Procedure Code of the Russian Federation / Under total. ed. V.V. Mozyakova. - M .: Publishing house "Exam XXI", 2002. - P. 339.
No such requirement is imposed on the execution of a decision to initiate a criminal case of public accusation. This is the only reason why the statement of Kalinovsky K.B. that in the situation under consideration, a public-private criminal case “is initiated in accordance with Art. 146 of the Criminal Procedure Code of the Russian Federation ", See: K.B. Kalinovsky. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnov. - SPb .: Peter, 2003. - P. 388. cannot be considered flawless.
Criminal cases of a private-public prosecution differ from cases of a public prosecution in that, under normal conditions, they are initiated only upon a complaint (statement) of the victim. What distinguishes them from private prosecution cases is that, according to Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, they cannot be terminated due to the reconciliation of the parties, with the exception of the grounds for reconciliation, which are enshrined in Art. 25 of the Code of Criminal Procedure of the Russian Federation.
In the literature, the opinion is expressed that enshrined in Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, the provisions contradict Art. Art. 25, 28 of the Criminal Procedure Code of the Russian Federation, as well as Art. Art. 75, 76 of the Criminal Code of the Russian Federation. See: A.P. Gulyaev. Chapter 3. Criminal prosecution // Commentary on the Criminal Procedure Code of the Russian Federation / Under total. ed. V.V. Mozyakova. - M .: Publishing house "Examination XXI", 2002. - pp. 62 - 63. It seems to us that the various grounds for termination of a criminal case provided for in the law are not contradictory to each other, just as the ban on termination of a criminal case in connection with the presence of certain certain circumstances (in our case, those referred to in part 3 of article 20 of the Code of Criminal Procedure of the Russian Federation) and the simultaneous presence of others that make it possible to terminate a criminal case under other conditions provided for by another article (in this situation, articles 25 and 28 of the Criminal Procedure Code of the Russian Federation) on the grounds.
So, private-public prosecution cases have their own characteristics regarding the beginning and end of the criminal process carried out on them. These features leave a certain imprint on the legal status of the victim. Therefore, it is advisable to explain them to the person who has filed an oral statement about the commission of this kind of crime.
The obligation to clarify to the applicant the specifics of the proceedings on private-public prosecution cases is not directly stipulated in the law. It follows from the provisions of Part 1 of Art. 11 of the Criminal Procedure Code of the Russian Federation, according to which the prosecutor, the investigator and the interrogating officer must explain to the victim his rights, duties, responsibilities and ensure the possibility of exercising these rights. The implementation of these actions is also recommended by some authors. See: A.G. Khaliulin. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation as amended by the Federal Law of May 29, 2002 / Under total. and scientific. ed. AND I. Sukharev. - M .: NORMA-INFRA-M, 2002. - S. 251; See: Kalinovsky K.B. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnov. - SPb .: Peter, 2003 .-- S. 388.
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 the Citizenship of the Russian Federation", the document certifying the citizenship of the Russian Federation is a passport of a citizen of the Russian Federation or other main document containing an indication of the citizenship of a person. The types of basic documents proving the identity of a citizen of the Russian Federation are determined by the Federal Law of 15.08.1996 N 114-FZ (as amended on 31.12.2014) "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 6, 2014) "On Approval of the Regulations on the Procedure for Considering Issues of Russian Citizenship"), the presence of Russian Federation citizenship is certified by the following documents :
a) a passport of a citizen of the Russian Federation, including a foreign passport;
b) a diplomatic passport;
c) service passport;
e) an identity card (military card) of a serviceman with an insert certifying the presence of 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 presence of citizenship of the Russian Federation, affixed by an official of the authorized body.
The only document confirming that a child has Russian citizenship, before receiving a passport, is a birth certificate. In case of its loss, it is necessary to contact the registry office where the birth of the child was registered or to the registry office at the place of residence / temporary registration.
Not only the parents of the child can apply for the restoration of the birth certificate, but also the guardians, custodians of the child or representatives of the guardianship authority or the person in respect of whom the birth record was made.
To issue a duplicate certificate, you need:
1. Write an application for a duplicate;
2. Provide documents confirming the applicant's rights - passports with records of children,
3. Pay the state fee for its issuance.
If the registry office in which the birth registration was made is now located in another city because you have moved, you need to contact the registry office at your place of residence, he will send your application to the required registry office and after a few weeks you will be able to receive a duplicate of the 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 personally 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 08/05/2000 No. 117-FZ (as amended on 12/29/2014) (as amended and supplemented, entered into force on 01/29/2015);
Federal Law of 15.08.1996 No. 114-FZ (as amended on 31.12.2014) "On the procedure for leaving the Russian Federation and entering the Russian Federation"
Federal Law of 15.11.1997 No. 143-FZ (as amended on 23.06.2014) "On acts of civil status" (as amended and supplemented, entered into force on 01.01.2015)
