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Today we'll talk about where to file complaints and petitions in a criminal case!
A complaint in a criminal case is an efficient and effective way to restore and protect the rights of participants in criminal proceedings. The complaint is written in nature and can be drawn up by a suspect, accused, defendant or legal representative - a criminal defense lawyer, a third party, a victim and other persons.
In a criminal case, a complaint is filed with the head of the investigating body, the prosecutor or the court.
Most often, the actions of the investigator cause dissatisfaction.
Above the investigator there are a lot of heads of the investigative body, who are empowered to correct the work of the investigator, make decisions on the issues of the complaint and issue binding instructions. In practice, almost every manager does not recognize the work of his subordinate as wrong.
Therefore, the actions (inaction) of the investigator and his head can be appealed to the prosecutor, but the prosecutor at the stage of preliminary investigation is only authorized to demand that violations be stopped, and the investigator and the head are not obliged to comply with the requirements of the prosecutor. In practice, the investigation and the prosecutor's office work in one team.
For this reason, a lot of submitted complaints are considered, but denied.
The question immediately arises, can you file a lawsuit!? This opinion is wrong!
The judicial procedure for appealing against illegal actions of an investigator, head or prosecutor excludes from the judge's task to go into the details of the case until the case is referred to the court to resolve the issue on the merits!
According to the ruling of the plenum of the Supreme Court, when considering such complaints, the judge has no right to prejudge the proof of facts or evaluate the evidence before considering the case on the merits. It follows from this that the judicial appeal is reduced only to a formal verification of procedural issues: whether a case was initiated, in which the contested actions were carried out, whether the investigation period was extended, whether the investigator is conducting it, etc.
For this reason, the side of the defense is very limited during the preliminary investigation - all the "cards" are in the hands of the investigation.
But this does not mean that you need to give up. It is necessary to fight, look for violations, write, write and write again!!
Quite often, during the investigation of a criminal case, petitions are filed.
A petition is a request for an investigative action or a procedural decision in a case.
At the pre-trial stage of proceedings, the petition is transferred to the investigator - only he has the right to make decisions on them. When considering a case on the merits, petitions are submitted to a judge, many judges cannot close their eyes to obvious violations, and the defense side satisfies the petition.
Unfortunately, as with complaints, investigators often refuse to grant requests. This is done because it is not profitable for them to establish exculpatory circumstances or otherwise harm the position of the prosecution.
Reading the post, you might think that complaints and motions are meaningless.
No, it’s not so! Indeed, it is not easy to achieve their satisfaction, but only in this way, at the pre-trial stage, the defense can fix violations of the adversarial nature of the parties, which can subsequently be of decisive importance in the sentencing of the case.
See you soon!
Today we'll talk about where to file complaints and petitions in a criminal case!
A complaint in a criminal case is an efficient and effective way to restore and protect the rights of participants in criminal proceedings. The complaint is written in nature and can be drawn up by a suspect, accused, defendant or legal representative - a criminal defense lawyer, a third party, a victim and other persons.
In a criminal case, a complaint is filed with the head of the investigating body, the prosecutor or the court.
Most often, the actions of the investigator cause dissatisfaction.
Above the investigator there are a lot of heads of the investigative body, who are empowered to correct the work of the investigator, make decisions on the issues of the complaint and issue binding instructions. In practice, almost every manager does not recognize the work of his subordinate as wrong.
Therefore, the actions (inaction) of the investigator and his head can be appealed to the prosecutor, but the prosecutor at the stage of preliminary investigation is only authorized to demand that violations be stopped, and the investigator and the head are not obliged to comply with the requirements of the prosecutor. In practice, the investigation and the prosecutor's office work in one team.
For this reason, a lot of submitted complaints are considered, but denied.
The question immediately arises, can you file a lawsuit!? This opinion is wrong!
The judicial procedure for appealing against illegal actions of an investigator, head or prosecutor excludes from the judge's task to go into the details of the case until the case is referred to the court to resolve the issue on the merits!
According to the ruling of the plenum of the Supreme Court, when considering such complaints, the judge has no right to prejudge the proof of facts or evaluate the evidence before considering the case on the merits. It follows from this that the judicial appeal is reduced only to a formal verification of procedural issues: whether a case was initiated, in which the contested actions were carried out, whether the investigation period was extended, whether the investigator is conducting it, etc.
For this reason, the side of the defense is very limited during the preliminary investigation - all the "cards" are in the hands of the investigation.
But this does not mean that you need to give up. It is necessary to fight, look for violations, write, write and write again!!
Quite often, during the investigation of a criminal case, petitions are filed.
A petition is a request for an investigative action or a procedural decision in a case.
At the pre-trial stage of proceedings, the petition is transferred to the investigator - only he has the right to make decisions on them. When considering a case on the merits, petitions are submitted to a judge, many judges cannot close their eyes to obvious violations, and the defense side satisfies the petition.
Unfortunately, as with complaints, investigators often refuse to grant requests. This is done because it is not profitable for them to establish exculpatory circumstances or otherwise harm the position of the prosecution.
Reading the post, you might think that complaints and motions are meaningless.
No, it’s not so! Indeed, it is not easy to achieve their satisfaction, but only in this way, at the pre-trial stage, the defense can fix violations of the adversarial nature of the parties, which can subsequently be of decisive importance in the sentencing of the case.
See you soon!
