News: Initiation of criminal case

Is it necessary to punish guilty persons?! To restore justice?! We know how to do the foregoing anywhere in the world and help in the most difficult situation!

Unscrupulous law enforcement officers often unreasonably deny citizens and organizations their legal right to punish those responsible and restore their violated rights. It is not easy, but possible, to appeal against denial and compel initiation of criminal case.

As a rule, it is difficult for non-professional to compete and deal with bureaucratic machine that does not want to work and perform its duties. There is even the opinion that it is impossible or even stupid to run counter the system.

However, we have our own approach to such cases. We are not afraid to defend the interests of our clients and follow out. If your problem is justified and contains elements of the crime, we will contest the criminal case to be instituted, and the perpetrators were punished according to the applicable law.

We guarantee that law enforcement agencies will accept your case for hearing, and we will exercise control so that they can not delay the process of consideration or try to get away from carrying out their duties in any other way.

Steps

In general, there are several steps that any person who is refused criminal proceedings should fulfill.

• Step one. Familiarization with the decision or ruling to refuse to institute criminal proceedings
• Step two. Compilation of the application for familiarization with the materials of the investigation according to the Crime Incident Report
• Step three. Familiarization with the materials of the investigation according to the Crime Incident Report
• Step four. Drawing up a complaint about the decision to refuse to institute criminal proceedings
• Step five. Filing the complaint

Let’s consider them according to the example of the legislation of the Russian Federation.

The initiation of criminal case due to the fact of criminal violation is always additional work for law enforcement agencies.

Therefore, dishonest employees often  unreasonably deny citizens their legal right to punish guilty persons and restore their violated rights. It is not easy, but possible, to appeal against refusal to open criminal case. Moreover, there are no fixed deadlines for appealing the refusal.

Step one. Familiarization with the decision or ruling to refuse to institute criminal proceedings

Having received the decision to refuse to initiate criminal case, read it carefully and pay attention to two nuances:

1. The formal grounds for refusing to initiate criminal proceedings, which can be specified from the operative part of the decision with references to the Code of Criminal Procedure of the Russian Federation. This concise conclusion is at the end of the document.
2. Rationale for the decision given by the investigative officer (inquirer/interrogating officer), which is contained in the first reasoning part (reasons for judgment) of the decision.

In most cases, there are two occasions to refuse the institution of criminal case: either in the absence of an event of a crime, that is, when the facts described in your application for initiating a criminal case did not actually take place (subparagraph 1 of paragraph 1, Article 24 of the CCP RF), or in the lack of elements of crime in the described act (subparagraph 2 of paragraph 1, Article 24 of the CCP RF).

In order to understand whether the refusal to initiate a criminal case is justified, one must understand the intricacies of legal terms. So:

The elements of crime represent a combination of the characteristics of a criminal act and the person who committed it. This concept includes 4 mandatory elements:

1. The object is something the criminal is encroaching or trespassing on. For example, a thief encroaches on property, a killer or slayer - on life, a poacher - on the environment , etc.
2. The objective element is the commission of specific socially or publicly dangerous actions (or inaction) prohibited by criminal legislation. That is, directly theft, fraud, murder, robbery and so on.
3. The subject is a criminally sane citizen who has reached the age of criminal responsibility. According to paragraph 1 of Article 20 of the Criminal Code of the Russian Federation, "a person who has reached sixteen-year age on time of committing a crime is subject to criminal liability". However, paragraph 2 of the same article reduces the age of criminal responsibility to 14 years for a number of particularly grave crimes, specifically stipulated in this article. Therefore, if, for example, an offense was committed by a thirteen-year-old teenager, then there is no subject of the crime, since he has not reached the age of criminal responsibility.
4. The subjective element is the ability of the perpetrator to realize the wrongfulness and the public danger of his actions, as well as his possibility and ability to foresee the occurrence of dangerous consequences of his actions.

If one of these four items is missing, there are no elements of crime. So, there are no grounds for initiating a criminal case, and it is pointless to file a complaint. If all the elements are present, you can proceed to the second step.

Step two. Compilation of the application for familiarization with the materials of the investigation according to the Crime Incident Report

In order to effectively lodge a complaint against the decision to refuse to open criminal case, initially you need to familiarize yourself with the materials of the investigation carried out concerning your Crime Incident Report. To access these documents, it is necessary to file an application in the name of the head of that investigative body, the investigator (interrogating officer) who issued the decision on the refusal. It is necessary to specify the following in it:

1. Your procedural capacity (the applicant, the person in relation to whom the investigation was carried out, etc).

2. The date of filing and the essence of the application for initiating a criminal case.
3. The date and number of the decision to refuse to open a criminal case.
4. The number and date of the investigation materials specified in the decision to refuse to initiate criminal proceedings.
5. The requirement to insight into the investigation materials with the use of technical means.
6. Reference to Part 2 of Article 24 of the Constitution of the Russian Federation (the right to familiarize oneself with materials that affect your rights and freedoms).

The application can be submitted to the addressee by registered mail with a notice of delivery, or brought to the administrative office or handed over during personal appointment in two copies.

In the last two cases, the person to whom you handed in the application must put the date and signature regarding the acceptance on the second copy. This copy remains with you.

Step three. Familiarization with the materials of the investigation according to the Crime Incident Report

After submitting the application for familiarization with the materials of the investigation, they are required to appoint time and place for the foregoing for you. Sometimes this happens immediately after the application is submitted.

If you can not familiarize yourself with the materials of the investigation regarding the application for initiating criminal proceedings in person or are afraid that you will be physically attacked by the officers of the Department of Internal Affairs or prosecutors, you can authorize any person to familiarize oneself with the investigation materials. To do this, you issue a power of attorney to him or her and notarize it.

If the investigation was carried out in relation to a minor or an incompetent or disabled citizen or upon his application, his parent or guardian familiarize with the materials, thus, the power of attorney is not needed, but you need to bring the birth certificate of the minor.

To familiarize oneself with the materials of investigation means to make copies of them. For this purpose it is necessary to indicate the use of technical means in the application for familiarization.

In this capacity, you can use portable copiers, scanners, cameras with a picture quality, sufficient for reading the text. They should be taken along, since copying machine can suddenly "break down" or there can be no the paper in the Department of internal affairs or the prosecutor's office.

Step four. Drawing up a complaint about the decision to refuse to institute criminal proceedings

It is better to charge the lawyer with drafting the text of complaint, and the lawyer should be the one, who is well versed in criminal law.

The complaint against the decision to refuse to open criminal case must contain the following:

- name and address of the authority to which the complaint is filed;
- full name and address of the complainant;
- indication of the procedural capacity of the complainant;
- indication of the decision to refuse to initiate criminal case under appeal;
- the complainant's arguments, supported by references to the investigation materials and the Code of Criminal Procedure of the Russian Federation;
- indication of which rights of the complainant were violated by issuing the decision to refuse to open criminal case (one usually refers to article 45 (state protection of rights and freedoms) and article 46 (judicial protection of rights and legitimate interests) of the RF Constitution);
- the complainant's claim or requirement.

In the complaint, it is necessary to attempt to show that the decision of the investigator (interrogating officer) was:

- unreasonable or unjustified - that is, it is issued prematurely, without sufficient verification of the facts stated in the criminal complaint or Crime Incident Report, and/or not conforming to the investigation materials;
- unmotivated - that is, without a clear statement of the reasons why the investigator (interrogating officer) decided to refuse to open criminal case;
- inconsistent with criminal procedural legislation.
In the complaint, it is necessary, firstly, to refute the arguments and conclusions of the investigator (interrogating officer), and secondly, to give your own reasons, which are not reflected in the decision on the refusal.

Step five. Filing the complaint

In accordance with Articles 123, 124, 125 of the Code of Criminal Procedure of the Russian Federation, a complaint about the decision to refuse to initiate criminal proceedings can be filed to the head of the investigative body whose investigator (interrogating officer) made the decision, to the prosecutor's office or to the court.

Administrative appeal against refusal to institute criminal proceedings

The head of the investigative body or the prosecutor has three days for consideration of the complaint, in exceptional cases the term can be extended to ten days (Article 124 of the Code of Criminal Procedure of the Russian Federation).

However, the prosecutor is entitled to cancel only the decision in the institution of criminal proceedings, issued by the interrogating officer. With regard to the decision made by the investigator, the prosecutor can only submit application or recommendation to the head of the investigative body, and the latter may not agree with the foregoing.

Thus, it is most reasonable to lodge the complaint against the decision to refuse to initiate criminal case, made by the investigator, with the head of the investigative body.

Judicial Appeal of Refusal to Initiate Criminal Case

The complaint against the decision to refuse to initiate criminal case is filed in the district court at the place where the investigation was conducted - either directly or through the investigator (interrogating officer). The court is obliged to consider the complaint within five days from the date of its receipt.

If the complaint is satisfied, the criminal case will not be initiated automatically. After the cancellation of the decision to refuse to initiate criminal case, the investigation regarding the Crime Incident Report will be carried out again, and according to the results of the investigation, a decision will be issued to initiate a criminal case or a final refusal.

In case of any questions regarding assistance in initiating criminal proceedings in any country in the world - please contact our specialists.