Khokhryakov, M.A. Limits to the judicial examination in the criminal cases based on private charges

Abstract: The specific features of limits to the judicial examination in the criminal cases based on private charges are due to the specific type of starting such a criminal case. The criminal charges are filed against persons by the written claim (complaint) of victim, or his (her) lawful representative. At the same time, the Criminal Procedural Code of the Russian Federation lacks the normative definition of the requirements for the legal qualification of charges, including the requirement of due qualification of crime. Lack of the reference to a specific norm of criminal law being breached abridges the right of the accused for the efficient defense. It may be regarded as a considerable gap in legislation, since the accused in the criminal cases based on private charges have the same status with the accused on public and private-public charges, and, therefore, they are also entitled to a right to know what charges under which norms of criminal law are brought against them. As a result, the due qualification of crimes in criminal cases based upon private charges is done by the justices of peace, since when the court starts a case based on private charges, it should define whether the elements of particular crime are present in the complaint, and then decide whether this case may be dealt with within the procedure based on private charges, or it should be started as a public case. Therefore, the judge has to perform part of the function of an accusing party. One should also note that within this category it is possible to bring a counterclaim, therefore the number of accused persons within a case may grow. At the same time, the current legislation has no provisions for the form of counterclaim in such cases, and no requirements to its contents. In order to deal with these shortcomings, the possibility for counterclaim in such cases should be limited to the claims based on private charges, which are related to the primary claim.

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