Before the exploring the issue of a separate charge of changing the accusation during preliminary investigation, primarily, some points related to the initial stage of the investigation should be noted. Because it is necessary that the charges will be put forward during the changing of the accusation set forth in the initial charge on the basis of requirements and procedural rules similar and sometimes identical. So, in effect, according to Article 225 of the CPC AR, when it is necessary to add or amend the charges which have been served during the preliminary investigation, the investigator should bring a charge all over again in accordance with the requirements of Articles 223 and 224 of the CPC.
The requirements of the relevant articles of the Criminal Procedure Code, rule bases and also provides for the rules to charge. According to Article 223.1 of the CPC, indictment as a defendant, that is key to making the charge, shall be based on "a collection of initial evidence that he has committed the crime." Obviously, changing the charge, both before and during the investigation charges will be preliminary in relation to the charge alleged in court.Therefore, when the prosecution amended the charge to the new decision, "initial evidence" will act as the factual basis of decision.
Therefore, we would like to touch on "initial evidence"as mentioned in Article 223.1 well-rounded. This concept of criminal procedural law was studied by many Azerbaijani researchers.
- Jajarov raises a thesis about this issue for the first time and sets the question of how to understand "preliminary evidence". The author tries to explain this consept with the help of theory of evidence but does not disclose its essence. Later attempts to explain the same question were made by prof. C. Suleymanov. The author is based in essence of primary and subsidiary evidence in theory and criticizes the legislation, and in this position author says, if the primary evidence is the basis of the decision to charge, how subsidiary: the expert opinion, evidence material, evidence and statements of suspects or accused persons can act as a basis for the decision. On the issue, prof. M. S.Qafarov attracts attention. In fact, the author reviews the theoretical foundations of coercive measures in terms of the approach to the issue, touches on the basics of arrest. But it is clear that the fundamentals of the material means of arrest are the basis for its criminal law and evidence confirming. The author writes: "In AR CPM, unlike the previous Code (CPC than talking about here is ASSR 1960. - Asst.) the use of the concept of the evidence is not clear. Legal theory for obtaining evidence in criminal proceedings related to the source of the classification divides the original and derivative evidence. In Article 145.2 of the CPC, investigator, prosecutor, judge and jury, guided by the law of being the conscience of its content, doing comprehensive, complete and objective examination of the evidence on the basis of estimates, according to his own conscience. As you can see, the law requires an assessment of evidence in cumulative form. Law is only preliminary evidence that the choice of restrictive measures designed to keep the evidence is contrary to the requirements of the evaluation.
In this sense, the choice of restrictive measures in the law is necessary for an understanding of the initial evidence is contrary to the provisions of the theory of evidence in criminal proceedings and can not be taken as evidence from primary sources. In our opinion, the definition of initial evidence in Article 223.1 and 156.1 of the CPC must be replaced with a more appropriate term - "sufficient evidence". The volume of any of the evidence must be sufficient for the decision, otherwise the decision is unjustified and will be canceled subsequently or it may result in the issuance of a complaint.
Based on the results summarized and learned from the cases, we claim that the decisions of the accused made on the basis of preliminary evidence, in most cases were made as unfounded and not canceled. But such a point of view used in the legislation about the definition of initial evidence does not mean that all of the relevant decisions are invalid. In our opinion, the legislature can't achieve the traditional explanation of the evidence in theory about using the category of "preliminary evidence".
For information, in accordance with Article 150 of the ASSR CPC (1960), if there is sufficient evidence to provide a basis for prosecution according to commit a crime, the investigator shall decide the arguments about the person for involving him/her as a defendant. In other words, the factual basis of decision to bring charges was sufficient evidence to provide a basis for prosecution.
- M. Karneyeva explains that sufficient evidence for the decision to charge is to prove the case in a certain extent. However, the author accepts normally the supposition of not fully proving of charge while person being accused.
- S. Stroykova claims that in criminal law sense, when the charge consists of sufficient evidence, it is understood that is the final phase of certain understanding of every moment of the case. In other words, the totality of evidence, time, location and other circumstances indicating the specific definition of the crime and the determination of his guilt of the offense charged was measured.
In our opinion, one of the special issues in here is linked with the availability of sufficient of totality of the evidence in the aspect of person accused of the crime committed by him.
The meaning of the concrete description of accusation in Article 223.3 of the CPC is the initial evidence must confirm exactly the accusation.
In other words, while the accused is charging, assumptions, initially obtained evidence is not enough to validate and the charges must be based on the totality of the evidence.
Note that, according to Article 223.3 of the CPC AR, in the description of the decision about involvement of accused: a) the accused's family name, father's name and other information about his identity, the legal significance; b) the crime was committed, the time, the method, the result of guilt, the motive for the crime and the nature of the charge tovsifedici signs; c) if there is a crime committed or attempted to, understand the reasons why the crime; d) the offense was committed by a group of persons, the type of participation and e) any aggravating circumstances, and therefore must be identified and confirmed with the evidence in cases.
For comparison show that the indictment, which it put forward in the investigation of the charges can be considered, it is much broader range of cases.
According to Article 289.3 of the CPC these must be indicated in the descriptional part of the accusation: a) the location of the offense, time, methods, motives, results and other important occasions; b) evidence proving the guilt of the accused; c) the accused in his defense arguments and evidence collected during the verification of those arguments; d) the circumstances of the accused; e) the circumstances of the victim, and f) the aggravating and mitigating circumstances.
Initial analysis makes us to come to the conclusion that the accused involved in the decision on the evidence proving the guilt of the accused, as opposed to the bill of indictment.
This can be explained by the fact that the decision to charge is made during the initial investigation, the full and thorough study of the issue of fault in this matter is determined in detailed later indictment.
In our opinion, it is issued in accordance with applicable law, not fully explain the essence of the matter is clear. The totality of the evidence evaluation criterion is whether they are sufficient for the person to be found guilty.
In our opinion, evidence proving the guilt of the accused is accused of involvement in the decision should be interpreted thorough.
Because of an accused person can be considered on the basis of the same evidence. Without commenting on the evidence, and if they not confirm guilt of the person, in this case, made the decision to bring charges, it will be illegal and arbitrary.
The request of sufficient evidence in the decision on the guilt of involvement of an accused person in the legislation is not fully and thorough realizing in practice and the institution of changing the accusation in preliminary investigation becomes an usual and unsuccessful circumstance in practice.
The changing of the accusation - except in relation to the realization of the objective conditions - is the main fact for assess of quality of the work of the investigator.
One of the authors V. S. Kharchikov explains the meaning of the need to change the accusation in preliminary investigation: investigating organs may come such a conclusion while investigating the circumstances of the case: though the initial accusation has been proved, the evidence proving the accusation may be not collected fully and thorough while a person finding guilty.Then, with specific examples, the author shows that, though a person is found guilty and it is proved on the basis of preliminary evidence of a crime, it has been achieved by sufficient evidence confirming the charges and substantially strengthens.
In our opinion, this approach to the issue is nothing more than interpretation of the law. Remember, though the announcement of the charges is initial, it should not be unreasonable and it must be the totality of the sufficient evidence which is the basis of the accusation.
However, the investigation is a dynamic process and evidence related with charges can be collected in the course of investigation. But none of them can substitute or exclude the demand of being sufficient for finding a person guilty of available evidence while the determination of charge.
The research about the sufficiency of evidence for charge by Prof. M. S. Qafarov is indispensable for its theoretical and practical context.While examining the issue of ensuring the rights of the accused during the announcement of the charge the author argues that discretionby analyzing the views and opinions of authors: the sufficiency of evidence for announcing the charge is the system of evidence that confirming - corpus delicti and the lack of grounds for exemption from criminal responsibility.
We fully accept the author's idea about the sufficiency of evidence (it is the system of evidence that confirming - "corpus delicti") and we think it is the kind of validity and legitimacy of the decision. But it is difficult to agree exactly with the part of "the lack of grounds for exemption from criminal responsibility".
It is known that in the Criminal Code Articles 72-75 were found the reasons to be exempt from criminal liability. Three of those reasons in Article 202 of the CPC AR, the person evinces sincere remorse (72m), is reconciled with the victim (73m), and changed conditions (74m) , they can terminate starting criminal prosecution or criminal proceedings.
In this case, the prosecutor's consent is necessary for the adoption of the relevant decision. Therefore, this issue is within the competence of the prosecutor's discretion and in this case, the prosecutor actually solves the issue of the commencement of proceedings. Exemption from liability in connection with the passage of time, the accused must have known. Also, even if there is the grounds for exemption from criminal responsibility, it is necessary to charge the involvement of accused. Remember, termination of proceedings with mentioned grounds is the termination of prosecution with non-exculpatory grounds and in this case the consent of the accused is necessary.
We can come to such a conclusion based on the above-mentioned, the precence of the system of evidence that confirming corpus delicti in the actions of accused is enough for involvement of a person as accused and there is a need to define that there is no grounds for exemption from criminal responsibility.
In our opinion, the author's conclusion and proposals about the circumstances of being charged at the right moment impede reviewing the bases of being involved as accused as the criminal evidence system that confirming corpus delicti. Thus, the author notifies that the investigation of each case is individual; therefore, the law cannot determine in advance the time of collection of sufficient evidence in any case. In 38 per cent of researched criminal cases the accusation has been announced 3—7 days prior to the expiration of investigation. Although,the subjects of investigation explain that as a desire to collect more convincing evidence, but the author accepts that as a rough violation of law, because it is resulted in violations of the all rights including the right to defend of accused.The author offers for removing such a violation that to avoid obvious delays in the announcement of the charge should be added to legislation of criminal procedure as the circumstances of violation of the rights and interests of the person and deprivation of the right of defense.
Indeed, although there are sufficient grounds to declare charges, the authorized subject to preliminary investigation doesn't formalize procedural status of the corresponding person. So, a person can not use any of the procedural rights, because person has no procedural status. In the case, the investigator has been temporarily relieved of duty of to ensure a large number of rights of person stipulated by the Criminal Procedure Code and after all make a decision to charge as not violating any right of person.
We definitely agree with the arguments of the author and should be taken appropriate action to remedy the problem. The solution is not possible to amend the legislation. As it is known from the common law theory, if there are relevant conditions, the powers of state officials transform to their duties.For this reason, if there is sufficient evidence for the decision of the accused and the case, the power to make the decision of investigator becomes his duty. The most effective way to eliminate violations of the law by empowered subject is the institute of internal procedural controls. Therefore, such illegality should be eliminated through the control of prosecutor. Eliminate this problem by making changes to the legislation can lead to early adoption of the relevant decision, involvement of accused on the basis of preliminary evidence. From the above-mentioned can come to such a conclusion, One of the most important issues for changing the accusation in preliminary investigation is to be basedon the totality of the evidence proving the guilt of the person committing the crime and sufficiency of these evidence.
This rule will prevent the announcement of accusation both late and early, so, it will prevent unsuccessful often and common practice (implementation) of the institute of changing the accusation. At the same time, this rule must be reflected in the structure of decision to charge.
According to the content of Article 225 of the CPC of AR, changing the accusation and amendments to accusation are different terms. In fact, although the partial termination of accusation is relieving change of accusation, uprightly, it is not a changing of accusation, it is mentioned as determination of it. Although changing the accusation and amendments to it are close terms, but concepts are essentially different.In preliminary investigation, the articles in which other crimes are mentioned may be added to primary accusation, also some of articles alleged before may be removed or with changing the nature of the charge, the article may be replaced with another which mentions lighter or heavier responsibility.
If we intended in the latter case when we analyze thechanging of accusation, also two other cases, is very close to institute of changing accusation and implementedin a similar way in terms of legal regulation.
There are also ideas that all three cases are the changing to accusation according to similar signs.
One of the points of interest is the legal regulation of the one of changing the type of accusation - partial termination of criminal case.
In the past, F. N. Fatkullin criticized that is not correct regulation in the context of that if the part of the accusation is not confirmed during the investigation, the investigator discontinues the criminal proceedings in that part of the charges.
The full or partial termination of the criminal accusation may terminate prosecution with exculpatory and non-exculpatory grounds. While termination of prosecution with exculpatory and non-exculpatory grounds, at first, the primary accusation may be approved; but it will be terminated, because there is no necessity for continue it. In this case, the proposition is not the disapproval of accusation, it is rejection of implementation of it. Also F. N. Fatkullin offers amendments to law for removing this case.
The author thinks this is the correct content for this article: "If several accused involved or one accused has been charged ofseveral independent charges and the basis of the termination of the proceeding is not related to the all accused or the charge relates to an announcement about accusation, investigator makes a reasoned decision on the partially termination issue and give out a copy of the decision to the appropriate person within three days".10 We need to agree with the author's conclusion. But content of the article offered by him is not successful.Because, the author offers his draft article with taking into consideration the crimes committed with participation, and that makes its content to get confused.In our opinion, the content of author's draft article is more accurate in this simplified way: "225.2. When there is a necessity to terminate partially the criminal proceedings during the preliminary investigation of the alleged case, the investigator makes a decision based on the termination of the unit and provides a copy of the decision to the accused."
Статья опубликована в Евразийском юридическом журнале № 11 (90) 2015