- What are the Bases for Initiation of Criminal Case?
- Who has an Authority to Initiate a Criminal Case?
- Am I Obliged to Give a Testimony against my Relative?
- In Which Cases the Person can be Released from Criminal Proceedings?
- Who is Recognized as an Injured?
- When it is Allowed to Challenge a Prosecutor?
- What are Considered as Evidences?
- Which are the Types of Preventive Measures?
- What are the Bases for Preventive Measures Implementation?
- How Many Days it is Allowed to Keep a Person Under Detention?
- Could the Decision on Preventive Measure Implementation be Appealed?
- What are the Rights of an Accused?
- Whether or not a witness has a right to refuse to give a testimony?
The reasons for initiation of criminal prosecution are statements about crimes, addressed to the Body of Inquiry, Investigator and Prosecutor by physical persons and legal entities; mass media reports about crimes; information about a crime, material traces of a crime and consequences of a crime, discovered by a Body of Inquiry, an Investigator, a Prosecutor, a Court and a Judge, in the course of their duty fulfillment.
Reports about crimes must be discussed and resolved without delay. Should there be a necessity to check the legitimacy of the reason for the initiation of criminal case and the sufficiency of the grounds, this process must take 10 days upon receive of the report. Within that period additional documents and explanations can be requested, as well as some investigative actions can be implemented.
According to the article 27 of the RA Criminal Procedural Code (CPC), the Body of Inquiry, the Investigator and the Prosecutor, within their jurisdiction, in any case of discovering the elements of crime, are obligated to initiate a criminal case.
No, you are not. According to the article 42 of the RA Constitution, you are not obliged to give a testimony against yourself, your spouse and close relatives. Article 20 of RA Criminal Code, as an addition to the Constitution, states “A person that is offered, by the criminal process implementing Body, to give information or any materials concerning him, his spouse or relatives, which will prove their guilt, has a right to refuse to give this kind of materials.
Upon the Prosecutor's decision, the initiation of the criminal case and the criminal prosecution can be not implemented, should the sincere repentance by the person apply or should the changes of the situation occur.
Also the initiation of above-mentioned can not be implemented should, based on the consent of a person who suffered from a minor crime, a Prosecutor’s decision is made that the suspected or the accused, who has already compensated the damage, is capable of correction without imposing a punishment.
In addition, as stated by the article 37 of the RA CPC, upon the Prosecutor's decision, criminal prosecution may be not implemented should:
- The damages caused as a result of the offense are not substantial,
- The offender has already redeemed his guilt by means of punitive measures, limitations of rights or other limitation, which an offender has got for the committed offence,
- The person involved as an accused, suffers by an incurable severe disease.
The person who has directly suffered moral, physical or proprietary damage, caused by an act forbidden by the RA Criminal Code, is recognized as the injured. According to the article 58 of the RA CPC, as an injured could be recognized the person, towards whom moral, physical or proprietary damage might be directly caused, if an act, forbidden by the Criminal Code, would have been finished.
The Body of Inquiry, the Investigator, the Prosecutor or the Court is to make a Decision on recognition as an injured.
The article 91 of the RA CPC prescribes the bases for Prosecutor’s challenge. The Prosecutor is challenged (which means that he/she cannot participate in the proceedings of the criminal case) if:
- The Prosecutor, in the past, had been presented as one of the sides of the given case,
- The Prosecutor is a relative to one of the sides of the case, or they are in other relations of private dependence,
- There are circumstances, which allow considering that the Prosecutor directly or indirectly is interested in the outcome of the case,
- There are circumstances, which allow considering that the Prosecutor is a relative to the Judge in case, or they are in other relations of private dependence.
The participation of the Prosecutor in the investigation of the criminal case, as well as his/her support of the prosecution in the court-trial are not considered as circumstances, excluding Prosecutor’s further participation in the proceedings of the respective criminal case in the capacity of the Prosecutor.
The superior Prosecutor is to resolve the challenge of a Prosecutor. In the court-trial stage it is to resolve by the respective Court.
The following can be considered as evidence in criminal proceedings: statements of the suspected, accused, injured, witness, convicted; the report of the expert; material/demonstrative evidence; statements of Court and investigative proceedings; other documents.
According to the article 105 of the RA CPC the materials cannot be applied as evidences should they be obtained through force, threat, fraud, violation of dignity; through violation of the rights to defense, which have a suspected and an accused; through violation of the rights prescribed by the Criminal Code to persons unable to use the language of the court proceeding; as well as through essential violation of the investigative or other procedural processes.
Any violation of the constitutional rights, freedom of a person and citizen, or of any requirements of this Code, in the form of a restriction or elimination of the rights guaranteed by the Law to the persons involved in the case, that influenced or could have influenced the reliability of the facts, shall be considered an essential violation in the process of obtaining evidence.
Preventive measures are measures of coercion taken towards the suspected or the accused to prevent their inappropriate behavior during the criminal proceeding and to ensure the execution of the sentence.
The preventive measures prescribed by the RA CPC (article 134) are the following: an arrest; a bail; a written obligation not to leave a place; personal guarantee; guarantee of an organization; passing to some one's supervision; passing to supervision of commander.
It is essential to note that such preventive measures like arrest or bail can only be implemented towards an accused; passing to some one's supervision – towards minors; passing to supervision of a commander - towards military servants or those who are obliged to serve (during military call-up).
It has to be mentioned that the arrest and bail cannot be implemented simultaneously. A bail is considered as an alternative preventive measure to an arrest, and is implemented only in that cases when the Court satisfies the mediation brought by the investigative Body concerning arrest of the accused.
The Court, Prosecutor, Investigator and the Body of Inquiry shall implement preventive measure only when the materials obtained for the criminal case provides sufficient bases to assume that the suspect or the accused may hide from the Body, which carries out the criminal proceeding; avoid the criminal responsibility and the imposed punishment; inhibit the pre-trial process of investigation or court proceeding in any way, particularly by means of illegal influence of the persons involved in the proceeding, concealment and falsification of the materials relevant to the case, negligence of the subpoena without any reasonable explanation; impede the execution of the verdict; commit an action forbidden by the Criminal Law.
The Body of the criminal persecution is to issue an order to detain a person. According to the article 130 of the RA CPC, detention shall last no longer than 72 hours after the detention of a person. From the very moment of the detention, during 72 hours, the charges must be presented towards a detainee and the type of a preventive measure must be selected. Otherwise the person shall be released.
Yes, it could. Criminal persecution Body’s Decision on implementation or change of a preventive measure may be appealed to the Prosecutor by the suspect, accused, his/her defense counselor, his /her legal representative or by other interested persons involved in the case.
The Decision on implementation of a preventive measure held by the Court may be appealed to the Court of Appeals.
The accused has the right to defense. According to the article 65 of the RA CPC the rights of the accused are the following: to know, what is he/she accused for, and for this reason, after the declaration of the Decision on putting forward charges against him/her, or on detention, or on selection of preventive measure, he/she can receive, from the Body of criminal prosecution, a free copy of the resolution on impleading as an accused; to be informed on his/her rights (article 65 part 2), to have a defense attorney from the moment of indictment, to refuse from the defense attorney and to defend himself/herself; do not testify in the absence of a defense attorney; to communicate freely with the defense attorney tete-a-tete and confidentially, without any limitations of the number and the length of the conversations; to give testimonies and/or explanations, and to refuse from doing so; to take part in investigative and procedural actions; from the very moment of the detention, but not late than 12 hours, to inform his/her relatives (Embassies, Consular departments – in case of foreigners) concerning the place he/she is kept under the detention.
The accused also has rights to express the challenge, to declare motions, object actions of criminal prosecution bodies, to be acquainted with the protocols of investigative or other procedural actions in which he/she participated or was present. Moreover, the accused has a right to participate in the court session of the Court of First Instance and the Appellate Court, address the Court with his/her speeches, replicas and to come with the last speech.
The article 65 of the RA CPC prescribes other rights and also obligations of the accused more detailed.
No, he/she has not. While an accused really can give false testimony or refrain from giving testimonies, which are in his/her interests, and it cannot be considered against him, the witness cannot. Witness cannot refuse to give testimonies (except in cases prescribed by the article 42 of the RA Constitution) or give false testimony.
According to the article 86 of the RA CPC, a witness is obliged to give true testimonies, to inform everything he/she has learnt concerning the case and to answer the asked questions, to obey the orders of the Prosecutor, Investigator, Body of Inquiry, the Chairman of the court-trial.
Giving false testimonies by a witness is an action prohibited by the Criminal Law, and the witness in this case would be subjected to the criminal liability, according to the RA Criminal Code.