Отсутствие возражений как условие отказа в возбуждении уголовного дела в связи с истечением сроков давности

Abstract

The study poses two questions: (1) whether it is possible to refuse to initiate a criminal case due to the expiration of the statute of limitations if the person who committed the crime has not been identified; (2) whether it is necessary to obtain the consent of the person to refuse to initiate a criminal case on this basis, if it is established. The authors gave a negative answer to the first question, referring to Paragraph 3 of Part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation, which declares the ineffectiveness of initiating a criminal case from the point of view of the appointment of a criminal process, and supporting it by the fact that the presumption of innocence does not apply to unidentified persons. When answering the second question, the authors indicated that the problem of classifying the statute of limitations as rehabilitating or non-rehabilitating grounds would not have arisen if this released person were not reflected in the pre-investigation statistics as a person who committed a crime. Therefore, by changing the statistical indicators, it would be possible to solve this problem. First, the Plenum of the Supreme Court of the Russian Federation considers such a person to have committed a crime for the first time. Second, Art. 78 of the Criminal Code of the Russian Federation does not provide for such a condition for exemption from criminal liability as obtaining the consent of a person. Third, the meaning of the statute of limitations is that beyond their limits the state loses the right to prosecute, since the person ceases to be socially dangerous. Fourth, since guilt is not established at the stage of initiating a criminal case, it is impossible to say that the basis for refusing to initiate a criminal case is non-rehabilitating. Fifth, extending the rule established by Part 2 of Art. 27 of the Code of Criminal Procedure of the Russian Federation to the stage of initiating a criminal case would mean the use of a procedural analogy, which is not provided for by the Code of Criminal Procedure of the Russian Federation. Sixth, the position set forth by the Constitutional Court of the Russian Federation in Resolution No. 20-P dated May 19, 2022, allows equating consent with the absence of objections of a person against a refusal to initiate a criminal case; therefore, if such objections are not received from a person, it is presumed that the person agrees and the statute of limitations can apply. Thus, if the statute of limitations for criminal prosecution has expired, a criminal case should not be initiated, both in the case when the person has not been identified (the absence of this person is regarded as the absence of his/her objections to the refusal to initiate a criminal case), and if the person who committed the crime is established without clarifying his/her opinion on this issue.