Memo on appeal against a court verdict. Reconsideration of sentences that have entered into legal force due to new or newly discovered circumstances Reconsideration of a sentence that has not entered into legal force

Keywords

JURY / APPEAL / CASSATION / REVISION OF SENTENCES / LEGAL TRADITIONS / INTERNATIONAL CRIMINAL JUSTICE STANDARDS/ JURY TRIAL / APPEAL / CASSATION / LEGAL TRADITION / INTERNATIONAL LAW STANDARDS OF CRIMINAL JUSTICE/ REVIEW OF DECISION

annotation scientific article on law, the author of the scientific work - Alexander Sergeevich Kamnev

The meaning and forms are considered review of sentences, ruled by a jury in Russia, England and France. The positions of Russian pre-revolutionary proceduralists on the impossibility of extending an appeal against sentences passed by a court with the participation of a jury are given. As a result of the analysis of the appeal grounds for the cancellation of jury sentences under the current Code of Criminal Procedure of the Russian Federation, it was concluded that they are identical to the earlier cassation grounds. It was also concluded that the extension of the appeal against jury sentences was inconsistent with the Russian legal traditions.

Review of an otherwise final jury trial decision: legal tradition and international law standards of criminal justice

This article examines forms of appeal of the jury trial decision in Russia, England and France. The present problem is becoming a critical issue today because of the significance of jury trial itself and the implementation of the international law standards of criminal justice into the Russian criminal procedure system. Current practice shows that harmonization of Russian and foreign legislation does not always correspond to Russian legal tradition and the reforming of legal procedure sometimes lacks theoretical grounds. The amending of the Criminal Procedure Code of the Russian Federation and entitling a person to appeal all types of cases was aimed at guaranteeing that everyone shall have the right to have their case revised by a more experienced and competent court. However, the possibility to file appeals against the decision rendered by jury trial has failed to produce the expected result, since comparing jury trial and professional judges and calling the latter "more experienced and competent" cannot be considered to be correct. Moreover, appealing the decisions rendered by jury trial does not comply with legal tradition and theory of criminal procedure. In fact, according to the Criminal Procedure Code of the Russian Federation it is a formal act of a routine nature so long as the grounds for appealing the jury trial decision are as follows: a violation of criminal procedure law, a wrong application of the criminal law, and the injustice of the verdict, ie the same grounds that used to be the ones for cassational appeal as stipulated in Sections 2-4, Article 379 of the RF Criminal Procedure Code. "A discrepancy between the court" "s conclusions set out in the verdict and the actual circumstances of the criminal case established by the court of the first instance" still fails to be the ground for revoking the jury trial decision. This enables us to make a conclusion that cassation procedure is one of the possible ways to review the decision rendered by jury trial, since this is the only procedure that coincides with the function of jury trial, theory of criminal procedure and Russian legal tradition. International law standards with regard to entitling a person to appeal all types of cases cannot be projected onto jury trial issues. Besides, it is the French tradition in filing an appeal (in its strictest sense) against the decision rendered by jury trial that can be implemented without affecting the latter; here the criminal case is revised by jurors and a professional judge.

The text of the scientific work on the topic "Reconsideration of not entered into legal force sentences passed by a court with the participation of a jury in Russia: tradition and international standards of criminal justice"

Tomskiy Bulletin state university... 2015. No. 391. S. 160-166. DOI 10.17223 / 15617793/391/26

A. S. Kamnev

REVISION OF NON-ENFORCED JUDGMENTS BASED BY A JURIED COURT IN RUSSIA: TRADITION AND INTERNATIONAL STANDARDS OF CRIMINAL JUSTICE

The article considers the meaning and forms of revision of sentences passed by a jury in Russia, England and France. The positions of Russian pre-revolutionary proceduralists on the impossibility of extending an appeal against sentences passed by a court with the participation of a jury are given. As a result of the analysis of the appeal grounds for the cancellation of jury sentences under the current Code of Criminal Procedure of the Russian Federation, it was concluded that they are identical to the earlier cassation grounds. It was also concluded that the extension of the appeal against jury sentences is inconsistent with Russian legal traditions.

Key words: jury trial; appeal; cassation; revision of sentences; legal traditions; international criminal justice standards.

History Russian legal proceedings and judicial law enforcement practice foreign countries testify to the fact that, despite all the striving and efforts made to deliver a court judgment in the first instance, there is still the possibility of making mistakes that prevent the delivery of a lawful, reasonable and fair decision on the relevant dispute. Judicial errors in criminal cases can cause serious consequences for the participants judicial trial, since it is through criminal proceedings that the issues of limitation (deprivation) of fundamental human and civil rights and freedoms are resolved, as well as issues related to retribution for committing the most dangerous type of offense - a crime. There is no doubt that only a sentence passed on the basis of the law and meeting the requirements of justice prevailing in society is capable of performing a stabilizing function and smoothing out social tension in the conflict, the victim is a criminal.

The famous Russian jurist, Senator P.I. Lyublinsky believed that the appointment of justice is not a solution to a legal dispute and not an exercise of the punitive right of the state, but the ruling of a judicial verdict, in which not only the participants in a particular proceeding are interested, but also the state itself, represented by the judicial authorities, endowed with the right to resolve one of the most ancient and vital necessary forms exercise of power - permission litigation.

Jury proceedings differ from justice without the participation of the popular element in a number of features that have repeatedly been the subject of scientific articles, dissertations and monographs. The main feature is, of course, the division of the court into “judges of law” and “judges of fact”. In our opinion, such a division is not only systemic for a jury trial, but also contributes, if not the complete exclusion of errors in the proceedings on a particular case, then at least their reduction. At the same time, the practice of considering court cases by a jury as in pre-revolutionary

and in modern Russia it shows that such guarantees cannot exhaustively ensure the ruling of a judicial verdict in the first instance. In this regard, it is obvious that there is a need for the possibility of reviewing jury sentences in higher courts. The question arises as to the exact forms in which the higher court should review the sentences passed by the jury. An incorrectly chosen form of reviewing jury sentences, in which the higher court will have full authority to review not only legal issues, but also the factual circumstances of the case and, accordingly, the right to revoke the jury's verdict, will negate the importance of the jury. In such a situation, the jury will actually turn from a functioning mechanism for considering criminal cases with the participation of representatives of the people into its caricature, its meaning will be purely declarative.

The relevance of the issue of possible forms of revision of sentences passed by a court with the participation of a jury is explained, firstly, by the importance of a jury trial, and secondly, by the implementation of international criminal justice standards in the domestic criminal process.

So, for centuries, the jury was characterized as "the best means of administering justice", "court of public conscience", "palladium of personal freedom and political independence of the people, zealous guardian of public safety, strict judge of atrocities", "a means of resolving non-standard situations where for the gravity of the possible consequences, it is more dangerous to sin against justice than against the dictates of an abstract legal norm". When developing the new Criminal Procedure Code of the Russian Federation, the legislator was guided by the main task of bringing the criminal procedural rules governing the procedure for resolving the most acute conflicts arising between the state and the individual, in accordance with the Constitution of the Russian Federation and international legal norms in the field of human rights and freedoms. Practice witness

It is believed that such a "harmonization" of domestic and foreign legislation does not always correspond to the traditions of the domestic criminal process, and the "reform" of legal proceedings is sometimes distinguished by little scientific and theoretical elaboration. An example of the latter was the Federal Law of December 29, 2010 No. 433-FZ "On Amending the Criminal Procedure Code of the Russian Federation and invalidating certain legislative acts (provisions of legislative acts) of the Russian Federation", which extended the appeal procedure for revising judicial acts to sentences, ruling by a jury. The aforementioned amendments to the Code of Criminal Procedure of the Russian Federation do not correspond to the traditions of revising sentences passed by a court with the participation of jurors, which originate from the moment the jury was established in pre-revolutionary Russia.

Before the judicial reform of 1864, criminal proceedings were distinguished by a large number of courts, which contemporaries called "eleven ordeals", their overlapping competence led to unthinkable red tape in the consideration of criminal cases. The authors give examples in which cases in one first instance were "stalled" for 10-15 years, proceedings in others lasted more than 20 years, in third cases up to 12 conflicting cases were published. court orders on the procedure for referring cases to a higher authority.

This state of legal proceedings was the reason for radical reforms, upon the completion of which the Charter of Criminal Procedure of 1864 was adopted.It was during the era of the judicial reform of 1864 that the institution of the jury was first introduced in the domestic criminal process and a clear and structured procedure for reviewing its sentences was formed.

The Criminal Procedure Charter of 1864 was the result of the painstaking work of members of the State Council, ministers, senators and professors, representatives of the entire legal community of Russia, up to the secretaries of county courts.

The result of this work was the adoption of the Charter of Criminal Procedure of 1864, which, according to the remarks of the German jurist K. Mittermeier, is “higher than even many of the newest legislative work" 1.

The structure and activity of the jury was regulated by 2 of the 4 legislative acts that made up the Judicial Charters of 1864: the establishment of judicial rulings (requirements for jurors, the procedure for compiling their general and regular lists) and the Charter of criminal proceedings (the procedure for the participation of jurors in trial, their rights and obligations, their verdict, etc.).

It should be noted, however, that the pre-revolutionary jury was not an alternative form

legal proceedings and did not depend on the will of the defendant, in contrast to the current Criminal Procedure Code of the Russian Federation. So, the jury considered all criminal cases in which the defendant could be sentenced to imprisonment or restriction (deprivation) of class rights, which meant: loss of nobility, deprivation of honorary titles, ranks, insignia, clergy, prohibition to stay on public service, to participate in elections (Art. 201 UUS, Art. 43, 50 of the Code on penal and correctional punishments).

The introduction of a jury trial also raised the question of possible forms of reviewing his sentences. The Criminal Procedure Charter of 1864 provided for the appeal and cassation procedures for reviewing sentences that had not entered into legal force. At the same time, the legislator unambiguously established the possibility of appealing against sentences passed by a court with the participation of a jury only in cassation procedure The jury appeal was ruled out. In the legal literature of the pre-revolutionary era, there are practically no proposals for the extension of an appeal against sentences passed by a court with the participation of a jury. On the contrary, the majority of the proceduralists came to the conclusion that the cassation procedure for the revision of sentences is the only possible one for a jury trial. The authors' conclusions are based on the relationship between the essential qualities of the appeal and the jury.

According to Professor V. K. Sluchevsky, “the appeal can only be applied to those court sentences, which are motivated, since only the grounds of these sentences can be verified on the merits. Meanwhile, the jury's verdicts are not motivated, and therefore their verdicts can hardly be brought under the appeal procedure. " Indeed, on appeal, the higher court reviews the case on the merits according to the rules of the first instance court, both in relation to the legal and factual circumstances of the case. Questions of fact when considering a case by a jury are within the exclusive competence of the jury; the resolution of such issues is fixed in the jury's verdict (Article 7 of the USU, Article 754 of the USC). Thus, an appeal when revising a judgment would have to check the jury's verdict for compliance with the factual circumstances of the case, which is impossible, since it does not contain the arguments that guided the jury in answering the questions posed.

A. F. Koni points out that during the development of the Charter of criminal proceedings, there were proposals to oblige the jury to “draw up a written motivated decision, so that you can be sure that they decided it thoroughly ", however, such a proposal was regarded as a" curiosity ", since, as the author writes," the jury adjudicates cases on internal

to him a conviction that develops freely and independently, according to what they see and hear at the trial. This is a fundamental property of the jury. They are not expected and cannot be required to motivate their decisions. It develops under the influence of the internal processing of the mass of heterogeneous impressions that the trial of the case produces on them. " He is echoed by the words of N.N. Polyansky: “The jury does not motivate its verdicts. The jurors say: "yes, I am guilty" or: "no, I am not guilty" for reasons that remain hidden for the accused and for society ... the jury, like a court of public conscience, is not constrained by anything other than its own conscience in deciding the verdict (verdict) ... Meanwhile, it is impossible to demand from the jury that they motivate their verdict, firstly, because they are recruited from the most diverse strata of society, including from the circle of persons without any education, in second, because with a relatively large jury (12 people), it would often be too difficult to grasp the motives for which each of them was inclined to one or another decision. "

N.V. Davydov explained the impossibility of appealing against sentences passed by a jury trial by the fact that “minor cases” that were “removed from the jury's jurisdiction” are subject to appeal.

I.G. Shcheglovitov, noting that "the jury's verdict is a final decision and, as a general rule, has long been not subject to appeal on appeal," as follows, determined the ratio of the appeal and the jury: "The jury gives criminal justice the opportunity to abandon one institution that is extremely burdensome for criminal justice, which, however, cannot be dispensed with when there are no jurors. I'm talking about criminal appeal. There is no more painful procedure for considering criminal cases in criminal proceedings, as the one that comes down to appeal. The painfulness of this order is especially felt here in Russia with our immense space and the natural, as a result of this, remoteness of our ships from local population» .

Thus, sentences that did not come into legal force, passed by a court with the participation of a jury, which were final (Articles 854, 941 of the UUS), could be appealed on complaints (protests) of persons involved in the case only in cassation to the Criminal Cassation Department. Of the ruling Senate within two weeks from the date of the announcement of the verdict (Articles 1, 114 of the USC, Articles 833, 855, 865, 905, 910 of the USC) 2. The cassation grounds for overturning the sentences passed by the jury were:

1) a clear violation of the direct meaning of the law and its incorrect interpretation in determining the crime and the type of punishment (clause 1 of article 912 of the UUS);

2) violation of "rituals and forms so essential that without observing them it is impossible to recognize the verdict in force of the court decision" (clause 2 of article 912 of the UUS);

3) violation of "the limits of the department or authority provided by the law to the judicial establishment" (clause 3 of article 912 of the UUS).

For the first time, an appeal for a jury trial became possible in the homeland of this institution - in England. The result of the disputes that lasted in parliament for more than 60 years was the Law on Criminal Appeal of August 28, 1907, 3 which, according to P.I. Lublinsky, was "undoubtedly the most radical and most important of the laws adopted in England over the past fifty years concerning the criminal justice system and legal proceedings." Indeed, the significance of the 1907 Appeal Law cannot be overemphasized: one system revision of judicial acts in criminal cases, meeting modern demands of the administration of justice and not based on outdated legal traditions. The further development of the forms of the English appeal was not of such a "revolutionary" character, it was distinguished by relative consistency and was expressed in the adoption of a number of laws that changed the previously established order.

"Revolutionary" of the new law, Professor N.N. Polyansky explains as follows: “... he (the 1907 Appeal Law - A.S.) marked a rejection of two principles of the English criminal process, which for centuries were considered unshakable, namely: no one can be convicted of a“ crime "otherwise, as by the unanimous decision of 12 of their fellow citizens, and 2) the jury is high judges on questions of fact ".

The 1907 law allowed the Court of Appeal, which was the Criminal Division High court and consisted of 8 judges and the Lord Chief Justice, revision of jury sentences on questions of fact with the possibility of subsequent cassation of the jury's guilty verdict, and therefore the verdict issued on the basis of it (paragraph 1 of article 1, paragraph 2 of article 4 of the Law on the 1907 appeal).

This appeal was called an appeal against conviction. The jury's guilty verdict on appeal against conviction was subject to cancellation in the following cases: 1) the verdict “is unreasonable or cannot be kept in view of the available evidence”; 2) “wrong decision legal issue"; 3) “for any reason, there was a miscarriage of justice” (paragraph 1, paragraph 1, article 4 of the 1907 Appeal Law). However, the listed grounds for overturning the sentences passed by the jury were not unconditional; in each specific case, the appellate court assessed “whether there was significant damage to justice”, and if so

was not - the verdict remained in effect (paragraph 2, paragraph 1, article 4 of the 1907 Appeal Law). So, for the first time it was installed legal basis if the jury's verdict remains in force if there are formal grounds for its cancellation by the application of “reservations” by the appellate instance, which later became widespread. The second type of appeal - the appeal against the verdict - was only the overturning of a verdict based on the verdict of the jury.

Modern appellate proceedings in England are governed by the Appeals Act 1968, which consolidated the earlier laws on appeal of 1907, 1964 and 1966, as well as the Criminal Appeals Act 1995, which amended and supplemented certain provisions of the 1968 Act. ...

The significance of the application of "reservations" was largely lost with the adoption of the 1995 Appeal Act, which amended the 1968 Act and established the only ground for an appeal against conviction - "conviction is insafe" [Ibid. P. 147].

Thus, when appealing against the conviction, any violation must be assessed by the Court of Appeal4 in terms of the presence or absence of doubt in the jury's verdict. There is no doubt that the criterion of "unreliability" of the verdict has a rather vague content. This, on the one hand, gives considerable flexibility to judicial law enforcement practice in the formation of possible cases The "unreliability" of jury verdicts, on the other hand, facilitates the tasks of the second instance court, which decided to arbitrarily refuse to satisfy the appeal even in the presence of significant violations committed by the Crown Court.

In France, jury sentences were never subject to appeal... Fundamental changes in the review of jury sentences were made by the law of 15.06.2000. As L.V. Golovko, the named law, according to the French proceduralists, was "the most striking reform after the appearance of the 1958 code" , which reigned in French criminal proceedings for over 200 years. The author writes that "... according to the concept of the period of the Great French bourgeois revolution, the" people-sovereign "is not mistaken in principle ... Any of his decisions in essence should be perceived as the ultimate truth, therefore, no two courts of law are considered such criminal cases (first and appeal) could not be discussed ”[Ibid. P. 95].

Only judgments of conviction passed by a jury based on complaints by convicts are subject to appeal.

denominational, prosecutor, civil plaintiff and defendant (in part civil action), filed through the French Court of Cassation within 10 days from the date of the sentence (Articles 380-1, 380-2, 380-9, 380-14 of the French Code of Criminal Procedure, 1958). The appellate court is another assize court, appointed by the criminal chamber of the French Court of Cassation, but in an expanded collegial composition (12 jury members), the proceedings are conducted according to the rules of the court of first instance (Articles 296, 380-1 of the French Code of Criminal Procedure, 1958). The conviction of the Assize Court of Appeal may be appealed to the cassation instance in general order; acquittals - only by way of cassation in the interests of the law (Article 572 of the French Code of Criminal Procedure, 1958) 5.

In Russia, the form of appeal for the review of sentences passed by a court with the participation of a jury was first introduced by the already mentioned Federal law dated December 29, 2010 No. 433-FZ. Most of the evaluations of this law by process scholars are critical. By and large, such criticism, even in relation to the subject of the review of jury sentences, is deserved. Suffice it to cite as an example the provision according to which the grounds for canceling or changing court decisions rendered with the participation of the jury are the grounds provided for in paragraphs 2-4 of Art. 389.15 of the Criminal Procedure Code of the Russian Federation:

Significant violation of the criminal procedure law;

Incorrect application of the criminal law;

Injustice of the verdict.

That is, the same grounds as in the previously existing edition of the Criminal Procedure Code RF were cassation (clauses 2-4, Art. 379 of the RF Code of Criminal Procedure). As before, “the discrepancy between the conclusions of the court set out in the verdict and the factual circumstances of the criminal case established by the court of first instance” is not a reason for canceling the verdicts passed by the jury. The question arises: what kind of appeal for a jury trial can there be without reviewing the factual circumstances of the case by a higher court? That is, the appeal for the jury revises only questions of law, questions of fact remain outside the scope of its competence. Reconsideration of jury sentences on the basis of factual circumstances, in our opinion, is inadmissible. However, why, while maintaining essentially the cassation grounds for reviewing sentences passed by a jury trial, create an “appeal” for a jury trial? This is not consistent with either legal traditions or the theory of criminal procedure. Also, the goals are not achieved, for the sake of which the appeal should extend to all categories of cases, according to which everyone has the right to have his case reviewed on the merits by a more experienced and competent court. In England and France, which are the most typical representatives of the Anglo-American and continental

Accordingly, in new systems, an appeal for a jury trial is not formal, as under the Code of Criminal Procedure of the Russian Federation, and therefore its introduction was, as noted, of a "revolutionary" nature. When the Federal Law of December 29, 2010 No. 433-FZ came into force on January 1, 2013, no "revolution" took place, but "institutional chaos" turned out.

Based on the foregoing, it should be concluded that possible way revision of sentences passed by a court with the participation of a jury is a cassation procedure ("pure cassation"), only it corresponds to the purpose of the jury, the theory of criminal procedure

and the traditions of Russian legal proceedings. International standards regarding the extension of appeal to all categories of cases cannot be projected onto the jury, since the thesis that professional judges are “a more experienced and competent court” in relation to the jury is at least flawed. In our opinion, an appeal (in its strict sense) for a jury trial without prejudice to the latter is possible according to the French model, when the relevant criminal case is reviewed by an extended jury, but this is the subject of a separate study.

NOTES

1 Senator of the Governing Senate, Professor I.Ya. Foinitsky, regarding the merits of the new legal provisions introduced by the Judicial Charters, said: “The publicity of the court eliminated the influence of the chancellery and bribery; competitiveness led to the development of the energy activity of the parties in the process; the elimination of the formal theory of evidence has fenced public safety from the most dangerous criminals; limiting the proceedings on the merits to two instances, and in some cases even to one, significantly accelerated the course of the criminal case; the separation of the judiciary from the administrative judicial activity to a height that she has never reached before. "

2 It should be noted that after the reform of the 60s. XIX century The Governing Senate is formed as the highest Judicial authority, independent of the administrative and legislative authorities. In this regard, S.K. Gogel notes that “the cassation departments, with their decisions on criminal cases, with their circular explanations, really govern all court case in the spirit of legality, not knowing any authority over itself, making final, non-appealable decisions, "it was the Senate who exercised judicial regulations"[Ibid. P. 104].

3 Appeal in the English legal system means any form of criminal review initiated by a party to the case. The cassation procedure for the review of sentences in the understanding of the continental legal system absent. So, N.N. Polyansky notes that the separation of the forms of revision of sentences into appeal and cassation is so alien that the Encyclopedia Britannica explains under the word "cassation", according to which the phrase "cassation court" is used as the name of the "court of appeal."

4 By the Act of August 9, 1966, the authority to hear criminal appeals was transferred from the Criminal Division of the High Court to the Court of Appeal, in which the corresponding division was formed.

5 Cassation in the interests of the law is not intended to revise a final judgment that is unshakable, but to obtain an interpretation of the law by a higher court for the future.

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REVIEW OF AN OTHERWISE FINAL JURY TRIAL DECISION: LEGAL TRADITION AND INTERNATIONAL LAW STANDARDS OF CRIMINAL JUSTICE

Tomsk State University Journal, 2015, 391, 160-166. DOI 10.17223 / 15617793/391/26

Kamnev Aleksandr S. Altai State University (Barnaul, Russian Federation). Email: [email protected] Keywords: jury trial; appeal; cassation; review of decision; legal tradition; international law standards of criminal justice.

This article examines forms of appeal of the jury trial decision in Russia, England and France. The present problem is becoming a critical issue today because of the significance of jury trial itself and the implementation of the international law standards of criminal justice into the Russian criminal procedure system. Current practice shows that harmonization of Russian and foreign legislation does not always correspond to Russian legal tradition and the reforming of legal procedure sometimes lacks theoretical grounds. The amending of the Criminal Procedure Code of the Russian Federation and entitling a person to appeal all types of cases was aimed at guaranteeing that everyone shall have the right to have their case revised by a more experienced and competent court. However, the possibility to file appeals against the decision rendered by jury trial has failed to produce the expected result, since comparing jury trial and professional judges and calling the latter "more experienced and competent" cannot be considered to be correct. Moreover, appealing the decisions rendered by jury trial does not comply with legal tradition and theory of criminal procedure. In fact, according to the Criminal Procedure Code of the Russian Federation it is a formal act of a routine nature so long as the grounds for appealing the jury trial decision are as follows: a violation of criminal procedure law, a wrong application of the criminal law, and the injustice of the verdict, ie the same grounds that used to be the ones for cassational appeal as stipulated in Sections 2-4, Article 379 of the RF Criminal Procedure Code. "A discrepancy between the court" s conclusions set out in the verdict and the actual circumstances of the criminal case established by the court of the first instance "still fails to be the ground for revoking the jury trial decision. This enables us to make a conclusion that cassation procedure is one of the possible ways to review the decision rendered by jury trial, since this is the only procedure that coincides with the function of jury trial, theory of criminal procedure and Russian legal tradition. International law standards with regard to entitling a person to appeal all types of cases cannot be projected onto jury trial issues.Besides, it is the French tradition in filing an appeal (in its strictest sense) against the decision rendered by jury trial that can be implemented without affecting the latter; here the criminal case is revised by jurors and a professional judge.

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Court cassation instance in cassation, examines complaints and submissions against sentences, rulings, decisions of the district courts of first instance and appeal that have not entered into legal force. The verdict and rulings of the magistrate that have not entered into legal force can be appealed only on appeal. A verdict, ruling, court ruling that has not entered into legal force may be appealed by a suspect, accused, defendant, convicted, acquitted, a person whose criminal case has been terminated, by their defenders, legal representatives, victims, his legal representative or representative, a civil plaintiff, a civil defendant (in the part concerning a civil claim), their legal representatives, representatives, a public prosecutor or a higher prosecutor, a private prosecutor, as well as other persons to the extent that the contested court decision affects their rights and legitimate interests. A complaint and presentation may be filed by the parties in cassation within 10 days from the date of the pronouncement of the verdict, and to the convicted person in custody - within the same period from the date of delivery of a copy of the verdict. A complaint or presentation filed with a missed deadline will not be considered. The cassation appeal is drawn up on the basis of the verdict read out in the court session, the minutes of the court session and other materials of the case. Cassation appeals and representations are submitted to the judicial collegium for criminal cases regional court, but are brought through the office of the court that passed this judgment. It must be borne in mind that the court of cassation verifies the legality, validity and fairness of the sentence and other court decision based on cassation complaints and submissions.

According to the requirements of Art. 375 of the Code of Criminal Procedure of the Russian Federation, the cassation appeal must have the appropriate details and contain the necessary data:
● the name of the court of the cassation instance to which the complaint or presentation is submitted;
● data on the person who filed the complaint or presentation, with an indication of his procedural situation, place of residence or location;
● an indication of the verdict or other decision that is being appealed, and the name of the court that ruled or passed it;
● arguments of the person who filed the complaint or presentation, indicating the grounds provided for in Article 379 of the Code of Criminal Procedure of the Russian Federation;
● a list of materials attached to the complaint or submission;
● signature of the person who filed the complaint or presentation.
If the convicted person submits a petition for participation in the consideration of a criminal case by a court of cassation, then this is indicated in his cassation appeal.
A convicted person who is in custody and who has declared his desire to be present at the consideration of a complaint or submission to a verdict has the right to participate in the court session directly or to express his position by using videoconferencing systems. The question of the form of participation of the convicted person in the court session shall be decided by the court. The convicted or acquitted person who appears at the court session is allowed to participate in it in all cases. The failure to appear of persons who were promptly notified of the date, time and place of the session of the court of the cassation instance does not interfere with the consideration of the criminal case.

The grounds for canceling or changing the judgment on appeal are:
- inconsistency of the conclusions of the court set out in the verdict, the factual circumstances of the criminal case, established by the court first or appellate instance;
- violation of the criminal procedure law;
- misapplication of the criminal law;
- unfairness of the sentence.
The verdict is recognized as inconsistent with the factual circumstances of the criminal case established by the court of first or appeal instance (Article 380 of the Code of Criminal Procedure of the Russian Federation) if:
● the conclusions of the court are not supported by the evidence considered in the court session;
● the court did not take into account the circumstances that could significantly affect the conclusions of the court;
● if there is conflicting evidence that is significant for the conclusions of the court, the judgment does not indicate on what grounds the court accepted some of this evidence and rejected others;
● the conclusions of the court, set out in the verdict, contain significant contradictions that have influenced or could have influenced the decision of the question of the guilt or innocence of the convicted or acquitted person, the correctness of the application of the criminal law or determination of the punishment.
The grounds for the cancellation or change of the court decision by the court of cassation are such violations of the criminal procedure law (Article 381 of the Criminal Procedure Code of the Russian Federation), which by depriving or limiting the guaranteed rights of participants in criminal proceedings, non-compliance with the procedure of legal proceedings or in any other way influenced or could influence the decision of a lawful, well-grounded and a fair sentence.
The grounds for canceling or changing a court decision in any case are:
● non-termination of a criminal case by a court if there are grounds provided for in Article 254 of this Code;
● a verdict by an illegal jury or a verdict by an illegal jury;
● consideration of a criminal case in the absence of the defendant, except in cases where foreseen in parts the fourth and fifth articles 247 of this Code;
● consideration of a criminal case without the participation of a defense lawyer, when his participation is mandatory, or with another violation of the right of the accused to use the assistance of a defense lawyer;
● violation of the defendant's right to use the language that he speaks and with the help of an interpreter;
● failure to grant the defendant the right to participate in the debate of the parties;
● failure to provide the defendant with the last word;
● violation of the secrecy of the deliberation of the jury when the verdict is passed or the secrecy of the deliberation of the judges when the verdict is passed;
● substantiation of the verdict with evidence recognized by the court as inadmissible;
● absence of the signature of the judge or one of the judges, if the criminal case was considered by the court collegially, on the corresponding court decision;
● lack of the minutes of the court session.
Incorrect application of the criminal law according to (Art. 382 of the Code of Criminal Procedure of the Russian Federation) are:
● violation of the requirements of the General Part of the Criminal Code of the Russian Federation;
● application of the wrong article or the wrong paragraph and (or) part of the article of the Special Part of the Criminal Code of the Russian Federation, which were subject to application;
● the imposition of a punishment more severe than that provided for by the corresponding article of the Special Part of the Criminal Code of the Russian Federation.
The sentence is unfair(Article 383 of the Criminal Procedure Code of the Russian Federation), according to which a punishment was imposed that did not correspond to the severity of the crime, the personality of the convicted person, or a punishment that, although it does not go beyond the limits provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation, but by its type or size is unfair, both due to excessive mildness and due to excessive severity.
The verdict may also be canceled in connection with the need to impose a more severe punishment in view of the recognition of the punishment imposed by the court of first or appellate instance as unjust due to its excessive leniency only in cases where on these grounds there is a presentation by the prosecutor or a statement by a private prosecutor, victim or his representative.
Considering a criminal case in cassation, the court may cancel:
- a guilty verdict and terminate the criminal case if there are grounds;
- an acquittal, on the proposal of the prosecutor or on a complaint of the victim or his representative, as well as on the complaint of an acquitted person who does not agree with the grounds for acquittal;
- a verdict with the direction of the criminal case for a new trial.

As a result of considering a criminal case in cassation, the court makes one of the following decisions:
1) on leaving the judgment or other contested court decision unchanged, and the complaint or presentation without satisfaction;
2) on the annulment of the sentence or other appealed court decision and on the termination of the criminal case;
3) on the cancellation of the sentence or other contested court decision and on the direction of the criminal case for a new trial in the court of first or appellate instance from the stage preliminary hearing, or trial, or actions of the court after the verdict of the jury;
4) on changing the judgment or other contested court decision.
The decision of the court of the cassation instance shall be made in the form of a cassation ruling, which specifies:
● date and place of the ruling;
● the name of the court and the composition of the cassation board;
● data on the person who filed the cassation appeal or presentation;
● data on the persons who participated in the consideration of the criminal case in the court of the cassation instance;
● a summary of the arguments of the person who filed the complaint or presentation, as well as the objections of other persons who participated in the session of the court of the cassation instance;
● the reasons for the decision;
● the decision of the court of the cassation instance on the complaint or presentation;
● decision on the measure of restraint.
When canceling or changing the sentence, the cassation ruling indicates:
- violation of the norms of this Code, subject to elimination in a new trial;
- the circumstances that led to the appointment of an unjust punishment;
- the basis for canceling or changing the sentence.
The cassation ruling is signed by the entire composition of the court and announced in the courtroom. The cassation ruling, within 7 days from the date of its issuance, is sent along with the criminal case for execution to the court that passed the verdict.
The cassation ruling, according to which the convicted person is to be released from custody, is executed in this part immediately if the convicted person participates in the session of the court of the cassation instance. In other cases, a copy of the cassation ruling or an extract from the operative part of the cassation ruling regarding the release of the convicted person from custody is sent to the administration of the place of detention for immediate execution.
The instructions of the court of the cassation instance are binding upon the new consideration of the criminal case.
The court of the cassation instance shall re-consider the criminal case in cassation procedure on the basis of a cassation appeal or presentation, if the cassation appeal of the convicted person, his defense lawyer or legal representative, as well as the victim or his legal representative has been received when the criminal case against this convict has already been considered on the basis of the cassation appeal, or representation of another participant in criminal proceedings.

Nikolay Severin

None of the forms (models) of criminal proceedings ensures one hundred percent accuracy of decisions taken by the court of first instance. Therefore, the legislation of various countries provides for various forms of revision of court decisions that have not entered into legal force.

World practice has developed two forms of verifying the legality and validity of sentences: appeal and cassation proceedings.
Legislation of various states provides for two types appeal proceedings: full and incomplete appeal.

For full appeal are characteristic:
a) re-examination of evidence in full;
b) submission to the court of any new evidence;
c) lack of the right to return the case to the court of first instance;
d) making a new decision or leaving the decision of the first instance court unchanged.

Incomplete appeal characterized by:
a) the prohibition to refer to new evidence not considered by the court of first instance;
b) the limited research of evidence, which is generally based on the analysis of written evidence;
c) the possibility of returning the case to the court of first instance for a new consideration of the case on the merits of the decision.
Cassation proceedings originated in France and acquired features in the development of "pure" or "mixed" cassation.

Pure form of cassation has the following features:
a) the case is reviewed only at the request of the parties;
b) the court of cassation does not delve into the essence of the case, but considers it only from the point of view of the application of the law and the forms of the process;
c) the decision of the court of the cassation instance recognizes a violation of the law, by virtue of which the decision of the lower court is canceled, or states the absence of violations of the law, which entails the rejection of the complaint.

Mixed type of cassation characterized by:
a) revision beginning;
b) intrusion into the consideration of the merits of the case;
c) the possibility of changing the decision without returning the case to the court of first instance.

Of course, the appeal and cassation proceedings in different countries reflect the traditions and characteristics of the national development of legal proceedings.

The Russian appeal can be classified as a full type of appeal, and cassation - as a mixed type of cassation proceedings. Our judgments are confirmed by an analysis of the current legislation, which will be carried out when considering the following issues of this lecture.
Currently current legislature provides for the appeal proceedings in cases of crimes considered by the justice of the peace. In this regard, the traditional idea of cassation proceedings as an independent stage of the criminal process should be rejected. This judgment is due to the fact that the cassation, along with the appeal, has become only one of the forms of revision of court decisions that have not entered into legal force. In this regard, the stage of cassation proceedings should be called the stage of revision of sentences, rulings, rulings (or court decisions) that have not entered into legal force. True, the legal literature has already expressed the opinion that an appeal, along with cassation, is an independent stage of criminal proceedings.

Revision of court decisions that have not entered into legal force - the stage of the criminal process, consisting in the legal relationship and the activities of its participants with the determining role of the court of appeal or cassation instance to establish the presence or absence of factual and legal grounds for the cancellation or change of judicial decisions of the lower courts that have not entered into legal force.
The forms of revision of court decisions that have not entered into legal force include appeal and cassation.

Appellate proceedings- the form of revision of court decisions that have not entered into legal force, which consists in the legal relations and activities of its participants with the determining role of a judge of a district court in a new trial to establish the presence or absence of factual and legal grounds for canceling or changing a sentence or a decision to terminate a criminal case of a peace judges.

Cassation proceedings- the form of revision of court decisions that have not entered into legal force, consisting in the legal relations and activities of its participants with the determining role of the court of cassation in establishing the presence or absence of factual and legal grounds for canceling or changing the court decisions of the courts of first and appeal instances.

The stage of revision of decisions that have not entered into legal force, as well as the stage of proceedings in the order of judicial supervision and the reopening of cases on newly discovered circumstances, are among the control ones. The control functions of this stage determine its tasks.

The tasks of this stage are:

detection of errors made by courts in the consideration and resolution of criminal cases;
taking measures provided for by law to eliminate the identified errors by canceling or changing a court decision that has not entered into legal force.

The tasks solved by the stage under consideration determine its multifarious meaning.

Stage value revision of court decisions that have not entered into legal force is as follows:

it is an important guarantee against unlawful and unjustified conviction of the defendant, or, on the contrary, against leaving the perpetrators of crimes unpunished. However, this stage acts as a guarantee of rights and legitimate interests not only the defendant, but also other participants in the process: the victim, the civil plaintiff and other persons;
this stage, being a form of judicial supervision over the activities of lower courts, forms the uniform application of laws by them throughout the territory of Russia;
the stage under consideration, forming a unified judicial policy, contributes to improving the quality of pre-trial preparation of materials and thereby strengthening the rule of law in their activities;
this stage ensures the implementation of educational and preventive influence on citizens, contributes to the strengthening of law and order in the state, the education of law-abiding citizens.

At the heart of the proceedings for the revision of court decisions that have not entered into legal force, there are certain principles, which it was customary to call the characteristic (main) features of cassation. In them, taking into account the specifics of the stage, the principles inherent in criminal proceedings in general are manifested.

The following are characteristic of the beginning of the stage of revision of judicial decisions that have not entered into legal force.

1.Freedom to appeal against court decisions that have not entered into legal force.

According to Art. 478 of the Code of Criminal Procedure, the right of appeal belongs to the convicted or acquitted person, their defenders and legal representatives; a private prosecutor and his representative; the victim and his representative; to the civil plaintiff, the civil defendant and their representatives in the part of the civil claim, and the protest - to the prosecutor.

Right cassation appeal the decisions of the courts of first and appellate instances are held by the convicted or acquitted person, their defenders and legal representatives; a private prosecutor and his representative; the victim and his representative; a civil claimant, a civil defendant and their representatives in respect of a civil claim, and protests - by a prosecutor (Article 325 of the Code of Criminal Procedure).

Thus, the circle of persons who initiate the revision of court decisions that have not entered into legal force by way of appeal and cassation is identical, identical.

2.Verification of both the legality and validity of the sentence (Articles 332, 487 of the CCP).

When considering a case on appeal and in cassation, the court verifies the legality and validity, respectively, of the judgment of the magistrate and the judgment of the first and appeal instances. At the same time, the courts of appeal and cassation instances check:
a) the correctness of the establishment of the factual circumstances of the case;
b) the correctness of the application of the criminal law;
c) compliance with the norms of the criminal procedure law.

3.The auditing nature of the verification of the legality and validity of the sentence.

According to Art. 491 of the Code of Criminal Procedure, the appeal procedure is a new trial, which is conducted according to the rules of procedure in the court of first instance, taking into account the provisions established by Chapter 42 of the CCP.

At the same time, the revision nature of the appeal proceedings is limited, since the court verifies the legality, validity and fairness of the judgment of the magistrate only in the part in which the judgment is appealed or protested, and only in relation to those convicts who are affected by the complaint or protest.

However, if in the course of the proceedings in the court of appeal, violations of the rights and legitimate interests of the convicted are established, which were admitted during the consideration of the case by the magistrate, which led to the ruling of an illegal sentence, then the court of appeal in the manner prescribed by Art. 339-342 of the Code of Criminal Procedure, has the right to cancel or change the judgment of a magistrate both in the part in which it was not appealed or protested, and in relation to those convicts in whose interests a complaint was not filed or a protest was not brought (Article 487 of the Code of Criminal Procedure).
In accordance with Art. 332 of the Code of Criminal Procedure, the court of cassation is not bound by the arguments of the cassation appeal or protest and examines the case in full with respect to all convicts, including those who have not filed any complaints and in respect of whom a cassation appeal has not been brought.

4.The possibility of submitting (claiming) new materials (Articles 332, 492 of the Criminal Procedure Code).

The courts of appeal and cassation instances check the legality and validity of the verdict both on the materials available in the case and on the materials presented additionally.

5.Prohibition of turning to worst (prohibiting worse conversion)- inadmissibility of deterioration of the position of the convicted person, acquitted in comparison with the situation established by the sentence.

In accordance with Art. 340 of the Code of Criminal Procedure, when considering a case in cassation, the court may mitigate the punishment imposed by the court of first or appellate instance or apply a law on less serious crime, but does not have the right to increase the punishment, as well as apply the law on a more serious crime.

The verdict may be canceled due to the need to apply the law on a more serious crime or for the leniency of the punishment only in cases where it is on the indicated grounds that a protest is brought by the prosecutor or a complaint is filed by a private prosecutor or a victim.
A not guilty verdict of a court of first instance or a verdict (ruling) of a court of appeal may be canceled on cassation only on the basis of a protest from a prosecutor, or on a complaint from a private prosecutor, a victim, or on a complaint from a person acquitted by a court (Article 341 of the CCP).

A court of cassation cannot under any circumstances worsen the position of the defendant, since this can only be done in a verdict, which is not issued in this court.

The prohibition of transformation for the worse is also valid in the appeal proceedings (Art. 487 of the CCP). However, since this proceeding is a new trial, the results of which may result in a new verdict, the court of appeal has the right to worsen the situation of the defendant. This court can overturn an acquittal and pass a guilty verdict, impose a more severe punishment on the defendant than was determined by the judgment of the magistrate, only when a protest was brought by the prosecutor or a complaint was filed by a private prosecutor, the victim or their legal representatives, respectively, that the acquittal was unfounded, and leniency of punishment (Articles 500, 501 of the Criminal Procedure Code).

6. The brevity of the terms of initiation of appeal and cassation proceedings and consideration of the received criminal cases.

According to Art. 328, 477, 428 of the CCP, cassation appeals and protests against the verdict of the first court and the verdict (or ruling) of the court of appellate instances, and appeals and protest against the judgment of the magistrate or his decision to discontinue the case may be filed within seven days from the date of their announcement , and to convicted persons in custody, within the same period (from the date of delivery of a copy of the relevant documents).

During the period established for the cassation appeal, the case cannot be claimed from the court. The parties have the right to get acquainted in court with the proceedings on the case and with the received complaints or protests.

A more democratic procedure for the possibility of responding to submitted appeals or protests is established for the appeal proceedings. According to Art. 484 of the CPC about filing a complaint or bringing a protest, the magistrate notifies the parties if they affect their interests. A copy of the complaint or protest is sent to the specified persons with an explanation of the possibility of filing objections to them in writing, indicating the time frame for their submission. These objections are attached to the case. In this case, the parties have the right to submit new materials and petition to summon the witnesses and experts indicated by them to the court.

Cassation returned to the person who submitted them. Appellate complaints or protests filed with a missed deadline, are left without consideration. However, this period, missed for valid reasons, can be restored by the court that passed the verdict or ruling. The judge's decision to refuse to restore the missed deadline may be appealed or protested to a higher court, which has the right to restore the missed deadline and consider the case on the complaint or protest on the merits (Art. 329.483 of the CCP).

The filing of appeals and cassation complaints or protests shall suspend the execution of the sentence. After the expiry of the period established for appeal and protest, the court that passed the verdict sends the case with complaints, protest and other materials to a higher court.

Additional complaints, protests and written objections to them are submitted before the start of the consideration of the case (Articles 328,330,485 of the CCP).
Regional courts in the order of cassation must consider the case no later than ten days from the date of receipt of complaints or protest. In case of particular complexity of the case or in other exceptional cases, the chairman of the relevant court, by his decision, may extend this period, but not more than ten days.

The Supreme Court of the Russian Federation must consider the case in cassation no later than one month from the date of its receipt. In exceptional cases, the President of this court or his deputy may extend this period by their own decision, but for no more than one month (Article 333 of the Code of Criminal Procedure).
The consideration of the case in the court of appeal must begin no later than fourteen days from the date of receipt of the complaint or protest. This period, for valid reasons, can be extended by order of the judge of the district court, who will consider the case, but for no more than ten days (Article 489 of the CCP).

7. Courts of cassation and appeal instances consider criminal cases in an open court session (Articles 334, 491 of the Code of Criminal Procedure).

These courts consider cases in open court, except for the cases specified in Art. 18 of the Criminal Procedure Code.

8.Extensive powers of the courts of cassation and appeal (Articles 339, 494 of the Code of Criminal Procedure).

As a result of the consideration of the case on appeal the court makes one of the following decisions:

leaves the verdict of the court of first instance and the verdict (ruling) of the court of appeal unchanged, and the complaint or protest - unsatisfied;
overturns the sentence and sends the case for a new investigation or a new trial;
overturns the sentence and discontinues the case;
changes the sentence.

When making a ruling, the court is guided by the requirements of Art. 306,307 and 312 of the Code of Criminal Procedure. The ruling made is immediately announced in the courtroom by the presiding judge or a member of the court.

If, along with the cancellation of the verdict (or ruling) of the court of appeal, the sentence passed by the magistrate is canceled, then the case is sent for a new judicial review v district court(Article 348 of the Criminal Procedure Code).

According to Art. 348 of the Code of Criminal Procedure, canceling the sentence with the referral of the case for a new trial, the court indicates in the determination whether the proceedings on the case should be started with an additional investigation or trial. In the event that the verdict is canceled due to the need to present a more serious charge or an accusation substantially different in fact from the one initially brought, the case is sent through the court that passed the verdict to the prosecutor for additional investigation. If the verdict is canceled due to violations committed during the consideration of the case in court, the case is sent for a new consideration to the court that passed the verdict, but in a different composition of the court.

When considering a case in cassation, the court shall overturn the conviction of the court of first or appeal instance and terminate the case in the following cases:

in the presence of the grounds specified in Art. 5-9 and 402 of the Criminal Procedure Code;
if the evidence considered by the court of first or appeal instance, the charge brought against the defendant is not confirmed and there are no grounds for an additional investigation and a new trial (Article 349 of the Code of Criminal Procedure).

If, during the consideration of the case in cassation, it is established that the court of first or appeal instance incorrectly applied the criminal law or imposed a punishment that does not correspond to the gravity of the crime and the personality of the convicted person, then the court of cassation may, without remitting the case for a new consideration, make the necessary changes in the sentence, taking into account the rules prohibiting the worsening of the situation of the defendant (Art. 350 of the CCP).

Appellate court makes one of the following decisions:

to leave the judgment of the magistrate or his decision to discontinue the case unchanged, and appeal complaints or protest - without satisfaction;
to cancel the conviction of a magistrate, acquit the defendant or dismiss the case;
to annul the conviction of a magistrate and to issue a new sentence;
on the cancellation of the acquittal of a magistrate and on the passing of a guilty verdict;
to change the sentence of a magistrate (art. 494 of the CCP).

As a result of consideration of the complaint or protest, the court of the appellate instance decides a new verdict, replacing in whole or in part the verdict of the magistrate, or makes a decision recognizing the verdict of the magistrate as correct, and the arguments of the complaint or protest - unfounded.

The appellate court adjudicates the sentence in accordance with general rules and taking into account the fact that the judgment must indicate what served as the basis for quashing, in whole or in part, the judgment of the magistrate or for changing it.

The ruling of the court of appeal is made in the manner prescribed by Art. 261 and 312 of the Code of Criminal Procedure, taking into account that this decision should indicate on what grounds the judgment of the magistrate is recognized as correct, and the arguments of the complaint or protest - unfounded.

In support of its decision, the court of appeal shall have the right to refer to the testimony of persons who were not summoned to the session of the court of appeal, but interrogated by the justice of the peace, read out in the session of the court of appeal. If these testimonies are disputed by the parties, then the persons who gave them are subject to interrogation at the hearing (Art. 495 of the CCP).

9.Obligation to comply with the instructions of the higher courts (Article 352 of the CCP).

The instructions of the court considering the case in cassation procedure are mandatory for additional investigation and secondary consideration of the case by the court.

The court considering the case in cassation is not entitled to:

establish or consider as proven facts that were not established in the judgment or rejected by it;
prejudge questions about the proof or lack of evidence of the accusation, about the reliability or unreliability of this or that evidence, about the advantages of some evidence over others, about the application by the court of first instance or appeal of a particular criminal law and about the punishment.

These rules do not apply to the court of appeal, since it must resolve all of the listed issues. in an independent (new) trial.

1. Supervisory proceedings. Difference from cassation.

2. Initiation of supervisory proceedings. Bringing a protest by way of supervision.

3. Courts considering cases by way of supervision. The order of their consideration. Types of solutions.

4. Proceedings on newly discovered circumstances.

Supervisory proceedings are an exceptional stage in which a revision of a verdict that has entered into legal force is carried out.

In the Russian Federation, cassation is entered into legal force, an appeal is not entered into.

Subsequent differences between supervision and cassation:

1. Cassation m. once, and consideration of the case in the order of supervision - as long as you like and even after serving the sentence.

2. In the order of supervision, a supervisory complaint is not a basis for consideration in court (the basis is a protest of an official), so that the court becomes interested - I need to convince the official. therefore, the complaint is not submitted to the court, but to a certain official. Statistics: 100 filed - 10 protests.

The m / n plan in the convention on human rights states that it is necessary to have an effective form of judicial protection. V European court on human rights, a person can apply if he has exhausted all means in his state.

European court - supervisory proceedings - inappropriate form. Supervisory proceedings are of the Soviet past.

3. Implemented by various courts, composition m. more than 3 people.

4. Supervisory proceedings - a closed court session. Although this is not written in the Criminal Procedure Code.

5. In cassation, the subject of consideration is a verdict that has not entered into legal force, in the order of supervision - both the verdict and the subsequent decisions of the cassation instance and lower supervisory instances.

Supervisory procedure.

A supervisory complaint may be filed by the same persons as the cassation complaint, i.e. sides. When that - "any person, not only participants in the process." Example: the case of Lomonosov and I.I. Martinovich.

The complaint is written according to the same rules as the cassation complaint (addressed to an official, a person who can bring a protest, from whom, what we ask to cancel, what we consider to be wrong, at the end - we write that we want to “bring a protest by way of supervision”, and in cassation immediately write what we want.

Served to a person who has the right to bring a protest - favorite add. question (2 groups of persons - through the prosecutor's office and through the court):

ü On the line of the prosecutor's office: 1. General prosecutor and his deputies; 2. prosecutors of regions, Minsk; 3. Belarusian military prosecutor;

ü Court line: 1. chairman of Minsk city and regional courts, 2. Belarusian military court, 3. chairman of the Armed Forces and all deputies.

The principle of hierarchy applies.

Persons, participants in the process, together with the supervisory complaint or personally go to these persons for an appointment on reception days; a supervisory complaint can be sent by mail, but a copy of the judgment must be attached. An official must decide whether to bring a protest, for this, he can reclaim the case from the court (this is a plus for us). We decided not to bring it - we write the answer that everything is fair.

These officials have the right to bring a protest, to reclaim cases, if they agree, they file a protest. Where: to the supervisory authority - to the COURT - the presidium of the regional court, Minsk city, Belarusian military court, in the Armed Forces - this is the judicial collegium for criminal cases, the military collegium (3 people), the presidium and the plenum of the Armed Forces.

The procedure for considering the case:

First, the parties are notified about bringing the protest, the protest is rejected - it is also reported, then a court session is scheduled supervisory authority, a message to the participants in the process. The convicted person is not summoned, whoever filed a complaint is not summoned, they can give a protest to read, but the prosecutor necessarily participates, expresses an opinion on the case.

If the presidium of the Armed Forces is 11, 13 people, the presidium of the regional court - 5-7 people. In general, the procedure is closed, adversariality is present in a weak scale.

Supervisory authority decisions

- approximately the same as in cassation, but additional - cancellation of the cassation ruling, cancellation of subordinate supervisory decisions.

The reopening of the case against the newly opened is a verification of the sentence that has entered into legal force, but not because we consider it illegal, but because new circumstances were discovered that were not known to the court and could not be known, which passed the verdict.

New circumstances - Art. 418.

These are circumstances, 4 groups:

The first three points - crimes against justice (in the law - knowingly false testimony, abuse officials). These persons are witnesses, experts, prosecutors, etc. - committed a crime against justice in this case. The court did not know anything about this, but later - it was found out and they were convicted of crimes against justice and the verdict came into legal force and it is necessary to establish that this crime against justice led to the imposition of an illegal sentence in this case. - 1st order. We must condemn and receive a verdict.

The fourth point is the circumstances that indicate that the wrong person was convicted / acquitted, the person was innocent, or the case was dismissed in relation to him. - another order of establishment, no need to condemn, you need proof. Investigations can only be initiated by the prosecutor.

Questions from the reopening of the case on the newly opened; chapter - features of consideration in relation to persons and categories of cases. See PPVS on private charges, on minors, on coercive measures safety and treatment. Look!!!

The revision of court decisions that have entered into legal force, which are not subject to change in the usual procedure, is provided as an additional opportunity to correct judicial errors and exercise the right to judicial protection... The extraordinary stages of review, ensuring the justice of final court decisions, are cassation, supervision, as well as the reopening of the case in view of new or newly discovered circumstances 1.

The stages of cassation and supervisory proceedings are regulated by law in much the same way. The objectives, subject matter, main features, grounds, limits and procedures for revision are common.

The task of cassation and supervisory proceedings is to identify and correct judicial errors made at the previous stages of criminal proceedings. Only court decisions that have entered into legal force may be appealed in cassation and supervisory procedures. Both cassation and supervisory proceedings are two-stage: in both proceedings, the decision on cassation or supervisory review is made solely by a judge of the cassation instance or a judge of the Supreme Court of the Russian Federation. Decisions made by the courts of cassation may be subject to supervisory review. The Presidium of the Supreme Court of the Russian Federation has the right to review its own decision in a supervisory manner.

The difference between cassation and supervision is mainly reduced only to the list of decisions that can be appealed in the supervisory procedure, as well as to the fact that there is a plurality of cassation instances in cassation proceedings, and the Presidium of the Supreme Court of the Russian Federation is the only court of the supervisory instance.

1 The reopening of the case due to new or newly discovered circumstances is not considered in this manual, since for the implementation of criminal procedural activities at this stage, it is necessary to establish special grounds that are fundamentally different from the appeal, cassation and supervisory grounds.

Subject to supervisory review, not all court decisions that have entered into legal force, but only a limited number of them, specified in Part 3 of Art. 412 "Code of Criminal Procedure of the Russian Federation:

1) court decisions of the supreme courts of the republics, regional or regional courts, courts of federal cities, courts autonomous region, ships autonomous regions issued by these courts when considering a criminal case in the first instance, if the said decisions were the subject of appeal consideration at the Supreme Court of the Russian Federation;
2) court decisions of district (naval) military courts made by these courts when considering a criminal case in the first instance, if these decisions were the subject of an appeal in the Supreme Court of the Russian Federation;
3) judicial decisions of the Appellate Collegium of the Supreme Court of the Russian Federation, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation and the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation, rendered by them on appeal;
4) rulings of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation and rulings of the Judicial Collegium for Military Servicemen of the Supreme Court of the Russian Federation, made by them in cassation;
5) decisions of the Presidium of the Supreme Court of the Russian Federation.

The court of cassation and supervisory instance proceeds from the factual circumstances of the case established by the court of first or appeal, since the procedure for considering a criminal case on a supervisory appeal or presentation in a court session of a supervisory instance court does not provide for a direct examination of evidence (paragraphs 4-8 of article 401 13, Art.412 10 of the Criminal Procedure Code of the Russian Federation). This means that the supervisory-instance court is considering the verdict of the first or appeal court, which is final in relation to the factual circumstances of the case established by him.

In cassation and supervisory procedures, not only those that have entered into legal force may be reviewed the final judgments by which the case is resolved on the merits, but also intermediate court decisions, including those that were made during the consideration of the case by the court of first instance. Comparison of parts 1 and 2 of Art. 127 of the Code of Criminal Procedure of the Russian Federation leads to the conclusion that court decisions that have entered into legal force, adopted in the course of pre-trial proceedings in a criminal case, can only be reviewed on cassation and are not subject to revision by way of supervision.

Interim decisions that have entered into legal force may be appealed separately from the final act in cassation procedure only before the transfer of the criminal case to the court of first instance for consideration on the merits. This limitation is due to the constitutional provision enshrined in Part 1 of Art. 120 of the Constitution of the Russian Federation, which does not allow interference in the activities of the court considering the case on the merits.

However, some interim solutions have different rules. For example, a decision to initiate a criminal case may be appealed on cassation and after the start of the consideration of the case in the court of first instance, until a verdict or other final decision is passed. This follows from the decree The Constitutional Court RF, which states that the court has the right, in cases of public prosecution, to exercise judicial control over the legality and validity of the initiation of a criminal case, refusal to initiate it or terminate the case, which is implemented only by considering materials provided to it by the state prosecution authorities in court, including number of complaints from interested persons, whose constitutional rights were violated by these acts (clause 6 of the descriptive and motivating part of the decision of the Constitutional Court of the Russian Federation of January 14, 2000, No. 1-P).

After the final decision in the case is made, the arguments about the illegality of the named interim decisions can be considered only if they are included in the cassation or supervisory complaint on the final decision.

The plenum of the Supreme Court of the Russian Federation explained: “Since the restoration of violated constitutional rights to liberty and security of person must be timely, and the available means of their legal protection- effective, appealing and reviewing in cassation the decisions on the selection of a preventive measure in the form of detention, house arrest or extension of their validity period, or on the placement of a person in a medical or psychiatric hospital for the production of a forensic examination, it is possible after the receipt of the criminal case by the court of first instance ”(clause 5 of the resolution of the Plenum of the Supreme Court of the Russian Federation of January 28, 2014 No. 2 (as amended on March 3, 2015)).

Moreover, since the measures of restraint in the form of house arrest and detention are in effect not only after the receipt of the criminal case by the court of first instance, but also after the final decision on the case is made, up to the entry into force of the sentence, these measures of restraint can be appealed separately. from the final decision in the appeal, cassation and supervisory procedure (clause 57 of the resolution of the Plenum of the Supreme Court of the Russian Federation of December 19, 2013 No. 41

(as amended on May 24, 2016); definitions of the Constitutional Court of the Russian Federation of September 25, 2014 No. 2292-0 and of November 20, 2014 No. 2741-0).

However, the decision of the court to refuse to satisfy the petition of the defense to change the measure of restraint from detention to a measure not related to imprisonment is not subject to independent appeal, since the legality and validity of the decision of the first instance court to refuse to satisfy the petition of the defense to change preventive measures from detention to a measure not related to deprivation of liberty can be checked when the court makes a decision to extend the period of detention, and refusal to satisfy such a request does not entail an extension of the period of detention (Review judicial practice application by the courts Nizhny Novgorod region legislation on preventive measures in the form of detention, house arrest and bail for the fourth quarter of 2014, approved. Presidium of the Nizhny Novgorod Regional Court on April 22, 2015).

The term for appealing a court decision to the courts of cassation and supervisory instance is limited to one year from the date of entry into force of the decision only to turn for the worse for the convicted person.

The Constitutional Court of the Russian Federation in its decisions has repeatedly indicated that the revision and cancellation of a final verdict that has entered into legal force, if this entails a deterioration in the convicted person's position, should be conditioned by a sufficiently short period in order to exclude the long-term threat of revision of the verdict (decisions of the Constitutional Court of the Russian Federation of July 17 2002 No. 13-P, dated May 11, 2005 No. 5-P, dated September 5, 2007 No. 2-P; ruling of the Constitutional Court of the Russian Federation dated December 8, 2011 No. 1616-0-0).

A turn for the worse when revising a court decision in cassation and supervisory procedure is possible only within one year from the date the contested final decision enters into legal force. The one-year period for supervisory review of court decisions is one of the preventive periods. This requirement also applies to the date of the decision by the court of cassation, the supervisory instance, which, in the event of a turn for the worse, cannot be issued after one year, even if the deadline was missed for a good reason.

The res judicata principle refers to the privilege of protection, releasing a person from the threat of criminal prosecution after the expiry of one year. This guarantees the legal certainty and irrefutability of the judgment.

Having considered the criminal case on the basis of the appeal against court orders, by which a former serviceman of the Directorate of the FSB of Russia, a major in reserve V., was found not guilty of committing a crime under Part 3 of Art. 327 of the Criminal Code of the Russian Federation, Judicial board on cases of military personnel of the Supreme Court of the Russian Federation dismissed the cassation presentation of the Deputy Prosecutor General of the Russian Federation, since the one-year period provided for by Art. 401 6 of the Code of Criminal Procedure of the Russian Federation (determination of the Supreme Court of the Russian Federation dated February 25, 2016 No. 201-udp16-1).

The principle of legal stability and legal certainty, acting in civil and arbitration proceedings, cannot be fully applied to public relations regulated by the criminal procedure law. The principles of legal stability and legal certainty of judicial decisions are of absolute importance only in civil and arbitration proceedings. Decisions of the ECtHR or the Constitutional Court of the Russian Federation, limiting the possibility of correcting a miscarriage of justice on exonerating grounds does not exist. Thus, in the Ryabykh v. Russian Federation case, the ECHR considered the issue of violation of her rights due to the refusal of the respondent state to compensate for the financial damage incurred as a result of inflation (judgment of the ECHR of July 24, 2003). The Constitutional Court of the Russian Federation, discussing issues of legal certainty, considers the application of the Civil Procedure Code of the Russian Federation (Resolution of the Constitutional Court of the Russian Federation of February 5, 2007 No. 2-P). When referring to legal certainty in its decisions related to criminal cases, the Constitutional Court of the Russian Federation refers only to the ruling on the possibility of turning for the worse when revising a verdict that has entered into legal force (ruling of the Constitutional Court of the RF dated May 11, 2005 No. 5-P).

The prohibition on the correction of a miscarriage of justice after a certain period of time, which does not allow improving the situation of the convicted person or acquitting the innocent, does not correspond to the purpose of criminal proceedings, which are aimed at protecting an individual from unlawful and unfounded accusations, convictions, restricting his rights and freedoms, refusing to prosecute innocent persons, release them from punishment, rehabilitation of everyone who was unreasonably subjected to criminal prosecution (Article 6 of the Code of Criminal Procedure of the Russian Federation).

Pointing to the specifics of the criminal process, which determines the peculiarities of the application of the extraordinary appeal procedure in comparison with the civil and arbitration process, The Constitutional Court of the Russian Federation called, in particular, “taking into account the degree of suffering by a person erroneously convicted of committing a crime, adverse consequences arising from a miscarriage of justice” (Resolution of the Constitutional Court of the Russian Federation of March 25, 2014 No. 8-P).

For domestic criminal proceedings, it is traditional to correct judicial errors that are not associated with a turn for the worse on decisions that have entered into legal force, regardless of the time frame for detecting such errors. An example is the rehabilitation revisions that took place many decades later, in cases considered in the USSR during the years of repressions in the 30s, 40s and 50s. XX century, as well as the ongoing correction of errors in general criminal cases.

For example, on July 21, 2010, the Supreme Court of the Russian Federation revised the verdict against Ch. That entered into force on October 31, 1942.The Supreme Court of the Russian Federation concluded that the court, having correctly established the factual circumstances of the crime committed by Ch., Gave them an incorrect legal assessment, qualifying his actions under Art. 58 14 of the Criminal Code of the RSFSR as counterrevolutionary sabotage, although the case file does not contain evidence of the convict's counterrevolutionary intent aimed at weakening the power of the government and the activities of the state apparatus, therefore the sentence against the convict was changed: the actions of Ch. Were reclassified by the Supreme Court of the Russian Federation to Part 1 of Art. ... 72 of the Criminal Code of the RSFSR, which provides for liability for forgery of documents representing certain rights and exempting from duties (resolution of the Presidium of the Supreme Court of the Russian Federation of July 21, 2010 No. 201p10pr).

In connection with the cancellation by Federal Law No. 518-FZ of December 31, 2014, of a one-year term, not associated with a turn for the worse, for supervisory appeal of court decisions in criminal cases, the Supreme Court of the Russian Federation indicated that the revision of sentences, rulings, court decisions that entered into force until January 1, 2013, carried out in accordance with the provisions of Art. 4 of the Code of Criminal Procedure of the Russian Federation in the manner prescribed by Ch. 47 "and 48" of the Code of Criminal Procedure of the Russian Federation, on complaints, representations of persons who have not previously appealed these court decisions in the order of supervision according to the rules of Ch. 48 of the Code of Criminal Procedure of the Russian Federation, or did not exercise their right of appeal in full. In this case, the complaint, the presentation is submitted to the appropriate court of the cassation instance, in which the court decision was not previously appealed, or to the supervisory instance court (clause 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 28, 2014 No. 2).

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