Written cassation proceedings

Cassation consideration

According to Part 1 of Art. 434 of the Code of Criminal Procedure, cassation proceedings are carried out in accordance with the rules for consideration in the court of appeal, taking into account the specifics provided for in Chapter 32 of the Code of Criminal Procedure. In turn, part 1 of Art. 405 of the Code of Criminal Procedure also has a blanket disposition and refers to § 3 of Chapter 28 of the Code of Criminal Procedure. Thus, the legislator unifies all the designated review procedures, which is important for the stability of the administration of justice, but at the same time, the necessary deviations are introduced, related, for example, to prohibition to investigate evidence during the cassation hearing, that is, the court cassation instance not entitled to interrogate witnesses, experts and the like.

is intended for conducting cassation proceedings while the presiding judge opens the court session and announces its beginning.

Secretary court session in accordance with Art. 342 of the Code of Criminal Procedure reports to the court which of the participants in the court proceedings, summoned and notified, appeared at the court session, establishes their identity, checks the powers of defense lawyers and representatives, finds out whether summonses and messages were served on those who did not arrive, and reports the reasons for their non-arrival, if they are known.

Also, the secretary of the court session informs about the implementation of the full fixation of the court proceedings, as well as the conditions for its fixation. At the same time, under the full fixation of judicial proceedings in accordance with Part 5 of Art. 27 of the Code of Criminal Procedure should be understood as fixing it with the help of a technical means. Fixing criminal proceedings with the help of technical means in case of non-arrival of participants in court proceedings in accordance with Part 4 of Art. 107 of the Code of Criminal Procedure is not implemented.

After that, the presiding judge announces the composition of the court, the names of the prosecutor, victim, civil plaintiff, convicted (accused, suspect), defense counsel, civil defendant, representative, interpreter, secretary of the court session, explains to them the right to challenge and finds out if they challenge someone. The issue of challenge decided by the court in accordance with Article.Article. 75-81 Code of Criminal Procedure.

The bailiff shall provide the persons who take part in the preparatory proceedings with a memo on their rights and obligations under the Code of Criminal Procedure. After familiarizing the participants in the court proceedings with the monument, the presiding judge finds out whether they have become familiar with its content, and also whether their rights and obligations are clear to them, if necessary, if there are questions regarding the content of the monument, he additionally explains them.

After that, the court proceeds to resolve the petitions of the participants in the cassation proceedings, has the right to petition the court to attach documents to the case materials (for example, documents that confirm violations by the courts of the first and appellate instances of the norms procedural law), on the challenge of each judge individually or of the entire composition of the court, on the postponement of the cassation hearing in connection with the inability of the defense counsel, in cases where his participation is mandatory, on the challenge of the prosecutor, defense counsel, interpreter, secretary of the court session, on familiarization with the documents submitted other participants in the process. It should be taken into account that if a recusal has signs of abuse of the right to challenge in order to delay criminal proceedings, the court of cassation has the right to leave such an application without consideration (part 4 of article 81 of the Code of Criminal Procedure).

After performing the actions provided for by Art.Article. 342-345 of the Code of Criminal Procedure, and the decision of the petitions of the participants in the court proceedings, the reporting judge reports to the extent necessary the content of the court decisions that are being appealed, the cassation appeal and objections to it. The judge-rapporteur during the report is not entitled to express his opinion on the correctness or incorrectness of the application of the norms of substantive and procedural law by the courts of the first and appellate instances, assess the validity of the arguments of the cassation complaint, and speak on the legal assessment of the circumstances. He can do this by arguing his position during the final decision of the court in the deliberation room. The scope of the report on the contested court decisions should be determined by the reporting judge, taking into account the requirements of the cassation appeal and objections to cassation appeal, since it is in these procedural documents determine which part judgment appealed, in the interests of which person the cassation appeal and objections to it were filed, on what grounds the court decision is appealed. If the objections to the cassation appeal go beyond the scope of the cassation appeal, then the court decisions are reported to the extent that is determined from the text of the cassation appeal, and not the objections to it.

One of the differences between cassation proceedings and proceedings in a court of first instance is no litigation. This is due to the fact that the court of cassation is not entitled to examine the evidence. At the same time, in cassation proceedings, the parties are entitled to express arguments, which are statements (if necessary, in writing) of the participants in criminal proceedings in support of the cassation complaint, substantiation or incorrectness of the application by the courts of first and appellate instances of the norms of substantive and procedural law, legal assessment of the circumstances , objections to the appeal.

The law establishes a logical order for the presentation of arguments:

a) the person who filed the cassation complaint is the first to give arguments. All such persons are named in Part 1 of Art. 425 of the Code of Criminal Procedure and act within their procedural interests;

b) if the complaints were filed by both parties to the criminal proceedings, the arguments of the participants in the trial from the side of the defense are the first to express their arguments, since the arguments of the representatives of the defense are always aimed at canceling or mitigating the decisions of the courts of the first or appellate instances;

c) they are followed by arguments of other participants in the process, among which, within the limits of their procedural interests in the court of cassation, a civil plaintiff, a civil defendant, a representative of a civil plaintiff or a defendant, a legal representative of a civil defendant have the right to speak. The law literally does not establish the procedure for expressing objections to the cassation complaints of participants in court proceedings who have the right to do so and have expressed a desire to take part in the cassation consideration. In this case, it is quite logical, after the statement of the arguments of the cassation appeal by the person who filed it, to provide an opportunity to speak to those persons who filed objections to the cassation appeal to the court of cassation. Providing such an opportunity is the implementation of such general principles criminal proceedings, as competitiveness and access to justice (part 3 of article 21, part 1 of article 22 of the Code of Criminal Procedure). The right to participate in the consideration of the case in the court of cassation means that the person is guaranteed the opportunity to express objections to the cassation complaints of other participants, since participation in the consideration does not mean only presence during the trial, but also the opportunity to defend their own interests.

How general rule, the court should not set a time frame for the presentation by the participants in the judicial consideration of arguments in support of or objection to the cassation complaint. However, depending on the situation, the court, at the beginning of the session, by agreement of the parties, may limit the duration of the statement of arguments by setting the same period of time for all participants in the proceedings.

Non-arrival of the participants in criminal proceedings at the session of the court of cassation does not prevent the holding of the court session. Grounds for cassation consideration in the absence specified persons is the availability of information that these persons were notified of the date, time and place of the cassation hearing; the absence of a message by the indicated persons about the valid reasons for their non-arrival.

The cassation hearing is postponed if the participants in the criminal proceedings, whose participation:

It is mandatory according to the requirements of the Code of Criminal Procedure. For example, if a convict (accused, suspect) in custody, in a cassation complaint or petition, declared his desire to participate in the cassation hearing, or a cassation court received a petition to release the convicted (suspect, accused) from criminal liability. Participation of the parties to criminal proceedings and the victim in this case, in accordance with Part 1 of Art. 288 of the Code of Criminal Procedure is mandatory;

It is obligatory by the decision of the court of cassation. For example, a convict is subject to mandatory summons to a court session to participate in a cassation hearing if the cassation appeal raises the question of the deterioration of his situation. It should be noted that the presence of a petition of a participant in the trial about his desire to participate in the cassation session does not oblige the court to issue a court summons of such a person, since, according to Part 1 of Art. 134 of the Code of Criminal Procedure, the court has the right to summon such a person if it establishes that there are sufficient grounds to believe that such a person can give evidence that is relevant to criminal proceedings, or her participation in the procedural action is mandatory.

If a prosecutor or defense counsel, whose participation is mandatory, has not arrived at the court session, the court postpones the trial, determines the date, time and place of a new session and takes measures until they arrive at the court. In such a situation, the court must establish the reason for the non-appearance of the prosecutor or defense counsel, and if the reason for the non-appearance was disrespectful, the court may raise the question of the responsibility of the prosecutor or defense lawyer before the authorities that, according to the law, are authorized to bring them to disciplinary responsibility.

On the postponement of the cassation hearing, the court of cassation issues a ruling, which indicates which of the participants in the process did not appear at the court session, the reasons for non-arrival, a conclusion about the validity of the reasons for non-arrival, the date, time and place of the next court session, indicating the persons whose presence the court recognized mandatory, and a message about possible consequences non-attendance at the hearing.

The case is considered by a court of cassation composed of at least three professional judges (part 5 of article 31 of the Code of Criminal Procedure), and proceedings against officials who occupy a particularly responsible position, according to part 1 of art. 9 of the Law of Ukraine "On Civil Service", and persons whose positions are classified as the first category of positions of civil servants, is carried out collectively by a court consisting of seven professional judges with at least seven years of experience as a judge (p. 9, article 31 Code of Criminal Procedure).

After the end of the cassation consideration, the panel of judges goes to the deliberation room to make a court decision within the limits provided for in Art. 436 Code of Criminal Procedure. During the adoption of a court decision, no one, except for the composition of the court that considers the case, has the right to be in the deliberation room. The meeting may be interrupted by the court only for rest with the onset of night time; during the break, judges cannot communicate with persons who took part in criminal proceedings, as well as disclose the course of discussion and the adoption of a court decision in the meeting room. Judgment is adopted by the results of the meeting of judges by voting (by a simple majority of votes), from which none of the judges has the right to abstain. It should be noted that if the drafting of a judgment requires considerable time (due to the complexity of criminal proceedings), the court, in accordance with Part 2 of Art. 376 of the Code of Criminal Procedure has the right to confine itself to compiling and announcing the operative part of the court decision, which should indicate the time of the announcement of the full text of the decision, which is signed by the panel of judges. The full text of the resolution must be drawn up and announced to the participants in the court proceedings no later than five days from the date of the announcement of its operative part. In case of disagreement with the court decision (in whole or in part), each judge from the collegium has the right to express in writing a dissenting opinion, which is not announced at the court session, but is attached to the proceedings and is open for review. It should be noted that the possibility of a judge expressing a dissenting opinion is a guarantee of the implementation of the principles of equality, independence and objectivity of his legal position.

Written cassation proceedings

The court of cassation according to the first part of Art. 435 of the Code of Criminal Procedure has the right to make a court decision based on the results of written proceedings (as a result of studying the materials of criminal proceedings, the cassation complaint and documents attached to it, objections to the cassation complaint), if all participants in the judicial proceedings filed a petition to conduct proceedings in their absence.

According to Part. Art. 427 of the Code of Criminal Procedure, if a person does not want to participate in the cassation hearing, she notes this in the cassation complaint. She may also express such a decision in a separate petition. Even if the person did not say anything about her participation in the court session, the court of cassation cannot regard such “silence” of the complainant as his unwillingness to participate in the cassation hearing. At the same time, the person filing an objection to the cassation appeal, according to Part 3 of Art. 431 of the Code of Criminal Procedure should indicate whether she wants to take part in the cassation hearing or not. If such a person has not noted anything in her objection, the court has the right to regard such "silence" of the person as unwillingness to participate in the court session of the court of cassation.

A situation may arise when all the participants in the court proceedings filed a motion to conduct the proceedings in their absence. In this case, the court has the right to conduct a cassation hearing in written proceedings on the basis of studying only the cassation complaint, objections to the cassation complaint and other documents.

In written proceedings, the judge-rapporteur in accordance with Part 2 of Art. 434 of the Code of Criminal Procedure during the cassation hearing reports to the extent necessary the content of the cassation complaint, the content of the decision that is being appealed, objections to the cassation complaint. Since there is no procedure for expressing arguments by the participants in the proceedings in written proceedings, after the reporting judge has performed the actions provided for in Part 2 of Art. 434 of the Code of Criminal Procedure, having discussed the arguments and proposals, the panel of judges issues a ruling. The court notes the consideration of the case in the order of written cassation proceedings in the introductory part of the decision.

The application of the written cassation procedure is a right, not an obligation, of the court. Therefore, logically, the court of cassation, even if there were grounds for the application of written proceedings, could find it necessary to hold a court session with the summons of the persons participating in the proceedings. Such a procedure is provided for in Part 2 of Art. 406 Code of Criminal Procedure for written appeal proceedings when the court appoints the case for appellate consideration in the court session. However, there is no such provision in Art. 435 of the Code of Criminal Procedure, since the court of cassation, by virtue of Art. 436 of the Code of Criminal Procedure does not have the power to pass judgment. So, having grounds for written cassation proceedings, the court must conduct it without changing the procedure.

According to part 4 of Art. 107 of the Code of Criminal Procedure, fixing by means of technical means of criminal proceedings in court during court proceedings is mandatory. However, if all the persons participating in the court proceedings do not arrive at the court session, or if, in accordance with the provisions of the Code of Criminal Procedure, the court proceedings are carried out by the court in the absence of persons, the recording of criminal proceedings in court with the help of technical means is not carried out. Therefore, the written cassation proceedings technical means is not fixed.

A copy of the court decision of the court of cassation, adopted as a result of written proceedings, shall be sent to the participants in the court proceedings within three days from the date of its signing.

Private ruling of the court of second instance .............................................. .... 21

Cassation verification of sentences and decisions of the jury ...... 22

Literature................................................. ................................................. ..... 24

Introduction.

Cassation proceedings are legally regulated activities for appealing and protesting those who have not entered into legal

the force of court decisions (verdicts, rulings, resolutions), consideration by the court of second instance of criminal cases on cassation complaints and protests and the decision by it of the issue of the legality and validity of the appealed or protested sentence, court ruling or judge's decision.

Complaints about not joining legal effect the sentence is submitted by persons whose interests are related to the decisions made in the sentence - convicted, acquitted, victims, civil plaintiff, civil defendant and, accordingly, defense lawyers, representatives of these persons, and is referred to as cassation appeal, and the prosecutor's protest cassation protest.

Presence of a cassation complaint, cassation protest - necessary condition for the consideration of the case in cassation. Filing a cassation complaint or protest within the time limit established by law and to the appropriate judicial body obliges the court of second instance to consider the case, regardless of whether the arguments of the complaint or protest are correct.

The filing of a cassation complaint activates the legal mechanism for protecting the rights of citizens, the rights whose legitimate interests are connected with the decisions made in the verdict, obliging the court of second instance to establish whether the verdict is just, give a reasoned answer to each argument of the complaint, take measures to eliminate violations of rights and protected the law of the interests of these persons, ensuring the legality and validity of the appealed decision.

Not only bringing a cassation protest, but also a cassation appeal has public legal significance, since it helps to ensure that only lawful and justified sentences are executed, which is necessary both in the interests of the individual and in the interests of justice. The right of citizens to appeal to the courts decisions and actions (inaction) of state bodies has constitutional significance (Part 2, Article 46 of the Constitution of the Russian Federation). Accordingly, the right of citizens provided by law to appeal against sentences (court rulings, judge's decisions) in cassation is their constitutional right.

Cassation proceedings serve to solve important problems, which determines it meaning:

- it contributes to the achievement of the legality and validity of sentences (as well as court rulings, judge decisions), including those. which have not been appealed and protested, since the very possibility of appealing, challenging a court decision, considering a case by a court of second instance has a preventive effect, prompting the court, the prosecutor, and the investigating authorities to comply with the law. Cassation proceedings serve to identify violations of the law even before the sentence enters into force, i.e. (compared to supervisory review of sentences) most promptly;

· helps to ensure that unlawful and unjustified sentences (court rulings, judge's decisions) are not allowed to be enforced;

· it serves to supervise judicial activities by higher courts, of which it is an important form. Considering cases in cassation, the courts identify mistakes made in the proceedings, violations of the law, and their causes; give instructions for their elimination; motivated reject cassation appeals. protests when there are grounds for it, thereby contributing to the uniform application, strict observance of the law in the judiciary To investigative practice;

At the stage of cassation proceedings, the task of ensuring the rights and legitimate interests of the individual - the defendant, acquitted, victim, civil plaintiff, civil defendant, is solved, since these persons have the right to appeal the verdict on any issue, the solution of which infringes on their rights and legally protected interests, and the court of second instance is obliged to consider these complaints, identify the violations of the rights and interests of these persons, take measures to eliminate them and prevent such violations in the future. The named production is a significant criminal procedural guarantee of the rights and interests of the individual;

· cassation proceedings as a procedural form of supervision over the legality of the activities of the courts, and on this basis, the activities of the investigative bodies serve to ensure the rule of law in the criminal process as a whole.

Main features of cassation.

The cassation proceedings in Russia are inherent in the beginnings, which are usually called characteristic features cassation. In these features, they find a specific - determined by the characteristics of the tasks of this stage of the process - a manifestation of the principles inherent in the criminal process as a whole, including cassation proceedings. Let's take a look at these features.

Freedom of appeal. The right to appeal in cassation is granted to all subjects, the protection of whose rights and interests is connected with the decisions made in the verdict: the defendant (convicted), the acquitted, the victim, the civil defendant, the civil plaintiff (the said right also belongs to the defender and representatives of these persons, respectively).

Reflecting the provisions of the International Covenant on Civil and Political Rights. The Constitution of the Russian Federation established: “Everyone convicted of a crime has the right to review the sentence by a higher court in the manner prescribed by federal law ...” (part 3 of article 50).

All persons whose interests are related to the decisions taken in the judgment may appeal any violation, infringement of their rights and legitimate interests: concerning both the application of the law and the establishment of the factual circumstances of the case (the right to appeal against both the groundlessness of the sentence and its illegality). They have the right to appeal the verdict of any court, except for the verdicts of the Supreme Court of the Russian Federation.

They provide freedom of appeal and rules on the prohibition of transformation for the worse, protecting the defendant (convicted), acquitted from the threat of aggravating his position as a result of bringing them, as well as the defender, the legal representative of the cassation complaint. The freedom of cassation appeal is also facilitated by the simplicity and accessibility of the appeal procedure (the absence of mandatory requirements for the form of a cassation complaint; the right to present a complaint in their native language or freely chosen language of communication if the complainant does not speak the language in which the proceedings are conducted, etc.). It is allowed to withdraw an already filed cassation appeal.

Auditing nature of the cassation check. This concept defines a feature characteristic of cassation, which consists in the fact that the court of second instance is obliged to consider each criminal case in full: not limited to the arguments that are given in the cassation complaint or in the cassation protest, as well as those of the convicts who brought the cassation complaint or in respect of which a cassation protest has been brought. This contributes to the identification of all violations of the law, mistakes made in the case considered by the court of second instance. Only under this condition can cassation proceedings contribute to ensuring the legality and validity of sentences.

Checking both the legality and validity of the sentence: in the cassation procedure, it is checked whether the requirements of the law were observed during the proceedings in this criminal case, and also whether the factual circumstances of the case were established correctly, whether the conclusions of the court correspond to objective reality, whether the court established the truth in the verdict (hence, each case is considered in relation to all stipulated in grounds for annulment, change of sentences).

A comprehensive check is necessary to solve the problems that cassation proceedings serve.

Presentation (reclamation) of new materials. The court of second instance verifies the legality and validity of the verdict both on the basis of the materials available in the case and on the materials additionally provided by persons enjoying the right to cassation appeal and cassation appeal. Such materials may be submitted both before and during the consideration of the case by the court of second instance, but before the procurator gives an opinion. The purpose of submitting new (additional) materials is to confirm the arguments of one's cassation complaint or cassation protest, as well as to refute the arguments of the complaint filed by another subject, or the arguments of the protest. New (additional) materials may be requested by the court of second instance both on its own initiative and at the request of persons enjoying the right to cassation appeal (protest). Unacceptable as new materials, the receipt of which requires the commission of investigative actions (protocols of interrogation, search, expert opinion), since these actions are lawful only during preliminary investigation and inquiry, in the judicial investigation, which have already been completed. Other materials: references, characteristics, expert opinion, etc. can be presented and also claimed as new materials.

Prohibition (inadmissibility) of a turn for the worse(prohibition of transformation for the worse) - the inadmissibility of aggravating the position of the convicted, acquitted (in comparison with the sentence) as a result of bringing a cassation complaint to the convicted, acquitted, their defense counsel, legal representative.

This is one of the most important guarantees of the right of a convicted person acquitted to cassation appeal, since the threat to aggravate his position as a result of an appeal against the verdict could force these persons to refuse to apply to the court of second instance, even if their rights and legal interests are violated by the verdict.

The prohibition of a turn for the worse also serves the interests of justice, because the filing of a cassation complaint helps the court of second instance to identify violations of the law, mistakes made in this case, and thus prevents the entry into force and execution of illegal and unreasonable sentences.

The law established the prohibition of transformation for the worse not as general rule, and specifically, relating it: to the criminal-legal qualification; measure of punishment; the factual side of the accusation (prohibition to expand it, aggravate it);

conditions for the annulment of an acquittal (Articles 340, 341, 350, 353 of the Code of Criminal Procedure) - that is, in relation to the main decisions for the convicted (acquitted) made in the verdict.

The said prohibition does not exclude the adoption - when considering a case on a cassation complaint of a convicted, acquitted, their legal representative, defense counsel - a decision less favorable for the convicted, for example, in a civil suit, while, however, obligatory condition that a change in the decision on a civil suit will not affect the change in the criminal law qualification or the scope of the charge in the direction that worsens the position of the convict (see: BVSS, 1984, No. 1).

The prohibition of transformation for the worse is that:

1. The court of second instance itself, having considered the case, is not entitled to increase the punishment, apply the law on a more serious crime, or change the factual side of the charge to a more serious one.

This is also unacceptable when considering a case based on a prosecutor's cassation protest, or on a cassation appeal by any of the persons exercising the right to bring it.

2. The cassation instance is not entitled, having considered the case on the complaint of the convicted, acquitted, their legal representatives, defenders

a) cancel the verdict and send the case for a new trial on the grounds of lenient punishment, the need to apply the law on a more serious crime, and aggravate the factual side of the charge. Cancellation of the sentence on the above grounds is admissible only on the condition that the case is considered on the basis of the cassation protest of the prosecutor, on the basis of the cassation complaint of the victim; they were brought on the grounds of the leniency of the punishment, or the need to apply the law on a more serious crime, aggravation of the actual side of the charge,

b) cancel the acquittal. Cancellation of an acquittal is possible only on the cassation protest of the prosecutor, the cassation complaint of the victim, brought specifically for acquittal, or on the complaint of the acquitted himself.

3. If the verdict was canceled and the case was transferred for a new trial on the complaint of the convicted, acquitted, their legal representatives, counsel, the court retriing the case is not entitled to: apply the law on a more serious crime; aggravate the factual side of the accusation (incriminate new episodes, recognize an aggravating circumstance as proven, etc.), even if this does not entail the application of the law on a more serious crime; increase the punishment convict a person acquitted by the original sentence.

Prohibition of transformation for the worse It does not work upon annulment of a guilty verdict only in the case when, with a new investigation case, “circumstances testifying to the commission by the accused of a more serious crime” will be established (Article 353 of the Code of Criminal Procedure). For example, it will be established that the accused committed another theft that was not revealed during the initial investigation of the case. A crime is recognized as more serious if the newly established circumstances make it necessary to apply the law on a more serious crime to the actions of the accused or aggravate the gravity of the guilt of the accused with the same qualification of his actions.

If the original verdict was canceled upon protest by the prosecutor or on the complaint of the victim, brought precisely because of the leniency of the punishment or on the grounds of the need to apply the law on a more serious crime, the verdict was canceled precisely on these grounds - when the case is retried, aggravation of punishment is permissible, application of the law on more serious crime. Moreover, the latter is admissible only if the sentence is canceled in due to the need to apply the law on a more serious crime

The revision nature of the cassation check, therefore, does not mean the right of the court of second instance to make any decision corresponding to the violations it has identified. The adoption of the decision is limited by the prohibition of transformation for the worse (thus, having established in the audit procedure the incorrect application to the actions of the convict instead of part 2 - part 1 of article 158 of the Criminal Code, the court of second instance will not be able to overturn the verdict on this basis if the case was considered on the complaint of the convict).

Broad powers of the court of second instance. This is determined by the tasks facing the court of second instance, the need to ensure the most rapid, prompt elimination of errors and violations that led to the illegality and groundlessness of the sentence. In the cassation procedure, the court has the right not only to cancel the verdict and refer the case for a new investigation or a new trial, but also directly change the verdict, as well as cancel it and dismiss the case. He has the right to give obligatory instructions for the bodies of inquiry, preliminary investigation and for the court of first instance, which serve to eliminate the identified violations of the law (Article 352 of the PC).

Subjects of the right to cassation appeal and protest against sentences.

The subjects of the right to cassation appeal are:

- convict, his legal representative, defender.

In the interests condemned sentence may be appealed by any of these persons. At the same time, the grounds for these cassation complaints may not coincide. The defender is an independent subject of rights. He has the right to file a cassation appeal on his own initiative. The convicted person cannot withdraw his complaint, but he has the right to refuse a defense counsel, which will entail (in the absence of other cassation complaints or a prosecutor's protest) the termination of the proceedings in the cassation procedure. Such consequences will not occur if, in cases in which the refusal of the defendant from the defense counsel is not obligatory for the court, the court of second instance rejects the refusal of the accused from the defense counsel. Even if the defender sees no grounds for appealing the verdict, he is obliged to bring a cassation complaint on behalf of the convicted, acquitted, who believe that the verdict should be appealed;

- the victim, his representative; as well as the civil plaintiff, the civil defendant and their representatives, who have the right to appeal the verdict in part civil action. If the verdict establishes the infliction of harm to a citizen who was not recognized as a victim, the court that passed the verdict, in the event of a complaint from such a citizen, must, in the manner established by Section Three of the Code of Criminal Procedure, issue a ruling on recognizing him as a victim;

- justified has the right to appeal the grounds for acquittal (believing, for example, that he should be acquitted due to the absence of an event of a crime, and not a crime) and motives for acquittal (demanding to exclude from the sentence any wording that calls into question his innocence, etc.). The acquitted may also appeal against other decisions contained in acquittal(for example, about physical evidence). In favor of the acquitted, a cassation complaint may be brought by the defense counsel, his legal representative.

prosecutor obliged to appeal in cassation every an illegal and unjustified sentence, no matter whose (convicted or acquitted, etc.) interests it violated. When protesting sentences, the prosecutor must be objective (he is equally obliged to protest the sentence, both in case of its excessive leniency and severity, etc.). A protest may be brought: by the prosecutor and his deputy - regardless of participation in litigation cases in the court of first instance; assistant prosecutor, prosecutor of a department, department - only in cases in which they participated (Article 36 of the Law on the Prosecutor's Office).

Persons enjoying the right to cassation appeal and protest against sentences have a number of rights:

- know about bringing a cassation complaint, cassation protest, if the complaint, protest concerns the interests of this subject (the victim or the civil plaintiff, civil defendant), and the convicted, acquitted - in all cases;

Get acquainted with the proceedings on the case, with the received cassation complaints, cassation protest;

Submit your objections to them, bring - before the start of the consideration of the case by the court of second instance - an additional cassation complaint, as well as written objections to additional cassation complaints, an additional cassation protest;

Petition before the court that passed the verdict on the restoration of the cassation term if it is missed for a good reason, as well as appeal to the court of second instance the decision of the judge to refuse to satisfy this petition;

Submit new materials to the cassation instance, petition the court of second instance for their reclamation.

Persons who filed cassation appeals have the right to know about the day of the case consideration in the court of second instance, and if the case is considered in the Supreme Court of the Russian Federation - if they request such notification. They may, in case of appearance, participate in the session of the court of second instance, give explanations, file challenges, file petitions. The convicted, acquitted person has the right, at their request, to receive a copy of the cassation protest, the cassation complaint of the victim.

Procedure and term for filing a complaint or protest

In the cassation procedure, sentences, rulings, rulings are appealed and protested to a higher (in relation to the court that issued the sentence, ruling, ruling) court. The term for appeal, protest against the verdict - referred to as cassation period - seven days from the date of pronouncement of the verdict, and for a convict held in custody - from the day of handing him a copy of the verdict. The expiration of this period deprives the right to cassation appeal, protest.

If the cassation deadline is missed for good reasons (natural disaster, illness, untimely preparation of the minutes of the court session, delay in considering comments on the minutes of the court session, etc.), you can petition the court that delivered the verdict for missed deadline recovery The petition is resolved in the court session by the judge alone, who has the right to summon the person who filed the petition to give explanations. The decision of the judge to refuse to satisfy the petition may be appealed or protested to a higher court, which is entitled, if there are grounds, to restore the missed period and consider the case.

A cassation complaint, a cassation protest are brought through the court that passed the verdict, which helps the court already at this stage to analyze the violations of the law (if any) so as not to repeat them. Filing a cassation appeal or protest directly to a higher court does not prevent their consideration.

For the purpose of a one-time consideration by the court of all cassation complaints and a cassation protest in one case, and, therefore, the most complete consideration by the court of all the arguments before it adopts a cassation ruling, the court that delivered the verdict sends the case together with complaints and protest to the cassation instance after the expiration of the cassation period . During this period, the case cannot be demanded from the court, which guarantees the subjects of the right to cassation appeal and protest the opportunity to familiarize themselves with its materials.

Since after consideration of the case by the cassation instance, the verdict (if it is not canceled) will enter into force (and, therefore, cannot be the subject of a cassation check), the rule applies: if for some reason the cassation complaints of some persons or the cassation protest go to the court of the second instance after considering the case on the complaints of other persons, the court of cassation sends the case to the chairman of the court, who is entitled to protest against the sentence that has entered into legal force, so that the cassation ruling is canceled, and then all complaints and the protest are considered simultaneously, which contributes to completeness, comprehensiveness cassation check.

Cassation complaint and cassation protest

TO cassation complaint requirements are made: filing it by a person enjoying the right to cassation appeal; to the appropriate higher court; through the court that issued the verdict or directly to the court of second instance; within the period prescribed by law. A cassation appeal filed in compliance with such requirements (as well as a cassation protest) obliges the court of cassation to consider the case.

This court must take into account, analyze each argument of the cassation complaint, protest. The filing of a cassation complaint (and a cassation protest) suspends the execution of the sentence, and, moreover, in all its parts. This requirement of the law is due to the need to check each sentence in full (in a revision order), which may lead to its cancellation or change in the part in which the sentence has not been appealed (or protested).

Cassation protest - a substantiated request of the prosecutor addressed to the court of second instance to verify the verdict that has not entered into legal force, indicating the arguments confirming its illegality and groundlessness, as well as the adoption by the court of a decision that will ensure (in the opinion of the prosecutor) a lawful and reasonable resolution of this criminal case.

A cassation protest must be brought in every case when the legality and validity of the sentence raises reasonable doubts in the prosecutor (see, for example, Article 345 of the Code of Criminal Procedure). It indicates all violations of the law identified by the prosecutor (even if one of them is enough to cancel the sentence), which is important in order to prevent violations of the law.

Terms and procedure for consideration of cases in the cassation instance

Guaranteeing the interests of a person who has the right to bring a cassation complaint; solution of the problems of the criminal process, the Code of Criminal Procedure established the terms and procedure for the consideration of criminal cases in the cassation instance.

The Supreme Court of the Republic, the regional, regional, city court, the court of the autonomous region and the autonomous district, as well as the military courts must consider the case on a cassation complaint or protest no later than ten

days, and Supreme Court RF - no later than one month from the date of its receipt (Article 333 of the Code of Criminal Procedure). A thorough study of the materials of a criminal case by judges is a condition for its correct resolution on a cassation complaint (protest). Therefore, the possibility of extension is provided, in case of particular complexity of the case and in other exceptional cases, the term named by the decision of the chairman of the regional (and corresponding) court, but not more than ten days. The Chairman of the Supreme Court of the Russian Federation or his deputy has the right to extend the term for the consideration of the case in this court by his decision for no more than one month. If the term is extended, the persons participating in the case shall be notified of this in advance.

Consideration of the case in the cassation procedure is carried out in accordance with the principles of the criminal process, including - in an open trial; with the independence of judges and their subordination only to the Constitution of the Russian Federation and federal law; providing the accused with the right to defense; collectively.

When considering a case in cassation can participate all persons who are subjects of the right to cassation appeal and protest. The Supreme Court of the Russian Federation notifies of the day of consideration of the case in the cassation procedure those participants who who asked for it in cassation complaints or in objections to a protest or complaint. Not later than three days prior to the consideration of the case in the cassation procedure, an announcement about the time of its consideration must be posted in the court.

Failure to appear of the said persons notified of the day of the consideration of the case shall not prevent its consideration.

The question of the participation of the convict is decided by the court considering the case in cassation. Having recognized the participation of the convict as necessary, the court shall take measures to ensure his appearance. Personal participation of the convict in the session of the court of cassation may have importance For right decision the question of the legality and validity of the appealed (protested) verdict. Therefore, the court of cassation must carefully, objectively decide whether the participation of the defendant in the court session is necessary. A convicted or acquitted person who appears at the court session shall be allowed to give explanations.

The consideration of the case in cassation without the participation of a defense counsel who promptly informed the court of the desire to give explanations to the court of second instance is a violation of the right of the convicted or acquitted to defense, which entails the cancellation of the cassation ruling.

The participation of the prosecutor in the consideration of cases on cassation complaints and protests is not mandatory in all cases.

Case procedure the court of second instance established Art. 338 Code of Criminal Procedure. The presiding judge opens the court session and announces which case, on whose cassation appeal or protest is subject to consideration, ascertains who appeared and whether the persons who did not appear were promptly notified of the day of the court session. The court decides whether it is possible to consider the case in the presence of participants in the proceedings who did not appear. If any of the participants in the proceedings was not notified in time about the day of the consideration of the case, the consideration of the case is postponed.

Continuing the court session, the presiding judge announces the composition of the court, the names of the prosecutor and interpreter, and asks if there are challenges. The grounds and procedure for resolving challenges are the same as in the trial in the court of first instance. Having found out whether the persons who have appeared have petitions, the court resolves them by its own ruling.

After that, one of the members of the court reports the case: the merits of the case (in this case, in relation to each of the convicted or acquitted); arguments of the cassation appeal and (or) protest. The rapporteur judge is not entitled to prejudge the assessment of the arguments of the cassation protest, complaint with his report, as well as the decision of the court on the case. After the report, the prosecutor - if the case is heard on the protest of the prosecutor - substantiates his protest. In the case of submission of additional materials, the presiding judge or a member of the court shall announce them and submit them for review to the prosecutor and the persons specified in Art. 335 of the Code of Criminal Procedure, if they participate in the meeting. Following this, the convicted, acquitted, their defenders and legal representatives, the victim and his representative, as well as the civil plaintiff and the civil defendant or their representatives participating in the meeting, give explanations. This is not an interrogation of a convicted, acquitted, victim in order to obtain evidence. Explanations serve to substantiate, defend the position defended by this subject on the question of whether the sentence is legal and justified, whether it should be canceled, changed, left unchanged and why; clarification of this position by the court.

Following this The prosecutor gives an opinion. Having assessed the arguments of the cassation protest, cassation (cassation) complaint (complaints), as well as additional protest or complaints, objections to them, the data obtained during the verification of the verdict in the audit procedure, additional materials, explanations of the persons participating in the court session - the prosecutor makes a reasoned conclusion whether the sentence is lawful and justified; whether it is subject to cancellation, change, and if so, on what grounds. The conclusion of the prosecutor is not connected with the protest. However, he is obliged to take into account the rules on the prohibition of transformation for the worse. After the procurator gives a conclusion, the convicted, acquitted, defense lawyers have the right to give additional explanations. Then the court retires to the deliberation room to issue a ruling.

Prior to the commencement of the court session, the person who has appealed or protested against the verdict shall have the right to withdraw his cassation complaint or protest. The defender has the right to withdraw the cassation appeal filed by him on his own initiative, without the consent of the convicted person (but he is obliged to notify the convicted person about this).

The concept of cassation grounds, their types.

The cassation grounds are the violations committed in the case, which led to the adoption of an illegal and unreasonable sentence, or - give rise to doubts about its legality and validity. Their presence gives the court of second instance the right and obliges its sentence to cancel or change (subject to the prohibition of transformation for the worse).

The law provides for a system generalized on cassation grounds (Article 342 of the Code of Criminal Procedure), which avoids excessive formalization in the decision whether the court of second instance has the right to cancel the verdict (or change it), and at the same time - to cover all those violations that may be committed during the proceedings and should (subject to the aforementioned prohibition) entail the annulment of the sentence or its change.

Types of grounds for the cancellation or change of the sentence (cassation grounds)

1. One-sidedness or incompleteness of an inquiry, preliminary or judicial investigation - art. 343 Code of Criminal Procedure

2. Inconsistency of the conclusions of the court, set out in the verdict, the actual circumstances of the case - Art. 344 Code of Criminal Procedure

3. material breach criminal procedure law - art. 345 Code of Criminal Procedure

4. Incorrect application of the criminal law - art. 346 Code of Criminal Procedure

5. Discrepancy between the punishment imposed by the court, the severity of the crime and the personality of the convict - Art. 347 Code of Criminal Procedure

The system of cassation grounds specifies the content of the obligation of the court considering the case in cassation to check the "legality and validity" of the verdict and cancel or change the verdict if it is "illegal and unreasonable", thereby contributing to the unity of cassation practice; introduces certainty into the decision of the question of whether the sentence should be canceled (changed); orients organs

preliminary investigation, inquiry, court of first instance on the inadmissibility of violations of the law under the threat of recognizing them as cassation grounds; helps the subjects of the right to cassation appeal and protest decide whether they have grounds for appeal, protest against the verdict.

Consider each of the cassation grounds.

One-sidedness and incompleteness of inquiry, preliminary or judicial investigation(Clause 1, Article 342 and Article 343 of the Code of Criminal Procedure). An inquiry, preliminary or judicial investigation, which left unexplained such circumstances, the establishment of which could be of “essential importance” in passing the verdict, is recognized as unilaterally or incompletely conducted. Establishing whether there is a given cassation ground, the court of second instance evaluates the evidence and circumstances of the case and decides: whether the necessary evidence has been examined, whether all the circumstances included in the subject of proof in this case have been established; whether the requirement of a comprehensive, complete, objective examination of the circumstances of the case was observed (Articles 20, 68 of the Code of Criminal Procedure). The court of second instance, having revealed the one-sidedness, incompleteness of the inquiry, preliminary investigation, must check whether they are eliminated by the data of the judicial investigation.

Specifying the considered cassation grounds, Part 2 of Art. 343 of the Code of Criminal Procedure highlights violations in which there is always an incomplete inquiry, preliminary or judicial investigation:

1. Persons whose testimonies are essential to the case were not interrogated, or an expert examination was not carried out when it is mandatory by law, documents or material evidence of essential importance were not requested.

2. The circumstances specified in the ruling of the court or the decision of the judge who referred the case for additional investigation or for a new trial were not examined.

3. The information about the identity of the accused has not been established with sufficient completeness. The verdict can be based only on the evidence considered in the judicial investigation. Therefore, the basis under Art. 343 of the Code of Criminal Procedure, takes place,<сли при полно, всесторонне, объективно проведенном пред­варительном следствии или дознании существенные для дела доказательст­ва остались не рассмотренными в судебном следствии, и наоборот, данного основания не будет при условии, что неполнота, односторонность дознания, предварительного следствия, устранены при судебном следствии.

Inconsistency of the conclusions of the court, set out in the verdict, with the actual circumstances of the case(Clause 2, Article 342 and Article 344 of the Code of Criminal Procedure) takes place 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;

In the presence of conflicting evidence that is essential for the conclusions of the court, the verdict does not indicate on what grounds the court accepted one of these evidence and rejected others;

The conclusions of the court, set out in the verdict, contain significant contradictions that have affected or could have affected the solution of questions about the guilt or innocence of the convicted or acquitted, the correct application of the criminal law or the determination of the punishment (Article 344 of the Code of Criminal Procedure).

This cassation ground covers situations where, having considered evidence sufficient for a full, comprehensive and objective examination of the circumstances of the case, the court, for example, found the defendant guilty and delivered a guilty verdict, while the evidence was insufficient for an indisputable conclusion about the guilt of the defendant; the court did not take into account the circumstances established by it, indicating that the defendant had no intent and therefore erroneously qualified his actions as a premeditated murder, and not committed through negligence.

The basis under consideration is also applied, for example, in a situation where the court based the verdict on the testimony of a witness exculpating the defendant and did not explain on what grounds it rejected the testimony of the witness, exposing the defendant of committing a crime. The absence of such motives in the verdict makes it impossible to check whether the court assessed the evidence correctly and, therefore, raises doubts about the validity of the verdict. The application of the cassation grounds provided for in Article 344 of the Code of Criminal Procedure may entail both the annulment of the sentence and its change.

Significant violation of criminal procedure law(Clause 3, Article 342 and Article 345 of the Code of Criminal Procedure). Is the identified violation of the criminal procedure law significant decided by the court of second instance. But his decision is not arbitrary. The criterion for recognizing the specified violation as significant is established by law: the court must recognize the violation of the criminal procedure law as significant if this violation, by "depriving or restricting the rights of participants in the process guaranteed by law during the consideration of the case, or otherwise prevented the court from comprehensively examining the case and influenced or could affect the decision of the legal and a reasoned sentence" (Article 345 part 1).

This cassation ground obliges the court considering the case in cassation to check whether the criminal procedural rights of the individual, the right of the accused to defense, have not been violated.

In accordance with Art. 345 of the Code of Criminal Procedure, a violation of the criminal procedure law is significant when it is not only affected but it could influence on the legality and validity of the sentence, ie. when, due to the violation of the criminal procedure law, the legality and validity of the sentence raises doubts.

When evaluating whether the violation of the criminal procedure law is significant, the court must take into account the specific circumstances of the case. Recognizing that the violation of the criminal procedure law is significant, the court is obliged to recognize the existence of a cassation ground and, therefore, to cancel the sentence (or change it). Thus, the interrogation of a witness without explaining his rights and obligations is always a violation of the criminal procedure law. If the testimony of such a witness is taken as the basis of the verdict, the violation is significant, but if the testimony of this witness does not, in essence, matter when the court decides what the verdict should be (accusatory or acquittal), as well as for other decisions provided for in Art. 303 of the Code of Criminal Procedure - the above violation will not be significant. Such violations conditional significant violations of the criminal procedure law.

At the same time, such violations of the criminal procedure law are possible, which in all cases, regardless of the specific circumstances of the case, at least give rise to doubts about the legality and validity of the sentences, that is are always significant. That is why the law (part 2 of article 345 of the Code of Criminal Procedure) singled out such violations:

1. Non-termination of a criminal case if there are grounds provided for in Art. 259 Code of Criminal Procedure.

2. Sentencing by an illegal composition of the court.

3. Consideration of the case in the absence of the defendant in cases where, by law, his presence is mandatory.

4. Consideration of the case without the participation of a defense counsel, when, by law, his participation is mandatory.

5. Violation of the secrecy of the meeting of judges when passing the verdict.

6. The verdict is not signed by any of the judges.

7. There is no record of the court session in the case.

The given violations - undoubtedly significant violations of the criminal procedure law. The list of such grounds can be expanded (on significant violations of the criminal procedure law, see also § 4 of chapter 17 of the textbook).

Misapplication of criminal law(Clause 4, Article 342 and Article 346 of the Code of Criminal Procedure). This cassation ground takes place in the case of:

Failure of the court to apply the law that was subject to application;

Application of a law that was not applicable;

Misinterpretation of the law, contrary to its exact meaning.

A fairly typical variant of the considered cassation grounds is errors in the criminal-legal qualification of the actions of the accused (convicted). Having established the incorrect application of the criminal law, the court changes the sentence or cancels it (within the limits of the prohibition of transformation for the worse).

Inconsistency between the punishment imposed by the court, the severity of the crime and the personality of the convict(Clause 5, Article 342 and Article 347 of the Code of Criminal Procedure). The selection of this cassation ground as an independent one is important. This focuses the attention of the court on its obligation to individualize the measure of punishment; impose a punishment that will fair. Provided by Art. 347 of the Code of Criminal Procedure, there is a cassation ground when the punishment, although it does not go beyond the limits provided for by the criminal law sanction (otherwise, Article 346 of the Code of Criminal Procedure would have to be applied), but “in terms of its size, it is clearly unfair, both due to leniency and due to severity” - art. 347 Code of Criminal Procedure. The presence in the law of an indication of explicit the unfairness of the sentence should ensure that such changes (in terms of punishment) are not made to the sentence, the need for which is difficult to establish in the conditions of the activity of the court of second instance and which, therefore, could be unreasonable. This cassation ground entails (subject to the prohibition of transformation for the worse) the abolition of the sentence or its change.

So, the cassation grounds, which are provided for in Articles 343, 344, 347 of the Code of Criminal Procedure, specify the groundlessness of the sentence; provided by Articles 345, 346 of the Code of Criminal Procedure - its illegality.

Evaluation of evidence by the court of second instance

Considering the case in cassation, the court must evaluate all available evidence. At the same time, he is guided by the requirements of Article 71 of the Code of Criminal Procedure, common for the assessment of evidence. The court of second instance, checking the legality and validity of the sentence, evaluates the evidence according to its inner conviction.

Evaluation of evidence is always a purposeful process, subject to the tasks that are solved at each given stage of the process. The court of second instance evaluates the evidence in order to conclude whether this sentence is lawful and justified, whether there are grounds for its annulment or change, and also to decide what kind of determination should be made if the sentence is declared illegal and unreasonable, which while giving instructions, etc. To this end, he checks whether the requirements of the law have been observed when collecting, verifying and evaluating evidence; establishes whether the evidence on which the court based the verdict is relevant and admissible; establishes whether evidence that could affect the conclusions, decisions of the court was not left without attention when passing the verdict. Assessing the evidence during the consideration of the case in cassation, the court must conclude whether the evidence collected in this case is sufficient to establish the circumstances included in the subject of evidence; whether they have been checked, whether there are any contradictions between the evidence that may affect the legality and validity of the sentence; whether the evidence on which the judgment is based is credible.

The court of second instance evaluates the evidence in specific, different from the activities of the court of first instance, procedural forms that correspond to its task: to verify the legality and validity of the already pronounced sentence. Accordingly, when considering a case in cassation, no judicial investigation is carried out, which deprives the court of second instance of the opportunity to perceive evidence (with some exceptions, for example, when checking and evaluating material evidence) on the basis of immediacy; it is limited - in comparison with the court of first instance - in the ways, ways of verifying evidence (it is not entitled to perform investigative actions that serve to collect and verify evidence). This leads to a limitation of the powers of the court of second instance: having established the incompleteness of the judicial investigation, the court of second instance itself, except in some cases, does not make up for it. In this situation, he can send the case for a new trial (investigation) or cancel the verdict in part or in whole and dismiss the case. The court acting in the cassation procedure is not entitled to draw a conclusion about the advantages of some evidence over others. Within the limits of the task before it, the court of second instance has, on the whole, the necessary conditions in order to give the evidence a correct assessment and decide the question of the legality and validity of the verdict verified by it.

At the same time, the question is raised (as it seems - justifiably) of expanding the powers of the court of second instance to examine evidence, but without giving it the right to conduct a judicial investigation. Another question is also raised - about the abandonment of the existing procedure for checking sentences that have not entered into legal force and replacing it with appeal and cassation procedures, similar to those that were in the criminal proceedings of pre-revolutionary Russia. Such a suggestion appears to be unfounded. The current cassation procedure for verifying these sentences, with its inherent characteristic features, successfully combines the ability to identify and most quickly, in compliance with the prohibition of transformation for the worse, respond to any violations related to both the factual and legal side of the sentence.

Types of cassation definitions.

The decision of the law on which (by their type) cassation rulings can be issued is predetermined beforehand.

only the tasks of the court acting in the cassation procedure, and the procedural conditions of its activities.

Types of cassation rulings adopted by the court based on the results of the cassation check are established by Art. 339 and 348-350 of the Code of Criminal Procedure. The court of second instance has the right:

- leave the verdict unchanged, and the cassation complaint, protest without satisfaction, if, having checked each argument of the cassation appeal, as well as the protest and having studied the case in the revision procedure, the court establishes: a) the verdict is lawful and justified; b) there is a cassation ground, but the cancellation or change of the sentence is prevented by the prohibition of transformation for the worse;

- set aside the verdict and send the case for a new investigation or a new trial. So the court can act in the presence of any of the cassation grounds (for example, if the investigation is incomplete, if it is necessary to apply the law on a more serious crime, if the defendant's right to defense is violated). When the sentence is annulled and the case is sent for a new investigation or a new trial, the court is bound by the prohibition of transformation for the worse (see § 2 of this chapter of the textbook).

When canceling the sentence, the court of second instance, depending on the stage of the process where it is possible to eliminate the violations identified by it, gives a binding indication of the stage of the process at which the proceedings should be started. For a new consideration, the case is sent to the court that issued the verdict, but in a different composition, or to another court.

By canceling the sentence, the court not only states its illegality and groundlessness, but is also obliged to help the correct, in accordance with the law, resolution of this case during its new investigation or consideration. For this purpose, the cassation ruling indicates: the requirements of which articles of the law have been violated and what the violations are or what the sentence is unfounded (Article 351 of the Code of Criminal Procedure), as well as the circumstances that are subject to detection;

- set aside the guilty verdict and dismiss the case:

1. If there are grounds provided for in Art. 5-9 and 402 of the Code of Criminal Procedure. At the same time, if, as a result of a change in the qualification of a crime by a court of second instance, it becomes necessary to apply an amnesty act, or the expiration of the statute of limitations for criminal liability is revealed, the case is not terminated, but a decision is made to change the sentence: the higher court releases the convict from punishment (the application of which provided guilty verdict).

2. If the evidence considered by the court of first instance does not substantiate the charge brought against the defendant and there are no grounds for an additional investigation and a new trial. Case dismissed given that, if it is not possible to obtain additional evidence. Otherwise, the case would be subject to referral for a new investigation or judicial review due to the incompleteness of the inquiry, preliminary or judicial investigation. In the situation under consideration (Clause 2, Article 349 of the Code of Criminal Procedure), the ruling on the annulment of the guilty verdict and dismissal of the case is issued both in the case when the available evidence is insufficient for an indisputable conclusion about the guilt of the convicted person, and if the court of second instance recognizes that the available evidence established his innocence.

Cancellation of the sentence and dismissal of the case may be partial: in relation to some of the convicts (for example, if it is established that there is no corpus delicti in the actions of one of them), or - in relation to individual episodes of the charge in which the defendant was found guilty;

- change sentence(Article 350 of the Code of Criminal Procedure): change the criminal-legal qualification of the actions of the convict and/or the measure of punishment.

Changing the sentence is possible only if the court observes the following conditions: without aggravating the situation of the convicted person (that is, subject to the prohibition of transformation for the worse), without making such changes that would be based on “circumstances not established by the court of first instance or evidence rejected by it” - Art. 350 Code of Criminal Procedure.

This last requirement serves to prevent the adoption by the court of second instance of a substantive new decision on the facts of the case under the guise of changing the sentence. The inadmissibility of this is determined by the fact that only the court of first instance examines the evidence on the basis of immediacy and, at the same time, while providing the participants in the trial with the opportunity to personally take part in the study of any evidence. A change in the factual side of the prosecution during the cassation hearing of the case cannot be completely ruled out. It is possible, for example, to exclude an aggravating circumstance from the sentence.

Cassation practice testifies to the incompleteness of the wording of Art. 350 of the Criminal Procedure Code: sentences are changed due to the incorrect application of not only criminal norms (which is provided for in part 1 of article 350 of the Criminal Procedure Code), but also, for example, civil law norms (when deciding on the amount of satisfaction of a civil claim, etc. ).

Cassation definition

Cassation ruling - a decision of the court of second instance, adopted on the basis of the verification of the legality and validity of the appealed or protested verdict that has not entered into force. It serves to solve the problems facing the cassation proceedings.

The value of the cassation ruling is not limited to the criminal case in which this ruling was adopted. The cassational ruling, contained in it by the analysis of the norm of the law, as well as the evidence, the circumstances of the case, the instructions given by the court of second instance, motivated by the analysis of the arguments of the cassation protest and the cassation appeal - contributes to the professional growth of judges, investigators, prosecutors, and the acquisition of practical skills in applying the norms law, their correct understanding, contributes to the formation of their sense of justice, and thereby contributes to improving the quality of the preliminary investigation, inquiry, justice, the prevention of violations of the law in the activities of judges, investigators, prosecutors.

A verdict that has not entered into legal force can be canceled or changed only by cassation definition. It has an introductory, descriptive and operative part.

It must indicate: the time and place of its issuance; the name and composition of the court that issued the ruling, the prosecutor and other persons who participated in the consideration of the case in the cassation instance, the person who brought the cassation appeal or protest; the content of the operative part of the verdict, the essence of the complaint or protest, a summary of the prosecutor's conclusion and the explanations of the persons participating in the case, the decision of the court of second instance on the complaint or protest.

An important guarantee that the arguments given in the cassation complaint, cassation protest will not be ignored is the requirement of the law: if the complaint or protest is left unsatisfied, the ruling must indicate the grounds on which the arguments of the complaint or protest are recognized as incorrect or insignificant Leaving the arguments of the complaint , if it is rejected, without an answer, it is essentially leaving the complaint without consideration, a gross violation of the individual's right to cassation appeal.

In the cassation ruling, when canceling or changing the sentence, the requirements of which articles of the law have been violated and what the violation consists in or what the sentence is unfounded, and when the case is referred for additional investigation or a new trial, the circumstances that are subject to clarification must be indicated . All this helps the court of first instance or the investigating body, respectively, to understand what exactly the violations committed by it, the mistakes that led to the recognition of the sentence as illegal and unreasonable, what needs to be done to eliminate them. The instructions contained in the cassation ruling also help to prevent the repetition of similar violations, mistakes in the subsequent (in other cases) activities of the court of first instance and the investigating authorities.

The cassation ruling is signed by all the judges who participated in its issuance.

The ruling in cassation is final and may be challenged only by way of supervision.

The cassation ruling, together with the case, shall be sent to the court that passed the verdict for execution no later than 5 days after its issuance. Cassation complaints, a cassation protest and new materials are attached to the case (see Article 354 of the Code of Criminal Procedure).

If, on the basis of the cassation ruling, the convict is subject to release from custody, a copy of it shall be sent by the court of cassation directly to the administration of the place of detention within a day's time for execution (see Article 354 of the Code of Criminal Procedure).

Appealing and protesting rulings of the court of first instance and rulings of a judge

Appealing and protesting the rulings of the court of first instance is admissible:

a) by the same persons who have the right to appeal and protest against a sentence that has not entered into force;

b) by some other persons, including: those involved as an interpreter, when this person is subjected to a monetary penalty for evading appearance or from performing his duties; by a person who has assumed personal guarantee for the proper behavior and appearance of the suspect or the accused, if a monetary penalty has been imposed on them by the court; persons who have been fined for violating order in the courtroom; persons in respect of whom the court has issued a ruling on the initiation of a criminal case. The prosecutor in these cases has the right to bring a protest. The decision of the judge to refuse to initiate a criminal case may be appealed by the victim or protested by the prosecutor.

Court rulings, judge's orders:

A) are not subject to appeal, but can be protested by the prosecutor in the cases provided for by Part 2 of Art. 331 of the Code of Criminal Procedure, including: decisions of the judge on the appointment of a court session; rulings (decisions) of the court (judge) on the initiation of a criminal case at the trial stage on a new charge;

b) can neither be appealed nor protested by the prosecutor in the cases provided for by Part 3 of Art. 331 of the Code of Criminal Procedure (determinations, decisions of a judge on the selection, change, cancellation of a measure of restraint; decisions of a judge issued based on the results of consideration of comments on the protocol of a court session, etc.).

Complaints, protests filed against decisions of a judge, court rulings that have not entered into legal force, are referred to accordingly private complaints, private protests. The term, the procedure for their submission, the procedure for consideration by the court of second instance are the same as for the cassation appeal, protest. The courts are obliged to notify the participants in the process of the filed private complaints, private protests and explain their rights, including to get acquainted with the private complaint, protest, and bring their objections to them.

Private ruling of the court of second instance

In accordance with Art. 355 of the Code of Criminal Procedure, the court considering the case in cassation has the right to issue a partial ruling on the same range of issues on which a court of first instance issues a partial ruling (decree) (see Article 21 2 of the Code of Criminal Procedure). He has the right to draw attention to such a definition of violations of the law committed by the court of first instance.

The court of cassation issues a special ruling, if, in the cases provided for in Article 21 2 of the Code of Criminal Procedure, it is not issued by the court of first instance.

A private ruling cannot replace a cassational one: if there is a cassation ground, the court of second instance must cancel or change the sentence (unless this is prevented by the prohibition of transformation for the worse), i.e. issue an appropriate ruling. The private definition thus accompanies the cassational one. For example, by canceling the verdict and sending the case for a new trial in connection with the significant violations of the criminal procedure law committed by the court of first instance, the court of second instance can, by its own ruling, react to the illegal detention committed in this case. A private definition cannot discredit the legality and validity of a sentence left unchanged (for example, indicate the leniency of punishment, while leaving the sentence unchanged).

By virtue of Article 352 of the Code of Criminal Procedure, a higher court is not entitled to establish or consider proven facts that were rejected by the verdict by a private ruling. The private ruling is issued simultaneously with the cassation one.

Cassation verification of sentences and decisions of the jury.

Appeal, protest and verification of sentences and decisions of the jury that have not entered into legal force are carried out according to general rules.

rules, but with essential features, which are defined by Chapter 38 of the Code of Criminal Procedure.

The cassation instance for jury trials is Cassation Chamber, formed as part of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation.

The subject of appeal, protest and verification in this chamber are the verdicts (guilty and acquittal) of the jury;

rulings of the presiding judge to dismiss the case; decisions of the presiding judge on the return of the case for additional investigation, as well as on the dismissal of the case, issued as a result of the preliminary hearing - Part 1 of Art. 464 Code of Criminal Procedure. Other rulings of the presiding judge shall not be subject to appeal or protest.

Production in the cassation chamber has its own peculiarities. This is determined primarily by the fact that the question of the guilt of the defendant is decided by the jurors, whose verdict is not motivated, it is binding on the parties, and the presiding judge (under the conditions established by law) can only reject the verdict of finding the defendant guilty.

When considering cases in the Cassation Chamber, narrowed grounds for cancellation or change court decisions. Such grounds are only (part 1 of article 465 of the Code of Criminal Procedure):

1. One-sidedness or incompleteness of the judicial investigation, if only it arose due to:

Erroneous exclusion from the proceedings of admissible evidence that may be material to the outcome of the case;

Unreasonable refusal to the party in the study of evidence that may be essential to the outcome of the case;

Non-investigation of circumstances significant for the outcome of the case, subject to mandatory investigation by virtue of Art. 79 (mandatory examination), part 2 of Art. 232, Art. 258, part 2 of Art. 308, paragraph 2, part 2, art. 343, part 4 of Art. 351 and part 1 of Art. 352 Code of Criminal Procedure. It follows from the above list that the cassation grounds are the failure to comply with the instructions of the court of first instance on the study of the relevant circumstances that were given to them when the case was returned for additional investigation, and by the court of second instance - when the case was sent for a new trial;

Examination of inadmissible evidence at the trial, if it could be essential to the outcome of the case.

2. Significant violation of the criminal procedure law.

3. Wrong application of the law to the circumstances of the case, established by the jury.

4. Appointment of unfair punishment.

The above grounds indicate that the cassation chamber checks not only the legality, but also the validity of the appealed, protested verdict, ruling of the presiding judge, but within the limits of the listed violations. At the same time, the verification of court decisions makes it possible to identify violations committed in this case at the stage of investigation.

Limits of authority of the Cassation Chamber of the Supreme Court of the Russian Federation are determined as follows.

She has the right to change the appealed or protested decision, if at the same time it does not change for the worse for the accused (convicted, acquitted) side.

The Cassation Chamber cannot reverse an acquittal, a ruling to dismiss the case, or any other decision made in favor of the defendant on the grounds of a significant violation of his rights.

Violation by the presiding judge of the principle of objectivity in the parting word may entail a review of the verdict only if the parties raised objections immediately after the parting word was pronounced.

The Cassation Chamber has the right to send the case for a new trial, but not for a new investigation.

Literature

1. The Constitution of the Russian Federation - part 3 of Art. 50.

2. Code of Criminal Procedure - art. 325-355 and 463-465.

3. Comments to the Code of Criminal Procedure.

4. Decree of the Plenum of the Supreme Court of the USSR "On the practice of considering criminal cases by courts in cassation" dated December 17, 1971 No. 10 (as amended and supplemented on December 1, 1983) - SPPVSS, p. 74-85.

5. Decree of the Plenum of the Supreme Court of the RSFSR “On increasing the role of the courts of cassation in ensuring the quality of the consideration of criminal cases” dated August 23, 1988 No. 5 (SPPVS, p. 290-295).

6. Decree of the Plenum of the Supreme Court of the Russian Federation “On some issues of the application by the courts of criminal procedural norms governing proceedings in a jury trial” dated December 20, 1994 No. 9 (SPPVS, pp. 360-373).

7. Textbook "Criminal process" M. 1998

The court, which considers in cassation criminal cases on complaints and presentations against sentences, rulings and decisions of the courts of first and appeal instances that have not entered into legal force. The subject of the review of the cassation instance is: 1) sentences, rulings, rulings of the courts of the first and appellate instances that have not entered into legal force; 2) the circumstances and evidence on which the acts of justice are based; 3) the correct application of laws in pre-trial and judicial proceedings.

The activities of the cassation instance are carried out in the form of a trial, which guarantees the possibility of verifying the reliability of the circumstances established by the lower court and the evidence underlying the decisions made.

384 Chapter 22. Proceedings in the court of second instance

In this regard, in the order of the Prosecutor General of the Russian Federation dated June 3, 2002 No. 28 “On the organization of the work of prosecutors in the judicial stages of criminal proceedings”, prosecutors are ordered to actively participate in the examination of evidence in court not only of the first, but also of the second instance.

The cassation instance checks the verdict, ruling and decision in a criminal case from the point of view of such important requirements as legality, validity, fairness. Each of them carries a certain semantic load, and together they determine the uniform requirements for a sentence (part 1 of article 297 of the Code of Criminal Procedure of the Russian Federation) and other acts of justice.

Legality is a quality that testifies to the steady observance of the requirements of the Code of Criminal Procedure of the Russian Federation when considering a case and issuing a court decision, as well as the correct application of substantive laws in the administration of justice. Reasonableness means that the court decision is based on the circumstances established by the court and the evidence examined by it in a particular criminal case. Justice is such a moral and legal category, based on which the court, when administering justice, must impartially resolve a criminal case. At the same time, all assessments and conclusions of the court on guilt and punishment, the degree of public danger of the criminal act and the person who committed it, the legal assessment of the deed and the actual circumstances in the criminal case must be proportionate.

Cassation proceedings are a certain algorithm of actions of the court and other participants in criminal proceedings.

1. The judge checks the criminal case received by him with a cassation complaint or presentation.

For cassation complaints and submissions, the law establishes requirements for the form and content.

The unified system of requirements for cassation complaints and presentations includes many components relating to: 1) the name of the court to which the presentation is sent;

2) participants in the criminal process who filed a complaint or presentation, their status (state prosecutor or a higher prosecutor, defense counsel, convicted, acquitted, legal representative, victim, his representative, etc.), signatures of the person who filed the complaint or presentation; 3) appealed

§ 3. Cassation procedure for consideration of a criminal case 385

acts of justice, the court that ruled them, the time of the decision.

In the system of requirements for a cassation complaint and presentation, the arguments justifying the unjustness of the verdict and other court decisions are of particular importance. Such arguments must certainly cover the circumstances of the criminal case, the evidence examined in it, as well as the legal grounds for appeal: violation of the procedural requirements and incorrect application of the norms of substantive laws (Article 379 of the Code of Criminal Procedure of the Russian Federation).

With regard to the content of the cassation appeal and presentation, the law does not indicate the indispensable presence of the procedural requirements of the party in them. However, the requirements of the participant in the process must be formulated in the submission so that the cassation instance is aware of the position of the prosecution, which appealed against the court decisions, regarding the fate of the latter.

In support of their procedural requirements, the participants in criminal proceedings have the right to attach additional materials to the cassation complaint and presentation. A list of them is given in the complaint or presentation.

The cassation instance first of all checks the filed complaint or presentation in terms of compliance of its form and content with the requirements specified in the law. It is also clarified whether the non-compliance of the cassation complaint or presentation with the requirements specified in the law, revealed by the court of second instance, does not prevent the consideration of the criminal case.

Having recognized the cassation appeal or presentation as not complying with the requirements stipulated by law, the cassation instance shall return them for redrawing.

Regulating the right to withdraw cassation complaints or presentations, the law indicates that only the person who filed it can do this before the start of the court session (part 3 of article 359 of the Code of Criminal Procedure of the Russian Federation). Two conclusions follow from this: 1) withdrawal of a cassation complaint or presentation is allowed only before the start of the court session of the cassation instance; 2) the named procedural document has the right to withdraw only the person who submitted it, and not any of the other participants.

2. On a criminal case with a cassation appeal or presentation, the judge of the court of second instance sets the date, time and place of the court session.

386 Chapter 22. Proceedings in the court of second instance

After the appointment of the court session, but not later than 14 days before the day the criminal case is considered by the court of second instance, the parties must be notified of the date, time and place of the hearing.

The non-appearance of the parties to the session of the court of second instance does not prevent the consideration of the criminal case, if they were promptly notified of the date, time and place of the court session. However, the court may recognize the mandatory participation of the convict (part 2 of article 376 of the Criminal Procedure Code of the Russian Federation).

3. The criminal case is considered by the court of cassation in the manner prescribed by Art. 377 Code of Criminal Procedure of the Russian Federation.

The implementation of the instructions on the procedure for considering a criminal case by the cassation instance, the law entrusted to the presiding judge in the court session. He opens the court session, announces what criminal case is being considered, on whose complaints or presentation, the composition of the court, the surnames, names and patronymics of the persons who are representatives of the parties to the criminal process, etc.

Having explained to the participants in the cassation proceedings their procedural rights and obligations, the presiding judge ascertains whether they have petitions or objections. In particular, the parties may file petitions to attach additional materials to the criminal case, to postpone the consideration of the criminal case, etc. On the grounds established by law (Article 61 of the Code of Criminal Procedure of the Russian Federation), the parties have the right to challenge the prosecutor, judge (Articles 64, 66 of the Code of Criminal Procedure of the Russian Federation) .

In the study of the circumstances and materials of the criminal case in cassation, an important place is occupied by the report of one of the judges. His report must contain brief information about the verdict or other court decision, cassation appeals and presentation, the requirements set forth in them, documents and materials attached to them.

After the report of the judge, the presiding judge gives the floor to the party that filed the complaint or presentation to substantiate their arguments, objections and demands. If both an appeal and a presentation are brought against a court decision, the court determines the order in which the persons speak, as a rule, in such a way that the prosecution supporting the cassation presentation speaks first.

The law provides for a very important provision, namely that the parties have the right to petition the cassation instance for a direct examination of evidence.

§ 3. Cassation procedure for considering a criminal case 387

zatevities in a criminal case in accordance with the rules established by Ch. 37 Code of Criminal Procedure of the Russian Federation. However, the practice of the Supreme Court of the Russian Federation suggests that we can only talk about the evidence available in the materials of the criminal case.

When considering a criminal case, the parties have the right to submit to the court of second instance additional materials confirming or refuting the arguments set forth in the cassation complaint or presentation, for example, documents (certificates, certificates, certificates, licenses, extracts from the book of orders, case histories, etc.).

The implementation of the right of the parties to submit additional materials to the court of cassation is linked to certain requirements: 1) the person submitting additional materials must indicate how and in what connection they were received; 2) it is unacceptable to obtain additional materials through the performance of investigative actions.

4. As a result of consideration of the criminal case in the cassation procedure, the court makes a lawful, justified and reasoned decision.

According to Art. 378 of the Code of Criminal Procedure of the Russian Federation, the court in the deliberation room makes one of the following decisions: 1) to leave the sentence or other contested court decision unchanged, and the complaint or presentation without satisfaction; 2) on the annulment of a sentence or other contested court decision and on the termination of the criminal case; 3) on the annulment of a sentence or other appealed court decision and on the direction of the criminal case for a new trial in the court of first instance or appeal from the stage of a preliminary hearing, or trial, or court actions after the verdict of jurors is delivered; 4) on changing the sentence or other contested court decision. Any of these decisions is formalized by a definition.

The court of cassation leaves a verdict or other court decision unchanged if the arguments of the cassation complaints and presentations are not confirmed in the materials of the criminal case and do not shake the legality, validity and fairness of the appealed acts of justice issued by the court of first instance. In this case, the court of second instance decides to leave the cassation appeal or presentation unsatisfied.

If, during the consideration of a criminal case in cassation, at least one of the grounds

388 Chapter 22. Proceedings in the court of second instance

viewed articles. 24-25, 27-28, 254 of the Code of Criminal Procedure of the Russian Federation and entailing the termination of the criminal case, the court of second instance decides to cancel the sentence, other court decision and to terminate the criminal case, which simultaneously means the termination of criminal prosecution (part 3 of article 24 of the Code of Criminal Procedure of the Russian Federation ).

One of the decisions taken by the court of second instance as a result of consideration of the criminal case in cassation is to cancel the appealed sentence, another decision and send the case: 1) to a new trial in the court of first instance from the stage of preliminary hearing or trial; 2) to a new judicial review from the stage of the court's actions after the verdict of the jurors is delivered (p.

3 hours 1 tbsp. 378 Code of Criminal Procedure of the Russian Federation).

The cassation instance takes one of the listed decisions in cases where violations of the criminal procedure law were committed at the pre-trial and judicial stages of the proceedings in a criminal case (for example, on the right of the defendant to have his case considered by a judge or court with jurisdiction, on the language of legal proceedings, on inadmissible evidence, immutability of the composition of the court, etc.), if this prevented the issuance of a lawful, justified and fair verdict (another judicial decision).

These and other violations of the law must be eliminated in the course of a new consideration of the criminal case by the court of first instance. In the ruling, the court of second instance clearly indicates what exactly the violations identified by it were and how they should be eliminated during a new consideration of the criminal case.

Article 379 of the Code of Criminal Procedure of the Russian Federation establishes a general and exhaustive list of grounds for the annulment or change of a sentence or other judicial decision by a court of second instance. The grounds for canceling or changing court decisions listed in it are then disclosed and specified in a number of subsequent articles of the Code.

In Art. 381 of the Code of Criminal Procedure of the Russian Federation provides a concept and a specific list of violations of the criminal procedure law, in the presence of which the sentence, other court decision is subject to cancellation or change in the cassation procedure. The cassation instance comes to the conclusion that there are violations of the criminal procedure law, entailing the cancellation or change of the sentence, other court decision, in cases where they indicate the deprivation or restriction of the rights of participants in the process

§ 3. Cassation procedure for consideration of a criminal case 389

sa or non-compliance with the procedure of legal proceedings, or if they otherwise influenced or could influence the issuance of a lawful, reasoned and fair sentence.

One of the grounds listed in the Code of Criminal Procedure of the Russian Federation is sufficient to draw conclusions about the unjustness of the sentence and the need to cancel or change it.

In part 2 of Art. 381 of the Code of Criminal Procedure of the Russian Federation establishes the grounds that in all cases entail the cancellation or change of the sentence. As a result, they are recognized as significant violations. The powers of the court of second instance to decide on the annulment or change of the appealed sentence were secured by the law as an alternative, giving the cassation instance itself the right to make one of the above decisions.

The whole variety of manifestations of the incorrect application of the criminal law is covered by the following capacious and meaningful formulations of Art. 382 of the Code of Criminal Procedure of the Russian Federation: violation of the requirements of the General Part or the application of an article or paragraphs and parts of an article of the Special Part of the Criminal Code of the Russian Federation, which were not subject to application in this particular case.

The incorrect application of the criminal law can also be expressed in the imposition of a more severe punishment than that provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation. We are talking about situations where the court in the verdict imposed a sentence on the defendant that exceeds the time limits established by the sanction of the article, in accordance with which the defendant was found guilty and convicted.

The imposition of such a punishment may be the result of an incorrect application of the rules for the addition or absorption of punishments or the rules for imposing sentences on the basis of cumulative sentences. The court of cassation eliminates such a judicial error by changing the sentence and imposing punishment within the limits of the sanction of the corresponding article of the Criminal Code of the Russian Federation.

The Code of Criminal Procedure of the Russian Federation also contains the interrelated concepts of "fairness of the sentence" and "unfairness of the sentence".

The concept and characterization of the sentence as unfair is first of all revealed through the unfairness of punishment due to its both excessive lenientness and excessive severity. An excessively lenient punishment is recognized due to the fact that it: 1) does not correspond to the severity of the crime and the personality of the convicted person, that is, when assigning the type and amount of punishment to the defendant, the general principles for sentencing established by Ch. 10 of the Criminal Code of the Russian Federation; 2) although it does not go beyond

390 Chapter 22. Proceedings in the court of second instance

the limits of the sanction of a specific article of the Special Part of the Criminal Code of the Russian Federation, but unfair due to excessive softness or excessive severity.

Article 383 of the Code of Criminal Procedure of the Russian Federation also provides for the grounds and conditions for the cancellation of the verdict in the cassation procedure and for the direction of the criminal case for a new trial. The court of second instance decides on this in connection with the recognition of the punishment imposed on the defendant by the court of first instance or appellate instance as unfair due to its excessive leniency.

On this basis, the cassation instance has the right to cancel the verdict and send the criminal case for a new trial only if there is a presentation from the prosecutor or a complaint from a private prosecutor, the victim or his representative, brought against excessive leniency of punishment.

An acquittal should not contain wording that casts doubt on the innocence of the acquitted person (Part 2, Article 305 of the Criminal Procedure Code of the Russian Federation). The presence of such formulations in it, as well as disagreement with the grounds for acquittal, give the acquitted person the right to appeal against the acquittal only in this part. Having recognized the arguments of the acquitted person as justified and worthy of attention, the cassation instance cancels the verdict of acquittal only in the part appealed against.

The court of second instance is not entitled to reverse the sentence in respect of those acquitted, in respect of whom the prosecutor's submission or the complaint of the victim or his representative does not raise the question of the sentence being annulled.

In part 2 of Art. 385 of the Code of Criminal Procedure of the Russian Federation, this requirement is expressed in the fact that the cassation instance has the right to cancel the acquittal on the proposal of the prosecutor or the complaint of the victim or his representative in connection with violations of the criminal procedure law that limited the ability of the listed participants in the proceedings to present evidence or influenced the content of the questions and answers posed to the jurors on them. This list is exhaustive.

An acquittal delivered on the basis of a jury verdict must not contradict the verdict. The requirement of the law on the inadmissibility of contradictions between an acquittal and a verdict applies to all issues that are resolved in the above-mentioned court decisions.

§ 3. Cassation procedure for consideration of a criminal case 391

An indispensable condition for the cancellation of the verdict with the direction of the criminal case for a new trial in the new composition of the court is the presence of conclusions in the decision of the court of second instance on the unjustness of the verdict and the possibility of eliminating the violations committed during its decision only in the trial. Only from this stage, according to the law, a repeated trial of a criminal case begins, in which the verdict was canceled on cassation and the criminal case was sent for a new trial.

When canceling a verdict or other court decision with sending the criminal case for a new trial, the court of second instance has the right to give instructions that are obligatory in the consideration of this criminal case. However, such instructions should not prejudice the issues listed in Part 2 of Art. 386 of the Code of Criminal Procedure of the Russian Federation, which are to be decided by the court during a new consideration of the criminal case. The issues listed in it relate to the essence of the criminal case and the future verdict, therefore, any instructions on them would mean limiting the independence, independence and impartiality of judges.

The law separately regulates the issues of the procedure for cancellation, the direction of a criminal case for a new trial and the moment it begins when a sentence is canceled that contradicts the verdict of the jurors. In this case, the cassation instance cancels the verdict and transfers the criminal case to the court of first instance for a new trial. It begins with the actions of the presiding officer, provided for in Art. 346 of the Code of Criminal Procedure of the Russian Federation, and then continues in the manner prescribed by law (Articles 347-353 of the Code of Criminal Procedure of the Russian Federation).

In Art. 387 of the Code of Criminal Procedure of the Russian Federation defines and consolidates the foundations, scope and limits of the competence of the courts of second instance to amend the sentence, other court decision based on the results of the consideration of a criminal case in cassation.

Changing the sentence or other judicial decision in the cassation procedure should not lead to a deterioration in the position of the convicted person. This means that the court of second instance not only does not have the right to apply the law on a more serious crime to the deeds of the convicted person or increase the punishment imposed on him, but also cannot change the circumstances for the worse for the convicted person, increase the amount of amounts recovered in compensation for the harm caused.

392 Chapter 22. Proceedings in the court of second instance

The cassation instance under no circumstances has the right to change the verdict and reclassify the actions of the convict to the law on a more serious crime or increase the punishment imposed on the guilty person or impute to him the acts rejected by the court of first instance when passing the verdict due to the fact that they are based on inadmissible evidence.

Without changing the legal assessment of the crime committed by the convicted person, the court of second instance has the right to: 1) reduce the penalty; 2) exclude an additional measure of punishment from the sentence; 3) reduce the period of additional punishment (for example, reduce the period during which the convict is prohibited from holding certain positions or engaging in certain activities); 4) to switch from the rule of absorption of punishments, applied when passing the sentence, to the rule of adding up punishments, but on the condition that the finally imposed punishment will not exceed the amount determined by the sentence; 5) apply the act of amnesty when considering a specific criminal case.

Based on the materials available in the criminal case and additionally presented, the cassation instance has the right to change the verdict in terms of decisions on a civil claim, excluding an indication of its satisfaction, or reduce the amount of a satisfied claim.

Only in one case, the law allows the cassation instance, when changing the sentence, to deviate from the fundamental provisions of the prohibition of turning the decision for the worse - when it comes to the abolition of a softer type of correctional institution unreasonably assigned to the convict than the law provides. In this case, the court of second instance changes the verdict and assigns the type of correctional facility to the convict in accordance with the prescriptions of the Criminal Code of the Russian Federation.

More on the topic of Cassation:

- Copyright -

The trial of the case by the appellate court means a retrial of the case on the merits by a higher court.

Court of Appeal- this is a court that checks the legality and validity, and in criminal cases and the fairness of judicial acts of the court of first instance that have not entered into force by re-examining the case on the merits.

The basis for the consideration of the case in the court of appeal is the appeal of the participant in the process or the appeal of the prosecutor.

The courts of appeal are:

District courts - in relation to acts of justices of the peace

Regional and regional courts - on acts of district courts

Judicial chambers of the Supreme Court of the Russian Federation - on acts of regional and regional courts

The Board of Appeal of the Supreme Court of Russia - on the acts of the Supreme Court itself, issued in the first instance

Based on the results of the consideration of the case by the court of appeal, the following decisions can be made:

Leaving the judicial act of the court of first instance unchanged, and the complaint without satisfaction

Cancellation of conviction and acquittal or dismissal of case

Cancellation of acquittal and conviction

Changing a judicial act

Cancellation of the act of the justice of the peace or other court in whole or in part and issuance of a new decision

The Court of Appeal has the power to correct any errors made by the Court of First Instance on its own.

The next judicial instance is the cassation proceedings.

The court, carrying out mainly documentary verification of the legality, validity, and in criminal cases and fairness of judicial acts issued by the court of first instance and appellate instance, which have entered into force.

The basis for the consideration of the case in the court of cassation is the cassation complaint of a participant in the trial or the cassation presentation of the prosecutor.

A cassation presentation or complaint is submitted directly to the court of cassation, that is, regional and relevant courts, district naval military courts, judicial chambers for criminal and civil cases of the Supreme Court of the Russian Federation, and the military chamber of the Supreme Court of the Russian Federation.

The cassation instance as a whole carries out documentary verification of the correctness of the judicial act issued by the lower court, but does not itself examine the evidence. New evidence is not accepted. In the court of cassation, the deterioration of the legal status of the convict is not allowed.

A cassation appeal or presentation is considered in the presidiums of the respective courts or judicial collegiums based on the report of the chairman of the court, his deputy or another judge on behalf of the chairman of the court.

The rapporteur judge sets out the circumstances of the case, the content of court decisions previously adopted on the case, as well as the arguments of the cassation appeal or presentation.

Based on the results of the cassation consideration, the following decisions can be made:

Leaving the judicial act unchanged, and the cassation complaint (presentation) without satisfaction

The judgment is canceled and the case is dismissed

The judicial act is canceled and the case is sent to the court of first instance or appeal

Change of judgment

A new decision is made in a civil case

The grounds for canceling or changing court decisions in cassation are significant violations of the norm of substantive or procedural law, which entailed significant changes in the rights and freedoms of man and citizen.

The interested participants in the process are notified of the time and place of the hearing of the case in cassation, but, as a rule, they are not invited to this trial.

Litigation is the main stage of cassation proceedings. The procedural order of the cassation consideration of cases in comparison with the proceedings in the first or appeal instances has its own characteristics. Cases in the cassation procedure are considered collegiately, the composition of the court must include three or another odd number of judges who enjoy equal rights (Article 14 of the APC). In the cassation procedure, the case is considered according to the rules for considering a case by an arbitration court of first instance with the features provided for in Chapter. 21 APK. The rules established only for the first instance do not apply. During the proceedings on a cassation appeal, no minutes of the court session are kept.

The persons participating in the case shall have the right to take part in the session of the cassation instance. However, the failure of their representatives to appear, provided that there is evidence that the persons participating in the case were notified of the time and place of the consideration of the complaint, does not prevent the consideration of the case. A cassation appeal against a decision of an arbitration court and a decision of the appellate instance is considered within one month from the date of its receipt together with the case by the federal arbitration court of the district.

The court session can be divided into three parts: 1) preparatory, 2) consideration of the complaint and case materials, 3) issuance of a decision.

In the preparatory part the presiding judge opens the court session, announces which case is subject to consideration, on whose complaint and in relation to the judicial act of which court it was initiated, checks the presence of the persons participating in the case, the powers of their officials and representatives. Then the composition of the court is announced and the issue of possible challenges is decided, the persons participating in the case are explained their procedural rights and obligations, the court resolves applications and petitions, taking into account the opinion of those present at the meeting, after which the procedure for considering the case is announced.

Second part The session begins with the hearing of the arguments given in the cassation complaint, then the objections to it are presented. After that, the court retires to the deliberation room to make a decision. Witnesses and experts are not interrogated at the session of the cassation instance. The limits of the consideration of the case in the cassation instance are limited by checking the correctness of the application of the norms of substantive and procedural law by the arbitration court of the first and appellate instances. But the legality of a judicial act cannot be verified without evaluating its validity, therefore, when considering a cassation appeal, the court also checks the correctness of the court's conclusions about the circumstances relevant to the case, the rights and obligations of the persons participating in the case. When considering a complaint, the court of cassation is not bound by its arguments and checks the legality of the judicial act in full. The cassation instance is not entitled to consider the issue of changing the claims that were not filed by the plaintiff in the prescribed manner (Article 37 of the APC) in the court of first instance.

The court of cassation itself does not establish the circumstances of the case and the content of the relationship between the parties. Therefore, Art. 165 of the Arbitration Procedure Code forbids in a cassation appeal to refer to the lack of evidence of the circumstances of the case or to the inconsistency of the conclusions set out in the decision or ruling on the actual relationship of the persons participating in the case to the circumstances of the case.

This provision indicates the specifics of the activities of the court of cassation and is one of the main differences from the court of appeal, which re-examines the case on the merits. In addition, given the specifics of the activities of the court of cassation, the law does not grant the right to persons participating in the case to present additional evidence that was not previously the subject of research and evaluation in the courts of first and appeal instances. At the same time, in practice, cases are not uncommon when, when considering a cassation appeal, the court was presented with new evidence that is important for the correct resolution of the dispute.

In such a situation, the courts of cassation act differently. Refusing to accept new evidence in the case, the court refers to the fact that, by virtue of Art. 174 of the APC, the competence of the cassation instance does not include checking the validity of judicial acts. However, this position seems to be erroneous, since for the correct application of the law it is necessary to establish the actual relationship of the parties and the circumstances of the case, i.e. there is a close relationship between legitimacy and validity. It should be borne in mind here that, according to Art. 127, 159 of the Arbitration Procedure Code of the Russian Federation, in the reasoning part of both the decision and the decision of the appellate instance, the circumstances of the case established by the arbitration court, the evidence on which the conclusions of the arbitration court about these circumstances are based, and the arguments on which the arbitration court rejects certain evidence and does not apply the laws and other regulatory legal acts referred to by the persons participating in the case, as well as the laws and other regulatory legal acts that the court was guided by when making a decision. Verification of the compliance of decisions and rulings with procedural norms is within the competence of the court of cassation. In addition, the competence of the cassation instance cannot be determined in isolation from the powers of other judicial instances. According to Art. 155 APC, the court of appeal checks the legality and validity of the decision. The legality and validity of a judicial act are also checked by way of supervision (Article 188 of the APC).

Thus, given that the court must strive to establish the truth, in our opinion, new evidence can be presented to the cassation instance even if they affect the correctness of judicial acts. Here it follows, using the authority enshrined in paragraph 3 of Art. 175 APC, transfer the case for a new trial.

Based on the results of the discussion in the deliberation room of all the materials of the case and the results of the consideration of the cassation appeal, the court of cassation issues a decision, which is signed by all judges (Article 177 of the APC). The decision of the cassation instance consists of four parts: introductory, descriptive, motivational and resolutive.

In the introductory part the following shall be indicated: the name of the arbitration court that adopted the decision, the number of the case and the date of adoption of the decision, the composition of the court that adopted the decision, the names of the persons present at the meeting, indicating their powers; the name of the person who filed the cassation complaint and the persons participating in the case; the name of the arbitration court that considered the case in the first and appellate instances, the number of the case, the date of adoption of the judicial act, the names of the judges who adopted it.

In the descriptive resolutions briefly outline the essence of the adopted judicial acts; grounds on which the issue of verification of judicial acts was raised; the arguments set forth in the response to the cassation complaint; explanations of persons present at the meeting.

Motivational part The decision is of fundamental importance in the procedural act and must contain reasonable conclusions about the legality of judicial acts.

When checking the legality of the judicial act, the cassation instance formulates the motives for which it does not apply the laws and other regulatory legal acts referred to by the persons participating in the case, as well as the laws and other regulatory legal acts that the court was guided by when adopting the decision, if necessary, gives interpretation of the law. Leaving a cassation appeal unsatisfied, the cassation instance cannot confine itself to an unmotivated reference to the legality of a judicial act. In the event of annulment or amendment of a judicial act, the motives for which the court of cassation did not agree with the conclusions of the court of first instance or appellate instance are stated. The decision shall indicate the conclusions based on the results of consideration of the cassation complaint. If the case is referred for a new trial, the cassation instance indicates the actions to be performed by the persons participating in the case and by the arbitration court. Such instructions of the cassation instance are obligatory for the court considering the case again (Article 178 of the APC).

At the same time, taking into account the principle of independence of judges and their subordination only to the Constitution of the Russian Federation and federal law (Article 5 of the APC), the district court is not entitled to prejudge questions about the reliability or unreliability of this or that evidence, about the advantage of some evidence over others, about which the norm of substantive law should be applied and what decision should be taken in a new consideration of the case.

Operative part the decision must be set out in strict accordance with the powers of the cassation instance (Article 175 of the APC) and taking into account the requirements of Art. 127-133 of the APC in the event that a new decision is made in the case. The operative part of the resolution indicates the distribution of court costs among the persons participating in the case. If the case is referred for a new trial, the issue of the distribution of expenses for the state fee is decided by the court retrial. If necessary, the operative part provides an indication of the reversal of the execution of the judicial act (Article 209 of the APC).

The decision of the cassation instance, after its adoption, is announced by the chairperson in the same session in which the case was considered. In exceptional cases, in particularly complex cases, the drafting of a reasoned decision may be postponed for a period of not more than three days, but the operative part, which is signed by all judges and attached to the case, is announced at the same session in which the case ended. The decision of the cassation instance enters into force from the moment of its adoption and is not subject to appeal. It is sent to the persons participating in the case by registered mail with acknowledgment of receipt or handed over to them against signature within five days from the date of acceptance.

In case of disagreement with the decision, the persons participating in the case may, in accordance with the established procedure, apply with an application for bringing a protest against it in the manner of supervision.

If necessary, the cassation instance has the right in relation to Art. 139 APC to clarify the decision, as well as correct typos, misprints and arithmetic errors. In the manner prescribed by Art. 205 of the APC, the district court may defer and extend the execution of the decision, change the method and procedure for its execution. The district court has such power in respect of decisions by which a new decision is made or a judicial act is changed.

The court of cassation also issues a decision when it approves the amicable agreement of the parties. In this case, the reasoning part of the decision should contain the conclusion of the court on the possibility of reaching an amicable agreement by the parties and the consistency of their decision with laws and other regulatory legal acts, the interests of other persons (parts 3, 4 of article 37 of the APC). The operative part of the resolution must contain instructions on the cancellation of the judicial acts that have taken place, the termination of the proceedings on the case and fix the terms of the settlement agreement.