Rus News Journal

The decision of Plenum of the Sovereign Court of the Russian Federation from March, 5th, 2004 N 1 Moscow About application by courts of norms Criminally - the remedial code of the Russian Federation

In connection with the questions which have arisen in judiciary practice on application of some norms Criminally - the remedial code of the Russian Federation (further - UPK the Russian Federation), decides Plenum of the Sovereign Court of the Russian Federation to make to courts following explanations:

1. To Pay attention of courts to their duty by consideration of criminal cases and removal of decisions to observe the Russian Federations established by chapter 2 UPK principles of the criminal legal proceedings, having the purpose protection of the rights and legitimate interests of persons and the organisations which have suffered from crimes, and also protection of the person against illegal and unreasonable charge, condemnation, restriction of its rights and freedom.

2. Solving a question on, a leah is the proof on criminal case inadmissible on the bases specified in point 3 of a part of 2 articles 75 UPK the Russian Federation, the court should find out in each case in what the admitted infringement was particularly expressed. Owing to a part of 7 articles 235 UPK the Russian Federation by criminal case consideration in essence the court under the party petition has the right to consider the problem repeatedly on a recognition of the excluded proof the admissible.

3. Courts should provide performance of requirements of the law on participation in criminal legal proceedings of the defender. Its participation is obligatory, if suspected or accused has not refused it in an order established by article 52 UPK the Russian Federation. Thus participation in manufacture on criminal case of an accuser (the state accuser) is not an indispensable condition of participation in criminal legal proceedings of the defender as accused (defendant) has the right at any moment of manufacture on criminal case to refuse the help of the defender. In such cases it is necessary for court to find out a cause of a failure from the defender and to establish, a leah there was such refusal urged, caused, for example, reasons of a material order. Refusal of the defender can be accepted court if causes of a failure from the defender are found out, and its participation in judicial session is actually provided by court. At acceptance of refusal of the defender the court should motivate the decision in definition (decision).

Taking into account stated adjudgment with observance of the procedures established Criminally - the remedial code of the Russian Federation, cannot be considered as infringement of the rights of the defendant on protection if refusal of the defender has been declared in written form or reflected in the report of corresponding remedial action.

As according to a part of 2 articles 49 UPK the Russian Federation one of near relations accused or other person for which admission petitions accused, can be admitted court as the defender only along with the lawyer, acceptance of refusal of the lawyer involves also the termination of participation in business of this person (except for manufacture at the world judge).

4. According to the law imprisonment as a preventive punishment can be selected only at impossibility of application of other, softer, a preventive punishment. For the decision of a question on holding in custody of the person suspected or accused of commission of crime for which the criminal law provides punishment in the form of imprisonment for term over two years, the court should establish in each specific case, a leah there are other circumstances, except specified regarding 1 article 108 UPK the Russian Federations bearing to necessity of isolation of the person from a society. Data can be carried to such circumstances that the suspect, accused can disappear from bodies of preliminary investigation or court, to forge proofs, to put pressure upon the victim, witnesses and etc.

Considering the petition for election to the suspect accused of quality of a preventive punishment of imprisonment, the judge has not the right to enter into discussion of a question on guiltliness of the person in a crime incriminated to it.

in the form of imprisonment (a part of 3 articles 108 UPK the Russian Federation) it is necessary to apply copies of decisions On the petition for election of a preventive punishment about excitation of criminal case and attraction of the person as accused, copies of reports of detention, interrogations of the suspect accused, and also the proofs available in business confirming presence of circumstances, bearing to necessity of election to the person of a preventive punishment in the form of imprisonment (data on the person of the suspect accused, the inquiry on the previous convictions given about possibility of the person to abscond, about threats to victims, witnesses and etc.) . When the defender does not participate in criminal case and about it record in the report of interrogation as suspected or accused is not made, the written statement of the suspect accused about refusal of the defender is applied on business materials.

5. According to a part of 4 articles 108 UPK the Russian Federation the decision about excitation of the petition for election as a preventive punishment of imprisonment concerning the suspected or accused is subject to consideration by the judge within 8 hours from the moment of receipt of materials in court with participation suspected or accused, the public prosecutor, and also the defender if he participates in criminal case.

At nedostavlenii suspected or accused at the appointed time in judicial session for participation in consideration of the petition the court makes the decision according to point 2 of a part of 7 articles 108 UPK the Russian Federation if has expired 48 - hour term of the maintenance of the person under guards. Refusal in satisfaction of the petition at nedostavlenii suspected or accused (when, for example, it has disappeared or was ill) does not interfere with the repeated reference with the petition after creation of conditions for maintenance of an appearance of the suspect accused.

6. If by consideration of the petition for imprisonment as a preventive punishment concerning the suspect accused by one of the parties the petition for adjournment of judicial session for granting of additional proofs of validity by it or groundlessness of election of a preventive punishment in the form of imprisonment is declared, the judge in the presence of the bases specified in point 3 of a part of 7 articles 108 UPK the Russian Federation, takes out the decision about prolongation of term of detention, but no more than at 72 o`clock, and names date and time to which detention term lasts. At nepostuplenii when due hereunder additional proofs the judge holds repeated session with participation of the parties and on a basis before the arrived materials the corresponding decision on election concerning suspected or accused passes of a preventive punishment in the form of imprisonment or about refusal in satisfaction of the petition.

7. When at the decision of a question on election suspected or accused of quality of a preventive punishment of imprisonment the appearance in judicial session of the defender invited by it is impossible (for example, in connection with employment in other litigation), and from the defender appointed as a part of 4 articles 50 UPK the Russian Federation, suspected or accused has refused, the judge, having explained consequences of such refusal, can consider the petition for election to the suspect, accused a preventive punishment in the form of imprisonment without participation of the defender, except for the cases specified in points 2 - 7 parts of 1 article 51 UPK the Russian Federation.

If participation of the defender in judicial session according to requirements of article 51 UPK the Russian Federation is obligatory, and invited suspected or accused the defender, being properly informed on a place and time of judicial session about consideration of the petition as article 108 UPK the Russian Federation, in court was not, the investigator, the inspector or the public prosecutor owing to a part of 4 articles 50 UPK the Russian Federation takes measures to purpose of the defender. In this case the court takes out the decision about prolongation of term of detention according to point 3 of a part of 7 articles 108 UPK the Russian Federation. After purpose of the defender to specified in the decision of the judge to term the court with participation of the parties considers the petition in essence.

8. To explain to courts that on sense of a part of 7 articles 236 and a part of 10 articles 108 UPK the Russian Federation the judge has the right during preliminary hearing under the petition of the party or under own initiative to solve a question on election concerning the person accused of commission of crime, as an imprisonment preventive punishment.

In this case in the decision about purpose of judicial session (article 236 UPK the Russian Federation) is necessary to the judge, being guided by parts 1, 2 and 4 articles 108 UPK the Russian Federation to motivate the decision on election to the defendant of the specified preventive punishment.

9. When owing to a part of 3 articles 247 UPK the Russian Federation the question on election concerning the defendant as an imprisonment preventive punishment arises during proceeding at presence to that of the bases (articles 97 and 108 UPK the Russian Federation) the court accepts the decision on it under the petition of the party or under own initiative. Participation of the defender accused of judicial session at the decision of this question is obligatory if he participates in business.

10. The part of 13 articles 109 UPK the Russian Federation supposes consideration by court of the petition for prolongation of term of the maintenance accused under guards in its absence if the accused is on the stationary is judicial - psychiatric examination, and also under other circumstances excluding its possibility dostavlenija in court. To “ to other circumstances “ can be carried, in particular, illness accused, act of nature, bad meteoconditions, quarantine in a holding in custody place. At acknowledgement of the specified cases by corresponding documents the court should consider such petition in an order provided by a part of 4 articles 108 UPK the Russian Federation. Thus participation of the defender in judicial session is obligatory.

11. If at the decision of a question on election suspected or accused a preventive punishment in the form of imprisonment (article 108 UPK the Russian Federation) or prolongation of term of holding in custody (article 109 UPK the Russian Federation) it will be declared the petition for acquaintance with materials on which basis the decision is made, the court should be guided by article 45 of the Constitution of the Russian Federation guaranteeing the state protection of the rights and freedom of the person and the citizen. Proceeding from it the court has not the right to refuse suspected or accused, and also to their defenders satisfaction of such petition as the rights and freedom of persons in which relation the question on election of a preventive punishment in the form of imprisonment or about prolongation of term of holding in custody is solved are mentioned.

Acquaintance with the specified materials is made in reasonable terms, but within the term established by the law for consideration by court of the corresponding petition for election accused a preventive punishment in the form of imprisonment or about prolongation of term of its holding in custody.

According to the law consideration of the petition for election to the suspect, accused a preventive punishment in the form of imprisonment or about prolongation of term of holding in custody is spent in open judicial session, except for the cases specified regarding 2 articles 241 UPKRF.

12. The decision of the world judge on arrived with the indictment or the bill of particulars to criminal case about application to the defendant according to a part of 3 articles 247 UPK the Russian Federation a preventive punishment in the form of imprisonment can be appealed against in an appeal order on the basis of article 354 UPK the Russian Federation. Thus appeal court, being guided by a part of 11 articles 108 UPK the Russian Federation, the decision under the appeal complaint in time, established by this norm, i.e. not later than in three days from the date of its receipt makes.

13. The Bill of particulars or the indictment according to points 5 and 6 parts of 1 article 220 UPK the Russian Federation and point 6 of a part of 1 article 225 UPK the Russian Federation should include, in particular, the list of the proofs confirming charge, and the list of proofs to which the protection party refers. If on business the accused are involved some or accused some episodes of charge the list of the specified proofs should be resulted separately on everyone accused and on each episode of charge are made.

Under the list of the proofs confirming charge, and also under the list of proofs to which the protection party refers, it is understood not only the link in the bill of particulars on sources of proofs, but also reduction in the bill of particulars or the indictment of the summary of proofs as owing to a part of 1 article 74 UPK the Russian Federations proofs on criminal case are any data, on which basis court, the public prosecutor, the inspector, the investigator in an order defined Criminally - the remedial code of the Russian Federation, establishes presence or absence of the circumstances which are subject dokazyvaniju by manufacture on criminal case.

14. Under admitted at drawing up of the bill of particulars or the indictment infringements of requirements criminally - the remedial law it is necessary to understand such infringements stated in articles 220, 225 UPK the Russian Federation of positions which exclude possibility of acceptance by decision court on the merits of the case on the basis of the drawn conclusion or the certificate. In particular, adjudication possibility in cases when the charge stated in the bill of particulars or the indictment, does not correspond to the charge stated in the decision about attraction as the accused is excluded; when the bill of particulars or the indictment it is not signed by the inspector, the investigator or it is not confirmed by the public prosecutor; when in the bill of particulars or the indictment there is no instructions on last previous convictions accused, data about the location accused, the data about the victim if it has been established on business, etc.

If there is a necessity of elimination of other obstacles of consideration of the criminal case, specified in points 2 - 5 parts of 1 article 237 UPK the Russian Federation, and also in other cases when in pre-judicial manufacture essential transgressions have been admitted, not removable in judicial session, and elimination of such infringements is not connected with completion of incompleteness of the made inquiry or preliminary investigation, the judge according to a part of 1 article 237 UPK the Russian Federation under own initiative or under the party petition in an order provided by articles 234 and 236 UPK Russian Federation, returns business to the public prosecutor for elimination of the admitted infringements. Simultaneously with it the judge according to a part of 3 articles 237 UPK the Russian Federation makes the decision on a preventive punishment concerning accused (including on imprisonment) and lists it behind Office of Public Prosecutor.

When the essential transgression which is admitted in a pre-judicial stage and being an obstacle to consideration of criminal case, is revealed at proceeding, court if it cannot eliminate such infringement independently, under the petition of the parties or under the initiative returns business to the public prosecutor for elimination of the specified infringement provided that it will not be connected with completion of incompleteness of the made inquiry or preliminary investigation.

At removal of the decision on returning of criminal case the public prosecutor to court should recognise that infringement in a pre-judicial stage guaranteed by the Constitution of the Russian Federation of the right accused on judicial protection and the rights of the victim to access to justice and indemnification of the caused damage is excluded by possibility of the decision of a lawful and well-founded sentence.

it is necessary to mean also that in such cases after returning has put court the public prosecutor (and also under its instructions the inspector or the investigator) have the right, proceeding from the constitutional norms to spend the investigatory or other remedial actions necessary for elimination of revealed infringements, and, being guided by articles 221 and 226 UPK the Russian Federation, to make the new bill of particulars or the new indictment.

15. If aboutvinjaemyj has refused reception of a copy of the bill of particulars or the indictment (a part of 4 articles 222 and a part of 3 articles 226 UPK the Russian Federation) and business has entered court with instructions the public prosecutor of the reasons on whom the copy of the bill of particulars (indictment) has not been handed over accused, the court accepts one of the decisions specified in points 1 - 3 parts of 1 article 227 UPK the Russian Federation. At purpose on such business of judicial session the court spends its preparatory part with observance of the rules provided by chapter 36 UPK the Russian Federation, except for the criminal codes of Russian Federation of the positions which have established stated regarding 2 article 265 that proceeding can be begun not earlier than 7 days from the date of delivery accused copies of the bill of particulars (indictment).

At the same time to court in each specific case it is necessary to find out, for what reasons for the accused the copy of the bill of particulars (indictment) is not handed over, a leah refusal in its reception in written form is issued, a leah the absence fact on a call and etc. is confirmed documentary If the accused has disappeared also its site it is not known, the judge makes the decision according to a part of 2 articles 238 UPK the Russian Federation.

16. To Pay attention of courts to their duty to observe the Russian Federations containing regarding 2 article 255 UPK positions that the term of holding in custody estimated from the date of receipt of criminal case in court and before adjudgment, cannot exceed six months.

If the imprisonment term under guards as a preventive punishment, selected to the defendant who is accused of fulfilment heavy or especially grave crime, expires, the court has the right to prolong it on the basis of a part of 3 articles 255 UPK the Russian Federation. In definition (decision) the substantiation of necessity of the further maintenance of the defendant in custody should be held and term for which it is prolonged is specified.

17. At stay of criminal case concerning accused at preliminary hearing on the bases specified in points 2 - 4 parts of 1 article 238 UPK the Russian Federation, court simultaneously with it have the right to select or change or cancel the preventive punishment selected to it, being guided by a part of 1 article 255 UPK the Russian Federation. In this case the specified decision is stated in the decision about manufacture stay on business.

When there is a necessity of prolongation of term of the maintenance of the defendant under guards, the judge holds judicial session by the rules provided by article 109 UPK the Russian Federation, and takes out the corresponding decision with reduction of a substantiation of the made decision.

18. According to a part of 3 articles 427 UPK the Russian Federation court, having received criminal case with the bill of particulars or with the indictment concerning the minor accused, committed a crime of small or average weight, have the right to stop business and to apply to the minor accused a forced measure of educational influence if during preliminary investigation of criminal case it will be established that correction of the minor accused can be reached without punishment application.

In such cases the court under the petition of the party or under own initiative in the presence of the bases for the criminal case termination carries out preliminary hearing. If criminal case concerning the minor accused has been stopped on the bases specified regarding 1 article 427 UPK the Russian Federation court in an order provided by a part of 2 these articles, solves a question on application to such person of forced measures of the educational influence provided by a part of 2 articles 90 of the criminal code of Russian Federation.

19. At absence in judicial session of the victim or the witness announcement of their indications, before the data them by manufacture of preliminary investigation or proceeding, according to a part of 1 article 281 UPK the Russian Federation is supposed only with the consent of the parties. In the cases provided by a part of 2 articles 281 UPK the Russian Federation, announcement of indications of the victim or the witness does not demand the consent of the parties.

If during proceeding essential contradictions in indications of the victim or the witness in comparison with indications earlier given by them will be found out by manufacture of preliminary investigation or in judicial session, the court has the right to announce such indications only under the party petition (a part of 3 articles 281 UPK the Russian Federation). In this case the consent of other party it is not required.

20. If the witnesses who were in judicial session give evidences about the same circumstances of the committed crime or the data characterising the person of the defendant, marital status and etc. owing to what one of the parties has declared the petition for the termination of interrogation of other witnesses called for evidence about the same circumstances of business, the court according to a part of 4 articles 271 UPK the Russian Federation has not the right to satisfy it if the party under which initiative the petition for their interrogation has been declared, against it minds.

21. To pay attention of courts that according to a part of 4 articles 354 UPK the Russian Federation the right of the appeal of the judgement is given not only to the state accuser, but also not accepting participation in proceeding to the higher public prosecutor. On sense of point 31 of article 5 UPK the Russian Federation should be understood as the higher public prosecutor higher on a post in relation to the state accuser of the public prosecutor (its assistant), the Federal law vested according to article 36 “ About Office of Public Prosecutor of the Russian Federation “ powers on bringing of representations on judgements.

22. Proceeding from a part of 2 articles 360 UPK the Russian Federation court of appeal or cassation instance, checking legality, validity and justice of the judgement, can fall outside the limits appeal or the appeal or representation if it will not admit deterioration of position denounced. In this case the court of appeal or cassation instance accepts accordingly one of the decisions specified in points 2 or 4 parts of 3 articles 367 UPK the Russian Federation or in points 2, 3 or 4 parts of 1 article 378 UPK the Russian Federation.

23. If court of cassation instance, checking under appeals and representations legality, validity and justice of a sentence and other judgement (article 373 UPK the Russian Federation), will establish that the sentence is decided by court of the first instance, unauthorized it to take out, and also to make decisions during manufacture on criminal case (point 52 of article 5 UPK the Russian Federation), such sentence anyway is subject to cancellation, as taken out by illegal structure of court (point 2 of a part of 2 articles 381 UPK the Russian Federation).

24. Courts should mean that the verdict of “not guilty“ can be excellent court of cassation instance with observance of the requirements provided by article 385 UPK the Russian Federation.

25. According to a part of 4 articles 377 UPK the Russian Federation by criminal case consideration in a cassation order the court has the right to investigate directly under the party petition proofs according to requirements of chapter 37 UPK the Russian Federation. It is necessary to understand check of the proofs available in criminal case which have received an estimation of court of the first instance as such research (announcement of indications of witnesses, the victim, the expert`s statement and etc.) . To the additional materials presented to cassation instance, it is necessary to carry characteristics, inquiries on awards, physical inabilities, copies of the judgements which have entered validity, and also other documents if they are received according to the remedial legislation. Conducting the report of judicial session in court of cassation instance is not provided by the law.

26. To explain to courts that on sense of a part of 2 articles 255 UPK the Russian Federation the period after adjudgment to its introduction into validity and if the sentence is appealed against according to article 354 UPK the Russian Federation, - before consideration in an appeal or cassation order of the complaint or representation denounced under guards does not enter into six-monthly term of the maintenance.

At cancellation by cassation instance of a sentence with a criminal case direction on new proceeding concerning the defendant held in custody, the court of the first instance makes the decision on its clearing from - under guards in cases when has expired six-monthly term of holding in custody on the case of a crime of small or average weight.

If the sentence on the case of heavy or especially grave crime with a business direction on new proceeding is excellent, the court of the first instance should solve a question on a preventive punishment, meaning that on affairs of this category the law at presence to that of the bases supposes prolongation of this term (a part of 3 articles 255 UPK the Russian Federation). The court notifies pre-trial detention centre administration On the accepted decision in a place of the maintenance of the defendant under guards.

27. On sense of norms of chapter 40 UPK the Russian Federation the withdrawals established at a special order of acceptance of the judgement, allow court not to conduct research of the proofs collected on business in the general order. In other part judicial session should be spent with observance of requirements of corresponding articles of chapters 35, 36,38 and 39 UPK the Russian Federation.

In a preparatory part of judicial session participation, along with the defendant and its defender, the state or private accuser should be provided. The court should find out from the defendant, a leah to clearly it charge, a leah completely he agrees with charge and the civil suit if that is declared, and also a leah supports it the petition for the decision of a sentence without proceeding carrying out; a leah this petition voluntary and after consultations of the defender is declared; a leah realises it consequences of the decision of a sentence without proceeding carrying out. If on business some persons are accused, and the petition for the decision of a sentence without proceeding carrying out was declared only by one accused, such business in the relation of all accused should be considered in the general order.

28. By a legal investigation in a special order (section X UPK the Russian Federation) the law provides the decision only a verdict of guilty. Therefore when the judge before adjudgment will establish that on business there are any circumstances interfering removal of a verdict of guilty, or there are bases for change of qualification of a criminal conduct, removal of action or the justifying of the defendant, it takes out the decision about the termination of a special order of proceeding and appoints criminal case consideration in the general order.

If the defendant does not agree with some episodes of charge or expresses disagreement with the bases or volume of the shown civil suit, its petition for the decision of a sentence without carrying out of proceeding is not subject to satisfaction. In these cases business should be considered in accordance with general practice.

Meaning that owing to a part of 5 articles 316 UPK the Russian Federation the judge investigates only the circumstances characterising the person of the defendant, and the circumstances softening and aggravating punishment (a part of 5 articles 316 UPK the Russian Federation), the court has not the right to refuse to the parties possibility to participate in debate, and to the defendant in last word to be voiced on these questions in an order provided by articles 292 and 293 UPK Russian Federation. Purpose to the defendant of punishment should be motivirovano in a sentence.

Courts should recognise that the law does not provide possibility of application of a special order of acceptance of the judgement concerning the minor as owing to a part of 2 articles 420 UPK the Russian Federation manufacture on criminal case about a crime made by the minor, is carried out in the general order established by parts 2 and 3 UPK Russian Federation, with the withdrawals provided by chapter 50 of this Code. Thus it is necessary to mean that according to the law on affairs about crimes of minors by manufacture of proceeding with participation of the lawful representative of the minor it is necessary to establish his life and education conditions, level of mental development and other features of the person of the defendant, influence on it seniors on age of persons. At the sentence decision along with the questions specified in article 293 UPK the Russian Federation, court is obliged to solve a question on possibility of clearing of the defendant from punishment.

29. According to parts of 7 and 8 articles 246 UPK the Russian Federations full or a partial failure of the state accuser from charge in a proceeding course, and also change of charge by it towards softening predetermine acceptance by decision court according to a position of the state accuser as criminally - the remedial law recognises that criminal legal proceedings is carried out on the basis of a principle of competitiveness and equality of the parties, and the formulation of charge and its maintenance before court are provided with an accuser.

At the same time the state accuser according to law requirements should state to court motives full or a partial failure from charge no less than change of charge towards softening referring to the bases provided by the law.

the Court should consider the specified offers in judicial session with participation of the parties of charge and protection on the basis of research of materials of the business, concerning positions of the state accuser, and discussion results to reflect in the report of judicial session.

the Judgement accepted in connection with full or a partial failure of the state accuser from charge or in connection with change by it of charge towards softening, can be appealed against participants of judicial manufacture or the higher public prosecutor in an appeal or cassation order.

30. According to a part of 1 article 402 UPK the Russian Federations as supervision can be reconsidered sentences, definitions, decisions of courts of the first instance, judgements of courts of the appeal and cassation instances, entered validity if for it petition the suspect accused, denounced, justified or their defenders, the lawful representative, the victim either its representative or the public prosecutor. Entered court of supervising instance of the petition of other persons and public organisations about revision as supervision of the named judgements which have entered validity to consideration are not subject and come back to applicants with explanations of the operating remedial legislation.

31. To explain to courts that owing to article 402 UPK the Russian Federation the decisions which have entered validity of the judge about election to the suspect, accused a preventive punishment in the form of imprisonment (article 108 UPK the Russian Federation) and about prolongation of holding in custody term by it (a part of 8 articles 109 UPK the Russian Federation), and also definitions (decision) of court about prolongation of term of the maintenance of the defendant under guards (a part of 3 articles 255 UPK the Russian Federations) can be reconsidered as supervision.

32. In connection with acceptance of the present decision to recognise become invalid the decision of Plenum of the Sovereign Court of the Russian Federation:

from April, 27th, 1993 N 3 “ About practice of judicial check of legality and validity of arrest or prolongation of term of holding in custody “ (in edition of the decision of Plenum from December, 21st, 1993 N 11, with changes and the additions brought by the decision of Plenum from September, 29th, 1994 N 6);

from September, 29th, 1994 N 6 “ About performance by courts of the decision of Plenum of the Sovereign Court of the Russian Federation from April, 27th, 1993 N 3 “ About practice of judicial check of legality and validity of arrest or prolongation of term of holding in custody “ (in edition of the decision of Plenum from October, 25th, 1996 N 10);

from December, 8th, 1999 N 84 “ About practice of application by courts of the legislation regulating a direction of criminal cases for additional investigation “.

the Chairman of the Sovereign Court
the Russian Federation
V.Lebedev

the Secretary of Plenum,
the judge of the Sovereign Court
Russian FedePortable radio sets
V.Demidov