On behalf of the Russian Federation
of November 14, 2017 No. 28-P
On the case of check of constitutionality of separate provisions of the Code of penal procedure of the Russian Federation in connection with the claim of the citizen M. I. Bondarenko
Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, K. V. Aranovsky's judges, A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, O. S. Hokhryakova, V. G. Yaroslavtsev,
with participation of the citizen M. I. Bondarenko and his representatives - lawyers B. A. Aleksyuk, A. V. Leonidchenko and V. V. Leonidchenko, the plenipotentiary of the State Duma in the Constitutional Court of the Russian Federation T. V. Kasayeva, the representative of the Federation Council - Candidate of Law Sciences E. Yu. Egorova, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation M. V. Krotov,
being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
considered case on check of constitutionality of separate provisions of the Code of penal procedure of the Russian Federation in open session.
Reason for consideration of the case was the claim of the citizen M. I. Bondarenko. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation challenged by the applicant of legislative provision.
Having heard the message of the judge-speaker N. V. Melnikov, explanation of agents of the parties, speeches of the representatives invited in meeting: from the Ministry of Justice of the Russian Federation - M. A. Melnikova, from the Prosecutor General of the Russian Federation - T. A. Vasilyeva, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. The applicant on this case citizen M. I. Bondarenko challenges constitutionality of following provisions of the Code of penal procedure of the Russian Federation:
Item 3 parts two of Article 133, Article parts five 135, Article parts one 136, Articles 137 and 138, regulating according to the basis of emergence of the right to rehabilitation, procedure for compensation rehabilitated property harm, elimination of consequences of moral harm, recovery of other its rights, and also appeal of the decision on payment execution in indemnification connected with criminal prosecution;
Articles 63, the judge fixing inadmissibility of repeated participation in consideration of criminal case; Article parts one 214, the cancellation of the resolution on the termination of criminal case or criminal prosecution establishing rules; Item 1 of Article 397 and Article 399, the questions determining circle which are subject to consideration by court in case of execution of sentence and procedure for their permission.
1.1. The verdict of not guilty pronounced on August 12, 2009 by October district court of the city of Krasnodar concerning M. I. Bondarenko accused of making of number of crimes was cancelled by determination of the Krasnodar regional court of November 18, 2009 what the judge of the same court agreed with, having refused to the resolution of March 23, 2010 satisfaction of the supervising claim of the party of protection. By results of new judicial review the Trial Court returned on May 17, 2010 criminal case to the prosecutor according to the procedure of article 237 Code of Criminal Procedure of the Russian Federation, and on October 9, 2012 the body of pretrial investigation dismissed criminal case against M. I. Bondarenko for lack of evidence and recognized behind it the right to rehabilitation.
Satisfaction of the requirement of M. I. Bondarenko about compensation to it as rehabilitated the property harm connected with criminal prosecution it was refused by the resolution of October district court of the city of Krasnodar of August 28, 2013 with which courts of appeal and cassation instances agreed. However presidium of the Krasnodar regional court, having considered the writ of appeal M transferred to it on December 11, 2014 by the vice-chairman of the Supreme Court of the Russian Federation. And. Bondarenko, the resolution of February 11, 2015 met the declared requirements, cancelled decisions of the courts of the first and second instances, and sent case for new judicial review by results of which the Prikubansky district court of the city of Krasnodar the resolution of August 18, 2015 recognized by superior courts legal and reasonable refused satisfaction of the requirement of the applicant, having referred in addition to the fact that the prosecutor provided in judicial session the resolution of August 13, 2015 which repeals the resolution of body of pretrial investigation of October 9, 2012 about the termination concerning the applicant of criminal case and its criminal prosecution is resumed.
The second statement of M. I. Bondarenko for compensation of property harm is left without satisfaction with the resolution of Prikubansky district court of the city of Krasnodar of October 24, 2013 what courts of appeal and cassation instances agreed with. In turn, the presidium of the Krasnodar regional court where on February 2, 2015 the judge of the Supreme Court of the Russian Federation transferred the writ of appeal of M. I. Bondarenko, cancelled on March 25, 2015 decisions of the courts of the first and second instances and sent case for new trial following the results of which requirements of the applicant are partially met by the resolution of Prikubansky district court of the city of Krasnodar of May 18, 2015 and in its advantage 1 114 912 rub 44 kopeks are exacted. However according to the statement of the prosecutor this resolution is repealed by Trial Court in view of newly discovered fact - renewal of criminal prosecution of M. I. Bondarenko after cancellation by the prosecutor on August 13, 2015 resolutions on the termination of criminal case of October 9, 2012 (the resolution of October 9, 2015 with which the judge of the Krasnodar regional court who issued according to the writ of appeal of the applicant the decree of July 7, 2016 agreed).
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