On behalf of the Russian Federation

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of July 18, 2022 No. 33-P

On the case of check of constitutionality of part two of Article 27 of the Code of penal procedure of the Russian Federation and the Item "in" of part one of article 78 of the Criminal Code of the Russian Federation in connection with the claim of the citizen V. A. Rudnikov

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges K. V. Aranovsky, A. Yu. Bushev, G. A. Gadzhiyev, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov,

being guided by Article 125 (the part Item "and" 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

Reason for consideration of the case was the claim of the citizen V. A. Rudnikov. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation disputed by the applicant of legislative provision.

Having heard the message of the judge-speaker N. V. Melnikov, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation

established:

1. According to part two of article 27 Code of Criminal Procedure of the Russian Federation the termination of criminal prosecution on the basis provided including Item 3 parts one of article 24 of this Code, are not allowed if the suspect or the person accused objects to it, and in that case criminal proceeding continues regularly.

According to the Item "in" of part one of article 78 UK of the Russian Federation person is exempted from criminal liability if from the date of making of serious crime ten years expired.

1.1. On January 29, 2020 ten-year prescriptive limit of involvement of the citizen V. A. Rudnikov to criminal liability in this connection he addressed the head of investigating body in whose production there was its criminal case, with the petition for diversion behind absence in its actions of actus reus expired, specifying that the charge brought to him is insolvent, and prescriptive limit expired. On May 25, 2020 satisfaction of the petition it is refused with reference to lack of consent of the person accused to the termination of criminal prosecution on not rehabilitating basis. The party of protection disputed this decision, however the claim is left by the resolution of Babushkinsky district court of the city of Moscow of November 3, 2020 without satisfaction. As noted court, the head of investigating body drew valid conclusion that criminal case and criminal prosecution of VA. Rudnikov cannot be stopped in connection with lapse of time of criminal prosecution based on article 78 UK of the Russian Federation.

The decision of district court is left without change by the appeal resolution of the Moscow city court of December 3, 2020 which specified the following. Having determined that by the person accused it is not agreed to the termination of criminal prosecution in view of lapse of time, the Trial Court legally recognized refusal in such termination to the meeting requirements of the criminal procedure law. Check of arguments about lack of evidence in V. A. Rudnikov's actions is possible only after research all collected in the matter of proofs. On pre-judicial production stage on case such check is not included into competence of court as, estimating legality and justification of decisions, actions or failure to act of the investigator, investigator, head of investigating body and the prosecutor, the court shall not determine questions which can become afterwards subject of legal proceedings on the merits of the case.

1.2. Owing to Articles 36, 96 and 97 Federal constitutional Laws "About the Constitutional Court of the Russian Federation" concretizing Article 125 (the part Item "and" 4) of the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation takes cognizance of the claim of the citizen to violation of its constitutional rights and freedoms the regulation if comes to conclusion that there are signs of violation of the rights and freedoms of the citizen as a result of application of the act in specific case with its participation, and also uncertainty in question of whether there corresponds the act of the Constitution of the Russian Federation.

The applicant's arguments that the disputed regulations allow law enforcement agencies to apply measure of restraint after lapse of time are abstract and are not confirmed by the materials provided to them. Besides, the Constitutional Court of the Russian Federation in Determination of December 21, 2000 No. 296-O formulated legal line item according to which detention in cases is not allowed if to person custodial sanction cannot be imposed as it takes place in case of lapse of time of criminal prosecution. In this part the claim VA. Rudnikova does not answer criterion of admissibility of addresses to the Constitutional Court of the Russian Federation.

Though the applicant is accused of making of serious crime, the Constitutional Court of the Russian Federation recognizes that the disputed regulations, including in interrelation with other legislative provisions, objectively have no the features allowing to create legal line items which would raise the question of continuation of criminal prosecution after the expiration of prescriptive limits only in case of making of serious crimes and would not concern other their categories (except specified in parts four and the fifth article 78 UK of the Russian Federation of cases when prescriptive limit can not be applied or is not applied).

Thus, the part two of article 27 Code of Criminal Procedure of the Russian Federation and the Item "in" of part one of article 78 UK of the Russian Federation are subject of consideration of the Constitutional Court of the Russian Federation of this case in that measure in what on their basis after the expiration at pre-judicial stage of criminal trial of prescriptive limit of criminal prosecution, including for serious crime, the issue of continuation of criminal prosecution of the suspect or charged regularly in view of lack of its consent to the termination of criminal case on this not rehabilitating basis is resolved.

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