On behalf 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",
considered in meeting without carrying out hearing case on check of constitutionality of 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.
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
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.
Transfer of writs of appeal on the taken place judgments for consideration in judicial session of court of cassation instance it is refused by judge's rulings of the Second court of cassation of the general jurisdiction of June 4, 2021 and the judge of the Supreme Court of the Russian Federation of January 20, 2022. According to the data received by the Constitutional Court of the Russian Federation from the Prosecutor General's Office of the Russian Federation, investigation term in the matter of V. A. Rudnikov is prolonged till July 2, 2022, and up to only 34 months; charge on part four of article 159 UK of the Russian Federation is brought to him of final version, in the nearest future the investigation plans fulfillment of requirements of Articles 215 - 217 Codes of Criminal Procedure of the Russian Federation.
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