RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF UZBEKISTAN

of June 1, 2001 No. 5

About practice of consideration of criminal cases in cassation and supervising procedure

Consideration of criminal cases in cassation and supervising procedure is important form of check by court of higher instance of the legality, justification and justice of the passed judgments directed to elimination of miscarriages of justice.

Regulations of the criminal procedure law are generally applied by courts correctly, however, mistakes therefore the decisions which are not corresponding to the law are passed are in certain cases made.

For the purpose of explanation of the questions which arose by hearing of cases in cassation and supervising procedure, ensuring uniform court practice in the specified stages of legal proceedings, being guided by article 17 of the Law "About Courts", the Plenum of the Supreme Court of the Republic of Uzbekistan decides:

1. Draw the attention of courts that consideration of criminal cases in cassation and supervising procedure, guarantees increase in efficiency of justice by correction of miscarriages of justice.

2. Explain to courts that the group of people, having the right in accordance with the established procedure to make the complaint or to bring protest in cassation procedure or to ask to review judgments according to the procedure of supervision is determined in Articles 498, of 510, 511 both 516 Codes of penal procedure, and is not subject to expanded interpretation.

3. Superior courts shall check correctness of registration of cases by subordinate courts for consideration in cassation procedure, according to requirements of part 4 articles 473, of articles 479, of 498 Codes of Criminal Procedure, in particular, of accomplishment of the following requirements:

explanations to the parties sentence essence, term and procedure for its appeal in appeal or cassation procedure;

notices of the interested participants of process on the arrived claim or protest;

deliveries of copies of judgments to the condemned (prisoner), the victim or justified;

acquaintance of the above-stated and other interested persons with the claim or protest, with in addition submitted documents, and objections on them;

messages on the place and time of consideration of the case to person who made the writ of appeal and also other persons whose interests are infringed;

explanations to the condemned (prisoner), justified, to their defenders and legal representatives, the victim, the civil claimant, the civil defendant, and also their representatives, their participation right provided by the law in consideration of the case of higher instance by court.

4. Explain that the right of defense provided by the Criminal procedure law shall be provided to any participant of process and at any stage of legal proceedings. With respect thereto based on the principles of public consideration of criminal cases and competitiveness of the parties, participants of process have the right to study the arrived claim, protest or the additional materials collected on case and to report the objections. However assignment on them such obligations contradicts the law.

Consideration of criminal cases in cassation and supervising procedure is allowed only if the claim or protest which are the basis for consideration of the case and providing application of the law on more serious crime, strengthening of punishment or the worsening situation of the condemned (prisoner), justified were in the appropriate order handed to the condemned (prisoner), justified for acquaintance, at the same time the right of the message of objection to the claim or protest is really provided to them.

5. Adjournment of consideration of the case is the next day allowed only on reasonable excuses. If persons who are involved in consideration of the case timely are also properly notified on its hearing, but were not in court and did not notify somehow on reasonable excuses of absence, then in this case the court discusses question of consideration of the case without their participation, to be taken out determination which is entered in the protocol of judicial session.

6. The question of challenge in judicial session of the condemned (prisoner), witnesses, experts, specialists, and in necessary cases of other persons, is solved court, cassation or supervising instance according to requirements of articles 506 and 516 Codes of Criminal Procedure, taking into account the facts of the case proceeding from requirements of the procedural law (the article 46, of 55 and 479 Codes of Criminal Procedure) about what the court takes out determination.

7. Courts shall not interpret unilaterally sense of the law that the cases considered in appeal procedure are not subject to consideration in cassation procedure. Only the case considered in appeal procedure concerning the particular person and on one basis cannot be considered in cassation procedure.

8. Excluded

9. The question of consideration of the claim or protest, arrived after consideration of the case in cassation procedure is solved according to article 508 Code of Criminal Procedure.

If this determination will be in conflict with earlier taken out, case goes to the chairman of justices, competent to bring protest according to the procedure of supervision, for the solution of question of protest of one or both determinations. The procedure for additional hearing of cases is applied also to the permission of the private claim or frequent protest which arrived with delay.

10. According to article 482 Code of Criminal Procedure when considering the case in cassation and supervising procedure the court shall not be limited only to the arguments given in the claim or protest, and shall check legality justification of judgments in full concerning all convicts (justified) including those which did not make complaints and concerning which the protest is not brought.

When considering the case the higher instance shall eliminate the mistakes made by Trial Court in case of application of the material or procedural law irrespective of whether about it it was specified in the claim or protest.

11. In the presence of opportunity to eliminate defects and the violations of the procedural law allowed by Trial Court, the court of cassation or supervising instance has the right to hold partial court investigation and to make changes to sentence.

By part 2 of article 490 Code of Criminal Procedure it is determined that Supervisory Court considering criminal case according to the procedure of supervision, cancels appeal or cassation determination, and also if judicial determinations were taken out, resolutions it also cancels them and sends case for new appeal or cassation trial. This rule does not exclude power of Supervisory Court to change determinations and resolutions (Art. 521 of the Code of Criminal Procedure), without worsening at the same time situations of the condemned (justified) person.

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