of September 28, 2006 No. 8
About practice of the resolution by courts of verdicts of not guilty
Having discussed results of generalization of practice of the resolution by courts of verdicts of not guilty, for the purpose of ensuring the correct and uniform application by courts of the law Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that the resolution of lawful and reasonable verdicts of not guilty is important equitable remedy of citizens from superficial criminal prosecution.
Each innocent is subject to justification (the p. 4 of Art. 350 of the Code of Criminal Procedure).
2. Person is found not guilty in the presence of the Codes of Criminal Procedure of the bases for the resolution of the verdict of not guilty specified in Art. 357. Therefore, making the decision on the person accused justification, the court shall specify on what of these bases the verdict of not guilty is decided and to give motives of such decision.
3. Explain to courts that the verdict of not guilty in the absence of socially dangerous act provided by the penal statute (item 1 p.1 of Art. 357 of the Code of Criminal Procedure), is decided in cases when action (failure to act) which was imputed to the person accused was not made, and the effects specified in accusation did not take place or came irrespective of someone's will, for example owing to action of forces of nature, or these effects came from actions of person to whom harm is done.
4. The justification in act of the charged actus reus (item 2 p.1 of Art. 357 of the Code of Criminal Procedure) shall follow absence when act is actually made, but the penal statute it is not recognized quality of crime or does not contain all signs of actus reus: the person accused is not subject of crime; there is no administrative pre-judiction as necessary element of actus reus; there is no causal relationship between action (failure to act) and socially dangerous effects.
The actus reus is also absent if the circumstance UK provided by Chapter 6 excluding crime of act are established (act is made in condition of justifiable defense, emergency, etc.), and is equal if the voluntary refusal of crime execution (Art. 15 of UK) took place.
Besides, on this basis the verdict of not guilty is decided when the actions specified in accusation formally contain signs of the act provided by the Criminal code, but owing to insignificance have no the public danger inherent in crime (the p. 4 of Art. 11 of UK).
5. Person is subject to justification behind absence of proof of its participation in crime execution (item 3 p.1 of Art. 357 of the Code of Criminal Procedure) if during legal proceedings event of crime and its effect are established, but are not confirmed by the evidence produced to court or its making by the person accused is excluded. The justification on this basis can take place, in particular, when: as a result of legal proceedings doubts in justification of the brought charge which owing to the p. 3 of Art. 16 of the Code of Criminal Procedure are interpreted for benefit of the person accused are not eliminated; on case there are proofs about possible crime execution by other person; the evidence produced by the party of accusation is rejected by court because of their inadmissibility, unauthenticity or insufficiency.
7. Draw the attention of courts that after statement of essence of the brought charge and the circumstances of criminal case established by court it is necessary to provide the proofs which formed the basis for the person accused justification in descriptive and motivation part of the verdict of not guilty. At the same time all proofs which proved accusation with reduction of motives for which they are rejected by court are subject to assessment, and the formulations applied at the same time shall not call into question innocence of justified.
In case of justification behind absence of proof of participation of person in crime execution the sentence shall not contain also conclusions about the valid or expected guilt in making of specific crime of the other persons who are not brought to trial.
8. Conclusions of court about inadmissibility of the evidence produced by accusation shall contain motives for which these proofs are rejected. At the same time shall be in detail motivated what violations of requirements of the Code of penal procedure entailed inadmissibility of proofs.
The proofs untrue are recognized doubtful. Checking proofs regarding compliance of their reality, the court shall establish their source and compare with other proofs. Rejecting one proofs because of their unauthenticity, the court shall give motives based on which it came to conclusions about reliability of other proofs.
If set of the produced evidence as a result of comprehensive, complete and their objective check by court does not allow to establish the circumstances which are subject to proof on criminal case they are recognized insufficient. Finding collected in the matter of the proof insufficient for the resolution of conviction, the court shall specify what of the circumstances which are subject to proof on criminal case according to provisions of Art. 89 of the Code of Criminal Procedure during legal proceedings are not established.
The resolution of the verdict of not guilty only based on unmotivated doubts in admissibility, reliability and sufficiency of the proofs confirming accusation, inadmissibly.
9. In the presence of recognition by the person accused of the fault the possibility of the resolution of the verdict of not guilty is not excluded if set collected in the matter of other proofs raises reasonable doubts in its reliability. In such cases the court during legal proceedings needs to take measures to clarification of motives by which the person accused is guided.
10. Explain to courts that in case of the resolution of the verdict of not guilty concerning person accused of making of several crimes qualified by one or several Articles of the penal statute, the court shall formulate with reduction of motives conclusion about accusation recognition unreasonable under each Article (Item) of accusation with indication of the corresponding basis of justification.
If the crime committed by the person accused was mistakenly qualified by several Articles of the penal statute, then the court only in descriptive and motivation part of conviction shall motivate exception of accusation of mistakenly imputed articles of the Criminal Code.
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