RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of March 5, 2004 No. 1

About application of regulations of the Code of penal procedure of the Russian Federation by courts

Due to the questions which arose in court practice on application of some regulations of the Code of penal procedure of the Russian Federation (further - the Code of Criminal Procedure of the Russian Federation), the Plenum of the Supreme Court of the Russian Federation decides to make to courts the following explanations:

1. Draw the attention of courts to their obligation by consideration of criminal cases and pronouncement of decisions to observe the principles of the criminal trial having the appointment protection of the rights and legitimate interests of persons and the organizations which were injured from crimes and also protection of the personality against illegal and insubstantial accusation, condemnation, restriction of its rights and freedoms established by Chapter 2 the Code of Criminal Procedure of the Russian Federation.

2. Resolving issue of whether the proof on criminal case is inadmissible on the bases specified in Item 3 of part 2 of article 75 Code of Criminal Procedure of the Russian Federation, the court shall find out in each case in what the allowed violation was specifically expressed. Owing to part 7 of article 235 Code of Criminal Procedure of the Russian Federation by consideration of criminal case in essence the court according to the petition of the party has the right to consider repeatedly question of recognition of the excluded proof admissible.

3. No. 29 is excluded according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 30.06.2015.

4-11. Are excluded

12. Ceased to be valid

12.1.  No. 19 is excluded according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 01.06.2017

13. The indictment, the indictment or the accusatory resolution according to Items 5 and 6 of part 1 of article 220 Code of Criminal Procedure of the Russian Federation, Item 6 of part 1 of article 225 Code of Criminal Procedure of the Russian Federation and part 1 of article 226.7 Code of Criminal Procedure of the Russian Federation of the Code of Criminal Procedure of the Russian Federation shall include, in particular, the list of the proofs confirming accusation, and the list of proofs to which the party of protection refers. If on case several persons accused are attracted or to the person accused it is imputed several episodes of accusation, then the list of the specified proofs it shall be brought separately on each person accused and on each episode of accusation.

The list of the proofs confirming accusation, and also the list of proofs to which the party of protection refers includes not only the reference to sources of proofs in the indictment, the indictment or the accusatory resolution, but also reduction of the summary of proofs as owing to part 1 of article 74 Code of Criminal Procedure of the Russian Federation proofs on criminal case are any data on the basis of which court, the prosecutor, the investigator, the investigator according to the procedure, determined by the Code of penal procedure of the Russian Federation, establishes availability or lack of the circumstances which are subject to proof in case of criminal proceeding.

14. It is necessary to understand such violations of 225 Codes of Criminal Procedure of the Russian Federation of provisions stated in Articles 220, which exclude possibility of adoption of the substantive judgment by court based on this conclusion or the act as the violations of requirements of the criminal procedure law allowed in case of creation of the indictment or indictment. In particular, the possibility of adjudication in cases when the accusation stated in the indictment or the indictment does not correspond to the accusation stated in the resolution on attraction as the person accused is excluded; when the indictment or the indictment it is not signed by the investigator, the investigator or not approved as the prosecutor; when in the indictment or the indictment are absent specifying on the last criminal records of the person accused, data on the location of the person accused this about the victim if he was established on case, etc.

If there is need of elimination of other obstacles of consideration of criminal case specified in Items 2 - 5 parts 1 of article 237 Code of Criminal Procedure of the Russian Federation, and also in other cases when in pre-judicial production fundamental breaches of the law were allowed, not removable in judicial session, and elimination of such violations is not connected with completion of incompleteness of the held inquiry or pretrial investigation, the judge according to part 1 of article 237 Code of Criminal Procedure of the Russian Federation on own initiative or according to the petition of the party according to the procedure, provided by articles 234 and 236 Codes of Criminal Procedure of the Russian Federation, returns case to the prosecutor for elimination of the allowed violations. Along with it the judge according to part 3 of article 237 Code of Criminal Procedure of the Russian Federation makes the decision on measure of restraint on the person accused (including on detention) and lists it behind prosecutor's office.

When the fundamental breach of the law allowed in pre-judicial stage and which is obstacle to consideration of criminal case is revealed in case of legal proceedings, court if it cannot eliminate such violation independently, according to the petition of the parties or on the initiative returns case to the prosecutor for elimination of the specified violation provided that it will not be connected with completion of incompleteness of the held inquiry or pretrial investigation.

In case of decision about return of criminal case to the prosecutor to court it is necessary to recognize that violation in pre-judicial stage guaranteed by the Constitution of the Russian Federation of right of the accused on judicial protection and the victim's rights to access to justice and compensation of the caused damage excludes possibility of the resolution of lawful and reasonable sentence.

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