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

of January 11, 2007 No. 1

About application by courts of the regulations of Chapter 48 of the Code of penal procedure of the Russian Federation regulating production in supervising instance

Due to the questions arising at courts in case of the review according to the procedure established by Chapter 48 of the Code of Criminal Procedure of the Russian Federation which took legal effect of sentences, determinations and court orders, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, decides to make to courts the following explanations:

1. The sentence which took legal effect, determination, the court order can be appealed according to the procedure of supervision: the suspect, the person accused, the convict, justified, person against whom criminal case is dismissed, person concerning which production about application of enforcement powers of medical nature was conducted or conducted, their defenders or legal representatives, the victim, his legal representative or the representative, the civil claimant, the civil defendant, their legal representatives or representatives (in the part concerning the civil action), the prosecutor, the private prosecutor, his legal representative or the representative, the Commissioner for Human Rights in the Russian Federation, and also other persons whose rights and legitimate interests are infringed by the judgment.

2. Production in supervising instance is performed with observance of the stipulated in Clause 403 Codes of Criminal Procedure of the Russian Federation of the requirement of instantsionnost according to which supervising claim or representation, as well as criminal case, are considered in subordinate in the beginning, and then in superior court of supervising instance. At the same time in sense of article 406 Code of Criminal Procedure of the Russian Federation preliminary production according to the claim or representation in each supervising instance is performed in two stages: in the beginning the petition is considered by the judge, and then if grievance settlement or representations it is refused, the judge's ruling can be checked by person specified in part four of article 406 Code of Criminal Procedure of the Russian Federation. With respect thereto supervising claim or representation can be accepted to production of the judge of superior court only when by the judge's ruling of subordinate court of supervising instance grievance settlement or representations it is refused also the chairman of this court, having checked the judge's ruling according to the claim or representation, agreed with the decision of the judge or when the decision of this court passed according to the procedure was, established by articles 407, of 408 Codes of Criminal Procedure of the Russian Federation.

3. The judge's ruling of district court (garrison military court) issued according to the procedure of execution of sentence regardless of that what court of level decided sentence, can be reviewed according to the procedure of supervision only with observance of instantsionnost, the stipulated in Clause 403 Codes of Criminal Procedure of the Russian Federation, that is at first the resolution can be appealed in presidium of the relevant Supreme Court of the republic, court regional, regional or equal to them, then in Judicial board on criminal cases of the Supreme Court of the Russian Federation (Military board of the Supreme Court of the Russian Federation) and only after it in Presidium of the Supreme Court of the Russian Federation.

Supervising claim or representation in which sentence and the judge's ruling issued according to the procedure of execution of sentence are at the same time appealed are subject to consideration by Supervisory Court, competent to review sentence, regardless of that what judge of district court (the same or other subject of the Russian Federation) passed the decision according to the procedure of execution of sentence.

If when studying arrived in the Supreme Court of the Russian Federation supervising claims or representations in which the question of review of sentence and the subsequent judgments is put, including and the judge's ruling issued according to the procedure of execution of sentence the judge of the Supreme Court of the Russian Federation will establish availability of legal basis for review only of the judge's ruling issued according to the procedure, the Code of Criminal Procedure of the Russian Federation provided by Chapter 47, it initiates supervising production and submits the petition of Supervisory Court, competent to review this resolution. At the same time the judge leaves the claim or representation in that part in which the question of review of sentence is put without satisfaction.

The supervising claim which arrived in the Supreme Court of the Russian Federation or representation in which the question only of review of the judge's ruling of district court (garrison military court) pronounced according to the procedure of execution of sentence is put the judge of the Supreme Court of the Russian Federation submits to the relevant subordinate court of supervising instance if earlier they were not consideration subject in this court.

4. According to Article part one provisions 125, of part two of Article 127 and article 403 Code of Criminal Procedure of the Russian Federation according to the procedure of supervision the judgment which took legal effect passed both during judicial can be reviewed and during pre-judicial criminal proceeding.

Owing to the constitutional provision fixed in parts one of article 120 of the Constitution of the Russian Federation, any intervention in activity of the courts in case of administration of law including from higher degrees of jurisdiction, is inadmissible. With respect thereto the judgments which took legal effect passed during pre-judicial production can be reviewed according to the procedure of supervision only before transfer of criminal case to Trial Court for consideration on the merits.

The determinations and resolutions provided by part five of article 355 Code of Criminal Procedure of the Russian Federation, except for determinations and resolutions on imposing of cash collection are not subject to appeal according to the procedure of supervision. Legality and justification of the specified judgments can be checked along with check of legality and justification of the final decision on case.

5. In sense of part one of article 406 Code of Criminal Procedure of the Russian Federation the time established by it does not join time connected with reclamation of criminal case.

In case of the solution of question of the reclamation of criminal case according to the procedure provided by part two of article 406 Code of Criminal Procedure of the Russian Federation it is necessary to recognize that case shall be requested in each case when there are doubts in legality, justification and justice of sentence, legality and justification of determination or the resolution.

Persons, competent to consider applications for revision of the sentences which took legal effect, determinations and court orders having no right to allow refusal in reclamation of criminal cases if the arguments containing in the claim or representation are not confuted by the proofs provided in court documents.

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