of September 26, 2002 No. 6
About some questions of applications of the criminal procedure law in Trial Court
For the purpose of ensuring the correct and uniform application of provisions of the Code of penal procedure of the Republic of Belarus in case of production on criminal cases in the Plenum of the Supreme Court of the Republic of Belarus Trial Court decides:
1. Draw the attention of Trial Courts that for protection of the rights and freedoms of citizens production on criminal cases shall be performed in strict accordance with the Constitution of the Republic of Belarus and the criminal procedure law, on the principles of integrity of human beings, presumption of innocence, providing right of the accused to defense, competitiveness and equal rights of the parties of accusation and protection and with observance of general terms of legal proceedings.
2. Explain that in the conditions of competitive process the proof obligation in the judicial session of availability of the bases of criminal liability and other circumstances important for the correct permission of criminal case lies on the state prosecutor which discloses the charge brought to person, produces the evidence, have the right to change, add or bring new charge or to refuse accusation, except as specified, of the Codes of Criminal Procedure provided by the p. 2 of Art. 455.
As protection identification of the circumstances acquitting the person accused or mitigating its responsibility enters. For this purpose the defender, exercising the right granted to him by the law to produce the evidence, can interview physical persons, request references, characteristics and other documents or their copies, to request with the consent of the person accused opinion of specialists for explanation of the questions arising in connection with implementation of protection requiring special knowledge. The materials collected by the defender according to its petition are subject to familiarizing with case.
3. The court shall create to the parties necessary conditions for implementation of the rights granted to them and accomplishment of procedural obligations, to render assistance in production of evidence according to their petition, to provide fair and impartial permission of case on the basis of strict observance of requirements of the law on department of function of implementation of justice from functions of accusation and protection.
The evidence produced both the party of accusation, and the party of protection, has no predefined force for court and shall be subjected to careful research in judicial session and objective assessment.
4. Criminal case is accepted to production of court according to the rules of cognizance established by the Art. of Art. 267-272 of the Code of Criminal Procedure.
If consideration of the case in that court to which cognizance it is referred by the law is impossible (for example, in connection with inadmissibility of repeated participation of the judge in consideration of the case, availability of the circumstances eliminating the judge from participation in case or creating impossibility of consideration of the case in this court), the chairman of superior court or its deputy for representation of the prosecutor or court to which jurisdictional put had the right to give him for consideration to other of the same name or superior court with the obligatory notice of the parties on the case referral reasons about what the decree is issued. In idea of case referral and the resolution on it it is necessary to state motives of change of cognizance.
In all other cases the case can be submitted for consideration to other of the same name or superior court for the purpose of the most bystry, complete, comprehensive and objective investigation of its circumstances only with the consent of the parties of accusation and protection.
5. Courts should mean that criminal case shall be considered by the same judge or in the same structure of court, except as specified, of the Codes of Criminal Procedure provided by Art. 289. It is not allowed as individual consideration by the judge of the case which is subject to consideration it is joint, and joint consideration of the case, subject to consideration by the judge solely.
The judge checking legality and justification of detention, detention and house arrest or prolongation of terms of detention, house arrest cannot participate in consideration of the same case in Trial Court (p.1 Art. 78 of the Code of Criminal Procedure). For the purpose of non-admission of similar copies of court decrees by results of consideration of such questions shall join case papers.
6. Indicate to judges the need of in-depth examination of the criminal cases which arrived in court and inadmissibility of formalistic approach to appointment and preparation of legal proceedings.
6-1. For the accelerated production appointment and preparation of legal proceedings shall be performed no more than five days from the date of receipt of criminal case in court in time. The possibility of prolongation of this term is not provided by the law.
On the arrived criminal case of the accelerated production to the judge, in addition to the questions listed in Art. 277 of the Code of Criminal Procedure it is necessary to check whether the term of the accelerated production established by the law is observed, whether requirements of the p. 2 of Art. 455 of the Code of Criminal Procedure are fulfilled by the prosecutor. In case the prosecutor in the resolution on the direction of criminal case in court expresses opinion on consideration of the case without participation of the state prosecutor and punishment is offered, the court shall check whether are sent to the person accused and the victim of the copy of this resolution.
In cases when the accelerated production of pretrial investigation by body is finished after the terms provided by Art. 453 of the Code of Criminal Procedure, the court should make the decision on purpose of legal proceedings which is passed by general rules.
If at stage of purpose of legal proceedings in the matter of the accelerated production the circumstances interfering carrying out court investigation in the reduced procedure taking into account the withdrawals established by Art. 458 of the Code of Criminal Procedure are revealed, consideration of the case is appointed with participation of the state prosecutor. At the same time in the resolution on purpose of legal proceedings motives of the made decision are specified.
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