of March 28, 2008 No. 3
About practice of removal of separate determinations (resolutions) by courts on criminal cases
The criminal procedure legislation, determining powers of court as carrier of judicial authority, determines that the court, except accomplishment of the functions connected with the direct solution of legal cases is authorized to take out separate determinations (resolutions) which shall be effective remedy of respecting the rule of law, ensuring protection of human rights and freedoms with court.
For the purpose of further enhancement of court practice of removal of separate determinations (resolutions) by courts the Plenum of the Supreme Court of Ukraine decides to make to courts such explanations:
The list of the bases for removal of separate determinations or resolutions determined in Art. 23-2 of the Code of Criminal Procedure is not exhaustive. In case of need the court can take out on materials of legal case separate determination (resolution) and in other cases (for example, concerning the facts of failure of legal procedures, not delivery of defendants, failure to carry out of court orders and resolutions on the drive and so forth).
According to Art. 340 of the Code of Criminal Procedure the court which considers case on the first instance in the presence of the bases provided in Art. 23-2 of this Code is taken out by separate determination, and the judge - the separate resolution.
Separate determination (resolution) shall consist of introductory, motivation and resolutive parts. In introductory part the name of court, the place and time of removal of separate determination (resolution), structure of court, the secretary, participants of judicial review, surname, name and the defendant's middle name, the summary of the judgment are specified. In motivation part the bases for removal of separate determination (resolution) established by court of circumstance by which they are confirmed are specified. In substantive provisions the court makes possible recommendations concerning elimination of such bases and specifies to whom separate determination for accomplishment, terms for acceptance of adequate measures and the message on them is addressed to court, and also the term and procedure for appeal of separate determination (resolution).
4. Separate determination (resolution) shall be reasonable and motivated. It can be taken out only based on the materials researched in court and shall contain instructions on efficient causes and conditions which promoted crime execution or other offense. Circumstances which belong to the reasons and conditions which promoted crime execution are subject to comprehensive, complete and objective investigation in judicial session. If necessary it is necessary to hear testimonies of persons, actions or divergence of which promoted crime execution, to summon additional materials, to appoint examination or to perform other legal proceedings.
In separate determination the court shall specify (resolution) in what the established violations of the law what rights of citizens are violated specifically consist or to note the reasons and conditions which promoted crime execution.
The court cannot take out separate determination (resolution) which on the content calls into question legality and justification of the decision made after it to case.
5. Making recommendations in separate determination (resolution) on taking measures to elimination of the reasons and conditions which promoted crime execution, the court has no right to interfere with operational and economic activity of the company, organization, organization or in advance to decide what specifically collection needs to be put on the face guilty of creation of the reasons and conditions which promoted crime execution.
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