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

of February 10, 2009 No. 1

About practice of consideration by courts of claims according to the procedure of Article 125 of the Code of penal procedure of the Russian Federation

The right of appeal of decisions and actions (failure to act) of officials in pre-judicial production as guarantee of judicial protection of the rights and freedoms of citizens in criminal trial stipulated in Clause 46 Constitutions of the Russian Federation.

Generalization of court practice showed that courts generally correctly apply provisions of article 125 Code of Criminal Procedure of the Russian Federation. However in case of permission and the matters of argument requiring explanation arise courts of claims not clear. For the purpose of uniform application of the law Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, decides:

1. Courts should mean that proceeding from general provisions of the criminal procedure legislation consideration of claims according to the procedure of article 125 Code of Criminal Procedure of the Russian Federation happens in the form of implementation of justice by rules of competitive legal proceedings in proceeding in open court, except as specified, of the stipulated in Article 241 Codes of Criminal Procedure of the Russian Federation.

To judges it is necessary to check on the basis of the available data and in addition provided materials legality of decisions and actions (failure to act) of the officials specified regarding 1 article 125 Code of Criminal Procedure of the Russian Federation concerning the declared requirements of citizens about elimination of the allowed violations infringing their rights and freedoms.

Owing to part 4 of article 7 Code of Criminal Procedure of the Russian Federation the judge's ruling issued by results of consideration of the claim shall be legal, reasonable and motivated, based on the researched materials with check of the arguments given by the applicant.

When checking legality and justification of decisions and actions (failure to act) of the investigator, investigator, head of investigating body and the prosecutor the judge shall not determine questions which can become afterwards subject of legal proceedings on the substance of criminal case. In particular, the judge has no right to draw conclusions about the actual facts of the case, about assessment of proofs and qualification of act.

2. Explain to courts that in addition to resolutions of the investigator, the investigator and the head of investigating body about refusal in initiation of legal proceedings and about the termination of criminal case other decisions and actions (failure to act) of officials taken at pre-judicial stages of criminal trial are subject to judicial appeal according to part 1 of article 125 Code of Criminal Procedure of the Russian Federation if they are capable to cause damage to constitutional rights and freedoms of participants of criminal trial or other persons, whose rights and legitimate interests are violated, or can complicate access for citizens to justice.

To other decisions and actions (failure to act) capable to cause damage to constitutional rights and freedoms of participants of criminal trial, it is necessary to carry, for example, resolutions of the investigator, the investigator and the head of investigating body on initiation of legal proceedings concerning the particular person, about refusal in appointment of the defender, in the admission of the legal representative, about election and application to the suspect, the person accused of measures of procedural coercion, except for pledge, house arrest and detention which are applied by a court decision.

To complicating access for citizens to justice it is necessary to refer such actions (failure to act) or the decisions of officials limiting the rights of citizens to participation in pre-judicial criminal proceeding who create to the citizen obstacle for the further request for judicial protection of the violated right: refusal in recognition of person by the victim, refusal in acceptance of the message on crime or failure to act in case of verification of these messages, the resolution on suspension of preliminary inquiry and others.

3. The law guarantees to participants of criminal trial and other persons concerning whom violations of their rights and freedoms are allowed, possibility of appeal in court of decisions and actions (failure to act) of the officials performing criminal prosecution and determines whose decisions and actions (failure to act) can be appealed according to part 1 of article 125 Code of Criminal Procedure of the Russian Federation. Proceeding from what is considered by messages on crime make decisions on refusal in acceptance of the message on crime, about excitement and about refusal in initiation of legal proceedings also other officials and bodies, in particular the chief of body of inquiry (article 40.2 Code of Criminal Procedure of the Russian Federation), the chief of division of inquiry (part 2 of article 40.1 Code of Criminal Procedure of the Russian Federation) and bodies of inquiry (part of 1 Article 144, part of 1 Article 145, part of 1 Article 146, part 1 of article 148 Code of Criminal Procedure of the Russian Federation), the applicant has the right to appeal and their actions.

At the same time decisions and actions (failure to act) of officials which powers are not connected with implementation of criminal prosecution in pre-judicial criminal proceeding are not subject to appeal according to the procedure of article 125 Code of Criminal Procedure of the Russian Federation (for example, the prosecutor exercising supervision of procedural activities of bodies of inquiry and bodies of pretrial investigation or holding crown case in court, the chief of the pre-trial detention center). Are not subject to consideration by court of the claim to the decisions and actions (failure to act) of officials of bodies of prosecutor's office connected with consideration of addresses concerning legality of the judgments which took legal effect.

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