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

of December 22, 2009 No. 28

About application by courts of the regulations of the criminal procedure legislation regulating preparation of criminal case for legal proceedings

Due to the questions arising at courts by preparation in general procedure for criminal cases for judicial session and procedure for carrying out initial hearing and also for the purpose of ensuring the correct and uniform application of the criminal procedure legislation 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. According to the Code of penal procedure of the Russian Federation (further - the Code of Criminal Procedure of the Russian Federation) courts of the Russian Federation have the right to start judicial review of criminal cases only after accomplishment of all necessary legal proceedings and adoption of the proceeding decisions on their preparation for legal proceedings provided by Chapters 33 and 34 of the Code of Criminal Procedure of the Russian Federation.

Powers of the magistrate judge (judge of garrison military court) on preparation for judicial review of criminal case of private prosecution are regulated by article 319 Code of Criminal Procedure of the Russian Federation (Chapter 41 of the Code of Criminal Procedure of the Russian Federation).

Initial hearing in case of production in court with participation of jury members is carried out taking into account features, the stipulated in Clause 325 Codes of Criminal Procedure of the Russian Federation (Chapter 42 of the Code of Criminal Procedure of the Russian Federation).

2. Proceeding from the regulations containing in Chapters 33 and 34 of the Code of Criminal Procedure of the Russian Federation by preparation of criminal case for judicial session it is necessary to the judge, having studied case papers, to find out whether are observed by bodies of inquiry and pretrial investigation of the requirement of the criminal procedure law regulating pre-judicial production whether there are no circumstances interfering or excluding its consideration by court whether there are no petitions which are subject to permission and claims of the parties, the bases for carrying out initial hearing. The judge also establishes whether there is need of acceptance on the matters of the proceeding decisions and accomplishment of legal proceedings provided by the law for the purpose of ensuring free, correct permission of criminal case by Trial Court.

3. The judge, being guided by item 4 of part 1 of article 228 Code of Criminal Procedure of the Russian Federation, shall find out concerning each of persons accused whether the declared petitions and the made complaints are subject to satisfaction. At the same time only reasonable petitions which do not require check can be satisfied (for example, about consideration of criminal case by board from three judges, about special procedure for legal proceedings according to Chapter 40 of the Code of Criminal Procedure of the Russian Federation, about the admission to participation in case of the defender, about writ of summons of extra witnesses, about reclamation of documents, about application of security measures).

The decision of the judge according to each declared petition or the claim is reflected in the resolution on purpose of judicial session or in the resolution accepted following the results of initial hearing (part 3 of article 236 Code of Criminal Procedure of the Russian Federation).

4. According to part 3 of article 227 Code of Criminal Procedure of the Russian Federation at the request of the party the judge has the right to give it opportunity of additional acquaintance with case papers, having determined reasonable times for this purpose taking into account amount of case papers which the applicant wishes to study in addition.

If the similar petition is declared during initial hearing, it is subject to consideration, and in case of its satisfaction court session is postponed for certain term. At the same time it is necessary to observe the terms established by part 3 of Article 227 and article 233 Code of Criminal Procedure of the Russian Federation.

About the taken place additional acquaintance with case papers the receipt is taken away from person who declared the petition. If the judge refused satisfaction of the petition, in the resolution it is necessary to specify motives of such refusal.

5. In case of the direction of criminal case on cognizance based on Article 34 and Item 1 of part 1 of article 227 Code of Criminal Procedure of the Russian Federation the questions specified in Items 2 - 6 parts 1 of article 228 Code of Criminal Procedure of the Russian Federation, are not permitted by court.

However in necessary cases if concerning the preliminary inquiry accused of the course the measure of restraint in the form of detention or house arrest is chosen, the judge should solve whether is subject to cancellation or change, whether there is former measure of restraint chosen concerning the person accused. At the same time the specified issues are resolved with participation of the parties according to the procedure and terms provided by articles 108, of 109 and 255 Codes of Criminal Procedure of the Russian Federation. Other questions which are subject to examination on the criminal case which arrived in court are solved that court to which case is directed on cognizance.

The decision on the direction of criminal case on cognizance shall be made by the judge in the terms established by part 3 of article 227 Code of Criminal Procedure of the Russian Federation.

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