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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of March 31, 2010 No. 1

About practice of application by courts of the regulations of the Code of penal procedure regulating production for private prosecution

(as amended of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus of 31.03.2016 No. 2)

For the purpose of ensuring the correct and uniform application by courts of regulations of the Code of penal procedure by hearing of cases of private prosecution the Plenum of the Supreme Court of the Republic of Belarus decides:

1. Draw the attention of courts that strict observance of the regulations of the criminal procedure law regulating procedure for production on criminal cases of private prosecution is the important sales warranty person, the victim of crime, the right to access to justice.

By consideration of criminal cases of the specified category courts need to provide respect for the principles of criminal procedure and general rules of legal proceedings taking into account the features provided by Chapter 44 of the Code of Criminal Procedure.

2. Explain to courts that production according to the procedure of private prosecution is conducted on criminal cases about the crimes specified in the p. 2 and the p. 3 of Art. 26 of the Code of Criminal Procedure on condition of their excitement according to p.1 Art. 426 of the Code of Criminal Procedure. If case on the crime specified in the p. 2 of Art. 26 of the Code of Criminal Procedure is initiated by the prosecutor (the p. 5 of Art. 26 of the Code of Criminal Procedure) or is considered with participation of the prosecutor when he entered on such case legal proceedings (the p. 6 of Art. 26 of the Code of Criminal Procedure), as well as on case in the relation of the minor person accused on which preliminary investigation is conducted, production on it in court is performed by general rules without the withdrawals established by Chapter 44 of the Code of Criminal Procedure.

3. Courts need to mean that the right of initiation of legal proceedings about the crime specified in the p. 2 or the p. 3 of Art. 26 of the Code of Criminal Procedure, and maintenance on it of accusation in judicial session as the private prosecutor belongs to person, the victim of crime.

In case of its inability on age or the state of health to express the will in criminal procedure the specified rights any full age close relative of this person or the member of his family, and also his legal representative can perform (p.1 Art. 28 of the Code of Criminal Procedure). In other cases persons authorized on it in the procedure established by the law by the victim can push and hold charges.

Proceedings of private prosecution on behalf of the legal entity are initiated by his representative who is acting on the basis of the issued power of attorney or owing to the act of the legislation or constituent documents of the legal entity.

4. The statement for the crime specified in the p. 2 and the p. 3 of Art. 26 of the Code of Criminal Procedure is filed a lawsuit in the place of its making in copies on number of persons against whom proceedings are initiated, and shall conform to requirements imposed on the p. 2 of Art. 426 of the Code of Criminal Procedure.

According to the statement which arrived in court it is necessary to find out: whether act is subject to criminal prosecution according to the procedure of private prosecution; whether the applicant has rights of initiation of legal proceedings of private prosecution; whether there are no other circumstances excluding criminal proceeding (for example, the Code of Criminal Procedure specified in Art. 29); whether case to this court is jurisdictional; whether the statement conforms to the requirements stated in the p. 2 of Art. 426 of the Code of Criminal Procedure.

Depending on the established circumstances the judge accepts one of the following decisions: about adoption of the statement when it conforms to requirements of the law; about return of the statement for its reduction in compliance with requirements of the p. 2 of Art. 426 of the Code of Criminal Procedure; about refusal in adoption of the statement in the presence of the circumstances excluding proceeedings (for example, in case of entry into force of the law eliminating punishability of act; concerning person about whom are available the sentence which took legal effect on the same accusation or determination (resolution) of court on cessation of production on criminal case on the same basis).

If it is determined that case is jurisdictional to other court, the judge has no right to refuse adoption of the statement on this basis, and, being guided by provisions of Chapter 32 of the Code of Criminal Procedure, issues the decree on the direction of case on cognizance.

For the purpose of adherence to deadlines of preparation of cases of private prosecution for legal proceedings the judge should accept the decision according to the statement no later than three days after its receipt (Art. 173 of the Code of Criminal Procedure).

The decision according to the statement is made by the judge in the form of the resolution (item 36 of Art. 6 of the Code of Criminal Procedure).

5. Draw the attention of courts that the filed a lawsuit statement for the committed crime which brings criminal case of private prosecution is the procedural document formulating accusation and setting limits of legal proceedings. Therefore courts need to check whether contain in the statement of specifying on when who and where makes illegal act in what specifically it was expressed whether there corresponds the description of criminal action of disposition of the penal statute, whether it is made a reference to the penal statute (Item, part, Article) providing responsibility for this crime.

Absence in the statement of the specified data, and also their incomplete or inconcrete statement infringes at right of the accused to know what he is accused of (item 1 of the p. 2 of Art. 43 of the Code of Criminal Procedure), and is the basis for return of the statement according to p.1 Art. 427 of the Code of Criminal Procedure.

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