Approved by Presidium of the Supreme Court of the Russian Federation on December 7, 2011
Court practice on criminal cases
Questions of qualification
1. Person is unreasonably recognized as the helper in murder.
According to sentence, To., O. and person who is not identified by the investigation for the purpose of occupancy by someone else's property committed assault on B. drivers and And. At the same time To., threatening with the injured sawn-off shotgun, and O. - the subject which is not established by the investigation used as weapon forced And. start the car and follow in the direction specified by them. To. and O. sat down in cabin and directed weapon towards the victims. Victim A., being afraid for the life and having intention to disappear from attackers, sent the car to ditch and after the car crashed into column, escaped.
Remained in car K cabin. shot from sawn-off shotgun at B.'s victim, having caused it gunshot bullet wound from which there came death B. After that attackers fled the crime scene.
The presidium of the Supreme Court of the Russian Federation changed judgments on the following bases.
It agrees to O.'s charge brought by investigation authorities during assault to the victims, being on the highway, having intention on the murder from mercenary motives integrated to robbery and also with the purpose to hide traces of crimes, being effective as a part of organized group, in advance agreed with To. about B.'s murder, then To. made one shot in the victim and killed him.
Thus, only the fact that O. was on site crimes with other convict on the same case and was present at deprivation of life of B. that in itself it is impossible to recognize as participation in murder follows from the charge brought to O.
Proofs of recognition of murder by the court made by organized group are not established.
Qualifying O.'s actions as complicity in murder, the court specified that it rendered assistance to the contractor as with its participation the victim was exported to the place of murder, besides O.'s finding on site of crime execution provided clear physical advantage of attackers and suppressed will of the victims to resistance.
However the specified O.'s actions were not imputed amount of the accusation connected with murder.
Availability at convicts of sawn-off shotgun of the fowling piece and unspecified subject with whom they threatened the victims during assault cannot be the proof of availability at O. of intention on murder B.
Besides, as O. did not render complicity in causing death of B., in its actions there is no qualifying robbery sign "with causing severe harm to health of the victim".
Resolution of Presidium of the Supreme Court of the Russian Federation No. 144P11
2. Reduction of the victim in unconsciousness cannot be considered by actions of the deprivation of life, most guilty of process, as making of murder with use of helpless condition of the victim.
On case it is determined that between the condemned G. and its materyyupoterpevshy R. there was quarrel during which he began to strike to the victim multiple blows with hands and legs to different parts of body and after R. fainted, the convict struck it at least three blows with the axe in the head why there came the death of the victim.
Meanwhile according to the item "in" the p. 2 of Art. 105 of the Criminal Code of the Russian Federation murder of the victim is qualified, to protect not capable itself, to show active resistance to the guilty person owing to physical or mental condition. The seriously ill patients and aged, juvenile children, persons suffering from the mental disturbances depriving of their capability can be carried to such persons, in particular, it is correct to perceive the events.
On case in G.'s relation of the data testimonial of finding of the injured R. during murder down and out, it is not established.
Due to stated the Judicial board on criminal cases of the Supreme Court of the Russian Federation requalified actions of the condemned G. with the item "in" the p. 2 of Art. 105 of the Criminal Code of the Russian Federation on p.1 Art. 105 of the Criminal Code of the Russian Federation as murder because of personal aversions.
Determination No. 58-D11-15
Judicial board on criminal cases of the Supreme Court of the Russian Federation, having considered criminal case on cassation representation of the state prosecutor, changed sentence on the following bases.
During making Z. crimes (on September 7 - 8, 2010) Art. 205 of the Criminal Code of the Russian Federation was effective in edition of the Federal Law of December 27, 2009 N 377-FZ which sanction of part one prescribed custodial sanction for a period of 8 up to 12 years with restriction of freedom for a period of up to 2 years.
The Federal Law of December 9, 2010 N 352-FZ to p.1 Art. 205 of the Criminal Code of the Russian Federation made changes according to which the sanction of this law provides imprisonment from 8 to 15 years, and restriction of freedom is excluded.
At the same time, as p.1 Art. 205 of the Criminal Code of the Russian Federation of December 9, 2010 does not contain additional punishment in the form of restriction of freedom in edition of the Federal Law and this law improves provision of the convict, the court according to Art. 10 of the Criminal Code of the Russian Federation had no right to appoint Z. additional punishment.
Based on stated the Judicial board changed sentence concerning Z., requalified its actions with p.1 Art. 30, p.1 of Art. 205 (in edition of the Federal Law of December 9, 2010 N 352-FZ) on p.1 Art. 30, p.1 of Art. 205 of the Criminal Code of the Russian Federation (in edition of the Federal Law of December 27, 2009 N 377-FZ) and imposed to him custodial sanction for a period of 6 years.
Determination N 20-O11-6
Assignment of punishment
4. The court reasonably recognized recurrence of crimes as earlier he is judged for crime of average weight in actions of the convict and before repayment of criminal record committed especially serious crime.
The judicial board on criminal cases of the Supreme Court of the Russian Federation left sentence without change, and the writ of appeal of the convict - without satisfaction.
Determination N 49-O11-13
According to чч. 1 and 3 Art. 50 of the Criminal Code of the Russian Federation corrective works are appointed condemned, not having principle place of employment, and are left in the places determined by local government bodies in coordination with the body performing punishment in the form of corrective works, but near the residence of the convict.
From the salary of the convict to corrective works deduction in the income of the state in the amount of, established by the court verdict, ranging from five to twenty percent are made.
The Trial Court did not specify in sentence the amount of deduction from its salary in the income of the state, that is punishment for the crime prescribed p.1 by Art. 139 of the Criminal Code of the Russian Federation, according to requirements of the law did not appoint.
The Supervisory Court excluded from sentence specifying about appointment to the Criminal Code of the Russian Federation condemned punishments according to p.1 Art. 139.
Resolution of Presidium of the Supreme Court of the Russian Federation N 116P11
6. Restriction of freedom is appointed by the minor convict only as main type of punishment.
The judicial board on criminal cases of the Supreme Court of the Russian Federation left on February 10, 2011 sentence concerning S. without change.
The presidium of the Supreme Court of the Russian Federation satisfied supervising representation and changed judgments, having specified the following.
Proceeding from provisions of the p. 5 of Art. 88 of the Criminal Code of the Russian Federation restriction of freedom is appointed to the minor convict in the form of primary punishment for a period of two months up to two years.
At the time of crime execution on April 23, 2010 S., on April 10, 1993 year of birth, was minor.
Under such circumstances the Presidium changed the court verdict and cassation determination concerning S., excluded the penalty imposed to it on subitem "in", and "з" the p. 2 of Art. 105 of the Criminal Code of the Russian Federation and on cumulative offenses in the form of restriction of freedom for the term of 1 year 6 months.
Resolution of Presidium of the Supreme Court of the Russian Federation No. 152P11PR
Procedural questions
7. The judge of federal court for the first time appointed to position for a period of three years performs the powers before the end of consideration on the merits of the case begun with its participation.
Case was accepted to production by the judge O. who is appointed to position by the Presidential decree of the Russian Federation of March 5, 2001 N 264.
The presidium of the Supreme Court of the Russian Federation did not agree with M.'s approval that the judge O. had no powers on justice implementation.
According to Art. 4 of the Federal Law of July 17, 2009 N 157-FZ "About introduction of amendments to articles 6 and 11 of the Law of the Russian Federation "About the status of judges in the Russian Federation" and in articles 17 and 19 of the Federal law "About Bodies of Judicial Community in the Russian Federation" the judge of federal court for the first time appointed to position for a period of three years performs the powers before the end of consideration on the merits of the case begun with its participation.
Criminal case concerning M. is accepted to production by the judge O., is appointed to hearing and begun with consideration before the expiration of three-year term of office. With respect thereto the judge O. kept the powers before the end of consideration of the case.
Resolution of Presidium of the Supreme Court of the Russian Federation No. 102P11
8. According to requirements p.1 Art. 63 of the Code of Criminal Procedure of the Russian Federation the judge who was involved in consideration of the case on the first instance cannot repeatedly take part in consideration of the case after cancellation of sentence by court of cassation instance.
According to the court verdict of Sh. it is condemned according to the item "in" the p. 4 of Art. 162 of the Criminal Code of the Russian Federation and subitem "and", "з", "to" the p. 2 of Art. 105 of the Criminal Code of the Russian Federation.
The judicial board on criminal cases of the Supreme Court of the Russian Federation determination of November 30, 2010 cancelled sentence regarding the solution of destiny of physical evidences and sent case in this part for new judicial review.
The things withdrawn from household of the convict are returned by the court order of January 17, 2011 to the father of the convict, and is decided to destroy other physical evidences on case.
The court order is cancelled by determination of Judicial board on criminal cases of the Supreme Court of the Russian Federation of May 5, 2011 and case is sent for new judicial review in the same court in other structure of court on the following bases.
According to requirements p.1 Art. 63 of the Code of Criminal Procedure of the Russian Federation the judge who was involved in consideration of the case on the first instance cannot repeatedly take part in consideration of the case after cancellation of sentence by court of cassation instance.
Despite these circumstances, the judge considering case on the first instance and resolving in essence destiny of physical evidences after cancellation of sentence in this part on January 17, 2011 again was involved in consideration of the case and permission of the same questions.
Determination N 47-O11-32
9. When considering the case in special procedure the procedural costs provided by Art. 131 of the Code of Criminal Procedure of the Russian Federation are not subject to collection from the convict.
Criminal case concerning the item was considered by court in the special procedure provided by Chapter 40 of the Code of Criminal Procedure of the Russian Federation.
In judicial session protection of the condemned P. to destination vessels was performed by the lawyer to whom the judge's ruling pays 1432 rub 20 kopeks at the expense of means of the federal budget.
This amount is collected by the judge's ruling of January 24, 2011 from the condemned P. as procedural costs.
The judicial board on criminal cases of the Supreme Court of the Russian Federation repealed the judge's ruling as according to item 10 of Art. 316 of the Code of Criminal Procedure of the Russian Federation the procedural costs provided by Art. 131 of the Code of Criminal Procedure of the Russian Federation when considering the case in special procedure are not subject to collection from the convict.
Determination N 67-O11-21
10. Trial of case in court is made only concerning defendants. Surnames of persons concerning which case is allocated in separate production shall not be mentioned in sentence.
According to the court verdict of Sh. and V. are condemned for the assault and murder integrated to robbery, group of persons by previous concert.
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