of November 27, 2012 No. 26
About application of the regulations of the Code of penal procedure of the Russian Federation regulating production in Appeal Court
For the purpose of ensuring the correct and uniform application of the criminal procedure legislation by Appeal Courts the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, Articles 9, 14 Federal constitutional Laws of February 7, 2011 No. 1-FKZ "About courts of law of the Russian Federation", decides:
1. Draw the attention of courts that establishment of appeal procedure for test of judgments, single for all courts of law, on criminal cases is connected with need of the increase guaranteed by the Constitution of the Russian Federation and the Federal Laws of level of judicial protection of the rights, freedoms and legitimate interests of the citizens and the organizations involved in the sphere of criminal trial.
2. Explain to courts that taking into account provisions of part of 1 Article 123, parts of 1 Article 127, Article 389. 1, parts 1 of Article 389. 2, parts of 1 Article 401, of Article 444, of part 9 of article 463 Code of Criminal Procedure of the Russian Federation judgments can be appealed in appeal procedure by the suspect, the person accused, the defendant, the convict, justified, person against whom criminal case is dismissed, person concerning which production about application of enforcement power of medical nature is conducted or conducted, person on whom the decision on issue for criminal prosecution or execution of sentence is made, their defenders, legal representatives, the state prosecutor, the prosecutor and (or) the higher prosecutor, the private prosecutor, the victim, their legal representatives and (or) representatives, the civil claimant, the civil defendant, their legal representatives and (or) representatives (in the part concerning the civil action), and also other persons in that part in which the appealed judgment affects their rights and legitimate interests (for example, person, which property it is seized in connection with criminal proceeding).
Legal representatives have the right to appeal the judgment and to take part in judicial session regardless of the fact that by the time of proceeedings in Appeal Court to the minor suspect, the person accused, the defendant, the convict, justified, to person against whom criminal case is dismissed or to the victim 18 years were performed.
If the judgment is appealed by both the state prosecutor, and the higher prosecutor, then both representations are subject to consideration provided that they are given to the time established by the law.
3. The person specified regarding the 2nd article 49 Code of Criminal Procedure of the Russian Federation and who is not the lawyer if it was allowed to participation in Trial Court as the defender, has the right to appeal the judgment in appeal procedure and to take part in court session of appellate instance. If such person did not take part in Trial Court, then in Appeal Court it by determination (resolution) of court can be allowed as the defender only along with the lawyer.
4. Proceeding from provisions of article 389.2 Code of Criminal Procedure of the Russian Federation in appeal procedure the final judgments, and also interlocutory judgments which did not take legal effect can be appealed.
In sense of Item 53.2 of article 5 Code of Criminal Procedure of the Russian Federation it is necessary to understand sentence, determination, the court order which criminal case is authorized in essence, either determination or the court order which removal completes criminal proceeding concerning the particular person as the final judgment. The sentence, determination (resolution) on the termination of criminal case or criminal prosecution, determination (resolution) on application or about refusal in application of enforcement powers of medical nature, determination (resolution) on the termination of criminal case concerning the minor using enforcement powers of educational impact are among such judgments, in particular.
All determinations and court orders, except for final judgments, are intermediate judgments (Item 53.3 of article 5 Code of Criminal Procedure of the Russian Federation). In particular, treat them taken out during pre-judicial production or legal proceedings of determination and the court order by which criminal case is not allowed in essence or production concerning the particular person, and also the judgments passed in the course of execution of final judgments does not come to the end.
5. Draw the attention of courts that the partial decisions affecting constitutional rights of participants of criminal trial or violating them the rights to access to justice and to consideration of the case in reasonable time, and also obstructing further traffic of case are subject to independent appeal and consideration in appeal procedure before pronouncement of the final decision on case. Legality and justification of other intermediate judgments can be checked by Appeal Court along with check of legality and justification of the final decision on case.
To the intermediate judgments which are subject to independent appeal and consideration in appeal procedure resolutions of the magistrate judge on return of the statement to person which gave it or on refusal in adoption of the statement belong to production, court decrees or determinations about election of measure of restraint or about prolongation of term of its action, about the room of person in medical or psychiatric hospital for production of judicial examination, about suspension of criminal case, about transfer of criminal case on cognizance or about change of cognizance of criminal case, about return of criminal case to the prosecutor (part 3 of article 389.2 Code of Criminal Procedure of the Russian Federation), for example; the decree on purpose of judicial session issued according to article 231 Code of Criminal Procedure of the Russian Federation taking into account provisions of part 7 of article 236 Code of Criminal Procedure of the Russian Federation; the judgments made during pre-judicial criminal proceeding (part 1 of article 127 Code of Criminal Procedure of the Russian Federation); the judgments about imposing of cash collection and about the address of pledge to the income of the state (article 118 Code of Criminal Procedure of the Russian Federation).
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