of June 30, 2015 No. 29
About practice of application by courts of the legislation providing right of defense in criminal trial
The right of defense of everyone who underwent to criminal prosecution, is recognized and guaranteed by the Constitution of the Russian Federation (Articles 17, 45, 46, 48, 123), the conventional principles and rules of international law and international treaties of the Russian Federation as one of fundamental human rights and the citizen.
The procedure for realization of the granted constitutional right is determined by the Code of penal procedure of the Russian Federation in case of which application of regulations legal line items of the Constitutional Court of the Russian Federation and the practician of the European Court of Human Rights shall be considered.
Ensuring right of defense is obligation of the state and necessary condition of fair justice.
For the purpose of uniform permission courts of the questions arising in practice of application of the legislation providing right of defense in criminal trial, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:
1. Draw the attention of courts that in sense of Article 16 of the Code of penal procedure of the Russian Federation (further - the Code of Criminal Procedure of the Russian Federation) ensuring right of defense is one of the principles of criminal trial operating in all its stages. Owing to this fact have right of defense: person concerning whom also freedoms legal proceedings on verification of the message on crime according to the procedure, the stipulated in Article 144 Codes of Criminal Procedure of the Russian Federation are performed the rights affecting it; suspect; person accused; defendant; convict; justified; person concerning whom production about application of enforcement powers of medical nature is conducted or conducted; the minor to whom the enforcement power of educational impact is applied; person concerning whom criminal case (further - case) or criminal prosecution is stopped; person concerning whom the request arrived or the decision on issue is made; and also any other person whose rights and freedoms are significantly affected or can be significantly affected by the actions and measures demonstrating the accusatory activities directed against it irrespective of the formal procedural status of such person (further - the person accused).
2. Courts need to mean that the right of the accused to defense includes not only the right to use the help of the defender, but also the right to be protected personally and (or) by means of the legal representative by all methods and means which are not prohibited by the law (part 2 Articles 16, Item 11 parts 4 Articles 46, Item 21 of part 4 of article 47 Code of Criminal Procedure of the Russian Federation), including to offer explanations and indications concerning available concerning his suspicion or to refuse giving explanations and indications; object to accusation, give evidences on the charge brought to it or refuse evidence; produce the evidence; declare petitions and branches; offer explanations and indications in the native language or language which he knows and to use the help of the translator free of charge, in cases when the person accused does not own or knows insufficiently language in which legal proceedings are conducted; participate during legal proceedings in research of proofs and judicial debate; pronounce last plea; bring claims to actions, failure to act and decisions of the bodies performing proceeedings; get acquainted in the procedure established by the law with case papers. Procedural law of the person accused cannot be limited in connection with participation in case of his defender and (or) the legal representative.
3. Proceeding from the interconnected provisions of part 1 of Article 11 and part 2 of article 16 Code of Criminal Procedure of the Russian Federation to explain obligation to the person accused of its right and obligation, and also to provide sales opportunity of these rights also preliminary inquiry on case is assigned to persons performing verification of the message on crime according to the procedure, the stipulated in Article 144 Codes of Criminal Procedure of the Russian Federation: on the investigator, body of inquiry, the chief of body or division of inquiry, the investigator, head of investigating body, the prosecutor, and during judicial proceedings - on court.
The rights provided by regulations of the criminal procedure law shall be explained in the amount determined by the procedural status of person concerning which proceeedings, taking into account stages and features of different forms of legal proceedings are conducted. In particular, in case of substantive prosecution by Trial Court to the person accused not only the rights specified regarding the 4th article 47 Code of Criminal Procedure of the Russian Federation but also other its rights in legal proceedings, including the right to petition for participation in debate of the parties along with the defender (part 2 of article 292 Code of Criminal Procedure of the Russian Federation) are subject to explanation, and in the absence of the defender - to participate in debate of the parties (part 1 of article 292 Code of Criminal Procedure of the Russian Federation), the right to last plea (article 293 Code of Criminal Procedure of the Russian Federation).
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