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

of January 28, 2014 No. 2

About application of the regulations of Chapter 47.1 of the Code of penal procedure of the Russian Federation regulating production in court of cassation instance

(as amended of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 03.03.2015 No. 9)

Due to the questions which arose at courts in case of application of regulations of Chapter 47.1 of the Code of penal procedure of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation and Articles 9, 14 Federal constitutional Laws of February 7, 2011 No. 1-FKZ "About courts of law of the Russian Federation", decides to make to courts the following explanations:

1. Production in court of cassation instance, being important guarantee of legality of judgments on criminal cases and realization of constitutional right of citizens on judicial protection, it is intended for the identification and elimination allowed by bodies of preliminary inquiry or court during prior trial of case of fundamental breaches of the penal statute (its wrong application) and (or) the criminal procedure law which affected the outcome of the case and the violations distorting essence of justice and sense of the judgment as the act of justice.

2. Draw the attention of courts that along with persons specified in article 401.2 Code of Criminal Procedure of the Russian Federation, the person accused, the defendant, person against whom criminal case is dismissed, person concerning which production about application of enforcement powers of medical nature, person to whom the enforcement power of educational impact, and person on whom the decision on issue for criminal prosecution or execution of sentence, their defenders and legal representatives, and also other persons is made is applied was conducted or conducted have the right to appeal to the court of cassation instance.

The persons who are not recognized in the procedure established by the law as these or those participants of process, but proceeding from the actual position needing judicial protection (the applicant to whom it is refused initiation of legal proceedings, the pledger, person whose property it is seized, and others) treat number of the other persons having rights to appeal of the judgment in that part in which it affects their rights and legitimate interests. With the claim to legality of the private determination (resolution) which is taken out by court person concerning whom disciplinary production can be initiated has the right to appeal to the court of cassation instance or other measures infringing on private interests of this person in connection with the circumstances specified in private determination (resolution) are applied. In other cases writs of appeal of the investigator, chief of body of inquiry, the investigator, head of investigating body, the representative of the organization or body performing punishment return without consideration.

According to provisions of Item 3 of part 1 of article 29 of the Federal constitutional Law of February 26, 1997 No. 1-FKZ "About the Commissioner for Human Rights in the Russian Federation" the Commissioner for Human Rights in the Russian Federation by results of consideration of the claim has the right to take a legal action cassation instance with the survey request of the sentence which took legal effect, determinations, court orders.

3. Production in court of cassation instance is performed with observance of the stipulated in Clause 401.3 Codes of Criminal Procedure of the Russian Federation of the requirement of instantsionnost according to which the cassation claim, representation, as well as criminal case, is considered in subordinate in the beginning, and then in superior court of cassation instance. At the same time courts should mean that the judgment can be appealed in Judicial board on criminal cases of the Supreme Court of the Russian Federation, in Military board of the Supreme Court of the Russian Federation provided that it was appealed in presidium of subordinate court (Items 2 and 5 of part 2 of article 401.3 Code of Criminal Procedure of the Russian Federation in edition of the Federal Law of December 28, 2013 No. 382-FZ).

The judge's ruling of district court, garrison military court which is taken out according to the procedure of execution of sentence regardless of that what court of level decided sentence, can be reviewed in cassation procedure only with observance of the instantsionnost established by part 2 of article 401.3 Code of Criminal Procedure of the Russian Federation, that is presidium of the relevant Supreme Court of the republic, court regional, regional or equal to them, and then Judicial board on criminal cases of the Supreme Court of the Russian Federation, Military board of the Supreme Court of the Russian Federation.

Cassation claim, representation in which sentence and the judge's ruling issued according to the procedure of execution of sentence are at the same time appealed are subject to consideration of cassation instance by court, competent to review sentence irrespective of what judge of district court (the same or other subject of the Russian Federation) passed the decision according to the procedure of execution of sentence.

4. According to provisions of part 1 of Article 127 and article 401.3 Code of Criminal Procedure of the Russian Federation in cassation procedure the judgment which took legal effect passed in the course of both judicial, and pre-judicial criminal proceeding can be reviewed. The determinations and resolutions specified regarding the 2nd article 389.2 Code of Criminal Procedure of the Russian Federation, except for determinations and resolutions on imposing of cash collection are not subject to independent appeal in cassation procedure. Legality of these judgments can be checked along with check of legality of the final decision on case.

5. Owing to the fact that any intervention in activity of the courts in case of administration of law including from higher degrees of jurisdiction, is inadmissible, the judgments which took legal effect passed during pre-judicial production can by the general rule be reviewed in cassation procedure only before transfer of criminal case to Trial Court for consideration on the merits. At the same time, as recovery of the violated constitutional rights on freedom and security of person shall be timely, and the available means of their legal protection - effective, appeal and review in cassation procedure for resolutions on election of measure of restraint in the form of detention, house arrest or about prolongation of term of their action or about the room of person in medical or psychiatric hospital for production of judicial examination are possible also after receipt of criminal case in Trial Court.

6. The cassation claim, representation which are not meeting the requirements of article 401.4 Code of Criminal Procedure of the Russian Federation return without consideration according to Item 1 of part 1 of article 401.5 Code of Criminal Procedure of the Russian Federation. After removal of obstacles, formed the basis for return of the writ of appeal, representation without consideration, person has the right to take a legal action cassation instance again.

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