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

of June 1, 2017 No. 19

About practice of consideration by courts of petitions for production of the investigative actions connected with restriction of constitutional rights of citizens (article 165 Code of Criminal Procedure of the Russian Federation)

Investigative and other legal proceedings which production is performed precisely based on the judgment or it is in exceptional cases allowed with the subsequent check of their legality by court, are connected with restriction of constitutional rights of citizens for private property, inviolability of home, private life, on the personal and family mystery, the mystery of correspondence, telephone negotiations, post, cable and other messages (Article 23, of 25, of 35, 36 Constitutions of the Russian Federation) that obliges courts in case of application of procedure, the stipulated in Article 165 Codes of Criminal Procedure of the Russian Federation, to strictly observe the guarantees established concerning the called rights by the Constitution of the Russian Federation and the criminal procedure law.

Due to the questions arising at courts by consideration of petitions of the bodies of preliminary inquiry connected with restriction of constitutional rights of citizens and also for the purpose of ensuring uniform application by courts of the criminal procedure legislation 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 to what according to each arrived petition for production of investigative or other legal proceeding (further - investigative action) the judge should find out whether the petition conforms to requirements of parts 1 and 2 of article 165 Code of Criminal Procedure of the Russian Federation: whether it is jurisdictional to this court whether there is criminal case in production of the investigator or investigator who submitted the petition whether there is consent of the head of investigating body or the prosecutor to carrying out investigative action, whether the petition contains necessary data (the name of specific investigative action, the address of production site of survey or search in the dwelling, etc.), and also whether the materials which are required for its consideration are attached to the petition (copies of resolutions on initiation of legal proceedings and acceptance of criminal case to production, about prolongation of term of preliminary inquiry, about renewal of criminal proceeding, the materials confirming availability of the bases for production of investigative action, etc.). In particular, the petition for realization, for utilization or destruction of physical evidences (part 3.1 of article 165 Code of Criminal Procedure of the Russian Federation) shall contain the information about owners or other legal owners of the subject recognized by the physical evidence, necessary for the notice of specified persons on the place, date and time of judicial session (the residential address, phone number, etc.).

2. Courts should consider that the petition for production of investigative action for criminal case, pretrial investigation or inquiry on which it is performed by the investigation team or group of investigators only the head of such group is authorized to initiate before court (Item 7 parts 4 Articles 163, Item 8 of part 4 of article 223.2 Code of Criminal Procedure of the Russian Federation).

When the petition for production of investigative action is initiated before court directly the head of investigating body who accepted criminal case to the production, the consent of the higher head of investigating body to the direction of the petition in court is not required.

The special procedure for criminal proceeding (Chapter 52 of the Code of Criminal Procedure of the Russian Federation), and permission to production of the investigative actions performed precisely based on the judgment is applied to persons specified regarding 1 article 447 Code of Criminal Procedure of the Russian Federation, it can be this taking into account provisions of part 5 of Article 450, of article 450.1 Code of Criminal Procedure of the Russian Federation.

3. If the arrived petition does not conform to requirements of the criminal procedure law that interferes with its consideration, then the judge returns the petition to person which directed it with indication of motives of the made decision. In such cases the term established by parts 2 or 3.1 of article 165 Code of Criminal Procedure of the Russian Federation is estimated from the moment of repeated receipt of the petition in court.

4. According to part 2 of article 165 Code of Criminal Procedure of the Russian Federation the petition can be submitted or on production site of the preliminary inquiry determined according to article 152 Code of Criminal Procedure of the Russian Federation or on production site of investigative action. If the petition is submitted by the investigator or the investigator with cognizance abuse of regulations, then the judge issues the decree on refusal in adoption of such petition to consideration with reference to this basis.

5. Proceeding from provisions of part 3 of article 165 Code of Criminal Procedure of the Russian Federation the judge according to the petition for production of investigative action which arrived in court takes the necessary measures directed to the timely notice of the investigator or investigator and prosecutor, and in the cases specified in part 3.1 of the called Article - and other persons about the forthcoming judicial session.

Taking into account the reduced term during which the petition is subject to consideration for the notice it is recommended to use the telephone message, the SMS message, fax connection and other means of communication providing timeliness of such notice.

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