1. As a result of consideration of a criminal case on appeal, the court makes one of the decisions: 1) to leave the sentence, ruling, decision unchanged, and the complaint or presentation unsatisfied; 2) on the reversal of a conviction and on the pronouncement of an acquittal; 3) on the reversal of a conviction and on the imposition of a guilty verdict; 4) on the cancellation of the sentence, ruling, decision of the court of first instance and on the transfer of the criminal case for a new trial to the court of first instance from the stage of preparation for the court hearing or trial; 5) on the reversal of the acquittal and on the pronouncement of an acquittal; 6) on the cancellation of a ruling or resolution and on the issuance of an acquittal or other court decision; 7) on the cancellation of the sentence, ruling, resolution and on the return of the case to the prosecutor; on the reversal of a sentence, ruling, resolution and on the termination of a criminal case; 9) about changing the sentence or other appealed court decision; 10) on termination of appeal proceedings.
2. In the cases provided for in paragraphs 1, 4, 7-10 of part one of this article, the appellate court issues an appeal ruling or resolution. In the cases provided for in paragraphs 2, 3, 5 of part one of this article, the appellate court renders a verdict. In the cases provided for in paragraph 6 of part one of this article, the court makes a verdict or issues an appeal ruling or resolution.
3. If the circumstances specified in part one and paragraph 1 of part one_2 of Article 237 of this Code are revealed, the appellate court issues an appeal ruling or resolution in accordance with paragraph 7 of part one of this article.
(Part additionally included from May 7, 2013 by Federal Law of April 26, 2013 N 64-FZ)
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TYPES OF DECISIONS in the appellate instance:
I). Refusal to satisfy the complaint
— clause 1 part 1 389.20 Code of Criminal Procedure
refusal to satisfy the complaint
II). Change of sentence
— clause 9 part 1 389.20 Code of Criminal Procedure
change of sentence
— clause 3 part 1 389.20 Code of Criminal Procedure
new conviction
III). Return of the criminal case
— clause 4 part 1 389.20 Code of Criminal Procedure
return of the case to the first instance
— clause 7 part 1 389.20 Code of Criminal Procedure
return the case to the prosecutor
- Part 3 389.20 Code of Criminal Procedure
mandatory return of the case to the prosecutor (
237 Code of Criminal Procedure
)
IV). Acquittal on appeal
— clause 2 part 1 389.20 Code of Criminal Procedure
acquittal on appeal
— clause 5 part 1 389.20 Code of Criminal Procedure
reversal of sentence and new acquittal
— clause 6, part 1 389.20 Code of Criminal Procedure
reversal of the decision and acquittal
V). Termination of criminal case
— Clause 8 Part 1 389.20 Code of Criminal Procedure
termination of a criminal case during the appeal stage
— clause 10 part 1 389.20 Code of Criminal Procedure
termination of appeal proceedings
Registration of the appeal decision
- Part 2 389.20 Code of Criminal Procedure
three types of decisions: decree, determination, sentence
Article 389.20 of the Code of Criminal Procedure. Decisions made by the appellate court
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- paragraph 20
Plenum No. 26, the list of decisions in the appeal is not closed
1) As a result of consideration of a criminal case on appeal, the court makes
one of the decisions:
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- paragraph 22
Plenum No. 26 duty to motivate leaving unchanged
1). to leave the sentence, ruling, resolution unchanged, and the complaint or presentation unsatisfied;
2). on the reversal of a conviction and on an acquittal;
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— 389.23 Code of Criminal Procedure
reversal of the sentence with a new decision
3). on the reversal of a conviction and on the imposition of a guilty verdict;
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— Part 1 389.22 Code of Criminal Procedure
transfer to a new one if the violations can be eliminated in the first instance
Tactics
Return of the case
from the appeal stage, defense methodology (
clause 19
of Plenum No. 26)
New consideration
New consideration
case, return of the case to the 1st or 2nd instance
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4).
on the cancellation of the sentence, ruling, decision of the court of first instance and on the transfer of the criminal case for a new trial to the court of first instance from the stage of preparation for the trial or trial;
5). on the reversal of the acquittal and on the imposition of an acquittal;
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— clause 18.1
Plenum No. 26 the right of the court of appeal to make a new decision
6). on the cancellation of the ruling or resolution and on the issuance of an acquittal or other court decision;
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— Part 3 389.22 Code of Criminal Procedure
return to the prosecutor if violations in court cannot be corrected
Return to the prosecutor
Return of the case
to the prosecutor at the pre-trial stage to eliminate violations
7). on the cancellation of the sentence, ruling, resolution and on the return of the case to the prosecutor;
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— 254 Code of Criminal Procedure
termination of the case in court
8). on the reversal of a sentence, ruling, resolution and on the termination of a criminal case;
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— 389.26 Code of Criminal Procedure
change of sentence on appeal
- paragraph 22
Plenum No. 26, the court is obliged to indicate the motivation for changing the sentence
9) about changing the sentence or other appealed court decision;
10). to terminate the appeal proceedings.
2) In the cases provided for in paragraph 1, paragraph 4, paragraph 7 - paragraph 10 of part 1 of this article, the appellate court issues an appeal ruling or resolution.
In the cases provided for in paragraph 2, paragraph 3, paragraph 5 of part 1 of this article, the appellate court makes a verdict.
In the cases provided for in paragraph 6 of Part 1 of this article, the court makes a verdict or issues an appeal ruling or resolution.
3) If the circumstances specified in Part 1 and Clause 1 of Part 1.2 of 237 Code of Criminal Procedure are revealed, the appellate court issues an appeal ruling or resolution in accordance with Clause 7 of Part 1 of this article.
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Code of Criminal Procedure of the Russian Federation | Article 389-20. Decisions made by the appellate court
Criminal Procedure Code of the Russian Federation (Code of Criminal Procedure of the Russian Federation) N 174-FZ dated December 18, 2001 (List of amending documents). Article 389-20. Decisions made by the appellate court
1. As a result of consideration of a criminal case on appeal, the court makes one of the decisions:
1) to leave the sentence, ruling, resolution unchanged, and the complaint or presentation unsatisfied;
2) on the reversal of a conviction and on the pronouncement of an acquittal;
3) on the reversal of a conviction and on the imposition of a guilty verdict;
4) on the cancellation of the sentence, ruling, decision of the court of first instance and on the transfer of the criminal case for a new trial to the court of first instance from the stage of preparation for the court hearing or trial;
5) on the reversal of the acquittal and on the pronouncement of an acquittal;
6) on the cancellation of a ruling or resolution and on the issuance of an acquittal or other court decision (as amended by Federal Law No. 217-FZ of July 23, 2013 - Collection of Legislation of the Russian Federation, 2013, No. 30, Art. 4050);
7) on the cancellation of the sentence, ruling, resolution and on the return of the case to the prosecutor;
on the reversal of a sentence, ruling, resolution and on the termination of a criminal case;
9) about changing the sentence or other appealed court decision;
10) on termination of appeal proceedings.
2. In the cases provided for in paragraphs 1, 4, 7 - 10 of part one of this article, the appellate court issues an appeal ruling or resolution. In the cases provided for in paragraphs 2, 3, 5 of part one of this article, the appellate court renders a verdict. In the cases provided for in paragraph 6 of part one of this article, the court renders a verdict or issues an appeal ruling or resolution.
3. If the circumstances specified in part one and paragraph 1 of part one-2 of Article 237 of this Code are revealed, the appellate court issues an appeal ruling or resolution in accordance with paragraph 7 of part one of this article (part three was introduced by the Federal Law of April 26, 2013 N 64-FZ - Collection of Legislation of the Russian Federation, 2013, N 17, Art. 2031).
(Article 389-20 was introduced by Federal Law of December 29, 2010 N 433-FZ - Collection of Legislation of the Russian Federation, 2011, N 1, Art. 45)
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Commentary on Article 389.2 of the Code of Criminal Procedure of the Russian Federation
1. The Constitutional Court of the Russian Federation, in its decisions concerning the appeal of interim court decisions taken in criminal cases before a verdict is passed, formulated a more general and universal legal position than that expressed in Part 3 of the Code. article, namely that those procedural decisions of the court are subject to appeal, which, firstly, do not relate to the essence of the criminal case, and secondly, give rise to consequences that go beyond the scope of the criminal procedural legal relations themselves, while significantly limiting constitutional rights and personal freedom and causing them harm, the replenishment of which in the future may not be feasible <1>. In particular, according to this position of the Constitutional Court of the Russian Federation, in addition to the decisions named in Part 3 of Com. article, the decision to reject a challenge filed with the judge <2> and to remove the defendant from the courtroom <3> is also subject to “early” appeal.
——————————— <1> See: Resolution of the Constitutional Court of the Russian Federation of 07/02/1998 N 20-P in the case of verifying the constitutionality of certain provisions of Art. Art. 331 and 464 of the Code of Criminal Procedure of the RSFSR in connection with complaints from a number of citizens // RG. 07/14/1998. N 131; etc. <2> See: Resolution of the Constitutional Court of the Russian Federation of March 22, 2005 N 4-P in the case of verifying the constitutionality of a number of provisions of the Code of Criminal Procedure of the Russian Federation, regulating the procedure and timing of the use of detention as a preventive measure at the stages of criminal proceedings following the end preliminary investigation and referral of a criminal case to court, in connection with complaints from a number of citizens // RG. 04/01/2005. N 66. <3> Definition of the Constitutional Court of the Russian Federation of November 15, 2007 N 821-О-О.
In com. Article (Part 3) proposes a significantly different, narrower general criterion: decisions that affect the rights of citizens to access justice and to have a case considered within a reasonable time and that impede the further progress of the case are appealed. It seems that the position of the Constitutional Court of the Russian Federation has an advantage.
2. In addition, the following are not subject to appeal:
- a sentence passed in a special procedure for making a judicial decision with the consent of the accused with the charge brought against him, - due to the discrepancy between the court’s conclusions set out in the sentence and the actual circumstances of the criminal case established by the court of first instance (Article 317);
- decisions of the presiding judge, made in court with the participation of jurors, on the dissolution of the jury and the direction of the criminal case for a new trial (Part 5 of Article 348); on the termination of the criminal case due to the established insanity of the defendant (Part 2 of Article 352).
3. As declared in Part 1 of Com. Articles, only decisions that have not entered into legal force are appealed on appeal. However, the problem is that interim court decisions, i.e. made in court proceedings before the final decisions are made <1>, come into force and, as a general rule, are executed immediately after their adoption, without waiting for the final decision to be made. As the Constitutional Court of the Russian Federation indicated, sentences and other decisions of a final nature come into force and are enforced after the expiration of the period for appealing them or, in the case of appealing them, on the day the decision of the higher court is made; judicial acts of an interim nature are subject to execution (and, therefore, come into force - A.S.) immediately, except in cases where the court comes to a different decision. Therefore, for example, Art. 359 of the Code of Criminal Procedure, which provides that filing a complaint or presentation suspends the execution of a sentence, does not extend this rule to interim decisions - otherwise, an appeal against an interim court decision would lead to the impossibility of carrying out procedural actions, which by their nature imply the urgency of their implementation. At the same time, the fact that interim court decisions are implemented without delay cannot be regarded as an obstacle to higher courts correcting judicial errors <2>. Therefore, the provisions of this chapter on appealing interlocutory court decisions by appeal should not be understood in the sense that these decisions do not enter into legal force until the decision is made by the appellate authority. Apparently, here we should talk about some inaccuracy in the external form of the law.
——————————— <1> In this case, the final decisions are sentences and decisions to terminate the criminal case. <2> Ruling of the Constitutional Court of the Russian Federation dated July 18, 2006 N 286-O on the refusal to accept for consideration the complaint of gr. V.F. Karimov for violation of his constitutional rights, Art. Art. 5, 125, 359 and 391 of the Code of Criminal Procedure of the Russian Federation.
4. The Code of Criminal Procedure does not exclude appeals and review of sentences passed on the basis of a jury verdict. Articles 389.25, 389.27 of the Code directly provide for this possibility. However, taking into account the provisions of Art. 389.27 and clauses 2 - 4 art. 389.15 judicial decisions of a court with the participation of a jury can be reviewed by the appellate instance only from the point of view of the correct application of the law (due to a significant violation of the criminal procedural law; incorrect application of the criminal law; unfairness of the verdict), and not from establishing the factual circumstances of the case, because in the appeal procedure the jury assessors do not participate, therefore, it is impossible to reproduce the same conditions for making a decision here as in the court of first instance.
5. In room The article does not directly address the question of whether those decisions of the court (judge) that were made during pre-trial proceedings in a criminal case, in particular the judge’s decision on detention or refusal to do so, are subject to appeal. However, in accordance with Part 1 of Art. 127 complaints and presentations against sentences, rulings, decisions of courts of first and appellate instances, as well as complaints and presentations against court decisions taken during pre-trial proceedings in a criminal case, are brought in the appeal and cassation procedures. According to the new ed. Part 11 Art. 108 of the Criminal Procedure Code (Federal Law of December 29, 2010 N 433-FZ), it can be appealed to a higher court in the appellate and cassation procedures, and the decision of the cassation court can be appealed in the supervisory order (Part 2 of Article 127).
