Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated April 10, 2019 N 18-UD19-23
SUPREME COURT OF THE RUSSIAN FEDERATION
DEFINITION
dated April 10, 2022 N 18-UD19-23
The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, consisting of:
presiding Zykin V.Ya.,
judges Vedernikova O.N. and Shamova A.V.,
under secretary D.S. Bystrov,
examined at a court hearing a criminal case based on the cassation appeal of lawyer N.S. Rostova. in defense of Magomedov Kh.N. to the resolution of the Presidium of the Krasnodar Regional Court dated October 10, 2018.
Having heard the report of Judge A.V. Shamov, the speeches of N.S. Rostova’s lawyers. and Trokhimts K.A. in the interests of Magomedov Kh.N. according to the arguments of the cassation appeal, prosecutor V.Yu. Gurova, who considered it necessary to cancel the decision of the presidium of the Krasnodar Regional Court and subsequent court decisions, change the territorial jurisdiction of the criminal case, and send it to the cassation court of another subject of the Russian Federation for consideration, judicial panel
installed:
by the verdict of the magistrate of judicial district N of the city of Slavyansk-on-Kuban, Krasnodar Territory, dated April 20, 2022,
Magomedov Khabib Nabievich, unconvicted,
convicted: - under Part 1 of Article 171.2 of the Criminal Code of the Russian Federation to a fine in the amount of 150,000 rubles;
- under Part 1 of Article 171.2 of the Criminal Code of the Russian Federation to a fine of 150,000 rubles.
Based on Part 2 of Article 69 of the Criminal Code of the Russian Federation for the totality of crimes, by partial addition of punishments, finally Magomedov Kh.N. a fine of 200,000 rubles was imposed.
By the appeal verdict of the Slavyansk City Court of the Krasnodar Territory dated July 12, 2022, the guilty verdict of the magistrate judge of judicial district N of the city of Slavyansk-on-Kuban, Krasnodar Territory dated April 20, 2022 in relation to Magomedov Kh.N. canceled. Magomedov Kh.N. acquitted of the charges due to the absence of corpus delicti in his actions and his right to rehabilitation was recognized.
By the resolution of the Presidium of the Krasnodar Regional Court dated October 10, 2022, the appeal verdict of the Slavyansk City Court of the Krasnodar Territory dated July 12, 2022 against Magomedov Kh.N. canceled, the criminal case was sent for a new appeal hearing to the Slavyansky City Court of the Krasnodar Territory, in a different composition of the court.
In the cassation appeal, Rostov’s lawyer N.S. requests to cancel the resolution of the Presidium of the Krasnodar Regional Court dated October 10, 2018 and to terminate the criminal proceedings against Kh.N. Magomedov. due to the absence of corpus delicti in his actions. In support of the request, the lawyer argues that in violation of the provisions of parts 1 and 2 of Article 401.12 of the Code of Criminal Procedure of the Russian Federation, the interested parties are the acquitted Magomedov Kh.N. and his defender - lawyer N.S. Rostov. copy of the cassation presentation of the acting Prosecutor of the Krasnodar Territory V.A. Malkin on the appeal verdict of the Slavyansk City Court of the Krasnodar Territory dated July 12, 2018 and a copy of the resolution on the transfer of the cassation presentation with the criminal case for consideration at the court hearing of the cassation court dated September 25, 2022, until the presidium of the Krasnodar Regional Court made the appealed decision, on the date the time and place of consideration of the criminal case by the court of cassation within the period established by law were not notified. Expresses disagreement with the conclusions of the cassation court about the existence of grounds for canceling the ruling against Kh.N. Magomedov. appeal verdict.
Having checked the materials of the criminal case and the arguments of the cassation appeal, having listened to the participants in the process, the judicial panel finds the decision of the cassation court subject to cancellation.
In accordance with Part 1 of Article 401.15 of the Code of Criminal Procedure of the Russian Federation, the grounds for canceling or changing a sentence, ruling or court order when considering a criminal case in the cassation instance are significant violations of the criminal and (or) criminal procedure law that influenced the outcome of the case.
From the materials of the criminal case it follows that on August 23, 2022, acting. Prosecutor of the Krasnodar Territory V.A. Malkin a cassation submission was brought against the appeal verdict of the Slavyansky City Court of the Krasnodar Territory. By the judge's decision dated September 25, 2022, the cassation submission was transferred for consideration to the presidium of the Krasnodar Regional Court.
Attached to the case materials is a covering letter (vol. 8, case sheet 92) about sending copies of the resolution to transfer the cassation presentation for consideration at the court hearing of the Presidium of the Krasnodar Regional Court dated September 25, 2022 and the cassation presentation with notice of the day the case was considered by the cassation court acquitted Magomedov Kh.N. and his defender - lawyer N.S. Rostova. September 26, 2022.
According to the protocol of the court hearing in cassation proceedings for the consideration of criminal case No. dated October 10, 2022 (vol. 8, pp. 94 - 95), it contains a record that “Magomedov Kh.N. duly notified of the time and place of the hearing of the case in the presidium of the Krasnodar Regional Court. I received a copy of the resolution." The cassation submission was considered by the presidium of the Krasnodar Regional Court in the absence of the acquitted Magomedov Kh.N., with the involvement of a court-appointed lawyer, O.S. Kananykhina, to protect his interests.
According to the provisions of Article 401.12 of the Code of Criminal Procedure of the Russian Federation, the cassation court, no later than 14 days before the day of the court hearing, notifies the persons whose interests are affected by the complaint, presentation, of the date, time and place of consideration of the criminal case, and also sends to these persons copies of the decision on the transfer of the cassation complaint , presentations with a criminal case for consideration in a court session of the court of cassation and copies of cassation complaints and (or) presentations filed by other participants in the trial in this case.
At the same time, the case materials do not contain data indicating that the acquitted Magomedov Kh.N. was properly notified. on the consideration by the presidium of the Krasnodar Regional Court of the cassation submission of the acting prosecutor of the Krasnodar region, nor to receive Magomedov Kh.N. copies of the judge's decision and the cassation presentation of the acting Prosecutor of the Krasnodar Territory.
Considering that the cassation submission raised the question of canceling the acquittal on appeal on grounds leading to a worsening of the situation of the acquitted Magomedov Kh.N., the judicial panel comes to the conclusion that the lack of information about the proper notification of Magomedov Kh.N. on the consideration of the case by the court of cassation, on its receipt of the necessary procedural documents, indicates a violation of the rights of Magomedov Kh.N. for defense, since he was deprived of the opportunity to familiarize himself with the decision on the transfer of the cassation presentation of the criminal case for consideration at the court hearing of the cassation court, as well as with the cassation presentation itself before its consideration by the cassation court, to file objections to it, and to bring his position to the court , if necessary, enter into an agreement with a lawyer to provide legal assistance at this stage of the criminal process.
Under such circumstances, the judicial panel believes that when the presidium of the Krasnodar Regional Court considered the cassation submission of the acting Prosecutor of the Krasnodar Territory V.A. Malkin on the acquittal appeal verdict of the Slavyansky City Court of Krasnodar dated July 12, 2022, significant violations of the criminal procedural law were committed, and therefore the resolution of the presidium of the Krasnodar Regional Court dated October 10, 2022 is subject to cancellation and the criminal case is sent for a new trial to the court of cassation.
Considering that by the decision of the court of cassation the appeal verdict of the Slavyansky District Court of the Krasnodar Territory dated July 12, 2022 was overturned and the case was sent for a new appeal hearing, by the appeal decision of the Slavyansky District Court of the Krasnodar Territory dated January 10, 2019, the verdict of the magistrate was left unchanged, due to with the cancellation of the resolution of the Presidium of the Krasnodar Regional Court dated October 10, 2022, the appeal resolution dated January 10, 2022 is also subject to cancellation.
Taking into account the provisions of the law on the inadmissibility of repeated participation of judges in the consideration of the case, the criminal case against Magomedov Kh.N. with the decision of the judge of the Krasnodar Regional Court dated September 25, 2022 and the cassation submission of the acting Prosecutor of the Krasnodar Territory on the appeal verdict of the Slavyansky City Court dated July 12, 2022 must be submitted to the Presidium of the Rostov Regional Court for consideration.
Guided by Article 401.14 of the Code of Criminal Procedure of the Russian Federation, the judicial panel
determined:
the decision of the Presidium of the Krasnodar Regional Court dated October 10, 2022, the appeal ruling of the Slavyansky District Court of the Krasnodar Territory dated January 10, 2022 to be cancelled.
A criminal case against Khabib Nabievich Magomedov with a cassation submission by acting. Prosecutor of the Krasnodar Territory on the appeal verdict of the Slavyansky City Court of the Krasnodar Territory dated July 12, 2022 and by the decision of the judge of the Krasnodar Regional Court dated September 25, 2022 to submit it for consideration by the Presidium of the Rostov Regional Court.
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Here we provide some practical examples. Not to brag, the goal here is so that you can find similarities with the circumstances of your case and use them in your defense. All the examples given are presented in such a way that anyone can understand them:
A)
What violation was committed by the court (or investigator) in this case?
b)
What protection methods worked?
Ordinary judicial acts in their “pure” form are far from easy to “decipher”; the meaning is hidden behind all the cumbersome formalism. Therefore, we present the texts of judicial acts in a form adapted for ease of understanding.
But in each example there are links to an official source (in the Cons+ database, or on the court’s website); if you wish, you can read the full texts.
For each example, here are literally a couple of words explaining the essence - you can read more by following the links.
Some cases from our judicial practice
| 126 CC | Case No. 10-18698/2018 Example - an error in taking into account active contribution ( |
| 161 CC | Case No. 01-0346/2018 Example - acquittal under Articles |
| 131 CC | Case No. 44у-5/2017 Example - aggravating (We do not post the text of the judicial act; under articles in this area, this is prohibited). |
| 209 CC | Case No. 51-APU17-9 Example — acquittal under |
| 228 CC | Case No. 01-0782/2016 Example — suspended sentence (only due to mitigating circumstances) under |
| 228.1 CC | Case 77-1611/2021 Example – requalification from Case No. 77-2068/2020 Example — the totality of crimes has been refuted, reclassified as a single episode Case No. 7U-6341/2020 Example — reversal of the verdict on a new cassation appeal filed on Case No. 77-1293/2020 Example — non-accounting for personal use, packaging with requalification of sales according to Example — violation of the requirements Case No. 10-16047/2019 Example — violation of the chain of ownership, failure to check the security version, unresolved doubts Case No. 127-UD 19-8 Example — the qualifying feature “group of persons” under Article |
| 264 CC | Case No. 77-1248/2020 Example — mitigation of punishment in cassation under Case No. 22-3103/2016 Example — mitigation of punishment in appeal under |
| 286 CC | Case No. 44у-30/2019 Example — acquittal under |
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Judicial practice in criminal cases of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the European Court of Human Rights (1996-2004)/Compiled. E.N. Trikoz; preface V.P. Kashepova and E.N. Trikoz. - M.: "Publishing House "Gorodets"", 2006. - 1408 p. ISBN 5-9584-0112-2 The collection includes in a systematized form judicial practice in criminal cases of two Russian highest courts - the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, as well as the European Court of Human Rights, relating mainly to issues of substantive criminal law. The first three parts of the collection combine rulings, rulings and decisions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation on the problems of applying the norms of the General and Special Parts of the Criminal Code of the Russian Federation, as well as quarterly reviews of the judicial practice of the Supreme Court of the Russian Federation in criminal cases for 1996-2004. The fourth part of the collection includes court decisions of the European Court of Human Rights affecting criminal legal issues. For law students, lawyers, court officials, prosecutors and other law enforcement agencies.Preface
- I. JUDICIAL PRACTICE OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION AND THE SUPREME COURT OF THE RUSSIAN FEDERATION ON THE APPLICATION OF THE NORMS OF THE GENERAL PART OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION
- Section I. Criminal Law
- Section II. Crime
- Section III. Punishment
- Section IV. Exemption from criminal liability and punishment
- Section IVa. Amnesty. Pardon. Criminal record
- Section V. Criminal liability of minors
- Section VI. Compulsory medical measures
II. JUDICIAL PRACTICE OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION AND THE SUPREME COURT OF THE RUSSIAN FEDERATION ON THE APPLICATION OF THE STANDARDS OF A SPECIAL PART OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION
- Section VII. Crimes against the person
- Section VIII. Economic crimes
- Section IX. Crimes against public safety and public order
- Section X. Crimes against state power
- Section XI. Crimes against military service
- Section XII. Crimes against the peace and security of mankind
III. QUARTERLY REVIEWS OF JUDICIAL PRACTICE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION FOR 1996-2004 (Extracts)
IV. JUDICIAL PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS ON CRIMINAL LAW ISSUES
