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Appeal against a court verdict in a criminal case: how to draw up, sample, procedure and deadlines


What violations of the court can be appealed against?

  • it was revealed that there are many contradictions in the criminal case;
  • there are inconsistencies between the facts and the evidence presented by the prosecution in court;
  • there is anecdotal evidence that was ignored by the miracle;
  • the absence of some court records was revealed;
  • the judge incorrectly interpreted the law of the Criminal Code of the Russian Federation, distorted reality or incorrectly interpreted the facts;
  • obvious violations of the procedure for conducting a hearing, pre-trial process or investigation have been identified, and the applicant has irrefutable evidence of this fact;
  • trials were conducted without the accused or the victim;
  • the main witnesses in the criminal case were not heard or the legitimate reasons for terminating the proceedings were not taken into account;
  • the sentence is too lenient or harsh;
  • inadmissible evidence was taken into account or a number of facts were hidden;
  • it was revealed that one of the witnesses provided deliberately false information, they were bribed, or there was influence on persons participating in the process;
  • the verdict lacks explanations that would make it clear why certain facts were given importance and others were ignored;
  • a lawyer did not participate in the process, although there was no refusal from the convicted person;
  • any infringement of rights or other facts indicating that the rights of the defendant have been violated;
  • circumstances indicate that the crime was classified incorrectly.

The Supreme Court prohibited changing the sentence under the guise of eliminating errors

The Judicial Collegium of the Supreme Court for Criminal Cases, chaired by Dmitry Saburov, sent the criminal case of a criminal group from Tatarstan for a new trial to the Fourth Court of Appeal of General Jurisdiction. The basis for this was a change in the classification of the crimes of the convicted, including the exclusion of aggravating circumstances under the guise of correcting technical errors in the sentence.

The court materials (No. 11-UDP21-31-A4) refer to an organized crime group that operated in Tatarstan from 2014 to 2022. As the Tatar-inform portal reported, in 2014, 55-year-old Marat Mullin assembled a criminal group from his friends who were previously members of the Kazan organized crime group Kaluga.

Saburov Dmitry Engelsovich

Court

Supreme Court of the Russian Federation

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In October 2022, seven gang members were in the dock on charges of murder, robbery, extortion and illegal storage and transportation of weapons. They were detained after the murder of local businessman Rais Akhmadullin, who was engaged in the supply of food and illegal cash withdrawals.

In addition, the attackers kidnapped a businessman from St. Petersburg, systematically beat him and extorted 15 million rubles. and a car.

In August 2022, the Supreme Court of Tatarstan sentenced the participants of the organized crime group. They received from 5 to 19 years of imprisonment in a maximum security colony. On March 4, the Fourth ASJ changed the verdict: it recognized the testimony of some witnesses as unacceptable evidence, excluded the aggravating circumstance of “committing a crime as part of an organized group,” and reclassified a number of crimes with mitigation of punishment. With another ruling dated March 5, the court corrected a technical error made when preparing the text of the reasoned appeal ruling. And on March 21, the court prepared a new judicial act to eliminate the technical errors made on March 4. In it, the sentences of those convicted became even lenient.

Deputy Prosecutor General Igor Tkachev filed a complaint with the Supreme Court demanding that the appeal rulings be cancelled, pointing out that such an approach violates criminal procedure legislation. He drew attention to the fact that the operative part of the ruling from the case materials does not coincide with the operative part of the decision announced at the court hearing.

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Tkachev recalled that according to the Code of Criminal Procedure, amendments can be made to a judicial act only if they do not lead to a change in the substance of the decision made. Meanwhile, the determinations of the 4th ASOJ are related to issues of qualification of the actions of the convicted, with the amount of punishment imposed on them, “and therefore cannot be recognized as correcting a technical error,” the prosecutor noted.

The victims were also dissatisfied with the “amendments” of the appellate court. In their opinion, the definition is “unfair due to the excessive leniency of the punishment imposed on the convicted person.” They asked to uphold the verdict of the Tatarstan Supreme Court. In turn, the convicts felt that the 4th ASOJ did not sufficiently examine the evidence of their innocence and imposed an “excessively harsh punishment.”

The Supreme Court came to the conclusion that the appellate court actually violated the rules of law, since the announced operative part of the definition and the reasoned definition contain significant differences both in the direction of mitigating the punishment and in the direction of tightening it. Moreover, both contradictory decisions were signed by the same judges, the Supreme Court noted. In addition, the descriptive part does not contain the motives for the decisions made and their substance, although such requirements are provided for by the Code of Criminal Procedure.

The Supreme Court also noted that the court made one of its rulings without holding a meeting or recording a protocol, although the changes affect the qualification of the actions of the convicted and the punishment for them, and this is unacceptable.

As a result, the Supreme Court canceled all three rulings of the 4th ASJ and sent the case for a new trial by a different composition of judges.

  • Pravo.ru

Filing an appeal from relatives of the convicted person

The law does not give the right to file an appeal in a criminal case to relatives and witnesses, both on the part of the convicted person and on the part of the victim.

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Where and how to file an appeal

  • If the sentence was passed in the magistrate’s court, then the application is addressed to the district court, but is submitted through the magistrate’s court.
  • If the case was considered by the district court, then the appeal is filed to a higher court (regional or city), but through the court that issued the sentence.

You can send a complaint through the Russian Post, or through an expedition, sometimes the office for criminal cases of the court. If the convicted person is under arrest, then through a convoy, which will transfer the complaint to the special department of the pre-trial detention center, which in turn will send an appeal to the court. The day of filing the complaint will not be considered the day when it came to court, but when it was registered by the special department of the pre-trial detention center.

Supervisory authorities

After the verdict of a magistrate or district court comes into force, it can be appealed through the supervisory procedure to the Presidium of a regional (territorial, republican) court. The next supervisory authority is the chairman of the regional (territorial, republican) court. If a supervisory complaint addressed to the chairman of the regional court is not satisfied, the next supervisory complaint is filed with the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation. If the specified supervisory authority also does not lead to the cancellation of the sentence, then the supervisory appeal is submitted to the Chairman of the Supreme Court of the Russian Federation.

If the criminal case falls under regional jurisdiction and was considered by the said court at first instance, then the supervisory appeal is filed with the Presidium of the Supreme Court of the Russian Federation. If the Presidium of the Supreme Court of the Russian Federation refuses to satisfy the supervisory appeal, the last supervisory authority will be the Chairman of the Supreme Court of the Russian Federation.

Submission deadlines and acceptance procedure

  • If the defendant is detained and is in a pretrial detention center, the calculation of the term will begin after he is given a copy of the court verdict against signature.
  • If the deadline for filing an appeal in a criminal case has expired, then a cassation appeal is filed.

The court is obliged to notify all participants in the criminal case that it is under appeal.
Along with the notice, a copy of the complaint and all documents attached to it will be sent so that interested parties can familiarize themselves with their contents. The notice must indicate the date on which the appeal hearing will take place. Having received such notice, each participant in the process has the right to write an objection to the complaint if he does not agree with the arguments set out in it.

The procedure for filing a supervisory complaint and requirements for its preparation

A supervisory complaint is filed directly with the supervisory court. A person in custody or serving a sentence in a place of deprivation of liberty files a complaint through the administration of the executive institution. The law previously established a one-year period for filing a supervisory appeal against a court verdict. With the entry into force of the Federal Law of the Russian Federation dated December 31, 2014 No. 51-FZ, Article 412.2 of the Code of Criminal Procedure of the Russian Federation was reduced to one sentence and now, according to this norm, “a supervisory complaint or presentation is filed directly with the Supreme Court of the Russian Federation and the one-year deadline for filing a supervisory complaint is canceled. Changes to the Code of Criminal Procedure make it possible to re-submit supervisory complaints that were previously rejected with reference to missing a one-year deadline. This also applies to court decisions that entered into force before the end of 2013. However, let us remind you that the latter can only be appealed to the court that the party had not previously passed. Therefore, if earlier, for example, the applicant was denied the initiation of supervisory proceedings (against a decision that entered into force before 2014), then he will not be able to file the same complaint again. This follows directly from Art. 401.17 Code of Criminal Procedure of the Russian Federation.

However, judicial practice suggests that there should be no delay in filing a supervisory complaint, especially if the person was sentenced to actual imprisonment.

The supervisory complaint must meet the requirements of the law, otherwise it will be returned to the supervisory court.

A supervisory appeal against a court verdict must contain:

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1. The name of the supervisory court to which the complaint is filed;

2. The procedural position of the person filing a supervisory complaint;

3. Last name, first name, patronymic and residential address of the complainant;

4. An indication of the court verdict and other court decisions that are being appealed. That is, not only the court verdict should be appealed, but also the ruling of the cassation instance, the rulings of the supervisory courts;

5. The arguments of the person filing the complaint are the basis for reversing the sentence;

6. Legal grounds for overturning a sentence:

— discrepancy between the court’s conclusions and the actual circumstances of the case;

— violation of the norms of the Code of Criminal Procedure of the Russian Federation;

— incorrect application of the norms of the Criminal Code of the Russian Federation (incorrect qualification of the actions of the convicted person, incorrect assignment of punishment).

- injustice of the sentence, that is, excessive severity of the punishment or, conversely, too lenient a punishment.

The grounds on which the sentence should be overturned should be indicated in the supervisory appeal.

7. List of documents attached to the complaint:

- a copy of the court verdict;

- a copy of the appeal ruling of the district court against the verdict of the magistrate;

— a copy of the cassation ruling;

-copy of the ruling of the Presidium of the regional court;

-copy of the response of the Chairman of the regional court;

- a copy of the ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation.

In a word, copies of court decisions of all courts, depending on the stage of the supervisory appeal.

Copies of the listed court decisions must be certified with a wet court seal; simple photocopies are not accepted by the court.

In addition to the listed court documents, you have the right to attach to the complaint other procedural documents that, in your opinion, confirm the arguments set out in the complaint.

8. Copy of the supervisory complaint;

9. The complaint must be signed by the person filing it. If there is no signature, the complaint is returned to its author.

Judicial practice shows that supervisory complaints to the Presidium of the regional court and to the judicial panel for criminal cases of the Supreme Court of the Russian Federation are ineffective. The most effective are supervisory complaints addressed to the chairman of the regional court and the chairman of the Supreme Court of the Russian Federation. However, it is impossible to skip over ineffective supervisory authorities; they must be passed.

It is better to entrust the preparation of a supervisory complaint based on violations of the Code of Criminal Procedure of the Russian Federation or incorrect application of substantive law to a lawyer. Complaints based on a lack of evidence about the injustice of the sentence imposed are no less effective if written without the help of a lawyer.

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The issue of sending a complaint to the Presidium of the regional court and to the Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation is decided by one judge, and therefore is ineffective.

The complaint should be made as briefly as possible, stating only the essence. If you are asking to overturn a sentence on several grounds, it makes sense to highlight and number them for ease of reading. To make it easier for the judge to check your arguments, in the supervisory appeal you should indicate the numbers of the sheets of the case on which this or that procedural document is located.

The complaint can be handwritten or typed. A convicted person in prison does not have the opportunity to print a complaint. In order for the judge to easily read the complaint, the handwritten text must be legible and easy to read.

If the supervisory complaint contains references to a violation of the Code of Criminal Procedure of the Russian Federation, it should be remembered that the verdict can only be overturned if there are significant procedural violations.

How to file a complaint

The drafting rules and requirements are prescribed in Article No. 389.6 of the Code of Criminal Procedure of the Russian Federation. A sample appeal in a criminal case is located below; you can write it by hand or on a computer.

Key points of the statement:

  • Information about the court and information about the applicant are recorded. Indicates: the person’s status in the lawsuit and personal information.
  • Provides information about the controversial decision that is subject to appeal.
  • The grounds on which the judge should order a review of the case are recorded.
  • Each statement must be supported by articles of the Criminal Code. Arguments are stated indicating that the application has good grounds for reconsideration.
  • The list of documents and evidence provided is indicated.

Decisions made by the appellate court can only be appealed through cassation. An application to this court is drawn up in the same way as an appeal.

Procedure for considering an appeal

Present at the meeting:

  • three judges and a secretary;
  • public prosecutor (prosecutor);
  • convicted;
  • advocate.

The hearing is held in full; if someone does not appear at the meeting, it is postponed to another day.

For samples and examples of other procedural documents, see the section “Samples of petitions in criminal cases”

Sample appeal

To the Judicial Collegium for Criminal Cases of the Moscow Regional Court, address: ________

through the court that rendered the verdict in the first instance, for example: through the Krasnogorod City Court of the Moscow Region address: ________

from the lawyer, full name in defense of the interests of the convicted person: Ivan Ivanovich Ivanov in criminal case No._____

or

from the convicted Ivanov I.I. in criminal case No._____

APPEAL against the verdict of the Krasnogorsk City Court dated February 12, 2015 in a criminal case against Ivanov I.I., on charges of committing a crime under paragraph “c” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation

According to the verdict of the Krasnogorsk City Court of the Moscow Region dated February 12, 2015 on charges of committing a crime, liability for which is provided for in paragraph “c” of part 3 of Article 158 of the Criminal Code of the Russian Federation, Ivanov I.I. found guilty of committing the said crime and was sentenced to imprisonment for a period of 3 (three) years, without fine or restriction of freedom, to be served in a high-security correctional colony.

When rendering the verdict, the court found that Ivanov I.I., born October 20, 1980, a native of Leningrad, a citizen of the Russian Federation, with secondary education, married, with a dependent child born _____, residing: ____________, liable for military service, not working, previously convicted, committed a criminal offense for which liability is provided for in paragraph “c” of part 3 of Article 158 of the Criminal Code of the Russian Federation - committed theft, that is, the secret theft of someone else’s property, committed by a group of persons by prior conspiracy, on a large scale.

The convict admitted his guilt and the case was considered in a special trial procedure.

According to Article 297 of the Code of Criminal Procedure of the Russian Federation, a court verdict in a criminal case must be justified and fair. At the same time, the sentence is recognized as reasonable and fair if it is decided in accordance with the requirements of this Code of Criminal Procedure of the Russian Federation and is based on the correct application of the criminal law.

The defense does not agree with the verdict passed by the Krasnogorsk City Court, finds it unfair, and, therefore, unfounded, subject to change in terms of mitigation of the sentence for the convicted Ivanov I.I. for the crime committed.

According to paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 11, 2007 No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation”, in accordance with the general principles of sentencing (Article 60 of the Criminal Code of the Russian Federation) a more severe type of punishment from among those provided for the crime committed is assigned only if a less severe type of punishment cannot ensure the achievement of the goals of punishment - as can be seen from the verdict, the court did not motivate for any specific reason in conditions where the sanction of the article provides for punishment both associated with imprisonment and not associated with imprisonment freedom, the court came to the conclusion that the purpose of punishment - correction can be achieved in relation to Ivanov I.I. only if he is deprived of his liberty.

According to part three of Article 60 of the Criminal Code of the Russian Federation, in each case it is necessary to take into account the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family.

If the sanctions of the criminal law, along with deprivation of liberty, provide for other types of punishment, the court decision to impose imprisonment must be motivated in the sentence.

As can be seen from the verdict of the Krasnogorsk City Court dated February 11, 2015, having listed and, in fact, indicating exclusively positive characteristics of I.I. Ivanov, the court did not indicate for what reason (there are no motives) such a severe punishment was imposed on him, according to for what reason exactly did Ivanov I.I. a punishment not related to deprivation of liberty cannot be imposed, especially since the sanction of part 3 of article 158 of the Criminal Code of the Russian Federation provides the court with such an opportunity, while Ivanov I.I. only one episode was charged.

Paragraph 12 of the Resolution of the Plenum of the Supreme Court No. 1 of April 29, 1996 “On the Judicial Sentence” (as amended), explains that the courts should not allow the facts of imposing a punishment on the guilty, which in its amount is clearly unfair both due to lenience and due to severity, since in accordance with the provisions of Article 60 of the Criminal Code of the Russian Federation, when imposing a punishment, the court is obliged to take into account the nature and degree of public danger of the crime committed, the identity of the perpetrator, including circumstances mitigating or aggravating the punishment, as well as the impact of the imposed punishment on the correction of the convicted person and on the conditions the life of his family.

When pronouncing the verdict, the court essentially did not examine the question of the living conditions of the convict’s family, while the amount of income of Ivanov I.I.’s family. below the subsistence level, which essentially forces us to know what the nature of the sentence is: accusatory or punitive, when all members of the family of the convicted person, without exception, become persons significantly and without sufficient reason limited in their rights.

In his last word, as in his speech, the defender and Ivanov I.I. asked the court to assign him (Ivanov I.I.) a punishment not related to imprisonment, giving him (Ivanov I.I.) a chance to atone for his guilt, Ivanov I.I. informed the court that with his work he would prove that he was improving. That is why, counting on a fair verdict, the convicted person asked to be given a sentence that did not involve imprisonment, possibly with a significant fine.

By working, he could fulfill the sentence in this part.

According to paragraph 13 of the above-mentioned Resolution of the Plenum of the Supreme Court of the Russian Federation, in the descriptive and motivational part of the verdict, the court did not give the reasons why it came to the conclusion that it was necessary to impose a sentence of imprisonment on the convicted person, while the sanction of part 3 of Article 290 of the Criminal Code of the Russian Federation provides for an alternative according to the purpose of punishment. So, according to the sanction of the said article, the criminal offense of which Ivanov I.I. was accused, implied the possibility of imposing punishment in the form of: a fine in the amount of one hundred thousand to five hundred thousand rubles, however, the court’s conclusions about the reason for which the most a serious form of punishment is not given, nor are the circumstances for which the correction of Ivanov I.I. is possible only in conditions of isolation from Society.

According to Article 6 of the Criminal Code of the Russian Federation, punishment and other measures of a criminal legal nature applied to a person who has committed a crime must be fair, that is, correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator.

Article 7 of the Criminal Code of the Russian Federation, which establishes the principle of humanism, states that punishment and other measures of a criminal legal nature applied to a person who has committed a crime cannot be aimed at causing physical suffering or humiliation of human dignity.

According to paragraph 37 of the Named Resolution of the Plenum of January 11, 2007, in a special trial procedure, the punishment cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed (part seven of Article 316 of the Code of Criminal Procedure of the Russian Federation).

At the same time, in the presence of exceptional circumstances, the court may impose a more lenient punishment than provided for this crime, as well as apply other rules for mitigating punishment provided for by the General Part of the Criminal Code of the Russian Federation.

When imposing a punishment according to the rules provided for in Article 62 of the Criminal Procedure Code of the Russian Federation, the court, by virtue of part seven of Article 316 of the Criminal Procedure Code of the Russian Federation, calculates three-quarters of the sentence from two-thirds of the maximum term or amount of the most severe type of punishment provided for by the corresponding article of the Special Part of the Criminal Code of the Russian Federation.

During the trial, the court rendered a sentence that exactly corresponded to the plot of the accusation and the position of the state prosecutor, who indicated the need to appoint Ivanov I.I. exactly the punishment that was imposed by the court by the appealed verdict, but the amount of the imposed punishment does not correspond to the gravity of the crime.

The verdict in the case, in the opinion of the defense, does not meet the criteria established by Article 290 of the Criminal Code of the Russian Federation, cannot be considered reasonable and fair and is subject to change, and the imposed punishment to be mitigated on the following grounds.

During the preliminary investigation, which was also confirmed at the court hearing, Ivanov I.I. fully admitted his guilt in the crime committed, assisted the investigation by giving comprehensive and truthful testimony that allowed us to establish the truth in the case, assisted the investigation, filed a petition for consideration cases in a special order, repented of what he had done and sincerely admitted to committing the crime (sentence sheet 4). In particular, “The court takes into account that Ivanov I.I.... fully admitted their guilt and repented of their deeds, turned themselves in..., in addition, Poltavtsev A.N. has a dependent child born in 2007, which the court recognizes as mitigating circumstances.”

At the same time, when considering the criminal case in a special proceeding, the Krasnogorsk City Court did not take into account the degree of public danger of what Ivanov I.I. did, his active repentance for his crime, which was fully confirmed by him both during the investigation and during the trial, and specific mitigating circumstances , documented by the case materials.

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In his last word, Ivanov I.I. sincerely, experiencing guilt in what he had done, he asked the court not to impose a sentence of imprisonment on him, addressed the court with the last word, in which he gave sufficient arguments to judge that he, being a young person who had not received sufficient life experience, sincerely admits his guilt and appeals to justice with a request to understand his repentance, which, unfortunately, did not happen and, contrary to the requirements of the Law, an excessively harsh sentence was passed in the case - a punitive sentence that does not correspond in its severity: neither to the signs of justice, nor to the cassation and supervisory practice of the Supreme Court court of the Russian Federation, or even information from judicial statistics and judicial practice on similar categories of cases (in terms of sentencing practice).

During the trial, the court was presented with sufficient, in the opinion of the defense, evidence that in this particular case, a guilty verdict and corresponding to the qualifications of the crime was decided, but nevertheless the punishment itself, assigned to Ivanov I.I., was punitive character does not correspond to either the nature or the severity of the offense.

Also, the court did not take into account the circumstances confirmed by documents that, despite admitting his guilt in the crime, Ivanov I.I. does not deserve the punishment associated with isolation from Society, which also goes beyond the scope of judicial statistics in criminal cases where the accused in committing similar crimes, unlike Ivanov I.I., those who oppose the investigation and the court in establishing the truth in the case, who choose evasion of confession as a method of defense, or, abusing their rights, choose the tactics of using the guarantees of Article 51 of the Constitution of the Russian Federation, are condemned under Part 3 of Article 158 of the Criminal Code of the Russian Federation, to penalties not related to imprisonment in 90% of cases (the practice of the Moscow Regional, Moscow City and Krasnogorsk District Courts).

According to paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 26 of November 27, 2012 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the appellate court,” the court has the right to change the sentence or cancel the sentence and make a new judgment if this the position of the convicted person in relation to the charges brought by the preliminary investigation bodies is not worsened, and his right to defense is not violated.

According to Article 43 of the Criminal Code of the Russian Federation, punishment is a measure of state coercion, imposed by a court verdict.

Punishment is applied to a person found guilty of committing a crime and consists of the deprivation or restriction of the rights and freedoms of this person as provided for in this Code, while the punishment is applied in order to restore social justice, as well as to correct the convicted person and prevent the commission of new crimes.

According to Article 56 of the Criminal Code of the Russian Federation, deprivation of liberty consists of isolating a convicted person from society by sending him to a penal colony, placing him in an educational colony, a medical correctional institution, a correctional colony of general, strict or special regime, or in prison and is the most severe type of punishment.

According to paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 26 of November 27, 2012 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of appeal,” Verifying the legality, validity and fairness of the sentence based on appeals and (or) submissions or other court decisions, the appellate court must eliminate the violations committed and consider the criminal case on its merits with a final court decision.

As noted above, the defense finds the verdict passed by the Krasnogorsk City Court of the Moscow Region against Ivanov I.I. unreasonable and unfair in terms of the punishment assigned to the convicted person, subject to change.

Article 61 of the Criminal Code of the Russian Federation establishes circumstances that, in the opinion of the defense, mitigate the guilt of I.I. Ivanov, the list of circumstances given in this article is not exhaustive, and the court is given the right to take into account other circumstances not specified in this article, however When deciding the sentence, the court did not indicate mitigating circumstances, although confirmation of their presence is available in the case; in its verdict, the court limited itself to a formal indication of the presence of positive characteristics and personal information, but no more.

Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 11, 2007 N 2 (as amended on December 3, 2013) “On the practice of imposing criminal punishment by the Courts of the Russian Federation” in paragraph 6 of paragraph 7 determines that: “a message from a person detained on suspicion of committing a specific crime, about other crimes he has committed, unknown to the criminal prosecution authorities, should be recognized as a confession and taken into account when assigning punishment when convicted for these crimes.”

And the next paragraph states that: “in the case of a totality of crimes committed, surrender as a circumstance mitigating punishment is taken into account when assigning punishment for the crime in connection with which the person surrendered.”

As previously stated, from the case materials it follows that Ivanov I.I. sincerely repented of what he had done and voluntarily confessed in the only episode in which the investigative authorities did not suspect him.

The court unreasonably did not apply the provisions of Article 64 of the Criminal Code of the Russian Federation in relation to Ivanov I.I. and did not impose a punishment below the lowest limit, despite the fact that the special part of the Criminal Code of the Russian Federation did not establish a minimum limit. Considering that the provisions of Article 64 of the Criminal Code of the Russian Federation imply the possibility of imposing a sentence below the lower limit, consideration of the issue of applying the disposition of this norm when imposing punishment is a necessary condition for respecting the rights of the defendant, taking into account his behavior during the preliminary investigation and trial.

On the basis of the above,

ASK:

1. The verdict of the Krasnogorsk City Court of the Moscow Region dated February 12, 2015 is amended;

2. Assign Ivanova I.I. a punishment not related to the deprivation of his freedom, not related to serving the sentence in a maximum security colony, since there is no need to isolate the convicted person from Society, and the punishment imposed on him will not contribute to the correction of the convicted person;

3. Consideration of the case in the appellate court should be carried out with the participation of the convicted person;

Order No.______from_______________

Lawyer _signature____ / ___name__

The prosecutor's office considers the sentence too lenient

The prosecutor's office is sensitive to lenient sentences from judges. Without a presentation from the prosecutor or a complaint from the victim, the appellate authority does not have the right to overturn the verdict Article 383 of the Code of Criminal Procedure of the Russian Federation. The injustice of the sentence. Part 2. The sentence may also be overturned due to the need to impose a more severe punishment due to the recognition of the punishment imposed by the court of first instance or appeal as unfair due to its excessive lenience only in cases where, on these grounds, there is a presentation of the prosecutor or a statement of the private prosecutor, the victim or his representative. According to the above article, if it is necessary to apply the law on a more serious crime or impose a more severe punishment, the sentence can be overturned by the appellate court only when, on these grounds, a presentation from the prosecutor or a complaint from the victim or his close relative is brought in the case provided for by law. The presence of complaints from other participants in the process about the leniency of the punishment cannot serve as a basis for overturning the sentence due to the need to apply the law on a more serious crime (Article 360 ​​of the Code of Criminal Procedure of the Russian Federation). The presentation by the prosecutor or the victim of a complaint about the leniency of the punishment does not give the court of second instance the right to overturn the sentence on the grounds of the need to qualify the actions of the perpetrator under the law for a more serious crime.

Without a presentation from the prosecutor or a complaint from the victim, the appellate authority does not have the right to overturn the verdict, which excluded the charge under a particular article of the law, due to the unfoundedness of the exclusion of this part of the charge.

Thus, lawyers have to continue to fight for their client. In this case, there was no trial on appeal. After the lawyer wrote objections, the cassation presentation was withdrawn. The verdict came into force. I would like to share and put on display the cassation presentation of the state prosecutor.

CASSATION REPRESENTATION By the verdict of the Zasviyazhsky District Court of Ulyanovsk dated November 29, 2012, XXXXXXXXX, born in 1974, native of Ulyanovsk, living at the address: xxxxxxxxxxxxxxxxxx, registered at the address: xxxxxxxxxxxxxx, Russian Federation, with secondary specialized education, widower with dependent on a minor child, not working, with a criminal record.

- by a verdict of the Zasviyazhsky District Court of Ulyanovsk dated March 4, 2008 under Article 162 Part 1 of the Criminal Code of the Russian Federation to 3 years 4 months of suspended imprisonment with a probationary period of 3 years. By the decision of the Zasviyazhsky District Court of Ulyanovsk dated March 14, 2009, the suspended sentence was canceled, it was decided to carry out the punishment imposed by the court verdict - by the verdict of the magistrate of the judicial district No. 5 of the Zasviyazhsky District of Ulyanovsk dated March 31, 2009 under Art. 159 part 1 of the Criminal Code of the Russian Federation, Art. 70 of the Criminal Code of the Russian Federation to 3 years, 8 months of imprisonment, released on January 11, 2012, conditionally - early for an unserved term of 10 months 15 days; - by the verdict of the Leninsky District Court of Ulyanovsk dated 09/06/2012 under Art. 112 part 2 p “g” of the Criminal Code of the Russian Federation, Art. 70 of the Criminal Code of the Russian Federation to 2 years in prison, convicted under Art. 30 part 3 228-1 part 3 paragraph “g” of the Criminal Code of the Russian Federation to imprisonment for a term of 5 years 2 months using Art. 64, 69 part 5 of the Criminal Code of the Russian Federation with serving the sentence in a high-security correctional colony. XXXXX was convicted of attempted illegal sale of narcotic drugs on an especially large scale. I consider the court's verdict illegal and unfounded and subject to cancellation. I believe that when assigning the punishment, the court did not fully take into account the data about XXXXX’s personality and came to the conclusion that he was given an overly lenient punishment using Art. 64 of the Criminal Code of the Russian Federation in the form of 5 years 2 months of imprisonment.

Thus, the court in violation of Art. 60 of the Criminal Code of the Russian Federation, when assigning punishment, did not fully take into account the nature and degree of public danger of the crime, the personality of XXXXX, who had previously been repeatedly brought to administrative and criminal liability.

However, despite these circumstances, the court considered it possible to sentence the defendant, taking into account the provisions of Art. 64 of the Criminal Code of the Russian Federation, i.e. assign below the lower limit.

The punishment XXXX imposed by the court will not contribute to his further correction. According to the requirements of Art. 297 of the Code of Criminal Procedure of the Russian Federation, the court’s verdict must be justified and fair. The verdict is recognized as legal, reasonable and fair if it is passed in accordance with the requirements of the Code of Criminal Procedure of the Russian Federation and is based on the correct application of the criminal law. In addition, in the descriptive and motivational part of the verdict, the court motivated the exclusion of the episode of criminal activity of XXXXX. dated 06/07/2012 indicates full name in the verdict. the accused as “Kudryavtseva”, as well as another date of the second episode, as 03/26/2012 (l. 15 of the verdict).

Thus, it is impossible to understand from the verdict exactly which episode the court wants to exclude and in relation to which accused.

In addition, the court’s verdict does not sufficiently motivate the qualification of the actions of the guilty person. In accordance with Art. 307 of the Code of Criminal Procedure of the Russian Federation, the descriptive and motivational part of the guilty verdict must contain justification for the classification of the crime committed.

According to the Resolution of the Plenum of the Armed Forces of the Russian Federation “On the Judicial Verdict” dated April 29, 1996, the verdict must motivate the court’s conclusions regarding the qualification of a crime under a particular article of the Criminal Code of the Russian Federation, its part or paragraph, the court is obliged to cite in the descriptive part of the verdict the circumstances that served as the basis To draw a conclusion about the presence of a particular sign in an act, it is also necessary to motivate the type and amount of the imposed punishment.

Based on the above, I believe that the court’s verdict is unlawful due to the incorrect application of the criminal law, violation of the criminal procedural law, as well as its injustice, which, in accordance with paragraphs. 2.3 hours 1 tbsp. 381, 382 of the Code of Criminal Procedure of the Russian Federation is the basis for canceling the sentence.

In view of the above, guided by Art. 354, 355, 379, 381, 382 Code of Criminal Procedure of the Russian Federation,

I ASK: Verdict of the Zasviyazhsky District Court of Ulyanovsk dated November 29, 2012 in relation to XXXX. 1974 birth will be cancelled, the case will be sent for a new trial by the same court, with a different composition of the court.

State prosecutor lawyer 2nd class

Deadlines for appeal and procedure for restoring a missed deadline

An appeal against a court verdict can be filed within 10 days from the date of the verdict (Article 389.4 of the Code of Criminal Procedure of the Russian Federation).

If the deadline for an appeal is missed for a good reason, persons who have the right to file an appeal or presentation may petition the court that passed the sentence or made another appealed decision to restore the missed deadline. The petition to restore the term is considered by the judge who presided over the court hearing in the criminal case, or by another judge (Article 389.5 of the Code of Criminal Procedure of the Russian Federation).

The procedure for appealing sentences and decisions in criminal cases

PROCEEDINGS IN THE COURT OF APPEALS

(Chapter 45.1. Criminal Code of the Russian Federation)

Article 389.1. Right of appeal

1. The right to appeal a court decision belongs to the convicted, acquitted, their defenders and legal representatives, the state prosecutor and (or) a higher prosecutor, the victim, the private prosecutor, their legal representatives and representatives, as well as other persons to the extent that the appealed court decision the decision affects their rights and legitimate interests.

2. A civil plaintiff, a civil defendant or their legal representatives and representatives have the right to appeal a court decision insofar as it relates to the civil claim.

Article 389.2. Court decisions subject to appeal

1. In accordance with the requirements of this chapter, decisions of the court of first instance that have not entered into legal force may be appealed by the parties on appeal.

2. Determinations or decisions on the procedure for examining evidence, on satisfying or rejecting petitions of participants in the trial and other court decisions made during the trial are appealed on appeal simultaneously with the appeal of the final court decision in the case, with the exception of court decisions specified in part third of this article.

3. Before the final court decision is made, the decisions of the magistrate to return the application to the person who filed it or to refuse to accept the application for proceedings are subject to appeal; court decisions or rulings on the selection of a preventive measure or on the extension of its validity, on the placement of a person in a medical organization providing medical care in an inpatient setting, or in a medical organization providing psychiatric care in an inpatient setting, for conducting a forensic examination, on the seizure of property, on the suspension of a criminal case, on the transfer of a criminal case to jurisdiction or on changing the jurisdiction of a criminal case, on the return of a criminal case to the prosecutor; other court decisions affecting the rights of citizens to access justice and to consider a case within a reasonable time and preventing further progress of the case, as well as private rulings or decisions.

4. An appeal against a ruling or ruling made during a trial does not suspend the trial.

Article 389.3. The procedure for filing an appeal, presentation

1. An appeal or presentation is brought through the court that passed the sentence or issued another appealed court decision.

2. Appeals and presentations are submitted:

1) in response to a verdict or other decision of a magistrate - to the district court;

2) for a verdict or other decision of a district court, garrison military court - to the judicial collegium for criminal cases of the supreme court of the republic, regional or regional court, court of a federal city, court of an autonomous region, court of an autonomous district, district (naval) military court;

3) for a verdict or other decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district - to the judicial panel for criminal cases of a court of appeal of general jurisdiction; 4) against a verdict or other decision of the district (naval) military court - to the military court of appeal; 5) against the decision of a judge of the Supreme Court of the Russian Federation - to the Appeal Board of the Supreme Court of the Russian Federation.

Article 389.4. Time limits for appealing sentences or other court decisions

1. An appeal, submission against a sentence or other decision of the court of first instance can be filed within 10 days from the date of the verdict or other court decision, and for a convicted person in custody - within the same period from the date of delivery of copies of the sentence to him, definitions, regulations.

2. During the period established for appealing a court decision, a criminal case cannot be recalled from the court.

3. Appeals or submissions filed after missing the deadline are left without consideration.

Article 389.5. The procedure for restoring the period for appeal

1. If the deadline for an appeal is missed for a good reason, persons who have the right to file an appeal or presentation may petition the court that passed the sentence or made another decision being appealed to restore the missed deadline. The petition to restore the term is considered by the judge who presided over the court hearing in the criminal case, or by another judge.

2. A judge’s decision to refuse to restore the missed deadline may be appealed to a higher court, which has the right to cancel such a decision and consider the filed appeal, presentation on the merits, or return them to the court that made the appealed court decision, to fulfill the requirements provided for in Article 389.6 of this Code.

Article 389.6. Appeal, presentation

1. An appeal or presentation must contain:

1) the name of the appellate court to which the complaint or presentation is filed;

2) information about the person who filed the appeal or presentation, indicating his procedural status, place of residence or location;

3) an indication of the verdict or other court decision and the name of the court that decided or issued it;

4) the arguments of the person who filed the appeal or presentation, indicating the grounds provided for in Article 389.15 of this Code;

5) a list of materials attached to the appeal or presentation;

6) signature of the person who filed the appeal or presentation.

1.1. The person who filed the appeal or presentation, in support of the arguments presented in the complaint or presentation, has the right to file a petition for the court of appeal to examine the evidence that was examined by the court of first instance, which must be indicated in the complaint or presentation, and provide a list of witnesses, experts and others persons subject to summons for this purpose to the court hearing. If a request is made to examine evidence that was not examined by the court of first instance (new evidence), then the person is obliged to justify in the appeal or presentation the impossibility of presenting this evidence to the court of first instance.

2. The appeal of a person not participating in the criminal case must indicate what rights and legitimate interests of this person were violated by the court decision.

3. If a convicted person applies for participation in the consideration of a criminal case by an appellate court, this is indicated in his appeal or in objections to complaints and submissions brought by other participants in the criminal process.

4. If the appeal or presentation does not comply with the requirements established by parts one, one.1 and second of this article, which prevents the consideration of the criminal case, the appeal or presentation is returned by the judge, who sets a deadline for their re-drafting. If the judge’s requirements are not met and the appeal or presentation is not received within the time limit set by the judge, they are considered not filed. In this case, the verdict or other appealed court decision is considered to have entered into legal force.

Section 389.35. Appealing a decision of the appellate court

The verdict, ruling, decision of the court of appeal may be appealed to a higher court in the manner established by Chapters 47.1 and 48.1 of this Code.

REVISION OF ENTERED INTO FORCE

SENTENCES, DETERMINATIONS AND COURT DECISIONS

PROCEEDINGS IN THE CASSATION COURT

(Chapter 47.1 of the Criminal Code of the Russian Federation)

Article 401.1. Subject of cassation proceedings

The cassation court verifies, based on a cassation appeal or presentation, the legality of a sentence, ruling or court decision that has entered into legal force.

Article 401.2. The right to appeal to the cassation court

1. A court decision that has entered into legal force may be appealed in the manner established by this chapter to the court of cassation by the convicted, acquitted, their defenders and legal representatives, the victim, the private prosecutor, their legal representatives and representatives, as well as other persons in that regard , in which the appealed court decision affects their rights and legitimate interests. A civil plaintiff, civil defendant or their legal representatives and representatives have the right to appeal a court decision insofar as it relates to the civil claim. 2. The Prosecutor General of the Russian Federation and his deputies have the right to apply to any cassation court to review a court decision that has entered into legal force. 2.1. The prosecutor of a constituent entity of the Russian Federation and his deputies have the right to apply for a review of a court decision that has entered into legal force, made by the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district on appeal, as well as those entered into the legal force of court decisions made by lower courts to the judicial panel for criminal cases of the relevant cassation court of general jurisdiction.

2.2. A military prosecutor equated to the prosecutor of a constituent entity of the Russian Federation and his deputies have the right to apply for a review of a court decision that has entered into legal force made by a district (naval) military court on appeal, as well as court decisions that have entered into legal force made by garrison military courts, in cassation military court.

3. Lost power.

Section 401.3. The procedure and deadlines for filing a cassation appeal, presentation, the procedure for restoring the deadline for a cassation appeal

1. Cassation appeals and presentations are submitted to:

1) the verdict and decision of the magistrate; sentence, ruling and ruling of the district court; verdict, ruling and ruling of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a sentence, ruling and ruling of a court of appeal of general jurisdiction, with the exception of a sentence or other final court decision of the supreme court of a republic, a regional court or a regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, issued in the course of criminal proceedings as a court of first instance, as well as a verdict or other final court decision of a general jurisdiction court of appeal made as a result of the review of such a decision, - to the judicial panel for criminal cases of the relevant cassation court of general jurisdiction;

2) court decisions specified in paragraph 1 of this part, if they were appealed in cassation to the judicial panel for criminal cases of the cassation court of general jurisdiction; a verdict or other final judicial decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, issued in the course of criminal proceedings as a court of first instance, a sentence or other final judicial decision of a general appellate court jurisdiction resulting from the review of such a decision; determination of the judicial collegium for criminal cases of the cassation court of general jurisdiction - to the Judicial collegium for criminal cases of the Supreme Court of the Russian Federation;

3) the verdict, determination and decision of the garrison military court; sentence, ruling and ruling of the district (naval) military court, sentence, ruling and ruling of the military court of appeal, with the exception of the sentence or other final court decision of the district (naval) military court, issued during criminal proceedings as a court of first instance, and also a sentence or other final court decision of the military court of appeal, rendered as a result of the review of such a decision - to the military court of cassation;

4) court decisions specified in paragraph 3 of this part, if they were appealed in cassation to a military court of cassation; a sentence or other final judicial decision of a district (naval) military court, rendered by it during criminal proceedings as a court of first instance, a sentence or other final judicial decision of an appellate military court, rendered as a result of the review of such a decision; determination of the cassation military court - to the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation.

2. A cassation appeal, a presentation on:

1) sentence or other final judicial decision of a magistrate, district court, garrison military court; a verdict or other final judicial decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court, rendered on appeal - if these court decisions are appealed to the judicial panel for criminal cases of the relevant cassation court of general jurisdiction or a military court of cassation;

2) a verdict or other final judicial decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court, issued in the course of criminal proceedings as a court of first instance; a verdict or other final judicial decision of a court of appeal of general jurisdiction, a military court of appeal, made as a result of the review of such a court decision - if these court decisions are appealed to the Judicial Collegium for Criminal Cases, the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation.

3. A cassation appeal, a submission to:

1) interim court decisions;

2) a verdict or other final judicial decision of a magistrate, district court, garrison military court; a verdict or other final judicial decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court, rendered on appeal; a ruling by the judicial collegium for criminal cases of a cassation court of general jurisdiction, a ruling of a military court of cassation made as a result of the review of court decisions listed in this paragraph - if these court decisions are appealed to the Judicial collegium for criminal cases, the Judicial collegium for military personnel of the Supreme Court of the Russian Federation .

4. A cassation appeal or presentation, subject to consideration in the manner provided for in Articles 401.7 and 401.8 of this Code, may be filed within six months from the date of entry into force of the sentence or other final court decision, and for a convicted person in custody - within the same period from the date of delivery to him of a copy of such a court decision that has entered into legal force.

5. The deadline for a cassation appeal, established by part four of this article, missed for a good reason, may be restored by the judge of the court of first instance at the request of the person who filed the cassation appeal or presentation. The refusal to restore it may be appealed in the manner prescribed by Chapter 45.1 of this Code.

6. In case of missing the deadline established by part four of this article or refusal to restore it, the cassation appeal, submission against the verdict or other final court decision is submitted directly to the cassation court and is considered in the manner prescribed by Articles 401.10 - 401.12 of this Code.

Section 401.4. Contents of the cassation appeal, presentation

1. A cassation appeal or presentation must contain:

1) the name of the court to which they are filed;

2) information about the person who filed the complaint, presentation, indicating his place of residence or location, procedural status;

3) an indication of the courts that considered the criminal case in the first, appellate or cassation instances, and the content of the decisions they made;

4) an indication of the court decisions that are being appealed;

5) an indication of significant violations of the norms of criminal or criminal procedural law committed by the courts that influenced the outcome of the case, with the presentation of arguments indicating such violations;

6) request of the person filing the complaint, presentation.

2. The cassation appeal of a person who did not take part in the case must indicate what rights or legitimate interests of this person were violated by the court decision that entered into legal force.

3. If a cassation complaint or presentation was previously filed with a cassation court, it must indicate the decision taken on such complaint or presentation.

4. The cassation appeal must be signed by the person who filed it. The complaint filed by the defense attorney is accompanied by a warrant or other document certifying his authority. The submission must be signed by the prosecutor specified in parts two - two.2 of Article 401.2 of this Code.

5. Copies of court decisions adopted in this criminal case, certified by the relevant court, are attached to the cassation appeal or presentation. If necessary, copies of other documents are attached that confirm, in the applicant’s opinion, the arguments set out in the cassation appeal or presentation.

PROCEEDINGS IN THE SUPERVISORY COURT

(Chapter 48.1. Criminal Code of the Russian Federation)

Article 412.1. Review of court decisions by way of supervision

1. Court decisions that have entered into legal force, specified in part two of this article, may be reviewed in the manner of supervision by the Presidium of the Supreme Court of the Russian Federation based on complaints and submissions of persons specified in parts one and two of Article 401.2 of this Code. 2. The court of supervisory authority verifies, based on a supervisory complaint, presentation, the legality of the sentence, ruling or resolution of the court. 3. Those that have entered into legal force are appealed to the Presidium of the Supreme Court of the Russian Federation: 1) - 2) have lost force. — Federal Law of October 11, 2018 N 361-FZ; 3) court decisions of the Appeals Board of the Supreme Court of the Russian Federation; (clause 3 as amended by Federal Law dated October 11, 2018 N 361-FZ) 4) rulings of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation and rulings of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation, issued by them in cassation proceedings; (clause 4 as amended by Federal Law dated March 12, 2014 N 29-FZ) 5) decisions of the Presidium of the Supreme Court of the Russian Federation.

Article 412.2. Procedure and deadline for filing supervisory complaints and presentations

A supervisory complaint or presentation is filed directly with the Supreme Court of the Russian Federation.

Article 412.3. Contents of supervisory complaints, submissions

1. A supervisory complaint or presentation must contain:

1) the name of the court to which they are filed;

2) information about the person who filed the complaint, presentation, indicating his place of residence or location, procedural status;

3) an indication of the courts that considered the criminal case in the first, appellate or cassation instances, and the content of the decisions they made;

4) an indication of the court decisions that are being appealed;

5) an indication of the grounds provided for by law for reviewing a court decision in the manner of supervision, with the presentation of arguments indicating the existence of such grounds;

6) request of the person who filed the complaint, presentation.

2. The supervisory complaint of a person who did not take part in the case must indicate what rights, freedoms or legitimate interests of this person were violated by the court decision that entered into legal force.

3. The supervisory complaint must be signed by the person who filed the complaint. The supervisory submission must be signed by the Prosecutor General of the Russian Federation or his deputy.

4. Attached to the supervisory complaint or presentation are copies of court decisions made in the case, certified by the courts that considered the criminal case in the first, appellate or cassation instances.

Contents of the appeal

Article 389.6 of the Code of Criminal Procedure of the Russian Federation contains requirements for the content of an appeal. The appeal must contain:

  • the name of the appellate court to which the complaint or presentation is filed;
  • information about the person who filed the appeal or presentation, indicating his procedural status, place of residence or location;
  • an indication of the verdict or other court decision and the name of the court that decided or rendered it;
  • arguments of the person who filed the appeal or presentation, indicating the grounds provided for in Article 389.15 of this Code;
  • a list of materials attached to the appeal or submission;
  • signature of the person filing the appeal or presentation.

Who can file a supervisory complaint

A supervisory complaint can be filed:

1.convicted;

2. defender of the convicted person;

3. the legal representative of a convicted minor;

4. victims;

5. legal representative of the minor victim;

6. civil plaintiff and civil defendant in terms of claims;

7. representative of the victim, civil plaintiff, civil defendant;

8. The prosecutor can bring a presentation.

Grounds for canceling or changing a court decision on appeal

Article 389.15 of the Code of Criminal Procedure of the Russian Federation establishes strictly defined grounds for reversing or changing a court decision on appeal. There are seven such reasons:

  • discrepancy between the court's conclusions set out in the verdict and the actual circumstances of the criminal case established by the court of first instance (Article 389.16 of the Code of Criminal Procedure of the Russian Federation);
  • significant violation of the criminal procedure law (Article 389.17 of the Code of Criminal Procedure of the Russian Federation);
  • incorrect application of the criminal law (Article 389.18 of the Code of Criminal Procedure of the Russian Federation);
  • unfairness of the sentence (part 2 of article 389.18 of the Code of Criminal Procedure of the Russian Federation);
  • identification of circumstances that prevented the consideration of the criminal case in the court of first instance (Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation) and the case in this regard was subject to return to the prosecutor;
  • the onset of new socially dangerous consequences of the act charged to the accused, after the criminal case has been sent to court, which is the basis for charging him with committing a more serious crime (part 1, part 2, paragraph 1, article 237 of the Code of Criminal Procedure of the Russian Federation);
  • identification of data indicating a person’s non-compliance with the conditions and his failure to fulfill obligations stipulated by the pre-trial cooperation agreement.

Decisions made by the appellate court

As a result of consideration of a criminal case, depending on the established circumstances, the appellate court makes one of the ten decisions specified in Art. 389.20 Code of Criminal Procedure of the Russian Federation:

  • If it is established that the verdict of the court of first instance is legal, justified and fair, and the arguments of the complaint or presentation do not provide grounds for canceling or changing the verdict, the appellate court makes a decision during a single consideration of a criminal case by a judge or a ruling during a collegial hearing of a criminal case to leave the sentence without changes, and complaints or representations are not satisfied.
  • If a significant violation of the law is committed at the stage of preparing a criminal case for a court hearing, which cannot be eliminated, when considering the criminal case, the appellate court adopts a resolution or ruling, depending on the composition of the appellate court, to cancel the verdict and send the criminal case to the first court. instance from the stage of preparing a criminal case for a court hearing.
  • If a significant violation was committed by the court of first instance during the trial, under the same circumstances, a similar decision is made to overturn the verdict, but with the referral of the criminal case for a new trial from the trial stage in a different court composition.
  • If significant violations that impede the resolution of the criminal case are committed at the pre-trial stages, the appellate court makes the same decision to overturn the verdict and forward the criminal case to the prosecutor.
  • If grounds are found provided for by the criminal procedure law for terminating a criminal case, the appellate court makes a decision to overturn the verdict and terminate the criminal case.
  • When establishing the grounds for changing the sentence, entailing an improvement in the situation of the convicted person (reducing the scope of the charge, reclassifying the act as less serious, reducing the imposed punishment, etc.), the appellate court issues a ruling or ruling to change the sentence of the first instance court.
  • The court has the right to issue a ruling or ruling to terminate appeal proceedings in cases provided for by law (for example, a complaint was filed by a person who does not have the right to do so).
  • If there are grounds for this, the appellate court has the right to overturn the conviction and issue an acquittal.
  • Also, the appellate court has the right to overturn the acquittal and pronounce an acquittal on another basis.
  • In addition, the court is given the right to overturn the conviction and issue a new conviction in accordance with the circumstances established during the consideration of the criminal case in the appellate court.

The list of decisions made by the appellate court is not exhaustive.
In paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 27, 2012 N 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the appellate court” it is explained that, in the meaning of criminal - the procedural law, provided for in Article 389.20 of the Code of Criminal Procedure of the Russian Federation, the list of decisions taken by the appellate court is not exhaustive. In this regard, the appellate court has the right, in particular:

  • overturn the conviction and issue a ruling (resolution) to release the person from criminal liability or punishment and to apply compulsory medical measures to him (part 1 of Article 443 of the Code of Criminal Procedure of the Russian Federation);
  • overturn the conviction and issue a ruling (resolution) to terminate the criminal case against the minor with the application of a compulsory educational measure to him (part 1 of Article 431 of the Code of Criminal Procedure of the Russian Federation).

Check out these other materials: appealing a sentence in a criminal case cassation appeal against a sentence

The judge was caught on a pitchfork or whether the court can supplement the investigator’s accusation

Limits of trial. 1. The trial is conducted only in relation to the accused and only on the charge brought against him . 2. Changing the charge in court proceedings is permitted if this does not worsen the situation of the defendant and does not violate his right to defense. Article 252 of the Code of Criminal Procedure of the Russian Federation I apologize for the incorrect title of this legal note, but another presentation will not be able to fully reflect the essence of the problem. The judge in the verdict indicated new actions of the defendant, which were not imputed to him by the investigator when making the decision to charge him as an accused and were not the subject of trial. That is, the judge added the charge that was brought by the investigator at the preliminary investigation stage. Is this legal? I am sure that any lawyer and even a student who is at least somewhat familiar with criminal procedural law will answer that the court does not have the right to impute new actions to the defendant if these actions were not charged by the preliminary investigation authorities and if the situation does not improve the defendant. The Criminal Procedure Code of the Russian Federation very clearly states: “Trial proceedings are conducted only in relation to the accused and only on the charges brought against him.” Consequently, the court itself does not have the right to bring a new charge, adding new acts to the defendant’s guilt. The court has the right only to exclude some actions if they were not confirmed during the trial. These provisions are an axiom of the criminal process.

For some reason, judge of the Presnensky District Court Shipikov A.I. when considering a criminal case against Vakhonin I.A. decided that he had the right, instead of the investigator, not only to change what was presented to Vakhonin I.A. still an investigator to charge, but also to impute new acts, significantly worsening the situation of the defendant and violating his rights to defense. Indictment against Vakhonin I.A. and Gerasimovich V.V., which was compiled by the investigator for especially important cases of the first department for the investigation of especially important cases of the investigative department of the Investigative Committee at the Prosecutor's Office of the Russian Federation for the city of Moscow, junior counselor of justice V.V. Suchkova. and approved by the Deputy Prosecutor of the City of Moscow Zakharov, was distinguished by legal illiteracy and was subject to return to the prosecutor (Pravorub: The accusation against Vakhonin was framed by poorly educated investigators, etc...).

However, the judge of the Presnensky District Court, A.I. Shipikov, to please the prosecutors, decided to accept the case for proceedings and, instead of the investigator, conduct an additional investigation and re-file charges against the defendant I.A. Vakhonin. I will refer to just one fact indicating that the criminal case was subject to return to the prosecutor.

So, Vakhonin I.A. according to the indictment, he was accused of committing crimes under paragraphs. “b”, “c” part 2 of article 131 and paragraphs. “b”, “c” part 2 of article 132 of the Criminal Code of the Russian Federation (as amended by the Federal Law of December 8, 2003 No. 162-FZ), and Gerasimovich V.V. according to the same indictment, he was an accomplice in the commission of these crimes and his actions were qualified using Part 5 of Article 33 of the Criminal Code of the Russian Federation. Vakhonin’s brother I.A. was also listed as an accomplice. — Vakhonin A.A., who was convicted of the same episodes earlier. Thus, the actions of the Vakhonin brothers were qualified as the actions of the perpetrators, the actions of Gerasimovich as an accomplice. However, the indictment stated the following: “At a time not established by the investigation, but no later than June 11, 2007, Vakhonin A.A., his brother Vakhonin I.A. and Gerasimovich V.V. entered into a preliminary criminal conspiracy among themselves aimed at committing the rape of the latter’s acquaintance, A.I. Volobueva. » Judicial practice and legal science understand a group of persons by prior conspiracy as co-perpetrators , that is, everyone must answer as perpetrators of a crime. This point is not disputed by any of the legal scholars. This is a legal axiom. Taking into account the qualifications of the actions of Gerasimovich V.V. in this criminal case as an accomplice (Part 5 of Article 33 of the Criminal Code of the Russian Federation) , an indication in the wording of the charge that he entered into a criminal conspiracy specifically for rape and for forced acts of a sexual nature in relation to Volobueva with A.A. Vakhonin. and Vakhonin I.A. - clearly illegal.

The actions of an accomplice in a preliminary conspiracy cannot be qualified as complicity. The very qualification in the indictment of the actions of V.V. Gerasimovich pointed out the need to exclude him from the preliminary conspiracy to jointly commit crimes.

To bring the text of the accusation into line with the qualifications, the indictment was to be sent to the prosecutor. Judge Shipikov A.I. I didn’t do this. Of course, the court could simply exclude V.V. Gerasimovich. from accomplices in the preliminary conspiracy (which was ultimately done in the verdict). However, in this case the meaning of the accusation of any “preliminary conspiracy” was lost in general, because Vakhonin I.A. did not know about the existence of Volobueva A.I. until June 12, 2007. How could he on June 11, 2007, that is, before meeting V.V. Gerasimovich? and Volobueva A.I., negotiate with their brother to rape the said Volobueva A.I.? - Absurd! The judge was faced with a range of decisions: return the case to the prosecutor or remove the “group of persons by prior conspiracy” attribute altogether. Judge Shipikov A.I. chose another fork - he excluded V.V. Gerasimovich. from among the participants in the conspiracy (brought the text into line with the qualifications in the indictment), but at the same time added I.A. Vakhonin. and Vakhonin A.A. There are new actions in the accusation: they say they “involved” V.V. Gerasimovich. as an accomplice . At the same time, Shipikov A.I. didn’t bother to write it down, how could Vakhonin I.A. “involve” V.V. Gerasimovich in advance. as an accomplice if they did not know each other. This is how the text of the new accusation against I.A. Vakhonin began to sound: “At a time not determined by the investigation, I.A. Vakhonin. and his brother Vakhonin A.A. entered into a preliminary criminal conspiracy among themselves aimed at committing rape of A.I. Volobueva, and therefore involved V.V. Gerasimovich . as an accomplice."

I cannot say in advance how the judicial panel for criminal cases of the Moscow City Court will react to the fact that Judge Shipikov A.I. grossly violated the provisions of Article 252 of the Code of Criminal Procedure of the Russian Federation, changed the charge not only of the defendant I.A. Vakhonin, but also of A.A. Vakhonin, who had already been convicted, significantly worsening their situation: he added new actions to the guilt - “ involved V.V. Gerasimovich.” as an accomplice ,” but this violation should entail an unconditional reversal of the sentence. We are accustomed to the term “Mosgorshtamp” when it comes to the fact that the Moscow City Court turns a blind eye to violations of the Criminal Code and Code of Criminal Procedure in the verdicts of district courts. However, in any case, it is necessary to achieve the legality and purity of court decisions, their fairness.

I would very much like to hear the opinion of lawyers on this fact of violation of Article 252 of the Code of Criminal Procedure of the Russian Federation. Lawyer M.I. Trepashkin April 6, 2012 Some publications on the case: https://advokat-ko.ru/2012/03/sudija-obvinitel/ “Judge-Prosecutor” https://folksland.net/...gradaciya-pravosydiya -v-rossii https://blog-trepashkin.livejournal.com/61444.html https://www.scribd.com/...D1-lips

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