Resolution of the Plenum of the Supreme Court of the Russian Federation “On the Judicial Sentence” (Extract)
The Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 No. 3-FKZ “On the Supreme Court of the Russian Federation,” decides to give the following clarifications:
5. If a victim, a witness who is a spouse or close relative of the defendant refuses to give testimony, as well as if the defendant himself refuses to give testimony, the court has the right to read out the testimony previously given by them, reproduce audio and (or) video recordings and filming materials attached to the interrogation protocol interrogation and refer in the verdict to these testimonies and materials only if, during the preliminary investigation, the relevant provisions of paragraph 3 of part 2 of Article 42, paragraph 2 of part 4 of Article 46, paragraph 3 of part 4 of Article 47, paragraph 1 of Article 47 were explained to these persons 4 of Article 56 of the Code of Criminal Procedure of the Russian Federation, according to which no one is obliged to testify against himself, his spouse and close relatives; in addition, they were warned that their testimony could be used as evidence in a criminal case, including in the event of their subsequent refusal of this testimony, and the testimony of the defendant - provided that it was given to them in the presence of a defense lawyer (clause 1 of part 2 of article 75 of the Code of Criminal Procedure of the Russian Federation).
11. The verdict reflects the defendant’s attitude to the charge brought against him and evaluates the arguments he brought in his defense.
If the defendant changes his testimony, the court is obliged to find out the reasons why he refused the testimony previously given during the preliminary investigation or trial, carefully check all the defendant’s testimony and evaluate its reliability, comparing it with other evidence examined in the trial.
Failure by the defendant to confirm the testimony given by him during pre-trial proceedings in a criminal case in the absence of a defense attorney, including cases of refusal of a defense attorney, by virtue of paragraph 1 of part 2 of Article 75 of the Code of Criminal Procedure of the Russian Federation entails recognition of them as inadmissible evidence, regardless of the reasons why the defendant did not confirm them.
12. If the defendant explains the change or refusal of the testimony obtained in the presence of a defense lawyer by the fact that it was given under duress in connection with the use of unauthorized methods of investigation against him, then the court must take sufficient and effective measures to verify such a statement of the defendant.
In this case, the court should keep in mind that, taking into account the provisions of Part 4 of Article 235 of the Code of Criminal Procedure of the Russian Federation, the burden of refuting the arguments of the defense that the defendant’s testimony was obtained in violation of the requirements of the law lies with the prosecutor (state prosecutor), at whose request the court may the necessary legal actions have been taken.
25. Taking into account the peculiarities of legal proceedings carried out in accordance with the norms of Chapter 40 of the Code of Criminal Procedure of the Russian Federation, in the descriptive and motivational part of the sentence passed in a special manner with the consent of the accused with the charge brought, it is necessary to reflect that the court was satisfied that the conditions established by law were observed.
In particular, it should be indicated that the accusation is justified, supported by the evidence collected in the case, and the defendant understands the essence of the accusation brought against him and agrees with it in full; he filed a request for a special procedure in a timely manner, voluntarily and in the presence of a defense lawyer, and is aware of the nature and consequences of his request; The public or private prosecutor and the victim have no objections to considering the case in a special manner.
26. The descriptive and motivational part of the guilty verdict against a defendant with whom a pre-trial cooperation agreement has been concluded must contain the court’s conclusions about the defendant’s compliance with the conditions and fulfillment of the obligations stipulated by the pre-trial cooperation agreement concluded with him.
This part of the sentence, in particular, states that the accusation is justified, supported by the evidence collected in the case, and the defendant understands the essence of the charge brought against him and agrees with it in full; the pre-trial cooperation agreement was concluded by him voluntarily and with the participation of a defense lawyer; what assistance they provided to the investigation and what exactly it was expressed in; the results of a study of the circumstances specified in part 4 of article 317.7 of the Code of Criminal Procedure of the Russian Federation conducted at the court hearing are presented.
Chairman of the Supreme Court
of the Russian Federation V.M. LEBEDEV
Conflicting verdicts and difficult circumstances: “criminal” positions of the Armed Forces for January 2022
2
Conflicting verdicts
In May 2022, Kamandar Namazzada invited his acquaintance Boris Ivanov* to transfer a bribe in the amount of 500,000 rubles. to the former deputy chief of police of the Russian Ministry of Internal Affairs for the Sokolinaya Gora region, Murat Shtymov. Namazzada promised that Shtymov would be able to help with the termination of Ivanov’s criminal case in exchange for a bribe. This was confirmed by the policeman himself.
At first, Ivanov agreed to give the money, but then decided to report the bribe to the Ministry of Internal Affairs. As a result, Shtymov and Namazzada were detained while handing over the money.
On September 26, 2022, the Izmailovsky District Court of Moscow sentenced the policeman to seven years and six months in prison under Part 5 of Art. 290 of the Criminal Code (“Receiving a bribe on a large scale”), and his accomplice Namazzada to five years and six months of imprisonment under paragraph “b” of Part 3 of Art. 291.1 of the Criminal Code (“Mediation in large-scale bribery”). Shtymov decided to appeal the verdict.
In its ruling in case No. 5-UD21-35-K2, the Supreme Court overturned the sentence against the policeman and sent the case for a new trial. Having considered the case anew, the district court qualified Shtymov’s actions under Part 3 of Art. 159 of the Criminal Code (“Fraud using one’s official position”). This time, the first instance drew attention to the fact that the convicted person misled Ivanov about his powers, because in fact he could not influence the termination of the criminal case.
Then Namazzada decided to appeal the verdict. In his complaint, he indicated that after Shtymov’s sentence was changed, his actions must also be recognized as fraudulent.
In the ruling in case No. 5-UD21-141-K2, the criminal board agreed with the arguments of the applicant’s complaint. The court indicated that the verdicts of Namazzada and Shtymov contained opposite conclusions regarding the same circumstances of the case. Taking this into account, the Supreme Court overturned the applicant's sentence and referred the case for a new trial at first instance.
According to Vladimir Kolesin, advisor to BGP Litigation BGP Litigation Federal rating. group Arbitration proceedings (major disputes - high market) group International litigation group Pharmaceuticals and healthcare group Compliance group Tax consulting and disputes (Tax consulting) group Family and inheritance law group Antitrust law (including disputes) group Intellectual property (Consulting) group Corporate law /Mergers and acquisitions (high market) group International arbitration group Criminal law group Digital economy group Bankruptcy (including disputes) (high market) TMT group (telecommunications, media and technology) 4th place By revenue 6th place By revenue per lawyer (more than 30 lawyers) 10th place Based on the number of lawyers Company Profile, the Supreme Court’s conclusions are fully consistent with established practice. Two verdicts cannot coexist simultaneously, which relate to the same factual circumstances, but at the same time contain opposite conclusions. Therefore, during a new consideration of the case, the conclusions from Namazzada’s verdict will need to be brought into line with the conclusions from Shtymov’s verdict, the expert explains.
Supreme Court
The Supreme Court of Russia has strengthened the role of precedents: its positions on fundamental issues expressed in specific cases. Lower courts can no longer ignore the official opinion of a higher authority.
Today Rossiyskaya Gazeta publishes two decisions of the plenum of the Supreme Court, which lawyers have already called breakthroughs. In essence, we are establishing elements of case law.
The documents explain the intricacies of consideration of cases in the appellate and cassation instances. The resolution concerning the cassation courts gives a clear instruction: to check the conclusions of the first and appellate instances for compliance with the legal positions of the Supreme Court of Russia. If the lower authorities decided somehow in their own way, the decisions made should be canceled.
Judicial practice should be uniform throughout the country. There cannot be any special - Ryazan or Ural - interpretations of the law. We must understand that in a typical case there will be no surprises; the judges will decide as they should, and not as they please.
Sometimes in practice, indeed, controversial issues arise and at first there is no single approach. For example, in one of the regions, the tax inspectorate began to demand so-called purchase taxes from citizens. Let's say a farmer bought an expensive car. And the tax office issued an invoice: they say, we didn’t see how you earned this money, but since you got it from somewhere, you must pay tax on it. Did the car cost a million? Great, the tax office said, you must pay 130 thousand rubles to the treasury. Everything is fair.
Some courts agreed with this logic, some did not. Everyone was waiting for the first such case to reach the Supreme Court of Russia.
The high authority clearly said: no, such a tax is illegal. The rights of citizens were protected from now on. Once the Supreme Court made its decision on a specific case, all other similar cases decided on their own. Where the tax service itself withdrew its claims, where the courts rejected its claims. The precedent decision itself was included in the review of judicial practice of the Supreme Court of Russia. If anyone has any problems, they can refer to this document. But problems will not arise, the tax inspectorate acts law-abidingly: if it is impossible, it is not done. That's exactly how it works. However, as lawyer Vyacheslav Golenev says, in practice, sometimes courts pretend not to notice the legal positions of a higher authority.
Therefore, he called the adopted resolutions a significant step forward. The resolutions of the plenum, published in today's issue of RG, provide explanations to arbitration courts. However, according to experts, similar approaches can and should be established in relation to cassation courts of general jurisdiction - both in cases considered under the Civil Procedure Code and considered under the Code of Administrative Procedure.
“The cassation practice of arbitration cassation courts has been developed for almost 30 years,” says Vyacheslav Golenev. “The norms of the Code of Civil Procedure and the Code of Administrative Proceedings for the “new cassation” are largely borrowed from the provisions of the Arbitration Procedure Code of the Russian Federation on arbitration cassation proceedings.”
So courts of general jurisdiction also do not have the right to ignore the legal positions of the Supreme Court of the country.
“Therefore, it is justified to disseminate the positive experience of arbitration cassation courts in cassation courts of general jurisdiction,” says lawyer Vyacheslav Golenev. “But it is extremely important that the adopted decisions will now allow us to improve practice in arbitration courts.”
He gave an example from his practice. It happens that a large company is artificially split into several small organizations so that each of them pays tax according to a simplified system. In principle, this is a violation, as it is a typical tax evasion scheme. When the tax inspectorate catches entrepreneurs doing this, they make justified claims. But the question arises, by what formula to calculate VAT in this case. There are two options, in one case it comes out more, in the other - less.
According to the lawyer, the Supreme Court of Russia has repeatedly expressed the position that a humane formula should be applied in such cases. But some arbitration courts continue to make decisions that contradict the legal approaches of the higher authorities. Now they will be required to take into account a review of the judicial practice of the Supreme Court of Russia and rulings in specific cases. And explain why they are not suitable in this case, if, in the opinion of the court, the case is completely different.
In turn, lawyer Alexey Sikaylo noted that both decisions are interesting primarily in terms of clarifying such a category of complainants as “other persons on whose rights and obligations the contested judicial act was adopted.” Simply put, those who did not participate in the proceedings of the case in the first instance were not a party to the process, but still cannot remain on the sidelines. “It is proposed to interpret this category of persons quite broadly,” the lawyer emphasizes.
How are they
Case law has its origins in Britain and underpins the judicial systems of many former colonies of the British Empire. In the United States, during trials, real battles unfold between defense attorneys and prosecutors; each side gives its own examples of how they acted during the consideration of similar cases. The fact is that even in the colonial period, judges used English collections of court reports to reach a verdict on a particular dispute, taking into account local customs. It is noteworthy that lower courts must follow the decisions of higher ones (up to the Supreme Court), but may not be guided by the previously rendered verdict, creating a new precedent. The complexity of the system also lies in the fact that each American state has its own legal system with its own precedents.
In France, in practice, precedents play an increasingly important role, and there is a completely logical explanation for this. The fact is that when interpreting laws, gaps arise every now and then, and the obligation to fill them on the basis of existing precedents is assigned to the Court of Cassation, which is outlined in Article 4 of the French Civil Code. Moreover, decisions on these issues are published in special collections, which allows judges to get acquainted with new precedents and apply them in similar cases. Moreover, judicial precedents are widely used in administrative justice, where the highest court is the State Council. It is based on precedents that he makes many of his verdicts. Nevertheless, there is no strict obligation for lower courts to follow precedent decisions of higher ones in France.
Judicial decisions of the Italian Supreme Court of Cassation are binding only for each individual case presented, but do not always set a precedent for other future cases. Nevertheless, a court decision, having gone through the cassation phase, may be perceived by other courts as a precedent. “When preparing for any trial, we necessarily study precedent verdicts issued by the cassation court. Nevertheless, the decision remains with the specific court of first instance or the court of appeal, which may take note of the verdict of the Court of Cassation,” Natalia Grasso, Master of International and European Law, international lawyer at the Grasso Law Office, told RG.
Prepared by Niva Mirakyan (Rome), Vyacheslav Prokofiev (Paris), Yuri Kogalov
Vladislav Kulikov , Rossiyskaya Gazeta
Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 30, 2022 No. 12 Moscow “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal”
Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 30, 2022 No. 13, Moscow “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of cassation”
Meaning of the word sentence
- a court decision regarding the guilt of the defendant and its consequences, which is the result of consideration of the case on the merits. During the proceedings of a criminal case, the court decides on issues arising during the proceedings, private determinations (see), but unlike P., these determinations do not create punitive consequences and relate not to the essence of the case, but to the order of its proceedings. The criminal court decides to acquit the defendant, or to release him from punishment (see), or to punish the defendant when he is exposed in such a criminal act that he is charged with and from responsibility for which he cannot be released. In the era of the dominance of the investigative process, there was another form of P., namely about leaving the defendant in suspicion (see), but this form is unsuitable for a modern court, which decides a case based on inner conviction. The order of P.'s decision seems to be different depending on which court is considering the case. In cases of lower jurisdiction, the magistrate, after hearing the parties and based on the evidence available in the case, immediately proceeds to P.’s decision, the essence of which is recorded in the protocol and announced to the persons participating in the case, and then, no later than within 3 days, sets out in the final form, indicating the circumstances of the case and the laws by virtue of which it was decided; The city judge and the zemstvo chief immediately after hearing the parties announce the P. in its final form and only in complex cases have the right to declare the essence of the P., and then, within 3 days, state it in its final form. In cases within the jurisdiction of a district court without the participation of a jury and a trial chamber with the participation of class representatives, at the end of the judicial investigation and final arguments, the court puts to its decision questions about the guilt and punishment of the defendant (see Questions) and then retires to a special room for deliberation , where after discussing the issues, the judges cast votes on each issue and set out their decision on the case in the form of a resolution (see), which is immediately announced to the persons participating in the case. Finally, in cases within the jurisdiction of district courts with the participation of jurors, the question of the defendant’s guilt is decided by the jury, and after announcing their verdict and listening to the parties’ arguments regarding the consequences of the defendant’s guilt, the court raises for its decision the questions of the defendant’s punishment and decides P. according to the same rules , as well as in cases tried without a jury. In determining the number of votes required to make a decision by a collegial court, the legislation adheres to four systems: 1) the system of unanimity, when all issues can only be resolved unanimously, and in case of disagreement, the case is referred to a new consideration, in a different composition of the presence; 2) a special majority voting system - when at least 2/3 or 3/4 votes are required to resolve issues; 3) the system of simple absolute majority - when in order to make a decision it is required that more than half of the members of the board agree with it; 4) a system of simple relative majority, when the decision of a case from several opinions expressed is the one for which a larger number of judges spoke, even if they were a minority in the total number of members of the panel. Our law requires the jury to favor a unanimous decision, and if there is a disagreement, it requires the jury to decide the issues by a majority vote, with the opinion more favorable to the defendant being adopted in the event of a tie. When a decision is made by crown judges, as well as judges and estate representatives, in the event of a division of votes into two or more opinions, the one that combines the largest number of votes is taken as the basis for the decision; if they are equal, preference is given to the opinion of the chairman, and if the voice of the chairman cannot give an advantage, then to the opinion of equal number of votes that seems most favorable to the defendant. Judges who do not agree with the opinion of the majority have the right to submit dissenting opinions before signing the resolution, which they must declare when passing the resolution; dissenting opinions do not have any legal significance and only provide an opportunity for judges to separate themselves from the majority opinion, which they recognize as incorrect. When proclaiming the resolution, the chairman appoints a day and hour for announcing the P. in final form and invites the persons involved in the case to appear in court by this time. The final form must be prepared within 2 weeks by one of the court members appointed by the chairman. A P. is declared by reading it in an open court session, and the chairman or member of the court explains to the parties the procedure for appealing a P. The clause must begin with the introductory formula: “by order of His Imperial Majesty” and the name of the court from which it comes; then there should be an indication of the time when the court hearing in the case took place, the persons who were part of the court presence should be named, then the rank, first name, patronymic, last name or nickname and age of the defendant should be indicated and, finally, the subjects of the accusation should be stated in that form , in which they were presented to the defendant by the prosecuting authority. After this entry into the P., the factual circumstances of the case recognized by the court are indicated, from which the legal concept of the crime constituting the subject of the charge is formed: these factual circumstances must exhaust both the external and internal aspects of the crime, as well as the circumstances influencing the decrease or increase punishment or conditioning the irresponsibility of the defendant. At the same time, courts considering cases without a jury are required to set out the considerations on the basis of which the court came to one or another conclusion regarding guilt or innocence; the court may not mention such evidence that, in the opinion of the court, is unreliable in the verdict; in assessing evidence, he is guided solely by his inner conviction. There must be complete correspondence between the considerations of the court and the conclusion from the answers to questions about guilt. In practice, P.’s motivation usually consists of presenting the evidence presented by the parties for and against the charges, with a proper critical assessment and indicating which of the evidence presented by the parties the court accepted as the basis for its decision. This part of the verdict should be a complex syllogism: through a series of inferences, the court must prove the guilt or innocence of the defendant. Statement of the reasons for the decision is equally obligatory for the court both when accusing the defendant and when acquitting him. The motivation for sentences seemed extremely necessary under the dominance of the investigative process, when all sentences were subject to revision and reconsideration at higher authorities: but even today the importance of the motivation for sentences is no less great, since only thanks to it is society able to judge the degree of soundness of the sentence, the convict can support his defense before the highest court, and to the acquitted the motives for the verdict explain the true reason for his acquittal. In cases considered with the participation of a jury, the jury's verdict is stated in the verdict without indicating the motives, which remain unknown to the court, but, nevertheless, the jury's decision must be stated in the P. so completely that it is clearly visible from the P. what exactly factual circumstances accepted by the jury and which they rejected. Further, the P. must set out in detail the court’s considerations regarding the application of the law to the guilt or innocence of the defendant recognized by the court. When applying for mitigation of the defendant's fate, the P. must set out the considerations accepted by the court as the basis for the application, and indicate the measure of the intended mitigation of the punishment. Following this criminal part of the clause, it should, if necessary, set out the considerations accepted by the court as the basis for resolving a civil claim of the victim or a claim of the defendant for remuneration for an unjust accusation, as well as for orders for the return of material evidence and reimbursement of legal costs. Finally, the last, operative, part of the sentence contains a detailed statement of the decision made by the court regarding all issues that were subject to its resolution, the articles of law on which the court bases its P. are precisely indicated, the essence of the defendant’s guilt recognized by the court is briefly stated and the punishment for which is determined in detail. subject to the defendant. The operative part of the sentence must be stated especially precisely and clearly, since it serves as the only basis for carrying out P.’s execution. The clause is signed by all judges who participated in the consideration of the case and sealed by the secretary; failure to sign the verdict by one or two judges does not invalidate it. Criminal P. are divided into final, subject to appeal only in cassation, and non-final, against which appeals are allowed. Final P. include P. of magistrates (or city) judges and zemstvo chiefs, when they determine a reprimand, reprimand or reprimand, or a monetary penalty of not more than 15 rubles. from one person or arrest for no more than 3 days and when the reward for damage and losses does not exceed 30 rubles; all judgments of congresses of magistrates and district congresses, judgments of district courts, decided with the participation of jurors, judgments of judicial chambers, decided by appeal, as well as with the participation of class representatives, judgments of the supreme criminal court and the special presence of the Senate in cases of state crimes. All other P. are considered inconclusive. Particularly important are absentee P., for which the accused, within a 2-week period from the date of delivery of a copy of the P., have the right to submit a response to a new trial of the case in the same court. Then one should distinguish between clauses that have entered into and those that have not entered into legal force: the former can only be canceled by way of reopening cases, the latter are subject to appeal through the appellate or cassation procedure. The clause comes into force: 1) when the persons participating in the case did not appeal against it within the 2-week period given to them from the date of announcement of the verdict and 2) when the complaint or protest was left by the highest authority without consequences. If not the entire P. is appealed, but only part of it, then the unappealed parts shall enter into legal force after the expiration of the established period for appeal. Absentia P. come into force if the latter does not file a response within 2 weeks from the time the P. is announced to the accused. Cancellation of laws that have entered into legal force in cassation is allowed by the Senate in cases of particularly important violations, for example, when the law is decided by a court with abuse of power or in relation to a person beyond its jurisdiction, or when the convicted person is sentenced to a punishment not established by law. On the execution of sentences, see respectively. article. In military proceedings, sentences of regimental courts and courts equal in power come into force only upon approval by the regimental commander. These clauses indicate the circumstances of the case that served as the basis for the court to find the defendant guilty or to acquit him, but they do not contain the introductory formula: “by decree of His Imperial Majesty.” Claims of military district, temporary military and corps (in wartime) courts are considered final and are subject to appeal only in cassation, and they do not indicate the reasons adopted by the court as the basis for its decision on the guilt of the defendant. In contrast to the general process, military courts have shorter deadlines for presenting the verdict in final form and for appealing (7 days in peacetime, 2 days in wartime). In wartime, all sentences sentencing defendants to death are subject to the approval of the commander-in-chief, who has the right to mitigate the punishment imposed by the court. Wed. N. Budkovsky, “On P. in criminal cases decided with the participation of jurors” (“Essays on judicial procedures”, 1874); Alexandrov, “Division of votes when deciding criminal cases.” (“Legal years,” 1890, No. 5); A. Lykoshin, “The procedure for ruling P. in military courts” (1896).
A. S. Lykoshin.
Legality, validity and fairness of the sentence
The court's verdict must be legal and justified.
A court verdict is legal if it is made on the basis of the law and in accordance with the requirements of procedural and criminal law. For the legality of a sentence, it is also necessary that legality be observed not only when drawing up a sentence, but also in the process of criminal proceedings.
The validity of the verdict means that it was made on the basis of a comprehensive, complete and objective study of the evidence presented to the court. The circumstances stated in the verdict must correspond to reality. The verdict must evaluate all available evidence, both exonerating the guilty and exposing him. If the court has declared any evidence inadmissible, the verdict must reflect what norms of the law were violated when obtaining the evidence, and what the essence of the violation of the law was.
The validity of the verdict means that the court's conclusions must be motivated. The verdict must indicate the motives and grounds on which the court made its decision, rejected some evidence and based the verdict on other evidence.
In practice, court verdicts very often lack any motivation for ignoring evidence exculpating the defendant, or this motivation is of a general unfounded nature. Higher courts may also remain silent on this matter or use standard legal clichés. Requests from lawyers and defendants to exclude inadmissible evidence in most cases remain unfulfilled.
The court's verdict must be fair. This means that the punishment according to the sentence is assigned specifically to the guilty person, the punishment is assigned within the sanction of the law, taking into account the circumstances mitigating and aggravating the guilt of the defendant, data on the identity of the perpetrator. The punishment imposed on the perpetrator must be proportionate to what he did and his role in the commission of the crime.
The requirements of legality, validity and fairness are closely interrelated with each other. An illegal sentence cannot be justified and fair, just as an unjust sentence cannot be legal and justified.
Other requirements for a court verdict
The verdict cannot be based on speculation and assumptions. The defendant's guilt must be proven in accordance with the procedure established by law.
A court verdict will be illegal if it is made in a criminal case considered without the participation of a defense lawyer, when his participation is mandatory by law, due to a violation of the constitutional right to defense.
If the sentence was passed by an illegal composition of the court, the judges subject to recusal, then it is subject to cancellation as illegal.
In Russian courts, a vicious practice has developed when judges transfer the contents of the indictment into the verdict, when in fact the testimony of the convicted person and witnesses do not correspond to the testimony they gave during the trial. The Constitution of the Russian Federation and the Code of Criminal Procedure of the Russian Federation guarantee the citizens of our country judicial protection. For this purpose, a trial is conducted within the framework established by law, with the progress of the judicial investigation recorded. Simply copying data from the indictment into the text of a court verdict does not meet the requirements of legality, validity and fairness of the verdict.
Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 19, 2003 No. 23
In connection with the entry into force of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Civil Procedure Code of the Russian Federation) on February 1, 2003 and in order to fulfill the requirements for a court decision contained therein, the Plenum of the Supreme Court of the Russian Federation
decides:
Provide the following clarifications to the courts:
1. In accordance with Article 194 of the Code of Civil Procedure of the Russian Federation, a decision is a decision of the court of first instance, which resolves the case on its merits.
The decision must be legal and justified (Part 1 of Article 195 of the Code of Civil Procedure of the Russian Federation).
2. A decision is legal if it is made in strict compliance with the rules of procedural law and in full compliance with the rules of substantive law that are subject to application to a given legal relationship, or is based on the application, if necessary, of an analogy of law or an analogy of law (Part 1 of Article 1, part 3 of article 11 of the Code of Civil Procedure of the Russian Federation).
If there are contradictions between the norms of procedural or substantive law to be applied when considering and resolving a given case, then the decision is legal if applied by the court in accordance with Part 2 of Article 120 of the Constitution of the Russian Federation, Part 3 of Article 5 of the Federal Constitutional Law “On the Judicial System of the Russian Federation” Federation" and part of Article 11 of the Code of Civil Procedure of the Russian Federation, the norm that has the greatest legal force. When establishing contradictions between the rules of law to be applied when considering and resolving a case, courts also need to take into account the explanations of the Plenum of the Supreme Court of the Russian Federation, given in resolutions of October 31, 1995 No. 8 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice” and dated October 10, 2003 No. 5 “On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation.”
3. The decision is justified when the facts relevant to the case are confirmed by evidence examined by the court, satisfying the requirements of the law on their relevance and admissibility, or circumstances that do not require proof (Articles 55, - 67 of the Code of Civil Procedure of the Russian Federation), and also when it contains exhaustive conclusions of the court arising from the established facts.
4. Since, by virtue of Part 4 of Article 198 of the Code of Civil Procedure of the Russian Federation, the court decision must indicate the law that guided the court, it is necessary to indicate in the reasoning part the substantive law applied by the court to these legal relations, and the procedural norms that guided the court.
The court should also consider:
a) decisions of the Constitutional Court of the Russian Federation on the interpretation of the provisions of the Constitution of the Russian Federation to be applied in this case, and on the recognition that the normative legal acts listed in paragraphs “a”, “b”, “c” of Part 2 correspond or do not comply with the Constitution of the Russian Federation and in Part 4 of Article 125 of the Constitution of the Russian Federation, on which the parties base their demands or objections;
b) decisions of the Plenum of the Supreme Court of the Russian Federation, adopted on the basis of Article 126 of the Constitution of the Russian Federation and containing clarifications of issues that have arisen in judicial practice when applying the norms of substantive or procedural law to be applied in this case;
c) decisions of the European Court of Human Rights, which provide an interpretation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms to be applied in this case.
5. According to Part 3 of Article 196 of the Code of Civil Procedure of the Russian Federation, the court makes a decision only on the claims stated by the plaintiff.
The court has the right to go beyond the stated requirements (to resolve a claim that was not stated, to satisfy the plaintiff’s claim in a larger amount than it was stated) only in cases expressly provided for by federal laws.
For example, the court has the right to go beyond the stated requirements and, on its own initiative, on the basis of paragraph 2 of Article 166 of the Civil Code of the Russian Federation, apply the consequences of the invalidity of a void transaction (void transactions include transactions specified in Articles 168 - 172 of the said Code).
The stated claims are considered and resolved on the grounds specified by the plaintiff, as well as on the circumstances brought up by the court for discussion in accordance with part of Article 56 of the Code of Civil Procedure of the Russian Federation.
It should be borne in mind that when considering and resolving cases arising from public legal relations, the court is not bound by the grounds and arguments of the stated claims, i.e., by the circumstances on which the applicant bases his claims (Part 3 of Article 246 of the Code of Civil Procedure of the Russian Federation).
6. Considering that, by virtue of Article 157 of the Code of Civil Procedure of the Russian Federation, one of the main principles of judicial proceedings is its immediacy, the decision can only be based on the evidence that was examined by the court of first instance at the trial. If the collection of evidence was not carried out by the court that is considering the case (Articles 62 - 65, 68 - 71, paragraph 11 of part 1 of Article 150, Article 170 of the Code of Civil Procedure of the Russian Federation), the court has the right to justify the decision with this evidence only on the condition that it was received in the prescribed manner. The Code of Civil Procedure of the Russian Federation in the order (for example, in compliance with the procedure for executing a letter of request established by Article 63 of the Code of Civil Procedure of the Russian Federation), were read out at the court hearing and presented to the persons participating in the case, their representatives, and, if necessary, experts and witnesses, and examined in conjunction with other evidence. When making a court decision, it is unacceptable to rely on evidence that was not examined by the court in accordance with the norms of the Code of Civil Procedure of the Russian Federation, as well as on evidence obtained in violation of the norms of federal laws (Part 2 of Article 50 of the Constitution of the Russian Federation, Articles 181, 183, 195 of the Code of Civil Procedure of the Russian Federation) .
7. Courts should keep in mind that the expert’s opinion, as well as other evidence in the case, are not exclusive means of proof and must be assessed in conjunction with all the evidence available in the case (Article 67, part 3 of Article 86 of the Code of Civil Procedure of the Russian Federation). The court's assessment of the conclusion must be fully reflected in the decision. In this case, the court should indicate on what the expert’s conclusions are based, whether he took into account all the materials submitted for examination, and whether he made an appropriate analysis.
If the examination is entrusted to several experts who gave separate conclusions, the reasons for agreement or disagreement with them must be given in the court decision separately for each conclusion.
8. By virtue of Part 4 of Article 61 of the Code of Civil Procedure of the Russian Federation, a court verdict in a criminal case that has entered into legal force is obligatory for the court considering the case on the civil consequences of the actions of the person against whom the sentence was passed, only on questions of whether these actions took place (inaction) and whether they were committed by this person.
Based on this, the court, when making a decision on a claim arising from a criminal case, does not have the right to enter into a discussion of the defendant’s guilt, but can only resolve the issue of the amount of compensation.
In a court decision to satisfy a claim, in addition to referring to the verdict in a criminal case, one should also provide evidence available in a civil case justifying the amount of the awarded amount (for example, taking into account the property status of the defendant or the guilt of the victim).
On the basis of part 4 of article 1 of the Code of Civil Procedure of the Russian Federation, by analogy with part of article 61 of the Code of Civil Procedure of the Russian Federation, it is also necessary to determine the meaning of the ruling and (or) decision of the judge that has entered into legal force in a case of an administrative offense when considering and resolving a case on the civil consequences of actions by the court the person in respect of whom this ruling (decision) was made.
9. According to Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, the circumstances established by a court decision that has entered into legal force in a previously considered civil case are binding on the court. The specified circumstances cannot be proven and are not subject to challenge when considering another case in which the same persons participate.
The circumstances established by the decision of the arbitration court that has entered into legal force (Part 3 of Article 61 of the Code of Civil Procedure of the Russian Federation) have the same significance for the court considering a civil case.
The court ruling specified in Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation means any court decision that, in accordance with Part 1 of Article 13 of the Code of Civil Procedure of the Russian Federation, is adopted by a court (court order, court decision, court ruling), and the decision of an arbitration court is a judicial act provided for in Article 15 of the Arbitration Procedural Code of the Russian Federation.
Based on the meaning of part 4 of the article, parts and article, part 2 of article 209 of the Code of Civil Procedure of the Russian Federation, persons who did not participate in the case in which a court of general jurisdiction or an arbitration court issued a corresponding judicial decision have the right, when considering another civil case with their participation, to challenge the circumstances established these judicial acts. In this case, the court makes a decision on the basis of the evidence examined at the court hearing.
10. Courts must observe the consistency in presenting the decision established by Article 198 of the Code of Civil Procedure of the Russian Federation.
The content of the claim must be reflected in its descriptive part in accordance with the statement of claim.
If the plaintiff changed the basis or subject of the claim, increased or decreased its size, or the defendant admitted the claim in whole or in part, this should also be indicated in the descriptive part of the decision.
The recognition by a party of the circumstances on which the other party bases its demands or objections (Part 2 of Article 68 of the Code of Civil Procedure of the Russian Federation) is indicated in the reasoning part of the decision simultaneously with the conclusions of the court on the establishment of these circumstances, if there are no grounds for which, provided for in part of Article 68 of the Code of Civil Procedure of the Russian Federation Acceptance of the circumstances is not permitted.
When making a decision, the courts must keep in mind that the right to recognize the circumstances on which the other party bases its claims or objections also belongs to the representative of the party participating in the case in its absence, unless this entails a complete or partial waiver of the claims, reducing their size, full or partial recognition of the claim, since Article 54 of the Code of Civil Procedure of the Russian Federation, which defines the powers of the representative, does not require that this right be specifically stipulated in the power of attorney.
When making a decision, the court does not have the right to accept recognition of the claim or recognition of the circumstances on which the plaintiff bases his claims made by a lawyer appointed by the court as a representative of the defendant on the basis of Article 50 of the Code of Civil Procedure of the Russian Federation, since this, against the will of the defendant, may lead to a violation of his rights.
A lawyer appointed by the court as a representative of the defendant on the basis of Article 50 of the Code of Civil Procedure of the Russian Federation has the right to appeal the court decision in cassation (appeal) procedure and in the supervisory order, since he has the authority not by agreement with the defendant, but by force of law and this right is objectively necessary for protection of the rights of the defendant, whose place of residence is unknown.
11. Based on the fact that the decision is an act of justice that finally resolves the case, its operative part must contain comprehensive conclusions arising from the factual circumstances established in the reasoning part.
In this regard, it must clearly formulate what exactly the court ruled both on the initially stated claim and on the counterclaim, if it was stated (Article 138 of the Code of Civil Procedure of the Russian Federation), who, what specific actions and in whose favor should be carried out, for which of the parties the disputed right is recognized. The court must also resolve other issues specified in the law so that the decision does not cause difficulties in execution (Part 5 of Article 198, Articles 204 - 207 of the Code of Civil Procedure of the Russian Federation). If the stated claims are denied in whole or in part, it is necessary to indicate exactly to whom, in relation to whom and what was denied.
In cases where the decision is subject to immediate execution or the court comes to the conclusion that this is necessary (Articles 210 - 212 of the Code of Civil Procedure of the Russian Federation), the decision must make an appropriate indication.
The decisions listed in Article 211 of the Code of Civil Procedure of the Russian Federation are subject to immediate execution by virtue of a mandatory requirement of the law, and therefore the indication in the decision to apply for immediate execution does not depend on the position of the plaintiff and the discretion of the court.
Appealing the decision for immediate execution on the grounds specified in Article 212 of the Code of Civil Procedure of the Russian Federation is possible only at the request of the plaintiff. In such cases, the court's conclusions about the need to apply the decision for immediate execution must be justified by reliable and sufficient data on the presence of special circumstances, due to which a delay in the execution of the decision could lead to significant damage to the claimant or the impossibility of its execution.
When calling the decision for immediate execution at the request of the plaintiff, the court has the right, if necessary, to require the plaintiff to ensure a reversal of the execution of the decision in case of its cancellation.
12. Since in claims for recognition the question of the existence or absence of a particular legal relationship or individual rights and obligations of the persons participating in the case is resolved, the court, when satisfying the claim, is obliged, if necessary, to indicate in the operative part of the decision the legal consequences that this entails recognition (for example, on the annulment of a marriage registration document if it is declared invalid).
13. By virtue of Article 194 of the Code of Civil Procedure of the Russian Federation, only those decisions of the court of first instance are adopted in the form of a decision, by which the case is resolved on the merits, and the range of issues constituting the content of the decision is determined by Articles 198, 204 - 207 of the Code of Civil Procedure of the Russian Federation.
Therefore, it is unacceptable to include in the operative part of the decision the court’s conclusions on that part of the claims for which a decision on the merits is not made (Articles 215, 216, 220 - 223 of the Code of Civil Procedure of the Russian Federation). These conclusions are presented in the form of determinations (Article 224 of the Code of Civil Procedure of the Russian Federation), which must be made separately from decisions. At the same time, it is necessary to keep in mind that the inclusion of these conclusions in the decision in itself is not a significant violation of the rules of procedural law and does not entail its cancellation in cassation (appeal) and supervisory procedures on this basis.
14. Draw the attention of the courts to the need to strictly adhere to the deadline established by Article 199 of the Code of Civil Procedure of the Russian Federation for drawing up a reasoned decision.
15. Based on the requirements of Article 201 of the Code of Civil Procedure of the Russian Federation, the question of making an additional decision can be raised only before the court decision in this case enters into legal force, and such a decision can only be made by the composition of the court that made the decision on this case.
In case of refusal to make an additional decision, the interested person has the right to apply to the court with the same requirements on a general basis. The issue of legal costs can be resolved by a court ruling (Article 104 of the Code of Civil Procedure of the Russian Federation).
Providing for the right of the court to make additional decisions, Article 201 of the Code of Civil Procedure of the Russian Federation, at the same time, limits this right to issues that were the subject of judicial proceedings, but were not reflected in the operative part of the decision, or to those cases where, having resolved the issue of law, the court did not indicate the amount of the award. amount or did not resolve the issue of legal costs.
Therefore, the court does not have the right to go beyond the requirements of Article 201 of the Code of Civil Procedure of the Russian Federation, but can only proceed from the circumstances considered at the court hearing, making up for the shortcomings of the decision.
16. Since Article 202 of the Code of Civil Procedure of the Russian Federation provides the court with the opportunity to explain the decision without changing its content, the court cannot, under the guise of clarification, change, at least partially, the essence of the decision, but must only present it in a more complete and clear form.
17. Considering that the Code of Civil Procedure of the Russian Federation, establishing different procedures for the consideration of cases for certain types of proceedings (claim, special, proceedings in cases arising from public legal relations), provides for everyone a single form of completing the proceedings on the merits by making a decision, the courts should have in I mean that the requirements of Article 198 of the Code of Civil Procedure of the Russian Federation on the procedure for presenting decisions are mandatory for all types of proceedings.
18. Recognize as invalid the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 26, 1973 No. 9 “On the court decision” as amended by the Resolution of the Plenum of December 20, 1983 No. 11, as amended by the Resolution of the Plenum of December 21, 1993 No. 11, with amendments introduced by Resolution of the Plenum of December 26, 1995 No. 9.
Chairman of the Supreme Court of the Russian Federation V. M. Lebedev
Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V. V. Demidov
