The procedure for deciding and pronouncing a verdict

The verdict is passed on behalf of the state - the Russian Federation, which characterizes it as an act of state power. In the name of the Russian Federation, sentences are passed by federal and magistrate courts.

Sentencing

– a complex and responsible process, intellectual and emotional. It requires that: all issues essential to the matter be discussed and resolved; on an equal basis for all judges; in an environment conducive to free and calm deliberation, in which judges would not fear adverse consequences for themselves for expressing and defending their opinions[105]

The content of the sentencing procedure consists of discussion by judges of the issues to be resolved, specified in Article 299 of the Code of Criminal Procedure, voting on these issues, drawing up a verdict, its signing and proclamation. In Part 1 of Art. 298 states that “the verdict is decided by the court in the deliberation room.” This does not mean at all that the proclamation of the verdict, which takes place in the courtroom, is not covered by the concept of “delivery of a sentence.” Only after the pronouncement of the verdict is it possible to assert that its decision has taken place.

The secrecy of the meeting of judges, as one of the guarantees of their independence, serves to ensure free, without outside interference, discussion by judges of issues to be resolved in a criminal case. The secret nature of the meeting of judges ensures the confidentiality of the entire process of their search for mutual agreement on issues to be resolved, including possible differences of opinion.

The secrecy of the meeting of judges is ensured by the ban on representatives of the parties, other participants in the proceedings and any other persons being present in the deliberation room while the judges are pronouncing a verdict. In particular, it is not allowed for judges to invite the secretary of the court session and the head of the court office into the deliberation room to obtain any certificates from them. Judges who are in the deliberation room must not communicate with anyone by telephone, by sending or receiving notes, etc. During a rest break leaving the deliberation room, judges also cannot discuss any issues in the case with other persons , on which they will have to make a verdict.

Judges are prohibited from disclosing judgments that took place in the deliberation room, as well as the results of voting on issues to be resolved when rendering a verdict. The dissenting opinion of a judge, expressed by him in the deliberation room, set out in writing and attached to the verdict, is not subject to announcement in the courtroom, including in a higher court.

Bodies carrying out operational-search activities are prohibited by law from listening to and recording with the help of special technical means the judgments of judges in the deliberation room, as well as secretly entering the deliberation room when the judges have gone on a break at the end of their working hours.

Violation of the secrecy of a meeting of judges is considered as a basis for overturning a sentence in cassation (clause 8, part 2, article 381 of the Code of Criminal Procedure of the Russian Federation).

For the first time, the Code of Criminal Procedure established a rule according to which, before the court leaves for the deliberation room, the participants in criminal proceedings must be announced the time for the announcement of the verdict. The positive feature of this rule is, in particular, that it eliminates the need to subsequently summon the persons participating in the criminal process to court for the announcement of the verdict.

At the same time, Part 3 of Art. 298 gives rise to a number of reasonable doubts. Thus, the court in the deliberation room does not necessarily make a verdict; it can make a different decision (for example, to dismiss the case). In addition, the court should not prejudge the verdict at the hearing and, moreover, announce its position. A corresponding announcement by the presiding officer may cause the interested participants in criminal proceedings to experience severe stress while awaiting the court's verdict.

The procedure for the conference of judges when they pronounce a verdict in a collegial hearing of a criminal case is determined by the rules of Art. 301 Code of Criminal Procedure.

The rule according to which, when pronouncing a sentence, the presiding officer puts questions for resolution in the sequence specified in Art. 299 of the Criminal Procedure Code, assumes that each of the issues is discussed and resolved separately. In addition, this rule has the meaning that a negative answer to any of the first four main questions eliminates the need to resolve subsequent questions about the application of the criminal law (clauses 5-8, 14-16 of Article 299 of the Code of Criminal Procedure). At the same time, issues of a procedural nature must be resolved in any case (clauses 10-13, 17, part 1, article 299 of the Code of Criminal Procedure).

Each issue in the deliberation room is resolved by a vote of the judges. The issue is considered resolved with a simple majority of votes. At the same time, there should be no “abstentions” from resolving issues. But, there is an exception to this rule. A judge who does not consider the defendant guilty and remains in the minority cannot vote “for” or “against” on issues of application of criminal law. However, this does not mean that the position of a given judge is not important and is not taken into account. If the opinions of other judges regarding the classification of the crime or the type and amount of punishment differ, then the vote cast for acquitting the defendant joins the vote for applying the criminal law on a less serious crime, as well as for imposing a less severe punishment.

When resolving issues, the presiding officer casts his last vote. This is explained by the fact that the presiding officer presides over the meeting of judges and conducts voting. In addition, this rule to some extent reduces the possibility of the presiding officer influencing the formation of the position of the other judges in such a way that it necessarily corresponds to his opinion.

The judge who has a dissenting opinion has the right to state it in writing in the deliberation room and attach it to the verdict (Article 301 of the Code of Criminal Procedure). Thus, the legislator does not require the mandatory inclusion of a written dissenting opinion of a judge who disagrees with the decision of the majority. The Supreme Court on this matter, however, proceeds that a special opinion must be expressed every time and certainly in writing: “When considering a case to the materials of which a special opinion of the presiding judge or people’s assessor is attached, the cassation court is obliged to check and discuss the validity of the conclusions set out in it "[106]. The lack of regulation in the law of the institution of dissenting opinion when rendering a verdict in the deliberation room leaves many open questions. In particular, the question arises about the significance of the dissenting opinion for the court of first and second instance. A.V. Bunina writes about this: “...First of all, this matters for the judge himself, who remains in the minority. Deciding the case in accordance with his inner conviction, the judge who remained with a dissenting opinion is confident that his opinion will reach the judges of the higher court, will be taken into account by them and, possibly, will play a role in correcting the miscarriage of justice. In addition, one cannot ignore the fact that, by setting out on paper the reasons for his disagreement with the majority of judges, the judge, as it were, once again checks the correctness of his position on the case. Cases cannot be excluded when a judge, trying to motivate his dissenting opinion, does not find the proper arguments, and, having become convinced of the unfoundedness of his decision, abandons it...”[107].

The death penalty can be imposed on the guilty person only by unanimous decision of the judges (clause 4 of Article 301 of the Code of Criminal Procedure) and must be considered as an important guarantee of the legality, validity and fairness of the relevant court decision. It is also important to keep in mind the following. Despite the fact that Russia has signed Protocol No. 6 (relating to the abolition of the death penalty) to the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), this Protocol has not yet been ratified. According to the resolution of the Constitutional Court of the Russian Federation of February 2, 1999 No. 3-P, before the enactment of the federal law, ensuring throughout Russia that every accused person who faces the death penalty for committing a crime under Part 2 of Art. 105, art. 277, 295, 317 and 357 of the Criminal Code of the Russian Federation, the right to a trial by jury, this punishment cannot be imposed.

To date, in accordance with the Federal Law of December 18, 2001 “On the entry into force of the Criminal Procedure Code of the Russian Federation,” jury trials operate in all subjects of the Federation, with the exception of the Chechen Republic (here, jury trials should begin operate from January 1, 2007). In addition, the Criminal Code of the Russian Federation leaves up to the court the possibility of choosing a punishment for committing these crimes between imprisonment for up to 20 years, the death penalty and life imprisonment, which frees the court from the mandatory imposition of the death penalty.

Proclaim the verdict

- means to bring it to the attention of the judicial audience by public announcement (reading out loud). If the defendant was removed from the courtroom for violating order at the court hearing or disobeying the orders of the presiding judge or bailiff, then by the time the verdict is announced he is returned to this room. Those present in the courtroom, including the judges, listen to the verdict while standing. Elderly and sick persons, with the permission of the presiding judge, listen to the verdict while sitting.

The verdict is pronounced by the presiding judge. However, there are often cases when the text of the verdict is set out on many dozens of pages and its announcement takes a long time. It is advisable to announce such a verdict to the judges one by one. The verdict is announced without explanation whether it was reached unanimously or by majority vote. The publication of a judge's dissenting opinion is not permitted.

The verdict is pronounced in full, without omissions or abbreviations of its text. However, if the criminal case was considered in a closed court session, the court may limit itself to the announcement of only the operative part of the verdict, if the information contained in the descriptive part of the verdict is inappropriate to be disclosed at the moment, for example, in order to ensure the safety of witnesses. At the end of the proclamation of the verdict, the period established for appealing it begins.

The defendant, who is in custody, is subject to immediate release in the courtroom immediately after the announcement of the acquittal. In this case, the guard has the right to release the defendant only by oral order of the presiding officer, given in accordance with the operative part of the sentence.

Simultaneously with the verdict, the court must resolve the issues specified in Art. 313 of the Code of Criminal Procedure, regarding the care of the defendant’s minor children, elderly close relatives, and the safety of property and housing while serving the sentence.

The court in the deliberation room, in addition to passing a guilty verdict with the imposition of a sentence to be served by the convicted person, must decide to transfer children and elderly parents to the care of relatives or other persons, and in the absence of such or the unwillingness of other persons, to place them in children's or social institutions.

The court also issues a resolution or ruling on taking the necessary measures to protect the property or home of the convicted person who is left unattended.

When rendering a verdict, the court must decide on the payment of the appointed defense lawyer for providing legal assistance to the accused. A lawyer’s work is subject to payment not only in court, but also at the pre-trial stages of criminal proceedings.

The court may exempt a poor or low-income convicted person in full or in part from paying for the work of his defense lawyer.

All chambers of lawyers, after their registration in accordance with the Federal Law of May 31, 2002 “On Advocacy and the Bar in the Russian Federation,” make decisions related to the procedure for providing free legal assistance to Russian citizens, as well as the procedure for the participation of lawyers as defense attorneys in criminal cases. legal proceedings as assigned by the inquiry bodies, preliminary investigation bodies, prosecutor or court. The activities of lawyers who provide legal assistance to citizens free of charge are financed at the expense of the state.

Sentencing

The procedure for the conference of judges when they pronounce a verdict in a collegial hearing of a criminal case is determined by the rules of Art. 301 Code of Criminal Procedure.

Proclaim the verdict

The court also issues a resolution or ruling on taking the necessary measures to protect the property or home of the convicted person who is left unattended.

The court may exempt a poor or low-income convicted person in full or in part from paying for the work of his defense lawyer.