PARTICULAR FEATURES OF APPEAL AND VERIFICATION OF JUDGMENTS IN CASSATION ORDER, GIVEN IN FURTHERANCE OF SENTENCE

Author(s):  
Анастасия Анатольевна Рукавишникова

На основании изучения норм закона, разъяснений Пленума Верховного суда РФ, правоприменительной практики и сущности современного порядка проверки в суде кассационной инстанции промежуточных судебных решений формулируется вывод о существовании системы процессуальных особенностей обжалования и проверки судебных решений, вынесенных в порядке исполнения приговора, проводится их систематизация и анализ. На основе систематизации выделены следующие особенности применения норм гл. 47.1 УПК РФ при обжаловании и проверке судебных решений: способы проверки решений, основания проверки и виды решений, выносимых по итогам такой проверки. Делается вывод, что обоснованность не должна выступать самостоятельным основанием проверки таких решений, но может быть проверена как последствие нарушения требований ч. 4 ст. 7 УПК РФ. Решения, выносимые судом кассационной инстанции при проверке таких решений, должны зависеть от вида допущенной ошибки и от того, было ли данное решение предметом проверки суда апелляционной инстанции. Существенные ошибки в применении уголовного закона должны выявляться и устраняться самим судом кассационной инстанции путем внесения изменений в состоявшиеся решения. Существенные ошибки в применении процессуального закона, повлиявшие на ничтожность процессуальной формы при рассмотрении вопросов, связанных с исполнением приговора, могут быть только выявлены судом кассационной инстанции, но исправляться должны судом первой или апелляционной инстанции (где они допущены), что обеспечивает соблюдение требования ч. 3 ст. 8 УПК РФ. Суд кассационной инстанции должен принять решение о возвращении материалов в соответствующий суд. При выявлении нарушения требования ч. 4 ст. 7 УПК РФ решение отменяется, а материалы направляются в суд той инстанции, который допустил выявленное нарушение. Аргументируется, что в целях обеспечения правовой определенности применения судами процессуального законодательства, процессуальные особенности применения гл. 47.1 УПК РФ, выявленные применительно к проверке изучаемой категории решений, нуждаются в разъяснении на уровне Постановления Пленума ВС РФ. Based on legal norms research, resolutions of Plenum of the Supreme Court of the Russian Federation, law enforcement practice and essence of modern order of verification in cassation court of intermediate judgments, it is formulated a conclusion on existence of the system of procedural particularities of appeal and verification of judgments, given in furtherance of the execution of sentence, it is made its systematization and analysis. Based on systematization it was pointed out following particular features of the application of norms of article 47.1 of the Criminal Procedure Code of the Russian Federation in case of appeal and verification of judgments: methods of verification of judgments, grounds for verification and types of judgments, made on the results of this verification. It is made a conclusion that justification should not be a separate grounding for verification of such judgments, but it can be verified as consequence of violation of requirements of part 4 of the article 7 of the Criminal Procedure Code of the Russian Federation. Decisions of the cassation courts in case of verification of these decisions should be dependent on the type of committed error and on the judgment which was the subject of this verification by the cassation court. Substantial errors in application of criminal law should be determined and eliminated by cassation court itself by modification of existed judgments. Substantial errors in application of procedural law, which influenced on nihility of procedural form of reviewing questions related to execution of sentence, can be revealed by the cassation court, but they should be eliminated by the general court jurisdiction or by the court of appeal (where these errors were made), it provides compliance with requirements of part 3 of the article 8 of the Criminal Procedure Code of the Russian Federation. Cassation court should make a decision to return case materials to corresponding court. When revealing violation of requirements of part 4 of article 7 of the Criminal Procedure Code the judgment of the court is canceled, case materials are remitted to that court, where this violation was detected. In this article the author gives reasons that in case of providing legal certainty to apply procedural legislation by the courts, discovered procedural particularities of application the chapter 47.1 of the Criminal Procedure Code of the Russian Federation relating to verification of considering category are required to be explained by the Resolutions of Plenum of the Supreme Court of the Russian Federation.

Author(s):  
Viktor Aleksandrovich Sharonov

The subject of this research is the legal norms on the procedure for excluding the property necessary for debtor’s professional activity from the bankruptcy estate. The article covers the question on the possibility of excluding property necessary for the debtor to conduct professional activity, the value of which is 10,000 rubles or higher, from the bankruptcy estate. The goal of this works consists in consideration of a broader interpretation of provisions of the Paragraph 5 of the Part 1 of the Article 446 of the Civil Procedure Code of the Russian Federation jointly with clarifications of the Paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 25, 2018 No. 48 “On Certain Questions related to the Peculiarities of Formation and Distribution of the Bankruptcy Estate in Cases of Bankruptcy of Citizens” applicable to property of the debtor within the framework of insolvency (bankruptcy) procedure. The author analyzes the relevant civil legislation and insolvency (bankruptcy) law, as well as case law on topic. This article is one of the first attempts to systematize the relevant case law on the subject of exclusion of property necessary for debtor to conduct professional activity from the bankruptcy estate. Based on the results of analysis of the case law, national civil legislation and insolvency (bankruptcy)l law, the conclusion is made on impossibility of exclusion of property used by the debtor for professional activity, the value of which exceeds 10,000 rubles, from the bankruptcy estate in view of the failure of the economic model used by the citizen to ensure a normal life. The author questions the need to extend executive privilege onto the debtor’s property, which is required to conduct professional activity under the insolvency (bankruptcy) law.


Author(s):  
N.O. Mashinnikova

In this article the author considers the simplified procedures of judicial proceedings from the point of view of their compliance with the basic principles of criminal proceedings, enshrined in the Code of Criminal Procedure of the Russian Federation. The article concludes that the race for the economic efficiency of any state process affected the proceedings as well. This was the reason that justice, as a service, was reborn in the state service of justice, which in turn led to a decrease in its quality, which according to the author is expressed not so much in the absence of "cancellations" as in its non-compliance with the principles and purpose enshrined in the criminal procedure code. The author welcomes the initiative of the Plenum of the Supreme Court about the need to adopt measures to decrease the absolute number of criminal cases dealt with in simplified procedures, however, did not agree with the solution proposed by the Supreme Court of the Russian Federation. In author’s opinion, the amendments proposed by the Supreme Court of the Russian Federation violate the rights of the accused to defense and contradict Article 55 of the Constitution of the Russian Federation. The author presents her own proposal to change the code of criminal procedure in this part with bringing the necessary justification to that.


2021 ◽  
Vol 13 (2) ◽  
pp. 320
Author(s):  
Hanafi Hanafi ◽  
Muhammad Syahrial Fitri ◽  
Fathan Ansori

Following the background, the problems in this study are, first, the mechanism for implementing procedural law in E-Court for criminal cases in Indonesia, secondly how E-Court accommodates the process of proof in criminal cases in Indonesia. The method used in this research is pure legal research, which refers to and bases on legal norms and principles, applicable laws and regulations, legal theories and doctrines, jurisprudence, and other literature that are relevant to the topic. The results of this study are, firstly, the mechanism for implementing E-Court procedural law is regulated in the Supreme Court Regulation 4/2020 on the Administration and Trial of Criminal Cases in Electronic Courts provides 2 (two) alternatives for conducting trials in criminal cases, namely Normal Courts and Electronic Courts. Such matters are not previously regulated in the Criminal Procedure Code or other procedural regulations. Second, concerning the process of proofing evidence in criminal cases in E-Court still follows the provisions of the normal criminal procedure law and has the same value or power of evidence as normal trials.


Author(s):  
Sergey Grachev

The article considers the grounds for the emergence of the procedural status of a suspect in a criminal case. The rights and obligations of the specified person, including the right to protection are analyzed. Subject to the requirements of the criminal procedure code of the Russian Federation, legal positions of the Constitutional Court of the Russian Federation and Plenum of the Supreme Court of the Russian Federation the conclusion about the necessity of legislative consolidation of the procedural status of the person whose rights and lawful interests are affected carried out in relation to proceedings for verification of a crime report in accordance with article 144 of the Criminal procedure code and equating it to the status of a suspect, since during the pre-investigation check he has the right to protection from the criminal prosecution actually carried out against him.


Author(s):  
Ekaterina Manohina

In the article, the author turns to the study of the peculiarities of choosing such a preventive measure as house arrest for minors. Due to the fact that the Code of Criminal Procedure of the Russian Federation does not precisely define cases when a court must elect a house arrest in relation to minors, in practice there are often difficulties in which cases to choose such a preventive measure as detention, and in which house arrest. In the work, the author attempts to determine the essence of such a preventive measure as house arrest and the peculiarities of his election in relation to minors, and also considers the prohibitions and (or) restrictions to which minors cannot be subjected. The positions contained in the resolution of the Plenum of the Supreme Court “On the practice of the application by the courts of legislation on preventive measures in the form of detention, house arrest and bail” are analyzed. The author expresses the opinion that it is inadvisable to choose such a preventive measure as house arrest for minors. Based on the study, the author makes recommendations on the possibility, at the discretion of the court, to make adjustments to the prohibitions and (or) restrictions to which a minor suspect or accused will be subjected to whom such a preventive measure as house arrest is chosen.


Author(s):  
E.V. Bolshakov ◽  
◽  
I.D. Nazarov ◽  

The subject of the research within the framework of the article is the criminal procedure institute for the detention of a person on suspicion of committing a crime. The legal nature of this institution is analyzed, and comments are given on the normative legal acts and judicial practice regulating the issues of detention. The theoretical basis of the research is based on the publications of the last two decades on this problem, in particular, reflecting the discussion of the process scientists S. A. Shafer, S. B. Rossinsky and A. A. Tarasov, the subject of which was the issue of the legal nature of a suspect detention in a criminal case. In the paper, the authors ask the following questions: What is the detention of a person on suspicion of committing a crime in accordance with the legislation of the Russian Federation? From what moment does the detained person acquire the status of a suspect? Is it possible to detain a person before initiating a criminal case? The study concludes that a person acquires the actual status of a suspect from the moment of direct detention, that is, before documenting this status and, as a result, before initiating a criminal case. Amendments to the articles of the Criminal Procedure Code of the Russian Federation are proposed, and the authors` versions of the definitions of the concepts «detention of a suspect», «the moment of actual detention» and «pre-trial proceedings» are given.


2018 ◽  
Vol 50 ◽  
pp. 01159
Author(s):  
Anton Shamne

The article compares the Criminal Procedural Codes provisions of the Russian Federation and the Federal Republic of Germany that regulate conducting a search as an investigative act. It also provides and compares the definitions of the concept “search” and “dwelling” given in Russian and German criminal procedural legislation. The reasons for conducting the search in general and the search of dwelling are considered, similarities and differences are revealed in relation to the status of the subject who is under the search. The author characterizes the search of dwelling and gives a comparative analysis of this investigative action as well as the notion of “urgent cases” in both countries. The authors also proposed some brief recommendations for improving the norms of the Russian Federation Criminal Procedure Code.


2021 ◽  
Vol 7 (1) ◽  
pp. 95-101
Author(s):  
E. V. Smakhtin

The article deals with the peculiarities of the activity of courts in making judicial decisions in the context of a pandemic. First of all, we are talking about the wider use of digital and information technologies in criminal proceedings, which have previously been repeatedly recommended by forensic science for implementation in judicial practice. Some recommendations of criminalistics are currently accepted by the Presidium of the Supreme Court of the Russian Federation in its Decision dated April 08, 2020 № 821 and Review on certain issues of judicial practice related to the application of legislation and measures to counteract the spread of a new coronavirus infection (COVID-19) in the territory of the Russian Federation № 2, which provided appropriate explanations for their use in practice. In particular, we are talking about the possibility of using video conferencing systems for certain categories of criminal cases and materials that are considered urgent, although this is not provided for in criminal procedure legislation. It is concluded that it is necessary to change the current criminal procedure legislation, bring it into line with the Constitution of the Russian Federation, federal constitutional laws, federal laws and subordinate regulatory legal acts, including orders of the Judicial Department under the Supreme Court of the Russian Federation.


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