Over 60% of criminal cases are considered in courts in the so-called “ special order"(Chapter 40 of the Code of Criminal Procedure of the Russian Federation) - without examining the evidence and challenging the correctness of the accusation. According to Part 7 of Art. 316 of the Code of Criminal Procedure of the Russian Federation, the punishment imposed when a case is considered in a special order cannot exceed two-thirds maximum term or the amount of the most severe type of punishment provided for the crime committed. In practice, there are cases when the accused, having chosen a special procedure, did indeed receive a lighter punishment than they could have received when considering the same case in general order... There are also the opposite situations: when the punishment was imposed the same as in the consideration of similar cases in the general order (or even more severe than the average for similar cases, all other things being equal). There are examples of how a special order was chosen by those whose accusation was based on poorly collected evidence, or those who were charged with a more serious crime than it followed from the evidence.
As a rule, the accused believed the investigators, who said that the court would "give a conditional" or impose a fine. But the punishment is determined by the court, not the investigator. And the court is not bound in sentencing either by the “promises” of the investigator to the accused, or by the position of the public prosecutor. Formally, when imposing a punishment when considering a case in a special order, the court is bound only by the requirement of the law not to impose the most severe punishment in excess of 2/3 of maximum size specified in the sanctions of the article of the Special Part of the Criminal Code of the Russian Federation, as well as other rules on "fractions" (for example, part 1 of article 62 of the Criminal Code of the Russian Federation).
The realization that the punishment imposed is too harsh or even imposed for episodes unconfirmed by evidence comes after the verdict. But the appeal against the verdict, passed in a special order, has one peculiarity: it cannot be challenged on factual grounds (“did not beat”, “did not take”, “the witness could not see it,” “the methodology was violated during the examination,” etc.) ).
It is widely believed that in an appeal against such a sentence it makes sense to refer only to the violations committed when imposing a sentence. More often than not, this is true. However, there are still cases in which the accusation admitted by the accused and formed the basis of the verdict was not supported by sufficient evidence or imputed “with a margin”. In such cases, there is a chance to cancel or change the sentence passed in a special order, according to procedural grounds... General recommendations cannot be given here, since the preparation of appeal and cassation complaints for such sentences requires individual approach to study a specific case and search in its materials procedural violations or inconsistency of the imputed crime with evidence (“overstated qualifications”). This chance can be realized either by knowing the jurisprudence and being able to briefly, succinctly, professionally describe really strong arguments in the complaint, or by using the help of a lawyer specializing in appealing sentences.
Special order of conviction of a court
you cannot appeal in full.
I must say right away that the convicted person will not be able to appeal against the conviction, passed by the court in a special procedure, under paragraph 1 of part 1 of Article 379 of the CCP. Perhaps this is the most important thing when the convicted person does not agree with the conclusions of the court and the circumstances of the criminal case, but cannot appeal them. This is the "procedure" established by law for the consideration of criminal cases in relation to a special judicial trial in higher authorities.
A convicted person, if he is awarded by the court, in his opinion, will not be able to challenge this “special” sentence in terms of lack of proof and or proof of his involvement in the crime incriminated to him. The convicted person should remember that before the start of the trial, the court and his lawyer thoroughly explained to him his rights to appeal in case of disagreement with the verdict of the particular trial. In particular, the appeal against the conviction is "truncated" in nature and it can be appealed only in connection with its severity and injustice, no more.
Law practice knows amazing "things" when, in a special order of guilty verdict, the facts set forth in the verdict do not completely correspond to the circumstances of the case, the evidence indicated by the witnesses contradicts their testimony on preliminary investigation, given motive committed crime does not correspond to either the events or the evidence that is consistent with the charge.
However, there is a legal rule of conduct in this “specific” administration of justice.
The accused and the lawyer, as a defender in a criminal case on preliminary meeting the courts have given their consent to such a judgment and must anticipate any inconsistency.
A lawyer, as a professional in his field, is obliged to "prepare" his client very carefully. Law practice knows a case when criminal sentences in cases considered in a special order according to their punishment significantly exceeded the punishment in criminal cases considered in a general procedure, not to mention the award of monetary sums in a civil suit. This is a separate topic for conversation and consultation.
V this definition the legislator dwelled on a very important point for understanding the complexity of passing only a guilty verdict in a case considered in a special order.
It is clear that consideration in a special order can take place only after consultation of the defendant with his lawyer in this criminal case.
The defendant, after legal consultations with the defense lawyer, must correctly assess the consequences of the sentence and realize that his punishment will not exceed two-thirds of the maximum term under the article incriminated by the prosecution, however, the convicted person will not have the right to appeal the sentence if he disagrees with the conclusions of the court and its actual circumstances. Affairs.
The court neither in the court session nor in the conviction does not examine the evidence, but is limited only to the description of the committed criminal act of the text of the indictment. At the hearing, the judge is convinced of the availability of materials proving the guilt of the defendant; the absence of procedural violations in the conduct of investigative measures and, in accordance with the law, according to their internal understanding of the criminal case and conscience, to issue a guilty verdict.
Only one thing is examined by the court when sentencing in a special order is extenuating circumstances and the personality of the defendant with the characteristics and requests of the intercessors attached to it. Failure to study this material by the court may subsequently become the basis for the revocation of the sentence by attentive and experienced lawyer as passed in violation of the norms of the Criminal Procedure Code.
On the basis of this brief review and analysis of the conviction of a criminal case issued in a special procedure, I conclude:
An appeal against a verdict to a higher court, rendered on the basis of Chapter 40 of the Code of Criminal Procedure, is very difficult and requires a high professional excellence a lawyer.
When contacting convicts under special sentences, or their proxies, in case of disagreement with the conclusions of the court, lawyer Vodopyanov will help to resolve the complaint positively towards mitigating punishment, since a guarantee of the success of his work is a sufficiently large experience in such controversial cases and excellent knowledge of the current legislation.
lawyer Vodopyanov
Presiding - judge K.T.The. case no.
APPEAL RULE
Krasnoyarsk Regional Court composed of:
presiding over A.P. Zapasova,
under the secretary of E.A. Korotkova,
with the participation of the convicted Churuto A.A. and his lawyer L.S.Kutepova,
prosecutor Krat F.M.,
considered in an open court session of the court of appeal the criminal case on the appeal (main and additional) of the convicted Churuto A.A. on the verdict Krasnoyarsk Territory from, which:
Churuto A.A.,
convicted in a special order of trial:
After listening to the participants in the process, checking the submitted materials of the criminal case, taking into account the arguments of the appeal (main and additional) of the convicted Churuto A.A., the court of appeal comes to the following conclusions.
The court of first instance, reasonably concluding that the accusation presented by the public prosecutor at the hearing, with which Churuto agreed, is supported by the evidence collected in the criminal case, given Churuto's full confession of his guilt for the crime, the punishment for which does not exceed ten years in prison , the consent of the public prosecutor, the victim's representative and the convicted person's defense lawyer Churuto to pass a sentence without a trial, legally rendered the verdict in a special order, and correctly qualified the actions of the guilty person under paragraph "b" of Part 2 of Art. as a theft committed with illegal entry into the premises.
Violations of the norms of the Code of Criminal Procedure of the Russian Federation when deciding the verdict in a special order, calling into question its legality and validity, entailing cancellation or amendment, were not established by the court of appeal.
Punishment Churuto for what he did, his appearance, the order of serving the court of first instance appointed in the framework of the requirements of Part 7 of Art. ...
At the same time, when sentencing, the court reasonably took into account the gravity and social danger of the offense, data on the identity of the perpetrator, all available mitigating circumstances, reasonably recognized as such, such as: admission of guilt, repentance for what he had done, active assistance in the disclosure and investigation of a crime, the presence of a dependent minor child ...
Other circumstances that are subject to mandatory accounting as mitigating, or may be recognized as such, entailing the need to mitigate the punishment imposed by Churuto, including through the application of the provisions of Art. , the appellate court does not discern.
All circumstances that are important for determining the type and amount of punishment, including those to which the convicted person refers in his complaint, were taken into account by the court of first instance in full.
The convicted person's arguments about the need to take into account, as a mitigating circumstance, that he has two young children, of whom he is not a father, are subject to rejection.
A mitigating circumstance, provided for in paragraph "g" of Part 1 of Art. , v mandatory to be taken into account when imposing punishment, presupposes the presence of a convicted young child, whom he, by virtue of the law, as a father, is obliged to bring up and support.
According to the materials of the criminal case, the convicted Churuto has one dependent child, whose father he is. The father of other children who live with the convict, as he points out in the appeal, Churuto is not, and therefore, according to the law, he is not obliged to raise and maintain them. Under such circumstances, there are no grounds for recognizing the convicted Churuto as a mitigating circumstance - the presence of three young children, and not one - as the court of first instance indicated - is not available.
The grounds for applying the provisions of Part 1 of Art. the court of appeal also does not find, since the appointment of punishment according to the rules of Part 1 of Art. possible only if available certain conditions, including, in the absence of aggravating circumstances, one of which, in accordance with paragraph "a" part 1 of Art. , is a recidivism. In the actions of Churuto, the court of first instance reasonably established the existence of such an aggravating circumstance as a recidivism of crimes.
The arguments of the convicted person that the court did not take into account the speech of the public prosecutor in the debate, who asked for a suspended sentence, the appellate court also declares untenable, since, based on the meaning of the law, when imposing a punishment on a guilty person, the court is not bound by the opinion of the public prosecutor, the definition of the type and the size of the penalty is in the exclusive competence of the court.
The reasons why the court of first instance did not consider it possible to impose a suspended sentence on the convict are set out in the verdict, and the court of appeal fully agrees with them.
The grounds for changing the category of gravity of the crime committed by Churuto to a less serious one, in the order of Part 6 of Art. , the trial court did not establish. The court of appeal does not see them either.
View correctional institution, in which Churuto is to serve the sentence assigned in the form of imprisonment, the court of first instance has correctly determined - a penal colony with a strict regime.
At the same time, the court of appeal considers it necessary to amend the contested verdict on the following grounds.
In accordance with the requirements of Art. , a person found guilty of a crime is assigned a fair punishment within the limits provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation, and taking into account the provisions of the General Part of the Criminal Code of the Russian Federation. When sentencing, the nature and degree of public danger the crime committed, the identity of the perpetrator, including the circumstances mitigating and aggravating the punishment, as well as the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family.
When sentencing Churuto specified requirements the law is not fully implemented.
Thus, the court of first instance came to the conclusion that the aggravating circumstance for Churuto's punishment is his commission of a crime while intoxicated.
Indeed, according to Part 1.1 of Art. , the court, depending on the nature and degree of social danger of the crime, the circumstances of its commission and the personality of the perpetrator, may recognize the commission of a crime in a state of intoxication caused by the use of alcohol, drugs or other intoxicating substances as an aggravating circumstance.
Judicial practice on:
By theftJudicial practice on the application of the norm of Art. 158 of the Criminal Code of the Russian Federation
Any decision of the court of first instance, including the verdict in a criminal case, can be appealed against. Sometimes filing a complaint is the last real opportunity to cancel or change an unjust decision, to achieve justice. Most often, the convicts express disagreement with the verdict, but in some situations the victims are dissatisfied with the too lenient punishment or the qualification of the crime - they, like the public prosecutor, have the right to appeal. What are the deadlines for filing an appeal in a criminal case, how to make a complaint and where to file - read in our article.
What is an appeal
The Court of Appeal is Judicial authority second instance, which revises the decision of the lower court and puts an end to the proceedings. Appeal consideration- this is, in general, a check of the legality of the initial judicial opinion on the case.
You need to understand that the appeal can be both a district court (a session of one judge) and a regional one, as well as Supreme Court(meeting with the participation of three judges). In practice, it looks like this:
- when sentenced by a magistrate judicial area the district court is considered to be an appellate instance.
for instance: Pavlov R.Z. was convicted by the verdict of the magistrate of the plot No. 1 of the Leninsky District Court of Kirov under Art. 119 of the Criminal Code of the Russian Federation. R.Z. Pavlova's lawyer disagreed with the decision and appealed against it to the Leninsky District Court of Kirov. - at sentencing district court the court of appeal is the court of regional, regional significance.
for instance: Lozhkin G.R. was convicted by the verdict of the Petrovsky City Court of the city of Vladimir. He wrote a complaint about revision to Vladimirsky regional court. - when a verdict is passed by a regional court, the Supreme Court is considered the second instance.
for instance, a jury in the Kemerovo region delivered a not guilty verdict on double murder. In order to cancel the acquittal, the representatives of the victim wrote a complaint to the Supreme Court of the Russian Federation.
The complaint is filed through the court that made the original decision. That is, the complaint itself is submitted to the office of the court of first instance, although at the same time it is addressed to a higher court.
What can be appealed
So, any verdict (guilty or acquittal) can be appealed. In addition, filing an appeal is possible:
- on the decision to dismiss the case on various grounds... The judge has the right to terminate the criminal case upon appointment judicial fine, due to the reconciliation of the parties, subject to certain conditions (for more details in the article), as well as amnesty, upon expiration of the statute of limitations, etc. Let's give an example. In September 2015, for a crime of small gravity, the court ruled to terminate the criminal offense in connection with an amnesty in honor of the 70th anniversary of Victory in the Great Patriotic War (such an amnesty was indeed announced in May 2015). The victim, who did not agree with this outcome of the case, appealed against the ruling.
- on the court order on the choice of a preventive measure... The court elects detention or house arrest, as well as bail. The rest of the restrictive measures to those under investigation are applied by the decision of the investigator.
- on the decision, which is issued following the consideration of the complaint filed in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation- on the actions of police officers, investigative committee, the prosecutor's office. For example, Serov E.N. appealed to the court with a complaint about the refusal to initiate a criminal case. At the meeting, the materials of the case were checked, a decision was made to refuse to satisfy the application of Serov E.N., who, disagreeing with this, decided to appeal.
- on the decisions of the judge on parole, removal of a criminal record, cancellation of a conditional sentence or extension of a probationary period.
You need to know that court decisions made in the course of the proceedings at the petitions of the participants in the process are not subject to separate appeal. This means that the parties have the right to express their disagreement with interim decisions in a criminal case only in an appeal against the final decision, that is, against a court verdict.
Example... When considering the case of robbery, the defense side filed a petition to exclude the protocol of inspection of the scene of the incident from the evidence, the court was denied satisfaction. The defense lawyer wrote an appeal against the refusal, but the proceedings on it were not started, the regional court pointed out the impossibility of considering it and recommended to state his arguments in the appeal against the verdict, which will take place at the end of the proceedings.
Other examples of so-called "interim solutions" can be decisions on requests for an expert examination, on calling additional witnesses, on the admission of a public defender, on requesting documents or audio carriers, etc. All of these decisions are not separately appealed.
The timing
The general deadline for filing an appeal in a criminal case is 10 days. The countdown starts from the date following the announcement of the verdict. In practice, there are cases when, in fact, this period is exceeded:
- If the 10th day of the deadline falls on a public holiday or weekend, the appeal can be filed on the first business day after the non-business day.
For example, the verdict was passed on 06/01/2020, on Friday. The 10th day falls on June 11, that is, a non-working day due to the postponement of the Saturday weekend. June 12 - Independence Day, holiday date. Therefore, in fact, the deadline for appeal in this case is 12 days, up to and including June 13. - Usually, the complaint is submitted to the court office, but in some cases it is sent by mail (it does not matter, registered or simple). The post office acceptance stamp on the envelope confirms the date the letter was delivered. If such a date is within 10 days, even if the letter actually arrives late at the court's registry, the deadline is considered met.
Let's give an example. A. V. Kostin was convicted by the verdict on 04/02/2020 - accordingly, the appeal period ends on 04/12/2020. A. V. Kostin I did not manage to submit my complaint before the end of the working day of the district court (until 17:30), so I sent it by letter at 20:00 through the post office, as evidenced by the stamp. In fact, the envelope was received by the office only on 04/16/2020, but under the circumstances described, the convict “kept within” the 10-day period. - For convicts in custody, 10 days begin to run from the day after the actual delivery of a copy of the judgment. In such a case, a separate application for the restoration of the pass is not required to file a complaint.
- For the rest of the convicts, their defenders, as well as for the victims and the public prosecutor, good reason the term is subject to renewal upon application. A request to reinstate the appeal period may be reflected in the complaint itself. In addition, an application for the restoration of the time limit can be drawn up separately:
To the Leninsky District Court of Kirov
convicted by the verdict of Leninsky
District Court of Kirov from 02.04.2020
Pletnev Igor Alexandrovich
Petition
On the restoration of the missed deadline for appeal
By the verdict of the Leninsky District Court of Kirov on 04/02/2020, I was convicted under Part 1 of Art. 228 of the Criminal Code of the Russian Federation to 1 year of imprisonment in a penal colony. I disagree with the verdict and wrote an appeal.
The verdict was pronounced on 04/02/2020, but I actually received a copy of it on 04/18/2020, as evidenced by the note in the file.
Based on the above, guided by art. 389.5 of the Criminal Procedure Code of the Russian Federation,
Restore the missed deadline for appeal against the verdict of the Leninsky District Court of Kirov from 02.04.2020.
Calculate the period from 04/19/2020 - that is, from the next day after the actual delivery of a copy to me.
Pletnev I.A., 04/19/2020
As you can see from the sample application, it is drawn up in free form, but with the obligatory indication of the reason why you missed the deadline (receipt of a copy after the expiration of 10 days - due to a business trip, illness, mail, etc.). In other words, you must justify your request to give you the opportunity to challenge the sentence. At the end of the application, you must indicate from what date you think the new 10-day deadline for the appeal should be calculated.
The petition is reviewed by the same judge who passed the sentence. In some cases (vacation, business trip, illness of a judge), consideration is also allowed by another judge, on behalf of the chairman. Based on the results of consideration of the petition, the court makes a separate ruling. If the specified reason is recognized as valid, the term is restored. If the court considers the reason for the omission to be disrespectful, a decision is made to refuse to restore the 10-day period - in this case, the applicant has the right to appeal the decision made separately.
The term for filing a complaint against a decision on the choice of a preventive measure in the form of detention or house arrest has been reduced, it is 3 days. The same period is set aside for appealing the extension of the preventive measure.
Who is entitled to appeal
The Criminal Procedure Law gives the following participants in the proceedings the right to appeal:
1. The convicted person and his defender
Representatives of this side of the case most often enjoy the right to challenge. The convicted person may disagree with the fact that he was found guilty or only with the imposed punishment. A lawyer and a client can draw up one complaint for two or each one of them separately. Complaints cannot contradict each other - this is unacceptable by the provisions on advocate ethics. If the client considers the application of a particular article of the criminal code to be incorrect, the defense lawyer has no right to express an opposite opinion on the same criminal case.
In some cases, along with a lawyer, the interests of the accused are represented in court by a public defender (sometimes there are several of them), who also has the right to appeal.
The legal representative also has such an opportunity. For example, if the convicted person has not reached the age of majority, his parents have the right to appeal for him, but only those who are recognized as an official representative. This does not deprive the minor of the right to appeal the sentence, along with the mother or father.
2. The victim, his legal representative or the victim's lawyer (in cases where he is involved)
Usually, the injured party does not agree with the lenient punishment or the exclusion of part of the charge from the criminal activity of the person involved. The public prosecutor is considered one of the representatives of the victim's side - he also has the right to disagree with the verdict on various grounds, to file an appeal (analogue of a complaint). In some cases, the opinion of the public prosecutor may not coincide with the opinion of the victim. Since the prosecutor is obliged to supervise not only the observance of the criminal law, but also the procedure for considering the case itself, submissions can be brought even in the absence of complaints from the victim.
3. Civil plaintiff or defendant
In criminal cases, the status of the defendant does not always coincide with the status of the accused in one person. So, if an accident with fatal committed as a result of driving a car belonging to an organization, the claim of the victims can be addressed not only to the perpetrator, but also to the employer. Subsequently, if the employer does not agree with the verdict in the part of the claim, he has the right to use the opportunity to appeal. Likewise, the civil plaintiff: if the crime affects the rights of others, they can be brought in as plaintiffs who have the right to appeal.
Who is not eligible to appeal
Under no circumstances can they appeal against a court decision in a criminal case:
- witness . Witness status implies more responsibilities than rights. Thus, a witness does not have the right to refuse to testify, cannot ask questions to the court or the participants in the process, and must not avoid appearing in court. In addition, a witness cannot appeal against a judgment.
- specialist, expert... These are outsiders who are invited by the court or participants in the process to give explanations about their special knowledge. After these explanations are given, the specialists do not participate in the meeting and are not entitled to file complaints against the court decisions.
- investigators and other law enforcement officials involved in the investigation(except for the prosecutor). This officials who do not have the right to influence the decision of the court by appeal.
- other persons who are not parties to the case.
What to write about in the complaint
The basic requirements for filing an appeal are as follows:
- First, you need to write the name of the court of second instance where you want to appeal the verdict. This may be the regional, regional court of the region where the district decision was made. In Moscow, the second instance for district sentences is the Moscow City Court.
- Data about the author of the complaint - usually this information is at the end of the text and includes not only the name and address of residence, but also the status - the victim, the accused, etc. If the complaint is drawn up by a convicted person in custody, it is necessary to indicate where exactly he is staying - that is, in which particular SIZO. It is especially important to indicate their status to those who actually did not take part in the process, but at the stage of the investigation were recognized as victims or accused. For example, if the victim fails to appear at the hearing, with the consent of the opposite party, his investigative testimony can be read out. In some cases, in cases of small gravity, the law allows the defendant not to participate in the hearing, which does not deprive him of the right to appeal the sentence or ruling later.
- Information about the verdict - in respect of whom it was passed, when and by what court, what punishment was determined if the accused was found guilty. If a complaint is filed against the acquittal, it is necessary to indicate on what grounds the court did it (for the absence of corpus delicti or the event of a crime, for lack of evidence, etc.).
- The complaint must be attached additional documents, which are referenced in the text and which have not previously been submitted to the court of first instance. Those materials or their copies that are already in the volumes of the criminal case should not be attached. At the same time, in the complaint, you can draw the attention of the judicial board to certain documents that were previously examined, but were incorrectly interpreted, or insufficiently studied. It is better to indicate the sheets of the case and the volume number where such evidence is located - this will be convenient for the collegium of second instance.
A request to investigate specific evidence can also be set out in a separate written motion on appeal. - It is necessary to indicate in the complaint whether the author wishes to participate in the judicial examination. Often, the participants in the proceedings do not seek to be present at the appeal proceedings and ask for the ruling to be sent to them by mail.
- At the end of the text, a signature and a number must be affixed.
The most important textual part of the appeal is the arguments about disagreement with the decision in the first judicial instance... It is unacceptable to assert unfoundedly about the illegality of the verdict - this way you can face a refusal to accept the complaint. It is imperative to indicate why you consider the result of the proceedings to be illegal, while focusing on the grounds on which the sentence or order can be overturned.
Grounds for Cancellation or Change of a Sentence
This is indicated in article 389.15 of the Criminal Procedure Code of the Russian Federation. Before writing a complaint, you need to study this rule. procedural law and compare the violations that are in the verdict or case with each of the grounds for canceling it (the list is exhaustive):
Inconsistency of the Court's Findings with the Factual Circumstances of the Case
This often means that the court made completely different conclusions compared to the indisputably established facts. For example, Filimonov A.R. provided the court with train tickets showing a trip in January 2020 to the city of Krasnodar. Despite this, the court indicated in the verdict about the presence of Filimonov on January 21, 2020 when the victim was beaten in the city of Simferopol, while there are no reasons why travel documents were not taken into account. Here, a reliable fact is distorted by the court, which means that there are grounds for cancellation.
In another interpretation, the inconsistency of the conclusions is sometimes expressed in the presence of contradictions in the court decision. Thus, the court is obliged to comprehensively examine the evidence presented by both the defense and the prosecution, and then draw its own conclusions about guilt or innocence. In some cases, in the text of the same judgment, the court refers to conflicting conclusions. This is also the basis for canceling the judgment.
Example... P.O. Ozerov was sentenced by the verdict of the Prigorodskiy District Court of Tambov for theft with entry into someone else's house. The court indicated that in the verdict: “…. the position of the defendant that he was not there on 20.04. Denisov, belonging to the victim, is refuted by the testimony of the witness AV Petrov. Further in the text, the judge indicated that the arguments of the public prosecutor that on 20.04.2020 Ozerov was on the street. Denisov, have not been confirmed by anything. In this case, there are significant contradictions, due to which it becomes incomprehensible to what, after all, the court came. This verdict was overturned by the appellate instance due to the inconsistency of the conclusions with the factual circumstances, which was expressed precisely in the presence of conflicting conclusions.
Substantial violation of the criminal procedure law
There are practically no criminal cases in which there is not a single violation of the Criminal Procedure Code committed by an investigator or interrogating officer (with rare exceptions). At the same time, not every violation of the criminal procedure law entails an acquittal. The Supreme Court directs the district courts to consider each piece of evidence for admissibility and relevance to the fact of a crime, and draw conclusions only on the basis of an analysis of all evidence. Sometimes the judges themselves violate the procedural procedure, which is considered a material violation of the law.
An example of an unconditional basis for canceling a judgment is:
- absence of the judge's signature in the minutes of the court session;
- failure to explain the rights of the convicted person;
- absence of a lawyer during interrogation at a court hearing, or refusal to request familiarization with the case materials;
- consideration of the case by a judge who has previously participated in the proceedings (for example, as a secretary or prosecutor);
- failure to provide the defendant with the last word.
This is not an exhaustive list of violations that are considered material. In each specific case, this issue is resolved individually.
Misapplication of the Criminal Law
We are talking about the wrong qualification of the deed or the wrong conclusion on the application of the general rule of the Criminal Code of the Russian Federation - for example:
- the recidivism of crimes was unreasonably taken into account when, in fact, its signs are absent (or vice versa, the recidivism was not taken into account if it was present);
- mitigating or aggravating circumstances are incorrectly identified;
- the rules for adding sentences for several crimes or for several decisions were incorrectly used;
- the type of colony is incorrectly defined, etc.
Circumstances indicating the need to return the case to the prosecutor
Such circumstances arise when the investigation committed such violations of the criminal procedure law, in the presence of which no decision can be made at all (neither acquittal, nor conviction, nor termination). For example, when a case is sent to the court, the indictment of which does not indicate the place, time, method of committing the unlawful act. In this case, it is clear from the materials that the crime was committed and there is evidence of guilt, but a decision cannot be made, because objective circumstances have not been established or are not reflected in the charge. The judge may return the case to the prosecutor even if the defendant does not receive a copy of the indictment.
Failure to meet conditions pre-trial agreement with the investigation
If the person under investigation agrees to cooperate with law enforcement and signs an agreement about this, he is obliged to expose other participants in the crime, help in disclosing the incident and in the discovery of material evidence. In return for this, the law allows the offender to be assigned no more than half of the maximum punishment provided for by the article of the Criminal Code of the Russian Federation. If the verdict is passed, but the appellate instance notices the failure to comply with the terms of the pre-trial agreement, it has the right to cancel the decision of the first instance.
Injustice of the verdict
This is the basis that is most often mentioned in the complaints of convicts. The Code of Criminal Procedure of the Russian Federation provides that the sentence can be changed or canceled if excessive severity is established. For example, when a person brought to justice for the first time is assigned a real imprisonment, or a juvenile convict is punished without taking into account special benefits etc.
In some cases, victims may appeal the sentence due to excessive leniency. This is also a ground for cancellation if the appeal reveals an unreasonable understatement of the term - for example, when unconfirmed extenuating circumstances, a non-existent illness of the accused, etc. were taken into account when imposing a sentence.
Samples of an appeal in a criminal case
We present to the reader's attention various options for samples:
Condemned complaint (most often filed)
To the judicial board
in the case of N.G. Morozov
APPEAL COMPLAINT
By the verdict of the Zavodskoy District Court of Arkhangelsk dated 04/12/2020, I was convicted under Part 2 of Art. 162 of the Criminal Code of the Russian Federation to 5 years of imprisonment in a penal colony with a strict regime.
From the very beginning of the investigation, I admitted my guilt in committing robbery, helped to identify and detain the rest of the members of our criminal group. At the hearing, I confirmed my grateful position, apologized to the victim, agreed to the claim and was ready to pay her the damage caused.
I do not agree with the verdict of the court, since all the above circumstances were not taken into account when imposing such a severe punishment on me. I also ask you to take into account that I have a heart disease (I am attaching medical documents), which was diagnosed after the verdict was announced. In addition, I am dependent on the elderly parents, whom I am in last years supported and helped around the house. They can't do it without me.
Based on the foregoing, guided by Art. 389.1 and 389.18 of the Code of Criminal Procedure of the Russian Federation,
The verdict of the Zavodskoy District Court of Arkhangelsk dated 04/12/2020 to change: to reduce the sentence imposed on me to 2 years in prison.
To consider the appeal in my presence and in the presence of my lawyer.
Convicted Morozov N.G.,
17.04.2020.
Victim appeal
Basically, people who have suffered from a crime are unhappy with the decision in part civil action or too mild, in their opinion, punishment for the guilty. Almost always, a complaint by the injured party is filed against an acquittal.
To the judicial board
on criminal cases of Voronezh
regional court
victim Nikolsky G.Oh.
in the case against Rodionov E.L.,
Mishina R.R.
APPEAL COMPLAINT
By the verdict of the Zarechensky District Court of Voronezh from 20.04.2020 Rodionov E.L. and Mishin R.R. convicted under Art. 158 of the Criminal Code of the Russian Federation to 2 years in prison, for attempted murder, these persons were acquitted for lack of corpus delicti.
I believe that the court's decision does not meet the requirements of legality, validity and fairness, as required by Article 297 of the Code of Criminal Procedure of the Russian Federation.
The court concluded that there were no signs of a crime under Art. 105 of the Criminal Code of the Russian Federation, contrary to the factual circumstances that were established by the investigation.
So, in the surrender of the convicted Rodionova E.L. indicated that he, together with Mishin R.R. had the intention of causing me death, that is, to kill me. From the testimony of the witness N.E. Matrosov. it follows that he heard how Rodionov and Mishin agreed to commit the murder. From the conversation it was clear that Rodionov would have to bring a hunting rifle to house 50 on the street on September 30, 2019. Spring, that is, to my place of residence.
Thus, the court, acquitting Rodionov and Mishin under Part 3 of Art. 30, part 1 of Art. 105 of the Criminal Code of the Russian Federation, did not take into account the factual data, made the wrong conclusions, thereby depriving me as a victim of the right to restore social justice and compensation for what I suffered moral harm as a result of a failed attempt on my life.
Based on the foregoing, guided by Art. 389.1, 389.16 of the Criminal Procedure Code of the Russian Federation
The verdict of the Zarechensky District Court of Voronezh of 20.04.2020 to cancel, the case to be sent for a new consideration to the same court in a different composition.
Please consider your complaint in my absence.
Nikolsky G.O.,
25.04.2020
Brief appeal
It happens that the participant in the process has not yet received a copy of the verdict, and the 10-day appeal period is already coming to an end. Yes, we have already written that it is possible to file a petition for its restoration, but this option is more suitable for those who find out about the trial by chance. If you control the term and see that it is about to expire, it is permissible to write a short appeal, without specifying the specific circumstances and facts, and after receiving a copy of the verdict, draw up an additional one. This way, you will not have to apply for the reinstatement of the 10-day period, as the complaint will be deemed to have been filed on time.
To the judicial board of the Samara Regional Court
BRIEF APPEAL COMPLAINT
I, Makarova Elena Viktorovna, am the legal representative of the convicted by the judgment of the Zavodskoy District Court of Samara from 25.04.2020 Makarov S.N. 161 of the Criminal Code of the Russian Federation.
I believe that the verdict does not meet the requirements of legality, validity and fairness, and must be canceled. The court committed significant violations of the criminal procedure law, the criminal law was incorrectly applied, the conclusions do not correspond to the factual circumstances of the case.
I undertake to submit the full text of the appeal after receiving a copy of the judgment.
E.V. Makarova, mother of a minor S.N. Makarova
After a copy of the judgment is received, you need to write an addendum to your short appeal. If no such additions are received, the court has the right to return the short version to the author without consideration.
To the judicial board of Samara
regional court
Legal representative of a minor
convicted Makarova S.N., born in 2002
ADDITIONAL APPEAL COMPLAINT
On 05/05/2020, I, Makarova Elena Viktorovna, the legal representative of the convicted Makarov S.N., filed a brief complaint about disagreement with the verdict of the Zavodskoy District Court of Samara on 04/25/2020.
I received a copy of the verdict on 05/07/2020. As a supplement, I would like to draw the attention of the panel of judges to the following violations of the law committed by the court of first instance.
In appointing punishment to the minor Makarov, the court did not take into account mitigating circumstances - his minority and full compensation for harm to the victim. In the case there is a receipt of the victim R.P. Nemov. that he was reimbursed for the cost of the stolen television, my son apologized to him and Nemov did not insist on severe punishment.
Thus, the verdict of the Zavodskoy District Court of Samara of 25.04.2020, which my son Makarov S.N., born in 2002, was sentenced to imprisonment in an educational colony, is unfair and does not correspond to the personality of the convicted person.
Based on the foregoing, guided by Art. 398.1, 389.18 of the Criminal Procedure Code of the Russian Federation
The verdict of the Zavodskoy District Court of Samara dated 25.04.2020 against Sergey Nikolaevich Makarov, born in 2002, to amend.
Apply the rules of Art. 73 of the Criminal Code of the Russian Federation, appoint a probationary period for the convicted person.
Please consider your complaint in my presence.
Makarova E.V., legal representative minor Makarova S.N.
An additional appeal can be filed at least 5 days before the scheduled review date. Otherwise, the addition is ignored by the judicial board. In addition, grounds that were not written in the brief complaint cannot be included in the addendum. Therefore, in the original text, you must immediately indicate all the grounds for cancellation (we wrote about them above), so as not to be faced with a return of the complaint.
Objections
By analogy with civil proceedings, where the opposite party almost always responds to the claim in writing, each participant in the criminal process has the right to file objections to the appeal.
In essence, this is a disagreement with the appeal. The criminal procedure legislation does not provide for strict rules for filing objections. The right to object is enshrined in Art. 389.7 of the Criminal Procedure Code of the Russian Federation. Objections can be filed at any time before the consideration of the case on appeal. If, for example, you forgot to indicate something in the first objections, you can submit additional ones, and their number is not stipulated by law.
The text itself is compiled in free form. The main thing is that it is clear what you are writing about and what case and sentence your opinion relates to. Sample:
To the judicial board
Arkhangelsk Regional Court
in the case of N.G. Morozov
OBJECTIONS TO
APPEAL COMPLAINT
convicted Morozova N.G. in the order of art. 389.7
By the verdict of the Zavodskoy District Court of Arkhangelsk dated 12.04.2020 Morozov N.G. convicted under Part 2 of Art. 162 of the Criminal Code of the Russian Federation to 5 years of imprisonment in a penal colony with a strict regime.
In his appeal, the convicted person writes that he admitted guilt and contributed to the disclosure of the crime, he apologized to me as a victim. In addition, Morozov wrote about his state of health and asks to reduce the sentence to 2 years in prison.
With the arguments of the convicted Morozov N.G. I disagree. First, no apologies for N.G. Morozov. didn’t bring it to me. Moreover, during the trial I received threatening calls on my cell phone in order to change my testimony. I believe that N.G. Morozov was the initiator of these anonymous calls.
Secondly, I was not reimbursed material damage: the convict did not inform the investigation where the property stolen from me was located, therefore, no contribution to the investigation on the part of N.G. Morozov. did not have.
Thirdly, Morozov N.G. - dangerous criminal, who had been repeatedly convicted of mercenary crimes, including robbery. During the robbery, he behaved aggressively, I really feared for my life. I believe that such persons as Morozov should be assigned long term imprisonment.
I completely agree with the verdict and believe that there are no grounds for reducing Morozov's punishment.
Based on the foregoing, guided by Article 389.7 of the Code of Criminal Procedure of the Russian Federation,
The verdict of the Zavodskoy District Court of Arkhangelsk of 12.04.2020 shall be left unchanged, the appeal of the convict N.G. Morozov. - without satisfaction.
Victim P.R. Morozova,
25.04.2020.
To file an objection, you need to know what the other party to the proceedings is writing about in their complaint. A copy of it must be served by the court before the case is sent to the judicial board of a higher instance. If, for some reason, a copy of the complaint was not served, you must contact the assistant or secretary of the sentencing judge.
Procedure for considering an appeal
The main rules for considering a case in the second instance are as follows:
- If the appeal is ordered by the district court (for example, when the decision of the magistrate is appealed), then the hearing of the second instance begins no later than 15 days from the moment the criminal case is received by the office.
If the appeal is ordered in the regional or regional court, then no later than 30 days (in the Supreme - 45 days). Within this period, you can submit a withdrawal of the appeal if the opinion of its author has changed and for some reason he changed his mind to reconsider the verdict. - How long does an appeal take? It is assumed that the decision of the second instance will be made on the appointed day. At the same time, in some cases, if additional investigation of the case materials is necessary, with a valid reason for the failure of the participant who insisted on his presence, the case may be postponed to another date, within a two-week period. the day of receipt of the material in the office of the regional court.
- When scheduling a meeting, the court of appeal must notify all participants at least 7 days before the date of the meeting. Convicts held in a pre-trial detention center can participate in the examination through conference calls - that is, in fact, they are not taken to the hall court session.
- The court session is always attended by the public prosecutor, defense lawyer, and the legal representative of the convicted minor. The convicted person and the victim participate in the presence of a request for their presence. In some cases, the court may recognize the participation of the convicted person as compulsory (most often it happens), regardless of whether such a request has been made.
- At the beginning of the court session, the secretary announces who has appeared. The judge reports what case is being considered and whose complaint was received, who brought objections.
- In the appeal, you can submit petitions and statements. For example, about the study of certain evidence, the minutes of the court session of the initial proceedings, etc.
- The court hears the opinion of the parties in the case, which usually coincides with the content of their complaints or objections. You can withdraw your complaint at any time until the judge (or the panel of judges, if it is a regional court) is removed to the deliberation room. This can be done orally - then the statement will be recorded in the protocol. In case of refusal, the proceedings are terminated unless there are other complaints.
- After examining the case materials and other evidence, the court proposes to proceed to the debate, that is, to the final statements regarding the decision of the first instance court. The first person to speak is the one who appealed the verdict. At the end, the convict is given the last word.
- The court retires to the deliberation room, after a while (from several minutes to several hours) returns, announces the decision, which:
- the verdict can be completely or partially canceled, the case is sent for a new trial (in some cases, the case can be sent to the prosecutor to remove obstacles to consideration);
- the sentence was canceled and a new sentence was passed;
- the verdict was upheld.
On the day of the announcement, the appeal decision comes into legal force. From this time on, the verdict can be appealed again, but on cassation.