nazarov-a-d_disser

243

Russian criminal trial of January 1, 2013 at a revision of criminal cases in which the judgment is not yet in force, using the appeals procedures as well as the audit in cases where the judgment has entered into force, it applies the cassation and supervisory procedures.

Revision procedures are designed to detect, correct and prevent the mistakes of the previous stages of criminal proceedings – in that their value and basic purpose.

In our opinion, the revision process in the Russian criminal trial is special. If the classical continental sentences revision system provides appeal, cassation and newly discovered facts, and in the Anglo-Saxon – only an appeal and the jury verdict did not appealed (aka ‘voice of the people’), the ‘mixed’ Russian model of criminal proceedings review of the sentence is the maximum set of ‘filters’ to identify, correct and prevent miscarriages of justice: appeal, cassation, and supervision of new or newly discovered evidence.

It is to be noted that when the audit authorities change the type and size of the assigned punishment to the guilty party, it should be recognized as a significant error In our opinion, only those cases when rules of destination contrary to a court sentence imposed punishment too mild or too severe a punishment. In all other cases, the change by a higher court the type and size of the punishment is only formally a mistake of the first instance court (a higher court because ultimately changed the sentence imposed), but, in fact, in this situation, each of the judges in determining the type and size of the punishment was guided by law and his inner conviction that due to various internal and external factors prompted his ‘point’ punishment, recorded in each of the judicial decisions.

The appeal mechanism involves a continuous revision (revision) of the criminal case: when necessary – a complete holding of the trial; mandatory – the debate, the last word of the accused.

Revision in cassation and supervision is essentially documentary: investigated the criminal case and the arguments of the cassation, supervisory complaints and representations. Outwardly, it seems that the effect of the appeal, and, even more supervision, is insignificant. But it should be noted that the legislator, in our opinion, is trying to ensure that the verdict of the first instance court in most cases was unmistakable – a legitimate, reasonable, reasoned and fair; to the bulk of the errors identified and corrected on appeal, when the sentence has not yet entered into force. The legislator is concerned about the stability of the sentence. Prior to 2015, for a period of time even there was a rule that restricted the terms of cassation and supervisory complaints by one year.

The reform constantly supports the emergence of new appeal procedure, the cassation and supervision associated with the need to relieve the higher courts, especially the Supreme Court, from the inordinate number of complaints about judicial decisions in criminal cases. Indeed, the higher courts should focus on judicial review, related to the synthesis and regulation of judicial

244

practice, elaboration of judicial policy is definitely correlated with the criminal policy and, in general, the legal policy of the state.

Disagreement of parties with the decision rendered by a court of the first instance in the criminal case causes them to repeatedly appeal the decisions and judgments in audit instance: appeal, cassation, supervisory. Moreover, not only the decisions of the judicial stage, but the courts' decisions adopted at the pre–trial stages. On this occasion, quite categorical position held Y.K. Y: there should be no ‘judicial control over the judicial control’, in addition to the decisions on detention and extension of detention493.

One of the reasons for complaints on judicial decisions is, in our opinion, is that the courts, declaring them not intelligibly explain to the accused, the victims and the motives are made judgments and sentences494. Of course, it is important that the text of the verdict was clear to all parties, especially not a lawyer, a detailed reasoned and motivated, persuasive. In addition, and proclaimed properly (so that all participants hear comfortably text on the volume and rate of reading it). But the oral explanation the meaning of the sentence is perceived by ordinary people is always user friendly and more reasonable.

Another reason to appeal court decisions in various stages is the hope of the parties, primarily convict, on the identification and correction of errors by a higher court, especially in the amount of charges, qualification actions and the amount of the penalty imposed. Moreover, it should be noted that such expectations are often not convicted, but true: the higher courts recognize and deal with errors of lower courts.

In 2015 there were reviewed 129,331 cases or 13.81% of all cases handled by the courts of the first instance. Appellate court canceled:

–309 convictions courts of first instance and rendered acquittals (0.24% of the reviewed on appeal of criminal cases);

–4127 court decision and sent the criminal case for a new trial in the court of first instance (3, 19% considered on appeal of criminal cases), including – 86 decisions in view of excessive leniency of the sentence (0.07%);

493Yakimovich Y.K. Revision of sentences and other judicial acts in criminal cases by the court of the second instance / Legal problems of strengthening Russian statehood: Coll. Articles / Ed. M.K. Sviridov. Tomsk:, 2005. CH.29. P.164–

494Author of the study in 2001 – 2016's was participating in the scientific internships in Germany and visited 18 court proceedings in criminal cases to find the following: the court, as a rule, in the final examination of the case declares a resolution, and then invited all participants to sit down, for a long time (sometimes even longer than the trial itself on the merits) in his own words lucidly explains the parties why he used this or that evidence as the basis for the sentence, why he rejected some evidence or treated them critically, to what extent and why he has taken into account the position of the prosecutor and the defense lawyer, and others. When you consider that in Germany, as in many other European countries, the criminal policy is aimed at the adoption of humane solutions to the defendants, after listening to the judge’s ‘lectures on law’ the convicted are unlikely to burden the court with unnecessary complaints. As we were told by the German judges, their decisions on criminal cases are appealed against in approximately 5–7% of cases.

245

– 656 decisions and returned the criminal case to the prosecutor for the removal of obstacles to their examination (0.51% of the reviewed on appeal of criminal cases);

–500 decisions and cease criminal cases mean reconciliation, active repentance of the defendant (0.39% of the reviewed on appeal of criminal cases);

–103 decisions and terminate criminal proceedings on other grounds (0, 08% of the reviewed on appeal of criminal cases);

–665 decisions and cease criminal cases on other grounds (0.51% of the reviewed on appeal of criminal cases);

–105 decisions and cease criminal cases regarding charges (0.08% by considered on appeal of criminal cases) – 1329 and made a new decision convictions (1.03% of the reviewed on appeal of criminal cases).

Appellate courts changed:

–300 decisions (0.23% of the reviewed on appeal criminal cases) with the change in the qualification actions and without reducing the penalty – 2204 solution (1.70% of the reviewed on appeal of criminal cases) with the change in the qualification actions and leniency – 167 decisions (0.13% of the reviewed on appeal criminal cases) with the change in the qualification actions and increased penalties;

–11 907 decisions (9.21% of the reviewed on appeal of criminal cases) without changing the qualification actions and leniency – 2412 decision (1.86% of the reviewed on appeal criminal cases) without changing the qualification actions and increased penalties495.

The statistics above do not fully reflect the significant activity of the court and the trial participants (especially when considering the appeal in the district, city and equated, courts of final decisions rendered by justices of the peace), which seen them in a court session, particularly during the trial, when to challenge and petition, again studied the evidence, eliminated one of them illegal, are involved in the new evidence proving process provides an objective assessment of each proof individually and collectively, are eliminated violations of the Constitution, the generally accepted norms of international law and procedural irregularities, changes and clarifies the criminal law of the defendant incriminated socially dangerous act, the issue of the validity of the sentence imposed in the first place, it is too soft or excessive severity and dr.

The judicial reform of the 90s revived the magistrates’ justice in Russia496. For the revision of decisions of magistrates in criminal proceedings for an appeal in the federal court district (city) was introduced.

495Appendix № 26, 27, 29, 30.

496Voskobitova L.A. Judicial power: origin, evolution and typology: Textbook. Stavropol, 2001. P.115–125; Voskobitova L.A. Essential characteristics of the judiciary. Stavropol, 2003. P.44–64; Voskobitova L.A. The global justice and restorative justice: theory and practice of development: 2007. 334 p.

246

It should be noted that such appeal proceedings favorably differed and differs from the appeal and supervision procedures, represents and continues to represent, as we have noted above, a conveyor, ‘five-minute’ review of criminal cases. The appeal proceedings before the District Court, as a rule, are measured: examines the evidence, including those which have not been the subject of research in the first instance, the parties argue various motions qualitatively pass debates, etc. The Court of Appeal at a pace and approach can take. A more informed decision, including the previous one in any direction (improvement or deterioration of the convict) solution497.

It should be noted that prior to January 1, 2013, the appeal procedure applied only to decisions of magistrates, as well as on the interim solution of all courts of first instance, but still continued to operate ‘Soviet’ cassation and supervisory procedures. As noted already above, from 1 January 2013, in Russia there is a new revision procedure in criminal cases: an appeal – in all criminal cases and interim decisions, consideration and adoption by the courts of first instance; cassation and supervision – by judicial decisions which have entered into legal force.

Pursuant to the legal position of the Constitutional Court of the Russian Federation, the errors made by the court of the first instance, are to be corrected by the court of the second instance in the proceedings, closest to the proceedings before the Court of the First Instance498.

Certainly, it is a brand new approach to the revision. In Germany, there are appeal and cassation, but this procedure in cases in which judicial decisions (especially sentences), not yet in force. However, the German criminal trial does not know supervisory procedures499. At first glance, it's hard to tell which process has advantages. Though logically, the presence of another, in addition to the appeal and cassation instance in the form of the revision is an additional barrier to unjust decisions and errors in the administration of criminal justice. From a theoretical and practical point of view, and the old and new procedures for auditing matters should strategically work on detection, correction and prevention of errors in criminal cases on the adoption of the law (rightly), sound (motivated) and fair decisions.

Scientists-processualists I.L. Petruhin, G.P. Baturov, T.G. Morschakova in Soviet times stressed that ‘... the revocation, judicial review and the review of cases of newly discovered facts, taken together, represent the education system, united by common goals, chief among them – the

497Sidorova N.V. The appeal in the court of the second instance in criminal trial of Russia. Tomsk, 2006.

498Decision of the Constitutional Court of the Russian Federation in the case on the constitutionality of the provisions of Articles 237, 413 and 418 of the Criminal Procedure Code of the Russian Federation in connection with the request of the Presidium of the Kurgan Regional Court: of 16.05.2007 № 6–P // [Electronic resource] // the Website of the Constitutional Court of the Russian Federation. Electron. Da. Systems. Requirements: Adobe Acrobat Reader. URL: http://doc.ksrf.ru/decision/KSRFDecision19708.pdf (reference date 02/06/2017).

499Shredder F-K., [et. al] P.214, 221–233.

248

and the rehabilitation of the innocent. But at the same time they pay attention to the fact that there are such links, which are not sufficiently effective (in particular the stage are brought to justice, newly discovered facts) in this system, and that only 8–10% of judicial errors are corrected through the prosecutor501.

A.S. Chervotkina states: ‘In any kind of activity impossible to avoid mistakes and errors. Is no exception and the activities of the review of criminal cases in the course of which the first– instance courts make mistakes not only in establishing the facts of the case, but also in the application of certain rules of substantive or procedural law. Meanwhile, the verification of the legality, validity and fairness of court decisions by higher courts is carried out not only to identify the mistakes made in the consideration and resolution of the case, but also to take appropriate measures to address them, including through the provision of superior courts of the authority to revise judgments.

Identification and elimination of mistakes made during the preliminary investigation and the judicial proceedings in the courts of first or second instance, aimed not only at restoring the violated rights of the persons involved in the process, but also to eliminate violations of the rules that define the shape of procedural justice. It would seem that any deviation from the procedural law was the reason for the appeal. But the absolute understanding of the situation would lead to instability at the first instance court verdicts. judicial rules so numerous that no court can not be sure of the exact observance of them all ‘approach to understanding’502.

The violations of the law during the collection, verification and evaluation of evidence demonstrated by the Supreme Court of the Russian Federation. The decision of the Supreme Court of the Russian Federation of December 23, 2008 N 28 ‘On the application of the norms of the Criminal Procedure Code of the Russian Federation regulating the production of the courts of appeal and cassation instances,’ he said:. ‘In accordance with the provisions of Part 2 of Art. 360 of Code of Criminal Procedure, in conjunction with the provisions of Art. 6 of Code of Criminal Procedure, the courts of appeal and cassation instances have the right to go beyond the appeal (cassation) complaint or application to check the criminal proceedings in full, if it will not be tolerated situation of the convicted deterioration, acquitted person, the criminal case in respect of which terminated as failure to correct a miscarriage of justice would distort the very essence of justice and the meaning of the sentence as an act of justice’.

501On the above findings and conclusions see: Petruhin I.L. Theoretical basis of the effectiveness of justice. P.215– 216; 249.

502Chervotkina A.S. Appeal and cassation: A Handbook for Judges. M., 2010. P. 24, 25, 46.

249

In the judgment №8–P503 in 2014 the Constitutional Court re-emphasizes the important conceptual provisions relating to the audit activities of courts of general jurisdiction to identify, rectify and prevent errors; ‘Revealing the constitutional content of the right to judicial protection, the Constitutional Court concluded that in the judicial protection of the rights and freedoms may appeal in court the decisions and actions (inaction) of any state bodies, including the judiciary, and therefore no opportunity to review an erroneous judicial act is not consistent with the universal requirement of effective redress through the justice that meets the criteria of fairness, diminish and restrict this right (judgment of 2 February 1996 №4–II, from February 3, 1998 №5–II, from

February 5, 2007 №2 –P, etc.’; ‘... based on the fact that the right to a fair hearing within a reasonable time by an independent and impartial tribunal implies finality and stability of judicial decisions which have entered into force, and their implementation, the main burden of reviewing the decisions of the trial court should be borne the usual (ordinary) courts, which obliges the government to create the necessary conditions for effective and fair trial of the criminal case is in the court of first instance, which are subject to the resolution of all essential to define the rights and obligations of the parties questions, and to amend admitted by the first error instance the court of second instance (currently – appeal) in the procedures, the most close to the proceedings before the court of first instance (judgment of November 17, 2005 №11–P, on February 5, 2007 №2–P and dated April 21, 2010 № 10–P)’; additional procedural verification mechanism came into judicial decisions (cassation, supervision) ‘... means, in essence, the ability to overcome the finality of judicial decisions which have entered into force’, and, ‘taking into account the constitutional and international legal requirement of finality and stability of judicial decisions, should establish such institutional and procedural conditions for their review, which, having a backup value would exclude the possibility of unjustified resumption of the trial and were used only in cases where the error in the previous proceedings, determined the outcome of the case’; ‘To introduce additional procedural mechanisms of verification of an enforceable court decision is not intended to provide a person unlimited possibilities to demand its revision, including through repeated consideration of the criminal case before the courts of one (appeal) court, including different in the level of courts competent to hear cases on appeal, as well as the selection method at its own discretion and judicial review procedures – they are set on the basis of the Constitution and its articles 46, 123 and 128, the federal law. Another would involve increasing the number of unfounded cassation instance, would be inconsistent with the principle of legal certainty and the destination appeal proceedings

503 The ruling of the Constitutional Court of the RF On the case on the constitutionality of certain provisions of Articles 4013, 4015, 4018 and 40117 of the Criminal Procedure Code of the Russian Federation in connection with the complaints of citizens S.S. Agayev A.Ş. Bakayan et al of 25 March 2014 the №8–P // [Electronic resource] // Website of the Constitutional Court of the Russian Federation. Electron. Da. Systems. Requirements: Adobe Acrobat Reader. URL: http://doc.ksrf.ru/decision/KSRFDecision156350.pdf (reference date 03/06/2016).

250

as an additional means of ensuring rightly judgments ‘Referring stated in the same ruling of the Constitutional Court of the Russian Federation,’ a similar position is held by the European Court of Human Rights, believing that departing from the principle of legal certainty, on which is based the article 6 of the Convention for the protection of human rights and fundamental freedoms, and that as a general rule, claims irrefutable final judgment can be justified only by circumstances of a substantial and compelling character, such as the need to address the fundamental error (judgment of October 28, 1999 in the case of ‘Brumarescu against Romania’, dated 24 July 2003 and the case of ‘Ryabykh against Russia’ of 18 January 2007 in the case ‘Kat against Russia’ and 31 July 2008 in the case of ‘Protsenko against Russia ‘). Possibility of re-examination of the criminal case in which he has already been finally acquitted or convicted, is permitted, under

Article 4 of Protocol №7 for the Protection of Human Rights and Fundamental Freedoms, the

Convention, if there is evidence of new or newly discovered facts, or if in the previous proceedings It has been a fundamental defect that affected the outcome of the case ‘.

The modern appeal, cassation and supervising the production for various reasons may not provide identification and elimination of errors allowed by the courts (especially when you consider that not all criminal cases are stage data).

Over ten year legal experience of the author of the study demonstrates that the procedure of criminal cases in order of appeal and cassation recalls ‘assembly line’: on certain days (generally two days a week) and at the same time the court is open to all interested stakeholders on a variety of different criminal cases and materials; on consideration of the case (the material) is given a minimum of time – presiding constantly urges all participants in the process, interrupt their performances, etc.; to discuss the final decision the court takes time from several minutes to several tens of minutes; it is announced only the operative part of the decision; etc.

The study of issues of appeal and cassation proceedings engaged and continue to engage many scientists504. This offers a variety of options for improving these revision procedures.

504 See : Perlov I.D. The appeal proceedings in Soviet criminal trial. M., 1968; Temushkin O.P. Organizational-legal forms of verification of legality and validity of sentences. M., 1978; Aleksandrov A.S., Kovtun N.N. Grounds for cancellation (change) sentence in the court of appeal // State and Law. 2001. № 10. P. 58; Diener A.A. Appeal proceedings in the Russian criminal trial: scientific–practical conference. Study guide /Ed. L.F. Martynyahin. M., 2003.; Ryabinin T.K., On the question of the concept of reason to cancel or change the judgment on appeal / justice issues in criminal cases in modern Russia: Theory and Practice: collection of scientific articles/ Ch. Ed. T.K. Ryabinin, A.A. Kovyazin; Kursk, 2007; Poznyakov M.L. Criticism of the theoretical positions of the grounds for the cancellation of sentences in connection with the new circumstances in the court of cassation // Current and future development of legal science: Mater. Intern. scientific–practical. conf. Izhevsk, 2006 Part 2. P.178–179; Bryanskiy V.Y. Proceedings on appeal in criminal proceedings: Ab. Dis. for Cand. Jurid. Sciences: M., 2006; Smirnov A.V. The reform of the order of review of judicial decisions in criminal matters: the appeal. [Electronic resource] // Access of reference and legal ‘ConsultantPlus’ system (reference date: 5/19/2013); Chervotkina A.S. Appeal and cassation …; Komogortseva K.A. Criminal cases on appeal in criminal procedural legislation of the Russian Federation. Diss. for Cand. Jurid. Sciences. M., 2013; Solovyeva N.A. Legal and actual verification of the judgment on appeal: M., 2013; Kudryavtseva A.V. Appeal proceedings in the criminal trial of Russia: M., 2013; Geghova D.H. The appeal proceedings in the Russian criminal trial: the genesis and development prospects. Diss. for Cand. Jurid. Sciences. M., 2016.

251

M.T. Ashirbekova believes that the judicial inquiry into the appeal proceedings must be

‘full–scale’, i.e., without any exceptions, because the object of production is not only the verdict and all criminal proceedings505. According to the scientist, ‘it is clear that the new evidence that was not and could not have been in the field of view of the court of first instance, it is able to change the picture of the actual circumstances of the case’506.

According to A.N. Razinkina, the parties petition to call at the hearing witnesses questioned before the Court of First Instance, must be satisfied in all cases, in order to provide the parties the right to participate in the examination of evidence (ask the witness questions, give explanations, etc.). Witness testimony only according to the protocol of the trial may affect the completeness of the trial and, ultimately, on the legality, validity and fairness of judgment’507.

Our approach to the model of the modern appeal is built in the context of the position L.V. Golovko, ‘Rule on the right side in the two instances of the criminal proceedings (or the right to a retrial of the criminal case in the second instance, including the right to re–trial investigation).’

Therefore, according to L.V. Golovko, there may not be incomplete appeal – it is always complete. In addition, it is an ordinary (for any reason), in contrast to the appeal, and supervision of new or newly discovered facts: they are – extraordinary (only on points of law) means a review of sentences. The appeal, in contrast to other methods of review of sentences has suspended the effect of the revision, when filing a complaint suspends the execution of the sentence. Moreover, it is important to bear in mind the situation and evocation of the theory: when procedurally flawed decision of the Court of the First Instance, the two merge instance and the appeal hearing the case on the merits, without sending it to a new trial508.

Thus, the model of appeal of the criminal proceedings as an effective ‘filter’ detection, correction and prevention of miscarriages of justice in a criminal case in our view should be devoid of any ‘appeal slope’: appeal certainly can not be a conveyor, and should be effective ‘model of a full appeal,’ that is, a new examination of the criminal case on the merits by a higher court and collectively (except for appeals on decisions of the magistrates and the interlocutory appeal) that, in fact, more professional. Accordingly, in this model, the appeal is important to fix the following components:

505Ashirbekova M.T. The principle of publicity of court proceedings in criminal cases: a monograph / Volgograd, 2008. P. 158.

506Ashirbekova MT New evidence in the appellate court // Russian justice. 2013. № 5. P. 22.

507Razinkina A.N. Appeal in criminal proceedings. M., 2004, p.128–129.

508Golovko L.V. The course of criminal proceedings. P.1058-1067. It should be noted that L.V. Golovko in his research speaks on the functioning of special courts of appeal. The Supreme Court of the RF has already announced the initiative on the establishment of district courts of appeal following the example of arbitral ones. The author of this study did not study this idea, although it does not rule out some positive effect in the context of elimination of miscarriages of justice: a specialized court is always more effective in the review of the judgment of a court with which it is not related through any administrative and corporate interest.

252

–all presented in court by the parties of criminal proceedings witnesses should be questioned in court;

–all written submissions of the parties should be attached to the case file and motivated, legally and equitably resolved without findings of this petition was necessary to declare in a court of first instance (Why did not you declare the petition in the court of first instance?); ‘This petition is already allowed by the court of first instance’ (or ‘data evidence has already been studied in the trial court’)509.

‘Comprehensive appeal model’ makes the trial court complete, comprehensively and objectively conduct the proceedings in a criminal case, to avoid miscarriages of justice and temptation the parties to reach a new, definitely expensive ‘double-trial’ on appeal (literal repetition of the trial). And if you still ‘double process’, the appeal goes through, it will not be a conveyor, and complete the process, which is intended to ensure the elimination of judicial errors. The issues of proceedings in the supervisory instance were addressed by V.P. Maslov510, I.D. Perlov511, I.I. Poteruzha512, V.A. Davydov513, I.S. Dikarev514, M.V. Merzlyakova515 and A.D. Proshlyakov516, etc.

Specifically, I.S. Dikarev believes that ‘the courts of cassation and supervising instances is a single – supervisory appeal – a form of revision entered into legal force of court decisions, which combines features of the traditional Russian criminal process of judicial review and classical European (continental) appeal’, designed to correct the judicial error. Scientist rightly proposes to increase the terms of office of the President of the Supreme Court and his deputies, chairmen of the courts and the Federation level of substituents on the abolition of illegal and unreasonable decisions of the appropriate level of judges made by them in the exercise of supervisory and appeal activity, as well as part of its own motion initiate supervisory–appeal proceedings where necessary; to establish a six–month period of application of the rule ‘turn prohibition for the worst,’ free from the obligation to return the criminal case to the prosecutor on the grounds provided ch.1.2 claim 1 st.237 Code of Criminal Procedure, as well as the right to judges investigating cassation and supervising the application, request the necessary material and criminal case.

509Such examples has been observed by the author of the study as a lawyer taking part in the appeal.

510Maslov V.P. Review of criminal cases per supervision. M., 1965. P. 47.

511Perlov I.D. Supervisory procedure in criminal proceedings. M., , 1974, p. 147.

512Poteruzha I.I. Meaning of supervisory review of criminal cases in the strengthening of legitimacy / Sc. ed. V.I. Semenkov. Minsk, 1985. P. 110.

513Davydov V.A. Proceedings in the supervisory authority. The practice of the Criminal Procedure Code of the Russian Federation: guide / Ed. V.P. Verina. M., 2006.

514Dikarev I.S. Preliminary proceedings in the court of the supervisory instance. – M., 2010; Dikarev I.S. Problems of the theory and practice in the supervisory instance court in criminal cases. M., 2012.

515Merzlyakova M.V. The revision of verdicts, rulings and orders entered into force per supervision. M., 2011.

516Dikarev I.S. Supervisory-cassation review of judicial decisions in criminal proceedings: theoretical bases and ways to improve. Diss. for Cand. Jurid. Sciences: Volgograd, 2016. P.15.