How to appeal a sentence passed in a special manner
Home Press center How to appeal a sentence passed in a special manner
Over 60% of criminal cases are considered in courts in the so-called “special procedure” (Chapter 40 of the Code of Criminal Procedure of the Russian Federation) - without examining the evidence and challenging the correctness of the charges brought. According to Part 7 of Art. 316 of the Code of Criminal Procedure of the Russian Federation, the punishment imposed when considering a case in a special manner cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed. In practice, there are cases where the accused, having chosen a special procedure, actually received a more lenient punishment than they could have received when considering the same case in a general procedure. There are also the opposite situations: when the punishment imposed is the same as when considering similar cases in the general manner (or even more severe than the average for similar cases, all other things being equal). There are also examples of how a special procedure was chosen by those whose accusation was based on poorly collected evidence, or by those who were charged with a more serious crime than the evidence indicated.
As a rule, the accused believed investigators who said that the court would “give probation” or impose a fine. But the punishment is determined by the court, not the investigator. And the court is not bound, when assigning punishment, either by the “promises” of the investigator to the accused, or by the position of the state prosecutor. Formally, when imposing a punishment when considering a case in a special manner, the court is bound only by the requirement of the law not to impose the most severe punishment in excess of 2/3 of the maximum amount specified in the sanction 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 2 of the Criminal Code of the Russian Federation). 1 Article 62 of the Criminal Code of the Russian Federation).
The realization that the imposed punishment is too severe or even imposed for episodes unsupported by evidence occurs after the verdict. But appealing against a sentence passed in a special manner has one peculiarity: it cannot be challenged on factual grounds (“didn’t beat”, “didn’t take”, “the witness couldn’t 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 violations committed when imposing the punishment. Most often this is true. However, there remain cases in which the charge admitted by the accused and used as the basis for the verdict was not supported by sufficient evidence or was imputed “with reserve”. In such cases, there is a chance to cancel or change the sentence imposed in a special manner on procedural grounds. It is impossible to give general recommendations here, since the preparation of appeals and cassation complaints against such sentences requires an individual approach to the study of a particular case and a search in its materials for procedural violations or discrepancies between the imputed crime and the evidence (“overqualification”). You can realize this chance either by knowing judicial practice and being able to briefly, succinctly, and professionally describe really strong arguments in a complaint, or by using the help of a lawyer who specializes in appealing verdicts.
If you need the help of a lawyer in criminal, family, or civil law, you can call 8-910-188-73-21 or write by email or telegram.
8-910-188-73-21 all methods of communication
Changing the application of a special procedure for making a judicial decision in criminal proceedings.
On July 20, 2020, Federal Law No. 224-FZ dated July 20, 2020 was published, in accordance with which amendments were made to Articles 314 and 316 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) regarding the application of a special procedure for judicial proceedings in a criminal case with consent the accused with the charge brought against him.
Currently, a special procedure can only be applied in criminal cases involving crimes of minor or medium gravity. To do this, the accused has the right to declare his agreement with the charge brought against him and petition for a verdict without holding a trial in the general manner.
The essence of the special order is that the accused pleads guilty to committing a crime.
In this case, the court does not consider the case on its merits, and evidence of the person’s guilt is not examined.
In fact, the amount of punishment, which when considering a case in a special order cannot be more than 2/3 of the maximum punishment, is influenced by characterizing data about the personality of the accused.
Until this moment, a special procedure could be applied in criminal cases, the maximum punishment for which does not exceed 10 years of imprisonment for intentional crimes.
With the entry into force of No. 224-FZ of July 20, 2020, the number of categories of crimes for which a special procedure can be applied has significantly decreased.
The legislator took the path of tightening the application of this procedure, prohibiting its use for serious crimes.
Justifying the changes being made, the legislator explained that the investigation of serious crimes is particularly difficult; therefore, the use of a special order in this category of cases, in the opinion of the RF Armed Forces, will not be able to provide a high degree of procedural guarantees of fair justice.
“It is possible to provide such guarantees only when considering a case in the general procedure of judicial proceedings under the conditions of the principle of immediacy and oral examination of evidence at a court hearing” is indicated in the explanatory note to the adopted law.
Thus, a large number of defendants were deprived of the opportunity to reduce their sentences by 1/3 of the maximum by applying a special procedure for serious crimes.
Their admission of guilt in itself does not guarantee a reduction in the sentence.
Thus, the Code of Criminal Procedure of the Russian Federation enshrines a differentiated approach to this issue - for crimes of minor and medium gravity, admission of guilt and consent to a special procedure is a guarantee for mitigation of the maximum punishment; for serious crimes there is no such guarantee anymore.
As an example, Art. 199 of the Criminal Code of the Russian Federation - evasion of taxes, fees payable by an organization, and (or) insurance premiums payable by an organization paying insurance premiums.
Part one of this article provides that when committing a crime on a large scale, which is set at more than 15 million rubles, the maximum punishment is provided in the form of imprisonment for up to two years.
Part two of the same article provides for the commission of a crime by a group of persons by prior conspiracy and/or on an especially large scale, exceeding 40 million rubles, and sets a maximum penalty of 6 years of imprisonment.
Thus, for the same crime, the possibility of applying a special procedure depends on the amount of established damage.
Section X. SPECIAL PROCEEDINGS
RUSSIAN FEDERATION
CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION
PART THREE. JUDICIAL PROCEEDINGS
Section X. SPECIAL PROCEEDINGS
On the application by courts of a special procedure for the trial of criminal cases, see Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 5, 2006 N 60.
Chapter 40. SPECIAL PROCEDURE FOR MAKING A COURT DECISION
WHEN THE ACCUSED AGREES WITH THE CHARGES PICKED UP ON HIM
Article 314. Grounds for applying a special procedure for making a court decision
1. The accused has the right, with the consent of the public or private prosecutor and the victim, to declare agreement with the charge brought against him and to petition for a verdict without a trial in criminal cases for crimes for which the punishment, provided for by the Criminal Code of the Russian Federation, does not exceed 10 years of imprisonment freedom.
(as amended by Federal Law dated July 4, 2003 N 92-FZ)
2. In the case provided for in part one of this article, the court has the right to pronounce a sentence without conducting a trial in the general manner, if it is satisfied that:
1) the accused is aware of the nature and consequences of his petition;
2) the petition was submitted voluntarily and after consultation with the defense lawyer.
3. If the court determines that the conditions provided for in parts one and two of this article, under which the accused filed a motion, are not met, then it decides to schedule a trial in the general manner.
4. If the public or private prosecutor and (or) the victim objects to the petition filed by the accused, then the criminal case is considered in accordance with the general procedure.
Article 315. Procedure for filing a petition
1. The accused makes a request for a sentence without a trial in connection with the agreement with the charge brought in the presence of a defense lawyer. If the defense attorney is not invited by the defendant himself, his legal representative, or other persons on their behalf, then the participation of the defense attorney in this case must be ensured by the court.
2. The accused has the right to file a petition:
1) at the time of familiarization with the materials of the criminal case, about which a corresponding entry is made in the protocol of familiarization with the materials of the criminal case in accordance with part two of Article 218 of this Code;
2) at a preliminary hearing, when it is mandatory in accordance with Article 229 of this Code.
Article 316. Procedure for holding a court hearing and passing a verdict
(as amended by Federal Law dated July 4, 2003 N 92-FZ)
1. A court hearing at the request of the defendant to pronounce a sentence without a trial in connection with agreement with the charge brought is held in the manner established by Chapters 35, 36, 38 and 39 of this Code, taking into account the requirements of this article.
2. The court hearing is held with the mandatory participation of the defendant and his defense attorney.
3. Consideration of the defendant’s request for a verdict without a trial begins with the presentation of the charge brought against the defendant by the state prosecutor, and in criminal cases of private prosecution - with the presentation of the charge by the private prosecutor.
4. The judge asks the defendant whether he understands the charges, whether he agrees with the charges and whether he supports his petition for a verdict without a trial, whether this petition was submitted voluntarily and after consultation with a defense lawyer, whether he understands the consequences of a verdict without a trial . When the victim participates in the court hearing, the judge ascertains his attitude to the defendant’s petition.
5. The judge does not conduct a general examination and assessment of evidence collected in a criminal case. In this case, circumstances characterizing the personality of the defendant, and circumstances mitigating and aggravating the punishment can be examined.
6. If the defendant, public or private prosecutor, or victim objects to the sentencing without a trial or on his own initiative, the judge makes a decision to terminate the special procedure of the trial and order the consideration of the criminal case in the general procedure.
7. If the judge comes to the conclusion that the accusation agreed with by the defendant is justified and supported by evidence collected in the criminal case, then he will pronounce a guilty verdict and assign the defendant a punishment that cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed.
8. The descriptive and motivational part of the guilty verdict must contain a description of the criminal act, the charge of which the defendant agreed to, as well as the court’s conclusions about compliance with the conditions of the verdict without a trial. The judge's analysis of the evidence and its assessment are not reflected in the verdict.
By Federal Law of December 29, 2010 N 433-FZ, from January 1, 2013, in part nine of Article 316, the words “Chapter 43” will be replaced by the words “Chapter 45.1”.
9. After pronouncing the verdict, the judge explains to the parties the right and procedure for appealing it, provided for in Chapter 43 of this Code.
10. Procedural costs provided for in Article 131 of this Code are not subject to recovery from the defendant.
By Federal Law of December 29, 2010 N 433-FZ, from January 1, 2013, Article 317 will be stated in a new wording.
Article 317. Limits of appealing a sentence
A sentence passed in accordance with Article 316 of this Code cannot be appealed through the appellate and cassation procedures on the grounds provided for in paragraph 1 of Article 379 of this Code.
Chapter 40.1. SPECIAL PROCEDURE FOR MAKING A COURT DECISION
WHEN CONCLUSING A PRE-TRIAL COOPERATION AGREEMENT
(introduced by Federal Law dated June 29, 2009 N 141-FZ)
Article 317.1. The procedure for filing a petition for concluding a pre-trial cooperation agreement
1. A request to conclude a pre-trial agreement on cooperation is submitted by the suspect or accused in writing to the prosecutor. This petition is also signed by the defense attorney. If the defense attorney is not invited by the suspect or accused himself, his legal representative, or on behalf of the suspect or accused by other persons, then the participation of the defense attorney is ensured by the investigator.
2. A suspect or accused has the right to file a petition to conclude a pre-trial cooperation agreement from the moment the criminal prosecution begins until the announcement of the end of the preliminary investigation. In this petition, the suspect or accused indicates what actions he undertakes to perform in order to assist the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime.
3. A request to conclude a pre-trial agreement on cooperation is submitted to the prosecutor by the suspect or accused, his defense attorney through the investigator. The investigator, having received the said petition, within three days from the moment of its receipt, either forwards it to the prosecutor along with a reasoned resolution agreed upon with the head of the investigative body to initiate a petition to the prosecutor to conclude a pre-trial cooperation agreement with the suspect or accused, or issues a resolution to refuse satisfaction petitions for concluding a pre-trial cooperation agreement.
4. The investigator’s decision to refuse to satisfy a request to conclude a pre-trial agreement on cooperation can be appealed by the suspect or accused, his defense attorney to the head of the investigative body.
Article 317.2. The procedure for considering a request to conclude a pre-trial cooperation agreement
1. The prosecutor shall consider the petition for concluding a pre-trial cooperation agreement and the investigator’s decision to initiate a petition to the prosecutor for concluding a pre-trial cooperation agreement with the suspect or accused within three days from the moment of its receipt. Based on the results of the consideration, the prosecutor makes one of the following decisions:
1) to satisfy the request to conclude a pre-trial cooperation agreement;
2) to refuse to satisfy the request to conclude a pre-trial cooperation agreement.
2. A decision to refuse to satisfy a request to conclude a pre-trial agreement on cooperation may be appealed by the investigator, suspect or accused, or his defense attorney to a higher prosecutor.
Article 317.3. The procedure for drawing up a pre-trial cooperation agreement
1. The prosecutor, having adopted a resolution to satisfy the request to conclude a pre-trial agreement on cooperation, invites the investigator, the suspect or accused and his defense attorney. With their participation, the prosecutor draws up a pre-trial cooperation agreement.
2. The pre-trial cooperation agreement must indicate:
1) date and place of its preparation;
2) an official of the prosecutor's office entering into an agreement on the part of the prosecution;
3) last name, first name and patronymic of the suspect or accused entering into an agreement on the part of the defense, date and place of his birth;
4) a description of the crime indicating the time, place of its commission, as well as other circumstances subject to proof in accordance with paragraphs 1 - 4 of part one of Article 73 of this Code;
5) paragraph, part, article of the Criminal Code of the Russian Federation, providing for liability for this crime;
6) actions that the suspect or accused undertakes to perform when he fulfills the obligations specified in the pre-trial cooperation agreement;
7) mitigating circumstances and norms of criminal law that can be applied to the suspect or accused if the latter complies with the conditions and fulfills the obligations specified in the pre-trial cooperation agreement.
3. A pre-trial cooperation agreement is signed by the prosecutor, the suspect or accused, and his defense attorney.
Article 317.4. Conducting a preliminary investigation against a suspect or accused with whom a pre-trial cooperation agreement has been concluded
1. A preliminary investigation into a criminal case separated into separate proceedings in accordance with paragraph 4 of part one of Article 154 of this Code in relation to a suspect or accused with whom a pre-trial cooperation agreement has been concluded is carried out in the manner established by Chapters 22 - 27 and 30 of this Code, taking into account the features provided for in this article.
2. A petition to conclude a pre-trial cooperation agreement, an investigator’s resolution to initiate a petition to the prosecutor to conclude a pre-trial cooperation agreement with a suspect or accused, a prosecutor’s resolution to satisfy a request to conclude a pre-trial cooperation agreement, a pre-trial cooperation agreement are attached to the criminal case.
3. In the event of a threat to the safety of a suspect or accused with whom a pre-trial agreement on cooperation has been concluded, his close relatives, relatives and close persons, the investigator shall issue a resolution to store the documents specified in part two of this article in a sealed envelope.
4. After the completion of the preliminary investigation, the criminal case, in the manner established by Article 220 of this Code, is sent to the prosecutor for approval of the indictment and issuing a statement on the accused’s compliance with the conditions and fulfillment of the obligations stipulated by the pre-trial cooperation agreement concluded with him.
Article 317.5. Prosecutor's submission on a special procedure for holding a court hearing and making a court decision in a criminal case against an accused person with whom a pre-trial cooperation agreement has been concluded
1. The prosecutor, in the manner and within the time limits established by Article 221 of this Code, considers the criminal case received from the investigator against the accused with whom a pre-trial cooperation agreement has been concluded, as well as materials confirming the accused’s compliance with the conditions and fulfillment of the obligations provided for in this agreement, and if the indictment is approved, issues a proposal on the special procedure for holding a court hearing and making a court decision in this criminal case. The submission indicates:
1) the nature and extent of the accused’s assistance to the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;
2) the importance of cooperation with the accused for solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;
3) crimes or criminal cases discovered or initiated as a result of cooperation with the accused;
4) the degree of threat to personal safety to which the accused, his close relatives, relatives and close persons were exposed as a result of cooperation with the prosecution.
2. In the submission, the prosecutor also certifies the completeness and truthfulness of the information provided by the accused when he fulfills the obligations stipulated by the pre-trial cooperation agreement concluded with him.
3. A copy of the presentation made by the prosecutor is handed over to the accused and his defense attorney, who have the right to present their comments, which are taken into account by the prosecutor if there are grounds for doing so.
4. No later than three days from the moment the accused and his defense attorney familiarize themselves with the presentation, the prosecutor sends the criminal case and the presentation to the court.
Article 317.6. Grounds for applying a special procedure for holding a court hearing and making a court decision in a criminal case against an accused person with whom a pre-trial cooperation agreement has been concluded
1. The basis for the court to consider the issue of a special procedure for holding a court hearing and making a court decision in a criminal case in relation to an accused person with whom a pre-trial cooperation agreement has been concluded is a criminal case received by the court with the presentation of the prosecutor specified in Article 317.5 of this Code.
2. A special procedure for holding a court hearing and making a court decision in a criminal case against an accused with whom a pre-trial cooperation agreement has been concluded is applied if the court is satisfied that:
1) the state prosecutor confirmed the active assistance of the accused to the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;
2) the pre-trial cooperation agreement was concluded voluntarily and with the participation of a defense lawyer.
3. If the court determines that the conditions provided for in parts one and two of this article are not met, then it makes a decision to schedule a trial in accordance with the general procedure.
4. The provisions of this chapter do not apply if the assistance of the suspect or accused to the investigation consisted only in reporting information about his own participation in criminal activity.
Article 317.7. The procedure for holding a court hearing and sentencing a defendant with whom a pre-trial cooperation agreement has been concluded
1. The court hearing and sentencing against the defendant, with whom a pre-trial cooperation agreement has been concluded, are carried out in the manner established by Article 316 of this Code, taking into account the requirements of this article.
2. The court hearing is held with the mandatory participation of the defendant and his defense attorney.
3. The court hearing begins with the state prosecutor presenting the charges brought against the defendant, after which the state prosecutor confirms the defendant’s assistance in the investigation, and also explains to the court what exactly it was.
4. In this case, the following should be investigated:
1) the nature and extent of the defendant’s assistance to the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;
2) the importance of cooperation with the defendant for solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;
3) crimes or criminal cases discovered or initiated as a result of cooperation with the defendant;
4) the degree of threat to personal safety to which the defendant, his close relatives, relatives and close associates were exposed as a result of cooperation with the prosecution;
5) circumstances characterizing the personality of the defendant, and circumstances mitigating and aggravating the punishment.
5. The judge, having made sure that the defendant has met all the conditions and fulfilled all the obligations stipulated by the pre-trial cooperation agreement concluded with him, makes a guilty verdict and, taking into account the provisions of parts two and four of Article 62 of the Criminal Code of the Russian Federation, assigns a punishment to the defendant. At the discretion of the court, the defendant, taking into account the provisions of Articles 64, 73 and 80.1 of the Criminal Code of the Russian Federation, may be given a more lenient punishment than provided for the crime, a suspended sentence, or he may be released from serving the sentence.
6. The descriptive and motivational part of the conviction must contain a description of the criminal act of which the defendant is accused, as well as the court’s conclusions about the defendant’s compliance with the conditions and fulfillment of the obligations stipulated by the pre-trial cooperation agreement concluded with him.
By Federal Law of December 29, 2010 N 433-FZ, from January 1, 2013, in part seven of Article 317.7, the words “Chapter 43” will be replaced by the words “Chapter 45.1”.
7. After pronouncing the verdict, the judge explains to the parties the right and procedure for appealing it, provided for in Chapter 43 of this Code.
Article 317.8. Review of a sentence passed against a defendant with whom a pre-trial cooperation agreement has been concluded
If, after sentencing the defendant in accordance with the provisions of this chapter, it is discovered that he deliberately provided false information or deliberately concealed any significant information from the investigation, then the sentence is subject to review in the manner prescribed by Section XV of this Code.
Article 317.9. Security measures applied to a suspect or accused with whom a pre-trial cooperation agreement has been concluded
1. If it is necessary to ensure the safety of a suspect or accused with whom a pre-trial agreement on cooperation has been concluded, his close relatives, relatives and close persons, security measures provided for in Article 11 and paragraph 4 of part two of Article 241 of this Code are applied.
2. A suspect or accused with whom a pre-trial cooperation agreement has been concluded shall be subject to all measures of state protection of victims, witnesses and other participants in criminal proceedings provided for by federal law.
Special or general?
After the amendments to Art. 314 and 316 of the Code of Criminal Procedure of the Russian Federation, introduced by Federal Law No. 224-FZ of July 20, 2021, defense lawyers and law enforcement officers were faced with a misunderstanding of the procedure for considering a criminal case of a serious crime committed before the entry into force of this law, if there was a petition from the accused to issue a sentence without a trial due to agreement with the charge, stated when familiarizing with the materials of the criminal case or during a preliminary hearing.
The procedure for considering such cases
Even the most complicated cases of special proceedings are studied according to the same scheme as issues relating to claim proceedings. In both situations, the following general requirements can be noted:
- to prepare to initiate a case;
- to conduct the process;
- to the rules for the applicant to prove his case;
- to the evidence base;
- to the decision made in the initiated case;
- to review decisions made by the court by filing a cassation.
Such processes are considered according to the rules inherent in civil proceedings. But due to the fact that in a case of special proceedings the parties cannot be identified (there is no defendant), some procedural features are highlighted here:
- To initiate a case of special proceedings, an application, not a lawsuit, is submitted to the court.
- The results of studying cases of special proceedings cannot be:
- waiver of claim (demand);
- signing of a settlement agreement;
- full or partial recognition of the claim;
- change in the previously raised grounds for filing a claim and its subject matter;
- filing counterclaims, etc.
- the applicant directly;
- other interested parties.
Only a limited number of citizens can go to court if a case of special proceedings is being considered.
For example, a person was declared dead. At the time when he was finally able to declare himself, his relatives had already divided his property, and his wife managed to remarry during his absence (his disappearance, allegedly related to his death).
In this situation, a competent lawyer will first be required to help restore the citizen to his civil rights. There is no one to make a claim here, since circumstances are to blame for the current situation. The citizen is recognized as alive in court.
And then a highly qualified lawyer, who has undertaken to solve the problems of this person, will need to recover all the property divided by relatives, sold by them, or missing property.
But to do this, you will have to file a lawsuit against relatives who are delaying the process of returning property. It may also be possible to recover funds that became an acquired benefit during the period of use of the property. This could be payment for renting an apartment.
As for the ex-wife’s new marriage, in this situation the recognition of the marriage with the new husband as invalid is permissible only with her consent. However, she will also have to return the embezzled property that previously belonged to the rightful owner - her ex-husband.
That is why, when a dispute arises about the law in a special proceeding case, the court leaves this case without consideration. Next, the applicant will need to file a claim in a court of general jurisdiction.
It should be noted that it is not necessary to initiate legal proceedings specifically on a claim only in cases where we are talking about declaring a person incompetent, or the case concerns a partial restriction of legal capacity.
A civil lawyer, whose services it is advisable to use, is sure that in special proceedings there are no simple, standard cases. There have even been cases in judicial practice, the decision on which was subsequently extremely difficult to implement. Sometimes it was necessary to initiate a new trial.
In addition, when clients solve their life issues, it is not always possible to find exact precedents. This task can only be accomplished by an experienced lawyer with extensive and long-term practice.
