New edition of Art. 389.1 Code of Criminal Procedure of the Russian Federation
1. The right to appeal a court decision belongs to the convicted, acquitted, their defenders and legal representatives, the state prosecutor and (or) a higher prosecutor, the victim, the private prosecutor, their legal representatives and representatives, as well as other persons to the extent that the appealed court decision the decision affects their rights and legitimate interests.
2. A civil plaintiff, a civil defendant or their legal representatives and representatives have the right to appeal a court decision insofar as it relates to the civil claim.
Commentary on Article 389 of the Code of Criminal Procedure of the Russian Federation
1. The situation provided for in this article may arise if the cassation appeal of the convicted person, his defense attorney or legal representative, as well as the victim or his legal representative, filed through the court of first instance or appeal in compliance with the 10-day period for appealing the verdict, was for some reason was detained and did not reach the cassation court on time, or the deadline for a cassation appeal was missed, but was reinstated by the court that passed the verdict due to valid reasons.
2. Re-examination of a criminal case by a court of cassation is possible only upon a complaint from the convicted person, his defense attorney or legal representative, as well as the victim or his legal representative, but not on the proposal of the prosecutor.
3. If, during the re-examination of the case, the cassation instance adopts a new ruling that contradicts the one made earlier, a situation arises when two cassation decisions exist simultaneously and have entered into legal force. This conflict can only be resolved if one or another of these decisions is appealed through the supervisory procedure.
Article 389.6 of the Code of Criminal Procedure of the Russian Federation. Appeal, presentation
Code of Criminal Procedure>PART THREE of the Criminal Procedure Code of the Russian Federation. JUDICIAL PROCEEDINGS >Section XIII of the Code of Criminal Procedure of the Russian Federation. PROCEEDINGS IN THE COURT OF SECOND INSTANCE >Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation. PROCEEDINGS IN THE COURT OF APPEALS >Article 389.6. Appeal, presentation
1. An appeal or presentation must contain:
1) the name of the appellate court to which the complaint or presentation is filed;
2) information about the person who filed the appeal or presentation, indicating his procedural status, place of residence or location;
3) an indication of the verdict or other court decision and the name of the court that decided or issued it;
4) the arguments of the person who filed the appeal or presentation, indicating the grounds provided for in Article 389.15 of this Code;
5) a list of materials attached to the appeal or presentation;
6) signature of the person who filed the appeal or presentation.
1.1. The person who filed the appeal or presentation, in support of the arguments presented in the complaint or presentation, has the right to file a petition for the court of appeal to examine the evidence that was examined by the court of first instance, which must be indicated in the complaint or presentation, and provide a list of witnesses, experts and others persons subject to summons for this purpose to the court hearing. If a request is made to examine evidence that was not examined by the court of first instance (new evidence), then the person is obliged to justify in the appeal or presentation the impossibility of presenting this evidence to the court of first instance.
2. The appeal of a person not participating in the criminal case must indicate what rights and legitimate interests of this person were violated by the court decision.
3. If a convicted person applies for participation in the consideration of a criminal case by an appellate court, this is indicated in his appeal or in objections to complaints and submissions brought by other participants in the criminal process.
4. If the appeal or presentation does not comply with the requirements established by parts one, one.1 and second of this article, which prevents the consideration of the criminal case, the appeal or presentation is returned by the judge, who sets a deadline for their re-drafting. If the judge’s requirements are not met and the appeal or presentation is not received within the time limit set by the judge, they are considered not filed. In this case, the verdict or other appealed court decision is considered to have entered into legal force.
< Article 389.5. The procedure for restoring the period for appeal
Article 389.7. Notice of brought appeal, presentation >
Another comment on Article 389 of the Code of Criminal Procedure of the Russian Federation
1. The commented article resolves an issue that arose long before the onset of those changes in the country in which courts currently exercise judicial power in criminal cases. Three decades ago, the Plenum of the USSR Supreme Court, in Resolution No. 10 of December 17, 1971 “On the practice of courts considering criminal cases in cassation,” explained to the courts that in cases where, for some reason, cassation complaints or protests against some convicts are filed within the prescribed period, will be received after the consideration of the case in relation to the remaining convicted persons or when this period is restored, as well as in cases where a cassation appeal of the convicted person or his defense lawyer is received after the consideration of the case on a cassation protest or a cassation appeal of another participant in the process in relation to the same convicted person, the cassation court is obliged to forward the case to the chairman of the court, who is authorized to lodge a protest in the manner of supervision, so that the ruling is canceled, and all complaints and protest are considered by the cassation court simultaneously (Sb. post. Plenumov. Spark. P. 85).
2. Despite all the importance for the formation of judicial practice, the explanations given by the Plenum of the USSR Supreme Court should be recognized that the Plenum nevertheless exceeded its powers, creating, under the guise of a resolution, actually a norm of criminal procedural law, trying to fill the gap that existed in the Code of Criminal Procedure of the RSFSR. Now the provision contained in Part 1 of the commented article is a full-fledged rule of law adopted by the country’s legislative body.
3. It is quite logical that Part 2 of the commented article establishes the obligation of the court to explain to the participants in criminal proceedings the right to appeal in the manner of supervision of a newly issued ruling of the cassation court.
Commentary on Article 389.1 of the Code of Criminal Procedure of the Russian Federation
1. Appeal proceedings arise in connection with the filing of a corresponding complaint with the court by at least one of the participants in the process interested in the outcome of the case listed in the law or upon the proposal of the prosecutor. It is one of the forms of control over judicial activities by a higher court, which makes it possible to verify the legality and validity of sentences, rulings and decisions of the courts of first instance that have not entered into force. The authority in question makes it possible to protect the legitimate interests of individuals and legal entities by preventing the entry into force of unjust sentences, rulings and decisions. It makes it possible to correct judicial errors in the shortest possible time, helps to improve the quality of work of lower courts and the direction of judicial practice in strict accordance with the requirements of the law.
2. These circumstances (the activity of the appellate instance and the very existence of such a legal institution) allow us to consider the appeal process as an important guarantee of the administration of justice, the fulfillment of the tasks of criminal proceedings, ensuring the rule of law and the protection of individual rights in Russian criminal proceedings. Similar guarantees can be recognized in cassation, supervisory proceedings and the resumption of criminal proceedings due to new or newly discovered circumstances.
3. This article partially establishes the content of the main feature of the appeal process, called “freedom of appeal”. Its content consists of the following legal provisions:
1) the possibility of filing an appeal by a wide range of persons from among the participants in the trial;
2) a convicted person, an acquitted person, their defenders and legal representatives, a state prosecutor and (or) a superior prosecutor, a victim, a private prosecutor, their legal representatives and representatives have the right to file complaints not only in their own interests, but also in the interests of other subjects of criminal proceedings;
3) participants in the process can write complaints in their native language and submit them to the court that issued the verdict.
4. Taking into account the provisions of Part 1 of Art. 123, part 1 art. 127, commented article, part 1 of art. 389.2, part 1 art. 401, Art. 444, part 9 art. 463 of the Code of Criminal Procedure, court decisions can be appealed by a suspect, accused, defendant, convicted, acquitted, a person in respect of whom the criminal case has been terminated, a person in respect of whom proceedings are or have been conducted on the application of a compulsory measure of a medical nature, a person in respect of whom a decision was made on extradition for criminal prosecution or execution of a sentence, by their defenders, legal representatives, state prosecutor, prosecutor and (or) superior prosecutor, private prosecutor, victim, their legal representatives and (or) representatives, civil plaintiff, civil defendant, their legal representatives and (or) representatives (insofar as it relates to a civil claim), as well as other persons to the extent that the appealed court decision affects their rights and legitimate interests (for example, a person whose property has been seized in connection with criminal proceedings case).
5. Legal representatives have the right to appeal a court decision and take part in a court hearing, regardless of the fact that at the time of the proceedings in the court of appeal the suspect, accused, defendant, convicted, acquitted, person against whom the criminal case was terminated, or the victim is a minor turned 18 <1692>. ——————————— <1692> See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 27, 2012 N 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of appeal” // Bulletin of the Supreme Court of the Russian Federation. 2013. N 1.
6. Complaints of legal representatives in the court of second instance are subject to consideration regardless of the position taken by the minor in the case <1693>. ——————————— <1693> See: Resolution of the Plenum of the Supreme Court of the Russian Federation of February 1, 2011 N 1 “On judicial practice of application of legislation regulating the specifics of criminal liability and punishment of minors” // Bulletin of the Supreme Court of the Russian Federation . 2011. N 4.
7. The prosecutor and his deputy, and especially the higher-ranking prosecutor, have the right to bring appeals to a higher court, regardless of whether they participated or not in the consideration of the case in the court of first instance <1694>. ——————————— <1694> See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 3, 1992 // Bulletin of the Supreme Court of the Russian Federation. 1993. N 5.
8. If a court decision is appealed by both the state prosecutor and a higher prosecutor, then both submissions are subject to consideration, provided that they are filed within the period established by law <1695>. ——————————— <1695> See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 27, 2012 N 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of appeal” // Bulletin of the Supreme Court of the Russian Federation. 2013. N 1.
9. Appeals from assistant prosecutors of republics, territories, regions, autonomous okrugs, cities and districts and prosecutors of departments and directorates of the relevant prosecutor's offices who participated in the trial of criminal cases are subject to appeal review on general terms <1696>. ——————————— <1696> By analogy. See: Resolution of the Plenum of the Supreme Court of the USSR of October 14, 1964 N 13 “On the consideration by the courts of cassation and private protests of prosecutors who took part in the consideration of cases at first instance” // Collection of decisions of the plenums of the Supreme Courts of the USSR and the RSFSR (Russian Federation) on criminal cases. 1997. P. 29.
10. Based on the content of Part 1 of the commented article, the right to appeal a court decision in criminal cases of private prosecution belongs to the private prosecutor, that is, not only to the victim or his representative, but also to the legal representative of the victim (clause 59 of Article 5 of the Code of Criminal Procedure of Russia). And in the event of the death of the victim - to his close relative who filed an application to initiate a criminal case (part 2, 7, article 318 of the Code of Criminal Procedure of Russia).
11. In accordance with Part 1 of the commented article, the right to appeal a court decision is granted not only to the state prosecutor, but also to a higher prosecutor who did not take part in the trial. Within the meaning of paragraph 31 of Art. 5 of the Code of Criminal Procedure, a superior prosecutor should be understood as a superior prosecutor in relation to the public prosecutor (his deputy), assigned in accordance with Art. 36 of the Federal Law “On the Prosecutor’s Office of the Russian Federation” with the authority to submit submissions on court decisions.
12. The person specified in Part 2 of Art. 49 of the Code of Criminal Procedure and who is not a lawyer, if he was admitted to participate in the court of first instance as a defense attorney, has the right to appeal the court decision on appeal and take part in the hearing of the appellate court. If such a person did not take part in the court of first instance, then in the court of appeal he, by determination (resolution) of the court, can be admitted as a defense attorney only along with a lawyer <1697>. ——————————— <1697> See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 27, 2012 N 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of appeal” // Bulletin of the Supreme Court of the Russian Federation. 2013. N 1.
13. The convicted person has the right to withdraw the appeal of his lawyer, while simultaneously refusing his assistance <1698>. ——————————— <1698> See: Review of judicial practice of the Supreme Court of the Russian Federation for the first quarter of 1997 // Bulletin of the Supreme Court of the Russian Federation. 1997. N 8.
14. The law does not connect the filing of an appeal or an appeal with familiarization with the proceedings in the case <1699>. The right to file an appeal is also not related to the right to familiarize yourself with the minutes of the court hearing. Such a complaint can also be sent by a person who does not know its content <1700>. ——————————— <1699> See: Review of judicial practice of the Supreme Court of the Russian Federation for the third quarter of 1999 // Bulletin of the Supreme Court of the Russian Federation. 2000. N 5.
<1700> See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 1, 1995 // Bulletin of the Supreme Court of the Russian Federation. 1996. N 1.
15. The civil plaintiff, civil defendant and their representatives have the right to appeal the verdict of the court of first instance (decision to terminate the case), which has not entered into legal force, only insofar as it relates to the civil claim. This restriction applies only to civil plaintiffs - legal entities. Civil plaintiffs - individuals - have the right to appeal the verdict (decision) in full, since they are also victims.
16. If the verdict establishes the infliction of harm to a citizen who, however, was not recognized as a victim, the court that passed the verdict, if a complaint is received from this citizen, must issue a ruling (resolution) recognizing him as a victim and send the case along with the appeal to the appellate court authorities.
17. See also commentary to Art. Art. 54, 108, 255, 323, 389.3, 389.4, 389.9, 389.13, 401.1 Code of Criminal Procedure of Russia.
Commentary on Article 389.15 of the Code of Criminal Procedure of the Russian Federation
1. When considering a criminal case on appeal, the court, regardless of the arguments of the complaint or presentation, checks whether there are grounds for reversing or changing the court decision provided for in the commented article that do not entail a worsening of the situation of the convicted (acquitted).
Having established the existence of such grounds, the appellate court, by virtue of the provisions of Parts 1 and 2 of Art. 389.19 of the Code of Criminal Procedure cancels or changes the court decision in relation to all convicted persons who are affected by the violations committed, regardless of which of them filed a complaint and against whom an appeal or presentation was made <1741>. ——————————— <1741> See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 27, 2012 N 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of appeal” // Bulletin of the Supreme Court of the Russian Federation. 2013. N 1.
2. On the grounds provided for in the commented article, only an illegal or unfounded sentence can be overturned.
3. The new evidence received by the appellate instance, as well as the additional materials presented, are subject to evaluation in conjunction with all other materials of the case and can be used as the basis for the decision of the appellate instance to cancel the sentence with a new sentence, as well as to change the sentence of the court of first instance.
4. A typical situation for the grounds for reversing or changing a court decision, which is discussed in paragraph 1 of the commented article, is characterized by non-examination of evidence (refusal to satisfy a request to interrogate certain persons, to conduct an inspection of the area, etc.), which in together with other evidence were extremely important for the correct establishment of the factual circumstances of the case and could significantly influence the court’s conclusions about the legal qualification of the actions of the perpetrators and their responsibility.
5. In addition to those listed in Art. 389.17 of the Code of Criminal Procedure, significant violations of the criminal procedural law that influenced or could influence the decision of a legal, reasonable and fair sentence are:
1) failure to deliver or untimely delivery to the accused of a copy of the indictment or indictment, except in cases where the court recognizes as legal and justified the decision of the prosecutor made in the manner established by Part 4 of Art. 222 Code of Criminal Procedure;
2) failure by the magistrate to make a decision to involve a person as a civil defendant (recognizing him as a victim, civil plaintiff, or their representative) and failure to explain his rights <1742>; ——————————— <1742> See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 5, 1993, Determination of the Military Collegium of the Supreme Court of the Russian Federation dated February 9, 1995, etc. // Bulletin of the Supreme Court of the Russian Federation. 1994. N 2 and others.
3) cancellation of the legally adopted decision of the investigator to recognize the citizen as a victim and the decision to consider him a witness <1743>; ——————————— <1743> See: Determination of the Military Collegium of the Supreme Court of the Russian Federation dated March 7, 1995
4) deprivation of the victim of the opportunity to participate in the court hearing <1744>; ——————————— <1744> See: Resolution of the Presidium of the Vladimir Regional Court dated June 13, 1997 // Bulletin of the Supreme Court of the Russian Federation. 1997. N 11.
5) depriving the accused of the opportunity to familiarize himself with the protocol of the court session and bring his comments to it <1745>; ——————————— <1745> See: Resolution of the Presidium of the Pskov Regional Court dated January 4, 1994 // Bulletin of the Supreme Court of the Russian Federation. 1994. N 6.
6) conducting a trial without the participation of a defense attorney, when his actual participation was not actually ensured, and the case does not contain information about the summons of the defense attorney to the court hearing and the reasons for his failure to appear;
7) conducting a preliminary investigation based on materials separated from another case into separate proceedings against another person on a new charge without initiating a criminal case;
conducting a preliminary investigation in all other cases without initiating a criminal case;
9) failure to establish a circumstance subject to proof in the case of a crime under Part 1 of Art. 115 of the Criminal Code, - the nature of bodily injuries caused to the victim, the source of evidence provided for by law - the mandatory conclusion of a forensic expert <1746>; ——————————— <1746> See: Review of judicial practice of the Supreme Court of the Russian Federation for the III and IV quarters of 1996 // Bulletin of the Supreme Court of the Russian Federation. 1997. N 4.
10) conducting an investigation by the person subject to recusal;
11) completion of the investigation in the form of inquiry into a crime for which a preliminary investigation is mandatory;
12) the absence in the case of a resolution to schedule a court hearing <1747>; ——————————— <1747> See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 20, 1994 // Bulletin of the Supreme Court of the Russian Federation. 1995. N 1.
13) failure to issue a ruling to refuse to satisfy the victim’s request to order a forensic examination <1748>; ——————————— <1748> See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 17, 1992 // Bulletin of the Supreme Court of the Russian Federation. 1993. N 2.
14) failure to comply with the requirements of clause 3, part 1, art. 308 of the Criminal Procedure Code on the obligation to indicate in the operative part of the sentence not only the parts and articles of the Criminal Code, but also the relevant points for which the defendant was found guilty <1749>; ——————————— <1749> See: Review of judicial practice of the Supreme Court of the Russian Federation for the second quarter of 1996 // Bulletin of the Supreme Court of the Russian Federation. 1997. N 3.
15) drawing up a sentence not in full, except for the cases provided for in Part 7 of Art. 241 of the Code of Criminal Procedure, and in this regard the proclamation of only the introductory and operative parts of the sentence or only its operative part <1750>; ——————————— <1750> See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 29, 1996 No. 1 “On the judicial verdict” // Ibid. P. 162.
16) the presence in the minutes of the court session of a large number of corrections (erasures) and crossed out testimony of at least one witness, which are essential for assessing the evidence in the case <1751>. ——————————— <1751> See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 9, 1993 // Bulletin of the Supreme Court of the Russian Federation. 1993. N 11.
6. According to Art. 382 of the Code of Criminal Procedure the following violations are recognized as incorrect application of the criminal law:
1) violation of the requirements of the General Part of the Criminal Code;
2) application of the wrong article or the wrong paragraph and (or) part of the article of the Special Part of the Criminal Code that were subject to application;
3) imposition of a punishment more severe than that provided for in the relevant article of the Special Part of the Criminal Code.
7. An example of a violation of the requirements of the General Part of the Criminal Code is the failure to apply a suspended sentence when there were grounds for it, or an unfounded decision on a suspended sentence.
8. If the court of first instance applies an amnesty to a convicted person to whom it should not be applied, the appellate instance, in the presence of an appeal from the prosecutor or an appeal from the private prosecutor, the victim or their legal representatives and (or) representatives for leniency of punishment, must cancel the court verdict of the first instance with the issuance of a new sentence, by which the defendant is assigned a penalty without applying an amnesty.
9. Cancellation of a sentence in connection with the need to apply the law on a more serious crime or for the leniency of punishment, as well as the cancellation of an acquittal in the absence of an appeal from the prosecutor, can only take place in cases where the victim (private prosecutor) or his legal representative, representative filed an appeal complaint precisely on these grounds. If the victim (private prosecutor) or his legal representative or representative appealed the verdict on other grounds, then the appellate court does not have the right to worsen the situation of the convicted person or cancel the acquittal <1752>. ——————————— <1752> See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 29, 2010 N 17 “On the practice of application by courts of norms regulating the participation of the victim in criminal proceedings” // Bulletin of the Supreme Court of the Russian Federation. 2010. N 9.
10. The presence in the case of appeals from other participants in the process regarding the leniency of punishment or the unreasonable application of the law on a less serious crime cannot serve as a basis for reversing the sentence.
11. Courts are obliged to take into account the increased danger of a person who has committed several crimes, and impose punishment for a combination of crimes using the principle of absorption of a less severe punishment by a more severe one only in a truly justified manner. In case of violation of this rule, the imposed punishment for a set of crimes by a higher court was usually recognized as not corresponding to the crime due to its leniency.
12. Imposing a more lenient punishment than provided for a given crime may also be unfair. The imposition of a more lenient punishment than provided by law is possible only in the presence of exceptional circumstances of the case in conjunction with information about the identity of the perpetrator. In this case, circumstances (including those provided for by law as mitigating punishment) that significantly reduce the degree of public danger of the crime committed may be considered exceptional. The amount of punishment determined by the court in the specified order cannot be lower than the minimum limit established by the criminal law for this type of punishment <1753>. ——————————— <1753> See: Resolution of the Plenum of the Supreme Court of the USSR of June 29, 1979 No. 3 “On the practice of applying general principles of punishment by courts” // Collection of Resolutions of the Plenums of the Supreme Courts of the USSR and the RSFSR ( Russian Federation) in criminal cases. 1997. P. 158.
13. A sentence may be considered unfair due to the lenity of not only the main punishment, but also due to the non-application of additional punishment provided for by law <1754>. ——————————— <1754> See: Review of cassation practice of overturning sentences due to the leniency of the imposed punishment // Bulletin of the Supreme Court of the Russian Federation. 1997. N 7.
14. The last group of grounds for canceling or changing a court decision on appeal are those provided for in Part 1 or Clause 1 of Part 1.2 of Art. 237 of the Code of Criminal Procedure, the grounds under which a criminal case is returned to the prosecutor in the usual manner. The decision to cancel the sentence, ruling, resolution and to return the case to the prosecutor by the appellate court is made, in particular, when it is revealed that:
1) the indictment, indictment or indictment resolution was drawn up in violation of the requirements of the Code of Criminal Procedure, which excludes the possibility of the court passing a sentence or making another decision based on this conclusion, act or resolution;
2) a copy of the indictment, indictment or indictment was not served on the accused, except in cases where the court recognizes the decision of the prosecutor made in the manner prescribed by Part 4 of Art. 222 or part 3 of Art. 226 Code of Criminal Procedure;
3) there is a need to draw up an indictment or indictment in a criminal case sent to the court with a decision to apply a compulsory measure of a medical nature;
4) there are provisions provided for in Art. 153 Code of Criminal Procedure grounds for joining criminal cases;
5) when familiarizing the accused with the materials of the criminal case, the rights provided for in Part 5 of Art. 217 Code of Criminal Procedure;
6) there is a request from a party to return the criminal case to the prosecutor in order to remove obstacles to its consideration by the court due to the fact that after the criminal case was sent to the court, new socially dangerous consequences of the act charged to the accused occurred, which are the basis for charging him with committing a more serious crime.
15. See also commentary to Art. Art. 18, 237, 240, 348, 389.16 - 389.19, 401.15 Code of Criminal Procedure of Russia.
