A cassation appeal to the Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation. A cassation appeal in a criminal case: deadlines for filing a cassation appeal in a criminal case, a sample of filling out

The filing of a cassation appeal in a criminal case is carried out in accordance with the rules of Chapter 47.1 of the Code of Criminal Procedure of the Russian Federation. Cassation is considered the main stage of appealing against court decisions (sentences, rulings and rulings) that have entered into force. And this procedure can be two-stage: first, consideration of a complaint at the level of a court of a constituent entity of the Federation, and then an appeal to the Supreme Court of the Russian Federation (Judicial Collegium for Criminal Cases).

In most cases, convicts and (or) their defenders (lawyers) appeal to the cassation instance against the conviction. Often the subject of cassation appeal is the verification of the legality of the sentence on the initiative of the injured party, which does not agree with the qualification of the offense and (or) the size of the punishment.

As independent participants in the criminal process, civil plaintiffs and defendants who are not victims and convicts, respectively, can apply to cassation. But their complaint should be limited to matters of civil action. And, finally, any other persons, including those who are not participants in the process, have the right to file a complaint if their rights and interests are affected by a judicial act.

What court decisions will be appealed against in cassation

In cassation, you can appeal against any judicial acts - both final (for example, a sentence, a decision on compulsory treatment) and interim (for example, a court ruling based on the results of consideration of a petition). The only condition is that they must be valid.

In criminal cases, unlike other types of court proceedings, there are no restrictions on the terms of appeal to cassation (as well as supervision) - a complaint can be filed regardless of the period of time that has passed after the entry into force of the contested act. However, there is one exception - filing a complaint on grounds that entail a deterioration in the position of the person against whom the criminal prosecution is being conducted is possible only within a year after the entry into force of the contested decision. And this period cannot be restored.

One more circumstance is also important - in order to appeal to the cassation, it is not required to go through an appeal on a mandatory basis. But such an opportunity is usually used if the 10-day time allotted for the appeal allows you to thoroughly prepare for the process.

The type of judicial act directly affects the instance where the cassation appeal is filed:

1. To the presidium of the court of the corresponding subject of the federation, where the following are appealed:

• judicial acts of justices of the peace and district courts;
• appellate decisions, as well as interim judicial acts, adopted by the court of the subject of the federation as the first instance.

1. To the Judicial Collegium of the RF Armed Forces, where they appeal:

• judicial acts listed in paragraph 1, which have passed the cassation appeal at the level of the presidium of the court of the subject of the federation;
• final court decisions (sentences, etc.) of a court of a constituent entity of the federation, if they have not been reviewed by the Supreme Court on appeal;
• decisions of the presidium of the court of the subject of the federation.

1. To the Presidium of the relevant district (naval) military court:

• judicial acts of the garrison military court;
• interim judicial acts issued in the first instance, and appellate decisions of the district (naval) military court.

1. To the Judicial Collegium for Servicemen of the Armed Forces of the Russian Federation:

• judicial acts of the garrison military court and appellate decisions of the district (naval) military court, if they have passed the cassation hearing in the Presidium of the district (naval) military court;
• final judicial acts (verdicts, etc.) of the district (naval) military court, if they have not been reviewed by the RF Armed Forces;
• decisions of the presidium of the district (naval) military court.

How to compose and submit a complaint

The complaint in form and content must meet the requirements of Art. 401.4 of the Criminal Procedure Code of the Russian Federation.

Mandatory content:

1. The name of the court to which the complaint is filed (the relevant court of the cassation instance).
2. Data of the person who is filing the complaint - full name, procedural status, place of residence (location).
3. The list of courts in which the criminal case has already been considered (the first and, possibly, the appeal and cassation instance), and the content (main essence) of the decisions taken by such courts.
4. List of all court decisions that are being appealed.
5. A list of what is being appealed - what violations of the Criminal Code and the Code of Criminal Procedure of the Russian Federation were committed by the courts whose decision is being appealed, how this affected the course of the case, what arguments (evidence) indicate the presence of violations listed in the complaint.
6. The request of the applicant, what he wants to achieve in the court of cassation - to cancel, change the judicial act in full or in some (you must indicate in which) part. The request may contain additional decisions of the cassation court, desirable for the applicant, but within the permissible art. 401.14 of the Code of Criminal Procedure of the Russian Federation and taking into account the main request, as well as the grounds on which it is based. For example, the termination of the case, its transfer for a new consideration, etc.

The complaint must be accompanied by copies of all court decisions in the case.

To ensure that the complaint is not returned without consideration, you need to check:

• whether everything meets the requirements of Art. 401.4 of the Criminal Procedure Code of the Russian Federation;
• whether the applicant has the right to file a complaint on its specific subject matter;
• whether the court (instance) to which the complaint is filed has been correctly identified;
• whether the term for cassation appeal, established for the application of grounds that worsen the position of the person involved in the case as an accused, has not been missed.

All of the above are mostly formal (procedural) requirements for a complaint. But it is important that the appeal is effective and leads to the expected result. Therefore, it is imperative to pay attention to the weight of the grounds for satisfying the complaint. Violations of the Criminal Code and the Criminal Procedure Code must be significant enough to really influence the course and result of criminal proceedings. The following work effectively in this regard:

1. mistakes in the qualification of the deed, the controversy of qualifications;
2. misinterpretation and (or) application of the law (not only criminal);
3. inconsistency between the conclusions of the court and the case materials (evidence base);
4. infringement, violation of procedural rights;
5. lack of proof of guilt, the presence of an event, corpus delicti;
6. obvious contradictions in evidence, doubtfulness of their receipt;
7. the appointment of too light / severe punishment, which does not correspond to the severity of the offense.

The grounds must be confirmed. The necessary evidence may be presented for this purpose. When filing a complaint, such evidence is documentary or expressed in the form of references to the relevant laws and other regulations. Among the documents, copies of specific case materials and their kind of comparative analysis (in case of controversy and contradictions) are often presented (attached to the complaint). The cassation instance can claim a criminal case on its own.

The complaint must be directed to the very court that is empowered to consider the case in cassation. Usually documents are sent by mail or presented in person - to the court office. Not all participants in the criminal process have the ability to work through the Internet system of GAS "Justice".

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Sample complaint

A cassation appeal in a criminal case is accepted and considered by the court only if its content meets the requirements of the legislation of the Russian Federation.

Please note! Mandatory elements of a cassation appeal:

• the name of the court to which the cassation appeal is filed;
• last name, first name, patronymic, of the person filing the complaint, address of the place of registration and status (in criminal proceedings of the first instance);
• judicial authorities that made decisions in previous instances, as well as information about the decisions made (date of issue, number of the criminal case, and briefly the essence);
• a statement of the mistakes made in the application or interpretation of the norms of Russian legislation, the conclusions drawn. And justification of their position with references to the legislation of Russia, which were violated;
• the request of the person filing the complaint. Such a requirement may be, for example, the cancellation of the decision of the previous instance court in full or the re-examination of the criminal case;
• in the case of sending a repeated cassation appeal, it is necessary to indicate what decision was taken on the first cassation;
• annex: documents attached to the complaint;
• the signature and transcript of the person filing the complaint, or his representative (in this case, the representative's power of attorney, order or other document confirming his authority is added to the attachments).

ATTENTION! Look at the completed sample of the cassation appeal against the appeal ruling in a criminal case:

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issue.

Submission of additional materials on the case

Together with the complaint, copies of all documents or materials that indicate the existence of the circumstances specified in the text of the cassation are submitted to the cassation court. Additional information that can be considered during the proceedings and will be useful for making the right decision in a criminal case.

Amendments to the court order or its cancellation with the termination of criminal proceedings in accordance with additional information is unacceptable. An exception may be a case in which the reliability of additional information does not need to be verified by previous courts.

A document confirming that the convicted person at the time of the crime did not reach the age of criminal prosecution and others.

Appeal and cassation

The appeal differs from the cassation in that the appeal is filed before the verdict passed by the first court instance comes into legal force.

In the event of an appeal hearing a criminal case, it may be revised in full or incomplete. In an incomplete volume, the process is carried out only to consider additional arguments that are indicated in the appeal.

Attention! A cassation appeal is the same appeal, but only the level is slightly higher, because it is considered by higher authorities, and it is filed after the entry of the judgment into legal force, that is, after the expiration of a month from the date of the judgment.

The appeal ruling can be appealed on your own or with the help of a qualified professional.

Grounds for cancellation or amendment of a court decision

The basis for changing or canceling the determination, court ruling or sentence in a criminal case, which are considered in cassation, may be gross violations of legislation in the field of criminal law or process, affecting the decision of the court, ultimately.

Article 247 of the Criminal Procedure Code of the Russian Federation provides for circumstances, the elimination of which may serve as a basis for canceling the ruling, sentence or ruling of the court. Please note that this ground can only exist if there is a petition from the convicted person or his lawyer.

Remember! Any decision in a criminal case is canceled and returned to the prosecutor if the following circumstances were revealed during the consideration of the cassation appeal (part 1 and paragraph 1 of part 2 of article 237 of the Criminal Procedure Code of the Russian Federation):

• inconsistency of the judicial conclusions, which are set out in the final verdict, with the circumstances of the criminal case, which are actually established by the courts of first or appeal;
• violation of the provisions of the criminal procedure code;
• incorrect application of the norms of criminal law;
• an unjust verdict was issued in a criminal case.

Terms of submission and consideration

Important! In the case of filing a cassation for a determination of the appeal instance in a criminal case, according to the law, this must be done within a month from the date of the determination, but in real life this usually happens within a period of 5-10 days.

Consideration of a cassation appeal can take 1-5 months, depending on the judicial authority to which the appeal was submitted. If this is an ordinary court of cassation, then the duration of the consideration is equal to one month, if the request for a criminal case is not required.

Otherwise, the period for consideration may increase to two months, and it begins to be calculated from the moment the criminal case is received from another court.

In the Supreme Court, a complaint against a criminal case that is not requested for consideration of the complaint is considered for no more than three months.

If the case is requested in another instance, then the term increases, but no one can determine the exact term. Although there is one "but" - you cannot extend the period for considering a complaint for more than sixty days.

Filing a cassation appeal under the CPC

Only the parties to the criminal process (acquitted person, convicted person, defenders, victim, their legal representatives or private prosecutor) and other persons whose rights and interests are affected by the decision of the court in this case are vested with the right to file a cassation. This right is provided for by paragraph 1 of Article 401.2 of the Criminal Procedure Code of the Russian Federation.

In addition to the persons who have already been mentioned, the cassation may be filed by the defendant, the accused or the person against whom the criminal case has been terminated, there is or has been proceeding on compulsory measures of an educational or medical nature, and others.

Attention! The legislation does not establish a limitation on the time period for filing a cassation in a criminal case, if this does not refer to a “turn for the worse”.

The cassation is submitted in person to the court as a cassation instance, which is determined in accordance with the legislation of the Russian Federation (paragraph 2 of Article 401.3 of the Criminal Procedure Code of the Russian Federation). And from January 1, 2017, such a document can be sent in electronic form by filling out an electronic form on the official website of the court (article 474.1 of the Criminal Procedure Code of the Russian Federation as amended by Federal Law No. 220-FZ dated June 23, 2016).

The resolution of the plenum of the Supreme Court of the Russian Federation explains that the consideration of the complaint takes place first in the lower cassation instance, and then in the courts of the next level.

For example, if the decision of the court is appealed to the judicial collegium for criminal cases of the Supreme Court of the Russian Federation, if it is contested on cassation in the presidium of the court of the previous level (subparagraph 5 of paragraph 2 of Article 401.3 of the Criminal Procedure Code of the Russian Federation).

Watch the video. Cassation appeal of court decisions that have entered into legal force in criminal cases:

A cassation complaint suggesting a "turn for the worse"

Reconsideration of a decision in a criminal case in cassation procedure, which presupposes a worsening of punishment for an acquitted person, a convicted person or a person in respect of whom the criminal case has been completed, may be only within a period of 12 months from the date of the entry of the court decision on the criminal case (Article 401.6 of the Criminal Procedure Code) ...

Note! The application for the restoration of such a period, if it is missed, will not be satisfied, regardless of whether there is a good reason for the omission or not.

The grounds for a cassation appeal for reconsideration in the event of a “turn for the worse” requirement are:

• violations of the Criminal Code of the Russian Federation, the Criminal Procedure Code of the Russian Federation, affecting the verdict;
• the defendant did not comply with the terms of the pre-trial cooperation agreement (included in the Criminal Procedure Code on 03 July 2016).

What decision can a court of cassation make?

As a result of familiarization with the cassation, the judge draws up a resolution:

• on the refusal to transfer the cassation appeal for consideration in a court hearing by way of the cassation instance, if there is no reason for revising the court decision by way of cassation. Moreover, in this case there is the complaint itself and copies of the decisions of the courts of previous instances;
• on the transfer of a cassation appeal with a criminal case for consideration in a session by the court, in the manner of the cassation instance.

Attention! The Chairman of the RF Armed Forces or his deputy may issue a resolution to cancel the decision of a judge of the RF Armed Forces on refusal to transfer the cassation appeal for consideration in a court session by way of the cassation instance and transfer the cassation appeal with a criminal case for consideration at the cassation court session.

Such a decision can be made only if the Chairman of the RF Armed Forces or his deputy do not agree with the decision. In this case, it is necessary to appeal against the ruling of the judge of the cassation court of the Armed Forces to the Chairman of the Armed Forces of the Russian Federation or his deputy.

Remember! Upon completion of the consideration of a criminal case in cassation, the court may issue a resolution:

• on dismissal of a cassation appeal or presentation;
• to cancel the sentence, ruling or ruling and all subsequent decisions of the court and to terminate the proceedings in this criminal case;
• to cancel the sentence, ruling or ruling of the court and all subsequent decisions of the court and to transfer the criminal case for a new trial to the court or return it to the prosecutor;
• on the cancellation of the court's verdict, adopted on appeal, and the transfer of the criminal case for a new examination by way of appeal.
• on the cancellation of the court decision, adopted in the cassation procedure, and the transfer of this criminal case for a new consideration in the cassation procedure.
• on amending the judgment, ruling or ruling of the court.

How to revoke a document

Please note! If one party disagrees with the cassation filed by the other party, the dissenting party is lawful to write a protest to the complaint. The response must state all the facts on the basis of which the previous judicial authorities made their decisions.

Also in the review, you can mention a number of additional materials and information that were not submitted for consideration in previous instances, but confirm that the cassation is unfounded.

There is no need to pay the state duty for filing a response to a cassation appeal.

To the Judicial Collegium for Criminal Cases

Supreme Court of the Russian Federation

from a lawyer ______________________

the address: __________________________

tel .____________________________

in defense of the convicted N. __________

(protection order attached)

APPEAL

(in accordance with Article 401.1 of the Criminal Procedure Code of the Russian Federation)

By the verdict ____________ of the district court ______________ of the region dated "___" ________ 20____, the general director of CJSC ____________ N .___________ was found guilty of committing a crime under paragraph "b", part 2, article 199 of the Criminal Code of the Russian Federation and sentenced to 2 (two) years and 6 (six) months of imprisonment with the deprivation of the right to hold executive positions in commercial organizations within 1 (one) year after serving the assigned sentence.

By the appellate ruling of the Judicial Collegium for Criminal Cases of the _______ regional court from "____" _______ 20 ____ g, the sentence was reduced to 2 (two) years in prison.

The rest of the verdict was upheld.

By the decision of the judge of the __________ of the regional court from "____" _______ 20 ___, it was denied the transfer of the cassation appeal for consideration in the court session of the court of the cassation instance - the Presidium of the ________ regional court.

At the same time, I believe that the specified verdict and the appeal ruling are subject to cancellation on appeal on the following grounds:

As explained in clause 1 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 01.28.14, No. 2 "On the application of the norms of Chapter 47.1 of the Criminal Procedure Code of the Russian Federation, regulating proceedings in the court of cassation" -

“Proceedings in the court of the cassation instance, being an important guarantee of the legality of court decisions in criminal cases and the implementation of the constitutional right of citizens to judicial protection, is intended to identify and eliminate significant violations of the criminal law (its incorrect application) committed by the preliminary investigation bodies or by the court during the preceding proceedings. and (or) the criminal procedure law that influenced the outcome of the case, and violations that distort the very essence of justice and the meaning of a court decision as an act of justice. "

In accordance with Article 401.1 of the Code of Criminal Procedure of the Russian Federation, the court of cassation verifies, on the basis of the arguments of the cassation appeal, the legality of the verdict that has entered into legal force. The legality of the sentence - this is its exact compliance with the procedure for criminal proceedings established in the Criminal Procedure Code of the Russian Federation, which is mandatory for all courts (part 2, article 1 of the Criminal Procedure Code of the Russian Federation).

Thus, if the cassation appeal contains arguments about violations of procedural or substantive criminal legislation made by the investigating authorities or courts, then these arguments must be verified by the appropriate court of the cassation instance. And if it is established that the court did not comply with the relevant provisions of the Criminal Code or the Criminal Procedure Code of the Russian Federation during the trial of a criminal case and sentencing, then the verdict cannot be recognized as legal and justified if the violations of the law committed by the court could influence and influenced the court's conclusions on the application criminal and / or criminal procedure law.

As indicated by the Constitutional Court of the Russian Federation in clause 4 of Resolution No. 18-P dated 08.12.03, - “ if at the pre-trial stages of criminal proceedings there have been violations of the norms of the criminal procedure law, then neither the indictment nor the indictment can be considered drawn up in accordance with the requirements of the Criminal Procedure Code of the Russian Federation ”.

Thus, if there are sufficient arguments in the cassation appeal for their verification in the court of cassation, the refusal of the judge of the ________ regional court to transfer the cassation appeal for consideration in the court session of the Presidium of the ______ regional court violated the right of convict N.___________ to access to justice, since the admitted in the criminal case, violations of the law were not eliminated by a lower court of cassation.

The arguments of the cassation appeal supporting the above are as follows:

1. Groundlessness of the sentence, entailing its illegality.

The court based the verdict on the materials of the tax audit without any critical assessment. The conclusions of the tax authorities were literally rewritten in the indictment. And the indictment was rewritten verbatim in the verdict. At the same time, in the court proceedings, the defense provided evidence, both in the form of written documents and in the form of oral testimony of witnesses, who were not given a legal assessment either in the tax audit act or in the decision of the tax authority on bringing CJSC _____________ to the tax responsibility, nor in the indictment.

The verdict only formally indicates that at the hearing, the defense provided the following evidence ____________________, however, the content of each of these evidences in the contested verdict was not disclosed, they were not given a cumulative legal assessment. No comparison has been made with the defense evidence. Although the court was obliged to compare all the evidence in the criminal case presented by both the prosecution and the defense, and to give an objective, comprehensive assessment of all the evidence examined in the court, and not only the materials that were formed by the tax authorities outside the criminal procedure. At the same time, the decisions of any non-judicial body cannot precede the conclusions of the court in the verdict.

As a result of the one-sidedness of the assessment of the evidence, the evidence of the defense was not refuted either in the trial or in the verdict.

The appellate ruling only formally states that the arguments of the defense were allegedly checked in the court of first instance, however, this statement does not correspond to either the protocol of the court session or the text of the verdict. Moreover, the arguments of the defense set out in the appeals and addenda to it were not discussed at all in the court session of the first instance court. For example, for the first time the expert opinion was presented not in the court of first instance, but in the court session of the Judicial Collegium for Criminal Cases __________ of the regional court. With regard to the protocols of the attorney survey ______________; ____________ and ___________, also presented to the court of appeal for the first time, then the court of first instance refused to call these persons for questioning in court as defense witnesses, indicating that they were not questioned at the preliminary investigation. In fact, the first instance court prevented the defendant from exercising the right to present evidence in his defense, although such a right was explained to him.

Convicted N.__________ did not fully admit his guilt in the charge brought against him and showed that all transactions concluded between CJSC ________ and LLC ______, LLC _______ and LLC _______ were real, not a single transaction without real movement and acceptance-transfer of goods was not ...

The testimony of the defendant N.____________ is confirmed by the written evidence examined in the court session and the testimony of witnesses _______________________ who worked at ZAO ________ and LLC ____________, including as freight forwarders and warehouse workers.

Thus, witnesses for the defense of ______________ confirmed the reality of all transactions with allocated VAT concluded with LLC ______, LLC ________ and LLC _________.

In the volumes _________ of the criminal case, examined in the court session, the sheets of the case ________ contain invoices, invoices and powers of attorney confirming the reality of transactions concluded with LLC ______ and LLC ________ for the total amount of __________ rubles, with the allocated VAT in the amount of ___________ rubles. ;

In the volume ______ of the criminal case, the materials of which were also examined in the court session, the sheets of the case _________ contain confirmation of the fact that ____________ were delivered from CJSC __________ to the address of LLC __________ and LLC ___________, which follows from the content of the examined documents provided by the tax authorities and seized an investigator from the offices and warehouses of CJSC _________; LLC ___________ and LLC ___________, as well as provided by the defense after the fulfillment of Article 217 of the Code of Criminal Procedure of the Russian Federation in the case.

In the court of appeal, the defense drew the attention of the Judicial Collegium to the decision of the tax authority, in which the trade documents were not taken into account as evidence of the availability of the goods, since the tax authority erroneously assumed that the contract with the one-day firm could not be executed. But, on what norm of the law such a statement is based - it is not indicated in the decision of the tax authority. The appellate court refused to summon the tax officials who carried out the inspection and drew up the Tax Inspection Report to the court session, therefore the arguments of the defense in this part were not verified and, accordingly, were not refuted. Therefore, the Judicial Panel had no reason to reject the arguments of the defense, which were not refuted.

In volume _____ on the sheet of case ______ there is a resolution on refusal to initiate a criminal case from "___" ______ 20__, where the reasoning part indicates that the goods from LLC _______ and LLC _______ were supplied, accounted for and subsequently sold under contracts with ___________, which confirms not only the availability of the goods, but also the buying firms (according to the episode with LLC ________).

The foregoing reveals contradictions in the text of the indictment on page ______, literally transferred into the text of the verdict (page ______). Thus, the conclusion of the tax authorities that these transactions were allegedly fictitious is also refuted on the grounds that at the time of the tax audit these documents were absent.

However, the absence of documents does not mean the absence of goods. It can only be reasonable to conclude that there was a product, but there were no documents. Which, were provided to the tax authority in copies, restored before the tax authority's decision was made to identify the tax arrears. As for the restoration of documents, their originals were seized by the investigating authorities, in accordance with the search report dated "____" _________ 20___.

Instead of refuting the arguments of the defense in this part, and proving the prosecution, the prosecution did not present any real evidence, except for references to the personal opinion of the tax authorities and the opinions of experts, which indicate the amount of VAT on the payments received, but in none of the investigated in the court does not say that the indicated amounts of VAT were paid in the manner prescribed by the Tax Code of the Russian Federation, which is confirmed by warehouse documents seized by the investigating authorities, which are named in the verdict as alleged evidence of the charge, but all these documents do not confirm, but, on the contrary, they refute the version of the accusation about the alleged lack of goods, which were paid for and received by the counterparties of CJSC _________, taking into account its cost price and accrued VAT. None of these deliveries of goods were disputed or recognized as imaginary in the manner prescribed by law, namely, by the decision of the Arbitration Court. Neither the investigator nor the tax authorities are endowed with the competence of the court to consider disputes between economic entities on the improper execution of contracts concluded between them.

With such data, the contested verdict cannot be recognized as meeting the requirements of the criminal procedure legislation governing the decision of the verdict, its structure and content.

1. Unlawfulness of the appellate ruling.

The procedure for considering a criminal case in a court of appeal is clearly regulated by the norms of Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation, including the actions of a court of the second (appeal) instance to examine evidence.

The necessary explanations were given to the courts in the Resolution of the Plenum of the RF Armed Forces dated November 27, 2012, No. 26 “On the application of the norms of the RF Criminal Procedure Code governing proceedings in the court of appeal”. So, in clause 13 of the Plenum it is indicated that -

"Within the meaning of part 7 of Article 389.13 of the Criminal Procedure Code of the Russian Federation, the court asks the parties about the need to verify the evidence that was examined by the court of first instance, and with the consent of the parties, it has the right to consider an appeal or presentation without checking this evidence."

However, in the minutes of the court session of the court of appeal, there is no information about the actions of the Judicial Collegium and the parties to examine the evidence listed in the written request of the defense attached to the appeal.

By virtue of the imperative requirements of clauses 6, 7, part 3, article 389.28 of the Criminal Procedure Code of the Russian Federation, the appeal ruling must contain a summary of the arguments of the appeal, the objections of the prosecution and the reasons for the decision taken by the Judicial Collegium. All this must be confirmed by the minutes of the court session.

However, as can be seen from the text of the appellate ruling, these unconditional requirements of the criminal procedure law have not been fulfilled by the court of appeal.

At the same time, the defense side not only drew the attention of the court of appeal to the one-sidedness of the court's conclusions in the verdict, but provided additional arguments and evidence in support of the appeal in the court session of the court of appeal.

Thus, the defense drew the attention of the Judicial Collegium to the fact that when the verdict was passed, the fact that the footnote to Article 199 of the Criminal Code of the Russian Federation indicated that - “ an especially large amount in this article, as well as in article 199.1 of this Code, is recognized as the amount of taxes and (or) fees amounting to more than 10 million rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) fees exceeds 20 percent to be payment sums taxes and (or) fees, or exceeding 30 million rubles…."- and in the accusation brought against N. and in the verdict the period from __________ to __________ is indicated, the duration of which is 45 months, which does not correspond to the criminal law, that is, neither the investigator nor the court has found out whether the amount of allegedly unpaid taxes is more than 30 million rubles for a period of 3 financial years in a row, and not for 3 years and 9 months. If there is no answer to this question in judicial acts, then, by virtue of the presumption of innocence, this circumstance means lack of proof, as well as the absence in the actions of the convicted N. of the corpus delicti provided for in Article 199 of the Criminal Code of the Russian Federation.

In the appellate ruling, not only is there no answer to this defense argument, but this argument itself is not given in strict accordance with its wording in the appeal. The appellate ruling does not contain any objections of the prosecution to this defense argument, in connection with which the appeal ruling also cannot be recognized as legal, that is, complying with the requirements of Article 389.28 of the Code of Criminal Procedure of the Russian Federation.

In addition, in the court session of the court of appeal, the defense side presented invoices, invoices and powers of attorney received at a lawyer's request from _________ LLC and _________ LLC, confirming the reality of transactions concluded with CJSC ______ for a total amount of ___________ rubles, with VAT allocated in amount ___________ rubles. The appellate ruling states that these arguments of the defense were allegedly verified and rejected in the verdict, however, these statements of the Judicial Collegium do not correspond to reality, since these documents were obtained at the request of a lawyer after the verdict was passed and could not be verified in the proceedings of the court of first instance. At the same time, the court of first instance refused to demand this evidence, agreeing with the objections of the prosecutor that the reclamation of all these documents would allegedly entail a delay in the trial and that the materials of the criminal case presented to the court were supposedly sufficient to pass a verdict (minutes of the court session from "___" _______ 20___ , page 3, middle).

Thus, the court of first instance limited the defense's ability to collect and present evidence, and the court of appeal did not give any legal assessment of these illegal actions of the prosecutor, the prosecutor and the judge of the court of first instance, which did not ensure the constitutional right to defense.

It is clear that the evidence presented by the defense contradicts the testimony of the prosecution witnesses and refutes them, but the court in the verdict and the Judicial Collegium in the appeal ruling did not indicate the reasons why they rejected this defense evidence, and did not refer to the materials of the criminal case. nor on the norms of the law, allowing to ignore this evidence and the arguments of the defense based on it about the illegality of the sentence.

Not refuted in the appellate ruling and arguments of the defense that the testimony of the prosecution witnesses are contradictory and were clarified several times by them throughout the preliminary investigation. At the same time, the prosecution witnesses _____________, ____________, ___________ and ____________ questioned in court could not refer either to the source of their knowledge, or to the primary documents of the financial and economic activities of CJSC _________, even after they were presented with the protocols of their interrogations due to their strange forgetfulness, which they explained by the fact that a long time had passed.

The verdict does not say anything about this forgetfulness of all the prosecution witnesses, although the court had to read out all the protocols of their interrogations in order, as the prosecutor put it, to “refresh” their memory. There was also no legal assessment of the fact that the protocols of the interrogations of all these witnesses coincide, down to the commas, literally. Which could not have happened if the witnesses had been questioned without any influence from the investigator. In the ruling of the judge ________ of the regional court, there is not a word about these arguments of the cassation appeal.

In such circumstances, the reference in the verdict to the testimony of such "witnesses" for the prosecution is nothing more than a reference to the assumptions of all these persons, which are not objectively confirmed by anything. Moreover, the defense side petitioned to exclude these protocols from the evidence in the case, but the court recklessly refused to satisfy such a petition.

clause 4, Resolution of the Plenum of the Armed Forces of the Russian Federation No. 1 dated 04.29.96 "On the court verdict" reads - “A conviction cannot be based on assumptions and is decided only on the condition that during the trial the guilt of the defendant in the commission of the crime is proved. In this regard, the courts should proceed from the fact that the verdict of guilty must be rendered on reliable evidence, when all the versions that have arisen have been investigated in the case, and the existing contradictions have been clarified and assessed. "

But, as mentioned above, the numerous contradictions between the evidence of the prosecution and the evidence of the defense have not been clarified and evaluated either by the court of the first or the court of the second (appellate) instance, since both in the verdict and in the appeal ruling, in violation of the requirements of Part 4, Art. 7 of the Criminal Procedure Code of the Russian Federation, there are no conclusions of the courts on these issues and the reasons for the decisions made.

We draw the attention of the court of cassation to the fact that the testimonies of the prosecution witnesses, which form the basis of the conviction, contain doubts unresolved in the courts about the reliability (veracity) of these testimonies, and according to the exact meaning of the criminal procedure legislation, all doubts that were not eliminated in the verdict must be interpreted in favor of the defendant. This also applies to the reliability of the testimony of the witnesses, which the court referred to in the verdict. The duty of the court to verify the accuracy of the testimony of the interrogated persons is established by the provisions of Articles 85-88 of the CCP RF.

To refute the reliability of the testimony of the prosecution witnesses __________; ____________; ______________; ______________, the defense presented to the court of appeal the protocols of the lawyer's survey of citizens _________; ____________; ____________ and ___________, as well as a petition was filed to summon these persons to the court of appeal for questioning as defense witnesses, however, the petition was unlawfully denied on the grounds that these persons were not interrogated in the court of first instance.

As can be seen from the text of the appeal ruling, no answer was given to these arguments of the appeal, the protocols of the attorney's interview were ignored, although the information contained in them was directly related to the subject of proof in the criminal case.

A formulaic statement about the correctness of the court's conclusions cannot replace the obligation to refute each argument of the defense. Thus, this provision of the constitutional principle of the presumption of innocence was not ensured by the lower courts.

The judge of the ________ regional court also did not give an answer to the arguments of the cassation appeal about the absence of an answer to these arguments in the appeal ruling. At the same time, the judge could not refuse to transfer the materials of the criminal case for their verification in the court of cassation, if the arguments of the defense set out in the cassation appeal were not refuted by the content of the sentence and the appeal ruling.

In addition to procedural violations committed by the court of first instance, the Judicial Collegium did not respond to the violation by the investigating authorities and the court of substantive criminal law, as already mentioned above. At the same time, the defense drew the court's attention at the preliminary hearing to the investigator's ignorance of the provisions of the footnote to Article 199 of the Criminal Code of the Russian Federation, but it was useless.

Considering all the above, I believe that the contested verdict should be canceled with the termination of the criminal proceedings due to the lack of proof of the presence of a tax crime in the actions of the convicted N.

Based on the foregoing, guided by Art. art. 401.1, 401.14 - 401.16 of the Code of Criminal Procedure of the Russian Federation, -

I BEG:

The verdict and the appellate ruling in relation to the convicted N. undo.

Criminal case to terminate production due to the absence of a tax crime in N.'s actions, according to the footnote to Article 199 of the Criminal Code of the Russian Federation.

ATTACHMENT:

1. Lawyer's warrant;
2. Sentence;
3. Appellate ruling;
4. The decision of the judge _________ of the regional court to refuse to transfer

cassation appeal for consideration in court session

the cassation instance - the Presidium ________ of the regional court;

1. A copy of the decision to refuse to initiate a criminal case;

"___" ___________ 20 _____ g Attorney ________________

EXPLANATORY NOTE

The proposed version of the cassation appeal contains general collective recommendations on the form and content of the cassation appeal sent to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation. This is the second cassation instance after the Presidium of the court of the subject of the federation.

It is possible to file a cassation appeal with the second cassation instance only after passing the first one.

Earlier, we have already made recommendations for the actions of the defense in a cassation appeal against a verdict that has come into legal force, by sending a cassation appeal to the Presidium of a court of a constituent entity of the Federation - a lower court of cassation in relation to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, therefore we omit some of these recommendations so as not to repeat yourself. At the same time, the text of the second cassation complaint sent to the court of cassation of the Supreme Court of the Russian Federation may repeat the text of the first one, since we are talking about the same arguments that were not correctly resolved by the lower courts - this is the main meaning of the complaint sent to the higher Judicial authority.

Thus, in a criminal case against a verdict that has come into legal force, passed by a district court, two cassation appeals can be filed - the first to the Presidium of the corresponding court of the subject of the Federation and the second to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation. At the same time, the Judicial Collegium of the Armed Forces of the Russian Federation can be filed with a cassation complaint only after a response is received from the judge of the corresponding court of the constituent entity of the federation about the refusal to transfer the first cassation complaint for consideration in the court session of the Presidium of the corresponding court of the constituent entity of the federation (regional court, JSC or republic ).

It should be noted that, unlike the first cassation appeal, the refusal of a judge of the RF Armed Forces to transfer the cassation appeal (second) for consideration in a court session by a court of cassation - the Judicial Collegium of the RF Armed Forces - is not final. This decision of a judge of the RF Armed Forces can be appealed to the Chairman of the RF Armed Forces (part 3, article 401.8 of the RF Criminal Procedure Code).

Although Article 401.1 of the Code of Criminal Procedure of the Russian Federation states that only the legality of the verdict is appealed in cassation, this should not be understood to mean that in the cassation appeal it is impossible to argue that the verdict is unfounded. If the verdict contains unfounded conclusions, for example, in relation to the actual circumstances of the criminal case, then this also means the illegality of the application by the court of the norms of the law, which are determined by the legal facts established by the court of first instance. Here it is necessary to clearly show the connection between such signs of a judicial act as its legality and validity. If the arguments about the unfoundedness of the sentence are associated with arguments about its illegality and are inseparable, then the court of cassation must check these arguments and give them a legal assessment.

It should be noted that violations of the rules of substantiation or motivation of decisions made by the lower courts mean a violation by the courts of the provisions of Articles 85-88 of the Code of Criminal Procedure of the Russian Federation. Procedural violations (violations of the procedure) refer to arguments about the illegality of the sentence in terms of non-compliance with the procedure of criminal proceedings. Significant violations, that is, those that influenced the court's conclusions on the issues of proving the circumstances of the criminal case, provided for in Article 73 of the Code of Criminal Procedure of the Russian Federation, form unconditional grounds for canceling and revising the contested verdict.

The concept of groundlessness of proof and inadmissibility of evidence used in proof should not be confused. Inadmissible evidence, after being recognized as such, is excluded from the list of evidence and does not entail any legal consequences. They cannot be referenced. They cannot check and evaluate other evidence. The groundlessness of the court's conclusions, which arose due to the use of inadmissible evidence by the court, refers to the illegality of these conclusions and, accordingly, the illegality of the verdict, if without these conclusions the verdict cannot be passed. For example, the inadmissibility of material evidence entails the inadmissibility of a forensic examination in the part in which this examination contains a study of material evidence and their substantiation of the experts' conclusions (the rule of "the fruits of a poisoned tree"). The inadmissibility of the protocol on the seizure of the instrument of crime means the absence of this object with all the ensuing consequences, for example, with the exclusion of the sign “using objects as weapons”.

An appeal in cassation provides for an appeal against an appeal ruling and / or judgment. The cassation appeal is also formulated in the corresponding way. If both the verdict and the appellate ruling are appealed in the cassation procedure, then the cassation complaint must contain the appropriate arguments both in relation to the contested verdict and in relation to the contested appellate ruling.

Regardless of the fact that the first cassation appeal was previously filed with a lower court of cassation - the Presidium of a court of a constituent entity of the Russian Federation - with certified copies of the appealed court decisions, the second cassation appeal to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation must also be attached without fail. certified copies of the contested judicial acts and an order of a lawyer to participate in the court of the cassation instance, since this is a different court of the cassation instance.

Otherwise, the cassation appeal will be returned to eliminate the shortcomings in its execution. After elimination of these shortcomings, the cassation appeal may be re-submitted to the same court of the cassation instance.

The cassation appeal may be accompanied by documents confirming the arguments of the cassation appeal. But, these documents cannot contain information that was not known to the lower courts of the first and second (appeal) instances. Otherwise, these "new" arguments are subject to consideration in a different procedural order - in accordance with Chapter 49 of the Code of Criminal Procedure of the Russian Federation. In the court of cassation, such arguments cannot be taken into account for the purpose of quashing or changing the contested sentence, since these arguments will go beyond the scope of cassation proceedings in a specific criminal case, which was considered in the amount of its materials, as well as additional materials submitted by the parties in the court of first and appellate instances (the rule of instance in criminal proceedings - limiting the verification of decisions of a lower court by a higher court by the amount of evidence available to a lower court).

Unlike an appeal, consideration of a criminal case in cassation procedure is possible only if the judge of the corresponding court of the cassation instance issues a resolution on the transfer of the cassation appeal for consideration in the court session of the court of the cassation instance, which has not yet considered this criminal case. For example, a judge of a court of a constituent entity of the federation refused to transfer the cassation appeal to the Presidium of a court of this level for consideration. After that, the second cassation appeal was sent to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, and the judge of the Armed Forces of the Russian Federation issued a resolution on the transfer of the cassation appeal for consideration in the court session of the court of the cassation instance. Such a court will be the Presidium of the court of the constituent entity of the federation, since it has not yet considered this criminal case by way of cassation.

As mentioned above, the decision of a judge of the RF Armed Forces to refuse to satisfy the cassation appeal may be appealed to the Chairman of the RF Supreme Court. In this case, it is not the decisions of the lower courts that are appealed to the Chairman of the RF Armed Forces, but the ruling of the RF Armed Forces judge refusing to transfer the cassation appeal for consideration in the court session of the relevant court of the cassation instance (Part 3, Article 401.8 of the RF Code of Criminal Procedure). Thus, when the cassation appeal is sent to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, the decision of the judge of the lower court of the cassation instance (the court of the subject of the federation) is not appealed. Only the appeal ruling (ruling, verdict) and / or the ruling of the court of first instance, as well as the ruling (ruling) of the lower court of cassation (the court of the subject of the federation), if the criminal case was considered by this court, are appealed. However, this does not exclude the right of the cassation officer to bring in the (second) arguments in the cassation appeal in relation to the refusal decision of the judge of the court of the subject of the federation. Moreover, it is advisable to formulate the arguments of the second cassation appeal, taking into account the conclusions of the judge of the court of the constituent entity of the federation that the first cassation appeal allegedly does not contain sufficient grounds for transferring the cassation appeal for consideration in the court session of the court of the cassation instance.

At the same time, the absence in the judge's ruling of justification for such a refusal can be used as an additional argument about the absence of grounds for refusing to satisfy the arguments of the cassation appeal.

When filing a cassation appeal, one must be guided by the powers of the court of the cassation instance (Article 401.16 of the CCP RF) and ask for the adoption of only such a decision that the court of the cassation instance is entitled to adopt (Article 401.14 of the CCP RF). Under this request, the arguments of the cassation appeal must be systematized. The credibility of the complaint depends on this.

====================================================================================================

The procedure for filing a cassation complaint, its consideration, terms and categories of persons authorized to file it are reflected in the Code of Criminal Procedure of the Russian Federation. Judicial practice and the Resolution of the Armed Forces of the Russian Federation can be auxiliary regulatory legal acts for the full preparation of a document.

What it is

Cassation appeal in a criminal case - This is a document that is submitted to challenge a court decision that has not yet entered into force. They file a cassation appeal in case of disagreement with the decision of the judge in a particular case, if the procedure for consideration is violated, or the rights and freedoms of the convicted person are violated.

A complaint is filed if:

1. Violation of conditions or obligations by a person.
2. After the judgment was rendered, socially dangerous consequences followed because of the crime committed by the accused.

Where to go

An appeal in cassation is filed with one of the following judicial authorities:

• Presidium of the RF Armed Forces (to the regional court, the court of the republic, etc.);
• To the judicial board of the Armed Forces. RF.

The Supreme Court of the Russian Federation has greater competence in comparison with. According to the cassation, the consideration of cases takes place with the participation of at least three judges, in - by the majority of the members of the Presidium of the Supreme Court. RF.

How to write a cassation appeal in a criminal case

There are two ways to write a complaint:

1. Contact a legal advisor.
2. Write yourself.

If all the questions disappear when choosing the first option, point two makes you think about how to correctly state your claims. You should start writing a complaint with the indication:

1. Instance names - where the complaint is sent, from whom, the procedural status of the person, his (city, street, house, apartment), phone number and postal code.
2. Shipswho made the decision, the number and part of the article, the name of the crime, the type of punishment (Note: detention, imprisonment).
3. The essence of the complaint, i.e. reference to the normative legal acts that have been violated (link to the article of the Criminal Procedure Code, the Constitution or other normative legal acts). Claims and violations of the judicial process are described (For example: witnesses were not interviewed, evidence proving the innocence of the defendant was not attached to the case file, you should refer to the appeal ruling, which left the case without consideration or duplicated the decision of a lower court).
4. Foundations, on which the decision of the appellate instance did not satisfy the applicant.
5. Presentation your petition (to cancel or change a court decision, change the qualification of a crime, etc.).

Sample 2020

To the judicial board for criminal cases
Supreme Court of the Russian Federation
From Khlebnikov Sergei Semenovich

Defendant in case No. 286406

Residing at the address: Togliatti
st. Karl-Marx, 34, apt. 46 Tel .: 89298563556
Postal address: 445030

APPEAL

By the verdict (name of the court) Tolyatti, dated November 10, 2017, in a criminal case, Sergey Semenovich Khlebnikov, born on April 16, 1979, was found guilty of stealing firearms and convicted under Part 1 of Art. 226 of the Criminal Code of the Russian Federation; I have been sentenced (write the term and type of conclusion).

I (actions that were committed in relation to the case, for example: appealed)but the definition (name of the court in which the decision was made) The complaint was not considered in Togliatti.

The court found me guilty using the following evidence:

1. Testimony of witnesses.
2. Video camera recording from the crime scene (which was not presented in court).

I disagree with the decision , I consider it to be passed with violations (which law, Criminal Code, Criminal Procedure Code, Code of Administrative Offenses), the following reasons:

1. The evidence presented by S.R. Nigmatullin should be considered inadmissible, since the moment of the crime Nigmatullin S.R. (witness) I have not personally seen it, but I received the information from ().
2. During the investigation of the circumstances of the case, I was in an unstable mental state due to excitement, I was not able to soberly assess the situation, the testimony I gave, incriminating my criminal attitude to the case, I explain by my severe mental health, I did not use the services of a lawyer.
3. The appellate instance did not consider my arguments, did not answer the questions asked, and duplicated the verdict (name of the court that made the decision).
4. At the stage of appeal, it was not considered. In this case, the panel of judges referred to (name of the court that made the decision).

In view of the above, I believe that the named definitions (name of the court that made the decision) and (name of the appellate instance), are not based on the norms of the Criminal Procedure Code and are subject to cancellation on the following grounds:

Violations of the CPC PF that affected the outcome of the case (). When making a decision, the court was guided by inadmissible evidence, namely: the testimony of the witness S.R. Nigmatullin. which were based on guess

Based on the foregoing and guided by (the number of articles to which the convicted person refers, in this case it is article 401.15 of the CCP).

I BEG:

Sentence (name of the court that made the decision) Togliatti from November 10, 2017 (name of the court that made the decision) Togliatti (write the desired decision regarding the verdict:, etc.).

Applications

(both instances) Date and signature.

Brief Complaint

Using the above model, you can fill out claims based on a court order, the article on which the court issued a verdict, and make a list of violations or shortcomings in the proceedings. There are no clear rules for writing, tips are highlighted in italics.

Deadline for submission and consideration

1. The court of the cassation instance considers the complaint (with the exception of the RF Armed Forces) in time no more than thirty days from the moment the document was received by the cassation court. If the criminal case was withdrawn for verification, then within a period not exceeding sixty days, from the moment of admission to court.
2. In the Supreme Court of the Russian Federation, the document is considered within sixty days from the moment of admission. If the criminal case was withdrawn for verification, - within one hundred twenty days, from the moment the document was submitted to the court.
3. The deadline for submission of the document is provided during a year from the moment the judgment enters into force when the article is changed to a more serious one. The CPC does not provide for a time frame for filing a cassation appeal to improve the situation of a person (that is, it is allowed to submit a complaint at any time after a court verdict has been passed).

To the judicial board for criminal cases

Supreme Court of the Russian Federation

121260, Moscow, Povarskaya st., 15

From a lawyer of the NGO "Samara Regional Bar Association"

Antonova A.P., reg. No. 63/2099 in the register of lawyers of the Samara region

Address for correspondence: 443080, Samara,

karl Marx Avenue, 192, of. 619, tel. 8-987-928-31-80

In defense of interestsL., convicted by sentence

Kuibyshevsky District Court of Samara

under Part 2 of Art. 228 of the Criminal Code of the Russian Federation to imprisonment for a period of 4 years,

with serving a sentence in a penal colony with a strict regime

criminal case No.

Appeal

on the verdict of the Kuibyshevsky District Court of Samara from DATE, the appeal ruling of the Samara Regional Court from DATE, the ruling of the Samara Regional Court from DATE

By the verdict of the Kuibyshevsky District Court of Samara from DATEL. was found guilty of committing a crime under Part 2 of Art. 228 of the Criminal Code of the Russian Federation for illegal acquisition and storage without the purpose of selling the narcotic drug heroin (diacetylmorphine) on a large scale, and he was sentenced to imprisonment for a period of 4 (four) years without the application of additional punishment in the form of a fine and restriction of freedom, with the serving of the sentence in a penal colony with a strict regime.

By the decision of the Judicial Collegium for Criminal Cases of the Samara Regional Court from DATE, by the decision of the Samara Regional Court from DATE, the judgment of the Kuibyshevsky District Court of Samara from DATE against L. was left unchanged, the appeal of the convicted person and additions to it by the lawyer Antonov A.P., and also the cassation appeal of the lawyer Antonov A.P. - without satisfaction.

The defense does not agree with these decisions, considers the sentence passed against L. unfair due to the excessive severity of the punishment imposed by the court.

At the same time, in the decision of the Samara Regional Court there are no motives for which the arguments set out in the cassation appeal of the defender are not taken into account.

In the cassation appeal against the verdict from DATE, the appeal ruling from DATE, considered by the Samara Regional Court, the following arguments were stated, which the court did not take into account:

- for 6 years after L.'s release, he was not brought to criminal responsibility, which indicates that the defendant has embarked on the path of reform;

- L. has a permanent place of residence;

- the convict has persistent drug addiction;

- establishment of the fact of employment;

- absence of grave consequences as a result of the committed crime.

These circumstances could have significantly influenced the decision, but they were not taken into account by the court.

The court took into account in accordance with paragraph "b" Part 2 of Art. 18 of the Criminal Code of the Russian Federation, as an aggravating circumstance, a dangerous recidivism of the crime, since L. was previously convicted by the verdict of the Zheleznodorozhny District Court of Samara from DATE under Art. 30 h. 3, 228.1 h. 1, 64 of the Criminal Code of the Russian Federation to 3 years in prison, released DATE on parole for 8 months 10 days.

His guilt in committing a crime under Part 2 of Art. 228 of the Criminal Code of the Russian Federation L. fully admitted, the plea of \u200b\u200bguilt was made by the defendant voluntarily, he repented of what he had done.

From the materials of the criminal case it follows that DATA L. acquired a narcotic drug - heroin (diacetidmorphine) weighing 7.87 grams, on a large scale, for personal use.

The court passed the verdict without a trial (in a special order on the basis of Article 314 of the Code of Criminal Procedure of the Russian Federation).

When determining the measure of punishment, the court took into account that L. committed a deliberate grave crime, fully admitted his guilt, repented of what he had done, is not registered with a neuropsychiatric dispensary, is registered in a narcological dispensary with a diagnosis of opioid dependence syndrome, characterized by place of residence to the district representative satisfactorily, neighbors and at the former place of work - positively.

At the same time, the court did not attach due importance to the personality of the defendant. The court did not take into account that for 6 years after L.'s release, he had not been brought to criminal responsibility, that the defendant had taken the path of reform. Previously, at the place of serving the sentence, he was characterized satisfactorily, in connection with which DATE was released on parole.

The court did not assess the fact that L., during his arrest, voluntarily pointed to the items of clothing and the narcotic drugs in them that were prohibited for free civil circulation, voluntarily informed the contacts - from whom he acquired the drugs and detailed details of the crime, thereby assisting the investigation in solving the crime, he fully admitted his guilt and repented of his deeds.

Unreasonably, the Samara Regional Court, in its ruling from DATA, did not take into account the defense's argument about active assistance in the disclosure and investigation of the crime. The court justifies this conclusion by the fact that L. did not provide specific information that would allow the police officers to stop the criminal activities of the person distributing narcotic drugs.

At the same time, the court did not indicate how the lack of accurate information about the person selling narcotic drugs created obstacles to the investigation of the crime committed by L.

The information about the person who sells drugs is important in the investigation and disclosure of the sale of drugs. Establishing accurate information about the identity of the drug trafficker is the responsibility of law enforcement agencies. L., in turn, provided all information known to him at the time of his arrest. As follows from the transcript of the interrogation of the accused from DATE (ld 56-59), the contact details of the person from whom he acquired the drug are on the phone he lost on the day of his arrest. At the same time, it does not follow from the materials of the case that the telephone was found in L.'s possession, and therefore there is no reason to doubt the veracity of these testimonies. However, L. was provided with information about the telephone number from which he made calls to the drug dealer.

The court did not examine the question of whether the police officers checked the information provided by L., whether the details of the calls were requested. There is no documentary evidence of the court's conclusions that the convict's behavior did not contribute to the identification of the person selling drugs.

In connection with the above, the conclusion of the Samara Regional Court that L.'s actions cannot be recognized as an active contribution to the disclosure and investigation of the crime seems to be unfounded.

The court did not give a proper assessment of the presence of persistent drug addiction, which, according to the DATA expert's opinion, requires mandatory treatment for drug addiction, a set of medical and social rehabilitation measures (drug use every day since 2006, intravenously, drug registration since May 2008, primary treatment has not given results, there is a desire to continue treatment).

L. underwent primary treatment for drug addiction, but it did not give results. L. has a disease - HIV infection. However, the convict has a strong desire to continue treatment.

The case file contains a submission from DATE No. NUMBER of the Department for the Investigation of Crimes Committed in the Kuibyshevsky District of Samara, the Directorate of the Ministry of Internal Affairs of Russia in Samara on taking measures to eliminate the circumstances conducive to the commission of crimes (case file 143).

According to this submission, when considering the materials of the criminal case against L. in the actions of the Samara Regional Narcological Dispensary, the lack of preventive work with persons registered in the narcological dispensary, preventive control was revealed, which served as the reasons and conditions for the commission of the crime.

L., as a person suffering from persistent drug addiction, has the right to count on qualified assistance. In relation to him, preventive measures should be organized. However, the doctors did not talk with L. about the inadmissibility of using drugs, no information was provided about medical institutions where drug addiction treatment could be received, no support or assistance was provided.

Thus, the reason for the crime was the fact that L. had persistent drug addiction in the absence of qualified assistance.

These circumstances significantly reduce the degree of public danger of the crime committed by L..

To prevent the commission of new similar crimes, L. needs treatment for drug addiction, and not long isolation from society.

The court also formally approached the establishment of the fact of L.'s employment, indicating in the verdict that the latter did not work. In the materials of the criminal case there is a characteristic from the place of work, which confirms that in the period before his arrest - from DATE to DATE L. worked as a tinsmith of the 4th category at IE “M.”, has a diploma of an auto mechanic. In accordance with the characteristics from the place of work, L. is friendly to colleagues and clients of the company, is polite and courteous, an honest, calm and stress-resistant employee, he is not noticed in violation of discipline, in the team he showed himself as a reliable comrade, ready to help colleagues and support them in any situation, decisions are made in a balanced and reasonable manner, there were no disciplinary penalties for the entire period of work.

The court did not take into account that the defendant has a permanent place of residence, has been living permanently since 1995 with his parents at the address: ADDRESS.

At the same time, L. has a young child BIRTH YEAR, who lives with his ex-wife. Before the conviction, he regularly communicated with the child, helped financially.

According to paragraph 2. of Art. 43 of the Criminal Code of the Russian Federation, punishment is applied in order to restore social justice, as well as to correct the convicted person and prevent the commission of new crimes.

According to paragraph 3 of Art. 60 of the Criminal Code of the Russian Federation, when sentencing, the nature and degree of social danger of the crime and the personality of the perpetrator are taken into account, including circumstances mitigating and aggravating the punishment, as well as the impact of the imposed punishment on the correction of the convict and on the living conditions of his family.

According to paragraph 1 of Art. 6 of the Criminal Code of the Russian Federation, punishment and other measures of a criminal-legal nature applied to a person who committed a crime must be fair, that is, correspond to the nature and degree of social danger of the crime, the circumstances of its commission and the identity of the perpetrator.

We believe that the court did not take into account the above circumstances, and therefore did not unreasonably apply Part 3 of Article 68 of the Criminal Code of the Russian Federation, thereby violating the norms of Part 1 of Article 6 of the Criminal Code of the Russian Federation.

According to paragraph 2 of Art. 61 of the Criminal Code of the Russian Federation, when sentencing can be considered as mitigating and circumstances not provided for in Part 1 of Art. 61 of the Criminal Code of the Russian Federation.

In accordance with Part 3 of Art. 68 of the Criminal Code of the Russian Federation, for any type of recidivism, if the court establishes mitigating circumstances provided for in Article 61 of this Code, the term of punishment may be assigned less than one third of the maximum term of the most severe type of punishment provided for the crime committed, but within the limits of the sanction of the corresponding article of the Special part of this Code, and in the presence of exceptional circumstances provided for in Article 64 of this Code, a milder punishment may be imposed than provided for the given crime.

The minimum period in accordance with Part 2 of Art. 68 of the Criminal Code of the Russian Federation is 3 years 4 months.

Thus, in connection with the establishment by the court, when passing this judgment, that L. had mitigating circumstances, provided for by Art. 61 of the Criminal Code of the Russian Federation (repentance for the deed, the presence of a dependent son BIRTH YEAR, admission of his guilt, the presence of a disease - ...), the court could impose a sentence of less than one third of the maximum term of the most severe type of punishment provided for the crime committed (less than 3 years 4 months ), but within the limits of the sanction of the relevant article of the Special Part of this Code.

The criminal law provides for the possibility of imposing a punishment on L. within the limits of the sanction of Article 228, part 2 of the Criminal Code of the Russian Federation - 3 years of imprisonment.

Taking into account the above circumstances, I ask the court to change the verdict, to mitigate the sentence imposed on the convicted by the court of first instance, reducing the term of imprisonment to three years.

Based on the foregoing, guided by Part 7 of Art. 316 of the Code of Criminal Procedure of the Russian Federation, art. Art. 389.35, 401.2-401.4, 401.15 of the Code of Criminal Procedure of the Russian Federation,

ASK THE COURT:

The verdict of the Kuibyshevsky District Court of Samara from DATE, the appeal ruling of the Samara Regional Court from DATE, the decision of the Samara Regional Court from DATE to change, reduce the sentence to 3 years in prison.

Applications:

• copy of the verdict of the Kuibyshevsky District Court of Samara from DATE,

• copy of the appeal ruling of the Samara Regional Court from DATE,

• copy of the decision of the Samara Regional Court from DATE,

• attorney's order

Lawyer ______________________ A.P. Antonov