Art. 90 CCP RF: application features

The facts established by the sentence, the decision approved in the framework of civil, administrative or arbitration proceedings and entered into force, are recognized without additional verification. This rule establishes Art. 90 of the Code of Criminal Procedure. обстоятельства, зафиксированные приговором, принимаются всегда, кроме случаев вынесения постановления в порядке, установленном статьями 317.7, 316 или 226.9 Кодекса. In criminal cases, the circumstances recorded by the verdict are always taken, except for cases of issuing a resolution in the manner established by Articles 317.7, 316 or 226.9 of the Code. The order extends to the prosecutor, investigator, inquirer, officials authorized to conduct the proceedings. Such decisions and sentences should not prejudice the guilt of the subjects who did not participate in the proceedings.

Art. 90 of the Code of Criminal Procedure with comments

Within the framework of the article in question, a notion such as prejudice is established. This definition has Latin roots. In a literal translation, it means a predetermination. Art. 90 of the Code of Criminal Procedure (in a new wording) establishes the duty of authorized persons to take, without additional checks, circumstances that are recognized as decisions and sentences that have entered into force and passed in the framework of other proceedings in respect of that entity.

An Important Moment

When applying Art. исходит из необходимости повторно изучить и оценить доказательства, если в постановлениях присутствуют положения, предрешающие виновность субъектов, не участвовавших ранее в рассмотрении. 90 of the Code of Criminal Procedure of the Russian Federation, judiciary practice proceeds from the need to re-examine and evaluate evidence if there are provisions in the judgments that prejudge the guilt of subjects who did not participate in the review earlier. For example, it is said that the defendant committed an act in complicity with persons not established by the investigation. The instance conducting the new proceedings against the persons for whose acts such "prejudicial" decisions are made, can not convict them only on the basis of these acts. Otherwise, these entities could not use their right to protection.

Specificity of concepts

The term "guilt", present in art. , нельзя отождествлять с "виной". 90 of the Code of Criminal Procedure , can not be identified with "guilt". The first concept involves the perpetration by a subject of a specific action, including the signs of a crime. Guilt refers not only to the subjective, but also the objective side. It is incorrect to represent the position of Art. 90 of the Code of Criminal Procedure so that a previously pronounced verdict or other decision can not prejudge only the issue of fault (negligence, intent) of persons who did not previously participate in production, although they may presume the circumstances of the objective part of the act.

Specificity of involving subjects in production

The position of art. о том, что постановлением не может предрешаться виновность граждан, ранее не участвовавших в разбирательстве, нужно понимать следующим образом. 90 of the Code of Criminal Procedure that the decision can not prejudice the guilt of citizens who did not participate in the proceedings before, should be understood as follows. In relation to persons who were not involved at all in production or were involved in it, but not in the status of the accused, but, for example, as witnesses, the pre-judicial force of the issued act does not apply.

Overcoming the collision

One of the rulings of the Constitutional Court states that the inconsistency between the final nature of the decisions that came into effect and the internal convictions of the person conducting the proceedings should be resolved, guided by the constitutional principle of the presumption of innocence.

If a decision made in the framework of an arbitral or civil process speaks in favor of a person acting in the status of an accused, recognizes the legitimacy of his conduct, then he must be considered as indicating the existence of doubts about his guilt, which may subsequently be unavoidable.

If an unfavorable ruling is used by the prosecution as a culpability, then it must be critically evaluated in conjunction with other facts. At the same time, the court can reject it, since the mechanical adherence to such a decision would act as an attempt to disprove the principle of presumption in an improper way, that is, outside the framework provided for by law and the only permissible procedure guaranteeing protection of the rights of the person against whom proceedings are conducted.

An Important Moment

Along with this, when using the provisions of Art. 90 of the Code of Criminal Procedure of the Russian Federation, the decision directed to a side favorable for the person will be considered as a source of irremovable doubts not immediately. To do this, it must be refuted or canceled based on newly discovered facts or on cassation / supervisory grounds. They, in turn, should be identified at the stage of criminal procedure and implemented in the manner prescribed by law.

conclusions

In fact, in the case considered above, the rule is applied that the situation should not be reversed to the side unfavorable for the subject. Guided by Art. 90 of the Code of Criminal Procedure, the authority may reject circumstances discovered in the process of civil or arbitration proceedings, in the presence of unavoidable doubts.

If there are circumstances indicating that the participant committed an offense in connection with the proceedings, which resulted in an unlawful decision, it is possible to conduct an independent investigation. According to its results, a review of the decision that came into effect may be carried out.

In other words, the decision on a civil or arbitration dispute does not act as a ground for refusing to institute criminal proceedings and to conduct an investigation in the forms prescribed by law. Officials of authorized bodies in proceedings can not accept the conclusions formulated earlier without evidence and verification, as it is literally stated in the rule in question.