Supervisory proceedings: the concept and order of excitation

The possibility of reviewing decisions that have entered into force in cassation (supervisory) proceedings is one of the features of domestic law. In most foreign systems such an institution is not provided. Its presence in Russia is due to the socio-political and geographical conditions of the country. Let's consider what the production in the court of supervisory instance is.

General information

The CCP currently in force establishes that supervisory proceedings in a criminal case may be initiated solely by the parties. At the same time, the Code that existed before did not limit the number of persons who had the right to make a relevant application. Based on the analysis of the norms of the Criminal Procedure Code, it can be determined that the proceedings of the supervisory review court act as a stage of the proceedings in which the higher body checks the validity and legality of the decision that entered into force. The procedure is applied, in particular, to appellate definitions. Similarly, supervisory proceedings in the civil process are characterized .

Stages

Legislation establishes several stages of supervisory proceedings:

1. Sending a complaint to the decision that came into effect.
2. Decision making by an authorized person. A judge may make a determination on accepting a complaint and initiating a proceeding or refusing to do so. In the latter case, the chairman may cancel the decision and submit the application for consideration.
3. Examination of the complaint in supervisory procedure.

Value

Supervisory production carries out the most important tasks. First of all, it supervises the activities of subordinate institutions. In the framework of the supervisory procedure, the supreme and relevant military courts direct the practice, ensuring its unity on the basis of the precise application of legislation and the observance of the principle of independence of the system. This activity is necessary to implement the provision set forth in Art. 19 of the Constitution. In accordance with it, all persons are equal before the law and the court. The possibility of reviewing the resolutions that came into force also acts as a key guarantee of respect for the rights and interests of the individual.

An Important Moment

Production in the supervisory instance provides the opportunity to review decisions that for one reason or another have not been appealed in an appeal or otherwise. From this it follows that the inspection is carried out with respect to a sufficiently large number of orders. Supervisory proceedings in civil matters promote uniformity of practice, which plays a crucial role in ensuring law in the proceedings.

Distinctive features

Supervisory and cassation production in many ways similar. However, there are certain differences between them. Among them, it should be noted:

1. Subject of verification. Supervisory proceedings are opened regarding the decision that came into effect.
2. Multiple verification. Supervisory proceedings may be instituted several times in various authorized bodies.

Specificity of the direction of complaint

The submission of a complaint drawn up according to all the rules of the law, to the cassation instance, obliges the latter to consider it. In other words, the case automatically moves from one authority to another. The examination of the supervisory complaint is preceded by the examination of the competent official. It has the authority to recognize that there is no basis for reviewing the decision in the application. It follows that the fact of bringing a complaint made in compliance with legislative requirements does not mean that supervisory proceedings will be instituted.

General rules

Supervisory proceedings require specific deadlines for handling complaints and submissions. Their establishment prevents delayed decision-making. The supervisory authority must consider the application within fifteen days. During this period, the time of adoption of the relevant act is included. On the time, date and place of supervisory proceedings, the court notifies the parties in accordance with the established procedure. Compliance with this requirement ensures that the participants in the case exercise their rights. It should be said at the same time that the CCP does not provide for notification of the civil defendant and the plaintiff, the private prosecutor, and their representatives. Meanwhile, their interests are affected by the complaint.

Report on the application

In the framework of supervisory proceedings at the first stage, the first is a member of the presidium, who is authorized to consider the case, or another official who has not participated in the proceedings before. According to article 407 (part 4) of the Code of Criminal Procedure, the report includes a statement of the circumstances, the content of the sentence, the ruling / ruling, the grounds for filing a complaint, the act on the commencement of the review. There is an opinion that if an official who does not act as a member of the presidium participates in the discussion but is not a member of the supervisory court, he should be given the opportunity to speak on the case not only within the framework of the report, but also after the parties speak. Before the beginning of the final stage, during which the decision on the merits of the complaint will be decided, the speaker should express his opinion on the positions of the parties, additional materials that they submitted at the meeting. He may be asked questions.

Nuances

After the final speech of the speaker, the floor is given to the prosecutor. According to Ch. 6 of the Code of Criminal Procedure, this official is on the side of the prosecution. During the meeting it is necessary to take into account that the prosecutor, by virtue of Article 11 (parts 1, 2), is obliged to ensure the rights of the participants in the proceedings, including the victim, the accused / the suspect. Other parties in the process who have the right to send complaints are not given the opportunity to support it. But the injured, convicted and other persons can give their oral explanations after the prosecutor makes a speech. This can help to substantiate the complaint, refute the arguments of other participants.

Definition

The decision on the complaint is made after discussion by the officials about the grounds for changing or canceling the decision verified in supervisory procedure. The issued act must comply with the requirements of Article 388 of the Criminal Procedure Code. The definition is signed by all members of the court, the ruling is presiding over the meeting. The decision on changing / canceling the effective and verified act is carried out by the majority. In case of equality of votes, the complaint / representation will be considered rejected.

Subjects of law

Legislation clearly limits the circle of persons who are given the opportunity to send a supervisory complaint. These subjects include:

1. Suspect / accused.
2. Justified.
3. Convicted.
4. The victim.
5. Defenders / legal representatives of the parties.

The prosecutor has the right to bring a supervisory opinion. As was stated above, the legislation excluded from the number of subjects of the rights the civil defendant and the plaintiff. At the same time, the CCP allows them to send a petition for participation in a hearing of the supervisory court.

Law requirements

Supervisory submission / complaint must comply with the requirements of regulatory enactments. The requirements are similar to those for appellate applications. The legislation does not determine the consequences of non-compliance with the requirements. In practice, courts apply in such cases the provisions of Article 375 of the Code of Criminal Procedure by analogy.

Complaint structure

The object is illegality, injustice, unjustified decision, which came into effect. When composing a complaint, it is necessary to indicate the required details provided for documents of this type. The application must be addressed to the authority authorized to review the contested act. In this case, the law requires the applicant sequence. In particular, the supervisory complaint against the decision of the district court can not be sent to the Armed Forces Board, bypassing the presidium of the regional court. This rule, in the opinion of law-makers, serves the interests of the applicant. In case of refusal in satisfaction of the complaint in the lower court, he has the right to apply to a superior on the same grounds. In this case, the subject can appeal both the sentence and the determination.

Appendices to the complaint

Together with the application, the interested person provides copies of the judgment (verdict) subject to review, appeal (cassation) determination. If necessary, other documents are submitted, which, in the opinion of the complainant, confirm the arguments set forth by him. It must be said that the reclamation of the case is not considered an obligatory procedure. The decision of the supervisory authority may also be made on the basis of the materials received from the applicant.

Impossibility of worsening of the situation

The previous legislation did not allow revision of the conviction, determination in supervisory procedure in connection with the need to apply the rules of a more serious act, due to the mildness of the imputed punishment and on other grounds that could help change the state of things for the worse. The plenary Decree of the Armed Forces No. 6 of 05.12.1978 provides explanations on this issue. In particular, the act establishes grounds that worsen the position of the person. They include issues related to:

1. Application of the act of amnesty.
2. Non-recognition of the actions of the guilty relapse of a particularly dangerous nature.
3. Application of a delay in the execution of punishment or rejection of the idea of its cancellation.
4. Calculation of the term of punishment.
5. Applying to a guilty DDO or replacing a sentence with a softer sanction.
6. Withdrawals.
7. Exemption from serving his sentence.

Circumstances that worsen the situation of the subject are also: recognition of guilt for episodes for which he was not punished, exclusion of mitigating factors from the sentence, etc. It is not considered as a turn for the worse elimination of arithmetical errors, as well as explicit misprints and typos. The prohibition on the deterioration of the subject's situation extends to the decisions of the first and second instances, as well as to resolutions passed in supervisory procedure.