Advocacy and notary office. Activities of the defense attorney in the courts of appeal, cassation and supervisory proceedings in a criminal case (the most important)

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Advocacy and notary office. Activities of the defense attorney in the courts of appeal, cassation and supervisory proceedings in a criminal case (the most important)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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11. The activities of the defense counsel in the courts of appeal, cassation and supervisory proceedings in a criminal case

Court decisions that have not entered into force, the lawyer has the right to appeal in cassation or appeal (parts 3, 4 of article 354 of the Code of Criminal Procedure of the Russian Federation). To exercise the right to a cassation (appeal) appeal against the verdict, a lawyer does not need special permission, since this right is granted to him by law as an independent subject of the defense in criminal proceedings.

First of all, the lawyer must carefully read the verdict in order to make sure that it meets the requirements of legality, validity and fairness.

Next, the lawyer decides on the cassation appeal of the verdict in full or in a certain part, and coordinates his decision on this with the defendant. The convicted person may agree with the lawyer’s decision to appeal the verdict in cassation or refuse to file a complaint

Protecting your interests in cassation proceedings the convict, his legal representative or relative has the right to entrust a defense lawyer, whose participation in the court of second instance is not obligatory. The new Code of Criminal Procedure of the Russian Federation gives the parties, including the lawyer, the right to petition for a direct examination of evidence by the court of cassation (part 4 of article 377 of the Code of Criminal Procedure of the Russian Federation).

The law granted the convict and his defense counsel the right to petition for a supervisory review of court decisions that have entered into legal force (part 1 of article 402 of the Code of Criminal Procedure of the Russian Federation). Their petitions are called supervisory complaints, the form and content of which must comply with the requirements established by law (Articles 375, 404 of the Code of Criminal Procedure).

Comprehending the content of the supervisory complaint, the defender is called upon to strive to fully express his attitude to the verdict, determination, decision in terms of their legality, validity and fairness. It should not be limited to justifying a single violation of criminal procedure or incorrect application of substantive laws.

In fact, many verdicts and rulings of the cassation instances do not reflect the requirements of justice placed on them, and the absence of these qualities in court decisions gives the lawyer the right to raise the issue of changing them in the order of supervision.

The supervisory appeal of a lawyer is considered by the supervisory court in a court session, in which the convicted, acquitted, their defense lawyers participate, if they have filed a petition to this effect (part 2 of article 407 of the Code of Criminal Procedure of the Russian Federation).

In the cassation and supervisory appeals, as well as in the speech in the cassation and supervisory instances, the position of the lawyer, his demands must be clear and precise: cancel or change, sentence, ruling, decision. Alternative requirements are unacceptable in cassation and supervisory appeals, as well as in the speeches of a lawyer in the courts of cassation and supervisory instances.

Authors: Nevskaya M.A., Shalagina M.A.

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