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Lecture notes, cheat sheets
Advocacy and notary office. Participation of a defense lawyer in the stages of appeal, cassation and supervisory proceedings in a criminal case (lecture notes)
Directory / Lecture notes, cheat sheets Table of contents (expand) LECTURE No. 7. Participation of a defense counsel in the stages of appeal, cassation and supervisory proceedings in a criminal case 1. 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. It is necessary to verify the presence or absence of contradictions between the parts of the act of justice, and especially between its descriptive-motivational and resolutive parts. The lawyer also receives information for analysis due to a thorough study of the minutes of the court session, the form and content of which are regulated by Art. 259 Code of Criminal Procedure of the Russian Federation. Next, the lawyer decides on the issue of cassation appeal of the verdict in full or in a certain part, and coordinates his decision on this with the client. The convicted person can agree with the lawyer’s decision to appeal the verdict in cassation or refuse to file a complaint. If the lawyer does not find grounds for a cassation appeal against the verdict, and the convicted person demands to file a complaint, then the will of the client is mandatory for the defense lawyer. Before the start of the court session, the lawyer has the right to withdraw, change or supplement the cassation appeal filed by him (parts 3, 4 of article 359 of the Code of Criminal Procedure of the Russian Federation). He submits it to the court that passed the verdict within 10 days from the date of its announcement (part 1 of article 356 of the Code of Criminal Procedure of the Russian Federation). 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). Supervisory complaints against court decisions that have entered into legal force, the lawyer sends to the judicial authorities in compliance with the instance established by Art. 403 Code of Criminal Procedure of the Russian Federation. Comprehending the content of the supervisory appeal, 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. The lawyer gives an analysis of all the violations he identified that were committed in pre-trial and judicial proceedings and led to the decision of unjust decisions in a criminal case. If the defense lawyer did not reveal violations or they were not committed during the investigation and consideration of the criminal case, then it is advisable for him to evaluate the appealed court decisions in terms of the fairness of the conclusions and decisions regarding the type and amount of the punishment imposed, the type of correctional labor or educational labor institution, in in which the convict is to serve his sentence, a satisfied civil claim, grounds for acquittal, etc. In reality, many sentences and rulings of 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 order supervision. Having recognized the lawyer’s supervisory complaint as justified, the judge decides to initiate supervisory proceedings and transfer the supervisory complaint to the supervisory court, together with the criminal case, if it was requested (clause 2, part 3, article 406 of the Criminal Procedure Code of the Russian Federation). 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). At the court session of the supervisory instance, the defense attorney has the right to give his oral explanations, substantiating in them the requirements for the annulment or amendment of court decisions that have entered into legal force. 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. 2. Participation of the defense counsel at the stage of execution of the sentence The Constitution of the Russian Federation guarantees everyone the right to receive qualified legal assistance, establishing that a detainee, taken into custody, accused of committing a crime has the right to use the assistance of a lawyer (defender) from the moment of detention, detention or charge (Article 48). According to paragraph 8 of Art. 12 of the Criminal Executive Code of the Russian Federation (PEC RF), in order to obtain legal assistance, convicts can use the services of lawyers, as well as other persons entitled to provide such assistance. Legal assistance at the stage of execution of punishment can be provided, for example, on the following issues: serving a criminal sentence, its procedure and conditions, application of incentives and penalties; further execution of the sentence and the possibility of parole, pardon or amnesty, etc. Legal assistance to convicts, as a rule, is provided by lawyers, but it can also be provided by other persons entitled to such assistance: representatives of the trade union (trade union) or other public organization in which the convict was a member, close relatives, legal representatives, guardians of the convict. In accordance with Art. 15 of the Penal Code of the Russian Federation, convicts can send proposals, statements, petitions and complaints, stated in oral and written forms, in the administration of institutions and bodies executing punishments. Proposals, statements and complaints of those sentenced to arrest, detention in a disciplinary military unit, imprisonment, death penalty, addressed to the bodies specified in Part 4 of Art. 12 of the Penal Code of the Russian Federation, are sent through the administration of institutions and bodies executing punishment. Convicted to other types of punishments send proposals, applications and complaints independently. Such statements addressed to the bodies exercising control and supervision over the activities of institutions and bodies executing punishment are not subject to censorship and no later than one day (with the exception of weekends and holidays) are sent according to their affiliation. Bodies and officials to whom proposals, applications and complaints of convicts are sent must consider them within the time limits established by the legislation of the Russian Federation and bring the decisions made to the attention of convicts. In accordance with paragraph. "in" Article. 89 of the Constitution of the Russian Federation, the right to pardon is vested in the President of the Russian Federation, who has the right to issue appropriate decrees. A pardon is a mitigation of the punishment of a convicted person. For the first time in the history of Russian legislation, the Criminal Code of the Russian Federation (Article 85) regulates types of mitigation of the fate of a convicted person, which are possible by an act of pardon. This is an exemption from further serving a sentence, a reduction in the term of the sentence imposed on a convicted person, the replacement of a sentence imposed by a court verdict with a more lenient type of punishment, and the expungement of a criminal record. One of the types of replacing the imposed punishment with a more lenient one is the replacement of the death penalty with imprisonment. The Criminal Procedure Code of the Russian Federation establishes a general rule: issues related to the execution of a sentence are considered by the court on the proposal of the institution or body executing the sentence. At the same time, in some cases, the convict himself can take the initiative. The petition of the convicted person is not sent directly to the court, but is transferred to the administration of the institution or body executing the punishment, which, before applying to the court, must carry out certain preparatory work. The convicted person participating in the court session and the defense counsel have the right to get acquainted with the materials submitted to the court, participate in their consideration, file motions and challenges, give explanations, submit documents, i.e. they enjoy all the rights of a party to the trial. At a court session, the first to speak is a representative of the institution or body that submitted the presentation, who reports on the essence of the issue, refers to the submitted documents, and gives a description of the convict. After that, the submitted materials are examined, the explanations of the persons who appeared at the court session, the opinion of the prosecutor, who has the right to participate in the session, are listened to. The issue is considered by the judge alone, after which the judge makes a decision. The ruling may be appealed on general grounds. The right to appeal a judge's decision belongs to convicted person, who filed the petition, his defender, who can send cassation appeals, or the prosecutor, who has the right to send a cassation presentation. The deadline for filing a complaint or submission against a court decision is determined by Art. 356 of the Code of Criminal Procedure of the Russian Federation and amounts to 10 days from the date of the decree. If the convict wishing to appeal against the decision is in custody, this period shall be calculated from the moment of handing him a copy of the decision. Author: Nevskaya M.A. << Back: Participation of a defense attorney in a trial court in a criminal case (Activities of a defense attorney in a court of first instance in a criminal case. Contents of a defense speech) >> Forward: Participation of a lawyer in the pre-trial stages of resolving civil disputes (Lawyer in civil proceedings. Strategy and tactics of a lawyer’s work at the pre-trial stages of resolving civil disputes)
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