On the issue of the specifics and classification of court decisions in criminal cases subject to appeal

Altynnikova Lilya Igorevna PhD in Law Lecturer; Department of Criminal Procedure Law; Kutafin Moscow State Law University (MGUA) Judge; Lefortovo District Court of Moscow 123001, Russia, Moscow, Presnensky district, Sadovaya-Kudrinskaya str., 9 l.altynnikova@mail.ru

Appealing court decisions on appeal is an important mechanism for protecting the rights and legitimate interests of participants in criminal proceedings. Unlike other verification stages of criminal proceedings, the appeal proceedings are the only stage at which court decisions that have not entered into force are reviewed, and therefore the analysis of the specifics of such court decisions and the identification of the grounds for their classification becomes particularly relevant.

The position of some authors on the revisionary nature of appellate proceedings is debatable, which is inconsistent with the dispositive and adversarial nature of control and verification proceedings, in which the will of the parties concerned should be at the center and "accordingly, the imperative duty of the controlling court solely to protect their interests" ^[1].

Issues related to the appellate review of judicial decisions in criminal cases have been studied, in particular, in the scientific works of such scientists as P.A. Lupinskaya, L.A. Voskobitova, A.M. Panokin, A.I. Panicheva, A.S. Chervotkin, and others.

At the same time, in this article, the author, based on the dialectical method of scientific knowledge, logical, comparative legal research methods, as well as methods of analysis and synthesis, induction and deduction, conducts a comprehensive analysis of the features of court decisions in criminal cases subject to appeal, and suggests their classification, which also indicates the scientific novelty of the presented work..

According to part 1 of Article 389.2 of the Code of Criminal Procedure, decisions of the court of first instance that have not entered into legal force are subject to appeal. This also applies to court rulings issued when resolving issues related to the execution of a sentence (Part 1 of Article 401 of the Criminal Procedure Code of the Russian Federation).

We would like to draw attention to the fact that, as part of the mechanism of proceedings in the court of appeal, Article 389.1 of the Code of Criminal Procedure guarantees the right to appeal court decisions to all persons whose interests were affected by them.

At the same time, when formulating Article 389.1 of the Criminal Procedure Code of the Russian Federation, the legislator, for example, did not specify the person against whom proceedings on the use of compulsory medical measures were conducted or are underway, including him in the concept of "other persons", since the attribution of this person to other persons in the part in which the appealed court decision affects their rights. both legitimate interests are generally recognized in criminal procedure science and law enforcement practice ^[2].

However, we agree with Professor V.V. Vandyshev, who rightly notes that "the reference to the fact that the right of appeal belongs to other persons "..." cannot serve as an excuse for this shortcoming, since the vagueness of any law entails the immensity of judicial discretion" ^[3].

Moreover, according to the legal positions formulated and stated by the Constitutional Court of the Russian Federation in its individual decisions, the right to personally appeal to the court for protection of one's rights and freedoms is an integral element of the normative content of this right and is universal. This right cannot be denied, including to persons in respect of whom the issue of applying or extending, changing or terminating compulsory medical measures is being considered ^[4].

Thus, both final and interim court decisions that have not entered into legal force are subject to appeal ^[5].

The final court decision is a verdict or other court decision taken as part of the trial, which definitively resolves the criminal case on its merits (paragraph 53.2 of Article 5 of the Code of Criminal Procedure).

We agree with Professor L.A. Voskobitova, who notes that in the court of appeal, the subject of the proceedings is not the accusation itself, but the decision already taken by the court of first instance, which makes it impossible to reject it. If an incorrect application of the criminal law is revealed in the court of appeal, the prosecutor can only ask the court to overturn the verdict and terminate the criminal proceedings ^[6]. In particular, this is due to the fact that the legality, validity and fairness of the verdict of the court of first instance as the central act of justice cannot be made dependent on the position of another public prosecutor, ensuring participation in the court of appeal, and (or) a higher prosecutor ^[7].

It is interesting to note that according to Part 2 of Article 389.26 of the Criminal Procedure Code of the Russian Federation, the court of appeal has the right to bring a verdict that contradicts the verdict into line with the verdict of the jury, which indicates that any changes to the verdict will also be limited by the content of the jury verdict ^[8].

The final court decisions, in addition to the verdict, in particular, include the following court rulings (rulings): on termination of a criminal case or criminal prosecution; on the application or refusal to apply compulsory medical measures; on termination of a criminal case against a minor with the use of compulsory educational measures ^[9].

In addition, final court decisions are also court rulings or rulings concluding criminal proceedings against a specific person.

The legislative definition of interim judgments, being fixed in paragraph 53.3 of Article 5 of the Code of Criminal Procedure of the Russian Federation, is of the most general nature. Thus, interim court decisions include all court decisions and rulings, except for final court decisions. In particular, among the interim court decisions, the following can be distinguished: court rulings and rulings that are issued during the trial or pre-trial proceedings, and which do not complete the proceedings against a particular person, or the criminal case is not resolved on its merits, as well as court decisions that are issued during the execution of final court decisions ^[10].

It is worth noting that the issue of both the very concept of interim court decisions and their distinctive features is the subject of scientific discussion. Thus, when formulating the doctrinal definition of interim court decisions, A.S. Chervotkin defines them as "auxiliary court decisions aimed at creating appropriate conditions for the conduct of legal proceedings, adopted in compliance with the procedures provided for by law during criminal proceedings, recorded in procedural form, not resolving criminal cases on the merits and subject to, as follows the rule is immediate execution" ^[11]. In relation to final court decisions, the auxiliary nature of interim court decisions is predetermined by the fact that they have a beneficial effect on creating the conditions necessary for participants in the process to exercise their rights and legitimate interests, and contribute to the resolution of a criminal case without undue delay ^[12]. Professor P.A. Lupinskaya rightly pointed out that "interim decisions are made during the course of proceedings within one stage and relate mainly to the recognition of a certain procedural status of a person or the issue of a preventive measure, the production of procedural actions" ^[13].

Our system analysis of Parts 2 and 3 of Article 389.2 of the CPC The Russian Federation has made it possible to classify interim court decisions that have not entered into legal force, depending on the possibility or impossibility of their independent appeal on appeal before the final court decision is rendered, into the following:

I. Which are subject to independent appeal and consideration on appeal before the final court decision on the case is rendered.

Thus, this group includes interim decisions that violate the rights of participants in criminal proceedings to access justice and to consider a criminal case within a reasonable time, or affect the constitutional rights of participants in criminal proceedings, as well as hinder the further progress of the criminal case ^[14]. It is important to note such two criteria of interim court decisions, which can be appealed independently, as generating consequences that go beyond the scope of the actual criminal procedural legal relations, and not affecting the substance of the criminal case. These criteria are determined by the Constitutional Court of the Russian Federation itself ^[15].

According to the legal position formulated by the Constitutional Court of the Russian Federation, interim court decisions can be independently challenged that are not directly related to the content of the verdict, including conclusions about the qualification of the act, the actual circumstances of the case, the assessment of evidence, the punishment of the convicted person, and so on. At the same time, the possibility of verifying such rulings and rulings cannot make the court of first instance dependent on the position of a higher court when considering a case, since the issues resolved in them do not relate to the substance of the criminal case ^[16].

Thus, the following are subject to independent appeal before the final court decision is rendered.:

1. Decisions of the justice of the peace to return the application to the person who submitted it, or to refuse to accept the application for trial (Part 3 of Article 389.2 of the Code of Criminal Procedure of the Russian Federation).

2. Court decisions or rulings on the election of a preventive measure or on the extension of its validity, on the placement of a person in a medical organization providing medical care in inpatient conditions, or in a medical organization providing psychiatric care in inpatient conditions, for the conduct of a forensic examination, on the seizure of property, on the establishment or extension of the period of arrest on the suspension of a criminal case, on the transfer of a criminal case under the jurisdiction or on a change in the jurisdiction of a criminal case, on the return of a criminal case to the prosecutor (Part 3 of Article 389.2 of the Code of Criminal Procedure).

In addition, before making a final decision on a criminal case, it is possible to appeal against the change to the defendant on the initiative of the court of the restrictions previously established when choosing a preventive measure in the form of house arrest related to the strengthening of prohibitions ^[17].

Let's pay attention to the fact that in Part 4 of Article 255 of the CPC The Russian Federation has established the possibility of appealing a court decision to extend the period of detention of a defendant. At the same time, the Criminal Procedure Code of the Russian Federation does not explicitly provide for the right to appeal a court decision or ruling on a refusal to extend the period of detention of a defendant. However, such a decision may be appealed due to the requirements of competition and equality of rights of the parties ^[18].

It is important to remember that the provisions of Article 389.2 of the Code of Criminal Procedure of the Russian Federation were found to be inconsistent with the Constitution of the Russian Federation to the extent that they excluded the possibility of appealing against a court decision taken during the consideration of a criminal case on the merits, which denied the request to cancel the preventive measure in the form of bail or to change it to a more lenient one. until the final court decision is rendered. The Constitutional Court of the Russian Federation pointed out that before making appropriate changes to the legislation, such rulings or rulings are subject to independent appeal until the final decision on the case is rendered ^[19].

3. The decision on the appointment of a court session, which was made in accordance with Article 231 of the CPC The Russian Federation, taking into account the provisions of Part 7 of Article 236 of the Code of Criminal Procedure ^[20].

In accordance with the provisions of Part 7 of Article 236 of the CPC In the Russian Federation, the court's decision, which was adopted following the results of the preliminary hearing, is subject to appeal, except for the court's decision on the appointment of a court session regarding the resolution of issues specified in paragraphs 1, 3-5, part 2, art. 231 of the CPC RF. An appeal and an appellate review of the legality and validity of the appointment of a preliminary hearing would be premature and would mean the substitution of the court of first instance and its decisions by higher courts and their acts ^[21]. Since the court decision on the appointment of a court session only determines the date, time, place and conditions of the court session and, thus, is aimed solely at ensuring that the criminal case is considered within a reasonable time, it cannot prevent the defendant from exercising his right to access justice and defense in an adversarial process, nor can it to violate his other constitutional rights ^[22].

4. Court decisions taken at the stage of pre-trial proceedings in a criminal case (Part 1 of Article 127 of the Criminal Procedure Code of the Russian Federation) ^[23].

So, for example, taking into account the provisions of paragraph 53.3 of Article 5, part 1 of Article 127 of the CPC In the Russian Federation, a judge's ruling issued in accordance with the procedure provided for in Article 165 of the Code of Criminal Procedure is an interim court decision that can be appealed independently. Within the meaning of the law, an appeal against a decision on the conduct of an investigative action does not entail the suspension of the execution of the said decision. Due to the fact that the satisfaction of a petition for the sale, disposal or destruction of property that is recognized as material evidence is due to the fact that ownership of this property is forcibly terminated, the court order is subject to execution no earlier than its entry into force ^[24].

5. Court decisions both on the imposition of monetary penalties and on the transfer of collateral to state revenue (Article 118 of the Code of Criminal Procedure of the Russian Federation) ^[25].

6. Other court decisions that affect the rights of citizens to access justice and to consider the case within a reasonable time and hinder the further progress of the criminal case, as well as private rulings or rulings (Part 3 of Article 389.2 of the Criminal Procedure Code).

As examples of court decisions that create obstacles to the further movement of a criminal case, one can cite rulings or rulings on the postponement or suspension of the trial ^[26]. Challenging a ruling or ruling issued during a trial does not entail its suspension (Part 4 of Article 389.2 of the Code of Criminal Procedure of the Russian Federation), which, in turn, guarantees the right not only to review, but also to resolve a criminal case within a reasonable time.

It is important to remember that parts 2 and 3 of Article 389.2 of the Code of Criminal Procedure of the Russian Federation were found to be inconsistent with Part 1 of Article 20, Part 1 of Article 41, parts 1 and 2 of Article 46, Part 3 of Article 55 of the Constitution of the Russian Federation to the extent that the absence of a final court decision in the case creates an obstacle to the appeal of the ruling or resolution the Court of first instance refused to send the defendant, who is in custody, for a medical examination, which is carried out in accordance with the procedure established by Decree of the Government of the Russian Federation of January 14, 2011 No. 3 "On medical examination of suspects or accused of committing crimes", in order to identify the defendant's disease included in the list of serious diseases that make It is impossible to keep suspects or accused of committing crimes in custody ^[27].

If a final court decision has already been rendered in a criminal case, then independent challenging of interim court decisions on appeal becomes impossible, with the exception of court decisions on the choice of such preventive measures as detention or house arrest, on extending the duration of these preventive measures, on placing a person in a medical or psychiatric hospital for judicial examination proceedings, as well as decisions that are not related to the resolution of a criminal case on the merits (in particular, on the imposition of monetary penalties for non-compliance with the procedure at a court hearing or for failure to appear in court), the appeal of which is carried out within the time limit established by law or according to the rules for restoring the missed time limit for appeal ^[28].

II. Subject to simultaneous appeal with the final decision on the case.

Thus, the court of appeal may at the same time verify the legality and validity of both the final decision in a criminal case and other interim court decisions, with the exception of those that affect the constitutional rights of participants in criminal proceedings or violate their rights to access justice and to consider a criminal case within a reasonable time. they also hinder the progress of the criminal case ^[29]. At the same time, the absence of the possibility of an immediate challenge to a higher court of the interim rulings and rulings of the court of first instance issued during the trial and the postponement of the said challenge to a later date (simultaneously with the appeal of the final decision) is recognized as permissible and does not violate the rights of citizens, which are guaranteed by the Constitution of the Russian Federation ^[30].

At the same time, if a decision or ruling of the court of first instance generates consequences that go beyond the scope of criminal procedural relations, while significantly limiting the constitutional rights and freedoms of individuals and causing them harm, which may subsequently be impossible to remedy, their judicial review based on complaints from participants in criminal proceedings whose rights and freedoms are affected, It must be provided immediately, even before sentencing ^[31]. This provision is aimed, among other things, at ensuring the independence of judges in the conduct of criminal proceedings. By doing so, the higher courts thereby exclude ongoing control over the course of consideration of a criminal case by the court of first instance and, as a result, interference in the exercise of its discretionary powers. At the same time, the possibility of judicial review of the legality and validity of interim decisions and actions of the court is not eliminated, it is carried out after the verdict, thereby only postponed to a later date ^[32].

Thus, in accordance with the provisions of Part 2 of Article 389.2 of the CPC The Russian Federation is subject to simultaneous appeal with the final court decision in a criminal case.:

- resolutions or rulings on the procedure for examining evidence;

- resolutions or rulings on the satisfaction (rejection) of petitions of participants in the judicial proceedings;

According to the legal position formulated by the Constitutional Court of the Russian Federation, the appeal challenge of court decisions rejecting petitions of participants in court proceedings, in particular, petitions for changing or canceling a preventive measure, while appealing the final decision in a criminal case does not go beyond the scope of criminal procedural relations. Thus, the provisions of parts 2 and 3 of art. 389.2 of the CPC The Russian Federation is not an obstacle to the defendant's access to justice ^[33].

In addition, the refusal to grant a request for the lifting of a preventive measure in the form of detention does not affect the legal status of the accused, in particular, it does not entail an extension of the period of his detention established by an earlier court decision, which is subject to independent challenge in a higher court ^[34].

- other court decisions that were made during the trial, except for the court decisions stipulated in Part 3 of Article 389.2 of the Code of Criminal Procedure; other court decisions that were made during the trial and are subject to simultaneous challenge with the final decision in the case include the following:

- the court's decision to satisfy the state prosecutor's request to change the charge to a less serious one ^[35];

- the refusal of the court to satisfy the petition for the cancellation or amendment of the preventive measure or for the return of the criminal case to the prosecutor ^[36];

- the court's decision to reject the challenge submitted to the judge ^[37];

- the decision of the justice of the peace to accept the victim's application for private prosecution proceedings, given that it is an interim court decision aimed at creating appropriate conditions for the participants in the process to exercise their legitimate rights and to ensure that these participants fulfill their procedural duties.;

- the judge's decision to certify or reject the correctness of the remarks on the minutes of the court session ^[38].

Please note that Article 260 of the CPC The Russian Federation does not explicitly provide for the possibility of appealing against the decision to certify the correctness or rejection of comments on the minutes of the court session on appeal, however, it does not imply that participants in the proceedings are deprived of the opportunity to challenge the judge's decision to reject comments on the minutes of the court session and, when appealing the verdict, refer to the unreasonableness of rejecting the submitted comments ^[39]. The Constitutional Court of the Russian Federation pointed out that Article 260 of the Code of Criminal Procedure of the Russian Federation does not contain any prescriptions that would deprive participants in legal proceedings of the opportunity to challenge a judge's decision to reject comments on the minutes of the court session, and a higher court has the right to verify the validity of rejecting comments. On the contrary, the inclusion of comments to the minutes of the court session and to the materials of the criminal case provided for in this article is a condition that provides an opportunity for higher judicial authorities to familiarize themselves with these comments and assess the legality or illegality of their rejection ^[40]. In connection with the above, the content of some rulings of the Supreme Court of the Russian Federation, stating that the decision on the comments on the minutes of the court session is not subject to challenge by virtue of the current criminal procedure legislation, was found to be inconsistent with the legal position of the Constitutional Court of the Russian Federation ^[41].

Interim court decisions, which are not subject to independent appeal, enter into force and are enforced immediately, as evidenced by the provisions of Part 2 of art. 391, Part 2 of art. 389.2 and para. 53.3, Article 5 of the Criminal Procedure Code of the Russian Federation ^[42]. Court decisions that have already been enforced can also be appealed on appeal, since the fact that these court decisions are implemented immediately cannot serve as an obstacle to the correction of judicial errors by higher courts ^[43].

III. Subject to appeal both before and simultaneously with the final decision in the case.

Such court decisions include:

- private rulings or rulings of the court of first instance ^[44];

- definitions or resolutions on the application of measures of influence for violation of the order (art. 258 of the Code of Criminal Procedure of the Russian Federation) ^[45].

An interim court decision that does not fall under this classification is a court decision to extend the period of detention, adopted in accordance with Part 7 of Article 108 of the Code of Criminal Procedure of the Russian Federation based on the results of consideration of a petition for the detention of a suspect or accused. The CPC of the Russian Federation does not explicitly state the possibility of appealing a decision to extend the period of detention, however, an analysis of judicial practice indicates that such a decision is recognized as an interim court decision, which can be appealed only simultaneously with a court decision on the election or refusal to choose a preventive measure in the form of detention, adopted following consideration of the investigator's petition ^[46].

The Criminal Procedure Law provides for certain restrictions regarding the appeal of court decisions, namely:

- court decisions rendered with the participation of a panel of jurors and sentences passed in a special manner with the consent of the accused to the charges brought against him and upon conclusion of a pre-trial cooperation agreement are not subject to appeal on appeal on the grounds of inconsistency of the conclusions of the court set out in the verdict with the factual circumstances of the criminal case established by the court of first instance (art.317, 389.27 of the Criminal Procedure Code of the Russian Federation); the legislative prohibition of appealing verdicts issued in a special order on the grounds provided for in paragraph 1 of Article 389.15 of the Criminal Procedure Code of the Russian Federation is due to the fact that in court proceedings in such criminal cases, evidence is not examined and evaluated (Part 5 of Article 316 of the Criminal Procedure Code, Part 4 of Article 317.7 of the Criminal Procedure Code of the Russian Federation);

- the decisions of the presiding judge on the dissolution of the jury and the referral of the criminal case to a new hearing by another court are not subject to appeal from the preliminary hearing stage (Part 5 of Article 348 of the Code of Criminal Procedure);

- the decision of the presiding judge to terminate the consideration of a criminal case with the participation of jurors and send it for consideration by the court in accordance with the procedure established by Chapter 51 of the Code of Criminal Procedure of the Russian Federation, in connection with the establishment of circumstances indicating the defendant's insanity at the time of the commission of the act of which he is accused, or indicating that after the commission of the crime, the defendant had a mental a disorder that makes it impossible to impose or execute punishment, as confirmed by the results of a forensic psychiatric examination, is not subject to appeal (Part 2 of Article 352 of the Criminal Procedure Code of the Russian Federation).

In conclusion, we note that based on the results of our research, we have substantiated the conclusion that the distinction between final and interim court decisions in criminal cases has an impact on the procedure for their appeal. We have also identified and analyzed the features of the appeal of these court decisions. A systematic legal analysis allowed us to classify interim decisions of the court of first instance that have not entered into force, depending on the possibility of their independent appeal before the final court decision on the criminal case, which, in particular, indicates the novelty of the presented scientific research. In addition, we have paid special attention to the legal analysis and systematization of restrictions on appealing court decisions, which also reflects the author's special contribution to the study of this topic.