The limits of litigation in special proceedings for complains reviewed by court under Article 125 of the Criminal Procedure Code of the Russian Federation

One of the most recent and urgent amendments to the criminal procedure legislation concerns the subject of appeal under Article 125 of the Criminal Procedure Code of the Russian Federation of July 23, 2013. Together with the frequent correction in the legislative language of the law under study it goes to prove that legislators pay constant attention to the procedure for consideration and resolution of complaints lodged by the participants of the criminal procedure in the pre-trial stages. On the basis of the formulation of Part I, Article 125 of the Criminal Procedure Code of the Russian Federation, amended on July 23, 2013, the circumstances to be proven in the course of complaint consideration include: 1) ability (lack of ability) of disputed decisions, actions (lack of action) to inflict a damage upon the constitutional rights and freedoms of the participants in the criminal court proceedings; 2) ability (lack of ability) of disputed decisions, actions (lack of action) to interfere with the citizens' access to the administration of justice; 3) relevant jurisdiction (or lack of it) of the authorities and officials conducting the pre-trial procedure, as well as the prosecutor's power (or lack of it) to make a disputed decision or take a disputed action (lack of action). However, the comprehensive analysis shows that the aforesaid are not all the circumstances to be proven. Under Parts 3 and 5 of Article 125 of the Criminal Procedure Code of the Russian Federation these circumstances also include: 4) legality (lack of legality) of decisions, actions (lack of action) of the authorities and officials conducting the pre-trial proceedings in a criminal case, as well as that of the public prosecutor; 5) substantiation (or lack of it) of decisions, actions (lack of action) of the authorities and officials conducting the pre-trial proceedings in a criminal case as well as that of the public prosecutor. At present, the analysis of the current Russian legislation leads to the following conclusion: the powers of court in consideration and resolution of complaints under Article 125 of the Criminal Procedure Code of the Russian Federation are ambiguous, as the court has the power to audit, while its initiative in this field is restricted. The legislative inconstancy is partly corrected by the settled judicial practice. As a rule, the judge is not confined to the arguments of the complaint, though this practice must be enacted. Thus, all of the aforesaid leads us to the following conclusion: 1) the applicant shall prove the circumstances of the complaint lodged under Article 125 of the Criminal Procedure Code of the Russian Federation. The authority or official, whose decisions, actions (lack of action) are appealed against, shall prove legality and substantiation of their decisions, actions (lack of action). 2) When applied to proceedings for consideration and resolution of complaints under Article 125 of the Criminal Procedure Code of the Russian Federation, the term «evidence» shall be used in its broad sense as the means to substantiate the facts relevant for consideration and resolution of the complaint. 3) During the proceedings for consideration and resolution of complaints the court shall not discuss and evaluate the materials on-file in terms of proven guilt or innocence of any given people of the crime under investigation, or foreclose questions that might subsequently become the case at law and conclude about the facts of the case. 4) The judge shall check all the grounds for the complaint, though the check of disputed decisions, actions (lack of action) in terms of their legality and substantiation shall not be confined to the arguments of the complaint.

Keywords

Authors

References