On the independent appeal of the measure of restraint chosen by the first instance court when reaching the verdict

In law enforcement practice, the authors designate the issue related to the courts' refusals to independently consider the appeals against the choice, diversion and extension of the measures of restraint that were chosen in the verdict reached by the first instance court. Under the current criminal procedure law, such a decision is reflected in the verdict, which can be appealed on the merits. However, the decision on the choice or diversion of a measure of restraint requires, per se, independent proceedings (as it has independent subject of proof), although technically it is fixed in the verdict. But the refusal to accept an independent appeal against the measure of restraint mentioned in the verdict inherently impedes the right to appeal, and fails to fully meet the goals and objectives of criminal proceedings. After all, a convicted person may dispute the diversion of the measure of restraint, but not the merits of the conviction. This person has the right to verify the legality of the first instance court decision in a shorter period; otherwise, this check makes no sense, and also the appeal court having nothing to do with the arguments mentioned in the appeal may spend time and forces on the entire case review, while there was no initial interest in appealing the verdict on the merits. Such an approach follows from the analysed doctrinal works on criminal proceedings differentiation and from the content of the rights to defence and effective appeal, and is confirmed by the legal positions set out in the judicial acts of the Constitutional Court of the Russian Federation that were analysed in the article. According to the results of the study, the authors substantiate the need for ensuring the implementation of the right of independent appeal against the decisions on the choice (diversion) of the measure of restraint chosen in the verdict reached by the first instance court. They also suggest eliminating the problem through formulating a regulatory requirement in the law, that is, through making changes, primarily in Article 299 of the Code of Criminal Procedure of the Russian Federation, aimed at establishing a uniform approach to solving the identified problem in judicial practice.

Keywords

Authors

References