About expansion of the subject of verification activities in proceedings in cassation courts

According to Article 401.1 of the Criminal Procedure Code of the Russian Federation, the legality of sentence is the subject of verification activities in proceedings in cassation courts. However, the study of scientific literature shows that many authors support the expansion of the subject of verification activities and inclusion into it of both legality and validity of a sentence. The analysis of various viewpoints enables us to draw a conclusion that verification of validity of a sentence is only as a necessary stage for making decision on legality or illegality of a sentence i.e. for a conclusion about the existence of violations of criminal procedure or criminal law. Without the purpose to verify the existence or lack of violations of legality of a sentence, verification of validity cannot be carried out since it will not correspond to the tasks of cassation proceedings. Therefore, the verification of validity of a sentence regarding the compliance of findings of courts of first instance with the examined evidence can be included into the subject of verification activities of cassation courts since such verification serves as means for solving the question of legality or illegality of a sentence. Moreover, it is necessary to take into consideration to what extent the method of cassation verification (examination of written criminal case files) allows to carry out the verification of validity. The study of cassation practice of the Novosibirsk and Tomsk regional courts, the Supreme Court of the Russian Federation enables us to draw a conclusion that cassation courts are actively involved in the verification of validity of a sentence for assessing its legality or illegality. Thus, the statistical data provided in the article show that court practice is characterized by the growth of cassation proceedings in which cassation courts expand a subject of verification activities and include both the requirement of legality and validity of a sentence into it. At the same time, the author criticizes separate stances of the Supreme Court of the Russian Federation on the exemption of validity from the verification in cassation proceedings and on its verification, actually, in the same volume, as in appeal proceedings. The conclusion of the article is that the subject of verification activities in cassation court should include the verification of not only legality of a sentence but of its validity as well. At the same time, verification of the latter has to be carried out only to estimate the legality and illegality of an appealed sentence. The possibility of such examination can be explained by the fact that many elements of the requirement of validity are directly enshrined in criminal procedure law and to verify whether they were broken by the courts first instance, the cassation courts need to verify the reasonableness of sentences as well.

Keywords

Authors

References