A change in the list of the grounds for a cassation review of a verdict ruled by a court in a special order owing to a pre-trial cooperation agreement

This article examines the issues of appealing against verdicts ruled in a special order owing to a pre-trial agreement of cooperation. The author considers the provisions of Federal Law 322-FZ of July 03, 2016, which has resolved a long-standing question about the possibility of an appeal against verdicts, which entered into force, in case of a violation of the conditions of pre-trial agreements of cooperation made by convicts. In accordance with this law, the list of grounds for a cassation and a supervisory review of verdicts has been supplemented appropriately. The author identifies the constitutional legal meaning of consolidation of the ground as a way to prevent the abuse by the accused of their rights to conclude a pre-trial cooperation agreement. The study of the provisions of the law and the essence of the modern cassation proceedings shows the main problems of the application of the new cassation ground: 1) detection of violations by convicts of the conditions of pre-trial agreements of cooperation is not an object of cassation court activities, as it is not connected with the lawfulness of a verdict; 2) their examination cannot be made by the court of cassation, because such a court has no authority to exercise a judicial investigation and check the evidence presented in a case; 3) such violations can be established only through the study of the materials of a criminal case, in which the defendant assisted a criminal investigation, but the cassation court is prohibited to claim them; 4) a special period of overturning a verdict in connection with a turn for the worse might actually impede the overturning of a verdict ruled by the court in a special order, in connection with the violation of the conditions of pre-trial agreement of cooperation, because these violations could be detected much later. In addition, the introduction of the violation of the conditions of pre-trial agreement of cooperation as a reason to appeal in Part One of Article 401.15 of the Code of Criminal Procedure of the Russian Federation (ordinary cassation grounds) is considered superfluous, because the end result of the establishment of such violations must be the overturning of a verdict and the directing of a criminal case to a new trial to strengthen the punishment of a convict (a turn for the worse). In conclusion, it is proposed to exclude the establishment of the violation of the conditions of pre-trial agreement of cooperation by a defendant from the list of cassation (and supervisory) grounds and fix them as a new type of newly discovered circumstances.

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