Appeal procedure for verifying criminal case sentence by Federal Law of December 29, 2010:problem perspective

Acomprehensive analysis of the probation application in a criminal case in accordance with the Federal Law of December 29 - FL№ 433 - is held in the article with the account of view points in the procedural criminal literature and statistics. The author notes that theappeal procedure of sentence verification in the form provided by FL № 433 contains a number of weaknesses that allow to question theprinciple differences between the newly introduced appeal procedure and the earlier existing one. These deficiencies can negativelyaffect the efficiency of the above mentioned Procedural Act that places the task of establishing a Court of the Second Instance of theappeal type. The following deficiencies are distinguished in the article: the broad arbitrary ability of the Court of Appeal to substitute thedirect order of evidence consideration with an indirect one on its own initiative, the ability of the Court of Appeal to make a judgmentthat aggravates the defendant's situation in comparison with its definition in the appealed decision on the basis of indirect evidenceconsideration; vagueness and inaccuracy of the grounds for the decision of the Court of Appeal to return the criminal case to the TrialCourt for a new judicial review; a great variety of appeals instances which may adversely affect the forming of uniform practice anddoes not exclude the existence of "controversial" decisions of various courts acting as courts of appeal. The author proposes andsubstantiates a number of measures aimed at ensuring consistency and completeness of establishing the Court of the Second Instance ofthe "appeal" type in the Russian system of appeals against a sentence. As an example of such measures, the author gives grounds for thenecessity to secure the order of evidence study in the Court of Appeal which would be based on the principle of immediacy as a generalrule; strict regulation of the ability of the Court of Appeal to deliver a decision when reviewing a criminal case that would abolish theacquittal and indict simultaneously (the making of such a decision should only be possible through direct evidence study by the Court ofAppeal of both new and previously studied evidence by the Court of the First Instance); establishing a full criteria list of cases where theCourt of Appeal is entitled to send a criminal case for a new trial in the Court of the First Instance (the violations of Criminal Law andCriminal Procedural Law that would indicate that the proceedings in the Court of the First Instance did not take place).

Keywords

Authors

References