The Lawyers’ Newspaper quoted Vakhtang Fedorov in an article titled “The Constitutional Court did not uphold the rule it had interpreted one year after its decision in an applicant’s case”
The Constitutional Court did not uphold the rule it had interpreted one year after its decision in an applicant's case.
The review by the judges of a Court of Cassation of a sentence, the complaint against which two of them already had considered in cassation, brought about an appeal. The lawyers defended the Constitutional Court’s ruling. At the same time, one of them considered that, given the combination of provisions of the Criminal Procedural Code (CPC) and the earlier positions of the Constitutional Court, which allow the parties in proceedings to respond in a timely manner, in case of doubts about the impartiality and objectivity of the judge, there were no problems with the legislative regulation.
The Constitutional Court published Ruling No. 1043-O, of 23April 2020, on a complaint about the unconstitutionality of the provisions of Part 2, Article 63, of the CPC of the Russian Federation, which a convicted person filed and whose case the same judges considered twice in cassation proceedings.
Yury Savchenko appealed to the Constitutional Court. In his complaint, he requested that Part 2, Article 63, of the CPC, be declared unconstitutional, according to which a judge who participated in the criminal proceedings before a court of second instance cannot participate in the proceedings of the criminal case before a court of first instance, by way of supervision, or in the retrial of the same case before a court of second instance after the revocation of the sentence, ruling, the judgment handed down with his participation. According to the complainant, this provision is unconstitutional, since it excludes the judge from re-entering a criminal case in a cassation (second) court only if a higher court previously had rendered had overturned his decision.
Having studied the complaint, the Constitutional Court found no grounds to accept it for consideration. It referred to its rulings No. 800-O-O-O, of 1 November 2007, and No. 1161-O-O-O, of 13 October 2009, and noted that Part 2, Article 63, of the CPC, allowing for the renewed participation of a judge at the court of second instance in cases not connected with the annulment of a sentence, ruling, or ruling handed down with him, precludes such participation in cases where the judge has already made the relevant decisions on the issues raised in the cassation complaint or the submission of the court that the court will consider.
In the comment for The Advocates’ Newspaper, Vakhtang Fedorov, a partner, attorney, and head of Criminal Law Practice of ART DE LEX, noted that, according to the definition, the complaint of the applicant does not contain an indication that a higher court revoked the ruling of the court of second instance, after a retrial allowed the participation of a judge previously involved in the issuance of the annulled ruling. He said, “I believe that, in this aspect, the problems of legislative regulation do not arise, taking into account the set of provisions of the Code of Criminal Procedure and previously expressed positions of the Constitutional Court, which allow the parties to the process to respond in a timely manner, in case they doubt the impartiality and objectivity of the judge.”
The full version of the article is available here.