"Exceptional Prarogative": to leave the decree of the Moscow City Court in the pre -trial detention center Alexander Shpakov

In full swing, the “Case of March 26” about the events in Moscow during the acceleration of the anti -corruption action. The investigation of the accused Yuri Kulia, Alexander Shpakov and Stanislav Zimovtsy, accused of applying violence against police officers, is completed. The case of Kulia, who pleaded guilty, in court, and on May 18 must already be sentenced. OVD-info publishes the text of the resolution of the Moscow City Court, who left Alexander Shpakov on April 24, who refuses to admit guilt. Shpakov remained in the pre -trial detention center despite the fact that not only the defense, but also the prosecution asked him to be transferred under house arrest. The Moscow City Court said that the court of first instance took into account the opinions of the parties, but "the decision to choose a preventive measure in the form of detention is an exceptional prerogative of the court."

Judge FULL NAME Material No. 10–7279/2017

Appeal Resolution

Date address

Moscow City Court as part of the presiding judge of the name, under the secretary of the name,

with the participation of the prosecutor of the department of the General Prosecutor's Office, the address of the name

accused

Defender - a lawyer of the name,

He considered at the hearing the appeal of the defender of the name on the decision of the Basmanny District Court of the Date, which in relation to the name, passport data, a citizen of the Russian Federation with a secondary specialized education that is not a marriage, working at the address of the previously not judgment, accused of committing a crime under Part 1 of Art. 318 of the Criminal Code of the Russian Federation, a preventive measure was chosen in the form of detention to the date.

After hearing the explanations of the accused name, the defender - the lawyer of the name, who held the arguments of the appeal and asked the court to satisfy her, the opinion of the prosecutor of the name of the court, who believed that the court ruling was subject to change, and with respect to the accused, a milder preventive measure in the form of house arrest, court could be elected.

U with T, and n about v and l:

The date of the GSU of the Investigative Committee of the Russian Federation has been instituted a criminal case against an unidentified person under Part 2 of Art. 318 of the Criminal Code.

On the same day, the above criminal case is combined into one proceedings with three criminal cases initiated under Part 2 of Art. 318, part 2 of Art. 213 and Art. 317 of the Criminal Code.

Date in accordance with Art. 91, 92 of the Code of Criminal Procedure, as a suspect in the commission of a crime under Part 2 of Art. 318 of the Criminal Code of the Russian Federation,

The date of full name was charged with committing a crime under Part 1 of Art. 318 of the Criminal Code.

The date of the Basmanny District Court of the address, having considered the relevant petition of the investigator, elected a preventive measure in the form of detention in the form of a name to the date to the date.

A appeal was filed against the aforementioned decision by the lawyer of the name, in which he disagrees with the court decision, finding it illegal and unreasonable. He believes that when making a decision, the court in violation of the requirements of Art. 99 of the Code of Criminal Procedure of the Russian Federation, did not take into account data on the personality of his client, including the fact that he is a citizen of the Russian Federation, has a permanent place of residence to the address, is positively characterized, worked, we are not previously convicted. He believes that the investigator’s assumptions that the accused, being free, may hide, continue to engage in criminal activity, or other means to prevent the proceedings in the criminal case. He finds an unmotivated court decision to refuse to satisfy the request of the defense of the election in relation to the full -softer preventive measure. He asks the court order to change by canceling the chosen measure of restraint in the form of detention.

Having checked the materials presented, discussing the arguments of the appeal, after listening to the opinions of the parties, the court of appeal comes to the following.

So, according to Art. 97 of the Code of Criminal Procedure of the Russian Federation, a preventive measure is elected if there are sufficient grounds to believe that the suspect or the accused will be hidden from a preliminary investigation or court, may continue to engage in criminal activity, threaten the witness, other participants in criminal proceedings, destroy evidence or other way to prevent proceedings in the criminal case.

In accordance with Part 1 of Art. 108 of the Code of Criminal Procedure of the Russian Federation, detention as a preventive measure is applied by a court decision in relation to a suspect or accused of committing crimes, for which criminal law provides for a punishment of imprisonment for a term of more than three years if it is impossible to apply another, milder, preventive measure.

The investigator’s request for the election of a preventive measure in the form of detention in relation to the name meets the requirements of Art. 108 of the Code of Criminal Procedure of the Russian Federation, instituted a person in the proceedings in the proceedings of which is a criminal case, was submitted to the court with the consent of the authorized head of the investigative body, within the deadlines established by law.

The court’s conclusions on the need to elect a preventive measure in the form of a detention in the form of detention in the decision are motivated and based on materials confirming the legality and validity of the decision. There is no reason to disagree with the conclusions of the court of first instance, since the decision provides specific factual circumstances on the basis of which a decision was made to choose this preventive measure.

The court studied all the circumstances that, in accordance with the requirements of Art. Art. 97, 99, 108 of the Code of Criminal Procedure of the Russian Federation are necessary to make a decision on the election of a preventive measure in the form of detention.

Any violations of the requirements of the criminal procedure law, including when initiating a criminal case, the detention of the name in accordance with Art. Art. 91, 92 of the Code of Criminal Procedure of the Russian Federation and the court was not charged with the court.

The presented materials also have information confirming the validity of the suspicion of the entity of the name in the action of the act. Documents on involvement were directly investigated at the hearing of the court of first instance and took into account when deciding, which was reflected in the appealed decree.

Satisfying the petition of the investigator, the court took into account that the name is accused of committing a crime belonging to the category of moderate gravity, for which the criminal law provides for a punishment of imprisonment for a term of over three years. The severity of the crime of which the name is accused, the actual circumstances of its commission, as well as the data on the personality of the accused, gave the court sufficient reasons to believe that, being at large, the name could hide from the investigation and the court, continue to engage in criminal activity, or in another way to impede the proceedings in the criminal case. The conclusions of the court are based on the materials presented to the court by the materials of the preliminary investigation, which were investigated during the court session, and not to trust which had no grounds for the court.

At the same time, the court reasonably did not find possible the election of other, milder preventive measure in relation to name, and properly motivated his conclusions in the decision.

The data characterizing the accused, submitted by the parties, as well as the information reported by the name, the court was investigated in full and taken into account when making a court decision, violations of the provisions of Chapter 2 of the Code of Criminal Procedure of the Russian Federation do not see the court of appeal. The specified data could not serve as a sufficient basis for refusal to the representative of the investigating authority to satisfy the application for the election of a preventive measure in the form of a detention.

The measure of restraint in the form of detention in the form of a detention in the form of a category of crime and the personality of the accused, as well as other circumstances of the case, is most guaranteed to ensure the ensuring the tasks of criminal proceedings at this stage, the protection of the rights and legitimate interests of all participants in the process.

No documents indicating the presence of diseases that prevent its content in the conditions of the investigative insulator are not contained in the case of the case, the court of the first and second instances is not represented.

When deciding, the court of first instance, was guided by both the requirements of the Criminal Procedure Law of the Russian Federation, the Constitution of the Russian Federation, and the Convention for the Protection of Human Rights and Fundamental Freedoms. The court decision corresponds to the provisions of Part 4 of Art. 7 of the Code of Criminal Procedure of the Russian Federation. It is based on objective data contained in the materials presented and investigated at the hearing.

As for the arguments of the parties to the defense that the court of first instance did not take into account the position of the prosecutor who did not hold the investigator’s application for the election of a preventive measure in the form of detention in the form of detention, the court of appeal notes, observing the principle of the competitiveness of the parties, the court takes into account the request of the investigator expressed both by the prosecution and the defense side. However, in accordance with Art. 29 of the Code of Criminal Procedure of the Russian Federation, the decision on the election of a preventive measure in the form of detention is an exceptional prerogative of the court.

Taking into account the foregoing, the grounds for the cancellation of the court decision and the election of a other preventive measure, the court of appeal does not see.

At the same time, the court’s decision is subject to change, since having determined the date of the termination of the preventive measure, the court contrary to the requirements of paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 41 of the date “On the practice of applying laws on preventive measures in the form of detention, house arrest and pledge” did not indicate the duration of the period of detention of the accused in custody.

In connection with the above, the court of appeal considers it necessary to clarify that the preventive measure in the form of detention was chosen by the name for a period of 01 months 29 days, that is, until the date.

In the rest, the court ruling is legal and justified, there are no grounds for satisfying the arguments of the appeal.

Based on the foregoing and guided by Art. Art. 389.13, 389.15, 389.20, 389.28, 389.33 of the Code of Criminal Procedure of the Russian Federation, court of appeal

P about s t, and n o v and l:

The decision of the Basmanny District Court address from the date of the accused to change, assume that the preventive measure in the form of detention was chosen by the name for a period of 01 months 29 days, that is, until the date.

In the rest, the court ruling is left unchanged, and the appeal is not satisfied.

Judge FULL NAME

Original