RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of March 22, 2005 No. 4-P

"On the case of check of constitutionality of number of the provisions of the Code of penal procedure of the Russian Federation regulating procedure and terms of application as measure of restraint of detention at the stages of criminal trial following the end of preliminary inquiry and the direction of criminal case in court in connection with claims of number of citizens"

Constitutional court of the Russian Federation as a part of the chairman N. S. Bondar, judges G. A. Gadzhiyev, A. L. Kononov, L. O. Krasavchikova, Yu. D. Rudkin, V. G. Strekozov, B. S. Ebzeev, V. G. Yaroslavtsev,

with participation of citizens Yu. A. Biryuchenko and S. V. Brovchenko, A. V. Kruchinin's lawyers - the representative citizen M. N. Alekperov, R. N. Cheremchuk - the representative citizen Yu. A. Biryuchenko, K. L. Kostromina - the representative citizen S. V. Brovchenko, A. P. Novikovapredstavitel of the citizen A. V. Estafyev, E. A. Bara, E. L. Liptser, E. Yu. Lvova - representatives of the citizen P. L. Lebedev, S. V. Brovchenkopredstavitel of the citizen V. A. Prikhodko, S. V. Mikhaylovoypredstavitel of the citizen A. Yu. Reutov, S. V. Dudin - the representative citizen A. S. Sinyakov, the permanent representative of the State Duma in the Constitutional Court of the Russian Federation E. B. Mizulina, the representative of the Federation Council - the doctor of jurisprudence E. V. Vinogradova,

being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Item 3 parts two of Article 22, Articles 36, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered in open session case on check of constitutionality of number of the provisions of the Code of penal procedure of the Russian Federation regulating procedure and terms of application as measure of restraint of detention at the stages of criminal trial following the end of preliminary inquiry and the direction of criminal case in court.

Reason for consideration of the case were claims of citizens M. N. Alekperov, Yu. A. Biryuchenko, S. V. Brovchenko, A. V. Evstafyev, P. L. Lebedev, G. L. Oynas, V. A. Prikhodko, A. Yu. Reutov, O. V. Ryabov, A. S. Sinyakov and E. A. Suvorov to violation of their constitutional rights the specified provisions of the Code of penal procedure of the Russian Federation.

As all claims concern the same subject, the Constitutional Court of the Russian Federation, being guided by article 48 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", connected cases on these claims in one production.

Having heard the message of the judge-speaker A. L. Kononov, explanation of the parties and their representatives, the conclusion of the specialist - the doctor of jurisprudence I. B. Mikhaylovskaya, speech of the representative invited in meeting from the Prosecutor General of the Russian Federation - T. L. Oksyuka, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation established:

1. The criminal cases ended by investigation concerning citizens M. N. Alekperov, A. V. Evstafyev, P. L. Lebedev, G. L. Oynas, V. A. Prikhodko, A. Yu. Reutov, A. S. Sinyakov and E. A. Suvorov were taken to court the day before or in day of the expiration of content of persons accused under guards which was established by courts at stage of preliminary inquiry. Within 5-14 days after receipt of cases in court, and on some cases - in later terms of the judge made out of judicial session decisions on leaving of measure of restraint without change, and drew up them not the separate act, and included in resolutions on purpose of initial hearing or on purpose of judicial session.

As appears from materials of the claim of the citizen Yu. A. Biryuchenko, the question of prolongation of the term of its detention established during preliminary inquiry was considered by court only in six months after receipt of criminal case in court as the court recognized that in such cases the term of content of the person accused under guards is prolonged for six months by the fact of receipt of criminal case in court. The similar position was taken by courts and bodies of prosecutor's office, resolving question of measure of restraint in the form of detention on criminal cases concerning citizens A. S. Sinyakov and G. L. Oynas.

Supervisory Courts cancelled the convictions decided on the same criminal case concerning the citizen S. V. Brovchenko condemned to custodial sanction twice and sent case for new trial. In month after repeated cancellation of sentence the judge who accepted case to the production specified in the resolution on purpose of judicial session that the measure of restraint in the form of detention is left without change, - thus that the Supervisory Court, canceling sentence, did not make any decision on measure of restraint. Year during which the term of content of S. V. Brovchenko under guards was prolonged by court later the next petition of the prosecutor for prolongation of term was rejected and the measure of restraint is changed to recognizance not to leave.

The judge who accepted to the production criminal case of the citizen O. V. Ryabov for the solution of question of application to it enforcement powers of medical nature left the measure of restraint which is earlier chosen concerning it in the form of detention without change then O. V. Ryabov continued to be even more than five months in custody in the pre-trial detention center. The writ of appeal on illegality of application of this measure of restraint was considered without its participation as, according to court of cassation instance, the criminal procedure legislation does not provide participation in judicial session of person concerning which the issue of application of enforcement powers of medical nature is resolved.

In the claims in the Constitutional Court of the Russian Federation the specified citizens dispute constitutionality of the provisions of the Code of penal procedure of the Russian Federation applied in their criminal cases which regulate procedure and terms of application concerning the charged detention as measure of restraint at the stages of criminal trial following the end of preliminary inquiry.

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