GENERALIZATION OF THE SUPREME COURT OF UKRAINE

of January 1, 2007

Practice of acceptance of separate determinations (resolutions) by courts on criminal cases (1)

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(1) Generalization is prepared by the judge of the Supreme Court of Ukraine V.F.Pivovar, the head of department of studying and generalization of court practice F.M.Marchuk and the main consultant of this management V. V. Antoshchuk.

Determining powers of court as carrier of judicial authority, the criminal procedure law determines that the court except accomplishment of the functions connected with direct permission of legal cases is authorized to take out separate determinations (resolutions) which shall be effective remedy of respecting the rule of law, ensuring protection of human rights and freedoms with court.

Removal of separate determinations (resolutions) by courts by consideration of criminal cases is regulated by Articles 23-2 (Separate determination (resolution) of court), 340 (Separate determination of Trial Court), 380 (Separate determination of Appeal Court), 400-2 (Determination of court of cassation) the Code of penal procedure of Ukraine (further - the Code of Criminal Procedure). Besides, the right of court to acceptance of separate determinations (resolutions) was also provided in drafts of the new Code of Criminal Procedure which arrived in the Verkhovna Rada of Ukraine. I.e., the legislator pays attention to carrying out of separate determinations (resolutions) by courts as they are means of strengthening of legality and law and order, assist remedial action in activities of state bodies, public organizations and officials, prevent making of crimes and other offenses, influence forming at citizens of respect for the right and constitute important part of activity of the courts.

Removal of separate determinations by courts it is provided also in codes of penal procedure of the Republic of Belarus (the Art. 33), the Russian Federation (the Art. 29); Republic of Kazakhstan (Art. 59).

The bases of removal of separate determinations (resolutions) are specified in Art. 23-2 and Art. 346 of the Code of Criminal Procedure, but their list not exhaustive. In particular according to the specified provisions of the law the bases of removal of separate determinations (resolutions) are:

- the facts of violation of the law determined on case;

- the found reasons and conditions which promoted crime execution;

- the established violations of the rights of citizens and other violations of the law allowed during implementation of inquiry, pretrial investigation or when considering the case of lower level by court;

- found in manifestation by the citizen of high consciousness, courage during execution of social duty which promoted the termination or disclosure of crime;

- available at the convict to imprisonment of minor children who were left without supervision and need the device or establishment over them of guardianship or care;

- other cases if the court recognizes it necessary (the p. 5 of Art. 23-2 of the Code of Criminal Procedure). For example, reaction of court separate determinations on the facts of failure of legal procedures, disrespect for court, violations of terms of pretrial investigation by bodies of inquiry and courts.

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