Forms of Criminal Procedure Appeal

In accordance with Article 19 of the Criminal Procedure Code of the Russian Federation (hereinafter - the Code of Criminal Procedure of the Russian Federation), the right to appeal is a principle of criminal proceedings. This right is included in the procedural status of almost every participant and can be implemented exclusively within the framework of legal relations. The implementation of legal relations forms a specific criminal procedural activity, which consists of many heterogeneous elements.

Scientists, based on the provision of Part 2 of Article 46 of the Constitution of the Russian Federation, emphasize that the exercise of the right to appeal "is ensured taking into account its systemic and integrative relationship not only with the norms of national procedural law, but also with constitutional principles and norms"^[1]. Specialists – domestic ^[1-5] and foreign ^[6-9] in the field of criminal procedure conduct numerous and acute discussions on a variety of issues related to appeal, but for our research it is important that the issue of the systematic construction of criminal procedural appeal is also included in the category of discussion.

The conducted research has shown that the issue of the appeal system is considered in relative detail in the works of a number of scientists. So, in particular, M. V. Sklyarenko notes the urgent need for "the development of a fundamentally new, comprehensive, theoretically grounded and empirically tested doctrine on the system of appeal, verification and revision of judicial decisions in criminal proceedings" ^{[10, p. 118]}. In contrast to this position, the opinion is expressed that the entire system of appeal does not need changes, but requires the adoption of private measures to optimize its individual elements ^[11].

In his other work, M. V. Sklyarenko speaks about the theoretical and methodological foundations laid for the development of a general theory of the creation and functioning of a system of appeal, verification and revision of judicial decisions in criminal proceedings as a special form of judicial-power relations ^{[12, p. 134]}.

The opinion of M. V. Sklyarenko is shared to some extent by A. A. Rukavishnikova, who includes verification of court decisions in the appeal system ^[13] and considers a number of ideas as principles of this system (instantiation, prohibition that no one can be a judge in their own case ^{[14, p. 105]}).

In general, we share a scientific approach to the construction and organization of appeals as a criminal procedure system. At the same time, we see a number of reasons for discussion.

Firstly, such an occasion is the idea of an appeal system as a set of appeals, verification and revision of court decisions. In our opinion, it makes sense to talk about the independent legal meaning and separate content of each of these elements.

Secondly, the appeal system is positioned solely on the basis of relevant legal relations aimed at appealing court decisions. In criminal proceedings, appeal is also deployed in pre-trial proceedings. At the same time, the appeal of court decisions taken in pre-trial proceedings formally takes place, although according to the general rules of appeal, cassation, or other appeal, but with separate, and very significant features.

Regarding the structure of the appeal system in criminal procedure science, the following approaches have been formed.

M. M. Batiev identifies three of its elements: 1) appeal to the court; 2) pre-trial (out-of-court) appeal; 3) appeal (complaint) to the prosecutor's office, which exercise the functions of supervision of legality in the activities of state bodies and their officials ^{[15, p. 277]}. In this case, the construction of the system is already carried out on the basis of the allocation of various rules for contacting the subject authorized to consider the complaint, without the allocation of verification and revision.

A. N. Nazarov takes a slightly different position, noting the existence of a mechanism for control and supervisory activities to eliminate errors, which at the pre-trial stages of the criminal process includes judicial control, prosecutorial supervision and departmental control. "The judicial mechanism for eliminating errors consists of a judicial review of a criminal case and judicial supervision. At the same time, the judicial review of a criminal case is its trial and resolution on the merits by the court of first and appellate instances. And judicial supervision is the verification by higher courts of judicial decisions of lower courts in cassation, supervisory procedure (judicial audit)"^[2]. In this case, the appeal is not highlighted.

S. A. Zakaryan points to a four-instance system of appeal, noting the interaction of cassation and supervisory proceedings, as well as the existence of a system of types of review ^{[16, pp. 102-103]}.

Considering the problems of the formation of the appeal system, a specialist in civil procedure N. I. Manyak writes: "The system of appeal, verification and review of court decisions as such should be a combination of a certain set of specific, individually defined elements that are interconnected, while forming a certain integrity. Its integrity is the main feature" ^{[17, p. 242]}. Sharing the opinion expressed, we consider it important to determine the content of the system, its structure, the totality of elements and the connections that develop between them.

Each of the above options for the interpretation of the appeal system seems to demonstrate certain shortcomings. In the first case, we are talking about a system consisting of judicial and extrajudicial appeals. Note that these two types of appeals do not overlap. Judicial appeal has its own object (for example, damage to the constitutional rights of participants in criminal proceedings), non–judicial - its own (damage, negative impact on any rights of participants). Their interaction can be represented only at the level of the entire criminal proceedings, as elements included in the system of legal support. But there are no direct natural connections between them.

In other cases, we are talking about a judicial form of appeal, which allows us to form only a local system.

We also note such a factor as the construction of a system of criminal procedural appeal based on the allocation of its forms: appeal, cassation, supervisory.

Quite often in the science of criminal procedure they write about the cassation form of reviewing sentences ^[18]. There are quite a large number of diverse opinions about pre-trial forms of appeal. For example, the form of pre-trial appeal is called an additional means of protecting the rights, freedoms and legitimate interests of citizens, applied at the choice of a person who believes that his rights have been violated, along with the opportunity to appeal to the court in accordance with the procedure provided for by administrative, criminal procedure and civil procedure legislation; characterized by a special form of consideration of complaints, bearing elements of publicity, publicity, openness. Pre-trial appeal has as its subject actions (inaction) and decisions of state bodies and their officials, the list of which is open. Actions and decisions of internal affairs bodies that may become the subject of pre-trial appeal are related to the functions performed by them and the public services provided; the authority to consider the complaint and make a decision on it is granted to a higher official or a state body; the decision on the complaint is not final, since the citizen retains the right to appeal to the court ^{[15, p. 278]}.

Scientists write about the existence of uniform principles of appeal, according to which all types of judicial protection are built, including consideration of complaints ^{[19, p. 135]}. Among other things, they mention instantiation. Speaking about the principle of the right to appeal, it is noted that "the principle of the right to appeal is the basis of the relevant criminal procedure institute, within which appeal to the prosecutor (in the order of prosecutorial supervision), appeal to the head of the investigative body (departmental control) and appeal to the court (judicial control) are allocated" ^{[20, pp. 89-90]}.

In this case, it seems doubtful to us that the principle points precisely to such forms, since the content of Article 19 of the Code of Criminal Procedure mentions other persons besides the prosecutor, the head of the investigative body and the court. But if we proceed from the presence of the specified list of officials in Part 1 of Article 19 of the Code of Criminal Procedure of the Russian Federation, then there should be more allocated forms. The most preferable conclusion seems to be that Article 19 of the Code of Criminal Procedure of the Russian Federation as a whole provides for the order of implementation (and the indication of the singular of this order is the result of an unsuccessful legislative technique). The Code of Criminal Procedure of the Russian Federation does provide for several forms of appeal, as can be seen by familiarizing yourself with the rules that are established in the Criminal Procedure law for various cases of filing a complaint: the rules have significant differences. At the same time, there are no literal definitions of the forms of appeal in the Criminal Procedure Code of the Russian Federation.

Nevertheless, in the science of criminal procedure, this direction is sufficiently developed and scientists are developing forms of appeal.

N. A. Kushnareva identifies the forms of appeal according to the specifics of the subject of appeal:

1) the form of appeal of procedural actions, inaction and decisions of the preliminary investigation bodies and the prosecutor to the higher bodies of the preliminary investigation or to the higher prosecutor;

2) the form of appeal of procedural actions, inaction and decisions of the preliminary investigation bodies and the prosecutor to the court, if the constitutional rights of citizens are affected;

3) the form of appeal of procedural decisions of the court to higher judicial instances, while it is possible to distinguish the appeal of interim and final procedural decisions;

4) the form of appeal to the Constitutional Court of the Russian Federation, in the cases specified in paragraph 3 of Part 1 of Article 238 of the Code of Criminal Procedure of the Russian Federation (acceptance by the Constitutional Court of the Russian Federation for consideration of a complaint about the compliance of the law applied or to be applied in this criminal case with the Constitution of the Russian Federation) ^{[21, p. 157]}.

The opinion is expressed on the allocation of a form of appeal against actions (inaction) and decisions of the bodies carrying out criminal prosecution and the court during pre-trial proceedings to the Constitutional Court of the Russian Federation, the Commissioner for Human Rights and the European Court of Human Rights. At the same time, it is proposed to supplement Article 19 of the Code of Criminal Procedure with Part two, indicating this form of appeal ("The subjects of bringing complaints specified in Article 123 of this Code have the right to file a complaint in the cases and in the manner established by the legislation of the Russian Federation to the Constitutional Court of the Russian Federation, the Commissioner for Human Rights in the Russian Federation, as well as in the in cases and in the manner provided for by international regulatory legal acts^[3]).

This position is supported by E.K. Antonovich, but she proposes to settle this issue in Article 123 of the Criminal Procedure Code of the Russian Federation^[4].

According to some researchers, it is necessary to single out the principle of appeal as an idea of operational investigative activity, on the basis of which another form of appeal is distinguished ^{[22, p. 85]}, which is indirectly related to criminal proceedings.

The idea is expressed about the existence of a form of appeal in relation to the activities of internal affairs bodies, when "the created mechanism of pre-trial appeal is extremely accessible, containing no restrictions. So, unlike the judicial form of appeal, it lacks a list of strict criteria, non-compliance with which entails leaving it without consideration or without movement (the rules on writing indicating the personal data of the complainant, obviously, cannot violate the accessibility criterion, since it is a means of providing feedback to the complainant)" ^{[23, p. 128]}.

The point of view about a new form of appeal using digital means is spreading ^[24]. O. V. Khimicheva and O. A. Motyakova pay attention to this aspect ^[25], pointing out the necessity and expediency of introducing an electronic complaint form. These areas of research have now become more active and will certainly lead to significant results. It seems that among them there should be an answer to the question of whether electronic appeal will become an independent form or will be considered differently.

These positions indicate a fairly broad introduction of the idea of forms of appeal into the science of criminal procedure.

At the same time, speaking about the criminal procedural form, it is worth noting the presence of a serious and lengthy discussion about the very concept of the criminal procedural form ^{[26, pp. 68-103; 27-33]}. Without going into the details of the debated general theoretical issues, we will give our own position on the form of criminal procedural appeal. In our opinion, this is a set of rules, thanks to which the scope, content and sequence of actions are determined, significant and objectively determined by external and internal factors features of the implementation of criminal procedural appeal are manifested. The form, its individualization makes it possible to distinguish the appeal from other forms of procedural activity, as well as to distinguish its separate types in the aggregate of the appeal. The differences in this totality, which allow us to talk about a significant change in the scope or content of the actions envisaged by the form, allow us to talk about its differentiation towards complication or simplification.

We believe that not all differences in the rules can lead to the appearance of an independent form of appeal. For example, the allocation of a form based on the characteristics of the activities of any bodies (for example, internal affairs, if this activity relates to criminal procedure) seems to us incorrect.

Erroneous, we believe, is the idea of a separate form of appeal in each of the higher courts (form – appeal, form – cassation, etc.). We will show this by example. The appeal procedure provides for a verdict or other court decision that has not entered into legal force as the subject of appeal^[5]. The object is the legality, validity, motivation and fairness of the sentence. In cassation proceedings, the subject is the same (except for the fact that the sentence has entered into legal force), the object (except for validity) is the same, the subjects are the same. There are differences in the terms of appeal, but the initial fact is important – the deadlines are set by the legislator. The method of filing and consideration of the complaint coincides almost completely: filing through the judicial authorities, consideration in a court session. The court acts as the authorized subject to consider and resolve the complaint. Is it possible, with such differences in the procedure of production, to talk about the existence of separate forms of appeal? We believe that the answer should be negative.

We believe that in order to identify an independent form of appeal, as well as to avoid extreme fragmentation of the appeal into forms that differ in minor details, it is necessary to find and use more significant features to determine them.

In this capacity, we see differences expressed in the peculiarities of the rules of appeal inherent in individual proceedings of the criminal process. Recall that the current criminal procedure law provides for two proceedings – pre-trial and judicial (Part 2 and 3 of the Code of Criminal Procedure of the Russian Federation). In accordance with this division, it seems to us optimal to distinguish two forms of appeal: pre-trial (in pre-trial proceedings), judicial (in court proceedings).

The basis for this conclusion was the quantity and quality (materiality) of the distinctive features between the appeal in pre-trial and judicial proceedings. In fact, we are talking about a lot of differences: in subjects both appealing and considering appeals, in terms, legal consequences of filing a complaint, methods of consideration, resolution, notification of results, etc. These forms do not continue and do not replace each other, they exist separately, i.e. they are independent in terms of implementation methods and legal results, consequences.

It is important to note the objective basis that caused these differences in forms. Let us pay attention to the fact that the legislator in the pre-trial appeal repeatedly mentions the rights and legitimate interests of participants in criminal proceedings and other persons who may be harmed or created difficulties. To quote Part 1 of Article 123 of the Code of Criminal Procedure of the Russian Federation: "Actions (inaction) and decisions ... may be appealed ... to the extent that the procedural actions performed and the procedural decisions taken affect their interests." In order to overcome the obstacles created or to restore access to justice as a fundamental right in this area, it is assumed that the subjective right to appeal will be applied. In other words, the legislator sees the main task of pre-trial appeal in protecting the rights and protecting the legitimate interests of participants in criminal proceedings, but in a certain part.

With regard to the form of judicial appeal, fragments of which we see already in Article 127 of the Code of Criminal Procedure of the Russian Federation, the motivation for appeal changes dramatically: the legislator no longer directly says that the court decisions violate rights or restrict legitimate interests, but establishes a general formula: "Complaints and representations against sentences, rulings, rulings of the courts of the first and appeals instances, as well as complaints and representations against court decisions taken during pre-trial proceedings in a criminal case, are brought in the order ...". We believe that this kind of distinction is essential and should be taken into account both when identifying forms of appeal and when determining the rules for the implementation of each of them.

Thus, in our view there are only two forms of criminal procedural appeal: pre-trial and judicial.

The analysis of the forms of appeal allows us to speak about its system. In a number of works, the idea is traced that pre-trial and judicial appeals are combined into a system. We have a different opinion. The highlighted two forms of appeal practically do not interact. Thus, decisions taken in pre-trial proceedings are appealed using the means provided for pre-trial proceedings and the means intended for judicial appeal are not used in any way. The judicial form is carried out without attracting the funds provided for the pre-trial form of appeal. Each of the highlighted forms:

– self-sufficient (installed resources are sufficient to achieve the necessary results);

– independent of the other (resources and results do not depend on and do not condition each other);

– isolated (an individual result is defined for each form).

The lack of interaction is a clear sign of a lack of system connections. The only thing that unites these forms is their criminal procedural nature, a single normative source, as well as their direct relation to the provision of rights. But these factors do not lead to the creation of a system of these forms of appeal. However, we do not deny that both forms are part of the criminal justice system and equally serve to achieve the purpose specified in Article 6 of the Code of Criminal Procedure of the Russian Federation.

In our opinion, each of the forms has consistency as an internal quality. Assessing the appeal on the scale of criminal proceedings, we believe that we should not be talking about a system, but about a complex of criminal procedural appeals combining two main forms - pre–trial and judicial, which are internal systems of criminal proceedings.