Russia (bbabo.net), - The Constitutional Court of the Russian Federation allowed, in exceptional cases, to replace a judge when deciding on the choice of a measure of restraint for the accused.
Despite the fact that Article 242 of the Code of Criminal Procedure of the Russian Federation directly indicates the need for a new trial if the judge is unable to continue working, in purely procedural matters, the Constitutional Court allowed derogation from this requirement.
The alleged violation of Article 47 of the Constitution of the Russian Federation was pointed out to the court by the former head of the Ministry of Emergency Situations of the Kemerovo Region, Alexander Mamontov, who is involved in the case of the tragedy in the Zimnyaya Cherry shopping center in the spring of 2018. The fire killed 60 people, including 37 children. According to investigators, Mamontov knew about violations of safety standards in the shopping mall, but did not take the necessary measures, although he was obliged by virtue of his position. He is also charged with embezzlement of almost two million rubles. The materials of the criminal case against the Major-General of the Ministry of Emergency Situations exceed two hundred volumes.
Alexander Mamontov was detained in March 2018 and has been in jail ever since. The term of arrest, first of the suspect, and then of the accused, was repeatedly extended. From the moment when the case began to be considered by the Central District Court of Kemerovo - by the same judge.
However, once again, when the three-month period of detention expired, the decision had to be made by another servant of Themis - the judge in the Mamontov case went on sick leave. The term was extended, but the defendant considered it a violation of the law, since the judge, who does not consider the case on the merits, "does not know all the circumstances in the criminal case that are subject to investigation, verification, evaluation and consideration when deciding whether to extend the term of detention for the defendant."
According to the applicant, the trial should have started anew, the provisions of Article 242 of the Code of Criminal Procedure of the Russian Federation leave no room for doubt: “If any of the judges is deprived of the opportunity to continue participating in the court session, then he is replaced by another judge and the trial of the criminal case begins anew” . However, the Constitutional Court ruled that the temporary disability of a judge does not dictate the need to act exclusively in this way. Otherwise - as in the case of Mamontov, for example - a new trial will entail a violation of the right of citizens to have access to justice within a reasonable time, "as well as to a longer restriction of the right of the defendant to liberty and security of person in the event of an additional extension of the period of detention during the retrial."
In addition, the CC reminded the CC of its legal position, which had been repeatedly expressed earlier, “decisions related to the application of a preventive measure and decisions on the merits of a criminal case have a different factual basis and a different purpose”, and therefore this situation does not indicate a deviation from the requirement of the immutability of the composition court.
“The choice or extension of a measure of restraint does not imply the intervention of the court into the essence of the issues resolved by virtue of the direct prescription of Article 299 of the Code of Criminal Procedure of the Russian Federation when passing the sentence,” the decision explains. - The procedural isolation of the question of the measure of restraint from the consideration of the case on the merits is also confirmed by the presence in the criminal procedure law of the institution of appealing interim judgments separately from the final ones.
On these grounds, Article 242 of the Code of Criminal Procedure of the Russian Federation, as well as the provisions of the Code on changing the measure of restraint, the Constitutional Court recognized as not contradicting the Constitution. They do not prevent "to make a decision on the extension of the period of detention, as well as on the abolition or change of this measure of restraint, solely by another judge of the same court based on the results of studying the materials of the criminal case, research in the conditions of oral and immediacy of the evidence presented by the parties to the prosecution and the defense, confirming the existence or lack of grounds for the application of this preventive measure.
Major General Mamontov remains in custody until at least March 10. Today, February 17, the court session was adjourned. The next one is scheduled for February 22.
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