On 24 November 2025 the Constitutional Court of the Russian Federation adopted Judgement No.40-П in accordance with Article 47.1 of the Federal Constitutional Law «On the Constitutional Court of the Russian Federation». The case on the review of constitutionality of Article 231 (part 5) of the Criminal Procedure Code of the Russian Federation was considered in connection with a complaint of citizen N.V.Zarubanov.Factual background
In July 2022, the Kaliningrad Regional Court rendred a single-judge verdict against Nikolay Zarubanov and another individual. They were found guilty of smuggling drugs and psychotropic substances on an especially large scale and of preparing them for sale.
A higher court overturned the verdict due to procedural violations and violations of the defendants’ right to defense. Lawyer of the applicant, with his client’s consent, petitioned to return the criminal case to the prosecutor to amend the charges to a more serious one. Such actions resulted in lawyer’s removal from further participation in the case. However, the other lawyers who supported this petition were not removed. Consequently, the criminal case was remanded for a new hearing in the trial court with a different panel of judges from the pre-trial stage.
Regarding the remanded case, the defense filed new motions, including a motion to have the case heard by a jury. However, their requests were denied because of the contested provision. The judge stated that the original ruling scheduling the court hearing remained in effect on certain issues that were not addressed when the verdict was overturned, including the composition of the court.
In September 2023, in a single judge’s verdict, N. Zarubanov was convicted under Articles 228.1 and 229.1 of the Criminal Code. The verdict was upheld by the higher courts.
Position of the Court
The right to an independent and impartial court, as well as the presumption of innocence, are constitutive elements of the constitutional right to judicial protection. The accused's right to a jury trial (in cases stipulated by federal law) is one of its essential procedural guarantees. A case may be tried by a jury upon the defendant's motion, filed before a court hearing is scheduled. After a court hearing is scheduled, the defendant may no longer file such a motion.
The return of a criminal case by a higher court to the preparation stage for trial presupposes the application of the general procedure for such preparation, as defined by Chapter 33 of the Criminal Procedure Code. This procedure implies the judge's authority to schedule a preliminary hearing, in particular to determine the possibility of a jury trial. This is distinct from returning a criminal case for a new trial from the trial stage, which, as a general rule, does not involve changing the decision on the composition of the court. Any lesser standard would constitute an abuse of the right to judicial protection and a fair trial, and a violation of the principles of legality, fairness, and equality. The same legal provisions would be applied differently to individuals whose criminal cases have been scheduled for a court hearing with an unchanged panel and those whose cases have been returned to the same court for a new trial.
The principle of equality requires similar regulation of uniform relationships. The rules governing preparation for a court hearing and the conduct of a preliminary hearing cannot be interpreted in fundamentally different ways based on how the court of first instance received the criminal case. Differentiation based on whether the case was referred by the prosecutor or by a higher court (due to the overturning of the verdict and the remand of the case for a new trial from the pre-trial stage) would lead to inconsistent application of similar provisions of the Criminal Procedure Code. This would limit the rights of defendants and accused persons who are in an essentially equal legal position.
Thus, the contested provision does not contradict the Constitution of the Russian Federation. According to its constitutional and legal meaning, after a higher court overturns a verdict and returning the criminal case to the court of first instance for a new trial before a different panel of judges, the court must consider defendant’s motion to hold a preliminary hearing to determine whether the case should be tried by a jury.
The Constitutional Court of the Russian Federation concluded that there are no grounds for reviewing applicant’s case based on Article 75 (part 1, item 10.1) of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”.
Press Service of the Constitutional Court of the Russian Federation