Appeal and cassation in a new way. New plenums of the RF Armed Forces.

General:

I’m talking about the new rules of appeal and cassation for the new Plenums of the RF Armed Forces No. 12, No. 13 of June 30, 2020, namely:

- Plenum of the Supreme Court of June 30, 2020 No. 12 “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal”

- Plenum of the Supreme Court of June 30, 2020 No. 13 “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of cassation”

These Plenums of the Supreme Court introduced new rules that are not in the AIC and are discussed in this article

Competence of a magistrate

In accordance with Article 3 of the Law of the Russian Federation “On Magistrates,” magistrates are competent to consider criminal cases for crimes for which the law provides for a punishment of no more than three years in prison.

The article-by-article competence of justices of the peace is given in Article 31 of the Code of Criminal Procedure of the Russian Federation.

This does not mean that a sentence of more than 3 years cannot take place in the sentence of the magistrate. For example, in the case of the addition of sentences under several articles of the Criminal Code or under two or more sentences, a final sentence of much more than 3 years of imprisonment may be imposed.

Those who were not involved in the case can appeal judicial acts

Now persons who did not participate in the case have the right to appeal the judicial act, even if they were not mentioned in the reasoning or operative part of the judicial act. The main thing is that the act affects their rights and obligations, for example, prevents them from exercising a subjective right or properly fulfilling an obligation in relation to one of the parties to the dispute.

The Supreme Court explained: this situation arises if the conclusion of the first or appellate instance in the reasoning or operative part of the decision concerns the rights or obligations of persons who were not involved in the case. In this case, the acts of the first or appellate instance are canceled. Moreover, the cassation instance is obliged to separately motivate the need to attract such persons. P. 4 hours 4 tbsp. 288 APK

The Plenum indicated: if a judicial act is appealed by persons who were not involved in the case, the cassation appeal must contain a detailed and clear reasoned justification for how the act affects the rights or obligations of the applicant (Paragraph 3 of the Resolution of the Plenum of the Supreme Court dated June 30, 2020 No. 13). A similar rule applies to appeals.

At the same time, the Supreme Court is making it more difficult for persons who were not involved in the case to access cassation. The court points out: it is necessary to justify in the complaint exactly how the contested act directly affects the rights or obligations of the applicant. Whether there is such a justification is checked by the cassation at the stage of accepting the complaint for proceedings. If there is no justification, the complaint will be returned (Clause 1, Part 1, Article 281 of the APC)

The Plenum of the Supreme Court did not say whether, during a cassation appeal, persons who were not involved in the case have the right to present new evidence to the cassation appeal. This question is important because in order to substantiate that the contested judicial act affects the rights or obligations of the applicant who was not involved in the case, he must provide the cassation court with evidence that is not present in the case.

If a person who did not participate in the case appeals the decision of the first instance in an appeal, a petition to restore the deadline must be filed within six months from the day when this person learned or should have learned about the violation of his rights or legitimate interests by the appealed judicial act (P. 14 Resolution of the Plenum of the Supreme Court dated June 30, 2020 No. 12)

If the court agrees that a judicial act was adopted on the rights and obligations of a person not involved in the case, the cassation court will cancel the judicial acts and send the case for a new trial, and the appeal will proceed to the consideration of the case according to the rules of first instance.

Where to contact

The court of appeal for sentences passed by a magistrate is the district (city) court with the corresponding territoriality. An appeal is submitted to the magistrate who passed the sentence, but is addressed to the appellate authority.

After receiving the complaint, the magistrate will familiarize itself with it, check its admissibility, correctness of execution and compliance with deadlines. Next, the complaint will be attached to the materials of the criminal case, along with which it will be transferred to the appellate authority.

How the work of a lawyer is changing.

For 20 years there was no explanation from the Plenum on how to sue in cassation

Now the courts will recognize that a judicial act was adopted on the rights and obligations of persons, not only in the case when they were directly mentioned in such an act. In addition, a large number of disputes used to be associated with the interpretation of whether acts were adopted “directly on the rights and obligations” of such a person. For example, if the court established facts that had prejudicial significance. Now, persons who were not involved in the case are better protected in such situations.

If you appeal against adopted judicial acts in accordance with Article 42 of the APC, you will have to ensure that the complaint contains a separate, as detailed and reasoned justification for the applicant’s right to challenge the judicial act.

The list of valid reasons for reinstating the term has been reduced

If you missed the deadline because the court sent a copy of the act late or posted it on kad.arbitr.ru late, file a petition to restore the deadline. The Plenum explained: such circumstances, although they do not extend the period for appeal and cassation appeal, will be the basis for the court to restore the period (Clause 10 of the resolution of the Plenum of the Supreme Court of June 30, 2020 No. 13), since it is impossible to appeal without the text of acts of lower courts.

In your request for restoration of the deadline, indicate valid reasons for missing the deadline. For example, the fact that they did not know about the appealed judicial act due to circumstances that are beyond your control.

Do not refer to the company’s internal organizational problems (Decision of the Supreme Court dated April 28, 2017 in case No. A 28-2774/2015 Supreme Court). The courts do not consider as valid reasons the agreement with a higher authority or other person on the issue of filing a complaint, a business trip or vacation of a representative, personnel changes, absence of a lawyer on staff, a change of manager or his long business trip or vacation, or a delay in the bank writing off the amount for the state fee. Also, the court will not restore the deadline if the employee who handled the case quits, and a large number of cases are being considered in court against the company (Resolution of the Moscow District Court of July 30, 2019 in case No. A 40-193358/2018)

The applicant may admit a delay that exceeds the delay on the part of the court. In this case, the court needs to establish whether the applicant had enough time to prepare and file an appeal or cassation complaint within the period prescribed by procedural law (Decision of the Supreme Court dated August 25, 2015 in case No. A 63-9245/2014)

Example

: the court issued a reasoned decision on September 15, the judicial act was placed in the file of arbitration cases on October 1, and the applicant filed a complaint only on November 9. The court rejected the request to restore the deadline, as it decided that the applicant sent the complaint too late and he had enough time to file the complaint (Determination of the Eighteenth AAC dated November 29, 2016 in case No. A 47-2602/2014)

Reasons that are related to the fact that the person did not have information about the appealed judicial act due to circumstances beyond his control may be considered valid. Another option is that the applicant knew about the act being appealed, but could not file a complaint in time due to circumstances beyond his control. For example, if a high alert regime has been introduced in the region, which limits free movement and presence in government and other institutions.

The Plenum considered a situation that arises in practice when, when filing a complaint, the applicant is guided by a longer period that the court mistakenly indicated in the act being appealed. For example, in rulings on bankruptcy cases that must be appealed within 10 days, they often erroneously indicate that they will be appealed within a month. Since the delay arises due to the error of the court, the adverse consequences thereof should not fall on the applicant. Therefore, the Plenum indicates that in such a situation a person cannot be denied a request to restore the missed deadline for filing a complaint.

How the work of a lawyer is changing.

If you missed the deadline, refer only to those reasons that the courts in practice recognize as valid. For example, the court took too long to prepare the decision, incorrectly explained the appeal period, improperly notified the person involved in the case, or the applicant could not file a complaint due to a failure in the “My Arbitrator” service. Judicial practice in these cases:

• Resolution of the Moscow District Court of June 9, 2017 in case No. A 40-189998/2016
• Resolution of the Volga District Court of June 28, 2017 in case No. A 65-2139/2016
• Resolution of the Administrative Court of the East Siberian District dated October 10, 2017 in case No. A 33-26064/2015
• Ruling of the Supreme Court dated February 17, 2017 in case No. A 41-81331/2014

To appeal several judicial acts, one complaint is now sufficient

To save time, you can file one appeal against several judicial acts that were adopted in one case, for example, against a court decision and ruling. This is permissible if each of the judicial acts can be appealed separately. Based on the results of consideration of an appeal against several judicial acts in one case, the court has the right to adopt one judicial act (Clause 7 of the Resolution of the Plenum of the Supreme Court dated June 30, 2020 No. 12)

It is impossible to file one appeal against judicial acts that were adopted when considering different cases. It will also not be possible to file one appeal against judicial acts in bankruptcy cases.

A violation of jurisdiction can be invoked only in the first instance

How the work of a lawyer is changing.

Check whether you complied with the procedure and deadlines for appeal; the appeal will be separately for each judicial act. If the court determines that there are grounds to leave without progress the appeal in relation to one of the appealed judicial acts, the appeal will issue a separate ruling on leaving the appeal without progress. However, if one appeal contains demands to appeal two judicial acts, the terms of consideration of which are different, the appeal will consider the complaint within a longer period, which has been established by the Arbitration Procedure Code.

Appellants

An appeal against a magistrate's verdict may be filed by:

• convicted;
• justified. In fact, an appeal against a verdict by an acquitted person is not nonsense. The acquitted may not agree with the basis of the acquittal, for example, in the case of acquittal due to lack of evidence, while the defendant himself believes that he should have been acquitted due to the absence of a crime;
• lawyers;
• prosecutor;
• victim, civil plaintiff;
• legal representatives.

What determinations did the Plenum prohibit from appealing:

The Supreme Court in its decision provided a list of rulings that cannot be appealed separately. Objections to them can be raised only when appealing a judicial act that ended the consideration of the case on the merits.

You will not be able to appeal the following determinations separately:

• on the acceptance of a statement of claim or application for proceedings, except for a determination on the acceptance of an application for declaring the debtor bankrupt;
• on the restoration of the missed procedural deadline;
• about leaving the statement of claim or statement without progress;
• on extension of the procedural period;
• on appointment of the case for trial;
• on the satisfaction of the petition to involve arbitration assessors in the consideration of the case or on the refusal to satisfy it;
• about announcing a break in the court hearing;
• adjournment of the trial;
• on the entry into the case of a co-plaintiff, a third party, declaring independent claims regarding the subject of the dispute;
• about replacing an inappropriate defendant;
• on the involvement in the trial of another defendant, a third party who does not make independent claims regarding the subject of the dispute, the second defendant;
• on separating claims into separate proceedings or on merging cases;
• on the appointment or termination of the examination;
• on requesting evidence;
• on the acceptance or rejection of comments on the minutes of the court session;
• refusal to impose a court fine;
• on refusal to suspend proceedings in the case.

The court will check why they could not provide evidence earlier

The appeal will accept new evidence only if the applicant did not present it to the court of first instance for valid reasons beyond his control. In particular, the court recognizes the reason as valid if the first instance unreasonably rejected the request of a person participating in the case to request additional evidence or to order an examination.

Submit your request for admission of new evidence before the commencement of consideration of the appeal on the merits. In it, justify why you could not present such evidence to the first instance. Recognizing the evidence as relevant and admissible will not in itself be a sufficient basis for the appeal to admit such evidence.

How the work of a lawyer is changing.

Courts will accept new evidence even more often. After all, the Plenum indicated that if the appeal accepts additional evidence, this will not be a basis for canceling the decision (Paragraph 29 of the resolution of the Plenum of the Supreme Court dated June 30, 2020 No. 12). If it does not accept it and the cassation considers it an error, the APC will cancel the appeal decision.

Now it is necessary to refer to the clarifications of the higher courts

When the cassation assesses whether the lower courts correctly applied the rules of law, it must establish whether their conclusions correspond to the official explanations in the decisions of the Plenum, the Presidium of the Supreme Court, in the decisions of the Plenum and the Presidium of the Supreme Court that have remained in force on issues of judicial practice, as well as in reviews of the Presidium of the Supreme Court (Paragraph 28 of the resolution of the Plenum of the Supreme Court dated June 30, 2020 No. 13)

In addition, the Supreme Court explained: cassation independently determines the nature of the legal relationship between the parties and the rules of law that need to be used. The cassation may not apply the laws and other legal acts referred to by the persons participating in the case. Taking this into account, when the cassation determines the limits of consideration of the case, it is not bound by the legal justification of the arguments of the complaint and the parties’ objections and is not limited in the conclusions it draws based on the results of the inspection.

The cassation checks whether the lower courts complied with the rules of procedural law, regardless of the arguments of the complaint, only in terms of the unconditional grounds for canceling the acts. For example, if the court considered the case in an illegal composition (Clause 4 of Article 288 of the APC, Clause 35 of the resolution of the Plenum of the Supreme Court of June 30, 2020 No. 13)

How the work of a lawyer is changing.

Now in the court of first instance it is necessary to refer to the positions of the higher courts. If the court does not apply such clarifications and positions of higher authorities, indicate in the complaint that this is the basis for canceling the decision. At the same time, legal positions from reviews of practice, which are approved by information letters of the Presidium of the Supreme Arbitration Court, and determinations of judicial panels of the Supreme Court on specific cases will not be guidelines for the courts.

The Supreme Court repeated: appealing acts in cassation is possible only after an appeal, but there are exceptions

If the court, when accepting a cassation appeal, establishes that it was filed against an act of first instance, which was not appealed, the appeal will be returned. If such a cassation appeal is mistakenly accepted for proceedings, the proceedings will be terminated. The principle of sequential appeal applies even if the complaint was filed by a person who was not involved in the case, on whose rights and obligations a judicial act was adopted.

Exceptions are cases when the APC does not provide for the possibility of appealing acts. Then they can be appealed directly to the cassation office. In particular, this is how court orders and acts are appealed in cases considered by the Intellectual Property Rights Court as the first instance.

Another important clarification for the situation of reinstating the missed deadline for filing an appeal: the right to file a cassation appeal arises only if the appeal does not restore the missed deadline for filing an appeal. In no other cases, in particular when the proceedings on the appeal are terminated due to its refusal or the return of the appeal to the applicant, does the person have the right to file a cassation appeal.

Sources

: Federal Law of July 27, 2010 No. 228-FZ, clause 5, part 1, art. 281, clause 1, part 1, art. 150, parts 1, 2, 2.1 art. 273, part 2, 3 art. 274, part 1 art. 265, Art. 264 APC, clause 20 of the resolution of the Plenum of the Supreme Court of June 30, 2020 No. 13

Additions to the complaint must be handed to the opponent in advance,

if you want to present them to court

The Plenum allowed the parties to submit additions and written explanations to the cassation appeal or response to such a complaint, but introduced two conditions.

The first condition is that additions and written explanations to a cassation appeal or response can only contain legal substantiation of arguments and objections. That is, it is possible to submit additional “arguments of law” in cassation rather than “arguments of fact.” Additions and clarifications should not contain either new requirements or references to new evidence. At the same time, the Supreme Court directly allowed the legal substantiation of arguments using materials from judicial practice in cases with similar factual circumstances (Paragraph 30 of the Resolution of the Plenum of the Supreme Court dated June 30, 2020 No. 13)

The Plenum of the Supreme Court mentioned that the cassation instance has the right to cancel a judicial act if the conclusions of the lower court on the application of the rule of law do not correspond to the circumstances established in the case and the evidence in the case. Unfortunately, in the decision, the Supreme Court does not comment in any way on the fact that such arguments of a person go beyond the scope of “purely legal substantiation of arguments and objections” and require, to a certain extent, an assessment by the cassation court of the facts and evidence available in the case.

There is also no answer to the question of how the cassation court evaluates new evidence. For example, when a person presented evidence to the cassation that the lower court did not accept, in order to confirm the argument about the violation or incorrect application of the rules of procedural law by the court (Paragraph 31 of the Resolution of the Plenum of the Supreme Court dated June 30, 2020 No. 13). The Plenum of the Supreme Court clarified: if the cassation decides that there are grounds for canceling a judicial act due to a violation or incorrect application of the law (Part 3 of Article 288 of the APC), this evidence cannot be the basis for the court to adopt an act on the merits of the dispute. In this case, the case is sent for a new trial to the court of the appropriate instance. At the same time, it is obvious: in order to justify sending the case for a new trial, the cassation court needs to somehow evaluate the new evidence presented, but the Plenum in its decision is silent even about whether it is included in the case materials.

The second condition for submitting additions and written explanations to a cassation complaint or response to such a complaint is that they must be handed over to the procedural opponent in advance. It is unacceptable for him to unexpectedly present additions and written explanations in the courtroom. If you do not comply with this requirement, the cassation office will not accept the documents (Clause 29 of the resolution of the Plenum of the Supreme Court dated June 30, 2020 No. 13)

How the work of a lawyer is changing.

The Plenum resolved a situation that caused a lot of controversy in practice: whether the participants in the process, in addition to the cassation appeal and response to it, have the right to submit other documents - additions to the complaint, written explanations. Now you can do this. Previously, some cassation courts refused to accept written explanations from a person participating in a case in accordance with Article 81 of the Arbitration Procedure Code.

The plenum confirmed: the cassation appeal, which was filed directly with the district court, will be returned to the applicant. An exception is when a complaint is filed with the cassation after the initiation of proceedings on the complaint of another person. Then the court, for the purpose of procedural economy, decides on the issue of accepting the complaint for proceedings without returning it to the applicant

When preparing additions and explanations to the cassation appeal and response to it, you will have to ensure that these documents contain a purely legal basis for the arguments and objections. These arguments can now be confirmed by materials from judicial practice. Hand over all documents that you present to the court to the procedural opponent in advance.

Not only persons participating in the case can appeal acts in appeal and cassation

Not only the persons who participated in the case, but also their legal successors have the right to file a complaint. For example, an entrepreneur appealed to the court the decision of the tax authority to refuse a VAT refund, but died, after which the first instance discontinued the proceedings. This error was corrected by an appeal: it suspended the proceedings until a successor was determined.

The Plenum indicates that experts, specialists, witnesses, translators also have the right to appeal and cassation in terms of payment of remuneration and reimbursement of expenses incurred during the consideration of the case.

The prosecutor can also appeal the case under Part 1 of Article 52 of the APC through the appellate and cassation procedures, even if he did not participate in its consideration in the first or appellate instance.

The Commissioner for Human Rights has a similar right, who has the right to initiate a review of judicial acts through the cassation procedure, even if he did not participate in the case. The plenum on the appeal did not indicate the Commissioner for Human Rights, but, probably, he should also have the right to an appellate review of the judicial act. The Commissioner applies to the court with a petition for review, and not with a complaint, although this petition is considered by the cassation office according to the rules for considering a cassation appeal, taking into account the requirements for meeting the deadlines under Article 276 of the Arbitration Procedure Code. He has the right to submit such a petition only together with a corresponding complaint or statement of a person participating in the case, or a person who did not participate in the case, but on whose rights and obligations the court adopted an act. That is, the Commissioner does not have the right to initiate a cassation review on his own without a complaint from the person whose rights he is protecting.

The Presidential Commissioner for the Protection of the Rights of Entrepreneurs has the right to appeal acts according to the rules of Article 42 of the APC: he files an appeal and/or cassation complaint. But the commissioners for the protection of the rights of entrepreneurs in the constituent entities of the Russian Federation have the right to appeal acts through cassation proceedings only if they were persons participating in the case.

Sources

: part 3 tbsp. 51.1 APC, clause 2 of the resolution of the Plenum of the Supreme Court of June 30, 2020 No. 13

If the court left the cassation appeal without progress, you will not be able to appeal such a ruling.

Form and content of the cassation appeal

A cassation appeal, like a statement of claim, is drawn up in any order in compliance with the established structure of the text. But drawing up such a document on your own is extremely difficult. Higher courts will reject a complaint if there is the slightest error or inconsistency, so it is better to turn to specialists for its preparation.

The cassation is compiled according to the following structure:

1. The header indicates the authority where the document is being submitted and on whose behalf.
2. The text begins with a description of the essence of the criminal case in which cassation has been filed, with document numbers.
3. The second block contains arguments that indicate the need for revision.
4. In the final part, the expert draws conclusions about what, in his opinion, the sentence should be.

Each point is confirmed by references to legislative acts. The text should be clear, without water and reasoning.