Is it possible to dismiss a criminal case on appeal if the grounds for this arose after the verdict?
It is quite rare, but there are cases when it was not possible to come to an agreement with the victim, compensate for the damage and terminate the case through reconciliation of the parties (Article 25 of the Criminal Code of the Russian Federation) in the court of 1st instance, or only after the verdict there were grounds for terminating the criminal case with the imposition of a court fine ( Article 25.1 of the Criminal Code of the Russian Federation).
What to do? Is there a way out? Is it possible to file an appeal, then make peace with the victim, compensate for the damage, and terminate the criminal case on appeal? In Russia, judicial practice is controversial. For example, in Penza, Karelia and St. Petersburg, courts refuse to dismiss a criminal case on appeal, often pointing out that “compensation for moral damage to the victim after the verdict, which also satisfied the victim’s claims for compensation for moral damage, is a circumstance mitigating the punishment of the convicted person, is not, does not call into question the fairness of the imposed punishment and cannot serve as a basis for terminating a criminal case” or “the fact of compensation for damage caused after the pronouncement of a verdict in a criminal case is not recognized as a basis for canceling the verdict and terminating the case in connection with the reconciliation of the parties.”
At the same time, in Stavropol, Sverdlovsk and Moscow, courts dismiss criminal cases on appeal, citing the fact that Art. 389.21 of the Code of Criminal Procedure does not connect the possibility of termination of a criminal case in the court of appeal with the stage when such grounds arose.
Independent resolution of conflict with the defendant
A systematic analysis of the law says that it is possible to terminate criminal cases on appeal. In particular, part 2 of Art. 20 of the Code of Criminal Procedure directly establishes the possibility of reconciliation of the parties in cases of crimes under Part 1 of Art. 115, art. 116.1, part 1 art. 128.1 of the Criminal Code, in the court of appeal - until the court of appeal withdraws to the deliberation room to make a decision on the case. In addition, according to Part 2 of Art. 25.1 of the Code of Criminal Procedure, termination of a criminal case or criminal prosecution in connection with the imposition of a criminal law measure in the form of a judicial fine is allowed at any time during the criminal proceedings, including in the appellate court - until the appellate court retires to the deliberation room for a decision decisions on the case.
In connection with the above, the second approach is more logical, does not contradict the law, is fair, meets the goals of humanizing the criminal sphere, reducing the number of convicted citizens of the country, and respects the right of the victim to independently resolve the conflict with the defendant. And it simply corresponds to one of the most important legal approaches: “Everything that is not prohibited is permitted.”
Therefore, even if you are not one of the happy residents of the capital, you still try to stop criminal cases on appeal, and if refused, continue to write complaints all the way to the Supreme Court of Russia. You have a good chance of success and termination of the criminal case.
I provide every second Principal/Client with services to terminate simple criminal cases free of charge, with payment based on the result after the termination of the criminal case! I work all over Russia, attract local lawyers, whose work I control and am responsible for the quality of legal assistance! I can also conduct a case remotely: I advise, teach how to behave in court over the phone, prepare draft documents for filing in court and terminating a criminal case.
Preserve the open-endedness of continuous cassation in criminal cases
Nikolay Zharov
Member of the Council of the FPA of the Russian Federation, President of the Administration of the Kostroma Region
August 3, 2021
The judicial system must “step on the throat of its own song”
The draft law developed by the Supreme Court of the Russian Federation on limiting the period for complete cassation in criminal cases was adopted by the State Duma in the first reading.
The reason that prompted the Supreme Court of the Russian Federation to “turn into reverse” lies on the surface: the new cassation courts of general jurisdiction are overwhelmed with cases.
The convicts now have another hope for a fair trial, and they want this hope to be justified. But the judges don’t have time, they don’t have time. Moreover, some of them, newly appointed judges of the new cassation courts, have already suddenly retired into honorable retirement, as evidenced by the press releases of the Supreme Court of Justice.
If we strive to remain objective, then it is hardly possible to see in itself the establishment of a period for a complete cassation in criminal cases as a violation of the right to access to justice.
For a long time, there was no continuous cassation in the criminal procedural law of Russia. And nothing. There was access to justice, the cassation courts worked (how they worked is another question).
The Constitutional Court of the Russian Federation has repeatedly indicated that the constitutional right to judicial protection does not imply the ability for a citizen to choose at his own discretion the method and procedure of judicial challenge - they are determined, based on the Constitution of the Russian Federation, by federal laws.
The legislator has now decided in the first reading that the open-endedness of the right to a complete cassation should be eliminated by setting a two-month period for filing a corresponding complaint.
The argument that two months is unlikely to be enough to prepare a good cassation appeal, in my opinion, is frivolous. The law sets aside 10 days for filing an appeal, although the subject of an appeal is broader than a cassation appeal: in addition to questions of law, appellate courts also decide questions of fact.
In addition, for a complete cassation, the institution of restoring the missed deadline for filing a complaint is retained. And in addition to this, the right to selective cassation remains unlimited.
In short, in the very legal structure proposed by the Supreme Court of the Russian Federation for the exercise of the right to cassation appeal of court decisions in criminal cases, from my point of view, one can hardly see a restriction of the very right to access to justice.
Nevertheless, I categorically do not support this bill. And that's why.
The Supreme Court of the Russian Federation in many of its initiatives proceeds from the fact that in general everything is fine with criminal justice in our country. Not without problems, not great, of course, but okay. There are individual shortcomings that are not systemic in nature, which the judicial community is actively working on. As far as I understand, the author of the text of the explanatory note to the bill under discussion proceeds from the same premise.
But we, in the legal profession, know that in fact the state of criminal proceedings in our country is, to put it mildly, abysmal. And the larger the subject of the Federation, the worse its criminal courts. About our capital, the hero city Moscow, is a completely separate conversation.
Therefore, the premise on which the Supreme Court of the Russian Federation bases its proposals is in fact false.
The creation of extraterritorial cassation courts of general jurisdiction, where cases are considered mainly in the conditions of continuous cassation, was due precisely to the fact that the previous cassation instances, which accepted cases for their consideration only at the discretion of the judge, did not guarantee any effective correction of judicial errors. Using the example of the cassation instance of the Kostroma Regional Court, I can say that the transfer to this instance of complaints against judicial decisions of lower courts, if the cases “passed” through the judicial panels of the regional court on appeal, was universally refused (I specifically checked this statement several years ago using the system "GAS-Justice"). So the lawyers already knew that the first cassation was a pure formality, the result was known in advance and was needed only to try to reach the second cassation - the judicial panel of the Supreme Court of the Russian Federation, which is practically equivalent to a miracle of miracles.
That is why, in the current conditions, the argument about preserving unlimited selective cassation cannot be considered as an argument in favor of establishing a deadline for continuous cassation, although this argument in itself, so to speak, is abstract and logical, and does not seem to me to be incorrect.
It is false in today's conditions, since the current state of criminal proceedings, unfortunately, does not give reason to hope that in order to change or overturn by cassation procedure, if not all, but at least a significant proportion of unjust sentences, two months will be enough to file a cassation appeal in the form of a complete cassation.
Legality is restored, and faith in justice returns not instantly, but only gradually. A convicted person cannot be “disqualified” just because he takes a long time to decide whether to complain or not to complain, because in the conditions of modern criminal proceedings, these long deliberations are most often due to the conviction of the lack of justice in our criminal courts.
Therefore, now it is imperative that all “Unbelieving Thomases” be given an indefinite (and not just two months) opportunity to be convinced that justice is not a chimera, that a judicial error can be corrected, that a fair trial exists.
Until Russian criminal proceedings get rid of the accusatory bias (the presence of which, as far as I understand, the Supreme Court of the Russian Federation, contrary to the established public consensus on this issue, does not actively recognize), the opportunities for convicted persons and their defense attorneys to challenge sentences that have entered into legal force not only should not be narrowed, but should be extended as far as possible, even if this increases the burden on the judicial system.
Let us remember the end of the 1990s, the “lawlessness” of tax authorities and tax police authorities in the interpretation and application of tax law, uncodified until 1997. Arrears, crazy fines in the amount of 100% of hidden profits and other sanctions were collected administratively. You could, of course, challenge them in court, but only if you managed to write a statement before everything was written off from your account.
And since 1998, the Tax Code of the Russian Federation has come into force, which provides exclusively for the judicial procedure for the forced collection of additionally accrued arrears, penalties and fines. The motivation for such a legislative decision was simple - deprivation of property is possible only by court.
And for more than 10 years, the era of real, effective judicial control over the activities of tax authorities began.
Of course, arbitration courts were overwhelmed with tax cases. Even a mere 3 kopecks of arrears or 5 kopecks of a fine, which the taxpayer did not argue with but did not pay himself, could be recovered exclusively by the court. More than half of the workload of the judges of the administrative boards of arbitration courts was tax disputes (for those interested, you can check the judicial statistics of those years). There were no simplified procedures or court orders in the arbitration process at that time, so any application from the tax authority, even about the recovery of 3 kopecks, was considered according to all the rules of legal proceedings. In addition, without any pre-trial procedure, the courts also considered applications from taxpayers themselves to challenge non-normative acts of tax authorities. More than half of such applications were granted.
What was the result of continuous and many years of judicial control over the work of the state tax authorities system? From my point of view, he turned out to be great. The level of legality in the activities of tax authorities and the professionalism of their employees has increased many times over. The Federal Tax Service has created its own pre-trial audit service that considers controversial situations. At the same time, taxpayers received stable and predictable judicial practice in tax disputes and began to better understand what is possible and what is not.
In the end, after just over 10 years, the legislator abandoned the judicial procedure for collecting tax arrears, penalties and fines from organizations and individual entrepreneurs, leaving it still mandatory only for collections from citizens. At the same time, the previous reasoning that deprivation of property is possible only by court was not completely rejected. The legislator simply began to proceed from the fact that if a taxpayer believes that his property is being confiscated to fulfill his tax obligation illegally, then the court doors are open for him. The organizational and procedural mechanism for protecting the rights of the taxpayer has reached such a level that constant and complete judicial control over their compliance is no longer required.
All this happened not somewhere abroad, but here in the Russian Federation.
We ourselves have excellent experience in organizing effective judicial protection of the rights of citizens and organizations in their relations with the state.
This protection was provided by new courts that did not exist during the Soviet era - arbitration courts, where, under the leadership of the late Veniamin Fedorovich Yakovlev, highly professional personnel were selected who were not afraid to feel like judges.
Today, convicts and their defenders have great hopes for the new cassation courts of general jurisdiction.
It was the system of their continuous consideration of cassation appeals that “invigorated” the judges of the appellate instances, who two years ago could feel like kings and gods, because they knew that the chance was not for the cancellation of even the judicial act they had adopted, but for the very consideration of the complaint of the convicted person against this act , was negligible.
Judges’ awareness of the fact that the legality of their court decision will definitely be checked if the convicted person wants it, and it is still unknown what they will decide, forces them to still consider the case, and not just habitually state that everything is legal and reasonable.
I am convinced that the criminal justice system today is not ready to create restrictions, albeit reasonable in a different situation, for a face-to-face meeting between a judge and a convicted person and his defense attorney in the courtroom.
Moreover, such restrictions will contradict the goals of introducing a complete cassation review of judicial acts of lower authorities that have entered into legal force, by a cassation court that is organizationally and territorially uninvolved in these authorities.
In this case, the judicial system must “step on the throat of its own song” and sacrifice the interests of the rational organization of its own activities to the interest of society in ensuring effective judicial protection of the rights and freedoms of citizens and correction of judicial errors, which, unfortunately, are still very common in criminal proceedings. a lot of.
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Article 327.2 of the Code of Civil Procedure of the Russian Federation. Time limits for consideration of a case in an appellate court (current version)
1. Establishing at the legislative level the terms for consideration of cases in the court of appeal is a guarantee of respecting the right to have a case considered by the court within a reasonable time, preventing delays in the trial and red tape in civil proceedings. The provisions of the commented article determine the various terms for consideration of cases by appellate courts, based, firstly, on the level of the appellate court in the system of courts of general jurisdiction, and secondly, on the special legal regulation of certain categories of civil cases.
The first of these criteria is reflected in parts 1 and 2 of the commented article, which differentiates the terms for consideration of a case on appeal by district courts, supreme courts of republics, regional, regional courts, courts of federal cities, courts of an autonomous region, courts of autonomous districts, district (naval) military courts, the Supreme Court of the Russian Federation. The general rule for all courts of general jurisdiction exercising the powers of appellate consideration of civil cases, with the exception of the Supreme Court of the Russian Federation, is a two-month period for consideration of the case. For the Supreme Court of the Russian Federation, the legislator increased this period by another month, establishing the possibility of considering cases by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, as well as by the Appellate Collegium of the Supreme Court of the Russian Federation, within three months. The starting point when calculating the deadlines set out in the commented norms is the day the case is received with an appeal or presentation to the appropriate appellate court.
An important point when calculating the time limits for consideration of cases by the court of appeal, which the Plenum of the Supreme Court of the Russian Federation focuses on in paragraph 19 of Resolution No. 13 of June 19, 2012, is the situation when the court of the first or appellate instance receives an appeal, presentation, and a previously received appeal or presentation has already been accepted for proceedings by the appellate court. In this case, the appellate court, if it has information about the receipt of other appeals and presentations, is forced to postpone the hearing of the case and, if necessary, carry out procedural actions provided for in Art. Art. 323 - 325 of the Code of Civil Procedure of the Russian Federation, return the case to the court of first instance, for which an appropriate ruling is made. Postponement of the trial of the case and its return to the court of first instance is the reason for calculating the time limits established by the commented article not from the date of initial receipt of the appeal or presentation by the court, but from the date of receipt of the case with the last appeal or presentation by the court of appeal. At the same time, in order to comply with reasonable deadlines for legal proceedings, the appellate court, when postponing the trial of a case, has the right not to send it to the court of first instance if it establishes that a newly received appeal or presentation was filed within the prescribed period (for example, the appeal was sent by mail and entered the court after the expiration of the appeal period) and meet all the requirements of Art. 322 of the Code of Civil Procedure of the Russian Federation (see commentary to it).
The time limits for consideration of appeals and submissions established by the norms under comment include the time limits for preparing the case for trial and the adoption of a judicial act. The Plenum of the Supreme Court of the Russian Federation, in its Resolution No. 13 of June 19, 2012, draws the attention of the appellate courts to the fact that, regardless of the transition of the appellate court to considering the case according to the rules of a “full” appeal, the period for consideration of the case by the appellate court does not increase, the courts must meet the deadlines established by the legislator in order to respect the right of everyone to have their case considered within a reasonable time. The time period for consideration of the case in the appellate court cannot be extended.
However, based on the analysis of judicial practice, it should be noted that, despite the time limits for consideration of cases in the appellate court clearly stated in the commented article, in practice there are still cases of exceeding the established time limits for consideration, including those that are not justified in any way.
Example: The Moscow City Court recognized that the length of the trial was largely due to the ineffective and insufficient actions of the court in resolving the dispute that arose between the parties and, above all, the actions of the appellate court. As follows from the case materials, the appeal was filed on October 15, 2013, and the appeal ruling on it was adopted on July 8, 2014. From the case materials it is clear that there are no objective reasons why the applicant’s appeal could be scheduled for consideration for so long (only after 9 months), not available. In view of this, the court came to the conclusion that during the specified periods of time the actions of the court to consider the applicant’s case were insufficient and ineffective, which did not allow ensuring the legally guaranteed right to a trial within a reasonable time (see the decision of the Moscow City Court of April 20, 2015 in the case N 3-0227/2015).
2. Based on the position of the legislator, set out in part 3 of the commented article, the time frame for consideration of the case in the court of appeal may differ from those established in the previous provisions of parts 1, 2 of the norm in question, due to the fact that federal laws, including the commented codified normative act, other deadlines for consideration of certain categories of cases in the appellate court may be established. The legislator in the commented norm draws the attention of the law enforcement officer to the fact that such deadlines can only be established by the federal legislator. This position is based on the provisions of paragraph “o” of Art. 71 of the Constitution of the Russian Federation, which relates procedural legislation to the jurisdiction of the Russian Federation.
Currently, the only exception to the general rule regarding the time limits for consideration of cases by the appellate court are the provisions of Part 2 of Art. 244.17 of the Code of Civil Procedure of the Russian Federation, which reduce the period for consideration of a case received on appeal, presentation of a case on the return of a child or on the exercise of rights of access to one month from the date of its receipt by the court of appeal. Other deadlines for consideration of cases on appeal, different from those enshrined in the commented article, are not established by the normative act under consideration and other federal laws.
Shortened deadlines for consideration of appeals and submissions are provided for by federal laws in cases of violation of electoral rights and the right to participate in a referendum of citizens of the Russian Federation, etc. However, at present, in connection with the entry into force of the CAS of the Russian Federation on September 15, 2015, such deadlines are important when considering cases in administrative proceedings. In addition, shortened terms for consideration of cases by the court of appeal are also used in the arbitration process, in particular when considering appeals against a ruling on transferring a case to another arbitration court, a ruling on the return of a statement of claim (statement) and rulings completing proceedings (on termination of proceedings in the case of leaving the statement of claim (application) without consideration (clause 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 25, 2013 No. 99 “On procedural deadlines”).
Comment source:
“COMMENTARY TO CHAPTER 39 “PROCEDINGS IN THE COURT OF APPEALS” OF THE CIVIL PROCEDURE CODE OF THE RUSSIAN FEDERATION OF NOVEMBER 14, 2002 No. 138-FZ”
N.V. Laskina, 2017
Canceled cassation, will consider appeal
The reversal of a decision in the cassation court is an extremely rare case. In Russian judicial practice, it occurs as rarely as an acquittal. A team of lawyers in civil cases managed to do the almost impossible: the clients, having heard the decision of the appeal, turned to our legal center to protect their interests, and were not mistaken in their choice.
“Several years ago, a resident of Moscow learned that her apartment on Kutuzovsky Prospekt in the capital belonged to other people. According to the new owners, ownership transferred after the signing of the purchase and sale agreement and the transfer of money, but neither of these, according to the pensioner, happened,” says lawyer, assistant attorney Julia Burgudzhi.
Lonely pensioners who own expensive property in Moscow often come to the attention of “well-wishers” who are ready to help needy old people, satisfying their slightest needs. Naturally, nothing is done for nothing: many volunteers hope to gain the trust of their grandparents in order to receive property after their death.
“Vera Semyonova did not lose contact with her family, therefore she did not belong to the category of lonely people. A few years ago, a woman appeared in her life who began caring for the pensioner absolutely unselfishly: she helped around the house, bought groceries, and solved problems with documents. The friendship ended the moment Semyonova found out that her apartment had recently belonged to this same acquaintance,” says civil lawyer Dmitry Panfilov.
The pensioner filed a claim with the Dorogomilovsky District Court of Moscow to declare the concluded transaction invalid. The woman insisted that she had never seen any agreement, but often, completely trusting her friend, she signed the documents that she gave. The defendant’s arguments looked more convincing: the purchase and sale agreement and the payment allegedly made on the day of its signing, which became evidence of the receipt of money, tipped the scales of justice in their favor. Although, according to Semyonova, she did not receive the amount itself. The Moscow City Court, where she tried to achieve justice, agreed with the conclusions of her colleagues.
“The pensioner, who lost her only living space, did not survive the decision of the appeal court. Her relatives, who entered into an inheritance, contacted our legal center. A team of lawyers prepared a cassation appeal, after which the decision was overturned and the case was returned to the appellate court. Thus, there was a real chance to achieve justice in a situation where even the clients themselves had difficulty believing in a successful outcome,” says civil lawyer Tatyana Zolotar.
