After the court of first instance renders a verdict, the convicted person, his defense attorney, and the prosecution have the right to appeal it through the cassation, appellate and supervisory proceedings. An appeal or cassation complaint is filed against a sentence (or other judicial acts) that has not entered into legal force. Supervisory complaints are filed against judicial acts that have entered into legal force.
Work on cassation, appeal and supervisory appeals requires a thorough and scrupulous study of the case materials, choosing the right legal position and presenting appropriate arguments that can effectively influence the final result. The specifics of work at these stages require excellent knowledge of the law and the ability to present the arguments and justification for the complaint in writing. Without qualified legal assistance, knowledge and experience, it is difficult to achieve a positive result. A complaint is usually a complex and lengthy document.
How to file an appeal?
Until 2012 in Russia, appeals against court decisions took place in the following order: court of first instance - court of cassation - supervisory court. Subsequently, the Federal Constitutional Law No. 1 and Article 320 of the Code of Civil Procedure of the Russian Federation introduced the court of appeal.
Info
One of the features of the appellate court is that it conducts a new trial by calling witnesses and examining evidence, on the basis of which it makes a decision. And the cassation court is based on existing materials.
To appeal the decision of the magistrate's court, it is necessary to file an appeal to the district court. And the decision of the district court can be appealed to the Supreme, Regional, Regional Court and so on.
Attention
According to Article 321 of the Code of Civil Procedure of the Russian Federation, an appeal must be filed within a month after the court of first instance made its decision.
The courts of first instance are:
- City, district, interdistrict court;
- Garrison Military Court;
- Arbitration court of the constituent entities of the Russian Federation.
When filing an appeal, you need to remember that it is filed through the court that made the decision. This is due to the fact that in order to consider the case anew, all materials on the case that are stored in the first court must be sent to a higher court.
Important
The fact is that uninformed persons send the court decision for review directly to the appellate instance (a higher court in relation to the courts of first instance), however, this is not entirely true. Of course, if the applicant nevertheless sent an appeal to a higher authority immediately, then he will not be denied.
In this case, the appellate judicial body writes a corresponding letter, attaches the applicant’s claim to it and sends it to the court that made the decision. This court must:
- Inform the participants in the case that a complaint has been received and send them photocopies of documents: the complaint and a letter from the appellate body;
- If participants have objections, accept them;
- Collect the necessary documents, including objections from the participants, and send them to the appeal court.
Cassation instance, actions of a lawyer
The lawyer files a cassation appeal to a higher court through the court that decided the verdict within ten days from the announcement of the verdict. Until the start of the hearing of the court of second instance, you can withdraw the cassation appeal, or change it or supplement it.
According to the requirements of the Code of Criminal Procedure of the Russian Federation, a cassation appeal filed against a court verdict must contain:
- name of the cassation court;
- information about the person filing the complaint, his procedural status;
- name of the court of first instance;
- a sentence that is subject to appeal;
- reasoned arguments for appeal;
- a request to cancel the verdict of the first instance court in whole or in part;
- list of materials attached to the complaint;
- signature of the person filing the complaint.
A cassation appeal is considered in a court session by a panel of three judges in a higher court - a city court or a court of a constituent entity of the Russian Federation. The Code of Criminal Procedure provides for the right of appeal for both the defense lawyer and the convicted person. An absolute requirement is a thorough and scrupulous analysis of the materials of the criminal case, an analysis of the verdict for its validity and legality, detailed arguments to refute the conclusions of the trial court, and an indication of violations committed at the trial stage. The filed complaint must be sent to all participants in the process; they (the victim, the state prosecution represented by the prosecutor) have the right to file their objections. Equally important is the oral presentation before the cassation board (three judges) on the arguments of the complaint, the persuasiveness of the lawyer, his willingness to convey and defend his position. When considering a criminal case in cassation, a lawyer has the right to file challenges and petitions, present additional evidence confirming his arguments, support a complaint, and request an examination of evidence.
Based on the results of consideration of the complaint in open court with the participation of all parties, the cassation board issues a cassation ruling against the verdict of the court of first instance, based on the results of which one of the following decisions can be made:
- to leave the sentence unchanged;
- on reversing a sentence, changing a sentence, making a new decision;
- on the reversal of the sentence, sending the criminal case for retrial to the court of first instance with a different composition of judges.
It should be added that the prosecutor and the victim also have the right to appeal in cassation. In this case, the lawyer must submit written objections to these complaints/representations if he disagrees with them.
How to file a cassation appeal?
Unfortunately, after appeal proceedings in a case the applicant is not always satisfied. This is because the appellate body often makes the same decision as the trial court. Therefore, the applicant can only appeal this decision to the cassation court:
- Collegium for Civil Cases of the Supreme Court of the Russian Federation;
- Presidium of regional courts.
The cassation body has more powers compared to the appellate body. He checks the validity of the decisions that were made initially, and also has the right to once again send the case to the court of first instance for the purpose of re-trial.
In accordance with Article 377 of the Code of Civil Procedure of the Russian Federation, a cassation appeal is filed directly with the cassation authority within 6 months from the moment the court decision came into force. An appeal against the initial decision can be sent to the court of cassation only if the applicant has already appealed to lower authorities to resolve the issue.
Attention
The judge independently examines the applicant's complaint, using the materials specified by him. If necessary, the judge requests the missing materials from a court of general jurisdiction. Upon completion of the proceedings, the judge either transfers the case to the Presidium of the court or sends a refusal to the applicant with the opportunity to correct the shortcomings. If the shortcomings are not corrected by the applicant, then the refusal of the cassation authority will not be appealable.
Appellate instance, actions of a lawyer
The appellate authority is the district (city) court, which considers criminal cases on appeal based on complaints and submissions from the state prosecution against sentences and decisions of the magistrate court that have not entered into legal force. In the criminal procedure code, chapters 43,44,45.1 are devoted to this stage.
An appeal must be filed within ten days from the announcement of the verdict. Within the same period from the date of issuance, the decision of the magistrate to terminate the criminal case and his other decisions may be appealed.
The right to appeal a court verdict belongs to the convicted, acquitted, their defenders and legal representatives, the state prosecutor or a higher prosecutor, the victim and the lawyer for the victim. A civil plaintiff, a civil defendant or their representatives have the right to appeal a court decision insofar as it relates to the civil claim. The district judge alone hears the case on appeal.
The consideration of the appeal begins with a brief statement by the judge of the verdict and the merits of the complaint. Then the presiding officer listens to the arguments of the participants in the process. After this, the court proceeds to examine the evidence.
In the court of appeal, the parties have the right to petition to call new witnesses, conduct a forensic examination, and request material evidence and documents, the examination of which was denied to them by the magistrate. In this case, the appellate court does not have the right to refuse to satisfy the petition on the grounds that it was not satisfied by the court of first instance. Of course, requests must be justified and ultimately aimed at the correct resolution of the case. The debate between the parties ends the case, after which the court retires to the deliberation room.
Based on the results of the consideration of the criminal case, the appellate court makes one of the decisions:
- leaving the verdict of the court of first instance unchanged, and the appeal or submission not satisfied;
- reversal of the conviction of the court of first instance and acquittal of the defendant or termination of the criminal case;
- reversal of the acquittal of the court of first instance and the pronouncement of a guilty verdict if a prosecutor's proposal was submitted;
- changing the verdict of the court of first instance.
About the Supreme Court
The last opportunity to challenge a court decision is to file a supervisory appeal with the Supreme Court of the Russian Federation. It is submitted within 3 months after the last court decision has entered into force.
The text of the supervisory complaint contains the same information as complaints to the appellate and cassation instances, as well as decisions of lower courts.
As a rule, the supervisory authority resolves most cases in a positive manner for the applicant. This is due to the fact that more court decisions are verified by way of supervision than during a cassation appeal.
The Plenum of the Supreme Court clarified the appeal under the Arbitration Procedure Code
The plenum was again held online. According to Supreme Court Judge Elena Borisova, new clarifications are needed to unify procedural rules. At the same time, the working group tried to preserve existing, “time-tested and practice-tested” approaches when considering cases. The draft clarification consists of almost 50 points, divided into three sections.
The chairman of one of the appellate courts, which will have to apply the clarifications of the Supreme Court in practice, Erdem Dorzhiev recalled: since 2009, when the Plenum of the Supreme Arbitration Court explained the peculiarities of the production of economic cases in appeal, the APC has already been amended more than 40 times. “The new resolution reflects changes in procedural legislation, as well as the positions of the Supreme Court formed when considering specific cases,” he emphasized.
In parallel with the clarifications of the appellate proceedings under the APC, the Plenum of the Supreme Court also clarified the rules for considering cases in cassation. Read more about them in the material “Plenum of the Supreme Court: features of cassation in economic cases.”
Following the meeting, the draft resolution was sent for revision. A link to the text of the draft clarification is at the end of the material.
1
Right to complain
The Plenum clarifies who generally has the right to appeal decisions of arbitration courts. These can be either direct participants in the dispute or persons who did not participate in the consideration of the case, but if the decision affects their rights and obligations. Prosecutors can also appeal decisions in cases in which they were not involved. Business ombudsmen can only appeal if they were involved in the first instance.
2
Cassation instead of appeal
In some cases, the second instance does not mean that it is an appellate instance. The Plenum of the Supreme Court explains: you need to immediately appeal in cassation:
- court orders;
- rulings to cancel the arbitration court's decision;
- determinations on the issuance of the execution warrant for its forced execution;
- rulings on recognition and enforcement of a foreign court decision;
- other definitions for these categories of disputes.
Decisions of the specialized Court for Intellectual Rights come into legal force immediately after adoption, and therefore cannot be appealed. They need to be complained about immediately to the presidium of this court.
3
Shortened terms
Some acts of the first instance must be complained about within a shortened period of 10 days. For example, these are determinations on the transfer of a case to jurisdiction, on the refusal to satisfy a request to involve a co-defendant, and other procedural decisions of the court. When appealing such determinations, the appellate court may postpone consideration of the dispute in the first instance.
A shortened period is also provided for cases of administrative offenses.
4
Two in one
An appeal can be filed against one or several judicial acts of the first instance. For example, one complaint may contain demands to appeal the decision in the case and a ruling to return the counterclaim. In this case, the arbitration appeal has the right to issue one ruling on acceptance of the complaint for proceedings, as well as one judicial act based on the results of their consideration.
The exception is complaints regarding acts issued in bankruptcy cases. They need to appeal each determination separately.
All appeals filed against one judicial act must be considered in one court hearing.
5
Complain directly to the AAS
As a general rule, an appeal must be filed through the court of first instance. But there are exceptions to this rule. For example, if the appellate court has already opened proceedings on an appeal in the same case, you can file the appeal directly there. In such a case, the appeal will not return the complaint to the complainant.
6
We calculate the deadlines correctly
The Plenum of the Supreme Court reminds: the deadline for filing an appeal is counted not from the date of sending a copy of the decision to the parties to the dispute, but from the date of production of the judicial act in full or from the date of signing by the judge of the operative part of the decision in a case considered through summary proceedings.
The Plenum of the Supreme Court gave an interpretation of the termination of obligations
If the first instance delays in preparing the decision, the period for appeal is not automatically extended. However, the parties to the dispute have the opportunity to apply for restoration of the missed deadline.
The Plenum also provides explanations to the courts on how to determine whether a party has met the deadline for appealing or not. A stamp on the envelope or a receipt for the letter at the post office will help.
If the court has doubts that the complaint was filed on time, it may ask the applicant for additional evidence of this fact.
7
(Un)valid reasons
The court may reinstate the deadline for filing a complaint if the reasons for missing the deadline were valid. The Plenum of the Supreme Court clarifies what can be considered a valid reason. For example, this is the introduction of a high-alert regime on the territory of a constituent entity of the Russian Federation, which provides for restrictions on free movement and presence in government and other institutions.
Plenum of the Supreme Court: how to consider appeals in administrative cases
The court can restore the term even when the applicant did not know about the existence of the appealed decision for a long time. This is possible if the complaint is filed by a person who did not participate in the consideration of the case in the first instance.
The list of unexcusable reasons for missing a deadline is a little more detailed. The Plenum of the Supreme Court includes among them the need to agree with a higher authority (or with someone else) on the issue of filing an appeal. Internal organizational problems of a legal entity are also not a reason to miss a deadline. As does the absence of a lawyer on staff, as does the lawyer’s vacation.
8
Additional evidence
Sometimes the appeal may consider new evidence in the case. But to do this, the one who provides this evidence needs to confirm that he could not show it in the first instance (for good reasons). Among such valid reasons, the Plenum of the Supreme Court includes cases where the first instance unreasonably rejected a party’s request to request additional evidence or to order an examination.
The clarifications emphasize that “recognition of evidence as relevant and admissible in itself is not a basis for its acceptance by the arbitration court of appeal.”
9
Lack of documents
The Plenum of the Supreme Court emphasizes: if the applicant of the appeal has not attached a copy of the appealed judicial act, this does not prevent the consideration of the complaint, because the judicial act is already in the case file.
However, you will still have to send a copy of the appeal to the parties in the case. The court may even adjourn the case until the applicant proves that he actually sent a copy to other parties to the case.
10
New consideration of the case
Based on the results of consideration of the appeal, the court may return the case for a new trial at the first instance. Issues the resolution of which falls within the jurisdiction of the court of first instance and which the court did not consider on the merits can be sent back to the lower court. For example, due to the unjustified return of a statement of claim, refusal to accept it, leaving the application without consideration, termination of proceedings in the case or refusal to review a judicial act due to new or newly discovered circumstances.
Results 2019: all explanations of the Plenum
If the first instance committed gross procedural violations, due to which the decision should definitely be canceled (Part 4 of Article 270 of the APC), then the appeal does not send the case for a new consideration, but simply cancels the decision and considers the dispute itself according to the rules of the first instance.
Draft resolution of the Plenum of the Supreme Court “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal.”
- Pravo.ru
- Arbitration process
- Supreme Court of the Russian Federation
How many times can you appeal a court decision?
Summarizing all of the above, we can say that the initial decision of the trial court can be appealed three times:
- Appeal;
- Cassation;
- Supervision.
Advice
Subject to compliance with deadlines and rules, and timely elimination of shortcomings, the applicant has every chance of success. In addition, it is important to take the case seriously from the very beginning and contact a qualified lawyer who will help the applicant comply with all the necessary requirements and accompany the proceedings.
Can the court refuse?
Sometimes applicants' complaints remain unanswered or are returned (in accordance with Article 323 of the Code of Civil Procedure of the Russian Federation). This is due to the fact that:
- The complaint does not comply with the rules for filing and registration;
You can read about how to file a complaint in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation in this article.
- The applicant did not confirm the fact of payment of the state fee;
- The applicant missed the appeal deadline and did not submit a request to extend the deadline.
Important
The court gives the applicant time to correct the mistakes made. If this does not happen, the complaint is returned.
