Contents of the supervisory complaint
Question: How to write a supervisory complaint correctly?
Formally, the supervisory application must contain data such as the name of the court, personal information about the applicant (full name, place of residence, telephone number, status in the case), the substance of the case and his “biography”, that is, the stages of consideration of the case before supervision. We draw the reader’s attention to the fact that the applicant must not only list what decisions were made by lower authorities, but also reflect the essence of such decisions - this way there is a greater chance that the complaint will be accepted for proceedings and the case will be reviewed.
As for the content, the text of the complaint must contain arguments why the applicant considers the verdict and subsequent decisions illegal. It would be better if specific rules of law are listed that, in the author’s opinion, were violated during the administration of justice. If the applicant was not an actual participant in the trials, he needs to write how specifically his rights and interests are affected by the verdict.
All decisions in the case mentioned by the applicant must be attached to the complaint. Copies must first be certified by the relevant courts.
At the end of the complaint, there must be a clear request to the judges of the Presidium of the Supreme Court of the Russian Federation about which decision (one or more) should be canceled.
Supervisory authority
The purpose of the supervisory review is to finally verify the legality of the sentence and subsequent decisions of various levels of authorities. In essence, the supervisory board puts an end to the proceedings, and it is no longer possible to appeal the verdict that has entered into legal force (except for the European Court of Human Rights).
Cancellation of previous decisions in this instance is possible only in the presence of gross judicial errors made by lower courts.
Supervision has common features with cassation (read our article about how to write a cassation appeal).
As in cassation, the opportunity to file a supervisory appeal is available to participants in legal proceedings whose rights and interests were violated by a verdict that has already entered into legal force. In some cases, the authors of the complaints may be persons who did not actually take part in the process, but from the circumstances of the case it is clear that their rights are affected. At the same time, in contrast to the cassation procedure, where the prosecutor of the subject (region, territory) has the right to bring a supervisory presentation (analogue of a complaint), only the Prosecutor General of the Russian Federation or his deputies can apply to the Presidium of the Supreme Court of the Russian Federation on behalf of the prosecutor's office.
The deadline for filing a supervisory complaint in a criminal case is currently not regulated in the Code of Criminal Procedure of the Russian Federation. This means that the interested person retains the opportunity to appeal to the Presidium of the Supreme Court of the Russian Federation for an indefinite period of time; theoretically, it always exists. Previously, until January 1, 2015, this period was only one year from the date the sentence entered into legal force.
At the same time, it is necessary to take into account that a turn for the worse (tightening the punishment, excluding mitigating circumstances from the sentence, changing qualifications, etc.) is possible only within one year from the moment the revised decision enters into legal force.
How to file a petition in court, and to which court?
The applicant has three months from the moment the grounds for review of the case arise to file an application with the court. The petition itself is written in free form, but it must indicate newly identified or new circumstances and attach documents confirming them.
The petition must be submitted to the court that made the decision requiring review. If the court decision was changed or revised by way of cassation appeal or supervision, then the application is submitted to the court that adopted the changed decision.
Any participant in the process can apply to the court if he believes that his rights or interests have been violated by the decision made. Such a statement from the prosecutor is called a presentation .
Everything about criminal cases
Old mitigators in appeal— by old mitigating factors we mean those circumstances that have already been presented in the materials of the criminal case.
— the use of mitigating circumstances that previously appeared in the case is possible in two options:
A). Failure to take into account mitigating circumstances
- these are cases when the court did not take into account mitigating circumstances (did not indicate in the reasoning part
sentence), although their signs are in the materials of the criminal case (note, about the most convenient miscarriage of justice for the defense, when the court did not indicate the use of particularly strong mitigating agents, see more here: Punishment
plan
, the court’s failure to take into account restrictions when imposing punishment).
- it is necessary to check the case materials for signs of any circumstances that can be interpreted as mitigating:
Url Additional information:
Mandatory softening
the circumstances specified in
Part 1 61 of the Criminal Code
- first of all
:
mandatory mitigating factors
, if one of them can be found, and there is no reference to their accounting in the verdict (this is a violation of norms
299 of the Criminal Procedure Code
and
307 of the Criminal Procedure Code
), then this means a 100% mitigation of the punishment.
Url Additional information:
Optional emollients
circumstances mentioned in
Part 2 61 of the Criminal Code
- in the second place
:
other mitigating
circumstances are checked. This is more difficult to do because:
— their list is unlimited, and one can try to interpret almost any circumstance as mitigating (for example, the fact of long-term detention
in a pre-trial detention center during the investigation may be recognized as a mitigating circumstance).
- unlike mandatory circumstances, the court is not obliged to recognize circumstances from this group as mitigating; to do this, the lawyer will have to convince the court that this circumstance should have been taken into account precisely as a mitigating one.
Case No. 22-3103/2016
Example
- the punishment was reduced on appeal, thanks to the mitigating
clause "k" part 1 61
(compensation for damage)
b). Underestimation of softening agents
- underestimation of mitigating circumstances - when they are indicated in the motivation part
sentence, but assessed insufficiently by the court of first instance.
- this is the most unproductive option, if it was not possible to find formal errors when taking into account mitigating factors in the verdict, then the defense is in a situation where all that remains is to object “the court indicates that it took into account the mitigating factor, but I believe that it actually did not take it into account.” (There is no table
to calculate the effect of specific mitigating agents). That is, the lawyer is forced to enter into direct competition with the legal assessment of the judge. Under normal conditions, such power arm wrestling is useless. From the point of view of higher courts, a lawyer’s assessment, not supported by anything other than his opinion, is “lighter than feathers” compared to the judge’s assessment. However, sometimes higher courts agree with the defense’s argument that the first-instance court underestimated some circumstance and it should be considered mitigating. As a rule, such a concession has its own reason, which is not obvious to an outside observer.
Reason for changing the sentence
- the verdict has weaknesses: either there are procedural violations (at the same time not so bright as to send the case back down) or the evidence base is rather weak. In this case, the higher court may compromise and reduce the sentence, for which it takes into account any circumstance as a mitigating factor as a basis.
How it looks in the decision (II and III instances):
— the court consistently breaks down all the defense arguments.
- and then, unexpectedly, he commutes the sentence, allegedly for a completely different reason, by applying a mitigating circumstance.
- there are procedural violations, and quite significant ones, on the verge of recognizing them as significant, but the appellate court does not want to “break” the entire verdict.
- then he commutes the sentence, relying on mitigating factors.
- that is, in fact, the real reason for changing the sentence was unresolved doubts
, and mitigating here serves as a formal reason for the court.
ILLUSTRATION
Here is an example from our practice, where this situation manifested itself quite clearly: Example
mitigation of punishment on appeal.
Here we see a clear example of a situation where the court does not want to change the qualifications, that is, to admit the fundamental errors of the lower court. A compromise decision was made - not to change the qualifications, but to sharply reduce the punishment. But this reduction in punishment must be formally justified somehow? And the appellate court justifies the reduction by referring to such a mitigating circumstance as young children
. Meanwhile, this mitigating circumstance in itself is not so significant that the appellate court would suddenly begin to reduce the punishment so radically. This softening has nothing to do with it, it is used only for formal justification.
(You can read about such situations here: Doubt as a mitigating
circumstance, role for mitigation of punishment).
