CC: An appeal has no right to worsen the situation of the defendant without the initiative of the prosecution

You can appeal any decision of the court of first instance, including the verdict in a criminal case. Sometimes filing a complaint is the last real opportunity to cancel or change an unjust decision and achieve justice. Most often, it is the convicted who express disagreement with the verdict, but in some situations the victims are dissatisfied with the too lenient punishment or the classification of the crime - they, too, like the state prosecutor, have the right to appeal. What are the deadlines for filing an appeal in a criminal case, how to file a complaint and where to file it - read our article.

What is an appeal

The appellate court is a court of second instance that reviews the decision of the lower court and puts an end to the proceedings. An appellate review is essentially a review of the legality of the original judicial opinion in a case.

You need to understand that the appeal court can be either a district court (a meeting with one judge), or a regional one, as well as the Supreme Court (a meeting with the participation of three judges). In practice it looks like this:

• When a judge of the peace pronounces a sentence, the district court is considered the appellate instance. For example : Pavlov R.Z. was convicted by the verdict of the magistrate of precinct No. 1 of the Leninsky District Court of Kirov under Art. 119 of the Criminal Code of the Russian Federation. Lawyer R.Z. Pavlova did not agree with the decision and appealed it to the Leninsky District Court of Kirov.
• When a district court makes a verdict, the court of appeal is a court of regional or regional significance. For example : Lozhkin G.R. was convicted by the verdict of the Petrovsky City Court of Vladimir. He wrote a complaint about the review to the Vladimir Regional Court.
• When passing a sentence by a regional court, the Supreme Court is considered to be the second instance. For example , a jury in the Kemerovo region returned a not guilty verdict for a double murder. In order to overturn the acquittal, the representatives of the victim wrote a complaint to the Supreme Court of the Russian Federation.

The complaint is filed through the court that made the original decision. That is, the complaint itself is submitted to the office of the court of first instance, although it is addressed to a higher court.

The procedure for appealing court decisions of a magistrate in criminal cases

Information for citizens » Appeal procedure » Procedure for appealing court decisions of a magistrate in criminal cases

• The procedure for appeal and cassation appeals against court decisions in criminal cases
• The procedure for applying to the supervisory court

criminal cases.

The right to appeal a court decision belongs to the convicted, acquitted, their defenders and legal representatives, the state prosecutor and (or) a higher prosecutor, the victim, the private prosecutor, their legal representatives and representatives, as well as other persons to the extent that the appealed court decision affects their rights and legitimate interests.

A civil plaintiff, civil defendant or their legal representatives and representatives have the right to appeal a court decision insofar as it relates to the civil claim.

In accordance with the requirements of Chapter 45.1 of the Criminal Procedure Code of the Russian Federation, decisions of the court of first instance that have not entered into legal force can be appealed by the parties on appeal.

Determinations or decisions on the procedure for examining evidence, on satisfying or rejecting petitions of participants in the trial and other court decisions made during the trial are appealed on appeal simultaneously with the appeal of the final court decision in the case, with the exception of court decisions specified in part three of this articles.

Before the final court decision is made, the magistrate's decisions to return the application to the person who filed it or to refuse to accept the application for proceedings are subject to appeal; court decisions or rulings on the selection of a preventive measure or on the extension of its validity, on the placement of a person in a medical organization providing medical care in an inpatient setting, or in a medical organization providing psychiatric care in an inpatient setting, for conducting a forensic examination, on the seizure of property, on establishing or extending the period of arrest imposed on property, on suspending a criminal case, on transferring a criminal case to jurisdiction or on changing the jurisdiction of a criminal case, on returning a criminal case to the prosecutor; other court decisions affecting the rights of citizens to access justice and to consider a case within a reasonable time and preventing further progress of the case, as well as private rulings or decisions.

An appeal against a ruling or ruling made during a trial does not suspend the trial.

An appeal or presentation is brought through the court that rendered the sentence or issued another appealed court decision.

Appeals and submissions are submitted:

1) against a verdict or other decision of a magistrate – to a district court;

2) for a verdict or other decision of a district court, garrison military court - to the judicial collegium for criminal cases of the supreme court of the republic, regional or regional court, court of a federal city, court of an autonomous region, court of an autonomous district, district (naval) military court;

3) for an interim decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court - to the judicial collegium for criminal cases of the relevant court;

4) for a verdict or other final decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court - respectively, to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation;

5) against the decision of a judge of the Supreme Court of the Russian Federation - to the Appeal Board of the Supreme Court of the Russian Federation.

An appeal, submission against a sentence or other decision of the court of first instance can be filed within 10 days from the date of the verdict or other court decision, and for a convicted person in custody - within the same period from the date of delivery of copies of the sentence, ruling, resolutions.

During the period established for appealing a court decision, the criminal case cannot be recalled from the court.

Appeals or submissions filed after missing the deadline are left without consideration.

If the deadline for an appeal is missed for a good reason, persons who have the right to file an appeal or presentation may petition the court that passed the sentence or made another appealed decision to restore the missed deadline. The petition to restore the term is considered by the judge who presided over the court hearing in the criminal case, or by another judge.

A judge’s decision to refuse to restore the missed deadline can be appealed to a higher court, which has the right to cancel such a decision and consider the filed appeal, presentation on the merits, or return them to the court that made the appealed decision, to fulfill the requirements provided for in Article 389.6 of the Criminal Procedure Code Code of the Russian Federation.

An appeal or presentation must contain:

1) the name of the appellate court to which the complaint or presentation is filed;

2) information about the person who filed the appeal or presentation, indicating his procedural status, place of residence or location;

3) an indication of the verdict or other court decision and the name of the court that decided or issued it;

4) the arguments of the person who filed the appeal or presentation, indicating the grounds provided for in Article 389.15 of the Criminal Procedure Code of the Russian Federation;

5) a list of materials attached to the appeal or presentation;

6) signature of the person who filed the appeal or presentation.

The person who filed the appeal or presentation, in support of the arguments presented in the complaint or presentation, has the right to file a petition for the court of appeal to examine the evidence that was examined by the court of first instance, which must be indicated in the complaint or presentation, and provide a list of witnesses, experts and others persons subject to summons for this purpose to the court hearing. If a request is made to examine evidence that was not examined by the court of first instance (new evidence), then the person is obliged to justify in the appeal or presentation the impossibility of presenting this evidence to the court of first instance.

The appeal of a person not participating in the criminal case must indicate what rights and legitimate interests of this person were violated by the court decision.

If a convicted person applies for participation in the consideration of a criminal case by an appellate court, this is indicated in his appeal or in objections to complaints and submissions brought by other participants in the criminal process.

If the appeal or presentation does not comply with the requirements established by parts one, one.1 and two of Article 389.6 of the Criminal Procedure Code of the Russian Federation, which prevents the consideration of the criminal case, the appeal or presentation is returned by the judge, who sets a deadline for their re-drafting. If the judge’s requirements are not met and the appeal or presentation is not received within the time limit set by the judge, they are considered not filed. In this case, the verdict or other appealed court decision is considered to have entered into legal force.

The court that passed the sentence or made another decision being appealed shall notify the persons specified in Article 389.1 of the Criminal Procedure Code of the Russian Federation about the appeal or presentation brought, if the complaint or presentation affects their interests, with an explanation of the right to file a complaint or submit objections in writing form, indicating the deadline for their filing and sends them copies of the complaint, presentation, as well as objections to them. Objections received to a complaint or presentation are added to the materials of the criminal case.

Filing an appeal or presentation suspends the execution of a sentence, ruling, or resolution, except for the cases provided for in Article 311 and part four of Article 389.2 of the Criminal Procedure Code of the Russian Federation.

After the expiration of the appeal period, the court that passed the sentence or made another appealed decision sends the criminal case with the appeal, presentation and objections to them to the appellate court, which is reported to the parties.

The person who filed the appeal or presentation has the right to withdraw it before the start of the appellate court hearing. In this case, the appeal proceedings on this complaint or presentation are terminated. If a complaint or presentation is withdrawn before the appointment of a court hearing of the appellate court, or brought by a person not vested with such right in accordance with Article 389.1 of the Criminal Procedure Code of the Russian Federation, or brought to an interim court decision that is not subject to independent appeal, the judge returns this complaint , performance.

An additional appeal or presentation is subject to consideration if it is received by the appellate court no later than 5 days before the start of the court hearing. In an additional complaint of the victim, a private prosecutor or their legal representatives and representatives, as well as in an additional presentation of the prosecutor, filed after the expiration of the appeal period, the issue of worsening the situation of the convicted person, the person against whom the criminal case has been terminated cannot be raised, unless such a requirement contained in the initial complaint and submission.

Criminal Procedure Code
of the Russian Federation, articles 389.1 – 389.8.
Cassation appeal

The cassation court verifies, based on a cassation appeal or presentation, the legality of a sentence, ruling or court decision that has entered into legal force.

A court decision that has entered into legal force can be appealed in the manner established by Chapter 47.1 of the Criminal Procedure Code of the Russian Federation, to the court of cassation by the convicted, acquitted, their defenders and legal representatives, the victim, the private prosecutor, their legal representatives and representatives, as well as others persons to the extent that the appealed court decision affects their rights and legitimate interests. A civil plaintiff, civil defendant or their legal representatives and representatives have the right to appeal a court decision insofar as it relates to the civil claim.

The Prosecutor General of the Russian Federation and his deputies have the right to apply to any cassation court to review a court decision that has entered into legal force.

The prosecutor of a constituent entity of the Russian Federation and his deputies have the right to apply for a review of a court decision that has entered into legal force, made by the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district on appeal, as well as those entered into the legal force of court decisions made by lower courts to the judicial panel for criminal cases of the relevant cassation court of general jurisdiction.

A military prosecutor equated to the prosecutor of a constituent entity of the Russian Federation and his deputies have the right to apply for a review of a court decision that has entered into legal force made by a district (naval) military court on appeal, as well as court decisions that have entered into legal force made by garrison military courts, in military court of cassation

Cassation appeals and presentations are submitted to:

1) the verdict and decision of the magistrate; sentence, ruling and ruling of the district court; verdict, ruling and ruling of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a sentence, ruling and ruling of a court of appeal of general jurisdiction, with the exception of a sentence or other final court decision of the supreme court of a republic, a regional court or a regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, issued in the course of criminal proceedings as a court of first instance, as well as a verdict or other final court decision of a general jurisdiction court of appeal made as a result of the review of such a decision, - to the judicial panel for criminal cases of the relevant cassation court of general jurisdiction;

2) court decisions specified in paragraph 1 of part 1 of Article 401.3 of the Criminal Procedure Code of the Russian Federation, if they were appealed in cassation to the judicial panel for criminal cases of the cassation court of general jurisdiction; a verdict or other final judicial decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, issued in the course of criminal proceedings as a court of first instance, a sentence or other final judicial decision of a general appellate court jurisdiction resulting from the review of such a decision; determination of the judicial collegium for criminal cases of the cassation court of general jurisdiction - to the Judicial collegium for criminal cases of the Supreme Court of the Russian Federation;

3) the verdict, determination and decision of the garrison military court; sentence, ruling and ruling of the district (naval) military court, sentence, ruling and ruling of the military court of appeal, with the exception of the sentence or other final court decision of the district (naval) military court, issued during criminal proceedings as a court of first instance, and also a sentence or other final court decision of the military court of appeal, rendered as a result of the review of such a decision - to the military court of cassation;

4) court decisions specified in paragraph 3 of part 1 of Article 401.3 of the Criminal Procedure Code of the Russian Federation, if they were appealed in cassation to a military court of cassation; a sentence or other final judicial decision of a district (naval) military court, rendered by it during criminal proceedings as a court of first instance, a sentence or other final judicial decision of an appellate military court, rendered as a result of the review of such a decision; determination of the cassation military court - to the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation.

A cassation appeal or presentation is filed through the court of first instance and is considered in the manner prescribed by Articles 401.7, 401.8 of the Criminal Procedure Code of the Russian Federation, a cassation appeal or presentation against:

1) sentence or other final judicial decision of a magistrate, district court, garrison military court; a verdict or other final judicial decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court, rendered on appeal - if these court decisions are appealed to the judicial panel for criminal cases of the relevant cassation court of general jurisdiction or a military court of cassation;

2) a verdict or other final judicial decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court, issued in the course of criminal proceedings as a court of first instance; a verdict or other final judicial decision of a court of appeal of general jurisdiction, a military court of appeal, made as a result of the review of such a court decision - if these court decisions are appealed to the Judicial Collegium for Criminal Cases, the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation.

A cassation appeal or presentation is filed directly with the cassation court, which is authorized in accordance with Part 1 of Article 401.3 of the Criminal Procedure Code of the Russian Federation to review the appealed court decision, and is considered in the manner prescribed by Articles 401.10 - 401.12 of the Criminal Procedure Code of the Russian Federation, cassation appeal, presentation on:

1) interim court decisions;

2) a verdict or other final judicial decision of a magistrate, district court, garrison military court; a verdict or other final judicial decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court, rendered on appeal; a ruling by the judicial collegium for criminal cases of a cassation court of general jurisdiction, a ruling of a military court of cassation made as a result of the review of court decisions listed in this paragraph - if these court decisions are appealed to the Judicial collegium for criminal cases, the Judicial collegium for military personnel of the Supreme Court of the Russian Federation .

A cassation appeal or presentation must contain:

1) the name of the court to which they are filed;

2) information about the person who filed the complaint, presentation, indicating his place of residence or location, procedural status;

3) an indication of the courts that considered the criminal case in the first, appellate or cassation instances, and the content of the decisions they made;

4) an indication of the court decisions that are being appealed;

5) an indication of significant violations of the norms of criminal or criminal procedural law committed by the courts that influenced the outcome of the case, with the presentation of arguments indicating such violations;

6) request of the person filing the complaint, presentation.

The cassation appeal of a person who did not take part in the case must indicate what rights or legitimate interests of this person were violated by the court decision that entered into legal force.

If a cassation appeal or presentation was previously filed with a cassation court, it must indicate the decision taken on such complaint or presentation.

The cassation appeal must be signed by the person who filed it. The complaint filed by the defense attorney is accompanied by a warrant or other document certifying his authority. The submission must be signed by the prosecutor specified in parts 2-2.2 of Article 401.2 of the Criminal Procedure Code of the Russian Federation.

Copies of court decisions adopted in this criminal case, certified by the relevant court, are attached to the cassation appeal or presentation. If necessary, copies of other documents are attached that confirm, in the applicant’s opinion, the arguments set out in the cassation appeal or presentation.

A cassation review of a sentence, ruling, or court decision on grounds that entail a worsening of the situation of a convicted person, an acquitted person, or a person in respect of whom the criminal case has been terminated is allowed within a period not exceeding one year from the date of their entry into legal force, if during the trial there were violations of the law that influenced the outcome of the case, distorting the very essence of justice and the meaning of the court decision as an act of justice, or if data was revealed indicating a person’s non-compliance with the conditions and his failure to fulfill the obligations stipulated by the pre-trial cooperation agreement.

Criminal Procedure Code of the Russian Federation Articles 401.1 – 401.4, 401.6

The procedure for applying to the supervisory court

Court decisions that have entered into legal force (sentence, ruling or court order) can be reviewed in the manner of supervision by the Presidium of the Supreme Court of the Russian Federation based on complaints and submissions of persons specified in parts one and two of Article 401.2 of the Criminal Procedure Code of the Russian Federation.

The court of supervisory authority verifies, based on a supervisory complaint or presentation, the legality of the sentence, ruling or ruling of the court.

The following matters that have entered into legal force are appealed to the Presidium of the Supreme Court of the Russian Federation:

1) court decisions of the Appeals Board of the Supreme Court of the Russian Federation;

2) rulings of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation and rulings of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation, issued by them in cassation proceedings;

3) decisions of the Presidium of the Supreme Court of the Russian Federation.

A supervisory complaint or presentation is filed directly with the Supreme Court of the Russian Federation.

A supervisory complaint or presentation must contain:

1) the name of the court to which they are filed;

2) information about the person who filed the complaint, presentation, indicating his place of residence or location, procedural status;

3) an indication of the courts that considered the criminal case in the first, appellate or cassation instances, and the content of the decisions they made;

4) an indication of the court decisions that are being appealed;

5) an indication of the grounds provided for by law for reviewing a court decision in the manner of supervision, with the presentation of arguments indicating the existence of such grounds;

6) request of the person who filed the complaint, presentation.

The supervisory complaint of a person who did not take part in the case must indicate what rights, freedoms or legitimate interests of this person were violated by the court decision that entered into legal force.

The supervisory complaint must be signed by the person filing the complaint. The supervisory submission must be signed by the Prosecutor General of the Russian Federation or his deputy.

Attached to the supervisory complaint or presentation are copies of court decisions made in the case, certified by the courts that considered the criminal case in the first, appellate or cassation instances.

Criminal Procedure Code
of the Russian Federation Articles 412.1 – 412.3.
Information published as of 10/01/2019

What you can appeal

So, any verdict (conviction or acquittal) can be appealed. In addition, filing an appeal is possible:

• to a decision to terminate the case on various grounds. The judge has the right to terminate a criminal case when imposing a court fine, as a result of reconciliation of the parties, subject to certain conditions (more details in the article), as well as under an amnesty, after the expiration of the statute of limitations, etc. Let's give an example. In September 2015, for a crime of minor gravity, the court issued a decision to terminate the criminal case in connection with an amnesty in honor of the 70th anniversary of Victory in the Great Patriotic War (such an amnesty was actually announced in May 2015). The victim, who did not agree with this outcome of the case, appealed the decision.
• to a court decision to select a preventive measure. The court chooses detention or house arrest, as well as bail. Other restrictive measures against persons under investigation are applied by the decision of the investigator.
• to a resolution that is issued following the consideration of a complaint filed in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation - against the actions of officials of the police, the investigative committee, and the prosecutor's office. For example, Serov E.N. filed a complaint with the court against the refusal to initiate a criminal case. At the meeting, the case materials were checked, a decision was made to refuse the application of E.N. Serov, who, not agreeing with this, decided to appeal.
• on decisions of a judge on issues of parole, expungement of a criminal record, revocation of a suspended sentence or extension of a probationary period.

You need to know that court decisions made during the proceedings at the request of the participants in the process are not subject to separate appeal. This means that the parties have the right to express their disagreement with interim decisions in a criminal case only in an appeal against the final decision, that is, against the court verdict.

Example . When considering a case of robbery, the defense filed a motion to exclude the inspection report of the crime scene from evidence, but the court rejected it. The defense lawyer wrote an appeal against the refusal, but proceedings on it were not started; the regional court indicated the impossibility of considering it and recommended that he present his arguments in an appeal against the verdict, which will take place at the end of the trial.

Other examples of so-called “interim decisions” may be decisions on requests to order an examination, on calling additional witnesses, on the admission of a public defender, on requesting documents or audio media, etc. All these decisions cannot be appealed separately.

How to properly file an appeal in criminal proceedings?

The mere fact that in the Russian Federation, according to the latest statistics from the Judicial Department at the Supreme Court of the Russian Federation, the share of acquittals in the total number of final court decisions made by courts in criminal cases is 0.3%, allows us to conclude that the appeal stage is faced a significant number of defendants In addition, this procedural mechanism is often resorted to by victims who are dissatisfied with the outcome of the criminal case, as well as persons who were not involved in the proceedings in the criminal case, but whose interests are affected by the decision made in the case (for example, the verdict imposed foreclosure on the property of a person who is not the accused, in order to compensate for the damage caused by the crime).

This article will highlight some of the subtleties that you need to know when filing an appeal in criminal proceedings.

First of all, it should be noted that a complaint against a judicial act is not filed directly with a higher court, but through the court that made the appealed decision (Article 389.3 of the Code of Criminal Procedure of the Russian Federation). For example, if the decision was made by the Tverskoy District Court of Moscow, then the complaint is filed through the said district court to the Judicial Collegium for Criminal Cases of the Moscow City Court.

In addition, it is necessary to outline the circle of persons who have the right of appeal in criminal proceedings.

Article 389.1 of the Code of Criminal Procedure of the Russian Federation states that the right of appeal belongs to the convicted, acquitted, their defenders and legal representatives, the state prosecutor and (or) a higher prosecutor, the victim, the private prosecutor, their legal representatives and representatives, as well as other persons insofar as in which the appealed court decision affects their rights and legitimate interests. Thus, if you are not a participant in criminal proceedings, but within the framework of it a court decision has been made that affects your rights (for example, the decision allows the seizure of property belonging to you, a search of your home, or if the verdict does not allow the fate of material evidence, which belongs to you), then you have the right to file an appeal against a court decision with which you do not agree.

It is also necessary to determine the list of judicial acts that can be appealed. All decisions made during criminal proceedings are divided into intermediate and final. Final decisions include those that resolve the case on its merits: a verdict, a decision to terminate a criminal case, and so on. All final decisions may be appealed.

Interim ones include those that are issued during the pre-trial and judicial stages of a criminal case on certain current issues that arise during the proceedings. We should immediately make a reservation that not all interim judicial acts are subject to appeal. The list of interim acts against which an appeal can be filed is enshrined in paragraph 3 of Art. 389.3 Code of Criminal Procedure of the Russian Federation. These include: decisions of the magistrate to return the application to the person who filed it, or to refuse to accept the application for proceedings; court decisions or rulings on the selection of a preventive measure or on the extension of its validity, on the placement of a person in a medical organization providing medical care in an inpatient setting, or in a medical organization providing psychiatric care in an inpatient setting, for conducting a forensic examination, on the seizure of property, on establishing or extending the period of arrest imposed on property, on suspending a criminal case, on transferring a criminal case to jurisdiction or on changing the jurisdiction of a criminal case, on returning a criminal case to the prosecutor; other court decisions affecting the rights of citizens to access justice and to consider a case within a reasonable time and preventing further progress of the case, as well as private rulings or decisions. Other court decisions include, including, as explained by the Supreme Court of the Russian Federation in Resolution of the Plenum of November 27, 2012 N 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the appellate court”, a decision on the appointment of a court hearing, court decisions on the imposition of a monetary penalty and on the conversion of the pledge to state revenue.

Determinations or decisions on the procedure for examining evidence, on satisfying or rejecting petitions of participants in the trial and other court decisions are appealed simultaneously with the final court decision in the case, i.e. judicial acts issued during the judicial stage of criminal proceedings.

It should be noted that interim court decisions can be appealed to the court only until the final decision in the case is made, with the exception of decisions on choosing a preventive measure in the form of detention or house arrest, on extending the validity of this preventive measure, or on placing a person in prison. a medical or psychiatric hospital for conducting a forensic examination, as well as decisions not related to the resolution of the case (for example, imposing a monetary penalty for failure to appear in court or violation of order at a court hearing).

An important issue is the deadline for filing an appeal in criminal proceedings.

Paragraph 1 of Article 389.4 of the Code of Criminal Procedure of the Russian Federation establishes a general deadline for filing an appeal - within 10 days from the date of the decision. At the same time, the Code of Criminal Procedure of the Russian Federation provides for special deadlines for appealing decisions in the appellate manner. First of all, this concerns the filing of appeals against decisions on the election and extension of a preventive measure. Complaints against court decisions on these issues are filed within 3 days from the date of their issuance (Clause 11, Article 108 of the Code of Criminal Procedure of the Russian Federation). In this case, this procedural period includes weekends. The court, when rendering a verdict, in accordance with Art. 299 of the Code of Criminal Procedure of the Russian Federation resolves the issue of the measure of restraint in relation to the convicted person. At the same time, not everyone knows that the decision on the issue of a preventive measure contained in the sentence can be appealed separately from the sentence. Even if they do know, many people forget that this decision is subject not to the general procedural period for appealing the verdict - 10 days, but to the special one - 3 days.

Considering that the volume of the verdict can be significant and requires a long time to study it (especially for multi-episode criminal cases with a large number of defendants), it is recommended to file a so-called short appeal against the verdict on the day of its announcement. Otherwise, there is a risk of missing the deadline for filing an appeal. Subsequently, the arguments of the appeal can be supplemented, which will be discussed below.

As for the content of a short appeal, it is enough to present in abstract form the arguments on which the participant in the process does not agree with the decision made. But a prerequisite for this is reference to the grounds for reversing the sentence provided for in Art. 389.15 Code of Criminal Procedure of the Russian Federation. These include, for example, the injustice of the verdict, the discrepancy between the court’s conclusions and the actual circumstances of the case, and significant violations of the criminal procedure code. If this condition is not met, there is a risk that the court will return the complaint to the applicant to eliminate the deficiencies.

The person filing the appeal can always supplement its arguments. In some cases, this is necessary because new arguments have been found in favor of the position taken in the case. This is often due to the fact that the protocol of the court hearing was not prepared by the court of first instance in a timely manner. Sometimes this makes sense for tactical reasons - for example, if the person appealing the verdict does not want to immediately share all his arguments with procedural opponents. For this purpose, the Criminal Procedure Code in Article 389.9 of the Code of Criminal Procedure of the Russian Federation provides a special mechanism in the form of filing an additional appeal. This complaint must be received by the appellate court no later than 5 days before the start of the court hearing. This means that it can be filed in the trial court if the case has not yet been sent to the appellate court. Or no later than 5 days in advance directly to the court of appeal, if the case has already been received from the court of first instance.

It should be borne in mind that, in accordance with established practice, courts accept additional appeals only from those persons who filed a “regular” appeal within 10 days from the date of the verdict. For this reason, lawyers who have accepted an assignment to protect the interests of their clients after the expiration of the 10-day period for filing a complaint and, if their clients have already filed their complaints independently or through other lawyers, are not recommended to file an additional appeal against the verdict, but should be put before the court of first instance, the question of restoring the missed deadline for filing a complaint, or, if the criminal case is already in the court of appeal, draw up your arguments in the form of written explanations and submit them through an expedition or attach them directly at the court hearing.

Almost always, when filing an appeal, there is a need to add new evidence that the court of first instance did not examine. This can be either evidence that changes the essence of the case, or materials characterizing the defendant. Regardless of the type of new evidence, it must be remembered that a person who wants the appellate court to examine new evidence must justify the impossibility of presenting it to the trial court in a separate petition (clause 1.1 of Article 389.6 of the Code of Criminal Procedure of the Russian Federation), which can be filed as together with the appeal, and directly at the court hearing. Valid reasons can be varied: the evidence could have been obtained by the party after the verdict was passed, the person appealing the verdict was not involved in the proceedings in the trial court.

The consequence of failure to submit such a petition along with the appeal, if new materials are attached to it, will entail the return of the appeal to eliminate the deficiencies. Failure to submit such a petition when attempting to add new evidence directly in the court of first instance, or the absence of a convincing justification why this evidence could not be presented to the court of first instance, with a high degree of probability means a refusal to satisfy it.

Deadlines

The general period established for filing an appeal in a criminal case is 10 days. The countdown begins on the date following the announcement of the verdict. In practice, cases arise when this period is actually exceeded:

1. If the 10th day of the deadline falls on a holiday or weekend, the appeal can be filed on the first working day after the non-working day. For example, the verdict was handed down on 06/01/2021, Friday. The 10th day falls on June 11, that is, a non-working day due to the postponement of the Saturday holiday. June 12 is Independence Day, a holiday. Therefore, in fact, the period for appeal in this case is 12 days, up to June 13 inclusive.
2. Usually the complaint is submitted to the court office, but in some cases it is sent by mail (no matter registered or ordinary mail). The post office acceptance stamp on the envelope confirms the date of delivery of the letter. If such a date is within the 10-day period, even if the letter actually arrives late at the court office, the deadline is considered met. Let's give an example. Kostin A.V. was convicted by a verdict on 04/02/2021 - accordingly, the period of appeal ends on 04/12/2021. Kostin A.V. I didn’t have time to submit my complaint before the end of the district court’s working day (5:30 p.m.), so I sent it by letter at 8:00 p.m. via the post office, as evidenced by the stamp. In fact, the envelope arrived at the office only on April 16, 2021, but under the circumstances described, the convict “met” the 10-day period.
3. For convicted persons who are in custody, 10 days begin to run from the next day after the actual delivery of a copy of the verdict. To file a complaint in this case, a separate petition for reinstatement of the pass is not required.
4. For the remaining convicts, their defense attorneys, as well as for victims and the state prosecutor, the deadline missed for a valid reason is subject to restoration upon request. A request to reinstate the appeal period may be reflected in the complaint itself. In addition, a petition for restoration of the deadline can be drawn up separately:

In the Leninsky District Court of the city of Kirov, Igor Alexandrovich Pletnev, convicted by the verdict of the Leninsky District Court of the city of Kirov dated 04/02/2021

Petition for restoration of the missed period of appeal

By the verdict of the Leninsky District Court of Kirov dated April 2, 2021, I was convicted under Part 1 of Art. 228 of the Criminal Code of the Russian Federation to 1 year of imprisonment in a penal colony. I do not agree with the verdict and wrote an appeal.

The verdict was announced on 04/02/2021, but I actually received a copy of it on 04/18/2021, as evidenced by the note in the case.

Based on the above, guided by art. 389.5 Code of Criminal Procedure of the Russian Federation,

ASK:

Reinstate the missed deadline for appealing the verdict of the Leninsky District Court of Kirov dated 04/02/2021.

Calculate the period from 04/19/2021 - that is, from the next day after the copy was actually delivered to me.

Pletnev I.A., 04/19/2021

As can be seen from the sample application, it is drawn up in free form, but with the obligatory indication of the reason why you missed the deadline (receiving a copy after the 10-day period - due to a business trip, illness, postal work, etc.). In other words, you must justify your request to be given the opportunity to challenge the verdict. At the end of the petition, you must indicate from what date, in your opinion, the new 10-day period for appeal should be calculated.

The petition is considered by the same judge who handed down the sentence. In some cases (vacation, business trip, illness of a judge), consideration by another judge is allowed, on behalf of the chairman. Based on the results of consideration of the petition, the court issues a separate ruling. If the specified reason is considered valid, the period is restored. If the court considers the reason for absence to be unjustified, a decision is made to refuse to restore the 10-day period - in this case, the applicant has the right to appeal the decision separately.

The period for filing a complaint against a decision to select a preventive measure in the form of detention or house arrest has been reduced to 3 days. The same period is allotted for appealing the extension of the preventive measure.

Time limits for appealing a verdict to the Supreme Court

The current legislation of the Russian Federation establishes the following deadlines for challenging court decisions:

• For filing an appeal, a period of 10 days is provided from the moment the verdict or other court decision was issued, which provides for the possibility of appeal. If the convicted person is in custody, the countdown of this period begins from the day on which the person received the decision in question.
• For challenging a court decision by way of cassation or supervision, no exact deadline is established. The exception in this case is situations in which a review of a sentence or court decision is carried out by way of cassation or supervision, the grounds of which entailed aggravation of the situation of the convicted or acquitted person. In such conditions, the period for challenging is equal to one year from the moment the court decision enters into legal force if errors and inaccuracies were made during the proceedings, resulting in a violation of legislative norms and the concept of fairness of the verdict.

If the deadline for a dispute expires on weekends or holidays, it is recalculated and the last working day becomes the next working day.

If a complaint is filed with violation of certain details, the Court will grant an additional period to eliminate the identified violations. If there is no repeated complaint with corrected violations within a predetermined period or repeated violations, the proceedings are terminated and the complaint is not considered filed. Filing a complaint after the expiration of the established time period also entails refusal to accept the application for consideration. At the same time, the legislation of the Russian Federation provides for exceptions, within the framework of which the presence of valid reasons is the basis for a request to restore the missed period of appeal. In order to restore the missed deadline, the applicant must provide documents that confirm the right to do so. Such documents may be medical certificates and extracts, death certificates of close relatives, and so on. If the petition for restoration of the missed deadline is granted, then the complaint is considered filed on time.

An unappealed court decision comes into force after the expiration of the 10-day period. If the applicant has filed an appeal, the entry into force occurs after the final decision on the appeal is made.

Who has the right to appeal

The Criminal Procedure Law gives the right of appeal to the following participants in the process:

The convict and his defense lawyer

Representatives of this side of the case most often use the right to challenge. The convicted person may not agree with the fact that he was found guilty or only with the punishment imposed. The lawyer and the client can draw up one complaint between them or each of them separately. Complaints cannot contradict each other - this is unacceptable under the provisions on lawyer ethics. If the client considers the application of a particular article of the criminal code to be incorrect, the defense attorney does not have the right to express the opposite opinion on the same criminal case.

In some cases, along with a lawyer, the interests of the accused in court are represented by a public defender (sometimes there are several of them), who also has the right to appeal.

The legal representative also has this opportunity. For example, if the convicted person has not reached the age of majority, his parents have the right to appeal on his behalf, but only those who are recognized as an official representative. This does not deprive the minor of the right to appeal the verdict, along with his mother or father.

The victim, his legal representative or the victim’s lawyer (in those cases where he is involved)

Typically, the injured party does not agree with a lenient punishment or the exclusion of part of the charge from the criminal activity of the defendant. The public prosecutor is considered one of the representatives of the victim's side - he also has the right to express disagreement with the verdict on various grounds and to file an appeal (analogous to a complaint). In some cases, the opinion of the public prosecutor may not coincide with the opinion of the victim. Since the prosecutor is obliged to supervise not only compliance with the criminal law, but also the procedure for considering the case itself, representations can be made even in the absence of complaints from the victim.

Civil plaintiff or defendant

In criminal cases, the status of the defendant does not always coincide with the status of the accused in one person. Thus, if a fatal accident occurs as a result of driving a car owned by an organization, the claim of the victims may be addressed not only to the culprit behind the wheel, but also to the employer. Subsequently, if the employer does not agree with the verdict regarding the claim, he has the right to take advantage of the opportunity to appeal. Also a civil plaintiff: if the rights of other persons are affected by the crime, they can be brought as plaintiffs with the right to appeal.

Who does not have the right to appeal

Under no circumstances may the following persons appeal a court decision in a criminal case:

• witness. The status of a witness carries more responsibilities than rights. Thus, a witness does not have the right to refuse to testify, cannot ask questions to the court or participants in the process, and must not avoid appearing in court. In addition, the witness cannot appeal the verdict.
• specialist, expert. These are third parties whom the court or participants in the process invite to provide explanations about their special knowledge. After these explanations are given, specialists do not participate in the meeting and do not have the right to file complaints against court decisions.
• investigators and other representatives of law enforcement agencies participating in the investigation (except for the prosecutor). These are officials who do not have the right to influence the court's decision by appeal.
• other persons who are not parties to the case.

Assistance from a lawyer on appealing verdicts in the Supreme Court

A lawyer is a disinterested person, as a result of which the lawyer’s activities are carried out in conditions of strict observance of the interests of the client. The actual list of functions of a lawyer in appealing against sentences by appealing to the Supreme Court includes:

• A thorough study of the available procedural documents and the position of the potential applicant.
• Development of an individual appeal strategy with the search for important arguments to overturn the verdict.
• Collection of evidence confirming the need to re-examine the criminal case.
• Carrying out other necessary procedural actions in order to represent and protect the interests of the principal.

As practice shows, the participation of a qualified lawyer in the procedure for seeking assistance from the Supreme Court on issues related to appeals and sentences that do not correspond to the concepts of justice and legality is the key to a positive consideration of the application in the highest authority. Today, regulations and samples for drawing up various types of statements are freely available, but not a single template can guarantee a positive result, since each individual case is completely individual. Drawing up a complaint against a court verdict on your own entails the possibility of making errors and inaccuracies, which may lead to refusal to accept the complaint for consideration. MMKA lawyers have extensive practical experience and professional skills, thanks to which the risk of shortcomings is reduced to zero. You can be sure that when a lawyer draws up a complaint against a court verdict, the application will be absolutely legally competent, which will significantly increase the chances of it being accepted for consideration.

An additional argument in favor of contacting a competent lawyer in order to appeal a court verdict in the Supreme Court of the Russian Federation is the need for convincing motivation and compelling arguments when drawing up an application. The Supreme Court of the Russian Federation accepts for consideration only truly problematic cases, in which a reasoned text of the complaint with sufficient justification is the only condition for acceptance for consideration. In this case, the lawyer will be able to take on all the related tasks of challenging the court verdict at any stage and help represent the interests of his client, achieving their satisfaction.

Challenging a court verdict without professional legal assistance is almost impossible. This is due to both complex formalities and the specifics of the procedure itself. In addition, the court in some cases may make a decision unfavorable for the applicant, imposing a more severe punishment if serious mistakes are made. If you do not agree with the essence of the sentence and believe that a specific court sentence violates your rights in accordance with current legislation, cooperation with specialists from the Moscow Municipal Bar Association will be a rational decision. Our lawyers successfully appeal criminal verdicts by appealing to a higher court and guarantee an individual approach to each client to achieve the most favorable outcome of the case.

What to write about in a complaint

The basic requirements for filing an appeal are:

1. First you need to write the name of the court of second instance where you want to appeal the verdict. This may be the regional or regional court of the region where the district decision was made. In Moscow, the second instance for district sentences is the Moscow City Court.
2. Information about the author of the complaint - usually this information is located at the end of the text and includes not only the full name and residential address, but also the status - victim, accused, etc. If the complaint is made by a convicted person in custody, it is necessary to indicate where exactly he is staying - that is, in which pre-trial detention center. It is especially important to indicate their status to those who did not actually take part in the process, but at the investigation stage were recognized as victims or accused. For example, if the victim fails to appear at the court hearing, with the consent of the opposite party, his investigative testimony can be read out. In some cases, in cases of minor gravity, the law allows the defendant not to participate in the hearing, which does not deprive him of the right to subsequently appeal the verdict or decision.
3. Information about the verdict - in relation to whom it was pronounced, when and by what court, what punishment was determined if the accused was found guilty. If a complaint is filed against an acquittal, it is necessary to indicate on what grounds the court did this (due to the absence of elements or events of a crime, lack of evidence, etc.).
4. The complaint must be accompanied by additional documents that are referenced in the text and that have not previously been submitted to the court of first instance. Those materials or copies thereof that are already in the volumes of the criminal case should not be included. At the same time, the complaint can draw the attention of the judicial panel to certain documents that were previously examined, but were incorrectly interpreted, or not fully studied. It is better to indicate the sheets of the case and the volume number where such evidence is located - this will be convenient for the board of second instance. A request to examine specific evidence may also be made in a separate written request submitted to the appeal.
5. The complaint must indicate whether its author wishes to participate in the judicial review. Often, participants in the proceedings do not want to be present at the appellate hearing and ask that the ruling be sent to them by mail.
6. At the end of the text there must be a signature and a number.

The most important textual part of the appeal is the arguments about disagreement with the decision made in the first instance. It is unacceptable to assert unfoundedly that the verdict is illegal - this could lead to a refusal to accept the complaint. It is imperative to indicate why you consider the result of the proceedings to be illegal, while focusing on the grounds on which the verdict or decision can be overturned.

Errors in cassation

Lawyers make six common mistakes. The first three were discussed in the section on appeal. Three more errors are typical only for cassation.

The arguments of the complaint go beyond the scope of cassation consideration

In 99 percent of cases when cassation upholds decisions of lower courts, it indicates that the arguments of the complaint are aimed at reassessing the factual circumstances of the case and evidence. And this is not within the scope of consideration of the case in cassation. Cassation only checks whether the courts correctly applied the rules of substantive and procedural law.

The reason for this practice is that lawyers often copy the text of the appeal into the cassation complaint. For example, the complaint writes that “the conclusions of the courts do not correspond to the factual circumstances and the evidence presented in the case.”

If you want to present new evidence or perform procedural actions that are possible only in the first instance, look for unconditional grounds for reversing the decision.

In your cassation appeal, refer specifically to errors in the application of the rules - these are your main arguments. All arguments that are related to non-research or incorrect assessment of evidence are given only to confirm the court’s errors.

The arguments of the complaint do not correspond to the pleading purpose

The goal of the cassator is to achieve the reversal of judicial acts with which he does not agree. To do this, he can ask the cassation court, for example, to adopt a new judicial act in the case, to send the case for a new trial, or to leave in force one of the decisions or resolutions previously adopted in the case. Sometimes cassation officers ask to adopt a new act in the case - this is the most advantageous for the party, regardless of the circumstances of the case and the arguments that it brings.

The cassation court will not be able to adopt a new act, since to do this it will have to examine and evaluate the evidence, and the cassation court does not have the right to do this. Such a discrepancy between the request and the arguments reduces the credibility of the complaint and often raises questions and criticism in the court of cassation.

Study the case materials and select possible arguments for cassation. After this, decide how to formulate the pleading part of the cassation appeal.

Additional documents submitted too late

Lawyers often file position papers too late and draft them incorrectly. Courts usually accept documents directly at the hearing, but not cassation documents. If you submit a response to the complaint, additions, or written explanations directly to the hearing, the cassation office may reject them. For example, the court indicated that written explanations were received on the eve of the court hearing and refused to include them in the case materials.

Consider the peculiarities of the court. For example, the Arbitration Court of the Moscow District may not accept written explanations, since it considers them new evidence that the cassation cannot accept. Therefore, format additional explanations as the text of a speech - the courts usually accept it.

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Grounds for reversing or changing a sentence

This is stated in Article 389.15 of the Code of Criminal Procedure of the Russian Federation. Before writing a complaint, you need to study this norm of procedural law and compare the violations that are in the verdict or case with each of the grounds for its cancellation (the list is exhaustive):

Inconsistency of the court's conclusions with the actual circumstances of the case

This often means that the court made completely different conclusions compared to the indisputably established facts. For example, Filimonov A.R. provided the court with train tickets indicating a trip to the city of Krasnodar in January 2021. Despite this, the court indicated in the verdict that Filimonov was present on January 21, 2021 during the beating of the victim in the city of Simferopol, and there are no reasons why travel documents were not taken into account. Here, a reliable fact is distorted by the court, which means there are grounds for cancellation.

In another interpretation, the inconsistency of the conclusions is sometimes expressed in the presence of contradictions in the court decision. Thus, the court is obliged to comprehensively examine the evidence presented by both the defense and the prosecution, and then draw its conclusions about guilt or innocence. In some cases, in the text of the same verdict, the court refers to conclusions that contradict each other. This is also a basis for canceling a court decision.

Example . Ozerov P.O. was sentenced by the Prigorodsky District Court of Tambov for committing theft by breaking into someone else's house. The court stated this in the verdict: “…. the defendant’s position that he was not there on 04/20/2021 near house 5 on the street. Denisov, belonging to the victim, is refuted by the testimony of witness A.V. Petrov.” Further in the text, the judge indicated that the arguments of the state prosecutor that on April 20, 2021 Ozerov was on the street. Denisova, have not been confirmed by anything. In this case, there are significant contradictions, because of which it becomes unclear what the court finally came to. This verdict was overturned by the appellate court due to the discrepancy between the conclusions and the actual circumstances, which was expressed precisely in the presence of contradictory conclusions.

Significant violation of criminal procedure law

There are practically no criminal cases in which there is not a single violation of the Code of Criminal Procedure committed by the investigator or interrogating officer (with rare exceptions). At the same time, not every violation of the criminal procedural law entails an acquittal. The Supreme Court directs district courts to consider each piece of evidence for admissibility and relevance to the fact of the crime, and to draw conclusions only on the basis of an analysis of all the evidence. Sometimes the judges themselves violate the trial procedure, which is considered a significant violation of the law.

An example of an unconditional basis for reversing a court decision is:

• absence of the judge's signature in the minutes of the court hearing;
• failure to explain the rights of the convicted person;
• absence of a lawyer during questioning at a court hearing, or refusal of a request to become familiar with the case materials;
• consideration of the case by a judge who has previously participated in the proceedings (for example, as a secretary or prosecutor);
• failure to give the defendant the last word.

This is not an exhaustive list of violations that are considered material. In each specific case, this issue is resolved individually.

Misapplication of criminal law

We are talking about incorrect qualification of the crime or an incorrect conclusion regarding the application of the general norm of the Criminal Code of the Russian Federation - for example:

• recidivism of crimes is unreasonably taken into account when in fact there are no signs of it (or vice versa, recidivism is not taken into account when it is present);
• mitigating or aggravating circumstances are incorrectly determined;
• the rules for adding up punishments for several crimes or for several decisions were incorrectly used;
• the type of colony is incorrectly determined, etc.

Circumstances indicating the need to return the case to the prosecutor

Such circumstances arise when the investigation commits such violations of the criminal procedural law, in the presence of which no decision can be made at all (neither acquittal, nor conviction, nor termination). For example, when a case is sent to court, the indictment of which does not indicate the place, time, or method of committing the illegal act. In this case, it is clear from the materials that a crime has been committed and there is evidence of guilt, but a decision cannot be made, because objective circumstances have not been established or are not reflected in the accusation. The judge may return the case to the prosecutor even if a copy of the indictment is not served on the defendant.

Failure to comply with the terms of a pre-trial agreement with the investigation

If the defendant agrees to cooperate with law enforcement agencies and signs an agreement to this effect, he is obliged to expose other participants in the crime, help in solving the incident and in discovering material evidence. In exchange for this, the law allows the perpetrator to be assigned no more than half the maximum punishment, which is provided for in the article of the Criminal Code of the Russian Federation. If a verdict is passed, but the appellate instance notices a failure to comply with the terms of the pre-trial agreement, it has the right to cancel the decision of the first instance.

Unfairness of the verdict

This is the basis that is most often mentioned in the complaints of convicted persons. The Code of Criminal Procedure of the Russian Federation provides that the sentence may be changed or canceled if it is determined to be excessively severe. For example, when a person brought to justice for the first time is sentenced to actual imprisonment, or a sentence is determined for a convicted minor without taking into account special benefits, etc.

In some cases, victims may appeal the verdict due to excessive leniency. This is also a basis for cancellation if the appeal reveals an unreasonable understatement of the term - for example, when unconfirmed mitigating circumstances, the non-existent illness of the accused, etc. were taken into account when assigning a sentence.

When to challenge court decisions

First point. If the court's decision does not suit you, in principle, in any way and at any stage. In other words, your claims were not fully satisfied, or they refused to satisfy the most important requirements that were indicated in the decision, or, on the contrary, they illegally collected some amount of money from you . If you are generally, globally very dissatisfied with the decision, then be sure to go and appeal the decision. Because then realizing that you missed the chance to appeal, and you yourself stopped the opportunity to stop the judicial lawlessness in relation to you. And you will be very sorry when the emotions subside, when new strength and time appear, but, unfortunately, the time to appeal will be greatly missed.

The second point we want to draw attention to is that it is then that you should definitely appeal court decisions. If you receive unsatisfactory forensic results. Based on it, the court made a decision that more or less suits you, but still not in full. And you wanted to conduct additional research and a re-examination in the court of first instance. And there are grounds for this, and you definitely filed a petition for this. Then it is necessary to file an appeal and submit it to a higher court.

Because you have in your hands the entire evidence base in a comprehensive version. You can always refer to your requests that the court illegally rejected or did not satisfy. And then you must find an opportunity to appeal the decision of the first instance court. You have a lot of chances on appeal.

The third point is quite controversial, but one that is often encountered is inappropriate information about the notification.

Everyone knows that a person, even if he does not receive a summons at his place of registration or place of residence, is still considered to have been notified by the court. In other words, if the summons came and went, and at the time of consideration of the claim there is information that the summons was delivered to your post office, but you do not receive it for any reason.

Here we very carefully recommend that you pay attention to the court case; there is printed information in the materials of the civil case. Very often, courts “sin” by not attaching a register of postal items. The materials do not always contain evidence of the issuance of subpoenas. And then it will help you. For example, you were on sick leave or on a business trip, and objectively could not receive a summons, i.e. you have a valid reason for failing to appear at the court hearing. And then you have every right to appeal the court’s decision, and this will be effective for you.

An ineffective method in this situation in matters of notification would be stories when your representative is busy in another trial and did not appear in court, or you hired a lawyer and he was late, or you left and did not participate in the court hearing. And they didn’t consider it necessary to file a petition or provide any documents, but you knew about the court, then filing a complaint will be ineffective for you. In such cases, we do not recommend filing an appeal.

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The fourth point that we would like to draw your attention to is in which cases you 100% need to file an appeal - this is if you think that the court applied the wrong law or misinterpreted this law, or applied a law that cannot be applied in your situation.

This is probably a matter of the work of your representative and your legal position for which you have been preparing. Perhaps there were some mistakes at the initial stage. But always, when it comes to the norms of substantive law: this is what is written in the civil code, in the laws to which you refer in your reasoning part of the claim and what the court writes, repeatedly referring to the norms of law, to decisions of plenums, to judicial practice. If suddenly something is wrong here and some very serious (in your opinion) factual error has crept in, then be sure to file an appeal. In such cases, even, probably, not so much an appeal, but rather a cassation is a more effective authority for such violations.

Fifth point. If you want to file an appeal in order to delay time. Sometimes it happens that you realize that you really owe, say, money on a receipt. And that they collect them from you, in principle, legally. Maybe you don’t agree with the amount of interest or the deadline for claiming. But you really took the money and you understand that you have an obligation to return this money. But for some reason you do not currently have the physical ability to do this, and you want to delay the time for the court decision to enter into legal force. In such cases, we recommend that you file an appeal. And it will be effective for you. You will delay the time for the court decision to come into effect as much as possible.

In order to do this as much as possible, submit your complaint on the last or penultimate day of the expiring period (30 days from the date of production of the full text of the decision) by mail. Or submit, for example, without a receipt for payment of the state fee, and the court will leave it without action and assign you an additional deadline for filing.

Sixth point. In the vast majority of cases, people do not know and hesitate. To file an appeal or not to file? As a rule, those who have paid for the full service of a court case do not face such a problem. And they don't have to incur additional legal costs. With prior agreement , the lawyer prepares a complaint because he believes that it will be important and effective or a good stage for filing a complaint with the European Court of Human Rights.

In any case, if you see the prospect of your appeal to the ECHR, then you need to exhaust all domestic remedies that have been recognized by the court as effective. And you must file an appeal.

Samples of appeal in a criminal case

We present to the reader various sample options:

Complaint from a convicted person (most often filed)

To the judicial panel of the Arkhangelsk Regional Court in the case of Morozov N.G.

APPEAL

By the verdict of the Zavodsky District Court of Arkhangelsk dated April 12, 2021, I was convicted under Part 2 of Art. 162 of the Criminal Code of the Russian Federation to 5 years of imprisonment in a maximum security correctional colony.

From the very beginning of the investigation, I admitted my guilt in committing robbery and helped identify and detain the remaining members of our criminal group. At the court hearing, I confirmed my grateful position, apologized to the victim, agreed with the claim and am ready to pay her for the damage caused.

I do not agree with the court’s verdict, since all the above circumstances were not taken into account when assigning me such a severe punishment. Please also take into account that I have a heart disease (I am attaching medical documents), which was diagnosed after the verdict was announced. In addition, I am dependent on my elderly parents, whom I have supported in recent years and helped around the house. They can't cope without me.

Based on the above, guided by Art. Art. 389.1 and 389.18 Code of Criminal Procedure of the Russian Federation,

ASK:

The verdict of the Zavodsky District Court of Arkhangelsk dated April 12, 2021 is amended: to reduce the sentence imposed on me to 2 years in prison.

The appeal will be considered in my presence and in the presence of my lawyer.

Convict Morozov N.G., 04/17/2021.

Victim's appeal

Basically, people affected by the crime are dissatisfied with the decision in terms of a civil lawsuit or, in their opinion, too lenient a punishment for the perpetrator. Almost always, the complaint of the injured party is filed against an acquittal.

To the judicial panel for criminal cases of the Voronezh Regional Court of the victim Nikolsky G.O. in the case against Rodionov E.L., Mishin R.R.

APPEAL

By the verdict of the Zarechensky District Court of Voronezh dated April 20, 2021 Rodionov E.L. and Mishin R.R. convicted under Art. 158 of the Criminal Code of the Russian Federation to 2 years in prison, for attempted murder, these persons were acquitted for lack of corpus delicti.

I believe that the court’s decision does not meet the requirements of legality, validity and fairness, as required by Article 297 of the Code of Criminal Procedure of the Russian Federation.

The court concluded that there were no signs of a crime under Art. 105 of the Criminal Code of the Russian Federation, contrary to the factual circumstances that were established by the investigation.

Thus, in the confession of the convicted Rodionov E.L. it is indicated that he, together with Mishin R.R. had the intention of causing my death, that is, killing me. From the testimony of witness N.E. Matrosov. it follows that he heard how Rodionov and Mishin agreed among themselves to commit the murder. From the conversation it was clear that Rodionov would have to bring a hunting rifle to house 50 on the street on September 30, 2020. Spring, that is, to my place of residence.

Thus, the court, acquitting Rodionov and Mishin under Part 3 of Art. 30, part 1 art. 105 of the Criminal Code of the Russian Federation, did not take into account the factual data, made incorrect conclusions, thereby depriving me, as a victim, of the right to restore social justice and compensation for the moral damage I suffered as a result of the failed attempt on my life.

Based on the above, guided by Art. Art. 389.1, 389.16 Code of Criminal Procedure of the Russian Federation

ASK:

The verdict of the Zarechensky District Court of Voronezh dated April 20, 2021 is canceled and the case is sent for a new trial to the same court with a different composition.

I ask you to consider the complaint in my absence.

Nikolsky G.O., 04/25/2021

Brief appeal

It happens that a participant in the process has not yet received a copy of the verdict, and the 10-day appeal period is already coming to an end. Yes, we have already written that you can file a petition for its restoration, but this option is more suitable for those who find out about the trial by chance. If you control the deadline and see that it is expiring, it is permissible to write a short appeal, without indicating specific circumstances and facts, and after receiving a copy of the verdict, write an additional one. This way, you will not have to apply to reinstate the 10-day period, since the complaint will be considered filed on time.

To the Judicial Collegium of the Samara Regional Court of the Legal Representative of a convicted minor S.N. Makarov, born in 2002.

SHORT APPEAL

I, Elena Viktorovna Makarova, am the legal representative of S.N. Makarova, convicted by the verdict of the Zavodsky District Court of Samara dated April 25, 2021, who was found guilty of committing robbery under paragraph “g” of Part 2 of Art. 161 of the Criminal Code of the Russian Federation.

I believe that the sentence does not meet the requirements of legality, validity and fairness and must be cancelled. The court committed significant violations of the criminal procedural law, incorrectly applied the criminal law, and the conclusions do not correspond to the actual circumstances of the case.

I undertake to submit the full text of the appeal after receiving a copy of the verdict.

Makarova E.V., mother of minor Makarova S.N.

05.05.2021

After you receive a copy of the verdict, you need to write an addition to your short appeal. If such additions are not received, the court has the right to return the short version to the author without consideration.

To the Judicial Collegium of the Samara Regional Court of the Legal Representative of a convicted minor S.N. Makarov, born in 2002.

ADDITIONAL APPEAL

On 05/05/2021, I, Elena Viktorovna Makarova, the legal representative of the convicted S.N. Makarov, filed a short complaint of disagreement with the verdict of the Zavodsky District Court of Samara dated 04/25/2021.

I received a copy of the verdict on 05/07/2021. As an addition, I draw the attention of the judicial panel to the following violations of the law committed by the court of first instance.

When assigning a punishment to the minor Makarov, the court did not take into account mitigating circumstances - his minority and full compensation for the harm to the victim. The case contains a receipt from the victim R.P. Nemov. that the cost of the stolen TV was reimbursed to him, my son apologized to him and Nemov does not insist on strict punishment.

Thus, the verdict of the Zavodsky District Court of Samara dated April 25, 2021, which sentenced my son S.N. Makarov, born in 2002, to imprisonment in a correctional colony, is unfair and does not correspond to the personality of the convicted person.

Based on the above, guided by Art. Art. 398.1, 389.18 Code of Criminal Procedure of the Russian Federation

ASK:

The verdict of the Zavodsky District Court of Samara dated April 25, 2021 regarding Sergei Nikolaevich Makarov, born in 2002, is amended.

Apply the rules of Art. 73 of the Criminal Code of the Russian Federation, assign a probationary period to the convicted person.

I ask you to consider the complaint in my presence.

Makarova E.V., legal representative of the minor Makarova S.N.

08.05.2021

An additional appeal may be filed no less than 5 days before the scheduled hearing date. Otherwise, the addition remains without the attention of the judicial panel. In addition, the addition cannot include grounds that were not written about in the short complaint. Therefore, in the initial text you need to indicate all the reasons for cancellation at once (we wrote about them above) so as not to face the return of the complaint.

CC: An appeal has no right to worsen the situation of the defendant without the initiative of the prosecution

The Constitutional Court issued Ruling No. 3271-O, which refused to consider at the hearing the request of the Voronezh Regional Court to verify the constitutionality of Part 1 of Art. 389.24 of the Code of Criminal Procedure of the Russian Federation, which provides that a conviction, ruling and decision of the first instance can be changed by the court of appeal in the direction of worsening the situation of the convicted person only at the initiative of the prosecution.

The appeal on its own initiative worsened the situation of the defendant

In October 2021, the Semiluksky District Court of the Voronezh Region convicted citizen Kh. under paragraph “b” of Part 2 of Art. 165 of the Criminal Code of the Russian Federation. The man was sentenced to two years of suspended imprisonment with a probationary period of one and a half years and on the basis of paragraph 3 of Part 1 of Art. 27 of the Code of Criminal Procedure of the Russian Federation was exempted from punishment due to the amnesty act.

The defense attorney appealed the verdict. Having established that the victim suffered real material damage, the judge of the Voronezh Regional Court came to the conclusion that there were grounds for classifying the crime as a more serious crime. On this basis, he overturned the verdict and returned the case to the prosecutor to remove obstacles to its consideration by the court.

Not only the lawyer, but also the deputy prosecutor of the Voronezh region appealed to the cassation court. The latter insisted that the appeal, contrary to paragraphs 16 and 17 of the Resolution of the Plenum of the Supreme Court of November 27, 2012 No. 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the appellate court,” made a decision that worsened the situation of the convicted person , although neither the prosecutor nor the victim asked for this.

The Presidium of the Voronezh Regional Court, during the consideration of the complaint and presentation, doubted the constitutionality of Part 1 of Art. 389.24 of the Code of Criminal Procedure as preventing the appellate court, which has seen grounds for changing the classification of the offense in a direction unfavorable for the convicted person, to overturn the verdict and return the case to the prosecutor in the absence of a presentation from the prosecutor or a complaint from the victim. In June 2021, the cassation suspended the proceedings and sent a request to the Constitutional Court of the Russian Federation.

The Constitutional Court protected the rights of the defendants

The Voronezh Regional Court asked to recognize Part 1 of Art. 389.24 of the Code of Criminal Procedure is inconsistent with the Constitution to the extent that it does not allow the appellate court to make a decision on its own initiative to return the criminal case to the prosecutor due to the presence of grounds for bringing a more serious charge.

The Constitutional Court recalled that the criminal procedural norms regulating the return of a criminal case to the prosecutor from the stage of consideration in the court of first instance, including the issue of turning the charge for the worse, have already been the subject of an assessment by the Constitutional Court.

Thus, the Resolution No. 16-P of July 2, 2013, in particular, states that the trial is carried out only on the charge brought, and changing the charge in the trial in the direction of worsening is not allowed. If the court discovers a procedural violation that prevents the consideration of the case, including due to the discrepancy between the classification of the crime and the circumstances specified in the indictment, then the restriction of the court’s right to choose the norm of criminal law to be applied or to return the case to the prosecutor makes the upcoming court decision dependent on the decision , the validity of which is precisely the subject of judicial review and which is accepted by the criminal prosecution authorities. The Court then concluded that such a restriction constituted an unlawful interference with the exercise of judicial power. The Constitutional Court recalled that it was in pursuance of this act in Art. 237 of the Code of Criminal Procedure, paragraph 6 appeared, according to which the court of first instance has the right to return the case to the prosecutor at the request of a party or on its own initiative if circumstances are identified that indicate the presence of grounds for classifying the actions of the accused as a more serious crime.

At the same time, criminal procedural legislation presupposes the inadmissibility of changing the charge in a direction that worsens the situation of the convicted person during appeal proceedings except by canceling the verdict by the appellate authority and sending the case to the prosecutor, the Constitutional Court recalled. This rule also applies to cases where factual circumstances indicate the presence of grounds for classifying the offense as a more serious crime.

According to the Court, the limits of the authority of the appellate authority to make decisions entailing the possibility of changing the charge in a direction that worsens the situation of the convicted person are predetermined by the fact that the appeal hearing of the case is possible only on the initiative of one of the parties. In a systematic connection with this order is the rule about the inadmissibility of a turn for the worse. The definition emphasizes that such a prohibition in relation to this stage means the impossibility of changing or canceling a sentence directly by a decision of the appellate instance on grounds unfavorable for the defendant based on his complaint or a complaint filed in his interests.

The said regulation, reflected in the contested norm, according to the Constitutional Court, is due to the need to ensure the rights to judicial protection, to appeal to the court against decisions of state bodies and to review a sentence by a higher court with adequate guarantees of their unhindered implementation in conditions of real freedom of appeal. “This freedom, among other things, presupposes that the defense has no reason to fear that the appeal procedure initiated by it will in one way or another lead to the adoption of a judicial act that worsens the position of the defendant in comparison with the act being appealed,” the Court emphasized.

The Constitutional Court believes that the presence of such fears would significantly complicate the defense’s decision to appeal a verdict that has not entered into legal force, causing a kind of “chilling effect” in the desire to exercise this right or even forcing it to refuse to exercise it.

The court proceeded from the fact that the risk of a possible change in the defendant’s position in an unfavorable direction for him after a review of the verdict carried out on his own complaint could become a factor preventing him from exercising his constitutional right to appeal the verdict and have his case considered by at least two courts. The definition emphasizes that the prohibition on a turn for the worse on the initiative of the appellate instance must also be observed in the event that the appellate instance cancels the verdict with the return of the criminal case to the prosecutor in connection with the establishment of grounds for classifying the act as a more serious crime, despite the fact that in this case such a prohibition not directly stated in the Code of Criminal Procedure.

The court recalled that it had previously said in its acts that the appellate authority has the right to overturn the verdict and return the criminal case to the prosecutor if there is a prosecutor’s submission or a victim’s complaint against the verdict, which initiated an appeal review of the case and which raised the question of the need to take into account an aggravating factor. punishment circumstances or about toughening the punishment of the convicted person, and therefore about worsening his situation. A similar position was taken by the Plenum of the Supreme Court in paragraph 16 of Resolution No. 26 of November 27, 2012. “Part one of Article 389.24 of the Code of Criminal Procedure cannot be regarded as allowing the appellate court to make, on its own initiative, a decision to cancel a decision not contested by the prosecutor, the victim or other participants in the proceedings , representing the prosecution, the verdict of the court of first instance and the return of the criminal case to the prosecutor on the grounds of the need to bring a more serious charge against the defendant,” the Court concluded.

An opposite interpretation would mean a significant restriction of the procedural guarantees of the right to judicial protection and appeal to the court against decisions of any government bodies, including judicial ones, as well as the right of everyone convicted of a crime to review the sentence by a higher court in the manner established by federal law, the Constitutional Court indicated.

Experts supported the Court's approach

Advisor to the law firm ZKS, Head of the Department of Criminal Law, Faculty of Law, National Research University Higher School of Economics, Professor, Doctor of Law. Gennady Esakov noted that in this ruling of the Constitutional Court, two opposing forces of the criminal process clashed quite harshly. “On the one hand, the independence of the court, which led, through the development of constitutional and legal practice, to vesting the court of first instance with powers to worsen the position of the accused on, let’s say, the initiative of the court itself. As is known, in the original version of the Code of Criminal Procedure the court of first instance did not have such powers, and only through the practice of the Constitutional Court did clause 6 of Part 1 of Art. appear in the Code of Criminal Procedure of the Russian Federation. 237 of the Code of Criminal Procedure of the Russian Federation,” the expert explained.

According to him, a logical development of this approach would be to allow the appellate court to use paragraph 6 of Part 1 of Art. 237 of the Code of Criminal Procedure of the Russian Federation on one’s own initiative. But at the same time, there is a general prohibition on worsening the defendant’s position on appeal without presenting a corresponding demand to the prosecution, added Gennady Esakov.

“Paradoxically, the Constitutional Court could choose either of the two approaches, since both can be justified with equal conviction by the constitutional text. The court chose the second one. Probably, he can be supported in this, which, however, does not exclude the possibility of changing the legislation in this part with the subsequent endowment of the appellate court with the right to use clause 6 of Part 1 of Art. 237 of the Code of Criminal Procedure of the Russian Federation on his own initiative,” he believes.

Moscow AP lawyer Valery Sarkisov, in turn, told AG that the definition does not have any serious significance for law enforcement practice, and the very fact of sending such a request indicates that the courts, unfortunately, do not always understand the meaning of criminal law. procedural regulation. “The Constitutional Court quite rightly indicated that the failure to grant the appellate court the right to return the criminal case to the prosecutor if there are grounds for qualifying the actions of the convicted person under an article providing for criminal liability for committing a more serious crime is explained by the fact that otherwise fears of worsening the situation of the convicted person would have been created due to the “chilling effect” of an obstacle for the defense to make a decision to appeal the verdict in the appellate instance,” said Valery Sarkisov.

Objections

By analogy with civil proceedings, where the opposite party almost always responds to a claim in writing, each participant in a criminal proceeding has the right to file objections to an appeal.

Essentially, this is a disagreement with the appeal. Criminal procedural legislation does not provide for strict rules for filing objections. The right to object is enshrined in Art. 389.7 Code of Criminal Procedure of the Russian Federation. Objections can be filed at any time before the case is considered on appeal. If, for example, you forgot to indicate something in the first objections, you can submit additional ones, and their number is not specified by law.

The text itself is compiled in free form. The main thing is to make it clear what you are writing about and what case and verdict your opinion relates to. Sample:

To the judicial panel of the Arkhangelsk Regional Court in the case of Morozov N.G.

OBJECTIONS TO THE APPEAL COMPLAINT of the convicted Morozov N.G. in accordance with Art. 389.7

By the verdict of the Zavodsky District Court of Arkhangelsk dated April 12, 2021 Morozov N.G. convicted under Part 2 of Art. 162 of the Criminal Code of the Russian Federation to 5 years of imprisonment in a maximum security correctional colony.

In his appeal, the convict writes that he admitted guilt and contributed to solving the crime, and apologized to me as the victim. In addition, Morozov wrote about his state of health and asks to reduce the sentence to 2 years in prison.

With the arguments of the convicted Morozov N.G. I disagree. Firstly, no apologies to N.G. Morozov. didn't bring it to me. Moreover, during the trial, I received threatening calls on my cell phone in order to change my testimony. I believe that the initiator of these anonymous calls was N.G. Morozov.

Secondly, I was not compensated for material damage: the convict never told the investigation where the property stolen from me was located, therefore there was no assistance in the investigation from N.G. Morozov. did not have.

Thirdly, Morozov N.G. is a dangerous criminal who has been repeatedly convicted of acquisitive crimes, including robbery. During the robbery he behaved aggressively, I really feared for my life. I believe that persons like Morozov should be given a long term of imprisonment.

I completely agree with the verdict and believe that there are no grounds for reducing Morozov’s sentence.

Based on the above, guided by Article 389.7 of the Code of Criminal Procedure of the Russian Federation,

ASK:

The verdict of the Zavodsky District Court of Arkhangelsk dated April 12, 2021 is left unchanged, the appeal of the convicted Morozov N.G. - without satisfaction.

Victim Morozova P.R., 04/25/2021.

To formulate objections, you need to know what the other party to the proceedings is writing about in their complaint. The court must give you a copy of it before sending the case to the judicial panel of a higher authority. If for some reason a copy of the complaint was not served, you must contact the assistant or secretary of the judge who passed the sentence.

How to appeal a court verdict

lawyer Savich Olga Dmitrievna, March 19, 2016 Phone: +375296486816

Minsk City Bar Association, Specialized legal consultation of Minsk “Subject of Law”

A situation where the court’s verdict is not satisfactory for one reason or another (severity of punishment, unfounded conviction, incorrect classification of actions, etc.), unfortunately, occurs quite often.

Who can appeal the verdict, within what time period, what is necessary for this, are there any samples of complaints, what needs to be done, that the verdict was certainly overturned - we will talk about this in this article.

There are 2 ways to appeal a court verdict:

- when the court verdict has not yet entered into legal force (appeal proceedings);

- when the court verdict has already entered into force (supervisory proceedings).

We will briefly talk about each of them, but before that we will give general conditions that are relevant both when appealing a court verdict in the appellate procedure, and when appealing a court verdict in the supervisory procedure:

• the right to appeal a court verdict belongs only to the person found guilty (he is called the accused), his defense attorney (lawyer) and legal representatives (the latter may be, for example, a minor accused). Relatives of the accused cannot be the subjects of the appeal. Along with these persons, the verdict can also be appealed by other participants in the process (the victim, his representative, the prosecutor; the civil plaintiff, the civil defendant and their representatives).

• the complaint must clearly comply with the requirements established by law (that is, it cannot be written in any form); otherwise, it is returned to the person who submitted it for re-composition;

•The law establishes an exhaustive list of grounds for canceling or changing a court verdict (Articles 390-393 of the Code of Criminal Procedure of the Republic of Belarus).

Appealing a court verdict that has not entered into legal force (appeal)

The term “appeal” is completely new (it was introduced by the Law of the Republic of Belarus dated January 5, 2016; before that, the institution of “cassation appeal” was in effect, and the complaint filed was called a “cassation appeal”). By and large, there are few differences in content between the cassation and appeal complaints; Basically, the powers of the higher court itself have changed when considering a case based on a complaint.

The deadline for filing a complaint is 10 days from the date of the verdict (for the accused in custody - the same period, but from the moment the verdict is delivered). An additional complaint can be filed later, but it must be received by the court that will consider it no later than 3 days before its consideration.

The complaint is not filed immediately with a higher court, but with the court that issued the verdict. It is this court that will accept the complaint, and subsequently send all the materials of the case to a higher court for consideration. There is no state fee to pay for filing an appeal; It is not necessary to attach any materials to the complaint. Filing a complaint suspends the entry into force of the sentence. The date for hearing the case in a higher court is set by the court that decided the verdict (as a rule, two months or even more may pass from the moment the complaint is filed until the moment it is considered). The person who filed the complaint has the right to withdraw the complaint.

As a result of considering the appeal, the appellate authority may make one of the following decisions:

1) leaves the sentence unchanged, and the complaint or protest is not satisfied;

2) cancels the verdict and sends the case for a new trial to the court of first instance;

3) cancels the sentence and terminates the criminal proceedings;

4) changes the sentence.

From the moment the decision of the appellate court is announced (when making decisions not related to sending the case for a new trial, the verdict comes into force).

However, if you disagree with the decision of the appellate instance, a procedure is provided for further appealing the court verdict (filing a supervisory appeal). In fact, there is no deadline for filing such a complaint (you can file a complaint a year or even later after the verdict is passed). Separately, you can also appeal the appeal determination itself.

Appealing a court verdict that has entered into legal force (supervisory proceedings)

The procedure for appealing a court verdict through supervisory review is much more complicated.

Schematically, the structure and appeal mechanism are as follows.

Unlike an appeal, which automatically entailed a review of the sentence by a higher court, a supervisory complaint does not automatically entail a review of the case. In addition, if the convicted person himself, and not his defense lawyer, files a supervisory complaint, a state fee must be paid for filing the complaint. In addition, a properly certified copy of the verdict and ruling of the appellate authority must be attached to the supervisory appeal.

The complaint is addressed to a strictly defined circle of officials.

However, these officials do not have the right to independently cancel any court verdict. They only have the right, on their own behalf, to bring a “supervisory protest”, in which they can indicate their opinion that the court’s verdict is illegal, unfounded and raise the issue of overturning the verdict before the supervisory authority, which has the right to agree or disagree with the protest brought . It is the supervisory authority that will make the final decision in the event of a protest being filed in the case by way of supervision.

Since at the time of filing a supervisory appeal, the criminal case itself is stored in the archives of the court that passed the sentence; and a copy of the latter is only attached to the complaint, then two requests are formulated in the supervisory complaint to the officials authorized to lodge a protest in the manner of supervision:

- request a criminal case from the court that passed the sentence for its study;

- bring a protest in order of supervision with a view to canceling the court verdict.

Since each criminal case is individual in its content, it is obvious that there simply cannot be universal models for drawing up and preparing complaints. Of course, certain samples are published for review (on my website there is also an example of a supervisory complaint in a criminal case https://vashadvokat.by/index.php/obraztsy-dokumentov), ​​but, in their content, they are mainly intended to show the general structure of the complaint. The “filling” of the complaint is precisely the essence of a specific criminal case and an analysis of a specific court verdict in the case. Only a thorough study of the latter, in conjunction with a thorough study of all the materials of the criminal case, can guarantee the preparation of a motivated and competent complaint, and, as a result, argue the position on the illegality and unfoundedness of the court verdict before a higher court.

You can read the full text of the article, as well as other useful materials, on my personal website https://vashadvokat.by/

in the “Useful information” section https://vashadvokat.by/index.php/info
Blog Savich Olga Dmitrievna

Procedure for considering an appeal

The basic rules for considering a case in the second instance are as follows:

1. If an appeal is ordered by a district court (for example, when a decision of a magistrate is appealed), then the hearing of the second instance begins no later than 15 days from the moment the criminal case is received by the office. If an appeal is scheduled in a regional or regional court, then no later than 30 days (in the Supreme Court - 45 days). During this period, you can file a withdrawal of the appeal if the opinion of its author has changed and for some reason he has changed his mind about revising the verdict.
2. How long does the appeal take? It is expected that the decision of the second instance will be made on the appointed day. At the same time, in some cases, if additional examination of the case materials is necessary, if there is a valid reason for the non-appearance of the participant who insisted on his presence, the case may be postponed to another date, within a two-week period. The period for consideration of a complaint against a preventive measure is 3 days from the day the material is received by the regional court office.
3. When scheduling a hearing, the Court of Appeal must notify all participants at least 7 days before the date of the hearing. Convicts held in a pre-trial detention center can participate in the hearing via conference call - that is, they are not actually taken to the courtroom.
4. The public prosecutor, defense attorney, and legal representative of the convicted minor always participate in the court hearing. The convicted person and the victim participate if there is a request for their presence. In some cases, the court may recognize the participation of the convicted person as mandatory (most often this happens) regardless of whether such a request has been received.
5. At the beginning of the court hearing, the secretary announces who has appeared. The judge reports what case is being considered and whose complaint was received and who raised objections.
6. In an appeal, motions and statements can be made. For example, about the study of certain evidence, the protocol of the court session of the initial trial, etc.
7. The court hears the opinions of the parties to the case, which usually coincide with the content of their complaints or objections. You can withdraw your complaint at any time before the judge (or the panel of judges, if it is a regional court) is removed to the deliberation room. This can be done orally - then the statement will be recorded in the protocol. In case of refusal, the proceedings are terminated unless there are other complaints.
8. After examining the case materials and other evidence, the court proposes to move on to the debate, that is, to the final statements regarding the decision of the trial court. The first to speak is the one who appealed the verdict. At the end, the convicted person is given the last word.
9. The court retires to the deliberation room, returns after some time (from several minutes to several hours), announces a decision by which:
   the sentence may be fully or partially reversed, the case may be sent for a new trial (in some cases, the case may be sent to the prosecutor to remove obstacles to the trial);
10. the sentence was overturned and a new sentence was ordered;
11. the verdict was upheld.

On the day of proclamation, the appeal decision comes into force. From now on, the verdict can be appealed again, but in cassation.

Errors in appeal

Lawyers typically make three basic mistakes in appellate court.

They do not check the unconditional grounds for canceling a decision

This is a strong argument for overturning the decision, but it is often overlooked. Lawyers are too keen on justifying their position and describing the circumstances, but forget to check whether there are unconditional procedural violations in the case.

If the appellant finds at least one such violation, the court will cancel the decision and reconsider the case according to the rules of the first instance, that is, it will reconsider the dispute on the merits. During such a review, it will be possible to submit petitions and statements, present evidence, if for some reason they did not do this in the first instance.

Most often in complaints, appellants refer to two violations - the court considered the case without a person participating in the case, who was not notified of the time and place of the hearing, or the court made a decision on the rights and obligations of persons who were not involved in the case.

If the judge in the case was illegally replaced or territorial jurisdiction was violated, you can refer to the consideration of the case in an illegal composition of the court.

Check if there is a court record in the case - higher courts often overturn decisions due to its absence. If there is no audio recording of the court hearing in the case, the courts can also overturn the decision on the same grounds.

The appeal will overturn the decision if there is no audio recording, but it contained information that served as the basis for the adoption of a judicial act. Therefore, indicate in your complaint what important information was on the audio recording. For example, interrogation of witnesses, experts, examination of evidence.

Lawyers are bad at building a defense

The lawyer cites in the appeal an endless list of court errors from serious to insignificant.

For example, when he points out that the judge incorrectly applied the rules and was not wearing a robe, the second argument clearly negates the seriousness of the first. The appellants usually formulate the violations themselves in general terms - without reference to specific evidence and case materials. Judges rarely take such complaints positively.

Recommendation - write no more than four to five clearly stated reasons for cancellation. In each argument, it is advisable to describe three points: the lower court's error, the incorrect conclusion it reached because of that error, and the conclusion the court should have reached.

Lawyers are passive during appeals

When the court has already considered the case on its merits, lawyers think that their task in the appeal is only to present arguments for and against the court’s decision. This is not entirely true. An appeal is the last opportunity to close evidentiary gaps in the positions of the parties in the case. Take advantage of this.

Try to present evidence essential to the case in the appeal, file motions. The appellate authority may accept additional evidence from a party and consider requests for new evidence, but only in two cases. The first case is if the party justifies that it could not present them to the first instance for valid reasons. The second is if the court of first instance rejected them. That is, in the appeal it is necessary to once again state all the petitions and evidence that were rejected by the first instance.

If you did not present evidence at the first instance, but it is essential to the case, still present it on appeal. If you cannot give good reasons or they are clearly “extracted,” the likelihood that the court will accept the evidence or satisfy the petition still remains: the court would rather accept new evidence than not accept it at the risk of canceling the judicial act.

For example, a company filed a claim against the company for unjust enrichment. Since the defendant did not provide evidence that he withheld the transferred money justifiably, the court granted the claim. To the appellate court, the defendant presented contracts and service acceptance certificates, which confirmed the existence of obligations between the plaintiff and the defendant and the basis for payments. The appeal added documents to the case and dismissed the claim. The higher courts agreed with the appellate court.

Supervisory complaints submitted to the Supreme Court, features of their filing and consideration.

In order for a supervisory appeal to the Supreme Court to be accepted, many nuances must be observed. The lawyer and his assistants are aware of all aspects of this work. It is called a supervisory complaint to the Presidium of the Supreme Court because decisions that had previously entered into force are being questioned. Its filing can be initiated by anyone who believes that their rights have been violated. Many apply after serving their sentence. It helps protect rights even when previously unknown evidence of the defendant’s innocence has appeared. He can draw it up for the purpose of reviewing the case and so that he is completely acquitted. Depending on what case it concerns, criminal or civil, it is drawn up based on different standards.

Filing a supervisory appeal to the Supreme Court is a very difficult task; many nuances, norms, and requirements must be taken into account. Along with it, it is necessary to provide a whole package of documents, this is the verdict, and a copy of the decision of the supervisory authorities, other procedural papers confirming the applicant’s arguments.

If someone does not agree with the leniency of the previously imposed punishment, it is necessary to apply the rule on reclassification of the case, impute another article implying a more severe punishment; if there are grounds that there will be a deterioration in the rights or position of the convicted person, then the case will be reconsidered only in cases strictly defined by law cases. No more than a year must pass from the date of entry into legal force of decisions made by lower authorities, otherwise the complaint will not be accepted. When compiling it, you need to prove that serious violations of the Code of Criminal Procedure were committed, and that they influenced previously made decisions.

Some of these violations are understood, according to the Code of Criminal Procedure, as decisions made by an illegal court or jury. If those participating in the process could not exercise their rights, or they were limited in this, and this affected the result, then it can be safely drawn up. The Chairman of the Supreme Court may overturn a previously made decision by the supervisory authority and refer the case for review. The same person will not be able to file a complaint a second time on the same legal grounds.

If a person is in a place of deprivation of liberty, then it must be sent only through the administration of the colony, which is better to entrust to an experienced specialist, a lawyer. When compiling it, compelling reasons must be indicated that will facilitate its consideration, for example, the following:

• violated articles of the Code of Criminal Procedure;
• unfairness of the sentence;
• articles are incorrectly applied;
• The judge's findings do not correspond to the facts.

Today, the deadline for filing a complaint with the Supreme Court of the Russian Federation in some cases is no more than a year. It must be considered either within two months, if the case was not requested, or within three months, if it was requested. In some cases, this time may be extended, but not by more than sixty days. Its employees have the right to receive and consider complaints in the Supreme Court of the Russian Federation only if the lawyer filing it attaches a warrant indicating his status.

The procedure for filing complaints with the country's highest court changes periodically. It is always necessary to monitor the introduction of amendments to laws, this is important so that it is correctly drafted and adopted. Many people do not know that the court’s address has changed and send it to one that is no longer active. There have also been changes in the payment details for state fees, as reported by the Supreme Court of the Russian Federation, but many do not take this into account. Frequent mistakes when drawing up a complaint are related to the procedure for filing it. An experienced lawyer always remains aware of all the changes and nuances of this complex work.

He will not file a complaint by forgetting to attach his order or without having a correctly drawn up power of attorney. He knows which copies need to be certified by a notary, and which need to be confirmed with a special mastic seal. Without properly certified and prepared documents, no one will accept the complaint for consideration.

It is important that the lawyer who files it represents his client throughout the entire period of consideration of the case, from the very beginning of its opening. Many try to skip one or two instances and appeal to the Supreme Court of the Russian Federation immediately, without considering issues in lower bodies, but they do not pay any attention to complaints filed in this way.

If the time allocated by law for filing a complaint with the Supreme Court of the Russian Federation has passed, then you need to submit documents on the procedure for restoring the deadline, which must be sent to a certain government body, indicating the reason why it was missed. All actions have their own deadlines and standards.