Preserve the open-endedness of continuous cassation in criminal cases

Preserve the open-endedness of continuous cassation in criminal cases

Nikolay Zharov

Member of the Council of the FPA of the Russian Federation, President of the Administration of the Kostroma Region

August 3, 2021

The judicial system must “step on the throat of its own song”

The draft law developed by the Supreme Court of the Russian Federation on limiting the period for complete cassation in criminal cases was adopted by the State Duma in the first reading.

The reason that prompted the Supreme Court of the Russian Federation to “turn into reverse” lies on the surface: the new cassation courts of general jurisdiction are overwhelmed with cases.

The convicts now have another hope for a fair trial, and they want this hope to be justified. But the judges don’t have time, they don’t have time. Moreover, some of them, newly appointed judges of the new cassation courts, have already suddenly retired into honorable retirement, as evidenced by the press releases of the Supreme Court of Justice.

If we strive to remain objective, then it is hardly possible to see in itself the establishment of a period for a complete cassation in criminal cases as a violation of the right to access to justice.

For a long time, there was no continuous cassation in the criminal procedural law of Russia. And nothing. There was access to justice, the cassation courts worked (how they worked is another question).

The Constitutional Court of the Russian Federation has repeatedly indicated that the constitutional right to judicial protection does not imply the ability for a citizen to choose at his own discretion the method and procedure of judicial challenge - they are determined, based on the Constitution of the Russian Federation, by federal laws.

The legislator has now decided in the first reading that the open-endedness of the right to a complete cassation should be eliminated by setting a two-month period for filing a corresponding complaint.

The argument that two months is unlikely to be enough to prepare a good cassation appeal, in my opinion, is frivolous. The law sets aside 10 days for filing an appeal, although the subject of an appeal is broader than a cassation appeal: in addition to questions of law, appellate courts also decide questions of fact.

In addition, for a complete cassation, the institution of restoring the missed deadline for filing a complaint is retained. And in addition to this, the right to selective cassation remains unlimited.

In short, in the very legal structure proposed by the Supreme Court of the Russian Federation for the exercise of the right to cassation appeal of court decisions in criminal cases, from my point of view, one can hardly see a restriction of the very right to access to justice.

Nevertheless, I categorically do not support this bill. And that's why.

The Supreme Court of the Russian Federation in many of its initiatives proceeds from the fact that in general everything is fine with criminal justice in our country. Not without problems, not great, of course, but okay. There are individual shortcomings that are not systemic in nature, which the judicial community is actively working on. As far as I understand, the author of the text of the explanatory note to the bill under discussion proceeds from the same premise.

But we, in the legal profession, know that in fact the state of criminal proceedings in our country is, to put it mildly, abysmal. And the larger the subject of the Federation, the worse its criminal courts. About our capital, the hero city Moscow, is a completely separate conversation.

Therefore, the premise on which the Supreme Court of the Russian Federation bases its proposals is in fact false.

The creation of extraterritorial cassation courts of general jurisdiction, where cases are considered mainly in the conditions of continuous cassation, was due precisely to the fact that the previous cassation instances, which accepted cases for their consideration only at the discretion of the judge, did not guarantee any effective correction of judicial errors. Using the example of the cassation instance of the Kostroma Regional Court, I can say that the transfer to this instance of complaints against judicial decisions of lower courts, if the cases “passed” through the judicial panels of the regional court on appeal, was universally refused (I specifically checked this statement several years ago using the system "GAS-Justice"). So the lawyers already knew that the first cassation was a pure formality, the result was known in advance and was needed only to try to reach the second cassation - the judicial panel of the Supreme Court of the Russian Federation, which is practically equivalent to a miracle of miracles.

That is why, in the current conditions, the argument about preserving unlimited selective cassation cannot be considered as an argument in favor of establishing a deadline for continuous cassation, although this argument in itself, so to speak, is abstract and logical, and does not seem to me to be incorrect.

It is false in today's conditions, since the current state of criminal proceedings, unfortunately, does not give reason to hope that in order to change or overturn by cassation procedure, if not all, but at least a significant proportion of unjust sentences, two months will be enough to file a cassation appeal in the form of a complete cassation.

Legality is restored, and faith in justice returns not instantly, but only gradually. A convicted person cannot be “disqualified” just because he takes a long time to decide whether to complain or not to complain, because in the conditions of modern criminal proceedings, these long deliberations are most often due to the conviction of the lack of justice in our criminal courts.

Therefore, now it is imperative that all “Unbelieving Thomases” be given an indefinite (and not just two months) opportunity to be convinced that justice is not a chimera, that a judicial error can be corrected, that a fair trial exists.

Until Russian criminal proceedings get rid of the accusatory bias (the presence of which, as far as I understand, the Supreme Court of the Russian Federation, contrary to the established public consensus on this issue, does not actively recognize), the opportunities for convicted persons and their defense attorneys to challenge sentences that have entered into legal force not only should not be narrowed, but should be extended as far as possible, even if this increases the burden on the judicial system.

Let us remember the end of the 1990s, the “lawlessness” of tax authorities and tax police authorities in the interpretation and application of tax law, uncodified until 1997. Arrears, crazy fines in the amount of 100% of hidden profits and other sanctions were collected administratively. You could, of course, challenge them in court, but only if you managed to write a statement before everything was written off from your account.

And since 1998, the Tax Code of the Russian Federation has come into force, which provides exclusively for the judicial procedure for the forced collection of additionally accrued arrears, penalties and fines. The motivation for such a legislative decision was simple - deprivation of property is possible only by court.

And for more than 10 years, the era of real, effective judicial control over the activities of tax authorities began.

Of course, arbitration courts were overwhelmed with tax cases. Even a mere 3 kopecks of arrears or 5 kopecks of a fine, which the taxpayer did not argue with but did not pay himself, could be recovered exclusively by the court. More than half of the workload of the judges of the administrative boards of arbitration courts was tax disputes (for those interested, you can check the judicial statistics of those years). There were no simplified procedures or court orders in the arbitration process at that time, so any application from the tax authority, even about the recovery of 3 kopecks, was considered according to all the rules of legal proceedings. In addition, without any pre-trial procedure, the courts also considered applications from taxpayers themselves to challenge non-normative acts of tax authorities. More than half of such applications were granted.

What was the result of continuous and many years of judicial control over the work of the state tax authorities system? From my point of view, he turned out to be great. The level of legality in the activities of tax authorities and the professionalism of their employees has increased many times over. The Federal Tax Service has created its own pre-trial audit service that considers controversial situations. At the same time, taxpayers received stable and predictable judicial practice in tax disputes and began to better understand what is possible and what is not.

In the end, after just over 10 years, the legislator abandoned the judicial procedure for collecting tax arrears, penalties and fines from organizations and individual entrepreneurs, leaving it still mandatory only for collections from citizens. At the same time, the previous reasoning that deprivation of property is possible only by court was not completely rejected. The legislator simply began to proceed from the fact that if a taxpayer believes that his property is being confiscated to fulfill his tax obligation illegally, then the court doors are open for him. The organizational and procedural mechanism for protecting the rights of the taxpayer has reached such a level that constant and complete judicial control over their compliance is no longer required.

All this happened not somewhere abroad, but here in the Russian Federation.

We ourselves have excellent experience in organizing effective judicial protection of the rights of citizens and organizations in their relations with the state.

This protection was provided by new courts that did not exist during the Soviet era - arbitration courts, where, under the leadership of the late Veniamin Fedorovich Yakovlev, highly professional personnel were selected who were not afraid to feel like judges.

Today, convicts and their defenders have great hopes for the new cassation courts of general jurisdiction.

It was the system of their continuous consideration of cassation appeals that “invigorated” the judges of the appellate instances, who two years ago could feel like kings and gods, because they knew that the chance was not for the cancellation of even the judicial act they had adopted, but for the very consideration of the complaint of the convicted person against this act , was negligible.

Judges’ awareness of the fact that the legality of their court decision will definitely be checked if the convicted person wants it, and it is still unknown what they will decide, forces them to still consider the case, and not just habitually state that everything is legal and reasonable.

I am convinced that the criminal justice system today is not ready to create restrictions, albeit reasonable in a different situation, for a face-to-face meeting between a judge and a convicted person and his defense attorney in the courtroom.

Moreover, such restrictions will contradict the goals of introducing a complete cassation review of judicial acts of lower authorities that have entered into legal force, by a cassation court that is organizationally and territorially uninvolved in these authorities.

In this case, the judicial system must “step on the throat of its own song” and sacrifice the interests of the rational organization of its own activities to the interest of society in ensuring effective judicial protection of the rights and freedoms of citizens and correction of judicial errors, which, unfortunately, are still very common in criminal proceedings. a lot of.

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Where to go after the cassation court

After receiving the ruling of the cassation court, if it is lost, you can file a new complaint with the Supreme Court, which is the second instance. Please note that the cassation to a higher authority should not copy the text of the first cassation.

An appeal to the Supreme Court with a new package of documents is sent to:

• to the judicial panel for civil cases (if this is a civil dispute);
• to the judicial panel for economic cases (these are arbitration disputes and cases of infringement of intellectual rights).

You can choose any convenient method of filing a complaint against the decision of the cassation authority:

• in person to the office (take into account the opening hours of the office);
• by letter by Russian Post;
• through the BC website vsrf.ru (register and create a personal account);
• portal "GosMoy Arbitr" (for arbitration disputes).

The first two are traditional methods of contacting the Armed Forces; they are the most labor-intensive, because you will need to prepare a large volume of paper originals and copies of decisions, rulings and decisions of previous authorities and other documents. Deliver in person to the office or post office. In our experience, the most convenient way is to file a complaint electronically (State Services, My Arbitr, the Supreme Court website). You fill out the form, attach scanned documents and send everything to the Supreme Court for review.

Legal assistance in appealing to the Supreme Court

Consultation in the office and by phone

+7(495) 728-99-14

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Time limits for appealing a decision of the cassation court

The appeal period begins after the announcement of the ruling by the cassation court in your region.

The deadlines for appeal are fixed by law and are:

• 3 months for civil disputes;
• 2 months for arbitration disputes and intellectual property rights violations.

What to do if the submission time is missed? If you do not meet the appeal deadline, it can be reinstated. Valid situations include: illness; lack of notice; or violation of the judge’s obligation to publish a cassation ruling.

To return the missed deadline to the Supreme Court, it is necessary to submit a corresponding petition along with a complaint and a package of documents. But here you need to observe a certain period of time, equal to 6 months from the date of announcement of the decision on the first cassation.

If you did not have time to file a complaint within two or three months, and also were unable to restore the deadline within 6 months from the date of adoption of the appealed cassation act, then the case is considered closed not in your favor.

Design and content

The requirements for filing a complaint are set out in Art. 401.4 of the Code of Criminal Procedure of the Russian Federation, it must be in writing, indicating the following information:

• in the header you must write the name of the court to which the document is sent;
• Full name, procedural position, place of residence of the person filing the complaint;
• information about the progress of the case, i.e. a brief summary of what authorities considered it, when and what decisions were made;
• the decision that the applicant wants to appeal in cassation;
• a list of violations of the Criminal Code and the Code of Criminal Procedure committed by the courts, which influenced the consideration of the case and resulted in the issuance of an unauthorized decision;
• the essence of the request or submission (for example, reversal of the sentence and referral of the case for a new trial in a different court).

If a person has not previously taken part in the process, in the complaint he must indicate which rights were violated by the decision that has entered into force.
The document must be left without consideration if it is not signed by an authorized person, for example, a cassator.

Important. If the complaint is signed by a legal representative, it is necessary to attach a copy of the power of attorney or attorney's order, as well as copies of all previously made decisions, duly certified.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 350-14-90

What is needed to appeal a cassation ruling?

The Supreme Court has regulated a list of what needs to be prepared for filing an appeal. First, you must write a correct cassation appeal that meets the requirements of the Codes of Civil Procedure and Arbitration Procedure and the rules of legal proceedings. Next, decide on the options for appealing to the judicial panel of the Supreme Court of the Russian Federation: in person, by mail, the Supreme Court website, the State Services portal or the My Arbitr system.

Having chosen the method of appealing the cassation ruling, you need to attach originals and copies of the following documents along with the cassation ruling:

• In case of personal filing or by mail, prepare copies of the complaint to the Supreme Court according to the number of participants in the legal dispute. Stamped copies of appealed decisions, resolutions, rulings (also by number of participants). State duty - receipt. If necessary, a power of attorney for your representative.
• Using electronic services, you must select from the proposed list which judicial acts will be appealed to the Supreme Court, provide a cassation appeal, scans of documents upon the sites’ request, and send correctly completed forms.

Unlike the previous processes, at this stage it is not necessary to attach confirmation of sending copies of complaints to those persons who are participating in this proceeding.

After receiving, your complaint against the cassation decision undergoes an initial check, which is carried out by a filter judge. The cassation and attached documents are checked for errors, compliance with legislative norms, and the grounds for its consideration are assessed. In case of a positive decision, an appeal procedure begins in the Supreme Court. If the filter judge finds errors or does not consider the claims in the filed complaint to be valid, you will receive a notice of refusal to consider the case.