“I consider the court’s decision to be illegal, unfounded, and, as a consequence, subject to cancellation” is the standard wording of judicial complaints.
It's a cliche. Next, you need to justify why the decision is illegal and why it is unfounded.
To prepare an appeal or cassation complaint, it is necessary to understand when a court decision is considered illegal and when unfounded.
Of course, in order to draw up a full-fledged complaint, you need a certain legal background. However, a general idea of illegality and unreasonableness will not be superfluous.
Only legal and reasonable
The legality and validity of a court decision is a postulate of any legal proceedings.
Only such a decision is considered fair—based on the law.
Legal + Reasonable = Just
One without the other, and even more so in the absence of both conditions, entails consequences - the cancellation or modification of the decision by a higher court.
However, to do this you need to appeal the decision. Otherwise it will remain vicious.
Commentary on Article 305 of the Criminal Code of the Russian Federation
1. The crime provided for in the article encroaches on the very core of the activities of implementing the tasks of justice - justice in the narrow sense of the word.
2. From the objective side, the essence of the encroachment is expressed in the implementation of judicial activities with a serious deviation from the functions of justice and contrary to the tasks facing it, the result of which is an unjust judicial act. In other words, it consists of issuing an unjust sentence, decision or other judicial act.
The latter should be understood as a written act that is contrary to the law - a document that is the result of consideration of the case at the appropriate judicial stage, one way or another determining its fate. For example, in criminal proceedings, such judicial acts, along with the verdict, may include rulings of cassation instances, decisions of supervisory authorities, rulings of the court of first instance or a judge’s decision to terminate the criminal trial, provided that they are unfounded or illegal and are subject to cancellation or amendment as provided by law. ok. Thus, violations that cannot serve as a basis for canceling or changing a sentence cannot be the reason for assessing it as unjust in the criminal legal sense.
As for judicial acts that do not determine the fate of the case, but are contrary to the law, their issuance should be considered, depending on the situation, or as preparation for the commission of a crime provided for in the comment. article, or in some cases as a crime against the interests of service in government bodies.
3. The crime is completed (by the elements set out in part 1) at the moment when the unjust act is signed by the persons who participated in its resolution, regardless of whether it entered into legal force and was announced.
4. The legislator names only judges as subjects of criminal encroachment. The latter must be understood as persons who are constitutionally empowered to administer justice and carry out their duties on a professional basis, and persons who have equal rights with judges when deciding a judicial act (arbitration assessors).
Jurors are not subjects of encroachment, because their competence differs significantly from the competence of judges.
5. The legislator’s indication of the knowledge of the unfairness of a judicial act excludes the conclusion about the possibility of committing this crime through negligence. In these elements of crime, guilt is characterized by direct intent. The subject not only realizes that he is taking part in the adoption of an unjust judicial act, but also wants it to be decided. The subject expresses his desire in the case when a judicial act is passed collectively through appropriate voting. A judge who remains in the minority during the voting, but is forced by virtue of the said law to sign a judicial act passed by vote (see, for example, Part 3 of Article 312 of the Code of Criminal Procedure of the RSFSR), should not be held liable under Art. 305.
6. Responsibility for issuing a knowingly unjust judicial act increases if this act is associated with the issuance of an illegal court sentence to imprisonment or entails other grave consequences.
6.1. We can talk about the illegality of a sentence to imprisonment both in the case when it is a consequence of the unfounded recognition of a person guilty of committing a crime, and in a situation where the imposition of this type of punishment on a truly guilty person is excessively harsh.
6.2. Other grave consequences of a crime may include unlawful conviction to death, unlawful acquittal of a person who has committed a grave or especially grave crime, or the commission of a new grave crime by an unreasonably acquitted person. As such, other circumstances should be considered that indicate the destructive impact that the issuance of a deliberately unfair judicial act (suicide, mental disorder, other serious illness, death, etc.) had on the participants in the process and their loved ones, provided that they are in a causal connection with the act included in the objective side of the crime.
7. The mental attitude of the perpetrator to the qualifying characteristic can be expressed both in intent and in negligence.
8. The acts provided for in Part 1 are classified as crimes of medium gravity, and Part 2 - as serious crimes.
Justice is not only in the verdict
Sentences are passed only in criminal cases.
In civil proceedings, courts issue decisions in four forms : writ, determination, decision and supervisory order.
A verdict in a criminal case must not only be legal and justified, but also fair.
In the Civil Procedure Code there is no direct requirement for the fairness of a court decision
However, this does not mean that the decision in a civil case should not be fair.
Law and justice must go hand in hand, law is the mirror of justice. So ideally, sometimes only on paper, not always in life.
Everything that complies with the law is fair - that’s what the courts think
Otherwise, the fairness of the law itself , and this is already a problem for the legislator.
The judge's issuance of an unlawful act
Object and objective side
The issuance of a knowingly unjust judicial act is punishable under Article 305. Such a crime encroaches on relations associated with the normal administration of justice, and also affects the rights and freedoms of the person in respect of whom it was adopted.
When making decisions, the court is guided by the principles of criminal, civil and arbitration legislation, takes into account all the circumstances of the case under consideration, and then issues a well-founded and motivated act.
Criminal liability occurs if the announced act is unlawful and does not comply with the basic principles and requirements of the law.
The corpus delicti is formal, that is, it is completed from the moment the act was adopted, even if it has not yet come into force.
The onset of consequences (severe) matters only for the second part. These include a suicide attempt by the person in respect of whom the decision was made, harm to his physical and mental health, loss of property, etc.
Part 2 also provides for liability for issuing an illegal verdict in a criminal case imposing a sentence of imprisonment.
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Article 305 of the Criminal Code of the Russian Federation dated June 13, 1996 N 63-FZ (as amended on February 19, 2018)
Article 314 of the Criminal Code of the Russian Federation dated June 13, 1996 N 63-FZ (as amended on February 19, 2018)
Item
In the course of his activities, a judge can issue various acts, which can be divided into two categories:
- final, resolving the case on the merits (rules, decisions, rulings, sentences, orders);
- intermediate, helping to resolve current issues (definitions).
As a general rule, the scope of this article covers those acts that resolve significant issues and directly affect the rights and freedoms of people.
Important! Unlawful intermediate determinations usually do not entail liability, but in some cases they can be regarded as preparation for committing a crime.
It does not matter what nature the judicial act has, it can carry both positive and negative meaning for the person against whom it was issued. Responsibility arises in any case, since such an act violates the normal course of legal proceedings.
Subjective side and subject
Judges (in civil, criminal, arbitration cases), as well as other persons who participate in decision-making and can influence it, such as jurors, are held accountable under Article 305.
Although they do not directly pronounce the act, their verdict influences the content of the document. From the point of view of the subjective side, a crime is characterized only by direct intent; the act adopted must be obviously unlawful. If a judge makes a mistake, he bears disciplinary rather than criminal liability.
Important! Both individual judges and panels can be guilty of committing a crime. But only those members who had direct intent to commit a criminal act, that is, knew about the illegality of their decision, will be punished.
Punishment
According to Part 1, a judge and other persons who participated in the adoption of a deliberately illegal act may suffer one of the following penalties:
- payment (fine) in the amount of up to 300 thousand rubles (or in the amount of income for a period of up to two years);
- forced labor for up to 4 years;
- imprisonment for the same period.
If the act entailed the deprivation of a person’s freedom or the onset of grave consequences (Part 2), then the judge may be punished by imprisonment for 3-10 years.
How to hold a judge accountable
Any court decision can be appealed to a higher authority.
Even in cases where there is no such authority (for example, when the act was adopted by the Constitutional Court), the decision may be declared illegal. The reversal of a decision by a higher court in itself does not entail liability. But if the deliberate illegality of the act passed is proven, the judge will be punished under Article 305.
If there are suspicions that the judge is biased in the case, you can apply for his removal.
You can also send your complaint about the unlawful actions of a judge to a special body - the KKS - indicating in it all your personal data, as well as the very essence of the appeal.
Arbitrage practice
There are not many cases of holding judges accountable under this article, since several conditions are required: the presence of a canceled illegal decision, a proven purpose to make an illegal act, as well as permission from the High Qualification Board of Judges.
One example is the following situation: V. served as a judge in civil cases. In 2003, he made an unlawful decision to transfer land plots to his acquaintances, entrepreneurs. Then the plots were sold, and after some time V. himself began to be listed as the owner of the land.
A criminal case was initiated against V. under several articles at once, including Article 305.
Reference to injustice in the complaint
When preparing an appeal in a civil case, it is better to use the terms “illegal” and “unfounded”. Same with cassation appeal.
In practice, the demagogy about justice included in the complaint is ineffective and does not produce results. Although again there are exceptions.
In civil disputes, justice is not declared in text format, but is implied.
It remains outside the brackets, but is kept in mind and used when necessary to strengthen the legality and validity of a court decision.
When the decision is legal and justified (as the Supreme Court of the Russian Federation believes)
The Plenum of the Supreme Court of the Russian Federation published its resolution No. 23 back in 2013 on what the court decision should be.
Little has changed since then; the resolution is still relevant today.
The decision is justified when:
- It contains comprehensive conclusions on legally significant circumstances
- These conclusions follow from established facts
- The facts themselves are confirmed by evidence or circumstances that do not require proof
All three conditions must be met
In this case, the evidence must be examined by the court and comply with the requirements of the law.
Follow the link for a brief summary of legally significant circumstances.
The decision is legal when:
- Procedural norms are strictly - the procedure for considering the case is not violated
- The decision complies with the norms of substantive law
- It was these substantive norms that were subject to application to controversial legal relations
It’s similar here - all conditions are met simultaneously
There are not always rules of substantive law that can be applied to controversial legal relations.
In this case, an analogy of law or an analogy of law .
Incorrect application of one or another analogy makes a court decision illegal.
Case No. 1-152
PRI G O V O R
In the name of the Russian Federation
Kineshma city June 08, 2022
Kineshma City Court, Ivanovo Region,
as part of the presiding judge Molodkin V.Yu.,
with the participation of the state prosecutor: Deputy Zavolzhsky District Prosecutor Lebedev A.V.,
defense lawyer: lawyer Shkilev A.A., who provided certificate No. and warrant No.,
defendant Strizhov V.S.,
under secretary Guseva O.S.,
Having examined the materials of the criminal case regarding:
Strizhova V.S., <data taken>, convicted: on July 2, 2018, by a magistrate judge of court district No. 5 of the Kineshma judicial district in the Ivanovo region under Part 1 of Article 119 of the Criminal Code of the Russian Federation to 8 months in prison, under Part 1 of Art. .119 of the Criminal Code of the Russian Federation to 9 months of imprisonment, to final punishment, in accordance with Part 2 of Article 69 of the Criminal Code of the Russian Federation, for the totality of crimes, by partial addition of the imposed penalties to punishment in the form of imprisonment for a term of 10 months, with the sentence being served in high security correctional colony, released on April 30, 2022 after serving his sentence,
accused of committing a crime under Part 2 of Article 314. 1 of the Criminal Code of the Russian Federation,
U S T A N O V I L:
Defendant Strizhov V.S. preliminary investigation authorities are accused of committing a crime under Part 2 of Article 314.1 of the Criminal Code of the Russian Federation, namely that he committed repeated deliberate non-compliance with administrative restrictions established by the court in accordance with federal law, associated with the commission of an administrative offense encroaching on public order and public safety.
The crime, as stated in the indictment, was committed under the following circumstances:
According to the decision of the Palekhsky District Court of the Ivanovo Region dated March 12, 2022, which entered into force on March 23, 2022, in relation to Strizhov V.S. Administrative supervision was established for the period established by the legislation of the Russian Federation for the expungement of a criminal record by the verdict of the magistrate of judicial district No. 5 of the Kineshma judicial district in the Ivanovo region dated July 2, 2022, that is, for a period of three years, minus the period that expired after serving the sentence, with establishing administrative restrictions: mandatory attendance twice a month at the internal affairs body at the place of residence, stay or actual location, on days established by this body.
April 30, 2022 Strizhov V.S. was released from penal colony <data taken> after serving his sentence, and received order No. dated April 30, 2022, according to which he, within three working days from the date of arrival at his chosen place of residence or stay at the address: <address>, is obliged to appear for registration at OP No. 8 (Zavolzhsk) of the Ministry of Internal Affairs of the Russian Federation “Kineshemsky” at the address: <address>. At the same time Strizhov V.S. was warned of criminal liability under Art. 314.1 of the Criminal Code of the Russian Federation, about which he personally signed the order.
May 06, 2022 Strizhov V.S. was placed on preventive registration in OP No. 8 (Zavolzhsk) of the Ministry of Internal Affairs of the Russian Federation "Kineshemsky" as a person released from prison, in respect of whom the court established administrative supervision for a period of 3 years and established an administrative restriction: mandatory appearance twice per month in OP No. 8 (Zavolzhsk).
On May 31, 2022, by the decision of the Kineshma City Court of the Ivanovo Region, which entered into legal force on June 11, 2022, Strizhov V.S. additional administrative restrictions have been established in the form of mandatory attendance for registration three times a month in OP No. 8 (Zavolzhsk) of the Kineshma Ministry of Internal Affairs of Russia for registration on the days established by this body, a ban on staying in retail outlets selling alcoholic beverages on tap.
On October 3, 2022, by the decision of the Kineshma City Court of the Ivanovo Region, which entered into legal force on October 18, 2019, Strizhov V.S. additional administrative restrictions have been established in the form of mandatory attendance for registration four times a month at OP No. 8 (Zavolzhsk) of the Kineshemsky Ministry of Internal Affairs of Russia.
Strizhov V.S. during the period from May 24, 2022 to December 25, 2019, living at the address: <address>, having a personal interest, he intentionally committed repeated failure by a person subject to administrative supervision to comply with administrative restrictions imposed on him by the court in accordance with federal law, namely, appearance at the OP No. 8 (Zavolzhsk) for registration, associated with the commission by this person of an administrative offense encroaching on public order and public safety, namely on December 23, 2022 at 18:45 Strizhov V.S. . was in a state of intoxication, that is, in a public place, had slurred speech, impaired coordination of movement, unkempt appearance, which offended human dignity and public morality, i.e. committed an administrative offense under Article 20.21 of the Code of Administrative Offenses of the Russian Federation, for which he was given an administrative penalty in the form of administrative arrest for a period of three days.
From May 2022 to December 2022 Strizhov V.S. was repeatedly brought to administrative responsibility for failure to comply with administrative restrictions in the form of mandatory attendance for registration in OP No. 8 (Zavolzhsk) of the Kineshma Ministry of Internal Affairs of the Russian Federation, both under Part 1 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation, and under Part 3 of Art. 19.24 of the Code of Administrative Offenses of the Russian Federation, last time on November 18, 2022, as a person brought to administrative responsibility under Part 3 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation.
On December 23, 2022, V.S. Strizhov, being the person in respect of whom the decision of the Palekh District Court of the Ivanovo Region dated March 12, 2022, which entered into force on March 23, 2022, and having been brought to administrative responsibility under Part 3 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation, by order of the magistrate of judicial district No. 7 of the Kineshma judicial district in the Ivanovo region dated November 20, 2019, which entered into force on December 5, 2022, did not comply with the restriction established in relation to him by a court decision in the form of mandatory appearance for registration in OP No. 8 ( Zavolzhsk) MO Ministry of Internal Affairs of Russia “Kineshemsky”, thereby violating clause 5, part 1, article 4 of the Federal Law of April 6, 2011 “On administrative supervision of persons released from places of imprisonment” No. 64-FZ, as well as December 23, 2022 at 18:45 Strizhov V.S. at <address> was in a state of intoxication, that is, in a public place, had slurred speech, impaired coordination of movement, unkempt appearance, which offended human dignity and public morality, thereby violating the established administrative restriction in the form of mandatory attendance for registration four times a day month in OP No. 8 (Zavolzhsk) of the Ministry of Internal Affairs of Russia "Kineshemsky" on the days established by this body - 1, 2, 3, 4 Monday of the month from 09-00 hours to 18-00 hours, associated with the commission of an administrative offense that infringes on public order and public safety, for which he was brought to administrative responsibility under Article 20.21 of the Code of Administrative Offenses of the Russian Federation and on the basis of a resolution on the imposition of an administrative penalty dated December 25, 2022, issued by the magistrate of the judicial district No. 7 of the Kineshma judicial district in the Ivanovo region, who entered into legal force on January 10, 2022, Strizhov V.S. was subjected to administrative punishment in the form of administrative arrest for a period of three days.
Having examined at the court hearing the testimony of V.S. Strizhov, who admitted guilt to the charges brought against him, as well as the witnesses indicated in the list of persons to be summoned to the court hearing, and having examined other evidence presented by the investigative bodies, the court established the following:
Strizhov V.S., being a person in respect of whom administrative supervision was established for the period of expiration of a criminal record by the verdict of the magistrate of the court district No. 5 of the Kineshma judicial district in the Ivanovo region dated July 02, 2022, was repeatedly brought to administrative responsibility for one year in connection with 1 and part 3 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation, being considered subject to administrative punishment for these offenses, committed an administrative offense under Article 20.21 of the Code of Administrative Offenses of the Russian Federation, for which he was sentenced to administrative arrest, but there was no evidence that these acts were related, then there were committed simultaneously, not presented to the court.
Conclusions of the preliminary investigation authorities regarding the presence of V.S. Strizhov in his actions. corpus delicti under Part 2 of Article 314.1 of the Criminal Code of the Russian Federation are untenable.
The court came to this conclusion based on the following evidence:
From the testimony of V.S. Strizhov as a suspect (cases 26-28), announced at the request of the state prosecutor in connection with the defendant’s refusal to testify, it follows that while serving his sentence of imprisonment, administrative supervision was established in relation to him, but after his release he did not register without having any valid reasons, in connection with which additional restrictions were imposed on him by the Kineshma City Court. For violations of the established restrictions, he was brought to administrative responsibility under Part 1.3 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation, and on December 23, 2022, at about 18:45, he was intoxicated at <address>, for which he was brought to administrative liability under Article 20.21 of the Code of Administrative Offenses of the Russian Federation.
From the testimony of the witness FULL NAME1 - <data taken> OP No. 8 (Zavolzhsk) of the Ministry of Internal Affairs of the Russian Federation "Kineshemsky", read out at the request of the public prosecutor in connection with the failure of the witness to appear at the court hearing with the consent of the parties (case files 10-12) , it follows that since May 06, 2019, V.V. Strizhov, in respect of whom administrative supervision has been established for a period of 3 years, has been registered with the OUUP and PDN OP No. 8 (Zavolzhsk) of the Ministry of Internal Affairs of the Russian Federation “Kineshemsky”, as well as An administrative restriction has been established in the form of mandatory attendance four times a month for registration at the police station at the place of residence. During the time he was on preventive registration, Strizhov V.S. was repeatedly brought to administrative responsibility for violations of the restrictions and obligations established by the court, and on December 23, 2022, in the Kineshemsky Ministry of Internal Affairs of the Russian Federation in relation to V.S. Strizhov. a protocol was drawn up on an administrative offense provided for in Article 20.21 of the Code of Administrative Offenses of the Russian Federation, due to the fact that on December 23, 2019 at 18:45 he was at the “address”, that is, in a public place, in a state of alcoholic intoxication that offends humanity dignity and public morality.
From the testimony of the witness FULL NAME2, read out at the request of the state prosecutor in connection with the failure of the witness to appear at the court hearing with the consent of the parties (case sheets 34-35), it follows that his <data taken> Strizhov V.S. The last time he was released was on May 1, 2022 and he was placed under administrative supervision with reporting to the police 4 times a month. However, <data taken> did not always show up for appointments, for which he was brought to administrative responsibility. He also knows that an administrative protocol was drawn up in relation to <data taken> for appearing while intoxicated in a public place, namely on December 23, 2022 at 18:45 at <address>, for which he was brought to administrative liability in the form of arrest for a period of 3 days.
From other evidence contained in the criminal case materials, it follows:
By the verdict of the magistrate of judicial district No. 5 of the Kineshma judicial district in the Ivanovo region dated July 2, 2022 (case sheet 92-95) Strizhov V.S. found guilty of committing two crimes under Part 1 of Article 119 of the Criminal Code of the Russian Federation, according to the corpus delicti on one of the days of January 2022 he was sentenced to imprisonment for a term of 8 months, according to the corpus delicti of March 22, 2022 he was sentenced to form of imprisonment for a period of 9 months, the final punishment was imposed in accordance with Part 2 of Article 69 of the Criminal Code of the Russian Federation for a set of crimes, by partial addition of punishments in the form of imprisonment for a period of 10 months with serving the sentence in a high-security correctional colony, from where he was released April 30, 2022 upon completion of the sentence (case file 75).
According to the decision of the Palekhsky District Court of the Ivanovo Region dated March 12, 2022 and the ruling of the judge of the Palekhsky District Court of the Ivanovo Region dated March 9, 2022 (case sheet 67-71), in relation to Strizhov V.S. administrative supervision was established for the period established by the legislation of the Russian Federation for the expungement of a criminal record by the verdict of the magistrate of court district No. 5 of the Kineshma judicial district of the Ivanovo region dated July 2, 2018, that is, for a period of 3 years, minus the period that expired after serving the sentence, with the establishment mandatory attendance 2 times a month to the internal affairs body at the place of residence, stay or actual location. May 07, 2022 to V.S. Strizhov a warning was announced about familiarization with administrative restrictions, he was warned about the possibility of extending administrative supervision in connection with the commission of administrative offenses against the order of management and encroaching on public order and public safety, and the provision of the law on the possibility of terminating administrative supervision early was explained to him (ld. 77), May 08, 2019 from Strizhov V.S. a signature was taken stating that he was warned of criminal liability under Article 314.1 of the Criminal Code of the Russian Federation (case file 78).
By the decision of the Kineshma City Court of the Ivanovo Region dated May 31, 2022, Strizhov V.S. previously established administrative restrictions have been supplemented with administrative restrictions in the form of mandatory attendance for registration three times a month at police station No. 8 (Zavolzhsk) of the Kineshma Ministry of Internal Affairs of the Russian Federation on days established by this body, a ban on staying in retail outlets selling alcoholic beverages in bottling (case sheet 108).
By the decision of the Kineshma City Court of the Ivanovo Region dated October 3, 2022, Strizhov V.S. assigned the obligation to appear for registration four times a month at police station No. 8 (Zavolzhsk) of the Ministry of Internal Affairs of the Russian Federation “Kineshemsky” (case file 109).
On October 21, 2022, the acting head of OP No. 8 of the city of Zavolzhsk of the Ministry of Internal Affairs of the Russian Federation “Kineshemsky” approved the arrival schedule of the supervised person - V.S. Strizhov. for registration, according to which Strizhov V.S. an obligation was established to appear for registration at OP No. 8 of the city of Zavolzhsk, Moscow Region Ministry of Internal Affairs of the Russian Federation “Kineshemsky” on the 1st, 2nd, 3rd and 4th Mondays of the month from 09-00 to 18-00, with which Strizhov V.S. reviewed against signature on November 5, 2022 (case file 79).
From the registration sheet of the supervised person - V.S. Strizhov. (case file 82) it is clear that on December 23, 2022 Strizhov V.S. did not show up for registration.
From the decisions of the magistrate of judicial district No. 7 of the Kineshma judicial district in the Ivanovo region dated May 24, 2019, June 4, 2022, it is clear that Strizhov V.S. each time he was brought to administrative responsibility under Part 1 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation - on May 24, 2022, with a punishment in the form of administrative arrest, and on June 4, 2022 in the form of an administrative fine (case file 84-85).
From three decisions of the magistrate of judicial district No. 7 of the Kineshma judicial district in the Ivanovo region dated August 8, 2019, one decision dated October 24, 2022 and one decision dated November 20, 2022, it is clear that Strizhov V.S. each time he was brought to administrative responsibility under Part 3 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation and each time with a punishment in the form of administrative arrest (case files 86-91, 96-99).
From the resolution of the magistrate of judicial district No. 7 of the Kineshma judicial district in the Ivanovo region dated December 25, 2019, it is clear that Strizhov V.S. brought to administrative responsibility under Article 20.21 of the Code of Administrative Offenses of the Russian Federation with the imposition of punishment in the form of administrative arrest for a period of 3 days (case file 101).
From the decisions of the magistrate of judicial district No. 5 of the Kineshma judicial district in the Ivanovo region dated August 27, 2019 Strizhov V.S. twice brought to administrative responsibility under Part 3 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation for committing the specified offense on August 19, 2022 and August 26, 2022, each time with a punishment in the form of administrative arrest (case files 103, 104).
As for the evidence cited in the indictment and presented by the state prosecutor at the court hearing, they, individually and collectively, do not provide grounds for concluding that the defendant is guilty of committing a crime under Part 2 of Article 314.1 of the Criminal Code of the Russian Federation, since, in accordance with paragraph 8 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of crimes provided for in Article 314.1 of the Criminal Code of the Russian Federation” dated May 24, 2016 No. 21, the objective side of the crime provided for in Part 2 of Article 314.1 of the Criminal Code RF, consists in the commission by a person in respect of whom administrative supervision has been established and who was previously brought to administrative responsibility twice within one year under Part 1 and Part 3 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation for failure to comply with the administrative restrictions or restrictions established by the court, a new act, expressed in non-compliance with such restrictions or restrictions, unless the time period during which this person was considered subject to administrative punishment for previous offenses provided for in Part 1 and Part 3 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation has not expired. The specified act must be associated with the commission of an administrative offense against the order of management (included in Chapter 19 of the Code of Administrative Offenses of the Russian Federation, with the exception of that provided for in Article 19.24 of the Code of Administrative Offenses of the Russian Federation) or an administrative offense encroaching on public order and public safety (included in Chapter 20 of the Code of Administrative Offenses of the Russian Federation) or on health , sanitary and epidemiological well-being of the population and public morality (included in Chapter 6 of the Code of Administrative Offenses of the Russian Federation).
The materials of the criminal case contain documents confirming the establishment of administrative supervision in relation to V.S. Strizhov, who was brought to administrative responsibility more than twice within one year under Part 1 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation and under Part 3 of Article 19.24 of the Code of Administrative Offenses of the Russian Federation , and the commission by Strizhov V.S. during the period when he was considered subject to administrative punishment for these offenses, a new act, which was expressed in non-compliance with the restrictions imposed on him by the court, but the court was not presented with evidence that this act was associated with the commission of V.S. Strizhov. an administrative offense under Article 20.21 of the Code of Administrative Offenses of the Russian Federation, which took place on December 23, 2019, since, as established by the court, Strizhov V.S. brought to administrative responsibility under this article for being in a state of intoxication in a public place, which took place at 18:45, which is expressly stated in the resolution of the magistrate of judicial district No. 7 of the Kineshma judicial district in the Ivanovo region dated December 25, 2022 and in the indictment, whereas, according to the schedule of arrival of the supervised person for registration, Strizhov V.S. must appear for registration on the 1st, 2nd, 3rd and 4th Mondays of the month from 09-00 to 18-00. That is, V.S. Strizhov’s failure to appear. within the time period established for him for registration on December 23, 2022, which is the fourth Monday of the month, cannot be considered associated with the commission of V.S. Strizhov. on the same day of an administrative offense provided for in Article 20.21 of the Code of Administrative Offenses of the Russian Federation, outside the specified period of time.
Failure to comply with administrative restrictions or restrictions established by the court, according to paragraph 8 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of crimes provided for in Article 314.1 of the Criminal Code of the Russian Federation” dated May 24, 2016 No. 21, should be considered associated with the commission of the items listed in part 2 of Article 314.1 of the Criminal Code of the Russian Federation of offenses (petty hooliganism, appearing in public places while intoxicated), if these actions are carried out simultaneously, in particular, these offenses are committed while the person subject to administrative supervision is in places prohibited for staying, visiting venues for holding mass and other events, subject to a ban on staying outside a residential or other premises at prohibited times of the day.
Analysis of the evidence examined allows us to conclude that the conclusions about the guilt of the defendant V.S. Strizhov of committing a crime under Part 2 of Article 314.1 of the Criminal Code of the Russian Federation, cited in the indictment, were not confirmed at the court hearing, and therefore an acquittal should be rendered in the case for lack of corpus delicti. Accordingly, Strizhov V.S. has the right to rehabilitation, as well as the right to compensation for property and moral damage in the manner provided for in Articles 135-136 of the Code of Criminal Procedure of the Russian Federation.
The fate of material evidence is decided by the court in accordance with Article 81 of the Code of Criminal Procedure of the Russian Federation.
Based on the above and guided by Articles 302, 305, 306, 309 of the Code of Criminal Procedure of the Russian Federation, the court
PRI G O V O R I L:
Acquit V.S. Strizhov on the charge brought against him of committing a crime under Part 2 of Article 314.1 of the Criminal Procedure Code of the Russian Federation, on the basis of Clause 3 of Part 2 of Article 302 of the Criminal Procedure Code of the Russian Federation.
Recognize V.S. Strizhov on charges brought against him of committing a crime under Part 2 of Article 314.1 of the Criminal Code of the Russian Federation, the right to rehabilitation and filing a claim in court for compensation for property and moral damage.
A preventive measure in the form of a written undertaking not to leave the place and proper behavior for V.S. Strizhov. cancel.
Physical evidence: administrative supervision case No.-dsp in relation to V.S. Strizhov, returned FULL NAME1, shall be considered returned according to its ownership.
The verdict can be appealed and an appeal can be filed against it with the judicial panel for criminal cases of the Ivanovo Regional Court through the Kineshma City Court within 10 days from the date of proclamation.
Chairman: “signature” V.Yu.Molodkin.
When the decision is illegal and unreasonable (what the law says)
The Civil Procedure Code of the Russian Federation clearly distinguishes when a court decision is unfounded and when it is illegal.
In this case, a court decision can be both this and that at the same time.
Decision illegal OR unfounded = cancellation (change)
The decision is illegal and unreasonable = cancellation (change)
I repeat, when appealing to the second cassation (the Supreme Court of the Russian Federation), only illegality = cancellation or change .
The decision is unreasonable when:
- Legally significant circumstances are incorrectly defined
- Despite the fact that such circumstances have not been proven , they were established by the court
- The conclusions in the court decision do not correspond to the actual circumstances of the case
On appeal, any of the three violations is grounds for reversal or modification. In the first cassation - only the third. The second cassation does not cancel or change on these grounds.
In the arbitration process, “incorrect determination of circumstances” (the first ground) sounds like “incomplete clarification of circumstances”, this is close in meaning.
The circumstances were incorrectly determined, which means that the important thing for the case was not fully clarified
The decision is illegal when:
- Substantive and (or) procedural rules of law were violated
- Substantive and (or) procedural rules of law were incorrectly applied
Procedural law specifies only the incorrect application of substantive law :
- Didn't apply the right law
- Applied, but not the right one
- The law was misinterpreted
To cancel or amend an appeal or cassation, one of three “incorrect applications” is sufficient.
“Misinterpreted” is rare, more often “they didn’t use the right one or used the unnecessary one”
The text of the Code of Civil Procedure and the Arbitration Procedure Code of the Russian Federation distinguishes between “violation of the law” and “its incorrect application”.
However, there are no clear criteria for such a distinction. Thinking logically, something is included in one that does not apply to the other.
Although “incorrect application” is the same as a violation of the requirements for the legality of a court decision, i.e., a violation of the law.
A separate paragraph highlights the violation or incorrect application of procedural law .
They entail cancellation or modification only when they have led or may lead to an incorrect decision.
There is no such reservation with regard to substantive rules, since their violation or incorrect application always affects the decision.
Does the court have the right to make mistakes?
To be completely precise, we are not talking about the right of the court, as an opportunity to implement the will of the state, but about the permissibility of making a mistake and subsequently being corrected for being wrong.
The answer to the question posed will be ambiguous, and here's why.
Answering this question, most of us will, of course, agree that the court has no room for error. How else? It is also a court, and the most humane in the whole world.
However, the absence of the right to make a mistake does not always mean the impossibility of making one.
To avoid extensive discussions around a rather complex topic, to answer the question posed, we will cut off the philosophical versions and turn to the letter of the law.
Of course, the law does not directly indicate the possibility of the court making mistakes, but it does provide a mechanism that regulates the correction of errors. In turn, this circumstance means that the possibility of an error, if it did occur, is implied.
Let us once again turn to the main law regulating the implementation of civil proceedings.
The Civil Procedure Code of the Russian Federation establishes the possibility of appealing court decisions in the appellate, cassation and supervisory procedures. A limited range of court decisions can be appealed to the final authority (supervisory authority).
Thus, the civil process provides for a possible multi-stage resolution of a controversial situation presented to the court. The higher court supervises the lower one, checks the legality and validity of its decisions based on complaints, and is vested with the right to correct mistakes.
Such a system seems absolutely correct; nothing better has yet been invented in the whole world.
A similar approach is used in almost all procedural industries, with the exception of one.
According to Article 18 of the Constitution of the Russian Federation, judicial power is exercised through constitutional, civil, administrative and criminal proceedings.
The mentioned exception is constitutional proceedings, where there is no provision for appealing decisions of the Constitutional Court of the Russian Federation.
By providing the right to appeal court decisions in civil, administrative and criminal proceedings, the state thereby conditionally allows for the possibility of miscarriages of justice. Why conditional? Because the condition for such an assumption is the obligatory correction of the mistake that has taken place and the prevention of violation of anyone’s rights.
Now is the time to understand a little about the reasons for making such mistakes.
Unconditional cancellation
Also, the procedural code provides for seven situations when a decision must be canceled unconditionally, in any case .
For example, when the case was considered by an illegal court, the rule on the secrecy of the meeting was violated, the decision was not signed, and other cases.
However, this is extremely rare
The most common case is when one of the participants was absent and was not properly notified.
However, not everything is so simple here - a topic for a separate publication.
The next most popular are decisions in which the court resolved the issue of the rights and obligations of certain persons, but did not involve them in participation in the case.
For formal reasons
Sometimes it turns out that the decision is essentially correct, but with formal violations .
In this case, the procedural law establishes the following rule:
Cannot be canceled only for formal reasons
Formal means correct in form. Keeping the form does not mean being correct in essence.
Which violations are formal and which are informal is determined by the higher court. There are no criteria for this in the law.
Determined individually, in relation to each legal dispute. They are guided by the factual circumstances and arguments of the complaint.
For example, a violation of the order of speaking of participants in judicial debates or an unjustified exemption of the plaintiff from paying state fees would be formal.
Indeed, how can the fact that the prosecutor acted not first, but after the plaintiff or defendant, change the decision?
Or how will the decision be affected by the fact that the plaintiff did not pay the state fee, although he was obliged to do so?
Where is the cause-and-effect relationship between the violation and the decision made?
It is the absence of such a connection, the gap between form and essence, that determines the inadmissibility of overturning a court decision only on formal grounds.
The following are not considered formal violations:
- Incorrect definition of circumstances, lack of evidence and inconsistency of conclusions
- Violations or incorrect application of the law that influenced the result
- The grounds on which decisions are always canceled (illegal composition, violation of rules on language and secrecy of meetings, etc.).
Grounds for reversing a court decision
A court ruling can be canceled on the grounds specified in Article 330 of the Code of Civil Procedure. These include: incorrect determination of the circumstances of the case, inconsistency of the court’s conclusions with the circumstances of the case under consideration, lack of proof of the circumstances.
In any case, the decision must be annulled if:
- the case was considered by the court in an illegal composition;
- there was no minutes of the meeting;
- the case was considered in the absence of the main participants (due to the fact that they were not notified), etc.
Due to frivolous and formal violations, the previous court decision will not be canceled. We need good reasons.
The relationship between the unreasonableness and illegality of a court decision
The decision may be illegal, but reasonable.
For example, the court correctly identified significant circumstances, established them on the basis of sufficient evidence, and the conclusions correspond to the actual circumstances.
However, he applied the law incorrectly - he was mistakenly guided by a norm of substantive law that had become invalid.
An unjustified decision cannot be legal..
For example, incorrect definition of legally significant circumstances entails a violation of procedural law and incorrect application of substantive law.
We see that groundlessness is transformed into illegality .
Therefore, the main criterion for canceling or changing a decision is still its illegality.
The Supreme Court has banned the punishment of judges for unintentional miscarriages of justice
“A judge cannot be brought to disciplinary liability for the very fact of adopting an illegal or unfounded judicial act as a result of a judicial error resulting from an incorrect assessment of the evidence in the case or incorrect application of the law,” the document says.
For example, as the qualification board of judges decided, the judge of the arbitration court in the Stavropol Territory, S., committed gross and deliberate violations of the norms of procedural legislation when considering disputes in four cases.
In one of the cases, the judge, by ruling to correct a typo, changed the date and time of the scheduled court hearing in a previously made decision to earlier ones. Together with inadequate notification of the persons involved in the case, this was recognized by the appellate court as a miscarriage of justice.
As S. himself explained, the date was initially set taking into account the interests of the parties to the dispute. But then one of them made an application to speed up the consideration of the case. “In the absence of a direct rule that would allow changing the previously appointed date, S. took advantage of the rule on correcting the typo. The persons involved in the case were notified by telegram of the postponement of the court date,” the review says.
In three more cases, procedural errors were also made, which were later corrected by higher authorities.
“The disciplinary board came to the conclusion that the judicial errors committed by S. were of an ordinary nature and cannot be regarded as a manifestation of his dishonest attitude towards his professional duties,” the review says. — No signs of incompetence or negligence were established. Fundamental principles of legal proceedings have not been violated. There was no gross violation of the rights of participants in the trial, no significant harm was caused to anyone, and no serious consequences occurred.”
Having taken into account Judge S.’s explanations about the motives for his actions and the decisions made, the disciplinary board considered that they were consistent with the circumstances of the cases under consideration and were not devoid of logic. In this regard, in the opinion of the disciplinary board, S.’s actions were carried out within the framework of judicial discretion and were aimed solely at finding legal solutions that met the objectives of justice. In addition, it was noted that the judge had a fairly high workload.
“The disciplinary board also took into account that the number of judicial errors is insignificant, and no tendency to their repetition has been established. The absence of similar miscarriages of justice by S. confirms that he accepts the position of higher authorities and takes it into account in his activities, thereby improving his professional knowledge and skills,” the Supreme Court said.
But the disciplinary board considered the punishment of the judge from Birobidzhan deserved. As noted in the review, the judge systematically grossly violated the rules of law when administering justice and even fell asleep during the hearing. He had a low level of professional qualifications, was unsatisfactorily prepared for the consideration of court cases and the organization of trials, allowed red tape, and behaved unworthily during the consideration of the case. Over two years, the judge reviewed 219 cases, of which only 37 were under the general procedure, which requires examination of evidence and questioning of witnesses. At the same time, the appellate court overturned 11 and changed 23 sentences, six more judicial acts were canceled due to incorrect application of the criminal law and a significant violation of the procedural law, and the discrepancy between the court’s conclusions and the actual circumstances of the case.
“Based on the results of the internship, poor knowledge of the theory of law, as well as the norms of criminal and criminal procedure law, the inability to motivate his conclusions, the inability to determine factual circumstances that are important for the correct consideration of court cases were noted... In addition, on August 19 and October 20, 2016, he court hearings in a criminal case fell asleep during the judicial investigation, which was the basis for the court of appeal to overturn the verdict,” the review notes.
