MOSCOW, July 3. /TASS/. The new procedure for considering cassation cases in criminal cases is aimed at eliminating judicial errors that led to an unfair conviction. This follows from the explanations of the plenum of the Supreme Court of the Russian Federation, published in Rossiyskaya Gazeta.
The Plenum recalled that with the start of the work of new cassation courts (no later than October 1), continuous cassation will be introduced - each cassation appeal will be submitted for mandatory consideration by the court.
The cassation instance can cancel a court decision that has entered into force in a criminal case for incorrect application of the criminal law or significant violations of criminal procedural norms, if they “influenced the outcome of the criminal case, in particular, the conclusion of guilt, the legal assessment of the crime, or the appointment of punishment by the court.” or to a decision in a civil suit.”
At the same time, the cassation court is not bound only by the arguments of the complaints and has the right to check the criminal proceedings in full. “The court has the right to go beyond the arguments of the complaint both in relation to the person in respect of whom the question of reviewing the court decision is raised, and in relation to other convicts in the same criminal case in an audit procedure,” the plenum explained. But this is permissible only “in the direction of improving the situation of a convicted person, acquitted person, a person against whom the criminal case has been terminated, or another person against whom cassation proceedings are underway.”
Even if the applicant withdraws his complaint after it has been scheduled for hearing, the court has the right to disagree with such a request “if there are grounds for canceling or changing the court decision, entailing an improvement in the situation of the person in respect of whom cassation proceedings are being conducted in the case,” to continue the trial and check the legality of the court decision that has entered into force. The Supreme Court explained this by saying that “justice by its very nature can only be recognized as such if it meets the requirements of justice and provides effective restoration of rights, and an erroneous judicial decision cannot be considered a fair act of justice and must be corrected.”
Check by cassation
In particular, the plenum of the Supreme Court noted, in cassation the arguments about the inadmissibility of the evidence that formed the basis of the conviction and influenced the court's conclusions require verification.
Also, in cassation, complaints about the injustice of the sentence should be verified if the punishment does not correspond to the gravity of the crime, the personality of the convicted person, or an unfair punishment is imposed due to its excessive leniency or excessive severity due to the incorrect application of criminal law.
In cassation, not only the materials available in the criminal case can be considered, but also additional materials received with the complaint or presented by the parties, if they contain information that is important for the correct resolution of the case and do not indicate the presence of new or newly discovered circumstances. On their basis, the cassation instance can overturn the court decision and return the criminal case to the prosecutor or lower courts for a new trial. And if the reliability of the facts established by additional materials does not need to be verified by lower courts (documents indicating that the convicted person has not reached the age of criminal responsibility, the absence of a criminal record, the application of an amnesty act for a previous sentence, etc.), the cassation the court has the right to cancel decisions and terminate proceedings in the case.
At the same time, the review of the case based on newly discovered circumstances should take place in the usual manner.
Turn for the worse
A worsening of the defendant’s position (tougher punishment, reversal of a decision to terminate a criminal case or an acquittal, etc.) during a review of the case in cassation “may occur if during the previous trial there were violations that distort the very essence of justice and the meaning of the court decision as an act of justice ", emphasized the plenum. The basis for this must be serious violations of the law, for example, the classification of the act under the law as a less serious crime, an error in deciding the issue of confiscation of property.
Violations that distort the very essence of justice and the meaning of a judicial decision, the Supreme Court explained, may include the issuance of a decision by an illegal composition of the court or a verdict by an illegal composition of the jury, violation of the secrecy of deliberations of jurors or the secrecy of deliberations of judges when passing a verdict, the absence of the signature of one of the judges in the court decision, lack of minutes of the court hearing. They also include significant violations during the consideration of the case by the jury, which limited the right of the prosecutor, the victim or his legal representative to present evidence, which affected the content of the questions posed to the jury or the answers they gave and, in general, the verdict rendered, as well as if when the jury’s verdict was unclear and contradictory, the judge did not point this out to them and did not offer to return to the deliberation room to make clarifications on the question sheet.
In addition, violations that distort the essence of justice may include “other violations that deprived participants in criminal proceedings of the opportunity to exercise the rights guaranteed by law to a fair trial based on the principle of adversarial action and equality of the parties, or significantly limited these rights,” if this affected the legality the court decision made.
When considering complaints that lead to a worsening of the situation of the convicted person, the cassation instance should not go beyond the arguments of the cassation appeal of the victim or his representative, or the cassation presentation of the prosecutor.
In addition, you can file a complaint that allows for a turn for the worse only within a year after the court decision enters into force. If the applicant missed this deadline, it is not subject to reinstatement, regardless of the reasons for the omission.
Appellate instance, actions of a lawyer
The appellate authority is the district (city) court, which considers criminal cases on appeal based on complaints and submissions from the state prosecution against sentences and decisions of the magistrate court that have not entered into legal force. In the criminal procedure code, chapters 43,44,45.1 are devoted to this stage.
An appeal must be filed within ten days from the announcement of the verdict. Within the same period from the date of issuance, the decision of the magistrate to terminate the criminal case and his other decisions may be appealed.
The right to appeal a court verdict belongs to the convicted, acquitted, their defenders and legal representatives, the state prosecutor or a higher prosecutor, the victim and the lawyer for the victim. A civil plaintiff, a civil defendant or their representatives have the right to appeal a court decision insofar as it relates to the civil claim. The district judge alone hears the case on appeal.
The consideration of the appeal begins with a brief statement by the judge of the verdict and the merits of the complaint. Then the presiding officer listens to the arguments of the participants in the process. After this, the court proceeds to examine the evidence.
In the court of appeal, the parties have the right to petition to call new witnesses, conduct a forensic examination, and request material evidence and documents, the examination of which was denied to them by the magistrate. In this case, the appellate court does not have the right to refuse to satisfy the petition on the grounds that it was not satisfied by the court of first instance. Of course, requests must be justified and ultimately aimed at the correct resolution of the case. The debate between the parties ends the case, after which the court retires to the deliberation room.
Based on the results of the consideration of the criminal case, the appellate court makes one of the decisions:
- leaving the verdict of the court of first instance unchanged, and the appeal or submission not satisfied;
- reversal of the conviction of the court of first instance and acquittal of the defendant or termination of the criminal case;
- reversal of the acquittal of the court of first instance and the pronouncement of a guilty verdict if a prosecutor's proposal was submitted;
- changing the verdict of the court of first instance.
Second cassation
After consideration of a complaint or presentation in the court of cassation, the participants in the trial (the convicted person, his lawyer, the victim or the prosecutor) have the right to file a new cassation complaint with the Supreme Court of Russia, but in the order of selective cassation (when the judge first considers the validity of the filed complaint).
The ban on filing repeated cassation complaints and submissions established in the Code of Criminal Procedure, the plenum explained, cannot be considered as a basis “preventing the identification and elimination of errors that indicate the unfairness of the court’s decision.” If repeated cassation complaints reveal grounds for canceling or changing the appealed decision, such complaints are subject to consideration, the plenum explained.
In selective cassation there are also rules related to improving the situation of the defendant - the judge may decide to transfer cassation complaints, presentations with a criminal case for consideration in a court session of the cassation court on grounds not specified in the complaint or presentation.
In case of refusal to transfer the complaint for consideration by selective cassation, the decision on refusal “must respond to the arguments of the complaint, presentation and indicate the reasons for the decision made.”
Can the court refuse?
Sometimes applicants' complaints remain unanswered or are returned (in accordance with Article 323 of the Code of Civil Procedure of the Russian Federation). This is due to the fact that:
- The complaint does not comply with the rules for filing and registration;
You can read about how to file a complaint in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation in this article.
- The applicant did not confirm the fact of payment of the state fee;
- The applicant missed the appeal deadline and did not submit a request to extend the deadline.
Important
The court gives the applicant time to correct the mistakes made. If this does not happen, the complaint is returned.
Division of cassation
The Supreme Court explained that, in the procedure of complete cassation, cassation courts can review the sentences of magistrates, district and garrison military courts, and appeal decisions of republican, regional, regional and equivalent courts. In the Supreme Court of Russia, by way of a complete cassation, sentences or other final court decisions made at first instance by republican, regional, regional and equivalent courts can be reviewed (including in cases where they were not the subject of review on appeal), as well as sentences passed by the new courts of appeal (they will become the second instance for the courts of the constituent entities of the Russian Federation and district military courts).
By way of selective cassation, cassation courts will be able to review interim judicial decisions of magistrates, district and regional courts, as well as interim decisions of appellate courts.
In turn, the Supreme Court, through the procedure of selective cassation (second cassation), will be able to review decisions that have been reviewed in new cassation courts.
Right to cassation
The Plenum noted that not only prosecutors have the right to appeal to new cassation courts, but also accused persons, persons on trial, persons against whom criminal cases were terminated, or compulsory measures of a medical nature, or educational influence, or decisions on extradition to another country were imposed for criminal prosecution or execution of a sentence, as well as their representatives.
“Other persons are also given the right to appeal a court decision to the extent that their rights and legitimate interests are affected by this decision. These include persons who are not recognized as participants in the process in accordance with the procedure established by law, but who, based on their actual situation, are in need of judicial protection (for example, an applicant who has been refused to initiate a criminal case, a pledgor, a person whose property has been seized),” - explained the plenum.
Law enforcement officials, including interrogators, investigators, employees of bodies executing punishment, have the right to appeal in the cassation instance private rulings of the courts, on the basis of which disciplinary proceedings may be initiated against them for violations or other measures affecting the personal interests of this person may be applied. . “In other cases, cassation complaints of the inquiry officer, head of the inquiry body, investigator, head of the investigative body, representative of the institution or body executing punishment are returned without consideration,” the plenum noted.
In addition, the Commissioner for Human Rights in the Russian Federation has the right to apply for verification of a court decision that has entered into force.
Cassation in civil proceedings: clarifications of the Plenum of the Supreme Court
April 28, 2021
The Plenum of the Supreme Court continues to update its procedural clarifications. Now it is the turn of the civil cassation process. The Plenum taught how to complain to the right court, but left the participants in the process the opportunity for error. The consequences of missing the deadline for filing a complaint and the possibilities for its restoration are explained in detail.
Fresh clarifications of cassation proceedings under the Code of Civil Procedure will replace Resolution of the Plenum of December 11, 2012 No. 29 with similar, but now outdated, clarifications. True, the new resolution has not yet been adopted - following the discussion, Vyacheslav Lebedev decided to send it for revision.
Draft Resolution of the Plenum of the Supreme Court “On the application by courts of the norms of civil procedural legislation governing proceedings in the cassation court.”
Complain to the address
The Plenum of the Supreme Court reminds us of the obvious - a cassation appeal can be filed only after the case has been considered on appeal.
But in some cases, cassation will become the second instance. For example, when appealing a ruling on approval of a settlement agreement or when challenging a court order.
It is necessary to immediately appeal in cassation the rulings in cases of challenging the decision of the arbitration court, issuing a writ of execution for the forced execution of the arbitration court decision, or refusing to issue it.
We rely on others
Not only the direct participants in the dispute have the right to cassation appeal. The Plenum emphasizes: prosecutors and the Commissioner for Human Rights have the opportunity to appeal decisions even if they did not take part in the consideration of the case.
3. We make a mistake in choosing a court
A cassation appeal must be filed with the court of first instance. But if you submit the documents directly to the court of cassation, it will not return them, but will independently correct the applicant’s mistake and send the documents to the first instance.
If the cassation court has already accepted the complaint for proceedings, then the remaining participants in the process may not submit documents to the first instance, but immediately send them to the cassation court.
We'll appeal everything
A cassation appeal can be filed not only against the decision as a whole, but also against part of it. For example, you can appeal the distribution of court costs, the procedure and timing of execution of the decision, and other issues resolved by the lower court.
We count the deadlines
The three-month period for filing a cassation appeal must be counted from the day following the day of the adoption of the last appeal ruling in the case.
For example, if the decision of the appellate instance was adopted on June 2, 2022, then the last day for filing a cassation appeal or presentation will be considered September 2, 2022, the Plenum explains.
The appeal period is counted from the moment the operative part of the decision is announced. The date of production of the motivation does not affect the deadline.
The deadline for filing a cassation will not be considered missed if the applicant managed to take the complaint to the post office before 23:59 on the last day of the deadline. In this case, the date of filing the complaint is determined by the stamp on the envelope or the receipt of registered mail.
And if the applicant uploaded the complaint through the court’s website, then the time of its filing will be counted from the moment of “receipt in the relevant information system.”
Please restore the deadline
An application for restoration of the missed deadline for filing a cassation must be submitted simultaneously with the complaint. The judge of the cassation court will consider such an application alone, without holding a court hearing.
A request to restore the procedural deadline may also be contained directly in the cassation appeal, the Plenum suggests.
A judge can satisfy an application to restore the deadline only if circumstances that objectively exclude the possibility of filing a cassation appeal “occurred within a period no later than one year from the date the appealed court decision entered into legal force.”
7. Missing a deadline for a good reason
The Plenum includes as valid reasons for missing a deadline both “objective circumstances” such as emergencies and incidents, and circumstances related to the applicant’s personality: illness, death of a relative and “other situations requiring the personal participation of the applicant.”
The presence of the director of the organization on a business trip or on vacation is not recognized as a valid reason for being late in filing an appeal. The absence of a lawyer on the staff of the organization and the reference to the lack of money to pay for the assistance of a representative or to pay the state fee will also not help restore the term.
Taking into account the distance
The Court of Cassation has the right to leave the complaint without progress if it was filed in violation of the rules of Art. 378 Code of Civil Procedure. In this case, the court should take into account the time required to eliminate the shortcomings of the complaint, as well as the time for sending and delivering postal correspondence, based on the territorial remoteness of the persons participating in the case.
Don't worry about mistakes
The Plenum in its explanations stated that the court does not have the right to leave the complaint without progress due to shortcomings and errors in the preparation of the complaint. So grammatical or technical errors or typos will not interfere with the appeal.
It is not necessary to attach a power of attorney or a copy of a higher education diploma to the complaint. If such documents have already been included in the case file during consideration by lower authorities, then the cassation office uses them instead of leaving the complaint without progress.
We save time on appealing determinations
If a disputant appeals in cassation against any interim court ruling, for example, on the refusal to secure a claim, then the initial process will not be paused. The first instance should select only the necessary materials and send them to the cassation instead of sending the entire case.
We argue within the scope of the complaint
The Plenum reminds: the cassation court checks the legality only of those court decisions that are being appealed, and only in the part in which they are being appealed.
But there is an exception to this rule. If the appealed part of the decision is conditioned by another part of it, which is not appealed by the applicant, then this part of the decision is also subject to verification by a cassation court of general jurisdiction. In this case, the court must explain why it went beyond the arguments of the complaint.
Leaving the evidence at home
“Additional evidence is not accepted by the cassation court,” the Supreme Court states. Unlike an appeal, where options are possible, for cassation proceedings the Supreme Court leaves no loopholes - new evidence will not be considered in any case.
Changing the code
If, during preparation for the meeting, the cassation judges find out that the dispute between the parties needs to be considered in administrative proceedings, then they must make a decision to proceed to consideration according to the rules of the CAS.
We use clarifications of cassation
If the cassation court, following the results of consideration of the complaint, returns the case for a new consideration, it will also give the lower court instructions on how to apply the rules of substantive and procedural law. Such instructions are binding on the court, which will rehear the case.
We are trying to fix bugs
The cassation has the right, on its own initiative or at the request of the parties to the dispute, to correct clerical errors or obvious arithmetic errors made during the preparation of the cassation ruling: if they are obvious, their correction is beyond doubt and “does not change the meaning and essence of the cassation ruling.”
Such errors are corrected without a court hearing.
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SMS notifications
Since nine new district cassation courts and one cassation military court will be located in Saratov, Moscow, St. Petersburg, Krasnodar, Pyatigorsk, Samara, Chelyabinsk, Kemerovo and Vladivostok, and the military cassation court will be in Novosibirsk, the plenum of the Supreme Court recalled that it is necessary to send a notice to the participants in the process “permitted via SMS message if they agree to be notified in this way and if the facts of sending and delivery of the SMS message to the addressee are recorded.”
Consent to receive SMS notifications must be confirmed by a receipt, which must indicate information about the participant in the proceedings and the mobile phone number for sending SMS.
