Appellate instance
In accordance with Article 389.1 of the Criminal Procedure Code of the Russian Federation, the right to appeal a court decision belongs to the convicted, acquitted, their defenders and legal representatives, the state prosecutor and (or) a higher prosecutor, the victim, the private prosecutor, their legal representatives and representatives, as well as others persons to the extent that the appealed court decision affects their rights and legitimate interests. A civil plaintiff, civil defendant or their legal representatives and representatives have the right to appeal a court decision insofar as it relates to the civil claim.
In accordance with Article 389.2 of the Code of Criminal Procedure of the Russian Federation, decisions of the court of first instance that have not entered into legal force can be appealed by the parties on appeal. Rulings or decisions on the procedure for examining evidence, on satisfying or rejecting motions of participants in the trial and other court decisions made during the trial are appealed on appeal simultaneously with the appeal of the final court decision in the case, with the exception of court decisions specified in Part 3 Art. 389.2 of the Code of Criminal Procedure of the Russian Federation.
Before the final court decision is made, the magistrate's decisions to return the application to the person who filed it or to refuse to accept the application for proceedings are subject to appeal; court decisions or rulings on the selection of a preventive measure or on the extension of its validity, on the placement of a person in a medical organization providing medical care in an inpatient setting, or in a medical organization providing psychiatric care in an inpatient setting, for conducting a forensic examination, on the seizure of property, on establishing or extending the period of arrest imposed on property, on suspending a criminal case, on transferring a criminal case to jurisdiction or on changing the jurisdiction of a criminal case, on returning a criminal case to the prosecutor; other court decisions affecting the rights of citizens to access justice and to consider a case within a reasonable time and preventing further progress of the case, as well as private rulings or decisions. (Part 3 of Article 389.2 of the Code of Criminal Procedure of the Russian Federation)
An appeal against a ruling or ruling made during a trial does not suspend the trial.
According to Article 389.3 of the Code of Criminal Procedure of the Russian Federation, the procedure for filing an appeal or presentation is as follows:
1. Appeals and representations are brought through the court that passed the sentence or issued another appealed court decision.
2. Appeals and submissions are submitted:
1) in response to a verdict or other decision of a magistrate - to the district court;
2) for a verdict or other decision of a district court, garrison military court - to the judicial collegium for criminal cases of the supreme court of the republic, regional or regional court, court of a federal city, court of an autonomous region, court of an autonomous district, district (naval) military court;
3) for an interim decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court - to the judicial panel for criminal cases of the corresponding court;
4) for a verdict or other final decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court - respectively, to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation;
5) against the decision of a judge of the Supreme Court of the Russian Federation - to the Appeal Board of the Supreme Court of the Russian Federation.
According to Article 389.4 of the Code of Criminal Procedure of the Russian Federation, appeals, submissions against a sentence or other decision of the court of first instance can be filed within 10 days from the date of the verdict or other court decision, and by a convicted person in custody - within the same period from the date of delivery to him copies of the verdict, ruling, resolution.
During the period established for appealing a court decision, the criminal case cannot be recalled from the court.
Appeals or submissions submitted after missing the deadline are left without consideration.
The procedure for restoring the period for appealing judicial acts issued as part of the consideration of a criminal case is given in Art. 389.5 Code of Criminal Procedure of the Russian Federation.
Requirements for the content of an appeal or presentation are given in Art. 389.6 Code of Criminal Procedure of the Russian Federation.
published: 12/26/2016 14:52:00
Appeal by way of supervision
The last way to change a sentence with which a party does not agree is to appeal it to the Supreme Court. In essence, a supervisory appeal is similar to a cassation appeal:
- the subject of the appeal is a sentence that has entered into legal force;
- the period for writing a complaint is not limited by law;
- the complaint must be sent to the Presidium of the RF Armed Forces, which is authorized to consider it;
- decisions of previous judicial instances are a mandatory appendix to a supervisory appeal, since it will not be possible to appeal a court verdict in a criminal case in a supervisory procedure without an appeal and cassation;
- The deadline for making a final decision on the complaint is the same as in cassation.
Any questions you may have can be asked in the comments to the article.
Feedback on the submitted appeal
Regardless of the number of participants in the trial, there are only two parties: the one in whose favor the decision was made, and the second, which failed to achieve its goals. If the other party still has any complaints or claims that, in their opinion, could tip the scales in the opposite direction, an appeal may be filed.
The civil legislation of the Russian Federation clearly stipulates that the person in whose favor the judgment was passed may object to the appeal filed by the other party. Such a review should contain:
- Arguments of the party considering the impossibility of appealing the verdict;
- Documents that were not included in the meeting, but confirm the correctness of the winning party.
It should be understood that the person who filed the appeal also provided some facts on his part, and therefore everything should be maximally reasoned and supported by facts.
Sometimes the person who wins the trial receives a different type of notification: an official document stating that the other party to the process has sent a request for the possibility of extending the deadline for filing an appeal. In this case, you can write a review against the restoration of the deadline, or you can not interfere with the extension of the deadline, but file an objection directly to the appeal.
Errors in cassation
Lawyers make six common mistakes. The first three were discussed in the section on appeal. Three more errors are typical only for cassation.
The arguments of the complaint go beyond the scope of cassation consideration
In 99 percent of cases when cassation upholds decisions of lower courts, it indicates that the arguments of the complaint are aimed at reassessing the factual circumstances of the case and evidence. And this is not within the scope of consideration of the case in cassation. Cassation only checks whether the courts correctly applied the rules of substantive and procedural law.
The reason for this practice is that lawyers often copy the text of the appeal into the cassation complaint. For example, the complaint writes that “the conclusions of the courts do not correspond to the factual circumstances and the evidence presented in the case.”
If you want to present new evidence or perform procedural actions that are possible only in the first instance, look for unconditional grounds for reversing the decision.
In your cassation appeal, refer specifically to errors in the application of the rules - these are your main arguments. All arguments that are related to non-research or incorrect assessment of evidence are given only to confirm the court’s errors.
The arguments of the complaint do not correspond to the pleading purpose
The goal of the cassator is to achieve the reversal of judicial acts with which he does not agree. To do this, he can ask the cassation court, for example, to adopt a new judicial act in the case, to send the case for a new trial, or to leave in force one of the decisions or resolutions previously adopted in the case. Sometimes cassation officers ask to adopt a new act in the case - this is the most advantageous for the party, regardless of the circumstances of the case and the arguments that it brings.
The cassation court will not be able to adopt a new act, since to do this it will have to examine and evaluate the evidence, and the cassation court does not have the right to do this. Such a discrepancy between the request and the arguments reduces the credibility of the complaint and often raises questions and criticism in the court of cassation.
Study the case materials and select possible arguments for cassation. After this, decide how to formulate the pleading part of the cassation appeal.
Additional documents submitted too late
Lawyers often file position papers too late and draft them incorrectly. Courts usually accept documents directly at the hearing, but not cassation documents. If you submit a response to the complaint, additions, or written explanations directly to the hearing, the cassation office may reject them. For example, the court indicated that written explanations were received on the eve of the court hearing and refused to include them in the case materials.
Consider the peculiarities of the court. For example, the Arbitration Court of the Moscow District may not accept written explanations, since it considers them new evidence that the cassation cannot accept. Therefore, format additional explanations as the text of a speech - the courts usually accept it.
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Filing an objection: right or obligation?
Please note: after the second party submits the appeal process, you are asked to write an objection, and are not forced to do so. In other words, if you are sure that you are right and that an appeal will not help the other party to insist on its position, you can calmly wait and not take any action.
However, lawyers who professionally perform their duties and have extensive experience in conducting legal cases still recommend writing such a review. When the appeal itself is considered, then if there is an objection to it, it will be much easier for the executive bodies to form their opinion about the problem presented and compare all the facts in the case.
Rules for writing an objection
An example of exactly how to write a response to a filed appeal can be found in the legal literature. It is not at all necessary to follow the example found, since the Law does not specify a single form in which an objection must be drawn up. The main thing is to ensure that the required elements are present:
- Name of the court.
- Details of the applicant.
- A court decision that is being appealed.
- Details of the case in which the verdict was passed.
- The name of the document itself.
- A reasoned explanation of why the court decision does not make sense to review, and the appeal filed should be rejected.
- Additional documents related to the case (optional).
- Date of filing the objection.
- Signature of the person filing the objection and its transcript.
The first 4 items from the list are located in the upper right corner of the sheet, the name is in the center, then the text across the entire width of the sheet and at the end - the date on the left, signature with a transcript on the right.
When describing the situation, you need to do it in such a way that the court representative has an opinion of the applicant as a legally competent person. An additional advantage will be the mention of norms, articles of laws, etc.
