1. The grounds for canceling or changing the verdict of the court of first instance and issuing a new verdict are:
1) discrepancy between the court’s conclusions set out in the verdict and the actual circumstances of the criminal case established by the appellate court - in cases provided for in Article 380 of this Code;
2) violation of the criminal procedural law - in cases provided for in Article 381 of this Code;
3) incorrect application of the criminal law - in cases provided for in Article 382 of this Code;
4) injustice of the imposed punishment - in cases provided for in Article 383 of this Code.
2. The verdict of the court of first instance may be changed in the direction of worsening the situation of the convicted person only upon the proposal of the prosecutor or a complaint from the victim, private prosecutor or their representatives.
Commentary on Article 369
1. The grounds for canceling or changing the verdict of the court of first instance are understood as a set of sufficient data indicating its illegality, groundlessness and (or) injustice.
2. The grounds for canceling or changing a sentence are the same. The same violations, depending on the specific circumstances of the criminal case, may indicate the need for both reversal and modification of the sentence.
An exception to this rule is a group of violations of the criminal procedure law, upon discovery of which the sentence is always subject to reversal.
3. The system of grounds for canceling or changing a sentence is practically the same for both appeal and cassation proceedings.
4. The grounds for reversing or changing the sentence set out in the commented article are detailed and specified in subsequent articles of the Code of Criminal Procedure (Articles 380 - 383).
5. The grounds for canceling or changing decisions of the court of first instance (magistrate) are the violations listed in paragraphs 1 - 4 of part 1 of the commented article.
6. One of the grounds for canceling or changing the verdict of the court of first instance and the decision is the discrepancy between the court’s conclusions set out in the verdict and the actual circumstances of the case established by the appellate court, in cases provided for in Art. 380 Code of Criminal Procedure.
6.1. The verdict is recognized as corresponding to the factual circumstances of the case if its conclusions:
a) are based on factual circumstances established by the evidence examined during the judicial investigation;
b) take into account all circumstances that may be significant for the content of the sentence;
c) explain the reasons why the court, in the presence of contradictory evidence, recognized some of them as reliable and rejected others;
d) do not contain significant contradictions.
6.2. The discrepancy between the court's conclusions and the actual circumstances of the case is due to errors in the assessment of evidence and the motivation of decisions.
6.3. The discrepancy between the court's conclusions and the actual circumstances of the case may be evidenced by the lack of assessment of the examined evidence.
6.4. Judicial practice recognizes the court's conclusions as inconsistent with the actual circumstances of the case if the verdict is based on: a) materials of the preliminary investigation that were not considered or confirmed at the court hearing; b) materials obtained in violation of the procedure for collecting evidence; c) evidence that is contradictory, refuted or not confirmed by other evidence, unmotivatedly rejected by the court; d) evidence, the reliability of which raises reasonable doubts; e) admission of guilt by the accused during the investigation process, which is not confirmed by other evidence, etc.
6.5. The motivation of the verdict is its integral property. The content of the unmotivated verdict in relation to the commented grounds is disclosed in paragraph 3 of Art. 380 Code of Criminal Procedure.
Unfortunately, the legislator did not formulate in the law the requirement for the motivation of court decisions.
6.6. The court's conclusions set out in various parts of the verdict must be consistent with each other and cannot contain contradictions.
7. Another basis for canceling or changing a sentence is a violation of the criminal procedural law in cases provided for in Art. 381 Code of Criminal Procedure.
7.1. The procedural law establishes a certain form of activity of the inquirer, investigator, prosecutor and court. Strict adherence to the procedural form provided for by law is an indispensable condition for establishing the truth in the case and the correct resolution of the criminal case.
7.2. Any violation of procedural law has a negative impact on the adoption of a judicial decision. However, not every one of them entails the reversal of the sentence. The sentence is subject to reversal if only the materiality of the violation of procedural law is established. These violations may affect the rights and legitimate interests of not only the suspect, accused, defendant, acquitted or convicted, their defenders and legal representatives, but also the victim, private prosecutor, civil plaintiff, civil defendant and their representatives.
7.3. Significant violations of the criminal procedural law include those violations that, by depriving or limiting the rights of participants in criminal proceedings guaranteed by the Code of Criminal Procedure, non-compliance with the legal procedure, or in any other way, influenced or could influence the decision of a legal, reasonable and fair sentence.
7.4. Violations that deprive or limit the right to defense are considered a significant violation of the law. Judicial practice includes, in particular:
1) failure to ensure the right of the accused to familiarize himself with all the materials of the case;
2) unjustified rejection of requests from participants in criminal proceedings to establish circumstances that are significant for the case;
3) violation of the rights of the accused during the appointment and conduct of a forensic examination;
4) failure to file charges;
5) failure to serve the accused with a copy of the indictment or indictment;
6) failure to give the defendant the last word;
7) failure to provide the accused and his defense attorney with a real opportunity to familiarize themselves with the case materials and prepare for their defense;
failure to ensure the participation of a defense attorney in cases where the participation of a defense attorney is mandatory by law;
9) violation of the rules on the national language of legal proceedings, etc.
7.5. In accordance with the requirements of Part 1 of Art. 381 of the Code of Criminal Procedure, judicial practice also regards as significant violations of procedural law:
1) satisfaction of the accused’s request to refuse a defense lawyer when, due to his condition, he could not provide his own defense;
2) failure to provide the accused with the right to refuse a defense lawyer at his own discretion;
3) violation of the established procedure for replacing the defense attorney chosen by the accused;
4) the court’s refusal to replace a defense lawyer with whose position in the case the defendant does not agree;
5) failure to provide participants in the process with the opportunity to familiarize themselves with the minutes of the court session;
6) shortcomings in the protocol of the court hearing, which made it impossible for a higher court to verify the legality, validity and fairness of the verdict;
7) the absence in the relevant documents of an indication of the criminal law in accordance with which the person is accused or brought to trial;
participation in a court hearing by a prosecutor in respect of whom a request for recusal was previously granted, etc.
7.6. Based on the provisions of Part 1 of Art. 381 of the Code of Criminal Procedure recognizes significant violations of the procedural law, which establishes the proper legal procedure. Judicial practice includes:
1) conducting an investigation based on materials separated from another case into separate proceedings against another person on a new charge without initiating a criminal case;
2) investigation by persons subject to recusal, etc.
7.7. Procedural violations are qualified as significant if:
1) the investigation was carried out without canceling the previously made decision to terminate the criminal case against the same person;
2) the accused is brought to trial under the law under which he was not charged;
3) the court charged the defendant with acts not specified in the decision to charge him as an accused;
4) the verdict does not indicate specific acts imputed to the defendant;
5) the verdict was based on assumptions;
6) the verdict was based on evidence obtained in violation of the law, etc.
7.8. In Part 2 of Art. 381 of the Code of Criminal Procedure contains an exhaustive list of violations of procedural law, the significance of which is established in advance by the legislator, and therefore they always entail the reversal of a court decision. Violations that lead to mandatory reversal of a sentence are called unconditional grounds, since a higher court is always obliged to reverse a sentence without assessing their impact on the legality, validity and fairness of the court decision.
8. One of the grounds for canceling or changing a sentence is the incorrect application of the criminal law in cases provided for in Art. 382 Code of Criminal Procedure.
8.1. An incorrect application of a criminal law is one that contradicts its official interpretation or the guiding clarifications of the Plenum of the Supreme Court of the Russian Federation.
8.2. Incorrect application of the law is considered to be both a violation of the requirements of the articles of the General Part of the Criminal Code, and the application of the wrong article or the wrong paragraph and (or) part of the article of the Special Part of the Criminal Code that were subject to application.
8.3. Incorrect application of the law also includes the imposition of a more severe punishment than provided for in the relevant article of the Special Part of the Criminal Code.
8.4. The use of the commented grounds in judicial practice is allowed only within the limits of the requirements of complaints or presentations only in relation to the persons indicated in them, and within the limits of the charge for which the defendant was found guilty or acquitted.
8.5. The courts must apply the ground in question taking into account the provisions of Art. Art. 360, 369 and 387 Code of Criminal Procedure.
9. The sentence may be canceled or changed due to the injustice of the imposed punishment in the cases provided for in Art. 383 Code of Criminal Procedure.
9.1. As an independent basis for canceling or changing a sentence, obvious injustice of punishment occurs when there are no grounds listed in paragraphs 1 - 3 of Art. 369 Code of Criminal Procedure.
9.2. The obvious injustice of punishment as a basis for canceling or changing a sentence has a specific content, which is based on the requirement of the law to individualize punishment.
9.3. When assigning a punishment, the court must take into account the severity of the crime, the personality of the defendant, mitigating and aggravating circumstances.
9.4. When assigning punishment, courts must proceed from the fact that punishment is not only punishment for the crime committed, but also has as its goals the re-education of convicts and the prevention of the commission of new crimes.
9.5. The law considers punishment unfair when the court imposes an excessively lenient punishment for a serious crime or an excessively severe punishment for a minor crime, as well as in all cases where the principle of individualization of punishment is violated.
9.6. The imposition of punishment within the limits provided for by the relevant article of the Special Part of the Criminal Code does not prevent, in the presence of certain circumstances, its recognition as unfair.
9.7. When rendering a sentence, the courts are obliged to indicate in it what specific circumstances indicating the nature and degree of social danger of the crime, as well as the identity of the perpetrator, were taken into account by the court when choosing a punishment. The reference in the verdict only to the fact that the punishment was imposed taking into account the personality of the defendant, mitigating and aggravating circumstances is insufficient.
10. The law excluded from the previously existing grounds for canceling or changing a sentence the one-sidedness or incompleteness of the inquiry, preliminary or judicial investigation. This approach is due to the following circumstances. Firstly, the strengthening of adversarial principles in criminal proceedings, due to which the return of the case to the prosecutor from the court of first instance is allowed if there are practically only violations of the procedural law (see commentary to Article 237). Secondly, by freeing the court from prosecutorial functions unusual for it, as a result of which responsibility for the results of the prosecution is placed in full on the criminal prosecution authorities.
11. Appeal proceedings are a new trial using, subject to certain requirements of procedural law, the results of the trial in the court of first instance. Taking into account these circumstances, the appellate court, having established violations of the law, must take measures to eliminate them at the court hearing, and based on the results of the trial, overturn the verdict of the first instance court and issue a new verdict.
12. Appeal proceedings allow for a change in the verdict of the court of first instance in the direction of worsening the situation of the convicted person only upon the proposal of the prosecutor or the complaint of the victim, private prosecutor or their representatives.
12.1. The presentation or complaint of these participants in the process must contain a request to the court to apply the law for a more serious crime or a more severe, severe punishment.
12.2. In the absence of these requests, the presence of representations or complaints from the listed persons does not entail a worsening of the situation of the convicted person.
12.3. Complaints from other participants in the process about the leniency of the sentence or the application of the law on a more serious crime (other convicts, civil plaintiffs) are not a reason to consider the issue of worsening the situation of the convicted person.
Procedure for appealing a verdict
There are several instances of appealing a verdict (appeal, cassation, supervision), and all of them must be passed one by one (also read about the period for appealing a verdict at the link).
Appeal against a court verdict:
The appeal procedure for appealing a verdict consists of the following requirements for this procedure: in the appeal procedure, the verdict of the court of first instance, which has not entered into legal force, is appealed. This complaint is filed by a person participating in criminal proceedings, as well as by another person, to the extent that the appealed decision affects his interests. The appeal is filed with the higher court, through the court that made the appealed decision, within ten days from the date of the verdict. It is also necessary to comply with the requirements for the appeal itself, which are enshrined in Article 389.6 of the Code of Criminal Procedure of the Russian Federation. The time frame for consideration of appeals ranges from 15 to 45 days, it depends on which court acts as the court of appeal.
IMPORTANT: watch the video on the topic of appealing the verdict right now
Cassation appeal against the court verdict:
The next method of review by the court of first instance, after appeal consideration, is a cassation appeal of the verdict; the procedure for appealing the court's verdict in this instance is also provided for by law.
Significant differences from an appeal against a verdict are the following points:
- a court verdict that has already entered into legal force is appealed in cassation proceedings;
- the period for appealing a verdict in cassation is not limited by current legislation;
- this complaint must be submitted directly to the court considering the cassation appeal;
- appealing a verdict in cassation imperatively establishes the requirement for the appendices of the complaint, which must be certified copies of court decisions.
The period for consideration of a cassation appeal is from 1 to two months, depending on whether the court has requested the materials of the criminal case. If the cassation instance accepts the complaint and schedules a court hearing, then the persons participating in the case are notified no later than 14 days before the date of the court hearing.
Appealing the verdict to the Supreme Court:
The final stage of appealing a court verdict is an appeal to the Presidium of the Supreme Court of the Russian Federation in the manner of supervision. The procedure for appealing a sentence that has entered into legal force is very similar to cassation appeal:
- a court verdict that has already entered into legal force is being appealed;
- the legislator has not established a deadline for filing a complaint in the supervisory procedure;
- a supervisory complaint is filed directly with the Presidium of the Supreme Court of the Russian Federation;
- Supervisory complaints are accompanied by certified copies of court decisions that were made by courts in previous instances;
- The period for consideration is similar to the period for cassation proceedings.
Of course, within the framework of this article we were not able to fully disclose for you all the subtleties and pitfalls regarding the issue of the procedure for appealing a verdict in a criminal case. The lawyers of our Law Office can provide you with more detailed information. Sign up for a consultation right now, and we will solve your problem within the framework of protecting the rights of convicted persons in a qualified and timely manner.
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How to win an appeal in a criminal case?
Changing a court decision is always a very difficult task. As a rule, acts of the appellate court contain a repeating set of identical wording, that the arguments did not find adequate confirmation, that the court correctly examined all the materials of the case and came to reasonable conclusions.
In order to achieve a real review of the case, and not a formal one, you should responsibly prepare both for writing a complaint and for the trial itself. One of the main aspects of filing a complaint, in addition to observing all procedural nuances, is the high-quality preparation of arguments. It is important to refer to the laws, but not to make the complaint a body of law. Judges are overloaded with work, so it is better to make the text of the complaint as concise as possible, but succinct and specific. It is necessary to ensure that they want to consider the complaint or cannot fail to consider it.
In this regard, it is necessary to pay special attention to the preparation of the appeal, and be sure to use the help of a lawyer. Without a qualified specialist, the chances of winning an appeal are not great.
Both the convicted party and the injured party can file for review of the sentence. The injured party may ask to increase the prison term, to change the article to an article with a more serious punishment, to increase the recovery of material damage, and so on. Therefore, you need to be prepared to review the case equally well, both for your own complaint and for the complaint of the other party.
The appeal process is complex and has a number of specific features. Representing interests in such a process is labor-intensive work that requires not only knowledge of modern legislation, but also established judicial practice for a specific category of cases.
How an experienced lawyer can help, how he works
An ordinary citizen cannot appeal a court verdict in a criminal case, because formalism reigns everywhere, which means “working on paper.”
For the sake of investigator statistics, courts sometimes make decisions that imply a more severe punishment than may be the case. It's all about the solidarity of these authorities. A lawyer is a disinterested person and therefore always acts strictly in the interests of his client. What is he doing?
- Examines procedural documents in detail.
- Builds an appeal strategy, looking for compelling arguments to have the verdict overturned.
- Collects facts confirming the need to reconsider the case.
Responsible for the implementation of procedural actions, representing the interests of the client in the courts.
Pros and cons of appealing a court verdict in a criminal case
In order to decide whether to appeal a court verdict, you need to weigh all the positive and negative consequences that appealing the verdict may lead to.
Advantages for the victim in the case
- one of the most important advantages of filing a complaint is the absence of disadvantages;
- the court decision regarding the civil claim and the amount recovered may be changed in favor of an increase (if it is proven on your part that the court did not take into account certain circumstances that affect the amount of your claims);
- you restore your constitutional right to access to justice;
- the opportunity to achieve justice;
- the sentence may be changed in favor of worsening the situation of the convicted person.
Disadvantages for the victim in the case:
- as mentioned earlier, there are practically no downsides, except perhaps the time you spent on appealing.
Advantages for the person convicted in the case:
- the sentence cannot be increased based on his complaint (this means that the punishment cannot be imposed more than that specified in the court verdict);
- the opportunity to achieve a more lenient sentence (often courts do not fully take into account all the mitigating circumstances that exist, forget about confession, and do not consider the issue of whether there are grounds for assigning a suspended sentence);
- access to justice and the likelihood of an unbiased and comprehensive consideration of the case;
- the possibility of restoring an honest name and rehabilitation in the eyes of society (judicial practice in criminal cases has cases where even a conviction in a case was overturned and the case ended in the acquittal of the defendant, which indicates the need to realize all chances in the fight for justice).
- Find out more by consulting a criminal lawyer
Disadvantages for the person convicted in the case:
- One very important disadvantage, as for the victim, is the time to appeal; for the convicted person, this disadvantage is most noticeable, since he already has to serve his sentence.
- You should also pay very close attention to the possible reclassification of the crime to a more serious offense; this point should be discussed with our criminal lawyer at the meeting, since the material in the article cannot reveal all the pitfalls in writing without analyzing your situation.
Speaking of time, let’s pay attention to the next block of our article - this is the deadline for filing a complaint.
