Filing a cassation appeal in a criminal case, deadlines, process and decision

The legal term “Appeal” means an appeal against judicial decisions that have not entered into legal force in civil or criminal proceedings.

The appeal can be complete or incomplete. A full appeal involves a complete review of the entire case from the beginning, in accordance with the rules provided for trial courts.

In case of an incomplete appeal, the case is reviewed solely on the basis of the arguments of the appeal.

Cassation (cassation appeal) is understood as an appeal, protest or reversal of a court verdict passed in a higher court.

Who can initiate a cassation appeal and on what grounds?

Important. Cassation is an important stage in appealing court decisions.

According to paragraph 1 of Art. 401.2 of the Code of Criminal Procedure of the Russian Federation the following have the right to appeal a procedural act:

  • the convicted person himself, his representative;
  • justified, his defender;
  • a citizen, if the case against him was terminated due to the expiration of the statute of limitations for committing a crime, as well as his defense lawyer;
  • victim, representative of a minor victim, legal representative;
  • a citizen against whom educational or medical measures have been taken;
  • private prosecutors;
  • civil plaintiffs and defendants.

In addition to the indicated persons, the following may apply to initiate cassation proceedings in the case:

  • Prosecutor General of the Russian Federation or his deputy;
  • military prosecutor;
  • Prosecutor of a constituent entity of the Russian Federation.

The exhaustive grounds for filing a cassation appeal are indicated in Art. 389.17, 401.1, 401.15 of the Code of Criminal Procedure of the Russian Federation, additional explanations are given in paragraph 10 of Resolution No. 2 “On the application of the norms of Chapter 47.1 of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of cassation.”

Important. The main task of cassation is to check the legality of the sentence passed and to identify violations of the norms of the Code of Criminal Procedure committed by lower courts.

A study and assessment of evidence is carried out, recognizing them as admissible or unacceptable, as well as identifying errors in establishing the circumstances of the case that significantly influenced the decision.

Complaints about the discrepancy between the imposed punishment and the gravity of the crime are also subject to verification.

In accordance with Art. 401.15 of the Code of Criminal Procedure of the Russian Federation, the sentence may be changed or canceled if the following facts are established in cassation:

  • deprivation of rights of participants in the process or restrictions thereon;
  • violation of the established procedure in court;
  • other violations resulting in distortion of the circumstances of the case.

According to Art. 389.17 of the Code of Criminal Procedure of the Russian Federation, you can file a complaint with the cassation in cases where:

  • the appeal made a decision in the absence of the convicted person or his defense lawyer;
  • there is no protocol of the meeting or it was drawn up with significant violations (for example, the name of the assistant judge is not indicated, there are no signatures of the persons who compiled the document);
  • the defendant was forced to testify in a language he does not speak well;
  • one of the parties was deprived of the right to participate in the debate;
  • the defendant was deprived of the right to say the last word;
  • the verdict is based on inadmissible evidence;
  • The judge did not go into the deliberation room when making his decision.

Attention! The cassation court has the right to go beyond the complaint and check all the circumstances of the criminal case if this leads to a significant improvement in the situation of the convicted person.

Cassation appeal: general concepts and grounds for appeal

The purpose of a cassation appeal is to prove the presence of violations regarding the application of legislative norms during the consideration of a criminal case, to challenge the legality of the judicial conclusion. That is, in this instance it is legal issues that are considered, and not the actual circumstances of the incident. In what cases will a complaint be considered?

  1. Violation of criminal procedure law when assessing evidence.
  2. Incorrect interpretation of legislative norms, application of an inappropriate article of the code.
  3. Use of inadmissible evidence during the trial.
  4. There is a clear discrepancy between the evidence base and the judicial conclusion, contradictions in the testimony of witnesses.
  5. Excessive severity or leniency of a decision, which was made due to incorrect application of the norms of the Criminal Code of the Russian Federation (Criminal Code of the Russian Federation).
  6. Violation of the rights of one of the participants in the process.

All arguments that should not be considered by the cassation instance remain unchecked. The judge reports this in his ruling.

One of the important conditions when filing an application is the correct presentation of the complaint and a reasoned indication of violations committed during the consideration of the criminal case. The applicant must clearly indicate which norms of procedural law that influenced the verdict were not observed by lower authorities.

There are significant differences between the cassation and appeal procedures. Until 2013, uniform deadlines for filing applications were established for them - no later than 10 days after the judge’s verdict.

Today this rule applies only to appeal. The cassation process involves consideration of the case using materials that the court previously relied on.

During the consideration of the appeal, new circumstances and evidence in criminal proceedings may be taken into account. That is, in this case, the appeal occurs regardless of past results.

Deadlines for appeal

Previously, it was possible to file a complaint within a year from the date of the verdict. In 2014, the time limit was abolished by Federal Law No. 518-FZ dated December 31, 2014, “On amendments to Articles 401.2 and 412.2 of the Criminal Procedure Code of the Russian Federation and the recognition as invalid of certain provisions of legislative acts of the Russian Federation.”

Thus, the Code of Criminal Procedure does not limit the time limits for filing complaints in criminal cases. Since 2015, the convicted person and his defense attorneys can request a review after several years.

From the point of view of the European Court of Human Rights, the duration of the threat of criminal prosecution should be limited. It is unacceptable when the sentence against a convicted person, who has already served most of the sentence, is classified under another, more serious article, and the punishment is significantly increased.

It is also contrary to the norms of international law to prosecute a previously acquitted citizen several years after the decision was made.

Art. 401.6 of the Code of Criminal Procedure contains an indication that the prosecution, victims and their legal representatives may file a cassation appeal within 1 year if it contains the following requirements:

  • reclassify the crime under a more serious article;
  • increase sentences;
  • change suspended sentences for serving sentences in a colony;
  • refuse to commute a sentence due to pregnancy, disability, or the presence of minor children or dependents;
  • cancel the decision to terminate criminal prosecution;
  • overturn the acquittal and convict.

Important! After 1 year, submitted complaints will be left without consideration, requests to restore the missed deadline will be left unsatisfied.

More information about the deadlines for filing and consideration of a cassation appeal can be found here.

Cassation appeal: how to draw it up correctly

In order for a cassation appeal to be accepted, it must be drafted correctly, including the following information:

  • Name of the court where you are submitting the document;
  • Position;
  • The name of the person submitting the document, as well as his address;
  • The status of other persons in the procedural case, as well as their address;
  • What is the name of the document - enter “Cassation Appeal”;
  • Court details. decisions that are appealed against the document in question;
  • Reasons why the previous decision needs to be appealed and the immediate requirement to do so;
  • List of documents that are attached to the complaint;
  • The date on which the document is filed and the signature of the person who filed the document in question.

The cassation court can cancel the decision or change it, but it is very important that everything is formalized correctly. For example, photocopies of required documents will not be accepted.

Right to go to court

The right to go to court if you disagree with the decision of the appellate instance is provided for in Art. 401.2 Code of Criminal Procedure. All persons participating in the case can file a complaint : the victim, the convicted person, the acquitted person, their legal representatives, the prosecution represented by the prosecutor or his deputy.

In addition to these parties, other persons whose interests are affected by the decision have this right. As such, the list of “other persons” who have the right to challenge a court decision in cassation is not limited to the current Code of Criminal Procedure of the Russian Federation or other regulations.

For example, if during the proceedings the judge made a decision to suspend the case, to return it to the court of first instance or to the prosecutor's office, or to terminate the criminal prosecution, all those affected by this decision received the right to challenge it in a higher authority.

The following may act as other persons:

  • citizens who were refused to initiate criminal proceedings;
  • pledgors whose property was seized as part of a criminal case;
  • Commissioner for Human Rights;
  • as well as those who were not recognized as participants in the process, but need judicial protection.

Attention! The plaintiff in a civil claim filed during the consideration of a criminal case also has the right to appeal the decision to the cassation court in criminal cases, but within the framework of the stated requirements.

Cassation appeal in a criminal case - deadlines for filing

So, we have already found out that after a verdict is passed by the court of first instance and it is appealed in an appeal (court of second instance), the next stage of appeal is cassation. Third-instance judicial proceedings (cassation) include cases whose decisions have already acquired legal force.

According to the Federal Law of the Russian Federation No. 433 of December 2010, Federal Law No. 294 (November 2011) and Federal Law No. 54 (June 2012), regulating changes regarding procedural deadlines in the Code of Criminal Procedure of the Russian Federation, the period for filing a cassation appeal has become unlimited (Part 3 401.2 of the Code of Criminal Procedure has become invalid ).

The deadline for submitting petitions to the cassation on grounds that led to a deterioration in the situation of the convicted person is 1 year (this period cannot be restored).

The procedure for filing a cassation appeal in a criminal case

The complaint is submitted directly to the judicial authority where the case will be heard:

  • Decisions of courts of first and second instance (district courts, city, regional, regional, courts of republics, autonomies, similarly military, garrison, naval courts), which have already entered into force, will be considered in cassation proceedings by the presidiums of the courts corresponding to the region of residence of the petitioner . Example: if a case was considered in the second instance by a regional court, then a cassation petition must be submitted to its presidium.
  • If the consideration of the claim in the first instance took place in the presidium of one of the courts mentioned above, and an appeal petition was not filed in this case with the RF Armed Forces, then a cassation appeal is submitted to the Collegium for Criminal Cases of the RF Armed Forces or the Collegium of the RF Armed Forces for Military Affairs (in the case of consideration of the case court of first instance, presidium of the district/naval court).

Contents of the cassation appeal

Based on Art. 401.4 of the Code of Criminal Procedure of the Russian Federation, cassation appeals in criminal cases (a sample of such a petition can be found on the Internet) are subject to consideration by the judicial authorities only when their content meets the established requirements:

  • Full name of the cassation judicial body where the complaint will be filed;
  • FULL NAME. the applicant, his address, place of residence, procedural status;
  • Names of the judicial bodies of the first and second instances, data on the decisions they made (date of sentencing, case number, summary of decisions);
  • Review of errors made by the courts of first and second instance regarding the application and interpretation of procedural law, providing arguments in favor of the applicant, references to certain rules and rights that were violated;
  • The applicant’s request (cancellation of the decision of the previous court, referral for retrial of the case);
  • If the court decision has already been appealed earlier in cassation, indicate the decision made in the process;
  • List of documents with which the complaint will be supplemented;
  • Signature of the applicant or his representative. If the complaint is not filed in person, a power of attorney, warrant or any document certifying the authority of the plaintiff’s representative is required.

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What decisions can be made on cassation appeals?

  • The complaint may be left without satisfaction. The reasons for the refusal will be indicated;
  • Cancellation of a previously passed sentence , closure of a criminal case;
  • Cancellation of a previously passed sentence, a decision to begin a retrial;
  • Change of a previously made decision: degree of punishment, change of correctional institution, etc.

In judicial practice, there are cases of returning a cassation appeal to the sender within ten days after filing a petition (based on Article 401.5 of the Code of Criminal Procedure):

  • The complaint was drawn up with violations (Article 401.4 of the Code of Criminal Procedure);
  • The applicant was a citizen who did not have the right to appeal to the cassation court;
  • Levels of jurisdiction are violated;
  • The applicant himself asked to stop the proceedings and withdraw his complaint.

It is important to know: a repeated appeal with the same cassation appeal to the same judicial body of the cassation instance is unacceptable (Article 401.17 of the Code of Criminal Procedure of the Russian Federation).

Is it possible to appeal a cassation court decision?

The law, namely Article 47.1 of the Code of Criminal Procedure of the Russian Federation, allows for the possibility of appealing a cassation decision. But this is permissible only in the case of the “first cassation”, which was considered by the presidium of the appellate court.

In the case where the decision of the Supreme Court does not cancel the sentence, but also confirms the legality of the decisions made by the lower courts,
the petitioner is deprived of the right to change the existing sentence .
In this case, the convicted person can only submit a petition for pardon addressed to the chairman of the commission under the President of the Russian Federation. A petition for pardon is drawn up according to a special model and, unlike cassation, the filing of such a petition presupposes an admission of guilt by the convicted person. It is not allowed to challenge the actions of judges in such a petition. A cassation appeal is the most difficult to file , since the judge will make all decisions based only on the text of the petition itself. Therefore, the further course of the case will depend on the correctness of its completion. To avoid mistakes when drawing up a petition, it would be better to contact a lawyer.

Design and content

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

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

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

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

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

8 (800) 350-14-90

Submission order

Like any other cassation appeal, you can only file it once. In order for it not to be rejected, it is necessary to comply with a number of important rules provided for in Art. 401.3 Code of Criminal Procedure of the Russian Federation.

Where is it served?

In accordance with paragraphs 1-4 of Part 1 of Art. 401.3 Code of Criminal Procedure of the Russian Federation:

  1. Resolution, verdict of the magistrate court; The verdict, ruling, decision of a district court, 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, as well as a court of appeal of general jurisdiction are appealed to the Judicial Collegium for Criminal Cases of the corresponding cassation court of general jurisdiction.
  2. All decisions specified in paragraph 1, previously considered in cassation courts of general jurisdiction, are further appealed to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation.
  3. Sentences and rulings of garrison military courts and appellate courts are appealed to the military court of cassation, then to the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation.

Unlike an appeal, a cassation appeal is filed directly with the office of the court that will hear the case (read about the intricacies of filing a cassation appeal against an appeal ruling here).

Government duty

Important. According to current legislation, state fees are not charged to citizens or organizations appealing court decisions in criminal cases.

This rule applies to the appellate and cassation instances.

According to subparagraph 8 of Part 1 of Art. 333.36 of the Tax Code of the Russian Federation also exempts individuals who are recognized as victims in criminal cases and who dispute the amount of compensation for lost property or moral damage caused by a crime from paying the fee.

Terms of consideration

The Code of Criminal Procedure limits the time allotted for the consideration of received complaints by the cassation. Yes, Art. 401.13 of the Code of Criminal Procedure states that courts of general jurisdiction are required to resolve the case within two months from the date of the decision to initiate proceedings in the case. For the Supreme Court, the period has been increased to three months.

More details about the terms of consideration, as well as filing a cassation, are discussed in this article.

Judge's decision to send the paper to the collegium or refusal

After receiving the complaint, the judge examines the arguments referred to by the cassator and gets acquainted with the documents attached to it. If the violations committed during the consideration of the case are significant, the judge has the right to request the case materials for detailed study and making a decision. After the arguments of the complaint are verified, the judge makes a decision:

  • about refusal of satisfaction for lack of grounds for review of the sentence;
  • on transferring the case to proceedings and scheduling hearings.

Important! The decision is made within one month from the receipt of the complaint or two months if the case materials were requested for study from the court of first instance. If the case materials are received along with the complaint, the decision is made within 20 days.

The resolution must comply with the requirements of Art. 401.11 Code of Criminal Procedure and contain information about:

  • date of document preparation;
  • Full name and position of the judge who made the decision;
  • the reasons for which the decision was made to refuse or to initiate proceedings;
  • appealed judicial acts;
  • the person whose complaint or presentation was considered;
  • the method of participation in the meeting of a person in prison.

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

8 (800) 350-14-90

We invite you to familiarize yourself with the materials of our experts on the grounds, rules and procedure for filing cassation complaints in a civil case and in an arbitration court.

Notification of Participating Parties

After a ruling has been issued to initiate cassation proceedings in the case, a written notification is sent to all interested parties with a copy of the ruling, a cassation appeal, as well as a notice of the place, date and time of consideration of the case.

The courts are obliged to fulfill the requirement of Part 2 of Art. 401.12, namely, to inform all parties to the process at least 14 days before the date of the hearing. If the parties did not appear to participate in the trial or did not submit motions for adjournment for a valid reason, the court may consider the case without their participation.

Revision process

Important! Consideration of a case in the absence of a representative of the prosecutor's office is unacceptable and is a significant violation.

Before considering the complaint, the presiding judge is obliged to find out who is present in court, whether the parties have any challenges or motions on the merits of the case. The decision to satisfy petitions is made by judges collegially , through a meeting in the courtroom.

After the court fulfilled the requirements of Part 2 of Art. 389.13 of the Code of Criminal Procedure of the Russian Federation, the judge, acting as a rapporteur, reads out the complaint and the ruling, sets out the circumstances of the case and the essence of previously made decisions. After the documents are read out, other judges can ask questions to the speaker and make comments.

All those present can speak during the court hearing, the first word is given to the one who filed the complaint, then to everyone else in the manner prescribed by law. After hearing the parties, the judges can ask clarifying questions, study the protocols, consider motions, and read out the case materials. The judges then retire to the deliberation room to make a decision.

Cassation in criminal proceedings

First, let’s establish the very definition of cassation.

In criminal proceedings, a cassation appeal is a review of the legality of decisions and rulings of lower courts (first or second), if this decision is unfair or violates the legitimate interests/rights of an individual. Proceedings on such a petition and the rules for filing it are regulated by the Code of Criminal Procedure of the Russian Federation, namely:

  • Chapter 47.1 of the Code of Criminal Procedure of the Russian Federation;
  • Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 dated January 28, 2014. of the year.

Cassation and appeal - what are the differences?

Until January 2013, uniform deadlines were established for appeal and cassation, namely: no more than 10 days were allotted for appealing the verdict after the court decision was made . An appeal is filed against a verdict that has not entered into force. The main differences between these appeals, cassation and appeal are:

  • When considering an appeal, the court may take into account newly discovered circumstances of the case and evidence. That is, when appealing a decision, the trial will proceed regardless of previous considerations. Therefore, the decision of the court of appeal can either soften or tighten the sentence that is being appealed. At the appeal stage, there are very strict deadlines for filing petitions - petitions submitted no later than 10 days from the date of announcement of the court decision are accepted for consideration (Part 1 389.4 of the Code of Criminal Procedure of the Russian Federation). The court will not consider a complaint filed outside the deadline (Part 3 389.4 of the Code of Criminal Procedure);
  • During the cassation process, exclusively the same materials of the case are considered, which were relied upon by the court whose decision is being appealed.

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Cassation and supervisory appeal - their differences

A supervisory appeal is an appeal against a sentence that has already entered into force , passed by a court of a lower level.

Not so long ago, such a complaint did not have a filing deadline - this was its main difference from an appeal and cassation, i.e. it could be filed absolutely at any time: after 5 years, and after 10, and even when the convict has already served his sentence.

Now it is allowed to submit it only within one year , after the court verdict comes into force, regardless of the location of the convicted person. Judicial proceedings by way of supervision may also take into account newly discovered circumstances of the case. One month is allotted for consideration of such a petition after its receipt by the court.

When is a cassation petition filed?

Since the beginning of 2013, after changes came into force in the legislation regarding the procedure for appealing against sentences, a cassation petition is now filed against a court decision that has entered into force. Until January 2013, such a petition was filed only against a court ruling that had not entered into force. The opportunity to file a complaint took place only within 10 days.

In order for a cassation appeal to give a positive result and lead to a review of the case, convincing reasons . There are not many options when it is allowed to file a complaint to a higher court:

  • If there are obvious inconsistencies between the judicial conclusion specified in the verdict and the evidence base. In other words, when the guilt of the defendant has not been proven, or the testimony of witnesses has obvious contradictions;
  • There were violations in compliance with the norms of criminal procedure law - the rights of the defendant or other participants in the process were violated;
  • Incorrect interpretation of the law - in court another article of the law, or its paragraph, was applied, and therefore a more severe punishment was imposed than required according to the Code of Criminal Procedure;
  • Undeserved sentence - in this option, the punishment for the criminal act committed was too harsh/mild, disproportionate to the gravity of the crime committed.

Who can apply

  • A convicted (or acquitted) citizen, his legal representatives, lawyers;
  • The victim, in the event of the death of the victim as a result of a crime - his relatives;
  • State prosecutor (prosecutor), private prosecutors;
  • In the case of a civil claim - the defendant, plaintiff, or their legal representatives;
  • Other persons, if the process affected their personal legitimate interests and rights.

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