Cassation appeal in a criminal case: sample, deadline for filing, procedure for consideration

Usually, many of those who turn to justice limit themselves to filing an appeal, focusing on the decision of the second instance court as final. Only in some situations, if it is especially important to achieve the desired result, when the participants in the process are determined to prove their case at all costs, the verdict is reviewed in cassation. What does the cassation procedure mean, how does it differ from the appellate procedure, what are the rules for writing a complaint to the third instance - you can learn about this from our article.

2022 update

It should be taken into account that on February 24, 2021, important changes were made to the deadline for cassation appeals, which entered into legal force on March 7, 2021. From this date, the period for cassation appeal is limited to six months from the date of entry into force of the verdict or other final court decision in a criminal case. For a convicted person who is in custody, this period is calculated from the date of delivery to him of a copy of the sentence (decision) that has entered into legal force.

Thus, at present, the cassation period for appealing a verdict is no longer unlimited. Those who did not have time to appeal a cassation verdict or decision that came into force from 10/01/2019 to 02/24/2021 can do so until 08/24/2021.

Cassation appeal: what is it and what is its purpose?

The cassation procedure requires the filing of a complaint. She must appeal the court ruling, which has entered into force. Provided that this is not a Supreme Court ruling. The main task of the direction under consideration is that this court decision be challenged on the basis of mistakes made.

For example, if these errors were made during the proceedings, and ultimately had a negative impact on the decision made. And if, without correcting the errors in question, it is impossible to achieve a fair resolution of the dispute, protect the interests of the person and eliminate other problems.

Cassation

From January 1, 2013, cassation means a review of sentences or other decisions of the first or second instance that have already entered into legal force. Unlike an appeal, the purpose of such a review is to conclude whether previous judges applied the law correctly or incorrectly. At the same time, the third instance practically does not go into questions of validity; there is no thorough examination of the evidence.

If during the appeal hearing the parties have the right to invite even witnesses and attach completely new documents, the cassation procedure involves a dry comparison of proven facts with legal norms .

The position of the European Court of Human Rights and the Russian judicial system is focused on the inadmissibility of a prolonged threat of criminal prosecution. In other words, the acquitted person should not have to fear all his life that the decision that was made might someday be reversed. Likewise, a convicted person who has been found guilty of committing a crime should not fear that harsher punishment may be imposed on him.

That is why the deterioration of the situation of a convicted or acquitted person can only occur within one year from the date of entry of the sentence and only in the presence of significant violations of criminal or criminal procedural legislation. That is, the deadline for filing a cassation appeal in a criminal case in 2021 is 1 year if the question is raised:

about changing the classification of the offense to a more serious crime;
on increasing the term of imprisonment;
on changing punishment in the form of correctional, compulsory labor and other types not related to isolation from society, for a real term in a colony;
about the unjustified use of “benefits” provided for people with disabilities, women with children, convicted minors, etc.;
on the cancellation of the decision to terminate the case, instead of which, in the opinion of the cassator, a verdict should take place;
to overturn the acquittal.

These are the most common cases when a person’s position in a criminal case can be worsened. This list is incomplete.

On the contrary, the legislator does not limit the period for reviewing a sentence in a direction favorable to the convicted person, which means that an appeal to the cassation court can be made at almost any time, even years after the court verdict has entered into force.

Question : What decisions can be reviewed?

A cassation appeal can be filed against any verdict or decision of the first instance that has entered into force. It does not matter whether this decision was appealed. You can separately appeal the ruling of the second instance.

The circle of persons who can apply for cassation practically coincides with the appeal:

the convicted person, his lawyer, legal representative, public defender;
the victim, his lawyer, representative;
the acquitted person, his representatives and defenders;
the person in respect of whom the case was terminated (for example, due to disagreement with the grounds for termination);
a person who has been assigned compulsory educational measures or medical measures (for example, in the presence of a disease that precludes sanity);
private prosecutor (that is, a party to private prosecution cases - for example, libel under Article 128.1 of the Criminal Code of the Russian Federation);
civil plaintiff or defendant (only in relation to a civil claim, the decision on which is contained in the verdict).

The prosecutor is also given the right to appeal in cassation, but with certain official powers. Thus, only:

Prosecutor General of the Russian Federation (to any court);
prosecutor of the region, territory, republic and his deputies (only in the regional, regional court, court of the republic).

In addition to the listed participants in legal proceedings, the law gives the right to file a complaint for review and other persons whose interests are affected by the court decision. The Code of Criminal Procedure of the Russian Federation does not reflect in what specific cases such rights are available to persons who do not have status in the case. The following example can be given from the explanations of the Supreme Court:

Sidorov E.N., who contacted the police with a statement of fraud, in response to which he received a decision to refuse to initiate a criminal case, which he appealed to the court. The first and second instances left his complaint about disagreement with the actions of the police without satisfaction, then he appealed in cassation. Since there is no criminal case yet, the applicant is not a victim, he does not have the status of a participant in the proceedings. At the same time, he has the right to seek protection of his rights as another person whose interests are affected by a court decision.

In some cases, the Commissioner for Human Rights in the Russian Federation may apply to cassation to review a sentence or court decision that has already entered into legal force. This right is expressly provided for in federal constitutional legislation.

How is cassation different from appeal?

You can appeal the decision of the second or first instance to the Court of Cassation (if an appeal has not been filed).

The appellate court is similar in essence and procedural aspects to the criminal court. He actually reviews the case from scratch: newly discovered circumstances can be highlighted in the case, documents can be included, and even witnesses can be invited.

The Court of Cassation is deprived of all these points: it does not consider anything new, does not include documents, does not question witnesses. During the meeting, only compliance with the law is checked, that is, compliance of the proven facts with the current legislation of the Russian Federation.

Submission order

Where to file a cassation appeal? In accordance with the requirements of the Code of Criminal Procedure, the following rules apply:

To the Presidium of the regional, regional court (the supreme courts of the republics, as well as federal courts - for example, the Moscow City Court are equated to such) - cassation is filed against the verdicts of the magistrate and district judge. Complaints against interim (not final) decisions of the regional court when considering a case in the first instance can also be filed here.
To the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation:
resolutions of the Presidium of regional courts;
sentences of regional courts, provided that they have not been appealed.

The complaint is submitted by the cassator (or representative, lawyer) to the office of the court to which it is addressed , in contrast to the appeal procedure, when this occurs through the office of the court of first instance. The procedure for filing a cassation appeal fully allows for sending correspondence by mail (ordinary or registered mail).

Who can apply and where?

Almost all participants in the process have the right to file cassation appeals: convicted persons, victims, acquitted persons (both criminal and civil), persons sentenced to compulsory treatment or special medical measures, court prosecutors (from regional and higher). Naturally, trustees and lawyers of both parties also enjoy this right.

Additionally, the right to appeal to cassation courts is stipulated for persons who do not have procedural status. For example, you believe that fraud has been committed against you. You contacted the police, but they refused to initiate a criminal case. You went further and filed an appeal - again a refusal. Since a criminal case has not been initiated, you do not have the procedural status of a victim, but in fact consider yourself to be one. You have every right to file a cassation appeal.