Review of judicial practice on appealing the initiation of criminal cases

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A supervisory appeal is the last chance for a party to a case to change the court's decision.
Consideration of the arguments of the complaint and adoption of a decision on it takes place in the Supreme Court of the Russian Federation. You can go there only if the party has already gone through all the stages of appealing the decision and has not achieved the desired result. The legislation clearly regulates the procedure for supervisory appeal of court decisions. Thus, not every case can be reviewed by the court as a supervisory review. In addition, the law establishes certain rules for drawing up and filing a supervisory complaint.

Court proceedings can take on a multi-stage nature, when the parties do not want to give up and prove their case in all possible instances. Each new review takes place according to different rules. Therefore, the parties must change their requirements, following the rules governing the resolution of the case. The most final authority is the Supreme Court of the Russian Federation, unless you count the reconsideration of the case due to newly discovered circumstances. The decision taken by the RF Armed Forces is no longer subject to appeal, which means it comes into force from the moment of adoption.

Basic information

A supervisory review of a case is carried out in order to verify the legality of the sentence passed by the court and put a final end to the case. After this, you will no longer be able to appeal the verdict.

A supervisory complaint can be sent to the Presidium if, in studying the case, authorized persons made significant deviations from the law, which affected the results of the consideration of the case. The grounds for reviewing the case must arise from its materials.

If significant circumstances were identified after the court decision entered into force, then the issue of re-examining the case must be resolved in proceedings based on new, newly discovered circumstances.

The following persons have the right to file a supervisory complaint:

• convicted;
• justified;
• injured;
• private prosecutor;
• legal representatives, defenders of the above persons;
• other persons who did not participate in the process, but need protection from the court (for example, the pledgor, the owner of the seized property, the applicant who was refused to initiate a criminal case);
• Prosecutor General of the Russian Federation, prosecutors of the constituent entities of the Russian Federation, military prosecutors and deputies.

Sentences and decisions of regional and regional judicial bodies, judicial decisions of the courts of appeal of the Supreme Court of the Russian Federation, as well as rulings of the Supreme Court of the Russian Federation, which were adopted based on the results of studying cassation complaints against decisions that have entered into legal force, are subject to appeal.

Reasons for refusal

The complaint may be refused. Most often this happens for the following reasons:

• the rules of jurisdiction were violated;
• the request was submitted by a representative without a power of attorney;
• the complaint was sent by a lawyer without an appropriate warrant;
• there is a review;
• the applicant is not a participant in the process and has no grounds for filing an appeal.

The refusal is issued in writing, indicating the reason for returning the documents. The Supreme Court of the Russian Federation has the right to refuse to consider an application within 10 days after its receipt.

Drawing up a complaint

The text of the document must reflect the following information:

• name of the judicial authority;
• information about the applicant: full name, procedural status, contact details;
• a list of courts that studied the crime earlier, their opinion regarding the presence/absence of the defendant’s guilt, other circumstances;
• reference to court decisions that are subject to appeal;
• references to legislative norms;
• grounds for reviewing the decision (how the principle of legality in decisions in the past was violated);
• request to reconsider the case by way of supervision;
• signatures of the applicant and the Prosecutor General (or his deputy);
• a list of violations of rights, interests and concerns when making court decisions (if the applicant did not take part in the case).

Photocopies of court decisions of previous institutions must be attached to the document. They need to be certified by the courts that heard the case. Also attached to the complaint are documents and materials that confirm the applicant’s arguments reflected in the text of the appeal.

How to file a supervisory complaint

View sample complaint

According to Art. 412.3 of the Code of Criminal Procedure of the Russian Federation the document must contain:

• the name of the court in which it is filed;
• information about the applicant (his full name, location, procedural status);
• the name of the courts that considered the criminal case in the first (appeal, cassation) instance and the content of their decisions;
• an indication of the decisions being appealed;
• arguments that form the basis for reviewing these decisions;
• request of the person filing the supervisory complaint;
• list of attached documents;
• date and signature of the applicant.

Deadline for filing and consideration of a complaint

Until 2015, filing an application to appeal decisions in the supervisory order was required before the expiration of 1 year. Today, the legislation of the Russian Federation does not establish specific deadlines for submitting a document.

However, if the complaint was sent to the Supreme Court of the Russian Federation, which identified grounds for reviewing the decision, it is necessary to initiate a criminal case. Such documents are stored for a certain period of time.

Thus, the storage period for a criminal case for serious crimes is 15 years . After this period expires, the case materials are destroyed. The Presidium is deprived of the opportunity to assess how well decisions made in the past comply with the law.

As for the timing of the consideration of the complaint, the study of the complaint consists of two parts.

• The period from registration of accepted documents until a court ruling is made that the materials will be sent to the Presidium. The case is considered for up to 2 months if the criminal case was requested from the storage address, and up to 1 month if it was not requested. The time spent sending the case is not included in the calculation.
• The period from the issuance of a decision to send the case to the Presidium until the court hearing. This period is 2 months.

According to the Code of Criminal Procedure, there is no possibility to extend these deadlines, regardless of the prevailing circumstances.

What is the deadline for submitting an application?

The deadline for filing a supervisory complaint in a criminal case has not been established. Thus, after the decision comes into force, it can be sent to the court at any time.

Previously, there was a rule that determined the period for filing a supervisory complaint of 1 year. However, this restriction was in effect only until the beginning of 2013 and for those petitions that were filed in order to worsen the situation of the accused. During the period from January 1, 2013 to January 11, 2015, the restriction applied to all complaints.

There is currently no deadline for submitting an application. You can send a request:

• while serving a sentence;
• after release;
• after a criminal record has been expunged.

It is worth noting that repeated requests for the same circumstances are not allowed.

Review of the case

Supervisory proceedings are based on a court review of the case materials. The procedure consists of the following steps.

• Submitting a supervisory appeal along with attachments to the Supreme Court.
• Acceptance of documents, recording them, sending them to the required department of the court, registering incoming complaints and other certificates.
• Reviewing documents to determine whether they need to be returned without further examination of the case.
• Sending documents for their preliminary examination by a specific judge. He independently finds out whether there are grounds for reviewing the case. If the answer is yes, he organizes a request for materials prepared by the lower courts and makes a decision to send the documents to the Presidium. If the answer is negative, the applicant is refused to transfer the documents.
• Sending the complaint and the requested case to the Presidium.
• Conducting a court hearing, reviewing the case in the presence of the prosecutor and the person filing the complaint.
• Making a decision.

There are several reasons for returning a complaint to the applicant without further examination of the document:

• the text of the complaint is missing important information;
• the applicant did not attach the required documents;
• the statutory appeal period has come to an end;
• the documents were sent by a person who does not have the right to do so;
• document revocation was recorded;
• The applicant made a demand to appeal the court decision, not specified in Part 3 of Art. 412.1 Code of Criminal Procedure of the Russian Federation .

Everything about criminal cases

Mystery room

— violation of the secrecy of the deliberation room is directly mentioned by the Supreme Court among the violations “distorting the essence of justice” (clause of the Plenum No. 2). That is, this is a “strong” violation.

Unconditionality

- in cassation, unlike in appeal, “obvious” and “unconditional” reasons for cancellation are not so strictly indicated. The appeal norm, part 2 389.17, contains a list of obvious grounds for cancellation; the cassation norm (part 2 and part 3 401.15 of the Code of Criminal Procedure) has 2 purely “technical” grounds, but there is no such direct list as for an appeal;

— those violations that work on appeal may not work on cassation: because:

a) for an appeal: procedural violations “that influenced or could have influenced the outcome of the case” are sufficient, that is, even the alleged influence on the outcome of the case is subject to assessment (Part 1 389.17);

b) for cassation: only those “that influenced the outcome of the case” are needed (part 1 401.15);

Primary arguments

- these are those violations that you assess as the most “strong”, most obvious and closest to “significant”;

— their role: to break through the “barrier” of primary examination, to convince the judge to transfer the case for consideration.

Beginning of the complaint

- in a cassation appeal, the strongest argument should go in the first “line”;

— task: to interest the judge conducting the initial “study” of the complaint. If we start our presentation with secondary “weak” arguments, then we waste the judge’s attention resource;

- if, for example, in lower courts in debates, it is quite appropriate to build a tactic of “warming up, then we present the strongest arguments”, then in a cassation appeal I would not do this (personal opinion, but I am completely convinced of it, the cassation appeal is not at all tolerates excesses and “prettiness”).

Secondary Arguments

- in addition to the primary arguments, you have others that you do not rate as “strong”. During the time that has passed before the cassation stage, you have accumulated a “baggage” of identified (or contrived) violations committed in the first instance and appeal. All these “clues” are asked to be used; it is almost impossible to refuse to use them for psychological reasons: “what if this particular argument works,” “I can’t remain silent about violations.”

— what to do with them? Usually, applicants do not even ask such a question, and without any hesitation “stuff” the cassation appeal with a mass of arguments, any that seem at least somewhat significant to them.

Why is this the wrong tactic?

- You bury correct arguments in a mass of erroneous ones. The complaint, set out on 10 pages, containing a lot of references to constitutional norms, incoherent lamentations and pleas, simply drowns out those arguments that could “work.” Judges are ordinary people who do not have super insight, and they are not at all happy to separate the “wheat from the chaff”;

- such complaints already contain the most convenient “clues” for refusal, making it easier for the judge to argue, that is, you give easy arguments against yourself;

- in the court decision on refusal, the court will cite your most grossly erroneous demands, and when you appeal the refusal of the complaint at the next stage of the process, then for the judge, again studying the documents in your case, the previous refusal will look well reasoned.

What to do

— limit yourself, highlight only those violations that have at least approximate signs of being “significant”;

— minor violations do not increase the “strength” of the cassation appeal; on the contrary, they waste the judge’s attention and distract him from the real arguments.

Nothing is lost

- if the complaint can overcome the “barrier” of primary study (this will be easier without the burden of small arguments hanging on it), then you do not lose the opportunity to refer to other violations;

— firstly: you can supplement the complaint with new arguments by sending additions “to follow” the main complaint (see more details here);

- secondly: secondary arguments can be presented directly at the court hearing of the cassation court (see more details here).

Decision of the Presidium

The Presidium may cancel the case, make changes to the verdict, or leave the appeal without satisfaction/consideration.

It is possible to cancel the decision of the court of first and other instances - until the decision of the Presidium. After cancellation of the case, the following options for further actions are possible:

• termination of proceedings in a specific case;
• return of the case for retrial to the court of first instance (for example, to the regional court);
• return of the case to the Prosecutor General's Office.

The Presidium can also cancel the results of the appeal/cassation consideration of the case and send it to the same court.

If the sentence is changed, the adjustments made should improve the applicant's situation. Deterioration is allowed in 2 situations:

• the person violated the terms of the pre-trial agreement on interaction;
• authorized persons made a distortion of the legislation, which had a significant impact on the results of the consideration of the case.

Attached documents

The supervisory appeal must be accompanied by copies of decisions previously taken in previous instances, certified by the relevant judicial authorities.

A scanned image of each document sent via the Internet is certified with a simple or enhanced qualified electronic signature in accordance with the Procedure approved by Order of the Chairman of the RF Armed Forces dated November 29, 2016 No. 46-P.

In the absence of the necessary attachments, the supervisory complaint is subject to return without consideration on the merits within 10 days from the date of its submission (clause 2 of Article 412.4 of the Code of Criminal Procedure of the Russian Federation).

Rights of the Supervisory Board in reviewing court decisions

The Collegium has the right to consider and announce various decisions on your request, such as:

• reject the paper;
• cancel all decisions of the previous courts and send the case to the original court for review and additional study;
• cancel all sentences of previous courts and end the proceedings;
• adjust the current solution;
• invalidate the appeal decision and send the criminal case there for review;
• invalidate the cassation and return the case for re-examination;
• annull the verdict and hand over the case to the prosecutor;
• not to consider your complaint at all if you have violated the procedure and rules for filing it.