The prosecutor can participate in court hearings on certain cases and, as a participant in the process, has the right to bring a presentation to the judicial act. That is, other participants in the process can file a complaint, and the prosecutor brings a presentation, but in fact it is the same complaint.
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Objections to the prosecutor's representation in a civil case
If the prosecutor has brought a presentation in a civil case, then other participants in the process, if they do not agree with the prosecutor’s presentation, have the right to send to the court objections to the arguments that the prosecutor indicated in his presentation.
The prosecutor is the same participant in the process, and if a proposal has been received from the prosecutor, this does not mean at all that the prosecutor is always right.
You should not be afraid to file objections to the prosecutor’s arguments as presented by him. Not only people who do not have legal knowledge, but even judges and prosecutors can be mistaken and make mistakes.
Objections to the prosecutor's submission are filed like any other objection to a complaint by one of the participants in the process. The objections set out the arguments of the person who files such objections as to why the prosecutor is wrong, and what confirms the correctness of the judge who issued the appealed judicial act and, accordingly, the legality of the court decision.
Deadlines and procedure for submitting submissions
The submission must be submitted within 10 days from the date of the decision (issue) of the disputed judicial act .
If the deadline is violated, the submission must be left without consideration. The court that made the appealed decision has the right to restore the missed deadline. True, all possible valid reasons apply to a greater extent to ordinary participants in the process. The courts treat the issue of violation of the deadline for appeal by the prosecutor's office much more strictly. Most criminal cases in the first instance are considered by magistrates and district (city) courts. Requests for decisions of these courts are submitted respectively to the district (city) court and to the court of the subject of the federation - a higher authority in relation to the court whose decision is being challenged. Resolutions of district (city) courts adopted as part of the investigation (inquiry) are appealed on appeal in the court of a constituent entity of the federation.
The above procedure will continue after the start of work of the courts of appeal and cassation. The changes will affect appeals against judicial acts adopted by courts at the regional level. Now interim decisions of such courts are appealed to the specialized judicial panel of the same courts, and the final decisions are appealed to the specialized panel of the Supreme Court. From autumn 2022, appeals will have to be submitted to the Court of Appeal.
The submission is submitted to the appropriate authority through the court, whose decision is being appealed. Requirements for the form and content of the presentation – Art. 389.6 Code of Criminal Procedure of the Russian Federation. Typically, the prosecutor's office uses a standard procedural form for appellate submissions, and the document is prepared on official prosecutor's letterhead.
If the tasks and purposes of the presentation require it, the prosecutor's office has the right to request a re-examination in the appellate court of evidence previously considered in the court of first instance. For this purpose, witnesses, experts and other persons may be summoned to court. The state prosecutor has the right to request consideration of evidence that has not previously been presented and examined. True, new evidence can be studied only under one condition - the prosecutor’s office will justify why it was not possible to present it earlier, and the court will recognize the arguments as weighty.
Presentation movement diagram:
- Within 10 days, a presentation is submitted to the court whose decision is being appealed, and it is attached to the materials of the criminal case.
- The court notifies other participants in the process about the receipt of the submission, sends them a copy of the document, explains their rights and the possibility of preparing their written objections.
- The deadline set by the court is waited for filing objections.
- If objections are received, they are added to the materials of the criminal case.
- As soon as the deadlines for appealing and filing objections have expired, the materials of the criminal case are sent to the court of appeal.
While the case is in court, whose decision is being appealed, and within 5 days before the start of the appeal hearing, the prosecutor's office may file an additional submission. This is usually done in two cases:
- a so-called summary submission was filed in order not to violate the appeal deadlines and at the same time to have the opportunity to more thoroughly prepare for the appeal;
- an additional submission is necessary to clarify and (or) supplement the position due to the filed objection to the submission.
It happens that an additional submission is submitted in violation of the 10-day appeal period. It will be accepted if there are still 5 days before the start of the appellate court hearing. However, in such a submission the question of the worsening of the position of the accused cannot be raised if it was not raised in the brief submission.
The hearing of the appellate court on the proposal of the prosecutor's office should begin:
- no later than 15 days (district level);
- no later than 30 days (regional level);
- no later than 45 days (the level of the Supreme Court, and from the fall of 2019 - the court of appeal).
The time limit is counted from the moment the case is received by the appellate court.
prosecutor's appeal
Objection to the prosecutor's presentation in a criminal case
In criminal cases, the participation of the prosecutor is mandatory; he acts as a state prosecutor, and if he does not agree with the decision or verdict of the court, then, as a rule, the state prosecutor always brings to such judicial acts proposals to change or cancel them.
The defense is not deprived of the right to object to the presentation of the prosecutor. The lawyer or the defendant can put their objections in writing and send them to the court so that the court has the opportunity to evaluate the arguments of the prosecution and the defense.
Objections are drawn up in free form, but it is necessary to indicate information about the criminal case in which the submission was made. The essence of the objections must contain arguments refuting the position of the prosecutor, i.e. a specific indication of why the prosecutor is wrong.
USEFUL : watch a video with tips on appealing a verdict, because often objections to the prosecutor are also accompanied by an independent appeal
Technical features when compiling
The text of the document should not exceed five pages, although there is no legal prohibition on this criterion, but for human perception this volume is optimal. Before challenging a claim, you should familiarize yourself with the generally established rules for filing an objection. Try to avoid long names, use abbreviations whenever possible. Do not use small font; it is recommended to use size 14 with one and a half spacing. It is possible to use bolding of phrases, but this should be done sparingly.
Indicate the case number, surname and initials of the judge hearing the case. There is no such obligation at the legislative level, but mentioning this in the descriptive part is a rule of good form.
For easier comprehension, it is recommended to use numbering of paragraphs within the document and pages. This will allow you to quickly orient the court according to the text of your document when speaking and keep their attention.
The main forms of acts and appeals are published on the official websites of the relevant courts.
Deadline for drawing up an objection to the prosecutor's complaint
The deadlines for filing complaints by the prosecutor are clear; these deadlines are established by procedural codes, but what about the deadlines for drawing up objections? The law does not provide specific deadlines for drawing up objections to the prosecutor's complaint, however. The court may, in individual cases, set a reasonable period for other participants in the process to submit their objections to the complaint.
The court does not always set a deadline for submitting objections to the prosecutor’s complaint, in connection with which someone can, at a court hearing, declare that objections to the prosecutor’s complaint are included in the case.
And yet, you should not delay in drawing up objections to the prosecutor’s complaint. Why should you prepare your objections and file a lawsuit in advance? Everything is very simple: when the court prepares to consider the prosecutor’s complaint, it gets acquainted with the case materials, including the objections of the participants in the process, and taking this into account, the judge forms a position on the case. If objections are presented at a court hearing, the judge will not study the written objections in detail, but will offer to voice their essence, and the participant in the process may miss some points from his objections.
Objection or review
The convicted person, based on the laws of the Russian Federation, is capable of contradicting the appeal transferred from the guilty person, without reaching an agreement with the opinions provided and not wanting the indicated sentence to become softer or completely canceled.
This requires that:
- The victim formulated his thoughts on specific points of the appeal.
- Whenever possible, provided substantiated reasons for your documentation.
The entire essence of the response to the appeal must be presented intelligibly and clearly. When appealing a decision, the victim or defendant presents new evidence from the trial that was not taken into account during the first consideration.
Any participant in the procedural case receives photocopies of the cassation appeal and becomes familiar with the indicated points. Any person participating in a criminal case, even a judge, is able to write a response to appeal the decision.
In a situation where the defendant sends a response, it is considered significant that the protest is not unreasonable. Since a guilty citizen for a specific defense must have a large number of obvious reasons.
During the appeal, only those factual points that are set out directly in the appeal of the decision are analyzed, therefore the defendant is obliged to write a review in its entirety.
An objection or review is practically the same thing. They clearly indicate that any participant in the criminal process is dissatisfied with the decision made and ask for it to be reconsidered, which happens in a retrial.
How to file an objection to the prosecutor's submission?
How to formulate objections to the prosecutor's submission? There are no special requirements for drawing up objections; however, you should adhere to the form and information specified in the claim and the prosecutor’s submission and indicate the following:
- to which court are objections filed?
- from whom the objections are filed, namely, from the plaintiff or defendant or convicted so-and-so, indicating the address
- It is also advisable to indicate other participants in the process, i.e. plaintiff, defendant, third party
- indicate the case number for which objections are being filed
- the name of the document will be - objections to the prosecutor's presentation in such and such a case
- the text of the objections sets out the circumstances of the case, i.e. when, by what court, what case was considered, what court made the decision, what the prosecutor filed a submission on the corresponding decision, with which the person filing the objections does not agree in the prosecutor’s submission
- in the pleading part of the objections, as a rule, a request is indicated, for example, to uphold the court decision in force, to refuse to satisfy the prosecutor’s proposal
- at the end of the objections a signature and a transcript of the signature are placed
Grounds for canceling a submission
An appeal against the proposal of the prosecutor's office to eliminate violations is carried out by filing an application. This can be done in any situation where you disagree with a decision.
The legislation does not have clear requirements for the content of the submission, but certain information must be indicated. These include:
- The body or official to whom it is addressed.
- Sources of information that reported violations of regulations.
- Characteristics of the offense, analysis of its causes and conditions.
- Requirement to eliminate the consequences of such an act, deadline.
- Instructions related to the procedure for correcting the situation after a violation.
At the same time, all recommendations must be of a legal nature; intrusion into other areas not related to the offense committed is not allowed. If this rule is not followed, you can safely file a complaint.
Conflicting submission requirements
There are also contradictions that are seen in the content of internal acts of the prosecutor’s office and law enforcement judicial acts. They concern the rules for presenting the operative part of the act of prosecutorial response discussed above. The reason for this is the different understanding and interpretation by the judiciary and the prosecutor's office of the tasks facing the prosecutor's office.
Such inconsistency sometimes leads to controversial issues regarding the legality of the document submitted by the prosecutor's office. Thus, clause 6.2 of the letter of the Prosecutor General’s Office of the Russian Federation “On Methodological Recommendations for organizing the work of the Prosecutor’s Office to supervise the implementation of legislation on administrative offenses” dated February 27, 2004 No. 36-12-2004 prescribes that the operative part of the submission should include requirements for mandatory punishment in order to attract persons to disciplinary liability.
However, the position set forth in the resolution of the Supreme Court of the Russian Federation dated December 16, 2016 No. 78-AD16-38, which canceled the submission, indicates that the law does not have legal grounds to require a person to fulfill an obligation that is his right. From the understanding of Art. 192 of the Labor Code of the Russian Federation, the employer has the right to impose disciplinary sanctions and independently determine the grounds for their application.
Thus, the prosecutor’s presentation, which contradicts the norms of the law, can be appealed to a higher authority, as well as in court according to the rules prescribed by Chapter. 22 CAS RF and Ch. 24 Arbitration Procedure Code of the Russian Federation.
The judicial procedure for appealing this document consists of filing an application with the judicial authorities of the Russian Federation, in which, according to the general rules of legislation, the facts and grounds indicating violations of the rights and interests of the applicant must be set out, as well as the norms of procedural legislation establishing the rules for filing and consideration of the application must be observed in the courts.
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Review period
When a submission is received by an organization, it is registered in the secretariat of the addressee. The term "prompt review" implies that the document is being reviewed as soon as possible.
The legislation does not define this term “in days”. In practice, within 3 working days from the date of registration, the manager in whose name the proposal is made determines the circle of persons who will carry out the proposal on its merits (conduct additional verification, for example).
Important. The submission is considered at an operational meeting of interested parties with the head of the unit.
If the submission indicates that a prosecutor must be present at its consideration, he is notified in writing or orally of the place, date and time of the consideration.
The period for taking measures to eliminate violations is calculated from the date of submission of the submission. The law does not give clear instructions on what is meant by date: the date of registration with the prosecutor's office or the date of registration with the addressee.
In practice, in order to avoid red tape when considering a submission, in the demanding part of the document, the prosecutor can indicate a specific date for taking measures to eliminate violations.
