Cassation proceedings are inherently a set of procedural actions aimed at verifying decisions for legality and validity. In the Russian Federation, as in any state of continental law, the cassation was developed following the example of the French judicial system. Since 2014, the judicial system has been reformed in accordance with international obligations, in connection with which the concept of double cassation arose.
Cassation proceedings in criminal, civil and arbitration proceedings
In accordance with the Code of Criminal Procedure, the subject of further study of the case in the court of cassation is the legality of the act adopted earlier. The opportunity to exercise the right to appeal to the court is provided to convicted, accused, victims and other persons.
The Code of Civil Procedure allows appealing against any judicial acts that have already acquired legal force, with the exception of the rulings of a higher court. The right is delegated to the persons participating in the case and to other persons whose rights are violated.
The agrarian and industrial complex leaves the right to appeal the lawful decision that has entered into force, the court order only in the case when, before the cassation proceedings were initiated, the case was already considered by the appellate court or the applicant filed a motion to resume the deadline, and the court refused to restore the time limit for appeal . The cassation procedure also examines the acts of the court of intellectual property that have entered into force .
The procedure for filing a cassation appeal
Criminal cassation complaints are filed against acts of magistrates, district judges, interim decisions of the supreme court of the subject, etc. directly to the court of the corresponding instance. The second time, decisions are considered that have already been appealed in cassation.
In the framework of civil proceedings, the complaint is sent to the court of cassation. Complaints are sent to the presidium of a court of a region or other entity against rulings of the appeals instances of entities, legal decisions and other acts of district courts, as well as acts of justices of the peace. The board of the Armed Forces of the Russian Federation makes complaints against decisions of the courts of the subjects and judicial acts that have already entered into force — decisions and decisions of district judges — provided that they have already been appealed to the presidium of the courts of the subject.
The arbitration procedure for filing a complaint is somewhat different from the procedure established for courts of general jurisdiction. The complaint itself is submitted through the institution that made the decision earlier, otherwise it is obliged, in turn, to send the received application together with all documents under the jurisdiction of the judge in the case.
Deadlines
Past changes in the criminal system have canceled the deadlines for appeal of the verdict.
The Code of Civil Procedure makes it possible to consider the decision again within a one-year period from the date of acquisition of the legal force by the act, provided that before that all the possible ways of appealing the court decision were used before the effective date.
The cassation appeal deadlines are as follows. As part of the arbitration process, it must be filed with the cassation court within two months from the effective date of the appealed order, decision or order, and the deadline for submission if the deadline was missed for objective reasons, including if it is a case of absence information about a judicial act that has entered into force, a petition for the restoration of the right to file a complaint must be filed within six months from the moment the person could find out or learned about the violation of rights.
The form and content of the appeal
According to the provisions of the criminal process, the complaint should include information about the name of the court, the person who initiates the proceedings, an indication of the decision itself, significant violations and petition. In the case when a complaint is submitted by a person who has not previously participated in the case, it is necessary to justify the legitimacy of the claim of such an entity, indicating which interests were affected by the previously adopted judicial act.
The cassation complaint is similar in content within the framework of an arbitration or civil procedure.
Cassation appeal in criminal proceedings
Consider a sample cassation appeal. The heading indicates the name of the court, address, personal data of the person filing the complaint, a list of entities involved in the case, and details of the criminal case. The heading should indicate: "The cassation appeal against the court ruling (indicate the details of the ruling - the date and number of the case)."
What is a sample cassation complaint in the main part:
“On October 18, 2016, a judge of the Leninsky district of Saratov convicted Petrov Ivan Alexandrovich of a deed committed by part 2 of article 158 of the Criminal Code of the Russian Federation. The accused was also charged with satisfying the civil lawsuit of the victim. December 12, 2016 Saratovsky The regional court examined the appeal, the sentence was not changed and entered into force.
According to the applicant, the court sentence must be quashed for the following reasons: (statement of reasons). "
Cassation appeal (sample): civil case
When examining a case in a cassation instance, it is checked whether the rules of law were correctly interpreted. In the main body of the complaint, it is necessary to point out violations and substantiate them with the help of references to the current legislation.
Sample appeal in the main part:
"On May 14, 2016, Justice of the Peace IV Grishin, court plot No. 15 of the Oktyabrsky District of Samara, a court decision was rendered on refusal to satisfy the plaintiff's claims for termination of the contract of sale and payment of its cost, forfeit, payment of examination and other legal expenses .
2 On July 4, 2016, the Lenin Regional Court of Samara examined the filed appeal, the judicial act of first instance was canceled, a new decision was made to return the goods, to pay the plaintiff the cost of low-quality goods, forfeit, etc.
The applicant considers that the substantive law was substantially violated upon the adoption of the judgment. "
Cassation appeal (sample): arbitration court
It is possible to file a cassation appeal if all the evidence in this case is collected, however, the court incorrectly applied the substantive law. Another reason for recognizing a previous decision as false is a serious violation of the procedural order. If the appeal is satisfied, the applicant has the right to a second judicial review, unless it is otherwise possible to implement a mechanism for protecting rights.
Sample appeal in the main part:
“On August 15, 2016, the Arbitration Court of the Volgograd Region issued a decision in the case No. ... on the refusal of claims related to the transfer of real estate rights. The appeal court upheld the said judicial act.
The plaintiff believes that when passing the acts of two instances the rules of law were incorrectly interpreted and subsequently applied. Frequent 1 tbsp. 250 of the Civil Code of the Russian Federation speaks of the preemptive right to purchase a share for a co-owner, excluding cases of sale of real estate through an auction. Frequent 3 of this article indicates that the violated right of pre-emptive right to purchase makes it possible to transfer the obligations of the acquirer under a purchase and sale agreement in court. In this case, an obligatory act is a preliminary written notification of the person concerned about the desire of the co-owner to sell the property. However, in violation of this provision under Part 2 of Art. 250, no notice was given. "
Feedback on the cassation appeal
The decision shall enter into force after the adoption by the court of the appellate act or after the expiration of the period for initiating the appeal proceedings. Nevertheless, the judicial system allows you to review the results of meetings in cassation order, while practice shows that in the event that the court of cassation made a complaint before consideration, there is a good chance of a positive outcome for the cassator.
Having received a copy of the cassation appeal together with the ruling on the opening of the proceedings, the second party draws up a review. The review shall be submitted to the cassation court before the first meeting, while the correctly formed review directly answers the arguments of the cassation appeal.
Above in the photo you see a review of the cassation appeal (sample).
The result of the appeal
Based on the results of the examination of the complaint, the judicial authority may take several types of decisions. First, cassation may leave acts of lower instances unchanged or recognize only one of the decisions. Secondly, the court may decide that it is worth sending the case for a new trial to the appropriate authority. Thirdly, in case of minor violations of the procedural and substantive rules that do not require a new revision, the court has the right to correct the errors of previous instances independently.
Thus, the cassation appeal against the decision is one of the effective ways to protect the rights of the party. Sending a cassation appeal and its adoption for consideration requires serious arguments in the form of an incorrect interpretation of the law by the courts of first and second instance.