Where to file a cassation appeal? What rules do judges follow when considering incoming materials and what should be considered when writing an application? Consider the norms of procedural legislation and some practical nuances.
Third instance
Before answering the question of where to file a cassation appeal, we will find out what its essence is. The cassation instance is the third stage of the consideration of the dispute. It is provided in all areas of legal proceedings: in civil, administrative and criminal. The law gives the right to appeal the decisions on bringing to administrative responsibility in the same way.
Presidium of the court of the subject
The principle of double cassation almost always applies: first, the complaint is submitted to the presidium of the court of the subject (republic, territory, region, city of federal significance), and then to the Supreme Court of the Russian Federation. Some differences exist in the system of arbitration courts, but we will consider them below.
Where to file a cassation appeal depends on what court decisions have already been appealed. If the case has passed only the appeal, the documents are submitted to the presidium of the court of the subject. Based on the results of the examination, the applicant is entitled to apply to the Supreme Court already. What is the difference between them?
The presidium of the court of the subject is a small instance, some 10-15 judges. In the capitals and Sevastopol, their numbers are less (about 5 people each).
District Military Courts
The military courts system includes garrison courts operating as a first instance and district courts. The second at the same time serve as the appellate and cassation instances.
A feature of the activities of district courts is that their competence may extend to several regions.
Supreme Court
Where to file a cassation appeal in the case of the Supreme Court? It consists of judicial collegiums within the framework of their specialization: in civil, administrative, criminal cases. A collegium has been set up considering cases involving persons with military status.
The main function of the Supreme Court is to ensure the consideration of cassation appeals, but it is not the only one.
Sequencing
Before figuring out where to file a cassation appeal, we will pay attention to one point.
A second or appellate court is designed to review decisions that have not yet entered into force. When making a decision, a district or world court always stipulates the right to appeal it within a month from the moment of announcement. There are exceptions to the law related to the submission of private complaints and the particularities of appealing in absentia decisions.
Judicial acts of the second instance after their adoption enter into force immediately, and from the next day the deadline for the transfer of documents for cassation is counted. If the applicant did not try to complain about the appeal beforehand, the cassation judges would not even consider his statement on the merits. The right to write and submit it arises only after trying to achieve a second instance review. The procedural codes indicate the requirement to attach to the complaint copies of judicial acts already adopted in the case by two previous instances.
Where to file a cassation appeal on appeal ruling? Initially, the presidium of the court of the subject.
When sending documents to the Supreme Court, it is impossible not to attach an act issued by the court of the subject - it does not matter if the review was refused or the case was examined on the merits.
Terms of circulation
The law spells out a single 6-month period. During this period, it is necessary to meet the requirements of the presidium of the subject court and the board of the Armed Forces of the Russian Federation. The clarification notes that during the consideration of the materials by the first cassation instance the course of the appeal period is not suspended.
Term Recovery
Where to file a cassation appeal on appeal, if the deadline has been missed?
Two options are suggested:
- appeal to the court of first instance;
- appeal to the relevant board of the Supreme Court.
The judge of the presidium of the court of the subject making the decision to consider the merits of the complaint does not deal with issues of restoration of the term. They are in the competence of the court that issued the very first decision in the case. Without a district or peace court ruling, a cassation appeal will not be considered in essence.
If a complaint is filed with the Supreme Court, the applicant has the right to send a request for the restoration of the term with her. As a rule, the judges of the Armed Forces agree with the arguments of the request regarding the time limit, however, then they refuse to transfer it to the panel for consideration of the material.
Does the business go completely
Having figured out where the appeal is filed after the appeal, a person should know: what materials to apply to the complaint, he decides. You can only file a complaint, but with the additions the chances of a positive result are greater.
If the judge is interested, he will claim the case from the court of first instance and will forward it to the panel for consideration. By the way, this fact does not mean the court agrees with the arguments of the complaint. And the judge who referred the case to the panel does not take part in the further proceedings.
Complaint Items
- The name of the court.
- Information about the applicant (procedural status, full name, place of residence of the person or full name and legal address of the organization).
- Similar information about the defendant.
- Similar information about third parties.
- Information about previously adopted judicial acts in the case, which of them the applicant considers unreasonable in whole or in part.
- The arguments of the complaint (which are significant violations of procedural and substantive law).
- Requirements for the court (the cancellation of part or all of the decisions, the retention of one of them in force or the complete cancellation of judicial acts and the termination of the proceedings).
- A list of documents attached to the application.
- A receipt confirming payment of the fee.
- Date of submission and signature.
After deciding where to file a cassation appeal in a civil case, one thing to remember is that the statement at this stage should not touch upon the establishment or refutation of circumstances or facts. Only the correct application and interpretation of the legislation is discussed, because of which the cassation courts almost never make a decision on the merits, but refer the case to the appeal or first instance. The second option is less common.
The court has the right to refer to violations of the law that led to an incorrect assessment of the circumstances, without prejudging the decision of a lower court.
Terms of consideration
Code of Civil Procedure does not say anything about how much time is given to the judge to decide to transfer the case to the college. The countdown for consideration begins on the day the ruling on the opening of production is made.
At the stage of the first cassation, the time of the proceedings may not exceed 1 month if the case was not claimed and the evidence presented by the applicant and other parties was considered sufficient. In the event of a claim, 2 months are allotted for the proceedings. The time taken to transfer all materials from the trial court is not included in the review period.
In relation to judges of the Supreme Court, almost the same rules apply: the period for consideration without demanding a case is 2 months, and upon request, 3 months. The chairman of the court or his deputy has the right to extend the time of consideration at the request of the judges for another 2 months.
Where to file a cassation appeal in arbitration
According to the law, 10 district courts operate in the Russian Federation, performing the functions of a cassation instance. They are separated from the courts of appeal and serve several regions (an average of 8).
The complaint is submitted to the court that made the decision, and not directly to the cassation instance. District courts hear all applications without exception. In the Supreme Court, proceedings are already open selectively. In addition, the application to the district court allowed the application of the law and the assessment of facts.
The deadline for submission is 2 months. Its restoration in the event of a pass is allowed within 6 months from the date of issuance of the judicial act by the appellate court. The decision on the timing is taken directly by the court of cassation.
In addition to the complaint, the applicant encloses evidence of sending the parties a copy of it and the materials attached to it.
The requirements are almost the same as in the civil process. Another exception is the obligation to refer to the norms of the law and the evidence in the case.
The decision on the readiness of the complaint shall be made no later than 5 days after its transfer to the court. The term for consideration in a district court is 2 months; extension is allowed up to 6 months with the particular complexity of the case.
Features of the consideration of the complaint in the RF Armed Forces:
- first, the judge decides whether the complaint will be examined on the merits;
- allowed to discuss only violations of procedural and substantive law.