Sample of a cassation complaint against the appeal ruling of the Moscow City Court. How to file a cassation appeal against an appellate ruling? Cassation appeal in a civil case of Civil Procedure Code

Appeal. General concept

In its own way legal nature cassation appeal in fact is one of the ways to restore the violated rights of citizens. Initiating the filing of such a complaint (representation) entails proceedings in a cassation court in order to verify the legality, validity and fairness of the judicial acts against which the complaint (representation) is filed, provided that it meets the requirements of procedural legislation. It should be noted that those who entered into a cassation appeal are subject to legal force court decisions.

Appeal is a procedural document - written demand to the court about changing (cancelling) a judicial act that contradicts the recognition subjective law applicant (plaintiff).

The right to appeal to the cassation court

The right to file a cassation appeal is most often reserved by the legislator for the persons participating in the case. However, depending on the category trial the circle of such persons is changing.

So in civil process The following may act as applicants for a cassation appeal:

- other persons, if their rights and legitimate interests violated by court decisions (part 1 of article 376 of the Civil Procedure Code Russian Federation- hereinafter referred to as the Code of Civil Procedure of the Russian Federation);

- if we are talking about applying to the cassation court with a proposal to review court decisions that have entered into legal force, if a prosecutor participated in the consideration of the case, then they have the right to file officials prosecution authorities specified inArticle 377of this Code (Part 3 of Article 37 of the Code of Civil Procedure of the Russian Federation).

IN administrative proceedings have a slight analogy with civil proceedings:

- other persons,by other persons if their rights, freedoms and legitimate interests are violated judicial acts (Part 1, Article 318 Code administrative proceedings of the Russian Federation further - CAS RF);

If a prosecutor participated in the consideration of an administrative case, the following persons have the right to submit requests for review of judicial acts that have entered into legal force:

1) Prosecutor General of the Russian Federation and his deputies - to any court of cassation;

2) prosecutor of the republic, territory, region, city federal significance, autonomous region, autonomous district, military district (fleet) - respectively to the presidium of the supreme court of the republic, regional, regional court, court of a federal city, court of an autonomous region, court of an autonomous district, district (naval) military court (Part 6 of Article 318 of the CAS RF ).

In criminal proceedings it is a little different

The provisions of Article 401.2 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) determine that a court decision that has entered into legal force can be appealed in the manner established by this chapter to a cassation court convicted, acquitted, their defenders and legal representatives, victims, private prosecutor, their legal representatives and representatives, as well asotherpersons to the extent that the appealed court decision affects their rights and legitimate interests. Civil plaintiff, civil defendant or their legal representatives and representatives have the right to appeal the court decision insofar as it concerns civil action

1. The following may apply for a review of a court decision that has entered into legal force:

1) the Prosecutor General of the Russian Federation and his deputies - to any court of cassation;

2) a prosecutor of a constituent entity of the Russian Federation, a military prosecutor equivalent to him and their deputies- respectively, to the presidium of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court.

But at the same time, for example, a civil plaintiff in a criminal proceeding has the right to file a cassation appeal against a court decision only insofar as it relates to the civil claim. Concerning general solution court in a criminal case, he has no right to appeal it.

The Arbitration Procedural Code of the Russian Federation by provisions (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) of Article 273 establishes the following

1. Court orders that have entered into legal force, issued by the arbitration court of the first instance, the decision of the arbitration court of the first instance, if such a decision was the subject of consideration in the arbitration court appellate court or if the arbitration court of appeal refused to restore the missed deadline for filing an appeal, and the decision of the arbitration court of appeal may be appealed in cassation proceedings in whole or in part, provided that otherwise is not provided for by this Code.

persons participating in the case, as well as other persons in cases provided for by this Code. (as amended by Federal Laws dated June 28, 2014 No. 186-FZ, dated March 2, 2016 No. 47-FZ).

A similar rule applies when appealing decisions of the Court that have entered into legal force. By intellectual rights accepted by it as a court of first instance. (Part 2 of the above article of the Code).

The court, for its part, has the right to consider the case only within the limits determined by the complaint. This means that if a court decision is only partially challenged, then the cassation court should not and will not check the rest.

Form and content of the cassation appeal

As stated above, a cassation appeal must be made in writing.

There are clear regulations establishing the rules for the content of a cassation appeal (submission).

Based on the commonality of all procedural postulates, a number of basic requirements for the content of a cassation appeal (submission) can be identified:

1) The details of the complaint must contain the following information:

Name court to whom the complaint is addressed,

Information about the person filing the complaint indicating his procedural position and other persons participating in the case (including the addresses of their location or registration);

The name of the document type is the title of the complaint;

2) The descriptive part of the complaint indicates the name of the court that adopted the appealed judicial act (acts), the case number and the date of adoption of the judicial act (acts), the subject of the dispute;

3) The reasoned part of the complaint sets out the very requirements of the person filing the complaint to verify the legality of the appealed judicial act and the grounds on which the person filing the complaint is appealing it, with reference to laws or other regulations legal acts, the circumstances of the case and the evidence available in the case;

4) In the appendix to the cassation appeal it is necessary to name the list of attached documents:

A copy of the appealed judicial act;

Documents confirming payment state duty in the established manner and amount, or the right to receive a benefit in the payment of state duty, or a petition for a deferment, installment payment of the state duty, or a reduction in its amount;

- if this is an arbitration process, then also documents confirming the sending or delivery to other persons participating in the case, copies of the cassation appeal and documents that they do not have;

A power of attorney or other document confirming the authority to sign a cassation appeal, if the interests of the applicant are represented by a person authorized or authorized by him.

Documents attached to the cassation appeal may be submitted to the Arbitration Court in in electronic format, like the complaint itself.

The cassation appeal may also indicate telephone numbers, fax numbers, addresses Email and other information necessary for the consideration of the case, existing petitions have been submitted.

An important point when drawing up a cassation appeal is its signing and dating.

Failure to comply with the above requirements is grounds for leaving the cassation appeal (submission) without progress, or for its return.

Deadlines for filing a cassation appeal

Innings cassation appeal is a procedural action that allows you to cancel judicial acts that have entered into force in the event that, during their adoption, the rules of material or procedural law.

What you should pay attention to here is the observance of procedural deadlines, the omission of which may lead to the deprivation of a person in need of judicial protection, the right to appeal, and, as a result, the opportunity to restore their legal rights.

Depending on the type of law your case belongs to, the period for cassation appeal depends. Currently, there are 4 branches of procedural law: civil, administrative, arbitration and criminal processes.

1) If we consider the civil process- court decisions that have entered into legal force, with the exception of court decisions of the Supreme Court of the Russian Federation, can be appealed to the cassation court within six months from the date of their entry into force provided that the applicant has exhausted other methods of appeal established by this Code court order before the day it comes into force (as follows from the contents of Parts 1, 2 of Article 376 of the Code of Civil Procedure of the Russian Federation). That is, this means if the controversial decision (ruling) was appealed to lower authorities (court of appeal). Or if the deadline for appeal was missed, and the applicant applied to the court of second instance with a petition to restore the deadline, but this was not done (i.e., a refusal was received).

2), which is a novelty for Russian legal proceedings, however, which traces the analogy of the law with civil proceedings, also provides for a six-month appeal period from the date of entry into force of the judicial act. However, provided that the persons specified in part 1 of this article have exhausted other methods established by this Code to appeal a judicial act before the day it enters into legal force (Part 2 of Article 318 of the CAS RF).

3) In criminal proceedings The period for appealing in cassation is not limited. However, based on the results of the cassation review, the situation of the convicted person can be either improved or worsened. In this case, the exception is the review in the cassation and supervisory instances of a sentence, ruling, or court decision precisely on grounds that entail a worsening of the situation of a convicted person, acquitted person, or a person against whom the criminal case has been terminated, is allowed within a period not exceeding 1 year from the date of their entry into force, if during judicial trial there were violations of the law that influenced the outcome of the case, distorting the very essence of justice and the meaning of the court decision as an act of justice.

4) Arbitration procedural legislation sets two month terms for appeal from the date of entry into force of the court decision. In exceptional cases, if missed for reasons beyond the control of the person who filed such a complaint, including due to his lack of information about the appealed judicial act, at the request of the said person, it can be restored by the arbitration court of the cassation instance, provided that the request submitted no later than in six months from the date of entry into force of the appealed judicial act or, if the petition was filed by a person specified in Article 42 of the Arbitration Procedure Code of the Russian Federation, from the day when this person learned or should have learned about the violation of his rights and legitimate interests by the appealed judicial act (Part 2 of Art. 276 Arbitration Procedure Code of the Russian Federation).

Thus, it is necessary to take into account the deadlines for cassation appeal, since it is sometimes not possible to restore such a period, even taking into account compelling reasons.

Procedure for filing a cassation appeal

The question often arises: where and how should a cassation appeal be filed?

Everything again depends on the type of legal proceedings.

1) Civil process.

By virtue of the provisions of Art. 377 Code of Civil Procedure of the Russian Federation - Procedure for filing cassation appeals, presentations (as amended. Federal Law dated 09.12.2010 No. 353-FZ).

1. Cassation appeal, presentation submitted directly to the cassation court.
2. Cassation appeals and presentations are submitted:

1) against appeal rulings of the supreme courts of republics, regional, regional courts, courts of federal cities, courts of an autonomous region, courts autonomous okrugs; to appeal rulings of district courts; on court orders, decisions and determinations of district courts and magistrates that have entered into legal force - respectively, to the presidium of the supreme court of the republic, regional, regional court, court of a federal city, court of an autonomous region, court of an autonomous district;

2) against appeal rulings of district (naval) military courts; on decisions and rulings of garrison military courts that have entered into legal force - ;

3) on decisions of the presidiums of the supreme courts of republics, regional, regional courts, courts of federal cities, courts of an autonomous region, courts of autonomous districts; on appeal rulings of the supreme courts of republics, regional, regional courts, courts of federal cities, courts of an autonomous region, courts of autonomous districts, as well as decisions and rulings of district courts that have entered into legal force, adopted by them at first instance, if these decisions and rulings were appealed to the presidium, respectively, of the supreme court of the republic, the regional, regional court, the court of a federal city, the court of an autonomous region, the court of an autonomous district, - to the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation(as amended by Federal Law No. 23-FZ dated 03/08/2015);

4) on decisions of the presidiums of district (naval) military courts; against appeal rulings of district (naval) military courts, as well as against decisions and rulings of garrison military courts that have entered into legal force, if these court decisions were appealed to the presidium of the district (naval) military court - (Clause 4 as amended by Federal Law No. 29-FZ dated March 12, 2014).

Wherein Supreme Court The Russian Federation, in its Resolution of the Plenum of December 27, 2016 No. 62 “On some issues of the application by courts of the provisions of the Civil Procedure Code of the Russian Federation,” defined the position regarding the appeal of a court order issued by a magistrate directly to the cassation court in the manner prescribed Article 377Code of Civil Procedure of the Russian Federation.

2) Administrative process.

Provisions of Art. 319 CAS RF actually copies the above provisions of the Civil Procedure Code of the Russian Federation with the exception of paragraphs 1, 3 of part 2 of Article 319 CAS RF, which are interpreted in paragraph 84 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2016 N 36 “On some issues of application by courts of the Administrative Code legal proceedings of the Russian Federation" Within the meaning of paragraphs 1, 3 of part 2 of Article 319 of the CAS of the Russian Federation, cassation (private) complaints, submissions against decisions and rulings of district courts, decisions and rulings of the supreme courts of republics, regional, regional courts, courts of federal cities, autonomous courts region, courts of autonomous districts (hereinafter referred to as regional or equivalent courts), rendered by them as courts of first instance and subject to appeal to appeal procedure in the same court, as well as appeal rulings of regional or equivalent courts are filed with the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation, if the relevant judicial acts were appealed to the presidium of a regional or equivalent court.

Just as for arbitration courts, part 3 of the above-mentioned article of the CAS of the Russian Federation suggests that it is possible to file a cassation appeal electronically by filling out a form posted on the official website of the court on the Internet.

3) Criminal trial echoes the norms of civil and administrative procedural legislation, however, in Article 401.3 of the Code of Criminal Procedure of the Russian Federation “Procedure for filing a cassation appeal, presentation” there are slight differences.

So, according to Part 1 of the said article of the Code, a cassation appeal or presentation is filed directly to the cassation court, authorized in accordance with part two of this article to review the appealed court decision.

1. Cassation appeals and presentations are submitted to:

1) sentence and ruling of the magistrate, sentence, ruling and ruling district court, appellate decisions and rulings, as well as interim court decisions of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, rendered by them in the course of criminal proceedings as a court of first instance, - respectively, to the presidium of the supreme court of the republic, regional or regional court, court of a federal city, court of an autonomous region, court of an autonomous district (as amended by Federal Law No. 217-FZ dated July 23, 2013);

2) court decisions specified in paragraph 1 of this part, if they were appealed in cassation to the presidium of the supreme court of the republic, regional or regional court, court of a federal city, court of an autonomous region, court of an autonomous district; a verdict or other final judicial decision of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, if these court decisions were not the subject of consideration by the Supreme Court of the Russian Federation on appeal; decisions of the presidium of the supreme court of a republic, a regional or regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district - to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation

(as amended by Federal Law No. 382-FZ dated December 28, 2013);

3) the verdict, ruling and ruling of the garrison military court, appeal decisions and rulings of the district (naval) military court - to the presidium of the district (naval) military court (as amended by Federal Law No. 217-FZ of July 23, 2013);

4) interim court decisions of the district (naval) military court, rendered by it in the course of criminal proceedings as a court of first instance, - to the presidium of the district (naval) military court ;

5) court decisions specified in paragraph 3 of this part, if they were appealed in cassation to the presidium of the district (naval) military court; a verdict or other final judicial decision of a district (naval) military court, if they were not the subject of consideration by the Supreme Court of the Russian Federation on appeal; decisions of the presidium of the district (naval) military court - to the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation (Clause 5 as amended by Federal Law No. 29-FZ dated March 12, 2014).

At the same time, the Supreme Court of the Russian Federation in paragraph 3 of the Resolution of the Plenum of January 28, 2014 No. 2 (as amended on March 3, 2015) “On the application of the norms of Chapter 47.1 of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of cassation” pointed out that, that the proceedings in the court of cassation are carried out in compliance with the requirement of instance established by Article 401.3 of the Code of Criminal Procedure of the Russian Federation, in accordance with which a cassation complaint, presentation, as well as a criminal case, are first considered in a lower and then in a higher court of cassation. In this case, courts should keep in mind that a court decision can be appealed to the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, to the Military Collegium of the Supreme Court of the Russian Federation, provided that it was appealed to the Presidium of a lower court (paragraphs 2 and 5 of Part 2 Article 401.3 of the Code of Criminal Procedure of the Russian Federation as amended by Federal Law of December 28, 2013 N 382-FZ).

The decision of a judge of a district court, a garrison military court, issued in execution of a sentence, regardless of what level the court passed the sentence, can be reviewed in cassation only in compliance with the authority established by part 2 of Article 401.3 of the Code of Criminal Procedure of the Russian Federation, that is, by the presidium of the relevant the supreme court of the republic, a regional, regional or equivalent court, and then the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, the Military Collegium of the Supreme Court of the Russian Federation.

A cassation appeal or presentation, in which the verdict and the judge's decision made in execution of the sentence are simultaneously appealed, are subject to consideration by the court of cassation, which is competent to review the verdict, regardless of which district court judge (of the same or another subject of the Russian Federation) made the decision in order of execution of the sentence.

4) Arbitration process.

The procedure for filing a cassation appeal in the arbitration process is enshrined in Article 275 of the Arbitration Procedure Code of the Russian Federation.

1. The cassation appeal is submitted to the arbitration court of the cassation instance, which is authorized to consider it, through the arbitration court that made the decision.
2. The arbitration court that made the decision is obliged to send the cassation appeal along with the case to the appropriate arbitration court of the cassation instance within three days from the date the complaint was received by the court.

According to paragraph three of paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2016 No. 62 “On some issues of application by courts of the provisions of the Civil Procedure Code of the Russian Federation”, cassation appeal against arbitration order, is submitted according to the rules of Article 275 of the Arbitration Procedure Code of the Russian Federation to the arbitration court of the cassation instance, authorized to consider it, through the arbitration court that issued the court order.

At the same time, the Supreme Court noted that the violation established order filing a cassation appeal against a court order is not grounds for returning the cassation appeal. In order to identify the grounds for reviewing a court order in cassation proceedings, a judge of an arbitration court of cassation has the right to request a case from the arbitration court that adopted the contested court order (Part 2 of Article 288.1 of the Arbitration Procedure Code of the Russian Federation).

When filing a cassation appeal in an arbitration case, it is also important to take into account the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 10/08/2012 No. 60 (as amended on 07/02/2013) “On some issues that arose in connection with the creation of the Intellectual Rights Court in the arbitration court system”

By virtue of Part 4 of Article 222.9 of the Arbitration Procedure Code of the Russian Federation decision of the Intellectual Property Rights Court such cases can be appealed to the cassation instance, which, based on paragraph 1 of Article 43.6 of the Law on Arbitration Courts, is the presidium of the Intellectual Rights Court (clause 10).

At the same time, it is important to note that the procedure for legal proceedings in arbitration courts is determined by the Constitution of the Russian Federation, the Federal Constitutional Law “On judicial system Russian Federation" and the Federal Constitutional Law "On Arbitration Courts in the Russian Federation", the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Code) and other federal laws adopted in accordance with them (Part 2 of Article 3 of the Arbitration Procedure Code of the Russian Federation)

Arbitration systemshipsin the Russian Federation are:

district arbitration courts(arbitration cassation courts);

arbitration courts of appeal (paragraph introduced by Federal Constitutional Law of July 4, 2003 No. 4-FKZ);

arbitration courts of first instance in republics, territories, regions, cities of federal significance, autonomous regions, autonomous districts (hereinafter referred to as arbitration courts of constituent entities of the Russian Federation) (as amended by the Federal Constitutional Law of July 4, 2003 No. 4-FKZ);

specialized arbitration courts.

According to the provisions of Art. 24. Federal Constitutional Law No. 1-FKZ dated April 28, 1995 (as amended on February 15, 2016) “On Arbitration Courts in the Russian Federation” provides the following.

1. Arbitration courts of districts are courts for verifying in the cassation instance the legality of judicial acts of arbitration courts of constituent entities of the Russian Federation and arbitration appellate courts, and in cases established by federal laws - judicial acts adopted by cassation courts, unless otherwise provided by this Federal Constitutional Law. Arbitration courts of districts are also courts of first instance to consider applications for the award of compensation for violation of the right to trial in reasonable time in cases considered by arbitration courts, or for violation of the right to execute judicial acts within a reasonable time, adopted by arbitration courts (clause 1 as amended by the Federal Constitutional Law of June 4, 2014 No. 8-FKZ).
2. In the Russian Federation there are:

1) The Arbitration Court of the Volga-Vyatka District, which verifies judicial acts adopted by the arbitration courts of the Vladimir region, Ivanovo region, Kirov region, Komi Republic, Kostroma region, Mari El Republic, Mordovia Republic, Nizhny Novgorod region, Chuvash Republic - Chuvashia, Yaroslavl region, and judicial acts of arbitration courts of appeal established in this judicial district;

(as amended by Federal Constitutional Laws dated July 4, 2003 No. 4-FKZ, dated June 4, 2014 No. 8-FKZ)

2) The Arbitration Court of the East Siberian District, which verifies judicial acts adopted by the arbitration courts of the Republic of Buryatia, the Irkutsk region, Krasnoyarsk Territory, the Republic of Sakha (Yakutia), the Republic of Tyva, the Republic of Khakassia, the Trans-Baikal Territory, and judicial acts of arbitration courts of appeal established in this judicial district, as well as for the period until January 1, 2010 - judicial acts adopted by the Arbitration Court of the Chita Region;

(as amended by Federal Constitutional Laws No. 6-FKZ dated November 29, 2007, No. 8-FKZ dated June 4, 2014)

3) Arbitration Court of the Far Eastern District, which verifies judicial acts adopted by arbitration courts of the Amur Region, Jewish Autonomous Region, Kamchatka Territory, Magadan Region, Primorsky Territory, Sakhalin Region, Khabarovsk Territory, Chukotka Autonomous District, judicial acts of arbitration courts of appeal established in this judicial district, as well as for the period until January 1, 2009 - judicial acts adopted by the Arbitration Court of the Kamchatka Region;

(as amended by Federal Constitutional Laws dated July 12, 2006 No. 3-FKZ, dated June 4, 2014 No. 8-FKZ)

4) The Arbitration Court of the West Siberian District, which verifies judicial acts adopted by the arbitration courts of the Altai Republic, Altai Territory, Kemerovo region, Novosibirsk region, Omsk region, Tomsk region, Tyumen region, Khanty-Mansiysk Autonomous Okrug - Ugra, Yamalo-Nenets Autonomous Okrug, and judicial acts of arbitration courts of appeal established in this judicial district;

(as amended by Federal Constitutional Laws No. 4-FKZ dated July 4, 2003, No. 2-FKZ dated April 28, 2008, No. 8-FKZ dated June 4, 2014)

5) The Arbitration Court of the Moscow District, which verifies judicial acts adopted by arbitration courts of the city of Moscow and the Moscow region, and judicial acts of arbitration courts of appeal established in this judicial district;

(as amended by Federal Constitutional Laws dated July 4, 2003 No. 4-FKZ, dated June 4, 2014 No. 8-FKZ)

6) Arbitration Court of the Volga District, which carries out verification of judicial acts adopted by arbitration courts of the Astrakhan region, Volgograd region, Penza region, Samara region, Saratov region, Republic of Tatarstan (Tatarstan), Ulyanovsk region, and judicial acts of arbitration courts of appeal established in this court district;

(as amended by Federal Constitutional Laws dated July 4, 2003 No. 4-FKZ, dated June 4, 2014 No. 8-FKZ)

7) Arbitration Court of the North-Western District, which verifies judicial acts adopted by arbitration courts of the Arkhangelsk region, Vologda region, Kaliningrad region, Republic of Karelia, Murmansk region, Novgorod region, Pskov region, the city of St. Petersburg and the Leningrad region, Tver region, and judicial acts of arbitration courts of appeal established in this judicial district;

(as amended by Federal Constitutional Laws dated July 4, 2003 No. 4-FKZ, dated June 4, 2014 No. 8-FKZ)

8) The Arbitration Court of the North Caucasus District, which carries out verification of judicial acts adopted by the arbitration courts of the Republic of Adygea (Adygea), the Republic of Dagestan, the Republic of Ingushetia, the Kabardino-Balkarian Republic, the Republic of Kalmykia, the Karachay-Cherkess Republic, Krasnodar region, Rostov region, Republic of North Ossetia - Alania, Stavropol Territory, Chechen Republic, and judicial acts of arbitration courts of appeal established in a given judicial district;

(as amended by Federal Constitutional Laws No. 4-FKZ dated July 4, 2003, No. 8-FKZ dated June 4, 2014, No. 10-FKZ dated June 23, 2014, No. 18-FKZ dated December 22, 2014)

9) Arbitration court Ural district, which checks:

(as amended by the Federal Constitutional Law of June 4, 2014 No. 8-FKZ)

judicial acts adopted by arbitration courts of the Republic of Bashkortostan, Kurgan region, Orenburg region, Perm region, Sverdlovsk region, Udmurt Republic, Chelyabinsk region, and judicial acts of arbitration courts of appeal established in this judicial district;

judicial acts adopted by the arbitration courts of the Komi-Permyak Autonomous Okrug and the Perm Region - for the period until June 30, 2007;

(Clause 9 as amended by the Federal Constitutional Law of March 25, 2004 No. 2-FKZ)

10) The Arbitration Court of the Central District, which verifies judicial acts adopted by the arbitration courts of the Belgorod region, Bryansk region, Voronezh region, Kaluga region, the Republic of Crimea, Kursk region, Lipetsk region, Oryol region, Ryazan region, the city of Sevastopol, Smolensk region, Tambov region, Tula region, and judicial acts of arbitration courts of appeal established in this judicial district.

(as amended by Federal Constitutional Laws No. 4-FKZ dated July 4, 2003, No. 8-FKZ dated June 4, 2014, No. 18-FKZ dated December 22, 2014)

1. Federal law may change the composition of judicial districts.

Thus, depending on which district the case under consideration belongs to, taking into account jurisdiction (Central, Far Eastern, West Siberian, Moscow, etc.), the arbitration court of the district is determined to which the future cassation appeal should be addressed. In this case, the cassation appeal will still be filed through the court that made the contested decision (first instance), after which, together with the case, it will go to the cassation court.

This procedure differs from civil, administrative and criminal processes, where the complaint is filed directly with the cassation courts.

At the same time, as regards criminal procedural law, the Law defines 2 cassation instances, in which the verdict can be appealed:

I - the presidium of the regional and equivalent court (in relation to Sevastopol - this is the Sevastopol City Court) Federal Constitutional Law of March 21, 2014 N 6-FKZ (as amended on December 28, 2016) “On the admission of the Republic of Crimea to the Russian Federation and the formation of Russian Federation of new subjects - the Republic of Crimea and the federal city of Sevastopol"

II - Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation.

Legal regulation of cassation proceedings

When filing a corresponding cassation appeal in court, it is necessary to correctly follow the norms of the current procedural legislation.

1) In civil proceedings, cassation proceedings regulated first Chapter 41 Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (as amended on December 19, 2016) (as amended and supplemented, entered into force on January 1, 2017)

Here it is no less important to take into account the based Resolutions of the Plenums of the Supreme Court of the Russian Federation:

dated June 24, 2008 No. 12 “On the application by courts of the norms of the Civil Procedure Code of the Russian Federation governing proceedings in the cassation court”;

dated 12/11/2012 No. 29 “On the application by courts of the norms of civil procedural legislation governing proceedings in the cassation court”;

dated January 21, 2016 No. 1 “On some issues of application of the legislation on reimbursement of costs associated with the consideration of the case”;

dated March 29, 2016 No. 11 “On some issues arising when considering cases of awarding compensation for violation of the right to trial within a reasonable time or the right to execution of a judicial act within a reasonable time”;

2) Code of Administrative Procedure of the Russian Federation dated 03/08/2015 No. 21-FZ (as amended on 07/03/2016) (as amended and supplemented, entered into force on 01/01/2017) regulates cassation proceedings by provisions Chapter 35, as well as Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2016 No. 36 “On some issues of application by courts of the Code of Administrative Procedure of the Russian Federation.”

You should also pay attention to “Review of judicial practice of the Supreme Court of the Russian Federation No. 4 (2015)” (approved by the Presidium of the Supreme Court of the Russian Federation on December 23, 2015)

3) Criminal process.

Chapter 47.1 Criminal Procedure Code of the Russian Federation dated December 18, 2001 No. 174-FZ (as amended on December 19, 2016) (as amended and supplemented, entered into force on January 1, 2017).

Resolutions of the Plenums of the Supreme Court of the Russian Federation:

dated February 10, 2009 No. 1 (as amended on November 29, 2016) “On the practice of courts considering complaints in accordance with Article 125 of the Criminal Procedure Code of the Russian Federation”;

dated 04/21/2009 No. 8 (as amended on 11/17/2015) “About judicial practice conditional early release from serving a sentence, replacement of the unserved part of the sentence by more soft look punishment";

dated January 28, 2014 No. 2 (as amended on March 3, 2015) “On the application of the norms of Chapter 47.1 of the Criminal Procedure Code of the Russian Federation governing proceedings in the cassation court.”

Reviews of the practice of the Supreme Court of the Russian Federation also clarify many provisions regarding legal regulation cassation appeal process.

No. 3 (2015) (approved by the Presidium of the Supreme Court of the Russian Federation on November 25, 2015),

No. 4 (2015) (approved by the Presidium of the Supreme Court of the Russian Federation on December 23, 2015),

No. 3 (2016) (approved by the Presidium of the Supreme Court of the Russian Federation on October 19, 2016).

4) Arbitration process

Proceedings in the court of cassation in arbitration cases are carried out in accordance with the norms of the Arbitration Procedural Code of the Russian Federation dated July 24, 2002 No. 95-FZ (as amended on December 19, 2016) (as amended and supplemented, entered into force on January 1, 2017 ), as well as taking into account the position of the Plenums of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation:

Resolution of the Plenum of the Supreme Court of the Russian Federation:

dated December 27, 2016 No. 62 “On some issues of application by courts of the provisions of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation on writ proceedings.”

Resolutions of the Plenums of the Supreme Arbitration Court of the Russian Federation:

dated 02/17/2011 No. 12 (as amended on 01/21/2016) “On some issues of application of the Arbitration Procedural Code of the Russian Federation as amended by Federal Law dated 07/27/2010 N 228-FZ “On Amendments to the Arbitration Procedural Code of the Russian Federation” dated 09.12. 2002 No. 11 (as amended on November 17, 2015) “On some issues related to the implementation of the Arbitration Procedural Code of the Russian Federation”;

dated 10/08/2012 No. 60 (as amended on 07/02/2013) “On some issues that arose in connection with the creation of the Intellectual Rights Court in the arbitration court system.”

dated July 11, 2014 No. 46 “On the application of legislation on state duties when considering cases in arbitration courts”;

dated July 18, 2014 No. 50 “On reconciliation of the parties in the arbitration process.”

Payment of the state fee when filing a cassation appeal

1) In accordance with sub. 9 clause 1 art. 333.19 of the Tax Code of the Russian Federation when filing an appeal in cases under consideration in the courts general jurisdiction , state duty is paid in the amount of 50 percent of the state fee payable upon filing no statement of claim property nature .

2) Sub. 7 clause 1 art. 333.20 of the Tax Code of the Russian Federation, it is determined that when filing a cassation appeal, accomplices and third parties acting in the process on the same side as the person who filed the cassation appeal are interested persons in the cases being considered in administrative proceedings, state duty is not paid;

3) By virtue of subparagraph 12 of paragraph 1 of Article 333.21 of the Tax Code of the Russian Federation, when filing an appeal and (or) cassation, supervisory complaint on decisions and (or) resolutions arbitration court, as well as on court rulings to terminate the proceedings, to leave the statement of claim without consideration, to extradite writs of execution for enforcement of decisions arbitration court, on the refusal to issue writs of execution - 50 percent of the amount of the state duty payable when filing a claim of a non-property nature;

However, the legislator also determined the circle of persons exempt from the burden of incurring expenses associated with the payment of state duties.

In particular, as the Supreme Court of the Russian Federation explained,

The following are exempt from paying state duty:

Individuals - Heroes Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory - in cases considered in courts of general jurisdiction, by magistrates, in Constitutional Court of the Russian Federation, when contacting authorities and (or) officials who commit notarial acts, and to the bodies implementing state registration acts civil status; Individuals - participants and disabled people of the Great Patriotic War- in cases considered in courts of general jurisdiction, by justices of the peace, in the Constitutional Court of the Russian Federation, when applying to bodies and (or) officials performing notarial acts, and to bodies carrying out state registration of acts of civil status.

The basis for providing benefits to individuals is a certificate of the established form

from paying state duty on cases considered in courts of general jurisdiction, as well as by magistrates, are released:

plaintiffs - on claims for recovery wages(monetary support) and other requirements arising from labor relations, as well as in claims for recovery of benefits; plaintiffs - in claims for alimony; plaintiffs - in claims for compensation for damage caused by injury or other damage to health, as well as the death of the breadwinner; plaintiffs - for claims for compensation of property and (or) moral damage caused by a crime; organizations and individuals - for issuing documents to them in connection with criminal cases and cases of alimony; parties - when filing appeals and cassation complaints regarding claims for divorce; individuals - when filing cassation appeals in criminal cases in which the correctness of the recovery of property damage caused by a crime is disputed; prosecutors - on applications in defense of the rights, freedoms and legitimate interests of citizens, an indefinite number of persons or interests of the Russian Federation, constituent entities of the Russian Federation and municipalities; plaintiffs - in claims for compensation for property and (or) moral damage caused as a result of criminal prosecution, including issues of restoration of rights and freedoms; rehabilitated persons and persons recognized as victims of political repression, - when addressing issues arising in connection with the application of legislation on the rehabilitation of victims of political repression, with the exception of disputes between these persons and their heirs; forced migrants and refugees - when filing complaints about the refusal to register an application for recognition of them forced migrants or refugees; authorized federal body executive power on control (supervision) in the field of consumer rights protection (its territorial bodies), as well as other federal executive bodies exercising control and supervision functions in the field of protection of consumer rights and safety of goods (works, services) (their territorial bodies), bodies local government, public associations consumers (their associations, unions) - for claims brought in the interests of a consumer, a group of consumers, an indefinite number of consumers; individuals - when submitting applications to the court for adoption and (or) adoption of a child; plaintiffs - when considering cases to protect the rights and legitimate interests of a child; The Commissioner for Human Rights in the Russian Federation - when filing a petition to verify a decision, sentence, ruling or order of a court or a judge's decision that has entered into legal force; plaintiffs - for claims of a non-property nature related to the protection of the rights and legitimate interests of disabled people; applicants - in cases of forced hospitalization of a citizen in a psychiatric hospital and (or) forced psychiatric examination; state bodies, local government bodies acting in cases considered in courts of general jurisdiction, as well as by magistrates, as plaintiffs or defendants; individuals serving a sentence of imprisonment - when filing an application for re-issuance of copies of decisions, sentences, court orders, court rulings, decisions of the court presidium supervisory authority, copies of other documents from the case issued by the court, as well as when filing an application for the issuance of duplicates of executive documents.

From payment state duty on cases considered in courts of general jurisdiction, as well as by magistrates are released:

public organizations of disabled people acting as plaintiffs and defendants; plaintiffs are disabled people of groups I and II; veterans of the Great Patriotic War, combat veterans, veterans military service applying for protection of their rights established by the legislation on veterans; plaintiffs - in claims related to violation of consumer rights; plaintiffs - pensioners receiving pensions assigned in the manner established by the pension legislation of the Russian Federation - in claims of a property nature against the Pension Fund of the Russian Federation, non-state pension funds either to federal authorities executive power, carrying out pension provision persons who served in military service.

To summarize the above, we can conclude that when filing and drawing up a cassation appeal, it is important to take into account several main factors.

• 1) Understand whether the applicant has the right to appeal in cassation and who can act on his behalf.
• 2) Are the procedural deadlines for appealing judicial acts of lower authorities observed?
• 3) Do the form and content of the procedural document itself (in the case under consideration, a cassation appeal) comply with the norms of a particular procedural legislation.
• 4) Whether the procedure for filing a cassation appeal in the relevant case has been violated.
• 5) Is it required to pay a state fee for filing a cassation appeal?

Of course, the most important thing is the content of the cassation appeal, the weight and reasoning of the arguments set out in it, indicating the violated norms of substantive and procedural law.

However, it should be noted that new circumstances and evidence in the case, which were not the subject of study by lower authorities, cannot serve as a basis for reviewing the judicial acts adopted in the case through the cassation procedure, which is intended only to check judicial acts for legality, as well as compliance with the norms substantive law and rules of procedural law. In this regard, the cassation appeal must clearly indicate the violations committed by the courts, without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests, as well as the protection of public interests protected by law.

The court, for its part, has the procedural right to consider the case only within the limits determined by the complaint. This means that if a court decision is only partially challenged, then verification of the rest of the judicial act remains at the discretion of the court.

Preparing a cassation appeal with the help of our specialists

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1. Prices for preparing a cassation appeal in a criminal case
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4. Prices for preparing a cassation appeal in an administrative case

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1. Sample cassation appeal in an administrative case

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How to file a cassation appeal to the Supreme Court of the Republic of Tajikistan

On December 26, 2018, a magistrate judge at the request of JSC " Tinkoff Bank"The court issued an order to collect the loan debt from my husband. The court did not receive a copy of the order; I learned about the court order from the bailiffs on March 29, 2019. I sent an objection by mail to cancel the court order on April 10, I couldn’t do it earlier, I was on sick leave, there is a duplicate of the sick leave. The magistrate dismissed my objection. Now my husband wants to file a causation complaint with the Supreme Court of the Republic of Tatarstan. Please tell me whether it makes sense to file and is it still possible to cancel the court order? And is it still possible to suspend the collection? has this issue not been resolved yet?

Antonina 06/11/2019 15:31

Hello! For quality advice, it is necessary to know all the circumstances of the case. A very important circumstance is the basis for leaving the objection unsatisfied. You can contact our company for more detailed advice by calling the phone number listed on the website. 50% discount using promo code "MIP".

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Senkina Elena Nikolaevna 11.06.2019 19:43

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Saibotalov Vadim Vladimirovich 12.06.2019 16:35

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Appeal

The appeal did not state that the requirements of Article 122 were not met when making the decision. Can I point out this violation in the cassation appeal?

Cassation appeal against appellate ruling filed in cases of violation by the court of civil and civil procedural rules. If there were violations, then the degree of their influence on the outcome of the trial is determined. Many people do not understand the specific purpose of this procedure and simply file a cassation, guided by their dissatisfaction with the court decision.

This is not a re-examination of the previous case or the facts related to it, but a detailed intervention in certain mechanisms and procedural points where your rights or the progress of the case were violated. Let's sort it out legislative basis cassation, their structural content and when and how to submit them.

The meaning of the procedure is to request a review or cancellation of a court order by a higher authority, due to violations of procedural and substantive law. According to paragraph 2 of Art. 376 of the Code of Civil Procedure of the Russian Federation, an appeal can be drawn up within 6 months after the resolution comes into force.

The time frame for consideration of applications is regulated by Article 382 of the Code of Civil Procedure of the Russian Federation.

Any participant in the process of lower appellate and first instance has the right to submit an appeal within the specified time frame.

This circle includes:

• Plaintiffs;
• Defendants;
• Convicts;
• Victims (criminal proceedings);
• Third parties whose interests are affected by the decision;
• Prosecutor General of the Russian Federation and his deputies;
• Prosecutors of republics, territories, and so on in accordance with Part 2, Clause 3, Art. 377 Code of Civil Procedure of the Russian Federation.

Please note: the complaint filed by the prosecutor is referred to as a cassation presentation. It can only be filed in cases where the prosecutor has already participated in your proceedings. This right is enjoyed not only by prosecutors, but also by employees (officials) of the prosecutor’s office.

Regulatory regulation of the process is carried out in different ways, depending on the nature of the case (Arbitration dispute, criminal process, civil, etc.).

Rules for submitting an appeal

Civil proceedings presuppose that the complaint:

• It will be sent to the cassation authority, which did not have your case pending;
• Submitted only to an order (resolution) that has entered into force;
• Submitted to orders issued by the presidium of the regional court, justices of the peace. Full list is prescribed in paragraph 2 of Art. 377 Code of Civil Procedure of the Russian Federation.

When filing a cassation appeal, it is necessary to comply with two principles: jurisdiction, priority. Filing is carried out only to higher courts regarding the authorities that made the decision in the case.

The legislation of the Russian Federation presupposes a hierarchy of legal proceedings, therefore a cassation appeal against an appeal ruling on civil case cannot be considered unless previously submitted. Can't go to higher authority, bypassing the lower one.

Drawing up a complaint

All aspects of the content are regulated by Article 378 of the Code of Civil Procedure of the Russian Federation:

• The name of the court where the appeal will be made;
• Full name, address permanent place residence/registration of the applicant, including data on his procedural role in lower authorities;
• List of names and addresses of former participants in the process;
• List of authorities that considered the case short description rulings, decisions, orders made by lower courts;
• List of grounds for complaint.

In order to correctly formalize and draw up a claim in accordance with the points indicated above, you can download a sample cassation complaint against an appellate ruling for a clear example.

The structure of the complaint against the ruling consists of 4 parts:

1. Introductory;
2. Descriptive
3. Motivational;
4. Petitionary;

The first part is the header of the document, where the applicant’s data is indicated, where the document is sent, etc. The second part contains information directly related to the reasons for which the cassation appeal is filed. The third contains evidence, which consists of references to individual acts legislative framework. Most often they refer to the Civil Procedure Code, since the meaning of this procedure is to identify procedural violations that influenced the court’s decision. The petition section consists entirely of the applicant’s demands, the satisfaction of which will restore his violated rights.

All structural aspects of the statement of claim can be clearly seen in the sample cassation complaint in a civil case on our website.

Reasons for return

The cassation is returned only to the person who submitted it within 10 calendar days, from the date of its adoption by the relevant authority. If it was submitted via the Internet portal sudrf.ru or my.arbitr.ru (when appealing the ruling of the arbitration court), then a notification about the refusal to accept it for processing will be sent via email. mailing address, which was used to register the account.

Reasons for refusal/return:

• When writing a complaint, the norms and requirements regulated in Section 4 of the Code of Civil Procedure of the Russian Federation were not taken into account;
• The person who filed the cassation does not have the right to do so;
• Referral to the wrong court;
• Expiration of the protest period.

The expired period can be restored by filing a petition "". The petition is examined by the judge personally, after which he issues either an affirmative or a negative verdict. The refusal to accept the application can also be appealed to a higher authority. However, when stating reasons in the document, you must indicate their importance and objectivity. These reasons are: serious illnesses, hospitalization, lack of notification of the court order.

Please note that some interested parties may object to the written petition. If the objecting party provides evidence that the reasons are not valid, the judge may deny the request.

The applicant may return a cassation appeal against the appeal ruling. To refuse, you will need to send a corresponding application before considering the complaint. After submitting your review, you are deprived of your rights to cassation appeal against the court decision in the case under consideration.

When filing complaints, remember that the court adheres to the principle of instant appeal. This means that it is impossible to appeal a court decision in cassation if you have not previously filed an appeal. Jumping over the head, as was the case before, is not allowed, which makes this procedure excessively labor-intensive and impossible to carry it out correctly without the help of a competent lawyer.

Question: How and where to file a cassation appeal? Do I need to attach copies to the cassation appeal? decisions made and decisions on the case, how many copies must be attached? What are the grounds for canceling or changing a court order? What are the first and second cassation?

I answer the question in relation to Civil Procedural Code Russian Federation.

Where and how to file a cassation appeal? What are the first and second cassation (cassation instances)?

Cassation appeal must be submitted directly to the cassation court in accordance with Art. 377 Code of Civil Procedure of the Russian Federation.

So, in order to understand what a cassation instance is and why there are two of them, let’s open Article 377 of the Civil Procedure Code.

We see that in accordance with paragraphs. 1 item 2 art. 377 Code of Civil Procedure of the Russian Federation appeal served in presidium the supreme court of the republic, the regional, regional court, the court of a federal city, the court of an autonomous region, the court of an autonomous district (i.e. in presidium of the court of a constituent entity of the Russian Federation).

Further, in accordance with paragraphs. 3 p. 2 art. 377 of the Code of Civil Procedure of the Russian Federation, a cassation appeal can be filed with Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation. Thus in Supreme Court A cassation appeal is filed against a decision of the presidium of a court of a constituent entity of the Russian Federation (i.e., a resolution adopted in cassation), or against decisions (decision and appeal ruling) of the courts of first and second instance, if they were appealed in cassation to the presidium courts of a constituent entity of the Russian Federation.

So it turns out that we have two cassation instances. First cassation - presidium the supreme court of the republic, the regional, regional court, the court of a federal city, the court of an autonomous region, the court of an autonomous district. Second cassation - Judicial collegium for civil cases of the Supreme Court Russian Federation.

How many copies of the cassation appeal and certified court decisions should I attach?

In accordance with Art. 378 Code of Civil Procedure of the Russian Federation k cassation appeal copies of court decisions adopted in the case certified by the relevant court are attached.

By court rulings meaning decisions accepted by the court at first instance, and the court ruling made by the court of appeal. Certified copies of these orders must be obtained from the court of first instance. The trial court must certify and file the relevant orders.

Thus, in Art. 378 of the Code of Civil Procedure of the Russian Federation, when it comes to a court decision, we mean a judicial act that ends the consideration of the case on the merits in the appropriate instance.

In accordance with Art. 378 of the Code of Civil Procedure of the Russian Federation, a cassation appeal is filed according to the number of persons participating in the case.

In addition, if the court of a constituent entity of the Russian Federation accepted and considered the case in cassation (first cassation), the next level of appeal is the cassation instance in the Supreme Court of the Russian Federation (second cassation). Therefore, to the above court rulings courts of first and second instance, it is necessary to add a court decision issued by the cassation instance of the court of a constituent entity of the Russian Federation.

Samu cassation appeal must be submitted in quantity on the number of persons involved in the case. Certified copies of court orders accepted in the case must be submitted in one certified copy for the cassation court.

State duty when filing a cassation appeal

When filing a cassation appeal, a state fee must be paid. So Tax Code(Article 333.19) provides that when filing cassation appeal a state fee is payable in the amount of 50% of the amount of the state fee payable when filing a claim of a non-property nature. It is also provided that when filing a claim of a non-property nature for individuals a state duty of 300 rubles is provided for legal entities- in the amount of 6,000 rubles.

Accordingly, when submitting cassation appeal a state fee of 150 rubles is subject to payment. (current as of October 2016) for individuals and in the amount of 3,000 rubles for legal entities.

Grounds for canceling or changing a court decision in the cassation instance

Grounds for cancellation or changes court decisions in the cassation instance are provided for in Art. 387 Civil Code of the Russian Federation. According to this article grounds for canceling or changing a court decision is a significant violation of substantive or procedural law that influenced the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests.

Thus, it can be seen that there are not many grounds for satisfying the cassation appeal.

As a judicial decision of the Krasnodar Regional Court, which was issued at the stage of cassation consideration and which is being appealed to the Supreme Court in cassation (second cassation) in accordance with paragraphs. 3 p. 2 art. 377 Code of Civil Procedure of the Russian Federation. When there is a result of the appeal, I will definitely write about it.

Cassation is the third and fourth instance in the judicial process of courts of general jurisdiction (the second is the appellate instance). An article on our website dedicated to the appellate instance will help you understand the difference between cassation and appeal in civil proceedings.

To explain the essence of cassation in civil proceedings, we will give examples of cassation courts. The claim was filed in the magistrate's court, and as a result of its consideration, a refusal was issued. The decision was appealed to the city court and the appellate ruling was left unchanged. The cassation authority in in this case will be high court subject (for example, Moscow regional court for the Moscow region and the city court of St. Petersburg for St. Petersburg).

You can also give an example when the application was initially submitted to the city court and the requirements were denied. The appeal ruling of the region's highest court left the decision unchanged. In this case, just as in the case of the initial filing of a claim in the magistrate’s court, the third instance will be the highest court of the subject, only with a different composition of judges in relation to the one considering the appeal.

Filing a cassation appeal

Where to start when you have in your hands the decision and determination of the courts of first and second instance? How to draw up and submit a cassation appeal?

First of all, it should be noted that the deadline for filing a cassation in civil proceedings is quite long and in most cases is six months from the date of the appeal ruling. The cassation appeal must indicate which decisions of previous instances are being appealed and the case numbers. It should also indicate which rules of law were applied incorrectly or were not applied at all, and for what reasons they are subject to application in this trial.

A cassation appeal should be submitted directly to the court that will consider it. As mentioned above, based on the result of consideration of the complaint, the judge alone makes a decision either to transfer the case for consideration or to refuse to transfer it for consideration. If the complaint is submitted to the board for consideration, the determination will indicate the date and time of the court hearing.

Features of the case consideration

It is worth considering that the cassation court does not re-evaluate the facts that were established by the first instance and the appeal. Therefore, it is recommended to refer specifically to the incorrect application of substantive and procedural legislation.

For example, the courts of the first and second instances, following a claim by the district administration for the demolition of an unauthorized building, found that plot of land there is an unauthorized construction. Under such circumstances, it will be unlikely to challenge the fact of erecting a structure on a land plot in cassation, but the rules of law on the basis of which the structure was recognized as unauthorized may be subjected to a new analysis. However, we should not forget that serious procedural violations could have led to an incorrect assessment of the facts, which can and should be referred to when appealing.

Second cassation in civil proceedings

It will be quite difficult to appeal the decision of the court of first instance, left unchanged by the appellate ruling, but it is still possible. The main problem when filing a cassation appeal is that 99% of them are not submitted to the panel of judges at all, since the judge, by his ruling, refuses to transfer the complaint to the cassation court for consideration, while giving a fairly brief reasoning.

It is important to know that refusal to transfer a case does not exhaust the rights to cassation appeal; a cassation appeal can consist of two parts. If the first one is refused, the second cassation in civil proceedings (exactly the same) is submitted to the Supreme Court. In this case, you must manage to meet the general six-month deadline established for a cassation appeal.

Having analyzed the concept of cassation in civil proceedings, in conclusion we once again emphasize that when preparing a cassation appeal, you should not simply duplicate statement of claim and an appeal, pointing out in detail the illegality of the actions of the defendant or plaintiff. The complaint must focus on the court's errors made when making a decision or appellate ruling.

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A cassation appeal is a procedural document that is drawn up by an interested party to the judicial process in order to verify the court's decision. By filing a cassation appeal, the right of cassation appeal is exercised, which arises for the persons participating in the case from the moment court decisions enter into legal force. Thus, filing a cassation appeal allows you to initiate a review by higher courts of the legality and validity of court decisions that have entered into legal force.

Grounds for filing a cassation appeal

The grounds for filing a cassation appeal are violations committed by the courts, in the opinion of the person filing such a complaint, when making decisions and decisions. In civil and administrative processes such grounds are significant violations of the norms of procedural law or norms of substantive law that influenced the outcome of the case (Article 387 of the Code of Civil Procedure of the Russian Federation, Article 328 of the CAS of the Russian Federation). In the arbitration process, in addition to the already indicated significant violations of the norms of substantive law or norms of procedural law, the grounds for filing a cassation appeal also include the discrepancy between the court’s conclusions contained in the decision, resolution, and the factual circumstances of the case established by the arbitration court of the first and appellate instances, and those available in case evidence (part 1 of article 288 of the Arbitration Procedure Code of the Russian Federation). In criminal proceedings, the grounds for filing a cassation appeal are significant violations of the criminal and (or) criminal procedural law that influenced the outcome of the case, or the identification of data indicating a person’s non-compliance with the conditions and failure to fulfill obligations stipulated by the pre-trial cooperation agreement (Part 1 of Art. 401.15 Code of Criminal Procedure of the Russian Federation).

The procedure for filing a cassation appeal in a civil case

Chapter 41 of the Code of Civil Procedure of the Russian Federation provides for the procedure for filing a cassation appeal, as well as the procedure for considering such complaints by the courts.

In accordance with Part 2 of Art. 376 of the Code of Civil Procedure of the Russian Federation, an appeal to the cassation court to appeal court decisions that have entered into legal force is possible if other options have been exhausted established by law ways to appeal court decisions before the day they enter into legal force. This rule was also confirmed by Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 N 29 “On the application by courts of the norms of civil procedural legislation governing proceedings in the cassation court” (clause 3).

The features of appealing court decisions in cassation in accordance with the norms of the Code of Civil Procedure of the Russian Federation are as follows:

• court decisions can be appealed within 6 months from the date of their entry into force (part 2 of article 376 of the Code of Civil Procedure of the Russian Federation);
• cassation appeals are filed directly with the cassation court (part 1 of article 377 of the Code of Civil Procedure of the Russian Federation);
• time frame for consideration of a cassation appeal: if the case is not requested, then the consideration period cannot exceed 1 month, and if the case is requested, this period is a maximum of 2 months, not counting the time from the day the case was requested until the day it was received by the cassation court (Part 1 Art. 382 of the Code of Civil Procedure of the Russian Federation). If the court of cassation is the Supreme Court of the Russian Federation, then the specified periods are increased by 1 month (Part 2 of Article 382 of the Code of Civil Procedure of the Russian Federation);
• persons participating in the case are notified of the time and place of consideration of the cassation appeal, presentation of the case, however, the failure of these persons to appear does not prevent their consideration (Part 2 of Article 385 of the Code of Civil Procedure of the Russian Federation).

The cassation appeal must mandatory contain the following information: name of the court where the complaint is filed; the name of the person filing the complaint, his place of residence (location) and the procedural position in the case; the name of other persons participating in the case, their place of residence or location; Name judiciary who considered the case at the first, appellate or cassation instance and the substance of the decisions they made; an indication of the judicial act being appealed; indications of significant violations of substantive and/or procedural law that influenced the outcome of the case (with specific arguments to justify such violations); request of the person filing the cassation appeal (part 1 of article 378 of the Code of Civil Procedure of the Russian Federation).

If a cassation appeal is filed by a person who did not take part in the case, it must also indicate what rights or legitimate interests of this person were violated by the court decision that entered into legal force.

The cassation appeal must be accompanied by: copies of court decisions adopted in the case, certified by the court; a document certifying the authority of the representative if the complaint is signed by the representative; a document confirming the payment of the state duty or the right to receive a benefit in the payment of the state duty, or a court order granting a deferment, payment by installments or a reduction in the amount of the state duty.

The cassation appeal is filed with copies, the number of which corresponds to the number of persons participating in the case.

Based on the results of studying the cassation appeal, the judge can make 2 types of rulings:

• on the refusal to transfer the cassation appeal for consideration in court hearing cassation court (in the absence of grounds for reviewing the court decision);
• on the transfer of the cassation appeal with the case for consideration at the court hearing of the cassation court (Part 2 of Article 381 of the Code of Civil Procedure of the Russian Federation).

The cassation court, having considered the appeal with the case, has the right:

• leave the decision of the court of the first, appellate or cassation instance unchanged, the cassation appeal, presentation without satisfaction;
• cancel the decision of the court of first, appellate or cassation instance in whole or in part and send the case for a new trial to the appropriate court;
• cancel the decision of the court of first, appellate or cassation instance in whole or in part and leave the application without consideration, or terminate the proceedings;
• leave in force one of the court decisions taken in the case;
• cancel or change the decision of the court of the first, appellate or cassation instance and adopt a new court decision, without transferring the case for a new trial, if an error was made in the application and (or) interpretation of substantive law;
• leave a cassation appeal or presentation without consideration on the merits if there are grounds provided for in Art. 379.1 of this Code (that is, if there are grounds for returning the cassation appeal without consideration on the merits).

The grounds for leaving a cassation appeal without consideration on the merits are:

• The cassation appeal or presentation does not meet the requirements imposed on them by the Code of Civil Procedure of the Russian Federation
• a cassation appeal was filed by a person who does not have the right to do so;
• the deadline for appealing a court decision in cassation has been missed and a court ruling on the restoration of such a period that has entered into legal force is not attached to the appeal or presentation;
• a request has been received to withdraw or return the cassation appeal or presentation;
• The cassation appeal and presentation were filed in violation of the rules of jurisdiction (Part 1 of Article 379.1 of the Code of Civil Procedure of the Russian Federation).

The procedure for filing a cassation appeal in an arbitration case

Chapter 35 of the Arbitration Procedure Code of the Russian Federation provides for the procedure for cassation appeal of court orders that have entered into legal force, issued by the arbitration court of the first instance, decisions of the arbitration courts of the first instance, if such decisions were the subject of consideration in the arbitration court of appeal or if the arbitration court of appeal refused to restore the missed filing deadline appeal and decisions of arbitration courts of appeal (part 1 of article 273 of the Arbitration Procedure Code of the Russian Federation).

The features of cassation appeal in accordance with the Arbitration Procedure Code of the Russian Federation are:

• a cassation appeal is filed with the arbitration court of the cassation instance through the arbitration court that made the decision (Part 1 of Article 275 of the Arbitration Procedure Code of the Russian Federation);
• a cassation appeal can be filed with the arbitration court electronically by filling out a form posted on the official website of the arbitration court on the Internet (Part 1 of Article 277 of the Arbitration Procedure Code of the Russian Federation);
• A cassation appeal can be filed within a period not exceeding two months from the date of entry into force of the appealed court order, decision, resolution of the arbitration court (Part 1 of Article 276 of the Arbitration Procedure Code of the Russian Federation). At the same time missed procedural period can be reinstated at the request of the person filing the complaint (parts 2–4 of Article 276 of the Arbitration Procedure Code of the Russian Federation);
• in addition to the written form, a cassation appeal can be filed by filling out a form posted on the official website of the arbitration court on the Internet (Part 1 of Article 277 of the Arbitration Procedure Code of the Russian Federation);
• the person filing a cassation appeal is obliged to send to other persons participating in the case copies of the cassation appeal and the documents attached to it, which they do not have, by registered mail with return receipt requested, or hand them over to other persons participating in the case or their representatives personally against signature ( Part 3 of Article 277 of the Arbitration Procedure Code of the Russian Federation);
• The arbitration court of the cassation instance considers a cassation appeal against the judicial act of the arbitration court within a period not exceeding two months from the date of receipt of the cassation appeal along with the case by the arbitration court of the cassation instance, including the period for preparing the case for trial (Part 1 of Article 285 of the Arbitration Procedure Code of the Russian Federation ).

A cassation appeal must necessarily contain the following information: the name of the arbitration court to which the cassation appeal is filed; the name of the person filing the complaint, indicating his procedural position, as well as other persons participating in the case, their location or place of residence; name of the arbitration court that adopted the appealed decision, resolution, case number and date of adoption of the decision, resolution, subject of the dispute; the requirements of the person filing the complaint to verify the legality of the appealed judicial act and the grounds on which the person filing the complaint is appealing the decision, resolution, with reference to laws or other regulatory legal acts, the circumstances of the case and the evidence available in the case; list of documents attached to the complaint.

The cassation appeal may also indicate telephone numbers, faxes, email addresses and other information necessary for consideration of the case, and existing petitions may be submitted (Part 2 of Article 277 of the Arbitration Procedure Code of the Russian Federation).

The cassation appeal must be accompanied by: a copy of the appealed judicial act; documents confirming the payment of the state duty or the right to receive benefits for the payment of the state duty, or a petition for a deferment, installment payment of the state duty, or a reduction in its amount; documents confirming the sending or delivery to other persons participating in the case, copies of the cassation appeal and documents that they do not have; a power of attorney or other document confirming the authority to sign the cassation appeal.

Documents attached to the cassation appeal can be submitted to the arbitration court in electronic form (parts 4, 5 of Article 277 of the Arbitration Procedure Code of the Russian Federation).

If the filed cassation appeal violates the requirements of Art. 280 of the Arbitration Procedure Code of the Russian Federation, the arbitration court of cassation issues a ruling on leaving such a complaint without progress, which must contain the grounds for leaving the complaint without progress and the period within which the violations must be eliminated. If the circumstances that served as the basis for leaving the cassation appeal without progress are eliminated within the period specified in the court's ruling, the cassation appeal is considered filed on the day of its initial receipt by the court and is accepted for proceedings by the arbitration court of the cassation instance. If these circumstances are not eliminated within the specified period, the cassation appeal will be returned in accordance with Art. 281 Arbitration Procedure Code of the Russian Federation.

The arbitration court of the cassation instance issues a ruling on the return of the cassation appeal if:

• a cassation appeal was filed by a person who does not have the right to appeal a judicial act in cassation proceedings;
• a cassation appeal was filed against a judicial act, which, in accordance with the Arbitration Procedure Code of the Russian Federation, cannot be appealed through cassation proceedings;
• the deadline for appealing a court decision in cassation has been missed and a petition to restore such a deadline has not been attached to the appeal or presentation or the restoration of the deadline has been denied;
• before the decision was made to accept the cassation appeal for processing by the arbitration court of the cassation instance, the person who filed the cassation appeal received a petition for its return;
• the circumstances that served as the basis for leaving the cassation appeal without movement have not been eliminated within the period established in the court ruling;
• A cassation appeal was filed against a judicial act, which was not appealed to the arbitration court of appeal, unless otherwise provided by this Code (Part 1 of Article 281 of the Arbitration Procedure Code of the Russian Federation).

The procedure for filing a cassation appeal in an administrative case

Code of Administrative Procedure of the Russian Federation in Ch. 35 provides for the procedure for filing and considering cassation complaints against judicial acts that have entered into legal force by persons participating in the case and other persons if their rights, freedoms and legitimate interests are violated by judicial acts. In general, this procedure repeats the procedure provided for by the Code of Civil Procedure of the Russian Federation (including the deadlines for filing a complaint, the content of a cassation appeal and the powers of the cassation court).

It should also be noted that from January 1, 2017, Part 3 of Art. 319 CAS RF, according to which a cassation appeal and the documents attached to it can also be filed by filling out a form posted on the official website of the court on the Internet information and telecommunications network (Part 1, Article 2 of the Federal Law of 03/08/2015 N 22- Federal Law (as amended on June 23, 2016)).

The procedure for filing a cassation appeal in a criminal case

A court decision that has entered into legal force can be appealed in the manner prescribed by Chapter. 47.1 of the Code of Criminal Procedure of the Russian Federation, to the court of cassation by the convicted, acquitted, their defenders and legal representatives, the victim, the private prosecutor, their legal representatives and representatives, as well as other persons to the extent that the appealed court decision affects their rights and legitimate interests. A civil plaintiff, civil defendant or their legal representatives and representatives have the right to appeal a court decision insofar as it relates to the civil claim. A cassation appeal in a criminal case is filed directly with the cassation court (Part 1 of Article 401.3 of the Code of Criminal Procedure of the Russian Federation).

A cassation appeal filed in a criminal case must contain the following information: the name of the court to which it is filed; information about the person who filed the complaint, presentation, indicating his place of residence or location, procedural status; an indication of the courts that considered the criminal case in the first, appellate or cassation instances, and the content of the decisions they made; an indication of the court decisions that are being appealed; an indication of significant violations of the norms of criminal or criminal procedural law committed by the courts that influenced the outcome of the case, with the presentation of arguments indicating such violations; request of the person filing the complaint (Part 1 of Article 401.4 of the Code of Criminal Procedure of the Russian Federation).

If a cassation appeal is filed by a person who did not take part in the case, it must also indicate what rights or legitimate interests of this person were violated by the court decision that entered into legal force.

The cassation appeal must be accompanied by: copies of court decisions adopted in the case, certified by the court; warrant or other document certifying the authority of the defense attorney; other documents confirming the arguments of the complaint, if necessary.

A cassation review of a sentence, ruling, or court decision on grounds that entail a worsening of the situation of a convicted person, an acquitted person, or a person in respect of whom the criminal case has been terminated is allowed within a period not exceeding one year from the date of their entry into legal force, if during the trial there were violations of the law that influenced the outcome of the case, distorting the very essence of justice and the meaning of the court decision as an act of justice, or if data was revealed indicating a person’s non-compliance with the conditions and failure to fulfill the obligations stipulated by the pre-trial cooperation agreement (Article 401.6 of the Code of Criminal Procedure of the Russian Federation).

Time limits for consideration of a cassation appeal: if the case is not requested, then the consideration period cannot exceed 1 month, and in the case of a request, such period is a maximum of 2 months, with the exception of the period from the day the case was requested until the day it was received by the cassation court (Part 1 Article 401.9 of the Code of Criminal Procedure of the Russian Federation). If the court of cassation is the Supreme Court of the Russian Federation, then the specified periods are increased by 1 month (Part 2 of Article 401.9 of the Code of Criminal Procedure of the Russian Federation). A criminal case based on a cassation appeal or presentation is considered in a court session of the court of cassation, with the exception of the Supreme Court of the Russian Federation, within one month, and in a court session of the Supreme Court of the Russian Federation - within two months from the date the judge made the decision provided for in Art. 401.11 Code of Criminal Procedure of the Russian Federation.

As a result of consideration of a criminal case, the cassation court has the right to:

• leave the cassation complaint or presentation unsatisfied;
• cancel the verdict, ruling or ruling of the court and all subsequent court decisions and terminate the proceedings in this criminal case;
• cancel the verdict, ruling or ruling of the court and all subsequent court decisions and transfer the criminal case for a new trial or return the case to the prosecutor;
• overturn the verdict of the appellate court and transfer the criminal case for a new appeal hearing;
• cancel the decision of the cassation court and transfer the criminal case for a new cassation hearing;
• make changes to the sentence, ruling or court order (Part 1 of Article 401.14 of the Code of Criminal Procedure of the Russian Federation).

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