There is an unwritten rule in medicine: the more opinions, the more accurate the diagnosis. So in court - there are several successive instances, upon appeal to which the decision of the previous court is either canceled or confirmed.
Appeal to the court of appeal is made after the decision of the court of general jurisdiction. The right to file a cassation appeal arises from the day when the decision of the previous court enters into force.
What are the complaints for?
Russian courts, which include city / district and world courts, from time to time for some reason violate the procedure.
As a result, the judge makes a decision that may not satisfy one of the parties or greatly worsen the situation of one of the participants.
The principle of justice applies - no one can be held twice responsible for the same crime. Therefore, the “double two” process in the same court will not work.
To restore violated rights, there are complaints to higher courts. The application to the court of appeal is practiced, and in the future - the filing of a cassation appeal, up to the Armed Forces of the Russian Federation.
About the appeal in brief
The difference from the usual statement of claim is that the essence of the case is described in general terms. The most important points will be violations of the court of general jurisdiction during the trial.
It should be indicated under which provisions mistakes were made. If in the case there was clear evidence of guilt or innocence of any of the parties, but they were not accepted by the court, the application must be indicated in the complaint and the judge’s reasoned refusal.
Let's say the appeal failed. The court ruling does not suit the applicant, and he is going to appeal the decision. Here the situation is similar. Complaint is filed, but cassation.
What you need to know
Deadline civil appeal is six months old. During this period, a citizen will be able (alone or with a lawyer) to figure out what the discrepancy between the process and the code was. The correct design of thoughts in a complaint often affects the outcome of a case.
It is not necessary to describe everything from beginning to end, you only need to indicate the most basic and relevant. What should be in the complaint:
- Details of the parties - full name, address.
- Who, when and on what issue filed a lawsuit (preferably in one sentence).
- Which court and what decision made. Indicated first instance and court of appeal (full names), document numbers.
- It should be stated which articles were violated.
- Application with a list of documents submitted.
Cassation appeal sample
Unlike the appeal, court of cassation has the right to refer cases for consideration or refuse a complaint. If the judge made a decision not in favor of the applicant, the complaint can be submitted to the Judicial Collegium of the RF Armed Forces.
When the meeting has already been scheduled, that is, the case has been transferred to the Presidium of the court, it is necessary to prepare again. This is a great opportunity to prove your case both in relation to the initial claim, and in relation to the rules applied (or not applied) in previous instances.
Since the complaint should indicate which evidence has not been considered previously, one must be prepared to provide it. At this stage, it is important to convince the judges that the rights have been violated and have not yet been restored.Particularly noted violations of the procedural order in the framework of the court session, which ultimately led to such consequences.
About lost time
The deadline for filing a cassation appeal in a civil case, as already noted, is six months. However, if time is lost, and the citizen did not have time to go to court, there is a rule for restoring deadlines.
In order to have the opportunity to continue the proceedings, it is necessary to submit documents that confirm the special circumstances. These can be significant obstacles, including illness, natural disasters, and other causes that make it impossible to file a complaint.
As soon as all obstacles are eliminated, the citizen needs to collect standard documents and provide a certificate of the reason for the pass. The restoration of the deadlines for filing a cassation appeal takes place in the same court in which it was originally planned to file the documents.
Together with the request for the return of the right to the application, the complaint itself is submitted. If the obstacles to applying to the court were really serious, the judge decides to restore the deadlines and considers the appeal.
Example
In judicial practice quite often there are really curious cases from a legal point of view - applications for the restoration of the deadlines for filing a cassation appeal are rejected by the court.
As a rule, claims of banks against borrowers are considered in absentia, that is, without the presence of the defendant, and often without the plaintiff. The court decision must be provided to both parties to the process, even if they were absent. This rule is enshrined in article 214 of the Code of Civil Procedure of the Russian Federation, which states that a copy of the decision is sent to the party no later than 5 days after the adoption of this decision.
Unfortunately, there are many cases when documents are not sent, so one of the parties cannot use its right, which is provided for in Article 237 of the Code of Civil Procedure (application for the cancellation of an absentee court decision within 7 days from the date of delivery of the copy of the decision).
Examples are known when the defendant arrives at the courthouse to get acquainted with the materials of the case, which he learns about the production by accident. He did not receive any materials by registered mail. Accordingly, the deadline for filing a cassation appeal in a civil case has expired.
In this case, lawyers have the opportunity to appeal specifically to the inaction of the employees of the judicial office, namely: regarding a violation of Article 214 and Article 237. In fact, the appeal to the court of appeal should have resolved this issue, that is, to restore the deadline for filing a complaint.
However, in this example, the lawyers had to declare to the third instance - a cassation appeal was filed, the deadlines were restored.
Further actions involved appealing the court decision already on loan obligations. But these are completely different articles.
Law for legal entities
Articles governing the procedure for handling complaints, as well as the deadlines and state fees, are available in the procedural codes. Since legal entities and non-IE citizens belong to different legal categories, some processes for them differ from each other.
For claims of legal entities, there are quite certain articles of the agro-industrial complex. The deadline for filing a cassation appeal under this code is somewhat different from the deadline set out in the Code of Civil Procedure.
So, the period for appeal is 1 month, for appeal - 2 months. If the organization missed all the deadlines, they are restored as well as for individuals - with the provision of documents that make it clear that the reason for missing was good enough.
In the event that the violation was committed by the judicial office, and the parties did not receive the documents on time (or did not receive them at all), this fact is indicated in the application for the restoration of the deadlines.
The law governing the rules, terms and conditions of appeal is defined in chapters 34-37 of the APC.Filing a cassation appeal is carried out by legal entities strictly in accordance with the code. In the event that the document is drawn up incorrectly or minor inaccuracies are made, the judge has the right to reject the complaint, that is, leave it without consideration.
Code for individuals
For individuals who do not have their own business, the Code of Civil Procedure of the Russian Federation applies. Chapters 41-42 define the main provisions in accordance with which the plaintiff prepares a complaint, and the court considers it.
Despite being busy or uninformed, the deadline for filing a cassation appeal should still be respected. GIC (and agribusiness), for their part, regulate this mechanism as much as possible. Drawing an analogy with the case above, restoring the right to a complaint can take a lot of time, which not everyone has.
CCP and appeal
In criminal proceedings, there may also be appeals and cassations. Moreover, the accused use the right to appeal sentences much more often than in civil cases.
Article 401 (paragraphs 1-4) of the Code of Criminal Procedure clearly answers the question, what is the deadline for filing a cassation appeal after the court of second instance has acquired legal force.
The period during which it is possible to appeal to the court of appeal, compared with civil cases, is limited to ten days from the date of sentencing. Appeal to the court of cassation, as amended by 2015, could take place within a year from the moment the previous decision entered into force.
Grounds for complaint
The rules for appeal in criminal cases are identical to those for civil proceedings. The grounds for filing a cassation appeal may be as follows:
- The court ignored extenuating circumstances.
- He did not apply the articles of the Criminal Code and the Code of Criminal Procedure, which provide for a period below the lower limit and the compliance of punishment with the crime committed.
- He ignored the positive characteristics of the accused.
- I did not take into account the active assistance to the investigation.
- Rejected any request for evidence, etc.
There are many parameters - one conclusion: the complaint indicates violations in the trial, and not the essence of the case.
Amendment of the CPC
Since the deadline for filing a cassation appeal is today a time not exceeding the sentence, this procedure can be initiated at any time. However, the signing of this law makes it completely impossible to appeal to the European Court of Human Rights.
According to article 35 of the Convention, consideration of a case can take place only when the existing possibilities of protecting human rights in the native state are exhausted.
Thus, the new provision, or rather, the loss of Article 401.3, part 3 of its force, allows the court to consider cases unreasonably for a long time, which significantly postpones the moment the convicted person appeals to the Strasbourg court.
Extension and suspension
The procedural code contains provisions defining the extension of the term for filing a cassation appeal. This procedure can be applied if any errors were made in the documents, when paying the state duty and other inaccuracies that need to be corrected. It usually takes more than one day to fix the shortcomings, and all time frames are violated.
At the same time, the deadline for filing a cassation appeal is the same 6 months, that is, it does not change. The judge in such situations often goes towards the applicant and extends the period by the necessary amount of time.
Suspension of time is made at the request of the plaintiff or by the court on their own. This occurs mainly in connection with the expectation of an important witness, with the onset of a certain date, which is important in the trial, etc.
Return of complaint to the applicant
Re-filing a complaint provides for its prior return. The court gives the applicant time to remove the obstacles to the consideration of the case. Therefore, the deadline for filing a cassation appeal in a civil case in this case is calculated from the day the complaint is returned to the plaintiff and cannot be more than 6 months.In fact, re-filing is closely intertwined with the extension of the term. The only difference is that the last event provides an option when the complaint was sent on time, but for some reason did not get to the judge.
Re-filing a cassation appeal will be considered final only if the judge accepts the documents for consideration. In this case, the period of consideration will be considered from the date of first admission to court.
Civil proceedings, according to the regulations, should not be more than two months. But the court, in the event of several facts of return, the judge can increase the time of the proceedings at his discretion.
While the documents will be sent by mail or moved in another way, the deadline for filing a cassation appeal may be missed. This point should be taken into account, and with the next set of documents send a request to restore the deadlines.
