The resolution of a lawsuit often satisfies one side, and is not at all a happy event for the other. Consequently, an entity who does not agree with the court's decision may file a new lawsuit requesting a review of the case and a new decision. IN in this case This is an appeal or cassation complaint. These concepts are not equivalent, although the purpose of the appeal is the same - to appeal the decision of the primary court. Next, we will consider what a cassation appeal is, in what cases it is used and how to draw it up.
About the cassation appeal in simple words
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A cassation appeal is a document that is drawn up and submitted to the court of the appropriate instance to review the decision. The purpose of such an appeal is to restore one’s rights if a person is sure that they were violated during the consideration of the case. This type of complaint can be filed in both civil and criminal proceedings. However, it should be noted that in the first case the appeal is submitted much more often.
The norms, the filing process, as well as the procedure for drawing up such appeals are regulated by Chapter 41 of the Civil Procedure Code of the Russian Federation. And Article 378 of the same chapter precisely regulates the structure of such a document.
It is important that if the appeal is drafted incorrectly, it simply will not be considered. And since the time frame for considering such requests is limited, you should do everything right the first time. In this case, it is better to contact a lawyer - he will draw up the application correctly and help with filing it with the court.
The following persons have the right to apply to the cassation court:
- parties to the case - plaintiff or defendant;
- persons whose rights are violated by a court decision;
- employees of the prosecutor's office, if the prosecutor took part in the consideration of the case by the court of first instance.
In other words, such an appeal can only be submitted by participants in the legal process and persons affected by the court decision.
Rules for writing a cassation appeal
First of all, it should be noted that a cassation appeal against a court decision can be filed only after an appeal has been filed and rejected by the court. In other words, cassation is the last opportunity to appeal a court decision.
The preparation of documents of this order is quite complicated and even the slightest mistake leads to its invalidity. Therefore, in this case, you should seek help from a lawyer.
Applications of this type are accepted both in written and printed form; this does not play a significant role, but the signature of the plaintiff himself or his authorized representative must be required.
The application must indicate the following:
- court name, address;
- Full name of the applicant;
- procedural status of the case;
- a list of courts in which the case has already been considered;
- information about all participants in the case (full name, passport details, place of residence);
- a list of court decisions that, in the applicant’s opinion, are subject to appeal;
- an indication of the reasons that, in the applicant’s opinion, are grounds for appealing the decision.
- the main part or the motivational part - this part of the appeal should be as complete and constructive as possible, since it is here that the inappropriateness of the decision made by the primary court should be convincingly and thoroughly stated. Claims must be supported by legislative norms;
- a request to consider the complaint and make a lawful decision regarding the case;
- list of attached documents;
- signature of the applicant or his authorized representative.
The reasoning part of the complaint should also indicate (if any) procedural errors. These include:
- improper composition of the court;
- failure to notify all participants in the court case about the meeting;
- failure to keep minutes of the meeting;
- violation of the right to defense;
- disruption of the judicial investigation, judicial debates, and so on.
The following documents should be attached to the application itself:
- photocopy of the passport of a citizen of the Russian Federation;
- a copy of all judicial acts issued in the case;
- judgment of the court of appeal;
- documents that confirm the illegality of the decisions of previous courts;
- receipt of payment of state duty;
- power of attorney to represent interests in court.
A cassation appeal in a criminal case is drawn up in the same way, regulated by Article 401.15 of the Criminal Code of the Russian Federation.
For reference, a cassation appeal is filed in the same number as the participants in the trial in relation to which the appeal is being filed.
An example of a cassation appeal for paperwork can be downloaded on our website.
Deadlines for filing an appeal
A complaint of this type must be filed within the strictly prescribed time limits by law. Moreover, it is important to remember the following - the countdown of the appeal period begins exactly the next day from the moment the decision was made by the appellate court, since a cassation appeal can only be filed after this.
Lawyer at the Legal Defense Board. He specializes in administrative and civil cases, compensation for damages from insurance companies, consumer protection, as well as cases related to the illegal demolition of shells and garages.
Cassation appeals are filed by the participants in the case if they disagree with the decisions made by the courts of previous instances - the appeal and the first.
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It is necessary to take into account a number of features of such requests, both when drawing up the document and when submitting it.
One of the mandatory conditions for accepting a cassation appeal for consideration is compliance with the requirements for the appeal period established by law.
Main aspects
By filing a cassation appeal with the court, the applicant demands that the decisions taken by the lower first or appellate instance be annulled.
For example, cassation appeals against decisions of district courts and magistrates are submitted to the regional court.
It is imperative to take into account the jurisdiction of the case by certain courts, for example, there is no point in going to an arbitration court in a civil case and vice versa.
When filing a cassation appeal, certain nuances must be observed:
| Payment of state duty | In most cases, filing a cassation appeal will have to pay a state fee. You do not need to pay it only when filing a cassation in a criminal case, as well as some types of civil, arbitration and administrative cases. The applicant may also have benefits in paying state fees. But most often, documents confirming payment of the statutory fee must be attached to the complaint. |
| Correct determination of the court to which the complaint is filed | Typically, a cassation appeal is addressed to a higher court, which will consider it, and is sent directly to it. An exception is established in the Arbitration Procedure Code of the Russian Federation. In arbitration cases, cassation appeals must be filed with the court that made the decision. It is imperative to correctly determine where the application should be sent, otherwise the complaint will simply be returned |
| Availability of the right of appeal | Only participants in the case, as well as persons whose rights and/or interests were violated by a decision of a lower court, can file a cassation appeal. Moreover, in the latter case, it will be necessary to explain exactly how rights and/or interests were affected. Naturally, it is possible to file cassation complaints both by the applicant himself and his representative, and in criminal cases by his defense attorney |
| When filing a cassation appeal, you must attach copies of previous court decisions | They can be obtained by submitting a written request to the appropriate court |
| Deadline for cassation appeal | You can file a cassation appeal not at any time, but only within the period allotted by law |
Another point that is often given insufficient attention is the content of the cassation appeal itself.
It will be significantly different, because the cassation court no longer examines evidence and does not accept new ones.
It deals only with checking the validity, legality and correctness of decisions made by lower courts.
In fact, he checks that all legal norms are observed when making a decision.
If possible, you should seek help in preparing the document from professional lawyers.
Drawing up an appeal yourself is not prohibited by law, but it is not always easy. Often, independent statements are of little use.
The submitters simply cannot clearly and clearly describe the reasons for the complaint, provide arguments, and references to regulations either they completely forget, or they indicate completely unrelated regulations.
Regulatory acts
The procedure for appealing judicial acts in cassation, depending on the type of case, is described by various codes.
When preparing a cassation in a criminal case, one must be guided by the norms of the Code of Criminal Procedure of the Russian Federation, in arbitration - by the Arbitration Procedure Code of the Russian Federation, in civil - by the Code of Civil Procedure, and in administrative cases by the CAS and the Administrative Code.
The same normative and legal regulations establish a specific deadline for filing a cassation appeal to the judicial collegium of the Supreme Court of the Russian Federation and other judicial instances.
Without studying the rules of appropriate procedural law, it is impossible to correctly draw up and file a cassation appeal.
This means you need to familiarize yourself with them before composing and sending your appeal.
The list of legal acts applicable to a specific situation will be individual in each case.
It can be compiled only after careful study of all case materials and decisions.
Restoring procedural time
Sometimes the deadline allotted by law for filing a cassation appeal is missed by the applicant.
In this case, you can try to restore it by filing accordingly.
An application for restoration of the missed deadline is drawn up in writing and attached to the complaint.
Its court considers the participants in the case without summoning them and formalizes its decision with a ruling.
Let's consider what information a petition to restore the deadline for filing a cassation appeal should contain:
It is very important to describe in detail and clearly the reasons why the deadline for the cassation appeal was missed. It is also necessary to attach supporting documents so that the court has no doubts.
Emerging nuances
Quite often questions arise regarding the procedure for determining the moment from which the period for cassation appeal begins.
Another nuance concerns the reasons for missing and reinstating the deadline for filing a cassation appeal.
The legislation allows the court to restore the deadline for cassation appeal only if there are good reasons for missing it.
But the list of valid reasons itself is not provided in the regulations.
The court is forced to resolve this issue on an individual basis each time, and the decisions can be completely different.
Despite fairly similar approaches to cassation complaints in procedural legislation, there are certain filing deadlines for different categories of cases.
This and other features must be taken into account when preparing and submitting an appeal. Otherwise, you may face a return of the complaint.
Video: what is the deadline for appealing?
Deadline for filing a cassation appeal
If for civil cases it is six months, then for arbitration cases it is only 2 months.
This point is very important to take into account at the stage of preparing the document, because it is not so easy to restore the missed deadline.
We present in the table data on the deadlines for filing a cassation appeal for various categories of cases:
In a civil case
Usually, the applicant also needs to remember to pay the state fee.
Otherwise, the application will be returned without consideration and will not bring any result.
Both the decisions of the appellate court and the court of first instance can be appealed to the cassation instance, for example, if the deadline for filing an appeal was missed.
According to criminal
For a long time, Russian procedural legislation allowed filing cassation appeals only for a limited period of time.
But this drawback was eventually eliminated. Today, the Code of Criminal Procedure of the Russian Federation does not limit the time limits for filing a cassation.
Moreover, all participants in the case, including convicts in correctional institutions, can make such a complaint.
A cassation appeal can be filed even after the convicted person has served his sentence.
In the arbitration process
Are considering arbitration courts mainly disputes between enterprises, organizations and entrepreneurs.
The proceedings in them, although similar to the procedures in civil cases, often have significant differences.
You can apply within 2 months.
But when restoring it, there are a number of nuances that are often forgotten:
According to administrative
Decisions can be appealed to a cassation court within six months from the date they enter into force.
A missed deadline can be restored, but only for a limited period of time.
It is 1 year and for the participants in the case it begins from the moment the contested decision comes into force, and for other persons - from the moment the applicant learned about the adoption of a decision that affects his rights and/or interests.
The first and last thing I want to write about the cassation instance is that it front door is official, i.e. Only for legal professionals. Moreover, in cassation appeals, as practice shows, there is a greater chance of getting the decisions of lower courts overturned than in an appeal.
Anyone interested in seeing why this is so, and what kind of beast this is - a cassation appeal - can read further.
We will not retell what is written in the Civil Procedure Code of the Russian Federation about the timing, procedure, and content of a cassation appeal.
Let's pay attention to the following:
Proceedings in the court of cassation are intended to correct significant violations of substantive law or procedural law committed by the courts during the previous trial of the case and which influenced the outcome of the case, and without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests, as well as public interests protected by law. (from the 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”, the provisions of which must also be followed when preparing a cassation appeal).
In Russian civil proceedings, the cassation instance is the third instance (after the courts considering the case on the merits and the appellate instance). Complaints are considered through cassation procedure on decisions that have entered into legal force courts up to cassation rulings of the Judicial Collegium for Civil Cases Supreme Court Russian Federation. Usually, a cassation appeal is filed against the decision of the court of first instance and/or the appellate ruling of the court of second instance, or both at once - depending on what exactly does not suit us. But for cassation it is necessary to go through the appeal stage, because if there was no appellate instance, then the court will not consider the cassation appeal(of course, you can file a complaint, but it will be returned without consideration).
The period for appeal is 6 months from the date the decision enters into legal force. Regardless of whether the decision was made by a magistrate or a district court, and, accordingly, who made the appeal ruling, a cassation appeal is filed to the 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. Cassation appeal filed directly with the cassation court.
And one more thing I would like to draw your attention to: when getting information from the Internet, do not forget to “check your watches” with the current edition of the Code of Civil Procedure of the Russian Federation, and if you decide to write a cassation appeal yourself, you need to familiarize yourself with Chapter 41 of the Code of Civil Procedure of the Russian Federation “Proceedings in the court of cassation” . After all, the purpose of a cassation appeal is to cancel or change the decisions of the courts of the first and appellate instance, and this is a difficult task. Moreover, cassation has a significant difference - purely legal specifics. The Court of Cassation does not consider the case itself on the merits; it assesses the correctness of the courts’ application of the law.
Time and its meaning: once again on the deadlines for cassation appeals
The six-month period begins to be calculated on the day after the adoption of the appeal ruling and expires on the corresponding date of the last month of this period. At the same time, the announcement at the court hearing of the appellate court of only the operative part of the appeal ruling and the postponement of drawing up a reasoned appeal ruling for a period of no more than five days (Article 199 of the Code of Civil Procedure of the Russian Federation) do not extend the date of its entry into legal force.
The deadline for filing cassation appeals is not considered missed if they were submitted to the postal service organization before twenty-four hours of the last day of the deadline (Part 3 of Article 108 of the Code of Civil Procedure of the Russian Federation). In this case, the date of filing the cassation appeal is determined by the stamp on the envelope, a receipt for acceptance of registered mail, or another document confirming the receipt of correspondence.
A cassation appeal filed after the expiration of the six-month period is subject to return without consideration on the merits, unless it is accompanied by a court ruling that has entered into legal force to restore this period.
The deadline can be restored at the request of both an individual and a legal entity and only in exceptional cases when the court recognizes valid reasons for missing it due to circumstances that objectively exclude the possibility of filing a cassation appeal within the prescribed period. Regarding individuals participating in the case, such circumstances, in particular, may include serious illness, helpless condition, other circumstances related to the personality of the applicant, as well as other circumstances beyond the control of the person, due to which he was deprived of the opportunity to timely file a cassation appeal in court.
It should be borne in mind that the application for restoration of the term can be satisfied if circumstances that objectively exclude the possibility of filing a cassation appeal occurred within a period no later than one year from the date the appealed court decision entered into legal force.
Circumstances associated with missing the deadline for filing a cassation appeal that arose outside the one-year period have no legal significance and are not subject to verification. In this case, the court refuses to satisfy the application to restore the deadline for filing a cassation appeal or presentation without checking the specified circumstances.
Argumentation of cassation complaints
The task of the court that considers the cassation appeal is to check whether the rules of law were applied correctly during the first consideration of the case. Notes on the interpretation of the rules of law given by a higher court are mandatory for the court reconsidering the case.
The limit of verification lies in the arguments in the filed complaint. The cassation court may go beyond these arguments if this is due to the interests of legality. The cassation instance cannot check court decisions in the unappealed part or decisions that were not appealed at all.
The case is not considered in the cassation court, because The task of the presidium of a higher court is not to consider a civil case as such.
In one of its decisions, the Supreme Court of the Russian Federation explained that when considering a case in cassation, the court checks the correct application and interpretation of the rules of substantive law and rules of procedural law by the courts that considered the case, within the limits of the arguments of the cassation appeal or presentation. In this case, the cassation court does not have the right to establish or consider proven circumstances that were not established or were rejected by the court of first instance or appellate instance, to prejudge questions about the reliability or unreliability of this or that evidence, the superiority of some evidence over others, and also to examine new evidence.
Thus, in accordance with the requirements of the current civil procedural legislation, a decision to review a cassation judicial act that has entered into legal force can be made in accordance with the circumstances of the case already established by the court, but subject to an error made by it in the application and interpretation of the rules of substantive or procedural law.
The Supreme Court of the Russian Federation overturned the cassation decision, indicating that “in violation of the provisions of Part 2 of Article 390 of the Civil Procedure Code of the Russian Federation, disagreeing with the assessment of the evidence given by the appellate court, the Presidium of the Krasnodar Regional Court gave its assessment of the evidence and circumstances of the case. the presidium of the Krasnodar Regional Court did not establish any violations of the norms of substantive and procedural law committed by the appellate court. Thus, the cassation court did not have the grounds provided for in Article 387 of the Civil Procedure Code of the Russian Federation to cancel the appeal ruling of the judicial panel for civil cases of the Krasnodar Regional Court of September 6. 2012" (the full text of the ruling of the Supreme Court of the Russian Federation can be found).
If you have read this far, then it is probably clear to you that filing a cassation appeal is an even more difficult task than an appeal. If you are ready to cope with it yourself, then with all our hearts we wish you success. If the rules of law were indeed violated, then you have an almost 100% opportunity to overturn the wrong court decision.
The lawyers of our college provide a variety of legal services related to the consideration of a civil case in the cassation instance; They will analyze the decisions of the courts of first and appellate instances, advise on the prospects of appealing in cassation, help you competently draw up a cassation appeal and defend your rights in higher courts, up to the Supreme Court of the Russian Federation.
A selection of the most important documents upon request Deadline for filing a cassation appeal(regulatory acts, forms, articles, expert consultations and much more).
Document forms
Articles, comments, answers to questions: Deadline for filing a cassation appeal
General rules appeals against the decisions of the magistrate are as follows. The appeal is filed through the judge who made the decision within a month from the date of the decision in final form. A private complaint may be filed within 15 days from the date of the ruling. A cassation appeal is filed through the court of first instance (magistrate) within three months (complaints against decisions that entered into force before October 1, 2019 - within six months) from the date the decision entered into force, provided that other established methods have been exhausted its appeal before it comes into force (Articles 321, 332, Part 1 of Article 376.1, Part 1 of Article 377 of the Code of Civil Procedure of the Russian Federation; subparagraph "c" of paragraph 99 of Article 10, Article 21 of the Law of November 28 .2018 N 451-FZ; clause 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 09/12/2019 N 30; clause 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2019 N 25).
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1. The circumstances on the basis of which the complaint was left without progress were not eliminated within the prescribed period (clause 1, part 1, article 379.1 of the Code of Civil Procedure of the Russian Federation). Such circumstances include violations of the requirements provided for in Art. 378 Code of Civil Procedure of the Russian Federation. This may be, for example, the absence in the complaint of the name of the court to which it is filed or the list of documents attached to it. Specific violations committed when filing a cassation appeal and the deadline for their elimination are indicated in the ruling on leaving the cassation appeal without progress (parts 1, 2, 5 of Article 378.2 of the Code of Civil Procedure of the Russian Federation).
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