If the parties to the case disagree with the results or procedure for considering the case, they file an appeal against the court decision. This is the first stage of the appeal. Without which all the others simply will not happen.
Let us immediately make a reservation that the examples of courts given in the article and the procedure for filing a complaint are valid until 2021. After all, on July 30, 2018, changes to the Law on the creation of appellate and cassation courts of general jurisdiction came into force. Due to the need to resolve personnel issues, the law will be fully operational no later than October 2021.
For now everything remains the same. All court decisions made at first instance are subject to appeal. The general period for filing an appeal is 1 month from the date the reasoned decision is made.
The appeal is drawn up in a form regulated by law and in compliance with the requirements for its content. The procedure for filing a lawsuit has also been established. Without compliance with the requirement, the court will not begin considering the complaint. Therefore, to draw up a document, use the provided sample and read the recommendations of lawyers.
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Appeal against a court decision
How to file an appeal against a court decision
The document is drawn up in writing. Even if it is sent through electronic services (now this option is available in almost every court).
In the header of the complaint, the applicant indicates the court that will hear the case. An appeal against decisions of magistrates is considered by a higher district court. The decision of the district court, adopted at first instance, is reviewed for legality by a higher court of the constituent entity of the Russian Federation.
The person filing the complaint must write his full last name, first name and patronymic, as well as the place where he lives at the time of drawing up and submitting the document. The text must indicate the full details of the court decision that is being appealed, namely: the name of the court that made the decision, the case number, the name of the plaintiff and defendant, the essence of the claims. This data can be copied from the appealed court decision.
The appeal must necessarily contain demands - this is what is written after the word “please”. Such requirements may be: cancellation of the court decision in whole or in part with the adoption of a new decision, with termination of proceedings in the case or with leaving the application without consideration.
The complaint must indicate the grounds for reversing the decision. The list of grounds is established by Article 330 of the Code of Civil Procedure of the Russian Federation. Take it as a basis, applying it to a specific court decision and your situation.
At the end there must be a list of attached documents, the complaint must be signed personally by the person filing it, and the date of filing with the court must be indicated.
The Plenum of the Supreme Court clarified the appeal under the Arbitration Procedure Code
The plenum was again held online. According to Supreme Court Judge Elena Borisova, new clarifications are needed to unify procedural rules. At the same time, the working group tried to preserve existing, “time-tested and practice-tested” approaches when considering cases. The draft clarification consists of almost 50 points, divided into three sections.
The chairman of one of the appellate courts, which will have to apply the clarifications of the Supreme Court in practice, Erdem Dorzhiev recalled: since 2009, when the Plenum of the Supreme Arbitration Court explained the peculiarities of the production of economic cases in appeal, the APC has already been amended more than 40 times. “The new resolution reflects changes in procedural legislation, as well as the positions of the Supreme Court formed when considering specific cases,” he emphasized.
In parallel with the clarifications of the appellate proceedings under the APC, the Plenum of the Supreme Court also clarified the rules for considering cases in cassation. Read more about them in the material “Plenum of the Supreme Court: features of cassation in economic cases.”
Following the meeting, the draft resolution was sent for revision. A link to the text of the draft clarification is at the end of the material.
1
Right to complain
The Plenum clarifies who generally has the right to appeal decisions of arbitration courts. These can be either direct participants in the dispute or persons who did not participate in the consideration of the case, but if the decision affects their rights and obligations. Prosecutors can also appeal decisions in cases in which they were not involved. Business ombudsmen can only appeal if they were involved in the first instance.
2
Cassation instead of appeal
In some cases, the second instance does not mean that it is an appellate instance. The Plenum of the Supreme Court explains: you need to immediately appeal in cassation:
- court orders;
- rulings to cancel the arbitration court's decision;
- determinations on the issuance of the execution warrant for its forced execution;
- rulings on recognition and enforcement of a foreign court decision;
- other definitions for these categories of disputes.
Decisions of the specialized Court for Intellectual Rights come into legal force immediately after adoption, and therefore cannot be appealed. They need to be complained about immediately to the presidium of this court.
3
Shortened terms
Some acts of the first instance must be complained about within a shortened period of 10 days. For example, these are determinations on the transfer of a case to jurisdiction, on the refusal to satisfy a request to involve a co-defendant, and other procedural decisions of the court. When appealing such determinations, the appellate court may postpone consideration of the dispute in the first instance.
A shortened period is also provided for cases of administrative offenses.
4
Two in one
An appeal can be filed against one or several judicial acts of the first instance. For example, one complaint may contain demands to appeal the decision in the case and a ruling to return the counterclaim. In this case, the arbitration appeal has the right to issue one ruling on acceptance of the complaint for proceedings, as well as one judicial act based on the results of their consideration.
The exception is complaints regarding acts issued in bankruptcy cases. They need to appeal each determination separately.
All appeals filed against one judicial act must be considered in one court hearing.
5
Complain directly to the AAS
As a general rule, an appeal must be filed through the court of first instance. But there are exceptions to this rule. For example, if the appellate court has already opened proceedings on an appeal in the same case, you can file the appeal directly there. In such a case, the appeal will not return the complaint to the complainant.
6
We calculate the deadlines correctly
The Plenum of the Supreme Court reminds: the deadline for filing an appeal is counted not from the date of sending a copy of the decision to the parties to the dispute, but from the date of production of the judicial act in full or from the date of signing by the judge of the operative part of the decision in a case considered through summary proceedings.
The Plenum of the Supreme Court gave an interpretation of the termination of obligations
If the first instance delays in preparing the decision, the period for appeal is not automatically extended. However, the parties to the dispute have the opportunity to apply for restoration of the missed deadline.
The Plenum also provides explanations to the courts on how to determine whether a party has met the deadline for appealing or not. A stamp on the envelope or a receipt for the letter at the post office will help.
If the court has doubts that the complaint was filed on time, it may ask the applicant for additional evidence of this fact.
7
(Un)valid reasons
The court may reinstate the deadline for filing a complaint if the reasons for missing the deadline were valid. The Plenum of the Supreme Court clarifies what can be considered a valid reason. For example, this is the introduction of a high-alert regime on the territory of a constituent entity of the Russian Federation, which provides for restrictions on free movement and presence in government and other institutions.
Plenum of the Supreme Court: how to consider appeals in administrative cases
The court can restore the term even when the applicant did not know about the existence of the appealed decision for a long time. This is possible if the complaint is filed by a person who did not participate in the consideration of the case in the first instance.
The list of unexcusable reasons for missing a deadline is a little more detailed. The Plenum of the Supreme Court includes among them the need to agree with a higher authority (or with someone else) on the issue of filing an appeal. Internal organizational problems of a legal entity are also not a reason to miss a deadline. As does the absence of a lawyer on staff, as does the lawyer’s vacation.
8
Additional evidence
Sometimes the appeal may consider new evidence in the case. But to do this, the one who provides this evidence needs to confirm that he could not show it in the first instance (for good reasons). Among such valid reasons, the Plenum of the Supreme Court includes cases where the first instance unreasonably rejected a party’s request to request additional evidence or to order an examination.
The clarifications emphasize that “recognition of evidence as relevant and admissible in itself is not a basis for its acceptance by the arbitration court of appeal.”
9
Lack of documents
The Plenum of the Supreme Court emphasizes: if the applicant of the appeal has not attached a copy of the appealed judicial act, this does not prevent the consideration of the complaint, because the judicial act is already in the case file.
However, you will still have to send a copy of the appeal to the parties in the case. The court may even adjourn the case until the applicant proves that he actually sent a copy to other parties to the case.
10
New consideration of the case
Based on the results of consideration of the appeal, the court may return the case for a new trial at the first instance. Issues the resolution of which falls within the jurisdiction of the court of first instance and which the court did not consider on the merits can be sent back to the lower court. For example, due to the unjustified return of a statement of claim, refusal to accept it, leaving the application without consideration, termination of proceedings in the case or refusal to review a judicial act due to new or newly discovered circumstances.
Results 2019: all explanations of the Plenum
If the first instance committed gross procedural violations, due to which the decision should definitely be canceled (Part 4 of Article 270 of the APC), then the appeal does not send the case for a new consideration, but simply cancels the decision and considers the dispute itself according to the rules of the first instance.
Draft resolution of the Plenum of the Supreme Court “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal.”
- Pravo.ru
- Arbitration process
- Supreme Court of the Russian Federation
Features of an appeal against a court decision
The applicant should not voice new requirements in the text. If he did not submit such demands to the court of first instance. If the complainant has added new evidence, justification is required. Why the party to the case did not present them to the court of first instance, the reasons must be valid. More details - a petition for evidence in an appeal, for an examination in an appeal.
Both court decisions and rulings are appealed through the appellate procedure. A special procedure is provided for determinations, in which case a private complaint is filed.
The main methods of registering and filing a complaint, their advantages and disadvantages
In practice, appealing a court decision made in civil proceedings occurs in one of two ways. The first involves independently drawing up a document and performing related procedural actions. The main advantage of this approach to solving the problem is obvious and consists in the absence of the need to pay for the services of professionals.
The disadvantages of this option of appealing the verdict of a judge in an administrative case are also very clear. The main one is the lack of guarantees for the successful completion of the event. The situation is complicated by the fact that Russian legislation regulating the sphere of legal proceedings is deservedly considered one of the most complex branches of law. Any inaccuracy in the preparation of the complaint and related documents, as well as untimely actions taken to submit them, result in a refusal to satisfy the applicant’s demands.
Therefore, there is nothing surprising in the popularity of the second option for solving the problem, which involves contacting a specialized law firm. The only drawback of this approach - the need to pay for the services of professionals - is compensated by numerous advantages, the main ones of which are:
- strict compliance with the procedures for appealing a court decision in a civil case provided for by law;
- competent execution of both the complaint itself and related documents;
- compliance with the requirements for appeal deadlines;
- high efficiency, which is expressed not in a 100% guarantee of a positive decision, which no one can give, but in the firm belief that everything possible has been done to legally protect the interests of the principal.
In other words, turning to professional lawyers is a simple, affordable and, ultimately, profitable way to appeal a court decision in a civil case. Moreover, considering the reasonable level of prices used by serious law firms.
Filing an appeal
An appeal is filed with the court that made the contested decision. There is no need to send documents to a higher court yourself.
When filing an appeal, personally mark the acceptance of the documents by the office employee on your copy of the complaint, which you must take with you to court. If the complaint is sent to the court by mail, do so by certified mail with return receipt requested. Then it will be known when the documents were received by the court.
A prerequisite is to attach copies of the complaint according to the number of persons participating in the case. The appeal is paid by the state fee, the original receipt is also attached. There is no need to attach documents that are already on file. The appellate court will examine the entire civil case.
The progress of the appeal should be monitored. If the complaint is left without progress, it is necessary to promptly obtain a copy of the court ruling and make the necessary amendments within the prescribed period. When returning the appeal, the court also issues a ruling indicating the reasons for such a procedural action.
State duty
Appeals against the actions of a judge in criminal cases sent to the appropriate authorities are filed without paying a state fee in the manner prescribed by the Code of Criminal Procedure of the Russian Federation.
Preliminary appeals to courts of general jurisdiction and colleagues of arbitration courts are submitted together with a receipt for payment of the state fee, which is:
- For individuals - 300 rubles.
- For legal entities - 2000 rubles.
When appealing an arbitration decision to the appellate instance, the state fee will be 50% of the amount of the state contribution, which is indicated when filing a non-property claim.
The law provides for a category of persons who are entitled to benefits when paying state fees when filing a challenge in certain types of courts:
- disabled people of categories 1 and 2;
- veterans of military service and combat.
Disabled people of groups 1 and 2 are exempt from paying the state contribution when filing a challenge in the courts of general jurisdiction, magistrates and the Supreme Court of the Russian Federation. The norm is regulated by clause 2 of part 2 of Article 333.36 of the Tax Code of the Russian Federation.
Veterans of military service and combat operations do not pay mandatory state duty if they appeal to the highest authority on issues of protection of their rights, which are outlined in the Law of the Russian Federation “On Veterans”.
In other property and non-property disputes that take place within the framework of administrative cases, the state fee established for filing a challenge is paid in full.
Depending on the type of administrative and civil case, the amount of the fee may vary. Each type of dispute is described in Art. 333.22 of the Tax Code of the Russian Federation and provides for a separate established amount when filing a challenge.
For example, if an appeal is filed by an employee regarding his illegal dismissal and the restoration of his right to work, the state contribution is not charged. A similar short appeal, but filed by the employer, is subject to a fee.
Acceptance and consideration of a complaint
The court of first instance, after receiving the appeal, decides on the possibility of accepting the complaint. Checks that there are no grounds for leaving or returning documents. If the appeal is accepted, the judge puts a mark on the complaint itself, which is then filed in the file.
After this, copies of the documents are sent to the persons participating in the case. After the deadline for appeal has expired, the materials of the civil case are sent to the court of appeal.
The appellate court notifies the persons participating in the case of the time and place of the trial. The case is considered according to the rules of the first instance and ends with the issuance of an appeal ruling. From the moment such a determination is made, the court decision, unless it is cancelled, is considered to have entered into legal force. If the decision is overturned, the appeal ruling resolves the case on the merits and acquires the force of a decision.
The appeal ruling can be appealed to a higher authority by filing a cassation appeal.
Stage 3. Cassation appeal (second)
You must appeal to the second cassation instance if the six-month appeal period has not been exceeded and the first stage of cassation has been passed, but the decision of the Presidium of the subject court must be appealed. The cassation appeal is filed with the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation (SKGD RF Supreme Court). The received cassation appeal is initially examined by a single judge, who decides to transfer or not transfer the case to the collegium. At the same time, the Chairman of the Supreme Court of the Russian Federation or his deputy may disagree with the refusal to transfer and cancel it. Options for considering a case on a cassation appeal:
- The complaint can be returned without consideration on the merits - the deadline for appeal has been missed, jurisdiction has been violated, the original or a copy (notarized) of the representative’s power of attorney has not been attached, etc. In this case, if the appeal period is not missed, the complaint can be resubmitted, eliminating the violations.
- A ruling was made to refuse to transfer the complaint for consideration at a court hearing of the appropriate authority.
- A ruling was made to transfer the cassation appeal for consideration in the cassation court and for this court to issue a ruling or ruling on the case.
Important! At this stage, it is the ruling of the cassation authority that was issued during the consideration of the complaint that is appealed. A refusal to submit a complaint for consideration cannot be appealed. However, when making a ruling to refuse to transfer the complaint for consideration, the applicant may send a letter to the Chairman of the RF Supreme Court or his deputy, who may disagree with the judge and cancel it.
What is the difference between an appeal against a magistrate’s decision?
An appeal against a decision of a magistrate is no different from an appeal against a decision of a district court. Such a complaint is filed through a magistrate judge, but is addressed to the district court. An appeal against a decision of a magistrate is considered according to the general rules of appeal proceedings.
It should be borne in mind that magistrates have the right not to draw up a full decision without a statement from the persons participating in the case. Therefore, within 3 days from the moment the operative part of the decision is announced by the magistrate, it is necessary to submit an application for drawing up a reasoned decision.
Based on the results of consideration of the appeal against the court decision, the district court issues an appeal ruling, which can only be appealed to the cassation instance.
Features of civil proceedings
Civil proceedings deal with cases of administrative offenses. This area of law is regulated by the Code of Administrative Offenses of the Russian Federation, which was adopted after the signing of No. 195-FZ of December 30, 2001. The Code is constantly being adjusted, so today the version of the document approved on July 4 of this year is in effect.
An important feature of administrative offenses is the fact that they are not crimes. Regardless of the judge's verdict in a civil case, the defendant is not considered to have been convicted. As a result, information about the court decision is not included in the law enforcement database.
The current version of the Code of Administrative Offenses provides for 3 types of punishments possible for administrative violations. These include:
- money penalty;
- administrative warning;
- administrative arrest for up to 15 days, in case of repeated violation - up to 45 days.
Bringing a citizen to justice is carried out either by a court or an authorized official. The first option is clear and does not require additional explanation. A typical example of the second is a traffic violation that does not lead to serious consequences. In this case, the decision on punishment is made at the level of the head of the traffic police department and is usually expressed in a monetary fine. More serious penalties, for example, deprivation of the right to drive a vehicle, are the exclusive prerogative of the court.
