Cassation to the Supreme Court is the last resort for appealing controversial and unsatisfactory previously adopted court decisions. Therefore, you must take the most responsible approach to writing a cassation appeal, taking into account all the legal and procedural aspects of this document. In the article, our lawyers will describe in detail what requirements the Supreme Court imposes on the complaint, the new rules for its preparation, what mandatory sections it consists of, the features and differences of the second cassation from the first, and will also give examples from their own practice of appealing to the Armed Forces of the Russian Federation.
Requirements of the Supreme Court for the content of cassation
Requirements for the form and content of a cassation appeal to the Supreme Court of the Russian Federation are imperatively established by the norms of procedural legislation, respectively, the Arbitration Procedure Code and the Code of Civil Procedure. According to the new rules, the codes establish a mandatory minimum of what, regardless of your arguments, must be indicated in the text of the cassation, namely:
- that the complaint is being filed with the Supreme Court (address, full name);
- your data and contact information (full name, passport, address, telephone);
- data of other participants in the process;
- information about the acts being appealed, that is, by which courts the case was considered, indicating its number and what conclusions they made based on the results of the trial;
- a description of specific violations and justification for your position;
- the result you want to achieve based on the results of the cassation appeal;
- attachments (copies of documents, court decisions, appeals, cassations).
We note that these requirements are common for writing both types of cassation appeals to the Supreme Court (civil civil procedural procedure and arbitration agrarian and industrial complex litigation). But for appealing arbitration rulings, some features are taken into account. The difference in the text of the cassation appeal under the APC lies in the very essence of the arbitration process, which is professional in nature, that is, it summarizes the knowledge of the rules of substantive law by all participants. In cassation according to the rules of the Arbitration, references to articles of laws are required. Accordingly, the narration style should be more scientific and concise, emotional assessment of any facts is not allowed, the argumentation should be built consistently. The above requirements are not provided for requests to appeal judicial acts according to the rules of civil procedure, but in any case it remains possible to carry out articles of laws and judicial practice on relevant topics at your discretion.
Please pay attention! Procedural legislation does not establish minimum and maximum volumes of a document. The main task when drawing up a complaint is to highlight all the aspects outlined above while compiling it, while preserving both its essence and the position of the applicant.
Legal assistance in appealing to the Supreme Court
Consultation in the office and by phone
+7(495) 728-99-14
Help from a lawyer. 18 years of experience in appealing to the Supreme Court!
We are working during the quarantine period of 2021! Call.
Official website of the Supreme Court of the Russian Federation
The Plenum of the Supreme Court continues to clarify procedural codes. This time the focus is on cassation in administrative cases according to the rules of the Code of Administrative Proceedings. How to correctly calculate the time limits for challenging and when can they be restored? What documents must be attached to the cassation appeal? Is it possible to supplement it with new arguments? The answers to these and other questions are in our review material.
The meeting of the Plenum of the Supreme Court, as usual, took place in the format of a video conference. We will update the material with a recording of the meeting as soon as it becomes available. The draft resolution of the Plenum of the Supreme Court consists of 31 points. Following the discussion of the document, Vyacheslav Lebedev decided to send clarifications for revision. At the end of the material there is a link to the current text of the document, and we briefly talk about its most interesting provisions.
1. Cassation without appeal
According to the explanations of the Plenum of the Supreme Court, a cassation appeal in an administrative dispute can be filed not only by a participant in the case in lower instances, but by any person whose rights and interests are affected by the decision in the case.
They have the right to complain to the court of cassation even if the judicial act has not been appealed but has already entered into legal force.
2. Complain to the address
A cassation appeal or presentation must be filed through the court of first instance. If you go straight to the cassation office, the document will be returned to the applicant. But there are exceptions to this rule - if the case is already in the cassation court on another complaint, then the complaint can be filed directly there.
Complaints must be submitted along with copies of them so that the court has the opportunity to send them to all parties to the dispute. If the complaint and documents attached to it are filed electronically, the court, “if technically possible,” must post them on its website.
3. Deadlines for appeal
The Plenum emphasizes that the six-month period for appeal provided for in the CAS is uniform. That is, the parties have six months to complain to both the Court of Cassation and, if necessary, the Supreme Court.
The period begins to run on the day after the adoption of the last appeal ruling and expires on the corresponding date of the last month of this period.
The time limit excludes the time it took the appellate court to draw up a “motivation” in the case. Also, the period will be suspended while the case is being considered in the “first” cassation.
Participants in the process have the opportunity to file a complaint until 24 hours on the last day of the deadline. In this case, the date of filing the appeal is determined by the stamp on the envelope or other document that confirms the receipt of the complaint.
4. Reinstate the term for good reasons
The draft resolution contains an approximate list of reasons that may be considered valid for missing a deadline. Among the obvious ones (serious illness, helpless state), the Supreme Court also identifies any “circumstances beyond the control of a person due to which he was deprived of the opportunity to timely file a cassation appeal in court.” For example, the introduction of a high alert regime or emergency situation throughout the entire territory of the Russian Federation or in part of it.
The missed deadline can be restored only within 12 months from the date of entry into force of the appealed decision.
5. The duty is not for everyone
If the lower courts exempted the participant from paying the state fee, then there is also no need to pay for filing a cassation appeal.
The cassation appeal must be accompanied by a document confirming the fact of payment of the fee, the applicant’s right to a fee reduction - or a request for a deferment, installment plan or exemption from its payment. Otherwise, the judge will notify the applicant of the need to provide one of these documents.
6. Call from the judge
The judge of the court of cassation may notify the participant in the proceeding about the shortcomings of his complaint. For example, when the documents necessary for the consideration of the case are not attached to it. The participant in the process will be given no more than 20 days to eliminate the shortcomings.
The court may give the applicant a notice to correct the deficiencies “in a manner that ensures its prompt delivery” - by email, telephone or telegram.
If the applicant is afraid that the sent document will not reach the court on time, then he can notify the court about sending the documents - for example, by calling. Otherwise, there is a risk that the judge will return the cassation appeal without waiting for the documents.
7. To the Supreme Court without copies
A complaint to the Supreme Court can be filed either through the court of first instance or directly to the Supreme Court panel.
In the second case, the applicant needs to attach to the complaint copies of the decisions made in the case, a power of attorney and documents on the formation of the representative. If the complaint is filed through the first instance, you do not need to attach these documents. After all, they are already in the case materials, which will be sent to the Supreme Court along with the complaint.
8. Between authorities
The Court of Appeal sent the case for a new trial at the first instance, and the participant in the process appealed the appeal ruling in cassation. What to do in this case? The Plenum orders the first instance to suspend the review of the case and “immediately” send it to the court of cassation.
Also considered is the case when a party is restored to the period for appeal, but the case is already in cassation. Then the cassation court will return the complaint that was not accepted for proceedings, and will leave the accepted one without consideration on the merits.
9. Permanent add-ons
The applicant has the opportunity to supplement his cassation appeal with new arguments. At the same time, for additional requirements, you can even skip the six-month period for appeal: in this case, the additions will still be considered on the same basis as the main complaint. This can be useful if lawyers do not have time to draw up a detailed complaint on time.
If the additions are significant, the court may postpone the consideration of the complaint to another day.
10. From administrative to civil
If, during preparation for the hearing, the cassation judges find out that the dispute between the parties needs to be considered in civil proceedings, then they must make a decision to proceed to consideration according to the rules of the Civil Procedure Code. Such a transition, the Plenum of the Supreme Court emphasizes, may become the basis for replacing a judge or even all judges in the case. For example, if the judges already appointed to the case do not specialize in civil litigation.
Pravo.ru
What sections does cassation to the Supreme Court consist of?
Both types of complaints to the Supreme Court (under the Civil Procedure Code and the Arbitration Procedure Code) consist of the following semantic sections:
- The introductory part of the cassation - contains information of a reference nature about the persons participating in the case, the addressee, information about the judicial acts appealed to the cassation.
- Descriptive - it contains information about the stages of the legal process you have completed; results of the first, appeal and cassation instances; by whom and when complaints were filed against decisions, rulings and resolutions of lower authorities, what were the results of the consideration.
- Motivational is the main part. Significant violations committed by lower authorities, your position and argumentation are indicated.
- Petition - it states what the applicant wants to achieve based on the results of consideration of the cassation appeal in the judicial panel for civil cases or economic disputes of the Armed Forces of the Russian Federation.
Errors in appeal
Lawyers typically make three basic mistakes in appellate court.
They do not check the unconditional grounds for canceling a decision
This is a strong argument for overturning the decision, but it is often overlooked. Lawyers are too keen on justifying their position and describing the circumstances, but forget to check whether there are unconditional procedural violations in the case.
If the appellant finds at least one such violation, the court will cancel the decision and reconsider the case according to the rules of the first instance, that is, it will reconsider the dispute on the merits. During such a review, it will be possible to submit petitions and statements, present evidence, if for some reason they did not do this in the first instance.
Most often in complaints, appellants refer to two violations - the court considered the case without a person participating in the case, who was not notified of the time and place of the hearing, or the court made a decision on the rights and obligations of persons who were not involved in the case.
If the judge in the case was illegally replaced or territorial jurisdiction was violated, you can refer to the consideration of the case in an illegal composition of the court.
Check if there is a court record in the case - higher courts often overturn decisions due to its absence. If there is no audio recording of the court hearing in the case, the courts can also overturn the decision on the same grounds.
The appeal will overturn the decision if there is no audio recording, but it contained information that served as the basis for the adoption of a judicial act. Therefore, indicate in your complaint what important information was on the audio recording. For example, interrogation of witnesses, experts, examination of evidence.
Lawyers are bad at building a defense
The lawyer cites in the appeal an endless list of court errors from serious to insignificant.
For example, when he points out that the judge incorrectly applied the rules and was not wearing a robe, the second argument clearly negates the seriousness of the first. The appellants usually formulate the violations themselves in general terms - without reference to specific evidence and case materials. Judges rarely take such complaints positively.
Recommendation - write no more than four to five clearly stated reasons for cancellation. In each argument, it is advisable to describe three points: the lower court's error, the incorrect conclusion it reached because of that error, and the conclusion the court should have reached.
Lawyers are passive during appeals
When the court has already considered the case on its merits, lawyers think that their task in the appeal is only to present arguments for and against the court’s decision. This is not entirely true. An appeal is the last opportunity to close evidentiary gaps in the positions of the parties in the case. Take advantage of this.
Try to present evidence essential to the case in the appeal, file motions. The appellate authority may accept additional evidence from a party and consider requests for new evidence, but only in two cases. The first case is if the party justifies that it could not present them to the first instance for valid reasons. The second is if the court of first instance rejected them. That is, in the appeal it is necessary to once again state all the petitions and evidence that were rejected by the first instance.
If you did not present evidence at the first instance, but it is essential to the case, still present it on appeal. If you cannot give good reasons or they are clearly “extracted,” the likelihood that the court will accept the evidence or satisfy the petition still remains: the court would rather accept new evidence than not accept it at the risk of canceling the judicial act.
For example, a company filed a claim against the company for unjust enrichment. Since the defendant did not provide evidence that he withheld the transferred money justifiably, the court granted the claim. To the appellate court, the defendant presented contracts and service acceptance certificates, which confirmed the existence of obligations between the plaintiff and the defendant and the basis for payments. The appeal added documents to the case and dismissed the claim. The higher courts agreed with the appellate court.
What to write in the water part of the cassation appeal
The introductory section of the cassation is the head of the document and one of the most strictly regulated parts. Therefore, it is necessary to pay attention to the list of information that it should contain. It makes no sense to indicate any unnecessary data in the introductory part, since if desired, you can include them in the main text.
First, the appropriate panel of the Supreme Court that will hear the case is indicated. According to the APC - for economic disputes, according to the Civil Procedure Code - for civil cases. The postal address of the RF Armed Forces is also provided. Secondly, information about the applicant is provided. Your full name (if the applicant is a legal entity, write the name, organizational and legal form, INN, OGRN) and status as a participant in the process; address for correspondence, and if a representative submits a package of documents instead of you - all the same data of the representative.
Thirdly, fill out in the same format information about other persons participating in the case and interested parties.
Fourthly, the case number in the first instance. The need to indicate the case number in all instances is not fixed.
Instructions: how to draw up a cassation appeal
To the Fourth Court of Cassation of General Jurisdictionaddress: 350906, Krasnodar, st. Morskaya, 3
Applicant for the complaint, plaintiff: State budgetary educational institution
additional education for children
specialized children's and youth sports school of Olympic reserve "Allur"
GBOU DOD SDYUSSHOR "ALLUR"
Address: Moscow, 3rd budget passage, 1
Defendant: Viktorova Victoria Viktorovna
Rostov-on-Don, st. Profitable, 2-2
Case No. 88-222/2021
Appeal
On December 11, 2021, the Sovetsky District Court of Rostov-on-Don made a decision in a civil case in the lawsuit of the State Budgetary Educational Institution of Children's and Youth Sports School "ALLUR" against V.V. Viktorova. on debt collection under a loan agreement. The court's decision rejected the claims in full.
This decision was appealed to the appellate court. By the decision of the Third Court of Appeal, the decision of the first instance court was left unchanged, and the appeal was not satisfied.
We believe that when issuing the above judicial acts, the norms of substantive law were significantly violated and were interpreted incorrectly.
In addition, the conclusions of the courts of first and appellate instances do not correspond to the actual circumstances of the case.
Viktorova V.V. funds were received in the amount of 50,000 rubles and 30,000 rubles, which is confirmed by receipts dated 10.10.2020 and dated 10.22.2020. In accordance with the text of these documents, the funds should have been returned on October 20, 2020. However, Viktorova V.V. I returned the money only partially, in the amount of 3,000 rubles. The rest of the debt has not yet been repaid. The original receipts are in this case.
According to the text of the receipts, Viktorova V.V. undertakes to return the money, the defendant wrote these receipts in her own hand, affixed her signature, and did not challenge them in court, as well as the obligations to return.
Since Viktorova V.V. received these funds without the grounds provided for by law, then she is obliged to return them as unjust enrichment. The violation of the plaintiff’s rights consists in the fact that he is deprived of funds, the circumstances on which the claims are based are receipt of unjust enrichment, receipts are evidence, they confirm the existence of legal relations and a violation of the plaintiff’s rights.
The courts stated in their decision that they did not provide evidence of the validity of the plaintiff’s claims. We believe that this assertion is unfounded; the evidence is available in the case materials.
Written, documentary evidence and receipts are provided. They confirm the main thing that there are obligations that have not been fulfilled. The amount is indicated, the defendant’s signature is present, documents were drawn up in front of witnesses. Viktorova V.V. signed that she undertakes to return the funds.
The circumstances of the transfer of money are established from the accompanying facts. Thus, there is information about the initiation of a criminal case regarding the theft from the State Budget Educational Institution of Children and Youth Sports School "ALLUR" by teacher V.V. Viktorova. money, about writing receipts right in the court corridor before the court hearing of V.V. Viktorova. that she owes funds from the State Budget Educational Institution DoD SDYUSSHOR "ALLUR", with lawyer A.A. Zimin as a witness. This was followed by the filing of an application to terminate the criminal case due to reconciliation. There is an order to deposit funds into the legal entity's cash register. All these circumstances are established in the case materials and the court decision. But it is indicated that the conditions for providing funds are not specified. We believe that the conditions and fact of the transfer of funds are proven by all the collected materials.
From the totality of the data, it becomes clear why the funds were transferred; their transfer is confirmed.
Based on the above, guided by Articles 376, 379.7, 390 of the Civil Procedure Code of the Russian Federation,
Ask:
Cancel the court decisions, make a new decision without sending the case for a new trial and satisfy the claims.
List of attached documents (originals):
- Documents confirming the sending of the cassation appeal to other persons participating in the case - 1 copy.
- Document confirming payment of the state duty (3,000 rubles for legal entities) - 1 copy.
- A document confirming the powers of the director (minutes, order, extract from the Unified State Register of Legal Entities).
March 17, 2021
Signature of the applicant (plaintiff): Director Ivanov I.I. Ivanov
Descriptive and motivational sections of the cassation
The descriptive section of the cassation appeal to the Supreme Court, like the first, is for reference only. It contains information about all the authorities passed, which is disclosed as follows: judicial act (date of adoption and court); the result of the review; whether it was appealed (by whom, when); what was decided based on the results of consideration of the submitted appeal.
Also, if you wish, you can indicate who filed the claim and when, describe its subject and basis, what position was put forward by the defendant, whose side the judges took.
The motivation section is the section of the cassation that needs to be given maximum attention, since it depends on it whether the documents will be submitted for consideration by the relevant judicial panel at the Supreme Court hearing. The reasoning part sets out in detail both the position of the person filing the appeal and the specific errors of the lower courts. As mentioned above, in an appeal in an arbitration case, the arguments of the applicant’s violations and arguments must be supported by articles of the law. When appealing a decision of a court of general jurisdiction, it also makes sense to refer to the rules of substantive law, but this is not a necessary condition.
Pay attention to how easy the text is to understand, if possible, divide it into paragraphs according to meaning and emphasize the main points. The main thing is not to indicate a large number of violations in the cassation of the Supreme Court, but to prove their significance.
What to ask for in the final section of a complaint to the Supreme Court
The final section, the petition, contains the actual appeal to the Supreme Court, that is, what you want to achieve from filing a complaint. Goals could be:
- Cancellation of all issued acts and a new consideration (in the event that none of them is rendered in your favor);
- Partial cancellation of acts, despite the fact that some of them remain in force (if some of them were adopted taking into account your requirements);
- Changing acts, which entails the adoption of a new resolution by the Supreme Court itself (if an error in the interpretation or application of substantive law is justified);
A request in cassation may depend both on the nature of the violations at the stage of first instance, appeal and cassation, as well as on the completeness of the examination of evidence and other individual reasons.
Consultation on appeal to the Supreme Court
+7(495) 728-99-14
Preparation of cassation appeals in the Supreme Court. Appeal to the Supreme Court. Lawyer for complaints to the Supreme Court.
Errors in cassation
Lawyers make six common mistakes. The first three were discussed in the section on appeal. Three more errors are typical only for cassation.
The arguments of the complaint go beyond the scope of cassation consideration
In 99 percent of cases when cassation upholds decisions of lower courts, it indicates that the arguments of the complaint are aimed at reassessing the factual circumstances of the case and evidence. And this is not within the scope of consideration of the case in cassation. Cassation only checks whether the courts correctly applied the rules of substantive and procedural law.
The reason for this practice is that lawyers often copy the text of the appeal into the cassation complaint. For example, the complaint writes that “the conclusions of the courts do not correspond to the factual circumstances and the evidence presented in the case.”
If you want to present new evidence or perform procedural actions that are possible only in the first instance, look for unconditional grounds for reversing the decision.
In your cassation appeal, refer specifically to errors in the application of the rules - these are your main arguments. All arguments that are related to non-research or incorrect assessment of evidence are given only to confirm the court’s errors.
The arguments of the complaint do not correspond to the pleading purpose
The goal of the cassator is to achieve the reversal of judicial acts with which he does not agree. To do this, he can ask the cassation court, for example, to adopt a new judicial act in the case, to send the case for a new trial, or to leave in force one of the decisions or resolutions previously adopted in the case. Sometimes cassation officers ask to adopt a new act in the case - this is the most advantageous for the party, regardless of the circumstances of the case and the arguments that it brings.
The cassation court will not be able to adopt a new act, since to do this it will have to examine and evaluate the evidence, and the cassation court does not have the right to do this. Such a discrepancy between the request and the arguments reduces the credibility of the complaint and often raises questions and criticism in the court of cassation.
Study the case materials and select possible arguments for cassation. After this, decide how to formulate the pleading part of the cassation appeal.
Additional documents submitted too late
Lawyers often file position papers too late and draft them incorrectly. Courts usually accept documents directly at the hearing, but not cassation documents. If you submit a response to the complaint, additions, or written explanations directly to the hearing, the cassation office may reject them. For example, the court indicated that written explanations were received on the eve of the court hearing and refused to include them in the case materials.
Consider the peculiarities of the court. For example, the Arbitration Court of the Moscow District may not accept written explanations, since it considers them new evidence that the cassation cannot accept. Therefore, format additional explanations as the text of a speech - the courts usually accept it.
CALL +7 (495) 255-11-80, FREE CONSULTATION!
Why the Supreme Court may refuse to accept an appeal
As in any court, in the Supreme Court, the complaint will undergo an initial check for the presence of the minimum necessary information mentioned above. If any information is missing, you will be given a period to eliminate the violations, after which the complaint will be forwarded for further investigation.
In our experience, a feature of the consideration of cassation in the Supreme Court is that the court hearing considers only such appeals that have been verified by a special judge - a filter. It preliminarily determines whether the violations committed by the courts are sufficient for the Supreme Court to issue a ruling on them. If he finds the arguments presented insufficient, you will be refused to accept documents for consideration by the judicial panel.
"Achilles' heel" of continuous cassation
Changes to the legislation on cassation appeals in courts of general jurisdiction, which entered into force on October 1, were introduced in order to increase the efficiency of the mechanism for ensuring the legality of court decisions, as well as to “revitalize” and enhance the functions of the cassation instance in civil proceedings.
Indeed, “continuous cassation” in cassation courts of general jurisdiction, as well as courts with a renewed judiciary, often geographically distant from lower courts, gives hope for the “resurrection” of the principles of independence and independence of cassation proceedings.
At first glance, these innovations contain solid “advantages”. But, as you know, the coin has two sides, and when implementing the principle of complete cassation in practice, remaining unresolved problems began to appear. The “Achilles heel” of the new cassation appeal procedure was the receipt of a writ of execution after the court decision entered into legal force.
In accordance with Art. 428 of the Code of Civil Procedure of the Russian Federation, a writ of execution is issued by the court to the claimant upon his application after the court decision enters into force and, at his request, is sent for execution directly by the court.
In practice, we are faced with a problem: as soon as a case from the appellate instance is returned to the first instance, where a cassation complaint filed under the new rules of appeal is already awaiting it, literally the next day it is sent to the cassation court. If the claimant does not decide almost immediately after the court decision enters into force to submit an application to the first instance for the issuance of a writ of execution or a petition to send it to the claimant, then there is a high probability of finding out in the office that the writ of execution cannot be issued, since the case has already been transferred to cassation. Accordingly, according to the logic of the court staff, if there is no case, there is no writ of execution.
This situation obviously violates the claimant’s right to timely execution of a court decision, as well as the norms of the Code of Civil Procedure of the Russian Federation and leads to failure to fulfill the principles, goals and objectives of legal proceedings.
In my opinion, this problem could be solved in the following ways.
The first method, although it will not solve this problem fundamentally, will temporarily alleviate the situation - after the decision enters into force, the claimant submits an application for the issuance of a writ of execution. Then we can only hope that the court employee will not ignore the application and will still produce a document before sending the case to cassation.
This mechanism has not yet been tested in practice, but there are already concerns that it may malfunction, since the period while a civil case returned from appeal remains in the first instance before being sent to the cassation court is only a few days, during which a court employee You may not have time or simply forget to prepare a writ of execution.
The second method seems to be more workable; it consists in drawing an analogy with the agrarian and industrial complex of the Russian Federation. Thus, in arbitration proceedings, the principle of continuous cassation has been in effect for a long time. According to Art. 319 of the Arbitration Procedure Code of the Russian Federation, a writ of execution is issued after the judicial act enters into force, with the exception of cases of immediate execution (in such situations, a writ of execution is issued immediately after the adoption of a judicial act or its appeal for immediate execution). The specified document is issued at the request of the claimant or, at his request, is sent for execution directly by the arbitration court. I note that sending the case to the cassation instance in the arbitration court does not prevent the claimant from obtaining a writ of execution.
It would seem that the rules are identical, but they work differently in different courts. I believe this is explained by the fact that the arbitration case is stored in court in electronic form and its physical presence is not essential for the production of a writ of execution. In addition, in arbitration courts - at least in Moscow and the Moscow region - a positive practice has developed when a writ of execution is prepared by the court and sent to the claimant, regardless of the petition filed.
We can only believe that the chairmen of courts of general jurisdiction will not remain indifferent to this seemingly insignificant, at first glance, problem and will be able to learn from the positive experience of implementing full cassation from arbitration courts. Otherwise, the long-awaited receipt of the writ of execution will be delayed for the duration of the cassation hearing of the case, thereby aggravating the already difficult situation with the execution of the court decision.
In conclusion, let us give an example from our legal practice.
The decision of the Tverskoy District Court of Moscow in a civil case on the recovery in favor of our clients of a sum of money in excess of 6 million rubles. entered into force on November 18, 2021 on the basis of the Appeal ruling of the Moscow City Court.
According to the Moscow City Court on December 3, 2021, the case was sent to the Tverskoy District Court of Moscow. Then, on December 9, through the expedition of the district court, in the interests of the claimant, we filed an application for the issuance of a writ of execution, but the office staff refused to issue a writ of execution, citing the fact that the case was sent to the cassation court.
Naturally, we filed a complaint with the chairman of the Tverskoy District Court with the hope that this would somehow speed up the issuance of the writ of execution. Fortunately, at a personal reception the chairman heard our arguments and the writ of execution was received. In this regard, it is believed that in the future it will be easier for claimants to exercise the right to timely execution of a court decision.
How and when to submit a written complaint to the Supreme Court
First, you need to correctly calculate the period within which you can file a cassation appeal. According to the Civil Procedure Code, it is 3 months from the date of the decision of the cassation court, according to the Arbitration Procedure Code - 2 months. If you meet the deadline, you can choose any of the methods of appeal to the RF Armed Forces :
- Personally to the office;
- By post - by letter;
- By filling out a special form on the “My Arbitrator” website (for arbitration cases).
Important! All documents are scanned and attached as the corresponding fields are filled out.
Consideration of cassation: deadlines
The time frame for consideration depends on whether the case has been requested or not. If you didn’t claim it, then a month, and if you had to claim it, then the time frame is two months. When the case is considered by the Supreme Court, the terms increase and range from 2 months for unclaimed cases, and 3 months for claimed ones.
Cassation appeal in a civil case: how to file
The appeal must be filed in the Court of Cassation. You can send documents by mail. All accompanying documents, properly executed, are attached to the main letter. And if you submit documents after the stated period has expired, you must attach a court decision on its restoration. Then the cassation appeal in the civil case will be considered, even if the deadlines have expired.
Cassation procedure: powers of the court
If a cassation appeal in a civil case is considered, the court may make one of the stated decisions:
- Do not satisfy the complaint, while leaving the previous decision unchanged.
- Cancel the previous decision and send the case for re-examination to the court, which can deal with it. Sometimes there may be a demand to change the composition of the judges who will reconsider the situation.
- Cancel the first court decision and terminate the proceedings without considering the application.
- Leave only one of the decisions made by the court earlier.
- Make changes to a previously made decision without remitting the case for reconsideration. For example, if the rules of law were misinterpreted or a minor mistake was made.
- Make sure that the cassation appeal is not considered at all.
In other words, a cassation appeal in a civil case may or may not be considered, and it may not be satisfied or partially satisfied.
You can get legal assistance on issues of cassation appeal on our website.
Mistakes that are made when writing a cassation
At the stage of writing and submitting documents to the second cassation, the applicant may encounter difficulties and questions that are caused by a lack of legal knowledge and experience in appealing to the Supreme Court. Errors that prevent the consideration of an appeal in court often result from ignorance of the peculiarities of proceedings in the Supreme Court, its powers and the limits within which the court has the right to examine the complaint.
The most common reason why you may be denied consideration of a cassation appeal is a description of a problematic situation without indicating those violations for which the Supreme Court is, in principle, authorized to study cases, that is, it simply describes the situation. You also cannot ask the court to do something that it does not have the right to do (going beyond the scope of consideration), for example, including those arguments that were not the subject of consideration earlier. It is highly likely that you will receive a letter of refusal if you argue your position without legal justification, based on personal judgments about fairness.
Assistance in appealing to the Supreme Court
There can be many mistakes; they can be made in any section of the cassation. To avoid this, professional help is needed. The lawyers of the Kakhiev and Partners bureau know the features of this process, have experience in cassation appeals and can help you competently present your position, taking into account the subtleties that exist in the process of appealing the second cassation. The assistance of lawyers who are competent in protecting the rights and legitimate interests of citizens and legal entities in the Supreme Court will not only help you save time, but will also provide an opportunity for a productive presentation of your position in the Supreme Court, which will allow you to further protect your rights.
Cassation in civil proceedings: clarifications of the Plenum of the Supreme Court
April 28, 2021
The Plenum of the Supreme Court continues to update its procedural clarifications. Now it is the turn of the civil cassation process. The Plenum taught how to complain to the right court, but left the participants in the process the opportunity for error. The consequences of missing the deadline for filing a complaint and the possibilities for its restoration are explained in detail.
Fresh clarifications of cassation proceedings under the Code of Civil Procedure will replace Resolution of the Plenum of December 11, 2012 No. 29 with similar, but now outdated, clarifications. True, the new resolution has not yet been adopted - following the discussion, Vyacheslav Lebedev decided to send it for revision.
Draft Resolution of the Plenum of the Supreme Court “On the application by courts of the norms of civil procedural legislation governing proceedings in the cassation court.”
Complain to the address
The Plenum of the Supreme Court reminds us of the obvious - a cassation appeal can be filed only after the case has been considered on appeal.
But in some cases, cassation will become the second instance. For example, when appealing a ruling on approval of a settlement agreement or when challenging a court order.
It is necessary to immediately appeal in cassation the rulings in cases of challenging the decision of the arbitration court, issuing a writ of execution for the forced execution of the arbitration court decision, or refusing to issue it.
We rely on others
Not only the direct participants in the dispute have the right to cassation appeal. The Plenum emphasizes: prosecutors and the Commissioner for Human Rights have the opportunity to appeal decisions even if they did not take part in the consideration of the case.
3. We make a mistake in choosing a court
A cassation appeal must be filed with the court of first instance. But if you submit the documents directly to the court of cassation, it will not return them, but will independently correct the applicant’s mistake and send the documents to the first instance.
If the cassation court has already accepted the complaint for proceedings, then the remaining participants in the process may not submit documents to the first instance, but immediately send them to the cassation court.
We'll appeal everything
A cassation appeal can be filed not only against the decision as a whole, but also against part of it. For example, you can appeal the distribution of court costs, the procedure and timing of execution of the decision, and other issues resolved by the lower court.
We count the deadlines
The three-month period for filing a cassation appeal must be counted from the day following the day of the adoption of the last appeal ruling in the case.
For example, if the decision of the appellate instance was adopted on June 2, 2021, then the last day for filing a cassation appeal or presentation will be considered September 2, 2021, the Plenum explains.
The appeal period is counted from the moment the operative part of the decision is announced. The date of production of the motivation does not affect the deadline.
The deadline for filing a cassation will not be considered missed if the applicant managed to take the complaint to the post office before 23:59 on the last day of the deadline. In this case, the date of filing the complaint is determined by the stamp on the envelope or the receipt of registered mail.
And if the applicant uploaded the complaint through the court’s website, then the time of its filing will be counted from the moment of “receipt in the relevant information system.”
Please restore the deadline
An application for restoration of the missed deadline for filing a cassation must be submitted simultaneously with the complaint. The judge of the cassation court will consider such an application alone, without holding a court hearing.
A request to restore the procedural deadline may also be contained directly in the cassation appeal, the Plenum suggests.
A judge can satisfy an application to restore the deadline only 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.”
7. Missing a deadline for a good reason
The Plenum includes as valid reasons for missing a deadline both “objective circumstances” such as emergencies and incidents, and circumstances related to the applicant’s personality: illness, death of a relative and “other situations requiring the personal participation of the applicant.”
The presence of the director of the organization on a business trip or on vacation is not recognized as a valid reason for being late in filing an appeal. The absence of a lawyer on the staff of the organization and the reference to the lack of money to pay for the assistance of a representative or to pay the state fee will also not help restore the term.
Taking into account the distance
The Court of Cassation has the right to leave the complaint without progress if it was filed in violation of the rules of Art. 378 Code of Civil Procedure. In this case, the court should take into account the time required to eliminate the shortcomings of the complaint, as well as the time for sending and delivering postal correspondence, based on the territorial remoteness of the persons participating in the case.
Don't worry about mistakes
The Plenum in its explanations stated that the court does not have the right to leave the complaint without progress due to shortcomings and errors in the preparation of the complaint. So grammatical or technical errors or typos will not interfere with the appeal.
It is not necessary to attach a power of attorney or a copy of a higher education diploma to the complaint. If such documents have already been included in the case file during consideration by lower authorities, then the cassation office uses them instead of leaving the complaint without progress.
We save time on appealing determinations
If a disputant appeals in cassation against any interim court ruling, for example, on the refusal to secure a claim, then the initial process will not be paused. The first instance should select only the necessary materials and send them to the cassation instead of sending the entire case.
We argue within the scope of the complaint
The Plenum reminds: the cassation court checks the legality only of those court decisions that are being appealed, and only in the part in which they are being appealed.
But there is an exception to this rule. If the appealed part of the decision is conditioned by another part of it, which is not appealed by the applicant, then this part of the decision is also subject to verification by a cassation court of general jurisdiction. In this case, the court must explain why it went beyond the arguments of the complaint.
Leaving the evidence at home
“Additional evidence is not accepted by the cassation court,” the Supreme Court states. Unlike an appeal, where options are possible, for cassation proceedings the Supreme Court leaves no loopholes - new evidence will not be considered in any case.
Changing the code
If, during preparation for the meeting, the cassation judges find out that the dispute between the parties needs to be considered in administrative proceedings, then they must make a decision to proceed to consideration according to the rules of the CAS.
We use clarifications of cassation
If the cassation court, following the results of consideration of the complaint, returns the case for a new consideration, it will also give the lower court instructions on how to apply the rules of substantive and procedural law. Such instructions are binding on the court, which will rehear the case.
We are trying to fix bugs
The cassation has the right, on its own initiative or at the request of the parties to the dispute, to correct clerical errors or obvious arithmetic errors made during the preparation of the cassation ruling: if they are obvious, their correction is beyond doubt and “does not change the meaning and essence of the cassation ruling.”
Such errors are corrected without a court hearing.
All news
Source:
Pravo.ru
