22.1. The essence and purpose of criminal proceedings in the second instance
Proceedings in a court of second instance are activities regulated by law to appeal and protest court decisions (sentences, rulings, resolutions) that have not entered into legal force. In accordance with the requirements of the Code of Criminal Procedure (Chapters 43-45, Section 13), court decisions that have not entered into legal force can be appealed by the parties in an appeal or cassation procedure. This appeal constitutes proceedings in the second instance. The deadline for this appeal is 10 days from the date of proclamation of the verdict, and for convicted persons in custody - within the same period from the date of delivery of a copy of the verdict. The purpose of criminal proceedings in the second instance is to verify the legality, validity and fairness of the sentence and other court decision. Depending on the judicial level considering a criminal case at first instance, proceedings in a court of second instance are possible in two types: cassation and appeal. The appeal procedure considers complaints and submissions against sentences and decisions passed by justices of the peace that have not entered into legal force. The cassation procedure considers complaints and submissions against decisions of the courts of first and appellate instances that have not entered into legal force, with the exception of court decisions. The limits of the powers of the second instance: The court considering a criminal case on appeal or cassation checks the legality, validity, fairness of the sentence and other court decision. In this case, the court checks the legality, validity and fairness of the court decision only in the part in which it is appealed. If, during the consideration of a criminal case, circumstances are established that relate to the interests of other persons convicted or acquitted in the same criminal case and in respect of which a complaint or presentation was not filed, then the criminal case must be verified in relation to these persons. At the same time, their situation cannot be allowed to worsen. When considering a criminal case in cassation, the court has the right to commute the sentence of the convicted person or apply the criminal law for a less serious crime, but does not have the right to increase the punishment, nor apply the criminal law for a more serious crime. Determinations or decisions made during the trial are not subject to appeal in the appellate or cassation proceedings: 1) on the procedure for examining evidence; 2) on the satisfaction or rejection of requests from participants in the trial; 3) on measures to ensure order in the courtroom, with the exception of rulings or decisions to impose a monetary penalty.
62. Proceedings in the court of second instanceProceedings in the court of second instance
– activities regulated by law to appeal and protest court decisions that have not entered into legal force.
In accordance with the requirements of the Code of Criminal Procedure, court decisions that have not entered into legal force can be appealed by the parties through the appellate or cassation procedures. This appeal constitutes proceedings in the second instance. The deadline for this appeal is 10 days from the date of proclamation of the verdict, and for convicted persons in custody - within the same period from the date of delivery of a copy of the verdict. The purpose of criminal proceedings in the second instance is to verify the legality, validity and fairness of the sentence and other court decision. Depending on the judicial level considering a criminal case at first instance, proceedings in a court of second instance are possible in two types: cassation and appeal. The appeal procedure
considers complaints and submissions against sentences and decisions passed by justices of the peace that have not entered into legal force.
The cassation procedure
considers complaints and submissions against decisions of the courts of first and appellate instances that have not entered into legal force.
Limits of powers of the second instance: 1.
A court considering a criminal case on appeal or cassation checks the legality, validity, and fairness of the sentence and other court decision.
In this case, the court checks the legality, validity and fairness of the court decision only in the part in which it is appealed. If, during the consideration of a criminal case, circumstances are established that relate to the interests of other persons convicted or acquitted in the same criminal case and in respect of which a complaint or presentation was not filed, then the criminal case must be verified in relation to these persons. At the same time, their situation cannot be allowed to worsen. 2.
When considering a criminal case in cassation, the court has the right to commute the sentence of the convicted person or apply the criminal law for a less serious crime, but does not have the right to increase the punishment, nor apply the criminal law for a more serious crime.
3.
Determinations or decisions made during the trial are not subject to appeal through the appellate or cassation procedure:
1)
on the procedure for examining evidence;
2)
on the satisfaction or rejection of requests from participants in the trial;
3)
on measures to ensure order in the courtroom, with the exception of rulings or decisions to impose a monetary penalty.
Cassation (appeal) grounds
– grounds, the presence of which is a prerequisite for the cancellation or change of a court decision of the first instance.
Grounds for canceling or changing the sentence: 1)
discrepancy between the court’s conclusions set out in the sentence and the actual circumstances of the criminal case;
2)
violation of the criminal procedure law;
3)
incorrect application of criminal law;
4)
injustice of the verdict.
Table of contents
22.2. Subjects of the right to appeal
The right to appeal a court decision belongs to the convicted, acquitted, their defenders and legal representatives, the public prosecutor, the victim and his representative. A civil plaintiff, a civil defendant or their representatives have the right to appeal a court decision insofar as it relates to the civil claim. Cassation (appeal) grounds are grounds the presence of which is a prerequisite for the reversal or change of a court decision of the first instance. Grounds for reversing or changing the sentence: discrepancy between the court's conclusions set out in the sentence and the actual circumstances of the criminal case; violation of criminal procedure law; misapplication of criminal law; unfairness of the sentence.
Article 328 of the Code of Civil Procedure of the Russian Federation. Powers of the appellate court (current version)
The issue of the appellate court making a new decision in the case is debatable in the theory of procedural law, since a number of scientists believe it is necessary to give the appellate court the right to send the case for a new trial to the court of first instance. It should be noted that both in the previously existing and in the reformed civil procedural legislation, the appellate court did not have such authority. However, law enforcement practice made its own adjustments to the shortcomings of legislative regulation. Thus, from the moment the courts introduced appellate proceedings, the rule on the inadmissibility of transferring a case for a new trial to the court of first instance was strictly observed at first. However, with the accumulation of experience in the work of the courts of second instance, there was a transformation of the rule about the inadmissibility of the appellate court sending cases for new consideration to magistrates. The legal positions of the courts on the validity of transferring cases for a new trial to the court of first instance were confirmed by a number of decisions of the highest judicial bodies. As a result, the grounds for sending cases for a new trial to the court of first instance are cases when the decision is canceled due to the fact that the magistrate considered the case in the absence of any of the persons participating in the case and was not notified of the time and place of the court hearing, or resolved the question of the rights and responsibilities of persons not involved in the case.
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See more about this: Shakiryanov R.V. Grounds for sending civil cases by appellate courts for a new consideration to magistrates // Russian Justice. 2010. N 10. P. 33.
See, for example: Review of judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2002 // Bulletin of the Supreme Court of the Russian Federation. 2003. N 3; Determination of the Constitutional Court of the Russian Federation dated July 3, 2007 N 623-O-P “At the request of the Novooskolsky District Court of the Belgorod Region to verify the constitutionality of paragraph four of Article 328 of the Civil Procedure Code of the Russian Federation”; Resolution of the Constitutional Court of the Russian Federation of April 21, 2010 N 10-P “In the case of verifying the constitutionality of part one of Article 320, part two of Article 327 and Article 328 of the Civil Procedure Code of the Russian Federation in connection with complaints from citizen E.V. Aleynikova and the limited liability company “Three K” and requests from the Norilsk City Court of the Krasnoyarsk Territory and the Central District Court of the city of Chita,” etc.
See: Shakiryanov R.V. Decree. op. pp. 32 - 33.
However, despite the established law enforcement practice, supported by the Constitutional Court of the Russian Federation, whose competence includes recognizing normative acts as inconsistent with the Constitution of the Russian Federation and, as a result, not valid on the territory of the Russian Federation, the legislator did not take these circumstances into account when making changes to the commented Code. This fact, according to many scientists, will create a number of problems related to violation of the rights to a fair trial. So, for example, for those who intervened in the case there will be no sign of repetition, which means there will be no right to appeal the decision of the appellate court, since such a decision comes into force from the date of its adoption and can be appealed in cassation. As a result, the rights of these persons are violated, including the right to access to justice, the right to a fair trial, one of the guarantees of which is equality of the parties.
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See: Borisova E.A. Reforming procedural legislation: present and future // Arbitration and civil process. 2011. N 4. P. 39.
In addition, the actions of the court to make a new decision, when the decision of the first instance court is subject to cancellation on unconditional grounds, do not correspond to the tasks of civil proceedings, which, by virtue of Art. 2 of the Code of Civil Procedure of the Russian Federation should contribute to the formation of a respectful attitude towards the law and the court, strengthening the rule of law and order. As noted in the science of procedural law, the reversal of a court decision and the referral of the case for a new trial to the court of first instance presupposes not only the restorative function of law, it also has a moral aspect, allowing a citizen to differently assess the significance and fairness of justice, which is fully consistent with the objectives civil proceedings.
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See: Pospelov B.I. Controversial issues of new legislative regulation of appeal proceedings in civil proceedings // Lawyer. 2011. N 6. P. 3 - 6.
3. Scientists and practitioners offer two options for getting out of this situation. The surest option is to give the appellate court the right to overturn court decisions and send the case for a new trial to the court of first instance in cases specified in the law. As such cases, in the theory of procedural law, it is proposed to consider the presence of violations of the rules of procedural law committed by the court of first instance and the petition of one of the parties to transfer the civil case to the court and the judge whose jurisdiction it is assigned by law. Such cases may include an appeal against a decision in absentia, a significant violation of the rules of procedural law, and others when the consideration of a case based on an appeal or presentation in a court of second instance can lead to the substitution of the powers of the appellate court with the powers of the court of first instance. Otherwise, according to E.A. Borisova, ignoring the legal position of the Constitutional Court of the Russian Federation will sooner or later again lead to raising the question of the compliance of the now new norms of the Code of Civil Procedure of the Russian Federation on appellate proceedings with the provisions of the Constitution of the Russian Federation, and the answer to the question posed is unlikely to be different.
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See: Syskova E.N. Problems of improving the system of reviewing judicial acts in civil proceedings of the Russian Federation: Author's abstract. dis. ...cand. legal Sci. M., 2001. P. 22.
See: Borisova E.A. Institute of appeal in civil proceedings: Author's abstract. dis. ...cand. legal Sci. M., 1994. P. 20.
See: Borisova E.A. Reforming procedural legislation: present and future // Arbitration and civil process. 2011. N 4. P. 39.
In the absence of legislative changes in this regard, these problems will have to be eliminated, as before, by judicial practice. In particular, at present, the possibility of sending the case by the court of appeal to the court of first instance is indicated in paragraph 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 19, 2012 N 13. According to the position of the Plenum of the Supreme Court of the Russian Federation, if the court of appeal comes to the conclusion that the decision made by the court of first instance at the preliminary court hearing to refuse to satisfy the claim (application) due to the expiration of the statute of limitations or missing the deadline established by federal law for filing a lawsuit is illegal and (or) unfounded, then it cancels the decision of the court of first instance instance, and in such a situation the case must be sent to the court of first instance for consideration on the merits of the stated claims, since the appealed court decision was made at a preliminary court hearing without examining and establishing other factual circumstances of the case.
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See: Shakiryanov R.V. Evolution of the institution of making a new decision in the court of second instance in civil proceedings // Russian judge. 2010. N 11. P. 11.
In general, scientists evaluate the current model of the institution of appeal as a transitional (temporary) model, since the state of legal regulation of relations that develop when a case is considered by the appellate court reflects the specifics of the initial stage of introducing appeals into the Russian judicial system. According to researchers of this issue, the existing appeal model should be improved taking into account the analysis of law enforcement practice not only of courts of general jurisdiction, but also arbitration courts, as well as the experience of legal regulation of appeal in foreign countries, in particular in Holland, Germany, France. Currently, the Concept of a Unified Civil Procedure Code of the Russian Federation is being actively discussed, approved by the decision of the Committee on Civil, Criminal, Arbitration and Procedural Legislation of the State Duma of the Federal Assembly of the Russian Federation dated December 8, 2014 N 124(1), the authors of which propose to still provide the court The appellate court has the right to cancel a court decision and send the case for a new trial in cases specified by law. Scientists also advocate giving the appellate court such authority, relying on the achievements of the Russian doctrine of civil arbitration process, and the experience of civil procedural legislation of foreign countries. At the same time, in the theory of civil procedural law, attention is drawn to the need to formulate a rule that will limit the unmotivated reversal of a court decision and the referral of the case for a new trial to the court of first instance, to ensure that the court exercises this power in the interests of the parties, and not the court, which does not want to be responsible for the decision. court decision.
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See: Uletova G.D. Notes on the margins of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 19, 2012 No. 13 “On the application by courts of the norms of civil procedural legislation regulating proceedings in the court of appeal” // Justice of the Peace. 2013. N 6. P. 7.
See: Borisova E.A. Appeal, cassation, supervision in the Concept of the Unified Code of Civil Procedure of the Russian Federation // Arbitration and civil process. 2015. N 5. P. 42.
4. The provisions of paragraph 3 of the commented article, like the norms of the previous paragraph, also provide for the possibility of changing or canceling the decision of the court of first instance by the court of appeal. However, in the commented paragraph, the appellate court is not given the right to make a new decision, since the violations committed by the first instance court require termination of the proceedings or leaving the application without consideration in whole or in part.
The grounds for the appellate court to make a decision to terminate the proceedings are situations where the court of first instance either considered a case that was not subject to consideration and resolution in court, since it should have been considered and resolved in a different judicial manner; or did not take into account that the application was submitted in defense of the rights, freedoms or legitimate interests of another person by a state body, local government body, organization or citizen who was not granted such a right; or did not take into account that the application submitted on one’s own behalf challenges acts that do not affect the rights, freedoms or legitimate interests of the applicant. The reason for the termination of the proceedings in the court of appeal is the identification by the court of the existence of an identical court decision that has entered into legal force, or a court ruling to terminate the proceedings in connection with the acceptance of the plaintiff’s refusal of the claim or the approval of a settlement agreement between the parties, as well as the existence of a binding agreement for the parties to an identical decision of the arbitration court (except for cases where the court refused to issue a writ of execution for the forced execution of the decision of the arbitration court or if the court canceled the said decision). In addition, the appellate court may overturn the decision of the first instance court if, during the appeal proceedings, the plaintiff declares a waiver of the claim or the parties agree to conclude a settlement agreement, and the appellate court approves these administrative actions of the parties.
Example: from T.S. The court of appeal received an application to abandon the claims and terminate the proceedings. Having checked the case materials, having considered the statement of T.S. about the waiver of the claim, the judicial panel, taking into account that the application was submitted in writing, signed by the plaintiff, the plaintiff’s waiver of the claim does not contradict the requirements of the current legislation and does not violate the rights and legitimate interests of other persons, the statement reflects that the consequences of accepting the waiver of the claim T .WITH. explained and understandable, considered it possible to accept T.S.’s refusal. from the claims against Sh., overturned the decision of the court of first instance and terminated the proceedings in the case (see the Appeal ruling of the St. Petersburg City Court dated July 25, 2021 in case No. 2-3404/2015).
The reason for the termination of proceedings in the court of appeal may be a violation by the court of first instance of the rules of procedural succession in cases where the controversial legal relationship does not allow succession or the liquidation of the organization that was one of the parties to the case has been completed. In particular, procedural succession is excluded in cases where succession in substantive law is unacceptable, for example, when the claim is inextricably linked with the identity of the plaintiff or defendant, and also when succession is contrary to law or contract.
Example: The Sverdlovsk Regional Court, by its appeal ruling, overturned the decision of the court of first instance and terminated the proceedings in the case, since the circumstances serving as the basis for restoring the deadline for accepting the inheritance were inextricably linked with the personality of the heir who missed this deadline - the death of this heir before the resolution of his claim to restore the period for accepting the inheritance excludes the possibility of procedural succession, which served as the basis for canceling the act of the court of first instance and terminating the proceedings (see the Appeal ruling of the Sverdlovsk Regional Court dated July 27, 2021 in case No. 33-12887/ 2016).
5. Leaving an application without consideration by the court of appeal is permitted if the court of first instance considered the case and made a court decision, despite the fact that the plaintiff did not comply with the pre-trial procedure for resolving the dispute established by federal law or provided for by the agreement of the parties. Establishing facts of simultaneous consideration of identical cases by the same court or other courts, arbitration courts, or establishing the existence of an agreement between the parties to consider the specified dispute by an arbitration court is also grounds for leaving the application without consideration by the appellate court.
The reason for leaving the application without consideration will also be the errors of the court of first instance made when accepting the application, in particular: filing an application by an incompetent person (with the exception of this person’s application for recognition of his legal capacity, a petition for the restoration of missed procedural deadlines in the case of recognizing this person as incompetent); failure to sign the application or its signing by a person who does not have the authority to sign it or bring a claim.
Example: the appellate court, considering the appeal, found that Z.’s statement of claim was signed by a person who did not have the authority to sign it, and therefore the court of first instance had no legal grounds for accepting this statement of claim for its proceedings and considering the case on the merits. Thus, the court of first instance considered the case in violation of procedural law. Taking into account that during the consideration of the case no evidence was presented of the powers of K.A.V. to sign the statement of claim and submit it to the court on behalf of Z., the decision of the court of first instance cannot be recognized as legal, since the court committed gross violations of the rules of procedural law, and therefore it is subject to cancellation, leaving Z.’s statement of claim without consideration (see the Appeal Ruling of the Supreme Court Court of the Republic of Bashkortostan dated October 31, 2021 in case No. 33-20895/2016).
6. The power of the appellate court, enshrined in paragraph 4 of the commented article, allows the appellate court to leave the appeal or presentation without consideration on the merits. The legal basis for the exercise of this power is the missed deadline for appeal and the failure to resolve the issue of restoring this deadline.
It should be noted that the Plenum of the Supreme Court of the Russian Federation in paragraph 40 of Resolution No. 13 of June 19, 2012, based on the emerging law enforcement practice, expanded the list of grounds for the exercise by the appellate court of powers to leave appeals and presentations without consideration on the merits. In particular, the appellate court leaves the appeal or presentation without consideration on the merits in cases where:
- when considering the case in the court of appeal, it will be established that the appeal or presentation is not signed by the appellant or the representative of the person filing the appeal, and there is no power of attorney or other document certifying the authority of the representative, while in the court of appeal there is no possibility of eliminating existing shortcomings ;
- the appeal was filed by a person who does not have the right to appeal a court decision, since the appealed court decision does not resolve the issue of his rights and obligations;
- an appeal or presentation is filed against a court decision that is not subject to appeal through the appellate procedure.
Guided by the above position of the Plenum of the Supreme Court of the Russian Federation, the courts leave appeals and submissions without consideration on the merits.
Example: The Sverdlovsk Regional Court, after hearing the explanations of the persons involved in the case, checking the case materials, discussing the arguments of the appeal, came to the conclusion that the appeal should be left without consideration on the merits, since the appeal was filed and signed by director I., then as an extract from the Unified State Register of Legal Entities indicates that the director is M. I. did not appear at the court hearing of the appellate court, the opportunity to present to the meeting of the judicial panel a power of attorney, the founder’s decision, an extract from the minutes of the meeting, and other documents that were not presented at did not take advantage of filing an appeal. Referring to paragraph 40 of the above-mentioned Resolution, the appellate court left the appeal without consideration on the merits (see Appeal ruling of the Sverdlovsk Regional Court dated October 25, 2013 in case No. 33-13211/2013).
7. In addition to the powers of the appellate court listed in the commented article, the Plenum of the Supreme Court of the Russian Federation in paragraphs 56, 57 of Resolution No. 13 of June 19, 2012 recommends that the appellate courts, on their own initiative, eliminate minor violations committed by the courts of first instance when considering and resolution of civil cases on the merits. Thus, in particular, the appellate court has the right, on its own initiative, as well as at the request of persons participating in the case, to correct clerical errors or obvious arithmetic errors made in the appeal ruling, to consider applications from persons participating in the case for an explanation of the appeal ruling that changed the decision of the court of first instance or a new decision was made, and on the revision of the appeal ruling due to newly discovered or new circumstances. At the same time, the highest judicial body of the Russian Federation drew the attention of the appellate courts to the fact that the above statements must be considered by the appellate court in a court session with mandatory notification of the persons participating in the case.
In addition, in cases where the court of first instance did not make a decision on any claim for which the persons participating in the case presented evidence and gave explanations, or, having resolved the issue of law, did not indicate the amount of the awarded amount, the property to be transferred , or actions that the defendant is obliged to perform, the appellate court also has the right, on its own initiative or at the request of the persons participating in the case, to issue an additional appeal ruling. As in the previous case, the issue of issuing an additional appeal ruling must also be resolved at a court hearing with mandatory notification of the persons participating in the case. An important circumstance when issuing an additional appeal ruling is the period during which such a ruling can be made, which is determined by the exercise by the persons participating in the case of the right to cassation appeal. In this regard, an additional appeal ruling may be issued within six months from the date of the appeal ruling.
22.3. Structure of the court session
The structure of the court session during appeal proceedings almost completely repeats the structure of the court session of the first instance court when considering the case on the merits. It is represented by the following stages: preparatory part, judicial investigation, debate between the parties and the last word, making a decision. This structure is determined by the types of decisions that can be made as a result of this consideration. The procedural form of decision in most cases is a sentence. The cassation procedure for consideration consists of two stages: scheduling a court hearing and considering the criminal case at a court hearing. Based on the results of the consideration, a decision is made in the form of a determination.
Proceedings in the court of second instance (civil proceedings)
In some cases, when making court decisions, judicial errors occur, leading to the issuance of illegal and unfounded decisions. The cassation appeal aims to check the legality and validity of decisions that have not entered into legal force,
and fix errors.
The right of cassation appeal is vested in the persons participating in the case, and the right of protest is vested in the prosecutor. Complaints and protests can be brought against decisions of all courts, except decisions of the Supreme Court of Russia. Court decisions on complaints about irregularities in voter lists and decisions of administrative bodies or officials on administrative penalties are also not subject to appeal.
The right to appeal (protest) arises from the day the decision is made and can be exercised within 10 days.
The cassation appeal is submitted in writing and must contain:
• name of the court to which the complaint or protest is addressed;
• name of the person filing the complaint (protest);
• an indication of the decision being appealed and the court that made the decision;
• an indication of what is wrong with the decision;
• request of the person filing the complaint or protest;
• list of attached written materials.
Cassation appeals are addressed to a higher court, which is a court of second instance: in relation to district courts, these are judicial panels for civil cases of regional, regional and equivalent courts; in relation to regional and equivalent courts - the Judicial Collegium for Civil Cases of the Supreme Court of Russia.
The complaint is filed through the court,
who made the decision, so that all the materials of the case are sent along with it, although it can be filed in person, by mail or through a representative.
In this case, a fee is paid
and
copies of complaints are prepared according to the number of defendants.
Persons participating in the case have the right to submit explanations to the complaint (protest) with documents confirming these explanations. This may help cassation judges when studying the case
Cassation process. The complaint is considered by the court of second instance in open
court hearing.
Unlike the court of first instance, the court of second instance consists of three permanent judges.
The court of second instance gets acquainted with most of the materials through protocols and other written documents.
The case, in principle, can be considered
in the absence of interested parties
if they have been notified of the court hearing.
The case with a complaint or protest is submitted to the chairman of the judicial panel for civil cases of the court of the second instance, who instructs one of the members of the judicial panel to prepare it for the court hearing or prepares it himself. Other judges must then become familiar with the case materials.
The case is considered no later than 10 days from the date of its receipt.
The hearing of the case begins with a report on the case by the presiding officer
or one of the court members.
After the report, explanations of the parties
and other persons who appeared at the court hearing as representatives are heard, who have the right to also present arguments not specified in the complaint or protest and present additional materials. Members of the court and the prosecutor have the right to ask the parties questions.
After explanations from the persons involved in the case, the prosecutor gives an opinion
about the legality and validity of the decision.
Then the court retires for a meeting
to make a ruling on the case and subsequently announce it to the persons participating in the case.
What powers does the cassation court have regarding the appealed decision?
They are quite varied:
1) leave the decision unchanged, and the complaint or protest unsatisfied, if he comes to the conclusion that the decision is legal and justified;
2) send the case for a new trial to the court of first instance;
3) terminate the proceedings;
4) cancel the decision and leave the claim without consideration; – 5) change the decision of the court of first instance or make a new decision without transferring the case for a new trial, if the case does not require collection or additional verification of evidence.
The cassation court may also issue a private ruling to the court of first instance or any organizations, which will indicate the violations committed on their part.
If the complaint is satisfied, the cassation authority collects from the other side the fee paid by the person who filed the complaint (cassator).
The ruling of the court of second instance comes into force immediately
upon announcement and
cannot be
appealed in cassation.
