Appeals and cassation complaints against sentences and decisions in civil cases: general recommendations

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• Features of appealing a sentence in a criminal case
• Time limits for appealing a verdict to the Supreme Court
• Appeal to the Supreme Court
• Types and requirements for complaints to the Supreme Court
• Assistance from a lawyer on appealing verdicts in the Supreme Court
• Leading lawyers

A court verdict passed on the basis of consideration of criminal cases is a judicial act expressed in the form of a corresponding decision of an authorized judicial body regarding the guilt or innocence of a specific person recognized as a defendant in a case for committing a crime. The final verdict is the logical conclusion of the process of considering the criminal case on its merits. Thus, the decision of the judicial authority may consist in imposing a certain punishment on the defendant or in releasing him from criminal liability, subject to the provision of sufficient evidence indicating the innocence of the person.

Citizens of the Russian Federation must remember that all judicial verdicts are made on behalf of the state, as a result of which they are endowed with its own force and are subject to mandatory execution. The court takes full responsibility for the fairness of the final decision and its compliance with the requirements, norms and provisions of the current legislation of the country. When making a decision, authorized officials rely on their own internal beliefs and moral principles.

Unfortunately, the judicial system is not perfect, and in legal practice there are often cases when participants in a criminal case demonstrate disagreement with the fairness of the final court decision. Given this possibility, the legislation of the Russian Federation provides for the possibility of appealing against a verdict that seems insufficiently fair to the participants in the proceedings. If you contact a qualified lawyer in a timely manner, you can avoid the need for an appeal, since an experienced lawyer will do everything possible to prevent the initiation of a criminal case and its subsequent transfer to court. However, if a court decision has already been made, and you do not intend to put up with its essence, an appeal to the Supreme Court of the Russian Federation becomes the most effective action, especially if you enlist the support of a competent specialist.

Features of appealing a sentence in a criminal case

Challenging a court verdict in a criminal case before it comes into force is one of the most significant stages of legal proceedings aimed at realizing the rights of each party to review a court decision in higher judicial bodies in compliance with the procedure and conditions provided for by the federal laws of the Russian Federation. According to the current legislation of the country, absolutely every sentence that has not entered into legal force can be challenged at the request of the participants in the proceedings. Upon receipt of a complaint from participants in a criminal case, a higher judicial body, in this case the Supreme Court, undertakes to carry out an in-depth examination of the fairness and validity of the court decision, taking into account the circumstances and arguments given in the complaint.

The exercise of the right to challenge court decisions directly depends on the position of persons vested with this right in accordance with the laws of the country. As for the list of participants in a criminal case who have the right to challenge a court decision before it enters into legal force, it includes the convicted person (or acquitted), as well as his legal representative in the person of a defense lawyer. The prosecution - the prosecutor, the victim, the victim's lawyer - is also given the right to challenge. Challenging court decisions by civil plaintiffs and defendants or their legal representatives is possible only within the framework of civil claims.

Today, criminal proceedings provide for several ways to challenge court decisions. The actual procedure for challenging a judicial verdict in a criminal case is determined taking into account the characteristics of the judicial body that issued the verdict in question. The highest judicial authority on the territory of the Russian Federation is the Supreme Court. This body is a judicial institution of state importance, vested with special powers to resolve disputes related to criminal, civil, administrative and other categories of law that were adopted by courts of general jurisdiction. The Supreme Court is also competent to carry out supervisory functions in relation to the activities of lower judicial bodies, in-depth research and analysis of actual judicial practice, and provide detailed explanations regarding relevant issues.

From the point of view of current legislation, the Supreme Court plays the role of last resort. Nevertheless, there are some types of criminal cases in which the proceedings only begin with an appeal to the Armed Forces of the Russian Federation. For example, criminal proceedings fall within the powers of the Supreme Court if the case is particularly complex. The decisions made by the Supreme Judicial Body are final and do not provide for subsequent challenge on the territory of the Russian Federation. A court decision rendered by a given state judicial body in a jury trial is subject to challenge in the Supreme Court only on the grounds of contradiction to criminal procedural rules or injustice.

Decisions made by the appellate court

As a result of consideration of a criminal case, depending on the established circumstances, the appellate court makes one of the ten decisions specified in Art. 389.20 Code of Criminal Procedure of the Russian Federation:

• If it is established that the verdict of the court of first instance is legal, justified and fair, and the arguments of the complaint or presentation do not provide grounds for canceling or changing the verdict, the appellate court makes a decision during a single consideration of a criminal case by a judge or a ruling during a collegial hearing of a criminal case to leave the sentence without changes, and complaints or representations are not satisfied.
• If a significant violation of the law is committed at the stage of preparing a criminal case for a court hearing, which cannot be eliminated, when considering the criminal case, the appellate court adopts a resolution or ruling, depending on the composition of the appellate court, to cancel the verdict and send the criminal case to the first court. instance from the stage of preparing a criminal case for a court hearing.
• If a significant violation was committed by the court of first instance during the trial, under the same circumstances, a similar decision is made to overturn the verdict, but with the referral of the criminal case for a new trial from the trial stage in a different court composition.
• If significant violations that impede the resolution of the criminal case are committed at the pre-trial stages, the appellate court makes the same decision to overturn the verdict and forward the criminal case to the prosecutor.

• If grounds are found provided for by the criminal procedure law for terminating a criminal case, the appellate court makes a decision to overturn the verdict and terminate the criminal case.
• When establishing the grounds for changing the sentence, entailing an improvement in the situation of the convicted person (reducing the scope of the charge, reclassifying the act as less serious, reducing the imposed punishment, etc.), the appellate court issues a ruling or ruling to change the sentence of the first instance court.
• The court has the right to issue a ruling or ruling to terminate appeal proceedings in cases provided for by law (for example, a complaint was filed by a person who does not have the right to do so).
• If there are grounds for this, the appellate court has the right to overturn the conviction and issue an acquittal.
• Also, the appellate court has the right to overturn the acquittal and pronounce an acquittal on another basis.
• In addition, the court is given the right to overturn the conviction and issue a new conviction in accordance with the circumstances established during the consideration of the criminal case in the appellate court.

The list of decisions made by the appellate court is not exhaustive.
In paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 27, 2012 N 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the appellate court” it is explained that, in the meaning of criminal - the procedural law, provided for in Article 389.20 of the Code of Criminal Procedure of the Russian Federation, the list of decisions taken by the appellate court is not exhaustive. In this regard, the appellate court has the right, in particular:

• overturn the conviction and issue a ruling (resolution) to release the person from criminal liability or punishment and to apply compulsory medical measures to him (part 1 of Article 443 of the Code of Criminal Procedure of the Russian Federation);
• overturn the conviction and issue a ruling (resolution) to terminate the criminal case against the minor with the application of a compulsory educational measure to him (part 1 of Article 431 of the Code of Criminal Procedure of the Russian Federation).

Check out these other materials: appealing a sentence in a criminal case cassation appeal against a sentence

Time limits for appealing a verdict to the Supreme Court

The current legislation of the Russian Federation establishes the following deadlines for challenging court decisions:

• For filing an appeal, a period of 10 days is provided from the moment the verdict or other court decision was issued, which provides for the possibility of appeal. If the convicted person is in custody, the countdown of this period begins from the day on which the person received the decision in question.
• For challenging a court decision by way of cassation or supervision, no exact deadline is established. The exception in this case is situations in which a review of a sentence or court decision is carried out by way of cassation or supervision, the grounds of which entailed aggravation of the situation of the convicted or acquitted person. In such conditions, the period for challenging is equal to one year from the moment the court decision enters into legal force if errors and inaccuracies were made during the proceedings, resulting in a violation of legislative norms and the concept of fairness of the verdict.

If the deadline for a dispute expires on weekends or holidays, it is recalculated and the last working day becomes the next working day.

If a complaint is filed with violation of certain details, the Court will grant an additional period to eliminate the identified violations. If there is no repeated complaint with corrected violations within a predetermined period or repeated violations, the proceedings are terminated and the complaint is not considered filed. Filing a complaint after the expiration of the established time period also entails refusal to accept the application for consideration. At the same time, the legislation of the Russian Federation provides for exceptions, within the framework of which the presence of valid reasons is the basis for a request to restore the missed period of appeal. In order to restore the missed deadline, the applicant must provide documents that confirm the right to do so. Such documents may be medical certificates and extracts, death certificates of close relatives, and so on. If the petition for restoration of the missed deadline is granted, then the complaint is considered filed on time.

An unappealed court decision comes into force after the expiration of the 10-day period. If the applicant has filed an appeal, the entry into force occurs after the final decision on the appeal is made.

Appeal to the Supreme Court

Many citizens of the Russian Federation consider the Supreme Judicial Body to be an absolutely inaccessible authority for the average person. In fact, recourse to the help of the Supreme Court of the Russian Federation is available to everyone who needs fair protection. The only condition in this case is compliance with the regulations established by the legislation of the country, including the sequence of stages of production, the procedure for filing a complaint, and so on. An appeal to the Supreme Judicial Authority is recommended when passing through all lower courts without receiving an answer or decision satisfactory to the applicant.

Compliance with established rules and requirements is the key to significantly increasing the chances of a favorable outcome when considering a complaint in the Supreme Court of the Russian Federation. The applicant needs to enlist the support of a qualified lawyer who knows everything about the peculiarities of challenging court decisions in the instance in question and will help represent the interests and rights of the principal from a favorable perspective. The experience of a lawyer will be required, including at the stage of preparing a set of documents necessary for the application. The professional preparation of a reasoned and correctly formatted complaint deserves special attention. Depending on the position of the applicant, the appeal can be sent by mail or delivered in person, according to the schedule and operating hours of the Supreme Court. Upon receipt of a complaint, officials check the application and the accompanying set of documents for compliance with established requirements. The transfer of documents to the authorized judicial unit is carried out within 24 hours after receipt.

Grounds for canceling or changing a court decision on appeal

Article 389.15 of the Code of Criminal Procedure of the Russian Federation establishes strictly defined grounds for reversing or changing a court decision on appeal. There are seven such reasons:

• discrepancy between the court's conclusions set out in the verdict and the actual circumstances of the criminal case established by the court of first instance (Article 389.16 of the Code of Criminal Procedure of the Russian Federation);
• significant violation of the criminal procedure law (Article 389.17 of the Code of Criminal Procedure of the Russian Federation);
• incorrect application of the criminal law (Article 389.18 of the Code of Criminal Procedure of the Russian Federation);
• unfairness of the sentence (part 2 of article 389.18 of the Code of Criminal Procedure of the Russian Federation);
• identification of circumstances that prevented the consideration of the criminal case in the court of first instance (Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation) and the case in this regard was subject to return to the prosecutor;
• the onset of new socially dangerous consequences of the act charged to the accused, after the criminal case has been sent to court, which is the basis for charging him with committing a more serious crime (part 1, part 2, paragraph 1, article 237 of the Code of Criminal Procedure of the Russian Federation);
• identification of data indicating a person’s non-compliance with the conditions and his failure to fulfill obligations stipulated by the pre-trial cooperation agreement.

Types and requirements for complaints to the Supreme Court

The most important condition for challenging a court decision is the sufficiency and even exclusivity of the grounds. You can appeal the verdict only after receiving unsatisfactory results in lower courts. Filing a complaint to the Supreme Court is possible, among other things, if the court decision enters into legal force, as well as if new circumstances of the criminal case are identified.

Today, the Supreme Court body accepts appeals, cassation and supervisory complaints. The first type of complaint concerns a decision made by the court of first instance before it entered into legal force. The consideration of this complaint is carried out taking into account the arguments that were included in the factual evidence base. It is impossible to introduce new circumstances of a criminal case that were not stated in court proceedings in this manner. Thus, the content and wording of the appeal are of fundamental importance. As for the cassation appeal, it is aimed at ensuring the protection of the interests of the parties in order to change or completely cancel the verdict of the lower courts. A complaint is filed against a judicial decision after it has entered into legal force. In this case, the task of the court becomes to verify the legality of the court decision, regardless of its content and form of expression.

If the complaint is left unchanged and returned, resubmitting the complaint becomes pointless, as it contradicts the established regulations. The only chance in this case is to send a complaint to the Chairman of the Supreme Court of the Russian Federation. This procedure is necessary in order to appeal the refusal to consider a complaint made by judges of the Supreme Court of the Russian Federation. Subject to the procedure and conditions for contacting the Chairman, the complaint can achieve its goal, and the applicant’s demands have a chance to be satisfied.

The filing of a supervisory complaint is carried out by appealing to the Presidium of the Supreme Judicial Body of the Russian Federation. This authority has significantly greater powers compared to other bodies. Supervisory complaints are filed in relation to sentences that have already entered into legal force, subject to a preliminary appeal by filing an appeal with the Supreme Court of the Russian Federation. The applicant must indicate all decisions that existed at the time of filing the complaint and entered into legal force, which were adopted by the decision of the Lower Court. It is these decisions that serve as the main subject for review in the supervisory order.

Sample appeal

To the Judicial Collegium for Criminal Cases of the Moscow Regional Court, address: ________

through the court that rendered the verdict in the first instance, for example: through the Krasnogorod City Court of the Moscow Region address: ________

from the lawyer, full name in defense of the interests of the convicted person: Ivan Ivanovich Ivanov in criminal case No._____

or

from the convicted Ivanov I.I. in criminal case No._____

APPEAL against the verdict of the Krasnogorsk City Court dated February 12, 2015 in a criminal case against Ivanov I.I., on charges of committing a crime under paragraph “c” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation

According to the verdict of the Krasnogorsk City Court of the Moscow Region dated February 12, 2015 on charges of committing a crime, liability for which is provided for in paragraph “c” of part 3 of Article 158 of the Criminal Code of the Russian Federation, Ivanov I.I. found guilty of committing the said crime and was sentenced to imprisonment for a period of 3 (three) years, without fine or restriction of freedom, to be served in a high-security correctional colony.

When rendering the verdict, the court found that Ivanov I.I., born October 20, 1980, a native of Leningrad, a citizen of the Russian Federation, with secondary education, married, with a dependent child born _____, residing: ____________, liable for military service, not working, previously convicted, committed a criminal offense for which liability is provided for in paragraph “c” of part 3 of Article 158 of the Criminal Code of the Russian Federation - committed theft, that is, the secret theft of someone else’s property, committed by a group of persons by prior conspiracy, on a large scale.

The convict admitted his guilt and the case was considered in a special trial procedure.

According to Article 297 of the Code of Criminal Procedure of the Russian Federation, a court verdict in a criminal case must be justified and fair. At the same time, the sentence is recognized as reasonable and fair if it is decided in accordance with the requirements of this Code of Criminal Procedure of the Russian Federation and is based on the correct application of the criminal law.

The defense does not agree with the verdict passed by the Krasnogorsk City Court, finds it unfair, and, therefore, unfounded, subject to change in terms of mitigation of the sentence for the convicted Ivanov I.I. for the crime committed.

According to paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 11, 2007 No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation”, in accordance with the general principles of sentencing (Article 60 of the Criminal Code of the Russian Federation) a more severe type of punishment from among those provided for the crime committed is assigned only if a less severe type of punishment cannot ensure the achievement of the goals of punishment - as can be seen from the verdict, the court did not motivate for any specific reason in conditions where the sanction of the article provides for punishment both associated with imprisonment and not associated with imprisonment freedom, the court came to the conclusion that the purpose of punishment - correction can be achieved in relation to Ivanov I.I. only if he is deprived of his liberty.

According to part three of Article 60 of the Criminal Code of the Russian Federation, in each case it is necessary to take into account the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family.

If the sanctions of the criminal law, along with deprivation of liberty, provide for other types of punishment, the court decision to impose imprisonment must be motivated in the sentence.

As can be seen from the verdict of the Krasnogorsk City Court dated February 11, 2015, having listed and, in fact, indicating exclusively positive characteristics of I.I. Ivanov, the court did not indicate for what reason (there are no motives) such a severe punishment was imposed on him, according to for what reason exactly did Ivanov I.I. a punishment not related to deprivation of liberty cannot be imposed, especially since the sanction of part 3 of article 158 of the Criminal Code of the Russian Federation provides the court with such an opportunity, while Ivanov I.I. only one episode was charged.

Paragraph 12 of the Resolution of the Plenum of the Supreme Court No. 1 of April 29, 1996 “On the Judicial Sentence” (as amended), explains that the courts should not allow the facts of imposing a punishment on the guilty, which in its amount is clearly unfair both due to lenience and due to severity, since in accordance with the provisions of Article 60 of the Criminal Code of the Russian Federation, when imposing a punishment, the court is obliged to take into account the nature and degree of public danger of the crime committed, the identity of the perpetrator, including circumstances mitigating or aggravating the punishment, as well as the impact of the imposed punishment on the correction of the convicted person and on the conditions the life of his family.

When pronouncing the verdict, the court essentially did not examine the question of the living conditions of the convict’s family, while the amount of income of Ivanov I.I.’s family. below the subsistence level, which essentially forces us to know what the nature of the sentence is: accusatory or punitive, when all members of the family of the convicted person, without exception, become persons significantly and without sufficient reason limited in their rights.

In his last word, as in his speech, the defender and Ivanov I.I. asked the court to assign him (Ivanov I.I.) a punishment not related to imprisonment, giving him (Ivanov I.I.) a chance to atone for his guilt, Ivanov I.I. informed the court that with his work he would prove that he was improving. That is why, counting on a fair verdict, the convicted person asked to be given a sentence that did not involve imprisonment, possibly with a significant fine.

By working, he could fulfill the sentence in this part.

According to paragraph 13 of the above-mentioned Resolution of the Plenum of the Supreme Court of the Russian Federation, in the descriptive and motivational part of the verdict, the court did not give the reasons why it came to the conclusion that it was necessary to impose a sentence of imprisonment on the convicted person, while the sanction of part 3 of Article 290 of the Criminal Code of the Russian Federation provides for an alternative according to the purpose of punishment. So, according to the sanction of the said article, the criminal offense of which Ivanov I.I. was accused, implied the possibility of imposing punishment in the form of: a fine in the amount of one hundred thousand to five hundred thousand rubles, however, the court’s conclusions about the reason for which the most a serious form of punishment is not given, nor are the circumstances for which the correction of Ivanov I.I. is possible only in conditions of isolation from Society.

According to Article 6 of the Criminal Code of the Russian Federation, punishment and other measures of a criminal legal nature applied to a person who has committed a crime must be fair, that is, correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator.

Article 7 of the Criminal Code of the Russian Federation, which establishes the principle of humanism, states that punishment and other measures of a criminal legal nature applied to a person who has committed a crime cannot be aimed at causing physical suffering or humiliation of human dignity.

According to paragraph 37 of the Named Resolution of the Plenum of January 11, 2007, in a special trial procedure, the punishment cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed (part seven of Article 316 of the Code of Criminal Procedure of the Russian Federation).

At the same time, in the presence of exceptional circumstances, the court may impose a more lenient punishment than provided for this crime, as well as apply other rules for mitigating punishment provided for by the General Part of the Criminal Code of the Russian Federation.

When imposing a punishment according to the rules provided for in Article 62 of the Criminal Procedure Code of the Russian Federation, the court, by virtue of part seven of Article 316 of the Criminal Procedure Code of the Russian Federation, calculates three-quarters of the sentence from two-thirds of the maximum term or amount of the most severe type of punishment provided for by the corresponding article of the Special Part of the Criminal Code of the Russian Federation.

During the trial, the court rendered a sentence that exactly corresponded to the plot of the accusation and the position of the state prosecutor, who indicated the need to appoint Ivanov I.I. exactly the punishment that was imposed by the court by the appealed verdict, but the amount of the imposed punishment does not correspond to the gravity of the crime.

The verdict in the case, in the opinion of the defense, does not meet the criteria established by Article 290 of the Criminal Code of the Russian Federation, cannot be considered reasonable and fair and is subject to change, and the imposed punishment to be mitigated on the following grounds.

During the preliminary investigation, which was also confirmed at the court hearing, Ivanov I.I. fully admitted his guilt in the crime committed, assisted the investigation by giving comprehensive and truthful testimony that allowed us to establish the truth in the case, assisted the investigation, filed a petition for consideration cases in a special order, repented of what he had done and sincerely admitted to committing the crime (sentence sheet 4). In particular, “The court takes into account that Ivanov I.I.... fully admitted their guilt and repented of their deeds, turned themselves in..., in addition, Poltavtsev A.N. has a dependent child born in 2007, which the court recognizes as mitigating circumstances.”

At the same time, when considering the criminal case in a special proceeding, the Krasnogorsk City Court did not take into account the degree of public danger of what Ivanov I.I. did, his active repentance for his crime, which was fully confirmed by him both during the investigation and during the trial, and specific mitigating circumstances , documented by the case materials.

In his last word, Ivanov I.I. sincerely, experiencing guilt in what he had done, he asked the court not to impose a sentence of imprisonment on him, addressed the court with the last word, in which he gave sufficient arguments to judge that he, being a young person who had not received sufficient life experience, sincerely admits his guilt and appeals to justice with a request to understand his repentance, which, unfortunately, did not happen and, contrary to the requirements of the Law, an excessively harsh sentence was passed in the case - a punitive sentence that does not correspond in its severity: neither to the signs of justice, nor to the cassation and supervisory practice of the Supreme Court court of the Russian Federation, or even information from judicial statistics and judicial practice on similar categories of cases (in terms of sentencing practice).

During the trial, the court was presented with sufficient, in the opinion of the defense, evidence that in this particular case, a guilty verdict and corresponding to the qualifications of the crime was decided, but nevertheless the punishment itself, assigned to Ivanov I.I., was punitive character does not correspond to either the nature or the severity of the offense.

Also, the court did not take into account the circumstances confirmed by documents that, despite admitting his guilt in the crime, Ivanov I.I. does not deserve the punishment associated with isolation from Society, which also goes beyond the scope of judicial statistics in criminal cases where the accused in committing similar crimes, unlike Ivanov I.I., those who oppose the investigation and the court in establishing the truth in the case, who choose evasion of confession as a method of defense, or, abusing their rights, choose the tactics of using the guarantees of Article 51 of the Constitution of the Russian Federation, are condemned under Part 3 of Article 158 of the Criminal Code of the Russian Federation, to penalties not related to imprisonment in 90% of cases (the practice of the Moscow Regional, Moscow City and Krasnogorsk District Courts).

According to paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 26 of November 27, 2012 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the appellate court,” the court has the right to change the sentence or cancel the sentence and make a new judgment if this the position of the convicted person in relation to the charges brought by the preliminary investigation bodies is not worsened, and his right to defense is not violated.

According to Article 43 of the Criminal Code of the Russian Federation, punishment is a measure of state coercion, imposed by a court verdict.

Punishment is applied to a person found guilty of committing a crime and consists of the deprivation or restriction of the rights and freedoms of this person as provided for in this Code, while the punishment is applied in order to restore social justice, as well as to correct the convicted person and prevent the commission of new crimes.

According to Article 56 of the Criminal Code of the Russian Federation, deprivation of liberty consists of isolating a convicted person from society by sending him to a penal colony, placing him in an educational colony, a medical correctional institution, a correctional colony of general, strict or special regime, or in prison and is the most severe type of punishment.

According to paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 26 of November 27, 2012 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of appeal,” Verifying the legality, validity and fairness of the sentence based on appeals and (or) submissions or other court decisions, the appellate court must eliminate the violations committed and consider the criminal case on its merits with a final court decision.

As noted above, the defense finds the verdict passed by the Krasnogorsk City Court of the Moscow Region against Ivanov I.I. unreasonable and unfair in terms of the punishment assigned to the convicted person, subject to change.

Article 61 of the Criminal Code of the Russian Federation establishes circumstances that, in the opinion of the defense, mitigate the guilt of I.I. Ivanov, the list of circumstances given in this article is not exhaustive, and the court is given the right to take into account other circumstances not specified in this article, however When deciding the sentence, the court did not indicate mitigating circumstances, although confirmation of their presence is available in the case; in its verdict, the court limited itself to a formal indication of the presence of positive characteristics and personal information, but no more.

Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 11, 2007 N 2 (as amended on December 3, 2013) “On the practice of imposing criminal punishment by the Courts of the Russian Federation” in paragraph 6 of paragraph 7 determines that: “a message from a person detained on suspicion of committing a specific crime, about other crimes he has committed, unknown to the criminal prosecution authorities, should be recognized as a confession and taken into account when assigning punishment when convicted for these crimes.”

And the next paragraph states that: “in the case of a totality of crimes committed, surrender as a circumstance mitigating punishment is taken into account when assigning punishment for the crime in connection with which the person surrendered.”

As previously stated, from the case materials it follows that Ivanov I.I. sincerely repented of what he had done and voluntarily confessed in the only episode in which the investigative authorities did not suspect him.

The court unreasonably did not apply the provisions of Article 64 of the Criminal Code of the Russian Federation in relation to Ivanov I.I. and did not impose a punishment below the lowest limit, despite the fact that the special part of the Criminal Code of the Russian Federation did not establish a minimum limit. Considering that the provisions of Article 64 of the Criminal Code of the Russian Federation imply the possibility of imposing a sentence below the lower limit, consideration of the issue of applying the disposition of this norm when imposing punishment is a necessary condition for respecting the rights of the defendant, taking into account his behavior during the preliminary investigation and trial.

On the basis of the above,

ASK:

1. The verdict of the Krasnogorsk City Court of the Moscow Region dated February 12, 2015 is amended;

2. Assign Ivanova I.I. a punishment not related to the deprivation of his freedom, not related to serving the sentence in a maximum security colony, since there is no need to isolate the convicted person from Society, and the punishment imposed on him will not contribute to the correction of the convicted person;

3. Consideration of the case in the appellate court should be carried out with the participation of the convicted person;

Order No.______from_______________

Lawyer _signature____ / ___name__

Assistance from a lawyer on appealing verdicts in the Supreme Court

A lawyer is a disinterested person, as a result of which the lawyer’s activities are carried out in conditions of strict observance of the interests of the client. The actual list of functions of a lawyer in appealing against sentences by appealing to the Supreme Court includes:

• A thorough study of the available procedural documents and the position of the potential applicant.
• Development of an individual appeal strategy with the search for important arguments to overturn the verdict.
• Collection of evidence confirming the need to re-examine the criminal case.
• Carrying out other necessary procedural actions in order to represent and protect the interests of the principal.

As practice shows, the participation of a qualified lawyer in the procedure for seeking assistance from the Supreme Court on issues related to appeals and sentences that do not correspond to the concepts of justice and legality is the key to a positive consideration of the application in the highest authority. Today, regulations and samples for drawing up various types of statements are freely available, but not a single template can guarantee a positive result, since each individual case is completely individual. Drawing up a complaint against a court verdict on your own entails the possibility of making errors and inaccuracies, which may lead to refusal to accept the complaint for consideration. MMKA lawyers have extensive practical experience and professional skills, thanks to which the risk of shortcomings is reduced to zero. You can be sure that when a lawyer draws up a complaint against a court verdict, the application will be absolutely legally competent, which will significantly increase the chances of it being accepted for consideration.

An additional argument in favor of contacting a competent lawyer in order to appeal a court verdict in the Supreme Court of the Russian Federation is the need for convincing motivation and compelling arguments when drawing up an application. The Supreme Court of the Russian Federation accepts for consideration only truly problematic cases, in which a reasoned text of the complaint with sufficient justification is the only condition for acceptance for consideration. In this case, the lawyer will be able to take on all the related tasks of challenging the court verdict at any stage and help represent the interests of his client, achieving their satisfaction.

Challenging a court verdict without professional legal assistance is almost impossible. This is due to both complex formalities and the specifics of the procedure itself. In addition, the court in some cases may make a decision unfavorable for the applicant, imposing a more severe punishment if serious mistakes are made. If you do not agree with the essence of the sentence and believe that a specific court sentence violates your rights in accordance with current legislation, cooperation with specialists from the Moscow Municipal Bar Association will be a rational decision. Our lawyers successfully appeal criminal verdicts by appealing to a higher court and guarantee an individual approach to each client to achieve the most favorable outcome of the case.

Appeals and cassation complaints against sentences and decisions in civil cases: general recommendations

Home Press center Appeals and cassation complaints against sentences and decisions in civil cases: general recommendations

People sometimes turn to me for legal assistance when the case has already gone through not only the first instance, but also an appeal, and even the so-called “first” cassation. Unfortunately, an analysis of civil and criminal cases shows that in many cases previously filed complaints turn out to be simply poorly drafted, but at the same time, one or another instance of appeal has already been formally passed, and going to a new round of appeal is impossible or simply pointless. Therefore, we have to abandon an initially perhaps promising, but already ruined business. The reasons why people often rely on their own efforts to file complaints and litigate cases are clear. Some, for example, believe that in the first or second instance they can sue on their own, and if the result does not suit them, then it is worth contacting a lawyer. At the same time, they lose sight of the fact that it is better to conduct the case efficiently in the court of first instance, than to later appeal to higher authorities. An appeal can also yield results, but one of the conditions for this is a well-prepared complaint. Those who have not encountered at all or occasionally encountered appeals against judicial acts simply do not know by what “laws of the genre” a complaint is based, which arguments are important and which are not. I decided to outline some basic recommendations that will help you avoid “school” mistakes if you still decide to write a complaint yourself - without the help of a lawyer. At the same time, it is important to remember that for a more in-depth study of a specific complaint, you always need to know the materials of a specific case, be able to analyze them from a legal point of view, and have a good command of the relevant judicial practice at the regional level and the Supreme Court of the Russian Federation.

1. First of all, you need to know the deadlines for filing appeals and cassation complaints. You can be as right as you like in the essence of the dispute, but if you missed the deadline for filing a complaint, it will not even be considered on its merits. An exception is cases when the deadline for filing a complaint is restored. This issue is decided at the discretion of the court, which assesses the validity of the reasons for missing the deadline. No one will restore the deadline if it was missed due to ignorance, forgetfulness, illiteracy, etc. There must be really compelling reasons for the court to restore the missed deadline for filing an appeal or cassation complaint.

Main deadlines for appealing decisions in civil cases :

• The appeal must be filed within a month from the date of the decision of the court of first instance in final form (unless otherwise provided by law).
• For both cassation appeals (in the “first” and “second” cassation), a total period of 6 months has been established from the date of entry into force of the appealed judicial acts. Moreover, if the decision has not previously been appealed (including if the deadline for filing an appeal has been missed), there is no point in writing to the cassation authority; the appeal will be returned without consideration.
• A complaint to the European Court of Human Rights can be filed within 6 months after the “second” cassation has been completed (in the Supreme Court of the Russian Federation). The missed 6-month period is not restored.

The main deadlines for appealing sentences and other judicial acts in criminal cases :

• An appeal against the verdict must be filed within 10 days from the day the verdict was announced, and if the convicted person was kept in custody - from the day he was given a copy of the verdict;
• The decision on the preventive measure must be appealed within 3 days from the date of the decision.
• There are no deadlines for filing cassation appeals by convicts and defense lawyers. A cassation appeal in a criminal case may be considered by the court even in the case where the judicial act has not been appealed.
• A complaint to the European Court of Human Rights can be filed within 6 months after the verdict or ruling has entered into force after passing the appeal court. The missed 6-month period is not restored.

Important! There is no need to be afraid to write complaints about sentences and fear that because of this they may tighten the punishment or otherwise worsen the situation of the convicted person, including after the sentence is overturned and the case is reconsidered. If the complaint is filed only by the convicted person or his lawyer (i.e., the prosecutor and the victim have not appealed the verdict), the higher court (as well as the court of first instance, if the case is returned for a new trial after the judicial act has been annulled) cannot worsen the situation of the convicted person.

1. When appealing, it is important to understand the competence of each authority. In an appeal, evidence in a criminal or civil case can be analyzed, but new evidence can only be presented if it could not be presented to the trial court for good reasons. If they were not presented to the court of first instance due to forgetfulness, illiteracy, etc. - these are not valid reasons. There is also no need to hope that the appellate court will order an additional or repeat examination - these are the rarest cases in judicial practice.

The cassation court considers only questions of law. Therefore, there is no point in writing in a cassation appeal, for example, that the testimony of witnesses is unreliable, that the methodology was not followed during the examination, etc. For the cassation court, only significant violations in the application of substantive or procedural law are important.

A complaint to the European Court of Human Rights must contain only a statement of the circumstances and violations committed in the case precisely in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the practice of the ECHR itself, and not Russian legislation.

1. Understand what result you want to get from the complaint: cancel the decision/sentence, reconsider the case on the merits as a whole, achieve reclassification to a lesser crime or reduce the punishment, prepare the case for a subsequent complaint to the ECHR.

For example, complaints in which the convicted person first writes about his complete innocence and gives arguments in favor of this, and then points out mitigating circumstances and refers to too harsh a punishment, look unconvincing.

1. It is necessary to write only strong arguments - without emotions, “water” and “collecting” minor technical errors.

If a person writes an appeal or cassation complaint against a decision in a civil case or a sentence in a criminal case without the help of a qualified lawyer, he, as a rule, tries to set out in it his emotional attitude towards the judicial acts being appealed, and technical errors in paperwork, and substantive arguments affairs. At the same time, legal arguments are not ranked, but presented haphazardly. This impairs the readability of the complaint, and, in addition, allows the reviewing court to first easily “beat off” weak arguments by describing the main motivation for them, and then “sweep the remaining strong arguments under the rug.”

A well-written appeal or cassation complaint, firstly, includes only legal arguments without “water” and emotional passages, and, secondly, contains a ranking of these arguments by their strength: first the strongest, then in descending order (minor and insignificant violations are not indicated at all).

1. There is no need to quote regulations extensively. If you can only give a link to an item, part, article, without citing its content, do so. Quote the practice of the ECHR, the Constitutional Court of the Russian Federation or the Supreme Court of the Russian Federation selectively - briefly and only in relation to your question. Do not quote the practice of other courts, but simply provide a link indicating the details or, as a last resort, attach copies of these judicial acts to the complaint.

1. If in your complaint you refer to evidence or any documents, indicate the sheets of the case. It is extremely important to be able to analyze evidence and relate it to each other, without jumping from one circumstance to another and without duplicating the same argument in different parts of the complaint.

1. Write as briefly as possible. The essence of the violation committed by the court, as a rule, can be expressed in one short sentence. Everything else is an expansion of this thesis.

The volume of the complaint, most often, does not indicate the number of violations committed, but the inability to briefly and convincingly state one’s position and select really important arguments for the complaint. The principle “the more written, the better” does not work when drawing up and filing appeals and cassation complaints. Remember that no one will read into long, unstructured complaints, and their consideration will be purely formal.

The implementation of these recommendations in specific cases and the general approach of lawyer M.A. Nikonov You can evaluate the drafting of legal documents by studying examples of appeals against the extension of detention and the denial of parole, as well as some cases from the practice of a lawyer.

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