Complaint against the magistrate

If you do not agree with the Court Decision or the Court Determination, the only way is to appeal it to a higher authority, everything else will not help.

Only through a complaint can you achieve a change in the Decision or Determination of the court in your favor.

After filing an appeal against a court decision, this decision, until it is considered by a higher authority, WILL NOT ENTER INTO LEGAL FORCE and YOU ARE NOT OBLIGED TO FULFILL IT...!

By filing a complaint, in any case, you do not lose anything - you have a chance to overturn the decision, and the appeal procedure gives you significant additional time to not comply with the court decision...

Basic concepts.

Before we dwell in detail on the issues of appealing court decisions and court rulings, let's figure out what is what...

A court decision is a decision made by the court on the merits of the claims stated by the plaintiff or applicant (sometimes called “claims”), while the court’s decision ends/terminates the proceedings. The stated demands are satisfied in full or in part, or the court refuses to satisfy them.

The court decision is announced immediately after its adoption by the court - only the decision itself is announced (also called the “operative part of the decision”): whether to satisfy the requirements or not, but the so-called “full text” The court prepares decisions with reasons and references to laws within a period of time (in practice) of about 5-10 days, and sometimes longer... (although the law stipulates 5 days).

In the context of an appeal, to prepare a complaint against a court decision, a lawyer needs the full text of the decision...* (but there are pitfalls...see below) and familiarization with all the materials of the case.

Court rulings are intermediate procedural documents issued by a judge before making a decision on the case.

Example: A ruling on initiating a civil case, a ruling on ordering an examination, a ruling on leaving the statement of claim without progress, a ruling on returning the statement of claim, a ruling on involving third parties in the case, etc.

From the point of view of appeal, not all court rulings can be appealed, if we make it easier for you to understand what can be appealed and what not, I recommend - IMMEDIATELY after the announcement of the ruling by the judge, ask (you have every right) to hand it over to you (at least it will indicate below – is it possible to appeal it and the procedure for appealing).

If you received a court ruling by mail, you should know that the period for appealing it begins not from the date it was issued, but from the date you received it by mail... (I’m clarifying this for the case when you learned about the ruling only after receiving a letter from the court) .

Reasons for filing a complaint

As practice shows, there are many reasons for filing a complaint against a magistrate. Moreover, the most common reason is his violation of the generally established procedure for considering an application, creating obstacles during the proceedings, as well as an interest in the final outcome of the case.

Thus, if we analyze the majority of cases of filing a complaint against a magistrate, we can identify the following typical reasons for appealing to higher authorities:

unreasonable delay in the consideration of the case (according to paragraph 1 of Article 154 of the Code of Civil Procedure of the Russian Federation, civil cases must be considered and resolved by a magistrate within 1 month from the date of acceptance of the application),
unacceptable behavior on the part of the magistrate (insulting the parties, raising his tone, threats, etc.),
return of an application for a court order without apparent reasons (provided that it fully complies with the rules prescribed in Articles 122, 124, 135 of the Code of Civil Procedure of the Russian Federation),
the judge did not promptly send a copy of the court order to the debtor, as a result of which the latter was unable to submit his objections (according to Article 128 of the Code of Civil Procedure of the Russian Federation, the document must be sent within 5 days from the completion of the consideration of the case),
if there are facts indicating a violation of judicial ethics,
in the event of discovery of family ties between the judge and one of the parties (in this situation this is a reason for disqualification from the court),
identification of the fact that the magistrate received monetary compensation from one of the parties,
other reasons.

REFERENCE. Regardless of the reason for filing a complaint, the stated claims must be substantiated. Moreover, it would be a good idea to attach relevant evidence (for example, a recording of a conversation on a voice recorder).

Preparatory stage of proceedings

How to complain about a judge? It is necessary to attend to the collection of evidence that will confirm the position of the accuser. A citizen should:

Regularly read the case, find inaccuracies and contradictions, copy relevant excerpts from the text.
Constantly familiarize yourself with the protocols, submit comments if they are not drawn up on time or do not reflect the real course of events.
Make audio recordings of the proceedings: according to the law, the judge does not have the right to prohibit those present at the trial from recording its progress.
Apply for video recording. Refusal is possible only for hearings in “personal” cases (rape, sexual harassment); in other cases, judges are forced to give permission so as not to raise unnecessary questions and suspicions.

Comments and complaints are not submitted directly during the process, but after its completion, through the office. You will be provided with a sample application form. Prepare it in two copies: the second one will remain with you with a receipt stamp.

If the provided guidance on where to complain about an unfair judge does not lead to his recusal and does not affect the verdict, it will create a solid basis for appealing the decision to a higher court.

Where to write a complaint against a magistrate judge

A complaint against the actions of a magistrate shall be submitted to one of the following authorities:

An appeal to the chairman of the court is an authorized official heading a particular judicial body.

It is worth noting that justices of the peace are independent units. They carry out their activities within a specific area, to which a chairman is not separately assigned. However, if necessary, citizens can write a complaint to the chairman of the district court of the region to which a particular justice of the peace belongs.

As a rule, this authorized person is contacted when a judge violates procedural deadlines, is inactive, or is in no hurry to resolve the case.

Based on the results of consideration of the complaint, the chairman of the district court may take one of the following actions:

send a demand to the violator to promptly correct the situation,
submit the case for consideration to the Higher Qualification Committee,
apply sanctions in the form of deprivation of the bonus or reduction in its size.

Filing a complaint to the High Qualification Board of Judges of the Russian Federation is a body of the judicial community that makes decisions on the appointment of judges, suspension and termination of powers of these officials, as well as on the conferment of state awards and titles to judges.

The Qualification Board is also authorized to consider complaints from citizens against the actions (inaction) of judicial authorities, including the magistrate. Thus, in accordance with clause 1 of Article 12.1 of the Federal Law of the Russian Federation “On the status of judges in the Russian Federation,” the following types of punishment can be applied to the violator:

verbal reprimand - this measure is used if we are talking about a minor offense,
issuing a warning - usually carried out if the judge has previously been subject to disciplinary action,
reduction of qualification class - in this case, the basis is a significant violation of the rules of judicial ethics, as well as the presence of violations in the past,
Dismissal of a judge from office is an extreme measure of punishment that can only be applied in exceptional cases when there are significant violations of order committed on a regular basis.

ATTENTION. If a complaint is made against a magistrate (regardless of the authority), one important point should be taken into account. If the applicant does not agree with the verdict rendered by the judge, then in this case the complaint against the decision of the magistrate must be processed through the appeal or cassation procedure (Chapters 39 and 41 of the Code of Civil Procedure of the Russian Federation).

What is the difference between cassation in the Supreme Court?

The differences between the cassation appeal to the Supreme Court and the previous complaint are due to the specifics of the judicial proceedings in the Supreme Court. The main task of the highest judicial body is to correct law enforcement practice and form a unified position, namely to eliminate gaps in legal understanding.

Since after cassation the Supreme Court is the final authority for appealing judicial acts, the appeal procedure is possible only after a preliminary verification of your cassation appeal. The check is carried out by the filter judge for compliance with the conditions imposed by the Code of Civil Procedure, not only for the format and content of the application, but also for the position of the applicant. Based on the results of which you receive a notification about the acceptance of the cassation or its rejection.

Unlike the first cassation, your appeal to the Supreme Court demanding a review of the case should be radically different in motivation, justification, emphasis and structure of presentation of the cassation appeal. In other words, it is not enough to simply duplicate the text of the first cassation appeal for the Supreme Court.

We remind you. At this stage, the panel will only check the errors of the lower courts, and therefore you do not need to set out the circumstances of the case.

You cannot justify your position by evaluating the evidence. The main task at this stage is for the board to decide to request all case materials from the archive, since after they are requested, the likelihood of inviting you to cassation is highest.

How to file a complaint against a judge - sample

It is immediately worth noting that when preparing a complaint against the unlawful actions of a magistrate, the applicant should adhere to the rules prescribed in Art. 27 “Regulations on the operating procedure...” (approved by the Higher Qualification Committee of the Russian Federation on March 22, 2007).

So, in accordance with paragraph 2 of Art. 27 of the above-mentioned normative act, the content of the complaint against the magistrate must include the following points:

“Head” of the document - the full name of the Higher Qualification Committee to which the complaint is being sent is written down, as well as the details of the applicant or his representative:

full name (full name),
exact address of residence or location,
contacts (this can be a phone number or email address).

Main part - this section consistently presents the following information:

Full name of the magistrate whose unlawful actions are being appealed,
name and address of the judicial authority in which the case was heard,
the essence of the violations committed.

At the end, the applicant must put the date of preparation of the complaint and his signature. Additional documents may also be attached to it (power of attorney for the representative, papers confirming the legitimacy of the claims made).

REFERENCE. The above rules should be followed both when applying to the Higher Qualification Court and when sending a claim to the chairman of the district court.

A complaint against a magistrate is written taking into account several recommendations:

the text should clearly and clearly convey the essence of the problem that has arisen,
the use of insults and profanity is unacceptable,
The writing style should be businesslike,
all arguments presented must be confirmed from the point of view of the law (it is better to indicate references to specific norms),
For persons far from the law, it is better to entrust the preparation of a complaint to an experienced lawyer.

Is it possible to win in the Supreme Court on cassation?

Despite the fact that judicial acts that have entered into legal force provide for the possibility of appeal in a supervisory procedure, there are special strict grounds for review. Not every case can be considered in cassation by the Presidium of the Supreme Court (in practice, 0.1% of applications are considered in this manner)

Thus, a second cassation review is your last chance to get controversial court decisions overturned and restore violated rights on substantive and procedural grounds, since most often a refusal ruling is issued, which is associated with incorrect reasoning of the request.

The second factor determining the need for a legally competent drafting of a cassation appeal is that in order to take advantage of further international protection (ECHR), it is necessary to exhaust all domestic remedies, therefore it is necessary to draw up a document that will not only contain all the necessary information, but also will seem sufficiently motivated to the filter judge to be considered by the RF Supreme Court.

The filter judge of the Supreme Court may refuse to transfer a cassation that does not meet the requirements of the Code of Civil Procedure, therefore it is necessary to draw up this procedural document competently and taking into account the peculiarities of the process and the instance.

And that will be?

You should not hope that you will be able to fire a judge just by knowing where to complain to the court and using this information. Of course, this is theoretically possible, but in practice it happens extremely rarely and only indicates the presence of influential enemies of the judge who took advantage of the prevailing circumstances.

In the classic version, after 30 days, the citizen receives from the authority an official response to the complaint, most often containing information that judicial conduct is beyond the competence of the responding authority. Another common option is to “shift” all the blame onto the assistant referee and indicate that the person responsible was punished.

Who will help?

First of all, to the question: “Where can I complain about the court?” - Experts advise contacting a qualification board. An alternative option is a judicial council. If the court procedure is violated, if the consideration is delayed for unjustified reasons, and the representative of the court is in no hurry to fulfill the obligations assigned to him within the court, then the chairman of the court will come to the rescue. You can write a complaint to him if, for example, the parties were not notified of the state of the case within the required period.

The bias of the judge is another reason to figure out where to complain about the regional court. Citizens interested in the correct consideration of the case have the right to challenge. This is unlikely to be accepted, since it is not in the interests of the judge to admit his interest in the original decision, be it direct or indirect. Nevertheless, an application for recusal is a reason for a representative of a law enforcement station to begin to behave correctly in the courtroom. Often, questions about where to complain about the district court arise when the main participant in the process advises one of the parties directly during the meeting. If you write a recusal, such illegal behavior will stop.

Who has the right to appeal?

Issues of appealing decisions of control (supervisory) bodies, actions (inaction) of their officials are regulated by Chapter. 9 of the Federal Law of July 31, 2020 No. 248-FZ “On State Control (Supervision) and Municipal Control in the Russian Federation” (hereinafter referred to as Law No. 248-FZ).

Based on Art. 39 of Law No. 248-FZ, a controlled person (individual, individual entrepreneur or organization) against whom the following have been accepted or committed (Part 4 of Article 40 of Law No. 248-FZ) can file a pre-trial complaint:

decision to carry out control (supervisory) activities;
acts of control (supervisory) measures, orders to eliminate identified violations;
actions (inaction) of officials (inspectors) of the control (supervisory) body within the framework of control (supervisory) activities.

From 2023, an appeal to the court is possible only after a pre-trial procedure. This applies only to legal entities and individual entrepreneurs.
But from July 1, 2021, an experiment is being carried out: Resolution of the Government of the Russian Federation dated April 28, 2021 No. 663 approved the list of types of federal state control (supervision), for which a pre-trial appeal procedure is mandatory.
For more information, see “ When a pre-trial complaint against state control (supervision) is mandatory: list from 07/01/2021 ”.

The basis for filing a complaint is simply the opinion of the controlled person that his rights and legitimate interests were directly violated as part of control (supervision).

Please note that the Regulations on the type of municipal control may establish that pre-trial appeal is not applied unless otherwise prescribed by the federal law on the type of control, the general requirements for the organization and implementation of this type of municipal control, approved by the Government of the Russian Federation.

Towards justice!

In the event of a conflict situation within the framework of the judicial process, it is mandatory to formulate a complaint and send it to the judicial commission dealing with this level of legal authorities. To enhance the effect and attract the attention of numerous lawyers to the problem, you can additionally send a number of appeals. In particular, it would not be superfluous to file a complaint against the president, who appoints judges, as well as against government agencies involved in self-government within the judicial system. The scope of functionality and powers of each of the listed areas is specified in the mentioned Federal Law No. 30.

It would not be superfluous to formulate a request to the judicial council at the level of a federal subject or state. Lawyers from the General Judicial Federal Assembly at the Supreme Court level can come to the rescue. It is worth filing a complaint addressed to the chairman of the court within which the conflict case is being considered. An additional appeal can be written to the Prosecutor General. The listed authorities and persons do not have the authority to consider such complaints, but they can take control of the situation and monitor changes in the situation.