Terms of consideration of a criminal case in the court of appeal. The procedure for appealing court decisions in criminal proceedings. An example of an appeal
The appeal procedure for considering a criminal case is most relevant for the main person involved in the case. Article 50 of the Constitution of the Russian Federation guarantees the convicted person the opportunity to initiate a review of the verdict by a higher court. It is provided with an eye on the likelihood of error and the inevitable subjectivity of the servant of Themis: according to Article 17 of the Code of Criminal Procedure, he assesses the circumstances of the commission of a criminal delict according to his conscience and inner conviction.
Most of the verdicts in the first instance are passed unilaterally. Hearing of cases by the courts of the second link is held jointly. The judiciary of higher instances is more experienced and qualified. Therefore, the appeal procedure is an additional guarantee of the validity of the verdict.
Appeal by others
Art. 389.1 CPC secured the right to appeal for:
- defense counsel/representatives;
- prosecutor;
- victims;
- private prosecutor;
- plaintiff/defendant in a civil suit.
The possibility of appealing the verdict by certain categories of persons is limited.
- A lawyer cannot take a position contrary to the will of the client (part 4 of article 6 of the Federal Law No. 63 on advocacy). The only exception is the case of explicit self-incrimination on the part of the client. Example: a lawyer will have to refuse to file a complaint if he, as a specialist, considers it appropriate, but the convict does not.
- Those who did not take part in the hearing of the case have the right to appeal against the verdict if it affected their rights and interests.
- The subject matter of the civil plaintiff's appeal is limited to matters of civil action.
- Parents, spouses and other relatives of the person involved are not endowed with an independent right to appeal against the verdict, except when they have their own procedural status in the case.
What decisions can be challenged?
- According to Article 389.2 of the Code of Criminal Procedure, an appeal is filed against sentences that have not entered into force.
- Intermediate rulings on the refusal to appoint an expert examination, rejection of petitions, etc., made during the hearing, are not a separate subject of appeal. Their validity can be verified by the second-tier court only simultaneously with the verdict.
- It is possible to appeal against the verdict that has entered into force, if the appellant has filed, and the court has granted, a petition for the restoration of missed deadlines.
- Before the final verdict is issued, it is possible to file a complaint against decisions/determinations regarding:
- preventive measure;
- conducting an examination in a medical hospital;
- stopping the hearing of a criminal case;
- jurisdiction;
- return of the case for additional investigation;
- non-opening of production.
Is it worth hoping for an acquittal?
In the mind of the layman, the use of the word "court" in connection with a criminal case means that the defendant is found guilty. Alas, this is an axiom: in 2014, 0.4% of the accused were acquitted in Russia, in 2012 - 0.7%, in 2009 - 0.8%. For comparison: in the RSFSR in 1936 people's courts issued 10.9% of acquittals, in 1939 - 11.1%, in 1941 - 11.6%. In the EU countries, the statistics of acquittals fluctuate at the level of 25-50%, in the USA - up to 25%.
In order to demonstrate that there is no alternative to the situation, some lawyers propose to authorize the investigation to pass sentences. Of course, this won't happen. However, such a deplorable situation should be taken into account when filing a complaint.
Appeal strategy
It makes no sense to ask for an acquittal. The decision of such a verdict for the board means an open confrontation with law enforcement officers. In domestic practice, this is an emergency of a regional scale, which has consequences that go far beyond the scope of a single criminal case. Those involved in the preparation and approval of the indictment (investigator, head of the investigation department, prosecutor) are waiting for:
- minimum - a reprimand and a spot in the track record;
- maximum - warning of incomplete service compliance / dismissal.
The most favorable outcome based on the results of filing a complaint is the cancellation of the guilty verdict and the termination of the criminal case. In order to achieve such an effect, it is necessary to prove the existence of the circumstances specified in articles 24, 25, 27 and 28 of the Code of Criminal Procedure. Among them:
- the absence of the composition of the incriminated delict in the act;
- reconciliation of the parties;
- non-involvement of the convict in the crime;
- amnesty.
Often the convicted person is a victim of circumstance. Example: in a high-profile case, investigators are pestered by the authorities. Under the threat of losing their epaulets and positions, they are intensively looking for a criminal. And if they do not find the real one, this role falls random person. Evidence is fabricated, testimony is knocked out. The appeal in such cases must:
- Focus on internal contradictions of the position of the prosecution not taken into account by the court; procedural errors in the conduct of investigative actions; discrepancy between the picture of the crime described by the prosecutor and the evidence in the case.
- Contain a request to transfer the case for further investigation, in the manner specified in Article 389.20 of the Code of Criminal Procedure (the statement by the appellate board of gross errors of the investigation usually allows the case to be closed at this stage).
By filing an appeal, a mitigation of the sentence can be obtained. A complaint to the court of the 2nd instance with such a requirement must contain justification:
- minimal public danger of crime;
- positive personal characteristics of the perpetrator (good family man or worker, blood donor, volunteer);
- excessive severity of the chosen punishment;
- the possibility of correcting the convict with a more lenient punishment;
- mitigating circumstances (provided for in Article 61 of the Criminal Code, but their list is not considered exhaustive).
Appeal Requirements
The appeal procedure for consideration of a criminal case can be initiated by filing two types of documents: a prosecutor's presentation / complaint of a private person. Regarding the requisites, Article 389.6 of the Code of Criminal Procedure puts forward the same requirements for them:
- the name of the second level court to which the document is addressed;
- details of the appellant: full name, address, procedural status;
- reference to the verdict indicating the date and presiding judge;
- the appellant's arguments regarding the grounds for annulment of the sentence, supported by references to evidence (it is better to indicate the pages of the case), the provisions of the Criminal Code and judicial practice;
- list of applications;
- the complainant's signature.
The arguments of the appellant must be reduced to the points specified in Art. 389.15 Code of Criminal Procedure:
- inconsistency of the sentence with the circumstances of the case, established by the investigation;
- errors in the application of the Criminal Code;
- significant violation of the Code of Criminal Procedure;
- injustice of the verdict;
- identification of grounds for returning the case to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure.
The complaint may contain links to new evidence. They are attached to the appeal (originals or certified copies for the court, photocopies for sending to the participants in the case). The document must contain a request for the examination of such evidence and an intelligible explanation of the reasons why it was not provided to the Tier I court.
Delivery time
According to Art. 389.4 of the Code of Criminal Procedure, the deadline for filing an appeal to an interested person is 10 days. It is counted from the date of the verdict. For the accused held in a pre-trial detention center, the term begins at the time of delivery of a copy of the appealed decision against receipt.
Deadlines under the Code of Criminal Procedure are imperative. A complaint filed late will not be processed. But Art. 389.5 The Code of Criminal Procedure established the procedure for restoring the deadline for filing an appeal that was missed for a good reason. The request for reinstatement is reviewed by the same judge who issued the contested verdict. His denial of the appellant's application is subject to review by a higher court.
The deadlines for filing an appeal are set not only by the Code of Criminal Procedure, but also by judges. If the appeal in the criminal process does not meet the formal requirements, it is returned for revision. The complainant is given a certain period of time to re-draw up the document. If the errors are corrected within the allotted time, the appeal is deemed to have been filed on time.
It is better not to take risks and, before filing a complaint, re-check with the Code of Criminal Procedure regarding the details. Real life example: the lawyer made an excellent appeal, printed it out in the required number of copies, filed the applications. The complaint was forwarded to the client for submission to the office. The court left her without movement. Cause? The client did not sign and did not indicate the date of signing.
The Constitution of the Russian Federation secures for any convicted citizen the right to review the case. It is being considered by a higher court. At the conclusion of the review, the decision made may be set aside or reduced. In order for the protest to be successful, you will need to file a competent appeal.
Until 2013, convicts in the course of criminal proceedings could challenge the verdict of the court only in cassation. Such cases were rarely reviewed, and the process itself took a lot of time. The situation of persons convicted in the course of criminal proceedings improved significantly after January 1, 2013, when Law No. 433-FZ came into force.
It allows for an appeal to be made against any judgment handed down by the court of first instance. But the law applies only if the decision has not yet entered into force. According to Federal Law No. 433, not only the verdict, but also interim decisions can be appealed.
The law limits the circle of persons who are allowed to file a complaint. These include:
- participants in the trial (both the prosecutor and the accused or convicted in the case, his lawyer);
- persons whose rights and personal interests have been somehow affected by the decision made by the court.
Please note that relatives of participants in the process and witnesses cannot file a complaint.
Grounds and terms for filing an appeal in a criminal case
To appeal a previous conviction, you must have strong grounds, which often include the following:- inconsistency between the materials and facts of the case and the decision made by the judge;
- the presence of a number of significant violations during the investigation or court hearing;
- errors in the application of the laws of the Criminal Code (illegal application of certain articles and their parts, which can lead to both a more severe sentence and its mitigation);
- an unjust sentence - both more lenient and more severe.
If it turns out that the last day of submission falls on a weekend, according to legislative framework, the deadline is extended, and the deadline is the next working day after the holiday.
In case of violation of the deadline for filing, you can challenge the decision in cassation or try to restore the deadlines by filing an appropriate application for an extension of the deadline. It is only filed if the person has a good reason for not meeting the time limit for the appeal. That reason is:
- illness (often if the person was treated in a hospital);
- business trip to another city, region or country;
- non-compliance with the terms of delivery of a copy of the decision (for example, if the court did not send the document for a long time or it was delivered by mail with a significant delay);
- other emergency circumstances.
The terms for consideration of the submitted petition and the decision to review the case depend on the court in which the petition was filed. The district court spends up to 15 days for consideration, the court of the subject of the Russian Federation - 30 days, the Supreme Court - 45 days.
Where to apply?
Before filing a complaint, you should find out exactly where you need to file a complaint. This information must be indicated in the header of the document. It will depend on where exactly the case was considered earlier:- the verdict of the justice of the peace is appealed to the district court;
- the second instance for the district court will be the Supreme Court of the republic, territory or region, district;
- for garrison ships - a naval military court;
- if the Supreme Court was involved in the consideration, the decision is reviewed exclusively in the appellate division of the Supreme Court.
It is not allowed to file a complaint directly to the court of second instance. Such complaints are rejected and returned to the complainant.
How to make a complaint?
The document is made only in writing.The complaint must contain the following information:
- Information about the court where the paper is submitted, including its address.
- Compiler's data - full name, address, contact number.
- Information about the contested decision - the number of the case, the date of the verdict and its number must be indicated.
- Grounds for changing the decision, its full or partial cancellation. This part requires:
Refer to the relevant laws and articles giving the right to review the case;
List the arguments in favor of a retrial and support them with evidence that either requires a mitigation of the sentence or the return of the case to the prosecutor.
- List of documents attached to the complaint. This may be additional facts that confirm the presence of new facts and circumstances in the case, new witnesses, copies of the complaint.
- Date of compilation and signature of the compiler.
Short Form Complaint
It is necessary to file an appeal in a very short time, and it is not always possible to find suitable arguments and evidence for a successful review of the case quickly, so filing a short or preliminary appeal has recently become practiced. This allows you to buy time needed to search for evidence and other circumstances that may help reduce the sentence.A document is drawn up similarly to a standard full complaint, but with one significant difference - in the main text of the document, you simply need to refer to the fact that the applicant does not agree with the verdict, indicating that:
- the conclusions of the judge do not coincide with the actual circumstances of the case;
- the defendant has excellent characteristics from the place of work and has not been involved before.
- there are other circumstances that indicate that the sentence passed is unnecessarily harsh and untrue.
It is important to remember that the submitter may submit an additional document within the time period clearly specified by law. So, it can be transferred no later than 5 days before the start of the case. There may be several such complaints.
State duty
Proceedings in criminal cases do not require the payment of state contributions. This applies not only to the situation when the case is being considered for the first time, but also when it comes to revising an earlier decision. As such, you do not need to include copies of the receipt with your complaint.The following persons must be present during the hearing:
- prosecutor or other public prosecutor;
- a convicted citizen (in the case of filing a complaint by the prosecution - an acquitted person);
- private prosecutor;
- lawyer or other human rights defender.
If one of the persons did not appear at the meeting, provided that he was notified in a timely manner, the case will still be reviewed.
If the court session is missed without a valid reason by the representative of the person who filed the complaint, or the accuser, the appeal proceedings shall be terminated. In the future, review in cassation is possible if all legislative norms and requirements for filing a complaint are observed.
If all persons are present, the protest proceeds in the following sequence:
- The court where the case was heard receives the complaint. The judge is obliged to familiarize himself with it and make a decision on the transfer of paper and case materials to a higher level authority.
- After the case is transferred to a higher judicial body, the materials are reviewed, and the judge makes a decision, which indicates:
The date of the review of the case, indicating the exact time and place of the hearing;
Decision to summon to the meeting the parties, witnesses, experts and other persons specified in the petition of the parties-participants;
Whether the meeting will be open or closed;
In what form will the convict being held in custody participate. Recently, the participation of the accused in court with the help of video conferencing has become increasingly popular.
- The court notifies the participants in the proceedings of the existence of an appeal, indicating the time period during which the other party, a participant in the proceedings, may file either a counterclaim or submit its objections in writing. In the future, they are attached to the case and considered together with the complaint.
- A notice is sent to all participants about the place and date of the new court session. It is important that all persons involved must receive notification at least 7 days before the date on which the case is scheduled to be heard. Otherwise, the meeting date may be rescheduled.
- The next step will be a hearing. First, the number of the case being reviewed and the earlier verdict are read out, the complaint and the requirements set forth in it are voiced. After consideration of the provided evidence begins, the judge may hear witnesses, if any, give the floor to the parties to the process.
- At the end of the hearing, the decision of the Court of Appeal is made. It can be like this:
Leave the verdict unchanged;
Change the verdict issued by the court;
Announce a new verdict;
Thus, the verdict of the court in a criminal case is subject to challenge in a higher instance. To do this, it is important to correctly write the appeal statement and have time to submit it before the expiration of the ten-day period. This can be done by both persons participating earlier in the process, and citizens who were not direct participants judicial trial but the decision in any way affected their rights or interests.
The Constitution of the Russian Federation secures for any convicted citizen the right to review the case. It is being considered by a higher court. At the conclusion of the review, the decision made may be set aside or reduced. In order for the appeal to be successful, you will need to file a competent appeal.
The legislative framework
Until 2013, convicts in the course of criminal proceedings could challenge the verdict of the court only in cassation. Such cases were rarely reviewed, and the process itself took a lot of time. The situation of persons convicted in the course of criminal proceedings improved significantly after January 1, 2013, when Law No. 433-FZ came into force.
It allows for an appeal to be made against any judgment handed down by the court of first instance. But the law applies only if the decision has not yet entered into force. According to Federal Law No. 433, not only the verdict, but also interim decisions can be appealed.
The law limits the circle of persons who are allowed to file a complaint. These include:
- participants in the trial (both the prosecutor and the accused or convicted in the case, his lawyer);
- persons whose rights and personal interests have been somehow affected by the decision made by the court.
Grounds and terms for filing an appeal in a criminal case
To appeal a previous conviction, you must have strong grounds, which often include the following:
- inconsistency between the materials and facts of the case and the decision made by the judge;
- the presence of a number of significant violations during the investigation or court hearing;
- errors in the application of the laws of the Criminal Code (illegal application of certain articles and their parts, which can lead to both a more severe sentence and its mitigation);
- an unjust sentence - both more lenient and more severe.
The article that determines the deadlines for filing a complaint for an appeal is 389.4 of the Code of Criminal Procedure of the Russian Federation, namely part 1. It states that the necessary papers are drawn up and submitted no later than 10 days from the moment the verdict is announced in court. Convicted and remanded persons may count this period from the moment when they were handed a copy of the verdict.
In case of violation of the deadline for filing, you can challenge the decision in cassation or try to restore the deadlines by filing an appropriate application for an extension of the deadline. It is only filed if the person has a good reason for not meeting the time limit for the appeal. That reason is:
- illness (often if the person was treated in a hospital);
- business trip to another city, region or country;
- non-compliance with the terms of delivery of a copy of the decision (for example, if the court did not send the document for a long time or it was delivered by mail with a significant delay);
- other emergency circumstances.
When drawing up and submitting an application, you must back up your words with relevant documents. For example, if we are talking about an illness, provide a sick leave, and if the reason is related to a business trip, a copy of the order.
Where to apply?
Before filing a complaint, you should find out exactly where you need to file a complaint. This information must be indicated in the header of the document. It will depend on where exactly the case was considered earlier:
- the verdict of the justice of the peace is appealed to the district court;
- the second instance for the district court will be the Supreme Court of the republic, territory or region, district;
- for garrison ships - a naval military court;
- if the Supreme Court was involved in the consideration, the decision is reviewed exclusively in the appellate division of the Supreme Court.
The application is submitted through the court where the sentence was pronounced. The reason is that all materials are stored in the court of first instance, and according to the law they cannot be claimed from there before the deadline specified in the law. Upon its completion, the complaint and case materials are transferred to the court of second instance.
How to make a complaint?
The document is made only in writing.
The complaint must contain the following information:
- Information about the court where the paper is submitted, including its address.
- Compiler's data - full name, address, contact number.
- Information about the contested decision - the number of the case, the date of the verdict and its number must be indicated.
- Grounds for changing the decision, its full or partial cancellation. This part requires:
- refer to the relevant laws and articles giving the right to review the case;
- list the arguments in favor of a review of the case and support them with evidence that either requires a mitigation of the punishment, or the return of the case to the prosecutor.
The finished paper is submitted both personally to the office of the court of first instance, where it must be registered, and sent by mail. It is important to choose a registered letter when sending, so that the complaint is not lost, and you have proof that you really sent the document. Then the date of filing is the date on the stamp of the envelope.
Short Form Complaint
It is necessary to file an appeal in a very short time, and it is not always possible to find suitable arguments and evidence for a successful review of the case quickly, so filing a short or preliminary appeal has recently become practiced. This allows you to buy time needed to search for evidence and other circumstances that may help reduce the sentence.
A document is drawn up similarly to a standard full complaint, but with one significant difference - in the main text of the document, you simply need to refer to the fact that the applicant does not agree with the verdict, indicating that:
- the conclusions of the judge do not coincide with the actual circumstances of the case;
- the defendant has excellent characteristics from the place of work and has not been involved before.
- there are other circumstances that indicate that the sentence passed is unnecessarily harsh and untrue.
In general, you can specify any more or less acceptable reason. It is important not so much to convince the court that you are right, but to gain time to search for the necessary evidence. The fact is that the court will not accept the short form, since it contradicts the correct form. So, the complaint will be returned with an indication that within the period allotted for this, all errors must be corrected and resubmitted.
State duty
Proceedings in criminal cases do not require the payment of state contributions. This applies not only to the situation when the case is being considered for the first time, but also when it comes to revising an earlier decision. As such, you do not need to include copies of the receipt with your complaint.
The procedure for considering an appeal in a criminal case
The following persons must be present during the hearing:
- prosecutor or other public prosecutor;
- a convicted citizen (in the case of filing a complaint by the prosecution - an acquitted person);
- private prosecutor;
- lawyer or other human rights defender.
If the court session is missed without a valid reason by the representative of the person who filed the complaint, or the accuser, the appeal proceedings shall be terminated. In the future, review in cassation is possible if all legislative norms and requirements for filing a complaint are observed.
If all persons are present, the protest proceeds in the following sequence:
- The court where the case was heard receives the complaint. The judge is obliged to familiarize himself with it and make a decision on the transfer of paper and case materials to a higher level authority.
- After the case is transferred to a higher judicial body, the materials are reviewed, and the judge makes a decision, which indicates:
- the date of the review of the case, indicating the exact time and place of the hearing;
- a decision to summon to the meeting the parties, witnesses, experts and other persons indicated in the petition of the parties-participants;
- whether the meeting will be open or closed;
- to leave the sentence unchanged;
- to change the verdict rendered by the court;
- pronounce a new verdict;
- return the case to the prosecutor for additional investigation.
Thus, the verdict of the court in a criminal case is subject to challenge in a higher instance. To do this, it is important to correctly write the appeal statement and have time to submit it before the expiration of the ten-day period. This can be done both by persons participating earlier in the process, and by citizens who were not direct participants in the trial, but the decision made in any way affected their rights or interests.
sovetadvokatov.ru
Any litigation ends with a decision. Non-exclusion here and the meeting held in the framework of a criminal case. The verdict of the court can be both acquittal and accusatory. Such results sometimes do not suit one of the parties. In these cases, any of those interested can file a cassation complaint. The essence of such a petition is the desire to annul or significantly change the decision.
Judgment in a criminal case
Consideration by the court of material on the commission of a crime provided for by the articles of the Criminal Code of the Russian Federation may end with the issuance of a decision as follows:
- Bringing the perpetrator to justice. In this case, the measures of influence specified in the Criminal Code are applied to the person. It all depends on the type of crime committed and the severity of the consequences. For these purposes, the current legislation defines the upper and lower limits of punishments, as well as their types. If there are extenuating circumstances in the actions of a person, the court may apply a milder measure than provided by law. In this situation, we are talking about lowering the established minimum limit. If the actions of the defendant are qualified under several articles, then the punishment will be imposed by partial addition of measures or absorption by a more severe less severe one.
- Full acquittal of the accused. In this case, all suspicions are removed from the person, and the case is terminated.
- Sending materials for revision. This happens if the court established violations of the requirements of the current legislation committed during the course of investigative measures.
Regardless of the outcome, either party may file a motion to set aside the decision.
Right to appeal
An appeal occurs in cases where someone is not satisfied with the outcome of the case.
The grounds for sending an appeal for review of the decision are:
- Discrepancy between the circumstances of the case and the final verdict of the court. In this case, there are - incorrect conclusions that are not supported by the evidence base; significant circumstances are not taken into account; not all information and data were evaluated, and this was not reflected in the decision; the conclusion is inconsistent.
- Gross non-compliance with the norms of the criminal procedure. In this case, the case was not dismissed if there were grounds for this; the defendant himself or his representatives were absent from the hearing; used information and data that cannot act as an evidence base; the minutes of the proceedings and other necessary documentation were not kept.
- The actions of the accused were qualified incorrectly, the article of the Criminal Code was applied erroneously.
Also, the right to appeal arises if the sentence was passed in accordance with the requirements of the law, but one of the parties considers the punishment to be too lenient or harsh.
Court of Cassation
General regulatory legal acts, in particular the Code of Criminal Procedure, define the instances where an interested party can file a cassation complaint. In contrast to the appeal, for which a rather large list of instances is defined, for cassation such is the court. This is enshrined in Chapter 47.1 of the Code of Criminal Procedure of the Russian Federation.
As part of a criminal case, an interested person can apply to the regional court. In this instance, it is possible to annul the verdict of the district court.
The cassation can also be sent to the collegium of the Supreme Court of the Russian Federation. There, the verdicts of the district courts are reviewed if they have passed the stage of appeal in the regional ones, as well as the decisions made by the latter.
Who can apply
The circle of participants in the criminal process is quite wide; this includes the victim, the accused, witnesses in the case, experts, the public prosecutor, and legal representatives of the parties. However, not everyone has the right to file a cassation.
Such persons, according to Article 401.2 of the Code of Criminal Procedure of the Russian Federation, include:
- The defendant himself. In this case, it does not matter whether the person was convicted or acquitted.
- his legal representatives.
- The victim or his representatives. If a person died or died naturally as a result of a crime, his relatives or family members can file a complaint.
- Public or private prosecutor.
- The civil plaintiff, the defendant, as well as their legal representatives, insofar as they relate to claims of this nature.
- Attorney General.
Other persons whose interests and rights are affected by the criminal case may also file a complaint.
Submission deadlines
Main 47.1 of the Code of Criminal Procedure of the Russian Federation does not establish a clear time period for sending cassation complaint. The time limit for any appeal starts from the moment of judgment. However, in the case of cassation, such time is actually not limited.
The exception is when the review occurs due to circumstances that worsen the position of the convicted, acquitted, in respect of whom the criminal case has been terminated. In this situation, the term for sending a cassation appeal is twelve actual months from the date the verdict comes into force.
Appeal
The text must reflect all the information that will reveal the essence of the complaint. All requirements must be clearly formulated so that the essence of the appeal is clear to the court. You must also provide required details.
The document itself can be handed over personally, through a legal representative or sent by mail. The latter option is not the most reliable, since in this case you can skip the deadlines for appealing. Most often, a petition of such content is declared during the meeting, and the appeal is subsequently handed over personally. It would be useful to attach the available documentation to the complaint, for example, an interlocutory verdict of the court.
Design rules
In order for the complaint not to be dismissed, the text should indicate the following:
- Full name of the court to which the appeal is directed. The address of the location is also indicated.
- Information about the initiator of the appeal - full surname, name, patronymic, procedural status, that is, who the person is, for example, the victim, the accused or the civil plaintiff. It is necessary to indicate the address of the place of residence or actual location.
- Information about the verdict that is being appealed - the place and date of its issuance, as well as the court that made the said decision.
- Information about the courts in which the criminal case was considered initially, an appeal or cassation was filed. Here it is necessary to reflect the essence of the decisions made.
- Justification by the initiator of his position. This paragraph indicates which norms were violated, evidence not taken into account, unquestioned witnesses and experts, as well as justification for disagreement with the punishment imposed.
- List of documents attached to the complaint.
The drawn up paper is signed by the person who issued it. Also, the person must put a date on the complaint.
The initiator of the appeal is obliged to reflect in the text exactly what violations were committed in the process of investigation, consideration of the case and sentencing. It is necessary to describe in detail the current situation, indicate which evidence was taken into account and which was not. It would be correct to indicate the circle of witnesses who have information related to the essence of the case under consideration. It is necessary to demand that they be summoned to court for the purpose of further questioning. This also applies to competent experts in the field of examination. If certain evidence was not taken into account at the initial meeting, due to their absence, then it is necessary to write the reason for the impossibility of providing such information and data.
When a complaint is filed by a person who was not directly involved in the process, he must indicate exactly what opportunities were limited.
If the initiator's appeal was drawn up in violation of the requirements of the current legislation, which make it impossible to consider it, the document is returned by the court, which sets a deadline for eliminating inaccuracies and correcting errors. Such a requirement must be met without fail. Otherwise, it will be considered that the complaint was not sent and the sentence will remain unchanged.
Review result
All proceedings on the fact of filing a cassation end with certain results. They are specified in article 401.14 of the Code of Criminal Procedure of the Russian Federation.
- Leaving the complaint unsatisfied.
- Cancellation of the verdict and the end of the criminal proceedings.
- Sending materials for a new judicial review or transferring them to the prosecutor for analysis and legal assessment.
- Cancellation of the appeal.
- Cancellation of the cassation decision.
In conclusion, the court is obliged to reflect one of the reasons for the annulment or change of the sentence specified in Article 401.15 of the Code of Criminal Procedure of the Russian Federation. The decision is signed by the entire composition of the court, and the decision is signed by the chairman of the presidium. This document is attached to the materials of the criminal case.
pravograjdan.ru
Cassation appeal in a criminal case
A cassation appeal in a criminal case, based on the current legislation, may be filed in case of disagreement with the decision of the court of the first and second order. It can be sent by citizens who are involved in the final verdict, but only in those points that are directly involved in this person. In general, only convicted, injured, acquitted people, as well as the prosecutor, can challenge the case. In sections that affect the interests of third parties involved in the verdict, a civil plaintiff or defendant may participate.
You need to know that sending a cassation appeal is appropriate only when the decision made by the departments of the 1st and 2nd order was unlawful, that is, when studying the case, the regulations of the current code were not observed. In fact, the situation will not be considered again, the court will only review the documents and announce a verdict on the legality of the actions of the 2nd instance, whether they were violated during consideration.
Where to write a cassation complaint in a criminal case?
The verdict of the department (regardless of district, regional, etc.) of the second and third order, the military court, which acted, is disputed in the presidium of the instance assigned to a certain region of your registration. For example, if a criminal issue was studied in the 2nd court and went to the regional department, then the filing of a cassation complaint in a criminal case takes place in its presidium.
When the presidium of the 1st instance of any of the courts mentioned above is involved in the study of the materials, and it has not been contested as an appeal, then a cassation complaint in a criminal case of the Criminal Code of the Russian Federation is filed with the Collegium for Criminal Issues or for Military Issues (in a situation where the situation is considered in a military tribunal).
It is worth noting that the complaint is different from the appeal, it is sent only to the body that studies the case.
Deadline for filing a cassation appeal in a criminal case
The term for filing a cassation complaint and other appeal proposals on a verdict issued by the 1st instance is 10 days from the date of the announcement of the verdict. For convicts who are imprisoned - within 24 hours after receiving a copy of the official verdict. During the period allotted for appealing the verdict, this criminal case cannot be withdrawn from the court. Disputes or complaints submitted after the deadline has passed will not be considered.
If the time limit has been exhausted for good reason by the party entitled to appeal, you can file a petition with the court that issued a negative verdict or other decision on the appeal to renew the period. The request for an extension of time is considered by the officer who is involved in the adjudication of the criminal matter. The decision of the judge to refuse can be challenged in a higher instance.
The term for consideration of a cassation complaint in a criminal case is clearly spelled out in the legislation of the Russian Federation. The study of the cassation materials must start no later than 30 days from the date of receipt of the document by a certain authority. The court participating in the consideration must ascertain the legitimacy and validity of the sentence. It checks the legality of only those paragraphs of the decision that relate to the person and have been appealed. When, during the study of the materials, details were found concerning other people involved in the same case, but against whom no complaint was filed, then the criminal case should be studied in the interests of these citizens. It is important that the deterioration of conditions is not allowed.
How to file a cassation complaint in a criminal case
How to write a cassation complaint in a criminal case? Below is a sample.
Sample cassation complaint in a criminal case must contain:
The full name of the instance to which the cassation is filed;
Full name, address and status;
Details of the criminal case and the name of the court that considered it;
Enumeration of errors made by the instance;
List of requirements;
Has the decision been challenged before?
Required documents;
Signature of the person making the complaint.
Pravozaschitnik LLC is a law firm. The company does not have full-time lawyers. The company provides services in the selection of qualified lawyers, and also monitors the fulfillment of obligations.
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How long does it take to file an appeal in a criminal case and consider it in court?
The Constitution of the Russian Federation enshrined the right of any citizen to the possibility of reviewing the sentence by a higher court. Until 2013, it was possible to appeal against a court verdict only in the cassation instance, which was rarely canceled and the process itself dragged on for a long time.
When faced with a situation where your loved one was sentenced too harshly or the offender suffered too light a punishment, you have the right to appeal and drastically change the course of the process. At the same time, it is important to comply with the deadlines for appealing in criminal cases.
General deadlines for filing an appeal in a criminal case
Compliance with the deadlines for filing an application - perhaps key moment throughout the appeal process. If a complaint is not filed within the period of time allotted by law, it is left without consideration.
According to the Code of Criminal Procedure of the Russian Federation, the term is 10 days, and it is calculated differently for different categories of convicts. For persons at large, it begins to flow from the moment the court decision in a criminal case is announced, and for persons in custody - from the moment a copy is handed over.
A copy of the verdict is issued within 5 days from the date of its announcement. In practice, this clause is often violated. It will be wrong to believe that delaying the issuance of a document by the court will be sufficient grounds for restoring the missed deadline. Be careful!
How to calculate the time limit for appealing a court decision in criminal proceedings
The countdown should begin from the day following the day of the pronouncement of the verdict. It ends at 24 hours of the tenth day. If you cannot meet the deadline, you can first file a short complaint, and then add to it.
Note! If the last day of filing an appeal falls on a weekend, then the time for filing papers is extended and postponed to the next working day.
For example, on January 17, 2018, the court issued a ruling within the framework of a criminal case and issued it personally to Ivan Petrovich. On January 29, he decided to file an appeal. So, the first day for its submission will be considered January 18. Based on the fact that the tenth day falls on Saturday, January 27, a complaint can be filed until January 29, inclusive.
Some cases have reduced time limits for appeals. judgments. If they provide for house arrest or detention, you can appeal no later than 3 days. It will be considered at an accelerated pace - only 3 days.
How to restore the appeal time limit if it has expired
An important advantage of the appellate instance is the ability to present Additional materials which, for valid reasons, were not provided at the first meeting. This approach should be assessed positively, because new evidence in the case can play a decisive role in the consideration of an appeal in a criminal case.
But what if the deadline has passed?
- Challenge the decision in cassation,
- Submit a written request for the restoration of the right to challenge, if the applicant has objective reasons for its omission.
The second option may include:
- the person did not receive a copy of the decision in time and was not present during the trial;
- serious illness (especially if the person was in a hospital);
- business trip to another region;
- illiteracy, which means the inability to read, write, understand what is written (found among the indigenous peoples of the North, small nationalities);
- other reasons that, in the judge's opinion, may be categorized as meritorious.
The petition is filed with the court that issued the order, not with the appellate court. Supporting documents must be attached to it. If their production takes a long time, you can ask to hold a court session and present them there.
Concerning legal entities, then there is no good reason for them to miss the deadline for appeal. Firms must have permanent representatives who are responsible for its legal protection.
The same applies to individual entrepreneurs. Despite the fact that an individual entrepreneur is actually an ordinary citizen who can get sick, go on a business trip, he is not entitled to restore the missed deadlines for filing a complaint.
Legal assistance in appealing to the court of appeal
Prompt consultation by phone or in the office of the bureau
Criminal Lawyer - Assistance of a Complaint Specialist in the Court of Appeal
Is it possible to file a short appeal in a criminal case?
An appeal in a criminal case must be filed within a shortened time frame. But it is not always possible to quickly prepare convincing arguments. Therefore, a short appeal has become very popular.
It simply needs to indicate that the accused does not agree with the decision of the court, because:
- his conclusions do not correspond to the actual circumstances,
- the applicant has not previously been involved and has excellent characteristics,
- other evidence of the severity of the sentence.
The main purpose of an abbreviated appeal is to buy time to find new evidence.
After you have collected the necessary facts, an additional appeal is drawn up. In it, it is necessary to write in expanded form your requirements and the circumstances of the case. You hand it over no later than 5 days before the start of the meeting.
Terms for consideration by the court of an appeal in criminal proceedings
The term for consideration of an appeal in a criminal case depends on where the complaint was filed:
- up to 15 days is given to the district court,
- up to 30 days - to the court of the subject of the Russian Federation,
- up to 45 days - to the Supreme Court.
How long does an appeal in the district and regional court take?
- The first person in whose hands the new document will fall will be the judge of first instance. He will check the appeal for technical errors.
- Further, he is obliged to notify the participants in the process of the complaint filed. Until the court receives notice of service of copies, the case will not be sent to a higher authority. This period is not limited in any way and can take a long time, sometimes up to 3 months.
- The case received by the Court of Appeal is checked for errors by a lower instance. When they are found, it is returned for correction. The general terms for consideration of the appeal begin to run again.
- There is no time limit for an appeal. The general terms (15-45 days) are set only for the beginning of the consideration of the case from the moment of receipt.
How many consider the appeal in the Moscow City Court
Filing an appeal in the Moscow City Court is no different from the procedure for filing another appeal instance. The Collegium consists of three judges and the meetings are very fast.
How to shorten the appeal process
If the litigation is delayed, there is a legal mechanism to expedite the case. To do this, an application is submitted, which is considered up to 5 days. Based on its results, the chairman reports on the timing of the meeting and may indicate actions that contribute to its acceleration.
Can the term of imprisonment be extended after an appeal?
An appeal may worsen the situation if it is filed by the prosecutor or the victim. Moreover, it should not be presented in the form of simple objections, namely, as a full-fledged complaint with strict adherence to deadlines.
If the convict filed an appeal, the court cannot toughen the existing sentence, because. it operates under the no-turn-for-worse rule.
Outcomes of the appeal
It is up to you to choose whether to appeal the verdict to the appellate court. But it should be remembered that water does not flow under a lying stone. Practice shows that an appeal in criminal proceedings often leads to a reduction in penalties, sometimes to its cancellation.
Not everyone knows that it is wiser to contact a lawyer for legal assistance at the stage of pre-investigation verification. Most often, they apply when a criminal case has already been initiated or is being considered in court.
If the lawyer was not present during the dispute in the first instance, then within 10 days from the date of the decision, he must have time to analyze the nuances of the case, develop a legal position and competently draw up an appeal.
To avoid mistakes, it is better to draw up and submit it with the help of a lawyer who will help bring the case to its logical end.
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The normative provisions of the procedural legislation provide for the possibility of an appeal against decisions established in relation to a criminal case. Using this legal mechanism, an interested person can challenge the provisions that seem to him incorrect and biased, if there are weighty arguments and relevant evidence.
Judicial decisions of 2 main categories are subject to appeal in the procedure under consideration. First, interlocutory judgments. Secondly, the final decisions that did not have time to enter into force.
Table. Final and intermediate decisions
Judgment Type | Descriptions | Decrees |
---|---|---|
Final | Judgments by which the resolution of proceedings on the merits is declared. Also included in this category are decisions by which proceedings against a particular suspect are declared completed. | Determinations and rulings, as well as sentences to end the prosecution/case. |
Decisions to apply coercive medical measures or refusal to use them. | ||
Decisions on the termination of office work in relation to a citizen who has not reached the age of majority. Compulsory application of educational measures is awarded. | ||
Intermediate | All sorts of decisions that do not fall into the category of final ones. | Decisions adopted by the court in the course of pre-trial proceedings or directly in court proceedings, in accordance with the provisions of which there is no resolution of the case on the merits or the proceedings against the suspect are not declared completed. |
Decisions made by the authority in the course of implementation of the final decisions considered earlier. |
An application to challenge a sentence or other decision made must be addressed to the authority that decided it. After receiving the appeal, the court will transfer the application and materials of the disputed case to the competent authority for consideration.
Who can appeal a decision in a criminal case?
It is important to understand that not everyone has the right to appeal against decisions in criminal cases. Primarily, appeals can be filed by the parties to the proceedings, i.e. victim and suspect. It also has this right prosecutor involved in the proceedings as a prosecutor, and authorized representatives of the participants in the case.
Other citizens are allowed to use the mechanism of appeal only if their interests are affected by the results of a court decision.
Relatives of the parties to the case, witnesses and other citizens who have various kinds of connections with the participants in the case, but are not their authorized representatives (only if their interests are not affected), the law does not allow to appeal to the court with an appeal.
When to file an appeal?
The deadlines for appealing criminal cases do not correspond to the deadlines relevant for civil proceedings. This moment is clearly defined by the standards of 389.4 of Art. Code of Criminal Procedure. In accordance with the mentioned article, interested citizens are given no more than 10 days to challenge the decision made in respect of a criminal case.
However, the procedure for calculating the reduced period may vary. In accordance with general rules, the countdown begins from the date of the issuance of a court decision subject to appeal on appeal. If the suspect is held in custody, the appeal period will begin to run from the moment a copy of the court order is handed over to the arrested person.
If an appeal is filed later than the deadline, the court will refuse to consider the applicant. At the same time, the applicant retains the possibility of withdrawing the complaint before the start of its consideration by the appellate instance. In this case, the termination of the appeal proceedings will be determined.
Article 264 Download text
An additional appeal may also be filed after the expiration of the period specified by law, but a maximum of 5 days before the established proceedings. In an additional complaint, it is not possible to present claims regarding the worsening of the situation of the offender, in the absence of such information in the main appeal.
Practical guide. Appeal proceedings in criminal cases
Where to file a complaint?
Earlier it was noted that with a complaint about an appeal against a sentence passed by a court, one must go to the court, which determined the decisions that were unsatisfactory to the applicant. After the deadline for appeal has expired, this instance will forward all the necessary information to the Court of Appeal.
Which instance will deal with the study of the appeal depends on which court had previously handled the case. If the contested decision was made by the justice of the peace, the appeal proceedings, according to 389.3 Art. Code of Criminal Procedure, will conduct the district court. When challenging the decision of the district (garrison military) court, the appeal will pass into the competence of the supreme (district military) court of the republic or the regional (territorial) court.
The appeal is considered by the Judicial Board. In the course of studying the complaint, the objectivity of earlier decisions is assessed and their compliance with legislative standards is established.
The complaint is filed in several copies according to the number of participants in the contested proceedings. The direct task of notifying these citizens of the receipt of an appeal "falls on the shoulders" of the court. After receiving notifications, the participants in the case retain the right to appeal the appeal.
Possible outcomes of the appeal proceedings
Possible outcomes of the appeal proceedings are determined by the norms of 389.20 Art. Code of Criminal Procedure. Solutions can be as follows:
Thus, if there are grounds, an interested participant in criminal proceedings may challenge a court decision or other decision. You have read the information regarding the deadlines for filing an appeal and the procedure for its consideration. The information received will help you restore your violated rights and, in general, legal justice.
Sample complaint letter in a criminal case. Free download
Video - Appeal in a criminal case
In an attempt to challenge the decision of the court, the interested party has the right to file an appeal in a criminal case. Features of this document finished sample to draw up their own version, as well as the grounds for overturning the sentence are discussed in detail in the article.
A complaint is filed against a verdict or a decision of a judicial body that has not yet entered into force. Such an opportunity is provided for by the procedural legislation (CCP), while the right to file a complaint has:
- suspect;
- accused;
- defendant;
- convicted;
- justified.
Thus, any person can file a complaint, regardless of the stage of the criminal process (including after its completion). Along with the participant of the meeting, his legal representative has the right to file a complaint, as well as officials- a prosecutor (including a higher one) and a public prosecutor. Also eligible to apply are:
What can be complained about
You can file a complaint against any court decision, regardless of its content and the incriminated article. It is possible to complain:
- decisions that have not entered into force;
- intermediate solutions.
These include all court rulings, as well as rulings, except for the final ones (Article 5 of the Code of Criminal Procedure).
The complaint is submitted to a higher authority in accordance with its jurisdiction. However, initially the document must be submitted to the same court that issued the original verdict. In the future, the meeting will be held in the next instance.
Thus, there is no possibility to appeal only final decisions that have already entered into force. If the decision has been made and has not yet entered into force, then an appeal can be filed until the last (tenth) day.
Form, sample complaint and instructions for filing it
An appeal must be made in writing and filed with the same court that issued the contested decision. The document is drawn up in 2 original copies, 1 of which remains with the applicant. An employee of the court office is obliged to accept the appeal and the documents attached to it and make an appropriate note by issuing a receipt to the applicant. After that, a session of a higher court is appointed to consider the complaint, about which all participants in the process are notified separately.
The form of the document is free, while the text must necessarily reflect the following data:
- The name of the court that issued the verdict, its postal address.
- Name and status of the applicant (lawyer, prosecutor, suspect, etc.); his address and contact number.
- Description of the essence of the case - when and on what basis the decision was made, the number and date of the judicial act, its essence (for example, the full name was convicted under the article of the Criminal Code).
- Justification of the complaint - the reasons for disagreeing with the decision. This is the key point of the appeal, on which the further judicial decision largely depends. Mandatory references to the norms of the Criminal Code, the Code of Criminal Procedure and other norms, as well as to the evidence base (examination results, interrogations of witnesses, etc.) are prescribed.
- Request for annulment of the court decision - in whole or in part.
- Annexes are a copy of the decision, as well as other documents that may be attached to the case.
- Date, signature, transcript of the signature (surname, initials).
You can use this form to file your appeal.
As an example, you can take such a sample.
Deadlines for submission and consideration
Complaint filed within 10 calendar days from the date of the decision. If the deadline is violated, the right to appeal is lost. In this case, the term is counted in different ways, depending on the status of the accused:
- If he is in custody, the period starts from the day when a copy of the court decision is handed over to him personally.
- If he is at large (for example, a suspect who is under a written undertaking not to leave), then the period begins from the moment the decision is made.
The deadline may be violated for a good reason - then the participant in the process must file another appeal and justify why he missed 10 days (certificate from medical institution and other documents).
The appeal itself is considered from 15 to 45 calendar days - it all depends on the status of the court:
- District Court - 15 days.
- The main court of the subject (regional) - 30 days.
- Supreme Court - 45 days.
Grounds for annulment of a court decision
The decision of the court can only be set aside if the higher court finds that the circumstances described below have occurred.
The circumstances referred to in paragraph 5 are related to the discovery of more serious consequences of the crime, which were discovered later.
grounds for cancellation | comments |
Court's conclusions do not correspond to the circumstances of the case | refers to cases where the conclusions of the court are not substantiated or substantiated extremely weakly |
violation of due process | for example, the defendant filed a motion to challenge the judge and had the right to do so, but the challenge did not take place |
violation of the rules of the Criminal Code | the accused is charged with an article that does not correspond to the severity of his act |
injustice of the sentence | lack of convincing evidence of guilt, extenuating circumstances are not taken into account, a clear accusatory bias |
circumstances specified in article 237 of the Code of Criminal Procedure | identifying such consequences of a crime that induce the court to adopt a harsher sentence |
violation by the accused of the terms of the cooperation agreement | if the accused agreed to cooperate with the investigation, he signs the corresponding document; violation of the terms of cooperation is the basis for a tougher sentence |
Usually, the sentence of the first instance is declared invalid only in case of obvious violations of criminal, criminal procedure and other norms. In general, the bases can be described as follows:
- The conclusions of the court are not substantiated, they have an extremely weak, contradictory evidence base.
- The court, when making its decision, did not take into account the circumstances that are essential in this case.
- There were materials in the case that spoke of conflicting facts, the court ruled on one group of evidence and rejected others. But at the same time, he did not substantiate why he used just such an evidence base (or justified it extremely poorly).
- Based on the materials of the case and the conclusions of the court, it can be concluded that they come into significant conflict with each other or can be interpreted as contradictory.
Grounds for dismissing the complaint
In some cases, the judge may dismiss the complaint without even starting to consider it:
- The appeal was withdrawn by the applicant himself.
- The document was submitted by a person who does not have the right to do so. For example, it may be filed by a "public defender" whose interests are not directly affected by the court's decision.
- An appeal was filed against a decision that is not subject to independent appeal.
At the same time, the applicant may independently cancel his appeal by withdrawing the document before the start of the meeting. To do this, you must draw up an appropriate application and submit it to the judge. The recall is carried out automatically, at the initiative of the applicant (ie the judge does not have the right to refuse the recall). The following example can be used as a sample application.
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