Appeal in a criminal case of the Code of Criminal Procedure of the Russian Federation. An appeal against a court verdict in a criminal case. Who can submit a petition

In the domestic judicial system there are several levels at which cases are processed. A citizen of the Russian Federation is given the right to challenge a verdict when he categorically disagrees with it. This is usually done through a higher authority. An appeal in any criminal proceeding can be filed by any participants in the event, including the defendant, the plaintiff, a representative of each party, the prosecutor and third parties who are not directly involved in the proceedings of the case, but have claims to the verdict due to a number of circumstances.

The rules for considering an appeal in criminal proceedings have certain issues and characteristic nuances. The law provides for the opportunity for citizens to independently defend their rights. However, few will be able to understand all the intricacies of the legal sphere. That is why it is recommended to contact highly qualified, experienced lawyers with special powers to achieve the desired result.

The essence of the appeal process

Through an appeal in criminal proceedings, a convicted person can fully exonerate himself and get rid of all charges against him. A complaint from the accused party will allow the court to make a stern, fair verdict in a specific case, and increase measures of responsibility and impact. A special feature of the appeal is the possibility of filing a refutation of a court decision before the document enters into legal force. Similarly, court verdicts rendered within the same proceeding can be appealed.

According to the current legislation, an objection is sent to where a certain decision was made, or to judicial body of the second instance, and is drawn up in writing. The verdict of the magistrate is contested only through district structures. It is worth knowing that on appeal it is almost impossible to obtain a new ruling that relates to a criminal case. At this stage, all the arguments and arguments presented, the testimony of witnesses and the evidence base are checked and the legality of the decisions made is determined. Any new facts and circumstances that were not previously identified are not subject to consideration here. Additional check analyzes existing arguments.

The received example of a complaint in a criminal case is actually grounds for the court to notify all parties of a review of the sentence. The corresponding notification is sent by mail within the period strictly regulated by law. The citizen filing an objection must prove that the adopted resolution through the court of first instance has obvious contradictions with the domestic Code of Criminal Procedure. You can waive your own claim by completing the appropriate documents. This can be done at the stage of consideration of the application by the court of second instance, with the conclusion of a settlement agreement with the defendant.

Appeal features

Today, all court verdicts can easily be reviewed on the basis of certain appeal criteria, as stated in more detail in the Russian Code of Criminal Procedure:

1. The object of an appeal can be either the decision of the sentence or the verdict of the magistrate (Article 362, part 2 of Article 354 of the Code of Criminal Procedure).
2. Review of court decisions that have not entered into force (Part 2 of Article 354 of the Code of Criminal Procedure).
3. Additional work to determine evidence that appeared and was identified at an earlier date, presented and described in the appeal (Article 365 of the Code of Criminal Procedure).
4. Determination of a legal and fair court verdict, regarding the legal framework, as well as the actual state of affairs (Part 1, Article 360 ​​of the Code of Criminal Procedure).
5. Turning the proceedings into a worse direction when facts of filing complaints by the injured party or the accuser and their representatives were revealed, as well as on the basis of submissions from the prosecutor (Part 2 Article 369, Part 1 Article 370 of the Code of Criminal Procedure).
6. Consideration of the issue in its essence, in which an addition regarding court decision or its new edition (part 4, article 367 of the Code of Criminal Procedure).
7. A period of 14 days is designated for consideration of proceedings or complaints, starting from the stage of registration and filing (Article 362 of the Code of Criminal Procedure).
8. Participants in the case at this stage include both parties to the conflict, representatives of the victim and the accused, and third parties, including translators, expert specialists, witnesses and other persons (Part 5 of Article 365 of the Code of Criminal Procedure).

A competent criminal specialist is aware of all the features of the Code of Criminal Procedure of the Russian Federation, which will allow him to profitably use domestic legislation, correctly draw up a complaint and offer optimal recommendations for action in the shortest possible time. It is possible to get help in this matter in numerous law firms, and via the Internet, in real time.

Rules for challenging a criminal case

It is very simple and easy to file an objection to a court decision. It is important to complete the necessary paperwork correctly and meet certain deadlines. After a criminal conviction, the victim has 10 days to file a complaint. In a situation where the specified deadline is not met, received documents may remain without consideration. It is possible to restore the lost right to object. To do this, you will have to prove that the missed deadlines arose for a good reason. This can be done through a petition sent to the judge who was the chairman during the consideration of the criminal case.

The presence of a court order or an official with the appropriate authority regarding the refusal and impossibility of reinstating the missed deadline becomes the basis for appealing to a higher authority. At this level, the decision can be reversed and the essence of the complaint can be examined. If necessary, the proceedings will be sent back to the court for subsequent compliance with the requirements outlined in Article 389.6 of the Code of Criminal Procedure of the Russian Federation.

The Constitution of the Russian Federation provides for any convicted citizen the right to have the case reviewed. It is already being considered by a higher court. Upon completion of the review, the decision may be set aside or reduced. In order for the protest to be successful, you will need to file a competent appeal.

Until 2013, those convicted in criminal proceedings could challenge the court verdict only in cassation procedure. Such cases were rarely reviewed, and the process itself took a lot of time. The situation of persons convicted in criminal proceedings improved significantly after January 1, 2013, when Law No. 433-FZ came into force.

It allows appeal to appeal procedure any sentence passed 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, you can appeal not only the verdict, but also interim decisions.

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 person in the case, his lawyer);
• persons whose rights and personal interests were in any way affected by the court decision.

Please note that relatives of participants in the process and witnesses cannot file a complaint.

Grounds and deadlines for filing an appeal in a criminal case

• discrepancy 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);
• unfair 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 weekend.

• illness (often if the person was treated in a hospital);
• business trip to another city, region or country;
• failure to comply with the deadlines for delivering 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 time frame for considering a submitted petition and making a decision to reconsider the case depends on the court to which the petition was filed. A district court spends up to 15 days for consideration, a court of a constituent entity of the Russian Federation – 30 days, Supreme Court– 45 days.

Where to submit?

• the verdict of the magistrate 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 - naval military court;
• if the Supreme Court was in charge of the review, the decision is reviewed exclusively by the appeal panel of the Supreme Court.

It is not allowed to file a complaint directly to a court of second instance. Such complaints are rejected and returned to the complainant.

How to file a complaint?

The complaint must contain the following information:

• Information about the court where the paper is being filed, including its address.
• Compiler's details – full name, address, contact number.
• Information about the contested decision - the case number, the date of the verdict and its number must be indicated.
• Grounds for changing the decision, canceling it completely or partially. In this part you need:

  Refer to the relevant laws and articles that give the right to review the case;

  List the arguments in favor of reconsidering the case and support them with evidence that either requires a mitigation of the punishment or the return of the case to the prosecutor.

• List of documents attached to the complaint. This may include additional facts that confirm the presence of new facts and circumstances in the case, new witnesses, or copies of the complaint.
• Date of compilation and signature of the compiler.

Short complaint form

The document is drawn up similarly to a standard full complaint, but with one significant difference - in the main text of the document it is necessary to simply refer to the fact that the applicant does not agree with the verdict, indicating that:

• the judge’s conclusions do not coincide with the actual circumstances of the case;
• the accused has excellent characteristics from his place of work and has not been involved before.
• There are other circumstances that indicate that the sentence imposed is unnecessarily harsh and does not correspond to reality.

It is important to remember that the submitter can submit an additional document within the period clearly specified by law. Thus, it can be transferred no later than 5 days before the start of the consideration of the case. There may be several such complaints.

State duty

The following persons must be present during the examination:

• prosecutor or other public prosecutor;
• a convicted citizen (if a complaint is filed by the prosecution, an acquitted person);
• private prosecutor;
• lawyer or other human rights activist.

If one of the persons does not appear at the meeting, provided that he was notified in a timely manner, the case will still be reviewed.

If all persons are present, the protest takes place 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 transferring the 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 states:

  Date of review of the case, indicating the exact time and place;

  The decision to summon the parties, witnesses, experts and other persons specified in the petition of the participating parties to the meeting;

  Will the meeting be open or closed;

  In what form will the convicted person in custody participate? Recently, the participation of the accused in court using video conferencing has become increasingly popular.

• The court notifies the participants in the process of the existence of an appeal, indicating the time period during which the second party - the participant in the process - can file either a counter-complaint 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 hearing. It is important that all persons involved must receive notice at least 7 days before the date on which the case is scheduled. Otherwise, the meeting date may be postponed.
• The next step will be a hearing. First, the number of the case under review and the previously passed verdict are read out, and the complaint and the demands set out in it are voiced. After the consideration of the evidence provided begins, the judge can hear witnesses, if any, and give the floor to the parties to the trial.
• At the end of the hearing a decision is made court of appeal. It could be like this:

  Leave the sentence unchanged;

  Change the verdict rendered by the court;

  Announce a new verdict;

  So, a court verdict in a criminal case is subject to challenge in a higher authority. To do this, it is important to write the appeal statement correctly and have time to submit it before the expiration of the ten-day period. This can be done both by persons who previously participated in the process and by citizens who were not direct participants. trial, but the decision in any way affected their rights or interests.

The deadline for filing an appeal in a criminal case is a legally established period of time during which you can appeal a court decision that has not entered into force. As soon as the allotted time has passed, the decision is considered to have entered into force. Similar terms in civil and criminal proceedings, despite the same name and purpose, have a number of significant differences, which will be discussed below.

According to the Code of Criminal Procedure of the Russian Federation

At first instance
In criminal proceedings, 10 calendar days are allotted.

There are a number of nuances when calculating deadlines. Thus, convicts who are at large have the right to file an appeal within 10 days from the date of the decision, while those in custody - within the same period, but from the moment they receive a copy of the verdict.

The filing deadlines are set out in Article 389.4 of the Code of Criminal Procedure, which details the provisions of the law regarding the time frame in appeal proceedings.

According to the Code of Civil Procedure of the Russian Federation

According to the rules of civil procedure, a complaint by way of appeal is filed through the judicial authority whose decision is being appealed. If the applicant sends the letter directly to a higher authority, which will consider the appeal as an appeal, then it will be forwarded to the appropriate court and only after that, in accordance with the requirements established by Article 325 of the Code of Civil Procedure, will it be sent to the supervisory authority.

The letter can be sent by registered or regular mail, delivered in person to the court office, or otherwise delivered to the trial court. The main thing is to meet the allotted deadlines, i.e. send the letter before 00.00 hours of the last day allotted for its submission.

Valid reasons for absence

Once the appeal deadlines have expired, it is almost impossible to cancel them, as well as to file a complaint on appeal. The deadline for filing an appeal can be restored after a delay only at the written request of the person who committed the delay and if there are objective good reasons.

Valid reasons that deserve consideration when considering reinstatement include the following:

• the applicant did not receive a copy of the decision on time, and was not present in the courtroom during the consideration of the legal dispute;
• severe painful condition;
• being in a state of helplessness;
• illiteracy;
• other reasons that, according to the internal conviction of the judge, can be classified as respectful and worthy of attention. The law does not provide an exhaustive list of such reasons.

Appeal consideration period

Each branch of law has its own deadlines, including for the consideration of an appeal filed against a decision made by a court of any level.

The civil process provides for a maximum permissible period for consideration of an appeal in two months from the date of receipt of the complaint to the judicial authority(Article 327.2 of the Code of Civil Procedure). However, there are exceptions to general rules. For example, the Supreme Court has an extended period of 3 months from the date of registration of incoming correspondence. Also, the law does not stipulate the fact that an appeal cannot be considered in a shorter period of time.

The arbitration court system also establishes certain deadlines, where total term consideration of the appeal is 2 months (Article 267 of the APC). Calculation begins from the moment of registration of incoming correspondence, and in its absence, in any convenient way. In exceptional cases, when there is a “high-profile” process with a large number of defendants, as well as based on a reasoned application from the participants, it is possible to extend the period for consideration of the appeal to a maximum of 6 months.

The time frame for considering an appeal in a criminal case is established by Article 389.10 of the Code of Criminal Procedure. Thus, the appeal must be considered within up to 15 days, while the district court is involved in this process.

If the appeal goes to a regional or regional court, then the judges have 30 days to make the only correct decision, in their opinion. A similar period applies in military courts, federal significance, as well as the courts of the autonomous republics.

As for the Supreme Court, an appeal at this level must be considered within 45 calendar days.

A lawyer will tell you how to appeal a court decision:

An important point is the fact that for criminal proceedings there is no framework for making a final decision, i.e. The court must begin reviewing the case within the specified time period, but not complete it.

If the appeal decision does not satisfy the applicant, then he can appeal the initial verdict again, but this time through the cassation procedure. is 6 months for civil proceedings and 2 months for arbitration. As for the criminal process, since 2015 there are no frameworks or deadlines that must be met when filing an application to the cassation.

More information can be obtained by asking questions in the comments to the article.

Unfortunately, the crime rate in Russia is quite high, and therefore the courts are overcrowded with criminal cases.

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In addition, the parties to the process do not always agree with the verdict/decision. We will find out further whether it can be challenged.

What is it

An appeal is a kind of disagreement of one party to a criminal trial with the verdict passed.

The court, when considering a criminal case, takes into account all the facts, materials and evidence collected by the investigative and inquiry bodies.

From this it turns out that the criminal case consists of several volumes of scribbled paper.

Therefore, when filing an appeal specifically in a criminal case, it is necessary in the text of the complaint to make a reference to the page numbers and volume numbers of the criminal case.

This is necessary so that the judge, when considering the complaint, does not study the case completely, but studies only those facts that the appellant asks to annul. This significantly saves review time.

Current legislation

Since the appeal is a procedural document of the criminal process, it is worth focusing on the norms of Chapter 45. 1 of the Code of Criminal Procedure of the Russian Federation.

This chapter presents:

1. Deadlines for filing a complaint.
2. The order of its consideration.
3. Contents of the appeal.
4. The procedure for rejecting it or leaving it without movement.

It is also worth considering the standards Federal Law dated May 2, 2006, 59-FZ “On the procedure for considering appeals from citizens of the Russian Federation,” since the appeal is written by a citizen, that is, an individual.

What are the rules?

In order for an appeal from a citizen to be considered, it must meet the following requirements:

That is, it should not contain:

• blots, mistakes, strikeouts;
• insults to the honor and dignity of others;
• obscene language and swear words.

If these standards are not met, the court may leave the complaint without progress or reject it altogether. The applicant will be notified of this in writing.

Who can apply

Any participant whose rights and interests were affected by a court verdict can file an appeal in criminal proceedings.

According to Art. 391.1 of the Code of Criminal Procedure of the Russian Federation, such persons are:

1. The convicted person or his defense attorney.
2. The acquitted person or his defender.
3. State prosecutor.
4. Prosecutor.
5. Victim.
6. Private prosecutor.
7. As well as legal representatives of all of the above persons.

If a civil claim is also being considered as part of the criminal process, then both the civil plaintiff and the civil defendant can also file an appeal, but only in that part of the verdict that affects this particular process.

Features of different types of statements

Regardless of the legal proceedings in which the case was considered, the complaint must comply with the provisions of Art. 389.6 Code of Criminal Procedure of the Russian Federation.

However, filing a short complaint is not directly required by law. This is a maneuver by the applicant in order to preserve the deadline for appealing the court decision.

If you do not take such measures, then you will have to file a lawsuit to restore the appeal period. This may take some time.

Video: appealing a court decision - legal advice

Sample appeal in a criminal case

To correctly draw up an appeal in a criminal case, you need to have a clear example before your eyes.

The complaint must be drawn up taking into account the norms and provisions of Chapter 45. 1 of the Code of Criminal Procedure of the Russian Federation.

Information that must be present in the “body” of the complaint is specified in Art. 389.6 Code of Criminal Procedure of the Russian Federation.

A sample appeal against a court verdict in a criminal case can be downloaded.

Document structure

Since an appeal is a procedural document, it must comply with the requirements specified in Art. 389.6 Code of Criminal Procedure of the Russian Federation.

If the appellant deviates from these rules, then the court has the right not to accept the complaint for consideration at all or to leave it without movement for a certain period.

This time is given to the applicant to correct minor errors. If he does not meet it, the court will reject the appeal and a refund will be issued.

According to the rules, an appeal in a criminal case must contain the following information:

Which court should I send it to?

The appeal must be sent to the same court in which the case was heard.

The document will be properly registered in the office of this court, and only then sent to a higher court.

The court of first instance will check the complaint for compliance with the current legislation.

If there are no deviations from the Code of Criminal Procedure of the Russian Federation, then at the end of the period for appeal, the document will be forwarded to the court of second instance.

Which court will hear the appeal depends on the court in which the case was originally heard.

According to the provisions of Art. 389.3 Code of Criminal Procedure of the Russian Federation:

When the court of second instance accepts the appeal for consideration, it will independently notify all participants in the process that such a document has been received.

It is also necessary to bring to the attention of the participants in the process the fact that they have the right to file.

Terms of consideration

An appeal must be filed within 10 days from the date of the court's verdict.

But, if the convicted citizen is in custody, then the term begins to run from the moment he receives a copy of the verdict.

The processing time depends on the court in which it is filed:

Brief (preliminary)

A preliminary appeal is filed so that the litigant does not miss the deadline for filing a “real” complaint.

The purpose of filing a preliminary complaint is to “delay” the deadline for filing the main complaint.

A short complaint is not a legal document. This is a maneuver by the applicant if he does not have time to file an appeal within the established time frame.

The general deadline for filing an appeal is 10 days from the date the court makes a decision on the case under consideration.

If the applicant, for some reason, does not meet this deadline, he may perform such a maneuver.

Otherwise, along with the appeal, he will need to file a petition to restore the appeal period.

When the court of second instance rules that this complaint remains without progress, it will indicate the period during which it is necessary to make appropriate adjustments to the document.

This period should be enough time for the appellant to prepare a “real” appeal.

If he does not meet this deadline, then the short complaint will be rejected, and the deadline for filing a legal appeal will be missed. Therefore, you need to be careful when correcting errors.

Filing an objection

The court of second instance, having received the appeal for consideration, notifies the parties to the criminal case.

He also explains to everyone that he has the right to file an objection to such a complaint.

The objection is submitted in writing, in accordance with the rules for filing an appeal.

If these standards are not met, the appeal will not be accepted for consideration.

You can appeal any decision of the court of first instance, including the verdict in a criminal case. Sometimes filing a complaint is the last real opportunity to cancel or change an unjust decision and achieve justice. Most often, it is the convicted who express disagreement with the verdict, but in some situations the victims are dissatisfied with the too lenient punishment or the classification of the crime - they, too, like the state prosecutor, have the right to appeal. What are the deadlines for filing an appeal in a criminal case, how to file a complaint and where to file it - read our article.

What is an appeal

The appellate court is a court of second instance that reviews the decision of the lower court and puts an end to the proceedings. An appellate review is essentially a review of the legality of the original judicial opinion in a case.

You need to understand that the appeal court can be either a district court (a meeting with one judge), or a regional one, as well as the Supreme Court (a meeting with the participation of three judges). In practice it looks like this:

• When a judge of the peace pronounces a sentence, the district court is considered the appellate instance.
  For example: Pavlov R.Z. was convicted by the verdict of the magistrate of precinct No. 1 of the Leninsky District Court of Kirov under Art. 119 of the Criminal Code of the Russian Federation. Lawyer R.Z. Pavlova did not agree with the decision and appealed it to the Leninsky District Court of Kirov.
• When a district court makes a verdict, the court of appeal is a court of regional or regional significance.
  For example: Lozhkin G.R. was convicted by the verdict of the Petrovsky City Court of Vladimir. He wrote a complaint about the review to the Vladimir Regional Court.
• When passing a verdict by a regional court, the Supreme Court is considered the second instance.
  For example, a jury in the Kemerovo region returned a not guilty verdict for a double murder. In order to overturn the acquittal, the representatives of the victim wrote a complaint to the Supreme Court of the Russian Federation.

The complaint is filed through the court that made the original decision. That is, the complaint itself is submitted to the office of the court of first instance, although it is addressed to a higher court.

What you can appeal

So, any verdict (conviction or acquittal) can be appealed. In addition, filing an appeal is possible:

• for a decision to terminate the case on various grounds. The judge has the right to terminate a criminal case when imposing a court fine, as a result of reconciliation of the parties, subject to certain conditions (more details in the article), as well as under an amnesty, after the expiration of the statute of limitations, etc. Let's give an example. In September 2015, for a crime of minor gravity, the court issued a decision to terminate the criminal case in connection with the amnesty in honor of the 70th anniversary of the Victory in the Great Patriotic War(such an amnesty was actually announced in May 2015). The victim, who did not agree with this outcome of the case, appealed the decision.
• to a court decision on the selection of a preventive measure. The court chooses detention or house arrest, as well as bail. Other restrictive measures against persons under investigation are applied by the decision of the investigator.
• to a resolution that is issued following the consideration of a complaint filed in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation- on the actions of police officials, investigative committee, prosecutor's office. For example, Serov E.N. filed a complaint with the court against the refusal to initiate a criminal case. At the meeting, the case materials were checked, a decision was made to refuse the application of E.N. Serov, who, not agreeing with this, decided to appeal.
• on decisions of a judge on issues of parole, expungement of a criminal record, revocation of a suspended sentence or extension of a probationary period.

You need to know that court decisions made during the proceedings at the request of the participants in the process are not subject to separate appeal. This means that the parties have the right to express their disagreement with interim decisions in a criminal case only in an appeal against the final decision, that is, against the court verdict.

Example. When considering the robbery case, the defense filed a motion to exclude the inspection report of the crime scene from evidence, but the court rejected it. The defense lawyer wrote an appeal against the refusal, but proceedings on it were not started; the regional court indicated the impossibility of considering it and recommended that he present his arguments in an appeal against the verdict, which will take place at the end of the trial.

Other examples of so-called “interim decisions” may be decisions on requests to order an examination, on calling additional witnesses, on the admission of a public defender, on requesting documents or audio media, etc. All these decisions cannot be appealed separately.

Deadlines

The general period established for filing an appeal in a criminal case is 10 days. The countdown begins on the date following the announcement of the verdict. In practice, cases arise when this period is actually exceeded:

1. If the 10th day of the deadline falls on a holiday or weekend, the appeal can be filed on the first working day after the non-working day.
   For example, the verdict was handed down on 06/01/2019, Friday. The 10th day falls on June 11, that is, a non-working day due to the postponement of the Saturday holiday. June 12 is Independence Day, a holiday. Therefore, in fact, the period for appeal in this case is 12 days, up to June 13 inclusive.
2. Usually the complaint is submitted to the court office, but in some cases it is sent by mail (no matter registered or ordinary mail). The post office acceptance stamp on the envelope confirms the date of delivery of the letter. If such a date is within the 10-day period, even if the actual receipt of the letter by the court office is late, the period is considered met.
   Let's give an example. Kostin A.V. was convicted on April 2, 2019 - accordingly, the appeal period ends on April 12, 2019. Kostin A.V. I didn’t have time to submit my complaint before the end of the district court’s working day (5:30 p.m.), so I sent it by letter at 8:00 p.m. via the post office, as evidenced by the stamp. In fact, the envelope arrived at the office only on April 16, 2019, but under the circumstances described, the convict “met” the 10-day period.
3. For convicted persons who are in custody, 10 days begin to run from the next day after the actual delivery of a copy of the verdict. To file a complaint in this case, a separate petition for reinstatement of the pass is not required.
4. For the remaining convicts, their defense attorneys, as well as for victims and the state prosecutor, the deadline missed for a valid reason is subject to restoration upon request. A request to reinstate the appeal period may be reflected in the complaint itself. In addition, a petition for restoration of the deadline can be drawn up separately:

To the Leninsky District Court of Kirov
convicted by Leninsky's verdict
District Court of Kirov dated 04/02/2019
Pletnev Igor Alexandrovich

Petition
On reinstating the missed deadline for appeal

By the verdict of the Leninsky District Court of Kirov dated April 2, 2019, I was convicted under Part 1 of Art. 228 of the Criminal Code of the Russian Federation to 1 year of imprisonment in a penal colony. I do not agree with the verdict and wrote an appeal.

The verdict was announced on 04/02/2019, but I actually received a copy of it on 04/18/2019, as evidenced by the note in the case.

Based on the above, guided by Art. 389.5 Code of Criminal Procedure of the Russian Federation,

Reinstate the missed deadline for appealing the verdict of the Leninsky District Court of Kirov dated April 2, 2019.

Calculate the period from 04/19/2019 - that is, from the next day after the copy was actually delivered to me.

Pletnev I.A., 04/19/2019

As can be seen from the sample application, it is drawn up in free form, but with the obligatory indication of the reason why you missed the deadline (receiving a copy after the 10-day period - due to a business trip, illness, postal work, etc.). In other words, you must justify your request to be given the opportunity to challenge the verdict. At the end of the petition, you must indicate from what date, in your opinion, the new 10-day period for appeal should be calculated.

The petition is considered by the same judge who handed down the sentence. In some cases (vacation, business trip, illness of a judge), consideration by another judge is allowed, on behalf of the chairman. Based on the results of consideration of the petition, the court issues a separate ruling. If the specified reason is considered valid, the period is restored. If the court considers the reason for absence to be unjustified, a decision is made to refuse to restore the 10-day period - in this case, the applicant has the right to appeal the decision separately.

The deadline for filing a complaint against a decision to select a preventive measure in the form of detention or house arrest has been reduced to 3 days. The same period is allotted for appealing the extension of the preventive measure.

Who has the right to appeal

The Criminal Procedure Law gives the right of appeal to the following participants in the process:

1. The convict and his defense attorney

Representatives of this side of the case most often use the right to challenge. The convicted person may not agree with the fact that he was found guilty or only with the punishment imposed. The lawyer and the client can draw up one complaint between them or each of them separately. Complaints cannot contradict each other - this is unacceptable under the provisions on lawyer ethics. If the client considers the application of a particular article of the criminal code to be incorrect, the defense lawyer does not have the right to express the opposite opinion on the same criminal case.

In some cases, along with a lawyer, the interests of the accused in court are represented by a public defender (sometimes there are several of them), who also has the right to appeal.

The legal representative also has this opportunity. For example, if the convicted person has not reached the age of majority, his parents have the right to appeal on his behalf, but only those who are recognized as an official representative. This does not deprive the minor of the right to appeal the verdict, along with his mother or father.

2. The victim, his legal representative or the victim’s lawyer (in those cases where he is involved)

Typically, the injured party does not agree with a lenient punishment or the exclusion of part of the charge from the criminal activity of the defendant. The public prosecutor is considered one of the representatives of the victim's side - he also has the right to express disagreement with the verdict on various grounds and to file an appeal (analogous to a complaint). In some cases, the opinion of the public prosecutor may not coincide with the opinion of the victim. Since the prosecutor is obliged to supervise not only compliance with the criminal law, but also the procedure for considering the case itself, representations can be made even in the absence of complaints from the victim.

3. Civil plaintiff or defendant

In criminal cases, the status of the defendant does not always coincide with the status of the accused in one person. So, if an accident with fatal committed as a result of driving a car owned by an organization, the claim of the victims can be addressed not only to the culprit who was driving, but also to the employer. Subsequently, if the employer does not agree with the verdict regarding the claim, he has the right to take advantage of the opportunity to appeal. Also a civil plaintiff: if the rights of other persons are affected by the crime, they can be brought as plaintiffs with the right to appeal.

Who does not have the right to appeal

Under no circumstances may the following persons appeal a court decision in a criminal case:

• witness . The status of a witness carries more responsibilities than rights. Thus, a witness does not have the right to refuse to testify, cannot ask questions to the court or participants in the process, and must not avoid appearing in court. In addition, the witness cannot appeal the verdict.
• specialist, expert. These are third parties whom the court or participants in the process invite to provide explanations about their special knowledge. After these explanations are given, specialists do not participate in the meeting and do not have the right to file complaints against court decisions.
• investigators and other law enforcement officials involved in the investigation(except for the prosecutor). This officials who do not have the right to influence the court's decision by appeal.
• other persons who are not parties to the case.

What to write about in a complaint

The basic requirements for filing an appeal are:

1. First you need to write the name of the court of second instance where you want to appeal the verdict. This may be the regional or regional court of the region where the district decision was made. In Moscow, the second instance for district sentences is the Moscow City Court.
2. Information about the author of the complaint - usually this information is located at the end of the text and includes not only the full name and residential address, but also the status - victim, accused, etc. If the complaint is made by a convicted person in custody, it is necessary to indicate where exactly he is staying - that is, in which pre-trial detention center. It is especially important to indicate their status to those who did not actually take part in the process, but at the investigation stage were recognized as victims or accused. For example, if the victim fails to appear at the court hearing, with the consent of the opposite party, his investigative testimony can be read out. In some cases, in cases of minor gravity, the law allows the defendant not to participate in the hearing, which does not deprive him of the right to subsequently appeal the verdict or decision.
3. Information about the verdict - in relation to whom it was pronounced, when and by what court, what punishment was determined if the accused was found guilty. If a complaint is filed against an acquittal, it is necessary to indicate on what grounds the court did this (due to the absence of elements or events of a crime, lack of evidence, etc.).
4. The complaint must be accompanied by additional documents that are referenced in the text and that have not previously been submitted to the court of first instance. Those materials or copies thereof that are already in the volumes of the criminal case should not be included. At the same time, the complaint can draw the attention of the judicial panel to certain documents that were previously examined, but were incorrectly interpreted, or not fully studied. It is better to indicate the sheets of the case and the volume number where such evidence is located - this will be convenient for the board of second instance.
   A request to examine specific evidence may also be made in a separate written request submitted to the appeal.
5. The complaint must indicate whether its author wishes to participate in the judicial review. Often, participants in the proceedings do not want to be present at the appellate hearing and ask that the ruling be sent to them by mail.
6. At the end of the text there must be a signature and a number.

The most important text part of the appeal is the arguments about disagreement with by decision in the first court. It is unacceptable to assert unfoundedly that the sentence is illegal - this could result in a refusal to accept the complaint. It is imperative to indicate why you consider the result of the proceedings to be illegal, while focusing on the grounds on which the verdict or decision can be overturned.

Grounds for reversing or changing a sentence

This is stated in Article 389.15 of the Code of Criminal Procedure of the Russian Federation. Before writing a complaint, you need to study this norm of procedural law and compare the violations that are in the verdict or case with each of the grounds for its cancellation (the list is exhaustive):

Inconsistency of the court's conclusions with the actual circumstances of the case

This often means that the court made completely different conclusions compared to the indisputably established facts. For example, Filimonov A.R. provided the court with train tickets indicating a trip in January 2019 to the city of Krasnodar. Despite this, the court indicated in the verdict that Filimonov was present on January 21, 2019 during the beating of the victim in the city of Simferopol, and there are no reasons why travel documents were not taken into account. Here, a reliable fact is distorted by the court, which means there are grounds for cancellation.

In another interpretation, the inconsistency of the conclusions is sometimes expressed in the presence of contradictions in the court decision. Thus, the court is obliged to comprehensively examine the evidence presented by both the defense and the prosecution, and then draw its conclusions about guilt or innocence. In some cases, in the text of the same verdict, the court refers to conclusions that contradict each other. This is also a basis for canceling a court decision.

Example. Ozerov P.O. was sentenced by the Prigorodsky District Court of Tambov for committing theft by breaking into someone else's house. The court stated this in the verdict: “…. the defendant’s position that he was not there on April 20, 2019 near house 5 on the street. Denisov, belonging to the victim, is refuted by the testimony of witness A.V. Petrov.” Further in the text, the judge indicated that the arguments of the state prosecutor that on April 20, 2019 Ozerov was on the street. Denisova, have not been confirmed by anything. In this case, there are significant contradictions, because of which it becomes unclear what the court finally came to. This verdict was overturned by the appellate court due to the discrepancy between the conclusions and the actual circumstances, which was expressed precisely in the presence of contradictory conclusions.

Significant violation of criminal procedure law

There are practically no criminal cases in which there is not a single violation of the Code of Criminal Procedure committed by the investigator or interrogating officer (with rare exceptions). At the same time, not every violation of the criminal procedural law entails an acquittal. The Supreme Court directs district courts to consider each piece of evidence for admissibility and relevance to the fact of the crime, and to draw conclusions only based on an analysis of all the evidence. Sometimes the judges themselves violate the trial procedure, which is considered a significant violation of the law.

An example of an unconditional basis for reversing a court decision is:

• absence of the judge's signature in the minutes of the court hearing;
• failure to explain the rights of the convicted person;
• absence of a lawyer during questioning at a court hearing, or refusal of a request to become familiar with the case materials;
• consideration of the case by a judge who has previously participated in the proceedings (for example, as a secretary or prosecutor);
• failure to give the defendant the last word.

This is not an exhaustive list of violations that are considered material. In each specific case, this issue is resolved individually.

Misapplication of criminal law

We are talking about incorrect qualification of the crime or an incorrect conclusion regarding the application of the general norm of the Criminal Code of the Russian Federation - for example:

• recidivism of crimes is unreasonably taken into account when in fact there are no signs of it (or vice versa, recidivism is not taken into account when it is present);
• mitigating or aggravating circumstances are incorrectly determined;
• the rules for adding up punishments for several crimes or for several decisions were incorrectly used;
• the type of colony is incorrectly determined, etc.

Circumstances indicating the need to return the case to the prosecutor

Such circumstances arise when the investigation commits such violations of the criminal procedural law, in the presence of which no decision can be made at all (neither acquittal, nor conviction, nor termination). For example, when a case is sent to court, the indictment of which does not indicate the place, time, or method of committing the unlawful act. In this case, it is clear from the materials that a crime has been committed and there is evidence of guilt, but a decision cannot be made, because objective circumstances have not been established or are not reflected in the accusation. The judge may return the case to the prosecutor even if a copy of the indictment is not served on the defendant.

Failure to comply with the terms of a pre-trial agreement with the investigation

If the defendant agrees to cooperate with law enforcement agencies and signs an agreement to this effect, he is obliged to expose other participants in the crime, help in solving the incident and in discovering material evidence. In exchange for this, the law allows the perpetrator to be assigned no more than half the maximum punishment, which is provided for in the article of the Criminal Code of the Russian Federation. If the verdict is passed, but appellate authority notices a failure to comply with the terms of the pre-trial agreement, it has the right to cancel the decision of the first instance.

Unfairness of the verdict

This is the basis that is most often mentioned in the complaints of convicted persons. The Code of Criminal Procedure of the Russian Federation provides that the sentence may be changed or canceled if it is determined to be excessively severe. For example, when a person brought to justice for the first time is sentenced to actual imprisonment, or a sentence is determined for a convicted minor without taking into account special benefits, etc.

In some cases, victims may appeal the verdict due to excessive leniency. This is also a basis for cancellation if the appeal reveals an unreasonable underestimation of the term - for example, when unconfirmed mitigating circumstances, the non-existent illness of the accused, etc. were taken into account when assigning a sentence.

Samples of appeal in a criminal case

We present to the reader's attention various options samples:

Complaint from a convicted person (most often filed)

To the judicial panel

in the case of Morozov N.G.

APPEAL

By the verdict of the Zavodsky District Court of Arkhangelsk dated April 12, 2019, I was convicted under Part 2 of Art. 162 of the Criminal Code of the Russian Federation to 5 years in prison penal colony strict regime.

From the very beginning of the investigation, I admitted my guilt in committing robbery and helped identify and detain the remaining members of our criminal group. At the court hearing, I confirmed my grateful position, apologized to the victim, agreed with the claim and am ready to pay her for the damage caused.

I do not agree with the court’s verdict, since all the above circumstances were not taken into account when assigning me such a severe punishment. Please also take into account that I have a heart disease (I am attaching medical documents), which was diagnosed after the verdict was announced. In addition, I am dependent on my elderly parents, whom I recent years supported and helped around the house. They can't do it without me.

Based on the above, guided by Art. Art. 389.1 and 389.18 Code of Criminal Procedure of the Russian Federation,

The verdict of the Zavodsky District Court of Arkhangelsk dated April 12, 2019 is amended: to reduce the sentence imposed on me to 2 years in prison.

The appeal will be considered in my presence and in the presence of my lawyer.

Convict Morozov N.G.,
17.04.2019.

Victim's appeal

Basically, people affected by the crime are dissatisfied with the decision in part civil action or too lenient, in their opinion, the punishment for the perpetrator. Almost always the complaint of the injured party is filed against an acquittal.

To the judicial panel
for criminal cases of Voronezh
regional court
victim Nikolsky G.O.
in the case against Rodionov E.L.,
Mishina R.R.

APPEAL

By the verdict of the Zarechensky District Court of Voronezh dated April 20, 2019 Rodionov E.L. and Mishin R.R. convicted under Art. 158 of the Criminal Code of the Russian Federation to 2 years in prison, for attempted murder, these persons were acquitted for lack of corpus delicti.

I believe that the court’s decision does not meet the requirements of legality, validity and fairness, as required by Article 297 of the Code of Criminal Procedure of the Russian Federation.

The court concluded that there were no signs of a crime under Art. 105 of the Criminal Code of the Russian Federation, contrary to the factual circumstances that were established by the investigation.

Thus, in the confession of the convicted Rodionov E.L. it is indicated that he, together with Mishin R.R. had the intention of causing my death, that is, killing me. From the testimony of witness N.E. Matrosov. it follows that he heard how Rodionov and Mishin agreed among themselves to commit the murder. From the conversation it was clear that Rodionov would have to bring a hunting rifle to house 50 on the street on September 30, 2018. Spring, that is, to my place of residence.

Thus, the court, acquitting Rodionov and Mishin under Part 3 of Art. 30, part 1 art. 105 of the Criminal Code of the Russian Federation, did not take into account the factual data, made incorrect conclusions, thereby depriving me, as a victim, of the right to restore social justice and compensation for the moral damage I suffered as a result of the failed attempt on my life.

Based on the above, guided by Art. Art. 389.1, 389.16 Code of Criminal Procedure of the Russian Federation

The verdict of the Zarechensky District Court of Voronezh dated April 20, 2019 is canceled and the case is sent for a new trial to the same court with a different composition.

I ask you to consider the complaint in my absence.

Nikolsky G.O.,
25.04.2019

Brief appeal

It happens that a participant in the process has not yet received a copy of the verdict, and the 10-day appeal period is already coming to an end. Yes, we have already written that you can file a petition for its restoration, but this option is more suitable for those who find out about the trial by chance. If you control the deadline and see that it is expiring, it is permissible to write a short appeal, without indicating specific circumstances and facts, and after receiving a copy of the verdict, write an additional one. This way, you will not have to apply to reinstate the 10-day period, since the complaint will be considered filed on time.

To the Judicial Collegium of the Samara Regional Court

SHORT APPEAL

I, Elena Viktorovna Makarova, am the legal representative of S.N. Makarova, convicted by the verdict of the Zavodsky District Court of Samara dated April 25, 2019, who was found guilty of committing robbery under paragraph “g” of Part 2 of Art. 161 of the Criminal Code of the Russian Federation.

I believe that the sentence does not meet the requirements of legality, validity and fairness and must be cancelled. The court committed significant violations of the criminal procedural law, incorrectly applied the criminal law, and the conclusions do not correspond to the actual circumstances of the case.

I undertake to submit the full text of the appeal after receiving a copy of the verdict.

Makarova E.V., mother of minor Makarova S.N.

After you receive a copy of the verdict, you need to write an addition to your short appeal. If such additions are not received, the court has the right to return the short version to the author without consideration.

To the judicial panel of Samarsky
regional court
Legal representative of a minor
convicted Makarov S.N., born in 2002

ADDITIONAL APPEAL

On 05/05/2019, I, Elena Viktorovna Makarova, the legal representative of the convicted S.N. Makarov, filed a short complaint of disagreement with the verdict of the Zavodsky District Court of Samara dated 04/25/2019.

I received a copy of the verdict on 05/07/2019. As an addition, I draw the attention of the judicial panel to the following violations of the law committed by the court of first instance.

When assigning a punishment to the minor Makarov, the court did not take into account mitigating circumstances - his minority and full compensation for the harm to the victim. The case contains a receipt from the victim R.P. Nemov. that the cost of the stolen TV was reimbursed to him, my son apologized to him and Nemov does not insist on strict punishment.

Thus, the verdict of the Zavodsky District Court of Samara dated April 25, 2019, which sentenced my son S.N. Makarov, born in 2002, to imprisonment in a correctional colony, is unfair and does not correspond to the personality of the convicted person.

Based on the above, guided by Art. Art. 398.1, 389.18 Code of Criminal Procedure of the Russian Federation

The verdict of the Zavodsky District Court of Samara dated April 25, 2019 regarding Sergei Nikolaevich Makarov, born in 2002, is amended.

Apply the rules of Art. 73 of the Criminal Code of the Russian Federation, appoint probation convicted

I ask you to consider the complaint in my presence.

Makarova E.V., legal representative of the minor Makarova S.N.

An additional appeal may be filed no less than 5 days before the scheduled hearing date. Otherwise, the addition remains without the attention of the judicial panel. In addition, the addition cannot include grounds that were not written about in the short complaint. Therefore, in the initial text you need to indicate all the grounds for cancellation at once (we wrote about them above) so as not to face the return of the complaint.

Objections

By analogy with civil proceedings, where the opposite party almost always responds to a claim in writing, each participant in a criminal proceeding has the right to file objections to an appeal.

Essentially, this is a disagreement with the appeal. Criminal procedural legislation does not provide for strict rules for filing objections. The right to object is enshrined in Art. 389.7 Code of Criminal Procedure of the Russian Federation. Objections can be filed at any time before the case is considered on appeal. If, for example, you forgot to indicate something in the first objections, you can submit additional ones, and their number is not specified by law.

The text itself is compiled in free form. The main thing is to make it clear what you are writing about and what case and verdict your opinion relates to. Sample:

To the judicial panel
Arkhangelsk Regional Court
in the case of Morozov N.G.

OBJECTIONS TO
APPEAL
convicted Morozov N.G. in accordance with Art. 389.7

By the verdict of the Zavodsky District Court of Arkhangelsk dated April 12, 2019 Morozov N.G. convicted under Part 2 of Art. 162 of the Criminal Code of the Russian Federation to 5 years of imprisonment in a maximum security correctional colony.

In his appeal, the convict writes that he admitted guilt and contributed to solving the crime, and apologized to me as the victim. In addition, Morozov wrote about his state of health and asks to reduce the sentence to 2 years in prison.

With the arguments of the convicted Morozov N.G. I don't agree. Firstly, no apologies to N.G. Morozov. didn't bring it to me. Moreover, during the trial, I received threatening calls on my cell phone in order to change my testimony. I believe that the initiator of these anonymous calls was N.G. Morozov.

Secondly, I was not compensated for material damage: the convict never told the investigation where the property stolen from me was located, therefore there was no assistance in the investigation from N.G. Morozov. there wasn't.

Thirdly, Morozov N.G. is a dangerous criminal who has been repeatedly convicted of acquisitive crimes, including robbery. During the robbery he behaved aggressively, I really feared for my life. I believe that persons like Morozov should be given a long term of imprisonment.

I completely agree with the verdict and believe that there are no grounds for reducing Morozov’s sentence.

Based on the above, guided by Article 389.7 of the Code of Criminal Procedure of the Russian Federation,

The verdict of the Zavodsky District Court of Arkhangelsk dated April 12, 2019 is left unchanged, the appeal of the convicted Morozov N.G. - without satisfaction.

Victim Morozova P.R.,
25.04.2019.

To formulate objections, you need to know what the other party to the proceedings is writing about in their complaint. The court must give you a copy of it before sending the case to the judicial panel of a higher authority. If for some reason a copy of the complaint was not served, you must contact the assistant or secretary of the judge who passed the sentence.

Procedure for considering an appeal

The basic rules for considering a case in the second instance are as follows:

1. If an appeal is ordered by a district court (for example, when a decision of a magistrate is appealed), then the hearing of the second instance begins no later than 15 days from the moment the criminal case is received by the office.
   If the appeal is scheduled in the regional or regional court, then no later than 30 days (in Verkhovnoye - 45 days). During this period, you can file a withdrawal of the appeal if the opinion of its author has changed and for some reason he has changed his mind about revising the verdict.
2. How long does the appeal take? It is expected that the decision of the second instance will be made on the appointed day. At the same time, in some cases, if additional examination of the case materials is necessary, if there is a valid reason for the non-appearance of the participant who insisted on his presence, the case may be postponed to another date, within a two-week period. The period for consideration of a complaint against a preventive measure is 3 days from the day the material is received by the regional court office.
3. When scheduling a hearing, the Court of Appeal must notify all participants at least 7 days before the date of the hearing. Convicts held in a pre-trial detention center can participate in the hearing via conference call - that is, they are not actually taken to the courtroom.
4. The public prosecutor, defense attorney, and legal representative of the convicted minor always participate in the court hearing. The convicted person and the victim participate if they request their presence. In some cases, the court may recognize the participation of the convicted person as mandatory (most often this happens) regardless of whether such a request has been received.
5. At the beginning of the court hearing, the secretary announces who has appeared. The judge reports what case is being considered and whose complaint was received and who raised objections.
6. In an appeal, motions and statements can be made. For example, about the study of certain evidence, the protocol of the court session of the initial trial, etc.
7. The court hears the opinions of the parties to the case, which usually coincide with the content of their complaints or objections. You can withdraw your complaint at any time before the judge (or the panel of judges, if it is a regional court) is removed to the deliberation room. This can be done orally - then the statement will be recorded in the protocol. In case of refusal, the proceedings are terminated unless there are other complaints.
8. After examining the case materials and other evidence, the court proposes to move on to the debate, that is, to the final statements regarding the decision of the trial court. The first to speak is the one who appealed the verdict. At the end, the convicted person is given the last word.
9. The court retires to the deliberation room, returns after some time (from several minutes to several hours), announces a decision by which:
   • the sentence may be fully or partially reversed, the case may be sent for a new trial (in some cases, the case may be sent to the prosecutor to remove obstacles to the trial);
   • the sentence was overturned and a new sentence was ordered;
   • the verdict was upheld.

On the day of proclamation, the appeal decision comes into force. From now on, the verdict can be appealed again, but in cassation.