Samples of the appeal. Types of cassation complaints, rules for drafting, procedure and deadlines for filing
With the help of a cassation appeal, the violated rights of citizens are restored. This article will tell in detail about the essence of such a document: how to file, what it should contain, who will help write this complaint, where to get samples of the cassation complaint, that is, everything about judicial proceedings.
In which case submit such a complaint
The essence of the appeal is to protect the rights of citizens who for any reason have been violated. This document is the third way of protection: first of all the citizen appeals to the court of first instance, after that he can appeal, and only after that - the cassation complaint. The current legislation provides for consideration by the cassation instance of a decision made by the court, which entered into legal force.
Filing a cassation appeal is a process that allows you to change a court sentence that has already entered into force, if the court misinterprets or violates the norms of material or procedural rights.
At the same time, the main thing is not to forget about the procedural deadlines. If the term is missed, the citizen will not be able to participate in the appeal of the decision, and therefore, in the restoration of their rights. And the terms in which court decisions are appealed in cassation instances are different and depend on the branch of law.
Cassation complaint in civil proceedings
For example, a cassation appeal in a civil case may be filed within six months from the moment the court decision became lawful. At the same time, civil law stipulates that a cassation is filed only by the person who could not defend his violated rights using other legal means, that is, after appealing the decision in a court of second instance (after filing an appeal). As well as a cassation appeal in a civil case is filed in the event that a citizen missed the deadline for appeal, and the petition for restoration of the deadline the court of second instance refused.
Cassation complaint to the arbitration court.Sample
An appeal to the arbitral tribunal can be filed within sixty days from the moment the court decision became lawful. There are exceptional cases where the cassation is filed with the court after two months. Such cases include the ignorance of the person to issue a judgment. But for exceptional cases, there are periods of time: no more than six months from the moment the court decision enters into force.
Cassation complaint in criminal proceedings
For a criminal case, the filing of a cassation appeal is not limited. But in this case one should not forget that the cassation examination can both improve and worsen the situation of the convicted person.
In this case, it can be summed up that the cassation appeal was not created in order to re-examine cases and change court decisions already made, but to check the decisions made specifically in those parts that are stated in the cassation appeal whether the decision made corresponds to the law. That is, courts of cassation are examining lower level judges on whether the laws are applied correctly, and the evidence is not considered.
Who has the right to file a cassation appeal
The cassation appeal to the court is filed only by the citizen whose interests were injured during the adjudication. Thus, a complaint can be filed:
- a convicted person, a victim or a person in respect of whom the criminal case was terminated;
- the plaintiff or defendant;
- civil plaintiff or civil defendant in criminal proceedings;
- the prosecutor, if he participated in the previous court;
- other persons who are not participants in the proceedings, but were infringed upon their rights in adjudicating and the court determined their right to appeal.
It is very important to understand here that every person can write a cassation on that part of the decision that directly concerns his rights (the exception is the participants in the process). For example, a civilian in criminal proceedings has the right to submit a cassation only to that part of a court decision that concerns a civil claim. He cannot appeal against the general decision of the court in criminal proceedings.
The court can also consider only within the limits of the complaint. That is, if only part of the decision is appealed, this part will be checked by the court of cassation.
Where to file a cassation
The answer to this question seems to be quite simple and suggests itself: the complaint is filed with the court, which is authorized to the cassation procedure for the consideration of cases. And nevertheless here the type of legal proceedings matters.
For a civil case, everything is quite simple: a cassation appeal is filed to the Supreme Court, that is, one that is higher than the previous instance. Article 377 of the Civil Procedure Code of the Russian Federation stipulates that a cassation appeal in a civil case on an appeal of a court of federal significance is submitted to the presidium of the court that made the decision. If we are talking about the appeal of the district (naval) or military garrison court, the cassation appeal is submitted to the presidium of the respective district court.
When a cassation appeal is filed against the decision of the district court, as well as the appeal of the district and garrison court, it is considered by the college for military personnel.
In criminal proceedings, cassation is filed in a similar way: it is considered either in a higher court or in its presidium. Federal courts are checked by the presidium of the relevant court.After appealing to the court of cassation, the decision can be submitted to the college for criminal cases of the Armed Forces of the Russian Federation. They also act with the decision of the district court - they appeal to the appropriate court.
The cassation complaint to the arbitration court, the sample of which we will consider below, is submitted in a slightly different way. Now in the Russian Federation there are ten federal arbitration courts - that’s where a complaint should be filed against a decision made by an arbitration court. These arbitration courts are divided into districts, and depending on the region in which the citizen resides, who has decided to file a cassation, the appropriate authority is chosen. There is one more clarification. The cassation of the decision made by the arbitral tribunal shall be filed through the same court that passed the judgment.
What you need to pay attention when writing a cassation complaint
In order to know exactly what needs to be indicated in such a document, it is better to view samples of the appeal. But each cassation must indicate:
- name of the court where the document is submitted;
- Full name of the citizen who filed the complaint and place of residence;
- the status of the person in the proceedings;
- court decision to be checked;
- reasonable position of a citizen (why, in his opinion, the decision is illegal);
- documents attached to the appeal;
- signature of a citizen.
Samples of the appeal
This type of complaint is written according to the following pattern: first, the date, the name of the district court, the plaintiff, the defendant and the decision are indicated.
After that, the name of the appellate instance and the decision rendered.
Further - the grounds on which the claimant does not agree with the decision, and a reference to the relevant law.
Then the complaint itself is indicated, that is, a request to the cassation instance to cancel or change the previous decision of the court.
The following should indicate the application:
- copy of the complaint;
- A receipt that paid the state fee for the cassation appeal;
- attached evidence.
Specific examples of a cassation appeal can be taken in the court of this instance itself, as well as by seeking assistance from a lawyer.
An example of writing a cassation appeal
Looks like a cassation appeal.
Presidium of the Regional Court of the Kirov region
613050, Kirov, ul. Leibniz, d. 76
from plaintiff Ivanov Sergei Mikhailovich
613050, Kirov, ul.Lenin, d. 36, apt. 116
On January 17, 2015, the Regional Court of the Kirov Region of First Instance considered case No. 7657, instituted under the suit of termination of the contract for the provision of services from Nataliya Sergeyevna Smirnova, to Sergei Mikhailovich Ivanov, the first court instance refused to satisfy the requirements.
The request of the plaintiff in the statement of claim was about the termination of the agreement between the prisoner and Smirnova N.S. on the provision of services for cleaning the premises due to gross violations of the terms of this agreement.
Namely: failure to fulfill obligations on November 26, 2014, which violates the concluded agreement. In the courts of first and second instance, the lawsuit was denied due to the fact that the grounds for termination of the contract are not sufficient, since the terms of the contract were violated only once, and under civil law this is not considered a significant violation.
On April 7, 2015, the Kirov Regional Court, which considered my appeal, ruled that the decision appealed by me remains in force.
Considering article 450 of the Civil Code of the Russian Federation, I believe that the court decision is illegal. In this regard, I ask the court to change the previous court decisions and re-examine the case in the first court instance.
I enclose the following documents:
- Copies of decisions of the courts of previous instances.
- Receipt confirming payment of state duty.
Signature: Ivanov S.M..