People who assert their rights in court often ask what cassation is. Let’s try to give an explanation and in the most correct way.
Basic concepts
Appeal and cassation are the next steps after the first instance. Some lawyers after the 2012 judicial reform themselves got a little confused in these terms, and many ordinary citizens are even more unaware of them. So what is cassation? What is its difference from the first two instances? We will try to find out.
Cassation - the second appeal?
Consider the concepts of appeal and cassation. What are the significant differences between them? Many practicing lawyers mistakenly believe that cassation is the third attempt at litigation. “Special Professionals” often only change the wording of the complaint from appeal to cassation, which rightly leads to negative results.
An appeal is the second instance of litigation. It considers decisions that have not yet entered into force. For example, the first instance is a district court. The losing side has the right to appeal to the Judicial Board within a month after it. It is submitted through the authority that issued the initial decision. The Court of Appeal is required to consider the applicant's complaint. Only after this the decision of the first instance enters into force.
Cassation in a civil proceeding is a special instance. It is submitted to a court decision that has already entered into legal force. In addition, the court is not obligated to consider the complaint at the meeting. Everything may end in the office of the judge, to whom the request to annul the decision was received. It is necessary to file a complaint:
- The presidiums of the subjects.
- To the Supreme Court.
What is the main difference from an appeal? The cassation in the civil process reveals significant violations of procedural and material standards that influenced the outcome of the case. The applicant should not give any additional assessment of the evidence in the case. It's useless. If a citizen is sure that the court did not investigate the evidence enough, then you should not pay attention to this. If there are contradictions between witnesses in the case, for example, then the cassation will also leave this unattended. A more meaningless exercise is to petition for the introduction of new evidence to the case, even if it significantly affects the outcome. These are grounds for review in the first instance. We hope that now it becomes clear what cassation is and how it differs from the appeal. Let's move on to another important difference.
Cassation: Judge's determination
We have already noted that there are two instances within the appeal, but within each complaint there are three stages:
- Formal stage - the complaint is examined from the point of view of the correctness of its content. It is necessary to attach appropriate copies of the decisions of the first two instances to it. It must contain the name of the court to which it is submitted, the procedural status of the applicant (plaintiff, defendant), as well as information about other persons in the case. In addition, the complaint must indicate all previous decisions, it should list violations of procedural and material norms. At the end is the request and application.
- Judge's determination. The applicant's complaint first falls to the judge. He does not see the case, since it is in the first instance. However, it studies the arguments of the complaint and copies of decisions of two instances. As a rule, at this stage it all ends. The board of the court of cassation is not required to meet when filing a complaint, as opposed to an appeal. Therefore, many fates are ruined precisely at this stage. Further, the judge decides to convene or not convene a panel of judges for consideration. In any case, his decision must be somehow motivated.
- Judicial board meeting. If the judge has decided to initiate a cassation proceeding, then this is a good sign for the applicant. Judicial board will gather. As a rule, she makes positive decisions for the applicant. However, practice shows that there are very few such cases, less than 10 percent.
Cassation Dates
To file a complaint, six months are given from the moment the legal decision enters into force. For the uninitiated, we’ll say that this is from the moment of the appeal, since when it is missed, there will no longer be a chance for a cassation. The deadline begins to be calculated the day after the announcement of the operative part. This means that, without having the rationale for the appeal on hand, you must already prepare for the appeal. How to do this is another matter, but the term begins to be calculated from this moment, and not from the day the decision is received. The term for two appeals is one. It is incorrect to think that six months will be re-calculated after the regional Presidium. It is also impossible to file a complaint to the Supreme Court bypassing the regional stage.
If the judge has issued a ruling on the refusal to initiate cassation proceedings, this will be the basis for submission to a higher court. However, there are fewer rejected cases in the Supreme Court than all lower courts combined. Therefore, you need to think about whether it makes sense to do this.
Cassation competency
The cassation instance has the right:
- Reject the complaint, dismiss it.
- To cancel the decision of the lower courts and refer the case for a new trial.
- Make a new decision.
The last option is from the realm of fiction, so the definition of a new trial is considered victory at this stage. In this case, there is a chance of a fair resolution.
What is a violation of law?
Of particular difficulty is the concept of a violation of the rule of law. As for the material, it is necessary to identify such a violation as a misinterpretation of the law or application of an unnecessary norm. For example, the court used articles from the civil code in family law.
With regard to procedural violations, then as an example may be:
- Lack of protocol.
- Violation of jurisdiction.
- Violation of the principle of equality of arms, etc.
Thus, we hope that it has now become clear what cassation is and how it differs from an appeal. The main thing - it is always necessary to seek justice through legal methods.