Appealing the decision in the administrative procedure. How to file a complaint against a decision of a district court in an administrative case? They can file a cassation appeal

The ability of citizens to challenge an unfair court decision is the basis of the foundations of Russian justice. Administrative proceedings are no exception: the appointment of a traffic police fine, punishment for a misdemeanor, refusal to consider a claim for the inaction of an official can be appealed first in an appeal, and then in cassation. How to correctly draw up a cassation appeal in an administrative case in order to win it?

Cassation in administrative proceedings

Cassation - the 3rd stage of the consideration of the case and the 2nd stage of the appeal of the controversial decision. Its rules, procedure and in administrative proceedings are explained by Chapter 35 (Articles 318–331) of the CAS RF.

The cassation is called “trial over the court”. The collegium of the third instance checks how accurately and fully the decisions of their lower-level colleagues comply with the norms of the CAS and the Code of Administrative Offenses of the Russian Federation, looking for judicial errors. These include:

• use of outdated, unsuitable law;
• misinterpretation of norms, for example, contrary to the recommendations of the RF Armed Forces or judicial precedents;
• non-application of the law that should have been used;
• incomplete composition of the court, violation of the language rule, absence of a protocol or signatures of the arbitrators on the final act, other gross procedural errors in the course of previous proceedings, etc.

The second and third instances analyze different aspects of the case under consideration. Duplication of the text of the appeal in cassation is the most frequent argument for refusing to consider it.

A participant in the proceedings, a prosecutor or any person whose rights and interests were affected by the controversial decision can appeal the case in cassation. Only a judicial act that has entered into force, including an appeal one, is subject to challenge.

Cassation is, in fact, a two-step procedure. Errors of regional and magistrates are considered by the Presidium of the court of a constituent entity of the Federation (regional, republican, regional). If the result of the consideration in the regional court does not satisfy the plaintiff, he can file a complaint with the Collegium for Administrative Cases of the Armed Forces of Russia.

Rules for drawing up a cassation appeal

Art. 320 CAS RF specifies how to properly draw up a claim to the court of the third instance. It must necessarily contain:

"Cap"	the name of the judicial authority; Name of the author, address for correspondence, contact details; relation to the process (plaintiff, defendant). If the clerk was not involved in the case, he must explain how the controversial decision affected his rights and interests; a list of persons involved in the case, their procedural status.
Preamble	a brief description of the case; list of courts and their decisions.
Motivational part	violations of substantive or procedural law that were admitted by arbitrators of lower instances; a description of how the decision would change after the correction of judicial errors.
Request part	The clerk's demands to cancel the disputed act or refer the case for reconsideration. The collegium of the third instance can make a new decision on its own if there is enough evidence and it does not need to be re-evaluated.
Final part	list of documents; author's signature, transcript, date.

The motivation part is the most important in the cassation appeal. The third instance does not consider the merits of the case. It checks the decisions of the arbitrators for their legality, and not fairness from the point of view of the parties to the dispute. Moreover, the violations must be significant. It is better to describe them point by point, with links to current regulations, recommendations of the RF Armed Forces, and judicial practice.

Not worth it:

• mention clerical errors, spelling errors, incorrect calculations;
• refer to previously unknown circumstances of the case;
• require reassessment of evidence;
• give an emotional assessment of a controversial decision.

Submission procedure

A package of documents must be prepared for the application:

• copies of all court decisions, certified by a "live" seal in the office of the primary court;
• a receipt for payment of the state fee in favor of the branch of the cassation court (150 rubles for individuals);
• copies of case materials by the number of persons participating in the process;
• a power of attorney if his representative acts on behalf of the author. An order will be required from a lawyer - confirmation of his authority and qualifications;
• an application for the restoration of the term, if it was missed.

The appeal is given six months from the moment when the judicial act came into force. The complaint is sent directly to the cassation court. The presidium of the regional (regional, regional) court accepts for revision the acts adopted by the magistrates and district arbitrators.

The Collegium of the RF Armed Forces examines cases that have already passed cassation in the region, and those for which the court of the subject was the initial instance. In 2017, it is possible to send a complaint and scans of documents to the Supreme Court via the Internet, using the online form on its official website.

The decision in the court of the third instance is made by the panel of arbitrators. But before the case gets under consideration, it goes through the so-called "filtration". An independent judge checks the complaint for compliance with the procedural requirements: whether it was filed on time and according to the jurisdiction, whether the author is entitled to challenge the decision.

The motivation part is also read. If the clerk bases his claims not on the mistakes of the referees, but, for example, requires a reevaluation of the evidence, the complaint will not be allowed. “Filtration” weeds out 8 claims out of 10. If the case got to the panel for consideration, it means that it has good potential.

The court sends copies of materials to all participants and gives them time to study and prepare objections. During the hearing, the plaintiff and the defendant are entitled to only one speech. Then the arbitrators are removed and the decision is taken by voting. It is believed that the more time it takes to meet, the better the clerk's chances of winning the case.

If the complaint has not passed the stage of preliminary verification in the regional court or the author is not satisfied with the results of the cassation consideration, he can apply to the Supreme Court of the Russian Federation. In the Collegium for Administrative Cases of the Armed Forces, the procedures are the same: “filtering”, one sitting, making a decision.

It is not worth delaying the writing and filing of a cassation appeal for an administrative offense. For both cassation stages - the Presidium of the court in the region and the Armed Forces of the Russian Federation - a general six-month period is given. It includes, among other things, the time of receipt of certified copies of accepted acts, which can take up to 2 months.

In the court of the subject, the cassation process takes up to 30 days; if it was additionally required to raise the case materials - up to 60 days. In the RF Armed Forces, the term is 2 and 3 months. As a rule, the panel does not go beyond the reasons mentioned by the plaintiff.

Based on the results of the cassation, the panel may make one of the following decisions:

• refuse the plaintiff, leave the case unchanged;
• transfer materials for new consideration to the court of the 1st or 2nd instance;
• make a new decision on your own;
• cancel the disputed ruling / determination and terminate the proceedings.

According to the statistics of the Armed Forces of the Russian Federation in 2016, out of 1431 complaints in administrative cases, including offenses, new decisions were made on 200 of them. 87 cases were sent for secondary proceedings.

Much in cassation depends on the correct, competent drafting of the claim. The complaint must be unique, written based on the materials of a specific case, with an analysis of the actions and decisions of the arbitrators. According to the same statistics, only 1431 lawsuits in the RF Armed Forces in 2016 reached the consideration of the collegium, that is, they successfully passed the "filtering". And only 17,113 complaints were filed.

It is very difficult to draw up a cassation claim so that it would be considered by the panel. And winning a dispute in the 3rd instance is the height of skill even for experienced lawyers. Those who intend to defend their case in the cassation court are strongly advised to seek professional legal assistance.

CAS RF Article 307. Procedure for consideration of an administrative case by a court of appeal

1. The court of appeal shall consider an administrative case in a court session according to the rules of procedure in the court of first instance, taking into account the specifics provided for by this Code.

2. Unless otherwise provided by this Code, the consideration of an administrative case on an appeal or presentation shall be carried out collectively. When filing an appeal, submission to a court decision made by way of simplified (written) proceedings, an administrative case is considered in the court of appeal by a judge alone. At the same time, taking into account the nature and complexity of the circumstances of the administrative case, it can be considered in the court of appeal collegially, about which the chairman of the court, his deputy, the chairman of the judicial composition shall issue a ruling.

3. The session of the court of appeal shall be opened by the judge - the presiding judge of the court session, who announces which administrative case is being considered, who submitted the appeal, presentation and decision of which court, finds out which of the persons participating in the case, their representatives appeared, and identifies who appear, checks the powers of officials, the powers of representatives, whether the representatives have the documents specified in part 3 of Article 55 of this Code, and explains to the persons participating in the case, representatives of their procedural rights and obligations.

(see text in previous edition)

4. Consideration of an administrative case in a court of appeal begins with a report by the judge - the presiding judge of the court session or one of the judges. The reporting judge sets out the circumstances of the administrative case, the content of the decision of the court of first instance, the arguments of the appeal, presentation and objections received against them, the content of the new evidence submitted to the court, and also reports other data that the court needs to consider to verify the decision of the court of first instance.

5. After the report, the court of appeal shall hear the explanations of the persons participating in the case, their representatives, who have appeared at the court session. The first person to speak is the person who filed the appeal, or his representative or the prosecutor, if they have brought the appeal. In the event of an appeal against a court decision by both parties, the administrative claimant is the first to act.

6. After the explanations of the person who filed the appeal, or the prosecutor, if they have brought the appeal, and other persons participating in the case, their representatives, the appellate court, if there are appropriate requests or on its own initiative, examines the evidence in the administrative case and the new proof of.

7. Upon completion of the clarification of the circumstances of the administrative case and examination of the evidence, the appellate court shall provide the persons participating in the case with the opportunity to appear in the judicial pleadings in the same sequence in which they gave their explanations.

Appealing a decision of a district court, as a procedure, depends on what kind of decision needs to be challenged and in what procedural order it was made.

District courts are the first instance of courts of general jurisdiction and an appellate instance in relation to justices of the peace. They deal with civil, administrative and criminal cases on the merits. Accordingly, in order to appeal a certain decision, it will be necessary to apply the relevant procedural norms - the Code of Civil Procedure, Code of Administrative Offenses, CAS and Criminal Procedure Code. Of no small importance, especially in civil proceedings, is the procedure for making a decision: simplified, special and extramural proceedings have their own specifics of challenging decisions made in such proceedings.

Civil procedure

In order to properly appeal against a decision of a district court in a civil case, it is necessary first to determine within which proceedings the decision was made, and whether there are features in this case of appealing against the decisions made.

District courts, depending on the category and specifics of civil cases, have the right to consider them in the following order:

1. Claim production.
2. Extramural production.
3. Simplified production.
4. Special production.

The general procedure for appealing decisions taken by district courts is in force for the action. It also applies to other types of industries, but taking into account their specifics and, if established, according to special rules.

General scheme:

• The first stage is the appeal (Chapter 39 of the Code of Civil Procedure).
• The second and third stages are the first and second cassation (Chapter 41 of the Code of Civil Procedure).
• The fourth stage is supervision (Chapter 41.1 of the CPC).
• If there are grounds (new, newly discovered circumstances), the revision of court decisions is allowed, which is not formally an appeal procedure, but is often used this way.

Correspondence production

Decisions in absentia are decisions made in the absence of a defendant who did not want to appear in court or could not do so, but did not report good reasons for not appearing in court. Such decisions are made very often and have some features of appeal at the initial stages:

1. Within 7 days from the date of delivery of a copy of the decision, the defendant has the right to cancel it by submitting an appropriate application to the district court that made the contested decision. The basis for canceling the decision and resuming, thus, the civil proceedings, is a set of conditions:

• the defendant failed to appear in court for valid reasons;
• the defendant was not able to promptly inform the court about the existence of valid reasons for failure to appear;
• the defendant has circumstances and their confirmation that can affect the course of the process and the decision-making, which is why, first of all, it is necessary to resume the proceedings.

1. If the possibility of canceling the decision in absentia was not used by the respondent or he received a refusal in the request, then the decision in absentia is subject to appeal in the appeal. Both the respondent and the plaintiff have the right to appeal. This is allocated 1 month from the date of expiration of the defendant's right to cancel the decision or from the date of the decision to refuse to resume proceedings.

Other procedures for appealing a decision in absentia - cassation, supervision, reconsideration on newly discovered circumstances - are carried out according to general rules and have no specificity.

The simplified procedure combines some of the features of the clerical proceedings of justices of the peace, but is carried out, in general, according to the rules of claim proceedings, with a number of exceptions.

The decisions made in the simplified proceedings relate to claims of up to 100 thousand rubles for the recovery of money, for the reclamation of property and for the recognition of ownership. Another category of cases is lawsuits in which the claims are based on documents on financial obligations of the defendants, recognized by the last, but not executed, or on documents on debts under contracts.

Administrative cases, disputes affecting children's rights, cases of special or ordered proceedings, as well as those related to state secrets are not considered simplified.

The simplified procedure for the proceedings involves the adoption by the court of a decision only in the form of its operative part. And only at the request of the participants in the process or when filing an appeal, the decision is drawn up in full - a reasoned decision.

There are no special procedures for challenging decisions made in a simplified manner. But there is a specificity of appeal. 15 days are allotted for this from the date of adoption of the contested decision, and when drawing up a reasoned decision - the same amount, but from the date of adoption of the final decision. 5 days are given to appeal for a reasoned decision, the same number of days the court has the right to draw up. These deadlines also need to be considered.

Cassation, supervision and reconsideration of cases on newly discovered circumstances are carried out in a general manner and do not have specificity in relation to decisions made in simplified proceedings.

Special production

In special proceedings, only specific categories of cases are considered:

• establishment of legal facts;
• adoption (adoption);
• recognition as missing or dead;
• recognition incapacitated, partially incapable, establishment of property restrictions in relation to minors;
• emancipation;
• restoration of rights to securities;
• cases of ownerless property;
• compulsory psychiatric examination and hospitalization;
• appeal against notarial acts;
• restoration of court proceedings;
• making changes, corrections in the records of the registry office.

As such, there is no specificity of appealing against decisions made within the framework of special proceedings. But, given the peculiarities of certain categories of cases, the decision on them can be de facto reconsidered in the event of the disappearance of the circumstances that served as the basis for its adoption. For example, a person who is deprived of legal capacity or limited in it can be fully restored in rights. Subject to revision by filing new requirements in court and decisions regarding recognition as dead, missing, if the person was found or he himself appeared. However, most cases are appealed and reviewed according to the general procedure - appeal, cassation, supervision. And here there is no specificity of actions.

Before appealing a decision of a district court in an administrative case, you need to determine in what order it was made. Administrative cases are essentially two broad categories of cases. Some (administrative offenses and everything related to them) are considered according to the rules of the Code of Administrative Offenses of the Russian Federation. Others are considered according to the rules of the CAS RF. These include cases related to public administrative legal relations - in other words, everything related to challenging actions, inaction, decisions of authorities and officials.

Judicial decisions (decisions) on administrative offenses are challenged in a higher court - the court of the subject of the federation. The complaint must be filed within 10 days from the date of delivery / receipt of a copy of the appealed decision. In cases related to violation of electoral legislation and rights, the same period has been reduced to 5 days. The term for consideration of the complaint and case materials is 2 months from the date of receipt of the materials in a higher court. Some cases are considered on an expedited basis (for more details, see Article 30.5 of the Administrative Code).

The CAS RF provides for a slightly different procedure for appealing against decisions of district courts. First, you need to determine if there are any features of challenging decisions in certain categories of cases:

• For many cases, taking into account their specifics, their own procedure is envisaged. And although in most cases the specifics of challenging the decisions of district courts are not provided, one must still take into account the likelihood of exceptions to the general rules.
• There are nuances in appealing against decisions made within the framework of simplified (written) proceedings. The deadline for filing an appeal is 15 days.

General appeal scheme:

1. An appeal to a higher court. The general term is 1 month from the date of the final appeal of the decision. But there are many exceptions: firstly, the rules for determining the deadlines established by Art. 298 CAS, secondly, in some cases, other articles of the CAS may also provide for periods that differ from the standard one month.
2. Cassation (Chapter 35 CAS).
3. Supervision (Chapter 36 CAS).
4. Reconsideration for newly discovered or new circumstances (Chapter 37 of the CAS).

In general, the procedure for appealing against decisions of district courts is quite similar to the civil procedure (CPC).

An ALJ's decision can be appealed. The order and term of this procedural procedure is established by law. The filing of a protest is possible both against the decision of the magistrate and against the decision of the district court. However, not all verdicts can be contested. What decisions cannot be challenged? How is an appeal against an administrative court decision carried out? How is the complaint filed?

Right to lodge a complaint

The right to appeal against a ruling of an administrative court is determined by the Code of Administrative Offenses, namely Article 25. This norm has designated the following list of persons. They can be:

• a citizen who is accused in an administrative case;
• a person acting as a victim;
• an entity authorized to represent an individual in the courtroom;
• the subject who was granted the right to represent the interests of the organization in this case;
• party representative;
• defender;
• a person acting as an authorized person under the President of the Russian Federation to protect the rights of entrepreneurs.

It is important to understand that an incapacitated citizen or a person under 18 must be represented in the courtroom by a legal representative. In this case, a parent, guardian or adoptive parent will appeal against the judge's ruling in the case. A complaint can be filed by an organization or institution if its powers include representation by contract or by law.

It follows from Article 25 of the Code of Administrative Offenses that an appeal against a court decision is possible only by persons who are directly involved in the proceedings or whose interests were directly affected by the verdict. If the interests of the third party are not affected, their complaint will not be accepted for consideration. A court decision can be appealed before it comes into force.

Justice of the Peace: How to Appeal a Verdict

The rulings made in the magistrates' court are allowed to be challenged. The complaint against the decision of the magistrate is submitted within 15 days after its adoption. This can be done in the district court. A private complaint (against the decision of the magistrate court) is submitted for determination if it can interfere with the case and is allowed by law. In some cases, a complaint against a magistrate's decision cannot be filed. In this situation, an objection to a separate ruling of the magistrate should be attached to the appeal against the ruling. The complaint is filed through the magistrate without paying a state fee. A complaint may not be accepted if it is incorrectly executed.

An appeal against a decision on an administrative case (offense) is filed within 10 days from the date of its receipt. If the deadline is missed, restoration of the right is possible through a petition.

The legislation has determined the procedure for filing an appeal through the court where the case is being considered. The protest is transferred to a higher court along with the collected materials. It makes no sense to apply for the verdict of the magistrate directly to the appellate instance. She will be brought back to the magistrates' court for consideration.

After the expiration of the statutory period, the appeal is referred to the district judge, who will be the second instance for the proceedings.

District Judges Verdicts: How to Appeal

An appeal is sometimes seen as an opportunity to delay the proceedings. A protest against a district judge's ruling must be filed in accordance with procedural rules. If there are errors in the prepared document, it will not be passed on. A complaint can only be made in relation to those claims that the court has ordered. Consideration of the possibility of an appeal falls within the competence of the judge who made the decision in the administrative case. If he considers it possible, the documentation with the complaint will go to a higher authority, namely the collegium. Filing an appeal in advance of a case will waste time. The documents will be returned to the district court.

The verdict, adopted in the district court, does not gain legal force immediately. This is the time allotted for filing a complaint. The appeal is made at the regional, regional court or in the courtroom of the autonomy. The first decree should not be passed on. Upon appeal of the verdict, the previous court resolution is canceled. The judge is reviewing the case again. An appellate ruling becomes effective immediately after it has been issued. The district court notifies all participants in the process of the receipt of the complaint and transfers the materials to them.

Complaint period

Administrative proceedings have a time limit and procedure for consideration and appeal. The court verdict takes effect 30 days after it is announced. If the production takes place according to a simplified procedure, the period is reduced to a half moon. Once the resolution is documented, the objection period begins.

The appeal of the decisions of the magistrate court, the verdicts adopted by the district judge, takes place before its entry into force. Otherwise, the term for the appeal is considered missed. It is possible to restore the term only if there are serious reasons and circumstances.

When an offense is committed under the Code of Administrative Offenses, a protest is submitted only for 10 days. In some cases, the appeal period is 5 days. The appeal is made either in due time, or it is sent along with the application. Missing the deadline is not recorded when the complaint is delayed by the postal services. A document confirming the timely filing of a complaint should be attached to the documentation for the appeal.

An appeal against a magistrate's verdict can be filed within a 15-day period. Consideration of the protest takes place within two months from the date of receipt of the appeal documentation. If the deadline is missed and cannot be restored, the protest must be filed in cassation.

Drafting a document

Before filing a protest, you must take into account the rules for writing an appeal document. The specific form is not established by the legislation. However, it is better for the complainants to use a sample of the complaint as a basis. It must comply with the general procedural order. A sample can be obtained from a court clerk or a lawyer. It should contain the following information:

• information about the judicial authority considering the appeal document;
• information about the applicant of the appeal (full name, contact details);
• information about the participants in the court of first instance (full name, their procedural status, contact details);
• details of the court that issued the contested verdict;
• data of judicial administrative proceedings, its details;
• data on the verdict that is being appealed;
• a list of controversial points in the decision of the previous trial;
• mention of regulations that allow the appeal procedure;
• direct request;
• list of accompanying documentation;
• date of appeal and signature.

A citizen who complains about a previous verdict must attach additional evidence to the documents. Subject to the renewal of the term, a corresponding petition and evidence should be prepared for it.

Copies of the production documentation must be prepared by the complainant. All copies are sent to the court, which considered the case in the first place. Her responsibility is to transfer the papers to all interested parties.

A sample document can be found on the website. A timely question to a lawyer will have a positive effect on the result of filing a protest.