All about tuning cars

Civil case appeal new evidence. The study of evidence in the court of appeal in the light of the theory of investigative (judicial) actions of a cognitive nature. Other possible cases of submission of additional evidence

New edition of Art. 327.1 Code of Civil Procedure of the Russian Federation

1. The court of appeal shall consider the case within the limits of the arguments set forth in the appeal, presentation and objections to the complaint, presentation.

The appellate court evaluates the evidence available in the case, as well as the additional evidence presented. Additional evidence is accepted by the court of appeal if the person participating in the case has substantiated the impossibility of submitting them to the court of first instance for reasons beyond its control, and the court recognizes these reasons as valid. The appellate court issues a ruling on the acceptance of new evidence.

2. In the event that only a part of the decision is appealed in the order of appeal, the court of the appellate instance verifies the legality and validity of the decision only in the part being challenged.

The court of appeal, in the interests of legality, has the right to verify the decision of the first instance court in full.

3. Regardless of the arguments contained in the appeal, presentation, the court of appeal checks whether the court of first instance has not violated the norms of procedural law, which are in accordance with the grounds for canceling the decision of the court of first instance.

4. New claims, which were not the subject of consideration in the court of first instance, are not accepted and are not considered by the court of appeal.

Commentary on Article 327.1 of the Code of Civil Procedure of the Russian Federation

1. Article 327.1 of the Code of Civil Procedure of the Russian Federation introduces the limits of the review of the case in the appellate instance, which was not the case before. In accordance with the consistent further implementation of the principle of dispositiveness, the appellate instance is limited in the scope of verification by the limits of the arguments of complaints and submissions. This means that the uncontested part of the decision should not be subject to verification.

In its Resolution of June 19, 2012 N 13, the Plenum of the RF Armed Forces draws the attention of the courts to the fact that the court of first instance is not entitled to assess the nature of the reasons (valid or disrespectful) of the impossibility of submitting additional (new) evidence to the court of first instance, since, based on the requirements of paragraph ... 2 h. 1 tbsp. 327.1 of the Code of Civil Procedure of the Russian Federation, the issue of accepting and examining additional (new) evidence is decided by the court of appeal. Persons not involved in the case, the issue of whose rights and obligations have been resolved by the court, have the right to refer to any additional (new) evidence that was not the subject of research and assessment in the court of first instance, since such persons were deprived of the opportunity to exercise their procedural rights and obligations when considering a case in a court of first instance.

The appellate instance has the right to reevaluate the evidence in the case, which may be preceded by the petitions of the persons participating in the case to re-examine the evidence, and to investigate new ones, on the basis of which new facts can be established. Within the meaning of the civil procedural law, all evidence must first of all be presented to the court of first instance. By virtue of this, the law also contains specific restrictions on the submission of new evidence to the appellate instance, on the basis of which the court of the appellate instance is entitled, according to the rules of proceedings in the court of first instance, to establish new facts, only in cases where a person, for valid reasons, was deprived of the opportunity to present this evidence to the court. first instance. The persons participating in the case have the right to file petitions for summoning new witnesses, conducting an examination, joining the case or requesting written and material evidence. The appellate court decides the issue of satisfying the motions, applying the rules of both the relevance and admissibility of evidence, and assessing the validity of failure to submit this evidence to the court of first instance. Usually, such cases include the unjustified refusal of the judge of first instance to satisfy the petition of the person participating in the case to admit evidence to the case, to appoint an expert examination, to discover evidence or to submit it to the court only after the decision has been made. The circumstances of the case, recognized and certified by the persons participating in the case, accepted by the court of first instance, are not verified in the appellate instance.

New evidence can be either attached to the submitted complaints (submission), or presented directly to the court session. It is preferable when the persons participating in the case get to know them in advance so that they have the opportunity to prepare for the court session.

At the same time, special attention should be paid to those circumstances that are recognized by the persons participating in the case, certified by the protocol of the court of first instance and accepted by the court as reliable. These circumstances are indisputable and obligatory for all participants in the process and therefore do not require both proof and verification of the appeal instance.

New evidence of the stated requirements should be distinguished from new documents confirming the arguments set out in the appeal, which are subject to unconditional acceptance. Such documents, for example, include documents from the post office confirming the applicant's argument about his timely failure to notify the court about the time of the consideration of the case, which led to a violation of his right to judicial protection.

2. Even if there is a limitation of the scope of the consideration of the case, the appellate instance has the right, in the interests of legality, to verify the decision of the first instance court in full. The law does not contain an indication of such cases, therefore, in each specific case, the judges of the appellate instance decide this issue by virtue of their inner conviction.

3. Without fail, regardless of the presence of arguments in the complaints, the appellate instance cannot ignore significant violations of the fundamentals of procedural legislation committed by the court of first instance, which in any case entail the adoption of an illegal decision and, accordingly, its cancellation.

If the court of appeal comes to the conclusion that it is necessary to cancel the decision, then the consideration of the case in the appeal instance is carried out according to the rules of the proceedings of the court of first instance, and thus the verification and subsequent consideration of the case is carried out in full.

The court going beyond the arguments of the appeal (presentation) must be motivated in the appeal decision or ruling.

The disadvantages of the edition of Art. 327.1 of the Code of Civil Procedure of the Russian Federation should include the absence of an indication in it that the court of second instance verifies the decision from the point of view of its legality and validity, since the violation of precisely these requirements serves as grounds for canceling the decision.

4. The powers of the court of appeal during the review of the case are limited by the scope of the appeal and the subject of the decision of the court of first instance, new requirements that were not the subject of the decision of the court of first instance cannot be presented in the appeal.

At the same time, as indicated by the Plenum of the RF Armed Forces in clause 21 of Resolution No. 13 of 19.06.2012, the restrictions provided for by Part 4 of Art. 327.1 of the Code of Civil Procedure of the Russian Federation, do not apply to cases when the court of appeal, in accordance with, proceeds to consider the case according to the rules of production in the court of first instance without taking into account the specifics provided for.

Typically, lawyers make three main mistakes in the appellate court.

Do not check the unconditional grounds for canceling the decision

This is a strong argument for overturning a decision, but it is often overlooked. Lawyers get too carried away with justifying their position and describing the circumstances, but they forget to check if there are any unconditional procedural violations in the case.

If the appellant finds at least one such violation, the court will overturn the decision and reconsider the case according to the rules of first instance, that is, it will reconsider the dispute on the merits. With such a review, it will be possible to submit petitions and statements, present evidence, if for some reason they did not do it in the first instance.

Most often, appellants refer to two violations in their complaints - the court considered the case without a person participating in the case, who was not notified of the time and place of the hearing, or the court made a decision on the rights and obligations of persons who were not involved in the case.

If the judge in the case has been illegally replaced or the territorial jurisdiction has been violated, you can refer to the consideration of the case in the illegal composition of the court.

Check if there is a court record in the case - higher courts often overturn decisions due to its absence. If there is no audio recording of the court session in the case, the courts can also overturn the decision on the same basis.

The appeal will cancel the decision if there is no audio recording, but the information that served as the basis for the adoption of the judicial act was recorded on it. Therefore, indicate in the complaint what important information was on the audio recording. For example, interrogation of witnesses, experts, examination of evidence.

Lawyers are bad at building defense

The lawyer cites in the appeal an endless list of court errors from serious to meaningless.

For example, when he points out that the judge incorrectly applied the rules and was without a robe, the second argument clearly negates the seriousness of the first. The violations themselves are usually formulated by the appellants in general terms - without reference to specific evidence and case materials. Judges rarely take such complaints positively.

Recommendation - Write no more than four or five clearly stated reasons for cancellation. In each argument, it is advisable to describe three points: the error of the lower court, the wrong conclusion to which he came because of this error, and the conclusion to which the court was supposed to come.

Lawyers are passive in appeals

When the court has already considered the case on the merits, it seems to lawyers that their task in the appeal is only to give arguments for and against the court's decision. This is not entirely true. The appeal is the last opportunity to close the evidentiary gaps in the positions of the parties in the case. Take advantage of this.

Try to present evidence material to the case in the appeal, file motions. The appellate instance can accept additional evidence from a party and consider requests for obtaining new evidence, but only in two cases. The first case is if the party justifies that it could not present them in the first instance for valid reasons. The second - if the court of first instance rejected them. That is, in the appeal, it is necessary to once again state all the motions and evidence that the first instance rejected.

If you have not presented evidence in the first instance, but it is essential for the case, still present it in the appeal. If you cannot give valid reasons or they are clearly “drawn”, the likelihood that the court will accept the evidence or satisfy the petition still remains: the court will rather accept new evidence than not accept it at the risk of annulment of the judicial act.

For example, a company filed a lawsuit against the company seeking unjust enrichment. Since the defendant did not provide evidence that he had reasonably withheld the transferred money, the court granted the claim. To the court of appeal, the defendant presented contracts and acts of delivery and acceptance of services, which confirmed the existence of obligations between the plaintiff and the defendant and the basis for payments. The appeal added documents to the case and dismissed the claim. The higher courts agreed with the appellate instance.

Errors in cassation

Lawyers make six common mistakes. The first three were discussed in the section on appeal. Three more errors are characteristic only for cassation.

The arguments of the complaint go beyond the consideration of the cassation

In 99 percent of cases, when the cassation leaves the decisions of the lower courts in force, it points out that the arguments of the complaint are aimed at reassessing the factual circumstances of the case and evidence. And this does not fall within the scope of the consideration of the case in cassation. The cassation only checks whether the courts have correctly applied the norms of substantive and procedural law.

The reason for this practice is that lawyers often copy the text of the appeal into a cassation complaint. For example, in the complaint they write that "the conclusions of the courts do not correspond to the factual circumstances and the evidence presented in the case."

If you want to present new evidence or perform procedural actions that are only possible in the first instance, look for unconditional grounds for canceling the decision.

In your cassation appeal, refer specifically to errors in the application of the norms - these are your main arguments. All arguments that are related to non-research or incorrect assessment of evidence, cite only to confirm the errors of the court.

The arguments of the complaint do not correspond to the pleading purpose

The goal of the clerk is to achieve the cancellation of judicial acts with which he does not agree. To do this, he may ask the cassation court, for example, to adopt a new judicial act on the case, send the case for a new trial, and leave in force one of the decisions or resolutions previously adopted on the case. Sometimes the clerks are asked to adopt a new act on the case - this is the most advantageous for the party, regardless of the circumstances of the case and the arguments that it brings.

The cassation will not be able to adopt a new act, since for this it will have to examine and evaluate the evidence, and the cassation court is not entitled to do this. This discrepancy between the request and the reasons reduces the credibility of the complaint and often raises questions and criticism in the cassation court.

Study the materials of the case and select the possible reasons for the appeal. After that, decide how to formulate the pleading part of the cassation complaint.

Additional documents submitted too late

Often lawyers submit position documents too late and make them incorrectly. Courts usually accept documents right at the hearing, but not cassation documents. If you submit a response to the complaint, additions, written explanations directly to the meeting, the cassation may reject them. For example, the court indicated that the written explanations were received on the eve of the court session and refused to attach them to the case file.

Consider the specifics of the court. For example, the Arbitration Court of the Moscow District may not accept written explanations, as it considers them to be new evidence that the cassation cannot accept. Therefore, format additional explanations as the text of the speech - it is usually accepted by the courts.

An appeal involves a check by a higher court of the correctness of the application of substantive and procedural law, therefore, a motion for evidence in an appeal can be submitted subject to a number of conditions. The applicant must submit a motion for evidence in an appeal in writing, prove the fact that it is impossible to provide such evidence to the court of first instance or justify to satisfy the filing of such an application by the fact of refusal in the consideration of the case on the merits, etc.

Download sample:

Request for Evidence on Appeal

You can download in 0 sec.

Example of a motion for evidence on appeal

To the Kemerovo Regional Court

Applicant: Alexandra Igorevna Kovalenko,

address: 650000, p. Bachatsky,

st. Western, 61

in the framework of the appeal in the case

Request for Evidence on Appeal

By the decision of the Belovsky District Court of the Kemerovo Region of February 14, 2016, on the claim of Alexandra Igorevna Kovalenko against Konstantin Pavlovich Kovalenko on the deprivation of parental rights in relation to a common minor child, Irina Konstantinovna Kovalenko, the claim was denied. The court entrusted the guardianship and guardianship authorities with the duty of monitoring the execution of K.P. Kovalenko. parental responsibilities towards the child.

In accordance with the definition of the above court on the acceptance of the statement of claim for proceedings with reference to Art. 69 of the RF IC and clause 11 of the Resolution of the Plenum of the RF Armed Forces of 05/27/1998, the plaintiff is obliged to provide confirming the existence of a reasonable threat to the life and health of the child, as well as guilt.

A petition to attach documents confirming the fact of non-payment for the maintenance of the child within a 4-year period, as well as to summon witnesses to the court to confirm the fact that the actions of the Respondent indicate a lack of concern for the moral and physical development of the child, his education, preparation for social useful labor, was rejected by the court with reference to the fact that these circumstances are not included in the scope of proof in this civil case.

Since the court of first instance incorrectly determined the subject of proof in the case, since I did not base my claims on the Defendant's ill-treatment of the child, the refusal of the court to call a witness and attach the documents is unreasonable. This circumstance is a valid reason to provide evidence to the court of appeal.

Based on the above, guided by art. 327.1 Code of Civil Procedure of the Russian Federation,

  1. Attach the following evidence to the case file: a resolution of the PCB of the Belovsky District to initiate enforcement proceedings against the Respondent, an extract from the plaintiff's bank account, a certificate of the OCB of the Belovsky District about the amount of the Respondent's alimony debt.
  2. Summon witnesses to the court session to consider the appeal (list attached)

Application:

  1. Copy of the petition
  2. List of witnesses, indicating the addresses of the place of residence and the circumstances that they can explain
  3. Copy of the order of the bailiff-executor
  4. A copy of the certificate on the amount of the alimony debt
  5. A copy of the cash flow statement of the plaintiff's current account

03/11/2016 Kovalenko A.I.

How to Draft and File a Motion of Evidence on Appeal

A motion for new evidence on appeal must contain a description of the circumstances that made it impossible to submit such evidence to the court. It can be:

  • incorrect establishment by the court, which considered the case according to the rules on the merits, the circumstances subject to proving in this civil case;
  • failure of the court to clarify all the legal circumstances of the case;
  • refusal to assist in obtaining documents from citizens and organizations;
  • refusal to satisfy the request for the attachment of documents, additional evidence, etc.
  • improper notification of the party about the time and place of the court session, non-participation of the person for valid reasons (which was known to the court), which made it impossible to submit evidence to the court, etc.

A motion for evidence in an appeal must contain a list of evidence that must be attached and examined during consideration.

The peculiarity of the consideration of the appeal is the absence of a preliminary court session, therefore, it is advisable to file a motion for evidence in the appeal simultaneously with the appeal.

Consideration by the Court of a Request for Evidence in Appeal

When accepting an appeal, the first instance court, i.e. the one who made the corresponding decision checks the existence of new evidence. At the same time, he does not allow the petition for evidence in the appeal on the merits - this is the prerogative of the court of appeal.

The court is obliged to consider the petition and issue a reasoned one, indicating the reasons for which it considers proven or unproven the impossibility of presenting such evidence to the court of first instance for reasons beyond the applicant's control. Such a determination can be made by the court, both in the deliberation room, and with entry into.

The ability to present evidence is one of the key issues in the consideration of a dispute in an appeal. This legal institution gives rise to many disputes around itself, the main of which is whether the court of appeal should accept additional evidence? While, on the one hand, it seems that, undoubtedly, it should, because only in this way can the court make a fair decision that protects the rights and interests of the parties, on the other hand, one cannot but take into account that this goes beyond the powers of the court of appeal, which is a verification instance and must only establish how lawful and substantiated the decision of the first instance court was in the context of the evidence that was already presented earlier. These discussions are of great practical importance, since they find a lively response in judicial practice, which develops ambiguously and sometimes contradictory.

As a general rule, additional evidence is accepted in the appeal only if it was not presented in the first instance for valid reasons.

In other cases, it was established that the court of appeal reasonably and reasonably granted the person's request to add additional evidence to the case file. This was due to the fact that this person was unable to present this evidence to the court of first instance due to the court's refusal to satisfy the motion to postpone the trial.

Resolutions of the CA of the Ural District of 20.02.2018 No. F09-227 / 18 in case No. A60-46916 / 2016, FAS of the Central District of 20.09.2013 in case No. A68-5758 / 12

    The court's decision to refuse to satisfy the claim (statement) due to the absence of the right to claim, missing the limitation period or the period established by Part 4 of Art. 198 of the Arbitration Procedure Code of the Russian Federation, without considering the merits of the stated requirements.

    The presence in the case file of the minutes of the court session contested by the person participating in the case, in terms of the lack of information about motions or other statements regarding the assessment of evidence.

Practical example

The acts of the lower courts in one case were canceled due to the fact that the defendant, when considering the case in the court of first instance, filed a request for an expert examination. Contrary to the requirements of the law, the court of first instance did not reflect the petition filed in the minutes of the court session, and did not issue a ruling (separate or protocol) on it. The court of appeal also did not assess the petition filed by the defendant to admit evidence to the case for the impossibility of submitting it to the court of first instance.

A characteristic feature that unites all the above valid reasons for the impossibility of presenting evidence in the first instance is that they all occur due to a court error.

Alternative opinions

A number of proceduralists believe that the impossibility of presenting evidence to the court of first instance may be due not only to a miscarriage of justice, but also to other objective circumstances:

    evidence existed at the time of the consideration of the case in the court of first instance, but the person did not know and could not have known about their existence;

    additional evidence emerged following the decision of the first instance court.

Judicial practice following this path is very scarce, but there are still examples.

Case studies

In one case, the cassation found that, since the appellate court accepted additional evidence that appeared after the decision of the first instance court, they were not challenged by the representatives of the applicants in the appellate court and the justification for their inaccuracy was not given in the cassation complaints, then the argument about their unjustified acceptance was not may be the basis for the cancellation of the contested decision.

Resolution of the CA of the North-Western District of December 22, 2015 No. F07-943 / 2015 in case No. A56-59748 / 2014

In another case, the court agreed with the arguments of the plaintiff, who indicated that although the evidence was obtained after the decision of the first instance court, it was essential for the consideration of the dispute, and accepted this additional evidence.

Resolution of the Fifth Arbitration Court of Appeal dated 07.07.2014 No. 05AP-8134/2014 in case No. A51-7239 / 2014

Yet the majority of judges proceed from a restrictive interpretation, viewing the appellate court primarily as a test instance. In other words, the appeal checks the decisions of the first instance court for errors, and the activities of the appellate court are aimed at ensuring that these errors are eliminated. With this approach, it is obvious that the party's ignorance of the existence of any evidence, or the appearance of this evidence after the decision has been made, is not a miscarriage of justice and, accordingly, cannot be used as the basis for canceling the judgment. A very extensive jurisprudence has developed that supports this approach.

Practical example

In one case, the court in accordance with Art. 268 of the Arbitration Procedure Code of the Russian Federation refused to satisfy the stated application, since the evidence presented was new, appeared after the decision was made by the court of first instance.

Resolution of the Third Arbitration Court of Appeal dated December 28, 2017 in case No. A33-1980 / 2017

Similar arguments are given in other court decisions - it is noted that the acceptance by appeal of evidence prepared after the decision by the court of first instance is inadmissible (see, for example, the ruling of the Fifteenth Arbitration Court of Appeal dated December 18, 2017 No. 15AP-13139/2017 in case No. A32 -24023/2016, the Eighth Arbitration Court of Appeal dated July 16, 2013 in case No. A46-59 / 2013).

Other possible cases of submission of additional evidence

In what cases, not related to the error of the first instance court, additional evidence can be accepted by the appellate court?

These are, of course, cases of the so-called "full appeal", when the court, in accordance with the provisions of paragraph 6.1 of Art. 268 of the Arbitration Procedure Code of the Russian Federation proceeds to the consideration of the case according to the rules provided for the consideration of the case in the court of first instance. There are no restrictions here for a classic appeal, and either party is free to submit any new evidence.

Practical example

In one dispute, the court proceeded to consider the case according to the rules of first instance due to the fact that the administrative body had not submitted the materials of the case on the administrative offense.

Resolution of the Fifteenth Arbitration Court of Appeal dated June 27, 2018 No. 15AP-5653/2018 in case No. A53-110 / 2018

The court can also proceed to the consideration of the case according to the rules of first instance, if the court violated the mandatory requirements of the law and did not examine the evidence that was subject to mandatory research.

Practical example

The court proceeded to consider one case according to the rules of first instance due to the fact that the court of first instance, in violation of the mandatory requirements of paragraph 4 of Art. 200 of the Arbitration Procedure Code of the Russian Federation did not check the contested non-normative legal act and did not establish whether it complies with the law.

Resolution of the Fifteenth Arbitration Court of Appeal dated June 27, 2018 No. 15AP-2651/2018, 15AP-2668/2018 in case No. A32-42653 / 2017

A separate case, when the court proceeds to consider the case according to the rules of first instance, is the acceptance of an appeal from a person who was not involved in the case (paragraph 2 of Resolution No. 36). Persons not involved in the case have the right to submit additional evidence, provided that the court decision resolves the issue of their rights and obligations. This is due to the fact that when considering the case at the first instance, such persons were not involved and, accordingly, could not exercise their procedural rights and obligations, protect their material rights and interests. Often, the evidence they present can completely change the fate of the judgment, so they have the burden of proving that their interests were indeed affected by the judgment.

The jurisprudence proceeds from the fact that a necessary condition for a person who did not participate in the case to have the right to appeal a judicial act is that this act must be passed on his rights and obligations (see the decision of the Seventh Arbitration Court of Appeal dated 05.02.2018 No. 07AP-11683/2017 in case No. A45-10074 / 2017). In this case, in order to legitimize himself as a proper applicant of an appeal, a person who has not been involved in the case must show how the contested judicial act directly affects his interests (see resolution of the Fifteenth Arbitration Court of Appeal dated October 27, 2016 No. 15AP-15589 / 2016 in case No. A53-14461 / 2016). Only if this fact is proven, the courts accept appeals from third parties not involved in the case (see the resolution of the Fifth Arbitration Court of Appeal dated November 24, 2017 No. 05AP-6598/2017 in case No. A51-1580 / 2017).

Here you should also pay attention to the fact that even if the judicial act does not directly affect the rights and interests of a third party, he still has the opportunity to appeal if his rights and interests are indirectly affected. On this issue, the position of the Supreme Arbitration Court of the Russian Federation is interesting, which recommended that the courts evaluate not only that a judicial act significantly affects the rights and obligations of a third party, but also that the person has reasonable and convincing arguments about the adoption of such an act in violation of the law and therefore the need to cancel it ( see the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 22, 2014 No. 12278/13 in case No. A19-625 / 2012).

In addition, para. 2 p. 2 art. 268 of the Arbitration Procedure Code of the Russian Federation establishes the provision that, in order to substantiate objections to an appeal, a person has the right to submit additional documents. Such documents are accepted and considered by the arbitration court of the appellate instance on the merits. In this case, the rule on the need to justify that the reasons for the failure to submit evidence to the court of first instance were valid does not apply. This provision is also confirmed in numerous judicial practice (see, for example, the ruling of the Fifth Arbitration Court of Appeal dated 06.09.2017 No. 05AP-5178/2017 in case No. A51-9568 / 2017, dated 06.09.2017 No. 05AP-5178/2017 on case No. A51-9568 / 2017, the Fifteenth Arbitration Court of Appeal dated May 14, 2018 No. 15AP-5584/2018 in case No. A32-46327 / 2016, the Third Arbitration Court of Appeal dated June 19, 2018 in case No. A33-12978 / 2017).

But there are several important nuances here. Firstly, we are not talking about all the evidence, but only about the documents, which follows from the literal interpretation of par. 2 p. 2 art. 268 APC RF. Secondly, the applicant of the response to the appeal needs to be careful with what circumstances are supported by additional evidence. The essence of this institution lies in the so-called principle of "equal arms", according to which the party against whom the appeal is directed has the opportunity to present additional evidence in order to provide this party with equal opportunities to protect their rights and interests. In this regard, additional evidence can only support those arguments that are counterarguments to the arguments of the appeal. The arguments of the person aimed at defending their initial position, even if stated in the response, can be confirmed by additional evidence only in compliance with the general rules for the presentation of additional evidence in the court of appeal. Thus, the courts refuse to accept additional evidence related not to the applicant's counter-arguments to the appeal, but to his initial arguments (see, for example, the decision of the Eighth Arbitration Court of Appeal dated 12.02.2018 No. 08AP-14988/2017 in case No. A81-6181 / 2013).

"Paradoxes" of presenting additional evidence

After analyzing the provisions of the legislation and judicial practice, we come to an important conclusion: despite the fact that, as a general rule, additional evidence can only in rare cases be accepted by the court of appeal, the legislator still motivates the courts to accept additional evidence, if it matters for a fair resolution spore. This is evidenced, first of all, by the provisions of paragraph 26 of Resolution No. 36: the acceptance of additional evidence by the court of appeal cannot serve as a basis for canceling the ruling of the court of appeal; at the same time, the rejection of new evidence by the court of appeal if there are grounds for that, provided for in Part 2 of Art. 268 of the Arbitration Procedure Code of the Russian Federation, may by virtue of Part 3 of Art. 288 of the Arbitration Procedure Code of the Russian Federation be the basis for canceling the ruling of the court of appeal, if this led or could lead to the issuance of an incorrect ruling.

Thus, the courts cancel judicial acts of lower instances, in particular, in view of the fact that the court, in violation of the provisions of the arbitration procedural legislation, did not accept additional evidence (see, for example, the resolution of the AC of the Moscow District of January 27, 2016 No. F05-19260 / 2015 in case No. A41-12495 / 15).

From the analysis of paragraph 26 of Resolution No. 36 and the provisions of Art. 268 of the Arbitration Procedure Code of the Russian Federation, it follows that in order for evidence to be accepted by the court of appeal, they must simultaneously meet two criteria:

    they were not presented to the trial court for good reason;

    they must be relevant and valid.

In addition, from the provisions of clause 7 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03.31.97 No. 12 "Review of the practice of applying the Arbitration Procedure Code of the Russian Federation when considering cases in the cassation instance" it follows that if the court of appeal accepted and considered evidence without justifying the impossibility their submission to the court of first instance, then the decision of the court of appeal, being lawful and justified, cannot be canceled only on this basis.

Practical example

Considering one case, the court of cassation, although it recognized the acceptance of additional evidence as a violation of procedural law, noted that such a violation did not lead to the adoption by the court of appeal of an unjustified or illegal judicial act, and upheld the ruling of the court of appeal.

Resolution of the Federal Antimonopoly Service of the Moscow District of 10.02.2003 No. KG-A40 / 202-03

Other courts come to similar conclusions (see, for example, the resolution of the FAS of the North-West District of 05.11.2009 in case No. A42-4633 / 2007).

Accordingly, it can be concluded that the court cannot simply not accept the evidence only because of the disrespectfulness of the reasons for not submitting them to the first instance - it must still comprehensively investigate them (see resolution of the FAS of the North-Western District of 02.07.2004 No. A56-30979 / 03 ).

As for the presentation of additional explanations, here the position of the courts is unambiguous: additional explanations are accepted by the court of appeal if they were brought to the attention of the parties in advance (see the resolution of the Eighth Arbitration Court of Appeal dated 12.02.2018 No. 08AP-16337/2017 in case No. A81-6181 / 2013).

In any case, if the party that did not present evidence in the first instance, behaved in bad faith, abused its rights and deliberately deprived the counterparty of the opportunity to get acquainted with the evidence, then such evidence in any case cannot be accepted by the court of appeal. This is indicated by the Plenum of the Armed Forces of the Russian Federation in its resolution of June 19, 2012 No. 13 "On the application by courts of the norms of civil procedural legislation governing proceedings in a court of appeal", which, although it contains prescriptions for courts of general jurisdiction, is actively used by analogy by arbitration courts in part unfair behavior of the applicant of additional evidence, as evidenced by numerous judicial practice (see the decisions of the Fifteenth Arbitration Court of Appeal dated June 21, 2017 No. 15AP-8659/2017 in case No. A32-8087 / 2017, Thirteenth Arbitration Court of Appeal dated January 21, 2015 No. 13AP -24741/2014 in case No. A56-27093 / 2014).

Thus, the institution in question is indeed controversial and raises many questions from both practitioners and theorists. For example, if a person speaks about the impossibility of submitting evidence in the first instance, does this mean that a local subject of evidence appears in the case, and therefore, it is necessary to settle what means of evidence can be used in this case?

So far, the legislator does not give an unambiguous answer, nor does it establish a clear understanding of the court of appeal only as a verification instance, to which additional evidence cannot be submitted, or as an instance reconsidering the decision on the merits, which can and should perceive additional evidence that is significant for the case. In such conditions, practicing lawyers should focus mainly on the jurisprudence prevailing in a particular region, and also remember about the inadmissibility of abuse of procedural rights.

According to the Federal Law of December 29, 2010 No. 433-FZ, from January 1, 2013, the appellate procedure for verifying court decisions1 is in full force. According to V.V. Ershova appeal proceedings - one of the forms of revision of court decisions, which is an independent stage of the criminal process, which has a certain circle of participants, its specific tasks, which differs from other stages in the procedure for procedural proceedings in the case and ends with the adoption of the final decision for this stage.

According to Part 1 of Art. 389.13 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Criminal Procedure Code of the Russian Federation), criminal proceedings in the court of appeal are carried out in accordance with the procedure established in chapters 35-39 of the Criminal Procedure Code of the Russian Federation, with the exceptions provided for in Chapter 45.1 of the Criminal Procedure Code of the Russian Federation3. So, in Part 1 of Art. 240 of the Code of Criminal Procedure of the Russian Federation, the court of first instance must directly examine the entire body of the collected evidence in the criminal case. Their assessment is the basis for the court's decision on the guilt or innocence of a person's crime. However, in accordance with Part 4 of Art. 389.13 of the Code of Criminal Procedure of the Russian Federation, the court of appeal only verifies the evidence. In this connection, a problem arises when determining the limits of the examination of evidence in the court of appeal. According to clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 27, 2012 No. 26, verification of evidence means the study of evidence that was assessed by the court of first instance, as well as the study of evidence in the case that had not been previously examined by the court of first instance, and the study of new evidence submitted by the parties 4. Thus, there are two directions in the activities of the court of appeal for the study of evidence: 1) verification of evidence that has already been assessed by the court of first instance; 2) research of new evidence.

In order to understand the scope of the powers of the court of appeal to study evidence that has already been assessed by the court of first instance, let us turn again to clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 27, 2012 No. 26, according to which the study of evidence that has been assessed by the court of first instance, occurs according to the rules established by Art. 87-89 and Chapter 37 of the Code of Criminal Procedure of the Russian Federation (with the peculiarities provided for by Part 3-8 of Article 389.13 of the Code of Criminal Procedure of the Russian Federation). In this regard, it is necessary to dwell on part 7 of Art. 389.13 of the Criminal Procedure Code of the Russian Federation, according to which the court of appeal, with the consent of the parties, has the right to consider an appeal, presentation without verification of evidence that was examined by the court of first instance. We consider the provisions of Part 7 of Art. 389.13 of the Code of Criminal Procedure of the Russian Federation are one of the main principles of a valid appeal. The Criminal Procedure Law does not oblige the court of second instance in each specific case to check the correctness of the legal assessment of all evidence that has already been the subject of investigation by the court of first instance, to re-examine it. Such evidence is rechecked only in cases where the appellate court considers it necessary, or when the parties insist on it.

According to V.P. Bozhiev, the criterion for determining the scope of the study of evidence in the court session of the court of appeal is its sufficiency to ensure an objective and impartial verification of the arguments contained in the appeals (submissions) and the issuance of a ruling or a new judgment5. However, in the theory of criminal procedure, there are different views on this issue. A certain part of the researchers criticizes the possibility of making a new decision in the court of appeal without directly examining all the evidence. Supporters of this position believe that the consideration of the case in the appeal presupposes a new, repeated, examination of the evidence, on the basis of which the validity of the arguments of the appeal (presentation) is verified. This opinion is also based on the fact that, due to the staged nature of criminal proceedings, the information set forth in the final document of one stage of the process is a version for the subjects of proof, acting at the next stage. This understanding of the appeal presupposes a mandatory revision at the stage of appeal proceedings, regardless of the arguments of the parties. In accordance with this position, the consideration of the case in the court of the second instance is a re-trial. And if any evidence is not examined by the court of appeal, then the appeal in its decision cannot refer to them6. According to another point of view, verification of evidence already examined by the court of first instance is not required without fail in the court of appeal. However, this does not prevent the courts of appeal from referring to them in the appeal decision (evidence is examined by analyzing and comparing the written materials of the criminal case).

In the absence of doubts about the reliability of the evidence, which was examined according to the minutes of the session of the court of first instance, the evidence is perceived by the court of appeal as such, they are only checked, since it is the verification of evidence that is referred to in Part 4 of Art. 389.13 of the Code of Criminal Procedure of the Russian Federation, by studying the written materials, and all evidence is subject to assessment by the panel of judges in the deliberation room, along with new evidence presented by the parties and examined in the court session of the appeal instance7. We believe that the court of second instance should not conduct a direct re-examination of the evidence in every case, since the purpose of the court of appeal is to establish the correctness of the previously evaluated evidence contested by the parties, as well as to study new evidence in order to make a lawful and well-grounded decision. The above opinion applies not only to material evidence (protocols, audio recordings, video recordings), but also to repeated interrogations of witnesses. By virtue of clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 27, 2012 No. 26, witnesses interrogated in the court of first instance are questioned by the court of second instance only if the court finds their summons necessary. The court, when deciding to re-examine such witnesses, must take into account whether their testimony will be relevant to the conclusion about the legality, validity and fairness of the sentence. Providing the court with freedom in deciding whether to call witnesses favorably affects the quality, speedy consideration of the case in the court of appeal8. Thus, a full, direct investigation of all evidence is carried out only in the presence of circumstances indicating a violation of the Code of Criminal Procedure of the Russian Federation committed by the court of first instance, as well as at the request of the parties.

In the second direction of the activity of the court of appeal on the study of evidence, more difficulties arise. It is noteworthy that in Part 1.1 of Art. 389.6 of the Code of Criminal Procedure of the Russian Federation, the legislator, speaking about the study of new evidence, meant both the evidence collected at the stage of preliminary investigation, available in the case materials, but not investigated by the court of first instance, and information directly submitted to the court of appeal, which has not yet been recognized as evidence ... According to Part 1 of Art. 74 of the Code of Criminal Procedure of the Russian Federation, evidence in a criminal case is any information on the basis of which the court, prosecutor, investigator, inquirer, in the manner determined by the Code of Criminal Procedure of the Russian Federation, establishes the presence or absence of circumstances to be proved in the course of criminal proceedings, as well as other circumstances relevant to criminal case.

Part 1.1 of Art. 389.6 of the Code of Criminal Procedure of the Russian Federation we are talking about evidence, and not about additional materials provided to the court of second instance for direct research, which are provided for in Part 4 of Art. 389.13 of the Criminal Procedure Code of the Russian Federation. Based on this, we believe that it is unlawful to use the term "new evidence" to the materials submitted to the court of appeal for the first time for direct study, since they were not the object of the second instance's analysis, and we consider it more appropriate to use the phrase "additional materials". At the same time, there is no definition of “additional materials” in the legislation. In clause 25 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 No. 1, additional materials were understood as materials not previously submitted, not examined in the court of first or cassation instance. These included characteristics, certificates of awards, disability, copies of court decisions that entered into legal force9. However, in relation to the current Criminal Procedure Code of the Russian Federation, the category “additional materials” is interpreted differently.

These include both materialized objects and documents (expert opinions, video and audio recordings, photographs), which are attached to the case as evidence10. Thus, such materials, in fact, are evidence, but they have not yet been processed procedurally, therefore, they are recognized as such in the court during the hearing of the court of appeal, therefore they are called additional. At the same time, we consider it expedient, in order to prevent different interpretations of this concept, to supplement Article 5 of the Code of Criminal Procedure of the Russian Federation and state it as follows: instances recognized as evidence after examination in a court session of the court of appeal ”. Another characteristic feature is inherent in the criminal procedure law, expressed in the fact that new evidence is examined in the court of appeal only if there is a request to do so11. Moreover, the person who submitted the petition must justify the impossibility of submitting new evidence to the court of first instance due to reasons beyond his control, and the court must recognize them as valid. We agree with the wording of Part 11 of Art. 389.6 of the Code of Criminal Procedure of the Russian Federation, since abuses by the parties of the right to present new evidence are suppressed, and the principle of considering a case within a reasonable time is observed. According to A.V. Kudryavtseva, V.P. Smirnov, the procedure for the judicial investigation should be organized in such a way that such behavior of the parties is not encouraged when they "save" evidence

for the court of second instance, as well as for the courts of first instance to properly and fully consider criminal cases, not hoping to correct mistakes in the court of appeal12. At the same time, we agree with the opinion of V.M. Lebedev said that refusal to receive additional information, which, even with a small degree of probability, may be useful for the correct resolution of the case, is more dangerous for justice than obtaining information that is not related to the subject of proof. It should be noted that according to the results of our study of appeal practice in the Judicial Collegium for Criminal Cases of the Supreme Court of the Republic of Bashkortostan, out of the 50 court decisions studied, only two decisions were attached new materials, which were then investigated. Thus, during the court session, the testimony from the place of service in the army, from the hand-to-hand combat section of the Military-Patriotic Club, the discharge epicrisis from the hospital and the certificate of training in the technical school, which were then examined by the court, the description of the correctional institution, and the statement from the victim, were submitted15. Thus, the appellate court is the only means of eliminating the errors of the first instance court, procedural violations committed at the stage of the trial, as well as a means of preventing the entry into force and execution of an illegal decision. This shows the importance of the court of second instance and its difference from the following stages of the criminal process. As a verification stage of legal proceedings, the appeal implements the right of citizens to an additional opportunity to protect their legitimate interests.

Magadieva Z.M.,

Tags:, Previous post
Next post