Cassation Appeal Research Articles

Regarding the Powers of the Prosecutor to File a Cassation Appeal in Part of the Civil Suit Resolution Initiated by a Victim – Individual

Paragraph 6 of Part 1 of Article 425 of the CPC of Ukraine seems to claim that the prosecutor has the "unlimited" right to file a cassation claim, as the legislator does not provide any conditions or instructions for the existence of certain circumstances in the exercise of the prosecutor’s right to the cassation appeal. At the same time, in practice some situations occur when the prosecutor in the cassation appeal, concerning the significant violation of the requirements of the criminal procedure law, points out the incorrect decision of the civil suit by the courts of the previous instances. The question arises as to whether the prosecutor has the authority to file a cassation appeal regarding the resolution of a civil suit initiated by the victim – an individual. Hence, this publication attempts to prove that on the general grounds of the public prosecution, the prosecutor, as a representative of the prosecution in criminal proceedings, has no right to file a cassation appeal against the verdict of the local court and the decision of the appellate court in part of the civil suit resolution initiated by the victim, an individual, against the accused for claiming damages. It is established that only by exercising the function of claiming damages caused by a criminal offense, in compliance with the requirements of Part 4 of Article 23 of the Law of Ukraine "On Prosecutor’s Office", the prosecutor’s office may carry out activities as to bringing and defending the civil suit, in particular, being a state representative of the citizen and the state interests in court, the prosecutor has the following rights prescribed by the procedure law and the law governing enforcement proceedings: to apply to the court with a claim (application, submission); to intervene in a case initiated by a claim (application, submission) of another person at any stage of the court proceedings; initiate the review of the court decisions, including the case initiated by the claim (application, submission) of another person; to participate in the case consideration; to file a civil suit during criminal proceedings in cases and the procedure prescribed by the criminal procedure law (Part 6 of Article 23 of the Law of Ukraine "On the Prosecutor’s Office")

ON THE POSSIBILITY OF RECALLING AN APPEAL OR CASSATION COMPLAINT OF THE DEFENDER TO THE ACCUSED, CONVICTED

The problems of litigation stages become ever more pressing for their participants, as amendments to the criminal procedural legislation in effect are very frequent. The developing a legal position on one or the other law-related situation, to say nothing about exclusive legal issues, is not something that can be done in a day, and the situation where the judges do not have the same position on an issue is especially upsetting. The legal issue of ability (inability) by the accused, by the convicted to withdraw the appeal or cassation appeal of the defense lawyer is one of those. The fact is obvious and undeniable that in the court practice, this issue was already being resolved multiple time, yet no clear single legal position was developed for the problem. Thus, the panel of judges of the Second Judicial Chamber of the Court in its decision as of 10.05.2018 in case No. 462/4125/16к (proceedings No. 51-357км17) concluded that, by virtue of the requirements of Part 1 of Art. 403, Art. 432 of the Criminal Procedure Code of Ukraine, the petition of the convicted person to refuse the cassation appeal of the defense lawyer cannot be considered in the court of cassation, since another person applied, and not the person who filed the complaint. At the same time, the decision of 03.07.2018 of the panel of judges of the First Court Chamber of the Cassation Criminal Court of the Supreme Court (case No. 448/208/15к, proceedings No. 51-3132км18) contains the opposite conclusion. In particular, that the suspect, the accused or the convicted person has the right to carry out procedural actions and refuse a complaint filed in his interests, unless the participation of a defense lawyer is mandatory or the person is in such a vulnerable position that calls into question the voluntariness of such actions. Similar legal positions have been expressed in other judgments of the Court. Due to the disagreement of the panel of judges of the Second Judicial Chamber with such conclusions, on September 17, 2020, the decisions of this situation were submitted to the Joint Chamber for consideration, and a corresponding appeal was sent to the members of the Scientific Advisory Council. My own considerations, as a member of the Scientific Advisory Council at the Supreme Court, were set out in the scientific opinion of 25.12.2020, so I will try to share them also with the scientific community and a wide range of practicing lawyers. Based on the results of the scientific and practical search, it was proved that the current statement of Part 1 of Art. 403 of the Code of Criminal Procedure of Ukraine requires immediate alignment with the procedural rights of a suspect, accused, convicted person, acquitted person. As well as a defense attorney and with the requirements of such principles of criminal proceedings as discretion, ensuring the suspect, the accused have the right to defense, the adversarial nature of the parties and the freedom to present their evidence and in proving their credibility before the court. The criminal procedural law cannot and should not provide for the obligatory refusal of a cassation appeal by a defense attorney, presented in the interests of an accused, a convicted person, exclusively by the same person - a defense attorney. The participation of a defense attorney in criminal proceedings does not limit the procedural rights of both the suspect, the accused, and the convicted, acquitted. The accused, the convicted person has the right to withdraw the appeal or cassation complaint of the defense lawyer. Restriction of the right to withdraw an appeal or cassation complaint of a defense attorney by an accused or a convicted person may take place in two cases. In particular, if there are grounds for the mandatory participation of a defense attorney in criminal proceedings. And/or if the defense attorney proves that he/she has a justified conviction about the fact of self-incrimination by the accused or convicted , which gives him grounds to take a position that will be different from the will of the accused, convicted, including when appealing court decisions in the appeal and cassation procedure.

SOME PROBLEMS ARISING IN CONNECTION WITH THE CASSATION APPEAL OF THE APPEAL RULING OF THE REGIONAL COURT IN A CRIMINAL CASE

Abstract: the appeal ruling of the regional court on the annulment of the sentence is an intermediate court decision, since the criminal case was not resolved on its merits. It will be possible to review it in the order of selective cassation. The «dimensionless» terms of the cassation appeal allow interested persons to delay the application of the cassation appeal against the decision of the Court of appeal. However, in all cases – and when such a complaint is made immediately, and when later – there are conflicting points. For example, the appeal is accepted for consideration by the court of cassation instance, which may require the materials of the criminal case. But at the same time, this criminal case was sent from the second instance court to the district court for review. These are problematic issues related to the activities of the courts of cassation, on which the position of the Plenum of the Supreme Court of the Russian Federation has not been formed.

До питання про реалізацію потерпілим права на апеляційне оскарження ухвали слідчого судді про скасування повідомлення про підозру

The article is devoted to the analysis of the victim’s right to appeal the decision of the investigating judge to revokethe notice of suspicion. The purpose of the article is to investigate the possibility of realization by the victim or his legalrepresentative or the representative of the right to appeal the decision of the investigating judge to cancel the notice ofsuspicion. The article analyzes the national law enforcement practice of resolving this issue and finds that currently thereis ambiguity in resolving the issue of the possibility of appealing to victims of the decision to cancel the notice, as well asthe actions of the appellate court. Thus, the Resolution of the panel of judges of the First Judicial Chamber of the CriminalCourt of Cassation of the Supreme Court of February 18, 2020 in case № 359/10654/18 expressed the position on thepossibility of appealing against the decision of the investigating judge to cancel the notice of suspicion. Notwithstandingthe position expressed by the Supreme Court in 2020, the Judge of the Kyiv Court of Appeal in case № 756/10189/20(hereinafter – case № 756/10189/20) considered the appeal of the victim’s representative against the decision of theinvestigating judge of the Obolonsky District Court of Kyiv of 25 August 2020 and concluded that it was necessary toreturn the complaint to the victim’s representative as a person who has no right to file an appeal. On February 8, 2021,the Supreme Court by the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation openedcassation proceedings on the cassation appeal of the victim’s representative against the decision of the Kyiv Court ofAppeal of January 18, 2021 to return the appeal. The investigation concluded that, first, the victim or his legal representativeor representative should be given the right to appeal the decision of the investigating judge to revoke the notice of suspicionif it concerns their interests; secondly, in all cases of domestic violence, the victim or his or her legal representative orrepresentative has such a right, as these cases directly concern their life, health, safety, honor and dignity. We believe thatgranting the victim such a right will ensure balance, proportionality in the procedural relationship between the victimand the suspect / accused.Key words: appeal, notice of suspicion, victim, domestic violence, decision of the investigating judge to cancel thenotice of suspicion, the sphere of interests of the victim.

Polish Administrative Court’s Dissenting Opinions in Excise Duty Cases

This article presents the results of the examination dissenting opinions submitted by judges of administrative courts in excise duty cases in the years 2004–2018. The analysis covers the judgments of all sixteen administrative courts in Poland issued in the abovementioned period. These criteria led to the selection of research material covering a votum separatum from 78 judgments issued by administrative courts on excise duty and 60 judgements issued by the Supreme Administrative Court as a result of filing a cassation appeal against administrative court judgments. By using quantitative analysis in the performed case studies, it has been determined that, for example, administrative court judges extremely rarely submit in cases of excise duty votum separatum – about five times per year. Between 2004 and 2018 out of 19,172 judgments issued only to 78 of them issued a dissenting opinion, which is more or less 0.5% of the total. In the course of case studies using qualitative analysis it has been observed, for example, that in the constituent part of the justification - the legal basis of the decision and its explanation – the SAC referred to the arguments expressed in a separate opinion in 41% of judgments.

Novelization of Civil Procedural Legislation of Ukraine in Cassation Review: Panacea or Illusion?

The article analyzes the novelties introduced to the civil procedural legislation in the cassation review. Cassation proceedings in Ukraine’s current civil proceedings engender a post-appellate court decision review, the content and purpose of which are to ensure civil proceeding implementation based on the latter principle application. The author evaluates cassation filters as a positive step in forming the cassation appeal institution. They constitute self-limitation of the Supreme Court’s jurisdiction and are designed to relieve it from reviewing an excessive number of cases. Simultaneously, the current legal regulation of cassation filters (grounds for appealing court decisions) is far from ideal and needs to be improved, given the shortcomings highlighted in the study. The non-parties to the case, possessing the right to cassation appeal, are not always burdened with participation in the case. Using the example of prosecutor participation in the cassation proceedings, the author illustrates how national law confers such rights on persons who did not take part in the case.

Возражения на кассационную жалобу в гражданском судопроизводстве в кассационном суде общей юрисдикции: недостатки правового регулирования

The article is devoted to the problem of legal regulation of the procedure for submitting objections to a cassation appeal in cassation proceedings in cassation court of general jurisdiction. The article points out the absence in the Code of Civil Procedure of a procedure for submitting objections to a cassation appeal taking into account the principle of competitiveness and equality of the parties, and suggests a solution to this problem.

Aplicación del principio del interés superior del niño en las autoriza-ciones judiciales para salir al extranjero: comentario a la sentencia de la Corte Suprema de Chile de 24 de abril de 2018 (Rol-42.642-2017)

The judgment in the cassation appeal on the merits, delivered by the Supreme Court on April 24th of 2018, which decides on the authorization of a mother with her two children to leave the country is analyzed. The individualized judgment is of interest, because the arguments of the highest court mention the benefit of the trip for the children, the technological communication’s means to maintain a direct and regular relationship with the father and the mother’s right to be able to develop professionally and emotionally.

Certain Aspects of Proceedings in Cassation Instance in Ensuring a Fair Trial to a Person

The right of a person to a fair trial is absolute. This right has a long democratic history, without which no democratic society can be imagined. Without this constitutional scope, the right to a fair trial is the basis for the sustainable development of society, as it ensures legal stability. Litigation in the cassation instance is on the top of right-to-court pyramid. The cassation instance is the last instance in the national judicial system, the decisions of the cassation instance are not subject to appeal; secondly, the court ruling in the cassation instance constitute case law, which is an important auxiliary source of law. This confirms that litigation in the cassation instance is one of the most important tools in securing the right to have a court hearing. The extent of the quality of the legal framework regulating cassation litigation points to the right to a fair trial overall. The study focuses on the issues of cassation litigation. The issues of the right of parties to file a cassation appeal (cassation protest) in civil and criminal cases as well as the jurisdiction of the court in deciding the admissibility of a cassation appeal (cassation protest) are analyzed within the multidisciplinary perspective. The aim of the research is to study the legal framework, which determines the right of a party to submit a cassation appeal (cassation protest) in civil and criminal case in the context of court jurisdiction, when deciding on whether to adopt it in order to make proposals for enhancement of the legal framework. There were used the descriptive, analytical and deduction-induction methods as well as the methods of interpretation of legal norms. Using these methods, legislation and the views of legal scholars were analyzed, and conclusions were drawn. 
 Keywords: cassation, court proceedings, right to a fair trial

TIME LIMIT FOR FILING AN APPEAL IN CASSATION BY AN ATTORNEY BY CHOICE, IF THE ATTORNEY APPOINTED EX OFFICIO REFUSED PREPARING IT. CRITICAL COMMENTARY TO THE SUPREME COURT JUDGEMENT OF 23 JANUARY 2020, REF. NO. IV CZ 115/19

The commented court decision of the Supreme Court refers to the issue of setting the time limit for filing an appeal in cassation if an attorney appointed for a party ex officio refused to file appeal in cassation, and then the complaint was filed by the party’s attorney of choice. The Supreme Court supported the position that in such a case, an attorney of choice may effectively file an appeal in cassation within the period open to the attorney appointed for a party ex officio. The commented judgment does not deserve to be approved of. Art. 124 § 3 of the Code of Civil Procedure should be interpreted strictly, since the party’s attorney by choice could have used the institution of reinstating a time limit regarding filing a cassation appeal.

Środki ochrony prawnej w świetle nowego prawa zamówień publicznych — zagadnienia wybrane

Nowe prawo zamówień publicznych wprowadza zmiany w obszarze środków ochrony prawnej w zamówieniach publicznych. W artykule przedstawiono niektóre z nich, dotyczące odwoła-nia, skargi do sądu oraz skargi kasacyjnej. System ochrony prawnej jest jednym z filarów zamówień publicznych, a jego celem jest zapewnienie prawidłowego przebiegu postępowania o udzielenie zamó-wienia publicznego oraz wyposażenie wykonawców w instrumenty prawne gwarantujące im kontrolę działań zamawiającego. Prawidłowość przebiegu postępowania o udzielenie zamówienia publicznego ma kluczowe znaczenie dla sektora zamówień publicznych, z tego powodu system ochrony prawnej powinien być szybki, efektywny oraz łatwo dostępny dla jego uczestników.

Cassatieberoepen tegen criminele vonnissen en arresten in het Leiedepartement, 1796-1813

Summary In the department of the Lys, the cassation appeal against criminal judgments was introduced in 1796 and could be made by both the criminal convicts and the Public Prosecution Service. The first cassation appeal was lodged on 5 May 1796 and the last on 18 December 1813. In total, 187 (24%) of the 779 criminal judgments were appealed in cassation, in 172 cases by 319 criminal convicts and in 15 cases by the Public Prosecution Service. Of those 187 cassation appeals, 167 (89.3%) were rejected and 20 (10.7%) were accepted. In the latter cases, this led to the annulment of the contested judgment and, in most cases, the criminal proceedings were (partially) repeated for an equivalent, nearby criminal court.

Процессуальные сроки рассмотрения жалобы на отказ в передаче кассационной жалобы, представления для рассмотрения в судебном заседании

Процессуальные сроки рассмотрения жалобы на отказ в передаче кассационной жалобы, представления для рассмотрения в судебном заседании

Koncepcje podstaw skargi kasacyjnej w prawie o postępowaniu przed sądami administracyjnymi

Artykuł odnosi się do pojęcia i istoty podstaw skargi kasacyjnej w postępowaniu sądowoadministracyjnym. Ich rozumienie i zakres budziły rozbieżności zarówno w doktrynie, jak w orzecznictwie oraz były przedmiotem wielu sporów. Opracowanie opisuje relację skargi kasacyjnej w postępowaniu sądowoadministracyjnym do skargi kasacyjnej z postępowania cywilnego. Artykuł ukazuje ewolucję poglądów orzecznictwa i doktryny w zakresie rozumienia podstaw kasacyjnych. Przybliża też kwestię możliwości zaskarżania skargą kasacyjną innych niż literalnie wskazanych w ustawie naruszeń prawa. Co więcej, prezentuje uzyskane dzięki zabiegom interpretacyjnym takie rozumienie podstaw skargi kasacyjnej, które zapewnia skarżącym skuteczną ochronę prawną.

Cassatieberoepen tegen criminele vonnissen en arresten in het Scheldedepartement, 1796-1813

Summary In the Scheldt department (Département de l’Escaut), cassation appeal for violation of law against criminal judgments by a Criminal Court was introduced in 1796 and could be made by both the convicted and the Public Prosecution Service. In total, 265 (16, 6%) of the 1595 criminal judgments were appealed in cassation by 373 criminal convicted persons and in 12 cases by the Public Prosecution Service. Of those 265 cassation appeals, 236 (89%) were rejected and 29 (11%) were accepted. The motives that the Court of Cassation applied to aside these 29 judgments were very diverse and related to the violations of law that both the lower investigative bodies and the judges of the Criminal Court had committed in the course of criminal proceedings.

Wznowienie postępowania w słowackim postępowaniu sądowoadministracyjnym

Przedmiot badań: Do 1 lipca 2016 r. w słowackim porządku prawnym nie występowała skarga o wznowienie postępowania administracyjnego, lecz wznowienie postępowania w trybie kodeksu postępowania cywilnego (Občiansky súdny poriadok). W aktualnie obowiązującym akcie nor­matywnym – Spravny Sudny Poriadok – uregulowano w części piątej dwa nadzwyczajne środki prawne przysługujące od prawomocnego wyroku: skargę kasacyjną oraz skargę o wznowienie postępowania sądowoadministracyjnego.
 Cel badawczy: Zakresem badań uczyniono skargę o wznowienie postępowania, próbując ustalić istotę i charakter tego środka prawnego, przesłanki dopuszczalności, a także przebieg postępowa­nia wznowieniowego.
 Metoda badawcza: W opracowaniu wykorzystano przede wszystkim metodę empiryczno--dogmatyczną. Wsparto się nadto metodą historyczną i komparatystyczną.
 Wyniki: Katalog trzech przesłanek pozytywnych skargi o wznowienie postępowania ma miesza­ny charakter: jest to jedna przesłanka zaliczana do tzw. właściwych przyczyn wznowieniowych oraz dwie dotyczące niezgodności zaskarżonego orzeczenia z innymi orzeczeniami wydanymi przez sądy krajowe oraz trybunały i organy międzynarodowe. Skarga o wznowienie postępowania nie ma charakteru dewolutywnego, a jej wniesienie wywołuje skutek względnie suspensywny. Postępowanie ze skargi o wznowienie postępowania sądowoadministracyjnego jest dwufazowe: w pierwszej kolejności (iudicium rescindens) następuje badanie zachowania warunków rozpo­znania skargi o wznowienie. Ten etap kończy się wyrokiem o dopuszczalności wznowienia lub odmową. Następnie przeprowadza się drugi etap (iudicium rescissorium), postępowanie wzno­wieniowe, w którym następuje merytoryczne rozpoznanie skargi.

Gloss to the Judgement of the Supreme Administrative Court of 8 May 2018 (II OSK 1926/17)

<p>By the judgement of 8 May 2018 (II OSK 1926/17), the Supreme Administrative Court dismissed the cassation appeal of the Lublin Provincial Heritage Conservation Officer against the judgement of the Voivodeship Administrative Court in Lublin of 6 April 2017 (II SA/Lu 1119/16), in which the Court found ineffective inclusion of a real estate monument record card (the area of the former Jewish cemetery in Biłgoraj at Maria Konopnicka Street) in the provincial record of historical monuments. The Supreme Administrative Court stressed that although the judgement under appeal was incorrectly reasoned, it was in accordance with the law since there were grounds for declaring the contested act ineffective. The aforementioned judgement deserves attention due to the fact that it expresses the position that it is impossible to apply the general principles of the Code of Administrative Procedure in the proceedings conducted by the provincial heritage conservation officer concerning the inclusion of the record card of a historical monument in the provincial record of monuments. The purpose of the gloss is to refer to this view.</p>

La casación ante el Tribunal Federal Contencioso-Administrativo alemán

Este texto resume los aspectos más relevantes de la casación en la jurisdicción contenciosa alemana (Revision), incluido el recurso de queja contra la inadmisión, después de una breve mirada a los órganos de este orden jurisdiccional.

THE RIGHT OF THE PUBLIC ON PUBLICLY HEARD AND OPEN CRIMINAL PROCEEDINGS IN THE CONTEXT OF PREVENTING CORRUPTION AND ECONOMIC CRIME BY JUDICIAL POWER

The purpose of the paper is the system analysis of legal, organizational, and procedural mechanisms of the realization of the right of the public and mass media on their participation in transparent and open criminal proceedings in the context of preventing corruption and economic crimes within the system of judicial power, as well as the development of scientifically substantiated recommendations for the improvement of the current legislation of Ukraine on the judicial system taking into account the most advanced international practices. The interconnectedness of effective implementation of the principles of transparency and openness of criminal proceedings with the restoration of trust in the judicial system from the side of civil society has been substantiated. Methodology. To solve the tasks set in the dissertation, the authors have used a complex of general and special scientific methods. Logical and cognitive methods (analysis, synthesis, induction, and deduction) made it possible to study general conditions for the organization and procedure of the implementation of the principles of transparency and openness during the cassation appeal of decisions in criminal proceedings. The system and structural method has assisted to determine the essential and content characteristics of the principles of transparency and openness within criminal proceedings, as well as to reveal their significance and correlation while ensuring the judiciary by the cassation court. The formal and legal method made it possible to reveal the proper legal procedure for implementing the principles of transparency and openness during the criminal proceedings by the cassation court. Modelling method allowed determining the ways to improve the legislation on the judiciary and criminal procedural legislation in part to more effective implementation of the principles of transparency and openness in the criminal procedure of Ukraine. The comparative and legal method was used in clarifying the relationship between the levels of domestic and international legal regulation of the implementation of the principles of transparency and openness of criminal proceedings. Experimental methods were used to construct grounded theoretical and applied provisions that adequately reflect the features and interrelations of the processes of implementing the principles of transparency and openness within criminal proceedings, confirmation or refutation of certain concepts, views, their examination by means of thought or subject experimentation based on practice criteria. Result of solving this purpose is to form the author’s understanding that members of the public (the general public) and mass media cannot be holders of jurisdictional rights, that is, those rights that are exercised in the course of court proceedings by involved persons as a result of their criminal procedural status (parties and other participants in criminal proceedings). That is, members of the public and the general public, as well as members of mass media, who are not entitled to the right for public court proceedings but are subjects to the right to obtain information about public court proceedings, the administration of transparent and open justice. Practical implications. Ensuring reliable public control over the judiciary through the widespread use of mass media will effectively prevent corruption and commission of economic crimes by the judges. Value/originality. Amendments and alterations to the national legislation on the judiciary and the Criminal Procedural Code have been offered, which would facilitate the more effective implementation of the right to transparent and open court proceedings by the public and mass media, ensure public control over the judiciary in the exercise of its procedural activities, and guarantee the right of every one to obtain information on the administration of justice in line with European standards.

PROBLEMS TO RESPECT RIGHTS AND INTERESTS OF PERSONS WHO HAVE NOT PARTICIPATED IN A CASE

The article is devoted to problems of exercising a right on cassation appeal of court decisions by persons who have not participated in a case if a court has decided an issue on their rights, freedoms, interests and (or) duties.According to the first paragraph of article 352 of the Civil Procedure Code of Ukraine, participants of a case, as well as persons who have not participated in the case, if a court has decided an issue on their rights, freedoms, interests and (or) duties, have a right to appeal in appellate court against a decision of the first instance court in whole or in part.However, if a court of the first instance has not decided an issue on rights, freedoms, interests and (or) duties of a person who has not participated in a case, and such an issue has been decided only by an appellate court, this person is still obliged to address with appellate appeal against a decision of the first instance court. It is proved that amendment of legislation in this situation will contribute to full exercise of a right to cassation appeal of a person who has not participated in a case. It should be possible to appeal directly to the cassation court against decision of appellate court which has decided an issue on the rights, freedoms, interests and (or) duties of persons who have not participated in a case.