Article 276 of the Arbitration Procedure Code of the Russian Federation. Deadline for filing a cassation appeal

Deadline for filing a cassation appeal with the arbitration court.

The complaint is filed in the court of first instance in the manner prescribed by Article 276 of the Arbitration Procedure Code of the Russian Federation, within a period not exceeding 2 (two) months from the date of entry into force of the appealed court order, decision, resolution of the arbitration court.
A decision made in the framework of simplified proceedings may be appealed to the arbitration court of appeal within a period not exceeding 15 (fifteen) days from the date of its adoption, and in the case of drawing up a reasoned decision of the arbitration court - from the date of adoption of the decision in full.

Where and when to file appeals and cassations

Depending on what type of proceedings takes place, a higher authority of the addressee court is determined to appeal the primary decision.

The appeal is filed through the court that made the decision and is addressed to the court above it. The period during which such an appeal is possible is set at one month from the date of issuance of the contested decision.

The cassation appeal procedure already varies according to branches of law:

in criminal proceedings, the cassation instances are the courts of the constituent entities of the federation (regions, territories, cities, etc.), and the highest level is the Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation. There is currently no deadline for appealing a verdict in criminal cases.
in civil proceedings, cassation is sent to the third instance, following the consideration of the case by the court of first instance and the court of appeal. An appeal may take place within six months from the date of the decision;
cassation appeals in arbitration proceedings are addressed to the arbitration court of the relevant arbitration district. The deadline for submission is 2 months.

How does the time limit for filing a complaint begin to be calculated?

The two-month period for cassation appeal of the decision of the arbitration court of the first instance, which ends the consideration of the case on the merits, begins upon the expiration of a month from the date of the decision, if an appeal is not filed, or from the date of adoption of the decision by the arbitration court of appeal. The date of adoption of the decision, when only its operative part is announced at the court hearing, is considered to be the date of production of the decision in full (a reasoned decision).

The period for appealing decisions of the appellate instance is calculated from the date of their adoption. The date of adoption of the decision of the appellate instance, when only its operative part is announced at the court hearing, should be considered the date of production of the full (reasoned) decision.

Commentary to Art. 276 Arbitration Procedure Code of the Russian Federation

1. According to Part 1 of Art. 276 of the APC, the period for cassation appeal, as a general rule, is two months from the date of entry into force of the appealed judicial act. The beginning of the period for cassation appeal is determined according to the rules of Art. 180 (decision), part 5, art. 271 (resolution of the court of appeal), establishing the moment when decisions and orders enter into legal force.

Accordingly, the two-month period for cassation appeal of the decision of the arbitration court of the first instance, which ends the consideration of the case on the merits, begins after the expiration of a month from the date of the decision, if an appeal is not filed, or from the date of adoption of the decision by the arbitration court of the appellate instance, if the decision is not canceled and not changed on appellate review. The date of adoption of the decision, when only its operative part is announced at the court hearing, is considered to be the date of production of the decision in full (reasoned decision) (paragraph 2, part 2, article 176).

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See: paragraph 39 of the information letter of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 82 “On some issues of application of the Arbitration Procedure Code of the Russian Federation.”

Decisions in cases of challenging regulatory legal acts enter into legal force immediately after their adoption (Part 2 of Article 180, Part 4 of Article 195), therefore the period for cassation appeal of such decisions is calculated from the date of their adoption and is one month from the date of entry into legal force (part 7 of article 195).

To appeal decisions made:

— in cases of challenging an arbitration court decision,

— in cases of issuing a writ of execution for forced execution of an arbitration court decision,

— in cases of recognition and enforcement of decisions of foreign courts or arbitrations, —

a one-month period for cassation appeal is also established, calculated from the date of the ruling (part 5 of article 234, part 5 of article 240, part 3 of article 245).

Determinations in cases of insolvency (bankruptcy) in accordance with Part 3 of Art. 223 can be appealed, respectively, within ten days from the date of acceptance by the appellate court, which does not exclude the possibility of their subsequent appeal (more precisely, an appeal of the appellate decision adopted as a result of the revision of the ruling) to the cassation instance.

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See: clause 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 04/08/2003 N 4 “On some issues related to the implementation of the Federal Law “On Insolvency (Bankruptcy)”.

According to Part 3 of Art. 180, a special procedure for the entry into force of decisions in cases of administrative offenses and some other cases (and determining the beginning of the period for their cassation appeal) may be provided for by the Arbitration Procedure Code or other Federal Law. For example, the two-month period for cassation appeal of decisions in cases of bringing to administrative liability and in cases of challenging the decision of an administrative body on bringing to administrative liability begins after ten days from the date of the decision, if it is not appealed, or from the date of adoption of the decision the appellate instance, unless such a decision is canceled or changed during the appellate review (part 4 of article 206, part 5 of article 211).

The period for cassation appeal of decisions of the appellate instance is calculated from the date of their adoption (Part 5 of Article 271). By virtue of Part 1 of Art. 266, the date of adoption of the decision of the appellate instance, when only its operative part is announced at the court hearing, should also be considered the date of production of the full (reasoned) decision (paragraph 2, part 2, article 176).

Violation of the five-day deadline for sending a copy of a decision or resolution, calculated from the date of their adoption (Part 1 of Article 177, Part 4 of Article 271), does not entail a change in the procedure for the entry of a judicial act into legal force and, therefore, the procedure for calculating the period for cassation appeal. However, these circumstances significantly affect the exercise by persons participating in the case of the right to cassation appeal and therefore have legal significance as valid reasons for missing the deadline for cassation appeal.

The APC does not directly regulate the procedure for calculating the period for cassation appeal of a decision in the event of a decision in the appellate instance to terminate the proceedings on the appeal, leaving it without consideration, i.e. at the end of the appeal proceedings without reviewing the appealed act on its merits. It seems that in such cases, the period for filing a cassation appeal should be calculated from the moment the ruling was made to terminate the proceedings on the appeal, leaving it without consideration, since until that moment there were no grounds for a cassation review: the judicial act did not enter into legal force.

The procedure and deadlines for appealing rulings in accordance with Art. 188 have some special features. The rulings of the court of first instance may be appealed initially exclusively through the appellate procedure. Only the decision of the arbitration court of the appellate instance, adopted based on the results of consideration of the appeal against the ruling of the arbitration court of the first instance, is subject to appeal to the arbitration court of the cassation instance. The rulings of the arbitration court of the appellate instance can be appealed in cassation within a period not exceeding a month from the date of entry into legal force.

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See: paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 N 36 “On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the arbitration court of appeal.”

In cassation proceedings, separately from a judicial act adopted on the merits of the dispute, a ruling made in the form of a separate judicial act can be appealed in cases where an appeal of such a ruling is provided for by the Arbitration Procedure Code or when this ruling prevents the further progress of the case (or may prevent the adoption of a correct decision on case).

2. As a general rule, the deadline for a cassation appeal missed for good reasons can be restored only within the limits provided for in Part 2 of Art. 276 of the APC for a six-month period, also starting from the day the appealed judicial act comes into force. From the moment of expiration of this six-month period, the right of the interested person to cassation appeal ceases.

An exception to the general rule is established in Part 2 of Art. 276 for a person not involved in the case, who has the right to petition for the restoration of the missed deadline within six months from the day when this person learned or should have learned about the violation of his rights and legitimate interests by the appealed judicial act.

According to Part 3 of Art. 117, a petition to restore the deadline for filing a cassation appeal is submitted along with the cassation appeal and is considered individually by a cassation judge within five days; the restoration of the deadline is indicated in the ruling on accepting the cassation appeal for proceedings (Part 4 of Article 276). The petition to restore the period for cassation appeal is considered without notification and without the participation of persons participating in the case (clause 4 of Article 117). The court is considering whether there are grounds for reinstating the deadline for filing a cassation appeal, taking into account the fact that the said six-month period is calculated from the date when the applicant of the cassation appeal learned or should have learned about the violation of his rights or legitimate interests by the appealed judicial act.

Who is eligible to apply?

Persons participating in the case and other persons in cases provided for by the Arbitration Procedural Code (APC) of the Russian Federation have the right to appeal:

parties - plaintiff and defendant;
applicants and interested parties - in cases of special proceedings, in cases of insolvency (bankruptcy) and in other cases provided for by the Code;
third parties;
prosecutor, state bodies, local government bodies and other bodies that have filed a claim with the arbitration court in defense of the interests of other persons in cases provided for by the Code.

The date and time of filing a complaint filed through the “My Arbitrator” system will be considered the date and time of receipt of the document in the system, which is determined by the date and time contained in the notification of receipt of documents in the system. The moment of filing a complaint through the “My Arbitrator” system is determined by Moscow time.

The untimely posting of a judicial act by the court of the first (appeal) instance on the information and telecommunications network “Internet” does not extend the deadline for an appeal (cassation) appeal, but if there is a corresponding petition from the applicant, it is the basis for restoring the missed deadline.

The deadline has been set for appealing to the leadership of the Supreme Court of the Russian Federation to review a specific case

14.08.2018

Estimated reading time: 3 minutes.

Narine Khachatryan

Legal informs about the limitation of the period for appealing to the Chairman of the Supreme Court of the Russian Federation or his deputy in the event of a refusal to transfer a cassation appeal for consideration by the judicial collegium of the Supreme Court of the Russian Federation within the two-month period for a cassation appeal

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The procedure for cassation appeal in the Supreme Court of the Russian Federation of judicial acts on economic disputes provides that the parties, within two months after the district court makes a decision on the case, can file a cassation appeal with the Supreme Court of the Russian Federation (Article 291.1, Part 1 of Article 291.2 of the Arbitration Procedure Code of the Russian Federation) .

A judge of the Supreme Court of the Russian Federation examines the complaint within two months (three if the case is requested), after which he issues either a ruling to transfer the case for consideration by the judicial panel of the RF Armed Forces, or to refuse such transfer (Part 7 of Article 291.6 of the Arbitration Procedure Code of the Russian Federation) .

If the transfer of the case for consideration by the board is refused, the Chairman of the Supreme Court of the Russian Federation or his deputy has the right to disagree with the judge’s ruling, cancel it by his decision and transfer the case for consideration to the board (Part 8 of Article 291.6). At the same time, the legislation on legal proceedings in arbitration courts does not establish either the procedure or deadlines for making such a determination.

In practice, the Chairman and his deputy use this authority when one of the parties to the case approaches them with a request. The deadline for a party to file such a request (complaint) is also not established.

This regulation led to the fact that a party could appeal to the Chairman of the RF Supreme Court or his deputy a long time after the refusal to transfer the case for consideration by the board, and the Chairman could consider such a complaint for an unlimited amount of time.

Legal position of the Constitutional Court of the Russian Federation

The Constitutional Court of the Russian Federation clarified that Part 8 of Art. 291.6 of the Arbitration Procedure Code of the Russian Federation, in its constitutional and legal meaning, suggests that “an appeal from interested persons to the Chairman of the Supreme Court of the Russian Federation, his deputy with a request to disagree with the ruling of a judge of the Supreme Court of the Russian Federation on the refusal to transfer a cassation appeal, presentation for consideration at a court session of the Judicial collegium of the Supreme Court of the Russian Federation and make a ruling on its cancellation and the commission of this procedural action is possible only in the form of a properly executed cassation appeal, presentation and within the two-month period established by law for a cassation appeal

; at the same time, the time for consideration of a cassation appeal or presentation in the cassation instance of the Supreme Court of the Russian Federation should not be taken into account when calculating this period.”

The Constitutional Court of the Russian Federation indicated that a similar approach was previously developed within the framework of regulating the procedure for filing complaints with the Supreme Court of the Russian Federation, provided for by the Civil Procedure Code of the Russian Federation.

What to think about, what to do

At the moment, no changes have been adopted to the Arbitration Procedure Code of the Russian Federation that would regulate the procedure for appealing to the Chairman of the RF Supreme Court or his deputy. However, the Supreme Court of the Russian Federation in its activities is already guided by the approach determined by the Constitutional Court of the Russian Federation.

In this regard, the following must be taken into account:

A two-month period is actually set for the preparation of two complaints: directly a cassation appeal and a complaint to the Chairman of the Supreme Court of the Russian Federation, his deputy for a judge’s decision to refuse to transfer the cassation appeal for consideration by a judicial panel. Consequently, when preparing and filing a cassation appeal, it is necessary to calculate the time in such a way that in case of refusal, there is sufficient time left for filing the complaint with the Chairman or his deputy.
At present, despite the absence in the Tax Code of the Russian Federation of a direct rule establishing the obligation to pay state duty, due to the fact that the Constitutional Court of the Russian Federation has equated in legal status a complaint against a judge’s ruling to a cassation appeal, when filing a complaint against a judge’s ruling in the Supreme Court The Russian Federation requires the presentation of evidence of payment of the state fee for its consideration by the Chairman of the Supreme Court of the Russian Federation or his deputy in the amount established for the consideration of a cassation appeal.
If the deadline has already been missed, applicants have the right to petition for the restoration of the deadline with reference to the establishment of deadlines only by the Resolution of the Constitutional Court of the Russian Federation dated July 12, 2018 (Article 291.2, Article 117 of the Arbitration Procedure Code of the Russian Federation), the content of which runs counter to the previously applied practice of the Supreme Court of the Russian Federation, and the Constitutional Court of the Russian Federation itself (rulings of June 27, 2017 No. 1358-O, 1387-O, 1388-O, dated September 28, 2017 No. 2042-O).

[1] Resolution of the Constitutional Court of the Russian Federation dated July 12, 2018 No. 31-P.

How to appeal a judicial act of the cassation instance

If you are not satisfied with the decision made in the cassation arbitration case, you can file a complaint against this decision - either in traditional written form or electronically. Please note that an electronic complaint can only be submitted through the “My Arbitrator” system.

When filing a complaint you should:

indicate in the header of the document the name of the court where the complaint is being filed; information about the person who is appealing the decision; information about the contested decision (number, date);
in the main part of the complaint, list the errors in the application of legislative norms that were made by the judges during the decision-making process;
indicate which points in the judicial act issued at the cassation stage should, in your opinion, be cancelled;
supplement the document with a copy of the judicial act issued by the cassation;
do not forget about confirmation of payment of the state fee.

The filing of the complaint must take place within the time limits established by law.

Of course, appealing the results of the cassation, as well as the cassation itself in general, is possible only if the appeal stage has been completed. If you miss the deadline for appeal, then both cassation and further appeal to the Judicial Collegium of the Supreme Court of the Russian Federation become impossible in principle.

The review of the judicial act of the district arbitration court issued as part of the cassation process is carried out as follows:

The complaint is sent, in accordance with the Arbitration Procedure Code of the Russian Federation, to the Judicial Collegium of the Supreme Court of the Russian Federation.
The document ends up on the desk of one of the judges of this panel.
The judge examines the complaint and decides whether to refer it to a panel for consideration or to issue a decision to refuse. The judge has two months to make a decision. But this period can be extended to three months if it is necessary to request the case for detailed study.
If a judge transfers a complaint to a panel, it is considered within two months – on its merits.

The result of the consideration of the cassation appeal by the Judicial Collegium (that is, the third-level court) may be:

reversing the entire verdict of a lower court if the interpretation of legal norms turned out to be erroneous;
annulment of only one point from the court decision or several (in this case, the case is returned to the first-level arbitration for review of the case; it is also possible to return the case to the court with a requirement to transfer it to a new judge);
recognition of the court's findings in the arbitration case as corresponding to the rules of law - and, as a consequence, refusal to satisfy the complaint;
refusal to accept a complaint due to errors made in its preparation.

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Are there opportunities to further fight for one’s interests if a refusal is received? Unfortunately, a judicial act adopted by a panel cannot be appealed to the Presidium of the Supreme Court of the Russian Federation. But there remains the opportunity to file a complaint addressed to the Chairman of the Supreme Court of the Russian Federation. The chances, it should be noted right away, are small, but if you are confident that you are right, you should not neglect them. There are precedents when justice triumphed thanks to the stroke of the pen of the Chairman of the RF Supreme Court.

How are time limits calculated in the arbitration process?

Not long ago, a resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 25, 2013 No. 990 was published, which touched upon a number of very pressing issues related to the time limits for consideration of cases in arbitration courts. So…

Do not count holidays

As a general rule, procedural deadlines calculated in years, months and days do not include non-working days (Part 3 of Article 113 of the Arbitration Procedure Code of the Russian Federation). Non-working days are weekends and non-working holidays.

The period begins to run the next day after the calendar date or the occurrence of an event that determines the beginning of the procedural period (Part 4 of Article 113 of the Arbitration Procedure Code of the Russian Federation).

For example, if a court decision was made on February 17, the law gives 10 days to appeal, which begins to be calculated from February 18, and the end date of this period is March 3.

If the New Year holidays and Christmas fall during the period for consideration of the case under simplified proceedings, then this period is increased by eight calendar days.

For example, if the period for consideration of a case under simplified proceedings began on December 10, 2013, its end date is February 18, 2014 (January 1–8 - New Year holidays and Christmas).

Get it done up to 24 hours

If the application (complaint, other document), as well as the amount of money, was submitted by post, transferred or declared to the authority or to the person authorized to receive it before twenty-four hours of the last day of the procedural period, the deadline is not considered missed (Part 6 of Article 114 Agroindustrial Complex of the Russian Federation).

This rule also applies to those cases where the electronic document submission system “My Arbitrator” (https://my.arbitr.ru/#index) was used for filing or transfer, while the day of filing is considered the date of receipt of documents in the system , which is determined by the date contained in the notification of receipt of documents into the system.

The moment of submitting documents using this method is determined by Moscow time.

Give the mail a head start

When calculating deadlines, the time for delivery of postal correspondence must be taken into account.

If, for example, the court has determined a certain period for performing certain actions or eliminating certain circumstances, then the person obliged to do this must do it in a timely manner.

If a person sent a document to the arbitration court by mail without taking into account the time of delivery of correspondence or presentation of documents, then these circumstances cannot be recognized as a justification for the impossibility of timely submission of the document to the court.

It is believed that these actions relate to circumstances depending on the party.

Only the operative part of the decision has been announced

If only the operative part of the decision is announced, but it is not made in full, then from what time is the period for distributing this decision calculated?

If only the operative part is announced at the court hearing, then the period for distributing the decision is calculated from the date of production of the decision in full. The time during which the entire decision was made is included in the period for considering the case and making a decision, provided for in Article 152 of the Arbitration Procedure Code of the Russian Federation.

Time limit for appeal

The period for consideration of an appeal does not exceed two months, including the period for preparing the case for trial and the adoption of a judicial act (Article 267 of the Arbitration Procedure Code of the Russian Federation).

An appeal against a ruling to transfer the case to another court is considered within five days from the date of receipt by the appellate court, along with the materials necessary for its consideration (Part 3 of Article 39 of the Arbitration Procedure Code of the Russian Federation).

Appeals against other determinations are considered within a period not exceeding fifteen days from the date of receipt of the complaint and relevant materials by the appellate court (Part 3 of Article 272 of the Arbitration Procedure Code of the Russian Federation).

If the court of first instance considered only part of the claims, and the rest of the proceedings were terminated (or the claims were left without consideration), as indicated in the decision, then the appeal against this judicial act is considered within two months (Article 267 of the Arbitration Procedure Code of the Russian Federation).

Deadline for cassation

A cassation appeal is considered within a period not exceeding two months, including the period for preparing the case for trial and adopting a judicial act (Article 285 of the Arbitration Procedure Code of the Russian Federation).

This is the general period. The Arbitration Procedure Code of the Russian Federation has also established special deadlines for the consideration of cassation complaints against the rulings of the arbitration court of appeal on the return of the appeal and other determinations that impede the further progress of the case (including the determinations of Part 2 of Article 290 of the Arbitration Procedure Code of the Russian Federation).

Complaints against rulings that complete the proceedings, about termination of proceedings in a case, about leaving a statement of claim (application) without consideration, are considered in cassation within a period not exceeding fifteen days from the date of receipt of such a complaint by the arbitration court of the cassation instance.

If the appeal terminated the proceedings in the case or left the claims without consideration, as indicated in the resolution, then the cassation appeal against this judicial act is considered within the period established by Article 285 of the Arbitration Procedure Code of the Russian Federation, i.e. within a period not exceeding two months.

Cassation appeals against rulings on the return of a statement of claim (statement) and other rulings that impede the further progress of the case and decisions of the appellate court adopted based on the results of consideration of appeals against them are considered within a period not exceeding fifteen days from the date of receipt of such a complaint by the cassation court.

Break in the court session

A break in a court hearing cannot exceed five days (Part 2 of Article 163 of the Arbitration Procedure Code of the Russian Federation). If a longer period is necessary, the court must adjourn the trial.

A break can be made both at a preliminary court hearing and during a court hearing in a court of any instance.

A break may be announced several times, but in total its duration in one court session should not exceed five days.

The break period does not include non-working days (Part 3 of Article 113 of the Arbitration Procedure Code of the Russian Federation).

If a break is announced for a short period and after the end of the break the court session continues on the same day, then the court is not obliged to notify about the announced break, as well as the time and place of continuation of the court session.

A person who was notified of the time and place of the court hearing, but did not appear before the break, is considered notified (Article 123 of the Arbitration Procedure Code of the Russian Federation).

If the continuation of the court hearing is scheduled for another day, then the court must post the relevant information in the “Court Hearing Calendar” information service on its official website no later than the next day.

If a break is announced for one day, the court posts such information until the end of the day the break is announced.

Under such conditions, the requirements of Articles 122–123 of the Arbitration Procedure Code of the Russian Federation are considered to be met.

Adjournment of the meeting

The trial may be postponed for the period necessary to eliminate the circumstances that served as the basis for the postponement, but not more than one month (Part 7 of Article 158 of the Arbitration Procedure Code of the Russian Federation).

When the parties turn to the court or a mediator (including a mediator) for assistance in resolving a dispute, the trial may be postponed for a period not exceeding sixty days (Part 2 of Article 158 of the Arbitration Procedure Code of the Russian Federation).

The meeting may be postponed in case of illness of the judge or for other reasons it is impossible to hold a court hearing by decision of the chairman of the arbitration court - for a period of no more than 10 days (paragraph 2, part 5, article 158 of the Arbitration Procedure Code of the Russian Federation).

The period for which the trial was postponed is not included in the period for consideration of the case (Part 3 of Article 152 of the Arbitration Procedure Code of the Russian Federation).

If, after the resumption of proceedings in the case, the court finds grounds for postponing the trial, the case may be postponed again.

In this case, the period of adjournment of the court session is taken into account when determining a reasonable period of legal proceedings.

The arbitration court has the right to make a protocol ruling on the postponement of the trial and, no later than the next day, publishes information on the time and place of the resumption of the trial on its website in the “Court Calendar” service.

If for some reason the relevant information is not displayed on the website, then the court notifies the persons participating in the case and other participants in the process by telephone, telegram, fax, e-mail or using other means of communication (Part 3 of Article 121 of the Arbitration Procedure Code RF).

If the persons participating in the case and other participants in the arbitration process were not present at the court hearing or the trial was postponed for a period not exceeding ten days, then they may be notified by the court before the start of the court hearing by mail, e-mail or other means, if the court has information about the email address, telephone number, fax number of the person participating in the case.

Extension of the period for consideration of the case

The period for consideration of the case may be extended due to the particular complexity of the case, with a significant number of participants in the process (Part 2 of Article 152 of the Arbitration Procedure Code of the Russian Federation). The existence of circumstances is established during the preparation of the case for trial (Part 1 of Article 133 of the Arbitration Procedure Code of the Russian Federation).

In this case, it is not allowed to extend the period for consideration of the case after its expiration.

It is possible to use acceleration of consideration of a case if the case has not been considered for a long time and the trial is delayed (parts 6 and 7 of Article 6.1 of the Arbitration Procedure Code of the Russian Federation).

The Arbitration Procedure Code of the Russian Federation does not prohibit repeated extensions of the period for consideration of a case, and the period for consideration of the case cannot exceed six months.

The judge’s application to extend the period for consideration of the case is considered by the chairman of the arbitration court no later than the next day from the date of receipt of this application.

A ruling is made on the extension of the period for consideration of the case or on the refusal to extend it, which is handed over to the judge who filed the application and, together with the application for extension of the period for consideration of the case, is attached to the case materials.

A ruling made following the consideration of the issue of extending the period for consideration of the case is not subject to appeal separately from the judicial act that ends the consideration of the case on the merits.

When the period for consideration of the case is extended, this does not exclude the postponement of the trial (parts 2 and 3 of Article 152, 158 of the Arbitration Procedure Code of the Russian Federation).

In this case, the period for which the trial is postponed is not included in the extended period for consideration of the case, but is taken into account when determining a reasonable period of legal proceedings.

If a non-normative legal act is appealed

The period for consideration of cases challenging non-normative legal acts, decisions and actions (inactions) of bodies exercising public powers and officials can be extended to six months (Article 200 of the Arbitration Procedure Code of the Russian Federation). The period for consideration of cases of bringing to administrative liability is no more than a month (Part 2 of Article 205 of the Arbitration Procedure Code of the Russian Federation).

The Arbitration Procedure Code of the Russian Federation does not contain a direct indication of the possibility of extending the time limits for consideration of other categories of cases in the corresponding section of the Arbitration Procedure Code of the Russian Federation:

on challenging decisions and actions (inaction) of an official of the bailiff service;
on challenging decisions of administrative bodies;
on the collection of mandatory payments and sanctions.

Thus, the period for consideration of the designated categories of cases cannot be extended on the basis of Part 2 of Article 152 of the Arbitration Procedure Code of the Russian Federation.

When filing an appeal or cassation complaint

When checking whether the deadline for filing a complaint (appeal or cassation) has been met when sending it by mail, the date for filing the complaint can be determined:

according to the stamp on the envelope;
stamp on the receipt for receiving the letter (receipt with a register for registered mail);
another document confirming the receipt of correspondence -

provided that the receipt (other document) has already been submitted to the appellate or cassation authority on the day the issue of accepting the complaint for proceedings is decided.

If the court has doubts regarding the date of filing the complaint, then the complaint is left without progress, and the applicant is asked to provide a postal receipt.

If different dates are indicated on the stamp and on the receipt, the date of filing the complaint is considered to be the earlier one.

If a complaint is filed through the “My Arbitrator” system, then the filing date will be considered the date and time of receipt of the document in the system, which are determined by the date and time contained in the notification of receipt of documents in the system. The moment of filing a complaint is determined by Moscow time.

The period for filing an appeal (cassation) complaint is calculated not from the date of sending a copy of the prepared judicial act to the persons participating in the case, but from the date of production by the arbitration court of the first (appeal) instance of the judicial act in full (Part 2 of Article 176, Part 1 Article 259 and Part 1 of Article 276 of the Arbitration Procedure Code of the Russian Federation).

If a judicial act is untimely posted on the court’s website, this does not extend the deadline for an appeal (cassation) appeal, but may be the basis for restoring the missed deadline - if there is a petition from the applicant.

The refusal of the appellate court to restore the missed deadline for filing an appeal is not grounds for recalculating the deadline for filing a cassation appeal, provided for in Part 1 of Article 276 of the Arbitration Procedure Code of the Russian Federation.

If a person filed a petition to restore the missed deadline for filing an appeal after the expiration of the deadline for filing a cassation appeal, then this cannot be considered as a valid reason for reinstating such a deadline.

When deciding on the issue of reinstating the missed deadline for filing a complaint with the arbitration court, the court evaluates the validity of the arguments of the person insisting on such restoration.

The deadline for filing an appeal (cassation) complaint can be restored within a six-month period (Part 2 of Article 259, Part 2 of Article 276 of the Arbitration Procedure Code of the Russian Federation). The restoration of the period after the expiration of the specified six months is not carried out (if the petition is filed by a person participating in the case who was duly notified of the trial in the arbitration court of first instance).

Persons not participating in the case, on whose rights and obligations a judicial act was adopted, or persons who did not take part in the court proceedings due to improper notification of the time and place of the hearing, cannot be denied restoration of the missed deadline for filing a complaint solely for the reason missing a deadline. In this case, the deadline for filing a complaint can be restored by the court at the request of this person, if the petition is filed no later than six months from the day when this person learned or should have learned about the violation of his rights or legitimate interests by the appealed judicial act.

If the court made a decision to restore the missed deadline, this is reflected in the decision to accept the appeal (cassation) complaint for proceedings.

If the court refuses to restore the deadline and makes a decision to return the appeal (cassation) complaint, then a ruling is issued.

Copies of documents attached by the applicant in support of the petition, including those not accepted by the court as necessary and sufficient evidence of valid reasons for missing the deadline, are attached to the case materials.

If the fact of missing the deadline for filing a complaint is established after it has been accepted for proceedings, then the court first of all finds out the reasons for missing the deadline. If the reasons are recognized as valid, then the court continues to consider the case, if not, then it terminates the proceedings on the complaint (Clause 1, Part 1, Article 150 of the Arbitration Procedure Code of the Russian Federation).

What reasons may be valid?

The arbitration court of appeal (cassation) reinstates the deadline for filing an appeal (cassation) complaint if it recognizes the reasons for the omission as valid (part 2 of article 259, part 2 of article 276 of the Arbitration Procedure Code of the Russian Federation).

If a person was properly notified of the court proceedings, then, for example, reasons related to their lack of information about the appealed judicial act due to circumstances beyond the control of these persons may be considered valid.

If the applicant indicated these reasons as a basis for reinstating the deadline, then the court checks the presence in the case materials of evidence of proper notification of the applicant about the commencement of the trial.

If the person was not properly notified, then the court considers whether there are grounds for restoring the deadline for filing an appeal (cassation) complaint, taking into account the fact that this period is calculated from the date when this person learned or should have learned about the violation of his rights or legitimate interests of the appealed judicial act.

The following are not valid reasons:

the need to coordinate with a higher authority (other person) the issue of filing an appeal (cassation) complaint;
the presence of the applicant's representative on a business trip (vacation);
personnel changes;
absence of a lawyer on the organization's staff;
change of manager, as well as his absence due to a long business trip or vacation;
other internal organizational problems of the legal entity that filed an appeal (cassation) complaint.

If the complaint is left without action

If the appeal (cassation) complaint is left without progress, the circumstances that served as the basis for leaving the complaint without progress are considered eliminated from the moment the necessary documents or information are received by the court (Articles 263, 280 of the Arbitration Procedure Code of the Russian Federation).

When deciding on the length of time for leaving a complaint without progress, the time required is taken into account:

to eliminate the mentioned circumstances;
sending and delivery of postal correspondence, taking into account the territorial distance of the persons participating in the case.

If a person sent documents by mail shortly before the expiration of the period established by the court, and without taking into account the timing of the provision of postal services, then the untimely receipt of correspondence is not regarded as timely fulfillment of the court’s requirements to eliminate the relevant circumstances. These requirements are considered fulfilled at the time the documents are accepted by the court (Part 7 of Article 114 of the Arbitration Procedure Code of the Russian Federation).

At the same time, documents can be submitted through the “My Arbitrator” system until 24:00 on the last day of the procedural period.

If the complaint is left without progress and the period for eliminating the circumstances that served as the basis for such a decision has expired, and the court does not have information that the applicant has eliminated these circumstances, then the court finds out:

whether the applicant, taking into account the date of receipt of a copy of the determination, had sufficient time to eliminate the circumstances specified in the determination;
whether the court received information about the late receipt of the ruling or other objective obstacles to eliminating the circumstances within the deadline or a petition to extend the deadline.

If the period is sufficient, there is no information about obstacles or a request to extend the period, then the court returns the complaint no later than the day following the day of expiration of the period for leaving the complaint without action (based on clause 5, part 1, article 264, clause 4, part 1 Article 281 of the Arbitration Procedure Code of the Russian Federation).

If the court does not have the information, then it, on its own initiative, sets a new deadline (or, at the request of the applicant, extends the deadline) for leaving the appeal (cassation) complaint without progress, about which it issues a ruling.

If the circumstances are not eliminated within the re-established period, then the complaint with the attached documents is returned to the applicant no later than the day following the day of expiration of this period.

IMPORTANT:

If the New Year holidays and Christmas fall during the period for consideration of the case under simplified proceedings, then this period is increased by eight calendar days.

If the person was not properly notified, the court considers whether there are grounds for restoring the deadline for filing an appeal (cassation) complaint, taking into account that this period is calculated from the date when this person learned or should have learned about the violation of his rights or legal interests of the appealed judicial act.

Ekaterina STUDENIKINA, Candidate of Legal Sciences

Procedures and their results

In appellate proceedings, the decision of the previous instance as a whole is reviewed. The essence of the case is taken into account, and not the procedures and procedural nuances. As a result, the initial decision can be either changed or canceled altogether.

During cassation proceedings in a criminal case, the legality of a sentence that has already entered into force is checked, both in general and for compliance with procedural norms and pre-trial agreements. The result may be that the complaint is left unsatisfied, the verdict is overturned, the case is dismissed, or it is sent for retrial.

In civil and arbitration proceedings, the approach to the consideration of cassation cases is similar. The case materials are checked for full compliance with the norms of substantive and procedural law. The discovery of non-compliance with these standards may serve as a basis for changing the existing decision, even canceling it. Also taken into account are the so-called public interests affected by the case. The arguments and objections set out in the cassation appeal are also taken into account.

In conclusion, let us mention that the time frame for considering appeals under the appellate and cassation procedures varies in different situations, but, in general, the period does not exceed three months , even when the Supreme Court acts as an arbitrator.

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Sample of a cassation appeal to the Arbitration Court

To the Arbitration Court of the Ural District Through the Arbitration Court of the Chelyabinsk Region 454000, Chelyabinsk, Vorovskogo St., 2

Complainant : __________________ (indicate the name and procedural position of the complainant, in this case the Complainant). Address: ___________________________________ Tel: _____________________________ Email: ______________ (It is advisable to indicate the TIN, OGRN, if you are a legal entity)

Persons participating in the case: (There may be many of them. The names and procedural position are indicated, for example, Defendant, Third Party) Address: ___________________________________ tel: _____________________________ email: ______________ (It is advisable to indicate the TIN, OGRN, if these are legal entities)

CASSATION COMPLAINT against the decision of the Arbitration Court of the Chelyabinsk Region and the decision of the Eighteenth Arbitration Court of Appeal Case No. ___________ (Indicate the case number in the first instance)

The Arbitration Court of the Chelyabinsk Region on ____________ 20__ in case No. ______ on the claim of our organization for ____________ (briefly outline the essence of the requirements) made a decision according to which _____________________________________________________ (the operative part of the decision is indicated). By the decision of the Eighteenth Arbitration Court of Appeal dated "___" ______, this decision was left unchanged. We consider the judicial acts of the arbitration courts of the first and second instances to be illegal and unfounded, adopted in violation of the norms of substantive and procedural law. 1. The appealed judicial acts are based on an incorrect interpretation of the rules of substantive law. _________________ (We briefly state the court’s conclusions in accordance with the reasoning part of the decision of the court of first instance or the decision of the court of second instance). In particular, in the resolution of the Plenum of the Armed Forces of the Russian Federation No. ______ dated ___________ it was explained that _______________________________________. The courts did not take into account these clarifications. 2. The court did not evaluate the following evidence _____________________________________________ (list the names, details of the relevant documents, volume numbers and case sheets). Meanwhile, the above evidence clearly indicates that ___________________. 3. During the trial, the Plaintiff filed a petition for ____________________________________. This petition was unreasonably rejected by the courts of both instances, which made it impossible to fully and comprehensively consider the case (it is advisable to indicate the rule of law that was violated by the court). 4. The courts unreasonably applied the statute of limitations. Meanwhile, _________________ (Indicate why the limitation period was applied unreasonably. Please note that in accordance with Article 200 of the Civil Code of the Russian Federation, unless otherwise established by law, the limitation period begins from the day when the person learned or should have learned about the violation your right). By virtue of Article 286 of the Arbitration Procedure Code of the Russian Federation, the Arbitration Court of Cassation verifies the legality of decisions and resolutions adopted by the arbitration court of the first and appellate instances, establishing the correct application of the rules of substantive law and the rules of procedural law when considering the case and adopting the appealed judicial act and based on the arguments contained in cassation appeal and objections regarding the complaint, unless otherwise provided by this Code. (You need to write down exactly what rules of law were violated by the courts of first and second instance). Based on the above, guided by articles _________ (you need to indicate the norms of substantive law), as well as articles 273, 275, 286 of the Arbitration Procedure Code of the Russian Federation.

ASK:

The decision of the Arbitration Court of the Chelyabinsk Region dated "___" _______ and the Resolution of the Eighteenth Arbitration Court of Appeal to cancel and return the case for a new trial to the court of first instance (In accordance with Article 287 of the Arbitration Procedure Code of the Russian Federation, you can make another demand, for example, cancel or change the decision of the court of first instance and (or) the decision of the court of appeal in whole or in part and, without transferring the case for a new trial, adopt a new judicial act).

Appendix : 1. Payment order N ____ dated “__” ____________ 200_ to pay the state fee for filing a cassation appeal. (In accordance with Article 333.21 of the Tax Code of the Russian Federation, the state duty when filing a cassation appeal is 50 percent of the amount of the state duty payable when filing a claim of a non-property nature). 2. Documents confirming the sending of a copy of the cassation appeal to other persons participating in the case (As a rule, these are postal receipts for the number of persons participating in the case). 3. A copy of the decision of the Arbitration Court of the Chelyabinsk Region dated “____” _______ in case No. ________. 4. A copy of the Resolution of the Eighteenth Arbitration Court of Appeal dated “____” _______ in case No. ______.

_____________________________ ______________________________ (position) (last name, initials)

Number of outgoing correspondence ________ and date of filing the complaint: “___” __________ 20__

Note! The cassation appeal and all documents are submitted to the Arbitration Court of the Chelyabinsk Region.

The relevance of the sample for 2021 was checked by Okolnishnikova O.V.

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