January 17 2012
On January 1 2012 amendments to the Civil Procedure Code came into effect by virtue of Law 358-FZ. One of the principal changes is that a full appeal stage - allowing for the re-examination of evidence presented at first instance - has been introduced into litigation procedure. Previously, a court judgment could be appealed only if the ruling had been issued by a justice of the peace. The amended Article 320(1) of the code now stipulates that decisions of a first instance court that have not yet entered into force may be appealed through the appeal procedure.
In addition to the parties to a dispute, persons that were not involved in the proceedings may file an appeal if their rights or obligations are affected by the court judgment.
Cases in the appellate court will be examined by panels of judges, with the exception of appeals against resolutions of justices of the peace that have not come into legal force - such decisions will continue to be examined by judges of the relevant district courts sitting individually.
The appellate court will hold a hearing to re-examine the case under the rules that applied in the first instance court. In doing so, the appellate court will assess all evidence presented in the original proceedings, as well as any new evidence. This point is highly significant, as Article 390(2) of the code states that the Court of Cassation is not entitled to reach findings of fact (or to consider matters as proven) if they were not established or were rejected by the first instance court or an appellate court. Moreover, the Court of Cassation cannot rule on the credibility of evidence. Therefore, parties cannot ask the court to consider new evidence; they are limited to presenting the evidence that was examined and assessed by the first instance court and the appellate court.
The amendments change the time limit for filing a cassation appeal. Previously, an appeal had to be filed within 10 days of the date on which the justice of the peace issued the decision in its final form. The deadline is now one month from the date on which the decision is finalised.
The amended code also stipulates a different timeline for the entry into force of a judgment that has not been appealed. In accordance with Article 209, judgments that have not been appealed enter into force when the appeal period expires. This period has also been extended from 10 days to one month.
After examining the appeal or petition, the appellate court may:
There have been a number of changes in the structure of the code. In particular, a few articles have been added that were previously included in the code, but only by way of reference. For example, provisions have been added with regard to:
The introduction of an additional stage of proceedings, allowing for the appeal of first instance decisions, will help to facilitate the effective protection of the rights and interests of those involved in the legal process. However, in extending the timeframe for appeals and implementation of decisions, the amendments leave court processes more open to abuse, allowing parties involved in the proceedings to act in bad faith to defer the enforcement of court judgments. Including the timeframe for examining an appeal, it is estimated that cases will take an additional three months to pass the appeal stage - one month for filing the appeal and two months for examination. Parties involved in court proceedings - in any capacity - should consider the changes carefully.
(1) The code governs procedures in Russian courts of general jurisdiction that are competent to examine disputes involving Russian and foreign nationals (as well as persons without citizenship) in non-commercial disputes, such as disputes involving consumer rights, employment and divorce.
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