Appealing a court decision. How to file an appeal or cassation complaint Printable versionLast update: 27.11.2020
Sometimes there are such situations when citizens have become participants of judicial process and do not agree with court decision or suppose that pronounced decree is unfair.
Court decision which didn’t come into legal force, can be filled on appeal. Right of appeal of court decision belongs to the sides and other persons participating in the case. Right of lodging a protest belongs to the prosecutor participating in case. Attorney general of the Republic of Kazakhstan and his deputies,the prosecutors of the regions and the prosecutors and their deputies equivalent to them, prosecutors of the districts and equal to them prosecutors and their deputies, within their competence, have the right to appeal against the decision, regardless of participation in the consideration of the case. Appeal can be filled also by the persons not involved in case participation, but in respect of whose rights and obligation the court made a decision. Appeals, oppositions must be filled to the court which pronounced a decree. They are filled to the court with the copies by the number of persons, participation in the case. In necessary cases judge can demand from the person submitting the appeal to provide copies of written evidence by the number of persons participating in the case. Appeal complaints and protests can be filed within one month from the date of the decision in the final form, with the exception of cases established by the Civil Procedure Code of the Republic of Kazakhstan, and by persons who did not participate in the trial from the date of sending a copy of the decision to them. Appellate complaints, protests in cases of challenging decisions, opinions, orders of the authorized body on the basis of the audit of public procurement can be filed within ten days from the date of the decision.
What should the appeal contain?
Appeal complaint, petition of prosecutor must contain:
- the name of the court to which appeals are addressed, the petition of the prosecutor;
- the name of the person filing the appeal, the petition of the prosecutor;
- appealed or reviewed by the appeal of the prosecutor's decision and the name of the court that issued this decision;
- an indication of what constitutes unlawfulness or unreasonableness of a court decision, as a rule, with reference to the laws applicable and the materials of the case;
- an indication of the part in which it is necessary to verify the legality of the appealed or reviewed decision on the appellate petition of the prosecutor and the modification of which the person filing the complaint, the petition of the prosecutor, requires;
- list of documents attached to the complaint, the request of the prosecutor;
- the date of filing the complaint, the petition of the prosecutor and the signature of the person filing the complaint, the petition of the prosecutor. A power of attorney or other document certifying the representative's authority should be attached to the complaint signed by the representative if there is no such document in the case.
When filing a complaint, bringing a petition of the prosecutor in the form of electronic documents, they are certified by an electronic digital signature of the person, his or her representative, or his representative. Electronic copies of documents are attached to the complaint, the request of the prosecutor in the form of electronic documents.
In the appeal, the petition of the prosecutor can not contain claims that are not declared in the court of first instance.
The reference to new evidence that was not submitted to the court of first instance is admissible if the complaint, the prosecutor's request contain a justification for the impossibility of submitting them to the court of first instance, including if the person was not brought to trial in the court of first instance, and if a petition for their investigation and (or) reclamation was submitted to the court of first instance, but it was left without satisfaction .
In what cases appeal can be returned to the person who filled it?
Appeals complaint, the petition of the prosecutor is returned to the person who submitted them, in cases:
- failure in timely performance of judge’s instructions;
- by the request of the person who filled the appeal or opposition;
- if the term of appeal is expired and appeal does not contain the petition about its recovery;
- if a complaint, a protest is filed by a person who does not have the right to file or sign it;
A private complaint may be lodged with the prosecutor on the determination of the return of the appellate complaint, the petition of the prosecutor.
Entered into legal force judicial acts of local and other courts in case of observance of the appellate procedure of their appeal, as well as judicial acts of the specialized judicial collegium of the Supreme Court can be reviewed in cassation by the Supreme Court.
Judicial acts on cases are not subject to revision in cassation procedure:
- considered in the simplified procedure provided by Chapters 12 and 13 of the Civil Procedure Code;
- an amicable agreement, an agreement on the settlement of a dispute (conflict) in the order of mediation or an agreement on the settlement of a dispute in the order of a participatory procedure;
- related to the property interests of individuals with the amount of the claim less than two thousand monthly calculation indicators and legal entities with the amount of the claim less than thirty thousand monthly calculated indicators;
- terminated in connection with the refusal of the claim;
- on the resolution of insolvency, as well as on disputes arising in the framework of the rehabilitation procedure and bankruptcy procedure, including the recognition of transactions concluded by the debtor, invalid, the return of the debtor's property, collection of receivables from claims of a bankrupt or rehabilitative manager.
The judicial acts of local and other courts that have entered into legal force in case of non-compliance with the appellate procedure for their appeal, as well as in the cases mentioned above, can be reviewed on appeal by the Chairman of the Supreme Court and the protest of the Prosecutor General, if there are the following grounds:
- cases where the implementation of the adopted resolution may lead to serious irreversible consequences for life, health of people or for the economy and security of the Republic of Kazakhstan;
- cases where the decision adopted violates the rights and legitimate interests of an undefined circle of persons or other public interests;
- cases where the decision adopted violates the uniformity in the interpretation and application of the rules of law by the courts.
An application, a protest against the decisions, decisions of the court of appeal can be submitted within six months from the date of their entry into legal force.
In case of missing the deadline for appealing court documents on appeal, the petition may be submitted to the court of cassation after the first instance court has reviewed the application for restoring the appeal period, and in case of refusal, after consideration of the private complaint, protest, appeal by the appellate court.
What should be indicated in the cassation complaint?
Applications for review of the judicial act in cassation order, submitted to the Supreme Court, and on bringing an appeal by cassation, submitted to the General Prosecutor's Office, must contain:
- the name of the court or official to whom the petition is addressed;
- the name of the person submitting the application and the person in whose interests it is served, his place of residence or location and the procedural position in the case;
- transfer of persons participating in the case, indicating their place of residence or location;
- an indication of the courts that considered the case in the first instance, the appellate instance, and the content of the decisions they adopted;
- an indication of a judicial act subject to review, a protest;
- the indication of what constitutes a violation of the rules of substantive and procedural law and what the request of the person submitting the petition is;
- in the case of filing an application on the grounds provided for in part 6 of Article 438 of the Civil Procedure Code, the petition shall indicate the exclusivity of the grounds for review of judicial acts.
If the petition is filed in the interests of a person who did not participate in the case, it should indicate which rights of that person are violated by the challenged judicial act.If the petition was earlier submitted to the court of cassation and was returned, the motivation should indicate the reasons for the return.The petition must be signed by the person who filed it. When submitting an application in the form of an electronic document, it is certified by an electronic digital signature of the person who filed it. To the application submitted in the form of an electronic document, copies of the documents mentioned above are attached in electronic form.A document confirming payment of the state duty in the amount established by the Tax Code must be attached to the petition for challenging the judicial act.