Appealing a court decision. How to file an appeal or cassation complaint
Sometimes it happens that citizens become trial participants and do not agree with a court decision or believe a decision to be unfair.
For a court decision that didn’t come into legal force, one can file an appeal or an appeal can be submitted by a procurator under the appeal procedure. The right to appeal a court decision belongs to the sides and other participants of a trial. The right to submit an appeal belongs to a procurator participating in a trial. Procurator-General of the Republic of Kazakhstan and his deputies, procurators from regions/procurators equated to them and their deputies, procurators from districts/ procurators equated to them and their deputies have the right to appeal against a court decision within their competence, regardless of participation in a trial. Also, an appeal can be filled by individuals not involved in a trial, but in respect of whose rights and obligations a court made a decision. Appeals and requests are filed to a court which pronounced a decision and provided in a number of copies that correspond to a number of trial participants. Appeals and requests can be filed within one month from the date of final decision pronouncement, except for cases set forth by the Civil Procedure Code of the Republic of Kazakhstan, while for individuals who did not participate in a trial it`s a date of a decision copy obtainment.
What should an appeal contain?
An appeal, a procurator`s request should contain the following:
- name of a court to which an appeal, a procurator`s request are submitted;
- name of a person filing an appeal/a procurator`s request;
- an appealed or reviewed decision based on a procurator`s request and name of a court that issued this decision;
- an indication to what constitutes unlawfulness or groundlessness of a court decision usually with reference to the applicable laws and case materials;
- an indication to a part in an appeal, legality of which it is necessary to verify and to changes that a person filing an appeal/ a procurator`s request requires;
- list of documents attached to an appeal/a procurator`s request;
- date of filing an appeal/a procurator`s request and signature of a person filing an appeal/a procurator`s request. A power of attorney or another document certifying a representative's authority should be attached to an appeal signed by a representative if there is no such document.
When filing an appeal/a procurator`s request in the form of electronic documents, those should be certified by a digital signature of an individual, representative. Electronic copies of documents are attached to an appeal/a procurator`s request.
An appeal/a procurator`s request cannot contain claims that were not declared in the court of first instance.
Reference to new evidences that were not submitted to a court of first instance is permitted if an appeal/a procurator`s request contains a justification for the impossibility of submitting them to a court of first instance, including if an individual was not brought to trial in a court of first instance, and if a request for investigation and (or) reclamation was submitted to a court of first instance, but it was left without satisfaction.
In what cases an appeal can be sent back to a person who filed it?
An appeal/a procurator`s request can be sent back to a person who filed it, in the following cases:
- failure to perform a judge’s instructions in a timely manner;
- by a request of a person who filed an appeal/a procurator`s request;
- if the validity term of an appeal is expired and there is no application on its recovery or refusal to recover;
- if an appeal/a procurator`s request is filed by a person who does not have the right to file or sign it.
Decision on sending back of an appeal/a procurator`s request is made by a court not later than five working days:
- in case provided for by subclause 1) of the part 1 of Article 407 of Civil Procedure Code of the Republic of Kazakhstan: from the date of expiry of period set by a court;
- in other cases: from the date of an appeal/a procurator`s request submission.
An individual appeal can be filed against a decision to send back an appeal/a procurator`s request.
Judicial acts of local and other courts that entered into legal force under the appellate procedure of their appeal can be reviewed under cassational procedure by the Supreme Court.
Judicial acts are not subject to revision under cassational procedure on the following cases:
1) reviewed in the simplified procedure provided for by Chapters 12 and 13 of the Civil Procedure Code of RK;
2) a civil 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;
3) related to the property interests of individuals with the amount of a claim less than two thousand monthly calculation indicators and legal entities with the amount of a claim less than thirty thousand monthly calculated indicators;
4) terminated in connection with waiver of a claim;
5) on debt restructuring, as well as on disputes arising in the framework of the rehabilitation procedure and bankruptcy procedure, including recognition of transactions concluded by a debtor, the return of a debtor's property, collection of receivables from claims of a bankrupt or rehabilitative manager.
In case of non-compliance with the appellate procedure as well as in cases mentioned in part two of Article 434 of the Civil Procedure Code of RK, judicial acts of local and other courts that have entered into legal force can be reviewed on appeal by a Head of the Supreme Court and the protest of the Procurator-General, if the following grounds are available:
1) cases when execution 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;
2) cases when a decision violates the rights and legitimate interests of an indefinite range of persons as well as other public interests;
3) cases when a decision violates the uniformity in interpretation and application of the provisions of law by the courts.
In case of non-compliance with the appellate procedure, judicial acts of local and other courts that have entered into legal force, except for judicial acts for cases indicated in subclauses 1), 2), 3) and 4) of part two of Article 434 of the Civil Procedure Code of RK as well as acts of the first-instance court and appellate instance indicated in subclause 5) of part two of Article 434 of the Civil Procedure Code of RK, can be reviewed on appeal by a Procurator-General on the grounds provided for by the Article 427 of the Civil Procedure Code of RK.
A cassation authority decisions can be reviewed upon availability of groundings provided for by part six of the Article 438 of the Civil Procedure Code of RK.
A request/an 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, an appeal may be submitted to a court of cassation after the first instance court has reviewed an appeal for restoring the appeal period, and in case of refusal, after consideration of an individual appeal, request, appeal by the appellate court.
What should be indicated in a cassation appeal?
Requests for reviewing of judicial acts under cassational procedure submitted to the Supreme Court of the Republic of Kazakhstan and requests on lodging a prosecutor's appeal submitted to the General Procurator's Office should contain:
- name of a court or official to whom a request is addressed;
- name of a person submitting a request and a person for whose interests it serves, his/her place of residence or location and the procedural status in a trial;
- list of individuals participating in a trial with indication of their places of residence or location;
- indication to first-instance courts/appellate instances that considered a case and content of the decisions they adopted;
- indication to a judicial act subject to review, appeal;
- indication to what exactly constitutes a violation of the rules of substantive and procedural law and what a request of a person submitting an appeal is;
- in case of filing an appeal on the grounds provided for in part 6 of Article 438 of the Civil Procedure Code of RK, a request shall indicate the exact reason for review of judicial acts.
If an appeal is filed in the interests of a person who did not participate in a case, it should indicate which rights of that person are violated by an appealed judicial act.
If an appeal was earlier submitted to a court of cassation and was returned, a request should indicate the reasons for the return.
An appeal should be signed by a person who filed it. When submitting an appeal in the form of an electronic document, it is certified by a digital signature of a person who files it. Copies of documents mentioned in the article are attached in electronic format to an application.
A document confirming payment of the state duty in the amount established by the Code of the Republic of Kazakhstan “On Taxes and Other Mandatory Payments to the Budget” (Tax Code) should be attached to an appeal.
Last update: 18.08.2021