Appeal of a First-Instance Court Order in Cassation

Until recently, it was generally accepted in judicial practice that only those first-instance court orders that impede the progress of the case or do not impede it, but whose appeal is provided for by the CPC, could be appealed in appellate and then cassation proceedings. Certain first-instance court orders, in cases provided for by the CPC (e.g., part 11 of Article 153.10, part 5 of Article 422, and part 5 of Article 427), can only be appealed "over the top," i.e., directly to cassation, bypassing the appellate court.

If a party to the case files a private complaint against a first-instance court order that is not subject to appeal, the appellate court terminates proceedings on the complaint (paragraph 59 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 22, 2021 No. 16 "On the Application by Courts of the Norms of Civil Procedural Legislation Regulating Proceedings in the Appellate Court"). If a cassation complaint is filed against an order terminating proceedings on a private complaint, it upholds the appellate courts order.

With the adoption by the Supreme Court of the Decision of the Judicial Collegium for Civil Cases of April 9, 2024, in Case No. 5-KG24-7-K2, the situation has changed. The Supreme Court recognized the possibility of appealing in cassation a first-instance court order leaving a claim without consideration, which was previously unanimously recognized as not subject to appeal.

The Supreme Courts position is as follows: the absence of the possibility to appeal a court order in appellate proceedings does not mean that the legality of this judicial decision cannot be reviewed in cassation proceedings. Unlike the appellate procedure for reviewing non-entered-into-force judicial decisions, the method for reviewing entered-into-force judicial decisions in cassation proceedings is regulated by other rules provided for in Chapter 41 of the CPC. Following part 1 of Article 376 of the CPC, entered-into-force judicial decisions specified in part 2 of Article 377 of the CPC can be appealed in the procedure established by paragraph 1 of Chapter 41 of the CPC, to the general jurisdiction cassation court. Under paragraph 1 of part 2 of Article 377 of the CPC, a cassation complaint is filed against entered-into-force decisions of district courts and world judges to the general jurisdiction cassation court. Thus, in cassation proceedings, entered-into-force judicial decisions adopted by courts of first and appellate instances can be appealed to determine the correctness of the application and interpretation of substantive and procedural law norms by the judicial instances in the course of the previous consideration of the case. At the same time, the CPC does not establish restrictions on the protection of rights in cassation proceedings and does not indicate the impossibility of cassation appeal of any decisions listed in part 2 of Article 377 of the CPC.

Thus, as follows from the judicial act of the Supreme Court, any entered-into-force first-instance court order can be appealed in cassation proceedings.

In my opinion, this position seems controversial. As indicated in part 1 of Article 331 of the CPC, first-instance court orders can be appealed to the appellate court separately from the courts decision by the parties and other persons participating in the case (private complaint), as well as the prosecutor can submit a representation, if:

 such a possibility is provided for by the Code;

 the courts decision precludes the possibility of further progress on the case.

This norm is included in Chapter 39 "On Proceedings in the Appellate Court" of the CPC, while it seems appropriate to place it in Chapter 20 "On Court Order" of the same Code, without indicating the appellate court. This is exactly how it is provided for in the APC, according to part 1 of Article 188 of which only those first-instance court orders that either impede the progress of the case or are directly indicated in the APC as subject to appeal are appealed in both appellate and any other instance. Along the line of general jurisdiction courts, part 1 of Article 331 of the CPC was thus interpreted, and such interpretation seems correct. However, in the commented decision, the Supreme Court interpreted part 1 of Article 331 of the CPC literally, thereby calling into question the established practice of appealing first-instance court orders.

The reason for the difference in approaches between the APC and the CPC, in my opinion, lies in the fact that the CPC norms are a historical tradition that originated at a time when the domestic judicial system provided for only one higher instance, where the case was transferred upon the complaint of a party participating in the case. These were regional, local, and other similar courts, which were called cassation in the Soviet Union, not appeal, as they are now.

The CPC of the RSFSR of 1964 contained Chapter 20 "On Court Orders," which, like the one in the current CPC, did not provide for rules on appealing court orders. However, there was Chapter 35 "On Appealing and Protesting Court Orders," Article 315 of which contained rules on appealing similar to the current part 1 of Article 331 of the CPC, namely: "First-instance court orders can be appealed separately from the courts decision by the parties and other persons participating in the case to the cassation instance (as the current appeal was called at that time): 1) in cases provided for by this Code; 2) in cases where the courts decision prevents further progress of the case. Private complaints are not filed against other first-instance court orders, but objections to these orders can be included in the cassation complaint."

The CPC of the Russian Federation of February 1, 2003, which replaced the CPC of the RSFSR, fully adopted this norm. At that time, the modern appellate and cassation courts did not yet exist in the system of general jurisdiction courts, so the application of this norm did not raise any questions.

Meanwhile, the system of arbitration courts functioned differently. In the Soviet Union, there was no Arbitration Procedural Code. Part 1 of Article 188 of the APC on the procedure for appealing court orders has been in force since the original version of the Code, which entered into force on September 1, 2002. At this time, the current system of arbitration courts was being developed, providing - unlike the general jurisdiction courts - two instances where the case is transferred upon the complaint of a party participating in the case: appeal (appellate courts) and cassation (arbitration courts of districts). This required a clear delineation of powers between these instances, and in part 1 of Article 188 of the APC, this delineation was correctly carried out.

A similar reform of the general jurisdiction court system was carried out only in 2019. The previously existing cassation was divided into appeal (regional and regional courts) and proper cassation (cassation courts of general jurisdiction). However, unlike the APC, in the CPC, the rule on appealing court orders applicable to the new court system remained unchanged It ultimately led to a conflict of norms that served as a reason for the appearance of the commented decision.

The conclusions outlined in the decision give rise to two problems: legal and practical.

The first lies in the fact that to appeal a first-instance court order in cassation proceedings, it is necessary to know exactly the date of its entry into force. One of the differences between appellate and cassation appeals of a first-instance court order is that the deadline for filing a private complaint is calculated from the date the order is issued (Article 332 of the CPC), while the deadline for filing a cassation complaint is from the date the order enters into force (part 1 of Article 376.1 of the CPC). However, the CPC does not provide for the procedure for entry into force of first-instance court orders. There is only one norm - part 3 of Article 33, which determines the date of entry into force of a first-instance court order on transferring the case to another court. There are no such provisions regarding other orders.

The practical problem lies in the fact that the possibility of appealing any first-instance court order allows a party participating in the case to "drag out" the case by cassation appeals of all first-instance court orders issued. Meanwhile, it should not be so. During a case under consideration in the first instance, the court issues many orders that do not impede the progress of the case and for which there is no indication in the CPC regarding the possibility of their appeal (for example, an order to initiate proceedings, to prepare the case for judicial proceedings, to summon witnesses, to include evidence in the case, to adjourn judicial proceedings, etc.). All these orders have two common features:

 they do not interfere with the achievements of civil proceedings: the issuance of a lawful and justified decision (Article 2 of the CPC);

 they are manifested as the courts discretionary powers, its freedom to act at its discretion.

These qualities render the appeal of such judicial acts pointless, as any verification of their legality by a cassation court would amount to merely confirming once again that the appealed action is provided for by the CPC, which grants the court the discretion to make decisions on this or that issue. For this reason, such orders should not be appealed. However, with the Supreme Courts issuance of the commented decision, such a possibility has emerged.

It should be noted that the position outlined in the decision has not yet been adopted by the courts. As of the date of publication of this note, I have not found any references to this decision in the judicial practice posted in the public domain, at least at the level of cassation courts of the districts. Nor have I been able to find examples of how cassation courts, based on the commented decision, consider on the merits cassation complaints against first-instance court orders that were previously considered not subject to appeal.

Nevertheless, if the position from the Supreme Courts decision becomes part of the practice, it seems necessary to establish rules for its application at the legislative or law enforcement level. For example, if the CPC provides for the possibility of appealing a first-instance court order, then such an order enters into force after 15 days, i.e., upon expiration of the appeal period. If the possibility of appeal is not provided for, the order enters into force immediately, and from the moment of its issuance, the three-month period for cassation appeal begins to be calculated. An appeal of an order in cassation proceedings should not be grounds for either suspending the proceedings or postponing the trial in the first-instance court. In the cassation court, complaints about such orders are considered only by a judge individually and always without holding a hearing (part 10 of Article 379.5 of the CPC). If the cassation court has considered a cassation complaint about an order after the decision was rendered by the first-instance court and found the order to be unlawful, then the position of the cassation court is taken into account by the appellate court when assessing the sufficiency of the procedural violations committed by the first instance for canceling the decision on the appellate complaint of a party participating in the case.

The above rules will make it possible to establish legal certainty while applying the commented position of the Supreme Court and prevent possible procedural abuses.