On the correlation of the rules on tribunal jurisdiction and exhaustion of means of appeal of judicial Acts in the civil process

Fedorova Anna Petrovna Postgraduate Student of the Department of Civil Procedure of the USUU named after V.F. Yakovlev 620137, Russia, Yekaterinburg, Komsomolskaya st., 21 ankalazar@ya.ru

The appeal of judicial acts is aimed at protecting against judicial error by using the procedural and legal mechanism for reviewing the decision. The law establishes rules according to which the right of appeal is implemented through an appeal to higher judicial instances in a certain sequence.

In theory, these rules are referred to by scientists in different ways from the "concept of sequential appeal" (I.V. Reshetnikova) ^{[9, p.116]} and "rules of exhaustion when appealing judicial acts" (L.A. Terekhova) ^{[10, p.25]} to the "principle of sequential verification of judicial acts" (V.B. Nemtseva) ^{[7, p.101]}.

The concept of exhaustion of means of appeal was most characteristic of international law in order to appeal to the institutions of protection only after exhausting all domestic remedies (Article 35 of the Convention on the Protection of Human Rights and Fundamental Freedoms), as well as for constitutional law in order to appeal to the Constitutional Court of the Russian Federation from the moment of amendments to the Constitution of the Russian Federation (Part 4 v. 125).

It is all the more significant that the concept of "exhaustion" of other means of appeal was legalized in domestic legislation precisely as a result of the activities of the ECHR after the adoption of the Interim Resolution ResDH (2006) 1. The European Court developed its position in the case "Nelyubin v. the Russian Federation" (2006), indicating that the grounds for cancellation in the cassation and supervisory procedures basically, they coincide, which is why the error expressed in the incorrect application of the norms of substantive law must be eliminated before the court decision enters into force, i.e. in cassation (par. 28). At the same time, as noted by the ECHR, the CPC of the Russian Federation in its original wording "allows a party to file a supervisory complaint, even if it has not previously exhausted the means of cassation appeal" (par. 29).

According to P.S. Baryshnikov ^[1], a rule was formulated on the exhaustion of other means of appeal, according to which an appeal to a higher court is possible only after passing all the lower instances provided for by law.

Subsequently, Federal Law No. 330-FZ of 04.12.2007 "On Amendments to the Civil Procedure Code of the Russian Federation" was adopted, which introduced amendments to Part 2 of Article 376 of the CPC regarding the establishment of a six-month deadline for filing a supervisory complaint, and also established the condition for applying to the court of supervisory instance – exhaustion of other means of appeal.

The beginning of the official use of the phrase "the principle of consistent verification of judicial acts", we believe, can be considered its application in the judicial practice of arbitration courts. At least, the first mention of it dates back to March 2012, when the Supreme Arbitration Court of the Russian Federation in its Ruling of 26.03.2012 No. VAS-16918/11 in case no. A58-2032/09 indicated that Article 188 of the APC of the Russian Federation established "the principle of consistent appeal of arbitration court rulings".

In addition, the Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 31 of Resolution No. 99 dated 12/25/2013 "On Procedural deadlines", interpreting Part 2 of Article 181 of the APC, used the phrase, taken in parentheses, "the rule of sequential appeal of judicial acts".

Since that moment, the quasi-normative consolidation of the concept of the rule of consistent appeal, and in some judicial practice, the concept of "principle" has been legalized in the practice of high-level arbitration courts.

Meanwhile, judicial practice also occurs with the simultaneous use of both expressions, where "the principle of consistent appeal of judicial acts and exhaustion of the right to judicial protection consistently in judicial instances" are combined into one phrase (Definition of the Supreme Court of the Russian Federation of 12/24/2018 N 306-ES18-21388 in case N A12-62894/2016).

At the same time, in another interpretation, the principle of consistent appeal studied by us was referred to by some scientists as the principle of "instantiality", which can be traced partially in the practice of the Constitutional Court of the Russian Federation (Resolution of the Constitutional Court of the Russian Federation of 17.03.2010 N 6-P), and in the practice of the Supreme Court of the Russian Federation when applying criminal legislation with reference to Article 401.3 of the Code of Criminal Procedure (Definition of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 26.01.2016 N 24-UD15-5, Cassation definition of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 28.10.2015 in case N 18-UD15-68, Resolution of the Presidium of the Supreme Court of the Russian Federation dated 10.07.2013 N 52-P13, Definition of the Supreme Court of the Russian Federation dated 24.04.2012 N 89-D12-4, etc.). 

          The norms on the instance system of the judicial system in the Russian Federation are enshrined in Chapter 7 of the Constitution of the Russian Federation, as well as in the Federal Constitutional Law "On the Judicial System of the Russian Federation", which provide for a hierarchy of courts from the lowest to the highest.

Due to the fact that the criminal procedure legislation provides for the revision of final court decisions according to the rules of continuous cassation (Part 2 of Article 401.3, Article 401.7, 401.8 of the Code of Criminal Procedure of the Russian Federation), regardless of whether these decisions were the subject of verification in the court of appeal, the Supreme Court recognized this practice as imperfect and prepared a bill to introduce amendments to Article 401.3 of the Code of Criminal Procedure of the Russian Federation, providing for their preliminary consideration by the court of appeal (Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.12.2021 N 44). It follows from the explanatory note to this draft law that the proposed order of instantiation is aimed at unifying procedural legislation and is intended to stimulate the process of using appeal appeal to correct judicial errors.

In other words, instantiation by the Supreme Court is defined as the procedure for appealing to judicial instances in a certain sequence.

Analyzing the interdependence of the rules of generic jurisdiction and instantiality in courts of general jurisdiction, L.A. Terekhova expressed the opinion that the system of instances is dependent on the rules of generic jurisdiction. The basis for building such a system is political will, and it is aimed at maintaining the principle of "equal goes to equal." She believes that it is this principle that underlies the construction of judicial instances ^[11].

In the literature there are different definitions of the concept of "instantiality" or the principle of "instantiality", but similar in that it is a consistent resolution of the dispute in the court of each instance (S.L. Degtyarev, E.N. Nagornaya, A.H. Omaev) ^[3,6,8].

Others note that, by virtue of the principle of instantiality, decisions of a higher court within its competence should be binding on a lower court (G.A. Hajiyev) ^[4] or that civil procedural relations that develop between courts of various levels in the process of verifying judicial decisions (instantiality) are characterized by such features as ambiguity, authority, consistency, dynamism (N.V. Laskin) ^[5].

          However, let's return to the principle of consistent appeal. It is necessary to answer the question whether the principle we are studying is identical to the principle of "instantiality"?

Consistent appeal of judicial acts to courts of a certain level corresponds to the principle of instantiation, as a principle reflecting the multi-stage nature of the judicial system. However, the principle of instantiality should be perceived more broadly, since it is also assumed that the control of higher judicial instances in terms of the formation of a unified judicial practice and the issuance of rulings as guiding rules when resolving a case by a court. Since the legislation specifies "violation of uniformity in the interpretation and application by courts of the norms of law" (Part 3 of Article 308.8 of the APC of the Russian Federation, Part 3 of Article 391.9 of the CPC of the Russian Federation) as the basis for the cancellation or amendment of a court decision by way of supervision, it must be assumed that the Supreme Court has a controlling function to comply with the established judicial practice.

The fact of the existence of such a leadership function confirms the authoritative nature of higher instances, which is the main difference from the principle of consistent appeal of judicial acts, since the latter implies an appeal to the courts of subsequent instances, depending on the previous stage, and does not have a sign of authority, carrying a purely procedural function of compliance with the established order of instantiality.

The effect of the principle of consistent appeal is manifested both in the rules on cassation and in the rules on supervisory appeal. At the same time, it can be stated that there is no single standard for fixing the rules of consistent appeal in civil and arbitration proceedings.

In the expired Resolution of the Plenum of the Supreme Court of 11.12.2012 No. 29, it was established that according to paragraph 2 of Part 1 of Article 376 of the CPC, it is possible to appeal to the Court of Cassation, provided that the persons have exhausted other means of appeal, i.e. the case was considered by the court of appeal on the merits and an appeal decision was made (paragraph 3). In the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/22/2021 N 17, the condition for consideration on the merits and the issuance of an appeal decision is no longer present (paragraph 3).

At the same time, according to the second cassation, a similar rule of exhaustion of other means of appeal is established, and according to Part 2 of Article 390.4 of the CPC, a list of judicial acts subject to review in the Judicial Board (in civil cases or in military cases) of the Supreme Court of the Russian Federation is provided, subject to consideration by the cassation court of general jurisdiction.

As you can see, the CPC establishes a rule for appealing judicial acts in a certain sequence and excludes "jumping" from one type of appeal to another without passing the previous stage.

In turn, by virtue of Part 2 of Article 181 of the APC, the decision is appealed to the cassation instance, provided that it was the subject of consideration by the appellate instance or the court of appeal refused to restore the missed deadline. The stated legal norm is also reflected in the text of Article 273 of the APC.

The Plenum of the Supreme Court of the Russian Federation in its Resolution No. 13 dated 30.06.2020 "On the application of the APC of the Russian Federation when considering cases in the Cassation Arbitration Court" indicated that an appeal to the cassation court is possible if the persons specified in Part 1 of Article 273 of the APC of the Russian Federation have exhausted other ways of appealing judicial acts before their entry into force.

Considering that the Code itself does not contain the concept of "exhaustion" as a condition, it is obvious that the legislator is striving to standardize the procedure of appeal by using the single concept of "exhaustion of other means of appeal" as a kind of procedural "filter". Nevertheless, there are still differences in the legal regulation of the "exhaustion" rule between the processes.

Part 1 of Article 273 of the APC establishes the possibility of appeal also if the court of appeal refused to restore the missed deadline for filing an appeal.

However, the norm on refusal to restore the missed deadline for filing an appeal, which gives grounds for accepting a cassation appeal, is contained only in the APC (Part 1 of Article 273), there is no such norm in the CPC. Both in civil and arbitration proceedings, the determination of refusal to restore the missed deadline can be appealed (Part 5 of Article 112 of the CPC, Part 6 of Article 117 of the APC). At the same time, the application for restoration of the missed deadline for filing an appeal is considered by the court of first instance (Part 2 of Article 112 of the CPC), therefore, the decision on refusal is appealed to the court of appeal.

As E.A. Borisova notes, the condition of missing the deadline for appeal and refusal to restore it devalues the idea of the law on the sequential instance passage of the case. A party may intentionally miss the appeal period (for example, in order to speed up the consideration of the case), apply for the restoration of this period and receive a legitimate refusal of the arbitration court. After that, the path to cassation appeal is open ^{[2, p.29]}.

Such a difference in the procedure for accepting a cassation appeal between civil and arbitration proceedings raises questions, since it excludes the possibility of appealing to the court of cassation the decisions of courts of general jurisdiction that have entered into legal force in cases that have not been considered on the merits by the court of appeal, and thereby the participants? ? civil proceedings are put in a worse position compared to participants in the arbitration process, who, by virtue of part 1 of Article 273 of the APC, are not deprived of the opportunity to appeal to the court of cassation in the case when the commercial court of appeal refused to restore the missed deadline for filing an appeal.

However, it follows from the position of the Constitutional Court of the Russian Federation that the existence of differences in appeal procedures does not in itself indicate a reduced level of procedural guarantees for the protection of the rights of persons whose cases are subordinate to courts of general jurisdiction. The proceedings on the revision of court decisions that have entered into legal force as an additional way to ensure the fairness of court decisions presupposes the possibility of using it only if the interested person has exhausted all the usual (ordinary) ways of appealing a court decision before it enters into legal force (Resolution of the Constitutional Court of the Russian Federation of 05.02.2007 N 2-P).

Considering that the court of cassation instance, in accordance with Article 286 of the APC, verifies only the legality of judicial acts, establishes the correctness of the application of the norms of substantive and procedural law, but does not verify the correctness of establishing facts (which is done in the court of appeal), at the same time, an appeal check of the court's decision in case of refusal to restore the missed deadline is not carried out, the appellate means of appeal cannot be considered exhausted. In our opinion, the procedure provided for in civil proceedings should be recognized as the most consistent with the principle of consistent verification of judicial acts.

The idea of exhausting other ways of contesting finds its logical continuation in the norms on supervisory proceedings. Since the introduction of amendments to the CPC by Federal Law No. 451 of November 28, 2018 "On Amendments to Certain Legislative Acts of the Russian Federation", only judicial decisions of the Supreme Court of the Russian Federation adopted at first instance can be reviewed by way of supervision, if these court decisions were the subject of appeal, the rulings of the Appellate Board of the Supreme Court of the Russian Federation, as well as the rulings of the judicial collegiums of the Supreme Court of the Russian Federation, issued by them in cassation (paragraphs 3, 4 and 6 of Part 2 of Article 391.1 of the CPC).

A similar approach of the legislator to determining the range of judicial acts subject to review by the court of supervisory instance is also fixed in the Agro-industrial Complex (Part 3 of Article 308.1). The supervisory authority is the final link in the chain of opportunities to challenge judicial acts issued in the case and the last domestic attempt to correct a judicial error committed by lower courts. The exception to the rule of exhaustion allowed in the above-mentioned position of the Constitutional Court would mean leveling the significance of other appeal possibilities established by the legislator and overloading the judicial system as a whole.

Meanwhile, some authors are critical of the very idea of a consistent appeal, emphasizing the priority of choosing a method of appeal: "Non-mercy of a judicial act before its entry into force means only the refusal of a person to use this particular method of protecting their rights, but should not mean a ban for interested persons to protect their violated rights in court, in particular, by initiating a review of the judicial act after its entry into force" ^[12].

The Constitution of the Russian Federation grants every citizen the freedom to choose a way to protect the right, including protection in court. At the same time, Article 46 of the Constitution of the Russian Federation does not imply the possibility for a citizen to choose at his discretion any methods and procedures of judicial protection (including appeals against judicial acts that have entered into force), the specifics of which in relation to certain types of proceedings and categories of cases are determined based on articles 46 - 53, 118, 120, 123 and 125 - 128 of the Constitution of the Russian Federation, federal constitutional laws and federal laws (rulings of the Constitutional Court of the Russian Federation of January 13, 2000 N 6-O, of November 8, 2005 N 399-O and of 29.09.2011 N 1185-O-O).

Taking into account the main purpose of appealing judicial acts - correction of a judicial error, it should be borne in mind that the passage of each stage of the established procedure for appealing a judicial act, especially before its entry into force, is an additional guarantee of the identification and elimination of judicial errors. The cassation appeal procedure does not exist as an alternative to the appeal procedure, but as an extraordinary procedure aimed at verifying the legality of a court decision without checking the issues of fact. If we allow the possibility of checking the issues of fact in the court of extraordinary instance, then the sense in the differentiation of instances is lost and its value is devalued.

Although, in foreign scientific literature it is noted that the value of the ability of the appeal system to correct a judicial error may exceed the volume of actually corrected errors, thereby increasing public confidence in the judicial system itself. In other words, the importance of correcting an error may be auxiliary to the very procedural value of appealing and participating in the review of the case. Empirical studies have shown that the very fact of hearing a case contributes to the emergence of the procedural effect of justice and makes people feel better about the result^[13].

Thus, ensuring the very possibility of appeal as a manifestation of the principle of accessibility of justice enters into inevitable competition with the principle of legal certainty, which must coexist in a reasonable balance of all procedural principles, being bound by the limits of each of them. In favor of the principle of legal certainty, the legislator establishes restrictions on access to courts of extraordinary instances, conditioned by the condition of exhaustion of ordinary ones.

It is necessary to separate the concepts of instantiation and consistent appeal, since the relationship of subordination between lower and higher courts is not the basis of the judicial system. A higher-level court reviews decisions of lower courts at the initiative of a party to the case or persons whose interests are affected by this court decision, as well as certain officials. The instantiation principle of building the judicial system allows ensuring the unity of judicial practice by reviewing judicial decisions of each instance.

The concept of the power nature of legal relations is inherent in administrative law, characterized by the relationship of power and subordination (vertical legal relations), while civil law relations are based on the equality of participants in their specifics (horizontal legal relations).

The sequence can be represented by two forms of legal relations: vertical and horizontal. Vertical relations arise from the relationship between the courts, which are represented by a hierarchy of judicial instances. In other words, the hierarchy of courts represents steps towards the finality of a court decision: first, a decision of the court of first instance is issued, then a judicial act of subsequent instances, but only the higher court determines whether the interpretation of the lower instance corresponds to the "scheme of principles" of judicial proceedings. In the case of horizontal legal relations with successive appeals, the rights and obligations of the persons participating in the case remain identical and universal when appealing judicial acts. Taken together, both types of legal relations - vertical and horizontal - are integrated. This contributes to satisfaction with the judicial decision, its finality and stability, which, in turn, emphasizes legal certainty^[14].

This means that in order to comply with the principle of consistent appeal, a judicial act may be appealed to the court by any person to whom this right is granted by law in whole or in part. Horizontal sequence can mean subjective limits of sequential appeal, which include not only the subjects, their rights and obligations among themselves and in relation to the court, but also the rights and obligations of the court. At the same time, the vertical sequence can mean levels of appeal, i.e. instantiation.

In addition, in addition to appealing in the classical sequential version of court decisions, there is an appeal procedure for another range of objects, such as definitions, court orders, etc. Different types of appeal are characterized by a different range of objects, i.e. judicial acts that can be appealed to this particular instance, which represents the objective limits of sequential appeal. Instantiality directly affects the content of the rule of exhaustion of other means of appeal.

The undesirable phenomenon of ambiguity arising from the repeated use of the categories of "exhaustion rules", "rules of sequential appeal" or "instantiation", different in nature and meaning, could be avoided with the help of a single terminology in procedural law.

In the search for a balance between the various categories and rules related to the administration of justice, it is necessary to make a comprehensive decision that includes a positive relationship between all competing terms.

The rule of sequential appeal of judicial acts testifies to the gradual development of the process, the changeability of verification instances on the way to correcting a judicial error and realizing the right to a just decision. The indicated tendency of convergence of the rules of exhaustion of appeal methods in civil and arbitration proceedings contributes to the formation of a "standard" of appeal that would reliably ensure the quality of justice and at the same time the unity of judicial practice. The reform of procedural legislation in terms of revision has led to the unification of both the organizational and procedural order of consideration of cases of cassation instance by both courts of general jurisdiction and arbitration courts. We believe this is a good groundwork in order to think about how to formulate a single rule of sequential appeal, both in the subsystem of courts of general jurisdiction and in the subsystem of arbitration courts, which would contain a single list of appeal methods, the exhaustion of which is required to comply with the rule of consistency.