Strasbourg, 10 January 1995 Restricted
Addendum III to
For consideration at the 528th meeting
of the Ministers' Deputies
(7-8 February 1995, item 10.1, B level)
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION (CDCJ)
(36th meeting as a Steering Committee)
(Strasbourg, 5-9 December 1994)
DRAFT RECOMMENDATION No. R (95) ... OF THE
COMMITTEE OF MINISTERS TO MEMBER STATES CONCERNING
THE INTRODUCTION AND IMPROVEMENT OF THE
FUNCTIONING OF APPEAL SYSTEMS AND PROCEDURES
IN CIVIL AND COMMERCIAL CASES
DRAFT RECOMMENDATION No. R (95)...
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
CONCERNING THE INTRODUCTION AND IMPROVEMENT OF THE FUNCTIONING OF APPEAL SYSTEMS AND PROCEDURES
IN CIVIL AND COMMERCIAL CASES
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Noting that Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) requires Parties to allow convictions or sentences to be reviewed by a higher court,
Agreeing that appeal procedures should also be available for civil and commercial cases and not only for criminal cases,
Having regard to the problems caused by an increase in the number of appeals and by the length of appeal proceedings,
Considering that everyone's right to a hearing within a reasonable time under paragraph 1 of Article 6 of the Convention might be affected by such problems,
Aware that ineffective or inadequate procedures and the abuse by parties of the right to appeal cause unjustified delays and may bring the justice system into disrepute,
Convinced that effective appeal procedures are in the interests of all parties to litigation and of the administration of justice,
Having regard to Recommendation No. R (81) 7 on measures facilitating access to justice, Recommendation No. R (84) 5 on the principles of civil procedure designed to improve the functioning of justice, Recommendation No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts and Recommendation No. R (93) 1 on effective access to the law and to justice for the very poor,
Recommends that governments of member states adopt or reinforce, as the case may be, all measures which they consider necessary to improve the functioning of appeal systems and procedures in civil and commercial cases, in particular the following:
Chapter I . General principles
Article 1 . Right to judicial control
a. In principle, it should be possible for any decision of a lower court (“first court”) to be subject to the control of a higher court (“second court”).
b. Should it be considered appropriate to make exceptions to this principle, any such exceptions should be founded in the law and should be consistent with general principles of justice.
c. Information should be provided to parties concerning their right to appeal and of how to exercise this right, such as the time within which an appeal must be lodged.
d. Judges of higher courts should not be allowed to participate in the proceedings relating to cases with which they were involved in a lower court.
Chapter II . Limitations on judicial control
Article 2 . Measures taken at the level of the first court
a. In principle, the issues of the litigation should be defined at the level of the first court. All possible claims, facts and evidence should be presented to the first court. States should consider adopting legislation or other measures to that effect.
b. To enable the parties to assess whether they should exercise their right to appeal and to be able, wherever possible, to limit the appeal, the first court should be required by law to give clear and complete reasons for its decisions, using language which is readily understandable. In principle, reasons need not be given for decisions in matters which have not been contested or for decisions made by juries.
c. The first court should be able, in appropriate cases, to allow provisional enforcement unless this will cause the losing party irreparable or serious harm or would make it impossible for justice to be done at a later stage.
Article 3 . Matters excluded from the right to appeal
In order to ensure that only appropriate matters are considered by the second court, states should consider taking any or all of the following measures:
a.excluding certain categories of cases, for example small claims;
b.requiring leave from a court to appeal;
c.fixing specific time limits for the exercise of the right to appeal;
d. postponing the right to appeal in certain interlocutory matters to the main appeal in the substantive case.
Article 4 . Measures to prevent any abuse of the appeal system
In order to prevent any abuse of the appeal system or procedure, states should consider taking any or all of the following measures:
a. requiring appellants at an early stage to give reasoned grounds for their appeals and to state the remedy sought;
b. allowing the second court to dismiss in a simplified manner, for example without informing the other party, any appeal which appears to the second court to be manifestly ill-founded, unreasonable or vexatious; in these cases appropriate sanctions such as fines may be provided for;
c. where the judgment is immediately enforceable, allowing a stay of execution only where the execution will cause the appellant irreparable or serious harm, or will make it impossible for justice to be done at a later stage. In such a case, security in respect of the amount of the judgment must be provided;
d. where the judgment is immediately enforceable, allowing the second court to refuse to hear the case if the appellant has not complied with the judgment, unless he has provided adequate security or the first or the second court grants a stay of execution;
e. where unnecessary delays have been caused by the fault of a party, requiring that party to pay the additional costs caused by the delay.
Article 5 . Measures limiting the scope of the proceedings in the second court
In order to ensure that appealed matters are examined by the second court, states should consider taking any or all of the following measures:
a. allowing the court or the parties to accept some or all of the findings of fact of the first court;
b. allowing the parties to seek a ruling limited to certain aspects of the case;
c. where leave to appeal is necessary, enabling the court to limit the scope of the appeal, for instance to points of law;
d. including restrictions concerning the introduction of new claims, facts or evidence in the second court unless new circumstances have arisen or there were other reasons specified by the internal law why they were not introduced in the first court;
e. limiting the hearing of the appeal to the reasoned grounds of the appeal, subject to cases where the court may act on its own motion.
Chapter III . Other measures to improve the functioning of appeal systems and procedures
Article 6 . Measures improving the efficiency of the appeal procedures
In order to ensure that appeals are heard expeditiously and efficiently, states should consider taking any or all of the following measures:
a. not making use of more judges than necessary to deal with cases. A single judge could be used, for instance, in some or all of the following matters:
i. applications for leave to appeal;
iv.where the parties so request;
v.where the case is manifestly ill-founded;
vii. urgent cases.
b. as the case has been dealt with by the first court, limiting the number of written submissions exchanged between the parties to the minimum necessary, for example prescribing that each party may only submit one set of documents to the second court;
c. in states where oral proceedings are possible in the second court, enabling parties to agree to have the case decided without a hearing, unless the second court finds it necessary;
d. reducing the length of oral hearings to what is strictly necessary, for instance by making more use of written procedures or by using outline arguments or written addresses;
e. where oral hearings take place, ensuring that they are completed as soon as possible (“concentration of oral hearings”). The court should consider the case in connection with the hearing and should pass judgment immediately thereafter or within a short time period as provided for by the law;
f. requiring strict observance of time limits, for example concerning the exchange of documents and pleadings, and providing sanctions for non-compliance with time limits, for example fines, dismissal of the appeal or not considering the matter to which the time limit related;
g. giving the second court a more active role both before and during the hearing of the case in order to regulate its progress, for example by making preparatory enquiries or by encouraging settlements;
h. regulating matters relating to urgent cases, for instance deciding who may request an accelerated consideration of such a case, on what criteria a case should be considered to be urgent and deciding who within the judicial system would have competence for dealing with such cases;
i. improving contacts between the court and lawyers and others involved in litigation, for instance by arranging seminars involving the second court and the bar associations or enabling discussion on how to improve procedures;
j. providing adequate technical facilities to the second court, such as telefaxes or computers, and providing similar facilities to the first court to allow preparation of transcripts of hearings and decisions;
k. promoting the use of qualified lawyers, acting for parties in the court.
Chapter IV . Role and function of the third court
Article 7 . Measures relating to appeals to a third court
a. The provisions of this recommendation should, where appropriate, apply also to the “third court”, where such a court exists, that is a court which exercises control over the second court. Constitutional courts or similar are, for the purposes of this recommendation not included.
b. In considering measures concerning third courts, states should bear in mind that cases have already been heard by two courts.
c. Appeals to the third court should be used in particular in cases which merit a third judicial review, for example cases which would develop the law or which would contribute to the uniform interpretation of the law. They might also be limited to appeals where the case concerns a point of law of general public importance. The appellant should be required to state his reasons why the case would contribute to such aims.
d. States could consider introducing a system whereby the third court could deal with a case directly, for instance by means of a referral for a preliminary ruling or a procedure which bypasses the second court (“leapfrog” procedure). Such procedures may in particular be suitable for matters involving points of law in which an appeal to the third court would be likely in any event.
e. Decisions made by the second court should be enforceable, unless the second or the third court grants a stay of execution or the appellant gives adequate security.
f. States which do not admit a system of leave to appeal to the third court or which do not admit the possibility for the third court to reject part of an appeal, could consider introducing such systems aiming at limiting the number of cases meriting a third judicial review. The law could define specific grounds which would enable the third court to limit its examination only to certain aspects of the case, for instance when granting leave to appeal or rejecting, after a summary consideration of the case, some parts of the appeal.
i. In principle, new facts or new evidence may not be presented in the third court.
EXPLANATORY MEMORANDUM TO
RECOMMENDATION No R (95)...
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES CONCERNING THE INTRODUCTION AND IMPROVEMENT OF THE FUNCTIONING OF APPEAL SYSTEMS AND PROCEDURES IN CIVIL AND COMMERCIAL CASES
1 Delays during legal proceedings and a backlog of cases are two problems faced by a number of Member States.
2 The main causes of these problems are numerous. Congestion hampers the efficient functioning of the courts. Inevitably, with an increased number of cases in the courts of first instance ("first courts") follows an increase in the number of appeals to the courts of second instance ("second courts").
3 The increased number of cases is due to the efforts which have been made to facilitate and guarantee access to the courts and to the fact that litigants are generally better informed and more aware of their rights and therefore readier to have recourse to the courts to assert or defend these rights.
4 The creation and development in modern society of new areas of legal protection have also led to an increase in the number of cases (eg. environmental protection, data protection).
5 Further reasons for this situation are : the proliferation of legislation, as well as social factors, such as differences in the size and role of the family, the complexity of society with new technological developments, new poverty, mobility, economic disruption, etc.
6 The second cause of congestion is procedural. It is due to the fact that ineffective or inadequate procedures remain in force although they were conceived for another society. The abuse by parties of the appeal procedures and delaying tactics also cause unjustified delay in the proceedings.
7 Again, shortage of staff, the growing complexity and internationalisation of cases are further elements which hamper the effective functioning of the courts.
8 As they seriously affect the right to an effective and fair administration of justice, the delay concerning legal proceedings and the backlog of cases are a matter of particular concern to the Council of Europe.
9 The Rule of Law requires justice to be administered within a reasonable time while fully respecting the rights of both the defendant and the person who invokes any civil rights and obligations, as any delay in administering justice results to some degree in a denial of justice.
10 A litigant who is endeavouring to assert his rights through the courts should not have to face unnecessary delays caused by inefficient procedures or by clever manoeuvring by his opponent who is resorting to delaying tactics.
11 However, the recognition of the right to appeal to a second or third court inevitably means that there will be a delay in obtaining the decision which will finalise the case. By "third court" is meant a court which exercises control over the second court. Constitutional courts or similar are for the purposes of the Recommendation not included as they are courts of a special character, dealing with the constitutional dimension of cases.
12 In order to safeguard legal security and reliability it is essential to ensure that courts and tribunals which exercise judicial control, deal rapidly with cases, while at the same time respecting the right to a fair trial.
13 In order to ensure the security of legal transactions and to guarantee and foster the right to the fair administration of justice, cases before the courts must therefore be finalised within a reasonable period of time. The first legal instrument drawn up by the Council of Europe for this purpose was the Convention for the Protection of Human Rights and Fundamental Freedoms which recognises, in particular, the right of access to a court and the right to a fair and public hearing within a reasonable time.
14 In addition, various Recommendations and Resolutions have contributed to the introduction of measures to facilitate access to justice. These include: Recommendation No R (81) 7 on measures facilitating access to justice, Recommendation No R (84) 5 on principles of civil procedure designed to improve the functioning of justice, Recommendation No R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts and Recommendation No R (93) 1 on effective access to the law and justice for the very poor.
15 The present Recommendation calls on the Member States to adopt or reinforce, as the case may be, all measures which they consider necessary to improve the functioning of appeal procedures in civil and commercial cases, in particular appeals to second and third courts. The Recommendation seeks to remedy procedural problems which cause inefficient or excessively long procedures and suggests various solutions which have been tried in different member States. It is not the intention of the Recommendation to harmonise the appeal systems in the member States - a task which would not be realistic to seek to accomplish - but rather to give examples which should be adapted to the constitutional principles and legal traditions of each State. Member States are therefore not required to adopt all measures proposed in the Recommendation, but should examine and apply those which ensure that the intended result is achieved within their legal system. In order for States to have complied with articles 3 to 6 of the Recommendation it suffices for them to have considered the introduction of at least one of the examples mentioned in the articles. Therefore, the Recommendation could be
considered in relation to those articles as a list of examples of what it has been possible to achieve in several States. Nevertheless, States should seek to develop their systems while taking account of the examples.
16 On the basis of the principle of the right to judicial control, it lists measures designed to improve the effectiveness of the appeal process and referral to the Court of Cassation or the Supreme Court.
17 The Recommendation contains the main principle that there should be a right to judicial control not only in criminal cases and that any exception to this principle should be founded in the law. It further details some examples of when it would be possible to make such exceptions and suggests measures to ensure a fair and efficient appeal procedure without any unnecessary costs. Moreover, it suggests some measures which may be taken in relation to the Supreme Court or Court of Cassation, for those countries which have introduced a system of a possibility of a third judicial review of a case.
Comments on the recommendations
CHAPTER I - GENERAL PRINCIPLES
1 - Right to judicial control
18 Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms enshrines the principle of the right to a court hearing1.
19 However, the Convention and its additional Protocols only gives the right to two or several levels of tribunal2 in criminal cases3. The Convention does not, therefore, compel Member States to set up courts of appeal or of cassation for civil or commercial matters.
20 The first article of the Recommendation gives the litigant the right to control by a higher court ("second court") after a lower court ("first court") has given its decision in order to correct errors of fact, law or procedure by the lower court or to determine important issues of law. The Recommendation uses the term "appeal" (in French recours) in a generic sense without reference to any specific legal system. This also holds true for the term "appellant".
Other parts of the Recommendation deal with measures taken to allow the control of the higher court to be exercised by the third court and so by-pass the second court.
21 However, the Recommendation does not give an absolute right to control by a higher court as in certain cases it is not in the interests of the parties to exercise an unlimited right to appeal in all cases. Such limitations are not only in the interests of the parties but also help to promote the efficiency of the courts. It is for domestic law to determine the cases where the exercise of a right to appeal should be limited, either by excluding altogether some cases from judicial control or by limiting this control to certain aspects of the case. Such exceptions are mentioned further in the other articles of the Recommendation. Any such exceptions to the general rule must however be founded in the law and consistent with general principles of justice, such as where the parties to litigation agree or it is in the interests of efficiency of the judicial system. Another possibility of speeding up procedures, compatible with principles of justice, would be to use a system which exists in some countries to let the parties to a litigation agree to have the matter decided directly by a second court in exchange for loss of a right of appeal.
22 Domestic legislation could allow the parties to request that the appeal procedure be limited to the examination of certain questions.
23 To avoid appeals which have little chance of success, domestic law could also establish a filter system such as a prior control by the first or the second court to decide whether or not to grant leave to appeal. This prior control would give careful consideration to the grounds for the appeal.
24 The Committee which elaborated the Recommendation discussed whether it would be possible to define some situations in which it would not be permissible to limit the right of judicial control by a second court, such as cases of denial of justice, manifest violations of the substantive law, fundamental rules of procedure or manifest errors by the judge. In view of the different legal systems in Europe, it was however not considered appropriate to make any specific recommendation on this matter, it being understood that this problem was covered in the reference in article 1 (b) to the general principles of justice.
25 The concept of the right to judicial control also implies that the losing party must be informed of what to do in order to exercise that right. It is preferable that such a right to information be laid down in the law and that this information includes the time limit of appeal and how to appeal. However, the legal situation varies considerably from one country to another. In some States, the information is given by the court itself, in others the information is provided through other means such as the lawyers of the parties whereas in some States this is achieved by giving general information to parties. Such a method of giving information would seem acceptable for purposes of the Recommendation. In order to speed up the procedures, the notice, where such is given, should also state that the reasons for the appeal
should be mentioned in the appeal and it should contain information on any legal consequences of non-compliance with such rules, in particular if the losing party was not assisted by a lawyer, as the case may be in some countries.
26 It may seem self-evident that judges of higher courts should not be allowed to participate in the proceedings relating to a case with which they were involved in a lower court in respect of the legal and factual assessment of the case. Nevertheless, cases in some member States show that this principle is not always respected and it was considered appropriate to recall the principle.
27 The Recommendation does not deal specifically with the right to judicial control with respect to a decision by an authority which affects the right of a person. Nevertheless, the member States may consider ensuring, in compliance with the case law of the European Commission and Court of Human Rights, that decisions by an authority are also subject to judicial control.
CHAPTER II- LIMITATIONS ON JUDICIAL CONTROL
2 - Measures taken at the level of the first court
28 Article 2 (a) sets out the general principle that the issues of the proceedings should be defined at the level of the first court. In fact, it appears that in a number of countries parties wait until the second court hearing to present witnesses and evidence, thus leading to the unsatisfactory situation that the first court merely serves as a transport route and a preparation for the "real" proceedings in the second court. A number of different measures can be taken by States to remedy this situation, for instance restricting or even prohibiting the introduction of new evidence in the second court (see article 5 (d)), ensuring that the first court takes an active role in the preparation of the procedure, restricting the possibilities to appeal in certain cases and improving the contacts between parties and the first court in general to make certain that parties to litigation accept that the main proceeding should take place at the level of the first court.
29 It is important that the first court give clear and complete reasons in a language which is understandable to the parties, so that they may assess whether they should exercise their right to appeal. A thorough evaluation of the facts and the evidence and clear statements of the law not only contributes to upholding respect for the court and its judgment but may also serve as a preparation of the appeal if the parties find that an appeal is necessary. Moreover, by giving clear and complete reasons, the appellant may limit his appeal to some aspects of the case and thus help to speed up the appeal (cf article 5). Reasons need not be given in matters where the defendant does not contest the claim or in cases which have been settled by the parties or where the parties agree that reasons need not be given. In many States default judgements need not be supported by reasons. Article 2 (b) of the Recommendation does not imply a duty to give reasons for decisions from which there is no appeal, such as a refusal to give leave to appeal.
30 The provisional enforcement of decisions can also serve to prevent abuse of the appeal procedure in appropriate cases, unless it would conflict with the principle of fairness or cause the appellant serious or irreparable harm. Such provisional enforcement is frequent in cases where there is danger in delay ("periculum in mora"). The law in several countries usually
provides in cases relating to monetary claims that providing adequate security may suspend provisional enforcement. Use of provisional enforcement remains exceptional in some countries whereas it is used frequently in others.
3 - Matters excluded from the right to appeal
31 In several member States, it has been found necessary to limit the examination of certain cases to the first court. It is expensive for the States to maintain the judicial system and only cases which merit the judicial control of a second court should be able to be appealed. The categories of cases vary but it is common to limit the right to appeal to cases in which the value at stake exceeds a certain sum of money, defined by the law or to some sum connected with an appropriate index, for instance consumer index.
32 Another method of restricting the right to judicial control is to set up some system of leave to appeal, for instance in small claims cases or in procedural matters, or a possibility for the second court, in some cases, to reject the appeal after a summary procedure. By leave ("permission") to appeal is meant a system whereby the second court, often a sitting with single judge or a restricted number of judges, reads the file of the first court and the judgment in order to see whether any grounds for leave to appeal exist. Such grounds are usually specified in the law and may relate to errors in fact or law, reasons to change the first court's decision or that the case merits a second judicial review for other reasons. If leave is granted, the court will hear the case as an ordinary appeal.
33 In some countries, such as the United Kingdom, it is necessary for the appellant in certain cases (for example, interlocutory matters) to obtain the leave of the first court to bring an appeal. This enables the first court to limit the number of hopeless and unmeritorious appeals. Where an application for leave is made to the first instance judge and he refuses it, it is possible to renew the application before the appellate court.
34 It is common in the member States that the law fixes a specific time limit for the exercise of the right to appeal. This time limit may vary from one State to another and it was not found appropriate to fix a specific time limit in the Recommendation itself. It is clear that a time limit of only some days is normally too short to enable the appellant to consider the appeal, give reasoned grounds in writing for it and send it to the second court (or the first court, as is the case in some States). On the other hand, a time limit of several months seems unnecessary in most cases and contributes to unnecessarily lengthy procedures. A solution which is found in some States is that the appellant is required to state to the court within a week after the judgment whether he intends to appeal and to send in the reasoned appeal within two or three weeks thereafter.
35 Finally, the right to appeal may be postponed in certain interlocutory matters to the main appeal of the case. Such matters may, for instance, include the division of the burden of proof or a refusal to allow certain witnesses who are manifestly not necessary to the hearing of the case or other procedural decisions. Another example might be decisions on security for payment of legal costs.
4 - Measures to prevent any abuse of the appeal system
36 In many cases, the excessive duration of the proceedings is the result of the conduct of the parties. A party who exploits all the possibilities offered by procedural law can cause considerable delay. One way to deal with such situations is to oblige appellants to give reasoned grounds for their appeals and to require them to specify the remedy sought at an early stage of the procedure. In addition, parties may be required to give details about the grounds for appeal.
37 The following are some examples of abuse of the procedure:
-systematic recourse to the appeal procedures provided under domestic law and to using existing time limits to a maximum, repeatedly changing lawyers, requests for adjournment, further inquiries, applications for extending time limits or the presentation of additional evidence,
- delay in applying for the resumption of the proceedings or in responding to a proposal for a friendly settlement,
-formulating new allegations which prove on investigation to be incorrect,
-introducing several appeals which result in overlapping procedures (challenges on grounds of partiality, applications for disciplinary proceedings, appeal on the grounds of failure to act, interlocutory appeal, criminal complaints),
- refusal to produce a document or to sign a record,
-objecting to the communication of a file.
38 To make it possible for the judge to consider whether the appeal is unreasonable or vexatious or otherwise constitutes an abuse of the judicial control, it is of the utmost importance that reasoned grounds of the appeal are required. Such grounds should be advanced to the court at an early stage of the appeal, preferably in the first written submission to the court.
39 Courts should have the power to penalise, through fines or ordering the payment of extra costs caused by the delay, the appellants or their representatives or both if they cause unnecessary delays and in appropriate cases should ensure that time limits are observed. Moreover, if the losing party has to compensate the winning party for his legal costs it would serve as an efficient remedy against abuse of the right of appeals.
40 Although in some Member States judges already have the power to sanction appellants or their representatives who cause unnecessary delays, they do not always make sufficient use of these powers. The Recommendation suggests in general that judges should combat unnecessary delays and should use sanctions where appropriate, of course always subject to the principle of judicial fairness.
41 In this respect reference may be made to the Belgian and French systems. The Belgian code of civil procedure gives in Article 1072 bis the judge the possibility to award damages and/or require a fine to be paid in the case of a rash or vexatious appeal4.
42 Article 32.1 of the new French code of civil procedure, indicates that persons acting in a slow or vexatious manner may be ordered to pay a civil fine (100 F to 10,000 F) subject to any damages which may be claimed5.
43 Other measures may include making judgments immediately enforceable and granting stay of execution in limited cases. A particular system may consist in giving the second court a power to refuse to hear the appeal unless the appellant has complied with the judgment, for instance paid a sum of money, provided adequate security or the second court grants a stay of execution. If the judgment is final, its enforcement is normally immediate. In such cases so-called extraordinary appeals may be lodged in some States. This would usually not hinder the execution unless a stay is ordered or adequate security is given.
44 In some countries, other measures have been taken in special cases. For instance, where insurance companies file an appeal in Spain they may in some cases be required to give security or, if they lose the case, pay a higher interest rate.
5 - Measures limiting the scope of the proceedings in the second court
45 It is a general principle of procedure in cases which are open to the free agreement of the parties that only the appealed matter should be considered by the second court, although, in some cases, such as cases involving the custody of children or involving other matters relating to public order, the court has a duty to act on its own motion. The court may sometimes also in cases where the parties are free to agree have to act on its own motion, for instance where the court is incompetent rationae materiae. Such rules are found in the internal law of States.
46 There are a number of legislative techniques by which the legislator may ensure that only the appealed matter is considered by the second court. Article 5 lists some of these examples. In particular the restriction of the possibility of introducing new claims, facts or evidence in the second court is widely known in the Codes of Procedure in the member States. Such restrictions do not usually apply where new circumstances have arisen after the decision of the first court or where it was not possible to introduce the evidence, claims or facts in the first court.
CHAPTER III - OTHER MEASURES TO IMPROVE THE FUNCTIONING OF APPEAL SYSTEMS AND PROCEDURES
6 - Measures improving the efficiency of the appeal procedures
47 It may be said that the measures previously dealt with are all designed to improve the efficiency of appeal procedures. However, it was considered appropriate to gather such measures which are designed to improve the procedures as such in a separate Chapter. All measures mentioned in this Chapter therefore will ensure that appeals are heard expeditiously and efficiently. They are not intended to harmonise appeal procedures but merely serve as examples of how such procedures may be made more efficient.
48 In some States certain matters relating to appeals are decided by a single judge (eg appeals in minor cases or where leave to appeal is sought by the losing party). Courts should never make use of more judges than are necessary to deal with cases. Some examples of such situations, drawn from the legislation of several States, are mentioned in the Recommendation. In France and in the Netherlands, all types of family cases may be tried by a single judge on appeal. In other States, such a possibility may not exist in certain types of family cases, for instance involving the custody of children.
49 Written submissions are useful in that their use may make it unnecessary to hold an oral hearing or may contribute to shortening it. On the other hand, written submissions may also contribute to slowing down the procedures, since the other party must have access to them, must be given the time to reflect on the submissions and may, in his turn, make new submissions. Therefore, in some States such as the Netherlands, it has been considered possible to restrict the number of written submissions to one set from each party. The general philosophy behind such legislation is, on the one hand, that the main proceedings should take place in the first court and on the other hand, since the main proceedings have already taken place, that the second court should be able to focus its considerations to certain aspects of the case which should be dealt with by the parties in the written submissions to the second court. Written submissions should be restricted to the "minimum necessary". In such cases of necessity, more than one set of documents may be exchanged although that would remain exceptional.
50 The appeals procedure of some States requires that there be an oral hearing. However, in those States also it should be possible to dispense with a hearing, in particular where the parties so request. The initiative may also be taken by the court. If a party requests an oral hearing however, such a request may not be dispensed with unless the requirements of article 6, paragraph 1 of the Human Rights Convention are fulfilled. In certain situations, such as where the second court, because of procedural rules, may not change the decision of the first court as the decision was based on evidence given by a witness who was heard by the first court, the second court might have to hear the evidence of that witness again. Nevertheless, in most cases, such as where the second court's decision concerns a point of law, it should be possible to dispense with a hearing at the request of the parties.
51 A number of measures may be taken to reduce the length of oral hearings. In some cases use of written procedures before the oral hearings may contribute to a shortening of the hearing itself. In other cases, so-called out-line arguments may be used, i e that the party pleading the case is required to hand in to the court a paper stating the main arguments in the case. In some countries the parties ere required to send in the entire address they intend to submit to the court, thus permitting the judges to focus their questions on essential matters and be better prepared for the case.
52 Other measures which might be considered include the adoption of special accelerated procedures and the introduction of stricter deadlines for the exchange of documents or avoiding excessive intervals between hearings.
53 Where several oral hearings are held in one case, the court should seek to reduce the length of the adjournment between the hearings to the minimum. This is necessary since the judges will need to have, in particular, the oral evidence fresh in their minds when they later discuss the case. Where a case requires a hearing of several days or weeks, the court should plan its work so that the hearing will be consecutive and not dispersed over longer periods. Some laws contain maximum periods of adjournments between hearings and stipulate that the hearing must be renewed if such maximum time has lapsed between two hearings. Immediately after the hearing is over, the judges should meet to discuss the case and take at least a preliminary decision on which a written decision may be based. Any further discussions between the judges should be held within a short time thereafter so that the
written decision may be issued within the shortest time possible. Specific time limits for issuing decisions should be laid down in the law.
54 The time limits fixed by the court or under the law should be observed by the parties and judges should only be willing to grant an extension of these time-limits where there is a good reason for such an extension. Sanctions should, as a rule, be imposed where time limits are not complied with. In some cases sanctions should not be imposed for non-compliance with time-limits, such as when the party was not at fault.
55 In order to ensure the smooth progress of proceedings, member States could consider giving judges a more active role both before and during the hearing. For example, a special judge can be made responsible for conducting preparatory inquiries, in particular the judge responsible for the preparatory hearing. Also at the stage of the second court, it should be possible to encourage settlements.
56 In certain States, at the introductory hearing the judge to whom the case has been referred may decide, when the case is called, that it is not ready for immediate presentation but should be the subject of a full inquiry. The case would then be sent back to the judge carrying out the preparatory inquiry and the inquiry would continue until the judge in question issues an order closing it. The judge carrying out the preparatory inquiry has several powers. First, he acts as a conciliator: at any stage of the investigation he can invite the parties or their representatives to appear before him to reach a friendly arrangement. The record of the conciliation containing details of the friendly settlement is enforceable. The preparatory inquiry judge can also order certain inquiries to be carried out and has the power to examine certain objections, such as objections raised to delay proceedings, objections that the proceedings are null and void on the grounds of procedural defect and supplementary applications (advances for costs, provisional measures and certain steps to preserve rights). Any such preparation may contribute to reducing the length of appeals procedures.
57 The judge responsible for the preparatory enquiries has the task to ensure that the proceedings during these enquiries take place in a proper manner and that the exchange of pleadings and evidence is carried out at the correct time. The decisions of the judge conducting the preparatory enquiries are administrative acts which are not open to appeal. An appeal can, however, be made against the order closing the case.
58 The Recommendation also favours the encouragement by judges of the settlement of disputes by means of agreement between the parties. The courts and the parties' representatives should give priority to conciliation at all stages of the proceedings. This provision takes account of Recommendation No R (86) 12 concerning measures to prevent and reduce the excessive workload in the Courts. Part I c. of the Recommendation provides that measures could be considered "making it an ethical duty of lawyers or inviting the competent bodies to recognise as such that lawyers should seek conciliation with the other party before resorting to legal proceedings and at any appropriate stage of such proceedings".
59 The following provisions to promote conciliation could be considered:
- asserting the conciliatory role of the judge;
-authorising the judge to order litigants to appear before the court with a view to conciliation;
-recognising the right of all parties to introduce prior conciliation proceedings in court.
60 Priority should be given to the accelerated consideration of urgent cases. It is for domestic law to decide who can request accelerated consideration and what criteria should be used to designate a case as urgent and who within the judicial system would have competence for dealing with such cases. The last point in particular is sensitive and has been dealt with differently amongst member States. It is usual that some kind of system operates whereby the urgent character of cases is decided either by the law or by the procedural rules of the court and that assignment of judges to such cases operates automatically, for instance selection through alphabetical order.
61 In some countries, it has been found that much can be done about back-logs in the courts simply if parties to litigation, courts and lawyers speak to each other. Of course, such contacts should never be such as to question the objectivity and independence of the judge, but are designed to promote a better understanding of each other's respective role. In Norway discussions have taken place between the judges and the Ministry of Justice concerning the average length of time which should be necessary for the preparation of a case, the hearing of the case and the judgment. For the first instance courts (not including the Conciliation Board) this is considered to be a total of six months in civil cases. For appeals in civil cases this is also considered to be six months. Similarly, some courts have held seminars with the local Bar Associations and experience has proven these seminars valuable, both for Bar Associations and for courts.
62 It goes without saying that the courts should be given adequate technical resources in order to be able to fulfill their tasks. Nevertheless, it was found useful to include a reminder to governments that such facilities may contribute to reducing back-logs.
63 The question of allowing only members of the Bar to act in appeal proceedings, in particular in the third court is relevant for reducing the length of the proceedings. It was however not found appropriate to make an absolute recommendation in this respect, in view of the different legal situations in the member States. States should however enable, whenever possible, litigants to be legally represented in appeal proceedings and should encourage litigants to make use of trained lawyers to represent them, for instance by making provision for this where appropriate through legal aid or similar schemes. The Council of Europe has in other contexts supported such schemes (Recommendation No R (93) 1 on effective access to the law and justice for the very poor).
CHAPTER IV - ROLE AND FUNCTION OF THE THIRD COURT
7 - Measures relating to appeals to a third court
64 Appeals to a third court should, in principle, only be authorised in cases which merit a third judicial review, such as disputes relating to important matters. These cases may concern points of law, violation of general legal principles or disregard of important procedural rules. In particular, cases which develop the law or which contribute to the uniform interpretation of the law seem appropriate for consideration by the Supreme Court or the Court of Cassation. It was felt that the right of judicial control would be sufficiently
safeguarded if a system of appeal were to be introduced in the member States. Setting up a third court would therefore not be necessary, unless it was felt important for purposes such as those just mentioned.
65 Many of the recommendations made in the previous Chapters, such as those contained in article 4, paragraphs (b) and (c), are valid for the stage of the third court, in particular as the case has already been heard by two courts (except in so-called "leap-frog" procedures, see below). The Recommendation does not deal with constitutional courts.
66 With a view to a rapid settlement of certain types of cases of particular importance, member States could permit them to be dealt with by a higher court than that which would normally be competent. This could be done by means of a referral for a preliminary ruling, a request for an opinion or a "leapfrog" procedure to take a case directly to the higher court thereby by-passing the normal court. Such a procedure would normally require a decision by the first court and consent of the parties and might even, in some States, need leave from the third court.
67 As with the second court, a full re-examination of a case is not always necessary or desirable. As the case has already been the subject of a judicial review, greater efficiency in dealing with the case and a reduction of the costs involved would be achieved if the third court could be allowed by domestic law to limit, in certain cases, the examination of the case or to use an accelerated procedure whenever this would be fair.
68 The Recommendation seeks to limit the possibility of presenting new facts or evidence in the second court and, consequently, seeks to limit this possibility even more in the third court. However, some account must be taken of exceptional circumstances where it should be possible for judges to exercise their discretion in such cases.
Note 1 1 Golder versus the United Kingdom Case, Eur. Court HR, 21 February 1975, Series A No 18, pp. 12-20, paras. 25 - 40. Cf text of Article 6 of the European Convention on Human Rights: "Everyone is entitled to a ... hearing ... by a tribunal ...".
Note 2 2 Delcourt case, Eur. Court HR, 17 January 1970, Series A No 11, p.14, par. 25 - al 4
Note 3 3 Article 2 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms stipulates that, subject only to exceptions prescribed by law, everyone convicted of a criminal offence shall have the right to have his conviction or sentence reviewed by a higher tribunal.
Note 4 4 When judges of the Court of Appeal dismiss the main appeal they decide in the same decision on the matter of any damages claimed by one of the parties. When dismissing the main appeal the judge is also competent to require the party responsible for the delay in the case of a rash or vexatious appeal to pay a civil fine. This matter is dealt with at a hearing which is fixed by the decision dismissing the appeal and which takes place soon after the decision. The parties are heard during this hearing. The fine is paid to the Exchequer.
Note 5 5 This provision is included in the first part of the new Code of civil procedure dealing with provisions which apply to all jurisdictions. However it should be noted that there are two other Articles (procedure for appeal, cassation) which expressly provide for the possibility for a civil fine, without prejudice to damages which may be claimed. These Articles are as follows:
Note Article 559: in case of a main appeal which is slow or vexatious, the appellant may be ordered to pay a civil fine of 100 F to 10,000 F, without prejudice to any damages which may be claimed.
Note Article 628: the person bringing proceedings before the Court of Cassation who loses may, in case of proceedings considered to be vexatious, be ordered to pay a civil fine which may not exceed 20,000 F and to pay the defendant an indemnity up to the same amount.
Note As regards the notion of vexatious procedure it was held that bringing an action as well as defending an action, amounted to a vexatious procedure if it was malicious or there was bad faith. The inexact appreciation by parties of their rights is not in itself a fault.