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COUNCIL OF EUROPE

COMMITTEE OF MINISTERS

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RECOMMENDATION No. R (95) 5

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

(Adopted by the Committee of Ministers on 7 February 1995
at the 528th meeting of the Ministers' Deputies)

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:

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:

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:

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:

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.

g. In principle, new facts or new evidence may not be presented in the third court.