A decision issued by the Court of First Instance, which is the primary court, whether in a civil or criminal matter, may be appealed before the Court of Appeal.
The Court of Appeal may hear the appeal from the Court of First Instance on specified grounds. Under Article 158 of the Federal Law No 11 of 1992 (Civil Procedures Law), the following decisions may be appealed:
1) The decisions issued within the final quorum by the court of first instance, due to breach of the jurisdiction rules related to the public policy or because of the occurrence of an invalidity in the judgment or the decision or an invalidity in the procedures which has affected the judgment or the decision.
2) All the judgment or decisions within the final quorum may be appealed as well if the decision was issued in contradiction to a preceding judgment or decision not having acquired res judicata effect, and in such circumstance, the preceding decision shall be considered appealed by the force of law if it hasn’t become final when the appeal was filed.
The appeal has to be filed within 30 days from the date of issuance of judgement under Article 159 of the Civil Procedures Law, unless the statute stipulates otherwise. The appeal is to be filed by submitting a pleading under Article 162 of the Civil Procedures Law. The pleading includes a statement of the appealed judgement, grounds of appeal, motion and information on the name of litigants and their details including capacities and their domiciles, amongst others. The appellant is required to deposit a security amount with the treasury.
In criminal matters, the accused and the public prosecution may appeal the judgements rendered by the criminal courts of first degree under Article 230 of Federal Law No 35 of 1992 (Criminal Procedural Law). It should be noted that any judgment which pronounces a death sentence is considered to have been appealed de jure and its execution is stayed.
Under Article 234 of the Criminal Procedural Law, the appeal to the appellate court is to be lodged within 15 days as of the date of pronouncing the judgement. The public prosecutor may appeal within 30 days from the time the judgement is rendered.
Decisions of the Appellate Court & Further Appeal
If the Court of Appeal deems that there is nullity in the judgment or procedures which affected the decision of the court of first instance, then it will cancel the decision under Articles 166 of the Civil Procedures Law and 242 of the Criminal Procedures Law. In criminal matters, it may re-judge the case, while in civil matters, it may decide the action it wants to pursue. The matter could also be returned to the court of first instance in some situations.
The decision of the Court of Appeal may be further appealed to the Cassation Court.
Under Article 173 of the Civil Procedures Law, an appeal may be filed before the Cassation Court in the following cases.
* If the appealed judgment was based on breach of law or a mistake in its application or interpretation.
* If a nullity in the judgement or in the procedures has affected the judgement.
* If the appealed judgement was issued contrary to the rules of the jurisdiction.
* If the dispute was adjudicated contrary to another decision which was issued in the same subject-matter among the same litigants and acquired the force of res judicata.
* The decision’s lack of reasons, inadequacy or its ambiguity.
* If the decision has ruled for matters not requested by the litigants or more than that requested by the litigants.
In criminal matters, the final judgments rendered by the Court of Appeal in a felony or misdemeanor may also be appealed before the Cassation Court on the grounds mentioned in Article 244 of the Criminal Procedures Law. These grounds are explained below.
* In case the challenged judgment is based on a violation of the law or a mistake in its application or interpretation.
* If the judgment is void or there is a nullity in the procedures affecting the judgment.
* If the court has adjudged the civil claim in excess of the amount claimed.
* If the judgment is void of any justification or if it is insufficient or obscure.
* If two contradictory judgments have been rendered on the same act.
Under Article 256 of the Criminal Procedures Law, a public prosecutor will either, directly or upon a written request of the minister of Justice, challenge the final judgments, regardless of the court that rendered it, before the Cassation Court, where the challenge is based on a violation, misapplication or misinterpretation of the law, in the following cases.
Judgments which the law does not allow the parties to challenge.
Judgments in which parties have relinquished their right to challenge or have filed one but it was not accepted.
Conclusion
The procedure explained gives a broad overview of the process to be followed when a decision issued by the lower courts is challenged. In all such instances, it is crucial that experienced lawyers who have extensive skill and expertise to deal with these matters are hired, who can take on such cases and help in getting optimal results.
