APPELLO. — In its broadest meaning, this word may designate any complaint lodged against a measure of the authority by one who claims to have been harmed by II. This is how the ancient canonists understood it; they commonly distinguished the appellatio iudicialis from the appellatio extraiudicialis, according as its object was a judgment of the judge or an administrative act. In the technical sense, however, the term a. is used today only with the meaning of “ordinary means of challenging judgments”; accordingly, in this specific sense we shall limit our treatment of it in the present article, referring elsewhere for the rest to the entry RICORSO.
SUMMARY:
I. Historical notes
II. General notions
III. Subjects of the right of a
IV. Judgments not subject to appeal
V. Effects of a
VI. Procedure
VII. A. in civil legislation.I. HISTORICAL NOTES
The common observation that every human judgment, regardless of any possible ignorance or bad faith on the part of the judge, is always liable to error does not, in itself, warrant the assertion that the institution of the appeal is a matter of natural law. It more probably constitutes a remedy devised by human beings in times and countries of advanced civilization, with the aim of ensuring, insofar as possible, the proper administration of justice; nor is the danger, already denounced by Ulpian, that the judgment at second instance might ultimately prove more unjust than the first, such as to undermine its solid logical and moral foundation.In the Roman law of the Republic, appellatio denoted the recourse by which a party subject to the ordo iudiciorum privatorum invoked the intercessio of the consuls or tribunes against the decree issued in iure by the praetor, not in order to obtain its reform or annulment, but solely to paralyze its effects. In the imperial age, once the supreme head of the State had been recognized as possessing the right to modify or nullify any judicial decision, appellatio assumed the more precise character of a complaint against the magistrate’s judgment; and since the emperor used to entrust to his delegates, whether permanent or appointed from time to time, the extra ordinem examination of the cases submitted to him, those complex gradations of jurisdiction and those special rules of procedure gradually took shape in which the origin of the modern system of multiple instances must be sought.
Canon law immediately adopted the institution of the appeal. The prescription assigning to provincial synods, to be convened annually, the examination of complaints brought against the measures of bishops dates, in fact, from the Council of Nicaea (325). And canon 10 of the Third Council of Carthage (397), reproduced in Gratian’s Decree at canon 9, C. II, q. 6, expressly provided: A quibuscumque iudicibus ecclesiasticis ad alios iudices ecclesiasticos ubi est maior potestas provocare liceat. The Decretals dealt extensively with the matter, creating a genuine judicial hierarchy, while maintaining the principle that, in order to obtain justice, it should in every case be possible to appeal directly to the Apostolic See. The excessive use that the faithful made of this faculty, together with the provision permitting appeals to be brought as many times as necessary to obtain three concordant judgments, increased the number and duration of proceedings to such an extent that popes and councils (most recently the Council of Trent, sess. XXIV, de ref., canon 20) were led to impose certain limitations and restrictions, most of which are also retained in the law currently in force.
II. GENERAL NOTIONS
Canon 1879 of the CIC defines the right of appeal: ius provocandi ab inferiore iudice qui sententiam tulit ad superiorem. The exercise of this right finds its justification not so much in the relationship of dependence (which may also be lacking) of the lower judge upon the higher judge, as in the desirability that any errors on the former’s part should be recognized and corrected by the latter, so that the best possible decision may be obtained. It must therefore not be regarded as a personally directed attack against the magistrate (as, for example, occurred in the Germanic law of the early Middle Ages), but as the expression of a desire that the case be re-examined on its merits through the continuation of the procedural relationship previously established between the parties. Its prerequisite is the existence of a formally valid judgment; and it is precisely in this that the appeal differs from the querela nullitatis (v. NULLITÀ).As regards the competent judge, it may be said in general (cf. cann. 1569–1607) that—with the exception of the faculty granted to any member of the faithful to refer his own case to the Roman Pontiff—appeals against the judgments of the episcopal tribunal are brought before the metropolitan tribunal, whereas the re-examination of disputes heard in the first instance by the metropolitan tribunal belongs to one of the diocesan tribunals of the province, designated on each occasion by the archbishop himself with the approval of the Holy See. For subsequent instances—and also for the second instance, should the party prefer to apply to it—the ordinary tribunal of appeal is the Sacred Roman Rota. Particular rules govern jurisdiction in cases involving exempt religious; and with regard to matrimonial cases, for Italy and certain other countries, the Holy See has designated, for each regional tribunal, the respective tribunal of second instance.
III. SUBJECTS OF THE RIGHT OF APPEAL
Once the exclusions formerly in force, especially in criminal trials, against certain persons (such as latrones insignes, those who had confessed their guilt, and heretics) had been abolished, the right to appeal is now recognized without exception:a) To the party to the case (plaintiff, defendant, accused, voluntary or compulsory intervener) who considers himself aggrieved by the judge’s decision and therefore has an interest in seeking its total or partial reform. A person who is not a party may, where appropriate, exercise, in place of the appeal, third-party opposition (v.).
b) To the promoter of justice and the defender of the bond, limited to proceedings in which they have intervened (but it should be borne in mind that, against a first judgment declaring a marriage or a sacred ordination null, the defender of the bond, in accordance with canons 1986 and 1998, § 2, is obliged to appeal).
IV. JUDGMENTS NOT SUBJECT TO APPEAL
All judgments may be appealed, with the exception of those which the law (can. 1880) expressly declares not subject to appeal, namely:1) Judgments personally issued by the Supreme Pontiff. Since there is no human authority superior to the Pope, an a. against his decisions is evidently inconceivable. Anyone who appealed to the ecumenical Council would commit the crime provided for by can. 2332 (v. AUTORITÀ ECCLESIASTICHE, delitti contro le).
2) Judgments of the Supreme Tribunal of the Apostolic Signatura. It should be noted, however, that in proceedings brought against auditors of the S. Rota for violation of secrecy or for other offences (can. 1603, § 1, n. 1), the right is ordinarily granted to bring an a. before the same Signatura (can. 1604, § 1).
3) Judgments pronounced by a judge who has been delegated by the Holy See with the clause « appellatione remota ». The use of this clause or of analogous formulas (« appellatione cessante », « sublato appellationis obstaculo », « sublato appellationis diffugia ») was very frequent in the law of the Decretals, but is today extremely rare.
4) Null judgments. Against them, only a complaint of nullity may be brought (v. NULLITÀ). However,
this may also be joined with an a. (cann. 1894, 1895).
5) Judgments that have become res judicata. Against such judgments, under certain conditions, the only remedy available is the extraordinary remedy of restitutio in integrum (v.).
6) Judgments pronounced following a decisive oath; provided, of course, that the content of the oath constitutes the true and fundamental reason for the decision.
7) Interlocutory judgments that do not have the force of final judgments. Which judgments are interlocutory and which of them may, in certain respects, be equated with final judgments will be explained under the entry SENTENZA. Here it suffices to observe that, although they are not subject to an autonomous a., purely interlocutory judgments may be appealed, at the appropriate time, together with the final judgment.
8) Judgments issued in cases for which it is prescribed that proceedings must be conducted «expeditissime». Such are, for example, those ruling on an appeal brought against the rejection of the initiating pleading (can. 1709, § 3), and those deciding an application for the recusal of a judge (can. 1616).
9) Judgments pronounced against a contumacious party who has not purged his contumacy (v. CONTUMACIA). This provision has, on the one hand, the character of a sanction against one who, by failing to appear before the judge, shows contempt for his authority; and, on the other, it is founded on the presumption that one who refrained from appearing at first instance implicitly intended to submit himself to the justice of the tribunal and to renounce the a. Nevertheless, if the contumacious party demonstrates that this occurred independently of his will, he may, within three months of notification of the judgment, request to be restored to the time limit for appealing (can. 1847).
10) Judgments pronounced against one who has declared in writing that he renounces the a. Rather than an objective non-appealability of the judgment, this case concerns the party’s voluntary forfeiture of the right to appeal. The written act is required ad soliditate, and nothing prevents the renunciation from preceding publication of the judgment.
See EFFECTS OF THE A. — According to traditional terminology, the suspensive effect and the devolutive effect are distinguished in an a.
The suspensive effect consists in the fact that, while the appellate proceedings are pending, the judgment appealed against cannot, as a rule, be executed. This principle, derived directly from Roman law (appellatione interposita nihil novari oportet, D. 7, 1, 49), is solemnly confirmed by the CIC in can. 1889, §§ 1–2, and finds its justification in the fact that, as already mentioned, the dispute continues between the same parties and concerning the same subject matter notwithstanding the existence of a previous decision on the merits; hence the nullity or, at least, the voidability of any implementing acts that may have been carried out.
At times, however, the law itself prescribes that the judgment be executed notwithstanding the appeal lodged, as occurs, for example, with judgments imposing censures (can. 2243, § 1); in such cases the judge may, where there is demonstrable urgency or necessity, order provisional execution (can. 1917, § 2).
The devolutive effect consists in granting the appellate judge full cognizance of the case. It is, however, subject to the following limitations: 1) If the party has challenged only certain parts of the judgment, the remaining parts are considered excluded, and the judge may not rule on them (can. 1887, § 3); 2) A new causa petendi is in no case admissible: the dispute is presented anew in the same state in which it stood before the lower judge at the close of the hearing, and consequently the task of the appellate judge remains limited to confirming or reforming, wholly or in part, the judgment appealed against (can. 1891, § 1). What is to be understood by causa petendi, and whether or not it is identical with the claim, will be considered under the heading AZIONE.
Within these limits, the devolutive effect is fully recognized by the CIC, which provides that the appellant’s appeal also benefits the respondent, and vice versa (can. 1887, § 1).
An appeal duly lodged by one party against certain parts of the judgment also gives the opposing party the right to challenge the other parts in turn, regardless of the fact that the time limit has already expired (can. 1887, § 2). This is the incidental appeal; although, by its origin, it depends strictly on the principal appeal—so that it loses all effectiveness if the latter proves to have been lodged out of time—it nevertheless retains, in other respects, the character of an autonomous challenge and does not lapse merely because the principal appellant renounces the proceedings.
Finally, where, in the same case, there are several plaintiffs or several defendants—that is, where there is active or passive joinder—and only one of the unsuccessful parties challenges the judgment, the challenge is understood to have been made by all if the dispute concerns an indivisible thing or a joint and several obligation; the costs of the proceedings, however, remain chargeable solely to the appellant if the judgment is confirmed (can. 1888). From this provision it may be inferred that the CIC, introducing a profound innovation in relation to the law of the Decretals (cf. c. 72, X, de appellationibus, recusationibus et relationibus, II, 28), adopts in principle the doctrine of the personal character of the challenge and its effects: a principle from which it permits derogation only in the expressly specified cases of the indivisibility of the thing and the joint and several nature of the obligation.
VI. PROCEDURE
In order that appellate proceedings may be validly instituted, it is first necessary for the losing party to manifest his intention of challenging the judgment: a) by lodging the appeal, within ten days of notification of the judgment, before the judge who pronounced it; b) by requesting, within thirty days of the appeal, that the appeal proceed before the appellate judge (can. 1881 ff.).Once this preliminary phase has been completed, appellate proceedings take place according to the rules prescribed for proceedings at first instance, insofar as they are applicable (v. PROCESSO). The joinder of issue might seem superfluous—and indeed it seemed so to the ancient legislators (cf. c. 58, 70, X, de appellationibus etc., II, 28)—since the subject of the dispute is immutably determined from the first instance. But the Code provides that it shall take place, limited to the question of whether the appealed judgment deserves confirmation or not (can. 1891, § 1).
As a rule, the submission of new evidence is not permitted; but this does not prevent the judge, where there are serious grounds to be assessed more or less restrictively according as the case is or is not capable of becoming res judicata, from ordering, after hearing the parties, the production of new documents, the examination of new witnesses, and the re-examination of witnesses previously questioned.
Appellate proceedings may end, like any other proceedings, by expiration, withdrawal, or judgment.
Expiration occurs if no procedural act is carried out for a period of one year (except in the event of a legitimate impediment), and has the effect of causing the appealed judgment to become res judicata (can. 1736).
Withdrawal from the appeal must be evidenced by a written instrument, signed by the appellant or by a specially authorized representative, accepted, at least implicitly, by the opposing party, and approved by the judge. Subject to these conditions, it produces the same effect as expiration (cann. 1740–41).
The judgment, finally, which represents the ordinary manner in which the appeal comes to an end, does not differ in nature or form from judgments at first instance (v. SENTENZA). As regards its effect, a distinction must be made:
A) either it confirms in full the appealed decision, thereby giving rise to the double concordant res judicata (v.); in this case, bringing the procedural relationship to an end, it becomes immediately enforceable;
B) or it reforms the appealed decision in whole or in part; and then:
a) if it is pronounced at second instance, it remains itself subject to a new appeal, except as regards any parts that have been confirmed.
b) if it is pronounced at third or a subsequent instance, it acquires the force of res judicata, as in the case provided for under letter A), insofar as its operative part coincides with that of one of the preceding judgments.
VII. A. IN CIVIL LEGISLATION. — A., as regulated by Italian law (Arts. 339–59 of the Code of Civil Procedure and Arts. 511–23 of the Code of Criminal Procedure), presents notable analogies, in substance and form, with the corresponding canonical institution. These analogies are particularly evident in the rules concerning standing to appeal, the challengeability of judgments, and the effects of the appeal, which appear, in both fields, to be inspired by the same criteria. At one point, however, the two legal systems diverge profoundly, namely in the manner of assessing the nature and purpose of appellate proceedings.
Under civil law, which, by adopting the system of two degrees of jurisdiction, disregards a third instance and rejects the principle according to which the greatest guarantee of justice would be achieved by the existence of two concordant decisions, appellate proceedings do not constitute a mere review of the lower judge’s work, but in every case form the decisive stage of the litigation. It follows that the judgment issued on appeal, whatever its tenor, does not merely add to that of first instance, but replaces and supersedes it, to the point that it must be regarded as the sole true judgment in the case, immediately enforceable (unless it concerns a criminal case, in which event an appeal to the Court of Cassation has suspensive effect).
In civil cases, the time limit for appealing varies according to the judicial authority before which the proceedings at first instance were conducted: judgments of justices of the peace must be challenged within ten days, and those of praetors and tribunals within thirty days of notification. A. is initiated by a summons containing a summary statement of the facts and the specific grounds of the challenge; and it is declared inadmissible, nor may it be brought again, if the appellant does not enter an appearance or, although having entered an appearance, does not submit his case file or fails to appear at the first hearing. A cross-appeal is admissible. In all other respects, the provisions governing proceedings at first instance apply.
Special rules are established for criminal cases. We shall recall: the prohibition against appealing judgments imposing a pecuniary penalty below a certain amount (currently 16,000 lire) and those delivered by the assize court; the right generally recognized for a defendant acquitted for insufficiency of evidence to request from the appellate judge a broader formula of acquittal; and the power granted to the public prosecutor to bring a cross-appeal. The time limit for appealing, by means of a declaration received by the clerk of the court a quo, is three days; but the grounds of the challenge may be submitted within twenty days of notification that the original of the judgment has been deposited with the registry.
Ferruccio Liuzzi.