Appeal

APPEAL. - In its broadest meaning this word can designate any complaint brought against a measure of authority by one who claims to be harmed by it. Thus the ancient canonists understood it, and they were accustomed to distinguish appellatio iudicialis from appellatio extraiudicialis, according as its object was a sentence of the judge or an administrative act. But in the technical sense the term appeal is today used only in the meaning of "ordinary means of challenging sentences"; hence under this specific aspect we shall limit ourselves to treating it in the present article, referring for the rest to the entry RICORSO.

I. HISTORICAL NOTES

The common observation that every human judgment, regardless of the possible ignorance or bad faith of the judge, is always susceptible of error, does not authorize us to assert outright that the institution of appeal is of natural law. It more probably constitutes a remedy devised by men in times and countries of advanced civilization, for the purpose of ensuring as far as possible a sound administration of justice; nor is the danger, already denounced by Ulpian, that the judgment of second instance may prove, in the end, more iniquitous than the first, such as to undermine its solid logical and moral foundation.

In the Roman law of the republic, the term appellatio denoted the recourse by which a party, subject to the ordo iudiciorum privatorum, invoked the intercessio of the consuls or the 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, since the supreme head of the State had been recognized as having the right to modify or to nullify any judicial decision, the appellatio assumed a more precise character of complaint against the sentence of the magistrate; and since the emperor was accustomed to entrust to his delegates, whether permanent or appointed from time to time, the cognizance extra ordinem of the cases submitted to him, there gradually took shape those complex gradations of competence and those special rules of procedure in which the origin of today's system of multiple instances must be traced.

Canon law immediately adopted the institution of appeal. Indeed, the prescription that assigned to the provincial synods, to be convoked annually, the examination of complaints brought against the measures of bishops dates back to the Council of Nicaea (325). And can. 10 of the Third Council of Carthage (year 397), reproduced in Gratian's Decree at can. 9, C. II, q. 6, expressly laid down: A quibuscumque iudicibus ecclesiasticis ad alios iudices ecclesiasticos ubi est maior potestas provocare liceat. The Decretals dealt extensively with the matter, creating a true and proper judicial hierarchy, but holding firm to the principle that, in order to obtain justice, it was possible in every case to turn directly to the Apostolic See. The excessive use that the faithful made of this faculty, as well as the provision that allowed appeal as many times as were necessary to obtain three conforming sentences, so increased the number and the duration of proceedings as to induce popes and councils (lastly the Council of Trent, sess. XXIV, de ref., can. 20) to certain limitations and restrictions which for the most part are preserved also in current law.

II. GENERAL NOTIONS

Can. 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, rather than in the relationship of dependence (which may even be lacking) of the lower judge upon the higher judge, in the expediency that any errors of the former be recognized and corrected by the latter, so as to obtain the best possible decision. It must not therefore be considered as an attack personally directed against the magistrate (which is what occurred, for example, in the Germanic law of the early Middle Ages), but as the manifestation of the 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 sentence; and it is precisely in this that the appeal differs from the querela nullitatis (v. QUERELA DI NULLITÀ).

As for the competent judge, it may be said in general (cf. cann. 1569-1607) that - saving the faculty granted to any of the faithful to refer his own case to the Roman Pontiff - against the sentences of the bishop's tribunal one appeals to the metropolitan tribunal, while the re-examination of controversies treated in first instance by the metropolitan tribunal belongs to one of the diocesan tribunals of the province, designated for the occasion by the archbishop himself with the approval of the Holy See. For subsequent instances - and also for the second, should a party prefer to have recourse there - the ordinary tribunal of appeal is constituted by the Sacred Roman Rota. Particular norms regulate competence in the causes of religious; and as regards matrimonial causes, for Italy and for some other country, 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 that formerly prevailed, especially in criminal trials, against certain persons (such as latrones insignes, confessed offenders, heretics) have been abolished, the right to appeal is at present recognized without exceptions: 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 bringing about its total or partial reversal. One who is not a party may, if appropriate, exercise, in place of the appeal, the opposition of a third party (v.).

b) To the promoter of justice and to the defender of the bond, limited to the trials in which they have intervened (but it should be borne in mind that against a first sentence declaring the nullity of a marriage or of a sacred ordination the defender of the bond, in accordance with cann. 1986 and 1998, § 2, is obliged to appeal).

IV. NON-APPEALABLE JUDGMENTS

All judgments may be appealed, with the exception of those that the law (can. 1880) expressly declares to be not subject to appeal, which are:

1) Judgments issued personally by the Supreme Pontiff. Since no human authority is superior to the Pope, an appeal against his decisions is evidently inconceivable. Anyone who appealed to an 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 trials brought against the auditors of the S. Rota for violation of secrecy or for other infractions (can. 1603, § 1, n. 1), the faculty of recourse by appeal to the same Signatura is usually granted (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 these, only the querela nullitatis (v. QUERELA DI NULLITÀ) may be brought. However, this may also be cumulated with the appeal (cann. 1894, 1895).

5) Judgments that have become res judicata. Against such judgments, under determined conditions, only the extraordinary remedy of restitutio in integrum (v.) is available.

6) Judgments pronounced following a decisive oath; provided, of course, that the content of the oath constitutes the true and fundamental ground of the decision.

7) Interlocutory judgments not having the value of definitive ones. What interlocutory judgments are and which of them may, in certain respects, be equated with definitive ones will be explained under the entry SENTENZA. Here it suffices to observe that, although they are not subject to an autonomous appeal, merely interlocutory judgments may be appealed, at the appropriate time, together with the definitive one.

8) Judgments issued in cases for which it is prescribed that proceedings must be conducted "expeditissime". Such are, for example, those that rule on the recourse brought against the rejection of the introductory libellus (can. 1709, § 3) and those that decide on the request for recusal of the judge (can. 1616).

9) Judgments pronounced against the contumacious party who has not purged his contumacy (v. CONTUMACIA). This provision has, on the one hand, the character of a sanction with regard to one who, by not appearing before the judge, shows contempt for his authority; and it is founded, on the other hand, on the presumption that one who abstained from appearing in the first instance implicitly intended to submit to the justice of the tribunal and to renounce the appeal. The contumacious party, however, if he demonstrates that this occurred independently of his will, may, within three months of the notification of the judgment, request to be restored to terms for appealing (can. 1847).

10) Judgments pronounced against one who has declared in writing that he renounces the appeal. Rather than the objective non-appealability of the judgment, what is involved in this case is the voluntary forfeiture by the party of the right to appeal. The written act is required ad soliditate, and nothing prevents the renunciation from preceding the publication of the judgment.

V. EFFECTS OF THE APPEAL

According to a traditional terminology, a distinction is drawn within an appeal between the suspensive effect and the devolutive effect.

The suspensive effect consists in this, that while the appellate proceedings are pending the judgment appealed against cannot, as a rule, be executed. This principle, of purely Roman derivation (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 has already been mentioned, the suit continues between the same parties and over the same subject-matter notwithstanding the existence of a previous decision on the merits; whence the nullity, or at least the voidability, of any executory acts that may have been performed.

Sometimes, however, the law itself prescribes that the judgment must be executed notwithstanding the appeal interposed, as happens, for example, in the case of judgments by which censures are inflicted (can. 2243, § 1); at other times the judge may, in cases of proven urgency or necessity, order provisional execution (can. 1917, § 2).

The devolutive effect consists in attributing to the appellate judge full cognizance of the case. It is, however, subject to the following limitations: 1) If a party has challenged only certain heads of the judgment, the remaining heads are considered excluded, and the judge cannot pronounce upon them (can. 1887, § 3); 2) A new causa petendi is in no case admitted: the suit is presented anew in the same state in which it stood before the lower judge at the moment of the close of the discussion, and therefore the task of the appellate judge remains confined 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 domanda, will be seen under the entry AZIONE.

Within these limits, the devolutive effect is fully recognized by the CIC, which provides that an appeal by the plaintiff benefits the defendant as well and vice versa (can. 1887, § 1).

From an appeal duly brought by one party against certain heads of the judgment there follows, moreover, the faculty of the opposing party to challenge in turn the other heads, independently of the fact that the time-limit has expired (can. 1887, § 2). In this case there is an incidental appeal; and although by reason of its origin it depends strictly on the principal appeal (so as to lose all efficacy should the latter prove to have been brought out of time), it nevertheless retains, as to the rest, the character of an autonomous grievance and does not lapse by the mere fact that the principal appellant renounces the proceedings.

In the hypothesis, finally, that in one and the same case there are several plaintiffs or several defendants (that is, that there is an active or passive litisconsortium) and that only one of the unsuccessful parties challenges the judgment, the challenge is understood to be made by all if the controversy concerns an indivisible thing or a joint and several obligation; the costs of the proceedings, however, remaining chargeable to the appellant alone should the judgment be confirmed (can. 1888). From this provision it may be deduced that the CIC, innovating profoundly with respect to the law of the Decretals (cf. c. 72, X, de appellationibus, recusationibus et relationibus, II, 28), accepts in principle the principle of the personality of the grievance and of its effects: a principle from which it permits derogation only in the cases, exhaustively enumerated, of the indivisibility of the thing and the joint and several nature of the obligation.

VI. PROCEDURE

For an appeal judgment to be legitimately instituted, it is necessary first of all that the losing party manifest his will to challenge the sentence: a) by lodging, within ten days of the notification of the sentence, the appeal before the judge who pronounced it; b) by requesting, within thirty days of the appeal, the continuation of the appeal before the appeal judge (can. 1881 ff.).

Once this preliminary phase is completed, the appeal judgment proceeds according to the norms prescribed for the judgment of first instance, insofar as they are applicable (v. PROCESS). The contestation of the suit might seem superfluous — and indeed it seemed so to the ancient legislators (cf. c. 58, 70, X, de appellationibus etc., II, 28) — since the object of the controversy is immutably determined from the first instance. But the Code provides that it take place, limited to the question whether the appealed sentence merits confirmation or not (can. 1891, § 1).

The introduction of new evidence is not admitted, as a rule; but this does not prevent the judge, when there concur grave reasons to be evaluated more or less restrictively according to whether the case is susceptible or not of becoming a matter of 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 interrogated.

The appeal judgment can terminate, like any other judgment, by peremption, by renunciation, or by sentence.

Peremption occurs if for the duration of one year (except in the case of legitimate impediment) no procedural act is performed, and it has the effect of the appealed sentence becoming a matter of res judicata (can. 1736).

The renunciation of the appeal must result from a written act, be signed by the appellant or by his special procurator, be accepted, at least implicitly, by the opposing party, and receive the approval of the judge. Under these conditions, it produces the same effect as peremption (cann. 1740-41).

The sentence, finally, which represents the ordinary manner in which the appeal is terminated, does not differ in nature and in form from sentences of first instance (v. SENTENCE). As to its efficacy, a distinction must be made:

A) either it confirms the appealed decision integrally, so as to give rise to the double conforming decision and, therefore, to res judicata (v.); and in that case, exhausting the procedural relationship, it becomes immediately enforceable;

B) or it reforms the appealed decision in whole or in part; and then: a) if it is pronounced in the second instance, it remains in its turn subject to the lodging of a new appeal, except for the heads possibly confirmed.

b) if it is pronounced in the third or a subsequent instance, it acquires the value 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 sentences.

VII. THE APPEAL IN CIVIL LEGISLATION

The appeal, 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 in form, with the corresponding canonistic institution. Such analogies are revealed particularly in the norms concerning the legitimation to appeal, the appealability of sentences and the effects of the appeal, which appear, in the one and the other field, inspired by the same criteria. But in one point the two juridical systems deeply diverge, namely in the manner of evaluating the nature and the purpose of the judgment of appeal.

For civil law, which, adopting the system of the double degree of jurisdiction, prescinds from the third instance and repudiates the principle according to which the maximum guarantee of justice would be attained by the existence of two conforming pronouncements, the judgment of appeal does not represent a simple control of the work of the lower judge, but constitutes in every case the decisive phase of the suit. It follows that the sentence issued in the appeal stage, whatever its tenor, is not added to that of the first degree, but replaces it and is superimposed upon it, to the point of having to be considered as the one and true sentence of the case, immediately enforceable (unless it is a criminal case, in which case the recourse for cassation has suspensive effect).

In civil cases, the term for appealing differs according to the judicial authority before which the judgment of first degree was conducted: the sentences of the conciliators must be challenged within ten days, those of the pretors and of the tribunals within thirty days from notification. The appeal is proposed by means of a summons containing the summary exposition of the facts and the specific grounds of the challenge; and it is declared inadmissible, nor can it be reproposed, if the appellant does not appear or if, although having appeared, he does not present his own file or does not appear at the first hearing. An incidental appeal is admitted. As for the rest, the provisions that regulate the judgment of first degree apply.

For criminal cases special norms are established. We shall recall: the prohibition of appealing against sentences of condemnation to a pecuniary penalty lower than a certain sum (currently 16,000 lire) and against those pronounced by the court of assizes; the right recognized as a rule to the defendant discharged for insufficiency of evidence to invoke from the appeal judge a broader formula of acquittal; the faculty granted to the public minister to propose an incidental appeal. The term for appealing, by means of a declaration received by the chancellor of the judge a quo, is three days; but the grounds of the challenge may be presented within the twentieth day from the communication of the occurred deposit in the chancery of the original of the sentence.

Ferruccio Liuzzi.