APPEAL. — In its broadest sense, this term can denote any complaint lodged against an authoritative decision by one who claims to have been aggrieved thereby. This was the understanding of ancient canonists, who customarily distinguished between *appellatio iudicialis* and *appellatio extraiudicialis*, depending on whether the object was a judge’s sentence or an administrative act. In technical usage, however, the term is now employed exclusively in the sense of “the ordinary means of challenging judgments.” It is under this specific aspect that the present article will be confined, while reference to other meanings will be made under the heading *RICORSO* [see RECURSE].
**OUTLINE:**
I. Historical notes
II. General principles
III. Subjects entitled to appeal
IV. Non-appealable judgments
V. Effects of appeal
VI. Procedure
VII. Appeal in civil legislation.---
**I. Historical notes.** — The common observation that every human judgment, regardless of the judge’s possible ignorance or bad faith, is always liable to error does not, by itself, justify the assertion that the institution of appeal is grounded in natural law. It more probably constitutes a remedy devised by men in times and places of advanced civilization, with a view to securing, as far as possible, a just administration of justice. Nor does the danger—already noted by Ulpian—that a second-instance judgment might ultimately prove more unjust than the first, suffice to undermine the solid logical and moral foundation of the institution.
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 a decree issued *in iure* by the praetor, not to obtain its reform or annulment, but solely to suspend its effects. In the imperial age, once the supreme head of the State was recognized as having the power to modify or nullify any judicial decision, *appellatio* took on the precise character of a complaint against a magistrate’s sentence. Since the emperor customarily entrusted to his delegates—whether permanent or ad hoc—the *cognitio extra ordinem* of cases submitted to him, there gradually developed those complex gradations of jurisdiction and those special procedural rules from which the modern system of multiple instances ultimately derives.
Canon law at once adopted the institution of appeal. Indeed, the Council of Nicaea (325) prescribed that provincial synods, to be convoked annually, should examine complaints lodged against episcopal decrees. And Canon 10 of the Third Council of Carthage (A.D. 397), reproduced in Gratian’s *Decretum* at C. II, q. 6, c. 9, expressly provided: *“A quibusdamque iudicibus ecclesiasticis ad alios iudices ecclesiasticos ubi est maior potestas provocare liceat.”* The Decretals dealt extensively with the matter, establishing a veritable judicial hierarchy, while maintaining the principle that, for the attainment of justice, recourse could always be had directly to the Apostolic See. The excessive use made of this faculty by the faithful, together with the rule allowing appeals as often as necessary to secure three conforming judgments, so multiplied the number and length of proceedings as to induce popes and councils (most recently the Council of Trent, sess. XXIV, de ref., can. 20) to impose certain limitations and restrictions, many of which are still preserved in current law.
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**II. General principles.** — Canon 1879 of the *Codex Iuris Canonici* defines the right of appeal as *“ius provocandi ab inferiore iudice qui sententiam tulit ad superiorem.”* The justification for exercising this right lies less in any relationship of subordination (which may not even exist) between the lower and the higher judge than in the desirability that any errors of the former be recognized and corrected by the latter, so as to secure the best possible decision. It should therefore not be regarded as a personal attack upon the magistrate (as was the case, for example, in early medieval Germanic law), but rather as the manifestation of a desire that the case be re-examined on the 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 respect that appeal (*appellatio*) differs from a complaint of nullity (*querela nullitatis*) [see QUERELLA DI NULLITÀ].
As regards the competent judge, it may be said in general (cf. cann. 1569–1607) that—subject to the faculty granted to any faithful person to submit a case directly to the Roman Pontiff—appeals from judgments of a diocesan tribunal lie to the metropolitan tribunal, while the re-examination of controversies first heard by the metropolitan tribunal devolves upon one of the diocesan tribunals of the province, designated once and for all by the archbishop with the approval of the Holy See. For subsequent instances—and also for the second instance, if the party so prefers—the ordinary appellate tribunal is the Sacred Roman Rota. Special norms govern the jurisdiction in causes involving exempt religious; and in matrimonial cases, for Italy and certain other countries, the Holy See has designated, for each regional tribunal, the corresponding court of second instance.
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**III. Subjects entitled to appeal.** — With the abolition of the exclusions that formerly applied, especially in penal trials, to certain classes of persons (such as notorious brigands, confessed criminals, and heretics), the right of appeal is now recognized without exception:
a) To the party to the cause (plaintiff, defendant, accused, voluntary or compulsory intervener) who feels aggrieved by the decision and thus has an interest in seeking its total or partial reform. A non-party may, if necessary, avail himself of a third-party opposition (*opposizione di terzo*) [see].
b) To the promoter of justice and the defender of the bond, but only in those trials in which they have intervened (it should be noted, however, that in accordance with cann. 1986 and 1998, §2, the defender of the bond is obliged to appeal from a first-instance judgment declaring the nullity of a marriage or of a sacred ordination).
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**IV. Non-appealable judgments.** — All judgments may be appealed, except those expressly declared non-appealable by law (can. 1880), namely:
1) Judgments personally rendered by the Supreme Pontiff. Since no human authority stands above the Pope, an appeal against his decisions is manifestly inconceivable. Anyone appealing to an ecumenical council would incur the delict envisaged in can. 2332 [see 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 Sacred Roman Rota for breach of secrecy or other infractions (can. 1603, §1, n. 1), the faculty of appealing to the same Signatura may be granted (can. 1604, §1).
3) Judgments pronounced by a judge delegated by the Holy See with the clause *“appellatione remota.”* The use of this clause or of similar formulas (*“appellatione cessante,”* *“sublato appellationis obstaculo,”* *“sublato appellationis diffugio”*) was very frequent in the law of the Decretals, but is now extremely rare.
4) Null judgments. Against these, only a complaint of nullity (*querela nullitatis*) [see QUERELLA DI NULLITÀ] may be lodged. Nevertheless, this may be cumulated with an appeal (cann. 1894, 1895).
5) Judgments that have become res judicata. Against such judgments, only the extraordinary remedy of restitutio in integrum [see] is available, under certain conditions.
6) Judgments rendered upon a decisive oath, provided that the content of the oath constitutes the true and fundamental ground of the decision.
7) Interlocutory judgments that do not have the force of a definitive judgment. Which interlocutory judgments are, and which of them may, in certain respects, be equated with definitive judgments, will be explained under the heading "sentenza" [judgment]. Here it suffices to note that, although they are not subject to an autonomous appeal, purely interlocutory judgments may be appealed, at the appropriate time, together with the definitive judgment.
8) Judgments rendered in cases for which it is prescribed that proceedings must take place "expeditissime" [in the most expeditious manner]. Such are, for example, those that decide on an appeal lodged against the rejection of a libellus [petition] (can. 1709, § 3) and those that rule on a challenge to the judge (can. 1616).
9) Judgments pronounced against a contumacious party who has not purged his contumacy (v. CONTINUACIA [contumacy]). This provision has, on the one hand, the character of a sanction against one who, by not appearing before the judge, shows contempt for authority; and it is based, on the other hand, on the presumption that one who abstained from appearing in the first instance has implicitly intended to submit to the justice of the tribunal and renounce the right of appeal. The contumacious party, however, if he can show that this occurred independently of his will, may, within three months from the notification of the judgment, petition to be reinstated in time to appeal (can. 1847).
10) Judgments pronounced against one who has declared in writing that he renounces the right of appeal. Rather than objective non-appealability of the judgment, in this case it is a matter of the voluntary forfeiture by the party of the right to appeal. The written act is required ad validitatem [for validity]; and nothing prevents the renunciation from preceding the publication of the judgment.
V. EFFECTS OF APPEAL (EFFETTI DELL'A.) — According to traditional terminology, the effects of appeal are distinguished into the suspensive effect and the devolutive effect.
The suspensive effect consists in this: that, pending the appeal proceedings, the appealed judgment, as a rule, cannot be executed. This principle, of pure Roman derivation (*appellatione interposita nulli 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 noted, the litigation continues between the same parties and on the same subject matter despite the existence of a prior decision on the merits; hence the nullity or, at least, the annullability of any executory acts that may have been carried out.
The law, however, at the same time prescribes that the judgment must be executed despite the lodging of the appeal, as occurs, for example, in judgments by which censures are inflicted (can. 2243, § 1); or again, 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 the party has impugned only certain points of the judgment, the remaining points are considered excluded, and the judge cannot pronounce upon them (can. 1887, § 3); 2) In no case is a new *causa petendi* [cause of action] admitted: the litigation is presented in the same state in which it stood before the lower court at the moment the discussion was closed, and therefore the task of the appellate judge remains confined to the confirmation or reform, whether total or partial, of the appealed judgment (can. 1891, § 1). What is to be understood by *causa petendi*, and whether it is or is not identical with the *domanda* [claim], will be seen under the heading "AZIONE" [action].
Within these limits, the devolutive effect is fully recognized by the CIC, which provides that the appeal of the plaintiff benefits the defendant as well, and vice versa (can. 1887, § 1).
Moreover, the timely appeal by one party against certain points of the judgment entails for the adverse party the faculty of impugning the remaining points, independently of the expiration of the term (can. 1887, § 2). In such a case there is an incidental appeal; and although its origin is strictly dependent on the principal appeal (so much so that it loses all efficacy if the latter is lodged out of time), it retains, in all other respects, the character of an autonomous remedy and does not cease merely because the principal appellant renounces the proceedings.
Finally, in the case where, in the same cause, there are several plaintiffs or several defendants (i.e., where there is active or passive joinder of parties), and only one of the defeated parties impugns the judgment, the appeal is considered to have been made by all if the controversy concerns an indivisible thing or a joint 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, in profound innovation with respect to the law of the Decretals (cf. c. 72, X, de appellationibus, recusationibus et relationibus, II, 28), in principle adopts the principle of the personal character of the remedy and its effects: a principle to which it allows derogation only in the cases, strictly defined, of the indivisibility of the thing and the solidarity of the obligation.
VI. PROCEDURE
For the appeal proceedings to be lawfully instituted, it is first necessary that the defeated party manifest his will to impugn the judgment: a) by lodging, within ten days from the notification of the judgment, the appeal before the judge who pronounced the judgment; b) by requesting, within thirty days from the lodging of the appeal, the continuation of the appeal before the appellate judge (can. 1881 ff.).Once this preliminary phase is completed, the appeal proceedings take place according to the norms prescribed for the proceedings of the first instance, insofar as they are applicable (v. PROCESSO [process]). 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 object of the controversy is definitively determined from the first instance. But the Code provides that it take place, limited to the question of whether the appealed judgment merits confirmation or not (can. 1891, § 1).
The introduction of new evidence is not, as a rule, admitted; but this does not prevent the judge, in the concurrence of grave reasons to be evaluated more or less restrictively according to whether the cause is or is not susceptible 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 heard.
The appeal proceedings may terminate, like any other proceedings, by peremption, by renunciation, or by judgment.
Peremption occurs if, for the space of one year (except in the case of legitimate impediment), no procedural act is carried out, and it has the effect of rendering the appealed judgment res judicata (can. 1736).
Renunciation of the remedy must be in writing, signed by the appellant or his special procurator, accepted, at least implicitly, by the adverse party, and receive the approval of the judge. Under these conditions, it produces the same effect as peremption (cann. 1740–41).
The judgment, finally, which represents the ordinary manner in which appeal is terminated, does not differ in nature or form from judgments of the first instance (v. SENTENZA [judgment]). As to its efficacy, it is necessary to distinguish:
A) either it confirms the appealed decision in its entirety, thus giving rise to a double conforming judgment and, consequently, to res judicata (v. [res judicata]); and in this case, exhausting the procedural relationship, it becomes immediately executory;
B) or it reforms the appealed decision in whole or in part; and then:
a) if pronounced in second instance, it remains itself subject to a new remedy, except as regards the points that may have been confirmed.
b) if pronounced in third or subsequent instance, acquires the force of res judicata, as in the case provided under letter A), insofar as its dispositive part aligns with that of a prior judgment.
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 Penal Procedure), presents notable analogies, both in substance and form, with the corresponding canonical institution. These analogies are particularly evident in the norms governing the right to appeal, the challengeability of judgments, and the effects of the appeal, which in both systems appear inspired by the same principles. However, in one fundamental point the two legal systems diverge deeply, namely in the manner of evaluating the nature and purpose of the appellate proceeding.Under civil law, which adopts the system of double jurisdiction and dispenses with a third instance, and rejects the principle that the highest guarantee of justice would be achieved by two conforming decisions, the appeal proceeding does not merely represent a simple review of the lower court’s work. Instead, it constitutes in every case the decisive phase of the litigation. It follows that the judgment rendered in appeal, whatever its tenor, does not merely add to the first-instance judgment but replaces and supersedes it, to the point of being considered the sole and true judgment of the case, immediately enforceable (unless the matter is a criminal case, in which case a cassation appeal has suspensive effect).
In civil causes, the term for appealing varies according to the court before which the first-instance judgment was rendered: judgments of conciliators must be challenged within ten days, those of magistrates (*pretori*) and tribunals within thirty days from notification. The appeal is instituted by means of a summons containing a summary exposition of the facts and the specific grounds of the challenge; it is declared inadmissible and cannot be renewed if the appellant fails to appear or, though appearing, does not file the record or fails to appear at the first hearing. Incidental appeal is admitted. Otherwise, the provisions governing the first-instance proceeding apply.
For criminal causes, special norms are established. We note: the prohibition of appealing against judgments of conviction imposing a pecuniary penalty below a certain amount (currently 16,000 lire) and against those rendered by the Assize Court; the right generally recognized to an accused acquitted for lack of evidence to seek from the appellate judge a more favorable formula of acquittal; and the power granted to the public prosecutor to lodge an incidental appeal. The term for appealing, by declaration received by the clerk of the court below, is three days; but the grounds for the challenge may be submitted within twenty days from the communication of the deposit in the clerk’s office of the original judgment.
VIII. ON APPEAL IN GENERAL, the following works may be consulted with profit: L. Mortara, s. V. in Dig. Ital., III, 11, Torino 1890, pp. 381-1012, where the historical part is treated at length. — On appeal in the CIC: F. Roberti, De processibus, II, Roma 1926; M. Conte a Coronata, Institutiones iuris canonici, III: De processibus, Torino 1933; M. Lega-V. ARTOTIRITI, De iudiciis ecclesiasticis, II, Roma 1939; F. Della Rocca, Institutioni di diritto processuale canonico, Torino 1946, pp. 324-41. — On appeal in civil law: G. Chovenda, Istituzioni di diritto processuale civile, Napoli 1934; M. T. Zanzucchi, Diritto processuale civile, Milano 1935; F. Carnelutti, Sistema di diritto processuale civile, vol. I-II, Padova 1936-38.