Legal Updates

Legal updates covering current topics.

Legal Updates / 10.12.2015

Leave for continued consideration is now required in the majority of cases in the court of appeal

Background

Since 2011, the Code of Judicial Procedure (4/1734) has included a provision requiring a party in certain situations to apply for leave for continued consideration from the Court of Appeal before appealing a District Court judgment to the Court of Appeal.

Initially, leave for continued consideration was required in most civil and some criminal cases. In civil law cases, leave was required when the value of loss (the difference between the claim in the appeal and the final result in the District Court’s judgment) was EUR 10,000 or less. In criminal cases, the leave requirement depended on whether the appellant was the defendant or the public prosecutor. For the defendant, leave for continued consideration was generally required when the punishment was less severe than imprisonment for four months, whereas in cases where the public prosecutor appealed, leave was only required when the appeal concerned an offence that was not punishable by more than a fine or imprisonment for no more than two years.

The leave requirement has successfully shortened court proceedings and cut down litigation costs without decreasing the quality of legal proceedings. Against this background, and due to a continuous strive for budget cuts within the legal system, the leave requirement has now been expanded.

The present situation

The amendments to the Code of  Judicial Procedure entered into force on 1 October 2015. The purpose of the amendments is to make the leave procedure clearer and, thus, to more efficiently allocate resources between the District Courts and the Courts of Appeal.

Accordingly, the Code of Judicial Procedure now sets forth that leave for continued consideration is always required when appealing a District Court’s judgment in a civil case to the Court of Appeal, regardless of the monetary value of the matter. With regards to criminal cases, leave is, however, not required in cases where the punishment imposed by the District Court is more severe than imprisonment for eight months and the appeal concerns the culpability of the defendant or the imposed punishment. Notably, the requirements are now the same regardless of whether the defendant or the public prosecutor appeals.

Under the Code of Judicial Procedure, leave for continued consideration shall be granted if there is cause to doubt the correctness of the District Court’s judgment or if the correctness cannot be assessed without granting leave. Moreover, leave shall also be granted when the case is of importance for the future application of the relevant provision of law in similar cases or if there is another important reason for granting leave. The Court of Appeal does not have discretion in this regard and leave for continued consideration must be granted when one of the above requirements is fulfilled.

The objective of these recently adopted amendments is not to reduce the right to appeal, but rather to alter the role of the Court of Appeal. The Court of Appeal should review the correctness of District Court judgements, not merely serve as an instance for a second procedure.

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