APPEAL PROCEEDINGS: HISTORY, THEORY, PRACTICE

History, theory, and court practice are the basis of judicial reform. If the Civil Procedure Code of the Russian Federation was created considering this with, but subsequent changes of the procedural law show the opposite. Changes of procedure in the appellate court are not an exception, and that is why for the last 10 years theoretical and practical problems of appeal proceedings have existed. The article aims to draw attention to the reasons of occurrence of these problems; mistakes made in the course of its solution; ways of error correction with due regard for experience of Russian civil procedure, achievements of the civil procedure doctrine, needs of Russian judicial practice; necessity of complex approach in reforming proceedings in the court of appeal instance.

Obligations in Contract, Tort and Equity: Reliance, Responsibility, and the Moral Dimension: Essay in honour of Sir John McGrath

I publish this essay to honour the memory of Sir John McGrath. I sat with Sir John for a number of years, first in the Court of Appeal and then in the Supreme Court. Professional respect soon turned into friendship. While we did not always agree, I always respected his views. They were carefully considered and fully researched. John gave detailed consideration to the opinions of others but was very much his own man when it came to his ultimate conclusion. His innate caution in departing from the well-trodden path was a valuable contribution in a final appellate court. Stability is an important feature of any legal system. And John provided that quality, but not at the expense of innovation when that was clearly desirable and could be achieved in a principled way. John's passing, so soon after his retirement, was a great loss, not only to his wife and family, but also to his many friends and colleagues, both in the law and beyond.

New Zealand's Forgotten Appellate Court? The Native Affairs Committee, Petitions and Maori Land: 1871 to 1900

<p>The second half the 19th century witnessed one of the most complex and destructive chapters in New Zealand legal history. The Native Land Court, Land Laws and Crown purchase and confiscation policies combined to create confusion, uncertainty and grievance in Maori land ownership and transactions. In response, thousands of Maori, and some Europeans, petitioned Parliament. Around two thousand of these Maori land related petitions were referred to the Native Affairs Committee of the House of Representatives, many of which involved complex disputes and legal issues in relation to Maori land. In several respects, the petitioners were treating this Committee as a de-facto ’Maori Land Appellate Court’. However, the Committee was no such court. Instead, this paper argues the Committee was effectively operating as a ‘Maori Land Ombudsman’. Using petitions, Maori and Europeans would put their grievances and law reform suggestions before the Committee. In turn, the Committee would usually investigate and make recommendations for action. Although the Committee was ultimately unable to resolve many of the alleged grievances put before it, in a system where Maori had little political power, it fulfilled an important constitutional role as a check on judicial and government power in relation to Maori land interests.</p>

New Zealand's Forgotten Appellate Court? The Native Affairs Committee, Petitions and Maori Land: 1871 to 1900

<p>The second half the 19th century witnessed one of the most complex and destructive chapters in New Zealand legal history. The Native Land Court, Land Laws and Crown purchase and confiscation policies combined to create confusion, uncertainty and grievance in Maori land ownership and transactions. In response, thousands of Maori, and some Europeans, petitioned Parliament. Around two thousand of these Maori land related petitions were referred to the Native Affairs Committee of the House of Representatives, many of which involved complex disputes and legal issues in relation to Maori land. In several respects, the petitioners were treating this Committee as a de-facto ’Maori Land Appellate Court’. However, the Committee was no such court. Instead, this paper argues the Committee was effectively operating as a ‘Maori Land Ombudsman’. Using petitions, Maori and Europeans would put their grievances and law reform suggestions before the Committee. In turn, the Committee would usually investigate and make recommendations for action. Although the Committee was ultimately unable to resolve many of the alleged grievances put before it, in a system where Maori had little political power, it fulfilled an important constitutional role as a check on judicial and government power in relation to Maori land interests.</p>

A New Model of Appeal Proceedings in Criminal Cases: Acceleration v. Fairness? A Few Remarks from the Perspective of the Standards of Protecting Human Rights

<p>The purpose of this study is to present and evaluate the main changes to the appeal proceedings model introduced in the last few years to the Polish criminal proceedings in order to accelerate it and, thereby, satisfy the requirements of Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The article presents arguments supporting the thesis whereby these have weakened the right of the defendant to appeal against the judgement. Under the currently applicable regulations, it is permissible that an appellate court may impose a penalty for the first time which cannot be subject to an effective appellate review. Such a solution may raise doubts as to its compliance with Article 14 (5) of the International Covenant on Civil and Political Rights. The article also formulates a thesis whereby the newly introduced measure – a complaint against the cassatory judgement of the appellate court – contrary to preliminary fears, has not in fact “blown up” the system of appeal measures in the Polish criminal proceedings. At the same time, despite the relatively small scope of its use, it may contribute to strengthening the appeal – as opposed to the revisory – model of appellate proceedings and thus accelerating the criminal proceedings. This thesis is based on the research of all complaints brought to the Supreme Court in 2016–2019.</p>

Dopuszczalność orzeczenia przez sąd odwoławczy wyrokiem łącznym kary łącznej po raz pierwszy albo orzeczenia jej w zakresie innym niż orzekł sąd pierwszej instancji. Glosa do uchwały składu 7 sędziów Sądu Najwyższego z dnia 28 czerwca 2018 r. (I KZP 3/18, OSNKW 2018, nr 8, poz. 55)

<p>The commentary raises the problem of the admissibility of the issuing cumulative penalty in cumulative judgement by appeal court for the first time or issuing that penalty within the different scope of punishment, from the perspective of the power to alter decisions of a court of the first instance, the principle of two-instance court proceedings, access to court and the right of defence. By discussing the essence of the constitutional and convention provisions, the author attempts to answer the question what the scope of the appeal court’s power is to alter cumulative judgement issued in the first instance, by concluding that neither Article 176 (1) of the Polish Constitution, nor Article 6 of the European Convention on Human Rights (ECHR) and Article 2 of Protocol no. 7 to the ECHR supplementing its content, as well as Article 14 (5) of the International Covenant on Civil and Political Rights in principle stand in the way of such an approach, which should be reflected in the process of interpretation of Article 437 (2) of the Code of Criminal Procedure. However, in the author’s opinion, doubts arise, from the perspective discussed above, if the appellate court were to take into account, when imposing the cumulative penalty, a unit judgement unknown, for various reasons, to the court of first instance, to which a special part of the considerations and critical remarks is devoted.</p>

Means of Review

This chapter examines appeals and other types of recourse, including extraordinary motion for review. The ability to appeal from or otherwise challenge judgments is a well-established feature amongst procedural systems, albeit it is, in principle, not recognised by the European Court of Human Rights as falling within the ambit of the right to fair trial under Article 6 of the European Convention on Human Rights. The present European Rules of Civil Procedure adopt the approach that there is a right to appeal, albeit one that may only be exercised with the permission of the appellate court according to special provisions with respect to access and scope. In this way the appellate process, and the right to appeal, provides an effective balance between the principles of finality in litigation, accuracy in decision-making, expedition, and proportionality. Principle 27 of the ALI/UNIDROIT Principles addresses the necessity of keeping the right balance between diverging aspects of the rule of law as follows: ‘(2) The scope of appellate review should ordinarily be limited to claims and defenses addressed in first-instance proceeding. (3) The appellate court may in the interest of justice consider new facts and evidence’.

Verification by the prosecutor of the legality and validity of the decisions made by the investigating judge regarding the applied security measures

The article is devoted to clarifying what the stage of an appeal in criminal proceedings is. During the investigation, the decisions of the investigating judge concerning the application of measures to ensure criminal proceedings are con-sidered to be appealed in accordance with the requirements of the Criminal Procedure Code of Ukraine. It was empha-sized that appealing the decisions of the investigating judge during the pre-trial investigation is an important guarantee of ensuring the protection of the rights and legitimate interests of the participants in the criminal proceedings. The list of persons who have the right to file an appeal is covered. The normative regulation of appealing against the decisions of the investigating judge is analyzed. The problematic issues of this activity and the definition of ways of normative regulation are considered. In the course of the research the works of scientists on the outlined issues are analyzed.The article examines the role of the prosecutor in verifying the legality and validity of decisions made by the investigating judge on the election, change, cancellation of measures to ensure criminal proceedings. Attention is drawn to the peculiarities of the prosecutor’s appeal of certain precautionary measures. Emphasis is placed on the peculiarities of the prosecutor’s filing of appeals, the quality of preparation of response documents. The peculiarities of appealing the decision of the appellate court, ruled on the results of the review of the decision of the investigating judge on the application of certain precautionary measures, have been studied. The characteristic features of appealing certain measures to ensure criminal proceedings have been identified and investigated.It is concluded that it is expedient to supplement the Criminal Procedure Code of Ukraine with provisions on the possibility for the prosecutor to appeal the decisions of the investigating judge on seizure of property, refusal, full or partial revocation of seizure of property, revocation of seizure of property, return of temporarily seized items and documents. measures in the form of a personal obligation or refusal to apply it, application of a precautionary measure in the form of a personal guarantee, application of a measure of restraint in the form of transfer of a juvenile suspect or accused under the supervision of parents, guardians, trustees or administration of a child care institution.