Explanatory Memorandum for the Executive Regulations of Appeal Procedures

Explanatory Memorandum for the Executive Regulations of Appeal Procedures

Praise be to God alone, and peace and blessings be upon the one after whom there is no prophet, as for what follows:
Based on Article (240) of the Law of Civil Procedure which states: "The implementing regulations of this law are prepared by the Ministry of Justice and the Supreme Judicial Council, with the participation of the Ministry of Interior in the relevant provisions, and are issued by a decision of the Minister of Justice after coordination with the Council."
This regulation has been prepared to organize appeal procedures; thus becoming an Implementing Regulation for the articles of Chapter Two of Part Eleven of the Law of Civil Procedure, and this regulation has considered the statutory texts, general principles and rules, and the nature of the appeal judiciary, with emphasis on what is included in Article (184) of the law that the rules and procedures established before the instance first of Court apply to the appeal courts unless the law states otherwise, and their application in criminal cases where there is no specific provision in the Implementing Regulations of the Law of Criminal Procedure, and in a manner that does not conflict with the nature of criminal cases; based on Article (218) of the Implementing Regulations of the Law of Criminal Procedure.
This regulation has been singled out based on the following:
1- That paragraph number (1) of Article (240) stated that "The implementing regulations of this law are prepared by the Ministry of Justice and the Supreme Judicial Council, with the participation of the Ministry of Interior in the relevant provisions, and are issued by a decision of the Minister of Justice after coordination with the Council within a period not exceeding ninety days from the date of implementation of this law and shall not be amended except in the same manner in which they were issued, provided that the currently applicable regulations continue to be in effect as long as they do not conflict with this law until those regulations are issued." The expression (regulations) indicates the issuance of more than one regulation.
2- That the upcoming phase for the work of the appeal courts is a new phase that requires the procedures to be singled out in an independent regulation to facilitate their application, and their evaluation to consider their development or updating independently from other regulatory provisions, which limits the problems that occur when applying any new phase.
3- That the articles of appeal and its regulations are scattered in the chapters and sections of the law, and in gathering most of its provisions in an independent regulation; it facilitates for judges, litigants, and specialists to know and apply the executive procedures.
The scope of the regulation has been defined by organizing the procedures of objection by way of appeal, which start from the registration of the objection memorandum before the instance first of Court, and end with the delivery of a copy of the judgment decree issued by the appeal of Court to the convicted person, and the regulation did not address the administrative procedures related to the file Case and the endorsement of the judgment decree indicating the acquisition of the judgment's final status, and the endorsement of the copy of the judgment decree with the Enforcement Statement and its delivery to the judgment creditor; as these provisions are organized in the Judicial Documents Regulation issued by the decision of the Minister of Justice No. 2818 dated 1439/7/26 AH, and the Court Procedures Engineering Document.
This regulation has addressed the procedures of appeal in terms of review and pleading, and touched upon the general provisions in appeal and clarified the course of the appeal Case starting from the submission of the objection memorandum and its registration with the instance first of Court and the procedures for considering the claim, and ending with the Render Judgment in it, its correction, and interpretation.

  • It has been clarified Article Two that the objection memorandum is submitted to the instance first of Court that issued the judgment, and it must include the name of the appellant and his identity number or commercial register, his representative, and his place of residence. It must also include the name of the respondent, his identity number or commercial register, his place of residence, the details of the appealed judgment, the reasons for his objection, his requests, the date of filing the memorandum, and the competent court administration must verify that the objection memorandum contains the required data. It may request the objector to complete any deficiencies during the objection period and attach it to the file Case - which preserves the case's documents, including the minutes of the record, the Judgment Decree, and all case papers as clarified by the Judicial Documents List-, and in all cases, the competent administration must forward the file Case to the appeal of Court even if the required data in the memorandum is incomplete; as the acceptance of the appeal or not is determined by the appeal of Court.
    The article also clarified that the phrase "unless the other party requests the appeal" mentioned in paragraph (3) of Article (One Hundred and Eighty-Five) of the Law refers to anyone who has the right to object; if one of the parties to the case requests an appeal for review, and the other party requests an appeal for a hearing - and both have the right to object - then the appeal in this case is considered a hearing.

  • Then clarified Article Three the executive mechanism for implementing Article (One Hundred and Eighty-Nine) which allowed the chamber to reconsider the judgment issued by it whenever it saw that the objection included what calls for that. This is achieved by providing the chamber with a copy of the objection memorandum and enabling it to review it. If it finds what calls for reconsideration of its judgment, it must request the case file from the competent administration within the prescribed period and record this in the case record. If the period passes and the chamber does not request the case file, the competent administration must submit the entire case file to the Court of Appeal on the day following the end of the period. Thus, it becomes clear that reviewing the objection memorandum is not mandatory for the chamber, nor is it required to record a report if it sees that the memorandum does not include anything affecting the judgment. Therefore, the Court of Appeal is not entitled to return the case file due to the chamber not reviewing the objection memorandum.

  • And Article Five established the principle of the transfer effect of the appeal, which means that the appeal request transfers the case that was heard before the instance first of Court to the appeal of Court in the state it was before the judgment, within the limits of the objection submitted by the appellant in his memorandum.
    It also allowed the respondent, -before the end of the first hearing session- to file a subsidiary appeal before the court that follows the original appeal, and it ceases with its cessation, with a memorandum containing the data mentioned in paragraph (1) of Article Two of this regulation.

  • The article also decided that the scope of the case in the appeal is not determined by everything presented at the instance first of Court, but is limited to what is stated in the objection memorandum of requests before the appeal of Court.
    The appeal of Court must consider the appeal case based on the evidence, proofs, and defenses presented at the instance first of Court, in addition to what is submitted to it, whether in the objection memorandum, or what is presented during the consideration of the case, which supports the reasons for the objection mentioned in the objection memorandum, and the court may build on the evidence presented at the instance first of Court, and it also has -when necessary- to re-present this evidence, such as requesting the re-hearing of witness testimony, appointing an expert, or moving for inspection, even if the instance first of Court has conducted that, and in all cases, the appeal of Court -when necessary- may reconsider the case from all its aspects without being bound by what the instance first of Court concluded, within the limits of what the appeal was raised about only.

  • It clarified Article Eight that the principle is that the dispute before the appeal of Court should involve the same parties as those in the first instance of Court; because stating otherwise would result in losing one of the two levels of litigation for someone appearing for the first time in the appeal, and therefore it is not permissible to introduce or intervene a person who was not a party to the case before the first instance of Court, except if the introduction is in the interest of justice or to reveal the truth.

  • It was clarified in Article Twelve that since the appellant must follow up on the appeal request immediately after the case is registered with the appeal of Court; to know the scheduled date for the hearing of the case according to Article (Ten) of the Regulation, and therefore, if he is absent from the first hearing, this is recorded in the case file, and the case is preserved for sixty days. If this period passes without him submitting a request to proceed with the case, the court rules that his right to object is forfeited. The same applies if the appellant attends within the sixty days and requests to proceed with the case by submitting a memorandum to the competent authority, then is absent from the scheduled hearing or any hearing except the first hearing, the court rules that his right to appeal is forfeited.

  • The article also clarified that in cases where the appeal of Court sees that the appeal request requires a hearing, the court must notify the parties of the case of the hearing date. If the appellant is notified of the date and is absent, the provisions decided in the first and second paragraphs of this article apply to his appeal request.

  • It clarified Article Thirteen the effect of not fulfilling the objection memorandum with the data stipulated in paragraph (C/1) of Article Two of the Regulation, which states that the memorandum must include "the data of the appealed judgment, the reasons on which the objection is based, and the requests of the appellant." In the event that the objection memorandum does not include this data, the appeal of Court shall, on its own, rule the objection inadmissible, and the appellant's right to appeal is forfeited, unlike the rest of the data stipulated in Article Two as failure to fulfill them does not result in the inadmissibility of the appeal request.

  • It has been clarified in Article Fourteen that if the court rules to forfeit the right to appeal, or not to accept the appeal request, and the other party does not have an appeal request submitted to the court, then the appealed judgment in this case acquires final status, unless the case is subject to revision according to the provisions of paragraph (4) of Article One Hundred and Eighty-Five, as the forfeiture of the right to appeal applies to discretionary appeals, whereas mandatory appeals remain obligatory, and the panel - in these cases - after ruling to forfeit the right to appeal, must review the case for revision.

  • It clarified Article Sixteen that the chamber, in order to prepare the case, may assign one of its judges to study and prepare the case for pleading. The judge will study it and review the submitted memorandums and documents, and also prepare a draft judgment. However, it did not allow the case reviewer to hear what the parties have to say except in the presence of the other judges of the chamber.
    The article also enabled the chamber to assign the competent court administration to conduct the exchange of memorandums and documents between the parties, provided that this is done within a period not exceeding twenty days from the date of the chamber's decision to require the parties to exchange memorandums. The chamber must specify in the case record the number of memorandums to be submitted, the deadline for each party to submit, and the date of the next hearing for the exchange of memorandums. The competent administration is responsible for receiving and delivering the memorandums and recording a report on this without the need to open a hearing or record in the case records. The exchange of memorandums can be conducted electronically, and the chamber must refer to the memorandums submitted to the administration in the record of the next hearing.

  • It has been clarified in Article Eighteen that the principle is to decide the case in the first hearing whenever possible, and not to postpone the hearing of the appeal request for the same reason more than once, and that the panel should state the reason for the postponement in the case record. The article also specified the periods between hearings and mandated that the period should not exceed more than thirty days, and that the number of hearings for the appeal case should not exceed three sessions, unless necessity requires an increase, or the Supreme Judicial Council decides otherwise.

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