Call (French justice)

The call is a ground for appeal which “tends to make reform or to cancel” a Jugement returned by a Juridiction of the first degree.

The judge of call is held of rejuger, in made and right, the decision which is to him reserved. He can cancel the decision, partially or completely, or confirm it. He can also change the reasons them, without the device of the decision necessarily changing.

The role of this ground for appeal

The call is usually a “way of reformation”, i.e. the judge of call goes rejuger the bottom of the business, on the points where there was call, and will be able to change the judgment given into first authority.

It can be also a “way of cancellation”, which leads to a destruction pure and simple of the judgment of first authority, in cases where the followed procedure or the judgment had been irregular. In this case, the judge of call rejuge generally the whole of the litigation (but the procedure varies according to the types of jurisdictions).

The call, at least as regards civil procedure, is sometimes also regarded as a “way of completion”, where the judge of call takes account of the possible evolution of the litigation since the first judgment intervened. In addition to the doctrines is divided on this idea, which is opposed to the principle immutability of the litigation between the two authorities, the recent jurisprudence of the Court of appeal is rather restrictive.

The value of the right to a call

One can wonder about the value of the right to a double degree of jurisdiction. Indeed, he is often regarded by the justiciable one as an absolute right, not suffering any exception. However, it is advisable to note that a certain number of litigations are judged in first and the last arises, and thus without possible call. They are generally litigations considered as less importance. It is thus the case in front of the Juridiction of proximity or for businesses whose rate of spring is lower than a certain amount. Nevertheless, if one can deprive possibly certain types of businesses of a call, one can never deprive the justiciable one to an appeal to the Supreme Court (principle of the opening of the recourse in cassation against any jurisdictional decision of last spring).

Under the constitutional angle

Some could try to find with the principle of the double degree of jurisdiction a constitutional base by including it in the broader concept of “Droits of defense”, as a basic principle recognized by the laws of the Republic. In this direction, the doctrines processualist for a long time places the exercise of the grounds for appeal in the rights of defense.

However, according to the French Constitutional council, the principle of the double degree of jurisdiction does not have, in itself, constitutional value.

It is of course to notice that there always were jurisdictions escaping this double degree, and that it would hardly have been convenient to upset big parts of the French legal system on this point, but especially that the possibility of call, if it is an instrument useful for the good performance of justice, is neither a requirement, nor a sufficient condition. The possibility of the recourse in cassation, on the other hand, was always regarded as more fundamental and more essential with the justiciable ones.

Under the angle of the general principles of the right

On another level, the Council of State judged that the civil procedures or administrative which limit the possibility of call are legal. Even if it arrived to him sometimes of speaking about a principle of the double degree of jurisdiction, it in forever made a general principle of the right. Thus, as regards civil procedure or administrative procedure, which concern the lawful capacity, this last has a very broad margin of appreciation to institute or not the possibility of call. For the penal procedure, the legislator is only qualified according to article 34 of the Constitution.

Under the angle of international conventions

The stipulations of article 6 § 1 of the European Convention of the human rights do not impose the institution of a second degree of jurisdiction, including out of penal matter, but if a State establishes of such recourse, the jurisdictions and the appeal procedures must respect the requirements of the fair trial laid down in this Convention.

On the other hand, the article n° 2 of the Protocol n° 7 with the European Convention of the human rights lays down the right to a double degree of jurisdiction in all the penal matters (within the meaning of the CEDH, which includes the disciplinary dispute). The French legal system is however not faulty on this point, because, here, the double degree does not mean necessarily the installation of possibility of call (that of the appeal in cassation is enough), and certain exceptions are envisaged by the protocol itself.

Lastly, if the Comité of the Ministers of the the Council of Europe recommends the introduction of such grounds for appeal, this provision is not direct application.

Appelate jurisdictions

Appelate jurisdictions of the legal order

Appelate jurisdictions of the administrative order

Conditions of exercise of the call

In the civil field

Likely decisions of call

In the civil field, the way of the call is open in all matters, even gracious, against the judgments of first authority unless it is differently laid out by it. It is only when one text has which it differently than the justiciable one will then not have possibility of appealing.

The judgment must moreover be given in first arises, failing this it can be the object only appeal in cassation. Certain jurisdictions, indeed, can decide in first and the last arises in lower part of a certain threshold. The judgments which slice in their device part of the main thing and order a measurement of instruction or a temporary measure can be immediately struck of call as the judgments which slice all main thing.

It is the same when the judgment which rules on an exception of procedure, an end not-to receive or any other incident puts an end to the authority.

The other judgments can be struck of call independently of the judgments the bottom, only in the cases specified by the law.

Time of call

The time of call which is an ordinary way of recourse is one month out of contentious matter and fifteen days out of non-contentious matter.

The time runs as from the notification of the judgment.

Parts

The appealing one

The right of call belongs to very part which has interest there, if it did not give up it.

Out of non-contentious matter, way of the call is also led to the thirds to which the judgment was notified. Out of non-contentious matter, the call is admissible even in the absence of other parts.

In the contentious field, the call can be directed only against those which were parts in first authority. All those which were parts can be intimated.

The incidental appealing respondent

The call can be incidentally raised by the respondent as well against the appealing one as against the other respondents. The incidental call can also emanate, on the principal call or incident which causes it, of any person, even not intimated, having been part in first authority.

The incidental call or the caused call can be formed in any event, while at the same time that which interjetterait it would be foreclosed to act on a purely principal basis. In this last case, it however will not be received if the principal call is not itself admissible. The court can condemn to damages those which would have abstained from, in a dilatory intention, to sufficiently early form their incidental or caused call.

The incidental call or the caused call is formed in the same way that are to it the incidental requests, i.e. by way of conclusions.

The speaker in question of call

Can intervene in question of call since they have interest there the people who neither were left nor represented in first authority or who appeared in it in another quality.

These same people can be called before the court, even for purposes of judgment, when the evolution of the litigation implies their calling into question.

The abusive call

In the event of principal call dilatory or abusive, calling it can be condemned to a civil fine of a maximum of 3.000 €, without damage of the damages which would be claimed to him.

This fine, perceived separately fees registration of the decision which pronounced it, cannot be claimed with the respondents. Those can obtain a forwarding of the covered decision of the executory formula without the non-payment of the fine being able to make obstacle there.

The judge of call can condemn to damages that which forms a principal call after being abstained, without legitimate reason, to appear before first authority.

In the penal field

Likely decisions of call

Can be attacked by the way of the call:

judgments of judgment handed down by the Court of Assizes in the first resort;
judgments given by the magistrates' courts;
judgments given by the police courts when the incurred fine is that planned for the infringments of the fifth class, when the sorrow envisaged by the 1º of the article of the Penal code was marked French, or when the sorrow of marked fine is higher to the maximum of the fine incurred for the infringments of the second class.

Time of call

In general, the time of call is ten days as from the delivery of the judgment or judgment of judgment.

Parts

Out of criminal matter, faculty to call belongs to the defendant, the public ministry, the civilly responsible person (as for her civil interests), with the civil part (as for its civil interests), with the public administrations, whenever those exert the Public action. The public prosecutor can also make call of the stops of payment.

Out of correctional matter, faculty to call belongs to the defendant, to the civilly responsible person as for the civil interests only, with the civil part as for its civil interests only, with the public prosecutor, with the public administrations, whenever those exert the public action, with the public prosecutor close the Court of Appeal.

Out of police matter, when the call is possible, faculty to call belongs to the defendant, to the civilly responsible person, to the public prosecutor, to the public prosecutor, the officer of the public ministry close and the jurisdiction police court of proximity.

In the administrative field

Likely decisions of call

Very part present in an authority in front of the administrative court can normally interjeter call against the jurisdictional decisions returned in this authority.

However the decisions of the administrative court are returned in first and the last arises in a certain number of litigations considered as lower importance (Article R. 811-1 and R. 222-13 of the Code of administrative justice). These decisions are then likely only of a appeal in cassation.

They are the decisions carrying: 1º On the litigations relating to the declarations of work exempted of permit building; 2º On the litigations relating to the individual situation of the civils servant or person and government officials other or communities, as well as agents or employees of Banque de France, except for those concerning the entry at the service, the discipline and the exit of the service, or those comprising of the conclusions tending to the payment or the discharge of sums of an higher amount with 10 000 euros (Article R. 222-14 and R. 222-15 of the CJA); 3º On the litigations as regards pensions, of assistance personalized with housing, communication of administrative documents, national service, except for those comprising of the conclusions tending to the payment or the discharge of sums of an higher amount with 10 000 euros (Article R. 222-14 and R. 222-15 of the CJA); 4º On the litigations relating to the broadcasting royalties; 5º On the recourse relating to the trade-union taxes and the local taxes other than the professional tax; 6º On the implementation of the responsibility for the State for refusal opposed to an application for assistance of the police force to carry out a legal decision; 7º On the actions indemnitees, when the amount of the required allowances is lower than 10 000 euros (Article R. 222-14 and R. 222-15 of the CJA); 8º On the requests disputing the decisions taken out of tax matter on requests for gracious handing-over; 9º On the litigations relating to the buildings threatening ruin; 10° On the litigations relating to the driving licenses.

In the same way, the decisions of referred returned pursuant to the articles L. 521-1 (summary procedure suspension), L. 521-3 (conservatory summary procedure), L. 521-4 and L. 522-3 of the Code of administrative justice are returned in last spring. These decisions are also likely only of a appeal in cassation.

The decisions of the specialized administrative jurisdictions are likely of call if a text envisages it. If not, returned in last spring, they can be the object only appeal in cassation.

Whenever the litigations are direct competence of the Council of State, the decisions of this last are returned in first and the last arises, and are likely neither of call, nor of cassation.

Time and conditions of call

The time of call is usually two months starting from the date of notification of the judgment of first authority. It can be shorter in certain cases.

The parts can require the cancellation or the reformation of the judgment only insofar as the decisions taken (the device of the judgment) did not give satisfaction to their conclusions of first authority.

The request of call must comprise the copy of the attacked judgment, the means directed against him, the conclusions of the applicant. The ministry of a lawyer is generally obligatory.

Effects of the call

In the civil field

The call tends to make reform or cancel by the Court of Appeal a judgment given by a jurisdiction of the first degree.

the devolutionary effect

The call calls the thing judged in question in front of the appelate jurisdiction so that it is again ruled in fact and in right.

The call submits at the court only the knowledge of the chiefs of judgment which he criticizes expressly or implicitly and of those which depend on it.

The devolution takes place for the whole when the call is not limited to certain chiefs, when it tends to the cancellation of the judgment or if the object of the litigation is indivisible.

the suspensory effect

During the time of call and once this one interjeté, the judgment in the first resort cannot be carried out except so that it is covered with the provisional execution, of right, or ordered.

new demands for cause of call

To justify in call the claims which they had submitted to the first judge, the parts can call upon new means, produce new parts or propose new evidence.

The parts cannot submit to the court new claims if is not to oppose compensation, make draw aside the unfavourable claims or to make consider the questions born of the intervention of a third, or supervening or revelation of a fact.

The claims are not new since they tend to the same ends as those subjected to the first judges even if their legal basis is different.

The parts can also clarify the claims which were virtually included/understood in the requests and defenses submitted to the first judge and to add to those all the requests which are the accessory, the consequence or the complement.

The counterclaims are also admissible in call.

the evocation

When the Court of Appeal is seized by a judgment which ordered a measurement of instruction, or of a judgment which ruling on an exception of procedure, put an end to the authority, it can evoke the not judged points if it considers good justice to give to the business a final solution, after having ordered itself, if necessary, a measurement of instruction.

In the penal field

In the administrative field

The call also tends to make reform or cancel by the judge of call a judgment given in first authority.

In the event of cancellation: the evocation or the reference

When a part supports validly that the judgment of first authority is sullied with an external irregularity (irregular procedure or instruction, violation of the principle of contradictory, irregular composition of the jurisdiction, insufficient or contradictory motivation of the judgment, error on the admissibility of the request, etc), the judgment will be cancelled in call. The appelate jurisdiction is then in right, either to return the litigation in front of a jurisdiction of the first degree (it is rare), or to evoke, at least so at least a part concluded in this direction (it is most current): the litigation is then judged at the bottom, with examination of all the means raised since the first authority.

the devolutionary effect

If the judgment of first authority does not suffer from any external irregularity, the call calls the thing judged in question in front of the appelate jurisdiction so that it is again ruled in fact and in right on the points criticized by the appealing parts. It is the most ordinary situation there.

The means of the appealing parts must show in what the judgment of first authority is erroneous, the means of the respondents seek on the contrary to justify this judgment. It may be of course that certain parts are appealing on a point, and defendants on another.

Absence of suspensory effect

The call of the decisions of the administrative jurisdictions does not have a suspensory effect. However, a part can require that the judgment be suspended (Article R.811-14 in R.811-19 of the CJA).

the conclusions

The conclusions of the parts can tend to make judge another litigation only that presented in first authority, and the contentious debate “is already crystallized” (it is very early fixed as of the first authority). In this direction, the call is not a “way of completion of the lawsuit”, as it can sometimes seem the being in front of the civil judge.

Of course, conclusions bringing up to date the amounts of a continuous damage, or the additional conclusions (such those on the refunding of the lawyer expenses) are authorized.

the means

The initial applicant can present new means only if those rest on the same legal cause as means that it had raised in first authority (means of external legality for example, or means of legality interns for example at the time of a recourse in abuse of power). However, the means of law and order (incompetence of the author of the contested act for example) can be raised constantly.

References

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