What is the court of appeal ?
The court of appeal is a court of law of the second degre. It rules on appeals against decisions rendered at first instance.
The court of appeal is composed of several chambers with a speciality (social, commercial, civil, correctional appeals, instruction, etc.). We will focus here on the appeal in criminal matters.
Appeals in cases of misdemeanors (article 547 of the Code of Criminal Procedure) :
When the appeal is lodged against a judgment of the police court, the court of appeal sits as a single judge.
Appeal in correctional matters (new Article 510 of the Code of Criminal Procedure) :
Prior to the Programming Act 2018-2022 and Reform for Justice of March 23, 2019, when the appeal was filed against a decision of the correctional court, the chamber of correctional appeals consisted of :
- d’a chamber president ; ;
- and two counselors.
The law of March 23, 2019, modified the composition of the court of appeals by introducing a single-judge appeal when :
- the correctional judgment was rendered by a single judge;
- or when the appeal concerns only the civil provisions of the judgment (i.e., to simplify, the damages awarded to the civil party).
In this case, the court of appeal, composed of a single judge, will not be able to impose a sentence of more than five years’ imprisonment.
Collegiality will be re-established if the defendant is in pre-trial detention for the acts of which he is accused or if the appellant so requests. The court of appeal may itself decide to refer the case to a panel because of the complexity of the facts or if it intends to impose a sentence exceeding five years’ imprisonment.
Appeal in criminal matters (articles 240 and following and article 296 of the Code of Criminal Procedure): :
When an appeal is lodged against an assize court judgment, , « “the first president of the court of appeal shall designate the assize court responsible for ruling on the appeal from among the other assize courts within the jurisdiction of the court of appeal », “, and shall first hear the observations of the parties and the public prosecutor’s office (paragraph 1 of Article 380-14 of the Code of Criminal Procedure).
This new court of assizes responsible for ruling on appeals will be composed of three professional magistrates and nine jurors (compared to six in the first instance).
What does it mean to “appeal” a judgment?
The expression « appeal » refers to the fact of making an appeal.
This ordinary remedy allows the litigant to have his or her case retried a second time, in law and in fact, by new judges.
The effects of the appeal :
In principle, the appeal suspends the execution of the decision previously rendered (this is the “suspensive effect” of the appeal in criminal matters).
As an exception, the correctional court, ruling in first instance, can attach a provisional execution, to its judgment, which nullifies the suspensive effect of the appeal.
Powers of the Court of Appeal :
The court of appeal may declare the appeal inadmissible or unfounded, confirm or reverse the judgment appealed. It can increase or decrease a conviction.
The court of appeal will re-examine the entire case by ruling on each of the provisions of the first instance judgment.
The court of appeal may increase or decrease the sentence imposed on the defendant in the first instance. It may also reduce or increase the damages awarded to the plaintiff.
The court of appeal is seized of a case that has already been judged.
How to appeal a judgment / How to get to the court of appeal?
The right to an appeal judge is of public order. This means that it is impossible to waive this right (even in advance), and that any failure to comply with the provisions on form or time limits will result in nullity.
To appeal a judgment, a declaration must be made at the registry of the court that ruled in the first instance, or at the registry of the penitentiary center when the person is detained.
The declaration of appeal must indicate whether the appeal concerns only the public action and/or the civil action.
Who can appeal?
Who has the right to appeal varies according to the situation and the matter at issue.
In contraventional matters, article 546 of the Code of Penal Procedure determines the situations in which it is possible to appeal and the persons who have the right to appeal :
| When can a judgment be appealed? | Who can appeal? |
|---|---|
|
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| Whendommages & damages have been awarded. |
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| Where a police judgment has been rendered |
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Who can appeal a correctional judgment? ?
In correctional matters, , article 497 of the Code of Criminal Procedure provides that the right to appeal belongs to :
- The accused ;
- The person civilly liable (only for civil interests);
- The civil party (only for civil interests) ;
- The public prosecutor; ;
- The public administrations (in cases where they are exercising the public action);
- The public prosecutor at the court of appeal.
The civil party can never appeal against the criminal provisions of the judgment.
The right to appeal against the civil provisions of the judgment belongs to the accused, the civil party or the person liable.
(For more information on the criminal court, see : https://braun-avocat.com/en/correctional-court/#penal)
Who can appeal a criminal judgment ?
In criminal matters, article 380-2 of the Code of Criminal Procedure specifies that the right to appeal belongs to :
- The accused ;
- The public prosecutor ; ;
- The civil party (only for civil interests)
- The civil party (only in respect of civil interests);
- certain public administrations exercising public action (but on incidental appeal by the public prosecutor);
- The public prosecutor (for judgments of acquittal).
What is the deadline for appealing a judgment?
The time limit for filing an appeal is strictly regulated. The person wishing to appeal has 10 days from the day the judgment is handed down to appeal when the judgment is contradictory.
If the judgment was rendered in absentia (i.e. the person being prosecuted was not regularly summoned or did not know of the summons), the time limit will start to run from the date of service.
When a party has filed an appeal within the 10-day period, the other parties may also appeal (this appeal is then called a« cross-appeal »). They have an additional 5 days to do so.
As an exception, this time limit is reduced to 24 hours when the court rules on a request for release, for the lifting of judicial supervision or for the modification of judicial supervision or electronically monitored house arrest.
Criminal defense before the court of appeal: :
In the event that the client wishes to appeal, the lawyer takes particular care to ensure that the deadlines and conditions for appeal are respected.. He drafts the conclusions, paying particular attention to the motivation of the first instance and providing real background work on the case, prepares his client for the hearing, intervenes during the hearing by asking questions, and finally pleads.
The lawyer ensures that the case file is put together by gathering all the documents needed to establish the personal and professional life of his client in order to obtain a reversal of the decision of the first instance (or its confirmation, if the decision of the first instance was satisfactory and the appeal comes from the prosecutor or the civil party).
Present throughout the proceedings, Maître Alexandre-M. BRAUN assists, advises, prepares and accompanies his client until the hearing at which he will plead in order to ensure his defense..
The defense of the victims before the court of appeal: :
It should be recalled here that the appeal of the civil party, the victim, can only concern his civil interests (that is to say, damages). This means that the victim cannot appeal against the sentence pronounced against the defendant, even if he or she considers it insufficient.
Maître Alexandre-M. BRAUN assists his clients who are victims of a criminal offense by ensuring that their rights are respected. He gathers with his client all of the elements necessary to demonstrate the truthfulness and extent of the prejudice suffered by the latter. He drafts the statement of appeal and the conclusions based on the existence of the prejudice in order to expose to the judges of appeal the damage really suffered by his clients and ignored by the first judges.
Given the stakes of the appeal procedure, it seems essential to be advised by a criminal lawyer in order to :
- Audit the case and determine whether the appeal has a real chance chances réelles of succeeding;
- file the appeal within the time limit,
- follow the procedure to the end;
- be recognized as a victim and obtain compensation for the damage suffered.