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LJ, 55, Zakeri, A. Research Journal of Recent Sciences, 4 3 , Whereas, he is doctorated in civil legal sciences at the University of Tirana in Albania. At the beginning he used to work as an assistant, later as a lecturer, and now is in Advanced Prof. He lectures contested civil procedure, noncontested civil procedure and insurance law. He has published several scientific articles in several national and international journals, and has also been part and he is acting as an expert in several vital projects in Kosovo legal system.

Appeal represents a regular legal remedy with suspensive effect in comparison to extraordinary legal remedies of attacking civil decisions which do not have suspensive effect.

Therefore, a special attention shall be paid to the handling of appeal in procedural terms as well actions concerning the appeal, but not to causes from which the appeal may be submitted as a regular legal remedy, deadlines and decisions rendered by a higher degree court, and not only regarding local level how this issue is regulated by our legislation respectively by the Law on Contested Procedure LCP provisions, but also broader.

Conducting procedure according to appeal in legal-civil context is preceded by the submission of appeal from the dissatisfied party with the court decision which may act within legal deadlines and only if it comes to the fulfillment of at least one of determined causes by provisions of the Law on Contested Procedure hereinafter LCP.

A court decision, like any human act, may be flawed and with errors. Appeal is a legal remedy which the law makes available to 1. Brati, Alban A. Brestovci, Faik; Op. Whereas from the objective point of view, it represents the act by means of which is exercised this power and this right, by including also the internal procedure initiated by this act.

Use of legal remedies, as a basic right The right to appeal by using legal remedies of attacking decisions is a basic human right guaranteed by Declarations and International Conventions, as well as by Constitution and national laws. This right is protected by the Universal Declaration of Human Rights under articles 88 and Terihati, Franc: Civil Procedure, Tirana, , pg. Article 8: Article Everyone has the right, in full equality, to have his case handled fairly and publicly by an independent and impartial tribunal, which has to decide in terms of his rights and obligations, as well as concerning any accusations in the criminal court directed against him.

Article 6: Legal remedies in contested procedure Legal remedies bearing in mind the fact that are procedural actions by means of which parties and other authorized persons in procedure attack the decision which they consider to be unlawful and unfair and request to the court of legal remedy after verifying merits of their claims to change or annul it by its own decision, these attacking legal remedies have been foreseen in all procedural law areas: In civil proceedings contested, non-contentious and execution proceedings in criminal proceedings and in administrative proceedings.

When it comes to procedure it is necessary to make a distinction between legal remedy in broad aspect and legal remedy in narrow aspect. Legal remedies in broad aspect include in addition to legal remedies in narrow aspect also several other legal remedies allowed by law, but in systematic terms the legislator does not regulate them as in sections where are regulated regular legal remedies of attacking decisions.

As such is rejection according to payment order according to the provision of Article of LCP , and the request for returning to Article 32 Right to Legal Remedies: Article 54 [Judicial Protection of Rights]: Article , paragraph 2 General Principles of the Judicial System: Cited by: As such legal remedy could be considered also the request to change a court decision under Article of LCP.

Hence, these legal remedies are legal remedies in a broad aspect by means of which the appellant aims to change or even abrogate a court decision. Legal remedies in narrow aspect may be listed according to different criteria. They are divided into legal remedies ordinary and irregular legal remedies extraordinary.

The Law itself legally foresees the distinction between legal remedies ordinary and irregular legal remedies extraordinary of attacking decisions. Which means such legal remedy is filed against a decision which did not yet become final and as such obstructs the finalization of the decision, while the second instance court and in some cases the third instance court render a decision about it.

As a legal remedy ordinary under this law is the appeal against judgment and appeal against a ruling. Consequently against the same decision at the same time cannot be submitted the regular legal remedy and extraordinary legal remedy. As extraordinary legal remedies of attacking decisions are: Revision, request for Protection of Legality and proposal for Repetition of Procedure. By devolutive character of a legal remedy is implied the fact that in relation to a submitted legal remedy shall be decided by court of a higher instance from the one who has rendered the attacked decision.

Law no. Legal remedies have a suspensive character when they suspend the execution of a court decision, whereas lack this feature when they do not stop the execution of a court decision. Appeal against judgment is always of a suspensive character, whereas appeal against a ruling in principle has this characteristic, but to several rulings the appeal does not have a suspensive character.

Extraordinary legal remedies do not have a suspensive character, although, according to circumstances of a concrete case, court may decide to suspend the execution of a decision until proceedings related to that legal remedy comes to an end. A legal remedy is unilateral if a court decides upon it without having the need to give the possibility to the opposing party to declare concerning its content.

On the contrary a legal remedy is bilateral if to the opposing party should be given the possibility to declare concerning claims that the complainer filed. Unilateral means of attack is solely appeal against ruling.

All other legal remedies of attacking decisions are bilateral. Means of attacking decisions are usually independent, and by using them independently may be attacked all court decisions. There are few exceptions to this rule, and they have to do with appeal against several rulings of the first instance court.

In the first one acts the court of the first instance whereas in the second one acts the court of the second instance.

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Procedure at the first instance court The appeal shall be submitted in sufficient copies to the first degree court which rendered the attacked decision Article of LCP. All this procedure is conducted by the presiding judge who also finds that appeal is filed on time under the law and whether it is complete or permissible.

If the appeal is flawed, then the appeal is The appeal presented after the deadline foreseeable by the court, the incomplete one, or the illegal one the court can reject with a decision of the first degree without setting a court session. A sample of the appeal presented timely, legally and complete, is sent within seven days to the opposing party by the court of the first degree complain, that can be replied with presentation of an appeal within seven days Article After this, the first instance court within seven days, prepares the complete file of case concerning appeal and reply to appeal and sends it to the second instance court.

Procedure at the second instance court In the second instance court, is assigned a relevant judge by the president of the judicial panel based on the internal regulation on courts. The rapporteur judge plays a decisive role in a concrete process and is obliged to actively deal with the submitted appeal. In Albania, the rapporteur is appointed by lot. The law does not set a deadline within which the court of first instance should give explanations.

Whereas by bearing in mind the principle of efficiency in the procedure as a fundamental principle in the judicial civil proceedings, then the first instance court must give clarifications within a reasonable period of time Article of LCP. In principle, it reviews the case only at the judicial panel hearing. Exceptionally, the appeal is reviewed at the main trial hearing. For discussion, the court of second instance shall determine a direct examination for the case even if the verdict of the first instance court was twice annulled, and in the case when court evaluates that the verdict against which an appeal is filed was based on essential violation of provisions of contestation procedure, or when the factual state was evaluated wrongly or incompletely.

The court of second instance can determine evaluation of the case when it estimates that for a rightful However, certain rules are applicable only to the court of second instance.

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The court will summon parties and their representatives for the main trial hearing. All rules are applicable as in the court of first instance. The court may summon as well as witnesses and experts if necessary. In this case it is more expressed the principle of investigation rather than the principle of reviewing.

In case of appellant or the opposing party absence, cannot be rendered a judgment because of disobedience or absence, which would be conducted in the procedure of the first instance, where would be concluded that party either waived or the appellant has withdrawn the appeal. In case of one or both parties are absent court acts based on these documents: As a matter of fact the procedure is conducted by acting on the basis of the documentation contained in the case file from the content of which depend decision-making concerning the appeal.

Court on summons shall notify the parties about legal procedural consequences of not attending the hearing. This procedural legal consequence consists in the fact that the court shall decide regardless whether the parties will reply to the summons or not Article of LCP. Hearing is conducted with the presentation of case by a relevant judge, which has no right to express his opinion on the merits of the appeal. After this, the verdict is read or just the part involving the appeal and when needed the record in the final hearing in front of the court of first instance is read.

Than, the appellant justifies its appeal, while the opposing party responds to the appeal. Primarily in civil judicial procedure the administration of evidence is made directly, as it is in the first instance court, but there are also exceptions. Otherwise it would commit a violation of procedural provisions. Likewise, the appellant cannot be put in a worse legal position with the decision of the second instance court, than it was with the decision of first instance court Article LCP.

The second instance court shall only deal with that part of judgment for which was filed an appeal. The other part of judgment which was not attacked by appeal cannot be subject of review by the second instance court due to the fact that part has become final in formal and material meaning. The second instance court is limited also concerning causes of appeal, so shall deal only with those causes that were submitted by the party in appeal. However, court ex officio shall consider essential the violations of absolute importance and whether the substantive law was properly applicable.

Of course the court shall not deal with these issues by its own initiative, but only after the appeal has been submitted against the verdict of the first instance court. The Law by article of the LCP is limited to several essential causes of procedural provisions. Thus, the second instance court shall consider ex officio essential violations of absolute importance according to provision of the article , par.

Which implies for other violations of procedural provisions according to the provision of Article , par. Therefore, from the provision of Article of the LCP it appears that the court of second instance shall not be able to deal ex officio with essential violations of absolute importance, according to article , paragraph. The same applies also concerning essential violations of relative importance, since with these violations shall deal solely the second instance court if the appellant has requested such a thing Article LCP.

These decisions are defined in detail due to the fact by these provisions are foreseen all possible decisions of the second instance court: Concerning these, the court of second instance decides either by a ruling or by a judgment.

If a party does such a thing this is not binding to the court. But the second instance court may annul the attacked judgment although a party has proposed its amendment and vice versa Article LCP.

Dismissal of appeal The appeal presented after the deadline foreseeable by the court, the incomplete one, or the illegal one the court can reject with a decision of the first degree without setting a court session.

The annulment of judgment and its return to retrial The second instance court decides by ruling to annul the decision of the first instance court and returning the case for retrial at the first instance court.

The LCP in Article explicitly provides cases in which the court acts in this manner, the following cases are: The second instance court may decide that the case to be retried by another court with the same subject matter jurisdiction if there is no other judge in the competent court which could be dealing with the retrial of the case Article , par. Annulment of judgment and dismissal of indictment The second instance court by its ruling annuls the judgment and dismisses the indictment as inadmissible in all cases in which such a thing should have been made by the first instance court.

The court acts like this when it concludes that the legal case submitted by an indictment does not fall within the judicial jurisdiction Article paragraph 1 of the LCP , when it concludes there is a negative procedural presumption Article paragraph 2 , or when it concludes the absence dealing with the capacity to be a party, with procedural capacity and with the representation of a party, cannot be avoided even in a retrial by the court of first instance Article of the LCP.

Rejection of appeal and confirmation of judgment The court of the second instance through a decision will reject the appeal as ungrounded, thus verifies the decision of the first instance court if it decides that there are no causes that affects the decision, nor causes for which is entitled to deal according to the official task.

In these two cases, this second instance court judgment becomes final in both formal and material meaning at the moment of delivery of the verdict to the parties Article LCP.

Amendment of judgment The second instance court by judgment changes the attacked verdict, deciding on the object of the dispute. According to article of the LCP the second instance So this decision should not contain the reasoning part as it is the case with the decision of the first instance court. But in certain cases it must present the decisive facts on the basis of which the decision was rendered, as if it was the rendering of a judgment on the merits of the appeal.

After all, any eventual violation of this provision can not constitute grounds for filing a revision because of the violation of procedural provisions. The second This administrative judicial matter for sending the case to the first instance court is regulated by the provision of Article of the Law on Contested Procedure.

It is the right of parties included to civil contest not to be satisfied by the first instance court decision, therefore, the plaintiff the respondent or both parties are entitled to attack the respective decision by appeal, which represents a regular legal remedy.

By appeal within determined legal deadline may be attacked all types of civil judgments regardless of whether the party participated during conducting contested civil procedure or not, respectively the court has ruled by judgment on the absence. This circumstance is of special importance due to the fact it determines timelines to file an appeal which in principle is 15 days, with certain exceptions.

Maintaining legal deadline for submitting the appeal constitutes a fundamental and formal issue whether the court shall examine the appeal or the same will be rejected as delayed. Court actions concerning the appeal are categorized into two groups, in those undertaken by the first and second instance courts.

These actions should be well- defined so the appellant shall not be damaged concerning time aspect in terms of waiting for the appeal to be reviewed by the Court of Appeals that in judicial practice unfortunately occurs many times, this due to the fact that delayed justice is not any type justice. Civil procedural law, contested procedure, Pristina, Jaksiq, Aleksandar: Gradjansko procesno pravo, Beograd, Ristic, Vukasin dhe Ristic, Millosin: Tafaj, Kola, Flutura and Vokshi, Asim: Civil Procedure, Tirana, The Constitution of the Republic of Kosovo, adopted on 09 April , entered into force on June 15, Cristina Elena Popa2 Associate scientific researcher - the Legal Research Institute of the Romanian Academy, Associate in the Chartered Institute of Arbitrators, Arbiter and mediator in Vienna International Arbitral Centre, Member of Arbitral Women Abstract The respect of the equality of rights, and of the non-discrimination liability, involves taking into account the treatment provided by the law for the ones to which it is applied, throughout the period while its regulations are effective, legal treatment that cannot be different.

Investing in people! It shall be further checked whether the principle of non- retroactivity of the civil procedural law — in terms of the obsolescence of the civil action — is compatible with art. Results from this study that Romanian law is located on a transition phase. Reform of areas of law becomes imperative. Preliminaries Pursuant to the provisions of art. The institution of the obsolescence of the court did not exist in the regulation of the Civ.

We must specify the following: The civil procedure code of , in its initial form, provided, at art. The Civil Code was decreed on November 26, enacted on December 4, and enforced on December 1, The courts initiated and slacked shall be obsoleted, in the absence of a request for pre-emption, by 30 years calculated since the latest procedural deed, whichever the prescription term of the actions following which those instances may have been initiated might be.

The obsolescence under the conditions provided by art. Following the expiry of the obsolescence term, any procedural deed remains inoperative.

The obsolescence may be ascertained upon request made by the party concerned or of the own motion. It may be proposed also by way of exception. The obsolescence operates also in the processes in which the procedure is made of the own motion, unless it has been insisted on the establishment of the hearing. XIV of Law no. Among the aims of the4 elaboration of the Code have been both the modernization of the regulation of the civil legal relations and the organic and detailed regulation of the rights of the persons and of the related defence and of the matters of liabilities according to the European trends in the contracts field.

In the New Civil Procedure Code was introduced art. The provisions of art. The sanction of obsolescence of the court ensures the final closure of the requests over which the courts have acquired jurisdiction and which have unreasonably remained in the records of the later for longer periods of time, without the plaintiff to have performed any step procedural action in order to settle the case or without the plaintiff to have shown any kind of interest as far as stage of the later is concerned.

Has been established therefore, a special obsolescence - the obsolescence of the court, which is different respect to the obsolescence of the request, due to the fact that: The institution of the special obsolescence of the court is governed by the same procedural rules regarding the invocation, the settlement and the generation of the effects as in the case of the obsolescence of the request.

These aspirations are included, in addition, in the explanatory memorandum which laid at the basis of the draft of this normative deed, point 1. The procedural-civil legislation creates the framework for capitalization by way of justice of the new substantive legal rules, setting-out the bodies, the forms and the procedural means necessary for their enforcement.

The substantive reform of the substantive law and the organic inter-dependency between the substantive rule and the procedural one, rendered necessary the elaboration of an appropriate legal instrument in the procedural field - the new Civil procedure code - which might assign efficiency to this reform, introducing standards which fulfil the requirements of a modern, fast, close to the litigants institution. From now on, the suspension ceases, and the obsolescence term regains its proper course, the parties involved in the judgement of the trial being bound, within the term of one year enshrined by art.

The Decision no. The full text of this decision may be read on the official online page dedicated to the case law of the High Court of Cassation and Justice: Pursuant to the provisions of art.

We acknowledge that, pursuant to art. It may be asserted that the suspension has been disposed in one of the cases contemplated by the law, respectively by Law no. The entitled person shall notify immediately the notified person, pursuant to art.

Currently, this article became, by re-numbering, art. According to the afore-mentioned provisions, it is moreover necessary that this suspension — although enshrined by the law — be not generated by the lack of insistence by the parties to the proceedings. Not for last, must be taken into account also the circumstance that there are pending with the courts of law cases suspended during the years , which are, therefore, in suspension for over fifteen years, obviously with the infringement of the principle of celerity, a general principle regulated also by the old civil procedure code, regulation which does not include nevertheless a maximal rigorous delimited term.

These situations in which are actually about 10, litigants are obviously, unrelated to the judgement of the case with celerity, the later having as an aim the very removal of the uncertainty in which the parties are, through the restoring as soon as possible, of the infringed rights and through the reinstatement of the lawfulness which must govern all the legal relationships in a rule of law state, which represents the guarantee of a fair trial.

Under the afore-described conditions, it is brought into debate a very serious problem, the settlement of which consists of the analysis of the constitutionality of art. It shall be further checked whether the principle of non-retroactivity of the civil procedural law — in terms of the obsolescence of the civil action — is compatible with art.

The Convention for the defence of human rights and of fundamental freedoms, elaborated in the European Council, opened for signing in Rome, on November 4, , became effective on September In the spirit of its authors, it is about adopting the first measures meant to ensure the collective guarantee of some of the rights listed in the Universal Declaration of Human Rights of The Convention enshrines, on the one hand, a series of civil and political rights and freedoms and establishes, on the other hand, a system which aims the guarantee and the compliance by the contracting states with the liabilities taken by them.

By Law no. According to the provisions of art. CRISTINA ELENA POPA to an equitable trial9, but also if the litigants who are parties to proceedings under the old law are somehow discriminated compared to those who are parties to proceedings under the new law and to whom is applied the privilege of special obsolescence within 10 years.

Pursuant to art. Introduced by the Law for the revising of the Constitution no. Similar provisions are contemplated also in Law no. The result obtained from the enforcement strict sensu of the legislation in force, shows a different situation in which the citizens are, according to the regulation enforceable according to the tempus regit actum principle, as it cannot be regarded by the courts as an infringement of the constitutional dispositions, the judges often invoking it, an example in this sense being the Constitutional Court Decision no.

The judgement of the trial within a reasonable term aims at removing the uncertainty in which the parties are, through the restoring as soon as possible, of the infringed rights and through the reinstatement of the lawfulness, which must govern all the legal relationships in a rule of law state, which represents a guarantee of a fair trial.

For instance, CEDO has ascertained in the case Corabian against Romania , the infringement of article 6 comma 1 - the right to a fair trial - from the Convention and, respectively, of art. Another case in which has been ascertained such an infringement has been the case Abramiuc against Romania. II comma 4 of the Government Emergency Ordinance no. Official Gazette of Romania, Part I, no. It is worth noticing that in this argumentation are motivated judicial decisions, even if the afore-mentioned decision precedes the Law no.

The respect of the equality of rights, and of the non-discrimination liability, involves taking into account the treatment provided by the law for the ones to which it is applied, throughout the period while its regulations are effective, legal treatment which cannot be different. Basically, the unconstitutionality of a text of law cannot be claimed through the bare comparison between the old regulation and the new one, nor can it apply to any kind of cases. Another decision of the Constitutional Court which is often claimed when debating the unconstitutionality of the text of law to which we are referring, is the Decision no.

The defendant has repeatedly attempted, the re- docketing of the case 12, facing repeated The infringement of the equal treatment and of non-discrimination principle occurs when to equal cases is applied a differentiated treatment, without an objective and reasonable motivation. In support of the assertion that leaving the case unprocessed since Thus, under these legal provisions, the obsolescence of the Civil Procedure Review, v.

In the case, it has been ascertained that the plaintiffs have initiated the proceedings for the recovery of their asset by formulating a notification during the year , and the relevant authority in the field of restitution has replied through a circular letter, saying that the real estate property could not be returned in kind, and that the complainants shall be issued instead a decision for the granting of the relative compensations.

The plaintiffs did not complete other formalities, showing passivity and lack of insistence in the exercise of their legal rights, although they would have had available against the relevant authority, as the case might have been and according to the moment of the action, both an action in administrative contentious, having as a scope the binding for the issuance of the administrative deed, and an action for the binding of the authority to reply to the notification.

Accordingly, the plaintiffs, throughout the case suspension term currently the case having been suspended for 15 years , did not submit other documents on the file the settlement of which has been suspended by law. Of course, they could have filed an action in administrative contentious, pursuant to the provisions of art.

This term may be calculated starting from two reference dates, according to the peculiarity of each and every case, respectively, either from the date of registration of the notification in the situation in which all the documents-in-proof necessary to settle the notification had been submitted along with it , or from the date on which all the documents-in-proof have been submitted.

The defendant, taking into consideration the possibilities expressed by the applicable texts of law, has repeatedly formulated requests for re- docketing, for the verification of the actual situation both regarding the court file, and regarding the administrative file, all court operates in the case of any request which has remained unprocessed for 10 years, with the consequence of the obsolescence by law even in the absence of reasons attributable to the party.

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