Leave to appeal
When the requirement of leave to appeal was introduced, the position of the Supreme Court as the court changed considerably. The earlier system of appeal with a hierarchy of three court instances was replaced by a system with two instances: a decision of a court of first instance may usually be appealed against to one superior court. Thereby the courts of appeal are the highest instance for most court proceedings, whereas the role of the Supreme Court clearly is that of creating precedents. Leave to appeal is also required for appeal against decisions of specialised courts.
Grounds for leave to appeal
The preconditions to the granting of leave to appeal are as provided in Chapter 30, section 3 (1) of the Code of Judicial Procedure, under which the Supreme Court may only grant leave to appeal on the following grounds:
1. a decision of the Supreme Court is necessary for the application of law in identical or similar cases or for the consistency of case law;
2. an error in procedure or other error has taken place in the case, which by virtue of law requires that the decision be quashed;
3. there are other weighty reasons for granting leave to appeal.
The purpose of the requirement of leave to appeal is to enable the Supreme Court to concentrate on guiding judicial practice through precedent. Therefore the first alternative ground for the granting of leave to appeal is the most important one. A precedent may relate to the application of law in identical or similar cases or to the consistency of case law. In the first- mentioned case the precedent provides guidance for resolving similar questions of law in the future. In the latter case the precedent provides guidance for such practice of lower courts as is inconsistent or contradicts the case law of the Supreme Court. The granting of leave to appeal on the grounds that the case creates a precedent always suggests that the decision of the Supreme Court has general legal relevance.
The other grounds for the granting of leave to appeal are seldom applied. They are mainly applied when there is need to rectify a clearly erroneous, unreasonable or unfair court decision.
A decision on the granting of leave to appeal is made upon application. The application must indicate the grounds on which leave to appeal should be granted, i.e. whether the case creates precedent, involves an error in procedure or there are other weighty reasons. The application must further indicate the reasons on the basis of which the applicant considers that there are grounds for granting leave to appeal. In brief, the application for leave to appeal must set out the grounds.
The Supreme Court may reverse the final judgment of a court or grant a new deadline for an appeal according to the bases set forth in Chapter 31 of the Code of Judicial Procedure.
The deadlines for complaints and reversals of a final judgment vary according to the nature of the case.
Reversals of a final judgment and granting a new deadline are extraordinary procedures requiring that the very strict criteria set forth in law are met. It is only possible to request the reversal of a judgment (notwithstanding exceptions set forth in law) if the letter of complaint is filed by an attorney or legal counsel that fulfills the requirements established in the Code of Judicial Procedure, Chapter 15, Section 2.
The letter of complaint has to be filed in writing, and needs to indicate the grounds for the complaint as well as the evidence on which the complaint rests. The judgment against which the complaint is filed, as well as the written evidence to which reference is made, must be annexed to the letter.