How can a final court decision be overturned?

Chapters of the article

• Ordinary and extraordinary remedies in civil proceedings
• Action for a retrial
• Particulars of claim
• Action for a declaration of nullity

Ordinary and extraordinary remedies in civil court proceedings

Let us begin by adding that the more common and frequently used remedies are mainly ordinary ones, which are used to review decisions that have not yet become final. They therefore do not interfere with the legal situation already established. These include, in particular, appeals, as well as opposition and objections.

Among the extraordinary remedies offered by the Civil Procedure Code (CPC) are an action for a retrial, an action for a miscarriage of justice and an appeal. The law defines quite strictly the range of decisions against which each remedy may be used. It also regulates the admissibility of the grounds for bringing them. Should an exceptional situation arise where it would theoretically be possible to bring all three appeals simultaneously, preference is given to deciding on the appeal. In a competition between two of those actions, the action for annulment would then ‘prevail’.

We will now take a closer look at both of these actions…

Action for a retrial

An action for a retrial may be used if, after the decision has become final , facts have come to light which were not known and could not have been used, although they have a significant impact on the decision. Similarly, new evidence may also be relevant. However, the important point is that it already existed at the time of the decision, it was just not known at the time. However, if the evidence was already known and proposed in the previous proceedings, but was not taken, it cannot form the basis of the present action.

The new evidence or facts in question should lead to a more favourable decision in the case for the party bringing the action (or at least it is assumed that it will). It may be brought by a party who has not been successful (at least in part) in the proceedings, or by an ‘intervener’ (that is, a third party whose rights are not directly at stake in the dispute, but may be affected by it – for example, in a recourse action). If the only remedy sought is to remedy legal defects, then an action for a retrial cannot be used.

Examples include the discovery of a new witness of whom we were previously unaware or whose whereabouts were unknown, the discovery of a will after inheritance proceedings have taken place, or the return of a person who has already been declared dead.

The action is admissible against:

• judgments,
• judgments,
• orders approving a settlement,
• orders for payment.

On the other hand, an action may not be brought against:

• judgments on divorce, on the nullity or non-existence of a marriage, or on the non-existence or nullity of a partnership
• partial (so-called “incidental”) judgments – e.g. only on the time limit for performance, on costs, on provisional enforceability, on interim measures,
• against a decision of the Court of Appeal,
• decisions which can be otherwise modified.

Time limits for bringing an action for revision

An action may be brought before the court of first instance within three months of the discovery of the new facts (the so-called subjective time-limit), but at the latest within three years of the original decision becoming final (the so-called objective time-limit). These time limits cannot be waived.

The law allows only one exception to the above time limits. If a decision in another procedure (e.g. a criminal judgment, a decision on an offence, etc.) has been annulled and the decision challenged in the action for retrial depends on that decision, the action may be brought within three months of the annulment of the related decision. The objective time-limit of three years does not apply here.

Pleas in law

The application should, first of all, identify the decision which it is challenging and to what extent. It should also identify the new pleas in law or facts which have come to light and explain why they could not have been raised earlier. Since the subjective time-limit of three months for bringing an action is relevant here, the application should also contain evidence of the timeliness of the application. An important part is the so-called ‘petition’ of the action, i.e. what the claimant is seeking.

The proceedings then break down into two. First, the renewal itself is decided and then , if the court allows the action, it decides the case again. Allowing the reopening also suspends the enforceability of the decision. The court shall hear the case again, taking into account any new facts and evidence which have come to light. It may then either dismiss the application for amendment of the original decision by order or give a new judgment on the case.

Action for a declaration of nullity

Successful recourse to an action for a declaration of nullity makes it possible to set aside or alter the original decision where it was accompanied or preceded by procedural defects in the proceedings. By procedural defects we mean defects in the procedure itself, for example, where the case was decided by a judge or a presiding judge who was excluded, or where a matter was decided not by the court at all but by another body, or where a party was deprived of the opportunity to be heard by the court. They must be distinguished from so-called substantive errors of law, where the court misapplied the legal rule under which it was ruling.

An action for a miscarriage of justice may be brought by a party to proceedings who has not been fully satisfied by the decision of the court or has suffered prejudice to his rights. An action may also be brought by a person who has been deprived of the opportunity to be heard by the court in the course of the proceedings as a result of the court’s incorrect conduct. Under the conditions specified in the Code of Civil Procedure, interveners, the Public Prosecutor’s Office and the Office for the Representation of the State in Property Matters are also entitled to bring an action.

The action shall be admissible against:

• the final judgment of the Court of Appeal or its final order deciding the merits of the case,
• a final judgment of the court of first instance from which no appeal lies,
• a final order for payment under the conditions laid down in the Code of Civil Procedure.

As in the previous case, this action may not be used against:

• judgments on divorce, nullity or non-existence of marriage or partnership,
• partial (so-called “incidental”) judgments – e.g. only on the time limit for performance, on costs, on provisional enforceability, on interim measures,
• an order deciding an action for possession which has been disturbed,
• only against the reasons for the decision,
• against decisions of the Court of Appeal.

The Act further provides in some of its provisions for the inadmissibility of both types of actions in special cases.

You may bring an action for annulment before the court which decided at first instance within three months of the delivery of the contested decision. However, if the action is brought because the party to the proceedings was prevented from appearing before the court and was not properly represented, the action may be brought within the period of three months beginning on the date on which the party was appointed a representative or the obstacle preventing him from appearing before the court ceased to exist. The maximum period of time is limited by law to three years from the date on which the contested decision becomes final.

At the first stage, the court decides whether the action is admissible. If it considers the action to be unfounded, it shall dismiss it by order. If it is found to be well-founded, the contested decision (or, where applicable, the decision which preceded it) is annulled. The case shall then be reheard and a new decision shall be taken.