Casalonga UPC rules of procedure
Powered by Casalonga

Rule 247Fundamental procedural defects

A fundamental procedural defect under Article 81(1) [1] of the Agreement may have occurred, for example, where:

(a) a judge of the Court took part in the decision in breach of Article 17 [2] of the Agreement or Article 7 [3] of the Statute.

(b) a person not appointed as a judge of the Court sat on the panel which took the final decision;

(c) a fundamental violation of Article 76 [4] of the Agreement occurred in the proceedings which have led to the final decision;

(d) the decision was made without deciding on a request relevant to that decision; or

(e) a breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms has occurred.
...
Please login to continue reading.


Registering with the site

You have requested to take part in a forum reserved for registered visitors.

Personal identifiers

Enter your personal information here. You will receive a registration confirmation shortly by email. Such email may have been considered as spam. If you do not find it in your inbox nor in your spam, please send an email to contact@upc-casalonga.eu.

(Your password must contain at least 6 characters.)

Required fields are indicated with a « * »


New visitor ?

Subscribe


[1-
(1) A request for rehearing after a final decision of the Court may exceptionally be granted by the Court of Appeal in the following circumstances:
(a). on discovery of a fact by the party requesting the rehearing, which is of such a nature as to be a decisive factor and which, when the decision was given, was unknown to the party requesting the rehearing; such request may only be granted on the basis of an act which was held, by a final decision of a national court, to constitute a criminal offence; or
(b). in the event of a fundamental procedural defect, in particular when a defendant who did not appear before the Court was not served with the document initiating the proceedings or an equivalent document in sufficient time and in such a way as to enable him to arrange for the defence.

[2-
(1). The Court, its judges and the Registrar shall enjoy judicial independence. In the performance of their duties, the judges shall not be bound by any instructions.
(2). Legally qualified judges, as well as technically qualified judges who are full-time judges of the Court, may not engage in any other occupation, whether gainful or not, unless an exception is granted by the Administrative Committee.
(3). Notwithstanding paragraph 2, the exercise of the office of judges shall not exclude the exercise of other judicial functions at national level.
(4). The exercise of the office of technically qualified judges who are part-time judges of the Court shall not exclude the exercise of other functions provided there is no conflict of interest.
(5). In case of a conflict of interest, the judge concerned shall not take part in proceedings. Rules governing conflicts of interest are set out in the Statute.

[3-
(1). Immediately after taking their oath, judges shall sign a declaration by which they solemnly undertake that, both during and after their term of office, they shall respect the obligations arising therefrom, in particular the duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits.
(1). Judges may not take part in the proceedings of a case in which they:
(a). have taken part as adviser;
(b). have been a party or have acted for one of the parties;
(c). have been called upon to pronounce as a member of a court, tribunal, board of appeal, arbitration or mediation panel, a commission of inquiry or in any other capacity;
(d). have a personal or financial interest in the case or in relation to one of the parties; or
are related to one of the parties or the representatives of the parties by family ties.
(2). If, for some special reason, a judge considers that he or she should not take part in the judgment or examination of a particular case, that judge shall so inform the President of the Court of Appeal accordingly or, in the case of judges of the Court of First Instance, the President of the Court of First Instance. If, for some special reason, the President of the Court of Appeal or, in the case of judges of the Court of First Instance, the President of the Court of First Instance considers that a judge should not sit or make submissions in a particular case, the President of the Court of Appeal or the President of the Court of First Instance shall justify this in writing and notify the judge concerned accordingly.
(3). Any party to an action may object to a judge taking part in the proceedings on any of the grounds listed in paragraph 2 or where the judge is suspected, with good reason, of partiality.
(4). Any difficulty arising as to the application of this Article shall be settled by decision of the Presidium, in accordance with the Rules of Procedure. The judge concerned shall be heard but shall not take part in the deliberations.

[4-
(1). The Court shall decide in accordance with the requests submitted by the parties and shall not award more than is requested.
(2). Decisions on the merits may only be based on grounds, facts and evidence, which were submitted by the parties or introduced into the procedure by an order of the Court and on which the parties have had an opportunity to present their comments.
(3). The Court shall evaluate evidence freely and independently.