A guide to the UPC and the UP - Flipbook - Page 454
21-94 Such a request shall not have the effect of suspending enforcement unless the Court of Appeal
decides that it should. 179 If such a request is made and found to be worthy for rehearing,
the Court of Appeal can set aside, in whole or in part, the decision in question and reopen
proceedings for a new trial and decision. 180
Criminal Offence
21-95 R.249 RoP provides that there need not be a conviction for an offence, instead, a criminal
offence will be considered to have occurred if it is held to be such an offence by a competent
court or authority.
Fundamental Procedural Defect
21-96 As mentioned and further to art.81(1)(b) UPCA, r.247 RoP sets out a non-exhaustive list
of examples of what a fundamental procedural defect may be:
–
A judge of the Court of Appeal took part in the decision in breach of his duty of
independence and impartiality; 181
–
A person not appointed as a judge of the Court of Appeal sat on the panel
which took the final decision;
–
A fundamental violation of the principles in art.76 UPCA, which sets out on
the basis of decisions 182 and the right to be heard, occurred in the proceedings
which led to the final decision;
–
The Court of Appeal decided the appeal without deciding on a request relevant
to that decision; and
–
A breach of art.6 Convention for the Protection of Human Rights and Fundamental
Freedoms 183 occurred.
21-97 It should be noted that where a party has been wronged by a fundamental procedural defect
and later brings a request for rehearing on such basis, the request would be inadmissible if the
party had not raised an objection relating to the defect during the initial Court of First Instance
or Court of Appeal proceedings despite its capacity to do so. 184
21-98 Neither the RoP nor the UPCA provide examples of when a party might have been expected
to raise an objection or when a party might reasonably be considered to not have had an
opportunity to raise an objection in proceedings.
21-99 Similarly, where a party could have brought an appeal regarding a defect but failed to do so,
a subsequent request for a rehearing on grounds of such defect will be inadmissible. 185
179
180
181
182
183
184
185
art.81(2) UPCA and r.252 RoP.
art.81(3) UPCA.
art.17 UPCA and art.7 UPCA Statute.
The Court shall not award more than is required; the decision on the merits may only be based on the grounds, facts and
evidence submitted by the parties or introduced by an order of the Court and on which the parties have had an opportunity
to be heard; and the Court shall evaluate evidence freely and independently.
“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law …”.
r.248(1) RoP.
r.248(2) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 444
