Nolite reformare in peius Act (NoRip Act)

[Magniloqueu Épiqeu da Lhiun]

WHEREAS the process of appeals is a way for plaintiff and accused to protect themselves of unjust trials; and,
WHEREAS we want not to infringe upon this right to appeal, or to strike fear that the result might be worse when appealed; now,

THEREFORE know all citaxhien by these present, that Title G, Section 4 of the Lexhatx shall be changed as follows:

A new subsection 4.3. shall be created after G.4.2., reading:

4.3. Under the principle of reformatio in peius, the worsening change of a verdict, no appellate court shall be allowed to change an appealed ruling in such a manner that would be disadvantageous to the petitioner.
    4.3.1. In civil actions, reformationes in peius are permissible when both parties submit appeals.
    4.3.2. In criminal procedures, reformationes in peius are forbidden. In case of appeals from both parties, reformationes in peius detrimental to the convict shall be forbidden.

FURTHERMORE because the Ziu holds that it is detrimental to Talossa's justice system that courts are allowed not to give reason for dismissal of an appeal and not to react at all, and that this endangers the course of a fair trial, the Ziu enacts:

that Title G, Section 4, Subsection 2 of the Lexhatx shall be changed followingly:

4.2., which currently reads:
Appeals or other actions brought before the Uppermost Cort shall be heard within 90 calendar days from the date of assignment by the Clerk of Courts. Should this time elapse and no decision be rendered as to whether the Uppermost Cort will hear the matter brought before it, the court will have implied unwillingness to hear the case and the decision of the lower court shall be upheld without prejudice. Parties may then re-file their appeal a final time after waiting an additional 90 days. If the court declines to hear, or fails to respond within 90 days, the decision of the lower court shall be upheld and no further appeal shall be permitted.

shall henceforth read:

4.2. Appeals or other actions brought before any national court shall be heard within 90 calendar days from the date of assignment by the Clerk of Courts.
    4.2.1. The court, if it decides not to hear the case or appeal, shall issue a statement justifying its decision within the time frame given in 4.2.
    4.2.2. The disappointed appellant may, after a waiting period of 90 days after the appeal's dismissal, file the appeal a second time under the same conditions as outlined in subsection 2. However, if the court decides not to hear the case, stating its reasons for deciding so, no further appeal shall be permitted.
    4.2.3. If any court fails to respond within 90 calendar days from the date of assignment by the Clerk of Courts, then the Ministry of Justice, headed by the Attorney-General, shall carry out an investigation ex officio and submit her results to the Ziu for discussion of the matter and possible disciplinary action.
    4.2.4. Should the Ministry of Justice find that her investigations lead to the failure of a judge who has, within one year before, failed to comply with 4.2. and 4.2.1., she shall carry out the investigation according to subsubsection 4.2.3. and, altogether with her results, submit a bill for the Ziu to consider disposing of the judge.
    4.2.5. The Ministry of Justice must present her findings to the Ziu two months after a court's failure to respond has come to her attention. She may ask for an additional month for matters of great complexity.

Uréu q'estadra så: Magniloqueu Épiqeu da Lhiun (MC / MRPT)

[Magniloqueu Épiqeu da Lhiun]

Bumpbumpbumpitybump.

[Sir Alexandreu Davinescu]

On the first part:

In a civil action, any change to the verdict is going to be a worsening for someone, will it not? If I sue you for a thousand louise damages, and I recover five hundred, then which is reformatio in peius: a reduction in the award (bad for me) or an increase in the award (bad for you)? What's your intention, here? I don't understand.

In criminal proceedings, this principle is already at work. If a court finds someone not guilty, the Government can't appeal (although they could appeal the sentence) since we have a protection against double jeopardy. I'm not sure what's intended with this part of the statute, accordingly.

On the second part:
As I understand it, you want to require courts to issue a statement about why they won't take an appeal, and you also want to provide some way to investigate a silent court. I'm ambivalent about requiring our jurists to make official statements about why they won't hear an appeal, but I do still think that it's a good idea for the Ministry of Justice to note, track, tabulate, and report on judicial absence.

I'd love to work with you on that part of the bill; the language here needs a lot of work, I think, and these changes should be relocated to Title D, but it's a great idea. Is there any chance you'd be willing to split this bill into two bills?

[Magniloqueu Épiqeu da Lhiun]

Of course, it is just a rough draft and I can split these into two.

Well, for the first part in the civil actions:

Let's say, you appeal the decision of Low Court from Courtesia that says you will get 1000 money as damages for the car that the defendant broke. You think 1000 money is not enough and appeal.
As I see it, nothing hinders the appellate court to LOWER the amount of money you get, say it says "Meh, the damage was not so bad. You get 200 money, instead of 1000." Or, it even says "Meh, the court was wrong. You, appellant, don't get anything." That would be a reformatio in peius. "Peior" in this act means "peior" for the appellant, not for the respondent. Thus, reformationes in peius are allowed when both parties appeal a decision, because when the court is not allowed to change a verdict for the detriment of the appellant, in this case, it couldn't change the verdict, even if it wanted to: Both parties are appellants and the court will have to change the verdict in one way; somebody will lose. That's why the law explicitly allows for courts to worseningly change a verdict when both parties appeal a decision.

For criminal actions:
When the prosecution appeals the sentence, the court should not be allowed to worsen the sentence the trial court set, because it would be detrimental to the convict and would, in a nutshell, put him twice in jeopardy of life.

To the second part:
I think it very, truly, indeed, damnedly important that a court should be forced to explain why it won't hear a case, otherwise it could just decline a case due to laziness or because it finds the case too complex to handle, etc. Think of this: If our judges are not on-line for over 90 days, they might just miss a case and it would shed a bad light on our justice system, as in: Well, the judges could exercise their power, but they are too lazy so let appeals and cases lay dormant until it seems like they have declined to hear the case.

I would certainly appreciate syntactical help with the acts.

[Munditenens Tresplet]

I second what AD has to say. I'd like to see this in two separate bills, because I'm a huge fan of the second part, but not really sure how I stand on the first part.

[Sir C. M. Siervicül]

Mar 4, 2014 13:57:26 GMT -6 Magniloqueu Épiqeu da Lhiun said:

Thus, reformationes in peius are allowed when both parties appeal a decision, because when the court is not allowed to change a verdict for the detriment of the appellant, in this case, it couldn't change the verdict, even if it wanted to: Both parties are appellants and the court will have to change the verdict in one way; somebody will lose. That's why the law explicitly allows for courts to worseningly change a verdict when both parties appeal a decision.

Interesting concept. The doctrine appears to be unknown in common-law jurisdictions. I can see some merit in the idea, but here's a question: as you note, the doctrine does not apply when both sides appeal. Wouldn't this encourage "defensive appeals", where a party that would not otherwise appeal decides to appeal just because the other side might, and they can't risk the appeal serving as a one-way ratchet in the opposing party's favour? This kind of defensive behaviour could result in multiple appeals of judgments that might not otherwise be appealed at all.

Mar 4, 2014 13:57:26 GMT -6 Magniloqueu Épiqeu da Lhiun said:

I think it very, truly, indeed, damnedly important that a court should be forced to explain why it won't hear a case, otherwise it could just decline a case due to laziness or because it finds the case too complex to handle, etc. Think of this: If our judges are not on-line for over 90 days, they might just miss a case and it would shed a bad light on our justice system, as in: Well, the judges could exercise their power, but they are too lazy so let appeals and cases lay dormant until it seems like they have declined to hear the case.

I think this idea has merit. You might want to explicitly link it to OrgLaw Art XVI Sec 6, which already requires the Uppermost Cort to provide written justification of refusals to hear a case.

[Magniloqueu Épiqeu da Lhiun]

Mar 4, 2014 14:23:24 GMT -6 Sir C. M. Siervicül said:

Mar 4, 2014 13:57:26 GMT -6 Magniloqueu Épiqeu da Lhiun said:

Thus, reformationes in peius are allowed when both parties appeal a decision, because when the court is not allowed to change a verdict for the detriment of the appellant, in this case, it couldn't change the verdict, even if it wanted to: Both parties are appellants and the court will have to change the verdict in one way; somebody will lose. That's why the law explicitly allows for courts to worseningly change a verdict when both parties appeal a decision.

Interesting concept. The doctrine appears to be unknown in common-law jurisdictions. I can see some merit in the idea, but here's a question: as you note, the doctrine does not apply when both sides appeal. Wouldn't this encourage "defensive appeals", where a party that would not otherwise appeal decides to appeal just because the other side might, and they can't risk the appeal serving as a one-way ratchet in the opposing party's favour? This kind of defensive behaviour could result in multiple appeals of judgments that might not otherwise be appealed at all.

Mar 4, 2014 13:57:26 GMT -6 Magniloqueu Épiqeu da Lhiun said:

I think it very, truly, indeed, damnedly important that a court should be forced to explain why it won't hear a case, otherwise it could just decline a case due to laziness or because it finds the case too complex to handle, etc. Think of this: If our judges are not on-line for over 90 days, they might just miss a case and it would shed a bad light on our justice system, as in: Well, the judges could exercise their power, but they are too lazy so let appeals and cases lay dormant until it seems like they have declined to hear the case.

I think this idea has merit. You might want to explicitly link it to OrgLaw Art XVI Sec 6, which already requires the Uppermost Cort to provide written justification of refusals to hear a case.

To the first part:
Indeed, it might be. I had the same thought touch my mind peripherally just yet, when I was reading through AD's contributions to this act. But the court can always dismiss one appeal, stating that it has no merits. I understand that this might be tricky, but when a party would, at first, not wish to appeal, that might mostly because they have no leg to stand on with an appeal.

The second part:
I thought that I read that there were something similar for non-appeals, but I just couldn't find it. Now I know why: It is in the OrgLaw, not the Lexhatx. Thanks, I will do so!

[Sir Alexandreu Davinescu]

Mar 4, 2014 13:57:26 GMT -6 Magniloqueu Épiqeu da Lhiun said:

Let's say, you appeal the decision of Low Court from Courtesia that says you will get 1000 money as damages for the car that the defendant broke. You think 1000 money is not enough and appeal.
As I see it, nothing hinders the appellate court to LOWER the amount of money you get, say it says "Meh, the damage was not so bad. You get 200 money, instead of 1000." Or, it even says "Meh, the court was wrong. You, appellant, don't get anything." That would be a reformatio in peius. "Peior" in this act means "peior" for the appellant, not for the respondent. Thus, reformationes in peius are allowed when both parties appeal a decision, because when the court is not allowed to change a verdict for the detriment of the appellant, in this case, it couldn't change the verdict, even if it wanted to: Both parties are appellants and the court will have to change the verdict in one way; somebody will lose. That's why the law explicitly allows for courts to worseningly change a verdict when both parties appeal a decision.

Ah. So we have the Prisoner's Dilemma, then, in several variations.

If we have an equitable verdict, it's better for us both if neither one of us appeals, since we'd be putting a fair result at risk. But it's MUCH worse for each one of us if only the other person appeals: they stand to gain but can't possibly lose!

You so rarely see a Prisoner's Dilemma in such a perfect and clear form, how interesting.

Mar 4, 2014 13:57:26 GMT -6 Magniloqueu Épiqeu da Lhiun said:

For criminal actions:
When the prosecution appeals the sentence, the court should not be allowed to worsen the sentence the trial court set, because it would be detrimental to the convict and would, in a nutshell, put him twice in jeopardy of life.

So wait, are you saying that you don't want the Government to be able to appeal sentences at all, either? I am not sure I support that! We already have a protection against double jeopardy, so the Government can't appeal verdicts, if that's worrying you.

[Magniloqueu Épiqeu da Lhiun]

No, the government can appeal sentences, so long as it does not ask for a worsening of the verdict, say:
The AG has prosecuted Person X and Person X got 5 months in gaol.
The AG is unhappy with that and appeals, asking for 9 months in gaol.
This is, under the doctrine of reformatio in peius, not permissible. (Not to mention the inadmissibility of the appeal)

As to the prisoner's dilemma:
Of course, the appellant can lose when the appeal is dismissed.

You see, an appeal is not admissible when there is no specific reason: Either procedural error or new, exculpatory or inculpatory evidence. You cannot just appeal a verdict out of the blue because you are unhappy with it and feel like appealing.
This is just to prevent that, when someone appeals, it results in them being the idiot, so to speak. If they have to fear that the verdict may come out worse, they might be inclined to overlook that procedural error, just to prevent getting out of the frying pan and into the fire.

[Sir Alexandreu Davinescu]

Mar 4, 2014 16:24:33 GMT -6 Magniloqueu Épiqeu da Lhiun said:

No, the government can appeal sentences, so long as it does not ask for a worsening of the verdict, say:
The AG has prosecuted Person X and Person X got 5 months in gaol.
The AG is unhappy with that and appeals, asking for 9 months in gaol.
This is, under the doctrine of reformatio in peius, not permissible. (Not to mention the inadmissibility of the appeal)

Well, yes, but the A-G seldom will ever appeal and ask for a reduction in sentence. If there is no prospect of increasing sentence, then you are essentially eliminating the Government's ability to appeal a too-lenient sentence, right? Why not just make it more clear, and declare "The Government shall not be permitted to appeal the outcome, either verdict or sentence, of a criminal trial."

Mar 4, 2014 16:24:33 GMT -6 Magniloqueu Épiqeu da Lhiun said:

As to the prisoner's dilemma:
Of course, the appellant can lose when the appeal is dismissed.

You see, an appeal is not admissible when there is no specific reason: Either procedural error or new, exculpatory or inculpatory evidence. You cannot just appeal a verdict out of the blue because you are unhappy with it and feel like appealing.
This is just to prevent that, when someone appeals, it results in them being the idiot, so to speak. If they have to fear that the verdict may come out worse, they might be inclined to overlook that procedural error, just to prevent getting out of the frying pan and into the fire.

It's a classic Prisoner's Dilemma!  I'm enchanted!

In the case of an equitable verdict:

	B appeals	B doesn't appeal
A appeals	Both A+B risk a worse verdict.	A might get more money, B cannot.
A doesn't appeal	B might get more money, A cannot.	Optimal outcome (both A+B have fair arrangement)

[Magniloqueu Épiqeu da Lhiun]

Let's see, I will translate this from the "Duden Recht A-Z. Fachlexikon für Studium, Ausbildung und Beruf.", maybe you can form that part of the law better than me when you understand better:

Reformatio in peius
Modification of a court decision in a higher court to the detriment of the appellant.
The constitutional rules of procedure contain the principle of a forbiddance of reformationes in peius.

In civil procedures, the verdict may not be changed to the detriment of the complainer, except when then opponent has appealed on his part, for example by cross appeal (§§ 536, 559, 521 ZPO).

In criminal procedures, a verdict that is rescinded with an appeal, only when it is lodged by the accused or in favour of the accused, may not be altered to the detriment of the accused, according to §§ 331, 358, 373 StPO. Though the forbiddance of the reformatio in peius thus hinders the aggravation of the penalty, it hinders not the application of a heavier law (e.g., the convict who was sentenced under petty larceny would now be sentenced under grand theft). The forbiddance of a reformatio in peius applies not to the verdict after appeal of a penalty order (§ 411 clause 4 StPO) or a fine; here, the court may dissent to the detriment of the party concerned. The forbiddance does not prevent the order of hospitalisation in a mental institution or a rehabilitation centre.

In administrative procedures, a reformatio in peius is generally deemed to be admissible, if and to the extent that nothing else is provided by law. If, in opposition proceedings, it turns out that the initial administrative act granted the appellant more than legally allowed, then the opposition is deemed inadmissible and the rescinded administrative act may, under certain circumstances, be altered to the detriment of the objecting party, at least insofar as the objecting party is not unduly, unbearably or existence-threateningly burdened.

[Sir C. M. Siervicül]

I'll have to think about this some more. In the US most prosecution appeals are not of an acquittal or sentence (which in most cases would constitute double jeopardy), but of things like pretrial dismissals on procedural grounds or interlocutory appeals of evidentiary rulings.

[Magniloqueu Épiqeu da Lhiun]

Any more thoughts or co-sponsors?

[Sir C. M. Siervicül]

Mar 9, 2014 9:22:33 GMT -6 Magniloqueu Épiqeu da Lhiun said:

Any more thoughts or co-sponsors?

I think you need to clarify the phrase "appealed ruling" in 4.3, and/or more clearly define what reformatio in peius means in a criminal context. Currently, it sounds like there is no adverse ruling that the prosecution could ever appeal.

[Sir Alexandreu Davinescu]

I think it would be a very good idea to rewrite this, so that it is expressed in plainer language. We want people with no Latin and little law to be able to completely understand what's being said.