Ministry of the JUSTICE Decree No. 2013-1071 August 6, 2013 Decree No. 2013-1071 6 August 2013 amending Decree No. 64-572 of 30 July 1964 on the Code of Civil Procedure, amended report of PRESENTATION the major innovation introduced by the Decree n ° 2001-1151 31 December 2001 on the reform of the Code of Civil Procedure was the institution of the pre-appeal judge. The clearly stated objective was to "put an end to the delays in implementing State of affairs and abnormal clutter of the roles of the courts" by a stricter control of the instruction of procedures.
Ten years after, this dual objective seems not have been reached. Indeed, the processing period is still considered long by both actors of the judicial world and the economic world and instance roles are still clogged.
Also it appeared necessary at the time where Senegal is firmly and permanently engaged on the irreversible path of modernization of justice through the establishment of a legal and judicial environment conducive to the development of investment, to continue with reforms to bring treatment of the business a more rigorous framework.
The introduction of a role of waiting (article 45 paragraph (3)) concerning cases which are not likely to be investigated immediately, including those that have been the subject and whose judgments are not available or even those in which expertise has been ordered, will help maintain the role that business likely to receive diligent treatment.
The requirements of speed and rationalization of roles may be carried out in particular by:-the obligation of the parties to file and to transmit the documents to the first hearing scheduled in assignment (article 33, paragraph 3);
-the obligation to fix the date of the first hearing in appeal no later than thirty days from the feat of the bailiff by which the appeal is brought (article 266);
-reduction of time to appeal to one month (new article 255);
-coaching of the defences to enforcement (article 270);
The introduction of the procedure contract (article 54-6) is a major innovation in the management of the time trial. Indeed, the parties may fix deadlines for the processing of records from the beginning of the procedure, in accordance with the pre-appeal judge. The fixing of the time limits will take account of the nature and complexity of the business. He will then return to the pre-appeal judge to rigorously enforce deadlines.
This reform also aims to punish dilatory or abusive procedures. Therefore, section 81 provides the possibility, in addition to the costs, the party who succumbed to the payment of a sum in compensation for the costs incurred by the other party. It is 278 article bringing to 1,000,000 CFA francs fine which the appellant may be sentenced in the case of improper or dilatory appeal.
She also devotes a greater participation of the parties to the statement of affairs. Thus the proposed amendments to sections 146 and 186 give the possibility to the parties, under the control of the judge, to hail directly or to directly question witnesses. Those of the article126 allow one party to request parts or any document held by the other party, by a witness or by a third party.
Finally, the missions of the pre-appeal judge expanded the control and monitoring of expertise ordered by the Court (section 54-19). His power was reinforced also by the possibility given in article 54-13 amended to decide the case before it if it finds a manifest inadmissibility.
These prerogatives are recognized at the pre-appeal judge who is formally imposed at the level of the county courts with the modification of article 4.
Such is the economy of this Decree.
The President of the Republic, pursuant to the Constitution, particularly articles 43 and 76;
Having regard to Decree n ° 64-572 of 30 July 1964 on the Code of Civil Procedure, amended by Decree No. 2001-1151 of 31 December 2001;
Pursuant to law n ° 70-14 06 February 1970 laying down rules for the application of the laws, administrative acts to regulatory and individual administrative acts, as amended by Act No. 91-07 January 21, 1991;
Having regard to Decree No 2007 - 554 of April 30, 2007 on the organisation of the Ministry of justice;
Having regard to Decree No. 2012 - 427 of April 3, 2012 concerning the appointment of the Prime Minister;
Considering Decree No. 2012 - 637 of 4 July 2012 on the powers of the Minister of Justice, keeper of the seals.
Mindful of Decree No. 2012-1223 of 5 November 2012 on the distribution of the services of the State and control of public institutions, societies and corporations with public participation between the Presidency of the Republic, the Prime Minister's Office and the ministries, amended by Decree No. 2013-11 January 3, 2013.
Considering Decree No. 2013 - 277 of February 14, 2013 concerning the composition of the Government.
The report of the Minister of Justice, keeper of the seals.
Decrees: Article 1. -The provisions of articles 4, 33.45, 54-1, 54-3, 54-6, 54-13, 54-18, 54-19, 54-22, 81-, 96, 99, 100, 114, 126, 146, 169, 186, 248, 252-2, 255, 266, 270, 271, 272, 278 and 280 bis of the Code of Civil Procedure are amended and supplemented by the following provisions: "Article 4: it is held in the registry of each district court a role on which are listed. , in the order of their presentation, all cases brought before the tribunal. Each listing contains the names of the parties, those of lawyers, if any, the day where the case will be called.
In the case of referral by assignment, the original of the feat must be filed at the registry by the applicant during working days at the latest two days before the hearing.
The number of the general role is communicated to comprised lawyers who reproduce it at the top of each of their findings.
Affairs are distributed by the president among the members of the Court in the manner it finds the most suitable for the service and speeding up the procedures.
Where appropriate, he appointed, by order, one or more judges of pre-trial as well as alternates that proceed as provided for in articles 54-4 et seq. of this Code.
"Article 33: the assignment is notified in accordance with article 822 et seq.; It contains, on pain of nullity, in addition to the particulars provided for by article 821.
1 °) the indication of the Court before which the request is made, the date and time of the hearing;
2 °) the object of the application with a statement of the means in fact and in law;
3 °) the indication of parts on which the application is based, these parts are listed in a schedule annexed to it;
4 °) the indication that fault for the defendant to appear, it exposes itself to what a judgment is rendered against him on the only evidence provided by his opponent.
The assignment is worth finding.
The documents referred to 3 °) above must be filed and transmitted to the hearing scheduled by the assignment under penalty of inadmissibility as found by mere mention.
' Article 45: held at each court registry a register or a general role which are listed, in the order of their presentation, all cases brought before the tribunal. '' Each listing contains the names of the parties, those of lawyers and the day in which the case will be called.
General order number is communicated to the lawyers who repeated it at the top of each of their findings.
The registry also takes a role of waiting in which are listed all cases that are referred to it by the pre-appeal judge.
' Article 54-1: the Chamber before judge cases which, according lawyers and given explanations conclusions exchanged and parts provided him appear ready to be judged on the merits. ''
It was also at the hearing cases in which the defendant fails, if they are in condition to be judged on the merits, unless she has ordered the reassignment.
It considers, similarly, urgent matters, including those relating to objections to payment, to auctions, to deportation procedures, procedures of preferential allocation, preferential defenses, defenses to provisional enforcement.
The Chamber may refer the matter to a date that it shall determine if it considers that a final exchange of findings or that ultimate communication of parts is sufficient to implement the State.
She then invite each of the parties the time required for the significance of the findings and, if applicable, to the communication of the documents.
The date set, the House retains the case or the deletes.
' Article 54-3: at the beginning of each judicial year, the first Presidents of the courts of appeal and the Chairmen of the regional courts shall appoint by order one or several advisors or judges of the pre-trial stage attached to a Chamber of the Court or the tribunal, as well as alternates that can be chosen from among the members of the other rooms. ''
Several judges can be loaded of the readiness in a same room.
The presidents of the courts of appeal, the Chairmen of the regional courts and the presidents of Chambers may exercise these functions.
' Article 54-6: the judge in a fixed State, and measuring the time required for the investigation of the case given the nature, urgency and complexity of one - ci, after causing the opinion of the parties. ''
It may, in agreement with the parties or their representatives, set a timetable of implementing State. For this purpose, the applicant may, at the time of the assignment, make a reasoned proposal of timing state.
This calendar includes the predictable number of referrals and the date of the exchanges of conclusions, closing and the reference to the trial court.
In all cases, the pre-trial period is four months. It may be extended in the event of serious and justified cause.
The judge may refer the matter to a later hearing to facilitate the resolution of the dispute. It can also, at the request of the parties, refer it to the role of waiting for a time to be fixed. It is restored on the filing by the parties of a record of conciliation, their records or office by care of the Registrar by the date set by the judge.
In the latter case, the case is necessarily retained an order closing or cancellation to the expiration of the time limit to each of the parties for his State.
"(Article 54-13: when it is entered, the pre-appeal judge is, until its divestiture, sole jurisdiction, excluding any other formation of the Court, for: 1 °) decide on the objections of procedure;
2 °) allocate a provision for trial;
3 °) grant an allowance to the creditor when the existence of the obligation is not seriously questionable. The pre-appeal judge may subject the execution of its decision to the lodging of a security under the conditions provided for in articles 86 et seq. of the Code of Civil Procedure;
4 °) order any other steps, same conservatories, except including provisional seizures, the permissions for the inclusion of mortgage and provisional pledges;
5 °) order, even ex officio, all training measures.
If it finds a manifest inadmissibility of the application, it renders a decision, duly hearing the parties.
' Article 54-18: the orders of the pre-appeal judge are likely neither opposition nor doubt. ''
They can be hit to appeal or appeal in cassation with the judgment on the merits.
However, they are likely to appeal in the cases and conditions provided expertise or stay of proceedings.
They are also, within fifteen days of their meaning: 1 °) when they effectively terminate the instance or when they find its extinguishment;
2 °) when, where the amount of the claim is greater than the competence rate as a last resort, they relate to the provisions which may be granted to the creditor in case the existence of the obligation are not seriously questionable.
3 °) where they decide on an objection of incompetence, lis pendens or connexity.
In cases where the appeal is expected, it is brought before the appeal court ruling must be within one month of the referral.
«Article 54-19: pre-appeal judge controls the execution of measures of Inquiry directs.»
In addition, he proceeded to the control and monitoring of expertise ordered by the Chamber pursuant to articles 156 et seq. of this Code. Within this framework, it takes all necessary measures for a diligent conduct of expertise.
' Article 54-22: If the parties refrain from the acts of the procedure in a timely manner, the pre-appeal judge may, after notice to them given, an order of reasoned radiation non-appealable. ''
Copy of this order shall be notified to each of the parties by simple letter addressed to their real domicile or elected.
Unless the expiration of the instance is acquired, the case was restored on justification for the performance of coaches whose failure had led to the cancellation. The request, accompanied by supporting documents, is made by the interested party to the pre-appeal judge.
' Article 81: any losing party to pay the costs. ".
The party who has exercised his appeal out of time or for a purpose manifestly dilatory is sentenced to payment of all the costs incurred by the other party.
In all other instances, the judge condemns the Party held at the expense or, failing that, the party who succumbed to pay to the other party an amount it determines, in respect of exposed and expenses included in costs. It takes into account equity or the economic situation of the convicted party. It can, even ex officio, for reasons from same considerations, saying that there is no rise to this conviction.
' Article 96: If, on the day indicated by the assignment, the defendant does not appear nor person for him, the issue is judged by default unless the appearing party consents to an adjournment. ''
If, however, the respondent assigned person does not appear nor legitimate person for him, without reason, it is considered by contradictory deemed decision unless the applicant consents to an adjournment or that the judge ordered his reassignment.
Where deadlines for deferment are not observed, if the defendant does not appear, the judge ordered that he be reassigned, and the appearing party proceeded in the same manner as above. The first assignment costs are borne by the applicant.
If the applicant does not appear nor a legitimate person for him, without cause, the defendant may request a judgment on the merits which will be contradictory, except the Faculty for the judge to refer the matter to a later date.
If a party presents itself to the front bar the end of the hearing where the case is deliberate, the judge may cast off the deliberations.
' Article 99: If two or more persons assigned, all do not come or do not constitute counsel, the defaulting parties are, at the expiry of the periods of deferment, reassigned by bailiff committed simple decision taken at the hearing, with mention in the reassignment that judgment to intervene will have the effects of a conflicting judgment. ''
At the end of the new time of adjournment, it is held by a single contradictory judgment between all parties.
' Article 100: default judgment shall be served on the defaulting by any bailiff territorially competent. ''
The meaning is made within 12 months of the judgment, otherwise it will be void. It must, on pain of nullity, mention in bold characters the opposition period laid down by article 101 and the period of distance.
' Article 114: However, if the Court assumes jurisdiction because of the way, the reference can be requested in any case. '' If no reference is requested, the tribunal Office refers the matter before the Court considers to be competent.
' Article 126: the communication of any parts, each party intends to use is made in accordance with article 33 of the present Code; parts can be moved if not only it y' has minute or part which products consents.
If, in the light of the circumstances of the case, it appears during the investigation of the case that one party, witness, or a third party holds documents or any other aspect of relevant evidence, the pre-trial judge or the trial court may, at the request of one of the parties, or office and unless legitimate impediment, order production within a reasonable time.
If the request is from a party, it is subject to any particular condition. Only the nature of the document to produce is specified.
«Article 146: the witness files unless it is permitted to read any project written; his testimony is recorded in the minutes; It is read to him and he was asked if he persists to all on pain of nullity; It is asked as if it requires tax.
The parties may not interrupt the witness. However they can, after his testimony under the control of the judge question him directly with any question useful in helping establish the facts.
' Article 169: A copy of the judgement as well as all the necessary parts are given to the expert who can also take knowledge of its mission in the registry. ''
The expert shall convene the parties at the first meeting by registered letter with acknowledgement of receipt. The parties are then notified of the date of the next meeting.
During these meetings, the expert must ensure all documents filed by a party are communicated to the other party.
«Article 186: boards of the parties can assist them. '' After questioning by the tribunal, each party or his counsel can directly query the other party.
«Article 248: the judge in chambers may, even in the presence of a serious dispute, prescribe provisional measures or remediation which are needed, either to prevent imminent harm, or to stop a manifestly unlawful disorder. ''
In the case provided for in the preceding paragraph, it may at the request of one of the parties or of office, and if the urgency justifies, order the referral to a hearing which determines the date so that it is held at the bottom.
Order wins referral to the tribunal.
Costs and any provision supplements are advanced by the applicant to the referee.
«Article 252-2: it can to be referred to the president of the tribunal to adjudicate all the difficulties of enforcement of judgments and other enforceable instruments. ''
The decision of the judge hearing the application may contain the clause without new interim making defence to appeal interlocutory if en is granted leave by order at foot of request by the Chairman of the tribunal in the event of duly justified new circumstances and on production of the order previously made.
The order is not likely to opposition.
The appeal period is fifteen days from the service of the order.
The appeal is considered an emergency.
«Article 255: the time limit for an appeal is one month without increase times of distance for parties domiciled in the territory of the Republic. '' For those who are domiciled outside the territory of the Republic, that period is increased time limits prescribed by section 41 of this Code.
For those who, domiciled in Senegal, are temporarily remote for recognized legitimate cause, the appeal period is increased to four months.
' Article 266: appeal by bailiff containing assignment to fixed day feat, and, if applicable, constitution of lawyer, issued to the parties listed in the judgment that the caller wants to order. ''
The date of the hearing may not exceed thirty days from that of the exploit, subject to the time limits of distance.
If case is not enrolled at maturity, the appellant is deprived of her appeal.
Subject to what is said in articles 267 and 269 hereinafter, the means of the appellant are set out briefly in appeal. It is also, by the care of the bailiff, referred to the call in the form and in the register provided for in article 107.
«Article 270: the applicant defence in provisional execution to the first President of the Court of appeal or President of the regional court, as the case may be, its application accompanied by all supporting documents of the property based its application.»
The magistrate before it allows the applicant to assign the respondents at a sitting of the Chamber of the Court or the regional court which determines the date only in the following cases:-if provisional execution is prohibited by law;
-If it has not ordered pursuant to sections 86 and following of this Code.
-If it is likely to have consequences clearly excessive or difficult to repair.
«Article 271: it is held in the registry of the Court of appeal a registry or general role side and initialled by the first President of the Court of appeal or the President of the regional court.»
The registry also takes a role wait where are listed all the cases are referred to or unavailability of the decision appealed from, either by counsel or the pre-appeal judge or the Chamber before it.
"Article 272: the caller must, no later than the eve of the hearing, file in the registry notice of appeal and request the entry in the register referred to above."
If the appellant has not enlisted the case at the date of hearing by the feat of appeal, the judgment becomes enforceable upon the certificate of non-enrolment issued by the Chief Clerk of the Court of appeal except for the appellant to abandon future within a period of fifteen days.
The respondent can himself actually to the Court in the same manner as the appellant, except to abandon future, if it échait, or to the parties to appear voluntarily.
«Article 278: However, in the event of appeal from an interlocutory judgment, the appellate court must decide no later than within one month of the date on which it was typed.» Its decision, if it is made by default, is deemed contradictory with respect to appellant.
When the appeal is declared inadmissible, and it appears to the Court of appeal that it is dilatory or abusive, it may order the appellant to pay a fine not exceeding 1,000,000 CFA francs.
This fine, seen by the receiver for recording, can never be claimed the respondents who can throw the big of the decision notwithstanding the non payment of the fine.
"Article 280 bis: pre-appeal Advisor, or the magistrate exercising these functions, instructed the cases before the Court of appeal in the forms and conditions laid down in article 54 of this Code."
Only cases in which the decision appealed from is available is returned to advise the implementation State. Others are returned to the role of waiting.
Affairs are distributed between the Chambers by the first President of the Court of appeal that proceeds as stated in articles 54, paragraph 2 and 262.
Pre-appeal Advisor shall decide on the admissibility of the appeal.
Within three months of the notice of appeal, the appellant shall file its conclusions communicated to the respondents, unless pre-appeal Advisor not to have specified a shorter period.
The findings should articulate specifically the representations of the parties and the means of fact and of law on which each of its claims is based. They also include an indication of the claimed parts. For this purpose, a summary is attached to them.
Otherwise, the case is removed from the register by a non-appealable decision. Radiation private calling any suspensive effect, except in the cases where provisional enforcement is prohibited by the Act.
The case is reinstated on submission of the conclusions of the appellant, remaining deprived of any suspensory effect, calling either the initiative of the respondent who may request that the closing be orderly and the matter remitted to the hearing to be considered in the light of the conclusions of trial.
The parties must resume in their past writings, claims and means previously submitted or relied upon in their earlier findings. Otherwise, they are deemed have discontinued them and the Court will decide on the latest filed conclusions.
When it is entered, pre-appeal Advisor is alone competent to suspend interim judgments qualified incorrectly as a last resort and to order provisional enforcement, which requested, was not granted in the first instance.
The counsel of pre-appeal orders in the exercise of its functions in accordance with article 1 above are subject to appeal only with the judgment on the merits.
However, they may be referred to the Court by simple request within fifteen days of their announcement when they have the effect of terminating the proceeding or see its extinction.
It is also when they prescribe provisional measures.
S. 2. - it is added to the Code of Civil Procedure the following new provisions: ' Article 272 bis: the registry of the Court that rendered the judgment a quo passes to the Court of appeal a statement of the procedure accompanied by all the documents.
S. 3 - the provisions of article 127 of this Code are repealed.
S. 4. - the Minister of Justice, keeper of the seals is responsible for the implementation of this Decree which shall be published in the Official Journal is in Dakar, August 6, 2013, by the President of the Republic: Macky SALL.
The Prime Minister, Umrans.