Article 41: Verifying illness used to postpone

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 1842/2551 (2008)

   Appointing an official or physician to examine an alleged illness under section 41 paragraph one is discretionary; the provision does not absolutely compel the court to order such an examination, and it need not do so where neither party requested it.

   The defendant argued that had the court appointed an official or physician to examine his illness, it would have found he was genuinely too ill to attend. The Supreme Court held that examination under section 41 paragraph one applies only when the court thinks fit or a party requests it, and the provision does not absolutely require the court to order an examination. Since neither party had requested one, the court could decide the postponement from the circumstances shown in the papers.

2. Arrêt de la Cour suprême n° 4805/2547 (2004)

   Sections 39 and 40 are the primary provisions the court applies to decide whether legal grounds for a postponement exist; section 41 is the specific procedure for the illness ground and does not displace the initial assessment under section 40.

   The defendants failed to satisfy the court that refusing a postponement would cause a failure of justice, so their request did not accord with section 40 paragraph one. Rejecting the argument that illness under section 41 must be applied to the exclusion of other sections, the Supreme Court explained that the grounds and details for postponement are set out in sections 39 and 40, which the court considers first, while section 41 supplies the specific procedure once an illness ground is in play.

Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.