It is important to point out that this institution, that is, the "exceptional" appeal for cassation is not new, it was already regulated in article 392-A; however, the text of the reform (article 387 of the T.U.O. of the Code of Civil Procedure) adds a term that - in many cases - is amphibological; and, consequently, it becomes a titanic task for the litigant lawyer to obtain a positive qualification of the appeal in the Supreme Court. The legislator opted to establish that the only case in which the Supreme Court may declare that an appeal in cassation is exceptionally admissible is when it is necessary for the development of the doctrine of the Supreme Court. necessary for the development of the jurisprudential doctrine.
Since the legislator has not determined what is the exhaustive list (or not) of assumptions of development of the jurisprudential doctrine, it is up to the Civil Chambers of the Supreme Court to establish it, in order to reduce - to the least possible extent - the discretion they have at the time of qualifying an appeal for cassation of this type: when the assumptions for proceeding provided for in article 386 of the referred body of law are not met.
Therefore, the grounds that I consider must be invoked in order to demonstrate the objective interest of the appeal are the following:
- If the reason for deciding, in the judicial controversy, revolves around the application and interpretation of a provision that has no jurisprudential development or that has been in force for less than five years.
- When the Superior Chamber transcribes, in whole or in part, the grounds used by the first degree judge to support its decision, unless the jurisdictional body justifies the use of the reasoning by reference.
- When the pronouncement of the Superior Chamber departs from a judicial precedent, without carrying out a due exercise of motivation (art. 400 of the T.U.O. of the Code of Civil Procedure).
- When the Superior Chamber resolves transgressing the literal interpretation of the provision or when it departs from the interpretation made by the Supreme Court, without carrying out an exercise of motivation.
Finally, with regard to the classic ground referring to the case in which there are dissimilar pronouncements, on the same matter, between jurisdictional bodies of different Superior Courts, the following question must be asked: is the litigant attorney in the most favorable position to - within ten working days - in addition to substantiating the appeal, seek whether there are contradictory pronouncements on the matter appealed? The answer is absolutely negative. Even more so when the Judiciary does not have a platform where such a search can be carried out.
Therefore, in the case described in the preceding paragraph, the Supreme Court should take this into consideration and not - dismiss without further ado - the "exceptional" cassation appeal; but on the contrary, it should focus on determining whether, in fact, there are no such contradictions between jurisdictional bodies of different Superior Courts. The Supreme Court, and not the litigant attorney, is in a better position to elucidate this.
Now, it is also true that transferring this task exclusively to the Supreme Court would generate that the Civil Chambers (Permanent and Transitory) would have an excessive burden of cassations for this cause and that, in addition, they would have to search in the platform (to which the magistrates do have access) if there are such contradictions in the pronouncements issued at the national level. Therefore, this ground should be rethought in terms of its application and the duty of the lawyer to prove it, when the Judicial Power itself is in the best position to determine such contradiction. To pose a requirement to those who do not have the means to execute it, and on this basis to qualify an "exceptional" cassation appeal is to resolve in the abstract and with its back to the reality of the justice system in the country.
No less important issue, and to conclude this article, is how to prepare an appeal in cassation of this type. Without prejudice to developing this issue at length on another occasion, it is important to point out that unlike an "ordinary" cassation appeal, in the "exceptional" one, it is not convenient (in order to obtain a favorable rating) to follow the conventional structure: I. Heading, II. Claim for cassation, III. Compliance with the admissibility requirements, IV. Grounds for the exceptional proceeding, V. Brief account of the proceeding, VI. Substantiation of the grounds raised. VII. Grievances generated by the challenged decision.
What is of interest to the supreme court is to determine, from the outset, whether or not the appellant has duly substantiated his interest in the appeal so that the Chamber may subsequently issue a ruling on the merits of the case. Therefore, the structure of the appeal in cassation should begin, after raising the heading, with the justification of why the Supreme Chamber, despite not complying with the procedural requirements of Article 386, should declare the appeal admissible. This is the crux of the extraordinary means of appeal. The "brief account of the proceeding" or the development of factual issues is secondary in this type of appeal.
It remains as a pending task for the Supreme Civil Courts to establish, not an exhaustive list due to the very nature of Article 387, but a list with certain cases that imply the "development of the jurisprudential doctrine". The discretion to admit cassation appeals is beneficial and useful; however, its application should be reduced for certain cases in order to avoid arbitrariness.
