At a brief rescensión on a book on this blog , I've had the opportunity to discuss the formalism-evaluative and one of his proposals: encourage collaboration between the judge and the parties. And the best proof that this postulate is not only theory is that I recently came across a case where the application of this principle is crucial to obtain the best possible solution.
controversial matter concerns the opportunity for comment by the parties to the expert report. The analysis of the LIMA Appeal No. 5340-2008, issued by the Transitional Civil Division of our Supreme Court. Here the text of the decision:
can summarize the case that led to this ruling in a nutshell: According to the Transitional Civil Division, the judge dismissed the aforementioned observation, saying that the expertise is intended ordered that the sentencing judge at the time of count with stronger evidence, therefore found not subject to any observations. Thus, it should ask the following questions: Are the submissions of the parties must be addressed before a decision? If so, should it be called a special hearing or complementary?
First, it is extremely wrong that the trial judge thinks that the expertise used only for the judge and, therefore, that the observations that the parties could do not deserve to be addressed. Nothing wrong, and not just because the rule contained in Article 266 of the CPC gives relevance to the remarks of the parties, but also because, from a cooperative vision that seeks to foster participation and dialogue in the process, the conduct of the court (which has the duty to promote such cooperation) is quite authoritarian. It is undeniable that the parties are entitled to comment and, of course, that these are addressed by the judge and even answered by the expert, "but it is not a mere whim of the rule, on the contrary, what issue is that the judge can deal better (in this case, he draws from the expertise most appropriate probative value), thanks to the contributions of the parties. And the consequences of failure to observe or deny the participation of stakeholders in shaping the decision as in this case, decanted in violation of the right to effective judicial protection. Therefore, answering the first question, the comments from the parties themselves must be adequately addressed.
On the other hand, as the legislative design is about, I think the second question involves greater complexity. In this regard, it is verified that the observations can be made at the evidentiary hearing, where experts present their conclusions. However, a first hypothesis is that the observations are addressed there, so there would be no problem, unless the judge, given the complexity of the case, decide that the expertise is based on a special hearing in which the parties may submit their concerns (this rule clearly stipulates in Article 265 of CPC). On the other hand, a second hypothesis is that the expertise is presented in the hearing of evidence and, subsequently, within the limits allowed by the procedural rule that the parties to develop or encourage their observations on that. In this case, what should the judge? So just to have this "the pleadings when ruling? I think this is not enough. Although section 266 does not expressly say, the judge shall call a special hearing as the first scenario, so that the parts with better observations raised after three days, questioning the expertise. Only in this way, in this case, genuine participation is encouraged and, subsequently, a fairer decision.
Thus, we conclude that the Transitional Civil Chamber was right in finding that there was a violation of due process of the individuals who submitted their observations because, in fact, the absence of a special hearing to discuss what relative to the skill-and even more so the excuse given by the judge of first degree, affects the right of defense. But what the Board did not consider it is precisely the importance of collaboration in the process, whose impact on case is crucial.
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