Who has not read an order qualifier by which our Supreme Court rejects appeal but in reality it seems as if it had terminated the fund of the question? I imagine that many, because it is a very common practice that the Court not only qualify the resource, but also take the opportunity to rule on the merits, which often is overlooked. In other words, it is safe "undercover" as it somehow. And even if you do not believe it, this situation has been blessed by our infamous Constitutional Court (RTC Exp No. 02522-2009-PA/TC, discussed in dialogue with the Court , No. 138, March 2010 pp. 212 et seq.). But if your disbelief can still support some more, this resolution came before it overturned several other casatorios procedures because, as the undisputed and ineffable criterion was evaluation of evidence (see here ).
First, we must consider that the action starts casatorio procedure, in which the Court of Cassation issued a decision on the merits (ie, on the appellant's claim, this is a finding of error in iudicando or in procedendo ), deciding the fundabilidad or unfounded the appeal, subject to compliance with the requirements of the law that enable precisely to issue an opinion on merit. Such requirements include, among others, to meet the deadline, challenging a decision or order terminating the proceedings, the decision is issued by a Superior Room, justify the action with clarity and precision, etc. These requirements may be admissible or provenance on its ability to cure. Thus, elements that have to be that the Court must evaluate to just be able to pronounce on the merits, it is correct to say that if only those submitted for the defendant who initiated the proceedings is entitled to a ruling on the merits. In fact, if you meet the requirements for issuing a decision on the merits, then this fact must be issued.
But our legal system has designed the procedure casatorio-regardless of the new regulation of Law No. 29364 - in the following way: the action is brought, the Board Supreme qualify the eligibility requirements and origin stating the legality or illegality of the action, if appropriate states, it notifies the date of hearing to which the parties have the opportunity to inform and to make submissions orally and finally, the sentence stating founded or unfounded. Consequently, the time of qualification, which is examining the requirements for the trial on the merits, and the decision on this, are located at different points in the procedure. The decision of merit should not be contained in the rating of the resource, nor is it at that. First the Supreme Court should be limited to testify out of order or from the action, if the latter happens, then I declare founded or unfounded. This distinction is important because in the middle of these two acts of jurisdiction is guaranteed the right of defense of the parties.
But what happens when the formalism is overturned by the Supreme Court itself? What if at the time to qualify, the Court issued an opinion on the merit hidden in an "order" of the resource? Well this is something very serious: it would have violated the right to effective judicial protection of the applicant for at least two reasons: i) not allowed to advise orally or in writing and ii) violating the procedure expressly provided by law. This being so serious consequence, how the Supreme Court of Peru may incur so repeatedly in this offense? We believe the answer may lie in eliminating a case, as the Supreme Court justices, is bound to lose, thus preventing an increase in its caseload. Unless some other act morally and legally reprehensible penalties, we see no other answer.
But the caseload does not justify at all a violation of the procedural protection effective. If the idea is that the Supreme Court wants to avoid an overabundance of cases to be resolved, then they should devote other methods which, unfortunately, were inexplicably removed by irresponsible members of Congress who put together the new regulation we have now. Some of these methods, for example, were the non-suspension of the effects of the contested decision of appeal (a technique essential to the effectiveness of the reform), or the principle of double and under. As you can see, this far from the removal of the right of the appellant produced by this act of the court, violating the legal procedure designed which is bound to respect.
How to address this outrageous situation? Unfortunately for us, there would be no other way than under, but the Constitutional Court that we may best be mourn our misfortunes to the river and not to give more opportunities to swell more and more power.
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