Procedural and Judgment Errors & Cassation Appeals

Mistakes in Procedendo and In Iudicando

In procedendo (mistakes committed before the judgement): when upholding an appeal, the Court finds a mistake before the First Instance judgement. The judgement upholding the appeal will order the case to be referred back to the Court of First Instance at the point where the mistake/procedural infringement occurred.

In iudicando (mistakes done when adjudicating): if the Court finds that the mistake was committed at the First Instance, it will rule on the matter of the case for a second time and substitute the judgement given by the First Instance Court.

The Court shall rule on the merits of the case.

Judgements Subject to Appeal in Cassation

There are strict limitations on what proceedings can be subject to this appeal:

1. Only judgements (not orders, rulings, or decisions from the Court Clerk).
2. Judgements in the second instance, arising from an ordinary appeal filed against the judgement in the first instance.
3. Provincial courts’ judgements (as are the judgements given in second instances).
4. One of the situations listed in article 477.2:

• Fundamental rights, except for the rights in article 24 of the constitution.
• Amount exceeds 600,000 Euros and, according to the Supreme Court, the due type of proceeding was established based on the amount, not the subject of the proceeding.
• Cassational interest:
  • Contradiction of the decision with Supreme Court jurisprudence.
  • Contradicts jurisprudence of the province courts.
  • The case deals with a new rule of law, new law prevision, and there is no jurisprudence (less than 5 years).

Art. 477.2 CPA: appeals in cassation may be lodged against judgements issued in the second instance by the Provincial Courts in the following cases:

1. Where they are issued to provide fundamental rights with the effective protection of the civil courts, apart from the fundamental rights recognized by Article 24 of the Constitution.
2. Whenever the amount of the proceedings exceeds 600,000 euros.
3. Where the amount of the proceedings doesn’t exceed 600,000 euros or the proceedings have been conducted due to their subject matter, provided that in both cases the decision on the appeal has reversal/cassational interest.

Cassational Interest

1. There is a contradiction of the decision with Supreme Court jurisprudence.
2. Contradicts jurisprudence of the Provincial Courts.
3. The case deals with a new rule of law, new law prevision, and there is no jurisprudence in 5 years (less than 5 years).

If these three situations exist, there is a need to reaffirm (first) jurisprudence or create it for the Supreme Court (second and third).

Formal and Material Res Iudicata

Formal: It is the binding effect of unappealed decisions given in the Courts proceeding. Any Court that, by way of a devolutive appeal, may hear the same case. Example: rejection of a witness and you do not file a motion for reconsideration (no more chance).

Material: It is the binding effect of decisions on the merits (normally judgements) putting an end to the case in an unappealable way, in different and subsequent proceedings.