The Constitutional Court decided, in the role 1373-09, declare inapplicable the penultimate paragraph of Article 768 of the Code of Civil Procedure. This rule is part of the regulation that the code gives the appeal. After regulate the grounds on which it comes this kind of challenge, states that in cases governed by special laws on how the appeal will not proceed on all grounds. It ruled, in effect, the causal 5 th, that is, that the award has been "spoken with omission of any of the requirements listed in Article 170." As we know that's the rule that lists the requirements of the final decision from among which the most important might be the number 4 ° which requires appropriate "considerations of fact or law that are the basis for the sentence," that is, the merits of the decision.
The reasoning of the court to declare unenforceable clause that begins by showing that our system requires judges to base their sentences. Several pages are devoted to failure to justify this, about what I think, no doubt. Supreme Court judgments, philosophical and legal arguments, Michele Taruffo and others are brought to the considerations of TC failure to justify the need for the grounding of judgments. "The motivation of the sentence is inherent to the jurisdiction and indispensable foundation for the exercise," says TC. Sitting
this need is the first step in the weak foundation of the TC. "The breach of that duty - said the sentence - occurs whether the judge did not base the decision as" contrary to what has sustained the required within the courtroom - if the challenge is prevented by this chapter, the decision that ignores its proper motivation. The result is the same - violation of law, "produced here by the lack of the instrument to correct the defect." In short, there is always a breach of the duty to inform if there is no mechanism, or there is a very restricted but, for challenging that decision is not justified.
After that, the TC should move towards constituzionalización the problem. The motivation, the ruling said, "is inherent right of action and hence to the realization of justice; elements of due process of rational and just, whose absence or limitation violates the state constitutional requirement and authorizes the challenged provision is inapplicable. " Here we have the case cooked. It has been said how necessary is the rationale, need guaranteed by the constitution and the lack of it when there is an instrument of dispute as in this case. Therefore inapplicable should be upheld.
are saying
1. The reasoning of the majority vote is too simplistic. Advances premise premise with an argument that voluntarily hides complexity of interpretation of the law. This simplicity is outrageous and that desire to hide the edges conflicting cases resulting in the readers (audience universal of these judgments) ease indigestion.
2. The majority vote falls into the habit of a "constitutional Puritanism" by which the TC, while of course knowing the correct interpretation of our constitutional settlement, judge legal rules without any deference or even concerned, and his reasons has the legal system for a particular law. His horizon is only one set of constitutional self-built premises which seems to set the world from which sees the "other worlds."
not look (and thus are neglected) the reasons for the law, the intentions of legislators, the social time one lives, the economic resources that can wear, etc. All that matters is to impose that "self-constructed constitution."
Indeed, the limitations to appeal for special trials had a rather pragmatic reason, pragmatism constitutional puritanism that naturally can not stoop to observe. The limitations of both the old Act No. 2269 as No. 3390 made in the appeal are part of a general environment for the adoption of measures to normalize the functioning of a Supreme Court delayed. A date for both projects, the Court was steeped in a profound delay in the disposition of cases presented to it. This delay - it was held - was "a deep embarrassment to the exercise of all rights and the administration of justice in general" to my knowledge are also rights of a fair and rational procedure. As indicated in his time H. Senator Eliodoro Yáñez "Statistics shows that the Supreme Court has a backlog of such consideration, and its operation that becomes a real denial of justice, and this reform is so urgent, that no doubt this has been the circumstance that has influenced the minds of the Senators who have studied this issue to reach an agreement to save the situation. " In this regard, stated in 1916 in the discussion of the draft reform of the CPC and referring to the appeals, that "these resources today are a drag on the administration of justice. The litigants alike stand in good as in bad faith, the former seeking recognition of their rights by the highest Court of the Republic and the latter for the purpose of delaying the execution of a sentence eight years or more, which is what delay in failure unless these resources. "
In this environment of negative view of the appeal - otherwise shared view in the comparative law - is where born this restriction on the appeal how special trials.
Well, these reasons, as well the dissidents are set out clear assessment legislation.
3. Must state that the failure of the dissidents Peña, Fernández Carmona Fredes and really sprays the majority ruling. Realizes that the most obvious weaknesses of the failure and much more carefully analyzed the complexity of what it means to design a procedural system. Not worth repeating here his arguments as quality warrants careful reading. Mainly emphasizes deference to the legislature and the realization of the many procedures involving single instances and constraints and the challenge. Understand that all of them are unconstitutional because limit the remedies is clearly absurd.
4. One aspect that I find interesting to note in this statement is that as in other judgments there is an appeal of the dissidents to detract from the majority ruling. I remember the failure of the LOC of the Constitutional Court regarding the inapplicability of international treaties (discussed here) where a minister indicated that if in future TC himself declared the inapplicability of an international treaty (as allowed by a vote of majority) This mind going against the Constitution blatantly encouraging the party concerned may request the annulment of the public law of the ruling of the TC. Well, here, I dissent state that "whatever the content of this statement (of course knew of him), it is necessary to emphasize that their placement does not enable to take for granted the appeal in the pending management how it impacts the inapplicability. One thing is inapplicable and a welcome from the use d to appeal. The latter is up to the legislator. " As can be seen this is a clear appeal to reduce the impact of the decision of the TC.
after this speech may be the disappointment of those who lost to a sentence that is worth filing an appeal in good shape.
0 comments:
Post a Comment