The blessed article 393 of the Code of Civil Procedure and its consequences.

by | Apr 4, 2017 | Articles | 0 comments

Among the novelties brought to us in 1993 by the Code of Civil Procedure was the Appeal for Cassation, in merit of which our Supreme Court supposedly left the role of third instance that it had been fulfilling during the validity of the Code of Civil Procedure of 1912 and its repealed Appeal for Extraordinary Nullity. It should be noted that the latter opened the door for the Supreme Court to review all types of cases on a massive scale. Lawyers and parties who requested judicial protection during the validity of the repealed Code of Civil Procedures can attest to those times in which form prevailed over substance, in which proceedings with more than 5 years of processing could be annulled in the last instance due to the lack of a requirement that today we would consider admissibility of the claim, and each Chamber of the Supreme Court ruled according to its own criteria, times in which legal uncertainty reigned.

With the incorporation of the Appeal for Cassation to our procedural system, at least some of these frustrations should have been overcome, since our Supreme Court should henceforth function as a true Court of Cassation, and thus comply with the transcendence that the purposes of this institution have for the collective, such as taking care of the correct application of the law to the objective case, in addition to seeking to unify our jurisprudence.

In my opinion, we have not yet achieved these goals. Currently, the Supreme Court continues to receive cases on a massive scale, the extraordinary requirements to access it through Cassation have not prevented the Chambers of the Court from spending a large part of their time qualifying admissibilities and procedural issues, and in practice this resource is a useful tool for the parties to delay the completion of the judicial process.

In order to support the above, I would like to cite statistics from the Civil Transitory Chamber of the Supreme Court of Justice of the Republic[1], which shows that with almost 24 years of the Civil Procedure Code in force, and despite the modifications that have been made, the cassation appeal is a mechanism that is undoubtedly used by the parties to further extend the delay of the processes:

As can be seen, last year almost 80% of the cases in which cassation appeals were filed ended with an order declaring them inadmissible, a fact that shows that most of the appeals filed do not merit the Supreme Court to hear the merits of the challenge made; however, the legal operators have incentives to continue filing cassations indiscriminately, and this in my opinion is due, I repeat, to the fact that as a general rule they use this extraordinary appeal for dilatory purposes.

It is important to point out that the last modifications to the Appeal for Cassation were provided by Law 29364, published in the official newspaper El Peruano on May 28, 2009, which made very important, although insufficient, changes. In my opinion, the opportunity should have been taken to adopt the necessary measures to make the cassation appeal a real tool to control the application of the law to the case.

The country’s jurists have not neglected their role, since both in the academic forum and in initiatives presented to Congress, they have made important suggestions to establish filters of access to the cassation appeal and to ensure compliance with its purposes, one of crucial importance being, in my opinion, that the filing of the appeal does not imply suspension of the legal effects of the challenged decision.

In line with the above, one of the proposed amendments that it was essential to address was that of Article 393 of the CPC[2], which proposed that the filing of an appeal in cassation does not suspend the effects of conviction decisions. It is not the task of this article to enter into a debate as to whether the amendment should also refer to declaratory and constitutive sentences. However, what is certain is that it is a great incentive to file an appeal in cassation in order to delay the process, which suspends the legal effects of the contested sentence, since all proceedings in the Supreme Court are extremely slow; the interested party knows that with the cassation it will at least delay the process by 6 or 8 more months. In this sense, if the main objective is not to review the merits of the decision but to extend the time for the completion of the process, the rule in question is the great ally.

In this sense, having Article 393 of the CPC as an ally to delay the process[3], it is not strange that the most astute legal operators take even better advantage of this, by using for their purposes the provision of Article 387 of the CPC, in the part that establishes that when the appeal is filed before the Superior Chamber, the latter must forward it to the Supreme Court without further procedure within the following three days[4].

This rule, whose purpose was to accelerate the time limits for the Supreme Court to decide whether the cassation is admissible, is also used as a tool to delay the proceedings with the support of Article 393 of the CPC. The Superior Court generally resolves faster than the Supreme Court; h owever, since it does not have the power to review admissibility, the party filing the cassation appeal could do so without submitting the proof of payment of the court fee required by law, or even file the appeal out of time, or file it against a decision that is not subject to cassation, and in spite of this, the cassation appeal, without being reviewed, will be sent by the Superior Court to the Supreme Court with the entire judicial file, and in application of Article 393 in force, the effects of the challenged decision will be suspended until the Supreme Court rules on the matter.

What steps must be followed in the Supreme Court? The Chamber that receives the appeal will generate a hearing date to qualify the appeal, and if it lacks an admissibility requirement, such as the payment of a judicial fee, the Court grants a term to correct it, after which the appeal is put back in the queue in order to set a new date to review its admissibility.

In this sense, the Supreme Court first sets a date to review admissibility if there is any omission to be corrected, then a date to determine whether the appeal is admissible, and if the appeal is declared admissible, a date to review the merits. The prize goes to those who seek to delay the process, and the punishment to those who challenged under the consideration that they have important arguments that must be reviewed in cassation, in the latter case for their cassation to be resolved, due to the great burden generated by the dilatory appeals, they will have to wait much longer than would be appropriate if the cassation appeal were truly exceptional.[5].

The decision to provide in Article 393 of the CPC that the filing of the cassation appeal does not suspend the execution of the challenged decision has been a legislative policy, contradictory to the purpose of the amendments referred to in Law 29364, which apparently intended to make the cassation appeal a more dynamic one and shorten its terms, but not to restrict access to it. As Francisco Távara Córdoba[6] rightly points out, “Supreme Court reform should begin by limiting the number of cases that reach the Court, which is why it is necessary to reduce the current procedural overload so that the Court can fulfill one of its essential functions: that of establishing jurisprudence”.

If article 393 were to include the proposal that at least the sentences of conviction would not be suspended by the mere filing of the appeal, unless compliance with the same is guaranteed with suitable guarantees, the parties involved in these proceedings would no longer have an incentive to resort to the Supreme Court in these cases, with the exception of those who consider that they have a case that really deserves a pronouncement via cassation appeal. This would allow the Supreme Court to reduce the work of declaring inadmissibility to which it currently devotes much of its time, in order to be able to prioritize the resolution of transcendental issues for the collective, and thus fulfill the purposes of cassation.

1] Website of the Judicial Branch. Accessed March 22, 2017.

2] Estudio Monroy Abogados presented prior to Law 29364 its “New Proposal for Reform of the Chapter on Cassation” dated 27.05.2007, which states the following:
Article 393.- Execution of the challenged sentence. The filing of the appeal does not suspend the execution of sentences of conviction.
Article 393-A.- Contested sentences not enforceable. The filing of the appeal suspends the execution of merely declaratory judgments and constitutive judgments such as those of filiation, nullity of marriage, nullity of the legal act, termination of contract, separation by cause or divorce, capacity and civil status and, in general, all those that do not require for their execution a process of execution.
Article 393-B.- Judgments with several decision makers. If the challenged judgment has several decisions and one or more of them is a sentence, these may be enforced, provided that their enforcement is not conditioned to the acquisition of finality of the other decisions.
Article 393.- Suspension of the effects of the challenged decision. The filing of the appeal suspends the effects of the challenged decision.
Article 387.- Admissibility requirements.
The cassation appeal is filed: Before the jurisdictional body that issued the challenged resolution or before the Supreme Court, accompanying a copy of the writ of notification of the challenged resolution and of the one issued in the first degree, certified with seal, signature and fingerprint, by the attorney authorizing the appeal and under responsibility for its authenticity. In the event that the appeal is filed before the Superior Chamber, the latter must forward it to the Supreme Court without further procedure within three days.
[5] There is a Bill signed 3732/2014-PJ, Article 3° of which states the following:
Admissibility requirements:
1.- Attach the receipt of full payment of the corresponding court fee, unless the appellant has been granted the benefit of judicial assistance.
In the case of the grounds set forth in article 2, paragraph 2, a copy of the precedent invoked must be attached, authenticated, under responsibility, by the attorney authorizing the appeal.
If compliance with any of the requirements is not accredited, the Superior Chamber will grant the appellant a period of three days to correct them, after which the appeal will be declared inadmissible and a fine of no less than 5 and no more than 20 Procedural Reference Units will be imposed on the attorney authorizing the appeal.
6] GUTIERREZ, Walter (editor). La justicia en el Perú. Five major problems. Preliminary document 2014-2015. Lima: Gaceta Jurídica, 2015, pp. 28. Accessed March 22, 2017.