The cassation appeal is an extraordinary appeal in the Supreme Court which depends on certain technical requirements. This means that there are a large number of inadmissible cassation appeals for not complying with all the required formalities.
As an example, we have statistics published by the Justice Department in 2017. These were made after the so-called contentious-administrative cassation appeal came into effect in July 2016.
In those statistics, it was published that, from July 2016 to May 2017, a total of 2.976 cassation appeals were filed. From these 2.976, only 245 were admitted and 980 were rejected. That year, the remaining 1.544 cassation appeals admitted, were pending of resolution by the Supreme Court’s admissions section.Contacto No te quedes con la duda, contacta con nosotros. Estaremos encantados de atenderte y ofrecerte soluciones.
It is clear that over the past years the Supreme Court has increased the admission requirements for the cassation appeal. Evidence of this is the reform carried out by Law 37/2011, of 10 October, on measures to speed up proceedings. The modifications on the causes of inadmissibility by means of the new wording of art. 483.2 LEC carried out by Fundamental Law 7/2015. And of course, the New agreements on admission criteria dated January 27, 2017 which modifies those of December 2011.
Why these stricter requirements? We think that it seeks avoiding the massive presentation of cassation appeals and the Supreme Court’s conversion into a third instance. Therefore, when preparing a cassation appeal, it is very important to follow each of the required guidelines.
Below we will see the admission requirements for cassation appeal and some examples of dismiss from Supreme Court’s resolutions.
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Requirements for the cassation appeal to be admitted
According to the latest 2017’s Supreme Court’s resolutions for cassation appeal admission will be necessary:
√ To be based on the infringement of substantive rules applicable in the resolution of the procedure. (Art. 477.1 LEC).
√ That the infringement of the applicable rule or caselaw invoked in cassation appeal is relevant to the ruling. And that the appeal considers the ratio decidendi of the judgment.
√ The cassation appeal must indicate precisely which are the expected resolutions from the Supreme Court’s judgement. The cassation appeal cannot be drafted as a pleading or allegation.
√ To identify one of the three situations included in article 477.2 LEC that allows access to cassation appeal. (Art. 481.1 LEC).
√ Each subject shall include a headline followed by its development.
√ In the heading of each opposition argument cannot be accumulated different rules. It will not be enough that the rule infringed can be deduced from the development of the motive. A summary of the infringement must be included.
√ In the development of each appellation’s argument, its fundamentals will be explained with the necessary extension. (Arts. 471 and 481 LEC). Excessive extension may be considered unnecessary and therefore lead to inadmissibility.
√ When various infringements are alleged, each of them must be formulated in a separate plea. A sole opposition argument divided into sub-motives will not be admitted.
√ The grounds for the appeal must respect the assessment of evidence contained in the appealed judgment.
√ The final request of the cassation appellation must include which statements are of interest to Supreme Court’s division.
Any failure complying these requirements could result in the dismissal of the cassation appeal. But, how does the High Court apply this in practice? Below we will look through some examples.
Examples of inadmissibility of cassation appeals by the Supreme Court
In a recent writ dated March 13, 2019, the inadmissibility due to possible accumulation of different precepts is analyzed. It also analyzes whether the appellation complies with the legal requirements and the existence of different and mixed procedural matters.
The SC’s writ recalls the importance of identifying the legal rule infringed in the statement of reasons of appellation. It also points out that appellants usually appeal for a new review of the case, confusing cassation appellation with a third instance. The writ reads as follows:
“Judgment 463/2018 of July 18th, quoting other previous judgments, explains that “an appeal, under Article 477 ECL, must be based on a specific infringement of a particular rule of law applicable to the resolution of the issues which are the subject of the infringement. And as this Section has been insisting, it is essential to identify that legal rule which has been infringed when setting out the ground of appeal”. It adds, recalling Judgment 399/2017 of 27 June (RJ 2017, 3053): “”[it is a minimum requirement for the formulation of the grounds of appeal, as we have recently recalled in the agreement on the criteria for admission of appeals, that the rule infringed is clearly identified. Failure to do so, in addition to preventing the purpose of the appeal from being fulfilled, confuses cassation with a further review of the case as if it were a third instance”. This is because it is not possible to transform the appeal into a third instance, so that it is the Section which, in addition to the activity which the law attributes to the party, investigates whether the alleged offence is the result of a substantive violation, identifies the rule which has been violated and constructs the arguments for the appeal in order to specify in what way and why the law applicable to the decision in the case has been violated”.
The appellant has wrongly accumulated provisions with a heterogeneous content which it has mixed with arguments of a procedural nature, which results in a lack of clarity of presentation, ambiguity and lack of definition of the infringement committed. (…)”… “Therefore, the accumulation of provisions whose content is totally heterogeneous prevents the infringement committed from being known accurately and in the required terms, which determines the inadmissibility of the plea. (…)”
Another interesting writ is the one issued on September 26, 2018. In which, it is decided the inadmissibility, considering that the appellant’s claim is a new interpretation of the judged contract. That interpretation is an exclusive power of First Instance Courts:
“In addition, there is also the ground of inadmissibility provided for in Article 483.2.4 LEC of manifest lack of foundation, by challenging the interpretation of the contract without complying with the requirements established by case law for access to the remedy of cassation on this issue; namely, that it is an arbitrary, unreasonable, illogical interpretation or one contrary to a legal precept. (…)”
“To this end, the hearing resorts to the rules of interpretation of contracts, which, as this court has already said on several occasions (STS 615/2016 of October 10 (RJ 2016, 4976)) is the exclusive function of the courts of first instance, so that the interpretation carried out by the latter must prevail and cannot be reviewed on appeal insofar as it conforms to the facts considered proven by the former in the exercise of its exclusive function of evaluating the evidence, except where it is shown to be manifestly illogical, irrational or arbitrary in nature, so that the criterion of the Court of First Instance must prevail even if the interpretation set out in the judgment is not the only one possible ( SSTS 5 May 2010 [RC n. No. 699/2005 ], 1 October 2010 [RC No. 633/2006 ] and 16 March 2011 [RC No. 200/2007 ]). (…)”
In conclusion, it should be noted that:
- Cassation appeal is an extraordinary appeal that is subject to strict technical requirements.
- According to public statistics, only 15% of the cassation appeals submitted are admitted for processing.
- Over the years, the requirements for admission have been tightened by carrying out reforms to its regulations. And through Supreme Court’s resolutions being the last one dated on January 27, 2017.
- The Supreme Court makes clear by dismissing cassation appeals that cassation appeal does not involve a third instance.
- Supreme Court’s resolutions highlight the importance of properly structuring the appeal. In the sense that each argument must have a heading and a development. Without the possibility of accumulating several arguments in sub-motives under the same heading.
- The most common mistake in cassation appealing is the accumulation of precepts with heterogeneous content. Consequently, the Supreme Court is prevented from knowing the exact nature of the infringement committed, and therefore the appeal is unadmitted.
- If you are considering a cassation appeal, we advise you to read with a magnifying glass each one of these requirements.
If this article has been of interest, we also suggest you to read the following article published on our website: Precautionary measures in civil proceedings