Analysis of Judgment No. 35796 of 2023: Appeals and Judicial Review

Judgment No. 35796 of July 13, 2023, filed on August 25, 2023, represents an important clarification on appeals in criminal procedural law. Drafted by rapporteur E. M., the decision addresses the issue of using means of appeal other than those provided by law, offering fundamental guidance for legal practitioners.

The Regulatory Context and the Judgment

As established by Article 568, paragraph 5, of the New Code of Criminal Procedure, the central question is whether a judicial measure can be appealed through a means different from the one specifically prescribed. The Court clarified that, in such cases, the receiving judge must limit themselves to verifying:

• the objective appealability of the measure;
• the existence of the intent to submit the appealed act to judicial review.

If both these requirements are met, the judge is obliged to transmit the case files to the competent judge without the need to adopt a preliminary judicial act.

The Legal Maxim and its Significance

CASES AND MEANS (EXHAUSTIVENESS) - Appeal filed using a means other than the prescribed one - Verification by the judge who received the act - Content - Indication. In matters of appeals, when a judicial measure is appealed by the interested party with a means of challenge different from the one legislatively prescribed, the judge who receives the act must limit themselves to verifying the objective appealability of the measure as well as the existence of the intent to submit the appealed act to judicial review and, therefore, transmit the case files, not necessarily after adopting a judicial act, to the competent judge.

This maxim underscores the importance of protecting the right to defense. Indeed, in situations where a different means of appeal is used, it is crucial that the judge does not dwell on formal issues but focuses on the substance of the appeal request. This approach facilitates access to justice and ensures that disputes are examined on their merits, rather than being dismissed on formal grounds.

Conclusions

Judgment No. 35796 of 2023 follows an established line of case law, with both consistent and divergent precedents, and represents a step forward in guaranteeing the right of appeal. This jurisprudential orientation responds to a need for effective justice, emphasizing the importance of substance over form. Lawyers and legal practitioners must pay attention to these guidelines, not only to ensure the correct application of the rules but also to protect the rights of their clients at every stage of the proceedings.