The complementarity rule in the sub-motives of misapplication of law and violation of law by omission within the cassation appeal. Part II

In the previous article, I discussed the reasonableness of the complementarity rule between the cassation sub-motives (substantive motives) of Misapplication of Law and Violation of Law by Omission (non-application) as established by the Supreme Court of Justice, Civil Chamber. In essence, it has been established that for the admissibility of these sub-motives, when alleging the sub-motive of violation of law by non-application, the thesis must be complemented by indicating the norm that was inappropriately applied and vice versa.

This is reasonable because, if it is questioned that a norm presumed to be suitable for resolving the conflict was not applied, it implies that in resolving the matter, a norm that was not adequate for such a purpose was applied.

The Supreme Court of Justice, Civil Chamber, has established an exception to the aforementioned rule where the appellant indicates that the sub-motive of misapplication of law (or vice versa) is not being invoked, as it is evident that the sentencing chamber did not misapply any norms, allowing for the consideration of the raised sub-motive.

In this regard, I find the exception to the rule reasonable when:

    • The sentencing tribunal failed to fulfill its legal duty to substantiate its decision with the analysis and application of a particular legal norm, meaning there is a judgment in which it was not established based on which legal norm the issue was resolved.
    • The tribunal that issued the judgment cites several norms, but from its analysis, it cannot be inferred which one(s) it subsumed the facts under to resolve the dispute.

This was elaborated by the Supreme Court of Justice, Civil Chamber, within case file 341-2015, where it was considered: “although this Chamber has maintained the criterion that the sub-motives of violation of law by non-application and misapplication of law are complementary and form a complete cassation thesis, this general rule finds its exception when the sentencing tribunal, in issuing its decision, does not expressly apply a normative provision that can be challenged, nor can it be inferred to which it corresponds as it is regulated by more than one legal body.”

From the analyzed judgment, it can be inferred that the Supreme Court of Justice, Civil Chamber, indicates that the exception to the complementarity rule can be applied when the contested judgment:

    • Does not establish the application of any norm.
    • Fails to establish which norm was applied to resolve the issue, meaning the reasonableness of this exception to the rule is due to a material impediment to technically allege the misapplication of the law, as it is impossible to develop the thesis based on a specific norm.

The Supreme Court of Justice, Civil Chamber, has shifted and expanded its criterion in the sense that: “it is an established doctrine of this Chamber that, when invoking the sub-motive of violation of law by non-application, the sub-motive of misapplication of law must also be alleged, as the omission of the suitable norm that resolves the disputed facts presupposes the application of another norm that is not pertinent for not containing the appropriate legal assumptions. However, this rule has its exceptions, one of them being the following: when, according to the appellant, there was no misapplication of a legal norm, considering that the ruling was supported by pertinent regulations by the Chamber.” Case file 245-2022. This doctrine is found, among other rulings, in the cassation judgments issued within case files 181-2022, 137-2022, and 134-2022.

From the current doctrine, it can be inferred that the Supreme Court of Justice, Civil Chamber, now considers that:

    1. It is sufficient for the appellant to indicate that there was no misapplication of a legal norm.
    2. The ruling was supported by the pertinent regulations by the Chamber.

Regarding the first assumption, it seems unreasonable to think that the exception to the rule is given just because the appellant says so, since it is the obligation of the Supreme Court of Justice, Civil Chamber, to verify that what is alleged by the appellant is indeed the case; that is, it is not enough for the appellant, when developing the thesis, to indicate that there was no misapplication, as this must be verified upon resolution. Thus, the court must establish if this situation is verified in the contested judgment in cassation, as the new legal doctrine seems to exempt the appellant from the procedural burden of developing the complementary thesis by merely stating that in their opinion the rule does not apply, without verifying that this situation occurs.

Regarding the second assumption, I consider that it contradicts the main rule, which even completely denaturalizes the sub-motive of violation of law by omission. This is because if in the cassation thesis it is asserted that the rule does not apply since the ruling was supported by the pertinent regulations, what is being discussed in the sub-motive? Especially considering that, as mentioned earlier, the purpose of this sub-motive is precisely to challenge as an infraction the fact that the sentencing Chamber did not resolve the issue by applying the suitable norm for resolving the controversy.

From this, one might ask: if the appellant indicates in their cassation thesis that the norm used by the Chamber to resolve is the pertinent one, why denounce the omission of another law that is also argued to be pertinent? This is inherently contradictory and to some extent nonsensical, except in those cases where the resolution of the issue requires the application of more than one norm, in which case, the Supreme Court of Justice, Civil Chamber, must verify this situation before applying the exception to the rule.