Libro Sexto. Impugnacion de resoluciones judiciales

When the terms of an order or a judgment are obscure, ambiguous or contradictory, clarification thereof may be requested. If a decision on any of the points to which the proceedings related has been omitted, extension thereof may be requested.

Clarification and extension shall be requested within forty-eight hours after notification of the order or the judgment.

If clarification or extension is timely requested, the other party shall be given two days to be heard, and with its response or without it, what is appropriate shall be decided.

In these cases, the time limit to file an appeal or cassation against the order or the judgment shall run from the last notification of the order summarily rejecting the requested clarification or extension, or of the one deciding them.

The decrees issued for the conduct of the proceedings are revocable ex officio by the judge who issued them. The party that considers itself affected may also request revocation of the decrees within the twenty-four hours following the last notification.

The judge or tribunal before whom the application for revocation is filed shall decide it, without further proceedings, within the following twenty-four hours.

The litigants may request reconsideration of the original orders of the Chamber, within the twenty-four hours following the last notification. Reconsideration shall likewise lie against the decisions of the Supreme Court of Justice that infringe the procedure of the matters submitted to its cognizance, when no judgment has been rendered.

The opposing party shall be given two days to be heard on the request, and with its response or without it, the Tribunal shall decide within the following three days.

Except as otherwise provided, only the orders deciding preliminary defenses that terminate the proceedings and the final judgments rendered in First Instance are appealable, as well as the orders terminating incidents processed in a separate record.

Decisions issued in voluntary jurisdiction matters that are not of mere procedure are appealable.

The time limit for filing the appeal is three days and it must be made in writing.

The appeal shall be considered only in what is unfavorable to the appellant and has been expressly challenged. The Superior Tribunal therefore may not amend or revoke the decision in the part that is not the subject of the appeal, unless the variation in the part covered by the appeal necessarily requires modifying or revoking other points of the appealed decision.

From the time the appeal is filed, the jurisdiction of the judge is limited to granting or denying the appeal.

Nevertheless, the judge may continue to hear:

1º.Incidental matters processed in a separate record, formed before the appeal is admitted.

2º.All matters relating to attached property, its preservation and custody; its sale, if there is danger of loss or deterioration, and matters relating to precautionary measures.

3º.The withdrawal of the appeal filed, if the case file has not been elevated to the Superior Tribunal.

Upon admitting the appeal, the judge, after prior notification to the parties, shall send the original record to the superior court, with a transmittal sheet.

The Second Instance tribunal shall set a term of six days, if it is a judgment, and of three days in the other cases, for the appellant to make use of the appeal.

The litigant who has not appealed may adhere to the appeal filed by the other, specifying the points prejudicial to him. This adhesion may be made from the time the judge of First Instance admits the appeal until the day before the hearing in Second Instance.

The adhesion shall cease to produce effects if the appeal is withdrawn, or the lapse of the Second Instance occurs, or the appeal is rejected for inadmissibility.

The parties may, within the time periods indicated in Article 606, allege new defenses arising after the claim has been answered and request that they be opened to evidence. The request shall be processed as an incident.

The means of evidence admitted in the First Instance are admissible in the Second Instance; but statements of witnesses shall not be received on the same facts contained in the interrogatories that had been presented in the First Instance.

If in the First Instance, without fault of the interested party, questioning of a witness lawfully presented had been omitted, or if examination of him on any point of those included in the interrogatory had been omitted, he may be examined in the Second Instance.

In the Second Instance, without any proceeding or appeal, a decision shall be rendered on the admissibility of the evidence that had been protested in the First Instance in accordance with Article 127 of this Code.

Upon receipt of the evidence or, where applicable, upon expiration of the terms indicated in Article 606, the tribunal, on its own initiative, shall set day and time for the hearing.

At the hearing the parties and their attorneys may argue. The hearing shall be public, if so requested.

Once the hearing has been held, or upon expiration of the time limit of the order for better adjudication, the judgment shall be rendered in accordance with the provisions of the Constitutive Law of the Judicial Branch.

The decision must confirm, revoke or modify that of First Instance and in case of revocation or modification the pronouncement corresponding at law shall be made.

What was decided must be certified by the secretary of the tribunal and the certification remitted with the case file to the Trial Court of origin.

When the lower judge has denied the appeal, the appeal being admissible, the party deeming itself aggrieved may resort de facto to the superior within the term of three days from notification of the denial, requesting that the appeal be granted to it.

The Superior Tribunal shall forward the original ocurso to the lower judge to report within the peremptory term of twenty-four hours. Upon review of the report, the ocurso shall be decided within twenty-four hours, declaring whether or not the order from which the appeal was denied is appealable. Only when the Superior Tribunal deems it indispensable shall the original case files be requested.

In the first case, the original case files shall be requested and proceedings shall be conducted in accordance with the provisions of Article 606, and in the second, the ocurso shall be declared without merit, ordering that the respective proceedings be archived and imposing on the appellant a fine of twenty-five quetzales.

Once the appeal is granted by the Superior Tribunal, proceedings shall be conducted in accordance with the provisions of this Title for the processing of the appeal.

Nullity may be filed against decisions and proceedings in which the law is infringed, when the remedies of appeal or cassation are not admissible.

Nullity may not be sought by the party that performed the act, knowing or that should have known of the defect affecting it. Nor may it be raised by the party that caused it.

Nullity is inadmissible where the procedural act has been consented to by the party raising it, even tacitly. Tacit consent shall be presumed from the failure to raise nullity within three days after the violation became known, which shall be presumed to have become known immediately if it occurred during a hearing or proceeding, and from notification in all other cases. The parties may not raise nullity out of time, nor may the tribunals order it on its own initiative.

Nullity shall be filed before the tribunal that issued the decision or infringed the procedure; it shall be processed as an incident and the order resolving it is appealable before the respective Chamber, or, as applicable, before the Supreme Court of Justice.

Nullity may be filed for acts or procedures carried out before or after issuance of the judgment. In the first case it shall be filed before the setting of the day for the hearing.

If nullity is declared for vice of procedure, the proceedings shall be restored from the moment at which nullity was incurred.

When nullity of a decision is declared for violation of the law, the Tribunal shall issue the corresponding decision. This nullity does not affect the other acts of the proceedings and, if it relates to a part of the decision, it does not affect the others and does not prevent the act from producing its effects.

Nullity of judgments or orders subject to appeal or to appeal in cassation may only be asserted within the limits and in accordance with the rules specific to these means of challenge.

If the Tribunal of appeal declares nullity of the judgment, it shall also decide on the merits of the dispute.

This provision does not apply when the judgment lacks the signature of the judge.

Procedural acts subsequent to the judgment may be annulled in accordance with the rules of this Title.

The costs corresponding to the void proceedings shall be borne by the public officials or public employees, on a joint and several basis, if attributable to them. To that end, the decision declaring the nullity shall make the pronouncement on costs and shall order the Secretariat to prepare the draft liquidation in the case.

Those directly and principally interested in proceedings, or their legal representatives, have the right to file an appeal in cassation before the Supreme Court of Justice.

The written submission may be delivered to the tribunal that issued the challenged decision or to the Supreme Court; and it shall contain, in addition to the requirements of every first application:

1º.Designation of the trial and of the other parties participating therein.

2º.Date and nature of the challenged decision.

3º.Date of the notification to the appellant and of the last one, if there are several parties in the trial.

4º.The ground for admissibility, indicating the article and subsection containing it.

5º.Articles and subsections of the Law deemed infringed and legal doctrines, where applicable, in accordance with the provisions of Article 627.

6º.If the appeal is based on error of law or of fact in the assessment of the evidence, it must be indicated in what the alleged error consists, in the appellant's judgment; and, in the case of error of fact, the document or authentic act demonstrating the judge's error must be identified, leaving no room for doubt.

The appeal in cassation lies only against judgments or final orders of Second Instance not expressly consented to by the parties, which terminate ordinary proceedings of higher amount.

Cassation lies on substantive and procedural grounds.

There shall be grounds for cassation on the merits:

1º.When the challenged judgment or order contains violation, misapplication or erroneous interpretation of the applicable laws or legal doctrines.

2º.When in the assessment of the evidence there has been error of law or error of fact, if the latter results from documents or authentic acts that evidently demonstrate the error of the adjudicator.

Legal doctrine means the reiteration of cassation rulings rendered in the same sense, in similar cases, not interrupted by another to the contrary and that have obtained the favorable vote of at least four magistrates.

Cassation lies for substantial breach of procedure, in the following cases:

1º.When the Tribunal, of First or Second Instance, lacks jurisdiction or competence to hear the matter in question, or when the Tribunal refuses to hear it having the obligation to do so.

2º.For lack of legal capacity or standing of the litigants, or of representative authority in the person who represented them.

3º.For omission of one or more of the notifications that must be made personally, pursuant to Article 67, if such omission influenced the decision.

4º.For failure to admit the proceedings or its incidents to evidence in any of the instances, when appropriate in accordance with the law, or for denial of any admissible evidence measure, if all of the foregoing influenced the decision.

5º.When the judgment contains contradictory decisions, if the clarification was denied.

6º.When the judgment grants more than requested, or does not contain a ruling on any of the claims timely asserted, if the appeal for enlargement has been denied; and, in general, for incongruence of the judgment with the actions that were the subject of the proceedings.

7º.For the decision having been rendered by a number of magistrates fewer than that prescribed by law, or by a legally disqualified magistrate.

The appeal in cassation lies against final awards rendered in arbitrations at law, in the same cases in which it lies for ordinary jurisdiction.

Against awards rendered in arbitrations in equity, it lies only in the following cases:

1º.When they address points not submitted to the decision of the arbitral tribunal.

2º.When the award concerns matters which pursuant to law cannot be submitted to arbitral proceedings.

3º.When they were rendered outside the time limit for rendering the award.

4º.When a legally disqualified arbitrator has participated.

5º.When the rules of procedure agreed by the parties in the deed of submission have been infringed.

When an appeal in cassation for substantial breach of procedure is filed and is dismissed, it may no longer be filed for any other of the causes stated in this Code, nor vice versa. Consequently, the appellant shall invoke at once all the grounds he has to challenge the appealed decision.

Cassation appeals for substantial breach of procedure shall only be admitted if cure of the defect had been requested in the Instance in which it was committed and the petition reiterated in the Second Instance, when the violation had been committed in the First Instance.

It shall not be necessary to have sought cure of the defect when it had been committed in Second Instance, and it was impossible to request it.

The time limit for filing the appeal in cassation is fifteen days, counted from the last notification of the respective decision.

In the written filing in which the appeal is lodged, the violated articles must be cited and the reasons why they are deemed infringed must be set forth.

Citation of laws shall not be necessary in relation to the ground for cassation consisting of error of fact in the assessment of the evidence.

If violation of legal doctrine is alleged, at least five uniform judgments of the Tribunal of Cassation enunciating the same criterion, in similar cases, and not interrupted by another to the contrary, must be cited. The Tribunal shall not take into account laws and legal doctrines other than those cited upon lodging the appeal or before a day is set for the hearing of the matter.

Upon receipt by the tribunal of the pleading in which the appeal is filed, it shall request the original case file; and if it finds the appeal in conformity with the law, it shall set a day and time for the hearing. Otherwise, it shall reject it outright without further proceedings.

On the day of the hearing, the parties and their attorneys may attend, and the latter may argue orally or in writing. The hearing shall be public when any of the interested parties so requests or when the Supreme Court so orders.

During the processing of the appeal in cassation, no evidence may be offered or admitted nor may any incidents be processed other than those of recusal, excuse, impediment, withdrawal and remedies of clarification or amplification, where applicable.

If the appeal is on the merits and the Tribunal deems it well-founded, it shall quash the challenged decision and rule in accordance with the law.

If the appeal is filed for substantial breach of the procedure, the violation having been declared by the Tribunal, it shall quash the decision and annul the proceedings from the time the fault was committed and shall remit the record to where appropriate so that they may be conducted and decided in accordance with the law, charging the costs and replacement of the record to the judge or Tribunal that gave cause for the appeal.

Notwithstanding the provisions of the preceding paragraph, when the alleged ground consists of the failure to rule in the holding on any of the claims duly asserted, the Supreme Court may limit itself to ordering the Tribunal that issued the judgment to complete it by issuing a decision on the omitted point.

Where awards rendered in arbitral proceedings are concerned, the Court shall limit itself to quashing the award without deciding the merits of the case.

If the tribunal dismisses the appeal or considers that the challenged decision is in accordance with law, it shall make the corresponding declaration, ordering the party who filed the appeal to pay the costs thereof and a fine of not less than fifty quetzales nor more than five hundred, according to the importance of the matter. Insolvent persons shall be punished with imprisonment of eight days to three months. These sanctions are not applicable to the Public Prosecutor's Office.

Neither an award of costs nor the imposition of the fine shall be appropriate when the appeal was based on violation of existing legal doctrine, if such doctrine is modified by the cassation ruling.

Against cassation judgments only the remedies of clarification and amplification are admissible; but the magistrates who render them shall be liable in accordance with the law.

Once processing of the appeal has concluded, the case file shall be sent to where appropriate, with certification of that decided by the Supreme Court.

Cassation judgments shall be made known in the official publication of the tribunals.