Is the Ex Officio Revocation of Judicial Resolutions Applicable or Not?

By: Carlos Castillo, Partner, and Director

Regarding the question of whether a Civil or Commercial Judge can revoke their own decisions, I must refer to the provisions of Articles 227 and 228 of the Civil and Commercial Procedural Code (CPCM), which establish that judicial resolutions that only advance the process, known as decrees, can be rectified and even expanded for formal or substantive reasons, provided that this does not cause harm to any of the parties; and simple orders, those that do not end the process (Art. 212 CPCM), can be modified when the final judgment is issued, as long as this does not involve reverting the procedure.

Therefore, in an unforeseen situation such as a resolution or simple order not contemplated by the law, the provisions of Art. 19 CPCM should be applied, which dictates that in the case of a legal gap, the regulation and principles governing analogous situations should be applied.

Analyzing the provisions of Article 228 CPCM, it refers to orders or resolutions that do not end the process, which can be modified when the final or substantive judgment is issued, provided this does not revert the process, addressing incidents, granting precautionary measures, defining ancillary issues, or resolving nullities. Consequently, final orders or resolutions cannot categorically be modified; these are the ones that, once issued, make it impossible to continue the process at the instance where they are issued, or those from which no appeal is allowed by express legal provision, such as the decision resolving the appeal for revocation (Art. 506 CPCM). See also the provisions of Art. 574 CPCM. And only decrees can be rectified and even expanded.

Thus, once a substantive judgment has been issued, as in the case of forced or improper execution, in the case of declarative judgments, simple orders or resolutions are issued aimed at enforcing the judgment. Could these orders be modified? Given that the condition imposed by Article 228 CPCM allows it only when the judgment is issued, the immediate conclusion is that they cannot be modified or reformed.

Nevertheless, I consider that the judge can indeed reform or modify their decisions, for legally valid reasons, formally or substantively, as long as it does not harm the rights of the parties or involve reverting the process. However, such rectification or modification must be notified as soon as possible (Art. 169 CPCM – General Principle of Notification).

Having stated the above, I must be categorical in indicating that it is absolutely inappropriate to revoke a decision of the Court on its own motion or ex officio, and moreover, to delay the notification of such an inappropriate decision. It goes without saying that revocation as a means of appeal is a right of the parties, and the very act of revoking, procedurally, corresponds to the legal act by which a judge nullifies a previous decision, based on the legal reasons presented by the affected party, which, being harmful to their rights, is timely contested.

Only in the contentious-administrative jurisdiction can the Authority revoke its unfavorable acts ex officio, according to the provisions of Art. 121 of the Administrative Procedures Law (LPA), given an express legal authorization, but this has no place in civil-commercial procedural matters.

On the other hand, the judge is obliged to direct the process according to what is established by law (Arts. 14 and 2 CPCM), and the law does not empower them to contest and resolve their own decisions, that is, to revoke them properly. No matter how much one intends to use the term revoke as synonymous with invalidating or nullifying a legal act in which a certain judicial decision was previously expressed. The law is clear in establishing that:“The words of the law shall be understood in their natural and obvious sense, according to the general use of the same words; but when the legislator has defined them expressly for certain matters, they shall be given their legal meaning in those matters.”” Art. 20 of the Civil Code. Thus, within the Civil and Commercial Procedural Code, revocation is a means of appeal provided in Articles 503 and following (Book Four, Title Two), and this procedural term has no other connotation or meaning than that of the means of appeal or recourse.

Jurisprudence is clear in establishing that: “The judge is the judicial official who, by constitutional mandate, exercises the jurisdictional function, which is why the direction of the process is entrusted to them, and they must exercise it according to what is established by national regulations, so its application does not depend on their discretion, and they cannot create, omit, restrict, or expand processes, except when the law itself authorizes it, in accordance with the third paragraph of Article 172 of the Constitution of the Republic, and Articles 2, 3, and 14 of the CPCM.” See reference ruling 26-4CM-18-A of the Second Civil Chamber of the First Section of the Center, from fifteen hours on June 18, 2018.

Due Process

The same above-cited ruling refers clearly to the concept of due process, as follows: “Effective judicial protection or due process is configured according to the processes previously established by law for each specific case, and for it to be configured, the rights, principles, and guarantees that constitutionally and legally assist the parties must be respected.”

The cited ruling also states: “Hence the importance of respecting legality and adhering to the legal order, as it is pursued that all acts of the process are governed by what is previously established by law, without its rules being inapplicable, modified, or added to at the will of the judge or the parties, as procedural rules are imperative, otherwise, it could cause a violation of the constitutional, substantive, and procedural rights of the litigants.” Furthermore, the same cited ruling establishes the following: “Thus, the judicial official must clearly know the procedures established by law, as well as the principles governing procedural law, to guarantee the rights of the litigants and comply with the principle of legality prescribed in Article 86 of the Constitution of the Republic, and 2 and 3 CPCM.”

This duty of clear knowledge of the procedures or competence responds to the specific requirements to be a judge as required by Art. 179 of the Constitution, and even more, the procedural rules (Arts. 1 and 2 CPCM) clearly dictate that judges CANNOT IGNORE, DISOBEY, OR ALTER the procedures established by law.