Author(s) Mónica Alexandra Gonçalves Monteiro
Advisor(s) Manuel José Carrilho de Simas Santos and Flávia Noversa Loureiro
Year 2017
Synopsis The present dissertation has as main objective to treat and to develop the institute of the extraordinary resource of revision, in the Portuguese juridical procedural legal order. The study of this juridical institute is, for our doctrine, a subject of little dogmatic relevance with respect to other subjects of the law, since the studies on the same are scarce. The appeal of criminal review has been essentially developed by the jurisprudence of the STJ. Thus, we will proceed to an empirical study of the decisions of our Superior Court, after the theoretical developments on the subject. The extraordinary review appeal seeks to correct the judicial error through a new trial in order to replace an earlier vitiated decision which has already been settled by a new decision, free of defects. This judicial error stems from procedural situations where, by intent, negligence, lack of knowledge or misinterpretation of the law, or erroneous assessment of the facts, a judicial decision was rendered that is not in accordance with the truth of the facts or the legal reality, deserving the qualifier of unjust. Thus, judicial error corresponds to the non-discovery of the truth. As such, it is imperative to develop the theme of truth, which also reveals a special complexity. We are particularly interested in the legal-procedural truth, that is, the truth as a decision issued by the judge, regarding the facts presented in the case by the parties or procedural subjects, based on the formation of a degree of certainty in their intellect. The legal institute of revision is regulated in arts. 449.º ff. of the CPP and has constitutional consecration in art. 29, n.º 6, of the CRP. It arises from the dichotomy between the security and the justice of the decision, since, on the one hand, it is fundamental that the sentence becomes final and immutable, through its final decision, on the other hand it is fundamental that the sentence is fair, which will become impossible if it suffers from serious defects. It was from the intersection of these two fundamental interests that there arose the need to establish in the law, a regime that would “undo” the decision’s res judicata, when the primacy of justice – of material truth – surpasses the primacy of certainty of the decision. After all, despite the various goals of the criminal process, the ultimate objective will always be the realization of justice, and ergo to reject the absolute supremacy of the res judicata.
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Author(s) Mónica Alexandra Gonçalves Monteiro
Advisor(s) Manuel José Carrilho de Simas Santos and Flávia Noversa Loureiro
Year 2017
Synopsis The present dissertation has as main objective to treat and to develop the institute of the extraordinary resource of revision, in the Portuguese juridical procedural legal order. The study of this juridical institute is, for our doctrine, a subject of little dogmatic relevance with respect to other subjects of the law, since the studies on the same are scarce. The appeal of criminal review has been essentially developed by the jurisprudence of the STJ. Thus, we will proceed to an empirical study of the decisions of our Superior Court, after the theoretical developments on the subject. The extraordinary review appeal seeks to correct the judicial error through a new trial in order to replace an earlier vitiated decision which has already been settled by a new decision, free of defects. This judicial error stems from procedural situations where, by intent, negligence, lack of knowledge or misinterpretation of the law, or erroneous assessment of the facts, a judicial decision was rendered that is not in accordance with the truth of the facts or the legal reality, deserving the qualifier of unjust. Thus, judicial error corresponds to the non-discovery of the truth. As such, it is imperative to develop the theme of truth, which also reveals a special complexity. We are particularly interested in the legal-procedural truth, that is, the truth as a decision issued by the judge, regarding the facts presented in the case by the parties or procedural subjects, based on the formation of a degree of certainty in their intellect. The legal institute of revision is regulated in arts. 449.º ff. of the CPP and has constitutional consecration in art. 29, n.º 6, of the CRP. It arises from the dichotomy between the security and the justice of the decision, since, on the one hand, it is fundamental that the sentence becomes final and immutable, through its final decision, on the other hand it is fundamental that the sentence is fair, which will become impossible if it suffers from serious defects. It was from the intersection of these two fundamental interests that there arose the need to establish in the law, a regime that would “undo” the decision’s res judicata, when the primacy of justice – of material truth – surpasses the primacy of certainty of the decision. After all, despite the various goals of the criminal process, the ultimate objective will always be the realization of justice, and ergo to reject the absolute supremacy of the res judicata.
See more here.