Assessment of Evidence in the Review of Appeals by the Supreme Court of Justice — Constitutional Prerogative or Discretionary Right?

Abstract

The article analyzes the latest related changes that were made with the adoption of Law no. 64/2023 regarding the Supreme Court of Justice, which modified the grounds for an appeal against decisions of appellate courts. Thus, even though the role of the Supreme Court is to ensure the uniform application of the law and to verify only the legality of a decision made by a lower court, the legislator introduced an innovation that grants the Supreme Court of Justice the arbitrary right to examine the merits of a decision made by a lower court and to assess the evidence, thereby acting as a court of first instance. These realities are currently unfolding in a context where hearings in the Supreme Court of Justice occur in the absence of the parties. In the event of examining the merits of the appealed decision and reassessing the evidence without hearing the parties, there is an imminent risk of arbitrary decisions being made and the use of the appeal as a disguised form of a second-instance review under the pretext of unreasonable assessment of evidence by the courts.