The appellant defended the possibility of not filing a cassation appeal first because it was unlikely to be granted leave to proceed and the Constitutional Court rejected his position.

The Constitutional Court has established some guidelines that must be observed to be able to consider the judicial review jurisdiction validly exhausted before filing an appeal for protection of constitutional rights and in this way to ensure its secondary nature (Order 65/2018, of June 18; Panel 1, appeal 5710/2017).

This decision was issued regarding a case in which the High Court of Justice had not granted leave to the ancillary proceeding for nullity brought against an unfavorable judgment, on the grounds that, since the judgment was eligible for a cassation appeal, the individual should have tried that avenue before that of the ancillary proceeding for nullity (a procedural avenue which, as is known, can only be pursued against decisions that are not eligible for any appeal).

In his appeal for protection of constitutional rights against the refusal to grant leave to the ancillary proceeding, the individual argued – not without a certain logic – that, although the judgment was eligible for a cassation appeal, the appeal was not likely to be granted leave to proceed. Since the judgment suffered from the defects of inconsistency, absence of reasoning and arbitrariness in the evidentiary assessment, none of them would have allowed him to argue with a minimum degree of rigor, in the notice of appeal, that the objective cassational interest required to establish case law was present. Therefore, he would have undertaken a futile action and would have surely been ordered to pay costs.

However, the Constitutional Court rejected this position on the grounds that, in accordance with the new cassation appeal regime, no one can replace the Supreme Court in the task of deciding whether or not a cassation appeal should be granted leave to proceed (no matter how unfeasible it appears beforehand). For this reason, since the individual had not exhausted the judicial review jurisdiction by filing such appeal, his appeal for constitutional protection could not be granted leave to proceed.

This issue is also affected by the Supreme Court Order of December 11, 2017 (appeal 3711/2017), in which, based on the opening of the cassation appeal to decisions that were previously barred from appeal, the Supreme Court establishes that an ancillary proceeding for nullity may only be brought against a decision issued by the lower court if a cassation appeal has been previously filed against it. Therefore, only when the cassation appeal is not granted leave to proceed may the ancillary proceeding be brought to denounce the infringements of fundamental rights that have been committed (in the cases, logically, where it is appropriate).