In the daily practice of litigation, it is not uncommon to encounter challenging procedural scenarios. One recurring example is the indiscriminate use of appeals—often unfounded—against rulings that order evidentiary measures issued by the trial judge in the main proceedings. These measures are typically intended to clarify specific factual circumstances or resolve technical procedural incidents surrounding the case under adjudication.
In such situations, the strategy of the reckless litigant is often to obtain the suspension of the main proceedings (stay of proceedings) until the Court of Appeal rules on the fate of the appellate action.
In other words, time becomes a decisive factor in this procedural strategy. Even when the appeal is ultimately dismissed, the time required for the appellate court to hear and decide the matter may render the ordered evidentiary measure ineffective due to delay, making it untimely or even irrelevant.
This scenario generally arises when the evidentiary measure—although its execution would not cause any immediate harm to the opposing party—could become a tournant décisif for the case, meaning a decisive element capable of shaping the court’s understanding and influencing its final conviction.
Despite this, the legal framework provides a specific judicial mechanism designed to counteract the harmful effects of such abusive procedural conduct: the summary proceeding for the granting of provisional enforcement of a judgment. This mechanism constitutes a special jurisdictional authority vested in the Presiding Judge of the Court of Appeal.
Acting in summary proceedings, the Presiding Judge of the Court of Appeal possesses unique powers to grant provisional enforceability to judgments that did not originally carry such effect when issued by the trial court.
Law No. 834 of July 15, 1978, in its Articles 138 and 139, clearly establishes that when provisional enforcement has been refused or was not requested at the trial level, it may only be granted during the appeal stage by the Presiding Judge ruling in summary proceedings.
Unlike traditional summary proceedings—typically characterized by the strict requirement of urgency—this particular procedure is governed by specific admissibility criteria, which have been shaped both by statutory provisions and evolving jurisprudence.
In essence, the following conditions must be met:
- (a) The request for provisional enforcement must be compatible with the nature of the main dispute, without the strict requirement of urgency.
- (b) A genuine dispute must exist between the parties.
- (c) The requested provisional enforcement must not involve a serious contestation.
- (d) The provisional enforcement—being discretionary for the judge, whether requested or ordered ex officio—must be necessary.
- (e) The request must be made during the course of the appeal proceedings.
It is important to note that in this type of summary proceeding, the traditional notion of “urgency” is replaced by the concepts of “necessity” and the “risk generated by delay” in executing the evidentiary measure ordered by the court.
On this matter, Magistrate Edynson Alarcón, in his former capacity as Presiding Judge of the Civil and Commercial Chamber of the Court of Appeal of the National District, established the following guiding principles in a ruling concerning a motion for provisional enforcement of judgment:
“(…) the president of the court may, while the appeal is being examined, grant provisional enforcement of the contested judgment based on the appearance of good right of the petitioner (fumus boni iuris) and where there is evidence of imminent risk or danger in delay (periculum in mora); these are, ultimately, powers of imperium granted to the presiding judge during the second-instance proceedings, which are exercised at his discretion, taking into account the particular circumstances of each case.”
(Civil Order No. 026-01-2024-SORD-0023 of the Presidency of the Civil and Commercial Chamber of the Court of Appeal of the National District, May 27, 2024).
He further explained:
“(…) with regard to the risk arising from delay, this implies the combination of risks generated by the prolongation of the main proceedings and the real or presumed possibility of non-execution, defective execution, or unsatisfactory enforcement, to the detriment of the fundamental right to effective judicial protection established in Article 69 of the Constitution of the Republic.”
(Civil Order No. 026-01-2023-SORD-00036 of the Presidency of the Civil and Commercial Chamber of the Court of Appeal of the National District, October 23, 2023).
From these criteria, it can be inferred that the judge presiding over summary proceedings at the appellate level evaluates both the procedural and factual context in which the evidentiary measure was ordered. The judge assesses whether postponing its execution would violate the fundamental right to effective judicial protection of the party who sought the measure—essentially determining whether the harm caused by delay would outweigh any potential prejudice resulting from its immediate enforcement.
In most cases, the immediate execution of the ordered evidentiary measure does not cause any imminent harm to the opposing party. Rather, such measures may reveal information capable of placing the case in a less favorable position for claims that are often unfounded or disconnected from the factual reality. For this reason, appeals against these types of rulings are frequently used as a procedural tactic by litigants seeking to delay an inevitable outcome.
As the well-known saying goes, “everything has a remedy except death.” In procedural terms, the summary proceeding for the granting of provisional enforcement often becomes the remedy for this type of procedural abuse. When carefully prepared and filed in compliance with the required admissibility conditions, it can produce a highly effective result for the requesting party, generating a decisive impulse in the evidentiary phase of the main proceedings and contributing to a more timely and effective resolution of the dispute.
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