La Cámara de Apelaciones en lo CAyT de la C.A.B.A. hizo lugar a un recurso de queja por apelación denegada

SÍNTESIS.- En el caso, corresponde hacer lugar al recurso de queja interpuesto contra la sentencia de grado que suspendió la concesión del recurso de apelación y disponer la elevación de los autos a la Sala.
En efecto, las cuestiones planteadas han sido adecuadamente consideradas en el dictamen de la Sra. Fiscal ante la Cámara, a cuyos fundamentos que en lo sustancial son compartidos corresponde remitirse en razón de brevedad.
Ello así, observo que en la causa bajo examen, la parte fundó la procedencia del recurso de queja en la circunstancia de que, en los hechos, la resolución que dispone la suspensión del recurso de apelación ya concedido, es asimilable, en sus efectos, a la denegatoria del mismo.
Estas consideraciones resultan, a mi entender, acertadas. Ello así, a poco que se advierta que, del mismo modo en que la denegatoria del recurso de apelación impide a la Alzada entender en el mismo, la suspensión dispuesta por la señora Jueza “a quo”, sustrae, del mismo modo, del conocimiento de los Sres. Jueces, los planteos formulados por la parte en su presentación recursiva contra la medida precautelar decidida en autos, afectando, de esta manera –como refiere la parte en su presentación-, su derecho de defensa.

En este sentido, entiendo que el recurso de queja bajo examen ha de prosperar, tanto más cuando, en el caso, la suspensión impugnada mediante el presente recurso de queja fue dispuesta cuando la Sentenciante de grado ya había perdido jurisdicción sobre el asunto en atención a haber concedido el respectivo recurso de apelación, quedando sólo entre sus atribuciones competenciales, proceder de conformidad con lo normado en los artículos 226 y 227 del Código Contencioso Administrativo y Tributario (conforme artículo 26 de la Ley N° 2145, t.c. año 2016, Ley N° 5666).
De dichos artículos se extrae que la decisión de suspender el trámite del recurso de apelación, ya concedido, no encuentra respaldo en el código de forma, siendo que tampoco, vale señalar, pueda justificarse dicho proceder a partir del ejercicio de las facultades ordenatorias e instructorias del proceso (conforme artículo 29 del Código Contencioso Administrativo y Tributario), por cuanto, otra vez, la ejecución de dichas prerrogativas supone la existencia de una instancia hábil a dicho fin, circunstancia ésta que no puede predicarse en el caso bajo examen en atención a haber ya perdido la Sentenciante de grado jurisdicción sobre el recurso al momento de su concesión, con lo que precluyó la posibilidad de actuar en el sentido en que lo hizo. Al respecto, se ha señalado que “una vez producido el juicio de admisibilidad, cualquiera fuere el signo de la resolución, no podrá (el magistrado de grado) revisar su pronunciamiento sobre el punto. La providencia, conceda o no el recurso, no es revocable de oficio, ni a petición de parte” (J.J. Azpelicueta – A. Tessone; “La Alzada. Poderes y Deberes”, Ed. Librería Editora Platense S.R.L., La Plata, 1993, página 14).

Legislatura de la Ciudad Autónoma de Buenos Aires S/ QUEJA, Cámara de Apelaciones Contencioso, Administrativo y Tributario, 9/08/17

Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires

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