Jurisdiction in Spanish Courts: Types, Roles, and Procedures, Apuntes de Derecho Procesal Civil

¡Descarga Jurisdiction in Spanish Courts: Types, Roles, and Procedures y más Apuntes en PDF de Derecho Procesal Civil solo en Docsity! LESSON 1. JURISDICTION AND THE JURISDICTIONAL FUNCTION Solving conflicts and abolition of private justice There are different kinds of conflicts; they can be personal, social, ethical, legal, etc… Legal conflict: when somebody breaks a legal rule, infringes other’s rights or breaches their legal duty. There are two types: • Between private parties (civil, commercial and labor conflicts) • Conflicts between a person and the state (criminal law). System of solving conflicts: a. By the people involved in the conflict: • By negotiations and transactions to reach an agreement • Using the violence (“private justice”: taking the law into their hands). b. By third parties: • By non-judicial institutions: arbitration/mediation • By judicial bodies: jurisdiction. JURISDICTION This is the function of the state, the judicial bodies as a whole. State functions: Legislation – create law, prepares and passes legal rules (general) Administration – execute legislation, to apply laws. This application has to be supervised and the elements (the status of deciders) are dependent. It provides common welfare, applies substantive law in order to be provided and it is self-related with the matter in question. Revisable decisions. Examples: fines, tax institution. Jurisdiction – supervise the legal system and apply the substantive law. It doesn’t have to have relation with the matter at issue: other people’s rights impartially. The elements are independent (status deciders). It is the last stage of the ius dicere. Jurisdictional activity In the main content - “say and apply” (ius dicere) the law to the particular case: declaration procedures (what should be according to the law). Enforcement procedures: adjust what it is to what it should be. The ones that develop this activity are the judicial bodies within the judicial power. Its main characteristics are: • Independency: from other state powers and other judicial bodies • Impartiality: neutral and different position. Principles governing jurisdiction: 1. State’s hegemony of jurisdiction – state can delimit the boundaries of jurisdiction, included in the concept of sovereignty (art. 1.2 CE). Only sate bodies can exercise it. The general rule is in the art. 4 and art. 21 of the LOPJ. All Spanish territory is subjected to the Spanish jurisdiction; there are some exceptions like the European law. Art. 4: “the jurisdiction extends over all the persons, matters and Spanish territory, according to the constitution and the laws”. 2. Jurisdiction as an state exclusive power 2.a.Positive sense – art. 117.3 CE: only the courts could exercise jurisdictional function, not by the other two state powers. Exclusively in the courts and tribunals. 2.b.Negative sense – art. 117.4 CE: judges and magistrates can only exercise jurisdiction. They have only to be exercising this functions, prohibitions and incompatibilities. There are some exceptions: they can do something to guarantee laws, fundamental rights (ex. they authorize the entering in a house for police, in elections if there is any problem it is asked to the judge to protect the right of the elections). 3. Unity of jurisdiction 2.c.Territorial scope – jurisdiction is an excusive competence of the state, art. 149 CE. The exceptions are in the STC 56/1990 and 62/1990: administration of the administration of justice. 2.d.Internal scope – all judges are subject to a common legal system (courts under LOPJ) 4. State liability Judicial liability Criminal (perversion of justice, bribery and illegal detention). Criminal area of jurisdiction: (power point) see jurisdictional orders pyramids. Enforcement, competence of the high court of justice: investigation and trial against certain members of the judicial power or the local government. You appoint two judges, one for investigation and one for the trial. Different bodies of magistrates. Supreme Court deals with cassation appeals (cassation: to eliminate a sentence). Juveniles court Penitentiary surveillance court Civil (damages because of intentional negligent behaviors). Civil area of jurisdiction: Unipersonal courts: first instance courts. They have to make an appeal for the judges to know their decisions. Commercial courts, they are like specialized courts. LAWYER, SOLICITORS AND ATTORNEYS Lawyer is a general term for a person who gives legal device and aid and who conducts suits in court. An attorney or, more correctly, an attorney-at-law, is a member of the legal profession who represents a client in court when pleading or defending a case. In the US, attorney applies to any lawyer. In the UK, those who practice law are divided into barristers, who represent clients in open court and may appear at the bar, and solicitors, who are permitted to conduct litigation in court but not to plead cases in open court. The barrister does not deal directly with clients but does so through a solicitor. The word attorney comes from French meaning ‘one appointed or constituted’ and the word’s original meaning is of a person acting for another as an agent or deputy. A solicitor would be the UK equivalent of the US attorney-at-law. Counsel usually refers to a body of legal advisers but also pertains to a single legal adviser and is a synonym for advocate, barrister, counselor, and counselor-at-law. As to the abbreviation ‘Esq.’ for ‘Esquire’ used by some lawyers, it has no precise significance in the United States except as sometimes applied to certain public officials, such as justices of the peace. For some reason, lawyers often add it to their surname in written address. However, it is a title that is specifically male with no female equivalent, so its use by lawyers should fade away. LESSON 3. THE SPANISH JURISDICTIONAL ORGANIZATION Justice of peace Appointed by the city council for 4 years Civil complaints no more than 90 euros Judges of 1st instance Located in the capital of the judicial district Jurisdiction over the first instance of civil proceedings not attributed by law to other jurisdictional bodies Commercial judges In operation since 1 September 2004, are specialised legal bodies. They form part of the civil legal system. TERRITORIAL SCOPE Generally speaking, in each province, with jurisdiction throughout the province and its base in the provincial capital, there will be one or more commercial courts. They may also be set up in towns other than the provincial capital where the needs of the people, the existence of industrial or commercial centres and economic activity so require, with the extent of their jurisdiction being established in each case. Commercial courts may be established which extend their jurisdiction to two or more provinces within the same autonomous community. AREAS OF JURISDICTION Commercial courts hear cases arising in connection with insolvency issues, in the conditions specified in their governing law. Commercial courts also hear matters which fall within the area of jurisdiction of the civil jurisdictional system, with regard, inter alia, to claims in which rights of action are exercised relating to unfair competition, industrial property, intellectual property and advertising, as well as all those matters which, within this jurisdictional system, promote the scope of the regulatory rules of commercial companies and cooperatives. The commercial courts have jurisdiction to recognise and enforce foreign sentences and other legal and arbitration rulings, where these relate to matters within their area of jurisdiction, unless they should be heard by another court in accordance with international treaties and other rules. Courts dealing with violence against woman In each district there are one or more Juzgados de Violencia sobre la Mujer (Courts dealing with Violence against Women), based in the capital of the district and with jurisdiction throughout the territory. They take their name from the name of the municipality where they are based. In legal districts where there is only a Juzgado de Primera Instancia e Instrucción (Court of First Instance and Preliminary Investigation), it will be this court which hears matters falling to the jurisdiction of the courts dealing with violence against women. They are part of the criminal jurisdictional system. AREAS OF JURISDICTION Courts dealing with violence against women hear, under the criminal system, in accordance in each case with the procedures and appeals provided for in the Ley de Enjuiciamiento Criminal (Code of Criminal Procedure), the following matters, inter alia: Investigation of criminal liability claims arising out of offences contained in the titles of the Criminal Code relating to homicide, abortion, injury, injury to a foetus, deprivation of freedom, offences against moral integrity, sexual offences or any other offence committed with violence or intimidation, where they have been committed against someone who is or has been their wife, or a woman who is or has been linked to the offender by a comparable emotional relationship, even without living together, as well as those committed to the descendents, of the offender or of the wife or cohabiting partner, or to minors or the disabled living with the offender or subject to the de facto power, protection, guardianship, care or safekeeping of the wife or cohabiting partner, including where an act of gender-based violence has occurred. Investigation of criminal liability claims arising out of any offence against the rights and duties of the family, when the victim is any of the persons stated as such in the preceding paragraph. Issuing the relevant protection orders to the victims, without prejudice to the areas of jurisdiction attributed to the Duty Court.Courts dealing with violence against women may hear under the civil system, in accordance in each case with the procedures and appeals provided for in the Code of Criminal Procedure, the following matters, inter alia: Parentage, maternity and paternity. Annulment of marriage, separation and divorce. Those relating to father/child relationships. Those relating to the need for approvals of adoptions. Courts dealing with violence against women have exclusive and exclusionary jurisdiction under the civil system when the following conditions occur at the same time: In the case of a civil process relating to any of the subjects specified in the previous paragraph. Where any of the parties in the civil proceedings is the victim of acts of gender-based violence. Where any of the parties in the civil proceedings is charged with being the perpetrator, instigator or accomplice necessary for carrying out acts of gender-based violence. Where criminal actions have been brought before the courts dealing with violence against women in respect of crimes or petty offences resulting from an act of violence against women, or a protection order has been issued in respect of a victim of gender‑based violence. When the Judge holds that the actions made known to him, in public, do not constitute an expression of gender-based violence, he may reject the claim, referring it to the relevant legal body. In these cases mediation is not permitted. Provincial courts In the capital of the providence Appeals challenging decisions issued by courts of first instance .trial and judgement in serious offences .and appeals against decisions from the inferior courts Higher court of justice of the autonomous community In the capital of the autonomous community Cassation appeals regarding the application of regional law (derecho foral) Complains on civil responsibility against for example, members of the regional government, etc… Supreme court Located in madrid Jurisdiction over cassation appeals and any other extraordinary appeals provided for by the law. Criminal investigating courts 12 magistrates appointed by the King, four of whom are proposed by the Congress, by a three‑fifths majority of its members; four are proposed by the Senate, with the same majority; two are proposed by the Government and two by the General Council of the Judiciary, and they elect a president and a vice-president from among their ranks. AREAS OF JURISDICTION The Constitutional Court hears cases in the manner and as determined by the law, including: ■ Appeals on matters of unconstitutionality against laws, regulatory provisions or acts with the force of law. ■ Appeals relating to violation of civil rights and liberties as listed in Article 53.2 of the Constitution (“amparo”). . ■ Constitutional disputes about competition between the State and the Autonomous Communities or disputes between the Autonomous Communities themselves. ■ Disputes between the constitutional bodies of the State. ■ Declarations on the constitutionality of International Treaties. MILITARY JURISDICTION, art. 117.5 CE. Regulation: art. 117.5 CE and LO 4/1987 (...). Functions: criminal military matters + disciplinary military matters. Composition: Juzgados Togados Territoriales/ Juzgados Togados Centrales/ Tribunales Militares Territoriales/ Tribunal Militar Central/ Sala Quinta del TS. System of joining their members and disciplinary competences: Ministry of Defence. Status: independence and imparciality. COURT OF AUDITORS (“tribunal de cuentas”) Regulation: art. 136 CE; LLOO 2/1928 y 7/1988. It is the supreme fiscal body for the accounts and economic management of the State and the Public Sector. COMPOSITION It comprises 12 members, Consejeros de Cuentas (auditors), six of whom are appointed by the Congress of Deputies and six by the Senate, and they enjoy the principles of independence, fixity of tenure and incompatibilities, in the same way as judges. FUNCTIONS Two functions are assigned to the Court of Audit: 1. The fiscal function, characterized by being external, permanent and consumptive, consists of checking whether the economic-financial activity of the public sector meets the criteria of legality, efficiency and economy. 2. The jurisdictional function is nothing other than the process of fiscal liability assumed by those who are in charge of the handling of public property, wealth or effects, and is intended to compensate public funds damaged by embezzlement, incorrect, incomplete or non- justification, or by other causes or actions COURTS OF CUSTOMARY LAW Regulation: Art. 125 of the CE; art. 19 LOPJ. From 2009 they are part of the intangible cultural heritage of humanity. TRIBUNAL DE LAS AGUAS DE LA VEGA VALENCIA (Court governing water in the lowland area of Valencia). The oldest known court in Europe. Composition: 8 syndicates of farm workers elected democratically by the managers of the Huerta Valenciana. Area of jurisdiction: equitable distribution of water between the various owners of the agricultural lands, the resolution of factual matters arising between the managers themselves and the imposition of the relevant sanctions for breaches of the Irrigation Regulations. CONSEJO DE HOMBRES BUENOS DE MURCIA (Council of the good men of Murcia). Institutionalized and regulated since 1849 as the supreme body for Justice in the fertile area of Murcia. Composition: President, a Secretary and five Members. Decisions issued by this court are final, fixed and enforceable. COURTS OF JUSTICE OF THE EUROPEAN UNION, international courts – art. 93 CE. Composition: 28 judges and 11 Advocates General. Functions: references for preliminary ruling (to assure an effective and uniform interpretation of the european law in the different MMSS; it is not just an opinion but a decision or judgment); actions for failure to fulfill obligations; actions for annulment; actions for failure to act; appeals. CFREU - Based in Luxembourg. EUROPEAN COURT OF HUMAN RIGHTS Since 1959. In almost fifty years the Court has delivered more than 10,000 judgments. Based in Strasbourg. Function: it rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Composition: at the moment 47 judges (one from each State form the Council of Europe). INTERNATIONAL CRIMINAL COURT Based in La Hague. Began functioning in 2002. Function: investigation and judgment of war crimes, genocide, crimes against humanity and crimes of agression. Composition: judges from the different countries who have signed the Rome Statute. LESSON 5. THE PROCEDURAL DEFINITION OF ACTION Abolition of private justice: prohibition of self-protection Therefore…the citizens must be given some rights (public rights) before the Jurisdition (State) Private relations: A vs B. Court: A goes before the Court to ask something from B. Fundamental procedural rights (civil procedure) 1. Right to access to the court. Right to ask for judicial protection. ¿Requirements? Be a citizen 2. Right to an effective protection and to a judgment on the merits. Content – right to the development of procedure, right to a judgment on the merits (a judgment made after consideration of the substantive issues of the case, through analysis and adjudication of the factual issues presented). Requirements – existence of procedural requirements and lack of procedural barriers. 3. Right to an action (right to a favorable judgment). Content – right to a favorable judgement. Requirements – substantive requirements: ■ Legal right or situation to be protected ■ Legal standing ■ Subsistence of the interest of the claim ■ Possibility to enact the judicial protection before the courts Claim – action affirmed Relation between right to an action and right to an effective protection: Opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed. Requirements: • the right to have knowledge of, and comment on, all evidence filed to influence the court’s decision; • the right to have sufficient time to familiarise oneself with the evidence before the court; and • The right to produce evidence. The desire to save time and expedite the proceedings does not justify disregarding such a fundamental principle as the right to adversarial proceedings (Nideröst-Huber v. Switzerland, § 30). Examples: • The right to adversarial proceedings must be capable of being exercised in satisfactory conditions: a party to the proceedings must have the possibility to familiarise itself with the evidence before the court, as well as the possibility to comment on its existence, contents and authenticity in an appropriate form and within an appropriate time (Krčmář and Others v. the Czech Republic, § 42; Immeubles Groupe Kosser v. France , § 26), if necessary by obtaining an adjournment (Yvon v. France § 39). • The parties should have the opportunity to make known any evidence needed for their claims to succeed (Clinique des Acacias and Others v. France, § 37). • It is for the parties to a dispute alone to decide whether a document produced by the other party or evidence given by witnesses calls for their comments. Litigants’ confidence in the workings of justice is based on the knowledge that they have had the opportunity to express their views on every document in the file (including documents obtained by the court of its own motion: K.S. v. Finland, § 22). • The data in the file were of decisive importance to the applicant’s case because the judges had to consider them to determine whether he was involved in criminal activity. The police file was the only evidence of the applicant’s alleged danger to society. Given that the applicant was not apprised of the evidence against him and did not have the opportunity to respond to it (unlike the police), the decision-making procedure did not comply with the requirements of adversarial proceedings or equality of arms and did not incorporate adequate safeguards to protect the interests of the applicant. The ECtHR found that this was in violation of Article 6 of the ECHR. 3. Equality of arms This is inherent in the broader concept of a fair trial. The requirements in a sense of fair balance between the parties applies in principle to civil as well to criminal cases. The parties are not initially equal. Maintaining a fair balance between the parties: it implies that each party must be afforded a reasonable opportunity to present his case (including his evidence) under conditions that do not place him at a substantial disadvantage within the other party. Examples: • It is inadmissible for one party to make submissions to a court without the knowledge of the other and on which the latter has no opportunity to comment. It is a matter for the parties alone to assess whether a submission deserves a reaction (APEH Üldözötteinek Szövetsége and Others v. Hungary, § 42); • However, if observations submitted to the court are not communicated to either of the parties there will be no infringement of equality of arms as such, but rather of the broader fairness of the proceedings (Nideröst-Huber v. Switzerland, §§23-24; Clinique des Acacias and Others v. France, §§ 36-37). Principles related to the nature of the rights involved in the proceedings. a. In the civil jurisdiction – Opportunity principle (dispositive principle). Determination of the party (claim) for starting civil procedure. If there is a claim then procedure should start. Then we talk about the object of the procedure, which is what is going to be discuss. Here the object is going to be set only by the allegations of the parties. All the parties could produce evidence. The judgement has to be coherent. b. In the criminal jurisdiction – Officiality principle. Parties as “victims”, ex officio. The object is set by the parties + ex officio (investigation and looking for evidence by the police for example). The evidence is given by the ex officio court only. The judgement has to be Exceptions: art. 747. Opportunity principle and principle of dispositive election In cases where the parties have the power (the domain) over the subject-matter of the proceeding. Ex: most civil cases, except family issues, marital status, capacity, etc.. Content: • The parties have full control over his substantive law and procedural rights involved in the cause and therefore can decide (free election) as to exercise or non-exercise of these rights (only when they consider it opportune/convenient). • The judge can not start the proceedings ex officio (“Nemo iudex sine actore”; “ne procedat iudez ex officio”). • One vested with the right of action is not compelled to sue: “Nemo invitus agere cogatur”. • The parties outline the object of the procedure with their allegations (factual and legal). • Once the procedure is started, the parties can decide in at any time to finish it: a) the claimer: provisionally -waiving their procedural right- or definitely -waiving their substantial right-; b) the defendant (acquiescence). Party-presentation principle • It is burden of the parties to lay before the court the material (factual and legal allegations and their means of proof) intended to serve for the determination of the true content dealt within the procedure. • The judge´s function limits to the reception of that material and to the application of the law. “Iudex judicet secundum allegata et probata partium” / “Ne procedat judex ex officio”/ “quod non est in actis non est in mundo”/ “da mihi factum, dabo tibi ius”/ “iura novit curia”. Consequences: - The judge is obliged to consider all the declarations submitted by the parties to their examination; - He is restrained form considering anything that the parties have not presented. Exceptions? Art. 429.1.II LEC?? Principle of Officiality (also known as necessary principle): • In cases where the parties are deprived of their power over the subject-matter of the proceeding; no parties´dispositive power because there is a predominant public interest. Example: most criminal proceedings. • Content: the jugde is obliged to start the proceedings when it is necessary according to the rule of law. It does not depend on the will of the parties involved. • Consequences: • The object of the project could not be outlined only by the parties´allegation. • The parties can not decide to put an end to the proceedings when started. Principle of judicial investigation: • Judges can investigate ex officio: he is not limited by the parties´allegations (only to protect the audience and equality principles). ORAL VS WRTITTEN PROCEDURES ORAL (art. 120 CE/ art. 229 LOPJ) Advantages Disadvantages Simplicity Worst quality of the judgments? Quickness Slow development of the procedure Direct contact of the judge with the case and the parties… Insecurity? (vid. Current art. 147 LEC) Flexibility Consequences: • Principle of unity of the cause: concentration (according to the legal order). A. Civil jurisdiction (art. 130 LEC): M-F; no public holidays; no August. Authorisation: art. 131 LEC. B. Criminal jurisdiction (art. 184.1 LOPJ): all days and hours are working for criminal investigation. Calculation of time periods (terms) Time periods/terms: art.132 LEC. Examples: a. Time period/limit: 1 month; 20 days b. Term: the 20th July 2019, Calculating time limits: art. 133 LEC; indicated by days, months or years: different calculation. Extension? No (art. 134 LEC). Submittal of written statements: art. 135.5 LEC. General rule: by electronic means: Requirements: authenticity; integrity; temporality; 24 h/ 365 days. Preclusion (art. 136 LEC). ART. 135 LEC: “Artículo 135 Presentación de escritos, a efectos del requisito de tiempo de los actos procesales 1. Cuando las oficinas judiciales y los sujetos intervinientes en un proceso estén obligados al empleo de los sistemas telemáticos o electrónicos existentes en la Administración de Justicia conforme al artículo 273, remitirán y recibirán todos los escritos, iniciadores o no, y demás documentos a través de estos sistemas, salvo las excepciones establecidas en la ley, de forma tal que esté garantizada la autenticidad de la comunicación y quede constancia fehaciente de la remisión y la recepción íntegras, así como de la fecha en que éstas se hicieren. Esto será también de aplicación a aquellos intervinientes que, sin estar obligados, opten por el uso de los sistemas telemáticos o electrónicos. Se podrán presentar escritos y documentos en formato electrónico todos los días del año durante las veinticuatro horas. Presentados los escritos y documentos por medios telemáticos, se emitirá automáticamente recibo por el mismo medio, con expresión del número de entrada de registro y de la fecha y la hora de presentación, en la que se tendrán por presentados a todos los efectos. En caso de que la presentación tenga lugar en día u hora inhábil a efectos procesales conforme a la ley, se entenderá efectuada el primer día y hora hábil siguiente. A efectos de prueba y del cumplimiento de requisitos legales que exijan disponer de los documentos originales o de copias fehacientes, se estará a lo previsto en el artículo 162. 5. La presentación de escritos y documentos, cualquiera que fuera la forma, si estuviere sujeta a plazo, podrá efectuarse hasta las quince horas del día hábil siguiente al del vencimiento del plazo. En las actuaciones ante los tribunales civiles, no se admitirá la presentación de escritos en el juzgado que preste el servicio de guardia”. Form Oral/written: art. 273.1 LEC Publicity / secrecy Language: art. 142-144 LEC Documentation Art. 145 LEC: Letrado de la Administración de Justicia as Certifyer of procedural acts. Documentation: arts. 146 & 147 LEC. Good faith: art. 247 LEC. EFFICACY OF PROCEDURAL ACTS The acts are procedurally effective if they comply with all the requirements studied until now. If not, defective. A. Absolute nullity (art. 238 LOPJ): “Los actos judiciales seran nulos de pleno derecho en los casos siguientes: 1. cuando se produzcan con manifiesta falta de jurisdiccion o de competencia objetiva o funcional. 2. cuando se realicen bajo violencia o bajo intimidacion racional y fundada de un mal inminente y grave.3. cuando se prescinda total y absolutamente de las normas esenciales de procedimiento establecidas por la ley o con infraccion de los principios de audiencia, asistencia y defensa, siempre que efectivamente se haya producido indefension”. How could it be examined? • ex officio (arts. 240.2 & 243 LOPJ) • by the parties (appeals). Exceptional action to declare null and void (“incidente de nulidad de actuaciones) (arts.240 & 241 LOPJ and 227 LEC): when there is no possibility of appealing (subsidiarity)and the lack of defence is proven. Previous step to the Constitutional Court (writ of protection) B. Relative nullity. No exam ex officio. C. Procedural irregularity. LESSON 10. PROCEDURAL DECISIONS AND REMEDIES PROCEDURAL DECISIONS 1. Judicial decisions: 1.a.Court rulings (“providencias”): art. 206.1.1º LEC. Procedural matters requiring a judicial decision. Skeleton motivation required (art. 208.1 LEC). 1.b.Judicial orders/decrees (“autos”): art. 206.1.2º LEC. Important procedural matters. Examples in art. 206.1.2º LEC. Motivation required. 1.c.Judgments (“sentencias”): art. 206.1.3º LEC. On the merits. Motivation required. 2. Counsel of the Administration of Justice´s decisions: 1.d.Proceedings (“diligencias”): art. 206.2.a) LEC. 1.e.Decrees (“decretos”): art. 206.2.b) LEC. ESTRUCTURE OF JUDGMENTS, art. 209 LEC 1. Heading (names of the parties, names of the attorneys and subject matter of the proceedings). 2. Record of the facts (parties´ claims, facts on which are based, evidence submitted). 3. Fundamental points of law. 4. Verdict: pronouncements corresponding to the parties’ claims. TYPES OF PROCEDURALL DECISIONS, art. 207 LEC Interlocutory / definitive Final (when they have res iudicata effect) or non final decisions EFFECTS OR PROCEDURAL DECISIONS 1. Invariability (art. 214 LEC) but CLARIFICATION, RECTIFICATION, CORRECTION AND COMPLEMENT (arts. 214 and 215 LEC). 2. Binding effect. 3. Enforceability. 4. Res iudicata (when they are final). CLARIFICATION, RECTIFICATION, CORRECTION AND COMPLEMENT, arts. 214 and 215 LEC. • CLARIFICATION: in case of the existence of uncertain concepts within the decision. • RECTIFICATION: in case of material errors and arithmetical mistakes. • CORRECTION: in case of general omissions and defects. • COMPLEMENT: to overcome omissions of pronouncement of some of the allegations introduced by the parties. PROCEDURAL APPEALS 1. Definition: legal instrument to challenge a procedural resolution. 2. Requirements: 2.a.A damage/harm produced to one of the parties. Artículo 161 Comunicación por medio de copia de la resolución o de cédula “1. La entrega al destinatario de la comunicación de la copia de la resolución o de la cédula se efectuará en la sede del tribunal o en el domicilio de la persona que deba ser notificada, requerida, citada o emplazada, sin perjuicio de lo previsto en el ámbito de la ejecución. La entrega se documentará por medio de diligencia que será firmada por el funcionario o Procurador que la efectúe y por la persona a quien se haga, cuyo nombre se hará constar. 2. Cuando el destinatario de la comunicación sea hallado en el domicilio y se niegue a recibir la copia de la resolución o la cédula o no quiera firmar la diligencia acreditativa de la entrega, el funcionario o procurador que asuma su práctica le hará saber que la copia de la resolución o la cédula queda a su disposición en la oficina judicial, produciéndose los efectos de la comunicación, de todo lo cual quedará constancia en la diligencia. 3. Si el domicilio donde se pretende practicar la comunicación fuere el lugar en el que el destinatario tenga su domicilio según el padrón municipal, o a efectos fiscales, o según registro oficial o publicaciones de colegios profesionales, o fuere la vivienda o local arrendado al demandado, y no se encontrare allí dicho destinatario, podrá efectuarse la entrega, en sobre cerrado, a cualquier empleado, familiar o persona con la que conviva, mayor de catorce años, que se encuentre en ese lugar, o al conserje de la finca, si lo tuviere, advirtiendo al receptor que está obligado a entregar la copia de la resolución o la cédula al destinatario de ésta, o a darle aviso, si sabe su paradero, advirtiendo en todo caso al receptor de su responsabilidad en relación a la protección de los datos del destinatario. Si la comunicación se dirigiere al lugar de trabajo no ocasional del destinatario, en ausencia de éste, la entrega se efectuará a persona que manifieste conocer a aquél o, si existiere dependencia encargada de recibir documentos u objetos, a quien estuviere a cargo de ella, con las mismas advertencias del párrafo anterior. En la diligencia se hará constar el nombre de la persona destinataria de la comunicación y la fecha y la hora en la que fue buscada y no encontrada en su domicilio, así como el nombre de la persona que recibe la copia de la resolución o la cédula y la relación de dicha persona con el destinatario, produciendo todos sus efectos la comunicación así realizada. 4. En el caso de que no se halle a nadie en el domicilio al que se acuda para la práctica de un acto de comunicación, el secretario judicial, funcionario o procurador, procurará averiguar si vive allí su destinatario. Si ya no residiese o trabajase en el domicilio al que se acude y alguna de las personas consultadas conociese el actual, éste se consignará en la diligencia negativa de comunicación, procediéndose a la realización del acto de comunicación en el domicilio facilitado. Si no pudiera conocerse por este medio el domicilio del demandado y el demandante no hubiera designado otros posibles domicilios, se procederá de conformidad con lo establecido en el artículo 156” ELECTRONIC MEANS 1. When obliged by the law (legal profesionals: see art. 273 LEC) or when selected by the parties. 2. Guarantees: art. 162.1 LEC: a) authenticity; 2) integrity; 3) temporality of the comunication. The electronic signature complies with these guarantees. WHEN DO WE USE EACH ONE OF THE METHODS OF SERVICE OF DOCUMENTS? a. When represented by solicitor: via solicitor, except for the initial summons or order to attend (first appearance). b. For the parties not represented by solicitor but if the address is well known, via b and c. c. For witness, experts or other third persons (art. 159 LEC): via b and c. d. When, after all kind of investigations, it is not possible to find the defendant´s address or when it is in the Central Civil Defaulters Registry (art. 157 LEC), via d. ADDRESS OF THE DEFENDANT? Concept of address (155 LEC) 1. Burden of the claimant: the one initially designated by the claimant (art. 155.2 LEC) – defendant´s residence, work… (art. 155.3 LEC). 2. When unable to designate it, investigation by the “Letrado de la Administración de Justicia” (art. 156 LEC). 3. When no success, notice on board (art. 164). EFFICACY OF THE NOTICES Art. 166 LEC: 1. “Notices which are not made in accordance with the provisions in this chapter and may lead to the lack of proper defence shall be null and void. 2. However, when the person notified, summoned or ordered to attend is aware of the case and fails to report the nullity of the notice at his firts appearance before the court, from that time, the notice shall take full effect, as if it had been served in keeping the law”. LESSON 14. TYPES OF PROCEEDINGS There are 2 ordinary declarative proceedings: • Ordinary proceeding (art. 399 et sec. LEC) • Verbal (oral) proceedings (art. 437 et sec. LEC) MODIFIED 42/2015, 5 OCTOBER And 1 enforcement proceeding (art. 517 LEC) How we select the appropriate track? – art. 248.3 LEC 1. Attending the matter at issue 2. Attending the amount of the claim ORDINARY PROCEEDINGS First steps: 1. Claim (399 LEC) + procedural documents (1. power of the attorney evidencing the representation; 2. documents that certify the amount of the claim; 3. documents evidencing the representation of one of the party, if needed) + documents on which the plaintiff bases his claim. 2. Exam of the claim by the Counsel of A. J. 3. Admission of the claim and notification to the defendant asking him to answer within a 20- day term. 4. Possible defendant´s behaviours: a) Admitting the claim. b) Opposing the claim. c) Introducing a new claim (“Counterclaim”). d) Motion to jurisdiction (within the first 10 days) e) No action: declaration of default. Preliminary hearing: 1. Subsistence of the conflict? Attempt of conciliation or mediation (art. 415 LEC). 2. Examination of procedural questions (art. 416 LEC): a) lack of capacity or representation; b) res iudicata or lis pendens; c) lack of due joint litigation; d) inappropriateness of the proceedings; e) legal defect in the way the claim or counterclaim has been filed due to a lack of clarity or accuracy with regard to determing the parties or the plea to be deduced. 3. Aditional and clarifying pleas (art. 426 LEC) (+filing new documents). 4. Stance of the parties regarding documents, opinions and reports submitted by the other (art. 427 LEC). 5. Establishing the facts at issue (art. 428 LEC). 6. Proposition and admission of evidence (art. 429 LEC). 7. Setting a date for the trial (art. 429 LEC). Hearing: 1. Taking the evidence, following the order of art. 300 LEC. 2. Conclusions of the facts at issue and the evidence supporting their version of the facts. 3. Presentation fo their legal arguments supporting their positions. Judgement: 1. 20 days after the end of the trial (art. 434.1 LEC). 2. Final proceedings (“diligencias finales”): art. 435 LEC: only in exceptional cases (f.ex.: where any of the evidence admitted has not been taken for reasons not imputable to the party that proposed it or if the taking of new or newly known evidence is useful and relevant). ORAL PROCEEDINGS First steps: translate your statements, to hire a lawyer in the State where proceedings take place or to travel to court hearings. International jurisdiction of the Spanish courts: European provisions and the art. 22 LOPJ. States must limit their own jurisdiction: art. 21 LOPJ: Spanish jurisdiction is delimited by the international treaties signed by Spain, by the EU laws and the Spanish laws, except the cases of judicial or enforcement immunity provided in the Spanish and international laws. Spanish regulation of its jurisdictional limits: a. International provisions (international conventions and treaties, EU laws). b. National provisions (art. 22 LOPJ). Regulation 1215/2012, 12 December (derogates regulation 44/2001, 22 December 2000) Scope of application: • Material: civil and commercial matters whatever the nature of the court (art. 1). Ex.: family matters, bankruptcy proceedings, social security. • Territorial: all MMSS except Denmark • Temporal: applicable since 2012 Characteristics of the grounds of jurisdiction: • They must be “highly predictable” to ensure legal certainty and avoid the possibility of the defendant being sued in a court of a MS which he could not be reasonably have foreseen. • Generally based in the principle of the defendant’s domicile. Except in few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. Grounds of jurisdiction: • Exclusive jurisdiction, art. 24. • Prorogation of jurisdiction, arts. 25 and 26. • Special grounds of jurisdiction, arts. 7 to 23. Ex.: insurance, consumer matters. • General ground of jurisdiction: defendant’s domicile, art. 5. Forum generalis. Prorogation of jurisdiction: • Implied/tacit, art. 26: if the defendant enters on appearance before that court. • Express, art. 25: when the parties have agreed that a court of a MS are to have jurisdiction to settle any disputes which have arisen or which may arise. LIMITS – exclusive jurisdiction International jurisdiction and art. 22 LOPJ (reformed by law 7/2015, 21 July) Art. 22 establishes that Spanish Courts will have jurisdiction in the following cases: a. In some cases provided in art. 22 LOPJ, similar to the ones in the regulation 1215/2012 (exclusive jurisdiction) b. When the parties implicitly or explicitly submit the case to the spanish jurisdiction (art. 22 bis LOPJ). c. Finally, if none of the above criteria may be applied, Spanish Courts may also have jurisdiction in other cases provided in art. 22 quarter and quinquies (special grounds of jurisdiction) d. Foro generalis: When the defendant’s domicile is located in Spain (art. 22ter LOPJ). Procedural remedies in case of finding the lack of jurisdiction (art. 65.2 LEC = procedural dismissal) • Regulation 1215/2012 • Spanish law: control ex officio (art. 38 LEC, by the counsel of the AJ and the judge), motion to jurisdiction as provided in arts. 39 and 63 et sec. LEC Lack of jurisdiction by these means, art. 65.3 LEC: the courts should abstain from hearing the case, informing the parties of the bodies before which they shall exercise their rights. Jurisdiction rationae materiae: art. 9.2 LOPJ, in addition to the matters of civil nature, civil jurisdiction will hear of all those that are not attributed to another jurisdiction. LESSON 16. OBJECTIVE AND FUNCTIONAL JURISDICTION Criteria to define/determine objetive jurisdiction (established in the order they should be applied): 1. The defendants´special condition: is there any special rule taking into account the special civil service position of the defendant? (see claims of civil liability in arts. 56.2 and 3 LOPJ, 61.13 LOPJ and 73.2.a and b LOPJ). 2. The matter at issue: is there any special rule ratione materiae? See arts. 86 ter and 87 ter LOPJ. 3. The amount of the claim (general criteria): a) up to 90 euros; b) more than 90 euros. General rule: Courts of First Instance (art. 45 LEC) - new: also the insolvency proceedings from natural persons who are not a company (art. 45.2.b LEC). Other courts: • Judges of the Peace (Lay Judges): civil matters of an amount not exceeding 90 euros and not included in the cases referred in art. 250.1 LEC. • Commercial Courts (art. 86ter LOPJ). • Courts dealing violence against women (art. 87ter.2 LOPJ). • Supreme Court or High Court of Justice of the Autonomours Communities (arts. 56.2 and 3 LOPJ and 73.2 LOPJ). Procedural remedies in case of finding lack of jurisdiction (same as the upper) motion to jurisdiction NO. Functional jurisdiction: rules that define the body who will hear the case based in the body who took care of the first instance. Art. 61 LEC. LESSON 17. TERRITORIAL JURISDICTION, MOTION TO JURISDICTION AND DISTRIBUTION OF CASES. Among all the courts with jurisdiction for hearing the first instance (in Spain), which should know the case? After applying rules of objective jurisdiction, you should apply rules of territorial jurisdiction, arts. 50 to 60 LEC. Grounds of jurisdiction: 1. Exclusive jurisdiction, art. 54.1 LEC. Is there any exclusive jurisdictional rule that should be applied in the case? Imperative nature rules: art. 54.1 LEC linked with art. 52.1.1º and 4º to 15º and 52.2 LEC + other provisions including mandatory/imperative rules. Ex: 545; 684; 769; 813; 820 LEC. 2. Prorogation of jurisdiction, art. 55 and 56 LEC. 2.a. Implied/tacit (“sumisión tácita) (art. 56 LEC): if the defendant do not challenge jurisdiction or file the motion the jurisdiction late or when he do not appear before the court. 2.b.Express (art. 55 LEC) (“sumisión expresa”): when the parties reach an agreement on territorial jurisdiction. Limits: a) respect of objective jurisdiction rules; b) it is not valid in contracts of adherence or containing general conditions imposed by one tof the parties. (art. 54.2 LEC). Limits: they could be applied when there is no rule of exclusive jurisdiction applicable for the case. 3. Special grounds of jurisdiction, art. 52 LEC. 4. General ground of jurisdiction: defendant’s domicile, art. 50 and 51 LEC 2.c.Natural person art. 50 LEC 2.d.Legal entities art. 51 LEC Procedural remedies in case of finding the LACK OF TERRITORIAL JURISDICTION • Ex officio: art. 58 LEC: only when the ground of jurisdiction is imperative. Only immediately after the claim has been brought to the court. Why? See art. 238.1º LOPJ. • By request of the parties: motion to contest jurisdiction (art. 59 LEC). Motion to contest jurisdiction Arts. 63 to 65 LEC. What for? Challenge all types of lack of jurisdiction, except functional. 4. Those who legally represent legal persons shall appear. 5. Estates or separated estates referred to in number 4 of paragraph 1 of the preceding article shall appear in court represented by those who manage these, pursuant to law. 6. The entities lacking personality referred to in number 5 of paragraph 1 of the preceding article shall appear in court represented by those to whom the law attributes this representation. Ex: art. 13 LPH: President of the residents´association. 7. With regard to the entities with no personality referred to number 7 of paragraph 1 and in paragraph 2 of the preceding article, the persons who, in fact or due to agreements made by the entity act on its behalf with regard to third parties, shall appear in court. 8. The limitations to the capacity of those in temporary receivership and the manners to make up for them shall be regulated by what is established in Bankruptcy Act. Natural person: Full capacity: a) persons of legal age; b) emancipated; not incapacitated. Limited capacity: when they are declare incompetent ex art. 200 CC but they can appear before the courts by themselves in certain cases or in cases of prodigality (art. 298 CC). They do not need legal representants but any kind of assistance. No capacity: persons under 18 (not emancipated) and incompentent. Representation: 1. Legal: for natural persons, arts. 7.2 and 7.3 LEC; parents or guardians. See also art. 8 LEC: integration of the legal capacity to sue or to be sued. 2. Necessary: for legal persons. It is the legal representant of the entity, art. 7.4 LEC. 3. Technical: “procurador” (and legally advised by a lawyer). Need of empowerment (before a notary or apud acta). Functions: art. 23 LEC. Technical representation and legal advice: “Procurador” (court representative?). • His presence (compulsory or not): art. 23 LEC. Effect on legal costs (art. 32.5 LEC). • Functions/duties: art. 26 LEC. File the briefs, receive the notices, appear in procedural acts on behalf of the party + (new) ability to certify (art. 23.5 LEC). • Need of empowerment (arts. 24 and 25 LEC). • Liability • Rights: a) provision of funds (art. 29 LEC); b) payment (art. 34 LEC). Lawyer • His presence: art. 31 LEC. • Functions/ duties. • Liability • Rights: fees – “honorarios”- (art. 35 LEC). Remedies in case of lack of capacity: Ex officio: art. 9 LEC: “The lack of capacity to be a party and the lack of the legal capacity to sue or plead may be ex officio appreciated by the court at any time during the proceedings”. By request of the parties: a. By the defendant: a.a. ordinary proceedings: alleged in the answer; decide during the “Audiencia previa” a.b.oral proceedings: alleged in the answer; decide during the “vista”. b. By the claimant: a.c. ordinary proceedings: alleged and decide in the “audiencia previa”; if it is not made up for, declare in default a.d.oral proceedings: “vista”. LESSON 19: LEGAL STANDING Condition of a subject to be able to sue and be sued in connection with the object of the procedure Condition of a subject because of their position within a certain legal situation (lagal relation or interest) that justifies, accorfing to the law, giving them the reason/ a favorable judgement (active legal standing) or being condemned to fulfill a certain judicial decision. Differences between capacity and legal standing: a. capacity refers to a condition not linked to a particular proceeding. It is a procedural requirement. b. Legal standing is a requirement on the merits of the case (requisite of the action). Types of legal standing: Active/ passive Ordinary: Art. 10 LEC: “Legitimate parties shall be those who appear and act in court as parties to the judicial relationship or the matter in dispute”: those who have action because of their position in a certain legal relationship (holders of the right) or because of their particular interest (ex. declaring legal incapacity; divorce). Extraordinary: Art. 10.2 LEC: The cases in which, by law, standing is attributed to a person other than the party are excepted. In these cases, somebody -who is not the holder of the right (or the interest)- brings personally the claim before the court acting other´s people rights. Types: a. by substitution: when the person has a personal interest in the issue b. by representation: when he acts only because of other´s people´s rights. Careful: they are not party´s representatives (they are the party themselves). Legal standing by substitution: Ex.: art. 1111 CC: “After pursuing all property in the debtor’s possession to enforce their debts, creditors may exercise all rights and remedies of the debtor for the same purpose, excepting those which are inherent to his person; they may also challenge any acts which the debtor has performed in fraud of their right”. A (creditor) can exercise the action against the debtors (C and D) of his debtor (B): A substititues B in the proceedings. A is the party, not B. Legal standing by representation: Associations of consumers and users as parties . Article 11 LEC. Standing for the defence of the rights and interests of consumers and users. 1. Notwithstanding the individual standing of those damaged, the legally constituted associations of consumers and users shall be legitimised to defend the rights and interests of their members and of the association in court, as well as the general interests of consumers and users. 2. When those damaged by an event are a group of consumers or users whose components are perfectly determined or may be easily determined, the standing to apply for the protection of these collective interests corresponds to the associations of consumers and users, to the entities legally constituted whose purpose is the defence or protection of these, and the groups affected. 3. When those damaged by an event are an undetermined number of consumers or users or a number difficult to determine, the standing to lodge a claim in court in defence of these diffuse interests shall correspond exclusively to the associations of consumers and users which, in accordance with the law, are representative. Trade unions and certain associations for the defence to equal treatment of men and women (art. 11 bis LEC). Examination of the lack of legal standing: At the begining of the proceedings? Could be the legal standing examined (ex officio) at the beginning of the proceedings? Or even during the development of the proceedings? • Only in certain cases when the lack of assertion or proof of legal standing is required (art. 266 LEC). In these cases this lack is address as a lack of a procedural requirement. By request of the parties, in the answer to the claim, through a material exception (on the merits of the case). Legitimate interest: The second requirement of the action. “Legitimate” because it is protected by the law. It could be understand as a current need of judicial protection. See art. 22 LEC: end of proceedings in advance then this interest has disappeared LESSON 20: MULTY-PARTY PROCEEDINGS (JOINT OF PARTIES) When one or both parties are made up by more than one person. Ex.: group of 5 consumers affected by a food poisoning. A claim against a couple who did not complied with their contractual obligations. Regulation in the LEC: art. 12. Joint litigation.