El blog de Maria

ads said:
Friday, September 12, 2014 @ 12:31 PM

Thank you Maria.

I would ask the wider question is Spain adhering to the rule of law and the principal of legal certainty, which sadly lies at the heart of this problem associated with adherence to Ley 57/68.

It would appear that inconsistency of final judicial rulings, those subsequently left unchallenged by the Supreme Court (due to monetary criteria/constraints restricting admission for appeal) are being brought into question here. i.e. final rulings, which have failed to respect inalienable rights and cancellation rights as defined in existing law Ley 57/68, with failure to recognise abusive clauses, illegal BG’s in all their guises, non adherence to provision of individual legal BG’s and identifiable secure Bank accounts to protect deposited monies etc, are going unchallenged and unreported/unmonitored in Spain.

The rule of law requires amongst other things that rules are clear and predictable and cannot be changed retrospectively (for example no retrospective time constraints should apply to inalienable cancellation rights as defined within existing law).

Likewise the rule of law requires recognition of equal treatment and equality before the law (why should an existing law not be CONSISTENTLY adhered to across different regions and different courts in Spain, and why isn’t the Supreme Court providing detailed guidance to ensure Ley 57/68 is adhered to in its entirety with equal respect for inalienable rights and cancellation rights and that all associated illegalities that should lead to cancellation of contract and return of monies are recognised?).

The rule of law also requires that regulatory proceedings should be conducted in a timely way that respects the due process of law, without time constraints that demonstrate favour or lack of parity, nor that place the consumer at further risk (as has been demonstrated during these lengthy and highly protracted legal processes during this last decade).

More importantly the question remains, has there been a systemic breakdown in Spain which has adversely affected the integrity and proper functioning of the institutions (in this case the Banks), or breakdown of mechanisms to ensure consistent adherence to existing law (in this case adherence to Ley 57/68 in its entirety)?

Keith Rule has identified that the Bank of Spain has failed in its duty to verify compliance with Banking regulations, and has failed to ensure that Banks and Savings Banks under its supervision comply with the "obligations imposed by LEY 57/68 on financial institutions"...... that “Banks have used purchasers unsecured deposit funds to lessen the exposure to the various developments". .... that "the Bank of Spain was the vehicle through which illegalities were performed."

With this in mind and given the inconsistency of judicial rulings and failure to consistently recognise associated illegalities performed through the Bank of Spain’s failure to adequately supervise compliance with the obligations imposed by Ley 57/68 on its financial institutions, isn’t this sufficient proof of systemic failure to adhere to the principal of legal certainty with strict adherence to Ley 57/68 in its entirety, with due recognition of inalienable rights and cancellation rights as defined therein?

At present Judges appear only bound by European Directives if they have been incorporated into Spanish Legislation, therefore given the current lack of direction by the Supreme Court to ensure legal certainty prevails with regard to adherence to Ley 57/68, isn’t the only way to gain consistency of legal rulings by proving systemic failure, upon which the European Commission can act?

To deal with this as individual cases each denouncing the above to gain European directives that could still be open to non-incorporation into Spanish legislation, is a loophole that sadly places the innocent offplan purchaser at continuing risk of inconsistent judicial rulings.

The European Commission can only act to ensure the rule of law is safeguarded following proof of systemic failure, as they do not deal with individual cases.

Shouldn’t these stark realities be brought to the attention of the European Commission? And would you assist in this regard Maria/Keith and be willing to provide support and assistance, which would in itself give credibility to these denouncements?

Given all of the above isn’t this the natural progression following Keith’s educative BG petition statement and text?

As a starting point, here's some details that I’ve already acquired from our local MEP which identifies the current European Commissioner for Justice and Fundamental Rights and Citizenship. Her name is Martine Reicherts (she replaced Viviane Reding who in March 2014 formulated a framework to safeguard the rule of law see http://europa.eu/rapid/press-release_IP-14-237_en.htm)

Surely this can't be left as a legal lottery with all the associated financial risks and stress on innocent offplan purchasers, not to mention the negative impact on faith in the Spanish justice system if this remains unresolved.

mariadecastro said:
Friday, September 12, 2014 @ 12:41 PM

Ads:
Again, congratulations for your insightful considerations.

Supreme Court is shortly deciding on important matters for Law 57/68 interpretation such as:

-Liabilities of Banks which received off plan deposits in special accounts. INterpretation of provision 1segundo of Law 57/68

After this important Court Decission we will be able to make a full analysis on how Higher Instance of Judicial interpretation in Spain is dealing with Banks liabilities out of Law 57/68.

We will of course keep you posted,

Cheers and have a great weekend!

Maria

ads said:
Saturday, September 13, 2014 @ 12:44 PM

Dear Maria,

I have to ask the question, will this Supreme Court decision result in more major delays (i.e. years) before directives from the Supreme Court reach the First Instance Courts and Provincial Appeal Courts, given that no First Instance Court or Provincial Appeal Court is duty bound to follow any case law until there are two identical sentences issued by the Supreme Court on exactly the same subject?

Shouldn’t we be reporting all these facts relating to the rule of law and adherence to legal certainty to the European Commission immediately, rather than wait for an indefinite period?

Many purchasers have already been subjected to a decade of seeking justice and the thought of further prolonging this process by years, or remaining at risk of inconsistent rulings, until such time as the Supreme Court and judiciary recognise Ley 57/68 in its entirety, doesn’t bear thinking about ….

antifreeze said:
Saturday, September 13, 2014 @ 5:34 PM

It seems very difficult to bring co-ordinated action to inform MEPs - individuals are subjected to inequality in treatment which makes the process more uncertain - there is no consistency. Who should inform the higher echellons so that EU directives can be incorporated? Lawyers do not - result - clients have to go through a whole process - if directives were issued, there would be fewer cases going through courts beyond the first instance hearing.