It is true that the much hyped financial and real estate crisis in our country has packed the courts but.... Should we be content with things as they are? Can we, lawyers, do something about it? Should we go to liability claims against the administration for delays in the administration of justice?
After a moment of reflection this morning, before our daily team breakfast with our guest these days, Rachael, the daughter of a customer who came to see how we work for a couple of days-thanks for your visit Rachael!; and before getting into the beautiful vortex of daily work, I conclude that everyone must deal with improving what is within their professional scope and potential, being realistic and maverick at the same time ... which, hum! It is not easy at all. That is maybe why it attracts me… fatally.
To lawyers, in defending the interests of our clients, is necessary to review the functioning of the judiciary, especially in this global world we live in now, where our foreign customers encourage us to overcome the “status quo” and aim for the best.
It is a difficult subject, but that's why we can not stay idle: the responsibility of the administration of justice for undue delays.
Let’s see what our Spanish Constitution (dated 1978) states in different related articles:
Article 24.1:
1. All persons are entitled to effective protection of judges and courts in the exercise of their rights and interests, without, in any case being victim of a lack of defence
Article 106.2:
Individuals, on the terms established by law, shall be entitled to compensation for any damage they suffer in any of their property and rights, except in cases of force majeure, whenever such damage is the result of the operation of public services.
And Article 121 states:
Damages caused by judicial error as well as those arising from irregularities in the administration of justice, shall be entitled to compensation from the State, according to law.
The high points of the entire task of requesting accountability to the judiciary by undue delays are four:
1* The determination of what constitutes "abnormal functioning" this has not been clarified by the Act and therefore must go to the specific case, its complexity, the performance of the parties ... and Case Law applicable.
2* The damage can be inflicted upon any type of property and rights, comprising also the moral damage.
3* There must be a clear cause-effect relationship between the activity of dispensing justice and the damage suffered by the litigant.
4* And the million-euros question: When is there a “ material impossibility” to act more effectively and expeditiously?
The best legal doctrine about the just-mentioned point (number 4) says that although it is true that in some cases there is an overwhelming overwork in court, this can not deprive the citizen's right to compensation if it causes damages.
We must not forget that the legal order assigns to the judiciary the duty to "promote all the necessary means" to exercise its function.
What is the procedure for these claims?
The request for compensation needs to be done before the Ministry of Justice under the regulations established in Articles 139 and following of the Law 30/1992 of November 26, amended by Law 4 / 1999 of 13 January, and Real Decree 429/93 of 26 March).
The claim deadline expires one year after the date the damaging event occurred or caused its negative effects.
Appeal against the decision of the Administration of Justice can be done before the Administration itself, if decided, and of course before Courts that prosecute the action of the government: the Contentious- Administrative Courts.
Applicable regulations
*Spanish Constitution, articles 24, 106.2 and 121.
* Law 6 / 1985 of 1 July, on the Judiciary: articles 292 to 297.
*Law 30/1992 of 26th of November on the Legal Regime of Public Administrations and Common Administrative Procedure, as amended by Law 4 / 1999 of 13 January.
*Royal Decree 429/1993 of 26 March, approving the Regulations of the Procedures for Public Administrations in terms of financial liability.