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19 Apr 2011 7:52 AM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

 I will ask someone at the team to add those cases where money has been received. Take into account that the lack of actual refund is more a matter of non existence of Bank Guarantees and  economic status of companies than of real justice being achieved. There are cases with Bank Guarantees that are solved with money included in 2-6 months.

More to be blamed against Banks than against Justice in our opinion.

Regarding your questions, please find answers in bold green below:

  • Is the Spanish legal system in line with all European standards? Mostly yes, with the lacks and breaches of every legal order.
  • Do you consider those fighting within the Spanish legal system have been compensated “in good time for their loss”? No, I cannot consider this, but again I would not just blame Courts for this as explained above.
  • If Spanish lawyers are "frequently against the "system"  what are you doing right now as a professional body to ensure that decent and reasonable timescale constraints within the judicial system exist and are adhered to, which after all, as we all know to our cost, is an absolute basic requirement for true consumer protection?Justice is being under modernization in Spain and lawyers as a body are contributing to this process.

 

 



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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19 Apr 2011 11:28 AM by goodstich44 Star rating in northampton. 1648 posts Send private message

maria

if we don't blame the courts for their two year court delay, then who do we blame?

' modernisation'  might take 2 years, 5 years, 10 years?  What are lawyers as a body, doing 'now' to change the system that means a court win is as good as useless for many of us?

just waiting isn't working maria, we need action now from lawyers as a body to support the details in the petitions. Anthing else is really little more than collusion by lawyers as a body with the current system, and all its failure to those so clearly cheated. 

 





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20 Apr 2011 8:00 AM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

I would think that an independent  european association of  lawyers would be perfect for this...  I need to do some research to see if there is already anything existing.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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20 Apr 2011 9:36 AM by goodstich44 Star rating in northampton. 1648 posts Send private message

maria

that sounds an interesting idea.  I would like to see that extended to courts as well. The Spanish courts have clearly failed many of us through their delays. These cases need hearing by a independent courtroom worthy of its position, and when a court is proven guilty of unnaceptable delay, then they should be made responsible for instant payment of  the sum they awarded the victim of their delay.  If the Spanish courts and justice system as a whole wont put their house in order now, then I really feel it should be taken out of their hands.  Anthing else is just continued crime against the victims by those in Spain we have to rely on for justice????.





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20 Apr 2011 10:09 AM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

Goodstich:

 

There are procedures already in place for these types of delays ( see post below). I was thinking on a kind of  "european think tank" of lawyers for the promotion of speedier justice so these lawyers can effective influence politicians for measures to be taken. 

 

Legal tip 149. Responsibility of the administration of justice for undue delays. 
22 September 2009 @ 13:23 

 

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.
 
Hojas de liquidámbar by Martius at Flickr.com


_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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20 Apr 2011 10:13 AM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

 Maybe through this?

http://www.ccbe.eu/index.php?id=375&L=0

I has just contacted them for some suggestions, let´s see what they answer. I will keep you updated.

Best,

Maria

 

 






This message was last edited by mariadecastro on 20/04/2011.

_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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20 Apr 2011 10:54 AM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

 http://www.eyeonspain.com/blogs/costaluz/5447/legal-tip-506-an-interview-to-a-spanish-judge.aspx

Legal tip 506. An interview to a Spanish Judge 
20 April 2011 @ 10:40 

 I have google-translated ( I wish I could translate at that speed), this interview I received in an online Law Journal. Bolds and underlines are made by me. 

Interviews
April 18, 2011 NUNO MIGUEL COLLADO, MEMBER OF THE GENERAL COUNCIL OF THE JUDICIARY
"The Spanish judges are not the problem"

Miguel Collado is a very active voice in the Supreme Judicial Council. It belongs to the Judicial School Committees on Relations with the Autonomous Communities and Social Communication, precisely establishing the communication policy of the judiciary.About the image that has the Justice and that we should have spoken with the voice Collado, who offers a dynamic, rather than a snapshot.

Legal Today

How, people taking justice as prepared for communication like you, our citizens have the image of a slow and antiquated justice? The latest CIS survey says that 70 percent of the Spanish think that justice is malfunctioning or medium.

You yourself have put your finger on the pulse. We move through prints. Justice does not have a single image, a single face. It has many different faces. Is multifaceted. In sociological studies being done, since 1984, Professor Jose Juan Toharia, has determined that only 25 percent of citizens had any direct contact with the Administration of Justice. That is, one in four.

Where did the rest forge their opinions?

From what they tell other people and, of course, the media. Things are not black nor white but gray. Look, if we do a bit of memory and we go back to 2007, the trial of 11-M, and remember the image being projected through television for four months and a half that the hearing lasted, the public thought we had just the opposite. A modern justice and updated.And so Metroscopia reflected in a survey conducted for the National Council of Notaries then, on the level of public confidence in institutions, and published in September 2007.Spanish court received a note from a 5.9, the highest in five decades, on a scale of 0 to 10. The highest note was received by the Crown, with a 7.1.

There was public praise by the  U.S. and European judges, and as he had conducted the trial and spoke of the "Spanish way" of doing things in Justice. Months later, a few other cases occurred blew that image into the air. What was the true image of Justice? "The trial of 11-M or later surfaced?

Perhaps the answer lies in the middle, do not you think?

I agree. The answer is usually always in the middle of things. And I want to clarify two things: first, the Spanish courts are not the problem, and second: we need more modern media.

Some critics to the work of the media coverage of court cases hold that the problem is more bad press than bad image. What do you think?

Justice that works well is not a  new, it has to work well. For that we are paid and so it should be. Good news is often viewed as advertising or publicity for the institution.Therefore, always have more bad news than good output. Bad news is "news" par excellence. In part what you say is true, but I think you have to kill the messenger.

The problem of justice is, in part, ignorance that the public has of it. Love what is known and what is neglected is unknown. The Court has recognized that the communication and, special education are important assets that must be given special attention.

You mentioned education. Have you started the CGPJ a program dedicated to young people, citizens of the future?

Of course, called "Education in Justice" and is designed for students of ESO and Baccalaureate. We have implemented most of Spain and the results are very satisfactory. "Education in Justice, in a nutshell is an introduction to the world of Justice through a tool that the Council of Europe has been praised and identified as the best: simulation, role-playing game. They mock trials in which students they stage an actual case, which has been previously scripted. Each one of the boys assume the roles of defense attorneys, prosecutors, defendants and expert witnesses. The only truth in the representations that are made in schools and colleges is the judge, a judge of truth, which is then subjected to questions from the students. I have had the experience of "Education in Justice" and is one of the most rewarding of my career. We are currently preparing to relaunch for next year, with new scripts, attached to the present. One of the challenges of justice through education of the young.

Worried about the illness and some media sensationalism? Do not believe could help the judiciary know better?

The role of the media is not to educate the public but to inform or entertain, using headlines and original as possible approaches to get their attention. So run, that is their nature. We can not fool us. It would be desirable that the reporters who are dedicated to cover the justice sector have a thorough knowledge of laws, the functioning of the courts.Since the Council we have made great efforts in recent years organizing workshops christened the "Report on Justice" for journalists covering courts in different regions.Free workshops are taught by experienced faculty judges. These experiences have paid off. Have high levels of quality of information, but things can change suddenly. Take your time. Although it should be noted that there are great journalists in Justice to do a great job.

What they have done something to raise awareness among judges about the media?

Judges have to learn to deal with the media, with journalists. There are two institutions that are essential for democracy, justice and the press. There can be no democracy without an independent judiciary and a free press, without their roles as counterweights to the executive. This will have very clear, therefore, for two years we have been working with our judges in the different regions, in what we called "Media Training Workshops."Through these workshops will introduce the knowledge of the media, their functioning and their nature. We teach them to communicate as effectively as possible. Judges can not turn its back on society. We can not afford that luxury.

To you, members of the CGPJ, they are perceived as politicized and this affects the image that society has of judges. Can we end this very negative?

There is a confusion that needs to be clarified and that is the essence of the problem.The judiciary is the Supreme Judicial Council. The Council is the governing body, whose main mission is to ensure the independence of judges and manage Spanish judiciary.

The Council does not make judgments. Does not do justice. The Council can not give any indication of any judge to put a sentence in one way or another, or to open an investigation or so and so Somebody's niece or for the closing. Spanish judges have a high degree of independence and impartiality, similar to that of the world's most advanced countries, among which, undoubtedly, we are. That is reality.

Our main function is to provide the public justice to the citizens, which is where our legitimacy emanates. That judges and magistrates have all the necessary means to carry out their work. And this sense, as a Council, we participate in a direct and decisive management of the Spanish Justice Administration, ensuring, above all, judicial independence. That is our beacon, our North and our essence of being.




_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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20 Apr 2011 11:29 AM by ads Star rating. 4134 posts Send private message

Maria,

We have queried this detail before but when it states "The claim deadline expires one year after the date the damaging event occurred or caused its negative effects.  ", when exactly does this claim deadline start?

Is it only at the point when all other legal options have been exhausted?

For instance, If there are still unresolved legal actions outstanding (developer appeals, creditor meetings, embargoes, etc) then does this mean that the client will still retain the option to process a claim once these legal processes have been resolved?

If so, then without time constraints in place on the outstanding legal processes this becomes a complete impasse, as the client would still have to wait indefinitely for these legal options to become exhausted before being able to make a claim!! So is this a realistic solution?

Surely what is needed are realistic time contraints in place to act as automatic means of accountability, such that once these have been breached a client could immediately process a claim?

Re the BG claims, Keith has made a very strong point for "simple" cases to be taken out of the court system via the use of a Financial Ombudsman, who would have the power to force the Bank to issue refunds (as would be the case in the UK). If the Ombudsman came down on the side of the bank only then would it go to court. If there was a Financial Ombudsman in Spain who had some powers then thousands of the BG cases would be dealt with there, and never darken the steps of the courts.

To quote Keith :

"That is why in the Petition text I talked about a fast track court system to deal specifically with BG cases.  It would be like an Ombudsman.  There would be no need for the ‘simple’ BG cases to get trapped in the general court system.  They could turn one court in each jurisdiction into a specific Bank Guarantee court.  Many of the cases are so simple and obvious."

Maria, sometimes simple solutions are the best solutions, so would this not go some way to relieving the courts of outstanding cases? Have you addressed this option with others within your profession?

As for your interview to Spanish Judge, please do not imply that this problem that we are facing is a fabrication of the media. It is all too real to those of us bound up in this nightmare. Justice is certainly not being applied for those caught up in the judicial delays, and each day that passes compromisies more and more innocent people. Until such time as we see true justice applied in the form of actual recompense as per legal judgements, then the justice system in Spain should remain under investigation.

Perhaps I have misunderstood?

 




 





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20 Apr 2011 11:57 AM by goodstich44 Star rating in northampton. 1648 posts Send private message

maria

''The claim deadline expires one year after the date the damaging event occurred or caused its negative effects''

This once again makes a mockery of justice for the reasons ads has mentioned.  It's a law not worthy of the paper it's written on if restrictions like this can mean the courts can get away with not doing their job properly.  Wrong is wrong by any other name and putting a time constraint on claiming on the courts crime is little more than a sick joke when the courts themselves are guilty of delays beyond all reason!!

Unless I've misunderstood the meaning of this, I don't think Spain's courts are fit for justice as long as they continue to act like this. This sort of ruling has nothing to do with justice, but everything to do with deception from those in a position of legal trust.





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