F.A.Q.
My lawsuit has been on hold for a long time and nothing is happening. What can I do and who should I go to about it?
The right to a speedy trial is guaranteed by the Constitution in its article 24.2, so in case of undue process of law you should file a complaint at the Court, stating that this fundamental right has been breached. If after a reasonable period of time you have not obtained an answer, file a complaint again and state that article 24.2 CE has been breached.
If no answer is yet obtained, you should apply for a declaration of fundamental rights to the Constitutional Court (Tribunal Constitucional), claiming that the right guaranteed by article 24.2 CE has been infringed. These legal actions must be carried out by a Lawyer (Abogado) and a Barrister (Procurador), unless you are defending yourself in the lawsuit. A declaration of fundamental rights at the Constitutional Court requires the action of both legal professionals.
Which rulings take preference, the Supreme Court’s or the Constitutional Court’s?
They are different courts. The former –the Supreme Court– is the highest body of law in ordinary jurisdiction and its rulings establish law of precedent. Now, should those rulings infringe any fundamental right or fail to provide due relief to the infringements committed by lower Courts, an appeal for a declaration of fundamental rights may be filed at the Constitutional Court. This Court shall not retry the case, but shall merely reverse the ruling of the Supreme Court, if such ruling indeed caused a breach of rights as guaranteed by articles 14 to 29 and 30.2 of the Constitution. Then it will require that the Supreme Court issue a ruling in accordance with the above fundamental rights.
May I access the record of my trial and have it photocopied at court?
In accordance with articles 234 and 235 of the Spanish Ley Orgánica del Poder Judicial, the parties to the suit have the right to access any documents and files which are part of the record of trial, and any other parties who can certify a legitimate interest in the suit may also access the record. This right was established by the Spanish Pleno del Consejo del Poder Judicial in one of its first agreements, dated 15th November 1989.
If my case was retried and a judge ruled in my favour, may I claim damages to the judge who aggrieved me with a previous ruling against me?
Judges have long tried to avoid responsibility for their mistakes by claiming that the course of appeal to wrong rulings acts as fair remedy for grievances, but judges –just like other citizens– must answer for the harm they cause, even if a later ruling amends such harm through retrial or appeal to the Supreme Court.
If the final judgement states that there was conscious breach of the duty of fidelity to the Constitution, the judge who caused such breach shall be held accountable for disciplinary liability and charged with serious malpractice –article 417.1 Ley Orgánica del Poder Judicial–.
If any harm was caused by such malpractice, either maliciously or through serious negligence, this will constitute a clear breach of the law, and the judge may be charged with civil liability –article 411 LOPJ–.
Lastly, if the ruling was clearly unfair as a result of serious misdemeanour, or if an unjust ruling was issued maliciously and knowingly, the due course of action shall be criminal process –article 446 Código Penal–.
Challenge
A challenge is a course of legal action by which we require that a judge be deemed unsuitable to hear a trial, due to lack of impartiality. Such an action, which may be easy to understand, is regarded by members of the Spanish Poder Judicial as the worst of insults –probably because they have not fulfilled their duty of good faith–. For this reason, they stubbornly try to avoid challenges and have been using anachronistic criteria ever since the article 10.2 of the Constitution of 1978 established, in accordance with international texts on the matter, that fundmental rights must be interpreted, the right in question here being that to an impartial court.
Note: This website is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should not act upon this information without seeking professional counsel.
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