Procesal
How to solve conflicts. How people act when they have a conflict, by themselves or institutions or the courts (jurisdiction).
•Jurisdiction (who)
•Action (what)
•Procedure (how)
LESSON 1: JURISDICTION AND THE JURISDICTIONAL FUNCTION
Legal conflicts resolution and the abolition of private justice.
Different kind of conflicts (personal, social, ethical, legal, etc.).
–Legal conflict: when sb breaks a legal rule, infringes others´s rights or breaches their legal duty.
–Two types of conflicts: a) between private parties (Civil, Commercial and Labour conflicts); b) conflicts between a person and the State (Criminal Law).
Systems 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
What does the term jurisdiction means?
•A fun
ction of State (Lesson 1).
•The judicial bodies as a whole (Lesson 2&3), all the different organs who exercise this function (all judges and magistrates)
I.Distinction between jurisdiction , Legislation and administration
Three powers of the state:
Legislation creates laws and operates (elects) the government, the Administration executes (apply) legislation and also creates law, the Jurisdiction also applies law.
The difference between the jurisdiction and administration application of law resides that in the administration, the policeman is protecting a general interest that it’s also his; in the jurisdiction the court has the same distance form me than from the other actor, it is not part of the conflict.
As they have this position, they supervise the administration and can be the last word in the application of the law. The members of the administration are not independent, but dependent bodies (piramidal structure of the admin. Where the government is at the top
II.Content of jurisdiction (art 117. – Jurisdictional activity)
Part VI CE Judicial Power
The content of the jurisdictional is to declare and enforce the law.
Procedure: The law to be applied, you go to the court with a claim and wait for a compensation. At the end of the procedure there is a judgment that states that you are going to be given 3000 euros, but sometimes the money isn’t given to you. If jurisdiction only applied (declaration phase). The second task is to enforce the judicial decisions (enforcement phase).
Arbitration and mediation also do the declaration phase, but has to go to the court if the person doesn’t comply with the judgement.
Who applies the law: In general judges and magistrates that belong to the judicial power. It is very important to have a strong judicial power in order to guarantee
Order of the Vice-President of the Court in Case C-619/18 R Commission v Poland.
Poland must immediately suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges.
The age of retirement was lowered to 65 and government tried to control de supreme court in order to control de controller
The rights involved are the ones of independent court and fair trial
Adopt a provisional measure to suspend the provision. Need and urgency of the measure.
III.Constitutional principles on jurisdiction art 117.3
State’s hegemony of jurisdiction
No specific provision but is a consequence of the sovereignty of the state. This means that the state can decide and limit the boundaries of jurisdiction. Ex: Spain is sovereign state and could establish in which cases Spain is going and not going to have jurisdiction. In general, things in Spain will be judge by Spanish courts. People is going to be judge by national courts, European courts, or other states courts if the act is committed there. The general rule is in article 4 LOPJ:Jurisdiction extends over etc… In principle, Spain has jurisdiction over all it’s 3except for some cases (diplomatic agents).
A.Unity of jurisdiction
Territorial scope (art. 149 exclusive competences): Doesn’t give this competence to communities, it is an exclusive competence of the state. Exception: The administration of the administration of justice can be given to the autonomous communities (resources and personnel management); art. 152 CE; use of cooficial languages (art. 231 LOPJ).
Internal scope: All judges are subject to a common legal system (regime stablished by LOPJ).
Exception courts: Special jurisdiction (military court, constitutional court, court responsible for the account of the state)
Traditional courts also exercise jurisdiction with limited sphere (Tribunal de Aguas de la Vega de Valencia).
B.Jurisdiction as an state exclusive power
Positive sense:Only judges and magistrates can exercise the jurisdictional function
Negative sense: Judges and magistrates can only exercise jurisdiction
C.Judicial liability
•Criminal (perversion of justice, bribery and illegal detention)
•Civil (damages because of intentional or negligent behaviors).
•Disciplinary (LOPJ).
LESSON 2: JURISDICTIONAL BODIES
Administration of justice:
Jurisdictional bodies:
•Judges and magistrates
Non-jurisdictional bodies:
•Attorneys
•Letrados de la administración de justicia. Judicial secretaries.
•Gestores procesales, tramitadores procesales y auxiliares: Work permanently to make the court work
•Court representatives (procurador)
•Expertise (peritos): Some institutes help the administration of justice. Ex: Instituto Anatómico Forense.
•Judicial police
•Prosecutor (fiscal)
I.Jurisdictional bodies: JUDGES AND MAGISTRATES
“Juzgados y tribunales”. Some judges do not belong to the judicial career
Types of judges and magistrates:
•Career judges: Judge, magistrate and magistrate of the supreme court.
•Not career judges: Jueces de paz, they have legal knowledge, limited competence. But in that competence, they exercise jurisdiction. Ex: cases were the money is less than 90 euros. They are where there are no juzgados de primera instancia. They are helping to develop some procedural act. Also jueces sustitutos, jueces en regimen de provisión temporal. They should be exceptional and only exercise jurisdiction in a determinate period (en teoría).
Conditions to become a member of the judicial career:
•Spanish citizenship
•Legal age
•Law degree
•People with certain imparments or after being sentences or indicted on certain crimes.
Becoming a member of the judicial career:
•National examination and course
•Contest among jurist with more than 10 years of experience —> Magistrate (“cuarto turno”)
•Contest among jurists with more than 15 years of experience (TS)
•Be appointed in the list to the General Council of the Judiciary (TSJ)
Prohibitions and incompatibilities:
Consequence of principle of jurisdiction as an exclusive power (negative aspect).
•Incompatible with the exercise of another public function
•Incompatible with having a job in the public or private sector
•No works as attorneys or similar
•They cannot be paid or free counsel
•They cannot be executives of public or private corporations
•They cannot be members of political parties or unions
The only possibility they have, is that they can teach at university and publish their works.
II.Status of judges and magistrates (art. 117 CE, art 6 ECHR, art. 47 ECHR)
Duty: Judge in a fair and impartial way.
Rights: To be paid, to take leaves of absence, to be promoted. To become member of a professional association. Impunity (arts. 398-400 LOPJ).
Liabilities: Civil, criminal and disciplinary.
A.Independency:
Application of independence to C‑216/18:
External:
(no subordination and no instruction). In order to deal with this problem, no removal from office (inamovilidad judicial).
Economical independence (if very like paid, can be subject of corruption).
Judicial immunity: A judge can be judged but with special privileges. Th authorization of detention can only be authorized by other judge (not by the government).
Internal:
Independence is related to impartiality, the same distance between both parties and object of the procedure, neutral position.
Dismissal: “Ex officio” the judge himself leaves the case (abstención), or the parties allege these reasons and make the judge leave the case (recusación).
CGPJ: Independent institution to govern the judges, with no political orientation.
Even though a person’s right to a fair trial may be respected in a particular case when a judge is independent, a State would be in breach of its international obligations if the judiciary were not an independent branch of power. Therefore, in this context, independence refers both to the individual judge as well as to the judiciary as a whole.
Institutional independence is not suficient for the right to a fair trial to be respected on every occasion.
B.Rule of law (only subject to the law)
C.Security of tenure
D.Impartiality
Internal:
Independence is related to impartiality, the same distance between both parties and object of the procedure, neutral position.
Dismissal: “Ex officio” the judge himself leaves the case (abstención), or the parties allege these reasons and make the judge leave the case (recusación).
E.Liability
Criminal liability: Liable to the offences in the performance of the judicial duties.
Civil liability: Empty articles as in 2015 they decided judges and magistrates are not directly liable to civil liability. If civil responsibility wanted, need to be asked to the state.
Disciplinary proceedings: Infractions classified and sanctions provided (warning, money payment or even removal from the position). The organ that applies this provisions is the Council of the Judiciary.
III.JUDICIAL OFFICE (ART. 235)
Before 2009, each court had it’s own judicial secretariat and dealt with the whole procedure:
•Judge
•Judicial
•secretary
•People who asses
In 2009, the structure changed to make it more efficient -> Judicial Office:
UPAD (Unidad Procesal de Apoyo Directo):
•Judge:
–Assisted by letrado (secretario de la admin de justicia)
–Gestores
–Tramitadores
–Auxiliares
SCP (Servicios Comunes Procesales):
Administrative unit composed by services, no judges. Servicio común de ejecución etc. Units determined to solve determined questions. Composed by letrados, auxiliares etc. But NO judge
Madrid should have more tan 100 UPAD and 1 S
IV.Letrados de la administración de justicia (secretarios judiciales) (art.440 CGPJ)
Public examination and training.
They are not independent, dependent from upper powers.
Special function: in charge of the judicial public certification (fe publica judicial).In court, outside court, notarios.
Enforcement, conciliation etc,
A procedure is a combination of different stages. The parties can push a procedure to move from stage, or by the court (in Spain by the court).
Lawyers and court lawyers
Functions?
Duties?
Rights?
Liability?
Public Prosecution (art. 124 CE)
Intervention in the proceedings:
•Civil: only in special proceedings /questions of jurisdiction.
•Criminal: in all criminal proceedings.
Organization: group of bodies, hierarchically organized. At the top, State General Prosecutor, appointed by the King, as being resolved by the Government (art. 124.4).
Principles regulating their activity (art. 124.2):
•Organization: unity and dependency.
•Standards of practice: legality and impartiality.