Not too long ago, it has generated some controversy within the procedural subject, the judgment nº287 / 2020 of the Provincial Court of Zaragoza, Section 4, of 20 November, wherein It appears that evidently the present present system for the presentation of writings in courtroom in the course of the day of grace has been put into query. (You already know, earlier than three o’clock on the day following the day on which the deadline for submitting a short ends), contemplated in article 135.5 of the Civil Process Legislation (“LEC”).
Within the aforementioned sentence potential expiration is judged (appraised by the Courtroom of First Occasion) of the problem of a decision adopted by the overall assembly of a neighborhood of homeowners, dated 2-9-2017, in opposition to which the lawsuit had been filed on 3-9-2018. It turned out that on September 2, 2018, the day on which the deadline for submitting the declare contesting the settlement ended, it was Sunday, subsequently, non-working, which is why the declare is filed the subsequent day, Monday, September 3 .
The Provincial Courtroom of Zaragoza within the indicated decision, to start with, differentiate two conditions Relating to the appliance of the aforementioned rule of the day of grace: the one present after the entry into pressure of the 2000 LEC and its article 135.1; and the brand new one, after the enactment of Legal guidelines 18/2011 and 42/2015, with the implementation of telematic means within the Administration of Justice.
Earlier than the existence of telematic programs, the courtroom remembers, expressly mentioning the judgment of the Supreme Court, First Chamber, nº 287/2009, of April 29, that though the rule of the day of grace contemplated in article 135, was initially foreseen for the procedural deadlines (For the Chamber, the distinction between one time period and the opposite, fell on the truth that the procedural ones are those who originate in an motion of the identical class, “amongst those that usually are not those that are assigned a sure interval for the train of an motion “ -SSTS Feb 1, 1982; January 22, 2009-), the It was prolonged to the substantive phrases in an effort to “enable the proprietor of a proper whose train is topic to an expiration interval to get rid of it in its entirety“, And adjust to the provisions of article 5 of the Civil Code (” CC “).
The foregoing was justified by the prohibition of submitting paperwork within the Guard Courts outdoors of working days and hoursSubsequently, in observe, the holder of the fitting was being disadvantaged of a part of that final procedural day, which is why this rule was prolonged to the substantive phrases.
Having stated the foregoing, within the opinion of the Provincial Courtroom of Zaragoza, the procedural panorama modified with legal guidelines 18/2011, and, above all, with legislation 42/2015, which amended article 135.1, to incorporate using telematic or digital programs within the Administration of Justice, and the opportunity of submitting writings and paperwork in digital format on daily basis of the 12 months, 24 hours a day.
With this modification, the PA of Zaragoza considers within the sentence of 20-11-2020, that “now There may be not materials downside in order that the computation of the substantive time period is carried out autonomously with respect to the procedural”, Since they are often offered electronically in writing at any time and day. He concludes that “If the get together can current it electronically, even whether it is in procedurally non-working time, he should current it if he needs to respect the substantive time period.”. Subsequently, within the opinion of the Listening to, the rule of Article 135 (now in its fifth part), ought to solely be interpreted as relevant to procedural deadlines.
Within the case below trial, the lawsuit that, as has been stated, challenged the settlement of the homeowners’ assembly, in accordance with the judgment, ought to have been submitted on-line on the 2nd, regardless of being unqualified in procedural phrases, “With out having the ability to go to the time period that the get together calls grace, supplied for the procedural deadlines. Not for nouns”.
As I say, because of transcending the sentence, a nice controversy within the authorized world, and even a number of organizations spoke out in opposition to it, amongst others, the Madrid Bar Affiliation, by way of its Governing Board, issued a release, wherein he confirmed his “concern” for the sentence, disagreeing along with his standards; and, the Normal Council of Spanish Attorneys (“CGAE”), which also came out of the interpretation made by the judgment of the Provincial Courtroom of Zaragoza, contradicting it, and mentioning 4 judgments of the Supreme Courtroom in opposition to the factors of the Courtroom: Sentence No. 538/2011, of July 11, 2011, judgment of April 29 2009, judgment of April 30, 2010 and judgment of July 28, 2010.
It’s essential to query the interpretation made by the AP of Zaragoza of the stated judgment of the Supreme Courtroom of April 29, 2009, which takes as the idea for its personal decision, insofar because the Listening to considers that the submitting of a declare is just not a procedural act, and subsequently, it’s not topic to the principles on procedural deadlines of the LEC, amongst which is the day of grace of artwork. 135. Nevertheless, the Supreme Courtroom ruling signifies exactly the alternative, that the presentation of the declare that begins a judicial continuing (in that case, urging the fitting of withdrawal), sure it’s a procedural act, so it must also be certain by procedural guidelines: “this act of presentation is an act of a procedural nature that provides rise with its admission to the initiation of the method (…). As such, it’s topic to the principles that regulate the process, together with these of the article 135 of the LEC “.
Nor has it taken into consideration in its pronouncement one other of the extracts from the judgment of the Supreme Courtroom of 29-4-2009, which is essential: “An inexpensive interpretation of the rule and of the pursuits at stake can not give rise as a closing consequence an impact opposite to the basic proper to acquire the efficient judicial safety of the Judges and Courts within the train of respectable rights and pursuits, from the second wherein The holder of a proper, corresponding to retraction, can be disadvantaged of your entire interval granted by the Legislation, even when organizational mechanisms apart from entry to judicial our bodies had been arbitrated (At present non-existent, because the courts do not stay open 24 hours a day, and it’s not potential to current briefs earlier than the Courtroom that gives guard obligation), properly It might at all times have the facility to exhaust it in its entirety, and this energy can’t be disadvantaged by the procedural or natural guidelines that make it unimaginable to completely train the motion earlier than the judicial our bodies“. Exactly, in that part of the sentence, the Supreme Courtroom, evidently anticipating the long run, expressly signifies that the appliance of the day of grace would stay in pressure even when the courts could possibly be accessed at any time of the day, excessive that occurs with the telematic means.
Past the foregoing, if the assertion of the judgment of the Zaragoza Courtroom is mostly admitted, this is able to oblige the attorneys and legal professionals to must be completely pending (much more so) the calculation of deadlines, together with throughout public holidays. , which might be a real involution by way of conciliation and relaxation, in professions wherein these ideas are usually conspicuous by their absence.
In my view, I think about that among the many functions of the implementation of telematic means, It was not, definitely, to finish the appliance of the day of grace within the submitting of lawsuits, regardless of how a lot the time period from which the motion emanates is substantive, nor, subsequently, to limit the train of efficient judicial safety.
In any case, in future pronouncements it will likely be attention-grabbing to look at the interpretation to be made of article 135.5 LEC by different provincial audiences, and above all, by the Supreme Courtroom, to see if the interpretation of the PA of Zaragoza stays an anecdote, or if quite the opposite, it has served to switch the present the state.