LESSON 6 Flashcards
Basic principles in proceedings
Basic principles in proceedings are rules, ideas and maxims that are essential elements to procedural law, especially since they are the elements on which the whole structure of the jurisdictional process is built upon.
They also fulfill/solve legal vaccums/loopholes.
What makes a rule a basic principle?
Not every rule can be considered a basic principle, only those who are key to the configuration of the jurisdictional process will be considered a basic principle.
Name the two types of basic principles
- principios jurídico naturales (principles that express a natural and inherent right to mankind).
- principio jurídico-técnicos (technical principles).
Principles that express a natural and inherent right to mankind
These principles are the ones that contain a natural and inherent right to mankind, and this is why we can find them in all proceedings of any jurisdiction (civil, criminal, labor, social, …) and any court (1st instance, supreme court…). They come from natural law.
Technical Principles
These principles are NOT the same in all proceedings, since the technical principles relate closely to the material and substantive law applicable to the proceeding at hand.
They are established in order to give efficiency and better implementation of material law through the proceeding.
Name the two principles that express a natural and inherent right to mankind
- fair hearing (principio jurídico-natural de audiencia)
- equal treatment (principio jurídico-natural de igualdad)
Fair hearing principle
- in civil, labor and constitutional
- in criminal and less serious criminal offences
-effective summoning
This principle tells us that no final judgment may be given without first having given the parties the opportunity to plead and provide evidence.
- In civil, labor and constitutional proceedings, this principle is followed by simply giving the parties the opportunity to plead, give evidence and present themselves to court. The effective use of this opportunity is NOT required in this types of proceedings.
If the parties fail to show up to the proceeding after being properly summoned, they will be declared in absence (rebeldía) and the proceeding will continue all the way to the final judgment. - In criminal proceedings, this principle works in a stricter way. These proceedings require both a guaranteed opportunity and effective attendance of the parties in order to carry out the proceedings.
This is why provisional measures against the defendant’s freedom of movement are adopted in criminal proceedings, to ensure the defendant’s attendance and presence during the whole trial. - In criminal proceeding for minor offences, the principle will be applied the same way as in civil+ proceedings.
- This principle requires “effective summoning” conducted by the registrar’s office in order to work properly. If the summoning is ineffective, then it can’t be said that the litigants got a real opportunity to plead and provide evidence. If the summoning is ineffective, all proceedings will be declared null or void.
If the summoning WAS effective, but the defendant still fails to show up for reasons that are out of their control/will, then they may file for a “procedimiento de audiencia al condenado en rebeldía”, which is a special appeal against the judgment rendered against them.
What is the reason that the principle of fair hearing works differently in civil+ proceedings than in criminal proceedings?
- The reason why the principle of fair hearing works ONLY as giving an opportunity to the parties in civil proceedings, is because otherwise the defendant could always avoid final judgment just by being procedurally inactive.
- The reason why principle of fair hearing works the way that it does in criminal proceedings is because the severity of the punishment that can be infringed on the defendant in this type of proceedings requires it.
Equal treatment Principle
This principle tells us that the parties will be given the same opportunities, they have the same procedural rights, faculties and guarantees. No party will be given preferential treatment in the number of times that they are allowed to plea their case in writing and orally.
However, this principle does NOT imply that both parties are the same, since they are NOT in equal procedural situations, i.e: the claimant cannot be convicted, while the defendant can.
It only means that they are both given equal opportunities, but a procedural symmetry is NOT required, especially in criminal proceedings.
Equal treatment must be observed by considering the procedure as a whole, not step by step, i.e: in criminal procedures during the investigation in the pre-trial, the accused party may be set aside in order to protect the confidentiality of the judicial investigation. However, this confidentiality must be removed some days before starting the trial and the full balance between parties must be restored.
Other principles and constitutional guarantees: art. 24 CE
In art. 24 CE we can find the “effective protection of judges and courts”.
- art. 24.1 CE: “every person has the right to effective protection of the judges and the courts in the exercise of their legitimate rights and interests and in NO case may they go undefended.”
- art. 24.2 CE: Right of access to the ordinary judge predetermined by law, right to public trial without undue delays, right to be presumed innocence, right to assistance from a lawyer, right to not make any self incriminating statements, right to use the appropiate evidence for their defense and right to be informed of the charges brought against them.
Other rights
- Right to meet.
- Right to association.
- Right to participate in legal protection of your rights.
- Right to not make statements regarding alleged criminal offences for reasons of family relationships or professional secrecy.
Art. 24.2
- Right to access to an ordinary judge predetermined by law
- Right to a public trial without undue delays
- Right to presumption of innocence
- The goal is to ensure the impartiality and objectivity of the judge during the trial and in the final judgment. The judge and court who will be dealing with the case must be pre-existent to that matter, and the extent of the power of the judge and the court must also be established in advance.
- Trials may be public, granting access to the parties and others who may wish to attend, although there are some exceptions to this rule (Art. 232.2 LOPJ).
- The Constitutional Court has established certain criteria to determine wether procedural delay in a particular matter was undue: the complexity of the case at point, the interests at stake for the plaintiff involved in the proceedings, the average duration of similar proceedings, behaviour of the competent authority and behaviour of the plaintiff during the proceeding.
- This is only relevant in criminal proceedings. The accusing party is the one that should prove, beyond reasonable doubt, that the accused party is guilty. Until this happens, the accused party must be considered innocent. The burden of proving beyond reasonable doubt that the accused is guilty is imposed on the prosecution.
Art. 6 European Convention of Human Rights
Art. 24 CE closely relates to art. 6 ECHR, right to a fair trial.
- fair and public hearing within reasonable time.
- carried out by an independent and impartial tribunal established by law.
- presumption of innocence.
- free legal assistance.
- a trial in a language that the parties understand.
- the right to a free language interpreter.
Name the technical principles
Civil+ principles:
- principle of party disposition.
- principle of production of evidence by the parties.
Criminal principles:
- Ex-officio.
- Inquisitorial principle.
Principle of party disposition
The parties have a core role in starting and developing the proceedings, and also in determining its contents.
That means that parties have a right to file a lawsuit and to end it before a decision is taken on the merits of the case.
It is set out in art. 19 y 399 LEC.
