Search

The aim of this paper is to study the res judicata effect of sentences handed down against legal persons on subsequent criminal proceedings against members of the organisation. Despite the legislator's preference for the joint prosecution of natural and legal persons, it is possible that the natural persons whose criminal actions determine the liability of the entities may be identified after the proceedings against them. Will the judgement declaring the criminal acts proven in the proceedings against the legal person be effective in the subsequent proceedings against the natural person? [ABSTRACT FROM AUTHOR]

This paper provides a critical review of the measures that have recently been adopted in the Spanish legal system with the aim to avoid that the declaration of child victims of sexual violence may result in a short of secondary victimization. In this way, we support the implementation of the pioneering Barnahus model, taking into account that it is an empirically validated and highly effective system that responds to two major challenges of our criminal procedure system: reducing the sources of secondary victimization for the minor victim and offering greater guarantees of obtaining a testimony in safe and calm conditions, while it ensures a fair balance between the rights and interests that converge in the process. [ABSTRACT FROM AUTHOR]

The attribution of the investigation to the Public Prosecutor's Office within the framework of the criminal process is, for many, a desideratum. Currently, however, the Public Prosecutor's Office itself arrogates this same attribution, under the pretext that the investigation carried out by it or under its direction is extra processum. In this regard, the Circular 2/2022 stresses that, in addition to the classic pre-procedural investigation proceedings regulated in the Organic Statute of Public Prosecutor's Office and in the Criminal Procedure Act, prosecutors can initiate what it calls «auxiliary investigation proceedings» and «post-procedural investigation proceedings». The aim of this paper is to analyze the regime designed for these newly baptized categories of proceedings and to highlight the risks involved in their use. [ABSTRACT FROM AUTHOR]

This paper analyzes the compensation system for pre-trial detention followed by acquittal or dismissal with prejudice after the jurisprudential change established in STC 85/2019, with special emphasis on the parameters that can be compensated via article 294 LOPJ. The main purpose is to determine, through the current judicial and administrative practice analysis, which are the main criteria and methods followed by the Courts in determining the compensation amount. Despite the high degree of discretion and subjectivity in which this research lies, it is intended to help determine the indemnity expectations an individual has after pretrial detention. [ABSTRACT FROM AUTHOR]

The health emergency caused by COVID-19 has led to the legal «resurgence» of the clause rebus sic stantibus as a tool that makes it possible to modify contractual relationships and achieve a balance between the services rendered by the contracting parties, a balance which had come to a sudden end with the onset of the pandemic. The renewed operability of the rebus clause has a direct impact on the judicial system as it has resulted in a proliferation of lawsuits aiming to modify contracted legal obligations. The aim of the present paper is to respond to the practical questions raised in the daily life of our judicial bodies, which have to deal with claims from members of the general public or companies seeking, during an eviction trial, to reduce their economic burden or release them from it by applying the rebus clause. This can raise procedural questions that condition both the judicial response and the procedural processing, and which legal operators have to deal with on a daily basis. [ABSTRACT FROM AUTHOR]

This paper analyzes the state of implementation of Digital Justice at the national level, from the legislative efforts embodied in Law 18/2011, which regulates the use of ICTs in the Justice Administration, up to the current draft of the Digital Efficiency Law. . The future law will mean not only the definitive establishment of the digital judicial process but also the application of automated judicial action. If this happens, from dogmatics it will be necessary to take into account a new procedural scenario and approach a new approach to certain procedural categories, conceptualize new ones, in addition to carrying out a review of procedural guarantees, for their strengthening. [ABSTRACT FROM AUTHOR]

The injured party for a wrongful act, for which the public administration is liable, can bring, along with other options, an action against, only and exclusively, the insurance company of the public administration, with the action residing in the civil jurisdictional order. This question has been the subject of a lively controversy, which still persists, and which has been echoed by the Supreme Court very recently. Although the considerable number of papers about the subject, there are many questions that are still awaiting a solution. The singularity of the substantive and procedural triangle that exists between the injured party, the insured Administration and the insurance company, means that there are many questions of a theoretical and practical nature that arise. This study intends to answer some of them. [ABSTRACT FROM AUTHOR]

In this paper, we focus on the procedural-criminal law of the enemy which is generally conceived as an exceptional criminal law and analyzed from the point of view of substantial criminal law and procedural law. In particular, we elaborate on the fact that since the criminal law of the enemy can be understood as a suspension –even if temporary and restricted in its application– of the typical guarantees of modern procedure law as well as an extension of the legislation in the Criminal Code which punishes conducts that does not directly violate any legal interest protected by the system, it may contradict the fundamental principles of modern criminal law. Finally, we conclude by arguing that the space actually occupied by the exception in our system is not that limited and therefore we try to seek a balance between the conflicting terms. [ABSTRACT FROM AUTHOR]

The pretrial hearing is made up of different procedures that respond to different phases that it goes through. Each phase corresponds to a function that pursues a certain purpose. From all these phases, the one I have come to call «dialectics» has been chosen for this paper. The introduction of factual and legal information in the ordinary declaratory civil process occurs in two moments: the main one, which corresponds to the governing writings, and the secondary or residual, which is precisely the aforementioned «dialectical phase» of the pretrial hearing. Its purpose is, in broad strokes, double. Allow a moderate extension of the contender's dialectical intersection. Correct, in a broad sense of the expression, what has been stated in writing up to now. The legal regulation of this «dialectical phase» is found in art. 426 of the Civil Procedure Law, whose study is the common thread of this paper. [ABSTRACT FROM AUTHOR]

The direct appeal or appeal per saltum is that which is filed immediately against judgments issue in the first instance. This paper make a historical analysis of the appeal per saltum in the LEC 1881 and a compared study between the Spanish and German legal order. In addition, it examines from a lex ferenda perspective the opportunity to reintroduce this type of appeal and the regulation that would best suit the system. [ABSTRACT FROM AUTHOR]

This paper analyses the specific problem of the foundation of the «reversal interest» in the evidence of foreign law which can be seen on a double front: on the one hand, based on the deep contradiction latent in the dominant jurisprudential doctrine of the Supreme Court in the matter; on the other, based on the growing reinforcement of the «reversal interest», which translates into an effort to justify and accredit the same that is difficult for the litigant to comply with, especially in controversial areas and in which there are specific difficulties, such as the judicial application of foreign Law. The analysis is carried out from a critical point of view, also offering various suggestions in order to improve the system, both de «lege data» and de «lege ferenda». [ABSTRACT FROM AUTHOR]

The Spanish National Strategy against Terrorism 2019 had among its objectives the establishment of legal mechanisms to allow for the use of information obtained by the military in conflict zones as evidence in criminal proceedings, while at the same time ensuring the necessary observation of the appropriate procedural guarantees. The aim of this paper is to contextualize this policy objective as part of a broader picture and to highlight some of the challenges posed by its implementation in Spain from a procedural law standpoint. [ABSTRACT FROM AUTHOR]

Rather than undertaking a detailed analysis on specific issues, the purpose of this paper is providing a clear and systematic overview of collective litigation and clearing up the fundamental features that should preside over its regulation in order to give an adequate answer to the main problems that plague legislators and scholarship in relation to the legal regime of collective actions, particularly in areas such as those related to procedural standing, to the coordination between the collective proceeding and the exercise of related individual actions, to the reach of res judicata etc. [ABSTRACT FROM AUTHOR]

This work demonstrates the exclusionary spirit of the «ordinary» jurisdiction in sport and the problems generated by access to the jurisdiction, especially in the international order. And, based on the integrity of the scope of jurisdictional power under the Spanish Constitution, this paper proposes the creation of a true sports jurisdiction that offers consistency to the weak system of submission to the TAS. [ABSTRACT FROM AUTHOR]

The aim of this paper is to address elements of the main measures against economic crime that tend to facilitate evidence issues throughout the process (from the fi rst obtaining of sources of evidence to their evaluation in the courts). To this purpose, we will analyze the new forms of confiscation, in which the use of presumptions is becoming widespread; judicial practice regarding the admissibility of evidence in tax crimes, which has resulted in a new exception to the exclusion of illegally obtained evidence; as well as internal corporate investigations, that lead to a privatization of the obtaining of sources of evidence. Finally, we will deal with the most controversial aspects of illicit enrichment and the possible violation of the presumption of innocence. [ABSTRACT FROM AUTHOR]

Based on the fact that law and schools share the goal of conservation and improvement of society, this paper links the first (and more specifically its maximum guardian, the Judicial Power), with the second, in order to search the improvement in citizen's legal dispute resolution. Supported by the benefits of existing school mediation (lege data) and overcoming defects of traditional ways of resolving school conflicts, it is configured lege ferenda in a broad sense, as mediation of mediations, understanding that school can and should contribute spreading socially the peaceful and effective settlement of legal conflict. Our proposal is defended deepening in the different elements and premises of school mediation at the time that this mechanism is located within the framework of Diversified jurisdictional law. [ABSTRACT FROM AUTHOR]

Placed in the ordinary civil declaratory proceedings, and more specifically, in the moment of the preliminary hearing before the trial, the Law grants the parties the possibility of ruling on the expert opinions presented at the request of the adverse party. The legal regulation barely makes it possible to know what the pronouncement consists of, what precise content it has and what consequences it entails. This paper aims to respond to these questions and others that are opened when trying to develop this procedure in its entiretylaw. [ABSTRACT FROM AUTHOR]

In this paper, fi rst, we analyze the constitutional jurisprudence on the existence of contradictory judicial pronouncements about the same facts, and on the linking of a subsequent process to the declaration of proven facts of a previous process. Secondly, the different preventive techniques established to avoid this contradiction are listed. Third, the relationship between the positive or prejudicial effect of res judicata, and the link to the proven facts of a previous process is exposed. Finally, we reflect on the positive, binding or prejudicial effect of the declaration of proven facts of the criminal judgment in another subsequent proceeding. [ABSTRACT FROM AUTHOR]

This paper explains how the Spanish term «enjuiciamiento», which is the name given to the legal texts that govern civil and criminal procedures in Spain, is a legalbuzzword or neologism created by Pedro Sainz de Andino in the Spanish Commercial Code of 1829 and used for the fi rst time in 1830 as the name of the Act regulating commercial procedures, in a law drafted by him. It furthermore explains the reasons that brought Sainz de Andino, who was a former «Francophile», to not use the name Procedure Act or Procedures Act («Ley de Procedimiento» or «Leyes de Procedimientos»), which clearly sounded French. The legal buzzword or neologism invented by Sainz de Andino gained greater usage thanks to the Spanish Civil Procedure Act («Ley de Enjuiciamiento Civil») of 1855, whose main author, Pedro Gómez de la Serna, preferred this term, as its use had become generalised and, at the same time, it helped to show the differences between this legal text and the Instrucción by the Marquis of Gerona, the name of which included the expression «civil procedure» («procedimiento civil») and which had been strongly criticized by Gómez de la Serna. [ABSTRACT FROM AUTHOR]

This paper analyses the Spanish Constitutional Court and the European Court of Human Rights case law evolution regarding double jeopardy in cases in which people are prosecuted twice, criminally and civilly (administrative). Such apothegm of canonical origin, includes two different fundamental rights: First, traditional “substantive” approach which seeks to protect people from being criminally punished twice. Second, the more recent “procedural” approach to non bis in idem is structured from a regulating configuration in the sense defended by authors like SCHAUER and LAPORTA and whose foundation is in legal security. From this approach, non bis in idem protects people from being prosecuted twice. This research provides arguments opposed to the approach that the Spanish Constitutional Court follows, today partially shared with the European Court of Human Rights after its judgement from 15 November 2016, case A and B v. Norway, where the Court corrects its previous doctrine based on the judgment of the Grand Chamber, Sergueï Zolotoukhine case v. Russia, from 10 February 2009. [ABSTRACT FROM AUTHOR]

The purpose of this paper is to analyze the Spanish procedural regulation regarding reinstatement or return of minor in cases in which children have been illegally transferred or detained from a third State to Spain. Even I examine the whole proceedings, some the particularities of this special proceeding are emphasized. Two fundamental aspects are pointed out. In the first place, we need to keep in mind that this special proceeding is ruled as a result of the assumption by Spain of international obligations. This issue conditions the procedural design. Secondly, this first characteristic entails the need to provide a specific regulation. Nonetheless, these regulations must be read together with the general provisions of the Spanish Civil Procedure Code. As consequence, I have detected gaps and some interpretative doubts have emerged. I conclude that they should be resolved in accordance with the informative principles of this type of proceedings, specially, according to the best interests of the child and the need for prompt justice. [ABSTRACT FROM AUTHOR]

The aim of this paper is to examine the problems arising from the introduction and subsequent admissibility of the evidence and investigative measure derived from a European Investigation Order that has been issued by a Spanish judge with the purpose of incorporating its result into the Spanish criminal process. [ABSTRACT FROM AUTHOR]

The aim of this paper is to analyze the problems that may arise from the issuance, by a Spanish criminal judge, of a European Investigation Order to request evidence and/or investigative measures from another Member State of the European Union, with the purpose of incorporating them later to the Spanish criminal process. [ABSTRACT FROM AUTHOR]

Many are the problems that the legal regulation of collective actions generates. Art. 519 LEC that has as heading «executive action of users and consumers based on the judgment accepting the claim without individual determination of the beneficiaries» is an example. Its relation with art. 221.1.1?. II LEC, its location between the precepts dedicated to executive titles and its frugality, have resulted in contradictory positions among legal scholarship determined the existence of positions found in the doctrine. This paper approaches the study of art. 519 LECRIM and tries to answer the questions that it raises with the support of STC 148/2016. [ABSTRACT FROM AUTHOR]

On paper, no one doubts the significance that lines the motivation, at the same time, (judicial) duty and right (for the defendant). However, in practice, often one can encounter cases of merely apparent motivation -formal-, but that does not withstand rigorous critical analysis and cannot be identified with a real motivation -material-. Possible causes for this phenomenon obeying are explored in this paper. And, among all of them, it has been chosen, as an object of this study, the absence of clear standards and targets to respond to the questions «what is there to motivate?» and «how much (or how intensely) should be motivated a decision of this kind?» A few guiding rules are proposed, in order to provide an answer to both questions. Upon these bases, it is reviewed the most common type of deficits in justification, in forensic practice. [ABSTRACT FROM AUTHOR]

The second rule of the article 209 of the Spanish Civil Procedural Law states that the account of proven facts of the civil proceedings must be contained in the pleas of facts of the judgment. The apparent clarity of the rule seems to have been lost as a result of having included the expression «where appropriate» after the mention of the proven facts at the end of the second rule of the aforementioned provision. The dust that once was lifted following the interpretation because of the mentioned locution has not been clarified yet. The main purpose of this paper is to state if that problem really exists. Regardless of the outcome of the previous study, all the most controversial papers about this matter will be analyzed. As an addendum, a proposition of lege ferenda, aimed to improve the wording of the Article, and especially, to provide more importance to the proved facts will be made. Finally, two practical issues of the consignation of the results of the ruling of facts in the judgment will be also taken into account. Specifically, how to state it and the legal consequences of its failure. [ABSTRACT FROM AUTHOR]

This paper is aimed at studying the mechanisms incorporated by the French Cour de Cassation (French Supreme Court of Appeals) in order to strengthen its jurisprudential function and to avoid the accumulation of appeals. The paper explains the conferral to the Full Court of appeals involving questions of principle, trying to avoid new appeals on the same subject; the competence of the Court to deliver a non-binding opinion on a new legal issue that may cause divergences on the Court case-law; the cases where it is possible the appeal by the Supreme Court without forwarding it; or the procedure to select the appeals that will be solved by the French Cour de Cassation. [ABSTRACT FROM AUTHOR]

In this paper we analyze the legal institution of the settlement agreement as an alternative system for conflict resolution, as well as its legal regime. And to this effect, we emphasize the interpretation of the transactional agreements, the limits of the authority of res judicata of any settlement agreement, as well as the necessary incompatibility between the legal institution of the settlement agreement with that of unjust enrichment, among others. Finally, we address the issue of how to negotiate a transactional agreement, in light of the theory of negotiation. [ABSTRACT FROM AUTHOR]

The aim of this paper is to analyze how the low prosecution of the crime of false testimony affects on the guarantees system of the due process and on the credibility of the witness testimony evidence as a whole. It is also analyzed the causes and motives that explain such a relative low prosecution of false testimony. In light of the whole analysis, the authors outline some proposals addressed to fostering a higher proactivity in prosecuting false testimony offenses in order to avoid a weakening effect on procedural guarantees and reinforce the realiability on witness testimony evidence. [ABSTRACT FROM AUTHOR]

This paper analyses specific aspects of the criminal procedure that directly or indirectly affect the protection of child victims, such as determining child victims, specific protection measures and investigatory technological tools for the investigation of criminal offences of child pornography (Article 189 CP) and child grooming (Article 183ter CP) (solicitation of children for sexual or pornography purposes). Emphasis is placed on the use of information and communication technologies as a means to commit these serious criminal offences. This form of commission is usual, but not the only one. In the case of child grooming, only the commission through these technologies in contemplated. It is also emphasized the real difficulty of identifying child victims during criminal investigation, in special when these criminal offences are child pornography and are committed through national or international criminal groups. The protection provided by the criminal procedure system requires that the victim must be identified and identifiable, but are existing criminal offences without individual victim. The best interest of the child is protected. [ABSTRACT FROM AUTHOR]

In the intermediate phase in the proceedings before the court of the Jury, appears the so-called Preliminary Hearing appears, which is the moment when in the presence of the judge, the opening of oral trial will be decided or not. This paper will examine the basic issues relating to the convocation of the Hearing, the legal requirements to proceed to the convocation, the mandatory fixing of a date and the judicial notice to the parties, the possible activities to perform for the act, and even the possible waiver of the parties to the completion of the Preliminary Hearing. [ABSTRACT FROM AUTHOR]

Several legal reforms have occurred during 2015 in the Spanish criminal system. These modifications have influence upon the category of criminal offences prosecutable via ex-parte application. This paper pretends to analyse them from a critical perspective. [ABSTRACT FROM AUTHOR]

We analyse in this paper the effects that projects the preventive annotation disposal prohibition adopted by the court as a precautionary measure on well affect the outcome of the process, for the forced disposal of the property in enforced recovery that involves dragging the burden the bidder, as well as conflicts of action regarding reintegration operations of the bankruptcy estate and the confiscation of property taken in criminal proceedings when they converge third right holders which may be affected. [ABSTRACT FROM AUTHOR]

The legal regulation of corporate criminal liability involves reinforcing its position as rights holders. This paper analyzes the particularities of the interception of communications when the subject under investigation is a legal person. Specifically, we will examine weather corporations enjoy the right to secrecy of communications and the possibilities that the new legal regulation on the interception of communications offers to intercept communications lawfully within an organization investigated for the commission of a crime, including attorney-client confidential communication. [ABSTRACT FROM AUTHOR]

Undoubtedly, personal statements are an important source of information for the factual reconstruction of the conflict which is subject to the judge’s decision. Therefore, the way that interrogations are conducted and assessed, will have a direct impact on the quality and accuracy of the sentence. This paper attempts to identify some elements that should be taken into account by the judge when conducting the evidentiary procedure, in order to obtain high-quality stories. At the same time, a list of criteria are proposed to carry out a rational and objective assessment of the narratives obtained. [ABSTRACT FROM AUTHOR]

The limitations of institutional bodies responsible for administering justice affect the coexistence and social peace. Therefore, contemporary societies have delineated mechanisms to negotiate conflicts and prevent these are expressed through other ways, such as violence. Develop concerted ways that increase social cohesion is a requirement of democratic society. Mediation Electronics is presented as an appropriate instrument to perform procedures that expand access to justice to citizens among them. This paper is part of research promoted by the University of Salamanca on electronic mediation. [ABSTRACT FROM AUTHOR]

The aim of this paper is to reflect on the non-usability of the illicit proof in civil proceedings, paying special attention to the incident of illicit evidence regulated by art. 287 LEC. In order to achieve this purpose, the consequences of the declaration of illicitness, that in most cases leads inevitably to exclusion of this evidence (according to art. 11.1 LOPJ), will be examined. All this is put in relation to the illegal proof, which is incompletely regulated by art. 283.3 LEC. [ABSTRACT FROM AUTHOR]

The paper deals with the Right to Silence of the accused, beginning with its origins in the Common Law, analyzing its posterior development, his proclamation on the 5th Amendment of the Constitution of the Unites States and the Miranda case. The analysis concentrates on the actual developments in the European Union, trying to focus on thecriticalpoints of European legislation and the position of the European Court of Human Rights. [ABSTRACT FROM AUTHOR]

This paper examines the application of foreign law by Spanish courts, taking into account the amendments / clarifications introduced by Law 29/2015, of 30 July, on international legal cooperation in civil matters. [ABSTRACT FROM AUTHOR]

Purpose of this research is the analysis of the possible connections between the final decision and the judicial truth descending from it. The paper draws a picture on the notion of judicial truth, meant as a result of the evaluation of the themes of the prosecution through the validation of evidence introduced by the parties. Legal certainty and reliability of the final judgment on the merits, no longer subject to further revision, are examined in order to define normative and axiological foundation of the truth arising from the res judicata. In this perspective, the strict respect of the procedural safeguards set forth by the law is not always a sufficient condition for a fair decision, since it does not necessarily aim at the search for truth that the due process model requires presupositum (in which the burden of proof is included) explaining their differences with the presumptions. [ABSTRACT FROM AUTHOR]

Despite the habitual exercise of the civil action alongside with the corresponding criminal prosecution, the procedural treatment is addressed in an anarchic way with relative frequency, both the parties and the Judge of Criminal Investigation. This raises certain problems in the sentencing phase that generate paperwork and unnecessary expenses that could be avoided fulfilled the basic rules governing their procedural treatment, which are the subject of this paper. [ABSTRACT FROM AUTHOR]

Recently, some Spanish Criminal Courts have admitted the study of brain waves (especially, the P300 one) with the aim of locating the corpse of the victim. However, there is some doubt about the scientific reliability and accordance with Constitution of this neurological evidence. This paper analyses them. [ABSTRACT FROM AUTHOR]

This paper analyses the main means of proof of the civil procedure rules and the consequences of its scattered and incomplete regulation. [ABSTRACT FROM AUTHOR]

The paper studies the effects of the ruling of an incidental civil question. The loophole of article 43 of the LEC implies that the solution is to search for such a linkage in the effectiveness of the res judicata. [ABSTRACT FROM AUTHOR]

In this paper analyzed the regime of precautionary measures in criminal proceedings and lines of reform proposed by the so-called Criminal Procedural Code of 2013. The study focuses on the regulation of remand and contributions to neutralize analyzed founded danger of committing future crimes. [ABSTRACT FROM AUTHOR]

Supreme Courts do not play a clear and truly effective role anywhere. There are different models of supreme court, some more «legislative» and some others more judicial, but nobody has been able to fi nd the key of how to set an organ which undoubtedly purpose were the preservation of the Law. As Law is a product of the legislature, and not the judiciary, the paper presents the possibility of replacing the supreme court by a paralegislative body that actually fulfilles this role of preserving the Law. [ABSTRACT FROM AUTHOR]

This paper proposes an analysis of Directive 2013/11/UE on alternative dispute resolution for consumer, taking into account the prior Recommendations of 1998 and 2001 on the principles for out of court settlement of consumer disputes. In this context, it will be examine the object and scope of this Directive; second, the conditions and the assessment procedure for entities of alternative dispute resolution for consumer; third and finally, a sort of concluding remarks shall be exposed. [ABSTRACT FROM AUTHOR]

Protecting people and vulnerable groups is still a concern in the past decades in international conventions and in the lines of action of the various governments in Spain. If recognition of rights is an important step, it is nevertheless articulating instruments of judicial protection of such rights. This paper analyzes the legal protection of vulnerable individuals and groups from the initiatives taken at international level and community and their progressive incorporation to the Spanish domestic law. [ABSTRACT FROM AUTHOR]

This paper is intended to analyse whether the requests for rectification of substantial errors made in resolutions issued by judges and court clerks should result in deadlines for filing an appeal being extended. On a preliminary approach -pursuant to Article 215.5 of the Spanish Code of Civil Procedure ('LEC' in its abbreviated form in Spanish)-the answer to this question would seem to be in the affirmative; however, some case law is in fact contrary to the position established by legislators for reasons that we consider to be rather convincing. The question raised is highly relevant for practical purposes, since the calculation of a deadline to file an appeal is of critical importance, as we all know. [ABSTRACT FROM AUTHOR]

This paper analyzes Article 283.3 Spanish Civil Procedural Code, and defends the criteria of mere fit of the proposed evidence to the ordinary law so as to proceed to admit it, basing said opinion on constitutional reasons and court cases, as well as using the criteria of general interpretation of the Law stated in Article 3.1 of the Spanish Civil Code. [ABSTRACT FROM AUTHOR]