The sentence has awakened a endless complaining comments and outrage among lawyers in social networks. Its content Confilegal has advanced it in the news titled ‘Non-working days become business days if the resources can be submitted electronically, according to the Provincial Court of Zaragoza’. In the text of the article it is asserted that the court “considers that technologies allow the presentation of appeals electronically on non-working days and this should be done”, an interpretation that, it continues, “could have the impact of 12 atomic bombs –or a magnitude 7 earthquake on the Richter scale— in the world of lawyers and attorneys “. ‘A priori’, the ruling, dated November 20, 2021, delves into one of the wounds of the legal profession and procures it: the lack of protection by judicial bodies for their right to rest.
However, in the opinion of Juan Carlos Estévez, President of the General Council of Attorneys of Spain (CGPE), an erroneous reading of the sentence is being made. Why? Because, as he explains, the magistrates refer exclusively to substantive terms, that is, those that affect prescription and expiration, and not to procedural terms. “Talk later only of the prescription and expiration of shares, in which the periods of time are very long, usually years. If having five years to sue the professional has waited until the last day, it makes sense that the judges refuse to grant him more days of grace and force him to present the document even if it is a non-business day, “he asserts in conversation with El Confidencial.” specific cases, which occur once or twice in the life of a lawyer or a solicitor. It will affect very few procedures, “Estévez concludes.
Juan Carlos Estévez, president of the attorneys: “The ruling affects very specific cases of prescription and expiration”
In the controversial paragraph, the Hearing of Zaragoza indicates that “there is no material problem for the computation of the substantive term to be carried out autonomously from the procedural one, and this because there is now no material difficulty in the submission of writings at any time and day, and that such presentation has the effects that it must have in the substantive order. “This, the court continues,” without prejudice to the fact that the presentation at an unqualified moment, from a purely procedural consideration, is considered made on the first day and next business hour. In short, if the party can submit it electronically Even if it is procedurally unqualified time, you must present it if you want to respect the substantive term “.
The magistrates add that “the use of new technologies of two-way communication between the parties and the court has restored the autonomy of the computation of the substantive term, so that being day 2 non-working in procedural terms, There is nothing to prevent that, telematically, the party could have presented it, without being able to go to the term that the party calls grace, provided for the procedural deadlines. Not for nouns. “For this reason, the Hearing dismisses the appeal filed, within the framework of a lawsuit against a community of owners.
Irene Cortes
–
In the opinion of the president of the CGPE, the magistrates are making a express distinction between procedural and substantive deadlines. In the former, the consideration of a non-business day is maintained. In the latter, on the other hand, if the telematic means allow it, the corresponding writing must be presented. “The procedural deadlines are days, weeks or months. If these were the ones who are affected, it would be problematic, because we are talking about the time to appeal a sentence, file a cassation or reconsideration appeal, request evidence … But all this is left out “, underlines Estévez.
ICAM concern
From the Madrid Bar Association (ICAM)However, the Governing Board has shown its concern over “the hermeneutics contained in the sentence” and its discrepancy with the interpretation of article 135 of the Civil Procedure Law that it carries out. In the first place, it exposes the institution in a statement issued this afternoon, because the substantive terms (prescription and expiration) are formalized “through the presentation of a claim, which is an act of a procedural nature“. In this way,” the guiding brief is subject to procedural regulations throughout its spectrum“, which determines that the final trust of the computation has to elapse entirely. Thus,” if the last day of the substantive term coincides with the non-business day for procedural purposes, the right may be exercised by filing the claim on the first day next handy “.
Likewise, the ICAM expresses its concern that an interpretation of the norm is made that has the effect of opposing the dfundamental right to effective judicial protection in the exercise of actions. And he concludes by expressing his disagreement that lawyers and attorneys are subjected to “an unacceptable time constraint (all hours, 365 days a year), with the consequent subjection of civil and criminal liability, which hurts the right to minimum rest and to the commonly accepted rules of family conciliation “.
–
