Posts Tagged 'Democracy'

MESSAGE IN A BOTTLE (Spain Watch): More on a dwindling state of law

After its publication in the State’s Official Gazette (Boletín Oficial del Estado) on November the 21st, the new law on court fees – see https://escritodesdelastripas.wordpress.com/2012/11/08/to-whom-this-may-concern-spain-watch-the-end-of-the-due-process-of-law-in-spain/ – came into force yesterday. This means that, as from yesterday, anyone earning more than 1.100€ gross per month would become the subject of the new fee system if they were to take any dispute to court, which, of course many will have to think twice before doing. Indeed, according to the new system, if it is a small amount in dispute, the court fee will be roughly twice as much as the amount at stake, but what if the kind of money at stake is much higher, such as that usually involved in road accidents, medical malpractice cases, legacies, compulsory purchase or real state disputes? Then the court fee can soar to thousands of Euros. Needless to say, this development is very likely to put many people, already in a distressed situation, in even deeper trouble: imagine your only alternatives are seeking funding to institute legal proceedings to assert your rights, thus making your financial situation even more burdensome, or foregoing your claim, so being bound to negotiate with a much stronger opponent, namely a bank, a real estate agency or an insurance company. By the way, in some cases you may have to pay the court fee even as a defendant if you are sued. For instance, if it were challenging the foreclosure of a mortgage, even though you would be in the defending position, you would be subject to the applicable fee. It’s no great surprise this is the precise scenario where banks are always involved!

It should be kept in mind that this scheme has been put to work in a country which is being stricken by a financial crisis, where a worker’s average salary was about 25.000€ gross a year a few months ago – who knows how much it is now? -. Not to be forgotten either that there is an ever increasing number of families where one or both of its senior members are unemployed, which in its turn has led to a widespread housing crisis in Spain.

Last week, people as rarely prone to be rowdy as the Chairman of the General Council of the Legal Profession took to the streets, loudspeaker in hand, to cry out in protest over the impending approval of the new court fee system and today unprecedented protests from Judges and Public Prosecutors have taken place in front of the Ministry of Justice in Madrid and all Provincial Courts in Spain. Right after its approval, the main opposing party (Partido Socialista Obrero Español or “PSOE” for short) has announced that they will lodge an appeal of unconstitutionality against the new law, which will never be decided by the Spanish Constitutional Court before many a large company has taken a great deal of advantage of it.

Now, to lighten a little bit the gloomy tone of this brief account, the anecdote: after rushing so much in order to have their bill approved in the shortest possible term, the Government has just found out that the new fee cannot be levied in the few coming weeks because the official payment forms are not available yet.

However, foreign investors can feel comfortable here, as they are well protected by our equitable laws. And so can Spanish citizens, as we are under a Government of true philosophers. No doubt they are prominent disciples of Voltaire’s character Dr. Pangloss, whose ever accompanying motto was: “We live in the best of all possible worlds. Collective wellbeing stems from individual misfortunes. Hence, the more individual misfortunes take place, the more collective wellbeing will be attained”.

Oh God, keep us safe from those who promote evil and seek to harm!

NOT YET THE END

TO WHOM THIS MAY CONCERN (Spain Watch) – The end of the due process of law in Spain –

Justice will no longer be free for the average Spanish citizen, but only for those clearly sitting below the threshold of poverty. Furthermore, not only won’t it be free, but it will also be unaffordable for most of those “affluent” families whose overall revenues are higher than 1.200 €/month, the top amount to be entitled to litigate for free.

Or at least that’s what the Spanish Government had in mind when drafting the bill aimed at setting up a brand-new court’s fee system [hereby a link to the bill, as published in the Official Gazette (Boletín Oficial del Estado):

http://www.senado.es/legis10/publicaciones/pdf/senado/bocg/BOCG_D_10_114_886.PDF].

The bill has just passed the so called “Higher Chamber” of Parliament (Congreso) and is only pending endorsement by the “Lower Chamber” (Senado), a pure formality bound to take place on November 14th, since the Government party (Partido Popular or “PP” for short) has an overwhelming majority in each of said chambers. Moreover, in order to speed up the enactment of the projected law, not least so as to avoid media exposure as much as possible, the Government have decided to go for the “fast lane” and use the abbreviated procedure, getting their bill passed by the Higher Chamber through a small commission specifically appointed thereby to decide on most legislative matters. It is worth noting that all non – PP Members of Parliament (Diputados) appointed to such commission have left it to protest against the impending reform, with such protest being supported by Bar Associations, Judges, Public Prosecutors and University professors through a number of demonstrations held in front of many courthouses across the country during the last days.

As per the system currently in place, only legal persons – basically corporations – have to pay a fee if they are to introduce a claim or to lodge an appeal before court, but the reform to be brought about by the Government means that: (a) everybody, including natural persons – except for those entitled to free justice -, will have to pay a fee if they are to assert their rights before court; (b) that the fees will be the same, irrespective of the claimant’s income; (c) that the fees will be high enough to deter ordinary people from going to court, or even to make it absolutely unaffordable for them; and (d) that, in contrast to the foregoing, that is not likely to be the case for corporations, thus becoming the only beneficiaries of the purported legal reform.

The new court fee, to be levied all over the country on top of other fees that regional authorities might impose in their local jurisdictions, consists of a fixed amount plus an additional sum to be determined as a percentage of the amount involved in the lawsuit. In the case of ordinary lawsuits, such as a consumer filing a small claim against a company for a faulty product, the court fee floor will be 200€; if it is challenging a fine before court, in most of the cases the fee will be not less than 400€. In both situations, the amount of the concerned fees is likely to be as much as the money involved in the potential claims. It follows easily that the new system will be the end of consumers’ or citizens´ court protection in most of their day to day conflicts. But when it comes to labour law it’s even worse: challenging an unfair dismissal in the first instance is not subject to fees, but if the ex-employee is to lodge an appeal against the first instance court decision, the fee to be paid will be 500€ plus 0,5% of the amount claimed as a legal compensation for the unfair dismissal, which, in practice, means that right to appeal will be money-barred for most redundant workers, whose number is ever-increasing in Spain. Mind you, the said fees are, obviously, additional to the solicitor’s, counsel’s and expert’s fees

To give a final flavour of how outrageous this impending legal reform is, I will refer to the real case of a driver left paralyzed as a result of a road accident. The amount sought as a compensation for the injuries sustained and their severe after-effects, including the need for permanent assistance forever, adds up to 1.300.000€. Well, according to the court fee system to come into place very shortly, the overall amount of the fees to be paid by this gentleman if he has to go to court up to the Supreme Court – which is not unlikely given the amounts at stake – will be 19.550€. This is the same amount a millionaire or a multinational would pay as court fees in a case where the same kind of money was involved. But here and now there is a real person behind these figures, and it is someone who is not entitled to free justice, as his family earned 1.600€/month overall, and who is very close to financial collapse because the cost of the permanent help he needs is ten times as much as the illness allowance he is receiving from the national health insurance system (Seguridad Social). The only alternatives for him are organizing a charity collection or accepting whatever the insurance company will condescend to offer to him. No doubt the new law will be a bargain for banks, insurance companies, service providers and all sorts of powerful entities. This case is real, it is being handled by the lawyer José Miguel Caride Domínguez, anyone can check on this information [hereby a link to the Ourense’s Bar Association web site:  http://www.icaourense.org/index.php?option=com_peoplebook&func=searchstaff  showing the name and details of the said lawyer].

The above goes to show that the purported new court fee system is tantamount to the end of the due process of law in Spain. To put it bluntly: anything slightly resembling effective court protection is being taken away from ordinary people in this country. The contemplated bill is clearly unconstitutional, but it will take years before our Constitutional Tribunal decide on the case, and in the meantime large corporations will have made their pile, even more so than they’re doing right now, at the expense of the average citizen.

Dramatic as the foregoing may be, it is not but another milestone of Spain’s current trend towards the systematic destruction of what has been considered as basic citizen’s rights so far. By the looks of it, we’re relentlessly drifting towards some form of “soft dictatorship”.

Spain is a stunning country. The meeting point of many influential cultures throughout History, it is a lively, extremely complex country with unparalleled contrasts and an overwhelming cultural legacy. As a result of the recession, our country is currently feeding other better-doing economies with well trained, talented professionals. There is much more to Spain than just good food and nice beaches. I’m afraid there’s not much you, people from overseas countries who may be reading this, can do for us, but at least I want you to be aware of what’s going on in Spain. I hope I will get back to you with more details on all of this.


Una frase:

"El tiempo es lo que impide que todo suceda de golpe."

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