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Conclusions and final proceedings in the new verbal trial – Juan Antonio Távara

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Three years ago the modifications to the Civil Procedure Law implemented by Law No. 42/2015, of October 5, came into force. Although the central purpose of said law was to adapt judicial processes and procedures to the advances in the use of new communication technologies, the truth is that the legislator took advantage of the reform to introduce important modifications in the regulation of the oral trial and the different incidents that must be processed under its rules.

According to the Preamble of the aforementioned Law No. 42/2015, the modifications to the verbal trial pursue “the purpose of reinforcing the guarantees derived from the constitutional right to effective judicial protection, which they are the result of the practical application of the Law of Civil Procedure and that have been demanded by the different legal operators”.

Probably the most striking change in the regulation of the oral trial is the one that determines that the answer to the lawsuit must take place in writing and that an oral hearing will only be held if so requested. the parties expressly (although it can also be agreed ex officio). Let us not forget that the verbal trial owes its name to the fact that -until the 2015 reform- its procedure was essentially oral. It began with a succinct lawsuit that was answered verbally by the defendant at the same court hearing in which controversial facts were established, evidence was offered and those that had been admitted were acted upon.
That is, the controversy was composed and developed in unity of act. To persuade the court and defend themselves, the parties and their lawyers were forced to a frankly complex exercise of synthesis and agility.

This procedure, essentially oral and unitary, was justified by the fact that the Civil Procedure Law reserves litigation characterized “in the first place, by the singular simplicity of the controversial and, secondly, for its small economic interest”. Even so, reality ended up showing that the controversies submitted to verbal judgment were not always simple and that the reduced economic interest does not necessarily rule out the complexity of the object of debate.
In fact, in the Explanatory Memorandum of the Civil Procedure Law of 2000, the legislator expressly recognized that “if, after the initial allegations of the parties, an oral act is immediately attended, in which, before passing sentence, also of immediately, all the activities of complementary allegation and evidence are concentrated, one of these two risks is almost always run: the very serious one, that the matters are resolved without observing all the rules that guarantee full contradiction and without the desirable attention of all the elements that have to found the ruling, or the one consisting in that the time that has apparently been gained by going immediately to the act of trial or hearing has to be lost with suspensions and incidents, which in no way can always be considered unjustified and merely dilatory, but often necessary because of the complexity of the issues.
Given the practical confirmation of the risks announced by the legislator, it was absolutely necessary to modify essential aspects of the regulation of oral proceedings to guarantee the constitutional right to effective judicial protection of the parties. All this despite the fact that, under the new regulation, it ceases to make sense that the aforementioned declaratory procedure for minor claims is still called “verbal trial”. Orality has ceased to be the rule and currently the controversies traditionally submitted to said procedural channel are composed and developed basically in writing.
Thus, as of October 2015, the procedure begins with a claim that must meet the same requirements for the ordinary trial (the only exception is those for amounts less than 2,000 euros); the answer to the claim takes place in writing within ten days from the location; The counterclaim is admitted as well as the formal response to the allegation of nullity and/or compensation of credits; the hearing only takes place if the parties expressly request it, and in it controversial points are set, means of evidence are provided and admitted, and those admitted who require it are also acted upon; Against the admission or inadmissibility of evidence, an appeal for reconsideration must be filed, which will be resolved verbally at the hearing, and against its dismissal, a protest can be made for the purposes of the second instance.

In addition to all of the above, in response to the claims of the different legal operators, the new verbal trial also regulated expressly the possibility of formulating oral conclusions at the end of the evidence. However, the final wording of the rule determines that said oral conclusions are a discretionary power of the court and not a right of the parties.

In reference to said process of conclusions in the new oral trial, the 2nd Section of the Provincial Court of Seville issued a ruling on September 29, 2016: “In the oral trial There is no legal provision for a reply procedure to the allegations of the counterparty, nor is there a mandatory procedure for conclusions aimed at the critical assessment of the evidence taken and the determination of the relevant facts that support the respective claims. As a result of the reform carried out by Law 42/2015, in force since October 7 of that year, Art. 447.1 LECivil empowers, but does not impose, the Judge to grant the parties a turn to speak to formulate orally their conclusions.
A few years ago, when the 2015 reform that we are now commenting on had not yet taken effect, we critically approached the possibility of demanding and carrying out both the corresponding process of conclusions once the means of evidence had been submitted, and the final proceedings regarding the verbal trial. of those who could not have acted regularly on the spot
of the hearing for reasons not attributable to the parties. Unfortunately, despite the comprehensive reform of the verbal trial regulation, nothing has changed.
It is true that the new wording of article 447.1 of the Law of Civil Procedure expressly establishes that “once the tests have been carried out, the court may grant the parties a turn to
word to orally formulate conclusions”, and this could seem like an important advance compared to the previous wording of the same standard that did not mention such conclusions. However, the inclusion of the verb “may” in the new wording, understood as the ability or power to execute an action, determines that we are not dealing with a right of the parties but rather with a power – exclusive power of the court, which will reject The process of conclusions is justified if it is not considered necessary once the evidence admitted in the verbal trial has been acted.

The 1st Section of the Provincial Court of Almería has also ruled on this new wording in the ruling issued on April 10, 2018: “Article 447.1 of the LEC, articulates
the way in which the view of a verbal judgment has been developed. It does not expressly and imperatively include that the parties have the right to process a report of conclusions, unlike what is foreseen for the Ordinary Trial.”

In effect, if we review the wording of article 433 of the Law of Civil Procedure, which regulates the development of the act of trial in an ordinary procedure, we verify that it is
refers specifically to the processing of oral conclusions as a right of the parties in relation to the disputed facts, the evidence produced and the possible legal presumptions that
are applicable to the specific case. That is, in the controversies processed through the channels of the ordinary procedure, the processing of conclusions is not a simple power of the jurisdictional body, but a right of the parties. Failure to comply involves a procedural vice that may be nullified by affecting the right of defense of those.
Technically nothing justifies that the process of conclusions is mandatory in an ordinary procedure and optional in a verbal trial. Let us not forget that in the Statement of Motives of the Law of Civil Procedure the risks of unduly simplifying disputes submitted to a verbal trial are warned, and in section IV of the Preamble of Law No. 42/2015, of October 5, The reform is justified to reinforce the guarantees of the right to effective judicial protection, even referring to the relevance of -now yes- regulating the “processing of conclusions in the verbal trial”.

Furthermore, the indicated new wording of article 447.1 is contrary to the Complementary Agreement adopted by a majority (15 votes in favor and 7 against) in the “Conference for the Unification of Criteria of the Magistrates of the Sections of the Provincial Court of Madrid”, held on September 23, 2004. In said Agreement it was concluded that “in the Verbal Trial, in application of the provisions of article 185.4 LECiv, it is mandatory, unless the parties waive, the processing of conclusions after the practice of the test”.
Indeed, as we pointed out years ago, article 185.4 of the Law of Civil Procedure, located in Section 2 of Chapter VII of Title V of Book I, referred to the general regulation of vists in the civil process, expressly establishes that once the practice of the evidence is concluded, the floor must be granted to the parties to “concisely formulate the allegations that according to their right agree on the result of the tests carried out”, which allows affirming that the procedure of conclusions in a verbal trial has always been recognized by the procedural rules.

Given all this, it is contradictory that the legislator has repeatedly recognized -in 2000 and in 2015- the possible insufficiency of the regulation of oral proceedings to guarantee effective judicial protection of the parties, but at the same time refuses to recognize their right to formulate conclusions in relation to the evidence produced at the hearing, leaving this procedure to the subjective criteria of the jurisdictional body on duty.
In fact, after the reform carried out in 2015, it becomes much more complicated for the parties to access the process of conclusions in a verbal trial. Before said reform, the parties could invoke the aforementioned article 185.4 of the Law of Civil Procedure; to value the Complementary Agreement adopted in the “Day of Unification of Criteria of the Magistrates of the Sections of the Provincial Court of Madrid”; or even request -via article 4 of the Civil Code- the application to the verbal trial, by analogy, of the provisions for the ordinary trial in article 433 of the same Law of Civil Procedure.

However, now and since October 2015, as there is a specific rule (article 447.1) that regulates such conclusions process as a power of the jurisdictional body, the parties are prevented from questioning The subjective criterion of the court is validly valid when such conclusions are denied, the same ones that we continue to consider essential because they refer to the evidence produced at the hearing in relation to the facts that are the subject of controversy.
The current state of the matter is perfectly reflected by the 3rd Section of the Provincial Court of Castellón in the ruling issued on November 20, 2015:
“The legal text to apply is that of articles 826 and 447 of the civil procedural law prior to the entry into force of Law 42/2015, which modifies art. 447 LEC, at the venue for the regulation of the verbal trial, to provide that it is optional for the court to grant the so-called round of conclusions (“may” the rule now says), so that what we are now resolving is an issue that should not be raised under the validity of the new legal text. (…) On this issue of the need to comply with the aforementioned procedure in the cases in which the rules that regulate the verbal trial procedure are followed, we have already ruled in the Judgment issued by this Section 3 on November 19, 2003, in which the criterion of the applicability of what is established in articles 182 to 193 to all those cases in which the hearing process is foreseen, also maintained in other subsequent resolutions, such as the Judgment dated January 23, is explained in a reasoned manner of 2004 and the one invoked by the appellant of June 19, 2009.

What has been said in these resolutions must now be reproduced to resolve the request for declaration of nullity of actions, since we are faced with a case in which the appellant denounces the vice of not having given him the floor in order to ask to make allegations after taking evidence (…).
Well, as in the aforementioned resolution we said and now reiterate, although from the literal tenor of art. 447.1 (“Once the evidence has been carried out if it has been proposed and admitted or exposed, otherwise, the arguments of the parties, the hearing will be terminated…”), it seems that it follows that it is not necessary to grant the parties a new turn to speak to rectify facts or concepts or make allegations about the results of the tests carried out, however, said precept must be related to the rules on the view of arts. 182 et seq. LEC. This is also stated in the decision of the AP Zaragoza, section 5, of June 13, 2001 (JUR 2001/228566): “Strictly speaking, article 447-1 of the Law of Civil Procedure 2000 makes it clear that after the practice of evidence, the hearing will be terminated.
But if you want to find in article 185-4 of the Law of Civil Procedure a shelter for this process of conclusions, what this last precept fully admits is a mere assessment of the evidence taken.”

In effect, the rules on the hearing in the verbal trial (arts. 443 to 447) must be valued or integrated together with those provided for in general in the LEC (arts. 182 to 193). (…) the art. 185.4 LEC regulates with mandatory nature that Economist & Jurist 83 the Judge or Court, after practicing the test a, give the floor again to the parties for the procedure previously called conclusions and now pleadings. This is consubstantial to the principle of contradiction or hearing that presides over all processes and that from a constitutional perspective is contemplated in art. 24.1 CE, whose essential content is made up of the need to be heard and which cannot be violated by a currently predominantly oral procedure, in which the judge is in direct and immediate contact with the personal evidence (witnesses and experts) and with the parties. Indeed, as the procedural doctrine affirms, orality is also concentration, to the point that what characterizes an oral proceeding is more concentration than the mere orality of procedural acts (MONTERO AROCA), in such a way that they must be developed in a single hearing, or in a few temporarily close to each other, being the “ideal of any procedure (…) the concentration in a single hearing of all the arguments of the parties, of the proposition and practice of the evidence and even of the resolution of the matter”. And the violation of this right to be heard occurs in the present case, when the possibility of assessing the evidence taken in accordance with art. 185.4 LEC.
This conclusion also leads to a correct systematic interpretation of the LEC (MARIMON DURA), who after its analysis concludes that of all the precepts that regulate the view in the different procedures (arts. 443, 464, 514, 560, 734, 753, 809.2 and 811.5, 818, 826) the only one that does not refer to the verbal trial process is art. 734, which regulates the hearing for the hearing of the parties in the procedures for the adoption of precautionary measures, for which arts. 182 to 193 LEC (Of the hearings) should not be intended or cannot be reduced solely for this assumption, but for all those in which the hearing process is foreseen.
In accordance with what has been said, the appeal is upheld, declaring the nullity of the Judgment and the reinstatement of the proceedings at the moment after the practice of the evidence in the act of the hearing, in accordance with the provisions of articles 238.3 and 240.1 of the L.O.P.J.”

IN MATTER OF FINAL PROCEDURES EVERYTHING REMAINS THE SAME
The panorama does not seem more encouraging in terms of final proceedings in the verbal trial. Law No. 42/2015 does not pay attention to them and despite the important changes that have occurred in the regulation of the verbal trial, the legislator does not pronounce even indirectly on the possibility of carrying out final proceedings in minor matters.
The final proceedings are regulated in article 435 of the Law of Civil Procedure, which specifically regulates the resolution stage in ordinary trials. Said procedural rule contemplates the possibility that before passing sentence, at the request of a party and exceptionally ex officio, the practice of final proceedings is agreed for the performance of means of evidence that could not have been acted in the act of trial for external reasons. to the requesting party. Furthermore, number 2 of the aforementioned procedural rule correctly provides for the court’s informal management of the evidence, which will proceed when the evidentiary activity of the parties has been insufficient for it to be able to resolve with certainty on the merits of the dispute.
Unlike the process of conclusions, there is no general rule regarding final proceedings that can be applied directly to the verbal trial. In fact, Agreement 6, approved by a majority (20 votes in favor and 3 against) of the aforementioned “Conference for the Unification of Criteria of the Magistrates of the Sections of the Provincial Court of Madrid”, determined that “in the verbal trial There is no possibility of final proceedings, as it is not a procedure foreseen for this procedure, without article 460.2.2° LECiv being invoked, in this type of procedure, except for those special trials in which the Judge can agree ex officio the practice of certain tests”.

Once again, it is neither logical nor understandable that our legislator, on the one hand, understands that in an ordinary trial exceptional circumstances may arise that prevent the practice of admitted evidence, and on the other, rule out such circumstances in the processing of an oral trial, is it that only in matters of greater amount is the right of the parties to produce evidence on the facts in dispute admissible? The specialized doctrine coincides in emphasizing that “the right to evidence is presented as one of the essential elements that make up a fair process”, so we understand that the specific procedural channel This fact is irrelevant and in all cases the fundamental rights of the parties must prevail, especially when we are faced with declaratory processes in which the need to provide and produce evidence is imperative in order to persuade the court about the certainty of the facts that are invoked in defense of one or the other party. That said, it is very important to note that in recent years the position of the courts in the final proceedings in the verbal trial seems to be somewhat more reasonable. Nothing can be done if the court denies these proceedings on the basis that they are an exclusive power of the jurisdictional body and that they are not provided for verbal trial, but in practice we find judges who agree to them, with the subsequent approval of the corresponding Provincial Court that resolves an eventual appeal.

In fact, based on a Judgment of the Civil Chamber of the Supreme Court of November 12, 2008, the 1st Section of the Provincial Court of Soria, in judgments issued in July and December 2017, has declared admissible that in an oral trial final proceedings may be agreed upon: The Supreme Court, in a judgment of 11/12/08, in a case in which the Final Proceedings are not foreseen either, which is in the second instance , considers that “if there is a lack of evidence, the final proceedings provided for in article 435 of the new Law of Civil Procedure must be carried out and that are not contemplated for the verbal trial…but that are not prohibited either since the right to guardianship prevails Effective judicial review of article 24 of the Spanish Constitution in the face of unpredictability of the law”. The 1st Section of the Provincial Court of Pontevedra ruled in a similar sense in April 2016, stating that in the framework of a verbal trial “the Judge was free to decide or not to carry out the requested final diligence.”
Even so, after the reform, it is clear that the reasons to the contrary persist and prevail, as expressed by the 4th Section of the Provincial Court of Barcelona in a recent ruling of June 5, 2018, in which the existence of of a procedural defect for not carrying out final proceedings in an oral trial: “Although from the modification of the LEC operated by virtue of Unique Art. 56 of Law 42/2015, of October 5, art.447.1 LEC provides the possibility of granting the parties the processing of conclusions, once the tests have been carried out, however, the possibility of agreeing on final proceedings has not been foreseen”. In our opinion, the absence of a specific norm that expressly authorizes the performance of a pertinent means of evidence in an act subsequent to the hearing of the verbal trial should not mean any impediment to do so, especially when we are faced with a right as essential as the evidence and the need for the court to have all the necessary elements to resolve the dispute with sufficient conviction and certainty.

 

Article published on 11/15/2018 in Economist & Jurist: https://www.economistjurist .es/featured-legal-articles/conclusions-and-final-proceedings-in-the-new-verbal-trial/