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


IN BRIEF: «One of the conflictive points in the application of the Law of Civil Procedure is the possibility of demanding and carrying out both the corresponding procedure of conclusions once the means of proof have been acted, such as the final proceedings regarding those that could not have been acted regularly in the act of the hearing for reasons not attributable to the parties.

Apparently, the problem and the conflict arise from the simple fact that the procedural rules that specifically regulate the verbal trial do not expressly establish the possibility of making conclusions and/or carrying out final proceedings . So, the different system operators do not end up agreeing on the matter.

Given the disparity of responses from the courts, we understand that we must resort to the general rules and principles that inspire our procedural system, the right to effective judicial protection and the related rights recognized by the Constitution, as well as the very concept and adequate exercise of the jurisdictional function to determine that the processing of conclusions and the practice of final proceedings are perfectly viable and enforceable in the declaratory processes processed through the channels of the oral trial. .»

The Spanish civil procedure system makes two types of processes available to the citizen: declarative or cognitive and executive. The declarative process, which is the one of interest for the purposes of the topic raised, has two procedural channels: verbal and ordinary. The first is summary and expeditious in its single hearing process; while the second responds entirely to the logic of the process by hearings in which the process and the procedural relationship are first sanitized and then act on the evidence and formulate conclusions with a view to resolving the lawsuit by sentence.

As indicated in the Explanatory Memorandum of the Civil Procedure Law, this law reserves for oral proceedings those litigations characterized, “first of all, by the singular simplicity of the controversial and, secondly, for its small economic interest«. The rest of the declaratory claims (whether they are merely declaratory, constitutive or sentence) must follow the channels of the ordinary trial.

That is to say, the procedural channels foreseen for the declaratory process are differentiated exclusively by matters of matter and amount. In principle, it is simple and less onerous compared to complex and/or expensive. However, in both cases -as opposed to executive processes- there is a need for discussion, proof of facts and law, as well as persuasion from the court, and the debate should be characterized by its concentration, immediacy and orality.

Thus, returning to the aforementioned Statement of Motives of the current Law of Civil Procedure, we find that the legislator expressly recognizes that «if, after the initial allegations of the parties, attends immediately to an oral act, in which, before passing judgment also 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 the full contradiction and without the desirable attention of all the elements that have to found the ruling, or that the time that has apparently been gained by going immediately to the act of trial or hearing is has to lose with suspensions and incidents, which in no way can always be considered unjustified and merely dilatory, but often necessary due to the complexity of the issues.”

In this regard, it should be noted that although the legislator makes this precision to justify that only certain matters are processed and resolved through oral proceedings, practice shows us that also in those assumptions determined by law as initially devoid of special complexity, the matter often becomes particularly complex and then reality goes beyond the well-intentioned provisions of the procedural norm. In such cases, even the resolution of the controversies initially planned to be processed through the channels of the verbal trial faces the risks warned by the legislator himself in the aforementioned Statement of Motives of the law. How can the system respond in such cases?

Let’s see, the declarative processes are found are regulated in Book II of the Law of Civil Procedure, and it is Title III, included in articles 437 to 447, which refers specifically to oral proceedings. This begins with a succinct request in which what is requested must be stated clearly and precisely. The defendant will be summoned with the demand so that he complies with answering it orally at the hearing. This, in general terms, must be carried out in accordance with the provisions of article 443 of the same legal text.

That is to say, unlike what is foreseen for the controversies that are processed through the channels of the ordinary trial, in the verbal trial everything is carried out in unity of act, being in a Once the plaintiff finishes substantiating his claim, the defendant orally exercises his right of contradiction, the disputed facts are established, and finally the pertinent evidence is offered and admitted for its immediate practice before the court. Under normal conditions, once the hearing of the verbal trial has concluded, the matter must be ready for the judge to pass sentence. In fact, article 447.1 establishes that “once the evidence has been taken, if the arguments of the parties have been proposed and admitted or exposed, in another case, the hearing will be considered over and the Court will issue a Judgment within the following ten days.”

On the contrary, article 433 of the Law of Civil Procedure, which regulates the act of trial in the ordinary procedure, expressly provides for the processing of oral conclusions by the lawyers of the parties once the practice of the evidence has concluded, even giving the court the possibility, in the event that it does not consider itself sufficiently enlightened on the case, to “give the parties the floor as many times as it deems necessary so that they report on the issues you indicate”.

The legislator’s apparent omission regarding the possibility of reaching conclusions in the verbal trial is surprising if we consider that in both cases it will be important for the parties to interpret and assess the evidence produced in relation to the disputed facts. However, article 185.4 of the Law of Civil Procedure, located in Section 2 of Chapter VII of Title V of Book I, referring to the general regulation of hearings in civil proceedings, expressly establishes that once the evidence has been The floor must be given to the parties to “concisely formulate the allegations that they agree on the result of the tests carried out”, which at least allows us to affirm that the processing of conclusions in an oral trial is not prohibited by the procedural rules .

Regarding the final proceedings, article 435 of the aforementioned legal text, which specifically regulates the resolution stage in ordinary trials, expressly contemplates the possibility that before If a judgment is issued, at the request of a party and exceptionally ex officio, the practice of final proceedings is agreed for the performance of evidence that could not have been acted regularly in the act of trial for reasons beyond the control of the requesting party. In fact, number 2 of the aforementioned procedural rule correctly regulates the informal management of the evidence by the court, 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 controversy.

Unlike the assumption of the conclusions, there is no general rule regarding final proceedings that can be applied directly to the verbal trial. However, making our own the position of the most modern procedural doctrine on evidence, we must remember Professor Reynaldo Bustamante when he points out that “it is the right to evidence that guarantees that the evidence offered will be admitted, practiced and properly valued ( in accordance with the principles and other legal assets that delimit its content), the right to evidence is presented as one of the essential elements that make up a fair process.”

Thus, we understand that for the purposes of a fair process, the specific procedural channel is irrelevant and the fundamental rights of the parties prevail, especially when in both cases we are faced with declarative processes in which the need to provide and produce evidence is imperative (art. 217 LEC) in order to persuade the court about the certainty of the facts that are invoked in defense of one or the other party.

Along the same lines, and in specific relation to the right to proof, Constitutional Court Judgment no. 104/2003 (Second Chamber), of June 2, states that “such right is inseparable from the right of defense itself and requires that the relevant evidence proposed in a timely manner be admitted and practiced without obstacles.”

Despite this, the debate continues in courts as to whether the non-specific provision for a process of conclusions and final proceedings constitutes a real impediment for them to agree ex officio in a verbal trial and, failing that, the parties may validly demand them as a necessary procedure prior to sentencing.

As an example, in terms of conclusions, the Judgment of the Provincial Court of Barcelona no. 547/2007 (Section 16), of November 12, establishes that “the circumstance of not having granted the process of conclusions is not constitutive of any defect, because, despite what the general rule of article 185.4 of the repeated procedural law says , the truth is that the specific rule of article 447.1 determines that, once the tests have been carried out, the hearing will be considered over and a sentence will be passed. The special norm must prevail over the general one, and the fact that the law provides for this procedure of conclusions for the ordinary trial shows that it has wanted to distinguish and establish the procedure in one process and not in another.»

In contrast, the Judgment of the Provincial Court of Burgos no. 352/2007 (Section 2) of September 25, provides that “it is considered in a very different way by Judges and Courts, given the confusing wording of articles 443 and 447.1, both of Law 1/2000, of January 7, of Civil Procedure, which indicate that once the evidence has been taken or when it has not existed -and in the latter case, the allegations of the parties have been exposed-, a sentence will be passed, but when evidence is taken, as in the case we are analyzing, It is presented as essential that this summary can be made on the factual extremes that have been the subject of controversy and the evidence that proves it, a solution that, in the opinion of the court, is imposed in accordance with the literal content of article 185.4 of the aforementioned Law 1/2000 when it states that the Judge, once the practice of evidence has concluded or, if it had taken place, the first turn of interventions has ended, will once again give the floor to the parties to rectify facts or concepts and, where appropriate, Concisely formulate the allegations they deem appropriate on the tests carried out.”

In terms of final proceedings, the courts seem to be more aligned in order to deny them directly in the verbal trial. Thus, for all of them, the Judgment of the Provincial Court of Burgos num. 120/2007 (Section 3), of March 13, establishes that “the request for final proceedings must be rejected given that, as understood by most of the doctrine and jurisprudence in oral proceedings, its practice is not possible, since article 435 of the LEC that regulates the final proceedings is only located in Chapter IV of Title II related to the ordinary trial and if the legislator had wanted to extend the possibility of final proceedings to the verbal trial, it would have expressly included it in the regulation of the verbal trial. In addition, article 435 of the LEC cannot be understood as applicable to oral proceedings because it does not say so in any way. Neither, in article 447 of the LEC regarding the sentence of the verbal trial, is anything said regarding this possibility, and if so wanted, it would have been contemplated in this precept”.

In the same sense, the 6th agreement adopted at the “Conference for the Unification of Criteria of the Magistrates of the Sections of the Provincial Court of Madrid”, held on September 23, 2004, which determines that:

«In the Verbal Trial there is no possibility of final proceedings, as it is not a procedure foreseen for that 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 to the practice of certain tests. (Agreement approved by a majority: 20 votes in favor and 3 against).

However, in terms of conclusions, the following was adopted:

«Supplementary agreement: In the Verbal Trial, in application of the provisions of article 185.4 LECiv, it is mandatory, unless the parties waive the process of conclusions after the practice of the proof. (Agreement approved by majority: 15 votes in favor and 7 against)».

We disagree with the first agreement of the magistrates of the Provincial Court of Madrid and we agree with the second, with the aggravating circumstance that the omission of práctica of a means of evidence seems to us much more harmful than the impossibility of making conclusions about the evidence produced in the trial.

Regarding the seriousness of the violation of the parties’ right to evidence, it is pertinent to cite the Judgment of the Plenary of the Constitutional Court no. 91/2000, of March 30, which states that “for there to be constitutionally relevant defenselessness, it is necessary that the judicial body, in the course of the process, unduly limits one of the parties the possibility of defending itself, alleging or practicing evidence in defense of their own interests.”

In effect, if the Civil Procedure Law is an organic and harmonious system of public order rules that regulate the operation of judicial processes in general, they must also be applied by analogy to the verbal trial the other normative provisions common to the declaratory processes and to all the rights of the interveners in the process. 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 for the parties as the evidence. and the need for the court to have all the necessary elements to resolve the dispute with sufficient conviction and certainty.

In this regard, we must not lose sight of what was pointed out by the aforementioned professor Bustamante in his work «Fundamental Rights and Fair Process» in the sense that «the process – or the procedure – to be fair, it cannot be conducted in strictly formal, mechanical terms, or according to a capricious ritualism, which leaves aside the particular questions of the concrete case or privileges the forms over the substantive issues, unless it is , in the latter case, that the forms are reasonable and that compliance with them seeks to safeguard a right or prevent a grievance from occurring”; adding that “the fulfillment of the purpose of the forms must be privileged over the fulfillment of the forms themselves.”

We cannot limit ourselves to interpreting the rules literally. It is imperative to attend to the rights that underlie them to give them real and efficient content. Already the contribution, admission and practice of the means of proof in unity of act generates enough problems to close the doors to the possibility of delayed performance of a means of proof that may be essential at the time of sentencing. We do not question the single hearing procedure provided for the verbal trial, but the apparent impossibility of attending to exceptional circumstances in its processing, especially when the essential guarantees of due process are at stake.

Thus, in our view, flatly denying that in a verbal trial there is the possibility of acting through final proceedings a pertinent means of proof, provided in time and form, directly violates the constitutional right to effective judicial protection and can leave the parties defenseless. The possibility of acting said means of evidence in the second instance (in application of article 460.2.2º LEC) does not serve as consolation, since even acting the means of evidence in question in the place of appeal, the party will have lost his right to have the two instances of law review and assess the evidence produced in the process.

In this regard, the aforementioned Judgment of the Plenary Session of the Constitutional Court no. 91/2000, refers to “the special binding force of fundamental rights that, as objective bases of our legal system, are imposed on public powers unconditionally.”

Needless to say if the person who requires the performance of said means of proof is the court itself for not finishing forming a conviction on the controversial matter (art. 435.2 LEC). Denying the final proceedings in the verbal trial is as much as forcing the courts to resolve controversies without conviction or certainty, thus distancing the legal truth from the material or objective truth.

Let us not forget that the so-called «jurisdictional function» or «jurisdiction» is defined as «the power-duty of the State» to solve conflicts or uncertainties with legal relevance. It is “power” because there is a jurisdictional monopoly of the State that empowers it exclusively to decide litigation, but at the same time it is “duty”, because in response to the right to effective judicial protection recognized in article 24 of the Spanish Constitution the state is obligedto resolve those matters that citizens submit to their ius imperium. Needless to say, such dispute resolution must be done with full conviction on the part of the courts, as otherwise there is no justification for a third party to impose a decision on the parties.

In summary, aside from the specific rules that regulate the verbal trial and the matters that are the object of the same, the conclusions and the final proceedings in the verbal trial are not only a right of the litigants but also a power-duty of the courts that in the exercise of the jurisdictional function must always privilege the purposes of the process and the rights of the parties over the forms of the procedure, seeking a coherent jurisprudential development with the essential guarantees of due process and the need to bring justice closer to the concrete reality on which it must intervene.

Article published in the Economist & Jurist on 10/1/2011 https://