The Labor Chamber of the Supreme Court has dismissed the complaint filed by a substitute lawyer who, due to hospital admission and subjection to strong medication of the attorney in charge of the matterdid not file a brief to prepare an appeal within the deadline.
The term ended on July 7, but the lawyer who received the assignment did not present the preparation document until July 9
The car, from June 21, 2022indicates that a situation of defenselessness or impairment of his right to effective judicial protection cannot be appreciated, “since the appellant did not make use of the mechanisms enabled by the legal system to correct at the appropriate procedural moment.
The case
The sentence issued by the Social Chamber of the Superior Court of Justice of Andalusia was sent to the parties by Lexnet on June 17, 2021. However, the lawyer of one of the parties involved, due to his hospital admission and heavy medication, did not access its content until June 28thwith what allowed three business days to elapse -June 18, 21 and 22-, beginning the period to prepare the appeal for unification of doctrine the business day after the third.
The term to prepare the aforementioned appeal ended on the day July 7th at 3:00 p.m., but the lawyer who received the assignment -due to the state of health of his partner-, did not present the preparation brief until the day July 9th.
According to the Regulatory Law of the Social Jurisdiction, the appeal for the unification of doctrine “may be prepared by any of the parties or the Public Prosecutor’s Office, within ten days following the notification of the contested sentence”
As a result of the foregoing, the Social Chamber of the TSJ of Andalusia, by order, considered the appeal for the unification of doctrine presented by the procedural representation of the interested company to be unprepared, for not having made its presentation within the legal term.
Dissatisfied with such a conclusion, the substitute attorney filed Complaint appeal against said order, in the name and on behalf of the aforementioned company.
“It is excluded from the protective scope of art. 24 of the CE the defenselessness due to passivity, lack of interest, negligence, technical error or incompetence of the party or of the professionals who represent or defend it”. (Photo: E&J)
According to the appellant, due to the personal situation suffered by the titular lawyer who held the representation of the company, the legal deadlines for the preparation of the repeated appeal for unification of doctrine should have been interruptedproceeding to resume the computation on June 28, once the company became aware of the current legal deadlines.
In addition, it is emphasized in the appeal brief that, when the titular lawyer announced to the company, via email, his impossibility to take charge of the preparation of the appeal, was mistakenly moved that the sentence was notified to them on June 28 (and not – as was correct – that the notification was effective from June 23), and that they had time to present a brief preparing the appeal until July 12 (and not that they had a deadline – as it was – until July 7).
Supreme Court: andThe interested party did not take advantage of the legal mechanisms at the appropriate procedural moment
Now, the Social Room of the TS dismisses the appeal filed by the substitute lawyer and rejects that the right to effective judicial protection of art. 24 of the Spanish Constitution.
Applying the reiterated doctrine of the Constitutional Court, the Fourth Chamber warns, in the first place, that the possibility of interruption of deadlines contemplated in art. 134.2 of the Law of Civil Procedure, “apart from the fact that their concurrence must be interpreted restrictively, was not requested by the appellant at the time”.
According to the TC, “the right to effective judicial protection is not undermined when the lack of response is basically due to passivity, disinterest, negligence, technical error or incompetence of the parties or professionals who represent or defend them”
Furthermore, secondly, there is also no record to proceed in accordance with the provisions of art. 9.5 of the Code of Ethics of the Spanish Lawyers, which establishes as an obligation, among others, the lawyer in his relations with the professional association to which he belongs, “communicate to the association the personal circumstances that affect his professional situation, (…) and assumptions of illness or disability for a long time that prevent you from attending to the care of your affairs”.
Thus, these two circumstances prevent our High Court “from assessing a situation of defenselessness of the party or an impairment of their right to effective judicial protection, as the appellant did not make use of the mechanisms enabled by the legal system to correct at the appropriate procedural momentthat supervening situation of impossibility in the attention by the lawyer of the matter, having possibility and instruments at his disposal for it”, concludes the recent order.