Lawyerpress News The possible resources before the incapacitation sentence

Mario Sánchez Linde, lawyer.

Within the Civil Procedure Law1/2000, of January 7, is CAP.IV, of theTít I (Book IV), entitled "Of the processes on the ability of people".This special process called "incapacitation", judicially accredits whether a person holds the physical and mental faculties to self -govern, caused their alleged disability by any physical or psychic illness, always as persistent deficiency.Judicial incapacitation shares the.The trial the procedure will be that of the verbal trial-but with a written response of the demand and process of conclusions-, in addition to holding preferential process if any of the interested parties are less, incapable, or is in a situation of legal absence (art.753.3 LEC).

Special attention deserves the sentence of incapacitation, since the inability of a natural person but is never declared by judicial sentence, and for the causes prescribed in the law.The judicial resolution must contain the extension of the incapacitation, and the possible appointment of a tutor or curator that ensure the incapacitated, as well as for their heritage (vine.Tít.X, from Book I, of the Civil Code, and STC of February14,2011, No..7/2011) (1).

The sentence can be appealed in appeal, as extracted from art.759.3 LEC, which states that "if the sentence that decides on the incapacitation is appealed, the practice of the preceptive evidence referred to in the previous sections of this article" will also be ordered ex officio in the second instance. ".As this precept indicates, the resolution of the Court of1st Instance (or Court of Disabilities) may be appealed in appeal, and by not mentioning in the article any specialty, the deadline to appeal before the Provincial Court will be the general of twenty days, to countFrom the notification of the sentence (art.458.1 LEC) (2).

The appeal must necessarily be based on the incorrectness of the application of the law, or on an erroneous assessment of the evidence.Despite being a special process, lawyers or attorneys can be different, and both parties may resort to the double meaning of the sentence, that is, the declaration of disability or its absence.In any case, the effects of the estimated sentence of the1st instance will be suspended with the appeal;In this way, the person will not be incapable yet since the appeal has suspensive effects, and the provisional execution is not admitted (3).Open the second instance, the Provincial Court will examine the evidence again, the controversial facts, and the application of procedural norms.In this way, the new judgment may eliminate the declaration of disability, aggravate or minor.3833/1991).

In the probative matter of second instance, the art.759.3 LEC presents a specialty, which is to order ex officio the practice of the tests of the incapacitation process-mainly the medical expert;In addition, the Court will not be subject to the general provisions of the LEC as long as the probative force of the interrogation of the party, or public or private documents, if they have been recognized.In this way, the Provincial Court is trained to order new evidence, to leave those practiced or repeat them, all regardless of those requested by the parties or the Fiscal Ministry (vid.Arts.752.2 and.3 LEC).Nor is the compliance with the facts binding for the audience, who may not accept it according to new evidence or the arguments spotted in trial.

When the Provincial Court resolves the appeal, the sentence may be appealed exceptionally through extraordinary resource for procedural infraction (Art.468 to 476 LEC), and also by appeal (art.477.3 LEC) before the Supreme Court.However and as they say, the admission of these resources by the high court presents a restrictive character.Cases such as, for example, a basic procedural rule, or a clear error in the assessment of the test will be admitted.In any case and for the appeal to be admitted, it will have to be mentioned textually in the brief of the appeal that legal precepts have been breached, what is the violation of the judicial protection of fundamental rights -except those of article 24 of the Constitution -,,as well as in your case, the casational interest.In the Mass form, it will be necessary that in the supplico the express claim on the issue atmate to the disability, so that in the subsequent judgment it can be subject to proof and argumentation (4) can be recorded (4).

Finally, the recurs of firm sentences- before the TS or before the TSJ of the Autonomous Community is appropriate- if the ruling of the sentence declared that the person is incapable, and after pronounced, “decisive documents are recovered or obtained or obtained,of those who could not have been arranged by force majeure or by work of the part in whose favor it had been issued ”(Art.510.1.1º LEC), or if the same sentence had fallen “by virtue of documents that at the time of issued one of the parties had been declared false in a criminal process, or whose falsehood will declare later” (art.510.1.2nd).The same will happen whether the judicial resolution has been favorable to the incapacitation, but based on testimony or expert tests and the witnesses or experts had been convicted of false testimony, or if it had declared “unjustly by virtue of bribery, violence or fraudulent machination”(art.510.1.3rd and.4th LEC).Remember that the demand for review does not suspend the execution of the final sentence that motivated it, except if it was issued in rebellion (Arts.565 and 566 LEC).

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The deadline to raise the appeal will be five years since the publication of the sentence, although there may be two exceptions.The first is that the deadline is reduced to one year-from the final judgment-when the appeal is motivated in a judgment of the European Court of Human Rights.The second refers to the assumption of the existence of bribery, violence or fraud, and documents were discovered to demonstrate it;In this last case, the deadline is shortened to only three months from the discovery of such documents (art.512.1 and.2 LEC) (5).

Grades:

(1) When deciding on the ability of a person, the sentence- firm- enjoys direct access to the civil registry (arts.755 of the LEC;art.1.5 de la Ley de 8 de junio de1957, del Registro Civil;Arts.4 and 72.1 of Law 20/2011, of July 21, of the Civil Registry.

(2)Véanse tambiénArts.455 and 456 LEC.

(3) Likewise, transaction, resignation or search are not allowed in this headquarters, and if they are raised they will have no effect (art.751.1 LEC).

(4) Lete del Rio, "Declaration of incapacitation and appointment of tutor or curator: the double judicial procedure", in judicial law notebooks, no.11, 2003, p.201.Vine. también SAP Barcelona, de 23 de abril de2013, R.189908/2013.

(5) Vid.CARRERAS Maraña, "The constitution of protection and the designation of the tutor: its determination in the sentence of incapacitation itself", in the Law: Spanish Legal Magazine of Doctrine, Jurisprudence and Bibliography, No..1, pp.167 y ss.See also STS of May 20, 2003, R.5294/2003, analyzing the procedural principles of contradiction and proof.