medidas cautelares penales
English translation: preventive / pretrial measures
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| 13:07 Jun 26, 2009 |
| Spanish to English translations [PRO] Law/Patents - Law (general) / Criminal Law | |||||||
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|  Selected response from: Henry Hinds United States Local time: 13:53 | ||||||
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| Discussion entries: 19 | |
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Answers
14 mins confidence: 
[criminal] restraining order Explanation: A restraining order is commonly thought of by non-lawyers as applicable only in sexual violence cases, but it applies across the board whenever a court tells X not to do Y. It is a form of injunction, which is the broad term. Whether to use "criminal" is a matter of choice. I usually don't, as it is clear from the context and not using it accords with common usage. The Wikepedia article is actually quite good: http://en.wikipedia.org/wiki/Injunction Look at the Temp. Restraints heading. See also: restraining order n. a temporary order of a court to keep conditions as they are (like not taking a child out of the county or not selling marital property) until there can be a hearing in which both parties are present. More properly it is called a temporary restraining order (shortened to TRO). http://dictionary.law.com/Default.aspx?selected=1832 I don't think temporary is necessary in your context. Restraining orders age, generally speaking, temporary under common law. -------------------------------------------------- Note added at 33 mins (2009-06-26 13:40:41 GMT) -------------------------------------------------- See discussion. |
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38 mins confidence: peer agreement (net): +1
peer agreement (net): +1preventive / pretrial measures Explanation: This is what I have been using for "medidas cautelares" with reference to the Mexican justice system when translating to USA English. I am a translator, not a lawyer. |
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52 mins confidence:
provisional remedy Explanation: in rules of civil procedure, remedy available to the plaintiff prior to or during the pendency of a civil action against the defendant in the form of embargo (attachment) or arraigo (restraining order prohibiting a person from leaving the jurisdictin of the court) to secure plaintiff against hiding away, loss, deterioration, transfer or destruction of the defendant's property. Diccionario de terminología jurídica mexicana / Javier F. Becerra |
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1 hr confidence:
court imposed sanctions/court ordered sanctions Explanation: After defendant’s explanation and argument, the trial court decided that the appropriate sanction should be the payment of attorneys’ fees and court reporter costs as well as the striking of defenses, leaving defendant’s denial of negligence for trial. As the majority recognizes, Rule 37 permits the trial court to impose sanctions as was done here. N.C. Gen. Stat. § 1A-1, Rule 37(d) (2007). In the case sub judice the trial judge declined to impose the more drastic sanction requested, that of default judgment, even though such a sanction is clearly permissible. Imports, Inc. v. Credit Union, 37 N.C. App. 121, 245 S.E.2d 798 (1978). The majority also properly notes that the imposition of sanctions under Rule 37 is in the sound discretion of the trial judge and cannot be reversed absent a showing of abuse of discretion. In re Pedestrian Walkway Failure, 173 N.C. App. 237, 618 S.E.2d 819 (2005). full court opinion here: http://www.aoc.state.nc.us/www/public/coa/opinions/2008/pdf/... |
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34 mins confidence: peer agreement (net): +1
peer agreement (net): +1criminal precautionary measures / injunctive relief / protective measures Explanation: Suerte -------------------------------------------------- Note added at 40 minutos (2009-06-26 13:47:42 GMT) -------------------------------------------------- http://noticias.juridicas.com/articulos/65-Derecho Procesal ... injunctive relief n. a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Such an act is the use of judicial (court) authority to handle a problem, and is not a judgment for money. Whether the relief will be granted is usually argued by both sides in a hearing rather than in a full-scale trial, although sometimes it is part of a lawsuit for damages and/or contract performance. Historically, the power to grant injunctive relief stems from English equity courts rather than damages from law courts. (See: injunction, writ, equity, permanent injunction) injunctive relief A situation in which a court grants an order, called an injunction, telling a party to refrain from doing something--or in the case of a mandatory injunction, to carry out a particular action. Usually injunctive relief is granted only after a hearing at which both sides have an opportunity to present testimony and legal arguments. Injunctive Relief It is refered to an act or prohibition of an act by the order of the court which is Injunction, granted in special cases to ensure that no injustice be done till the time the final judgement is passed and it brings relief to either party of the lawsuit too. -------------------------------------------------- Note added at 2 horas (2009-06-26 15:14:32 GMT) -------------------------------------------------- A ver si esto te ayuda (Interim measures): Interim measures and precautionary measures - England and Wales TABLE OF CONTENTS 1. What are the different types of measures? 2. What are the conditions under which such measures may be issued? 2.1. The procedure 2.2. The substantive conditions 3. Object and nature of such measures? 3.1. What types of assets can be subject to such measures? 3.2. What are the effects of such measures? 3.3. What is the validity of such measures? 4. Is there a possibility of appeal against the measure? 1. What are the different types of measures? An injunction is a court order requiring a party to either take certain steps (a mandatory injunction) or refrain from taking certain steps (a negative injunction). An interim injunction is such an order made before the trial of the claim. A claimant may seek to protect his or her position in the course of legal proceedings, or even before proceedings are begun, by seeking an interim injunction to prevent the defendant from acting in a way which will harm the claimant (e.g. to prohibit the publication of defamatory or confidential material, or the sale of a product which infringes the claimant’s intellectual property rights). There are also two specific types of injunction which a claimant may seek where there is a risk that the defendant will take steps to destroy evidence or to frustrate any judgment obtained by the claimant. The first is a search order, which requires the defendant to permit a search of his or her premises for documents or property; the second is a freezing injunction, which prohibits the defendant from dealing with assets or moving them out of the jurisdiction. Where the claimant is seeking payment of a sum of money (e.g. a debt or damages), the court may order the defendant to make an interim payment on account of any sum which the defendant may ultimately be required to pay, in order to avoid hardship to the claimant as a result of any delay in obtaining judgment. A defendant may face the risk that, even if the claim is dismissed and the claimant is ordered to pay costs, it will be impossible to enforce the costs order. To protect the defendant, the court may in certain circumstances order the claimant to provide security for costs, usually by paying a sum of money into court. The High Court has the power to grant interim relief in support of proceedings in another jurisdiction if it is expedient to do so. It may also grant a “worldwide freezing injunction” which applies to assets in other jurisdictions. 2. What are the conditions under which such measures may be issued? 2.1. The procedure Injunctions (including Search Orders and Freezing Injunctions) Injunctions are orders of the court, so it is always necessary to apply to the court to obtain them. In the absence of a search order or freezing injunction, the defendant is generally under no obligation to permit a search of his or her premises or to refrain from dissipating his or her assets. An application for a search order or freezing injunction must normally be made in the High Court, since the County Court does not generally have the jurisdiction to make such orders. Applications for interim injunctions in support of foreign proceedings must be made in the High Court. An application for any other kind of interim injunction may be made in the County Court or High Court. The party seeking an interim injunction (the applicant) must file an application notice at court, supported by written evidence. In making the application, the applicant must make full and frank disclosure of all material facts of which the court should be made aware (particularly where the application is made without notice). A draft order should also be provided, specifying precisely the steps which are required. There are standard forms for certain types of interim injunction, including search orders and freezing injunctions. Forms can be obtained from the Court Service website. In applying for an interim injunction , the applicant is normally required to give a “cross-undertaking in damages”. This is a promise to compensate the respondent for any losses caused by the injunction if it subsequently turns out that the injunction should not have been granted (e.g. because the applicant loses at trial). Applications may be made without giving notice to the other party (the respondent) if there are good reasons not to give notice. They may also be made before the claimant has issued the claim form commencing the main proceedings. There is no formal requirement that the applicant should be represented by a lawyer at the hearing of the application, but an applicant will normally need legal advice and representation in order to make such an application. Once the court grants the order, it must be drawn up and served on the respondent. Court enforcement officers and bailiffs do not play any part in serving or enforcing interim injunctions. However, search orders must be carried out in accordance with special procedures. They must normally be served by a “supervising solicitor” who is familiar with search orders and independent of the applicant’s solicitors. The supervising solicitor must explain the search order to the respondent and advise the respondent of his or her right to seek legal advice. The supervising solicitor will carry out or supervise the search, and report on the search to the applicant’s solicitors. Interim Payments and Security for Costs Interim payments and security for costs may be provided by agreement between the parties, but in the absence of agreement it is necessary to apply to the court (High Court or County Court). The application is made by filing an application notice supported by written evidence. The application must be served on the respondent, who may file evidence in reply. If the court makes the order, it will determine the form and amount of the security or payment which must be made. Costs of obtaining orders There is no fixed scale of costs for obtaining any of the orders described above. There are, however, specific court fees for issuing an application for an order which depend on whether the application is made with notice to the respondent or without notice. Full details of these fees are on the Court Service website. The applicant is liable to pay the fees of his or her solicitors (and in the case of a search order, those of the supervising solicitor), although the respondent may ultimately be ordered to pay those costs. 2.2. The substantive conditions All of the remedies described in this section are discretionary and the court will not grant them if it considers that they would be inappropriate or disproportionate in the circumstances. The courts tend to exercise greater caution in relation to search orders and freezing injunctions because they are particularly severe measures. Interim Injunctions In deciding whether to grant an interim injunction, the court will first consider whether the action raises a “serious question to be tried” (rather than being “frivolous or vexatious”). If it does not, the injunction will be refused. If there is a serious question to be tried, the court will then consider the “balance of convenience”. This involves asking whether it would be worse to require the claimant to go without the injunction until trial, or to make the defendant suffer the injunction. In deciding this question, the court will consider the following matters in the following order: Would an award of damages be an adequate remedy for the claimant if the claimant were to win at trial? If damages would be adequate, the injunction will be refused. If they would not (e.g. because the harm to the claimant would be irreparable or non-pecuniary), the remaining questions must be considered. Would the claimant’s cross-undertaking in damages give the defendant adequate protection if the defendant were to win at trial? If damages would adequately protect the defendant, that normally counts in favour of the injunction. Where the other factors appear evenly balanced, the court will maintain the status quo. This factor normally counts in favour of the injunction. Other social or economic factors may be considered, such as the impact of granting or refusing the injunction on employment or on the availability of medicines. As a last resort, the court may consider the relative merits of the parties’ cases, but only if it is possible to form a clear view that one party’s case is much stronger than the other’s. Search Orders A search order may be made for the purpose of securing the preservation of evidence or property relevant to legal proceedings. The conditions for obtaining a search order are stricter than for other types of injunctions, and the court will not make an order unless the applicant shows that all of the following conditions are satisfied: There is an extremely strong prima facie case against the defendant. The activities of the defendant which give rise to the proceedings cause serious actual or potential harm to the claimant. There is clear evidence that the defendant has incriminating documents or material. There is a “real possibility” or a “probability” that the relevant documents or material will disappear if the order is not made. Freezing Injunctions The court has the power to grant a freezing injunction where it is “just and convenient” to do so. A freezing injunction will not be ordered unless the claimant can show that all of the following conditions are satisfied: The claimant has a substantive cause of action over which the courts of England & Wales have jurisdiction. The claimant has a “good arguable case” against the defendant. There are grounds for believing that the defendant has assets within the jurisdiction. There is a “real risk” that the defendant will deal with the assets in a way which means any judgment cannot be enforced (e.g. by disposing of the assets or removing them from the jurisdiction). Such a risk may be suggested by evidence that the defendant has been dishonest or evasive, has already moved or dissipated assets, or is resident in a country which has lax company laws or where English judgments cannot be enforced. The court will exercise particular caution before granting freezing injunctions in support of foreign proceedings, especially if the freezing injunction would overlap or conflict with any freezing order made by the foreign court in which the main proceedings are taking place, or if the foreign court has refused to freeze assets. The court will not grant a worldwide freezing injunction if the respondent has sufficient assets within the jurisdiction, and must consider whether a worldwide injunction could be enforced in the countries where the respondent has assets. Interim Payments The court may order the defendant to make an interim payment only if the defendant has admitted liability to pay money to the claimant, if judgment has already been given in favour of the claimant for a sum of money which is to be assessed later, or if the court is satisfied that at trial the claimant will recover a “substantial amount of money” (or in a claim for possession of land, a payment in respect of the defendant’s occupation of the land). In personal injury cases, a payment may only be ordered if the defendant’s liability will be met by an insurer or the defendant is a public body. Security for Costs The most common cases in which the court may order the claimant to provide security are where : The claimant is resident outside the European Union and the European Free Trade Area (which includes Iceland, Liechtenstein, Norway and Switzerland) and it would be difficult to enforce a costs order in the claimant’s country of residence. The claimant is a company or other incorporated body and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so. (In deciding whether to order security, the court will take into account whether the claimant’s lack of money or funds has been caused by the defendant’s conduct.) The claimant has changed address with a view to evading the consequences of the litigation; or has failed to give a correct address in the claim form. The claimant has taken steps in relation to his or her assets that would make it difficult to enforce an order for costs against him or her. The court will only make the order if satisfied that it is just to do so in all the circumstances. It will consider whether the application for security is being used to stifle a genuine claim, and whether the claim has a reasonably good prospect of success. The court also has the power to order that security must be provided by: a non-party who is funding the claim in return for a share of the fruits of the proceedings, or who has assigned the right to bring the claim to the claimant in order to avoid the risk of facing a costs order; any party to proceedings who has, without good reason, failed to comply with court rules. 3. Object and nature of such measures? 3.1. What types of assets can be subject to such measures? Interim Injunctions An injunction may require a party to take or refrain from taking steps in relation to any type of asset. For example, it may prohibit the party from disclosing or publishing information, from using land in breach of covenants or planning restrictions, from completing a transaction relating to any type of asset, or from interfering with the other party’s property or intellectual property rights. Search Orders A search order requires the defendant to permit entry to his or her premises, but does not allow the applicant to force entry. The order must specify the premises which may be searched and list the items which the people conducting the search may inspect, copy and remove. The order may only cover evidence which may be relevant in the proceedings, or property which may be the subject-matter of the proceedings or as to which a question may arise in the proceedings. The standard form order requires the respondent to hand over all the items listed in the order, other than computer hard disks. Where relevant evidence may be held on computers, access must be given to all computers on the premises so that they can be searched, and copies must be provided of all relevant items found. Freezing Injunctions The court may make a freezing injunction in relation to the respondent’s property in general, a “maximum sum” order which prohibits the respondent from reducing his or her assets within the jurisdiction below a specified value, or an order freezing specific assets. The respondent will still be allowed to spend stipulated sums on living expenses and legal advice and representation, and the order may permit the respondent to deal with assets in the ordinary course of business. The standard form of freezing injunction is a “maximum sum” order which states that it applies to all the respondent’s assets up to a stated value. It covers any asset which the respondent has the power to deal with as his or her own, including assets held or controlled by a third party in accordance with the respondent’s instructions. A general or “maximum sum” order will cover any assets, including movable and immovable property, vehicles, money and securities. The order will also extend to any assets which are acquired after it is made. It may specify particular properties, business assets and bank accounts which are frozen. A joint bank account will not be frozen unless specifically covered in the order. 3.2. What are the effects of such measures? A failure to comply with an interim injunction is a contempt of court for which the defendant can be imprisoned, fined or have assets sequestrated. The front page of the order should bear a “penal notice” warning the defendant of these possible penalties for breaching the order. It is not necessarily a contempt of court for a third party to allow the respondent to dispose of assets in breach of a freezing injunction. However, if a third party who has been notified of the freezing injunction knowingly assists the respondent in disposing of assets which are frozen, that party commits a contempt and may be fined, imprisoned or have assets sequestrated. The applicant should therefore provide copies of the freezing injunction to third parties such as the respondent’s bankers, accountants and solicitors. (The standard form of order assumes this will be done and warns third parties of the possible penalties. It also includes undertakings by the applicant to meet the reasonable costs incurred by third parties in complying with the order, and to indemnify them against liabilities incurred in doing so.) Even if they have been notified of the order, banks and other third parties may still exercise rights of security and set-off which were created before the freezing injunction was made. A freezing injunction does not give the claimant any property rights in relation to the frozen assets. The right to bring proceedings for contempt is generally the claimant’s only remedy. A contract made in breach of an injunction is illegal and may therefore be unenforceable by a party who knows that it will breach the order. In addition, the court may sometimes be able to grant a separate injunction preventing the defendant from performing a contract with a third party. However, ownership may still be transferred under an illegal contract, and once such a contract has been performed it is not normally possible to recover the assets transferred. 3.3. What is the validity of such measures? When an order for an interim injunction is made in the presence of the parties, it may state that it is effective until trial, judgment or a further order of the court, or until a specified date. (If an injunction is effective “until further order” it will not lapse when the court gives judgment, but only when it makes an order which expressly or impliedly discharges the injunction.) However, an interim injunction made without notice to the respondent will normally last for a limited period, seldom longer than 7 days, and another court order will be needed to continue it. When granting an injunction without notice, the court normally fixes a “return date” for a further hearing at which the respondent may attend and contest the continuation of the order. The standard form freezing injunction states that it applies until the return date or further order. 4. Is there a possibility of appeal against the measure? The defendant or any third party who is directly affected by an interim injunction may apply to the court at any time to have the order varied or discharged (although an application in relation to a search order which has already been executed should normally wait until the trial). It is not necessary to wait until the return date to contest an order made without notice. The defendant must give prior notice of the application to the claimant’s solicitors. The application should usually be made to the court that granted the order, and will often be heard by the same judge. The grounds on which the respondent may apply to vary or discharge an order include: failure to satisfy one of the conditions for the grant of the order, a material change in circumstances which removes the justification for the order, the oppressive effect of the order on the respondent, unreasonable interference with the rights of innocent third parties, and delay by the claimant in pursuing the claim. Where the injunction was obtained without notice to the respondent, the grounds for discharging or varying the order also include failure by the applicant to disclose material facts to the court in obtaining the order, and insufficient evidence to justify giving interim relief without notice. If the court sets aside the order, the respondent is then entitled to rely on the applicant’s cross-undertaking in damages and claim compensation. The court will order an “inquiry as to damages” to ascertain the respondent’s losses, although this may be deferred until the trial or later. The court also has the powers to discharge or vary orders for interim payments and security for costs, and to order that all or part of the money paid under the order should be repaid. Further information Department for Constitutional Affairs Court Service Spain In some cases, delays in the proceedings may make the judicial protection claimed ineffective. Therefore, a series of measures is laid down in the legal system to ensure the effectiveness of the right for which judicial protection is sought. Spanish legislation does not provide an exhaustive list of the precautionary measures that may be adopted. The Code of Civil Procedure states that people can apply to the courts to have precautionary measures adopted that are deemed necessary to ensure the effectiveness of the judicial protection that may be granted in the judgment (for the applicant) to be given subsequently. This implies that even when a series of specific measures is initially listed, this is in any case not comprehensive. Therefore, even though a standard procedural regulation is used for the adoption of all the measures, the grant of measures to protect a right may vary, the sole requirement being the consideration that they are appropriate to obtain the effective protection sought from the court. TABLE OF CONTENTS 1. What are the different types of measures? 2. How are precautionary measures granted? 2.1. Procedure 2.2. What are the criteria used by the court for granting an injunction? 3. Purpose and nature of the precautionary measures 3.1. What types of assets can be subject to such measures? 3.2. What are the effects of such measures? 3.3. What is the validity of such measures? 4. Is there a possibility of appeal against the measure? 1. What are the different types of measures? Legislation on civil proceedings (essentially the Code of Civil Procedure) is the main source for precautionary measures, but some measures are laid down in special substantive laws. The measures laid down in the Code of Civil Procedure (Article 727) include the following: Attachment of assets to ensure the enforcement of judgments involving an order to hand over amounts of money or fruits, revenue and fungible objects that can be estimated in terms of cash by applying certain prices; Judicial administration or receivership of capital goods when it is hoped to obtain a judgment ordering that they be surrendered in terms of ownership, usufruct or any other capacity involving a legitimate interest in maintaining or improving productivity, or when the guarantee of productivity is of vital interest for the effectiveness of the judgment that may be handed down; The impounding of movable property when the application is aimed at obtaining an order to have property in the possession of the defendant handed over; The drawing up of inventories of assets under the conditions laid down by the court; Provisional filing of claims when they refer to assets or rights likely to be entered in public registers; Other entries in registers in cases in which publication in a register is useful for successful enforcement; Court orders to halt an activity provisionally or to refrain temporarily from engaging in a particular type of behaviour, or a temporary prohibition on interrupting or halting the provision of a service that is being performed; Seizure and confiscation of revenue obtained from an activity regarded as illegal, the banning or cessation of which is demanded in the application, with the consigning or confiscation of the amounts being demanded by way of remuneration of intellectual property; Temporary confiscation of copies of works or objects which are deemed to have been produced in breach of intellectual and industrial property rules, plus confiscation of the equipment used to produce them; Suspension of corporate decisions that have been challenged, when the plaintiff or plaintiffs account for at least 1% or 5% of the company capital, depending on whether the defendant company has or has not issued securities which, at the time of the challenge, were listed on a regulated secondary market. In addition to these measures, the last paragraph of Article 727 of the Code of Civil Procedure allows courts to grant other measures not included among those mentioned above. The list is therefore not exhaustive; Other measures which, for the protection of certain rights, are expressly provided for by law or are regarded as necessary to ensure the effectiveness of the judicial protection that may be granted in the judgment (for the applicant) to be handed down in the main proceedings. In addition to this general system, there are other legal provisions relating to precautionary measures, including the following: Proceedings concerning the capacity of persons. Article 726 of the Code of Civil Procedure allows the courts to adopt of their own motion any measures they consider necessary for adequate protection of the person alleged to be incapable or of his property; Proceedings concerning filiation, paternity and maternity. Article 768 of the Code of Civil Procedure contains measures for protecting the person and assets of someone subjected to the authority of the person appearing as the parent, and the granting of provisional maintenance to the plaintiff, even without a preliminary hearing in an urgent case; Protection of the assets of the deceased. Securing of the assets in the succession and of the documents of the deceased can be granted, as can administration of the deceased’s estate and verification of his relatives, among other measures (Articles 790 to 796 of the Code of Civil Procedure) ; The Final Provisions of the Code of Civil Procedure contain measures applicable to specific cases regulated by special laws such as seizure of equipment, devices and materials in proceedings relating to intellectual property (Second Final Provision) and patents (Fifth Final Provision). 2. How are precautionary measures granted? 2.1. Procedure The measures are granted by whichever judge is competent given the subject matter and territory, who will be the one hearing the case or, if the proceedings have not yet been initiated, the one competent to do so. Precautionary measures may be requested before submitting an application provided that it is not impossible to grant them because of their nature (for instance in the case of provisional filing of a claim) , or provided that the law does not require that they be requested together with the application (as in the cessation of prohibited activities or the suspension of collective decisions in cases involving disputes over property in a condominium). Because of their exceptional nature (since the normal thing is to include measures in the application itself) , the simultaneous concurrence of urgency and necessity is required. Precautionary measures may be adopted without hearing the person who will be the other party in the subsequent proceedings (without prejudice to the right to object to these measures once they are granted) , although they do not take effect if, within twenty days after being granted, the corresponding application is not submitted. But, as already mentioned, such measures are frequently requested at the same time as an application is submitted, in which case the judge or court orders the establishment of separate proceedings which are processed simultaneously with the main case and during which evidence may be put forward and heard to prove the concurrence of the requirements needed to obtain the precautionary measure. The general rule is that, before precautionary measures are adopted, the parties are convened to a hearing before the court during which the arguments are put forward and the evidence is heard which is regarded as relevant to the decision on whether or not to adopt a precautionary measure, regardless of the measure in question, or, where appropriate, the decision to require a guarantee from the party requesting the precautionary measure in the event that the application is subsequently dismissed. Notwithstanding this, the party requesting the measure may ask that it be adopted without hearing the other party when this is justified on grounds of urgency or if a hearing could compromise the purpose of the measure (if, for instance, there is a risk of concealment or of dissipation of the debtor’s assets). In this case, once the measure is adopted, the injured party may contest it. Measures may also be requested subsequent to the application or during the appeal phase, although this petition must be based on facts and circumstances that justify submitting it at this time. A lawyer and solicitor are required to apply for the adoption of precautionary measures in those proceedings in which the involvement of such professionals is required. Legal representation is not necessary in the case of measures requested prior to the application. 2.2. What are the criteria used by the court for granting an injunction? For a court to grant any of the measures mentioned above, the following requirements must be met: Risk of harm through the lapse of time or periculum in mora. This involves the risk of damage that the plaintiff may suffer because of a delay in the proceedings, which may thwart the enforcement of what is laid down in the judgment or decision concluding the proceedings. The party who asks for the measure must prove that, in the case in question, if the measures requested are not granted, situations could arise in the course of the proceedings that would prevent or undermine the effectiveness of the protection that could be granted in the judgment (for the applicant). In any case, the measure should not be granted if the situation causing the risk has been borne by the plaintiff for a long time, except where sufficient reasons are given to explain why the measure was not requested beforehand; Prima facie case or fumus boni iuris. The applicant must provide the court with reasons that lead the latter to formulate a preliminary opinion that the application complies with the law. This requirement means that the applicant has to submit details, arguments and supporting documents that lead the court, without prejudging the merits of the case (since in Spain precautionary measures are adopted by the same court which will later judge the case) , to reach a provisional or indicative opinion in favour of the fundamental points in the claim. In addition to documentary evidence, other kinds of evidence are admitted (witnesses, experts, statements by the parties, etc.) ; Security. Except where expressly stated otherwise, the applicant asking for the measure must deposit sufficient security to cover the damages that the precautionary measure could cause to the defendant’s assets. The amount is determined by the court having due regard to: (a) the nature and content of the claim; (b) the assessment it makes of the fundamental points in the application for the measure; and (c) reasons or grounds of suitability or sufficiency in relation to the amount of the damages that could be caused by the measures; Proportionality. This requirement is not explicitly stated in the Code of Civil Procedure, but legal commentators usually consider it as complementary to the above requirements since courts will not grant a measure unless it is strictly necessary to achieve the purpose of the proceedings for which the precautionary protection is requested. It is derived from democratic principles and the principle of minimum intervention in the liberty of individuals which govern the entire legal system and are laid down in the Constitution. 3. Purpose and nature of the precautionary measures The aim in adopting a precautionary measure is to deal with or cover the eventuality that in the course of present or future proceedings, the defendant might be obliged either to refrain from carrying out certain acts or to carry out others in relation to his assets. This is, therefore, an attempt to prevent the defendant from carrying out acts aimed at eluding the entry into his property of assets or rights, at causing or permitting damage to assets and at failing to surrender to custody certain assets, hence creating situations of insolvency in order to prevent the effectiveness of a possible judgment. In Spanish legislation, precautionary measures are judicial in nature since they can only be adopted by the courts. They cannot be adopted by mediators or arbitrators; they do not constitute a specific, exhaustive set of measures; they are dispositive in nature (they can only be adopted at the request of a party) ; they relate to property in that they affect the defendant’s assets and rights; their purpose is to ensure the effectiveness of a possible judgment (for the applicant) ; and lastly they are instrumental with respect to the decision to be handed down in the main proceedings. They may be adopted with respect to tangible and intangible assets. They do not relate solely to property in that measures to limit personal rights can be adopted on a precautionary basis. Orders and prohibitions, involving measures consisting of doing or not doing something, may be adopted. 3.1. What types of assets can be subject to such measures? Precautionary measures may concern specific tangible assets, above all those that may be measured in terms of money, such as proceeds and revenue obtained from objects. An attachment may be requested on these assets, obtaining a right of claim derived from a general obligation in which the things owed are not counted individually but are replaced by a specific amount that can be evaluated in terms of money by means of simple mathematical operations. Concrete movable assets can be impounded and placed with a depositary, a person appointed by the judge on grounds of suitability for the task. There is also the possibility of seizure, consignment and confiscation of amounts, distinguishing between seizure and confiscation of revenue from an illegal activity and that from authorised activities such as that derived from intellectual property. Another group of measures that can be adopted concerns acts that may be authorised by the judge in relation to a claim sought in the application which does not refer to a specifically defined asset. This includes the possibility of judicial administration or receivership of capital goods in the event of a claim to have them surrendered in terms of ownership, usufruct or any other capacity involving a legitimate interest. An inventory of assets can also be requested under conditions laid down by the court. Provisional filing of a claim is permitted when this refers to assets or rights likely to be entered in public registers or other register entries in cases in which publicity would be useful for achieving the purpose of the operation. Lastly, a court order must be issued for the provisional halting of an activity, for temporarily refraining from doing something or for temporarily prohibiting someone from interrupting or halting the provision of a service that is being provided. The last group of things which injunctions can cover concerns materials and specimens that come under the system of exclusivity (judicial sequestration or confiscation of items used for producing goods that generate industrial and intellectual property rights). Corporate decisions by any kind of trading company can also be suspended. Lastly, it is possible in Spanish law to adopt a series of undetermined measures which will protect rights covered by laws or which are regarded as necessary to ensure effective judicial protection. It is not stated which things can be covered by these measures; they may be of any type provided that they are necessary. 3.2. What are the effects of such measures? With the attachment of quantifiable objects, money, revenue and proceeds, the aim is to ensure, via the measure, the existence of a surplus to defray the cost of any judgment obtained against the defendant, above all in cases in which the judgment is not complied with voluntarily. The confiscation of movable property can only be granted when the application is for the surrender of a specific object in the possession of the defendant. Judicial administration or receivership is intended to safeguard particularly productive capital goods, preventing inefficient management from reducing or losing the revenue from production. Placing capital goods under the care of administrators involves judicial control but does not deprive the defendant of management. However, receivership is one step further, with the receiver replacing the defendant as manager. The petition to obtain the establishment of inventories can be granted in any type of procedure, regardless of what the claim is, with the sole requirement being that it is necessary to have the inventory to ensure that the judgment (for the applicant) is obtained. The judge must establish clearly the details which the inventory must contain and how they are to be realised. The effects of provisional filing of claims extend to the procedural situation relating to the proceedings in which they were granted. They attempt to suspend the protection granted by the public nature of registers and of registration certificates, so that the owner of the asset or right entered in the register can sell it, but the third party cannot allege that he was unaware of the subject of the provisional filing, which will affect him. Provisional filing of claims may be granted in all kinds of procedures where protection can be obtained in any public register, such as the property and trade registers. Temporal limitations on the action of the defendant. This is regulated by various special laws, therefore limitations must comply with the rules laid down in these laws. The effects include an order to provisionally halt the activity exercised by the defendant, an order to refrain temporarily from a specific form of behaviour or a prohibition on halting or interrupting the provision of a service which is being provided. Seizure, consignment and confiscation of amounts. This is clearly a protective measure and constitutes a preventive injunction by ensuring the fulfilment of a demand for a specific amount of cash. This measure is used to obtain seizure and confiscation of revenue from an illegal activity. The measure cannot be split, therefore it is necessary to grant both seizure and confiscation. If one or other measure is required, the generic measures analysed above should be used. Another aim of this measure may be to consign or confiscate amounts claimed as remuneration for intellectual property. This concerns the right of authors to collect certain amounts of money for their work consisting of a proportional share of the revenue generated by the various public performances recognised in the Law on Intellectual Property. Depositing of material and specimens under the system of exclusivity. This is a precautionary measure which has its origin in the protection of the exclusive rights of exploitation granted by the special industrial and intellectual property laws to right holders. This is judicial sequestration with specification of the object concerned - specimens or material needed for the production of items covered by exclusive rights. Suspension of corporate decisions. This measure is special because of the legitimacy needed to apply for it, either 1% of the company capital if the company has issued shares which at the time of the challenge were listed on a regulated secondary market, or 5% of the company capital if the above case is not fulfilled. This applies to all kinds of trading companies. 3.3. What is the validity of such measures? Precautionary measures are generally adopted after hearing the defendant. If the applicant claims and provides evidence that the matter is urgent, the judge may grant them within five days, without further procedures and without hearing the defendant. Once the measures are adopted, they may be modified if facts and circumstances are put forward and proven which were not taken into account when the measures were adopted or within the period laid down for opposing the measure. Should a judgment be handed down that is not in favour of the applicant, the judge must immediately order the lifting of the measure, unless otherwise requested given the circumstances of the case, and with an increase in the guarantee deposited. In the event of a judgment that is partly in favour of the applicant, the judge will hear the other party and decide whether to lift or to maintain the measure. If dismissal of the claim is confirmed once a final decision has been issued, the measures will be automatically lifted and the party affected by them may initiate action for the damage caused (the same happens if the plaintiff abandons the action or drops the application). Another case in which precautionary measures may be altered is when the measure is requested prior to the application and is adopted without hearing the defendant. In this case, if the applicant does not comply with the legally established deadline of twenty days for submitting the application, the measure must be immediately lifted and the defendant paid damages, with any legal costs being paid by the applicant. A measure cannot be maintained either if the proceedings are suspended for more than six months because of a reason imputable to the applicant. When provisional enforcement of a judgment is issued, any measures that may have been granted relating to the initial enforcement are abolished and replaced by enforcement measures, so that the nature of the measures originally adopted as precautionary measures changes. Lastly, the defendant may ask the court to replace the decreed precautionary measure by sufficient security which guarantees effective compliance with the judgment. The judge who adopted the measure is competent to do this. He establishes the security which may be provided in terms of actual money or of a guarantee. 4. Is there a possibility of appeal against the measure? Procedural rules provide for the possibility of making an appeal to a higher court. An appeal may be made against the decision which granted the measure, but this does not have a suspensory effect. An appeal can also be made against a decision which rejected the measure. Together with this possibility of appeal, the applicant may in any case reintroduce his request if the circumstances which existed at the time of his initial petition should change. No appeal may be made against a decision granting a precautionary measure which was issued without hearing the defendant since, in this case, the procedure to be followed is an opposition procedure, which is handled by the judge who adopted the precautionary measure. The defendant may initiate appeal proceedings, without a suspensory effect, against a decision dismissing his opposition. The applicant has the same right of appeal where the opposition is fully or partly upheld. Unlike the above, no appeal can be made when security is accepted or rejected. The preparation and procedural phases of the appeal do not differ substantially from the general rules. Thus the intention to appeal is announced in writing in a preparatory document submitted to the same body which issued the decision to be appealed within a period of five working days from the notification of the decision. If there are several appellants, the deadline is calculated individually. The intention to appeal the decision regarded as prejudicial must be set down in this document. Following this, the judge checks to ensure that the deadline has been observed and that the decision can be appealed. If so, he informs the appellant that he must, within twenty days, submit an application to initiate the appeal proceedings. In this application, he must set down, with arguments, the reasons of form and substance which he considers to be infringed by the decision. This application will be forwarded to the other parties who, within ten days, must submit a statement in writing objecting to the appeal or challenging the decision on some point which they consider to be prejudicial to them. In both cases, the statement must contain reasons and grounds. Once these arguments have been submitted, the documents are handed over to a higher court and the parties are summonsed to appear before it. As mentioned above, the initiation of appeal proceedings during the procedure of adoption of precautionary measures will not have a suspensory effect, in other words the judge will continue to grant whatever measures he considers necessary to ensure that the precautionary measure is adopted. Such proceedings are treated preferentially by the court of appeal, and the dates for deliberation, voting and passing of judgment must be granted as soon as possible. http://ec.europa.eu/civiljustice/interim_measures/interim_me... |
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"Criminal procedure" Explanation: http://en.wikipedia.org/wiki/Category:Criminal_procedure Category:Criminal procedure From Wikipedia, the free encyclopedia Jump to: navigation, search The main article for this category is Criminal procedure. Subcategories This category has the following 4 subcategories, out of 4 total. R [+] Rights of the accused (1) T [+] Trials (6) U [+] United States criminal procedure case law (0) Categoría:Derecho procesal penal De Wikipedia, la enciclopedia libre Saltar a navegación, búsqueda El artículo principal de esta categoría es Derecho procesal penal. Subcategorías Esta categoría incluye solamente la siguiente subcategoría: M [+] Medidas cautelares (0) http://es.wikipedia.org/wiki/Categoría:Derecho_procesal_pena... |
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