Nullity of the Urban Plan of Cartagena

The doctrine implicitly prevents giving (total or partial) final approval to a General Plan that incurs in "substantial deficiencies".

Deficiencies can be "substantial", due to being too many, due to the total land surface affected, or because they largely affect to General Systems and structural elements of urban planning and even territorial. In such a case no approval can be granted; not even a partial approval.

Only the requirement of alterations of “minor relevance” allows granting a Final Approval subject to correction of deficiencies.

Final approval in this case was made with many deficiencies.

The deficiencies affected all elements of the town, and almost all the territory. The defects were of substantial consideration, and therefore capable of producing situations of legal uncertainty, and of uncertainty in the development and application of the Plan.

The ulterior delegated confirmation of the corrections could not validate the Urban Plan because of those essential deficiencies. The Urban Plan should not have been approved, not even subject to correction of deficiencies.

The nullity of the approval of the General Plan does produce as a result the invalidity of the confirmation of corrections, since the Plan does not exist anymore. 

(Subject to appeal)

See STSJ MU 421/2015













IMAGEN FLIKR CREARIVE COMMONS  jttps://www.flickr.com/photos/cornelluniversitylibrary/3610650989/in/photolist-6v4wKg-oePNoS-oePNey-ow5ipa

Self money laundering proceedings of a former condemned crime

The Case Law has not been unambiguous:

    1) The crime of money laundering is an autonomous offense which defines and describes a different and specific behavior. You are faced with two offenses together in real competition, and not to a form of absorption. The coincidence of authors in the fund generating activity and in the money laundering is an obvious real contest and not a mode of absorption of one behavior by the other.

    

    Both  behaviors acquire autonomous criminological relevance and allow the joint consideration  as a sum of criminal activities. Both activities have a different nature and affect to different legal interests.

    2) Other times the Case Law has understood that any crime in general (especially crimes against property and public health) imply a vocation of economic exploitation, and the double punishment is not possible to the extent that enjoying the illegal profits  is part of the structure the former crime. Therefore the punishment on the initial offense includes the laundering, so that further punishment would infringe the principle of non bis in idem (no double penalty for the same crime).

    

    Transforming the proceeds of a crime for which you have been found guilty must be considered as part of that crime, since otherwise the same assets would be subject to a double criminal punishment.

    

    There must be a complete identity between the authorship of the former crime and the money laundering. When wealth is generated through a permanent illegal behavior, this heritage of illicit origin is disconnected to an specific crime. In this case, the double punishment is appropriate.

IMAGEN FLIKR CREATIVE  COMMONS https://www.flickr.com/photos/tuinkabouter/388033988/in/photolist-AhLZb-6WYVJM-e5NwPF-m5PBg-bzzrN6-ieH9VK-pQnMat-9qJdSa-cBBsah-ryES6K-8AuaCe-awUcoP-ebHRSC-8hGWpZ-7CFoQf-qsEqRF-8yFJY5-oUxNBX-8gufG7-7uv6Do-bmEz4W-73M5BG-2svm7-gwUMyz-5jWKmb-9bie9P-7wJDp-3JSERs-adHLfk-7cFJmb-hLw1X-jKGRYt-5YL96p-5YMBDa-bq82BQ-7WyWjR-583TU5-4h4kon-6StbdK-89uppR-kUM2T-53tKW2-fB76gN-792qs-rKznUV-eC7AHQ-6SR9xt-7LKHRy-2ke8E-91K5Qw

The Liability of the Public Administration

To confirm the of liability of the Public Administration the requirements are:

a) Actual damage or injury, which are economically assessable and individualized in relation to a person or group of people.

b) That the damage or injury suffered is a result of normal or abnormal functioning of public services, in a direct, immediate and exclusive relationship of cause and effect, without the intervention of other elements that could influence, altering the link to the cause of the damage.

c) Absence of force majeure.

d) The claimant must not have a legal reason or duty to withstand the damage.

When the risk inherent to the use of the Public Service exceeds the limits required by safety standards socially acceptable, that is enough to classify the damage caused as unlawful.

It's “objective” liability and therefore there is no need to prove:
      
       1) That responsible persons or entities acted intentionally or negligently.

       2) The public service functioned abnormally.

The responsibility of the Public Administration is based on:
      
       A) Generic principle of effective judicial protection,
      
       B) The rights of individuals to compensation for any harm they suffer as a  consequence of the operation of public services, and

      
       C) The right of individuals to be compensated by the State of any harm they suffer as a result of normal or abnormal functioning of public services, when the damage is effective, economically assessable and individualized.

Abusive clause: Nullity by imbalance

The existence of a  imbalance that hurts the consumers is the key to the abusive condition of the non negotiated terms included in the general conditions of the contracts.

The abusive general condition of a contracts is null where the contract is concluded with a consumer.

The requirements to consider abusive the general condition are:

a) That it is a pre established general condition and it is intended to be imposed in several contracts without being negotiated individually.

b) That it causes a significant imbalance in the rights and obligations in breach of the good faith.

c ) That the imbalance harms the consumer .

The circumstances to consider are those of the date on which the contract was signed , including the expected development of the circumstances whether these were taken into account or should have been taken into account. It is to be considered the information available to a diligent businessman, at least in the short medium term.

The analysis must consider the remaining provisions thereof.

The fact that a clause is clear and understandable does not mean that it is balanced or that it benefits the consumer .

The lack of transparency does not necessarily mean that the clause is unbalanced and that the imbalance is a significant prejudice to the consumer.

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Case History Medical Error: Breast Cancer.

In May 2008 a tumour-like lesion of about 1 cm is diagnosed.

Between May and August the patient undergoes review of General Surgery, Ultrasound with benign characteristics, scarce material is obtained (the sample is not diagnosed) , Thick Needle Biopsy is requested ( BAG), normal NMR and no pathological solid image .

So far the performance is in accordance with protocols.

In 2009 in the review and ultrasound test the size evolution is:

                            2008 June : 7 x 4 mm

                            2008 July : 9 mm

                            2009 May : 1.79 cm x 0.65 cm

There is a clear increase in nodule size and a biopsy should be recommended, but the report says that "does not show significant changes from previous ultrasound and no biopsy with thick needle is made".

The report of the ultrasound test does not register significant changes in size of the node.

The latter two actions mean a delay in the biopsy prescription of 16 months.

In August 2010 the biopsy is prescribed. The patient delays the intervention due to her holidays considering the benign characteristics and the long evolution.

In January 2011, following the complaint of the patient for the delay, the nodule is removed and diagnosed as infiltrating ductal carcinoma.

The relative probability of survival after 5 years of the patient has decreased from 88-100 %in May 2009 to 76-86 % in February 2011.

CONCLUSIONS

There was a medical error.

It is unknown whether the nodule was a primary tumour in May 2009 and then underwent a subsequent malignant transformation.

Should the biopsy had been prescribed in May 2009, it could have been possible an early diagnosis and an increased life expectancy.

The defendants admitted the existence of malpractice by, and the question left was to value the damages. 

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"Tax Planning" and "Tax Fraud"

"Tax Planning" and "Tax Fraud" have in common that both prevent, totally or partially, the payment of taxes, whose taxable event is not done or occurs in a less burdensome manner. This is achieved by choosing different paths to those ordinary or expected .

The Tax Planning option is lawfully chosen between various legal alternatives, one effect of which is to obtain a tax advantage.

In the Tax Fraud actually, and despite the outward appearance, the choice is not materially lawful, as it is achieved by using improper means, for the sole purpose of obtaining that Tax advantage.

The Tax Office has to calculate the tax due in accordance to the legal nature of the real fact, as defined by law, with no regard to the appearance or name the parties may have given to it. However the Tax Office cannot as a result of fraud of law invoice the proper taxes without the prior express declaration of the existence of such fraud of law.

The declaration of the existence of fraud of law with tax implications requires an specific procedure in which the corresponding proof is furnished to the interested parties.

Health Administration Responsibility: The loss of opportunity

When all the diagnostic tools available that could have guided the patient's diagnosis and determined its study and treatment have not been used, and the patient situation reaches an irreversible state, then we face the "loss of opportunity".

The loss of opportunity has been embraced in case law as an alternative to the breach of "lex artis", and  allows for a compensatory response in cases where the latter failure has not occurred, however it exists an unlawful damage arising from the operation of the service.

In this case we cannot ever know what would have been the end result, even if all available diagnostics possibilities had been exhausted .

In these cases, the material damage doesn't correspond to the fact occurred , but to the uncertainty surrounding the sequence that could have taken the facts should the medical service had followed other performance parameters, in short, the possibility that the circumstances concurrent had occurred in a different way.

The loss of opportunity is the loss of an alternative treatment, which resembles somewhat to the moral damage, and that is the concept to compensate.

We can state that medical action deprived the patient of certain expectations of healing, which should be compensated , but reducing the amount of compensation due to the probability that the loss occurred equally, having acted diligently. 

The immigrant child. Passport and the medical evidence of age determination.

The immigrant underage child with passport or equivalent document  cannot be discarded as minor of age and cannot be considered an undocumented alien so as to undergo additional tests to determine his age. A valid justification is required to oblige him to undergo such tests when he has a valid passport.

If in doubt about the document, a judgment of proportionality is to be made, and the reasons why it is considered that the document is not reliable are to be properly analysed prior to deciding to carry out the medical age determination tests.

In the case of both documented and undocumented persons, medical techniques for age determination, especially if they are invasive, may not be applied indiscriminately.

Any doubt about the minority of age based on mere physical appearance of the person shall be resolved in favour of the underage, given the fact that current techniques do not allow to establish with precision the age of an individual and also the existing debate on their accuracy.

According to the European Parliament resolution of 12 September 201 , an unaccompanied minor is primarily a child exposed to a potential hazard.

The protection of children, and not the immigration policies, should be the guiding principle for member States and the European Union in this subject, with respect to the higher interests of the child.

Both public authorities and private institutions should prioritize the interests of the child, which should prevail over any other consideration in all acts adopted in this area, as set out in legislation and case law.

The incongruity of the Court ruling. The omission.

The incongruity of the ruling is the mismatch between the judgment and the terms on which the parties made ​​their claims; granting more or less, or something different than requested.

The judgment must decide the disputes submitted by answering to all the claims made by the parties.

If you give more, less or something different to the request, the court incurs forms of inconsistency known as

·        Incongruity by omission

·        Extra petitum (award more than claimed)

·        Incongruity by error

The incongruity by omission, also known as incongruity “ex silentio” occurs when the court leaves unanswered some of the claims submitted to it by the parties, as long as it cannot be reasonably interpreted that the judgment includes a tacit dismissal of those “unanswered claims”, and the tacit dismissal can be deducted form the reasoning contained in the resolution.

The Fundamental Right to effective judicial protection is the value infringed when the judgment falls into incongruity.

It is not necessary that the judgment includes, an explicit and detailed response to all and each of the arguments adduced by the parties in support of their claim.  It may be omitted the answer to allegations regarded as non-substantial, or nonspecific.

The objective liability of the Administration

The basic element in determining liability of the Administration for damage or injury caused, is the direct causal link, which must also be immediate and exclusive.

 

The claims for compensation are dismissed when the fault of the victim interferes.

The objective liability requires imperatively the causal link between the actions of the Administration and the injurious or harmful outcome. The socialization of the risk (justification of the strict liability of the Administration) does not permit the extension of such liability to cover any event. The current system of strict liability of Public Administration does not convert the Administration into the Universal Insurer for all risks.

The objective liability does not require fault or negligence on the side of the Administration.

The link can be identified looking for the right or efficient cause that usually proves to determine the outcome, looking for an objective adequacy between act and the result. It is necessary to prove the suitability of the link to determine that event or outcome, considering all the circumstances.

There must be an objective match cause/effect between action and event (the plausible link) and then the condition reaches the category of adequate cause, efficient cause or proximate cause reason of the damage. Thus can be excluded both: the indifferent acts, the inadequate acts, and those absolutely extraordinary.

 The breaking of the causal link is reserved for Force Majeure/Act of God, the behaviour of the victim, or the serious neglect of it, provided they have been decisive in the result.

Fundamental Right to a legal sanction

It is Constitutional Court doctrine that the Fundamental Right to a legal sanction (art . 25.1 CE ) , in conjunction with the principle of legal certainty (art . 9.3 CE ) requires that when the Administration exercises sanctioning authority, the administrative final resolution that concludes proceedings must express, as part of their motivation, the identity of  the legal basis of the penalty - or at least implicitly -.  This identity should be certain and determined, so that a Court judging the case may not identify a different provision as the reason for the sanction.

It has to identify the infringement and its gradation with minimal reasonable clarity, and so it is to be identified also the relationship between the offense and penalty imposed. Always must be made reference to the provision applied effectively , which must have the coverage of a Law.

Transfer Tax value in case of Purchase & Mortgage Deed

The Tax Law allows the Administration consider the auction value agreed id the Mortgage Deed as the value of the asset for tax purposes. In this option the assessment is limited, and the Administration does not need to consider the appraised value of the property, and the expert doesn't need to visit the asset or explain the calculations.

The Administration may choose any of the means of assessment referred to in art 57 of the current LGT 58/2003 , including any other means determined by the Law of each tax ; although this choice does not relieve them from compliance with certain requirements so that such assessment is conducted properly.

With regards to excluding from the auction value the provisions for interest, costs or expenses of execution, this will be decided by  the law of the pertinent Autonomous Community.

The value of auction is the result of an expert appraisal. The Tax Payer can opt in its claim for it's own expert appraisal to contradict this procedure, and to determine the actual value of the property for tax purposes.



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Heritage protection and Zone Planning capacity

In reviewing the Zoning Plans, the      Administration holds the right to alter  the previous list of protected buildings and landscapes -  Ius Variandi- .         Despite this, the initial assumption is    that the listed items will continue underthis category. 

The Administration needs justification should the protection be decreased to the extent that it can influence the effectiveness  of the conservation and protection of    the property listed. Relevant public interest must be the reason for this decrease of the protection, and  must be expressly explained in the document.

The Administration enjoys by Law the capacity of being                 discretional on the exercise of it's powers of planning.  Though       such a discretion doesn't mean freedom. The Administration is        subject to limits established by law on this subject. Their decision   is linked to the protective measures taken by the cultural heritage   administration.

The Supreme Court has already stated that listing heritage is a         regulated capacity. When dealing with the planning in reference to  listed elements the Administration must necessarily provide the       regulation that ensures the protection level suitable or appropriate   to protect those characteristics. 

Privacy at home from acoustics pollution

Privacy at home  from pollution , among others acoustics, is a Fundamental Right in the projection of the European Court of Human Rights and Spanish Courts.

We are therefore within the scope of Article 18 of the Spanish Constitution and although an interpretative relation to Article 45 can be established, it does not change the setting: the characteristic of a Fundamental Right, not absolute, of course, but equipped with all the guarantees, including the capacityto regulate  and to define patterns that determine their content in a collision with other.

As  defined by the Constitutional Court, one characteristic element is that the rules pertaining to these Fundamental Rights are to be interpreted in the most favorable way for them .

  

The Fundamental Right of Effective Judicial Protection can be exercised by means of the summary action of Article 53.2 of the Constitution. In such a case these rights cannot be reduced to the single task of collating the noise measurements offered by some devices. If this was the case, then  Articles 114 and following of Law Jurisdiction would redundant, and so would be the submission of these cases to the Courts.

The Land Registrar and your Deed of Purchase

Having your Deed of purchase completely registered is key to secure your rights as owner.

In the event that for any reason there is a delay in delivering the Deed into the Land Registrar, or in case that due to any defect the Deed is rejected by the Registrar - and the defect is not corrected within the term of validity of the formal presentation to the Registrar - then your rights are at risk.

One problem you may suffer is the property being embargoed by creditors to your vendor.

The embargos will be decreed normally by the Courts or the Local Councils. The Land Registrar will be obliged to register those embargoes as burdens on your property. When you eventually achieve the registration of your freehold, then you will have to request the creditors to waive the embargoes, and you may even have to take them to Court for this (an entry in this blog will comment this shortly).

Other problem that technically you may suffer is that your vendor sells the house again.

Of course this may be criminally prosecuted, though should the new purchaser be a "good faith purchaser", and should he achieve the Registration prior to you, then you may lose all your rights on the house, and just be left with the right to be compensated.