What is the annulment of the proceedings?

nullity actions

La nulidad de actuaciones permite reparar las vulneraciones de los derechos que se cometan en resoluciones frente a las que no cabe recurso.

La Ley Orgánica del Poder Judicial la regula en los artículos 238 ff, in addition to the items 225 and following of the Code of Civil Procedure. This is a procedural instrument that has undergone many changes since the entry into force of the LOPJ.

The reasons that can cause nullity of performances are as follows, provided for in Article 238 LOPJ:

  1. When they produced by or before the court with jurisdiction or lack of objective or functional competence.
  2. When they operated under violence or intimidation.
  3. When it is dispensing with essential rules of procedure, as long as, for that reason, has been produced defenselessness.
  4. When intervention is made without lawyer, in cases where the law establishes as mandatory.
  5. When views are held without the mandatory intervention of the court clerk.
  6. In other cases in which the procedural laws so provide.

The regulation of the invalidity of activities is inspired by the following beginning:

  1. Absorption of nullity of performances in the resource system, so that you can (and must) be enforced in the procedural means provided regular challenge.
  2. Need for injury it is not merely formal, but involves a real helplessness and effective.
  3. judicial economy, which includes the possibility to remedy the defect where it is not necessary to roll back the actions and the principle of conservation of procedural acts, which it allows to maintain the validity of the subsequent procedural acts that caused the helplessness, when they are independent.

La utilidad fundamental de la nulidad de actuaciones es permitir a los órganos judiciales que integran el poder judicial realizar una protección primaria y principal de los derechos fundamentales reconocidos en la Constitución. Thus, This ensures that the intervention of the Constitutional Court, by amparo, has only subsidiary nature.

Depending on the time when the invalidity of actions occur, They can differentiate two manifestations of the nullity of procedural acts:

If the ground for invalidity occurs in the procedural stage it provides the opportunity to bring immediate appeal, It will be formulated motion for dismissal on the same resource, as a reason included therein, and will be subject to the rules of formal requirements and time set for the resource that is inserted.

If the ground for invalidity occurs at a time that does not provide procedural possibility of filing any immediate recourse, It will be formulated exceptional motion for dismissal of proceedings as an independent writing, subject to its own manner and time requirements (article 241 LOPJ).

Suspensive effect on the implementation of the final decision will also vary depending on the incident formulated: In the first case, will depend on the specific regulation of the resource that is included; in the second case, It must be had to the regulation expressly set out in Article 241 LOPJ.

Last, Special attention should be paid to the influence that the exceptional incident annulment of the proceedings is the deadline for filing an amparo, for, on the one hand, the article 44.1 a) of the Organic Law of the Constitutional Court requires who they have exhausted all remedies provided by the procedural rules for the specific case in the courts, but article 41.2 of the Act states the deadline for filing the amparo will 30 days, from the notification of the decision in the judicial process. This may result, on the one hand, the lack of filing of exceptional performances motion for dismissal of the application inadmissible determine amparo for failure to exhaust the judicial, and other, that the filing of exceptional performances motion for dismissal, when patently inadmissible, determines that the amparo is extemporaneous, and also declared inadmissible.

it is essential, therefore, determine when to bring exceptional motion for dismissal of proceedings for exhaust the previous judicial, and when it can stand directly under a final judgment against. Well, summarizing the constitutional jurisprudence (all, Plenum of the Constitutional Court Judgment, of 19 December 2013), which caters essentially to the need to preserve the alternative of amparo, debe indicarse que será necesario interponer incidente excepcional de nulidad de actuaciones cuando los órganos judiciales no hayan tenido oportunidad alguna de examinar el motivo de nulidad de actuaciones. Otherwise, namely, if they have had an opportunity to examine this ground for invalidating, it is not necessary, and if filed it will be considered manifestly inadmissible, so the shelter will be out of time and declared inadmissible.

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