Nullity of Proceedings Order Due to Failure to Notify the Defendant

NULLITY OF PROCEEDINGS, by Ferrer-Bonsoms, Attorneys.


Background of the nullity of proceedings


An incident of nullity of proceedings is filed due to deficient summons to the defendant. Already condemned in judgment to pay an amount. And in addition to the corresponding legal interest, as well as the payment of procedural costs.


Summons to a Non-residential Dwelling

The defendant was summoned to a residence where he no longer resided. Furthermore, the Court had data for a second address to locate him. Furthermore, once the judgment was rendered, it was decided to notify it by publication in the corresponding Official Bulletin. The publication never took place. The defendant was again uninformed and defenseless against the condemnation. Therefore, due to an error in the procedural actions, the defendant could not assert his rights against the Court.


This issue was resolved by an Order declaring the nullity of the proceedings.

Firstly, the Order makes it clear that not every procedural violation allows resorting to the extraordinary remedy of Nullity of Proceedings.


Effective Defenselessness.

This must be material and not just formal. That is, the proceedings must have actually caused a real and effective harm to the defense possibilities. And it must not be attributable to the interested party seeking nullity. In addition, it is necessary that it was not possible to denounce the defect before the judgment was issued.

In the Order, the importance of communication acts from a constitutional perspective is emphasized. The appearance and intervention of the parties depend on them.


All Kinds of Communication

The Judge argues that to ensure that the parties defend their rights and legitimate interests, procedural laws impose on jurisdictional bodies the realization of all communication acts with the parties that are necessary. This is to guarantee the fundamental right to effective judicial protection and to prevent defenselessness.

Therefore, communication acts are not mere formal requirements in procedural processing, but a mandate imposed by procedural laws.


Special Duty of Diligence in Carrying out Communication Acts

These must be real and effective. The judicial body, in addition to ensuring the correct execution of communication acts, must ensure that they serve to guarantee that the party is heard in the process. And for this purpose, it is advisable to demand personal summons to the affected parties, limiting the use of publication notifications.


Doctrine of the Constitutional Court on Nullity of Proceedings

The Judge in the Order relies on STC 9/1981, which establishes that “when from the examination of the records or the documentation provided by the parties it is inferred the existence of an address that makes it feasible to personally serve the procedural communication acts with the defendant, this form of notification must be attempted before resorting to notification by publication”.

Applying the aforementioned doctrine to the Order, the Judge, given that the defendant’s procedural situation can be blamed for the deficient summons made to a residence where he did not reside at the time, and having provided another address, cannot entail a prejudice to him for not having been heard at the oral trial. That is why he grants the incident of nullity of proceedings from the moment of summons of the claim and revokes the condemnatory judgment and the execution of said condemnation.

As stated in the Order, there is no recourse against the resolution.

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