The Judicial System and Administrative Procedures throughout the Spanish state

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On March 14, 2020, the President of the Spanish  Government declared the State of Alarm (by means of RD 463/2020) throughout the National Territory, due to the exceptional situation of danger to the Public Health generated by the COVID-19 outbreak. Thus, the part of the legal activity of the country has been practically suspended, with certain exceptions.

The measures to be taken by the Government in this regard must be aimed for protecting the health and safety of citizens, minimizing the progression of the disease and strengthening public health systems, but also trying to mitigate the health, social and economic impact that this exceptional situation may generate.

From the legal aspect point of view the main  measures are:

  1. The suspension of all procedural and administrative terms, what means that all these proceedings are actually suspended.
  2. The suspension of time bar terms and the expiration of any actions and rights has also been ordered.

These suspensions will be operative as far as the State Alarm is maintained, in principle 15 days as from the 14thof March 2020, but an extension is already foreseen.

The General Council of the Judicial Power issued two Orders on March 14, 2020, suspending all scheduled Court trials  and all procedural deadlines except for Essential Services.

These adopted measures are immediately applicable since 14th March 2020, being applicable to the whole country and that will remain in force while the State of Alarm remains, that is to say, for 15 calendar days from their publication except if they are extended.

Likewise, the Permanent Commission of the General Council of the Judiciary, working together with the Ministry of Justice and the Attorney General’s Office, agreed on the “Essential Services” that need to be maintained during this State Alarm.

These “Essential Services” will guarantee:

  1. Any legal proceedings which, if not carried out, could cause irreparable damage.
  2. Urgent internments of article 763 of the Law of Civil Procedure (non-voluntary internments for reasons of psychological disorder).
  3. The adoption of precautionary measures or other actions that cannot be postponed, such as the measures for the protection of minors in article 158 of the Civil Code.
  4. The courts of violence against women shall provide the corresponding on-call services. In particular, they shall ensure that protection orders are issued and any precautionary measures taken with regard to violence against women and minors.
  5. The Civil Registry shall provide permanent attention during court hours. In particular, they shall ensure that burial permits are issued, that births are registered within the prescribed period and that marriages are performed in accordance with article 52 of the Civil Code.
  6. Proceedings with detainees and others that cannot be postponed, such as urgent precautionary measures, removal of bodies, entries and searches, etc.
  7. Any proceedings with prisoners or detainees.
  8. Urgent actions in the area of prison surveillance.
  9. In the contentious-administrative jurisdictional order, urgent and undelayable health entry permits, fundamental rights whose resolution is urgent, urgent precautionary and preventive measures, and contentious-electoral appeals.
  10. In the social jurisdictional order, the holding of trials declared urgent by law and urgent and preferential precautionary measures, as well as the processes of Files for the Regulation of Employment and Files for the Temporary Regulation of Employment.
  11. In general, the processes in which a violation of fundamental rights is alleged when this are urgent and preferential (those whose postponement would prevent or make very burdensome the judicial protection claimed).
  12. The President of the High Court of Justice, the President of the Provincial Court and the Chief Justice will adopt the necessary measures regarding the cessation of activity in the judicial dependencies where their respective headquarters are located, and the closure and/or eviction of the same if necessary, informing and coordinating with the competent Monitoring Committee.

To ensure that these essential services are provided, orders are issued, to keep the court buildings operational and open. This will be done, however, by providing judges with the necessary protective elements to prevent the spread of viruses, warning signs providing information on minimum safety distances, by promoting teleworking and, in the case of rotating shifts, special attention will have to be given to people whose personal characteristics may became more sensitive to COVID-19.

To conclude, we would like to highlight the fact that prior to the publication of these Orders on 14 March 2020, and in view of the exceptional situation of some different territories, some Autonomous Communities, in the exercise of their autonomies, took measures such as those established by the CGPJ, to eliminate the spread of the COVID-19 virus, for example, Madrid, the Basque Country or the towns such as Haro (La Rioja) or Igualada (Barcelona). For its part, the Royal Decree ratifies all the provisions and measures previously adopted by the competent authorities of the Autonomous Communities and local entities on the occasion of the coronavirus COVID-19, which will continue in force and produce the effects foreseen in them, providing that they are compatible with it.

It is also compulsory for citizens and legal professionals to interact with the administration through the usual electronic offices, by telephone or via email, reducing the physical relationship to the essential and unavoidable procedures.

AIYON Abogados remain operative during the state of alarm declared in Spain

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During the State of Alarm declared by the Spanish Government on the last Saturday 14TH March, with an initial period of 15 days that may be further extended, all the team of AIYON Abogados remains operative to cover our clients’ needs, insofar as it is possible in this unpredictable scenario.

You can contact us through our telephone lines and email addresses which are published in “OUR TEAM” and “CONTACT” tabs.

From AIYON Abogados we thank you for your collaboration to manage this crisis with everyone’s effort.

The new team structure of AIYON Madrid

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We must announce that our partner, Julia García, has left Aiyon Abogados S.L.P. We wish her all the best in this new stage, and we thank her for the work and effort she made together with our team throughout these almost 5 years of common trajectory. Good luck, Julia!

AIYON Madrid‘s office remains fully operational managed by our partner Verónica Meana.

Merry Christmas and Happy New Year

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BY LAND, SEA AND AIR,
AIYON ABOGADOS ALWAYS ACCOMPANIES YOU
ON YOUR JOURNEY.
MERRY CHRISTMAS AND A HAPPY AND PROSPEROUS NEW YEAR

 

AIYON Abogados reinforces the offices in Cadiz and Algeciras

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Our law firm reinforces the Cadiz and Algeciras offices as Encarnacion Quevedo joins their team of lawyers.

Encarnacion, with a reputable professional career, will contribute to our team with her excellent work and will reinforce the labour we have been doing in AIYON providing 360º Comprehensive Legal Services to our clients.

On the other hand, we must announce that our colleague, Yon Murua, has decided to begin his new trajectory in the legal department of a prestigious Spanish company and, much to our regret, has left AIYON’s office in Madrid where he has been doing a great job  for the last few years. AIYON wishes him all the best in this new adventure!

Cyber disruption in marine

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Yesterday, one of our partners, Verónica Meana, took part in a practical conference organized by AON under the title “CYBER DISRUPTION IN MARINE” which was held in AON’s head office in Torre de Iberdrola in Bilbao. The conference was devoted to learning about and to sharing the risks and consequences that cyberattacks constitute in transportation and industry. 

Verónica had the opportunity to share the discussion panel with Max Bobys, Chris Bhatt and Nannette Wong, and in her presentation tackled administrative and civil responsibilities within transportation and logistics in the context of cyber threat, referring in particular to the maritime transportation sector and its agents. 

AIYON Abogados would like to thank AON for the opportunity we were given to participate in this event, which was greatly insightful in terms of better understanding of the new and future risks that the transportation sector is facing, the ways to deal with them and the insurance options available in the market of hull and machinery, civil liability and P&I insurance. 

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PIRACY, A REALITY IN THE TWENTY-FIRST CENTURY

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Piracy in the maritime world is a reality with a history of hundreds of years, being sometimes prosecuted and other times protected by the institutions of the countries present in the different maritime areas around the world. We have been currently witnessing the fact that this phenomenon is still alive and that it is a way of extorting not only companies and individuals, but also governments of those countries that have to address these unlawful actions in the most thorough manner taking always into consideration the vessels’ safety, but above all the welfare of their crews.

Focusing on our own most recent experience, we know that there have been several pirate attacks in waters of the Indian Ocean against Basque fishing vessels, in particular the “Txori Argi” and the “Haizea Lau”, which only demonstrates that, while the pirate attacks at sea do not attract the spotlight of the news worldwide as they used to some years ago, piracy is by no means eradicated. In fact, and talking here on global scale, the incidents associated with this phenomenon far from being diminishing on the contrary have been increasing according to the report of International Maritime Bureau (ICC) which signals that there were 201 incidents of maritime piracy recorded during 2018 compared with the 180 incidents recorded the year before.

These incidents experienced last year, hijackings and kidnappings committed by pirates, whose target were not only cargo and container vessels, including the vessels of the UN organization involved in international aid programs for countries in specific critical situation, but also, to a larger extent, fishing vessels.

Piracy actions that have been recently concentrated on a mayor scale in waters of the Gulf of Guinea, an area that seems to have taken over what happened in the previous years on the Somalia coastline as the recorded incidents dabbled there in 2018 compared with the year before. In fact, waters of Somalia are enjoying a “relative peace”, at least in comparison with the situation in previous years, basically due to two circumstances. On the one hand, the massive deployment of the so-called “Operation Atalanta”, in which Spain is an active participant, and whose main objective is to protect the maritime traffic in the Indian Ocean against the acts of piracy  and, on the other hand, due to the own security measures taken by the vessels, such as the established operating procedures in case of a piracy attack and the presence of private security companies on board. Yet, the navigation close to the Somalian coastline still requires extreme caution on the part of the shipowners and their crews, as demonstrated by what happened with the fishing vessels “Txori Argi” and “Haizea Lau” this year, and which prevents us from excluding Somalia from the areas of risk.

If we look to the future, we can foresee that piracy, as we know it today, will gradually disappear as the navigation of autonomous vessels and vessels piloted by a remote control from a ground base (unmanned vessels) will become a reality on our seas and oceans, developing thus a new way of maritime navigation.

If we focus on this hypothetical scenario, it might be concluded that new cyber pirates could operate from any place around the globe without any need to be on-site and even without need to be a member of an organization, so that military deployments and private security companies on board, which are nowadays common means of deterrence and protection, could not be used as the main guarantors of a nonviolent navigation. The fight against piracy, which will, one way or another, continue being a present and future threat, will have to be adjusted to the scenarios that may evolve, as well as it should be the legal systems of the countries affected by this reality.

Accordingly, it should be noted that if the control system of an unmanned vessel were intercepted from distance by means of technology and for illicit purposes, it is certain that such situation would not fit in with the provisions of the United Nations Convention on the Law of the Sea (Montego Bay) related to piracy, since the convention specifies that such acts should be committed through the intervention of the crew or the passengers of a vessel and directed against another vessel. Furthermore, if we examine the crime of piracy after the amendment introduced by the Organic Law 15/2003 of 25th November, the current Criminal Code requires that a seizure of a vessel be preceded by an act o violence, intimidation or deceit and therefore the above mentioned situation (with no violence, intimidation or deceit due to the use of virtual means) would remain, at least at the beginning, out of the current criminal penalization.

To sum up, in accordance with the current regulation, it could be concluded that the possible future acts of piracy that were mentioned above would not be considered but cyberattacks with the application of the provisions for cybercrime and other common criminal definitions provided for in the Criminal Code in accordance with the particular circumstances of each case (misappropriation, damages, etc.). This is, however, insufficient since the future acts of piracy might involve, beside a cyberattack for specific purposes, an offence against the safety at the sea and navigation, a legal interest that the crime of piracy aims to protect.

Thus, we find it necessary to review the concept of piracy, so that it encompasses other scenarios that are currently not covered, such as cyberattacks against unmanned vessels, and that these cases remain not restricted to the category of computer specific crime and other offences. We, from our law firm as a team of professionals of the sector and due to our experience, consider that it is convenient, from now on, to be aware of the new forms of piracy, which might already be a reality, and hence to adjust the regulation and the strategies to be followed without delay in order to stay ahead and protect adequately vessels and their crews.

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THE NEW CODE OF ETHICS

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On March 6th 2019, the General Council of the Spanish Bar approved the new Code of Ethics which came into force on May 9th 2019. This Code encompasses a set of principles of conduct that should govern the professional activities of lawyers and derogates the Code which was in force since 2002. These norms amend shortcomings that were detected since 2002 in order to make them applicable to every Autonomous region and in the areas of the Bar Associations. Moreover, these norms constitute the basis and their development and adaptation should be provided by the Autonomous Councils and the Bar Associations.

The new Code of Ethics considers essential values such as: independence, freedom, dignity, integrity, services, professional secrecy, transparency and collegiality.

The independence of a lawyer, with regard to any influence and against personal interests and external pressures, is an essential requirement of the system of the Rule of Law and of the effective defence of the citizens and is therefore established as a right and a duty.

The freedom of defence and to advise clients on freedom basis is protected and the right to freedom of expression is guaranteed without legitimizing insulting and discreditation.

Lawyers’ conduct should feature honesty, probity, rectitude, loyalty, diligence and veracity. This obliges the lawyer to waive any intervention that might result contrary to the mentioned principles or that might involve any conflict of interest with the clients of other lawyers of the firm.

The right and duty of the professional secrecy is established as a crucial rule and includes all secrets and proposals of the client, those of the opponent and colleagues, as well as all the facts and documents they may have knowledge about or may have received due to the professional intervention. The duties of professional secrecy will remain even after the provision of services has ceased.

The new Code of Ethics allows for publicity of the provided professional services as long as it is in accordance with the values that are essential for the profession.

The professional fees will be agreed on free basis between the client and the lawyer who shall inform the client on the approximate amount or on the bases used to determine it. The new Code of Ethics regulates the content of the order forms (“hoja de encargo”). The lawyer has the obligation to verify the identity of the person who is depositing the funds in order to prevent from money laundering. The lawyer will issue a receipt of the funds which shall be refunded and certified by the relevant accountability. Compensation and reverse charge mechanisms are expressly forbidden.

For the first time in the history, the use of information and communication technology is regulated in the new Code of Ethics and enforces to a responsible and diligent use in order to preserve confidence and professional secrecy.

In conclusion, the new Code of Ethics represents an effort to update and adapt the rules that should govern the professional activity of lawyers.

WISTA Spain Annual Meeting – 2019 – “Bilbao in Evolution”

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On 26th and 27th of April, WISTA Spain annual meeting was held in the Maritime Museum (Museo Marítimo) in Bilbao and was cosponsored by our firm. The event was organized by the WISTA associates in Bilbao, Marta Prado, the chair of the panel discussion on 26th; Itsaso Ibáñez, Carolina Ibáñez and the partner of our Bilbao office, Zuberoa Elorriaga.

As planned, the event under the title “Bilbao in Evolution: New Trends in Shipping and Trading” took place on Friday. The meeting was divided into three thematic groups, two in the morning with various presentations under the heading “Fishing Industry, Insurance and its Evolution” and “Logistics, Transportation and Supply Chain”; and one in the afternoon consisting of a very interactive panel discussion called “Development and Port Challenges in the XXIst Century”, all this with the participation and the great performance of Dr. Olga Fotinopoulos – Full Professor of Laboru Law and Social Welfare Law at the University of the Basque Country, Mr. Borja Alonso Olano – Director of the Legal and Sustainability Department of Albacora S.A., Mrs. Beate Soia – Account Executive of March JLT, Marine Insurance & Claims, Mrs. Iratxe García Gil – Director of Organization and Corporate Development in IVL/LEE (Basque Institute of Mobility and Sustainability), Mrs. Sonia García Díaz – Managing Director in Dagase, President of Asetravi ( Business Association of Transport of Biscay), Mrs. Nerea García Núñez – Regional Supply Chain Manager in Guardian Glass Automotive – Europe, Mrs. Inmaculada Ugarteche Maturana – Director of UniportBilbao – Port Community, Mrs. Elvira Gallego Uribe – General Manager in CPS Iberian Bilbao Terminal, Mrs. Ana Santiago G-Bretón – CEO in SISTEPLANT and Mrs. Sira Aranguren Lozano – Managing Director in SERGUSA and President of the Official Association of the Customs Agents in Bilbao.

Out of the present authorities it is necessary to stress the support received from Mrs. Arantxa Tapia, Minister for Economic Development and Competitiveness of the Basque Government, who also participated in the event, as well as the attendance of the Director of the Merchant Navy, Mr. Benito Núñez, the Harbour Master of Bilbao Mr. Carlos García, the Harbour Master of Pasaia Mr. Josu Gotzon Bilbao and Mr. Carlos Alzaga of the Bilbao Port Authority, among others.

From AIYON Abogados we would like to congratulate all the organizers and speakers on the excellent work done!

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The legal regime of civil liability in the Prestige case

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The Faculty of Law of the University of Deusto, within the framework of the Master in Maritime Law, organised yesterday a workshop to analyse the “Prestige case”. It was a special event because took part on it part of the direct protagonists of the procedure. 
 
The workshop was attended by the environmental prosecutor of Galicia, Mr. Álvaro García Ortiz, with a conference titled “Prestige case, spills of hydrocarbons in the criminal jurisdiction”; the Captain and surveyor Mr. Fernando Cayuela who was nominated at the time by the Basque Government to intervene in the technical-judicial actions; the lawyer Luis Figaredo, who could not be present for reasons beyond his control but sent his presentation in writing under the heading “Legal strategy in the PRESTIGE case in the courts of the United States”; and our partner and colleague of Bilbao Mikel Garteiz-goxeaskoa, who developed an interesting talk about the “Legal regime of civil liability in the Prestige case”.
 
From AIYON Abogados we want to thank those responsible for the Master and the University of Deusto for their invitation to take part in this interesting dissertation.