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The Spanish Lawyer Online
The Spanish Lawyer Online

Antonio Flores’ Blog

Thoughts about laws and regulations which affect foreigners in Spain


Archive for August, 2012

Aspects of Spanish Nationality Application

August 28th, 2012

EU countries seem to follow similar legislative trends when handing out passports is concerned. The Daily Mail reported recently that a speeding offence was enough for the UK Border Agency to reject a citizenship application from a person from Botswana due to “bad character”, despite serving in the British Army for 4 years and having an otherwise impeccable record.

Spain’s authorities also apply administrative discretion to assess the eligibility of a foreigner to a Spanish passport, although, by contrast to the above decision, it seems that proportionality is better applied in Spain. The basic principles will however apply when an applicant has won the right to become a national, by passing of time: good behaviour, lack of criminal and police records, adequate integration in the Spanish society, reasonable command of the language and a stable income.

Let’s see the outcome of some cases that were ultimately resolved by the Courts after appeals were lodged both by turned-down applicants, or the Spanish State Lawyer against permits granted by the Civil Registry.

  1. The Moroccan husband living in Spain, with a son (4) and a daughter (2) who is turned down because of insufficient integration, and the allegations put forward are: his only friends are 3 nationals of his country, that he knows that the Spanish Constitution prohibits theft and only socializes with other nationals at work, that he barely comprehends the political structure of the society he lives in, among other things, and has shown minimal understanding of essential aspects of the society he wishes to become part of.
  2. An Argentinian who illegally connected a telephone device to a box and made several free phone calls, within Spain and also abroad, was equally denied citizenship. Turns out that the telephone company operators caught him red-handed and reported him to the Police and whilst he paid the sum and apologized, the Court deemed that such an action was hardly consistent with “good moral character”.
  3. Conversely, the Dominican lady sees the Supreme Court revoking a decision by the Civil Registry rejecting her nationality application. In this case, the High Court understood that there was no reason to deny her right to a Spanish passport on the basis that she was working in a brothel, since it was not demonstrated that she offered sexual services but that even if she were, the profession was neither illegal nor morally reproachable, both in Spain and in the EU.
  4. An Iraqi national that, since entering Spain, had dealings with car robbers, swindlers, document falsifiers and drug traffickers, according to a report drawn up by the Spanish Secret Service (CESID), was denied the right to citizenship by applying notions of “public order” and “national interest”.
  5. A Gambian polygamist was too discarded as eligible to Spanish nationality because according to the Court, the legal configuration of marriage, as being overwhelmingly present in Spain, is monogamy, and having several wives (polygamy) or husbands (polyandry), whilst not negatively considering cultures or societies that allow this form of custom, was crucial to assess the level of integration and adaptation to the Spanish society…which was found to be nil.
  6. Finally, an illiterate  applicant (of unknown origin) who was initially handed down a rejection, successfully appealed on grounds that belonging to a demographical group where the percentage of literacy is minimal, did not necessarily imply that the person could not fully integrate in society as in fact, she could speak Spanish with fluency and express herself clearly and effectively.

Immigration , , ,

Judicial Notifications in Spain: How Court Papers Must be Served

August 10th, 2012

The video below shows exactly how a summons in Spain is not be conducted: Jason Coglan, from JaCogLaw, personally notifies a criminal complaint filed by an American citizen against John Doust, one of the oldest serving fraudsters of the Costal Del Sol who is, unsurprisingly, a free (con)man.

But Jason’s intention is not to legally fulfill the service of summons, which he knows is a job that in Spain is exclusively reserved to the authorities, but to bridge a judicial system that is slow and ineffective when it comes to pursuing economic or financial crime, and get in front of this despicable man, ahead of the Spanish Police (crime reported to them in June) and the Courts (crime reported to them in May) who have, so far, done nothing except formally requesting the claimant to turn up in Court to confirm the claim.

So how should service of process be done in Spain, as well as any other formal or official notification? Below are what I consider the 10 most important notes on this subject:

In civil procedures, notifications or summons can be made:

  1. By post, ensuring that there is certification of content and acknowledgement of receipt (typically called “burofax”).
  2. Directly in Court, by the Court Secretary directly to the defendant or through the appointed Procurator.
  3. In the address of the recipient or defendant, by issuing judicial summons directly to the defendant or, if he refuses to receive the Court decision or sign acknowledgement of the summons, he will warn the recipient that a copy of the document is at his disposal, in Court, and that with this formality he is understood to be legally notified.
  4. If the recipient or defendant is not present, summons will be given to any employee, family member or person cohabiting with him (older than 14 years) who are present, or to the porter of the property or premises, if available, issuing a warning that the notification or summons is to be given to the recipient, if his location is known.
  5. On the notice board: this is a special communication system that is used where all the above fail, and consist on a fiction of notification where the Court officer reads the content of the summons and is then published on the Courts notice board.
  6. In the Official Gazette: this system entails publishing the summons on the notice board and also, in the Provincial Official Gazette and where the Court deems it necessary, in the Autonomous Region Official Gazette.
  7. Where the recipient or defendant is not located, the civil procedure can go ahead and the ruling will be also notified formally, and where this is not possible, it will be published on the notice board, as above.
  8. An adverse ruling (most of them will be) against a disappeared defendant can be challenged where he was not able to collect the summons due uninterrupted force majeure, even when he knew of the proceedings, or where he was unaware of the proceedings and the notification was made by judicial summons, or where he was unaware of the proceedings, the notification was made by publication in the notice board but he was in a different place from where he was living.
  9. In criminal procedures, a defendant has more protection in that a trial cannot take place where the commission of the crime carries a penalty of more than 2 years imprisonment, or 6 years of another nature. But the most notable difference is that generally, depending on the seriousness of the charge, the defendant will be arrested and brought before the Judge, to be formally notified of the charges.
  10. Where communications between private parties are concerned, there are several possibilities: Burofax, as explained in point 1, BuroTex , that allows notifications between private individuals to be carried out by mobile device text message (sms), Certimail, which is made by email sent by a Notary Public and not without controversy, even also by regular fax which, in spite of its evident weaknesses, was deemed by the Constitutional Tribunal to be valid in administrative proceedings where the defendant did not prove that the fax machine was not working well, that there was power cut-off or generally, any other provable excuse of non-delivery of the content.

Legal Practise, Litigation , , ,