ABOUT THE LIFTING OF THE SUSPENSION OF PROCEDURAL, SUBSTANTIVE AND ADMINISTRATIVE DEADLINES STABLISHED BY THE DECLARATION OF THE STATE OF ALARM
On March 14, the Spanish Government approved the declaration of the state of alarm to deal with the health emergency caused by COVID-19 in Spain, through Royal Decree 463/2020.
This Royal Decree established “the suspension and interruption of procedural periods“, that specified that their calculation “shall continue at the moment the Royal Decree or its extensions end“.
Besides it stated the “suspension of administrative deadlines” and the substantive deadlines (i.e., the corresponding deadlines of the actions and rights that could be affected by the statute of limitations and lapse ––“caducidad” and “prescripción” in Spanish Law).
So far, it seemed clear that the deadlines would be continued when the state of alarm ended, but they would not be restarted.
2. Initial confusion and current situation
In Spanish legal terms, to suspend the deadlines it is not the same as to interrupt them, which was clearly contradicted by the contento f the Royal Decree-Law 16/2020 of 28 April regarding procedural and organizational measures within the Justice Administration, that stablished the “calculation of procedural time limits and extension of the time limit for appeal1“:
1 This Royal Decree-Law adds that this restart of the time limits provided for in the previous paragraph shall not apply to the procedures whose time limits were exempted from suspension in accordance with the provisions of the Royal Decree 463/2020 of 14 March. These exempted procedures are those relating to the protection of the fundamental rights.
“The terms and deadlines provided for in the procedural laws that would have been suspended by application of the second additional provision of Royal Decree 463/2020 of 14 March, declaring the state of alert for the management of the health crisis situation caused by COVID-19, shall be recalculated from the beginning, the first day of the calculation being therefore the next working day following that on which the suspension of the corresponding procedure ceases to have effect. ”2
2 This “extension of the time limit for appeal” is dealt with in paragraph 4 of this Article.
Thus, the procedural and substantive deadlines finally will not be continued, but restarted. In other words, a “fresh start”.
Now the questions were two: What about the administrative deadlines? And when do the procedural and substantive ones start again? According to the provisions in force in Royal Decree-Law 16/2020 (and until 23 May 2020) the procedural and substantive deadlines would be restarted “at the moment the Royal Decree or its extensions become ineffective“, thus being the dies a quo or first day of the restarted deadline the day after the end of the state of alarm.
3. Immediate future. Lifting of the suspension of the deadlines
However, on 19 May the Spanish Government agreed to include in the agreement requesting authorisation from the Spanish Parliament for the extension of the state of alarm the fresh start of procedural deadlines with effect from 4 June.
Thus, on Wednesday, May 20 the Spanish Parliament approved the fifth extension of the state of alarm and on May 23 the Royal Decree 537/2020 of May 22, which maintains the validity of Royal Decree 463/2020 of March 14, until June 7, 2020, was published in the Official State Gazette (Boletín Oficial del Estado) number 145.
Articles 8 to 10 of this Royal Decree 537/2020, of 22 May, address the lifting of the suspension of the deadlines, but no longer as of the date of cessation of the state of alarm but: (i) from 4 June 2020 for procedural and substantive deadlines; and (ii) from 1 June 2020 for administrative deadlines.
4. Necessary clarification and computation
As a consequence, even this last Royal Decree 537/2020 does not dispel any doubts that might arise from its interpretation. And in this respect, the Agreement reached by the General Council of the Judiciary on 23 May 2020 finally sheds light on this issue, by virtue of which:
– The procedural and substantive deadlines will be restarted on 4 June.
– The administrative deadlines will continue on June 1, including those that will be restarted when a norm with the rank of law so provides ––a royal decree-law has the rank of law––.
The exception therefore only concerns the ‘extension of the time limit for recourse‘ referred to in footnote 2 of paragraph 2 of this Article.
It concerns only judgments and decisions which terminate the proceedings and are notified during the period of this deadlines suspension. For these cases, and with regard to the announcement, preparation, formalization and filing of the appeals, the “double time limit” established must be taken into account: (i) a first “extra” or “grace” period of twenty days; and (ii) a second “ordinary” period of the days corresponding to the proceedings. Both are working days.
For instance, if it is a Sentence notified on 18 March, from 4 June we will have twenty working days of the “extra” period and then the normal period of ––in this case–– twenty working days to appeal.
5. De-escalation plan versus restarting the deadlines
Finally, it is worth mentioning the so-called “de-escalation plan” in the field of the Administration of Justice designed by the competent Ministry, the General Council of the Judiciary, the Public Prosecutor’s Office and the Autonomous Communities with competences in the field of Justice.
It foresees different phases of “de-escalation” for the Administration of Justice, which run parallel ––but independently–– to the territorial phases established by the Ministry of Health.
Based on this, the Administration of Justice has been in “phase II” of the four possible phases since 26 May. This phase is called “Preparation for the reactivation of procedural deadlines” and involves the reincorporation of between 60 and 70% of the civil servants ––100% would only be reincorporated from “phase III” called “Ordinary activity, with activated procedural deadlines“––.
By overlapping the dates established for the lifting of the suspension of the deadlines with the content of “phase II”, it is easy to fear an initial counterproductive imbalance that will lead the courts to disregard the recommendations made for August by the General Council of the Judiciary in its “Protocol and Guide to Good Practice for the Resumption of Judicial Activity” on 11 May, and to have to abide by the literal wording of Royal Decree-Law 16/2020 in this regard.
In these recommendations, the judges have been advised to avoid as far as possible the hearings and the notifications on the period between 11 to 31 August, which Royal Decree- Law 16/2020 declared to be working days.
Under normal circumstances the entire month of August shall not be counted in periods considered to be outstanding.
Consequently, although this is still a long-awaited response to the requests that all legal operators have been making for weeks to reactivate one of the three powers of the State, it could be just an illusion in practice.
The Law is certainty.
In a chapter of History such as the one we are living in, in which uncertainty reigns more than ever (if possible), the Law has the imperative need to put order. That is why we created it after all.
A State with a paralyzed Justice Administration has as a result a society without guarantees, without protection. And now the suspension of the deadlines has been lifted, but we must prepare ourselves to meet the expectations of managing this “de-escalation” that seems to be, actually, an “escalation” for lawyers in the coming months because, to all that is set out in this article, we must add the “Taifas kingdoms effect” (petty kingdoms, regarding the Spanish autonomous regions or communities).
As an example, Diario de Sevilla published on 25 May 2020 that “Phase 2 of the judicial de-escalation will not start in Andalusia this 26th of May“, as the study on the security distances in the judicial headquarters has not yet been completed and, consequently, “the Andalusian courts will continue to operate with 33% of their staff“.
And the various measures proposed by Ministerial Order of the Minister of Justice, such as, for example, the temporary establishment of late shifts in the courts, “seems to be the last resort in Andalusia because it would require additional costs such as security services, air conditioning and double cleaning service, among others”.
To sum up, the prudence and professionalism of all legal operators ––and especially us as lawyers–– are required now more than ever, so that the real victims of this legal insecurity, the citizens, can see us as the simultaneous interpreter between the Administration of Justice and them, to whom we are owed and in whom the Spanish Government, of course, has not seemed to notice when they were planning what they have named a “plan to reactivate justice”.