Nullity of the Urban Plan of Cartagena

The doctrine implicitly prevents giving (total or partial) final approval to a General Plan that incurs in "substantial deficiencies".

Deficiencies can be "substantial", due to being too many, due to the total land surface affected, or because they largely affect to General Systems and structural elements of urban planning and even territorial. In such a case no approval can be granted; not even a partial approval.

Only the requirement of alterations of “minor relevance” allows granting a Final Approval subject to correction of deficiencies.

Final approval in this case was made with many deficiencies.

The deficiencies affected all elements of the town, and almost all the territory. The defects were of substantial consideration, and therefore capable of producing situations of legal uncertainty, and of uncertainty in the development and application of the Plan.

The ulterior delegated confirmation of the corrections could not validate the Urban Plan because of those essential deficiencies. The Urban Plan should not have been approved, not even subject to correction of deficiencies.

The nullity of the approval of the General Plan does produce as a result the invalidity of the confirmation of corrections, since the Plan does not exist anymore. 

(Subject to appeal)

See STSJ MU 421/2015













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Self money laundering proceedings of a former condemned crime

The Case Law has not been unambiguous:

    1) The crime of money laundering is an autonomous offense which defines and describes a different and specific behavior. You are faced with two offenses together in real competition, and not to a form of absorption. The coincidence of authors in the fund generating activity and in the money laundering is an obvious real contest and not a mode of absorption of one behavior by the other.

    

    Both  behaviors acquire autonomous criminological relevance and allow the joint consideration  as a sum of criminal activities. Both activities have a different nature and affect to different legal interests.

    2) Other times the Case Law has understood that any crime in general (especially crimes against property and public health) imply a vocation of economic exploitation, and the double punishment is not possible to the extent that enjoying the illegal profits  is part of the structure the former crime. Therefore the punishment on the initial offense includes the laundering, so that further punishment would infringe the principle of non bis in idem (no double penalty for the same crime).

    

    Transforming the proceeds of a crime for which you have been found guilty must be considered as part of that crime, since otherwise the same assets would be subject to a double criminal punishment.

    

    There must be a complete identity between the authorship of the former crime and the money laundering. When wealth is generated through a permanent illegal behavior, this heritage of illicit origin is disconnected to an specific crime. In this case, the double punishment is appropriate.

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The Liability of the Public Administration

To confirm the of liability of the Public Administration the requirements are:

a) Actual damage or injury, which are economically assessable and individualized in relation to a person or group of people.

b) That the damage or injury suffered is a result of normal or abnormal functioning of public services, in a direct, immediate and exclusive relationship of cause and effect, without the intervention of other elements that could influence, altering the link to the cause of the damage.

c) Absence of force majeure.

d) The claimant must not have a legal reason or duty to withstand the damage.

When the risk inherent to the use of the Public Service exceeds the limits required by safety standards socially acceptable, that is enough to classify the damage caused as unlawful.

It's “objective” liability and therefore there is no need to prove:
      
       1) That responsible persons or entities acted intentionally or negligently.

       2) The public service functioned abnormally.

The responsibility of the Public Administration is based on:
      
       A) Generic principle of effective judicial protection,
      
       B) The rights of individuals to compensation for any harm they suffer as a  consequence of the operation of public services, and

      
       C) The right of individuals to be compensated by the State of any harm they suffer as a result of normal or abnormal functioning of public services, when the damage is effective, economically assessable and individualized.

Abusive clause: Nullity by imbalance

The existence of a  imbalance that hurts the consumers is the key to the abusive condition of the non negotiated terms included in the general conditions of the contracts.

The abusive general condition of a contracts is null where the contract is concluded with a consumer.

The requirements to consider abusive the general condition are:

a) That it is a pre established general condition and it is intended to be imposed in several contracts without being negotiated individually.

b) That it causes a significant imbalance in the rights and obligations in breach of the good faith.

c ) That the imbalance harms the consumer .

The circumstances to consider are those of the date on which the contract was signed , including the expected development of the circumstances whether these were taken into account or should have been taken into account. It is to be considered the information available to a diligent businessman, at least in the short medium term.

The analysis must consider the remaining provisions thereof.

The fact that a clause is clear and understandable does not mean that it is balanced or that it benefits the consumer .

The lack of transparency does not necessarily mean that the clause is unbalanced and that the imbalance is a significant prejudice to the consumer.

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Case History Medical Error: Breast Cancer.

In May 2008 a tumour-like lesion of about 1 cm is diagnosed.

Between May and August the patient undergoes review of General Surgery, Ultrasound with benign characteristics, scarce material is obtained (the sample is not diagnosed) , Thick Needle Biopsy is requested ( BAG), normal NMR and no pathological solid image .

So far the performance is in accordance with protocols.

In 2009 in the review and ultrasound test the size evolution is:

                            2008 June : 7 x 4 mm

                            2008 July : 9 mm

                            2009 May : 1.79 cm x 0.65 cm

There is a clear increase in nodule size and a biopsy should be recommended, but the report says that "does not show significant changes from previous ultrasound and no biopsy with thick needle is made".

The report of the ultrasound test does not register significant changes in size of the node.

The latter two actions mean a delay in the biopsy prescription of 16 months.

In August 2010 the biopsy is prescribed. The patient delays the intervention due to her holidays considering the benign characteristics and the long evolution.

In January 2011, following the complaint of the patient for the delay, the nodule is removed and diagnosed as infiltrating ductal carcinoma.

The relative probability of survival after 5 years of the patient has decreased from 88-100 %in May 2009 to 76-86 % in February 2011.

CONCLUSIONS

There was a medical error.

It is unknown whether the nodule was a primary tumour in May 2009 and then underwent a subsequent malignant transformation.

Should the biopsy had been prescribed in May 2009, it could have been possible an early diagnosis and an increased life expectancy.

The defendants admitted the existence of malpractice by, and the question left was to value the damages. 

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"Tax Planning" and "Tax Fraud"

"Tax Planning" and "Tax Fraud" have in common that both prevent, totally or partially, the payment of taxes, whose taxable event is not done or occurs in a less burdensome manner. This is achieved by choosing different paths to those ordinary or expected .

The Tax Planning option is lawfully chosen between various legal alternatives, one effect of which is to obtain a tax advantage.

In the Tax Fraud actually, and despite the outward appearance, the choice is not materially lawful, as it is achieved by using improper means, for the sole purpose of obtaining that Tax advantage.

The Tax Office has to calculate the tax due in accordance to the legal nature of the real fact, as defined by law, with no regard to the appearance or name the parties may have given to it. However the Tax Office cannot as a result of fraud of law invoice the proper taxes without the prior express declaration of the existence of such fraud of law.

The declaration of the existence of fraud of law with tax implications requires an specific procedure in which the corresponding proof is furnished to the interested parties.

Health Administration Responsibility: The loss of opportunity

When all the diagnostic tools available that could have guided the patient's diagnosis and determined its study and treatment have not been used, and the patient situation reaches an irreversible state, then we face the "loss of opportunity".

The loss of opportunity has been embraced in case law as an alternative to the breach of "lex artis", and  allows for a compensatory response in cases where the latter failure has not occurred, however it exists an unlawful damage arising from the operation of the service.

In this case we cannot ever know what would have been the end result, even if all available diagnostics possibilities had been exhausted .

In these cases, the material damage doesn't correspond to the fact occurred , but to the uncertainty surrounding the sequence that could have taken the facts should the medical service had followed other performance parameters, in short, the possibility that the circumstances concurrent had occurred in a different way.

The loss of opportunity is the loss of an alternative treatment, which resembles somewhat to the moral damage, and that is the concept to compensate.

We can state that medical action deprived the patient of certain expectations of healing, which should be compensated , but reducing the amount of compensation due to the probability that the loss occurred equally, having acted diligently.