CAN NOT CLAIM COMPENSATION FOR RELEASE AT THE BOE THE NAME OF A PERSON WHO AGREE WITH ANY CLAIMANT OF THE COMPENSATION
Wednesday, December 8, 2010
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A) The ruling of the High Court Division of the Chamber of Administrative Litigation of 5.2.2009, confirmed by the Supreme Court in 2010, dismisses the appeal which he administrative action against the implied rejection by silence from the Ministry of Justice in relation to claim damages for the publication of a pardon in the name of the pardoned match the appellant . The Board states that the publication of a pardon is a legal requirement that can not fail to be met, and in any case is individualized to the person pardoned, not that of any other that can be called equal and therefore can not be transferred to the State responsibility for the act of publishing a pardon and not the result of the operation of Internet search engines, but also can be established that the mere publication of a pardon has created an advertising negative in the person of the appellant as a lawyer with a loss of income.
B) The claim is based on that if you enter the name and surname of the appellant in several Internet search engines, there is reference to a BOE which notes the existence of a Royal Decree that pardons D. Luis Jesus, and this is associated with a proceeding in the Criminal Court no. 20 of those in Madrid a crime against public health. Understands relapsing-a lawyer, that the Ministry of Justice is responsible for the publication does not contain sufficient identifying information (besides the name and surname and identity card photograph of the pardoned), a publication that has served various search engines to include on their websites and to the extent that this has damaged their professional reputation and staff, and € 1,000,000 is to claim compensation for damage caused in the normal exercise of their profession and the growth of his office.
to justify the amount claimed the actor today is based on age (52 years) and the assertion that the last ten years can be considered the best for the development of his office, both professional maturity for his age, and income tax statements for the past five years (2002 to 2006 inclusive) can be seen that the income reported on the five years reached EUR 668,513.34 euros as making an extrapolation of these five years past decade, the income of the last decade should be around one million euros and it is normal if he had not been affected in their ability working through that suffered negative publicity in the publication of a pardon, this income would have doubled the opposite is happening as each year earn less having disappeared from her purse customers, four special prestige and had been built before the great expansion of the Internet.
C) The responsibility of the State for the operation of public services has been proclaimed in the art. 106-2 EC and its development is contained in the arts. 139 and following of the Law 30/1992 of November 26 and the RD 429/1993 of 26 March, approving the Regulations of the general government procedures concerning liability.
The case has been calling for a viable claim for liability of public authorities, that the individual is injured on their property or rights which is not required to bear and that is real, specific and capable of economic assessment, that the injury is attributable to the administration and a consequence of normal or abnormal functioning of public services and therefore there is a causal relationship and effect between service performance and the injury, without it being caused by force majeure (Ss. 03/10/2000, 09/11/2004, 05/09/2005).
As regards the characteristics of injury, Law 30/92 establishes that the alleged harm must be actual, economic evaluations and individual, specifying (art. 141.1) that are only compensable injuries particularly from the damage that it has no legal duty to support in accordance with the law.
The illegality of the damage is a requirement of the law, it is sufficient to effect the reference to the sentence of 22 April 1994, citing the 19 January and 7 June 1988, May 29, 1989, February 8, 1991 and November 2 1993, stating: "this Administration's liability is based on the objective criterion of injury, defined as unlawful damage or harm that he suffers no legal duty to support, because if there is such a legal duty obligation lapses Administration compensation. Thus, an examination of the Sentences Supreme Court of April 7, 1919 May and December 19, 1989, among others, suggests that the essential criterion for determining the illegality of damage or injury to a particular application of a legal rule or policy should be concurs on whether or not the legal duty to support the damage, since the restrictions or limitations imposed by a rule, precisely because of the general character of it, must be supported in principle by each of the individuals who make up affected group in the public interest. "
D) In the present case is requesting an award of 1,000,000 Euros for a liability State on the basis of the publication of a pardon by the Ministry of Justice, in which the name of the pardoned today match the appellant, a practicing lawyer . Jurisprudence has
leaving the identity is established on the basis of name, two of the individual (art. 53 et seq LRC) and that given the number of factors combined - three - and given the population is more than possible that there are several people with civil identity matching. A clear example is the case at hand. To this we must link the fact that the publication of a pardon is a legal obligation (art. 30 Law of 18 June 1870 laying down rules for the financial year the right of the grace of pardon), which can not be meet and that in itself is differentiated in the person of the convicted / pardoned and not that of anyone else who might be called the same. Can not be transferred to the Ministry of Justice, as has the publication in the Official Gazette of the pardon, and therefore the State of the outcome of the operation of Internet search engines.
addition, in this case we move to pure speculation by saying that the mere publication in the Official Gazette of the pardon effectively triggers a negative publicity in the person of the appellant as a lawyer with an effective loss of income.
trend of declining tax revenues declared by the appellant from 2002 may not be, necessarily and unavoidably, to the publication of a pardon, since such a pardon was published in the Official Gazette of 30/7/1997, several years before being fully seated and the Internet. We can also see that since 2002 the appellant does not follow a regular downward since 2003 revenues well exceed the previous year. We are therefore subject to an activity, like many others, peaks and dependent on economic performance of many factors - may be the case that higher income have less activity - and without even been brought to the cause specific data on the evolution of the appellant's client base which and citation omitted when test he calls the prestigious four clients have left for their professional services and that we should understand that too well to trust their operations, regardless of the pardon and release, if caught between 1985 and 1992, years earlier. Lack
therefore the reality claimed injury, causal link with the administrative action and the illegality of the damage. Therefore the claim must be dismissed in its entirety.
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