A) The decision of the Disputes Division of the National Court Section 3. First, seven of June two thousand ten, finds that there is abnormal operation of the Registrar when issuing a certificate of birth of the claimant's wrong to put that she was married when I was uncertain, which prevented him from marriage, which entitled to compensation of 36,854 euros.
is, AN appreciated by abnormal functioning of the Civil Registry, to indicate an error in the birth certificate of the person concerned by a previous marriage appear in reality non-existent, which prevented him from celebrating the planned marriage , and could not be performed because the registry correction called the death of his partner. It has generated a real and effective because the plaintiff was frustrated the possibility of marriage before the death of his partner, which prevented him from collecting widow's pension that would otherwise be entitled. However, the Board believes that the voluntary decision not to marry during the long relationship of the couple helped produce the harm, so that the existence of a concause between the administrative and the harmful result means the moderation in compensation from the Administration. Thus, with respect to compensation for damages, the Board does not accept the moral damages sought by the appellant not being able to "regularize" the situation with your partner, and does not consider that such damage was suffered a result of administrative error , but result from the voluntary decision of the couple to live together without getting married. Compensable injury itself considered the possibility of perceiving widow's pension she would be entitled if he could marry before the death of his partner, in the absence of registration error.
B) PROOF OF DAMAGE : Where the trial has been demonstrated, the existence of an error in the Civil Registry of Arapiles (Salamanca) to have registered as a marginal note of registration of birth of the plaintiff the existence of a previous marriage with another person who was wrong because the marriage did not exist.
occurred without doubt an error in the certificate of registration which should be considered if it has generated the illegal damage is claimed, in this particular case in compensation for damages that has generated the impossibility of marriage and consequently the possibility of having received a widow's pension when her partner died.
and tested in the procedure to be considered established that the appellant and her partner planned to marry at the end of September and that due to error on the birth certificate of the appellant, stated that he was married, could not process the registration dossier within a reasonable time which would have allowed couples to marry her on schedule.
is why the NLA has established that that there was an abnormal functioning of the Administration public that no doubt contributed to the generation of a real and effective frustrated seeing the possibility of marriage before the death of your partner what, ultimately, prevented that could collect a widow's pension that would otherwise be entitled .
C) However, one might also wonder whether this error was the only determinant of outcome in fact occurred. In other words, if the margins of the abnormal functioning of public services there are other causes that contributed effectively to the outcome of harm. And the answer of this Court to this question is yes.
The appellant may have contracted marriage to his partner during his long relationship (about fourteen) which would have allowed him to collect a survivor's pension is now claimed as compensation for damages and was the voluntary decision of the couple largely prevented that no harmful outcome were to occur. Can be countered, not unreasonably, that couples have the right to marry when they voluntarily decide and that decision, even late in a long relationship, should not be frustrated by an administrative error. But the fact remains that the voluntary decision not to marry until he finally found a serious illness also contributed the causation of damage, especially if we consider that since it was detected lung cancer to your partner and they decided to get married, in February or March according to the witness statement contained in the case proceedings until mid- July was requested the birth certificate necessary to file initial marriage there was a delay in the actions taken by the party that is a mismatch with the intent of placing on the functioning of the administration is exclusively responsible for the desenlance produced.
should be added also following the same argument, that taking into account the patient's age (72 years) medical history (for several years had suffered from prostate cancer and a few months before had been detected a lung cancer), his recent surgery and his health worsened by pneumonia and a first heart attack from which he recovered initially deteriorated significant health and placed him in grave danger of death that would have allowed interested parties avail themselves of civil marriage "in articulo mortis" (art. 52 CC) which is held only with the presence of two witnesses and without pre-processing any record, delaying the verification of the absence of obstacles to the marriage to the subsequent processing of the dossier before proceeding to the registration of the record in the civil registry, records that would have allowed further clarify and rectify the error suffered for this deployment to be valid.
is why the conduct displayed by the appellant itself and its partner also contributed significantly to the occurrence of the harmful result.
The Supreme Court (STF April 15, 2000 and February 26, 2000) has been repeating that the necessary causal link between the conduct of the Administration and the resulting damage can appear in forms mediate, indirect or concurrent which, if any, moderate proportion repair by the Administration and also stated that (STS 6 November 2001), "or interference in the conduct of the victim or a third party determine in all cases the elimination of liability of Directors once proved that this latter has had some influence on the harmful outcome. "
The prosecution case, the conduct of the injured party does not serve to break the causal link between the administrative and the harmful result but is considered a very important concause to moderate repair by the Administration. Is calibrated so that the occurrence of faults in the following percentages 20% blame the government and 80% because of the impaired.
D) AMOUNT OF DAMAGES COMPENSABLE: The applicant claimed 430,000 euros for the widow's pension that would have been able to match the date on which could have been married to 90 years (28 years) and 30,000 euros for moral damages after failing marriage.
The National Court does not consider appropriate compensation for moral damages claimed for failing to "regularize" his situation with his partner (in the words used in the application), because this alleged moral damage, disconnected from anything else, can not be considered concatenated error Administrative suffered but derives from the voluntary decision of the couple to live their lives, after a long personal relationship, without marriage.
If one considers, however, as recoverable losses inability to receive survivor's pension which would be entitled if he could marry before the death of your partner, it was the intention of the couple when they detected the serious illness. This prejudice stems in part from administrative error detected in the registration certificate, but as stated above, the own performance of those affected and in this case the conduct of the appellant. The
appellant would have received such a widow's pension since the death of their partner (29 October 2006) until his death at an unknown date can be calculated on the basis of reasonable average life expectancy of a woman. To this end, the National Statistics Institute considers that the average life expectancy of a woman in our country are 84 years and since the appellant had at the time of the death of her partner 62 years so he remained a reasonable expectation of life, according to statistics, 22.
Moreover widow's pension that would have been entitled is 52% of the pension which he received the late D. Rosendo. Since the regulatory basis of the retirement pension of the latter amounted to 1343.65 per month for 52% corresponding to the widow's benefit amounts to 698 # per month multiplied by 22 years would determine an amount of 184,272 euros.
Well, since the AN observed a concurrence of guilt in the causation of injury, understanding that the Administration accounts for 20% of that liability the amount by which they will be compensated the appellant for damages suffered amounts to 36,854 euros.
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