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To Be Declared in Default

A person is declared in default when they have been sued or accused in a legal proceeding and fail to appear within the specified timeframe in the process.

The declaration of default, or being declared in default, refers to a situation that can arise within either a criminal or civil procedural context.

Being Declared in Default in Civil Proceedings

When a person sued in a civil proceeding does not appear voluntarily within the timeframe granted by the court, they may be declared in default.

The situation of default is regulated in Article 496 of the Civil Procedure Law regarding the "Declaration of Default":

"The Court Clerk shall declare in default the defendant who does not appear in due form on the date or within the period indicated in the summons or notice, except in the cases provided for in this law where the declaration of default corresponds to the Court."

However, being declared in default does not automatically mean losing the case, as the same Article 496 stipulates:

"The declaration of default shall not be considered as an admission of the facts alleged in the claim, except in cases where the law expressly provides otherwise."

Effects of Being Declared in Default in Civil Proceedings

While it does not imply an automatic acknowledgment of facts, being in default significantly diminishes the chances of defense and appeal in the second instance, as no further notifications will be received until the judgment is rendered.

In other words, once default is declared, the defendant is left in the dark and thus defenseless. The judge will rely on the version of the other party and their own judgment to resolve the case.

The possibilities of appeal are greatly reduced because even if it is appealable, the defendant cannot argue what was not proven during the appropriate procedural time (when they were summoned and did not appear, thus resulting in default).

Being Declared in Default in Criminal Proceedings

In a criminal proceeding, when the accused does not appear before the judge on the specified date, they may be declared in default.

This legal situation of declaring default against absent defendants is regulated by the Criminal Procedure Law, which provides in Article 834:

"The defendant who does not appear within the term fixed in the requisitions, or who has not been found and presented before the Judge or Court that hears the case, shall be declared in default."

The requisition referred to in the code usually translates into an investigation of whereabouts and domicile, and after being required, it can perfectly well lead to an arrest warrant to communicate a summons.

Effects of Declaring Default in Criminal Proceedings

The effects depend on the type of procedure:

  • In the Oral Trial, the procedure is suspended.

  • In the summary or investigation phase, the process continues until the phase is completed, and then the process is suspended until the accused/defendant is located.

  • In the ordinary procedure, an oral trial cannot be held without the personal presence of the accused.

It is possible to hold a criminal trial without the presence of the accused. The law provides for certain situations in which it is possible to hold the oral trial in the absence of the accused (without default being declared).

This is the case in trials for minor offenses and, provided that certain requirements in the abbreviated procedure are met, especially that the penalty sought for the accused is imprisonment of up to two years or any other type of imprisonment of up to six years.

Even in this case, there is a certain defenselessness, since the accused will not be able to give their version of what happened, and therefore, their defense can only be based on the documentary evidence available and the contradictions of the witnesses, if any.

If an oral trial is held without the presence of the accused, this greatly limits the possibilities of appealing the sentence that is ultimately issued if it is convicting, since the facts proven by this sentence cannot be rebutted if they were not recorded during the appropriate procedural time, that is, during the oral trial.

How to Avoid Being Declared in Default?

It is very important to avoid situations of defenselessness by always providing our address and keeping the court informed of any changes to it.

Many default situations are avoidable simply by informing that we have changed our rented apartment as soon as the change occurs.

Receive the summonses: many people think that by not collecting notifications at home, the procedure does not progress, but the truth is that we only delay the inevitable and end up with a declaration of default, which means that we do not have information and therefore cannot defend ourselves in a timely manner.

In the criminal field, this is even more important since instead of being notified and continuing as defaulters, it is very possible that a search order will be issued, which may ultimately result in detention in the worst possible circumstance: renewing the ID, routine road control, another arrest...

What Can I Do If I Am Declared in Default?

The most important thing is to get out of that situation: appear as soon as possible, obtain a copy of everything, and avoid as much as possible the negative consequences of the time spent in default status during the procedure.

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