This is an article in which we intend to make a brief review on the subject of Tutela Cautelar, treated in a simple and necessarily technical way, in which we will identify its characteristics, requirements, types of precautionary measures that exist. Likewise, we will include some references on the small differences or particularities that exist in relation to this matter in the countries of the Central American region.
The idea is that the reader ends up having a better understanding and comprehension of the importance of the Precautionary Protection mainly in civil and commercial judicial processes. Having said this, it is important to note that, although some examples of precautionary measures typical of other jurisdictions are mentioned, it is important that the reader is clear that this article focuses on addressing the issue from the perspective of civil and commercial judicial proceedings.
Definition and purpose.
A literal definition allows us to understand that the word “precautionary” is the action of preventing or foreseeing something.
According to the legal discipline, when we speak of “Tutela Cautelar” we are referring to the power granted to judges to order “measures” of a procedural nature (usually identified as “precautionary measures”) to prevent future situations. Specifically, it is important to be clear that the concept of “precautionary measures” refers to the materialization of the “Tutela cautelar” in concrete and specific measures.
According to the above understanding, the “Tutela Cautelar” allows judges to dictate measures to protect the correct course of a judicial process, but they can also be granted to ensure or guarantee compliance with the decision adopted by a judge as a result of a judicial process or to avoid greater damages, difficult or impossible to repair.
In accordance with what has been indicated above, bearing in mind that one of the main objectives of the Tutela Cautelar is to prevent or impede future situations from occurring or not occurring, the Tutela Cautelar has a practical characteristic (not written) that is not always present in all the cases in which a precautionary measure is granted, but it is certainly a very important element to consider and it is the element of surprise. Anticipating the circumstances and doing so in such a way that the counterparty does not have the opportunity to counteract what is being pursued, may mean the success of a judicial proceeding.
We will now proceed to analyze a hypothetical case in order to exemplify what was said in the previous paragraph. If a person wishes to collect a debt through judicial proceedings and is aware that his debtor has only one asset that could be useful to liquidate it and pay the amount owed, it is very important that the precautionary measure be implemented (in this case it could be the preventive seizure) before the debtor knows of the existence of the lawsuit and the creditor’s intention to collect his claim through the execution of the only asset that the debtor has. Otherwise, if the precautionary measure is implemented after the debtor has knowledge of the existence of the claim, it could cause the debtor to distract or hide its assets to avoid payment of the debt.
Normally the law recognizes that there are precautionary measures that by their nature, must be granted without informing the counterparty, such is the case of the preventive seizure and the annotation; however, the law also provides that any measure may be granted without prior knowledge of the counterparty, as long as the applicant proves that the measure must be granted in this manner for reasons of urgency or warning that putting the counterparty on notice, could compromise its purpose.
This is also relevant when it is on the side of the party that without prior notice, suffers the effects of a precautionary measure; especially in those cases in which the precautionary measure is abusive or excessive, which could motivate the affected party to request the modification or lifting (elimination) of the precautionary measure.
Hence, another of the most important characteristics of the precautionary measures is their temporary nature; that is to say, the measures can be granted for a determined period of time, they can be modified or eliminated if there is a change or incorrect analysis of the circumstances that motivated the granting of the measure. In addition, due to its temporary nature, it should be noted that the implementation of the precautionary measure should not last longer than the duration of the judicial process (with some exceptions).
This characteristic has provoked deep ontological discussions among many experts, most of whom are inclined to accept that the granting of a precautionary measure should not be the same as the measures that could be adopted in the final judgment. As an example, a person could not be claiming the payment of a debt and request as a precautionary measure that the defendant deliver the money owed; however, what is allowed is the preventive seizure of the defendant’s bank accounts, so that the Court in charge of the process retains and safeguards the seized amounts and in case it is recognized in the judgment that the defendant must indeed pay the amount owed, the Court will proceed to deliver the sums claimed to the plaintiff. In simple terms, the precautionary protection cannot be used to advance the effects of the judgment itself.
Another example that can be mentioned is found in criminal matters, where the figure of preventive detention exists as a temporary precautionary measure (granted for specific periods as established by law) with the sole purpose of preventing the accused from absconding, repeating the criminal activity, hiding evidence, threatening witnesses and in general performing any act that may hinder the judicial process. However, pretrial detention is not an early imprisonment penalty as many people think, but it is an exceptional measure and should serve only for the purposes indicated above.
Both examples allow us to demonstrate very well the purposes of the preventive measure. In the example of the preventive seizure, what the plaintiff seeks is to ensure that, if through the judicial process it is recognized that the defendant owes a sum of money, once there is a definitive resolution, there will be resources to pay the amount owed. In other words, the preventive seizure as a precautionary measure allows to ensure compliance with the judgment issued by the judicial authority. Now, in the example of preventive detention, what is sought is that the accused cannot hinder the holding and due processing of the judicial process.
Likewise, the precautionary measure must be proportional and reasonable. As we will see below, although the precautionary measure must sometimes be granted to avoid causing greater damage or damage that is difficult to repair, neither can it be allowed to mean a more serious situation than the damage it is intended to protect, so it is the obligation of the judge to make a fair balance between the interests at stake, to prevent the precautionary measure from causing an imbalance in the burdens to be assumed by the opposing party.
Likewise, the request for the precautionary measure is a request linked to the main proceeding in which it must be discussed whether the plaintiff is right or wrong with respect to what he claims, being the accessory and instrumentality other of the characteristics of the precautionary guardianship.
Regarding the instrumentality, we can cite as an example, the hypothetical case in which a person has a claim against another person with respect to a certain property (which we will identify as property F), and requests that the claim be recorded in the margin of property Z. In this case it is easy to deduce that the security sought against property Z is useless, since the main claim is aimed at resolving a dispute over another property, i.e., property F. From this example, we can conclude that the injunction must be useful for the final purpose sought, and this is what is known as the instrumentality of the injunction.
At what stage of the process is a precautionary measure granted?
As previously indicated, precautionary measures may be granted before the filing of a judicial proceeding (known as “precautionary measure ante causam”), which allows the manager of a judicial proceeding to request the judge to adopt preventive measures to prevent the defendant from hiding and thus hinder the holding of the judicial proceeding or prevent the defendant from evading compliance with the order adopted by means of a court judgment.
It is important to make clear that the possibility of requesting precautionary measures is not limited only to stages prior to the filing of the judicial action, but can be requested and granted at any stage of the process. This is a possibility that is present in all jurisdictions of Central American countries.
Requirements of the Precautionary Measure.
According to the procedural rules of most of the countries of the Central American region, in civil and commercial judicial proceedings, the measures are granted at the request (in writing) of the interested party, so that the general rule is that the judge is prevented from granting precautionary measures ex officio. However, there are some exceptions to the rule that allow the judge to grant precautionary measures ex officio, for example in Costa Rica, which allows the judge to grant precautionary measures in bankruptcy proceedings, as long as they benefit the interests of the bankruptcy.
The request must be made before the same judge who is in charge of the main proceeding; however, in the case of Costa Rica it is recognized that if the request is urgent, the measure can be analyzed and granted by any judge and after the corresponding resolution, the file must be sent to the judge who is in charge of the main case.
Now, the request for a precautionary measure must meet at least two requirements that must be analyzed by the judge to determine whether it is justified that the measure be granted.
Appearance of good law (fumus bonis iuris). In all the countries of the Central American region, the request for a precautionary measure must be linked to the claim in the main proceeding; in other words, the judge must make a prima facie hypothetical analysis or judgment of the probability or plausibility of the claim. In other words, the judge must determine that there are sufficient elements to justify the analysis of the action and consequently it becomes viable to admit the precautionary measure, on the presumption that the presentation of the defendant and the granting of the precautionary measure are not absurd or unfounded and that it has not been formulated to cause damage to the opposing party.
Danger in delay (periculum in mora). This requirement demands that the applicant demonstrates that the establishment of a precautionary measure cannot wait for the judicial process to be completed. It is worth mentioning that judicial delay in most of the countries of the region is quite high and causes judicial proceedings to extend over many years. Based on this requirement, it should also be analyzed that, if the precautionary measure is not granted, it could cause greater damage to the applicant or damage that would be difficult to repair. For example, the seizure of the debtor’s assets is requested at the beginning of the process, because it could happen that, during the processing of the process, the debtor (aware that it is going to lose the judicial process) hides or sells its assets and is left without sufficient assets to honor the debt; therefore, it is justified that the measure is granted before or during the processing of the process and it is not until the final judgment is issued that the freezing of the debtor’s assets is allowed.
Although the request for a precautionary measure is not an ordinary proceeding, it still requires to be accompanied by the evidence that proves that we are in the presence of the requirements of the law. In some jurisdictions, the granting of precautionary measures is not done immediately, but the opposing party is given the opportunity to express its opinion on the request, and a hearing may even be held to receive testimonial and expert evidence.
Types of Precautionary Measures
Precautionary measures are classified as typical and atypical. The former are those that are taxatively recognized by the law, while the latter are not explicitly regulated in the law, but this does not prevent the judge from implementing them when he considers that he complies with the objective of the Precautionary Protection.
Below, we will mention some of the precautionary measures that are most frequently observed in judicial proceedings.
ARRAIGO. Among the typical precautionary measures, we would like to mention the Arraigo, although it is not recognized as a typical precautionary measure in several jurisdictions, in Guatemala as well as in Costa Rica it is recognized as a typical precautionary measure. Arraigo is a measure that is adopted when there is a belief that the person against whom the process is filed, may be absent or hide in order to avoid the process. Through the Arraigo, the counterparty is required to appoint a legal representative with sufficient powers to represent him/her in the process and to receive notifications. Once the representative is appointed, there will be no obstacles for the judicial process to take place.
PREVENTIVE SEIZURE. Undoubtedly, the preventive seizure is the precautionary measure most frequently observed in civil and commercial proceedings. Through this measure, the purpose is to freeze or retain assets that may be used to cancel the amounts that may eventually be recognized in the first instance sentence. The idea behind the preventive seizure consists of placing at the orders of the court or a judicial depositary, assets of the defendant to ensure that the defendant complies with the payment of the sums that it is obliged to pay.
Normally, the preventive seizure is granted with the delivery of a guarantee by the applicant (surety or counter-guarantee) ranging from 10 to 50 percent of the amount requested (depending on the regulations of each country) and is requested in order to prevent the payment of damages that may be caused if the claim is declared unjustified. However, there is an exception to the payment of counter-guarantee when the process is based on the collection of an enforceable instrument, for example, a promissory note or bill of exchange.
ANNOTATION OF THE CLAIM. This is a very common precautionary measure when the claim is intrinsically related to a registrable property. With the annotation of the claim to the margin of the registered property, its owner maintains the title and can even dispose of it, for example, sell it; however, what is intended with the annotation is that the acquirer is aware of the existence of a judicial process in which the property in question is involved and that, depending on the result of the process, the title owner or the new acquirer could be affected.
There are other precautionary measures that, depending on the country, are identified as typical or atypical measures. The following is a simple mention of other measures that can be identified in the different countries of the Central American Region, from the perspective of a civil and/or commercial process.
Deposit or judicial seizure of goods and documents.
Administration and intervention of productive assets.
General prohibition to dispose of or enter into acts or contracts on specific assets.
Formation of inventories of goods.
Prohibition to innovate, modify or cease an activity.
Temporary deposit of copies of works or objects.
Surrender of guarantees.
Suspension of social, condominium and similar agreements.
Temporary permission to pass through for land in enclaves.
Seizure and suspension of customs clearance of counterfeit goods.
As indicated at the beginning of this article, from the perspective of a judicial proceeding, it is very important to identify whether prior to or during the processing of a judicial proceeding, a precautionary measure should be requested. We reiterate that the success of many legal proceedings depends on the timely request and implementation of a precautionary measure, which allows to materialize the result obtained at the end of the legal process (which usually takes years).
It is clear that the interest of the person who files and processes a judicial process, lies in the possibility of obtaining a favorable sentence that can be executed and enforced; and it is very frustrating that after many years of conflict, even having a favorable sentence, such sentence cannot become a reality due to the absence of a precautionary measure that allows it.