JUDICIAL STRUCTURE

Juzgados de Paz (Justices of the Peace)

These courts are now becoming obsolete, only operating in small communities which have no other courts. They are presided over by a single lay Justice appointed on an honorary basis by the Provincial Court and only hear minor civil cases.

Juzgados de Primera Instancia e Instruccion (Courts of the First Instance and Instruction)

This is the most common form of court found in all towns with a population of more than 20,000. It is divided into two parts. Courts of the First Instance are concerned with civil and commercial cases and supervising the work of Civil Registrars. Courts of Instruction act as Examining Magistrates investigating and preparing criminal cases to be tried in other courts. They may also try minor cases, where the maximum penalty does not exceed 30 days’ imprisonment, and hear appeals against judgments handed down by Justices of the Peace.

This is the first step on the judicial ladder where an action can be brought to recover unpaid debts such as failure to pay the rent, or claims for damages following an assault, or a breach of contract such as poor building standards. An abogado is required. In some cases an expert witness, perito judicial, is also required to give a professional view on a subject.

While the majority of legal actions will start and finish at the Courts of First Instance, any appeal will lead to a higher level court such as the Audiencia Provincial and then ultimately to the Tribunal Supremo, the highest court of all.

Juzgados de lo Penal (Criminal Courts)

Presided over by a single professional judge, they hear cases where the maximum penalty prescribed by law does not exceed six years’ imprisonment.

Audiencia Provincial (Provincial Court)

There is one in each province and they are presided over by a panel of three professional judges. Named after the province, its jurisdiction extends throughout that province. They try all criminal cases where the prescribed sentence could exceed six years’ imprisonment and hear appeals against sentences by the lower courts.

Audiencia Nacional (National Court)

They are constituted as the Provincial Courts with National jurisdiction. The court tries all cases involving crimes, including major drug trafficking and monetary offences which are deemed to have been committed against the State and may attract a sentence of over six years’ imprisonment. It also decides on extradition requests and hears appeals against sentences by the lower central courts.

Tribunal Supremo (Supreme Court)

The Supreme Court is the highest level of justice in the Spanish system. It is divided into five Chambers (Civil, Criminal, Labour, Military and Public Affairs) and hears appeals for the annulment, or revision, of sentences handed down by the National or Regional High Courts. It would also try civil or criminal cases against the President of the Government, Ministers and Members of Parliament, etc.

Other courts

While the centrepiece of the judicial system is Juzgados de Primera Instancia e Instruccion (Courts of the First Instance and Instruction), together with a tiered approach depending on seriousness and appeals, there are a number of other courts for specific subjects such as work related issues, prisons, minors and constitutional matters. Details are given below.

Juzgados de Menores (Minors’ Courts)

Presided over by a single professional judge they hear all cases, including criminal charges, involving minors under the age of 16.

Juzgados de lo Social (Labour Courts)

Presided over by a single professional judge they hear all labour and work-related cases.

Juzgados de Vigilancia Penitenciaria (Courts of Prison Vigilance)

They provide judges who look after the operation of prisons and the legal rights of detainees. They are responsible for granting parole and any conditions attached to it.

Juzgados Centrales de Instruccion (Central Instruction Courts)

They act as examining magistrates investigating and preparing cases to be tried in either the Central Criminal Courts or the National Court.

Juzgados Centrales de lo Penal (Central Criminal Courts)

Located only in Madrid, they are presided over by a single professional judge. They hear cases involving crimes against the state which are punishable by less than six years’ imprisonment.

Tribunal Constitucional (Constitutional Court)

This limits itself to considering constitutional matters and cases in which it is alleged constitutional rights have been infringed.

Tribunal Superior de Justicia de las Comunidades Autonomas (Regional High Courts)

Each Autonomous Community also has one of these courts. They have no direct involvement in criminal cases unless these infringe the privileges and immunities of local government officials or the judiciary. They are generally involved in commercial disputes and litigation against public sector bodies.

ACCIDENTS AND ASSAULTS

There are two methods for claiming damages: through criminal or civil proceedings. Reports must be made within two months of the accident or assault if criminal proceedings are to be taken. For civil proceedings, reports must be lodged within one year of the incident.

The examining magistrate decides if further action is to be taken, and it is their sole decision to order an arrest or further investigation. The magistrate will summon witnesses as necessary. Their costs should be recoverable, but reimbursements are usually less than expected. It can take up to two years or longer for a case to be brought to trial.

Injured parties may engage private lawyers to help prosecute their case and look after their interests in court. There is no provision for this expenditure to be reimbursed other than as part of a general judgment on costs which would then depend on the accuser’s ability to pay.

Applications for compensation are made to the court within whose jurisdiction the incident took place. In cases involving physical injury, an examination by the court’s doctor will be necessary. The examining magistrate decides whether compensation is payable by the defendant and how much it should be. The Criminal Compensation Fund Law became effective in 1996, and provides for compensation in cases of death, serious injury, serious damage to mental health or sexual abuse.

IF YOU ARE ARRESTED

An offence normally first comes to the notice of the police when the injured party makes a report or complaint (denuncia) or when the police are called to the scene of a reported crime. However, in some instances such as a result of enquiries or traffic offences, the police themselves make the initial complaint. The police are obliged to report the arrest of any British Citizen to the nearest Consulate immediately, where every effort will be made for a consular officer to visit the detainee within 72 hours of arrest.

Upon arrest a person should be informed of the charges against them. He or she is then likely to be held temporarily in a police cell until a formal statement answering the charges can be taken. After this, but in any event within 72 hours of arrest, the accused will be brought before an examining magistrate or released. A lawyer and if necessary an interpreter must be present when the statement is taken and when the accused appears before the judge. If the accused is unable to pay for, or unwilling to appoint, a lawyer, one will be assigned to him or her at no charge from a duty roster of the Bar Association (Colegio de Abogados). It is important to note that a lawyer is present solely to ensure that the accused’s rights are not violated and that the correct legal procedures are followed. They are not there to ‘defend’ the prisoner.

The examining magistrate

When appearing before the examining magistrate the accused will be asked to confirm or deny the statement previously made to the police or to make a further statement. This initial appearance is not a hearing on the merits of the case. Rather, it is a brief oral examination by the judge of the accused and will normally be based on evidence submitted by the police. From this they will determine whether there is a case to answer and, if so, decide whether the accused should be released without charges, placed on provisional liberty with or without bail, or committed to prison pending further investigation. The decision by the examining magistrate is subject to appeal by both the defendant and the prosecutor.

The examining magistrate is in charge of investigating the crime, its circumstances, perpetrators and any other matters relating to the offence. They are assisted in this by the judicial police (members of the national police force assigned to their office). The State Prosecutor or defence lawyer may ask the examining magistrate to follow specific leads in the investigation. When the investigation is completed it is the prosecutor who lays the formal accusation based on the evidence to the court. During the investigation stage all evidence, including police documents and witnesses’ statements, are reserved documents. Copies will not normally be released to interested parties or their representatives although, of course, defence lawyers and, if appointed, private prosecuting lawyers do have the right of access and examination.

On receipt of the examining magistrate’s committal proceedings the trial court will pass it first to the Public Prosecutor’s Office and, if one has been appointed, to the private lawyer assisting in the prosecution. They must then submit their provisional written observations on the case and their recommendations on sentencing to the court. These, with the original proceedings, are passed to the defence lawyer who must, usually within 15 days, provide the court with their own written observations. Only after these have been considered will a trial date be set. If the accused has not already engaged a lawyer they will continue to be represented by their first state lawyer throughout the proceedings.

Appeals

A sentence from the criminal courts can be appealed to a higher court by either the defence or the prosecution. Any such appeal must be filed within five days of the judgment. Decisions by a Supreme Court are final. Only if it is asserted that a Constitutional right has been violated can an appeal be lodged with the Constitutional Court. Should new evidence come to light after a person has been sentenced there is provision for the original judgment to be reviewed.

Prison

The Spanish prison authorities require written consent from a foreign prisoner to inform a Consular representative of an arrest and continued detention. The British Consul’s role is to protect a prisoner’s basic rights. Refusal to have the Consul informed could impede such a protective role, which includes taking up any serious complaint with the prison administration, informing next-of-kin of the situation, helping relatives with prison visits and transfers of funds whilst in prison.

A Consular officer will regularly visit all British prisoners. This would normally be as soon as possible after being notified of first arrest, once every three months for remand prisoners and at least once a year thereafter. Consuls cannot:

• give legal advice;
• investigate a crime;
• instigate court proceedings;

• get better treatment for a British national than is provided for locals or other nationals;
• or intervene in the Spanish judicial process to obtain the release of a British prisoner.

Under the provisions of the Council of Europe Convention on the Transfer of Sentenced Persons, a British prisoner in Spain may apply to serve the remainder of their sentence in the United Kingdom. To be eligible for such a transfer the sentence should be final with no other charges outstanding.

Footballers abroad

A heady mix of professional footballers and allegations of sexual assault made the headlines in 2004. It demonstrated to the UK public a Spanish legal system different from their own, where an examining magistrate and not the police is the key figure. This summary has been compiled with assistance from newspapers at the time but names have been omitted.

Background

La Manga Club is a favourite destination for English football clubs, offering a balmy setting for a winter break and providing coaches with state-of-the-art training facilities to help keep the players focused. The 1,400-acre luxury complex, set within olive and lemon groves, boasts international-standard football pitches, three 18-hole championship golf courses, a tennis centre, spa, gym and beaches fringed with palm trees. At the heart of the resort is a five-star hotel, surrounded by landscaped gardens, fountains and a luxurious swimming pool.

FURTHER READING

Paul Preston, Juan Carlos – A People’s King. London: Harper Collins. A lesson in how someone works hard to be head of state in a modern democracy.