Law And Order
Harry King retired from corporate life in Britain to live in Spain. He would do so all over again if faced with the same decision, and now lives in Alicante. He is the author of a number of books including Going to Live in Spain, Buying a Property in Spain and Buy to Let in Spain.
Spain follows a system of legal codes different from English common law. One is a written set of rules and the other is based on precedent. In 1978 a new Spanish Constitution came into being and included a set of values unheard of in the Franco era: a new structure to govern the country, a new judicial system and new liberal laws bringing with it tolerant policing. Over the subsequent years additional legalisation has been enacted including entry into the EU and a need to deal with the problems of illegal Moroccan immigrants.
No system is perfect. Are Spain’s laws applied with alacrity or do abnormal delays lead to disrespect for the law itself? Does excessive officialdom breed avoidance of the law and does avoidance, tolerated to a degree, create an indifferent attitude to authority? In a decentralised structure of government do local councils ignore regional or national laws and furthermore does the government ignore EU rulings?
SPANISH CIVIL CODE
A code in jurisprudence is a systematic compilation of law in written form, issued by rulers in former times, and promulgated by legislative authorities after a rise of representative governments. Early legal codes were little more than statements which had obtained the force of law in civilised communities. Of all the old codes, that of the Roman emperor Justinian I and known as the Justinian Code most closely resembles the codes of later times. The influence of the Justinian Code was great. Long after Rome fell, Roman law continued to serve as a source of law in Europe in the form of civil law. The Code Napoleon followed, being a balance between German, French and Roman law of Justinian I. Among the merits of the French code are its simplicity and clarity. As a result of the Napoleonic conquests, the code was introduced into a number of European countries and it became the model for the civil codes of today’s Spain.
A modern code is designed to provide a comprehensive statement of the laws in force in a single branch of law, in a logical and convenient arrangement and in a precise, unambiguous phraseology. Modern codes include codes of civil, criminal, and public law, and codes of civil and criminal procedures. Statesmen of modern times have regarded legal codes as necessary instruments of national unity and central authority.
Attempts at defining a code of international public and private law have been unsuccessful. The League of Nations failed in its attempt to do so. The United Nations has established a commission to study the possible codification of various aspects of international law.
Civil law is a term applied to the body of private law used in countries in which the legal system is based on Roman law as modified by modern influences. Civil law is used in most nations in Europe, including Spain and partly Scotland but excluding England and Wales. The term ‘civil law’ is also employed to distinguish those legal codes that deal with civil relationships (such as citizenship, marriage, divorce, and certain contractual arrangements) from other codes such as those dealing with criminal law and maritime law.
English common law differs from civil law in origin and other important respects. In civil law, judicial interpretations are based primarily on a system of codified written law, rather than on the rule of precedent which is emphasised in the common law. The law of evidence, so important in common-law countries, has no counterpart in the civil law. The differences between civil law and common law, however, should not be overstated. Despite divergences in methods and terminology, a basic similarity is found in the ultimate results reached by both systems.
It is obvious that the legal system of Spain differs from that of the constituent countries of the UK. All Spanish law must now be formulated in accordance with the Spanish constitution of 1978. A constitutional court can strike out or amend an old law or code which it finds unconstitutional and will frequently do so.
Following the death of Franco and the re-emergence of democracy on 31 October 1978 the Spanish Parliament adopted a new written Constitution. It received the approval of the Spanish people in a referendum held on 6 December 1978 and became law when signed by King Juan Carlos on 27 December 1978.
The rights and obligations of all citizens of Spain are set out in considerable detail in 46 articles and can be viewed in full on www.igsap.map.es/cia/dispo/ce_ingles_index.htm. Thirty years later the contents look very basic for a modern European country, but in the aftermath of Franco’s reign they were the words of democracy. In addition to the fundamental rights of equality before law – free speech, religious, ideological and cultural freedom – there are five Articles of particular interest, which are summarised below.
- Article 10. The dignity of the individual, free development of personality, respect for the law and for the rights of others is declared to be fundamental. The law is in conformity with the Universal Declaration of Human Rights and such other treaties which will protect these rights and freedoms and international agreements as may be ratified by Spain.
- Article 15. No one shall be tortured, chastised or submitted to inhuman or degrading treatment. The death penalty will be abolished, except under military law in time of war.
- Article 17. No one can be deprived of liberty except in the circumstances and in the manner laid down by law. Preventative detention shall last only for so long as may be strictly necessary to elucidate the facts of a case, and in all cases a person must be released or brought before a court within 72 hours. Anyone kept in custody must be informed immediately and in a manner they can understand their rights and the reason for their detention. They are not obliged to make any statement and are entitled to the assistance of a lawyer in all judicial and police enquiries. The law accepts the principle of Habeas Corpus.
- Article 18. A person and family is entitled to the right to privacy. Without consent a home cannot be entered or searched, except under a judicial warrant or when a serious crime has been committed.
- Article 24. Everyone has the right of access to the courts, to be defended by a lawyer, to be informed of any charges made against them and to have the protection of a public hearing without undue delay. They can bring evidence in their defence, refuse to make any statement which might incriminate them, and are presumed innocent until proved guilty.
The 1978 constitution restored some identity to the ancient kingdoms and regions which originally made up the nation in 1492. The result was a kind of United States of Spain. It is a tightly regulated country having five levels of government. The top two levels comprise a Congress and Senate of elected representatives from the provinces, the Islands and the regions. The main focus of government lies with 17 autonomous regions, called Comunidades, each with their own parliament. The autonomous regions are further divided into Provinces and then into the smaller Municipio.
It is a unique system – a variable degree of decentralisation giving autonomy to the Comunidades an acknowledgement of Spain’s troubled past, yet centralised in order to control common interests such as defence and its relationship with the EU.