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Legal System

Spain - Legal System


It is important when getting legal advice in Spain that you always obtain an estimate (presupuesto) for the cost of the advice before you appoint a lawyer. Costs can vary a great deal and it is common to receive different advice from different legal professionals. You should also be prepared for any legal action taking a long time to resolve as the system is known for being very slow and at any one time there are thousands of cases waiting to go to court. It is not uncommon for cases to take several years to reach a court. This applies also to small local courts. This is why it is recommended to get the best legal advice possible and avoid court action as much as you can.

When you are purchasing a property or starting a business in Spain it is advisable to hire the services of a lawyer (abogado). Lawyers usually have a recommended fee list which is established by the local professional bodies, although they do have the right to set their own fees. It is considered that Spanish lawyers are considerably cheaper than those in other European countries. It is not possible to hire a lawyer on a ‘no win, no fee’ basis in Spain. Most regions have lawyers that speak good English. Legal aid (abogado de oficio) is available for those who earn less than twice the minimum wage. This means that you get a lawyer appointed to you but it is common for them to approach these cases less than enthusiastically. A barrister is needed if the case involves a sum of money totalling more than €900.

In some cases you may only need the services of a ‘gestor’ who is a legal advisor, rather than a fully-fledged lawyer. These are usually cases which involve dealing with a government agency, such as a property purchase. It is not essential to hire a ‘gestor’ but it can make the process much easier. It may be that you also need the services of a notary (notario) for dealing with legal paperwork. If you need a will or a have paperwork dealing with real estate then a notary is the best option.

The Spanish law is based on Napoleonic law. The first court is the Justice of the Peace (juez de la paz). This court deals with simple cases such as disputes between neighbours. There is no need to have legal representation at the justice of the peace court. Civil cases are usually decided before a ‘juzgado’ or ‘tribunal de primera instancia’. If cases are heard in the district court there is a formal judge (juez de distrito) and it is essential to have legal representation.

Criminal cases are heard in front of a local court known as a ‘tribunal de primera instancia e instruccion’ in the first instance, but there are other levels of criminal courts. The next is an ‘audiencia provincial’, followed by an ‘audiencia territorial’ and then an ‘audiencia nacional’. Higher levels of courts include the ‘tribunal superior de justicia’ which is then followed by the Supreme Court (tribunal supremo). The Supreme Court is based in Madrid.

The different types and levels of courts mean that for those from the UK and the US, the system will look familiar, even though the slow nature of the system ensures that it differs a great deal in other ways.

For many years there was no trial by jury system in Spain, although the system was brought back in 1996. There are usually 9 people on a jury and a guilty verdict can only be delivered if 7 agree. Everyone has the right to appeal any verdict against them. If you are arrested while in Spain you have the right to have a lawyer present while you make a statement and this can be your own lawyer or one nominated by the police. Foreigners also have the right to an interpreter if one is needed or have your consul advised. The police are able to hold suspects for up to 72 hours with no charge. If they want to hold you for longer they need to obtain a judicial order. However, if you are charged and remanded into custody it can be years before your case is heard, due to the slow nature of the legal system in Spain.

When looking for a lawyer in Spain the first port of call should be the local professional body and consulates will have lists of English-speaking lawyers. It is also possible to check the credentials of any lawyer with the ‘colegio de abogados’ in Madrid.


Useful Resources

Colegio de Abogados
Association of Lawyers (Madrid Based)
www.icam.es
Tel: + 34 91 788 93 80
Email: icam@icam.es


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