Legal Systems in Spain Overview

Legal systems in Spain: overview, Practical Law Country Q&A 7-634-0207
Legal systems in Spain: overview

by Antonio Tapia and Amalia del Campo, Benow Partners
Country Q&A | Law stated as at 01-Feb-2018 | Spain
A Q&A guide to the legal system in Spain.
The Q&A gives a high level overview of the key legal concepts including the constitution, system of governance
and the general legislative process; the main sources of law; the court structure and hierarchy; the judiciary and
its appointment; the general rules of civil and criminal litigation, including reporting restrictions, evidentiary
requirements, the roles of the judge and counsel, burdens of proof and penalties.
To compare answers across multiple jurisdictions, visit the Legal Systems: Country Q&A tool.
The Q&A is part of the global guide to legal systems. For a full list of jurisdictional Q&As visit
global.practicallaw.com/legalsystems-guide.
Constitution
Form
General constitutional features
Amendment
Legal system
Form
Main sources of law
Court structure and hierarchy

Judiciary
Litigation (civil and criminal)
Online resources
Ministry of Justice
Royal Family (Casa Real)
La Moncloa
The Congress of Deputies (el Congreso de los Diputados)
The Senate (el Senado)
The Judiciary (el Poder Judicial)
Contributor profiles
Antonio Tapia Frade, Managing Partner
© 2022 Thomson Reuters. All rights reserved. 1

Amalia del Campo Pastor, Associate
Constitution
Form
1. What form does your constitution take?
The Spanish Constitution of 1978 (Spanish Constitution (Constitución Española (CE)) is the current supreme law of the
Kingdom of Spain. It was approved in plenary sessions of the Congress of Deputies and the Senate (see Question 2), held on
31 October 1978, and ratified by a Spanish people's referendum of 6 December 1978.
General constitutional features
2. What system of governance is provided for?
System
Spain is a parliamentary monarchy, based on parliamentary representation.
Head of state
The King, currently, Felipe VI, is the head of the Spanish state. He represents the state, and the unity and continuity of its
institutions. His functions include international and national representation and arbitration between other state institutions. The
King also has other relevant functions including:
• The designation of the Deputy of the Congress, who is vested as President of the government by the Congress.
• The appointment (as proposed by the competent authorities) of the members of the governing body of the judiciary,
ministers and other relevant officers of the state.

Structure
Spanish state power is divided between the legislative, executive and judiciary powers:
• The legislative power of the state is vested in the Spanish Parliament (Cortes Generales), comprising two houses: the
Congress of Deputies and the Senate. The two houses have the following functions:
• legislative, involving the passing of legislation;
• budgetary, entailing the approval of the annual state revenues and expenditures; and
• other functions established in the CE.
• The executive power of the state is exercised by the government, which consists of the President, vice-presidents (when
applicable), ministers and other members as may be determined by law. The government is in charge of domestic and
foreign policy, as well as civil and military administration and the defence of the state.
• The judiciary is composed of judges and magistrates who are independent, irremovable, and liable and subject only to
the rule of law.
3. Does the constitution provide for a separation of powers?
The CE establishes the principle of the separation of the powers of the state, which is divided into three branches: legislative,
executive and judicial (see Question 2).
There are several checks and balances in place to ensure that a branch does not exceed its authority:
• The Cortes Generales oversees government action. It can put formal questions to the government and each of its
members and appoint fact-finding committees (Comisiones de Investigación). The Cortes Generales also proposes
certain high officers of the state who are formally appointed by the King (for example, judges of the Supreme Court
and Constitutional Court and members of the governing body of the judiciary).
• The Congress of Deputies can challenge government policy by passing a motion of censure, which is approved on a
vote by an absolute majority of its members.
• The government can:
• propose legislation and constitutional amendments;
• lodge an appeal for its declaration as unconstitutional (recurso de inconstitucionalidad);
• dissolve the Cortes Generales in certain circumstances.

• In addition to handing down judgments, the judiciary can request the execution of judgments. It is also involved
in governmental and administrative functions regarding parliamentary control and the requirement of government
liability.
4. What is the general legislative process?
The general legislative process is regulated by the CE and completed by the standing orders of the houses of the Cortes Generales
(Reglamentos de las Cortes Generales).
Proposal and drafting
Legislation can be proposed by (article 87, CE):
• The government. The government participates in the legislative process by filing a bill of law (Proyecto de Ley). Legal
bills proposed by the government are passed by the Council of Ministers, which then submits them to the Congress of
Deputies, accompanied by a statement setting out the necessary grounds and facts for them to reach a decision.
• The Congress of Deputies and the Senate. These bodies can make a proposal of law (Proposición de Ley). Proposals
of law are regulated in the standing orders of the houses. Non-governmental bills that are considered by the Senate are
referred to the Congress of Deputies for enactment.
• The assemblies of the autonomous communities. The assemblies can request that the government pass a bill or refer
a non-governmental bill to the Congressional Steering Committee (Mesa del Congreso).
• Popular initiative. Such an initiative requires at least 500,000 authenticated signatures and cannot relate to certain
matters, such as taxation, international affairs or the prerogative of granting pardons.
Scrutiny
Once a bill or a proposal of law is proposed and accepted by a plenary full session of the Congress of Deputies, it is discussed
by the members to determine whether it is to be accepted, rejected or amended.
Bills and proposals of law are passed to the Standing Legislative Committee for scrutiny. The Standing Legislative Committee
designates a committee (ponencia), which prepares a brief about the text (Dictamen); this is discussed and voted on in the
plenary session of the Congress of Deputies. Once the text of the bill or proposal of law is approved, it is submitted by the
President of the Congress of the Deputies to the Senate, which then follows a similar procedure.
Enactment
The process finishes with the ratification and promulgation of the law. Within 15 days, the King gives his assent to a law passed
by the Cortes Generales. He then promulgates the law and orders its immediate publication.

The law enters into force 20 days after its publication in the Official State Gazette, unless the Gazette provides otherwise.
5. Is there a doctrine by which the judiciary can review legislative and executive actions?
A law that may be contrary to the CE can be brought before the Constitutional Court for scrutiny if it applies to a judgment,
and the judgment relies on the law being valid (article 163, CE). This can be done at the initiative of the judge, the court, or
at the request of a party involved.
This can be done only on completion of the proceedings and within the prescribed deadline for delivery of the judgment, or the
appropriate judicial resolution. The request to the Constitutional Court must specify:
• The law at issue and the constitutional precept that is deemed to have been violated.
• With supporting evidence, the extent to which the relevant judgment depends on the validity of the enactment.
Where the constitutionality of a law is challenged, the proceedings on judicial procedure are suspended until the Constitutional
Court reaches its decision.
6. Are certain emergency powers reserved for the executive?
The government, which has executive power, can issue temporary legislative provisions in cases of extraordinary and urgent
need. These take the form of decree-laws (Decretos-Leyes) and cannot affect the regulation of:
• The basic state institutions.
• The rights, duties and liberties contained in Title 1 of the CE.
• The system governing the autonomous communities.
• The General Electoral Law.
The concept of "extraordinary and urgent need" is a vague legal concept, whose existence or otherwise can be reviewed by
the Constitutional Court in particular cases. Extraordinary need is an unusual event, which was not predicted and is of singular
gravity or significance.
The executive can also declare a state of alarm and/or the submission to the Cortes Generales of a proposal for the declaration
of a state of emergency. Such declarations imply relevant restrictions to civil rights.

7. Are human rights constitutionally protected?
Human rights are protected in the CE under the section headed "Fundamental rights and duties", which is divided into five
chapters:
• Chapter I, called "Spaniards and Aliens", states the conditions required for the exercise of fundamental rights.
• Chapter II, entitled "Rights and Liberties", is divided into two sections:
• Section 1, called "Fundamental Rights and Public Liberties", which contains the declaration of fundamental
rights; and
• Section 2, called "Rights and Duties of Citizens".
• Chapter III is dedicated to "Governing Principles of Economic and Social Policy".
• Chapter IV, called "Guarantee of Fundamental Rights and Liberties", lays out the system for promoting and protecting
fundamental rights.
• Chapter V, entitled "Suspension of Rights and Liberties", sets out the exceptional situations in which fundamental
rights can be suspended.
The rights protected by the CE are:
• Right to life.
• Right to physical and moral integrity.
• Ideological and religious freedom.
• Right to freedom and security.
• Right to honour, to personal and family privacy and to a person's own image.
• Freedom of residency and movement.
• Freedom of expression.
• Right to meet.
• Right to association.
• Right to participate.
• Right to education.
• Right to unionisation.

• Right to strike.
• Right to petition.
Amendment
8. By what means can the constitution be amended?
The CE can be amended in two different ways (article 168, CE):
• The ordinary procedure. This can be used for a partial revision that does not affect matters specially protected. An
amendment must be approved by a majority of three-fifths of the members of each house. Once the amendment has
been passed by the Cortes Generales, it must be submitted for ratification by referendum, if this is requested by one
tenth of the members of either house, within 15 days of its approval.
• The compound procedure. This applies in relation to a total revision of the CE or a revision of matters that are
specially protected. In this case, the change must be approved by a two-thirds' majority of the members of each house,
and the Cortes Generales is immediately dissolved. The newly elected houses must ratify the decision and examine
the new constitutional text, which must be approved by a two-thirds' majority of the members of both houses. Once the
amendment has been passed by the Cortes Generales, it must be submitted for ratification by referendum.
Legal system
Form
9. What form does your legal system take?
Spain has a civil law system based on comprehensive legal codes and laws rooted in Roman Law. Civil law is applied throughout
the entire territory of Spain, but there are autonomous communities that have their own civil law system, which is applied in
relation to certain legal issues.
Main sources of law

10. What are the main domestic sources of law?
The sources of Spanish law are statutes, custom and general legal principles. Case law complements the legal system as the
Supreme Court upholds legal doctrine in its interpretation of the various sources of law. The opinions of legal experts also
provide interpretations and clarifications of the law.
A hierarchy of legal provisions exists (article 9.3, CE). Any provision that contradicts another of higher rank is invalid (article
1.1, Spanish Civil Code (Código Civil (CC) )). Customs are considered to be supplementary law, as they only apply in the
absence of applicable statutes, provided that they are not contrary to morals or public order. On the other hand, general legal
principles apply in the absence of applicable statute or custom, and may help to shape the law.
Exceptions to the hierarchy principle exist in relation to certain areas of the law. For instance, commercial law establishes that
commercial customs rank more highly than other non-commercial law.
The CE has priority over all other sources of law because it is the fundamental law of the state.
11. To what extent do international sources of law apply?
The hierarchy of Spanish law is (in descending order):
• The CE, which is the supreme law of Spain.
• European Union legislation, which is directly applicable as part of the national system, once passed.
• International treaties.
• Organic laws and ordinary laws, passed by the Cortes Generales.
• Decree-laws and legislative decrees, passed by the government.
• Regulations (Reglamentos), which is legislation of a lower status.
International treaties form part of the law of Spain once they are officially published in Spain (article 96.1, CE). As a result,
legal rules contained in international treaties have no direct application in Spain until they have been published in full in the
Spanish Official State Gazette.

Court structure and hierarchy
12. What is the general court structure and hierarchy?
The structure of the Spanish court system is based on:
• Territory. Spain is organised into municipalities, circuits (partidos), provinces and autonomous communities, with
jurisdiction over them exercised by:
• Magistrates Courts (Juzgados de Paz);
• Courts of First Instance (Juzgados de Primera Instancia) and Criminal Investigation Courts (Juzgados de
Instrucción);
• Contentious-Administrative Courts (Juzgados de lo Contencioso-Administrativo);
• Labour Courts (Juzgados de lo Social);
• Prison Custody Courts (Juzgados de Vigilancia Penitenciaria);
• Youth Courts (Juzgados de Menores),
• Courts of Appeal (Audiencias Provinciales); and
• High Courts of Justice (Tribunales Superiores de Justicia).
The National Court (Audiencia Nacional), Supreme Court (Tribunal Supremo), Central Criminal Investigation Courts (Juzgados
Centrales de Instrucción) and the Central Contentious-Administrative Courts (Juzgados Centrales de lo Contencioso) have
national jurisdiction.
• Jurisdiction. In addition to the territorial aspect, the judiciary can be also organised into four jurisdictional orders:
• civil;
• criminal;
• administrative; and
• labour or social.
There are also military courts in Spain.

• Composition. A single judge sits in all courts with the exception of the Supreme Court, the National Criminal and
Administrative Court, the autonomous communities' high courts and the provincial courts.
13. To what extent are lower courts bound by the decisions of higher courts?
See Question 16.
Everyone in Spain has the right to the effective protection of the judges and courts in the exercise of their legitimate rights and
interests (article 24.1, CE). This includes the right to file appeals as provided by law. As a result, a party who is unsatisfied
with the outcome of a trial can bring an appeal to have an outcome modified, remanded or reversed. The aim of appeals is to
control and correct, as far as possible, errors that courts can make in the interpretation and application of the law, when passing
or executing judgments.
In practice, lower courts are bound by the decisions of higher courts in the sense that, if a judgment of a lower court conflicts
with a prior ruling of a higher court that will receive the appeals of the parties, it is foreseeable that the higher court will modify
the ruling of the lower court.
14. Are there specialist courts for certain legal areas?
In accordance with the principle of jurisdictional unity, judicial power is assigned to the ordinary jurisdiction. However, special
courts have been created in relation to different subject matters. These include courts dealing with violence against women,
commercial courts and courts with special duties regarding criminal sentencing, as well as juvenile courts.
In addition, the CE provides for certain courts which enjoy full independence and impartiality and are fully subject to the rule
of law. These are the Constitutional Court, jury courts, the Court of Audit, the Military Court and the Court of Customary Law.
Spain is also subject to the jurisdiction of certain supranational courts pursuant to relevant international conventions to which
it is a signatory. These courts include the European Court of Human Rights, the Court of Justice of the European Union and
the International Criminal Court.
15. Are other quasi-legal authorities commonly used?

Yes, the following quasi-legal authorities should be considered:
• The Ombudsman (Defensor del Pueblo). The Ombudsman is the High Commissioner of the Parliament responsible
for defending the fundamental rights and civil liberties of citizens by monitoring the activity of the administration
and public authorities. Any citizen can request the intervention of the Ombudsman, free of charge, to investigate any
alleged misconduct by public authorities and/or their agents. The office of the Ombudsman can also intervene ex officio
in cases that come to its attention without any complaint having been filed.
• The Public Prosecutor. This institution is part of the judicial branch, but has functional autonomy. Its purpose is to:
• promote and defend the public interest;
• ensure the legality and impartiality of the operation of justice; and
• protect the rights of specific groups, such as minors, people with disabilities and so on.
The Attorney General of the State (Fiscal General del Estado) heads the Public Prosecutor Office for the entire country. The
Attorney General of the State acts in accordance with the principles of unified action, hierarchy and impartiality. The Attorney
General of the State is appointed based on a proposal by the government.
Judiciary
16. Does the constitution provide for an independent judiciary?
Judges and magistrates must be independent, non-dismissible, liable in relation to the performance of their duties and subject
to the rule of law only (article 117-1, CE).
The principle of independence means that judges and magistrates:
• Are subject to the rule of law only (understood as the Spanish legal framework as a whole) in the exercise of the
jurisdictional powers granted to them.
• Are independent, in the performance of their duties, from all jurisdictional and administrative bodies within the
judiciary.
• Are not subject to the principle of hierarchy, since judges and courts cannot review the interpretation of law made by
judges or courts hierarchically inferior, unless this is as a consequence of the appeals procedures provided for by law.
• Cannot receive instructions from either administrative bodies, hierarchically superior judges and courts, or the General
Counsel of the Judiciary (Consejo General del Poder Judicial) as to the interpretation of the legal framework made
during the exercise of jurisdictional power.

To guarantee and protect such independence, Organic Law 6/1985 of 1 July on the Judiciary (Ley Orgánica 6/1985, de 1 de
Julio, del Poder Judicial ( LOPJ)) is the only legislation that regulates (article 122-1, CE):
• The composition, operation and management of judges and courts.
• Professional judges and magistrates (which form a single body).
• The staff that serve the judiciary.
17. How are members of the judiciary typically appointed?
Appointment
The Spanish judiciary is a professional judiciary whose members are public servants divided into three categories: judges, senior
judges and senior judges of the Supreme Court.
In relation to the appointment of the judiciary (LOPJ):
• Judges are appointed by order of the General Council of the judiciary (Consejo General del Poder Judicial).
• Senior judges and presidents of courts are appointed by Royal Decree (Real Decreto), at the proposal of the General
Council of the judiciary.
An appointment is submitted to the relevant president of the court or tribunal for an order granting the post of the appointed
judge. A sworn declaration is made by the judge being appointed.
There are two different promotions systems that operate in relation to judges:
• Promotion from judge to senior judge is based on either:
• Seniority. Two of every four vacancies in the category of senior judge must be filled by promotion of judges
with at least three years of effective service.
• Selective examination or specialisation. One of every four vacancies must be filled by judges who have passed
selective examinations in the civil and criminal jurisdictions and specialisation in the contentious-administrative
and labour divisions.
• Promotion from senior judge to senior judge of the Supreme Court. Four of every five vacancies of senior judges
are reserved for members of the judiciary, known as the Judicial Service (Carrera Judicial). Among them:
• two must be senior judges who have attained this rank by selective examination. Such judges must have been in
the Judicial Service for at least 15 years, and must have at least five years' experience in the relevant jurisdiction;
and

• two must be senior judges who have served in that role for at least ten years; they must also have been in the
Judicial Service for at least 15 years.
Qualifications
Entry into the Judicial Service can be obtained in one of three different ways:
• Free public competitive examination. Entry in the category of judge is obtained through public competitive
examination and a theoretical and practical selection course carried out by the Judiciary School. A candidate must be
Spanish, of legal age, and have a university degree in law, and must not be classified as incapable, as established by the
law.
• Merit-based competition. Legal professionals can join the Judicial Service with the rank of Supreme Court Judge or
Senior Judge when they have renowned competence and a minimum of ten years of effective service. They must also
successfully complete a training course at the Judiciary School.
• Discretionary appointment by the General Council of the judiciary. One of every five Senior Judge vacancies must
be allocated to lawyers and other legal professionals of renowned competence, who have practised professionally for
more than 15 years, preferably in the branch of law corresponding to the jurisdiction of the chamber relating to the
appointment.
Litigation (civil and criminal)
18. Do the courts use an adversarial, non-adversarial or other system?
The trial system is adversarial, although the judge is entitled to intervene in the process with regard to evidence given.
19. Who is responsible for gathering evidence?
In civil procedures, the evidence is examined at the request of a party (article 282, Law 1/2000, dated January 7, on Civil
Procedure (Ley 1/2000, de 7 de Enero, de Enjuiciamiento Civil ( LEC)). However, the court may itself determine that certain
evidence be examined or that certain documents, opinions or other means of evidence or instruments be provided when this
is stipulated by law.

In criminal procedures, the Spanish Public Prosecutor (Ministerio Fiscal) and the parties must set out in their indictment (escrito
de calificación) evidence they intend to rely on, by presenting lists of experts and witnesses (article 656, Royal Decree dated
14 September 1882, on Criminal Procedure, as amended (Real Decreto de 14 de septiembre de 1882, aprobatorio de la Ley
de Enjuiciamiento Criminal ( LECrim)). However, in some cases the court can outline the evidence to be presented at the trial
(article 729, LECrim).
20. Is evidence independently examined before a trial?
Civil procedures
The Court decides on the admission of each piece of evidence that has been proposed. The admission of the evidence takes
place at the preliminary hearing before the trial and is orally examined by the judge, which does not exclude the right of the
parties to lodge an appeal for reversal of the decision dismissing the evidence. If the decision is dismissed, the relevant party
then must file the appropriate protest to uphold his or her rights in the second instance.
A court's decision on the evidence is taken in accordance with three admission criteria (articles 283 and 287, LEC):
• The evidence should not be irrelevant. No evidence must be admitted which is considered to be irrelevant if it is not
related to the subject matter of the proceedings.
• The evidence should not be useless. Evidence which, according to reasonable and secure rules and criteria, does not
help to clarify controversial facts will not be admitted.
• The evidence should not be illegal or forbidden.
At the preliminary hearing before the trial, the court can only admit evidence in accordance with the above criteria. At the
subsequent trial, all evidence admitted by the court must be considered at the same time and at the same place, in the following
order, unless otherwise agreed by the court on its own initiative or at the request of a party:
• Parties' responses to questions.
• Witnesses' responses to questions.
• Experts' statements about their opinions or submissions in relation to these (in the exceptional circumstance that they
have to be admitted at that time).
• Taking of evidence by the court, where this does not have to be conducted outside the court's premises.
• Reproduction before the court of any words, images and sounds captured through filming, recording and other similar
instruments.
Criminal procedures

Once the indictment (escrito de calificación) is submitted, the court must issue a decision declaring that this has been done, and
order it to be sent to the reporting judge for examination of the evidence. The court then examines the evidence proposed and
immediately issues a decision admitting the relevant evidence and rejecting any other evidence.
21. Are trials/hearings open to the public?
Judicial proceedings must be public, with the exception of those provided for by law (article 120, CE). However, in exceptional
circumstances relating to issues of public order and the protection of rights and freedoms, judges and courts may, providing
that there are justified grounds, restrict publicity and order secrecy in relation to all or part of the matter.
Civil law
Evidence is usually heard at a public hearing (article 138, LEC). However, in exceptional circumstances relating to issues of
public order and the protection of rights and freedoms, judges and courts can restrict public access to the trial or hearing.
Criminal law
Once a trial begins, all stages of it are public (article 649, LECrim).
22. Are reporting restrictions typically imposed in relation to a trial?
Civil law
Pre-trial. Only the parties are summoned to the the preliminary hearing before the trial. They can attend with their lawyers.
During trial. In general, hearings are conducted in public.
However, closed sessions may be ordered:
• To protect the public order or national security.
• To protect the interests of minors or the private lives of the parties, or when other rights and freedoms require this.
• When the court deems this to be necessary due to the occurrence of special circumstances that might damage the
interests of justice.
Before agreeing to hold procedures in a closed session, the court hears the arguments of the parties on this.

Post-trial. Judgments are to be delivered in public and must contain the grounds for the decision (CE).
In addition, when a judgment has been drafted and signed by the judge or senior judges who issued it, it must be deposited at
the court office for any interested party to access. However, access may be restricted if it could:
• Affect the right to privacy.
• Impact the rights of persons requiring a special duty or protection.
• Affect the guarantee of anonymity regarding victims or injured parties, where appropriate.
• Result in the judgment being used for purposes contrary to the law.
Criminal law
Pre-trial. Investigatory activities involve the parties to the trial only, and should not be made public until the start of the trial,
although certain exceptions are laid down by law.
However, if the alleged crime is public, the court may, on its own initiative, or at the request of any of the parties or the Spanish
Public Prosecutor, declare the trial totally or partially secret for all parties involved. This can be done for no longer than one
month, when necessary, to either:
• Avoid a serious risk to life, liberty or the physical integrity of another person.
• Prevent a situation that could severely compromise the outcome of the investigation or process.
During trial. Trials are generally public. However, the court may decide, on its own initiative, or at the request of any of the
parties, that all or any part of the trial be heard in closed sessions when this is necessary:
• For security and public order.
• For the protection of fundamental rights of the parties involved in the trial, in particular, the right to privacy of the
victim.
• When it is necessary to avoid causing relevant damages to the victim.
In addition, the court can do any of the following to protect the victim's privacy:
• Prohibit the disclosure or publication of information concerning:
• the identity of the victim;
• data that may directly or indirectly facilitate the victim's identification;
• any personal circumstances of the victim that have been assessed as requiring protection.
• Prohibit the collection, disclosure or publication of pictures of the victim or his or her family.

• Restrict the presence of audio-visual media in the trial sessions and prohibit some or all of the hearings from being
recorded when it is essential to preserve the order of the sessions and the fundamental rights of the parties and other
participants. For this purpose, the court may agree to prohibit:
• the sound or pictures being recorded during certain evidence, or to determine what measures or actions can be
recorded and disseminated;
• images being taken and disseminated of one or more of the parties involved in the trial; or
• the provision of the identity of victims, witnesses or experts or any other person involved in the trial.
Finally, in relation to children who are victims or victims with disabilities, there is a total prohibition on the disclosure or
publication of:
• The identity of the victim's data that can directly or indirectly facilitate identification.
• Those personal circumstances of the victim's that have been assessed as requiring protection.
There is also a prohibition on the collection, disclosure or publication of images of the victim or his or her family.
Post-trial. See above, Civil law.
23. What is the main function of the trial and who are the main parties to it?
The main function of the trial is to produce evidence and determine the grounds for the final judgment or decision by the court.
At the trial, following questioning of the parties and witnesses, the parties' lawyers may ask additional questions of such a party
or witness to ascertain the facts.
In addition, when the involvement of a lawyer is not compulsory, the parties can question each other and make any observations
that are appropriate to ascertain the relevant facts, ensuring that they do not speak over or interrupt each other. In addition,
when witnesses seriously contradict each other, the court can, on its own initiative or at the request of a party, allow further
questioning in relation to the contradictory evidence.
In civil trials, the main parties are the plaintiff and the defendant. In criminal cases, the main parties are the accuser and the
accused and, when applicable, the Spanish Public Prosecutor (the latter may also appear in certain civil trials, for example, in
proceedings regarding incapacitation, nullity of marriage and those concerning the determination and contesting of kinship).
24. What is the main role of the judge and counsel in a trial?

Role of judiciary
The main role of the judge in a trial is to oversee the production of evidence, and prevent discussions that are irrelevant to
finding out the facts. In addition, the judge can intervene in the production of evidence at trial (questioning the party summonsed
to testify, witnesses and so on) to obtain clarifications and complete the evidence put forward by the parties.
In criminal proceedings, the judge's intervention is not contrary to judicial impartiality because the judge decides exclusively
on the basis of what has been done and proved in the trial. The functions of pre-trial investigation and passing judgment are
assigned to different judges.
Role of legal counsel
The main roles of legal counsel during the proceedings are to:
• Defend the client's interests.
• Advise the client of the potential consequences of the trial.
• Design the trial strategy.
• Produce evidence to the court.
• Represent the client in the trial and related matters.
25. To what extent are juries used?
Citizens participate in the administration of justice through the institution of the jury (article 125, CE). The LOPJ (article 83)
provides for the composition and jurisdiction of the jury to be governed by Organic Law 5/1995 of 22 May on the Jury Court
(Ley Orgánica 5/1995, de 22 de mayo, del Tribunal Jurado).
Civil law
Jury trials are not available in civil cases.
Criminal law
The jury is competent to judge those criminal offences submitted for its assessment and to deliver a verdict. The types of
criminal offences it can assess at trial are felonies:
• Against the person.
• Committed by civil servants in the exercise of their posts.

• Against honour.
• Against freedom and security.
• Of arson.
Within this context, a jury can hear and deliver verdicts in trials on (Organic Law 10/1995, of 23 November of the Spanish
Criminal Code (Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal) (CP)):
• Unlawful killing (articles 138 to 140).
• Intimidation (article 169.1).
• Failure in the duty to assist (articles 195 and 196).
• Trespassing a dwelling (articles 202 and 204).
• Forest fires (articles 352 to 354).
• Failure in the duty to maintain safe custody of documents (articles 413 to 415).
• Corruption (articles 419 to 426).
• Influence peddling (articles 428 to 430).
• Embezzlement (articles 432 to 434).
• Fraud and illegal taxation (articles 436 to 438).
• Matters concerning civil servants, where they are alleged to have entered into negotiations that are prohibited (articles
439 and 440).
• Failure in the duty to maintain safe custody of prisoners (article 471).
The jury is composed of nine jurors (jurados) and one trial judge (Magistrado) belonging to the provincial court (Audiencia
Provincial) where the trial is to be conducted.
The following individuals cannot undertake jury service:
• The King and the other members of the Spanish royal family and their spouses.
• The President of the government, vice-presidents, ministers, secretaries of state, under-secretaries, directors-general
and holders of similar offices.
• The Director and provincial delegates of the Electoral Census Office.
• The Governor and Deputy-Governor of the Bank of Spain.
• The presidents of the autonomous communities, members of governing councils, deputy-counsellors, and similar
officers.
• Deputies and senators of the Cortes Generales, members of the European Parliament, members of the General Council
of the Judiciary and State Attorney General, the President and members of the Court of Auditors and the Council of
State, and of any similar bodies or institutions of the autonomous communities.

• The Ombudsman and his deputies, as well as those holding similar offices in the autonomous communities.
• Members in active service of the judiciary and the State Prosecution Service, court clerks, forensic doctors, officials,
assistants, officers and other staff involved in the administration of justice.
• Members in active service with the Judiciary Police, members in active service with the Legal Military Corps, and
assistants in the military and in the Military Prosecutor's Office.
• Government delegates in the autonomous communities, the autonomous cities of Ceuta and Melilla and government
delegates representing the islands and prefects.
• Members in active service with the police and security forces.
• Civil servants working for the prison service.
• Heads of diplomatic missions accredited abroad, heads of consular posts and heads of permanent representations to
international organisations.
In addition, an individual is disqualified from jury duty if he or she:
• Is a private prosecutor, civil party, accused or a third party liable under civil law.
• Has a relationship with a judge or magistrate.
• Is in any way related to the trial judge, a member of the public prosecution or court clerk, or the solicitors or barristers
acting in the case.
• Is involved in the case as a witness, expert, guarantor or interpreter.
• Has a direct or indirect interest in the case.
26. What restrictions exist as to the evidence that can be heard by the court?
The court cannot decide on facts not included in the indictment, and the sentence can only be based on the evidence provided
in the trial. In this regard, the trial commences by taking the evidence admitted; however, a preliminary decision is issued if a
party should raise or should have raised that a violation of fundamental rights has occurred. Evidence that is illegally obtained is
excluded, because evidence that, either directly or indirectly, infringes fundamental rights or freedoms, is inadmissible (article
11.1, LOPJ).
27. Which party has the burden of proof in a trial and at what standard is this burden met?

Civil law
Different parties bear different burdens of proof:
• The plaintiff and the defendant counter-claiming, if applicable, must prove the facts on which the causes of action of
the claim and the counter-claim are based.
• The defendant and the plaintiff counter-claimed must prove those facts that preclude, extinguish or reduce the validity
of the facts that the plaintiff and defendant counter-claiming seek to prove.
However, the burden of proof can be reversed in certain circumstances:
• In proceedings on unfair competition and false advertising, it is up to the defendant to prove the accuracy and veracity
of the statements made and of the information contained in the publicity, respectively.
• In gender discrimination proceedings, it is up to the defendant to prove the absence of discrimination in the measures
adopted, and their proportional nature.
There are certain other situations where the law provides for the reversal of the burden of proof (for example, in relation to
certain employment matters).
Criminal law
Under the principle of in dubio pro reo (where doubts remain), in the absence of evidence, or if the guilt of the accused party
is not proven, the court can acquit the defendant.
In addition, the principle of presumption of innocence considers the defendant innocent until proven guilty, so the accuser and/
or the prosecutor must prove each element of the offence.
28. What verdicts can the court give?
Civil law
The court hands down a judgment containing a verdict, which give its findings on each of the claims of the parties. The court can
admit or reject some or all of the parties' claims, and make a judgment regarding legal costs. In addition, the court determines
any applicable punishment.
Criminal law
The verdict contained in the judgment is either acquittal or conviction. A conviction determines criminal and civil responsibility.
An acquittal may also entail the imposition of security measures such as interment in a psychiatric institution, barring from a
profession or family custody.

29. What range of penalties/relief can the court order upon a verdict?
Civil law
Based on the type of proceedings and the protection requested by the parties, the court can deliver the following types of verdicts:
• Declarative. A declaration clarifies a legal situation.
• Constitutive. This type of decision creates, modifies or terminates a legal relationship.
• Condemnatory. This type of decision compels the defendant to do something or abstain from doing something, or
obliges him or her to deliver something.
Criminal law
The penalties that can be imposed are (CP):
• Liberty-depriving penalties, which are:
• imprisonment;
• permanent traceability;
• personal subsidiary accountability for failure to pay fines.
• Penalties restricting rights, which are:
• general disqualifications;
• specific disqualifications;
• suspension from public employment and office;
• deprivation of the right to drive motor vehicles and mopeds;
• deprivation of the right to own and carry weapons;
• deprivation of the right to reside in specific places or to visit them;
• prohibition from approaching the victim or his or her relatives or other persons determined by the judge or court
of law;
• community service; and

• deprivation of parental rights.
• Pecuniary penalties, that is:
• fines; and
• in the case of non-payment of fines, subsidiary personal liability.
Online resources
Ministry of Justice
W www.mjusticia.gob.es
Description. The website of the Spanish Ministry of Justice. Translations of pages from Spanish law into English
are for guidance only and some information may be out-of-date.
Royal Family (Casa Real)
W www.casareal.es
Description. The website of the royal family.
La Moncloa
W www.lamoncloa.gob.es
The website of the Spanish government.
The Congress of Deputies (el Congreso de los Diputados)
W www.congreso.es
Description. The website of the Spanish Congress.
The Senate (el Senado)
W www.senado.es
Description. The website of the Spanish Senate.
The Judiciary (el Poder Judicial)
W www.poderjudicial.es

Description. The website of the Spanish judiciary.
Contributor profiles
Antonio Tapia Frade, Managing Partner
Benow Partners, S.L.P.
T +34 918 380 001

F +34 911 110 955
E antonio.tapia@benow.es
W www.benow.es
Professional qualifications. Lawyer, Madrid, Spain
Areas of practice. Mergers and acquisitions; corporate and commercial; real estate.
Non-professional qualifications. Ph.D. in Law (Transnational Mergers, Cum Laude), Universidad Complutense
de Madrid; Law degree, Universidad Complutense de Madrid (Grupo Especial).
Recent transactions
• Providing legal advice to the shareholders of Kite Team Group on the sale of up to 100% of Kite Team
Group to Keywords Studios.
• Providing legal advice to the shareholders of ActioMed on the sale of a majority shareholding to YES
Pharma Services, a subisidirary of Auctus, a German private equity fund.
• Providing legal advice to an Indian multinational group in the automotive sector for the purchase of a
100% shareholding in a Spanish, Indian and Colombian group.
Languages. Spanish, English

Professional associations/memberships. Member of the Madrid Bar Association.
Publications
• "The transfer of human capital in transnational mergers of EU joint-stock companies", Revista de

Fiscalidad Internacional y Negocios Transnacionales num. 2, Thomson Reuters.
• "Incentive systems for managers in MBOs, LBOs and BIMBO transactions", Fondos Review (Deloitte in
collaboration with prof. Dr. D. José Martí Pellón).
• "Stock options and Employee Stock Options", Revista de Derecho Bancario y Bursátil num. 87.
Amalia del Campo Pastor, Associate
Benow Partners, S.L.P.
T +34 918 371 240

F +34 911 110 955
E amalia.campo@benow.es
W www.benow.es
Professional qualifications. Lawyer, Madrid, Spain
Areas of practice. Corporate; mergers and acquisitions; commercial contracts; real estate.
Non-professional qualifications. Law degree, Univesidad Pontificia de Comillas (ICADE); Master's degree in
Legal Practice, Universidad de Navarra and IESE; Master's degree in Business Law, Universidad de Navarra and
IESE.
Languages. Spanish, English, French
Professional associations/membership. Member of the Madrid Bar Association.

END OF DOCUMENT
Related Content
Topics
Cross-border - Legal Concepts
Practice note: overview
Chinese Court System: Overview • Maintained
Choice of Law in Federal Court: Overview • Maintained
Practice notes
Constitutional legislation in the UK • Maintained
Central government: sources of powers • Maintained

Legal Systems in Spain Overview

Uploaded by

Copyright:

Available Formats

Legal Systems in Spain Overview

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legal Systems in Spain Overview

Uploaded by

Copyright:

Available Formats

Legal systems in Spain: overview, Practical Law Country Q&A 7-634-0207

Legal systems in Spain: overview

Country Q&A | Law stated as at 01-Feb-2018 | Spain

A Q&A guide to the legal system in Spain.

General constitutional features

Main sources of law

Court structure and hierarchy

Royal Family (Casa Real)

The Congress of Deputies (el Congreso de los Diputados)

The Senate (el Senado)

The Judiciary (el Poder Judicial)

© 2022 Thomson Reuters. All rights reserved. 1

Amalia del Campo Pastor, Associate

1. What form does your constitution take?

General constitutional features

2. What system of governance is provided for?

Spain is a parliamentary monarchy, based on parliamentary representation.

© 2022 Thomson Reuters. All rights reserved. 2

• legislative, involving the passing of legislation;

• other functions established in the CE.

3. Does the constitution provide for a separation of powers?

• The government can:

• propose legislation and constitutional amendments;

• lodge an appeal for its declaration as unconstitutional (recurso de inconstitucionalidad);

• dissolve the Cortes Generales in certain circumstances.

© 2022 Thomson Reuters. All rights reserved. 3

4. What is the general legislative process?

Proposal and drafting

Legislation can be proposed by (article 87, CE):

© 2022 Thomson Reuters. All rights reserved. 4

6. Are certain emergency powers reserved for the executive?

• The basic state institutions.

• The rights, duties and liberties contained in Title 1 of the CE.

• The system governing the autonomous communities.

• The General Electoral Law.

© 2022 Thomson Reuters. All rights reserved. 5

7. Are human rights constitutionally protected?

• Section 2, called "Rights and Duties of Citizens".

• Chapter III is dedicated to "Governing Principles of Economic and Social Policy".

The rights protected by the CE are:

• Right to physical and moral integrity.

• Ideological and religious freedom.

• Right to freedom and security.

• Freedom of residency and movement.

© 2022 Thomson Reuters. All rights reserved. 6

8. By what means can the constitution be amended?

The CE can be amended in two different ways (article 168, CE):

9. What form does your legal system take?

Main sources of law

© 2022 Thomson Reuters. All rights reserved. 7

10. What are the main domestic sources of law?

11. To what extent do international sources of law apply?

The hierarchy of Spanish law is (in descending order):

• The CE, which is the supreme law of Spain.

• Organic laws and ordinary laws, passed by the Cortes Generales.

• Decree-laws and legislative decrees, passed by the government.

• Regulations (Reglamentos), which is legislation of a lower status.

© 2022 Thomson Reuters. All rights reserved. 8