Spanish Justice System: Roles of Judicial Office, Lawyers, and Police

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Spanish Justice System: Key Roles and Administration

1. Organization of Justice Administration

The Spanish justice system relies on a structured organization of staff and collaborative bodies to ensure its effective functioning.

Jurisdictional and Non-Jurisdictional Staff

  • Jurisdictional Staff: Judges and Senior Judges.
  • Non-Jurisdictional Staff (Assistance):
    • Judicial Office (Counsel of Justice Administration, Procedural Units for Direct Support, Common Procedural Services)
    • Judicial Police
    • Specialized Bodies (Forensic Medics, Staff of National Institute of Toxicology and Forensic Sciences)
    • Others
  • Collaboration:
    • Prosecutor
    • Lawyers / Legal Representatives
    • Others

2. The Judicial Office

The jurisdictional function requires robust administrative support to carry out its main activities. This support is provided through the Judicial Office, regulated in Title V of the Organic Law of the Judiciary (LOJP).

Definition of the Judicial Office

The Judicial Office is an instrumental organization whose sole purpose is to assist judges and magistrates in the exercise of their judicial power. Its functions are based on flexibility, adapting to the necessities of each judicial office.

  • Established: 2003
  • Presided by: The Counsel of Justice Administration

Guiding Principles of the Judicial Office

  • Hierarchy
  • Division of Functions
  • Coordination

Key Services of the Judicial Office

  • Direct Court Support Service: Provides direct assistance for judges.
  • Centralized Court Services:
    • Registry and Assignment
    • Communication Acts
    • Judicial Assistance
    • Voluntary Jurisdiction
    • Order of the Process

3. Counsel of Justice Administration (CJA) / Judicial Clerk

The Counsel of Justice Administration (CJA), also known as the Judicial Clerk, operates under the Ministry of Justice. This role has been entrusted with new functions previously belonging to judges but not directly related to the implementation of jurisdiction. The CJA also holds increased powers to coordinate all public administration related to justice, possessing a mixed status combining elements of both judges and general civil servants.

Functions of the Counsel of Justice Administration (CJA)

  1. Presiding over the Judicial Office (organization, inspection, management of processes). [Art. 457 LOJP]
  2. Public certification ("fe pública").
  3. Boosting and organization of procedures when they are not strictly jurisdictional acts (i.e., do not require a judge's intervention). [Art. 456 LOJP]
  4. Functions foreseen by procedural and other laws (e.g., functions related to the execution of judgments not exclusive to judges, voluntary jurisdiction, conciliation, etc.). [Art. 456.6 LOJP]
  5. Ensuring judicial awareness of actions within the process where the judge does not participate directly. [Art. 455 LOJP]
  6. Management of typical office functions:
    • Documentation (register, issuing of acts of process) [Art. 454 LOJP]
    • Storage and deposit of documents [Art. 458 LOJP]
    • Storage of property and objects related to processes [Art. 459 LOJP]
    • Judicial statistics [Art. 461 LOJP]

Principles of Work for the CJA [Art. 452.1 LOJP]

  • In performing all functions: Legality and Impartiality.
  • In performing the function of public certification: Autonomy and Independence.
  • In performing the rest of actions: Unity of Actions and Hierarchical Dependency.

Mixed Status of the CJA

  1. Elements similar to judges:
    • Particular career situations (active service, special service, voluntary leave, suspension).
    • Incapacities, incompatibilities, and prohibitions (except participation in political parties and trade unions). [Art. 445.1,2 LOJP]
    • Subject to abstention and recusal. [Art. 446 LOJP] (presented to Provincial Clerk Coordinator).
    • Same retirement rules.
  2. Elements similar to other civil servants of Justice Administration:
    • Individual and collective rights and obligations. [Art. 444.1 LOJP]
    • Responsibility. [Art. 468-469bis LOJP]

Groups of Servants within the Judicial Office [Art. 475-478 LOJP]

  1. Servants of Process and Administrative Management:
    • Management and signature of party appearances (when not through a legal representative).
    • Documentation of seizures and other relevant acts.
    • Tasks of registry and distribution of documents.
    • Gathering of data or elements of process that are not evidence.
  2. Servants of Procedural and Administrative Formalities:
    • Cooperation in the general development of the process (e.g., registration and distribution of correspondence, drafting documents on the initiative of superiors, drafting of communication acts foreseen by law).
  3. Servants of Judicial Assistance:
    • Maintenance of order (except functions for Security Forces in crime investigation).
    • Technical maintenance of the court.
    • Freezing of property.

4. Judicial Police (Criminal)

The Judicial Police play a crucial role in crime investigation and enforcement within the Spanish justice system.

Legal Basis for Judicial Police

  • Art. 126 of the Spanish Constitution (SC)
  • Art. 547-550 of the Organic Law of the Judiciary (LOJP)
  • Art. 282-298 of the Criminal Procedure Law (LECrim)
  • Art. 29-36 of the Organic Law of Security Forces and Corps
  • Royal Decree 769/1987

Nature of Judicial Police Function

Judicial Police is a function performed by various bodies:

  • Generic Judicial Police: National Police, Civil Guard, Police of Autonomous Communities, and Local Police.
  • Specialized Judicial Police: Dedicated Units of Judicial Police.

Constitutional Mandate [Art. 126 SC]

"The judicial police shall report to the judges, the courts and the Public Prosecutor when discharging their duties of crime investigation and the discovery and arrest of offenders, under the terms to be laid down by the law."

This implies a double dependence: on judicial and prosecution organs (functional) and on the Ministry of the Interior (organizational). Functional dependence also extends to autonomous communities (e.g., Ertzaintza, Mossos d'Esquadra) and municipalities (Local Police).

Functions of Judicial Police [Art. 549 LOJP]

  1. Searching for offenders and circumstances of crimes, and detention of offenders.
  2. Execution of coercive measures ordered by a judge or prosecutor.
  3. Ensuring implementation of judicial and prosecutors’ orders.
  4. Other functions necessary for the performance of judicial and prosecutors’ duties.

Types of Judicial Police Units

  1. Organic Units:
    • Usually established at the provincial level.
    • Specialized in certain crimes or investigation techniques.
    • Perform functions exclusively and cannot be removed from an investigation without the authorization of a judge or prosecutor.
  2. Attached Units:
    • Units attached to a specific court or prosecutor’s office.

5. Lawyers and Legal Representatives

In the Spanish legal system, the roles of lawyers and legal representatives are distinct yet complementary, often indispensable for legal proceedings.

Spanish Regulation: Dual Nature of Legal Assistance

Legal assistance is both a constitutional right and, in many cases, an indispensable requirement for participation in legal processes.

Fundamental Right to Legal Assistance

  • Art. 17.3 of the Spanish Constitution (SC): "The arrested person shall be guaranteed the assistance of a lawyer during police and judicial proceedings, under the terms to be laid down by the law."
  • Art. 24.2 of the Spanish Constitution (SC): Guarantees the right to defense and assistance by a lawyer.

Participation in the Process

  1. Legal Capacity
  2. Procedural Capacity
  3. Nomination: Lawyer and Legal Representative

Dual System of Representation

  • Legal Representative (Procurador):
    • Organic Law of the Judiciary (LOJP) Art. 543: "representation"
    • Civil Procedure Law (LEC) Art. 23.1: "appearance in the process is made through legal representative"
    • Law 34/2006 Art. 1: "performs legal representation"
  • Lawyer (Abogado):
    • Organic Law of the Judiciary (LOJP) Art. 542: "orientation and defense of the party"
    • Civil Procedure Law (LEC) Art. 31.1: "a request can't be submitted if there is no signature of a lawyer"
    • Law 34/2006 Art. 1: "carries out legal assistance"

Legal Relationship: Party, Lawyer, and Legal Representative

As a general rule, parties are free to choose their lawyer and legal representative, with exceptions such as state-appointed lawyers.

  1. Party – Lawyer Relationship:
    • Contractual basis, not necessarily written.
    • Lawyer is free and independent, acting according to the principle of good faith (buena fe).
    • No special notification to the judge is needed for substitution.
    • It is possible to have more than one lawyer working towards the same objective and defense outcome.
  2. Party – Legal Representative Relationship:
    • Authorization required, either through a notary or the CJA (apud acta).
    • Special notification to the judge is needed in case of substitution, along with a new authorization.

Distinct Roles: Lawyer vs. Legal Representative

  • Lawyer:
    • Prepares all content of the defense.
    • Signs/confirms all requests of the parties.
    • Acts both within and outside the judicial process (e.g., preparation for the process).
  • Legal Representative:
    • Handles communication and notification with the court.
    • Cooperates with the court.
    • Acts only within the judicial process.

Both lawyers and legal representatives are bound by professional secrecy and are subject to responsibility.

Exceptions to the General Rule of Nomination

These exceptions typically arise where special legal knowledge is not deemed essential or to avoid disproportionate costs.

Cases in Civil Process
  1. No Legal Representative and No Lawyer Required:
    • Claims up to 2,000 Euros.
    • Initial petition of the monitoring process (debt recovery).
    • Request for urgent measures (e.g., protection) before the trial.
  2. No Legal Representative, but Lawyer Required:
    • Presentation of ownership of a loan or rights in universal procedures (e.g., insolvency).
    • Objection in the procedure of free legal aid.
  3. Legal Representative Required, but No Lawyer Required:
    • Cases requiring announcement of participation in the process.
    • Urgent suspension of trial.
Cases in Criminal Process
  1. Legal Representative Not Obligatory, Lawyer Required:
    • Objection to experts.
  2. Legal Representative Not Obligatory, Lawyer Not Obligatory:
    • Trial for minor offenses (accused person is informed about this possibility).
Cases in Administrative Process
  1. Unipersonal Court: Representation can be done by either a lawyer or a legal representative (a lawyer can also act as a representative).
  2. No Legal Representative and No Lawyer Required:
    • Charges brought by civil servants for the defense of statutory rights when not related to the dismissal of permanent staff.
Cases in Labour Process
  1. General Rule: Legal representative not obligatory, lawyer generally obligatory. If one party uses a lawyer for actions other than the trial, the other party is informed to ensure equality.
  2. Appeal: Alternative representation by either a lawyer or a legal representative (no prohibition to have both).
  3. Cassation: Lawyer required.

Note: There is no general requirement to be obligatorily represented by a legal representative. It is possible to:

  • Represent yourself.
  • Be represented by a legal representative.
  • Be represented by a Social Graduate (Graduado Social).
  • Be represented by another person entrusted to exercise the civil rights of the person.
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