WORLD LAW/Spain

JURIST's Spain Correspondent is Dr. Fernando Martin Diz, Assistant Professor of Procedural Law at the Faculty of Law, University of Salamanca.
—————————————————————————————
[Salamanca; Special to JURIST] This millennial year has already seen the reelection (for four more years) of the incumbent Spanish government, which in its first term was involved in unusually numerous, intense and productive efforts at legal reform. The passage of these new laws, together with the implementation of earlier reforms like the amended Criminal Code (Organic Law 10/1995; in Spain an "Organic Law" governs fundamental constitutional rights; the passage of such a law requires a super-majority in the Parliament) and the reestablishment of jury trials in some criminal cases (Spanish Constitution Article 125), gives one a perfect opportunity to analyze recent legal trends and to look at the likely direction of legal reform in the coming years.

On the civil side a major new law (Jurisdiccion Contencioso Administrativa) now regulates suits between citizens and government agencies (or other public entities) that in the past were, for the most part, immune from suit. This law was passed in 1998, pursuant to the Spanish Constitution of 1978. It replaces a law dating back to 1956. The new law has two fundamental premises or purposes: (1) to protect citizens from governmental abuse by giving them effective legal weapons to fight official passivity and delay; and (2) to ensure justice for the people by making the legal system more responsive and easier to understand.

But even bigger changes have occurred on the criminal side. In Spain there has been an alarming increase in domestic violence. Day after day the newspapers report cases of physical abuse, primarily against women, in some cases resulting in death. In response Spanish lawmakers initiated a series of emergency changes in the criminal code (Codigo Penal) and in the law governing criminal procedure (Ley de Enjuiciamento Criminal). The first legal step has been provision of a new form of interim relief (Article 544) that requires the physical separation of the parties, forbidding the attacker to be in places where the victim lives and works. This change in the law offers major new protections to the victim, designed to avoid even a visual meeting between victim and attacker, and permitting the use of audiovisual aids for testimony at court hearings. The revised criminal code (Articles 33, 39, 48, 57, 83, 105, 153, 617 and 620, for example) includes accessory penalties if the attacker violates a restraining order and approaches the victim, or even if the attacker habitually inflicts psychological harm on the victim. All these reforms were incorporated into Organic Law 14/1999 (June 9), which includes the following statements of the law's purposes:

• to expand the range of protections for victims of domestic violence;
• to criminalize habitual psychological harm;
• to improve the effectiveness of preventive measures;
• to permit more creative sanctions or sentences when called for;
• to provide interim relief to victims by removing them from the attacker's influence as soon as possible; and
• to increase the penalties for domestic violence offenses

At about the same time that these reforms were passed, the government also introduced others regarding the criminal code, especially in the matter of sexual offenses and focusing on the protection of minors. The impetus for these changes came from the concerted action of the European Union Council, which in 1996 decided to crack down on the trafficking of human beings – including the exploitation of children – for sexual purposes. The efforts of the EUC highlighted deficiencies in existing Spanish criminal law. The social clamor for change pushed the government to do more to protect children. The result was Organic Law 11/1999 (April 30), which expanded the categories of crimes and increased the penalties, including prison terms. For example, the new law creates penalties for the production, sale, exhibition, or broadcast of pornographic films or materials of minors or disabled persons, including distribution over the internet, and also penalizes the possession of pornographic materials of minors. Under the former law these acts carried no penalties. The new law also forecloses the defense of consent: it presumes that a minor of 13 does not have the capacity to grant consent, and therefore the pornographer is guilty even if consent is given.

Related to these changes, the Spanish government also passed the Minors' Criminal Liability Act, Organic Law 5/2000, pursuant to the Criminal Code of 1995. It sets age 18 as the floor for adult criminal liability and creates a single national legal norm for the liability of minors and adults.

The new laws establish progressive penalties for minors, according to the severity of their offense. The range of penalties can include, for example:

• simple warning;
• confiscation of permits (like motorcycle or hunting licenses);
• social service or community work;
• re-education courses;
• house or weekend arrest, parole, pre-trial release with or without bail;
• detention in a young offender institution.

Other changes in the criminal laws address the corruption of foreign agents (trying to get illegal benefits from states or international organizations through illegal trades), and the use of chemical weapons (banned under the International Convention, Paris 1993, which proscribes the development, production, storage, or use of such weapons). The Spanish Criminal Code, Articles 566 and 567, forbids any scientific or technical research for the purpose of creating such weapons, or even modifying pre-existing weapons, or using them, or even initiating military preparations for their use.

Looking to the future, Law 1/2000, replacing the old civil codes that date back to 1881, gives us a roadmap for where Spanish civil justice is headed in the next century. Without any doubt it is the main legal reform of the new government, a crucial and long-awaited reform to the Spanish legal system. It will help to reduce the high cost and needless complexity of civil litigation. It gives citizens more rights, and helps to dispel the idea that only rich people and big business are able to use the courts effectively, without waiting endlessly for results. (There is a proverb in Spain that conveys the sense of frustration with the legal system for hapless civil litigants: "Pleitos tengas y pleitos ganes" – in English, "May you sue and may you win.") The main developments in the new civil procedural law (effective January 2001) are:

• Simplification of civil procedure to streamline litigation, so that only complex questions or high-value cases use more complicated procedures;
• Allowance of class actions so that named plaintiffs can sue on behalf of an indeterminate class, and so that final judgments benefit all class members, whether or not they are named parties;
• Creation of more effective procedures for the collection of debts, including more efficient enforcement of judgments, especially for small debts (under $30,000);
• Improvement of forced sales of property in judicial proceedings, including alternatives such as auctions by professionals, or sales in established real estate markets, or settlement agreements between the parties to maximize the return from foreclosure or other judicial real estate sales;
• Improvements in service of process under the new civil law, both as to the place in which service may occur – process can now be served at the defendant's place of work – and as to the use of new technologies like fax and e-mail to perfect service;
• New methods of proof, including film, video, or computer-generated sound and images, etc.;
• Simplification of the procedures for separation and divorce, such as requiring the presence of the parties in the proceedings, and permitting agreements or temporary orders during the pendency of the case to protect the parties' children or to preserve the marital estate.

Dr. Fernando Martin Diz
JURIST Spain Correspondent

Prof. Ayudante de Derecho Procesal
Faculdad de Derecho, Universidad de Salamanca
Salamanca, SPAIN

April 20, 2000

———————————————————————
Discussion

• responses to be posted...