The legal system
Lawyers, gestores and notaries
Spain - Visas & Permits
If you’re seeking legal advice, ask around among local residents and obtain recommendations. This way you will usually find out not only who to employ, but more importantly who to avoid.
Always obtain an estimate ( presupuesto) of costs in advance, if possible in writing, and shop around and compare fees from a number of lawyers, as they can vary considerably. The estimate should detail exactly what the lawyer will do for his fees. If you consult a number of legal ‘experts’ about the same matter, you’re highly unlikely to receive exactly the same advice.
The Spanish legal system is excruciatingly slow (i.e. largely at a standstill) and there’s a backlog of hundreds of thousands of cases throughout Spain, which means that it takes years for many cases to come to court. Even local courts can take five years to hear a case, although delays are usually up to two years for minor offences and up to four years for serious offences. This means that you should do everything possible to avoid going to court by taking every conceivable precaution when doing business in Spain, i.e. obtaining expert legal advice in advance.
If things do go wrong it can take years to achieve satisfaction and in the case of fraud the chances are that those responsible will have gone bust or disappeared. Note that even when you have a foolproof case there’s no guarantee of winning and it may be better to write off a loss as experience. Local courts, judges and lawyers frequently abuse the system to their own ends and almost anyone with enough money or expertise can use the law to their own advantage. In recent years, public confidence in Spain’s legal system has been rocked by a succession of scandals.
If you’re buying property in Spain, investing in or starting a business, applying for a work permit or making a will, you should employ the services of an experienced Spanish lawyer ( abogado). You may be able to obtain a list of lawyers from your local embassy or consulate. Suggested lawyers’ fees are set by provincial professional bodies ( Ilustre Colegio de Abogados), although individual lawyers often set much higher fees. However, fees are usually lower than those charged by lawyers in northern European countries, with a simple consultation of less than half an hour costing from €50. When preparing contracts involving a sum of money, e.g. property or land purchase, fees are calculated as a percentage of the sum involved. ‘No win, no fee’ lawsuits are illegal in Spain.
Always try to engage a lawyer who speaks your mother tongue. In some areas, lawyers who speak English and other foreign languages are common and they’re used to dealing with foreigners and their particular problems. In cases where a lawyer is obligatory and your income is below double the Spanish minimum wage, you can apply for free legal assistance ( abogado de oficio). The college of lawyers appoints a lawyer to assist you, although they won’t take as much interest in your case as a private lawyer would. In cases involving sums over €900 the services of a barrister ( procurador) is required. If you don’t receive satisfactory service you can complain to the local professional college. Common complaints include long delays, poor communication, high fees and overcharging (particularly with regard to property transactions involving foreigners).
A gestor is an official agent licensed by the Spanish government as a middleman between you and the bureaucracy. This speaks volumes for the stifling and tortuous Spanish bureaucracy, which is so complicated and cumbersome that it’s necessary for citizens to employ a special official simply to do business with the government! It isn’t compulsory to employ a gestor, but without one you must usually speak fluent Spanish (or have an interpreter), possess boundless patience and stamina, and have unlimited time to deal with the mountains of red tape and obstacles that will confront you. However, if you have the time and can speak reasonable Spanish, you will find it extremely ‘educational’ to do your own paperwork.
A gestor’s services aren’t generally expensive and most people find it worthwhile employing one. They usually work in a gestoría, where a number of experts may be employed dealing with different matters, including employment and residence permits; establishing and registering a business; obtaining a driving licence, tourist plates or registering a car; social security and property contracts. A gestor can help you in your dealings with any government body or state-owned company. The quality of service provided by gestores varies considerably and they cannot always be relied upon to do a professional job (some have been known to take money and do absolutely nothing).
A notary ( notario) is a public official authorised by the government, who’s most commonly engaged in property transactions. He doesn’t deal with criminal cases or offer advice concerning criminal law. Notarios have a monopoly in the areas of transferring real property, testamentary (e.g. of wills) and matrimonial acts, which by law must be in the form of an authentic document, verified and stamped by a notario. In Spain, property conveyancing is strictly governed by Spanish law and can be performed only by a notario.
In respect to private law, a notario is responsible for administering and preparing documents relating to property sales and purchases, inheritance, wills, establishing limited companies, and buying and selling businesses. He also certifies the validity and safety of contracts and deeds. If you need irrefutable proof of delivery of a letter or other documents, they should be sent via a notario, as nobody can deny receiving a document delivered through his offices.
A property administrator ( administrador de fincas) is a licensed professional who’s qualified to handle all matters connected with owning and managing property in Spain, particularly property in an urbanisation where there’s a community of owners. His duties include calling meetings, taking minutes, advising residents, collecting fees, paying taxes and paying bills.
Like French law, Spanish law derives from the Code Napoleón. The lowest court is the justice of the peace ( juez de la paz), dealing with simple matters such as property complaints between neighbours. Neither party need have legal counsel and simple cases are usually resolved at this level. Civil cases are decided by a juzgado/tribunal de primera instancia, where most cases start. The next highest court is a district court presided over by a district judge ( juez de distrito), where you need a lawyer. It handles more serious matters, e.g. unpaid debts for goods and services or failure to meet the conditions of a contract.
Criminal cases are held before a local tribunal de primera instancia e instrucción, followed in order of importance by an audiencia provincial, audiencia territorial, audiencia nacional, tribunal superior de justicia and the Supreme Court ( tribunal supremo) in Madrid. Trial by jury for criminal trials was reintroduced in 1996 after 57 years’ absence. A jury consists of nine people, seven of whom must agree to establish a guilty verdict. You have the right of appeal in all cases.
If you’re arrested you have the right to make a statement in the presence of your lawyer or one nominated by the police if you don’t have one, and the right to an interpreter. You also have the right to advise a member of your family or another person of your arrest or in the case of a foreigner to contact your consul. You can be held for up to 72 hours without charge, after which you must be charged and brought before a court or freed. You cannot be held longer without a judicial order. However, if you’re remanded in custody, you can be held for years while a case is being ‘investigated’.
If you have a complaint against someone, for example your neighbour for making too much noise or your local authority for not collecting your rubbish, and your appeals fall on deaf ears, you can make an official complaint ( denuncia) to the police. There are ombudsmen in most regions who handle certain complaints and queries, many with staff who speak English and other foreign languages. If you have a complaint concerning the way EU laws are interpreted or are being broken in Spain, you should complain to your European member of parliament. You can also bring a lawsuit against the Spanish state. However, you should expect to wait a long (long) time for your case to be heard.
At the end of 1999, the Spanish parliament approved a new version of the Law of Civil Judgement designed principally to speed up the courts and the legal process in Spain. Legal experts and lawyers’ representatives were generally opposed to the reforms because, although the reforms looked excellent on paper, they would come to nothing unless the government injected vast sums of money into the legal system. For example, for more employees and computers to modernise it and to allow the reforms to take place – it’s no good having a law that gives a debtor 20 days to appeal if you haven’t got the staff at the court to inform the debtor and carry out other essential duties. Needless to say, the reforms became law in 2001 without the extra investment!
Included is a ‘small claims’ system designed to assist the self-employed and small businesses to collect their debts. The creditor completes a form claiming his payment, which must be accompanied by some form of proof of the debt and lodges it with the court. The services of a solicitor or barrister aren’t required. The debtor then has around 20 days to pay or explain why he won’t be paying. If the 20 days pass without the debtor doing either, then the judge immediately proceeds to an embargo of the debtor’s goods and/or property. While many other aspects of the new law have yet to come to fruition because of lack of investment, the ‘small claims’ procedure has been very successful and claims are generally resolved quickly.
Never assume that the law in Spain is the same as in any other country, as this often isn’t the case and some Spanish laws are bizarre. Note that it’s illegal for anyone to be without some form of personal identification in Spain and you should carry your residence permit or passport at all times (you can be asked to produce it by a policeman). Certain legal advice and services may also be provided by your embassy or consulate in Spain, including, for example, an official witness of signatures (Commissioner for Oaths). A useful book for Spanish residents and property owners is You and the Law in Spain by David Searl (Santana).
This article is an extract from Living and Working in Spain.
Click here to get a copy now.
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