Spanish Judicial System: Jurisdiction and Procedures

Posted on Mar 20, 2025 in Law

Spanish Judicial Jurisdiction in Civil Law

A.1. Exclusive Jurisdiction

  • Cases related to real estate and its rent (located in Spain).
  • Establishment, validity, nullity, or dissolution of Spain-based legal persons and associations. Cases related to agreements and decisions of their governing bodies.
  • Cases related to the validity or nullity of records in the Civil Register of Spain.
  • Cases of inscription or validity of records of patents and other rights when such a deposit or registry has been requested or carried out in Spain.
  • Recognition and execution in Spain of judicial, arbitral, and mediation decisions.
  • Exception: Rent is for personal use for less than 6 months.

A.2. Tacit or Expressed Agreement (Art. 22.2)

  • The parties expressly or tacitly agree to bring the case to a Spanish Court.
  • Limitations: Only in cases foreseen by the law and in any case not contrary to Art. 22, 224, 225, 226, 227 (exclusive and special jurisdiction).
  • A Spanish Court cannot accept a foreign case if an equal national case would not be accepted (Art. 54 of the Civil Procedure Code).
  • Expressed agreement: written.
  • Tacit agreement:
    • Defendant appears to the court where a plaintiff has sued him (with the exception when such appearance is for rejection of competence).
    • Non-appearance is also treated as a tacit agreement.

A.3. Special Jurisdiction (Art. 22.4-22.7)

  • 22.4: Personal relations: Family relations, legal capacity, protection, recognition as dead or missing.
  • 22.5: Contractual, commercial relations: Contracts, extra-contractual liability, consumers in Spain, branch of enterprise in Spain.
  • 22.6: Provisional measures: Provisional measures against person or goods.
  • 22.7: Insolvency.

A.4. General Jurisdiction (Art. 22.3)

When no other rule of jurisdiction is applied and:

  • Defendant (at least one) is a resident of Spain.
  • No exclusive or special jurisdiction is applied.
  • Natural person: usual residence.
  • Legal person: Headquarters, center of administration, central administration, center of main activities.

Jurisdiction: is the power derived from the sovereignty of the State to solve legal conflicts through the imposition of Law.

Spanish Courts Jurisdiction: Spanish judicial jurisdiction extends to: All persons, all subject matters, all territory of Spain in the form established by the SC and laws. Spanish Courts have jurisdiction over the cases that have aroused:

  • in Spain;
  • between Spanish citizens, foreigners, Spanish citizens, and foreigners;
  • from OAJP, international treaties, or agreements (Spain joined).


Spanish International Jurisdiction: Criminal Law (1)

B.1. Jurisdiction in Criminal Law Art. 23(1)

Crimes committed on the territory of Spain, on board a Spanish ship or aircraft, without prejudice to the international treaties that Spain has joined.

Art. 23(2)

Crimes punishable by Spanish legislation committed abroad by Spanish or a foreigner that obtained Spanish nationality after he had committed the crime and all following requirements are met:

  1. When the committed act is punishable by the criminal law of the country where it was committed (except those cases when international law does not foresee this requirement).
  2. When the victim or the Public Prosecutor brings a charge before Spanish Tribunals.
  3. Non bis in idem (a person hasn’t been acquitted, reprieved, or punished abroad for that crime or in the last case didn’t serve the sentence).

B.2. (Universal) Jurisdiction in Criminal Law Art. 23(3)

When acts are committed by Spanish or foreigner abroad and those acts according to Spanish penal law could be qualified as one of the following crimes:

  • Betrayal, offenses against peace or independence of the State;
  • Against holder of the Crown, his (her) partner, his (her) successor, or regent;
  • Rebellion, sedition;
  • Forgery of Royal signature or stamps, the seal of the State, signatures of the ministers and official, public stamps;
  • Forgery of Spanish currency and its remittance (expedición);
  • Other forgery and remittance that is directly related to the interests of the State;
  • Attack against Spanish public authorities or servants;
  • Committed by performing function of Spanish public servants abroad and against Spanish Public Administration;
  • Related to the control of exchange.

Art. 23(4)

Also, there is jurisdiction in relation to the following crimes committed by Spanish or foreigners:

  1. Genocide and crimes against humanity.
  2. Terrorism.
  3. Piracy and illegal taking control over aircrafts.
  4. Related to the prostitution and corruption of minor and legally incapable persons.
  5. Trafficking in drugs.
  6. Trafficking in human beings, including illegal migration, regardless of whether they are workers or not.
  7. Related to mutilation of female genitals, always when responsible persons are found in Spain.
  8. Any other crime that according to international treaties and agreements, especially Conventions on International Humanitarian Law and Protection of Human Rights, have to be prosecuted in Spain.

In order to have Spanish jurisdiction in the above-mentioned cases, these rules shall apply:

  1. Neither court of other country, nor international one has not started a procedure that means effective investigation and prosecution for these crimes.
  2. Supposed responsible persons are in Spain. Victims of Spanish nationality. Other relevant link with Spain.


Spanish International Jurisdiction: Criminal Law (2)

General overview of the basis to start the process of universal jurisdiction:

  • Offender: Spanish, foreigner with the usual residence in Spain, foreigner whose extradition was denied, legal entities with headquarters in Spain.
  • Victim: Spanish, resident of Spain in time of crime.
  • Nature of crime: to influence any Spanish authority, against the EU institution or body situated in Spain, against Spanish aircraft or ships, against Spanish official premises, creation of a criminal group or criminal organization to commit crimes in Spain.
  • Mix: Spanish victim and the perpetrator is on the territory of Spain.

Moreover, the following conditions must be added:

  • No criminal procedure at the international court.
  • No criminal procedure at the court of other country (and the suspect is not on the territory of Spain or the procedure of extradition from Spain is initiated).

Spanish International Jurisdiction: Administrative Law

Exclusive jurisdiction for general orders or individual administrative acts of the Spanish public authority or public administration.

Spanish International Jurisdiction: Labour Law

  • In cases of rights and obligations under the labor (individual) contract when:
    • Duties are performed in Spain.
    • The contract was signed in Spain.
    • Defendant resides in Spain or has his agency, a branch, a delegation, or other representation in Spain.
    • Employer and employee are Spanish, wherever the contract is executed.
    • The contract is about shipment and the offer was made in Spain to a Spanish employee.
  • In cases of control of collective agreements signed in Spain and in cases of claims derived from such collective relations in the territory of Spain.
  • In cases of claims related to social security against Spanish entities or when a foreign social security agency has a residence, an agency, a delegation, or other representation in Spain.

Internal Conflict of Jurisdiction

  • Positive conflicts: Both authorities declare their jurisdiction about the case.
  • Negative conflicts: Both authorities deny their competence in the case.

Right to Raise the Question of the Jurisdictional Conflict

  • Brought by the court: Any (positive or negative conflict of jurisdiction).
  • Brought by the Administration of the State, Autonomous Community, or Local one: Only positive conflict of jurisdiction.


Positive Conflict Started by the Court

  • Judge / Court (on its own initiative or by the request of the interested party) considers that has the competence in the issue processed by administrative authority.
  • Asks the report of the Prosecutor’s Office.
  • Judge / Court takes a decision to start formal procedure and asks the relevant institution to refrain from the procedure.
  • Institution “defendant” informs parties that are involved and takes a decision:
    • To refrain from the jurisdiction.
    • To continue the procedure:
      • Informs about that counterparty and the Court of Jurisdictional Conflicts.
      • Resolution of the Court of Jurisdictional Conflicts.

Positive Conflict Started by the Administration

  • Before addressing the issue of the positive conflict (by its own initiative or by the request of the interested party) to the court, informs about that parties of the conflict.
  • Addresses the issue to the relevant court.
  • Court organizes hearing to the parties and the Prosecutor’s Office.
  • Court takes decision about his competence:
    • Affirming its jurisdiction:
      • Informs about that counterparty and the Court of Jurisdictional Conflicts.
      • Resolution of the Court of Jurisdictional Conflicts.
    • Declining its jurisdiction:
      • Right to appeal (except decision of the Supreme Court).

Negative Jurisdiction

  • Either court or administration by official resolution states that does not have jurisdiction over the case.
  • Interested party addresses the issue to the other authority (administration or court) that:
    • Recognizes its jurisdiction.
    • Does not recognize its jurisdiction:
      • Issue is addressed to the Court of Jurisdictional Conflicts through the judicial authority that has rejected its jurisdiction.

Between Judicial Power and Administration

Regulated

  • Organic Law 2/1987 from 18 May on Conflicts of Jurisdiction.
  • Organic Law 6/1985 from 1 July on Judicial Power.

Solved

Court of Jurisdictional Conflicts (Art. 38 of the OLJP) President of the Supreme Court and 5 members appointed by the plenary of GCJP (2 judges from Administrative Chamber of the SC and 3 State Advisers – consejeros permanentes del Estado).


Incompatibilities

Functions (Art. 389)

  • Performing other functions than judicial ones.
  • Exception: teaching, legal research, literary, artistic, scientific, or technological creativity, if it is in conformity with the provisions of incompatibility of public administration.
  • A judge has to make a decision in 8 days about what he is choosing.

Relationships (Art. 391-393)

  • Marital or relevant relations, blood relationship, or affinity until the second grade with the:
    • Judges in the same Chamber, Provincial Court, or governing chamber (except cases of different sections).
    • Judges and prosecutors in the same court (except when the Provincial Court has more than 3 sections) or in the same territory.
    • Judges that deal with the case in investigation, the first instance, and appeals.
    • Lawyers, legal representatives, and judges of those chambers where lawyers and legal representatives usually work (not applicable in districts with more than 10 courts of the First Instance and Examining (Investigation) or chambers with 3 or more sections).
  • In these cases, forced relocation can be done.
  • Judges in the courts of territory where they, their spouse, or relatives until the second grade has economic interests (except territories with more than 100,000 inhabitants).
  • Judges in the courts where they were acting previously as lawyers or legal representatives.

Impartiality 1

(dentro de independency):

Impartiality is the lack of personal interest in the resolution of the case. The judge is impartial when there are no backgrounds of abstention and recusal foreseen in Art. 219 of OLJP. Art. 219 of OLJP establishes an exhaustive list of backgrounds for cases of abstention and recusal that can be divided into 3 groups:

Relations or Links that Affect Impartiality

  • Matrimonial or relevant relations, blood relationship, or affinity:
    • Until the fourth grade with parties or representative of the Prosecutor Office (part 1).
    • Until the second grade with lawyer or legal representative of any of the parties (part 2) and with the judge or magistrate who has made the resolution or act that has to be taken into account by mean of appeal or in any later phase of the process (part 15).
  • Previous defense of any of the parties, or previous being under the protection of any of the parties (part 3).
  • In administrative procedure to be in any relation foreseen in this article (parts 1-9, 12, 13 and 15) with the authority or civil servant who has made the decision or has reported on it or has done the action subject to litigation (part 14).


Impartiality 2

Friendship or Enmity

  • Is or has been under formal accusation of any of the parties as responsible for a crime, always when charges or accusation gave a raise for beginning of the criminal procedure and it does not finished by an absolutory judgment or the dismissal of the proceedings (part 4).
  • Has had disciplinary sanction on the basis of the report or initiative of any of the parties (part 5).
  • Has been the complainant or accuser against any of the parties (part 7).
  • Has pending lawsuit with any of the parties (part 8).
  • Is in intimate friendship or obvious enmity with any of the parties (part 9).

Interests, Incompatibility, or Supremacy

  • Has been lawyer of any of the parties, has issued report about the case as a lawyer, or has intervened as a prosecutor, expert, or witness (part 6).
  • Has direct or indirect interest in the case (part 10).
  • Has been participating in the examining (investigation) of the criminal case or was resolving the case in the previous instance (part 11).
  • One of the parties is or has been subordinated to the judge that must solve the dispute (part 12).
  • Has hold a public office, job, or profession, in the performance of which:
    • Had participated, directly or indirectly, in the subject matter of the litigation, or in other process related to it (part 13).
    • Could have known the object of the dispute and formed criteria violating impartiality (part 16).

Prosecutor’s Office

Directly established in the SC:

  • Task of promoting the operation of justice in the defense of:
    • The Rule of Law.
    • Citizens’ rights.
    • The public interest.
    • Protecting the independence of the courts.
    • Securing before court the satisfaction of social interest.

Promotion of the Operation of Justice (actions)

  • Right of procedural initiative.
  • Exercise of procedural actions.
  • Actions in front of the court.

Functions of the Prosecutor’s Office: art. 3 of the Law 50/1981

  • Safeguard of jurisdiction.
  • Protection of judicial independence.
  • Promotion of jurisdictional conflicts.
  • Safeguard of constitutional institutions and fundamental rights.
  • Bringing constitutional appeals (recurso de amparo).
  • Taking penal and civil actions in case of crimes.
  • Intervention in penal process, requesting judicial authorization for some actions.
  • Performance of investigation of crimes committed by minors.
  • Safeguard of victims’ protection.
  • International co-operation.