.. ney General, and itself nominates two members of the Constitutional Court. The Council is also responsible for nominating from among its own members the chairman of the Supreme Court, who in turn automatically assumes the chair of the CGPJ. As required by the 1978 Constitution, various mechanisms exist to protect the public interest within the legal system. First, the elected government of the day has a number of responsibilities in this area. As in most continental European countries, these lie with the Ministry of Justice.
The Ministry has a number of different roles. In consultation with other bodies, including the Lawyers Association, it drafts government legislation. It administers the legal system’s physical infrastructure, such as courthouses. The Ministry also runs the government’s own legal service. The second instrument of the public interest within the legal system is the government attorney service.
This body is responsible principally for acting as public prosecutor in criminal cases. As such, attorneys initiate the examination stage of cases, and thereafter cooperate with the police and the examining magistrate in assembling the evidence. At the subsequent trial they lead the prosecution case. In addition, the attorney service has a general brief to monitor the functioning of the courts to ensure that verdicts are implemented and that procedures are properly carried out. Its members enjoy wide powers to intervene in cases where they have grounds to believe that the public interest is affected. The service is headed by the Attorney General, nominated by the government after consulting the General Council of the Judiciary.
Constitutional provisions for more direct public involvement in the judicial system have been less than fully implemented. Thus the Constitution allows for the possibility of trial by jury, yet measures to regulate its introduction were not passed until 1995. Even then there was very little preparation in terms of public education, giving rise to considerable concern among both lawyers and the public about the practical effects. The Constitution also allows the possibility of a private prosecution. If litigation can be shown to derive form a sufficient degree of public concern, then the costs must be taken by the state.
Yet this provision too has had minimal impact, because of the highly restrictive conditions on its applications. In practice, access to the courts continues to require the retention not just of a lawyer but also of an officially recognized legal representative, equivalent to a barrister or advocate. Prior to 1975 several types of courts enjoyed the power to impose legally binding decisions. They included Church courts, as well as the tribunals operated by certain professional organizations and by the military. The 1978 Constitution recognizes the jurisdiction of these latter within the specifically military sphere. With this single exception however, it explicitly denies legal jurisdiction to all organs other than the courts of the state’s own judicial system Spanish courts are also structured on the basis of a conceptual division of the judicial process into stages.
The central the only one in many cases, is that of trial. Evidence is presented to and examined by the court which then announces its verdict and any sentences. If one of the parties has legitimate grounds to question the court’s decision, the case may pass to a further stage, that of appeal. In criminal cases the trial is also preceded by another stage, that of examination. During it the court authorities are responsible for gathering the relevant evidence, in the form of exhibits and statements.
The results are then presented to the court trying the case in a report. It is a fundamental principle of the system that, in a given case, no two of these stages should be handled by the same court. The conceptual hierarchy of court overlaps with a second, geographical one, higher levels of which cover larger areas as well as subsequent stages of procedure. It was subject to considerable reform by the 1988 Court Structure and Functions Act. The only tier left unaffected by the Act was the lowest, made up of the municipal courts with jurisdiction over minor civil and criminal offences.
They are presided over by a single Justice of the Peace, who is not required to have any legal training. The fundamental change introduced by the 1988 Act was the establishment of new courts at the level of court districts to replace the former district courts. These so-called courts of the first instance and examination deal with the bulk of cases. They act as appeal courts for cases tried before justices of the peace, a role in contradiction with their title. In other civil cases they act as a genuine court of the first instance, i.e., as the court by which the case is first heard.
In most criminal cases they act as the examining court. These reformed district courts are again presided over by a single member of the judiciary. Unlike justices of peace, he or she must be a trained lawyer. Another change brought about by the 1988 Act was the creation of special provincial criminal courts. They try lesser offences, that is, those subject to a maximum prison term of three years.
Previously such trials had been heard by the district courts, which had examined them, in violation of the principle that different stages of a case should be the responsibility of different courts. Along with the special provincial children’s, prison, employment and administrative courts, they complete the category of lower courts. Courts at higher levels of the system are distinguished in several ways. They are collegiate, that is, they are presided over by a bench composed of several members known as judges. They consist of several divisions, concerned with different types of cases. And they also generally deal with appeals from lower courts rather than with first hearings.
An important exception to this last distinction is provided by the provincial courts which, in addition to hearing appeals from below, also try criminal offenses too serious to be heard by a lower court. The next level consists of the regional High Courts established as a result of devolution in the 1980’s, which replace the former regional courts. For matters relating exclusively to the region concerned they provide the final court of appeal. In cases where country wide-issues are involved, further recourse may be had to the High Court, established in 1977. Its criminal division also tries cases in certain fields, including falsification of the coinage, contamination of foodstuffs and medicines, and drug trafficking. Rather than comparing the methods of the Spanish legal system to one of another country, I believe that the Pinochet case has had a direct effect on the legal system of Spain and various other countries. The former Chilean dictator General Augusto Pinochet is wanted by a Spanish High Court judge on charges of genocide and torture, and other crimes against humanity. Pinochet is currently under police guard after being arrested on an international warrant by Spanish magistrates.
The judge is seeking to extradite him in the murders in Chile of Spanish citizens. Spain’s high court judges ruled that Spain has jurisdiction to investigate the case. This ruling by Spain’s National Court that Spanish courts could try people for offences committed under former military regimes in Chile and Argentina appeared to clear the way for a number of prosecutions. The extradition request must be approved by Spain’s cabinet before going through diplomatic channels to Britain. According to the Universal Declaration of Human Rights Article 14, a person can be extradited from asylum in a foreign country for a criminal account or from acts contrary to principles of the United Nations. Spain filed an expedition from Britain using the Law of European Community. Following the International Covenant on Civil and Political Rights, Spain is fully within its jurisdiction to try and punish the persecutor of genocide (Article 6).
“The 1948 Convention on the Prevention and Punishment of the Crime of Genocide confirms that genocide, whether committed in time of peace or in time of war, is a crime under international law for which individuals shall be tried and punished.” This case must follow the proper litigation within the European community and thus effects the judicial procedures of numerous countries. Finally the Supreme Court is concerned with resolving appeals, relating to the interpretation of legislation. Its decisions in such cases continue a body of case law. This is collected and published by the General Council of the Judiciary, for use by the lower courts as a source of guidance, additional but subordinate to legislation. The Court consists of five divisions which deal with civil, criminal, military, administrative and employment matters.
The initial conclusion I came to after reviewing the material and research on the Spanish legal system was that there was not a varied amount of publications on the topic. The most recent works were mainly about the Spanish integration within the European community. Secondly, the material that I did find focused on the structure, not the application and use of the court system. Upon evaluation of the legal system of Spain it has a considerable amount of structural efficiency with respectable decisions. However, A major problem that continued to plague the legal system was a severe shortage of funds, which made it impossible to keep up with an increasingly heavy caseload.
This resulted in inordinate delays, which led to corrupt practices such as the bribing of court administrators by lawyers attempting to expedite their clients’ cases. 0 Bibliography Cortada, James. (1971). United States – Spanish Relations, Wolfram and World War II. Barcelona: Manuel Pareja. Lancaster, Thomas, & Prevost, Gary (Eds.).
(1985). Politics and Change in Spain. New York: Praeger. Lawlor, Teresa, & Rigby, Mike. (1998).
Contemporary Spain. New York: Longman. Yannopoulos, George N., (1989). European Integration and the Iberian Economies. London: Macmillan Press.