Often, legal proceedings become stagnant, and clients, seeing time pass without any updates on their cases, start to worry. The reality is that the bureaucratic machine of the Spanish system of justice is stuck. It is not that we do nothing; the truth is that there is nothing we can do when the courts are stagnant and proceedings continue at a snail’s pace, which can take months, even years. With Spanish justice, you know when it starts, but not when it will end… But why does this happen in Spanish courts? What are the causes?
Shakespeare: “The delay of justice is one of those evils from which a man can only free himself by suicide.” – Hamlet.
Montesquieu: “Litigation should be resolved in a reasonable timeframe; otherwise, what starts as a lawsuit becomes a personal drama or family tragedy.”
In my opinion, the causes can be summarized as follows:
- Stagnation of the judicial system due to an overload of cases;
- The lack of experience among many professionals, including judicial staff and some lawyers;
- The culture of litigation in Spain;
- Delaying tactics by the parties involved in the process;
- Stagnation in paperwork and poor implementation of technological innovation;
- The inefficient system of notifications, citations, and communications between judicial bodies;
- Insufficient resources in proportion to the number of cases in the most populous regions;
- Inefficiency in the performance of the Spanish civil service;
- A disproportionate abundance of new regulations and laws.
Is Spanish justice really this slow?
In this regard, in June 2009, the European Court of Human Rights condemned Spain in the case “bendayan azcantot and benalal bendayan t. spanje” (Application no. 28142/04) because the courts in Spain took 7 years and 10 months to execute a sentence: “the unreasonable length of a procedure amounts to an abnormal functioning of the Administration of Justice.”
In many cases, it does indeed seem that the Spanish judiciary functions abnormally. But this is not always due to the judges, the lawyers or the civil servants, because e.g. computer expert tests can take a year, the forensic police is overloaded due to lack of resources, a simple DNA report for criminal cases can take more than eight months, a psychosocial family report can take more than a year, and all this on top of the lack of cooperation between administrations during investigations. Speaking of criminal jurisdiction, its procedural code dates back to the 19th century (LECrim of 1882). It’s a fact that Spanish courts receive far more cases than they can diligently handle.
All of this leads us to the popular Spanish expression “pena de banquillo” (literally, “bench penalty”), and as a well-known Spanish politician once said, “justice that is slow is less justice.” Even though the Spanish Constitution recognizes in Article 24 the right to effective judicial protection and a public trial “without undue delays” this seems quite utopian.
What are the causes?
But beyond theory, let’s dive into the facts. The Spanish justice system is not progressing. In civil jurisdiction, the speed of resolving a case in 2002 was the same as in 2019. Furthermore, there is a notable difference between regions. In 2020, the regions slower than the Spanish average were Andalusia (11% slower), Catalonia (17% slower), and Murcia (33% slower), compared to Castilla y León, which are 45% faster than the Spanish average. The pattern is clear: the more populous autonomous communities take longer than the less populated ones.
If we also consider extending processes beyond Spain’s borders, things slow down considerably. International cooperation between Spanish courts and other countries is complex, especially in corporate matters. The prevalence of banking secrecy, differences in judicial cooperation agreements between countries, etc., complicate it even more. Simple letters rogatory, in which a judge makes a formal request to a foreign judicial authority, can take months or even years, depending on the countries involved.
Not only lawyers complain, but also judges, for instance about not having personnel at their disposal to investigate facts, such as auditors or tax inspectors assigned to the courts. They also call for a judicial police, independent of the executive, who could conduct investigations on their behalf with full legal certainty.
Judges have repeatedly asked politicians to finally reform procedural rules to speed up trials, as seems to be the intention of the recent Royal Decree-Law 6/2023. The Association of Judges Francisco de Vitoria indicates that the Spanish procedural system (including staff and parties involved) excessively facilitates delays. Almost all procedural actions can be appealed from summonses to testify to court orders.
According to a recent report by the Council of Europe, the European average nearly doubles Spain’s 10 judges per 100,000 inhabitants (more precisely, 11.24 per 100,000 inhabitants compared to the European average of 17.6). To be fair to Spanish judges, it’s surprising how, with far fewer judges per capita than other EU member states, the waiting times are relatively similar, especially when compared to countries with a similar culture and size, like Italy and France.
On top of this, Spain is the European country with the highest number of lawsuits per person. The European Commission already noted in a recent report that Spanish courts take an average of 289.1 days to resolve civil and commercial disputes, five days longer than the European average. And when it comes to civil procedures reaching the Supreme Court, things are much worse: here, it takes 888 days compared to an average of 172 days elsewhere. Additionally, Spain tops the list in terms of prison population.
Spaniards face a surplus of laws: more than 12,000 new regulations are approved every year. Moreover, Spaniards are more inclined to file lawsuits. It is unclear whether this is a cultural problem, but the fact is that Spain has a clear tendency to generate conflicts that end up in court. During the last economic crisis, Spain was the third most litigious country in the entire OECD. This is on top of the huge number of new rules – more than 400,000 – introduced during the democratic period of Spanish history, many of which are quite complex.
Of course, these factors are linked to the nature of the Spanish nation: it is not fundamentally industrial (with some regions as exceptions), but rather service- and agriculture-based. Industrial contracts tend to be more predictable than those in the services and agriculture sectors, which lack strong legal security. As we mentioned earlier, this is reflected in the differences in delays between regions. The autonomous communities with the most delays are the more populous and with a higher concentration of services and/or agriculture: Andalusia, the Valencian Community, Catalonia, Murcia and Madrid.
To be continued.
Rafael Montes Velástegui