LESSON 2 - PART 2

Question 1

Public Prosecutor (definition)

Answer 1

Art. 124 CE and the Organic Statute for the Public Prosecutor Act 1981:

A public prosecutor is a public State Body entrusted with the promotion of justice in defense of the rule of law, the rights of citizens and public interest.
This body will act either “ex-officio” or at the request of interested parties.
It shall protect the independence of the courts and ensure the satisfaction of social interest.

Question 2

Duties of the public prosecutor

Answer 2

Acting in criminal proceedings by:
- Prosecuting criminal offences.
- Issuing orders to police, like asking for the detention of a suspicious person.
- Application asking the Courts for cautionary measures, such as provisional prison.
- Take part in any other proceedings as foreseen by law.

Question 3

Other proceedings as foreseen by law that Public Prosecutors perform

Answer 3

• civil, labour and contentious-administrative procedures related to fundamental human rights.
• civil procedures related to civil status (i.e: divorce when there are minors involved, obtaining the legal disability of a person, affiliation, etc).

Question 4

Principles that rule the duties performed by public prosecutors

Answer 4

• Unity of action and hierarchical subordination.
• They are also subjected to the rule of law and impartiality.

Question 5

Who is the head of the Public prosecutor body

Answer 5

• It is the State Public Prosecutor/General Attorney/Fiscal General del Estado.

Question 6

Lawyer (Definition)

Answer 6

• A lawyer is an independent member of a liberal profession who provides legal service to society.
• They are NOT civil servants and practice on the basis of free and fair competition (Art. 1 “Estatuto General de la Abogacía Española”).

Question 7

What is the role of a lawyer

Answer 7

Their role is to direct and serve parties in all legal proceedings.
- To provide legal advice.
- To represent their clients unless that task is reserved by law to another profession.

Question 8

Which kinds of proceedings do NOT require a lawyer’s intervention

Answer 8

• Civil proceedings asking for 2.000 euros or less.
• Criminal proceedings involving less serious offences.

Question 9

How are the fees that lawyers charge decided

Answer 9

The fees are decided between them and their client, provided the amount does NOT go against the professional code of ethics or the rules of fair competition.

Question 10

Steps to become a lawyer

Answer 10

• Be a Spanish national, citizen of the EU, or national of a country who has signed the Agreement of the European Economic Area, may 2nd 1992.
• Be of age.
• Not to be under disqualifying circumstances to perform duties as a lawyer.
• Hold a Spanish law degree.
• Hold an habilitating master’s degree and carry out a supervised internship in a legal firm or in a company’s legal department.
• Pass an aptitude test for access to the profession of lawyer.
• Be a member of the Bar (Colegio de abogados).

Question 11

Legal representatives
- Definition
- What are they entitled to?
- How is the power of legal representatives given to them?
- Mention how their rates get fixed

Answer 11

They represent the parties in all and any legal proceedings unless the law provides otherwise.
- They are also entitled to attend and process all notifications to the parties, witnesses and parties.
- The power of representatives may be given before a notary, or before a Justice Administration Clerk.
- Their rates are fixed in advance by the professional association.

Question 12

How to become a legal representative

Answer 12

• Hold a law degree.
• Posses the specific master degree for this profession.
• Be a member of a legal representative association.

Question 13

State attorney (definition)

Answer 13

They are civil servants that assist the State when they are involved in a procedure (mostly administrative procedures), they represent and protect the State.

Question 14

General Council of the Judiciary

Answer 14

To ensure independency from the government and the parliament, and also to ensure the correct functioning of the Administration of justice, art. 122 CE states that the governing body of the Judiciary is the “General Council of the Judiciary.

Question 15

Powers of the General Judiciary Council as foreseen by art. 560 Organic Law 1985 on the Judiciary Power

Answer 15

Art. 560 Organic Law 1985 on the Judiciary Power:

• Appoint judges, senior judges and supreme court judges.
• Appoint two members of the Constitutional Court.
• Participate in the selection of judges and their promotion.
• Carry out higher inspection of Courts.
• To be heard by the government prior to the appointment of the head of Public Prosecutor.
• To make reports about draft bills of laws related to judicial matters.

Question 16

Other Institutions in charge of Ordinary Supervision

Answer 16

• Board of Governance of the High Courts of Justice.
• Board of Governance of the Supreme Court.
• Board of Governance of the State Court.
• Judges Assembly, headed by the doyen judge.

Question 17

Doyen Judge

Answer 17

• If a district has more than 2 courts, a doyen judge (juez decano) will exist.
• If a district has more than 10 courts, the doyen judge will be appointed by all the other judges with a majority of three fifths (3/5).
• If a district has less than 10 Courts, the doyen judge will be the judge with the most seniority (the most senior judge).

Question 18

Abstention and Challenge recusation

Answer 18

They are tools to ensure the impartiality of a judge in procedural law.

Question 19

Art. 219 LOPJ (about the disqualifying circumstances of a judge)

Answer 19

When a judge is at risk of being “partial” at the moment of the final ruling. Abstention is notified to the parties involved, including the name of the judge who will replace the former judge.

Question 20

Objection to the judge

Answer 20

When there’s NO abstention, parties involved in the proceeding or the public prosector can put forward an objection to the judge.
This objection has to be submitted as soon as the disqualifying circumstances are known, otherwise it will NOT be heard.

Question 21

Disqualifying circumstances that can make a judge have to abstain

Answer 21

Art. 219 LOPJ
- marriage ties or similar “de facto” situations.
- having had wardship or guardianship over any of the involved.
- Affinity to the 2nd degree with any of the parties involved, or to the representatives involved.
- Kinship by consanguinity.
- Have any pending proceedings with the parties involved.
- Have a complaint or formal accusation against them for having committed an offense.

Question 22

What does the debate regarding tasks that Public Prosecutors perform says

Answer 22

• There has been a debate among scholars about the pre-trial phase of criminal proceedings, that is currently performed by “jueces de instrucción”, being performed by the State Public Prosecutor/General Attorney instead, since they think that the State Public Prosecutor/General Attorney would perform this tasks more efficiently.
• However, this has NOT happened since public prosecutors are ruled under the principles of unity of action and hierarchical subordination and because of the way that they are appointed.
• Giving this task to public prosecutors would dangerously increase the risk of government’s dependency in criminal procedures against politicians.

Question 23

How does the State Public Prosecutor/General Attorney gets appointed

Answer 23

The king appoints them on being nominated by the government after NON-binding consultation with the General Judiciary Council.

Question 24

Lawyer’s confidentiality

Answer 24

• Lawyers must keep confidential all facts and news told to them, and they CANNOT be forced to make any declarations regarding this information.
• The exception to this rule is when the case is extremely serious or in order to prevent money laundering and terrorism financing.

Question 25

In what kind of cases is the help of a legal representative not needed?

Answer 25

Court representatives must be used by the parties in most types of matters, except for employment-related trials and in a few other cases.

Question 26

Composition of the General Council of the Judiciary

Answer 26

The General Council of the Judiciary is composed by:

• The president of the Supreme Court, who acts as president of the Council as well.
• and 20 members who are appointed by the king:
  
  • 12 of these members will be judges/magistrates.
  • 8 of these members will be jurists.
• 10 of these members will be selected by the Congress
  of deputies with a majority of three fifths (3/5), 6 of
  them are judges and 4 of them are jurists.
• 10 of these members will be selected by the Senate
  (House of territorial representation) with a majority of
  three fifths (3/5) as well.

Question 27

Every how many years is the General Council of the Judiciary renewed? Why?

Answer 27

It will get renewed every 5 years in its entirety, the idea is to avoid the Parliament and the General Council of the Judiciary getting renewed at the same time.