Standardization of judicial practice and harmonization with the ecthr jurisprudence in criminal law. The spanish criminal justice system

• Author: Lorena Bachmaier
• Position: Professor, Ph.D., Complutense University of Madrid
• Pages: 69-84

Lorena Bachmaier

69

LESIJ NO. XIX, VOL. 1/2012

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STANDARDIZATION OF JUDICIAL PRACTICE

AND HARMONIZATION WITH THE ECTHR JURISPRUDENCE

IN CRIMINAL LAW. THE SPANISH CRIMINAL JUSTICE SYSTEM

Lorena BACHMAIER∗

Abstract

The present paper is based on the data provided for the CKS questionnaire for the

comparative study on the “Standardization of judicial practice and harmonization of the European

Court of Human Rights Jurisprudence in Criminal Law” of the Nicolae Titulescu University. The

report aims to give a brief overview of the Spanish legal system and specifically the way in which it

provides a coherent and unified judicial practice in the criminal law field in compliance with the

standards set out by the ECtHR.

Keywords: standardization of judicial practice; European Court of Human Rights

Jurisprudence; Spanish legal system; criminal law field;

I. Introduction to the judiary: The criminal courts

In Spain there are 10.3 judges per 100.000 inhabitants. The total number of judges is 4.836.

The total budget of the Court system is 3.558.073.830 euros, which represent aprox. 1% of the total

budget1.

The General Council of the Judiciary is the governing body of the judicial power2. Art. 122 of

the Spanish Constitution establishes the composition and main competences of the General Council

of the Judiciary, and precisely states that “an organic law shall set up the statutes and the system of

incompatibilities applicable to its members and their functions, especially in connection with

appointments, promotion, inspection and the disciplinary system”. According to this constitutional

rule, the organic Law of the Judiciary (Ley Orgánica del Poder Judicial) 6/1985 of 1.7.1980 regulates

the functions and competences of the General Council of the Judiciary3.

The State Council, regulated by Organic Law 3/1980, 22.4.1980, is the supreme advisory

body of the State4. The State Council is not involved in the unification of the case law, nor does it

have any competences with regard to the judiciary.

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∗ Professor, Ph.D., Complutense University of Madrid (e-mail: l.bachmaier@der.ucm. es).

1 These figures are the statistical data for 2009, published by the General Council of the Judiciary.

2 To ensure the full separation of powers and the judicial independence, the Constitution establish es the

General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ) stated at Art.122.2 SC as the institution

that will govern the judicial power. Judges are independent and bound only to the rule of law., See, L.BACHMAIER

and A. DEL MORAL, Criminal Law in Spain, The Netherlands, 2010, p. 24.

3 Art. 108 of the Law of the Judiciary states the draft laws which require a previous opinion of the General

Council of the Judiciary, which are in general all the laws and legal provis ions that are related to the judiciary, the

judicial power, the staff of the courts, as well as criminal law s and those relating to the penitentiary rules. The opinion

of the General Council of the Judiciary with regard to the legal reforms mentioned shall be sent to the Parliament within

30 days. The opinion of the General Council of the Judiciary has no legal binding effect.

4 Art. 21 Organic Law 3/1980 of 22.4.1980 lists the draft laws and deeds that require to be informed by the

State Council before their enactment. The reports of the State Council have no binding effect, but the laws that have

been informed by the State council shall indicate if they have followed the opinion of the State Council or not.

70 Lex ET Scientia. Juridical Series

LESIJ NO. XIX, VOL. 1/2012

The administration of justice is divided into four branches5: civil (within the civil branch there

are commercial courts and family courts), criminal, labour, and administrative courts, and within

each jurisdiction they are organised hierarchically. The Supreme Court is the highest judicial body in

all branches of justice except the provisions concerning constitutional rights and guarantees (Art.

123.1 SC). This division allows the judges to develop over the years en expertise in legal specialities,

which benefits the accuracy in adjudicating, particularly in complex cases, as well as the efficiency

of the administration of justice.

Spanish territory is divided for judicial purposes into (Arts. 30 et. seq. LOPJ):

– Municipalities (municipios)

– Judicial Districts (partidos judiciales)

– Provinces (provincias)

– Autonomous Communities (Comunidades Autonomas)

This division is almost equivalent to the administrative division of the territory and it

corresponds to the administrative demarcations with the same name, except the judicial districts

which are a purely judicial territorial division (Art. 32 LOPJ). The judges only have jurisdiction

within the territorial boundaries of their district. Every act that needs to be done outside their

territorial jurisdiction will need the judicial cooperation of the competent judge.

The Constitutional Court, envisaged in Section IX of the Spanish Constitution of 1978, is the

supreme interpreter of the Constitution.

The various levels of courts within each of the jurisdictional branches are empowered to hear

cases depending on subject-matter rules or on the amount of the claim or seriousness of the penalty.

Within the Criminal jurisdiction there are following courts:

1) Justice of Peace (Juzgados de Paz) have jurisdiction in the Municipalities, but only in those

where there is no Investigating Judge. They are appointed for a term of four years by the city council

assembly and they are not professional judges. As to their status and functions, as criminal courts

they decide only over a limited number of petty offences or misdemeanours (Arts. 99 et.seq. LOPJ

and art. 14 CCP). Their subject-matter jurisdiction is very limited.

2) Investigating Judge (Juzgados Instruccion). They are made up of one judge, who deals

with civil as with criminal matters. In the criminal field, the judge acts as an Investigating Judge but

is also competent to deal with the habeas corpus and with minor offences procedures (Art. 87 LOPJ).

They also act as trial courts in cases of petty offences.

3) Criminal Courts (Juzgado de lo Penal), are trial courts with jurisdiction in the territory of

the province. They are competent to deal in the first instance with cases where the imprisonment

penalty is lower than 5 years (Art. 14.3 LECrim).

4) Provincial Courts (Audiencia Provincial), whose Criminal Sections – made of three judges

– deal as a first instance court with cases sanctioned with a penalty higher than five years

imprisonment; in addition they act as appellate courts in respect of the sentences of the Criminal

Courts within the province (Art. 80 et.seq. LOPJ). The jury trial takes place within the provincial

courts; a magistrate of this court will preside over the jury trial.

5) Higher Regional Courts (Tribunal Superior de Justicia). Each Autonomous Community

has a High Court of Justice, which is the top of the judicial organisation of each region, without

prejudice of the jurisdiction of the Supreme Court. The High Court of Justice deals as a first instance

court with criminal cases in which the accused is a judge, magistrate or a public prosecutor. They

also decide the appellate review of the decisions rendered by the Provincial Courts (Art. 73 LOPJ). It

also has competence to decide the appeals filed against the judgment rendered in the jury trial (Art.

846 bis a) LECrim).

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5 On the judicial organization see L.BACHMAIER and A. DEL MORAL, op.cit., pp. 197 ff.