1. What are the costs of a trial and who should normally pay them?
- In Spain the public service of the Justice Administration is free. There are no fees or charges for using the service. However, going to court commonly entails certain costs. These mainly include:
- solicitors' and barristers' fees
- costs of publishing announcements in official journals
- deposits required for lodging certain appeals
- experts' fees
- These costs normally have to be paid up front by the party concerned. At the end of the trial the court has to decide which party is ultimately to bear the costs; in Spain this is known as the “condena en costas” (order to pay costs) and it is governed by the “loser pays” principle.
2. What is legal aid?
In Spain legal aid (“asistencia jurídica gratuita”) is a right for members of the public who cannot afford the costs of a trial.
People granted legal aid do not have to pay the following costs:
- pre-trial legal advice
- solicitors' and barristers' fees
- costs of publishing announcements in official journals
- deposits required for lodging certain appeals
- experts' fees
In addition, and solely for cross-border disputes, following the reform of the Legal Aid Act by Law 16/2005 of 18 July 2005 to adapt it to Directive 2002/8/EC, recipients of legal aid do not have to pay the following costs:
- Interpretation services
- Translation of documents
- Travel expenses if the applicant has to appear in person.
- Defence by a lawyer and representation by a prosecutor even where a personal appearance is not necessary if this is ordered by the Court to guarantee the equality of the parties.
3. Who can benefit from legal aid?
- All Community citizens of insufficient means (for cross-border disputes, only individuals are eligible).
- non-Community nationals who are legally resident in Spain or who have their entitlement recognised in international conventions (such as conventions on international child abduction) on the same terms as Community nationals;
- in labour matters, any employed person regardless of nationality and means;
- public-interest associations and foundations.
To qualify as having insufficient means, the total monthly income of you and your family unit must not be more than twice the National Minimum Wage (“salario mínimo interprofesional”) set annually by the Government. In 2005 the minimum wage was €513 per month. For cross-border disputes, even if you earn more than this amount you may be eligible for legal aid if you are unable to meet the costs of the proceeding owing to the differences between the cost of living in your Member State of residence and Spain.
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4. Can legal aid be obtained for all disputes?
Legal aid is available for all cases, whether or not contentious, involving sums of over €900 and it covers all proceedings, appeals and enforcement of judgments. In cases involving smaller sums, for which the services of a solicitor and barrister are not compulsory, legal aid may be granted where the other party does have legal representation or where explicitly called for by the judge or court to ensure that the two parties are on an equal footing.
5. Is there a specific procedure for urgent cases?
On consideration of the circumstances of the case or its urgency, the judge or court may order a solicitor and barrister to be temporarily appointed with immediate effect. Nonetheless, without prejudice to this appointment, legal aid may be denied if the person concerned fails to demonstrate that they have insufficient means in accordance with the ordinary procedure.
6. Where can I obtain an application form for legal aid?
The form is available from Legal Guidance Departments (Servicio de orientación jurídica) of Bar Associations (Colegios de Abogados), Offices of Senior Judges (Decanatos) at courts and provincial Legal Aid Commissions (Comisiones provinciales de Asistencia Jurídica Gratuita).
For cross-border disputes the form to be used is the one laid down by the Commission in its Decision of 9 November 2004.
7. Which documents should I attach to my request for legal aid?
Documentation showing:
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- your own financial situation and the financial situation of the members of your family unit;
- your personal and family circumstances;
- the legal protection sought;
- the particulars of the litigants.
For cross-border disputes, Spain has indicated that the language that can be used to fill out the application form is Spanish.
8. Where should I register my request for legal aid?
The application for legal aid must be filed with the Bar Association in the place where the court responsible for trying the main issue is located or with the Senior Court (“Juzgado decano”) of your place of residence. These Bar Associations are designated as the receiving authority for the applications in the case of cross-border disputes. The issuing authority for the application is the Bar Association corresponding to the applicant’s normal place of residence or domicile.
Nationals of European countries which are parties to the European Agreement on the Transmission of Applications for Legal Aid may file their application with the central authority designated by their country for that purpose.
You must file your application before instituting proceedings, or if you are the defendant, at the time of filing the defence pleadings. However, whether you are claimant or defendant, you may apply for legal aid at a later stage, provided you can demonstrate that your financial circumstances have changed.
9. How will I be informed of whether or not I am eligible for legal aid?
The Bar Association may adopt the following provisional decisions:
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- notify you that there are defects in the application, which must be rectified within 10 days, failing which the case will be closed;
- declare the application inadmissible or unfounded and notify the Legal Aid Commission accordingly;
- declare that the application fulfils the statutory requirements, in which case a solicitor will be appointed within 15 days and the Barristers' Association will be notified so that it can appoint a barrister within 3 days; the Bar Association will also submit an application to the Legal Aid Commission for final approval.
If the Bar Association fails to reply within 15 days, you may apply direct to the Legal Aid Commission, which will decide forthwith whether to provisionally appoint a barrister and a solicitor pending verification of the information and documents.
The final decision on whether or not to grant legal aid must be adopted by the Legal Aid Commission within 30 days following receipt of the complete application. If, after 30 days, a decision has still not been taken, the provisional decisions adopted by the Bar Association and the Barristers' Association will be ratified.
The applicant is notified of the decision within three days, as are the Bar Association, the Barristers' Association and the judge or court hearing the case, or the senior member of the court if the proceedings have not yet commenced.
10. If I qualify for legal aid, what should I do?
- If you are the claimant, you must file your application, before instituting proceedings, with the Bar Association in the place where the court responsible for trying the main issue is located or with the Senior Court (“Juzgado decano”) of your place of residence.
- If you are the defendant, you must file your application before filing the defence pleadings. An application filed by a defendant does not suspend the trial; nonetheless, the court may, of its own motion or at the defendant’s request, suspend the proceedings pending the decision awarding or refusing the free legal aid.
For cross-border disputes in which legal aid is sought in order to take action in another Member State, the application can also be submitted to the Bar Association (in the case of residents in Spain affected by a dispute in another State) of the applicant’s normal place of residence or domicile.
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11. If I qualify for legal aid, who will choose my lawyer?
As a rule, the solicitor is appointed by the Bar Association on the basis of a rota. However, you may choose your own solicitor, provided that he or she agrees not to charge.
12. If I qualify for legal aid, will this cover all the costs of my trial?
Legal aid covers the following costs:
- pre-trial legal advice
- solicitors' and barristers' fees
- costs of publishing announcements in official journals
- deposits required for lodging certain appeals
- experts' fees
- an 80% reduction in the fees for notarial deeds and certificates from the Property Register and the Trade Register.
In addition, for cross-border disputes, legal aid covers the cost of interpretation services, translation of documents and travel expenses if the court to which the case has been referred considers that it is necessary for the applicant to appear in person.
13. If I qualify for partial legal aid, who will pay the other costs?
If they are more than twice and not more than four times the national minimum wage, in exceptional cases the Legal Aid Commission may grant aid on the grounds of the applicant’s personal and family circumstances.
In such cases, the Commission itself decides exactly which costs are to be covered. The trial costs not covered will have to be met by you yourself, pending the court’s ruling on who to award the costs to. If the ruling goes against the other party, it is from him or her that you will recoup any trial costs you have had to meet out of your own pocket.
For citizens resident in another EU State, this rule is applied with caution, taking into account the applicant’s financial means in his country of residence to avoid adversely affecting him.
14. If I qualify for legal aid, will it cover any review I might make following the trial?
Free legal aid covers all the stages of legal proceedings, including the lodging of appeals and enforcement.
However, in the case of enforcement action instituted more than two years after the final judgment, a new free legal aid application must be submitted.
Legal aid may not be used for proceedings other than those for which it was granted.
15. If I qualify for legal aid, can it be withdrawn?
The decision granting legal aid may be revoked if it was obtained through an incorrect statement, falsehood or omission on the part of the applicant.
Legal aid may stop being paid if the financial situation of the person to whom it was granted improves within three years.
In either scenario the general rule applies: the costs will be paid by the party that loses the case.
16. If I am turned down for legal aid, can I appeal against this decision?
You can appeal against a legal aid decision by writing to the Legal Aid Commission within five days of the date on which you were notified of the decision. Your appeal will be considered by the competent court.
Further information
What effects does an application for free legal aid have on the handling of the main issue?
Where the exercise of a right is subject to a time limit, the filing of an application for free legal aid suspends the countdown of the time limit.
What does the barrister (“procurador”) do?
In Spain the legal professional who appears in court normally has to be someone other than the solicitor (abogado); this is the barrister (procurador). Barristers represent their clients in court throughout the trial.
Information obtained from the European Judicial Network in civil and commercial matters