Legal process in Spain

 

Basically, here in Spain the ayuntamiento (town hall) uses the system of empadronamiento as a way of registering the number of inhabitants that live in a specific geographic area. People are expected to register their new address each time they move. The point of this Registation System is to be able to better distribute tax money and government funds based on population. But there are also many benefits to being registered and many legal processes require proof of registration (el certificado de empadronamiento).

It is important to point out that everyone can and should register regardless of their legal status in Spain. It’s confidential information only used to keep an accurate register—don’t be afraid!

WHY SHOULD YOU EMPADRONARSE?

SOME GOOD REASONS:

• It proves you’ve been living in Spain which can help you get your residency or immigration papers faster and easier.
• You will need it to get a card for the healthcare system.
• It is necessary to get married.
• You’ll need it to get your driver’s license.
• It is required to sign your children up for school.

HOW TO EMPADRONARSE IN MADRID

Each region has a slightly different process, but in general they are quite similar. In Madrid the process is particularly easy.

Madrid is divided in 21 districts and each one has its own Junta (administrative office) but  it is actually the OAC (oficina de Atención al Ciudadano)that deals with this process. You can go to any OAC office to register (it doesn’t have to be the one in your district).

To make matters easier, the OAC offers the possibility to do many of the processes directly online. On the townhall’s website, Ayuntamiento de Madrid, you can make your appointment, download the form you will need to fill out, and later you can even download proof of registration (el volante de empadronamiento).

To register in Madrid you need to complete this form, which you can either download or ask for at any OAC office. (If downloading you just need to enter the postal code for your district). It will ask for your basic information (full name, ID document number, birth date, level of studies, and signature). Up to four family members can register on the same form.

In addition to the form you must present your original ID (which can be a passport, NIE, or DNI). For small children you should present the libro de familia. You will also need the original copy of your renter’s contract. You should bring photocopies of everything although they don’t always require them.

YOU NEED:

• The registration form
• ID (original and photocopy)
• Renter’s contract (original and photocopy)

TO MAKE AN APPOINTMENT YOU CAN:

• Request one at the website Munimadrid (Just click Pedir Cita Previa)
• Go in person to any OAC office
• Call 010 (or 915298210 if you are calling from outside of Madrid)

The best option is the website because you can see the locations of the different offices and choose a time slot that works for you. Depending on the neighborhood it may be more difficult to get a quick appointment.

Usually the time slots are scheduled at 10 minute intervals within their hours of operation (Monday to Thursday 9-5 and Fridays 9-2). Of course the best times to go are during Spanish lunch hours (between 3 and 5).

I found it very easy to register in my own district (Retiro). I made an appointment a few days prior, went ten minutes early and was helped right away. The woman took my documents, and before I knew it I had my Volante de Empadronamiento. It was my first (and hopefully not my last) experience with efficiency in Spain!

 

 

Always obtain an estimate ( presupuesto) of costs in advance, if possible in writing, and shop around and compare fees from a number of lawyers, as they can vary considerably. The estimate should detail exactly what the lawyer will do for his fees. If you consult a number of legal ‘experts’ about the same matter, you’re highly unlikely to receive exactly the same advice.

The Spanish legal system is excruciatingly slow (i.e. largely at a standstill) and there’s a backlog of hundreds of thousands of cases throughout Spain, which means that it takes years for many cases to come to court. Even local courts can take five years to hear a case, although delays are usually up to two years for minor offences and up to four years for serious offences. This means that you should do everything possible to avoid going to court by taking every conceivable precaution when doing business in Spain, i.e. obtaining expert legal advice in advance.

If things do go wrong it can take years to achieve satisfaction and in the case of fraud the chances are that those responsible will have gone bust or disappeared. Note that even when you have a foolproof case there’s no guarantee of winning and it may be better to write off a loss as experience. Local courts, judges and lawyers frequently abuse the system to their own ends and almost anyone with enough money or expertise can use the law to their own advantage. In recent years, public confidence in Spain’s legal system has been rocked by a succession of scandals.

Lawyers

If you’re buying property in Spain, investing in or starting a business, applying for a work permit or making a will, you should employ the services of an experienced Spanish lawyer ( abogado). You may be able to obtain a list of lawyers from your local embassy or consulate. Suggested lawyers’ fees are set by provincial professional bodies ( Ilustre Colegio de Abogados), although individual lawyers often set much higher fees. However, fees are usually lower than those charged by lawyers in northern European countries, with a simple consultation of less than half an hour costing from €50. When preparing contracts involving a sum of money, e.g. property or land purchase, fees are calculated as a percentage of the sum involved. ‘No win, no fee’ lawsuits are illegal in Spain.

Always try to engage a lawyer who speaks your mother tongue. In some areas, lawyers who speak English and other foreign languages are common and they’re used to dealing with foreigners and their particular problems. In cases where a lawyer is obligatory and your income is below double the Spanish minimum wage, you can apply for free legal assistance ( abogado de oficio). The college of lawyers appoints a lawyer to assist you, although they won’t take as much interest in your case as a private lawyer would. In cases involving sums over €900 the services of a barrister ( procurador) is required. If you don’t receive satisfactory service you can complain to the local professional college. Common complaints include long delays, poor communication, high fees and overcharging (particularly with regard to property transactions involving foreigners).

Gestores

A gestor is an official agent licensed by the Spanish government as a middleman between you and the bureaucracy. This speaks volumes for the stifling and tortuous Spanish bureaucracy, which is so complicated and cumbersome that it’s necessary for citizens to employ a special official simply to do business with the government! It isn’t compulsory to employ a gestor, but without one you must usually speak fluent Spanish (or have an interpreter), possess boundless patience and stamina, and have unlimited time to deal with the mountains of red tape and obstacles that will confront you. However, if you have the time and can speak reasonable Spanish, you will find it extremely ‘educational’ to do your own paperwork.

A gestor’s services aren’t generally expensive and most people find it worthwhile employing one. They usually work in a gestoría, where a number of experts may be employed dealing with different matters, including employment and residence permits; establishing and registering a business; obtaining a driving licence, tourist plates or registering a car; social security and property contracts. A gestor can help you in your dealings with any government body or state-owned company. The quality of service provided by gestores varies considerably and they cannot always be relied upon to do a professional job (some have been known to take money and do absolutely nothing).

Notaries

A notary ( notario) is a public official authorised by the government, who’s most commonly engaged in property transactions. He doesn’t deal with criminal cases or offer advice concerning criminal law. Notarios have a monopoly in the areas of transferring real property, testamentary (e.g. of wills) and matrimonial acts, which by law must be in the form of an authentic document, verified and stamped by a notario. In Spain, property conveyancing is strictly governed by Spanish law and can be performed only by a notario.

In respect to private law, a notario is responsible for administering and preparing documents relating to property sales and purchases, inheritance, wills, establishing limited companies, and buying and selling businesses. He also certifies the validity and safety of contracts and deeds. If you need irrefutable proof of delivery of a letter or other documents, they should be sent via a notario, as nobody can deny receiving a document delivered through his offices.

Property Administrators

A property administrator ( administrador de fincas) is a licensed professional who’s qualified to handle all matters connected with owning and managing property in Spain, particularly property in an urbanisation where there’s a community of owners. His duties include calling meetings, taking minutes, advising residents, collecting fees, paying taxes and paying bills.

Courts

Like French law, Spanish law derives from the Code Napoleón. The lowest court is the justice of the peace ( juez de la paz), dealing with simple matters such as property complaints between neighbours. Neither party need have legal counsel and simple cases are usually resolved at this level. Civil cases are decided by a juzgado/tribunal de primera instancia, where most cases start. The next highest court is a district court presided over by a district judge ( juez de distrito), where you need a lawyer. It handles more serious matters, e.g. unpaid debts for goods and services or failure to meet the conditions of a contract.

Criminal cases are held before a local tribunal de primera instancia e instrucción, followed in order of importance by an audiencia provincial, audiencia territorial, audiencia nacional, tribunal superior de justicia and the Supreme Court ( tribunal supremo) in Madrid. Trial by jury for criminal trials was reintroduced in 1996 after 57 years’ absence. A jury consists of nine people, seven of whom must agree to establish a guilty verdict. You have the right of appeal in all cases.

Arrest

If you’re arrested you have the right to make a statement in the presence of your lawyer or one nominated by the police if you don’t have one, and the right to an interpreter. You also have the right to advise a member of your family or another person of your arrest or in the case of a foreigner to contact your consul. You can be held for up to 72 hours without charge, after which you must be charged and brought before a court or freed. You cannot be held longer without a judicial order. However, if you’re remanded in custody, you can be held for years while a case is being ‘investigated’.

Complaints

If you have a complaint against someone, for example your neighbour for making too much noise or your local authority for not collecting your rubbish, and your appeals fall on deaf ears, you can make an official complaint ( denuncia) to the police. There are ombudsmen in most regions who handle certain complaints and queries, many with staff who speak English and other foreign languages. If you have a complaint concerning the way EU laws are interpreted or are being broken in Spain, you should complain to your European member of parliament. You can also bring a lawsuit against the Spanish state. However, you should expect to wait a long (long) time for your case to be heard.

Reforms

At the end of 1999, the Spanish parliament approved a new version of the Law of Civil Judgement designed principally to speed up the courts and the legal process in Spain. Legal experts and lawyers’ representatives were generally opposed to the reforms because, although the reforms looked excellent on paper, they would come to nothing unless the government injected vast sums of money into the legal system. For example, for more employees and computers to modernise it and to allow the reforms to take place – it’s no good having a law that gives a debtor 20 days to appeal if you haven’t got the staff at the court to inform the debtor and carry out other essential duties. Needless to say, the reforms became law in 2001 without the extra investment!

Included is a ‘small claims’ system designed to assist the self-employed and small businesses to collect their debts. The creditor completes a form claiming his payment, which must be accompanied by some form of proof of the debt and lodges it with the court. The services of a solicitor or barrister aren’t required. The debtor then has around 20 days to pay or explain why he won’t be paying. If the 20 days pass without the debtor doing either, then the judge immediately proceeds to an embargo of the debtor’s goods and/or property. While many other aspects of the new law have yet to come to fruition because of lack of investment, the ‘small claims’ procedure has been very successful and claims are generally resolved quickly.

Never assume that the law in Spain is the same as in any other country, as this often isn’t the case and some Spanish laws are bizarre. Note that it’s illegal for anyone to be without some form of personal identification in Spain and you should carry your residence permit or passport at all times (you can be asked to produce it by a policeman). Certain legal advice and services may also be provided by your embassy or consulate in Spain, including, for example, an official witness of signatures (Commissioner for Oaths). A useful book for Spanish residents and property owners is You and the Law in Spain by David Searl (Santana).