371 / 822
Personal injury and motor
accidents in Spain
There is probably a greater difference between the Irish and
Spanish laws relating to motor accidents than between those
of almost any other countries in western Europe.
It is not just a matter of details; there is a fundamental
d i f ference in the general manner in wh i ch each count ry
approaches the subject. It is as if each country were looking
at the same object but f r om a completely d i f ferent angle.
Even more importantly, very
often neither side realizes that such
differences actually exist. Spanish
lawyers can be just as ignorant of
the fundamental differences that
exist between the t wo countries as
many of their Irish colleagues are.
In working w i th these colleagues
they readily assume that the
Spanish system is exactly the same
as the Irish. With no one to point
out these differences, let alone to
explain them, confusion and mis-
understanding are inevitable.
Perhaps the main difference lies
in the role of the courts. In Ireland
there is a clear distinction between
the criminal and the civil jurisdic-
tions. In civil claims the initiative
lies w i th the parties, who deal wi th
them more or less in the manner
they wish. The civil court will
arbitrate between the parties when
called upon to do so.
In Spain the initiative lies w i th
t he c ou r t s. They c omp l e t e ly
dominate the process of motor
accident claims and the action of
the parties is entirely dependent
thereon. The cou r t s' f unc t i on
covers three aspects w i th which
the Irish lawyer would not be
familiar:
(a) Investigation of both liability and
quantum and the collection of
evidence under its own initiative.
(b) The protection of the public
interest wh i ch includes that of the
victims. It can take certain actions
on behalf of a victim which, as will
be seen, can lead to some very un-
expected results.
(c) The initiation of the legal
by J. M. do Lorenzo
member of the Barcelona Bar
(practising from London)
p r ocess
w h i ch
leads
to
compensation of the victim. For the
victim's lawyer, the claim begins
not by initiating the procedure but
by joining in and becoming part of
the procedure already in existence,
as a 'civil party'.
The civil claim under criminal
jurisdiction
Whenever a serious motor accident
involving personal injury occurs, the
police prepare an enquiry report
which they will have to send to the
court. The same obligation lies with
the hospital where the injured
parties are treated; the court may
be one of two, the
juzgado de
instruccion
or
distrito,
depending
on the severity of the case. (In
practice most accidents involving
personal injuries are treated as
cases of fault and therefore dealt
wi th within the
juzgado de distrito.)
At that point a file is automatically
opened for investigation by the
j udge w h o w i ll pu r sue t he
investigation and reach a decision
as to whether or not the driver has
committed any fault for wh i ch he
should be prosecuted. In the
meantime he will also register the
details of any parties who are
victims of the accident,
e.g.
injured
persons or the next of kin of a
deceased.
If he decides not to prosecute,
the judge will close his investiga-
J. M. de
Lorenzo
tion. At this point the way is
opened for the civil jurisdiction to
carry out the action in court. This
will mean that a Spanish lawyer
should be instructed to pursue the
civil claim.
However, if the decision is to
prosecute then the judge will invite
the interested parties to present
their claim as civil parties in the
c r imi nal p r oceed i ngs. This is
normally done by letter to residents
in Spain. Un f o r t u n a t e ly
for
foreigners they may not receive the
notice. It is advisable for them to
take the initiative and join in the
p r o c eed i ngs
w i t h o ut
any
summons. If a victim constitutes
himself as a civil party, the judge
will take all the evidence submitted
to him and such evidence as he has
himself collected and submit it first
to the court-appointed doctor for
his opinion on the nature of the
injuries sustained, and secondly to
the public prosecutor or 'fiscal' for
his opinion on the value of the claim
as guardian of the public interest.
If the victim does not join in the
proceedings, the fiscal, in his
function as protector of the public
interest, may still decide that a
claim should be made on his behalf
in his absence.
In both cases he then gives
judgment and if the defendant is
found guilty he can award damages
to the victims. In other words, civil
damages are awarded within the
criminal court. The hearing date
comes much sooner and it is also
much cheaper than a case dealt
w i th in a civil court. In both cases
the recommendations of the fiscal
carry considerable weight and in
the majority of cases these recom-
mendations are normally followed
by the judge.
It is important, then, to keep in
mind that civil proceedings cannot
be commenced unless:
135