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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:

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