The Gazette 1988

Personal injury and motor accidents in Spain

J. M. de

Lorenzo

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.

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:

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-

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