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During the Covid-19 pandemic virtual court hearings became the norm in Spain until sufficient health guarantees were put in place which permitted a safe return to the court rooms. Nevertheless, this period of virtual hearings gave rise to the recognition that the digitalization of the system could give a more efficient and agile system. The recently published Royal Decree Law 6/2023 (the “Royal Decree”) from the 19th December 2023 will implement changes that will see virtual hearings returning with force with virtual hearings replacing in-person attendance as the general rule, provided that court offices have sufficient technological means for this purpose.
The Royal Decree creates some new digital “institutions” for the purpose of the justice system before proceeding to modify specific procedural rules of the different jurisdictions to ensure that technology is utilised to create a more efficient system.
(i) The new digital “institutions”
- The electronic judicial headquarters. (Article 8)
This is the electronic access to the justice system by way of a web portal which will allow procedural actions to be carried which require the authentication of court officials or parties and professionals linked to proceedings.
- The judicial folder (Article 13)
The judicial folder will be a personalised folder accessed electronically via the portal which allows citizens access to information and proceedings to which the citizen is either a direct party or an interested party. Among the key information available in this folder will be direct access to court proceedings in which the citizen is a party.
- The electronic judicial file (Article 47 ss.)
This is all of the relevant data – documents, recordings etc. – that are available for a specific set of judicial proceedings.
It can be appreciated that the with the introduction of the aforementioned institutions that interested parties in proceedings will have immediate access to know the developments of the proceedings which affect them.
(ii) Important modification to procedural laws
As we have already mentioned, the Royal Decree introduces important modifications to procedural laws. These modifications are due to enter into force on the 20th March 2024 (Final Stipulation 9 paragraph 2) and will only be applicable to proceedings initiated from that date onwards (Second Transitory Stipulation). Here follows some key changes:
- Civil Procedural Rules (Law 1/2000)
A modified article 155.1 will have important impacts on legal entities as it now permits the first summonsing of such entities by telematic means rather than a physical summons. For that reason, legal entities will have to control sufficiently the communication platforms with the public administration by which judicial summons can be issued to ensure that procedural deadlines are met efficiently.
Article 129 bis reflects the preference for judicial hearings via telematic means, provided that the court office has sufficient technology available. However for declarations of witnesses, experts and the parties it is stated that they should be made with the physical presence of the relevant person unless:
- The court determines otherwise; or
- The relevant person resides in different location to the corresponding court thus permitting their declaration from a secure place within their town of residence.
Article 137 bis determines that video conferences should be held from the court office corresponding to the residence or place of work of the relevant person, before permitting that such declarations can be made from the home or the workplace if sufficient technological means are available.
Whilst not directly related to the implementation of technology in the judicial system, the modifications also increase the quantum of the so-called verbal trial proceedings track from EUR 6,000 to EUR 15,000 (Article 250.2)
- Criminal procedural rules
Article 258 bis reflects the preference for telematic hearings unless the offence is classified as a “serious” offence or if the potential sentence exceeds 2 years prison, with accuseds also having an option to request their physical presence in court if preferred.
Comment
Whilst it makes sense that the court system implements technological advances to increase efficiency, it has to be remembered that the preferred method of telematic hearings remains subject to the courts having sufficient technology. It can be expected that the changes will present challenges in the roll-out not only with the availability of technology but also elements such as sufficient means to verify identities and make documents available in hearings.
Finally, it remains to be seen whether judges will receive the changes with open arms or whether they will rely on general exceptions to the virtual hearing rules (“given the circumstances of the case”) to require the physical presence of the parties, witnesses and experts involved.
Information technology
Spain