The modern Kingdom of Spain is a parliamentary monarchy which follows the European continental legal tradition. Although the majority of Spain’s territory is on the Iberian Peninsula, it also includes the Balearic and Canary Islands, the North Africa cities of Ceuta and Melilla, islands along the Mediterranean coast, and Llivia, a municipality within France’s borders. Spain is divided into 17 autonomous communities and two autonomous cities. Castilian (Spanish) is the official language throughout the country. Many of the autonomous communities have their own languages that are also official languages, including Catalan, Basque, and Valencian.
The Courts
Spain’s judicial system is composed of national courts with nationwide jurisdiction and territorial courts that cover geographic regions.
National Courts
Constitutional Court
The Constitutional Court is separate from the ordinary court system. It rules on the constitutionality of laws, acts, and regulations made by national and regional parliaments. The government may request the Court to review the constitutionality of international treaties in advance of ratification. The Court also hears cases involving conflicts between the central, regional, and autonomous governments. After exhausting their remedies in the traditional courts, individuals may file an action with the Constitutional Court, called a recurso de amparo, for enforcement of their constitutional rights.
There are twelve justices, including a President and Vice President, that serve a single 9-year term. One third of the seats transition every three years. Four justices are nominated by the Congress of Deputies, four by the Senate, two by the executive branch, and two by the General Council of the Judiciary. Justices must be Spanish citizens and are drawn from highly regarded judges, prosecutors, university professors, public officials or lawyers with more than 15 years of experience.
Supreme Court
The Supreme Court is Spain’s apex court. It has appellate jurisdiction over all lower courts. It has original jurisdiction over cases involving high ranking public officials and the legalization of political parties. The Court exercises judicial review except over constitutional questions.
The Court has five chambers: criminal, civil, administrative, labor and military law. There are 91 justices, including a President, Vice President, and a President for each chamber. The Supreme Court President also serves as the President of the High Council for the Judiciary.
Justices are appointed by the Monarch from a list of candidates proposed by the General Judicial Council. They have life tenure, with a mandatory retirement age of 70. A justice’s term may be extended up to two years.
National Court
The National Court (Audencia Nationale) sits in Madrid and has jurisdiction over cases related to more than one province, complex financial crimes and drug trafficking cases, terrorism, organized crime, European extradition requests and arrest warrants, and serious crimes committed outside of Spain when authorized by Spanish law or international treaties. Recent cases of the Court’s extraterritorial jurisdiction include one involving genocide in Guatemala and another involving a 1989 massacre in El Salvador. The court also has chambers that hear appeals, administrative matters, and some labor cases. The selection process for National Court judges is described below.
Spanish Criminal Procedure
Investigating Judges
Unlike in common law jurisdictions and many civil law countries, Spain’s investigative judges (Juez Instructor) supervise criminal investigations, not the prosecutor. During the preliminary criminal investigation, the prosecutor gathers evidence and secures orders for pretrial detention, searches, seizures, and wiretaps from the investigating judge. The investigating judge reviews the evidence and, if deemed sufficient, initiates criminal proceedings.
The investigative judge gathers additional evidence, questions the suspect and witnesses, and may rule on legal motions submitted by the defense and prosecution. The investigative stage may take from 30 days to several years. Once it is complete, the case is transferred to a tribunal, usually composed of three judges, for trial proceedings. The prosecutor represents the State at trial proceedings.
Victims' Rights
Victims in Spain have the right to file criminal complaints and to file civil claims in criminal proceedings through a procedure called acusación particular. The victim becomes a party to the proceedings. Other individuals and public institutions also have the right to join a criminal proceeding if they can show they have been harmed by the criminal conduct and have suffered damages. This process is called acusación popular. In some cases, public interest groups can file criminal complaints as public prosecutors, or acusadores populares.
Territorial Courts
High Courts of Justice
Each of Spain’s 17 Autonomous Regions has a High Court of Justice (Tribunal Superior de Justicia). The High Courts are the highest judicial body in the autonomous regions, except for the Supreme Court. The First Chamber of a High Court hears first instance civil cases involving acts by government officials and entities as well as appeals from provincial courts. It also hears criminal cases against public officials. The Second Chamber reviews appeals against state institutions, electoral boards, and rulings from administrative courts. The Third Chamber has appellate jurisdiction over cases from first instance social courts as well as certain labor disputes.
Provincial Courts
There are 50 Provincial Courts that sit in the capital cities of each province. They have civil and criminal first instance jurisdiction. Cases are heard by a single judge. Within the provincial courts, there are specialized courts for criminal, commercial, gender violence, employment, juvenile, and prisoner supervision. Justices of the Peace Courts, also known as Magistrate Courts, operate in municipalities that don’t have a court of first instance. Lay judges serve on these courts.
Judicial Selection
Judges on the National Court and Territorial Courts are appointed either through an open competition or lateral entry from the legal profession. They have life tenure with a mandatory retirement age of 66.
Open Competition
The majority of judges in Spain enter the judiciary after taking a competitive exam. Candidates must be over 18, Spanish nationals with a Spanish law degree, have no criminal record, and cannot have held certain types of policital offices. The competition consists of one written and two oral exams. Exam preparation takes 3-5 years; those who pass continue to a two-year course at Spain’s judicial school in Barcelona or opt to become prosecutors and are assigned to the school for prosecutors in Madrid.
Lateral Entry
Lateral entry provides attorneys with at least ten years of experience access to the judicial profession. The Supreme Court may fill one-fifth of its vacancies from lateral entry while other courts can fill one-fourth by lateral entry.
Public Prosecutors
Prosecutors in Spain go through the same selection process as judges but after the competitive exam chose either to be a judge or prosecutor. The Attorney General’s Office falls under the judicial branch but is functionally independent. Prosecutors in Spain have specialized jurisdiction, including violence against women, historical patrimony and environment, juvenile justice, social security and health, immigration, and international criminal cooperation.
Judicial Secretaries
Judicial Secretaries are legally trained and report to the Ministry of Justice. They serve many of the same functions as a judicial clerk. Legal Secretaries are responsible for ensuring that procedures have been properly followed, drafting select decrees and orders, and coordinating technical-procedural aspects of proceedings. They also facilitate the jury process by assisting jurors write verdicts in a many that complies with formal legal requirements.
Jury Trial
Although Spain is a civil law country, it adopted legislation in 1995 authorizing jury trials for crimes committed by civil servants while performing their duties, environmental crimes, murder, parricide, and the embezzlement of public funds. Defendants in jury cases must be represented by counsel. Juries consist of 9 members and 2 alternates. Juror selection begins with calling a panel of 20 prospective jurors. The defense and prosecution have the right to reject potential jurors. A majority vote is necessary for conviction.
General Council of the Judiciary
The General Council of the Judiciary, established in 1980, plays an important role in the Spanish judiciary. Modeled on similar institutions in France, Portugal, and Italy, it was established to safeguard judicial independence and serve as the judiciary’s governing body. The Council oversees judicial appointment, the promotion and transfer of judges, and the inspection of courts and tribunals. It also has jurisdiction over Spain’s judicial school, Escuela Judicial Consejo General del Poder Judicial. The Council’s Ethics Committee is responsible for reviewing allegations of judicial misconduct and administering sanctions. Although Spain does not have a judicial code of conduct, the Ethics Committee consults the international standards set forth in the Bangalore Principles.
The Council has 21 members including the President of the Supreme Court who serves as its President. Twelve members are judges and eight are non-judges (prosecutors, attorneys, law professors). Members are appointed by Parliament for single five-year terms; appointment requires a three-fifths supermajority. In 2019, political gridlock led to a five-year period during which the Council operated in a caretaker capacity because no new members were appointed. This resulted in delays with judicial business, including the appointment of new judges. In 2024, the European Commission for Values and Transparency helped mediate resolution of the political conflict.
Universal Jurisdiction
In 1985, Spain passed one of the broadest universal jurisdiction laws in the world, extending its jurisdiction over alleged human rights violators throughout the world, regardless of whether the crimes took place in Spain or were perpetrated by a Spaniard. Spain became a pioneer with efforts to investigate international human rights abuses and the 1985 law generated significant opposition from the nations whose leaders were targeted. Protests were lodged by the African Union and the governments of China, Guatemala, Israel, the United States, and others. There was also opposition within the Spanish government; the Ministry of Foreign Affairs argued that such broad jurisdiction would adversely impact the country’s diplomatic relations.
In 2009, the law was amended to make it more difficult for courts to investigate and prosecute cases outside of Spain. The law was further limited in 2014 by legislation that introduced extensive conditions for the exercise of jurisdiction, including a requirement that the subject of the investigation have a connection to Spain. The Constitutional Court upheld the constitutionality of this amendment in 2018. In the thirty years since the original universal jurisdiction law was passed, only one case reached the sentencing phase: an Argentine naval officer accused of human rights abuses during Argentina’s brutal dictatorship (1976 – 1983) traveled to Spain under false pretenses. He was arrested, convicted, and, in 2005, sentenced to 25 years in prison.
One of the most well-known of Spain’s universal jurisdiction investigations involved a 1996 criminal complaint filed in a Spanish court alleging human rights violations by the military dictatorship of Chilean General Augusto Pinochet. The judge investigating the case, Baltasar Garzón, issued a warrant for Pinochet’s arrest in London. Pinochet was arrested by British authorities and an extradition request followed. Although Pinochet’s claims of sovereign immunity were rejected by British courts and the extradition request was granted, by 2000 the General was found to be lacking the mental capacity to stand trial. He was released and returned to Chile.