Already an IBA member? Sign in for a better website experience
The IBA’s response to the war in Ukraine
Back to Litigation Committee publications
Javier García Sanz
Uría Menéndez, Spain
Javier González Guimaraes-da Silva
Uría Menéndez, Spain
As in numerous countries throughout Europe and worldwide, Spain has been significantly affected by the Covid-19 pandemic. The blow to Spain has been, at all levels, extraordinary and has caused a crisis with a severity that had not been seen in the many decades since the Spanish Civil War (1936–1939). As a result of the dramatic consequences of Covid-19, Spain was forced to declare a state of emergency by Royal Decree 463/2020 of 14 March (RD 463/2020) pursuant to Article 116.2 of the Spanish Constitution.
By virtue of RD 463/2020, Spain’s central government concentrated the main executive powers of the state (including those of all the distinct agencies, autonomous communities, city halls, etc) in four ministers, all of whom were led by Ministry of Health. Likewise, RD 436/2020 established a general limitation on the movement of people as well as the closure of any economic activity open to the public while the state of emergency remained in force. RD 436/2020 also imposed the temporary adjournment of all proceedings being heard by the Spanish judiciary (with limited exceptions, mostly in the criminal justice system) and the suspension of any time limits that might be running (replying to lawsuits, appeals, etc) while the state of emergency remained in force (First and Second Additional Provisions). As the measures proved insufficient to stop the spread of Covid-19 in Spain, the government adopted Royal Decree-Law 10/2020 of 29 March (RDL 10/2020). RDL 10/2020 ultimately imposed a complete lockdown of all professional and economic activities in both the private and public sectors unless the activities were declared ‘essential’.
Several weeks after the full closure of activities in Spain, and taking into account the significant negative consequences of the judiciary being entirely halted, the Spanish government passed Royal Decree-Law 16/2020 of 28 April (RDL 16/2020) on procedural and management measures to combat Covid-19 in the system of the administration of justice, in order to resume judicial activity applying protective distance and health measures. Among other provisions, Article 19.2 of RDL 16/2020 established that all Spanish courts (with some exceptions in the criminal justice system) should preferably hold their oral hearings, trials and appearances by video conference – independent of their subject matter – during the state of emergency and the three months following its lifting: that is, until 21 September 2020 unless extensions were imposed. According to RDL 16/2020, the sole exception set out by the government was if courts and high courts lacked the necessary hardware and software to carry out virtual hearings in their respective courtrooms. In those cases, the courts were authorised to hold in-person proceedings.
Article 19.2 of RDL 16/2020 does not require the use of a specific platform to carry out the video conferences. Each autonomous community in Spain has appointed one or more international internet platforms or, where appropriate, the official platform already designed and operative in the courts of the autonomous community.
In any event, the extension of holding oral hearings, appearances and trials by video conference in legal proceedings is an exceptional step in the modernisation process of the Spanish legal system, which is an extraordinary turn of events that was entirely unforeseeable in the months immediately preceding the Covid-19 health crisis.
Prior to the Covid-19 health crisis, the starting point for such hearings was Spain’s Basic Law on the Judiciary (Ley Orgánica del Poder Judicial or LOPJ), which had established the possibility of any court holding both the examination and cross-examination of witnesses, expert witnesses and other evidence through remote means via video conference. This approach was incorporated into the Spanish legal system as early as 8 November 1994, although this initial reform was subsequently bolstered in 2003.
As from 2003, Articles 229.3 and 230 of LOPJ include a number of legal provisions authorising Spanish courts to carry out, among others:
‘video conferences or other similar systems that allow two-way, simultaneous communication of image and sound as well as visual, auditory and verbal interactions between two persons or groups of persons that are geographically separated, ensuring in all cases the possibility of the parties contesting [the evidence] and safeguarding their right of defence, when so agreed by the judge or court.’
The implementation of video conferences in the Spanish legal system was adopted within the framework of the development of our criminal justice system, perhaps one of the most advanced in Europe. The other branches of the Spanish judiciary (civil, administrative, labour, etc) have been taking advantage of the achievements and breakthroughs reached by our criminal justice system.
As a result, prior to the pandemic, there was a full body of provisions allowing Spanish courts and high courts to carry out various procedures by video conference or other similar online systems Cisco WebEx, Skype Business, Cisco MeetingUp, Zoom, Microsoft Teams, etc). Nevertheless, unlike Spain’s criminal procedural law, the rules governing civil proceedings did not (and still do not) establish the possibility of carrying out a trial or oral hearing entirely by video conference. Video conferences are limited to judicial actions such as cross-examinations of a witness, an expert witness, an involved party or public officers or public representatives when exceptional circumstances exist (eg, travel impediments, diseases or the exception distance of the court from their locations).
The reality in Spain’s civil justice system is that our legislature and executive have been attempting to digitalise the administration of justice by electronic filing, digital signatures, and electronic notifications and summonses in legal proceedings. This is particularly the case following the significant overhaul of Spain’s civil procedural law approved in 2015. All those steps were an uncontroversial success. In fact, nearly all communications and notifications in Spain’s civil court system are currently carried out through the official electronic platform Lexnet.
However, the advancement of video conferences as one of the methods legally permitted to hold appearances, trials and hearings had been consistently postponed by various Spanish governments and legislators until the arrival of the Covid-19 health crisis.
As indicated, Article 19.2 of RDL 16/2020 was approved at the end of April, with the goal of combating the negative consequences of the Covid-19 health crisis and to facilitate the swift resumption of judicial activities of Spanish courts. Since 4 June 2020, a large number of oral hearings and trials in the civil justice system have been held in Spain.
In general, the implementation of virtual hearings as the preferable way to hold them in the Spanish civil justice system has been a ‘very good decision’. Most hearings and trials have been carried out without significant technical problems and the vast majority of professionals and individuals involved in court sessions (judges, official clerks, court agents, attorneys, witnesses etc) have kept up with the extremely demanding circumstances resulting from the Covid-19 health crisis.
Nevertheless, as in many other countries, it is necessary that courts, high courts and the regions in charge devote not only more and better technical and human resources for taking advantage of all the potential inherent to internet platforms for videoconferences but, above all, a firm commitment to invest in technology training programs for the Spanish judiciary and its staff, among other potential measures.
As with any technological development, virtual hearings may also result in distinct risks and uncertainties that may impact some legal principles in any civil procedure: among others, the unnegotiable right to defense, the guarantees of due process, the equal treatment of the parties, the right to plead and to request the examination and the cross-examination evidence, the duty not to affect the impartial testimony of the witness in court sessions, the principles of immediacy and orality, public access, and, ultimately, access to justice.
In an attempt to avoid – or at least mitigate – such risks and uncertainties in the use of virtual hearing technologies, and given the legal vacuum, Spain’s General Council of the Judiciary (Consejo General del Poder Judicial or CGPJ) approved guidelines for holding virtual hearings on 25 May 2020 (CGPJ Guidelines). This is one of the most useful, comprehensive and complete handbooks on the use and regulation of virtual hearings to date until Spanish legislators pass additional rules on virtual hearings.
In order to achieve this objective, several software programs are currently being used (including Zoom, Skype and Cisco WebEx). The main difficulties have been the lack of access to these tools by some citizens, the user’s lack of knowledge and the limited provision of technological materials in the judicial venues (eg, the lack of rooms for the holding of virtual hearings).
On the other hand, the virtual approach must be adapted to the constitutional principle of publicity and data-protection regulations. To address this issue, a ‘virtual notice board’ has been used, which records information regarding the date and time of the hearing, the type of action and the number of proceedings. It has also been necessary to find a method that allows third parties to attend hearings virtually once they are identified, such as by means of a streaming system, although it would be subject to the limitations regarding the processing of confidential data derived from the requirements of the Basic Law on Data Protection.
While Article 19.1 of RDL 16/2020 requires that the judge convene in a court of law, the CGPJ Guidelines establish that, in justified cases, the judge can connect from other locations as long as certain conditions are met to avoid interruptions. It is necessary, and has been done in practice, for the court to issue a decision in a timely manner, informing the parties of the details of how to proceed, including technical and procedural aspects.
Other practical aspects that must be addressed and remain to be dealt with are:
the appropriate means of identifying the participants;
the rapid resolution of technical incidents;
the appropriate formula for presenting allegations and documents during the hearing itself;
the declaration of witnesses and experts; and
the guarantee of the right to confidentiality.
Among the solutions that have been used in courts is presenting the documentary evidence that is legally required to be provided during the hearing at an earlier time (although, currently, this is not legally required). Additionally, in those proceedings in which a witness or expert must testify, the tendency has been for this to be done in person.
The era we are currently living through will be remembered as that of the great advance in virtual hearings in Spain and across the world. Despite recent legislative developments in Spain, there remain uncertainties due to the lack of regulation and experience; it will still take time, training, resources and a willingness on the part of all those who are involved in the administration of justice to master virtual hearings.
However, the Covid-19 crisis has provided an exponential, exceptional and very rapid boost that the courts. Legal actors must take advantage of this to benefit the administration of justice. In the long run, this should increase access to justice, change the perception and the assessment of business risks linked to litigation and, with adequate regulation and means, improve the purpose of any procedural system: the rapid, effective and economic resolution of disputes under the law.
Back to Litigation Committee publications