On 15th December 2020 the Council of Ministers approved the preliminary draft law on procedural efficiency measures for the Public Justice Service. This is a project that was created to deal with Covid-19 within the scope of the Administration of Justice, but with the aim of enduring beyond the pandemic.
The preliminary draft is based upon three pillars: (a) establishment of adequate means of dispute resolution (ADR); (b) reform of procedural laws; (c) procedural reforms for the digital transformation.
The first pillar consists of the establishment of adequate means for dispute resolution (ADR) and aims to promote a negotiating solution between the parties, avoiding judicial channels, but without becoming a mere bureaucratic procedure. These mechanisms are implemented in civil and commercial procedures, requiring that all claims be accompanied by the document accrediting that a negotiated solution has been attempted, prior to going through judicial channels, as a requirement for admissibility. These include: mediation, conciliation, negotiation, binding offer, the opinion of an independent expert or any other mechanism provided for in special legislation (for example, consumer legislation). If an agreement is reached through ADR, it will have the same value as res judicata and will be enforceable if it is granted in a public deed before a notary public or approved by the courts. The aim is to ensure that at least one out of every four cases ends up in an out-of-court settlement, in order to alleviate the workload of the Administration of Justice.
The second pillar consists of a reform of procedural laws aimed at strengthening oral judgments, extending oral proceedings (by raising their value and broadening their material scope), establishing a new procedure in the field of general conditions of contract and amending the civil cassation appeal.
The third pillar consists of the digital transformation with the aim of avoiding attendance at the courts and speeding up the processing of cases. The regulation of identification and authentication systems is introduced, the holding of hearings and declarations by videoconference becomes more widespread and the constitution of an electronic register of apud-acta powers of attorney is promoted. Also, heading in the same direction, the General Council of the Judiciary (CGJ), with the development of the provisions of Article 230 of the Organic Law of the Judiciary, has prepared a Guide on how to give instructions within the procedural sphere, with recommendations on how to implement telematic means: (i) without infringing upon the system of procedural guarantees; (ii) avoiding that the criteria on the holding of hearings and declarations by telematic means depends exclusively on the will of the judge; and (iii) incorporating experiences from other fields (for example, international arbitration). The challenges set by the CGJ are: (i) that these systems are implemented and become widespread beyond the current situation of an exceptional nature; (ii) the system of procedural guarantees is maintained at all times and (iii) that a uniform system at the level of the Autonomous Regions in Spain is achieved.
At the judicial level there are different perspectives, for example, within the contentious-administrative order and within the civil and commercial order.
Within the contentious-administrative order in which the evidence is mostly in document form, the implementation of telematic means has received a positive reception. The Contentious Court nº 2 of Santander implemented telematic means as a result of the Covid-19 pandemic and today more than 80% of trials are held by telematic means. As for procedural guarantees, they have managed to maintain them to the extent that (i) confidentiality is guaranteed as the recordings are only recorded within the procedural management system; (ii) the principle of publicity is established by allowing the public access to the telematic sessions, upon prior request and the identification of each of the attendees; (iii) a contradictory procedure and the right to defence is guaranteed, insofar as most of the evidence is in document form, the two parties are found to be on an equal footing and a special procedural management tool is used, which even allows for the creation of virtual waiting rooms for witnesses and experts. This court has implemented an electronic judicial agenda accessible to lawyers and court representatives (procuradores) that allows them to avoid unnecessary court attendance. They also have a system of data flows and guided processing, which allows all the files to be processed more quickly, and they are about to attain a complete electronic judicial file.
In the civil and commercial field, judges generally have greater reservations, especially in complex proceedings involving declarations from witnesses and experts. In the 15th Chamber of the Barcelona Provincial Court, from March 2020, telematic files and deliberations were implemented, which means that they have been able to avoid delays of between three and five months. It is understood that telematic means are very useful and effective, above all in consumer procedures, for procedures with the insolvency administration, or in the case of simple preliminary hearings, although, for complex procedures (above all if there are vulnerable parties, such as in family law or criminal law) it is deemed that guarantees are undermined (for example, criminal declarations in police headquarters by people with their faces covered with a mask). Thus, if the following is achieved: (i) unity of criteria and avoidance of dysfunctions that could generate defencelessness or insecurity; and (ii) maintaining of all the procedural guarantees (above all in view of expert and witness statements, which should be carried out with additional precautions, perhaps with the presence of the lawyer in the unit where the evidence is taken), the civil and commercial judges believe that these measures are positive and that they are here to stay. However, their implementation and general use will require a much greater investment in technology and security measures than those currently in place.
Mireia Bosch
Vilá Abogados
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18th December 2020
