The Spanish Judiciary Body: Structure, Judges, and Legal Representatives

Judges and Magistrates in the Spanish Judiciary Body

Tribunals and Courts (órganos jurisdiccionales) are public judicial bodies that carry out jurisdictional functions, both in passing judgments and having judgments executed. In this sense, art. 117. 3 of the Spanish Constitution states that the exercise of judicial authority in any kind of action, both in passing judgment and enforcing the judgments delivered, lies exclusively within the competence of the courts and tribunals as foreseen by the law, in accordance with the rules of jurisdiction and procedure which may be established.

Courts are mainly composed of judges and senior judges (magistrates), who shall be independent, impartial, unmovable, liable, and bound only by the Constitution and the law.

Types of Courts in Spain

Types of courts in Spain (first approach). According to the Organic Law on the Judiciary, recently amended by Organic Law 1/2025 adopting measures to enhance efficiency in the field of justice administration:

• Judges of peace (jueces de paz)
• Instance courts (tribunales de instancia)
• Appeal courts (Audiencias provincials)
• High courts in Autonomous Region (Tribunales Superiores de Justicia de la CA).
• State court (Audiencia Nacional)
• Supreme Court (Tribunal Supremo) which has 5 Chambers: civil, criminal, contentious administrative, labour Law , and Military .

The staff of a court comprises jurisdicctional and non-jurisdictional staff. We shall now focus on the jurisdictional staff.

1There are three types of jurisdictional staff: juez, magistrado and magistrado del Tribunal Supremo. Judge, magistrate (senior judge) and Supreme Court Judge (senior judge of the Supreme Court).

Almost all Judges and magistrates are members of the judicial profession "carrera judicial". Nevertheless, there are some exceptions. The exceptions are alternate magistrates (magistrados suplentes), surrogate judges (jueces sustitutos) and justices of the peace (jueces de paz), which do not belong to the judicial profession, although they also perform jurisdictional functions. Like the members of the judicial profession, these other types of judges shall also discharge (develop, carry out) their duties in compliance with Organic Law 1985 on the judiciary.

Appointment and Promotion in the Judicial Profession

The access to the judicial profession is based on the principles of merit and capacity. The General Council of the Judiciary (Consejo Genereal del Poder Judicial), takes care of access and promotion in accordance with the rules foreseen in the Organic Law 1985 on the Judiciary. One of the main rules of the aforementioned law states that the selection process for access will ensure, in an objective and transparent manner, that all citizens who meet the necessary conditions and qualifications have equal opportunities. This process must also provide for the professional capacity and ability of the persons who have been selected (art. 301.2).

There are different ways of joining the Judicial Profession:

1. Free access as judge, to serve in a First instance Court (civil branch) or in an Instruction Court (criminal branch): By passing a public examination and a theory and practical course conducted at the judiciary school. Selected candidates may access as a judge. In order to take part in the public examination, candidates must be Spanish, of legal age, a holder of a Degree in Law and not under disqualifying circumstances established by law (physical or mental diseases that prevent individuals performing judicial duties, charged, indicted or convicted of malicious offences and those persons who do not enjoy full legal rights). Public examinations for the judicial profession will be announced jointly with the public exams for public prosecution vacancy positions.

2. Entry as senior Judge (magistrado): Art. 311 Organic Law on the Judiciary. Candidates must be legal practitioners of acknowledged reputation, with more than 10 years of professional experience, and must follow a course at the judicial school. 1/4 (one of every four vacancies) of the vacancy positions (of senior judge) will be filled by these candidates. That is why this way of access is called "cuarto turno". In addition, a third of such 1/4 vacant positions will be reserved for members of the body of Court Registrars (Letrados de la Administración de Justicia/secretarios judiciales).

23. Direct access as senior judge in the Civil and Criminal Chamber of the High Courts of Justice of the Autonomous Regions (Tribunales Superiores de Justicia de las Comunidades Autónomas -art- 330.4-): One of every three vacancies (1/3) in these chambers will be filled by legal practitioners, eminent jurists with more than 10 years' professional experience in the autonomous region, appointed on the recommendation of the General Council of the judiciary on the basis of a shortlist of three candidates presented by the parliament of the Autonomous Region (Legislative Assembly).

1. Direct access as Supreme Court Judge: one of each five (1/5) positions of each court division or the Supreme Court (civil, criminal, contentious administrative, labour and military divisions) will be allocated among legal practitioners of acknowledged reputation and with more than 15 years of professional experience, preferably in that area of law which corresponds to the type of jurisdiction to which they shall be appointed.

Once a candidate enters in the judicial profession, higher appointments and promotions of judges and senior judges/magistrates are based on the principles or merit and capacity and also on their suitability, specialization and seniority.

Court Registrars and Judicial Administration Clerks

Since 2015 the thus named "letrados de la administración de justicia" (LAJ) are civil servants who can be named in English as: Lawyers of the judicial administration, court registrar and Judicial Administration Clerks. The provisions related to them are stated in arts. 440 and ff. of the Organic Law 1985.

These civil servants constitute a single higher judicial body, operating at a national level and with dependency on the Ministry of Justice (just the opposite to judges and magistrates). They perform their duties as an authority. They oversee the judicial office/court registrar office.

Two reforms of the Organic Judicial Law that took place in 2003 and 2009 have considerably increased the number of duties these civil servants undertake. Procedure acts that prior to those legal reforms were done by judges through judicial resolutions are now the responsibility of Judicial administration clerks.

[Some renowned academics consider that some of the duties that are now performed by clerks, are in fact jurisdictional, which means that according to the Spanish Constitution (art. 117), they should be exclusively performed by judges and sr. judges.]

The LAJ will be selected by means of a public examination or by a public examination and merits. Candidates must be Spanish, hold a law degree and not be under any disqualifying circumstances. They are also required to pass a theory and practical course.

Judicial Administration Clerk's Main Tasks

3Judicial Administration Clerk's main tasks (arts. 452 and ff. OLJ):

1. Exercise of public judicial attestation. This means that they will provide a certified record of the procedural acts carried out and of the generation of facts with procedural bearing. If technical recording methods are used, a court registrar will guarantee the authenticity and integrity of the recorded material. Court registrars will also issue certificates of judicial proceedings that have not been declared secret by the court.

2. Organization, management, inspection and supervision of the rest of the staff of the judicial office.

3. Safekeeping of all procedure records and files. They are also responsible for the deposit of property, items and pieces of evidence that are part of the judicial proceedings.

4. Collaboration with the tax authorities for the administration of judicial taxes.

5. Formal development of the proceedings. Or in other words, furtherance of all procedural stages, by entering the corresponding orders.

6. Notice of judgments and any other procedural resolution

7. Development of civil enforcement proceedings after the main order rendered by the competent judge.

8. Some non-adversarial proceedings, such as conciliations.

9. Order of payment of debts (proceso monitorio civil).

The Judicial Office and Other Staff

The Judicial Office (arts. 435 a. f):

It is an instrumental organisation which provides assistance and administrative support to judges. The basic organisational element of the office is the unit. Units are headed by a judicial administration clerk/Court clerk/LAJ.

Units can be of two types:

Other staff in the court registrar's office.

In addition to the Court clerk (LAJ), it has to be mentioned:

(arts. 476-478):

41. The Procedural Management and Administrative Body (cuerpo de gestión procesal), composed of procedural agents (gestores procesales).

2. The Procedural and Administrative Handling Body (cuerpo de tramitación procesal), composed of legal documentalists (tramitadores procesales).

3. The Judicial Assistance Body (cuerpo de auxilio judicial), composed of court assistants (auxiliaries de justicia).

Other civil servants attached to the administration of justice.

We are referring to the staff that belongs to the forensic science body, to the National Toxicology and Forensic Science Institute (doctors and other types of scientists) and the judicial police (art. 547 a f.)

Public Prosecutor, Lawyers, Court Representative and State Lawyers

Public Prosecutor

Set out in art. 124 Spanish Constitution and in the Organic Statute of the Public Prosecutor Act 1981, which has been amended several times since it came into force.

It is a public State body which is entrusted with promoting Justice in defence of the rule of law, the rights of citizens and the public interest. It will act either ex officio or at the request of interested parties. It shall protect the independence of the courts and ensure the satisfaction of social interest.

These general tasks are performed by acting in criminal procedures, with several duties (prosecuting criminal offences, application asking the court for cautionary measures, like provisional prison, issuing orders to police such as the detention of a suspicious person, etc) and taking part in other types of procedures as foreseen by the law. It is established by the law in some civil, labour and contentious- administrative procedures related to fundamental human rights. It is also foreseen in some civil procedures related to civil status. For example, those conducted to obtain support measures regarding persons with disabilities, divorce procedures when minors are affected, affiliation, etc.

Unlike judges and magistrates, Public Prosecutor members exercise their duties in accordance with the principles of unity of action and hierarchical subordination. Nevertheless, they are subject to the principles of rule of law and of impartiality.

Head of the Public Prosecutor body is the State Public Prosecutor /General Attorney (Fiscal General del Estado).