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Sending a legal document is not the same thing as posting a letter. If you are a party to legal proceedings, it will be necessary to send various documents to the party with whom you are having the dispute and to receive other documents. This is the only way in which the right of defence is adequately protected, since the basic assumption underlying this is knowledge of the existence of the proceedings. In legal terms, this means serving documents and procedural writs drawn up by the parties and by the court.
In principle, the first procedural writ issued by the court is the order to attend or summons informing the other party of the initiation of the proceedings. This is communicated by the court itself, under the direction of the Court Clerk, through the offices of a civil servant employed by the court, who appears in person at the home of the defendant or of the person who is to take part in the proceedings in another capacity.
This need for service arises not only at the beginning of the proceedings, but also during the various other phases, and concerns the parties who are represented as well as those not represented who have to appear before the court (witnesses, experts, etc.). In Spain, the court itself is in charge of serving documents, communicating procedural writs and notifying its decisions to the parties and to other persons involved in the proceedings.
If the parties are represented (normally the parties must be represented in court by a solicitor (procurador) duly empowered to act in the court where the proceedings are being heard; legal representation is not compulsory in oral proceedings in which the amount at stake does not exceed €900 and in applications for orders for payment procedures), it is the solicitor who, as the representative of the party, receives and signs all documents. If there is no such representation, the documents are served directly on the person concerned.
In Spain as in England, no distinction is made between the French concepts of “notification” (formality whereby the contents of a document are communicated to a person for information) and “signification” (the name given to the service process carried out by a bailiff or huissier de justice). The parties’ documents are communicated to the other parties and procedural writs are served by means of “actos de comunicación judicial” (judicial communications), always by the court under the direction of the Court Clerk, who is responsible for the proper organisation of this service. These documents are in actual fact served by the Court Clerk himself or by a civil servant designated by him, in one of the following ways:
Not all procedural writs issued by the court are equal, and a distinction must be made between them depending on their purpose, for instance:
These specific rules governing judicial documents are justified because these documents are not mere formal requirements but a means of guaranteeing the parties to the proceedings, as well as those who must or may be party to the proceedings, that their legitimate rights and interests are defended on the basis of the fundamental right to effective judicial protection and the principle that no-one must be without proper legal representation, the exercise of this right being based on the presumption of awareness of the existence of proceedings.
All important documents forming part of the proceedings must be communicated to all those taking part in the proceedings and also to those referred to and to those who can bring a halt to damage. Hence:
Court documents are always served by the court under the direction of the Court Clerk, who is responsible for the proper organisation of this service. Documents are served in practice by the Court Clerk himself or by an official designated by him. Normally the civil servants traditionally known as “agentes judiciales” (judicial officers), but who since 2004 have been known as “funcionarios del cuerpo de auxilio judicial” (court auxiliary officials), serve documents such as notifications, summonses, orders to attend and injunctions in the form envisaged by the Code of Civil Procedure (Law 1/2000).
Service of a document by a court auxiliary official is not the only way in which notification can be made. Other methods may be used such as the post, telegrams or via the legal representative.
To summarise, documents may be served in Spain as follows:
(In the case of the service of documents from or addressed to a European Union country, Council Regulation (EC) No 1348/2000 of 29 May 2000 is applicable. When Spain incorporated it into its legislation, it appointed as transmitting agencies the Clerks of Courts of First Instance and as receiving agencies the Clerks of Senior Courts or Clerks responsible for common notification services. To find them, please consult the judicial map of Spain. It is also possible to consult the website of the European Judicial Atlas in Civil Matters where such bodies are directly indicated.)
In the case of persons who are or may be party to the proceedings, it depends on the procedures for serving and on the type of document and service used:
The plaintiff’s address is the one recorded in the petition or application initiating the proceedings. The plaintiff designates as the address of the defendant the one he has on record, and this is the one used for the first order to attend or summons. If the plaintiff designates several places as addresses, he must indicate the order in which, in his view, the document can be successfully served. The plaintiff must also indicate any details he knows concerning the defendant which may be useful in locating the latter, such as telephone and fax numbers and similar details.
Once the defendant has appeared, he may designate a different address for subsequent communications.
Should the parties change addresses during the proceedings, they must immediately notify the court. They must also report any changes to their telephone or fax numbers or similar details, provided that the latter are being used as means of communication with the court.
A copy of the decision or summons is served on the addressee by the official at the seat of the court or at the address of the person to be notified or summonsed, or on whom an injunction is to be served. This is recorded in an acknowledgement signed by the Court Clerk or by the court auxiliary official serving the document and by the person on whom it is served, whose name must be indicated (if he refuses to sign, this is recorded, and if he refuses to receive the document, he is informed that it is available for him at the seat of the court, and that the service will take effect from the day following the date of this record).
A Common Notification and Injunction Service (Servicio Común de Notificaciones y Embargos - SAC) has been set up in provincial capitals and large towns, under the aegis of the Senior Judges’ Office, which deals with the serving of documents for the entire court.
Documents to be served on witnesses, experts and other persons who, while not party to the proceedings, have to take part in them, are served by remitting a copy of the decision or summons by registered post or telegram with acknowledgement of receipt, or by another similar means which provides a reliable record of reception, date of reception and content of the document. The Court Clerk indicates in the records the remittance and the content of the document remitted and attaches, where appropriate, the acknowledgement of receipt or the means by which receipt of the document by the addressees is recorded. The document is remitted to the address designated by the party concerned. Where appropriate, the necessary checks may be conducted with respect to the address or residence of the person on whom the document is to be served. The witnesses, experts and other persons who, while not parties to the proceedings, have to take part in them, must notify the court of any change of address that occurs in the course of the proceedings. They are informed of this obligation the first time they appear in court.
Under the Spanish Code of Civil Procedure (Law 1/2000), it is possible to serve documents by electronic and similar means provided that the courts and parties or addressees of the documents have access to electronic media, telematic media, electronic telecommunications or other similar media that permit the sending and receipt of documents in such a way as to guarantee the authenticity of the communication and contents and also to provide a reliable record of remittance and reception of complete documents and of the time when this takes place. If these requirements are met, the documents may be served using such media with the appropriate acknowledgement of receipt. To this end, the parties and the professionals involved in the proceedings must state to the court that they have access to the above-mentioned media, and must provide their e-mail addresses. This Law also provides for the creation of an electronic register at the Ministry of Justice that can be accessed using the said media and contains the addresses of public bodies. When the authenticity of decisions, documents, opinions or reports submitted or served using the above-mentioned media can be recognised or verified only by direct examination or by other means, they must be delivered or served on the parties and persons concerned in a way that enables them to be verified by these means, respecting the time and location requirements laid down by law in each case.
In the event that the document has to be served in a territorial area different from the one where the court issuing it is located, the court with jurisdiction over that area must be asked to serve the document. This is known as judicial assistance and, in this case, the document is served by the court to which the request is made (in a rogatory letter) in the form indicated beforehand. The copy of the decision or corresponding summons is enclosed with the rogatory letter, as well as other documents, depending on each case. The documents must be served within a period of no more than twenty days from the date of receipt.
In principle, if the parties are not represented by a solicitor and have chosen an address for service before the court, documents served to any of the addresses designated will take effect as soon as correct remittance of the document to be served has been recorded, even if receipt by the addressee has not been recorded.
If no address for service has been given (which is quite usual in the case of a document intended to summons a person to appear in court or to obtain the personal intervention of the parties in certain procedural phases), documents can in principle be served on persons other than the addressee, provided that there is a close relationship with him as laid down by the law.
Thus if the address where an attempt is made to serve the document is the place where the addressee has his domicile according to the municipal register, tax register or any other official register or publications by professional associations, or if it is the residence or premises rented by the defendant, and the addressee is not there, the document may be served on any employee or family member over the age of 14 who is at the address, or on the caretaker of the building, where appropriate, informing the person receiving it that he is obliged to hand over this copy of the decision or summons to the addressee in question or to inform him of it if he knows of his whereabouts.
If the document is addressed to the addressee’s place of non-casual work, the document will, if the addressee is absent, be served on a person who states that he knows him or, if there is a department responsible for receiving documents or objects, on the person in charge of it. The name of the addressee and the date and time at which he was sought and not found at home are recorded in the acknowledgement, as well as the name of the person who received the copy of the decision or summons and the relationship between this person and the addressee, with the document thus served coming into effect fully.
In the event that nobody is found at the address where an attempt was made to serve a document, the Court Clerk or an official designated by him must endeavour to find out if the addressee lives there. If he no longer lives or no longer works at the address in question, and any of the people questioned know his current address, this is recorded in the negative acknowledgement of the serving of the document. If it is not possible to find out the address of the defendant in this way, and the plaintiff has not designated other possible addresses, the court must try to find out the address of the defendant by means of official registers or using an address featured in publications by professional associations, in the case, respectively, of undertakings and other entities or of persons engaged in a profession who are obliged to join such associations. The court must also approach the defendant’s place of professional activity or non-casual work (in some cases direct access by electronic means may be possible from the court itself). If an address or place of residence is discovered as a result of these enquiries, the document is then served. If these enquiries prove fruitless, the document must be served by means of notices, with it being placed on record that the aforesaid attempts to find out the address or place of residence were fruitless. In this case, the document is served by posting a copy of the decision or summons on the court notice board. Exceptionally, at the request of one of the parties and at his expense, it will be published in the Official Gazette of the province or of the Autonomous Community, or in the Official State Gazette or in a national or provincial newspaper.
Since it may happen that various courts have attempted to locate the same person, with a view to streamlining the process and avoiding unnecessary repetition by each judicial body of attempts to find out addresses the Spanish Code of Civil Procedure (Law 1/2000) provides for the creation of a central register of absentees, located at the Ministry of Justice. Courts that have already, to no avail, carried out checks on the address or residence of the defendant can consult this register, communicating the name of the defendant and other identity details which they have on record. Any court needing to check the address of a defendant can consult the register to see whether the defendant is featured there and whether the details that appear in it are the same as those in its possession. In this case, there is no need to make further enquiries since such enquiries were already carried out by the first court which tried to locate the defendant, and the court can directly decide to serve documents by posting notices. Defendants entered in this register may request the cancellation of the entries by communicating the address at which court documents may be served on them. In this case (if the person in the register has been located), the register informs the courts which are engaged in proceedings against this defendant of the address given for the purpose of serving documents, with documents served from this time to this address being valid.
There is always, in every case, written proof that the document has been served. This is recorded in the written transcript, certified by the Court Clerk. The procedures depend on the means by which it was decided to serve the document.
When documents are served at the court or via the common reception service organised by the Solicitors Association (SRCP), this is recorded by the signature of the solicitor or the party on the copy of the document or acknowledgement which is drawn up for this purpose and certified by the Court Clerk.
When documents are served by remitting a copy of the decision or summons by registered mail or telegram with an acknowledgement of receipt, or by other similar means, the Court Clerk certifies the record of remittance and content of the document remitted, attaching, where appropriate, the acknowledgement of receipt or the means by which receipt was recorded.
When documents are served by delivery to the addressee, delivery is recorded by an acknowledgement drawn up by the official, which is signed by the addressee, or by means of a copy of the decision, which is signed by the addressee.
In the event that it was necessary to resort to the posting of notices, this is recorded by means of an acknowledgement certified by the Court Clerk stating that the notice was posted on the notice board of the court and stating the period in which it remained there, together with a copy of the Gazette in which the notice was published in the event that this additional measure was applied.
A document may be served on a person other than the addressee in certain cases laid down by law that have been analysed already, in which case the documents are validly served.
In cases where documents are not served in accordance with the Code of Civil Procedure (Law 1/2000), in line with the rules mentioned in response to the previous questions, they will be invalid wherever they could result in the person concerned being without proper legal representation. A court decision is necessary declaring that the document in question is invalid, although a request can be made ex officio to have it declared invalid. Notwithstanding this, if the person notified, summonsed, ordered to attend or on whom an injunction has been served states that he has been informed of the case, and does not denounce the fact that service of the document is invalid during his first appearance before the court, the document will come into effect as though it had been served in accordance with the law. For this reason, the document need not be served again in this case.
It is essential that documents be served validly since, if the defendant does not appear duly at the proceedings on the date and in the place indicated in the summons or notice, he is declared in contempt of court, and the proceedings continue without allowing him to act. In this case, if the defendant continues to be absent, he must apply for the proceedings to be declared invalid during the enforcement phase.
It is even possible that, although the documents were served validly, the defendant can ask for and obtain the annulment of a final judgment damaging to his interests, but only in certain exceptional cases and on very limited grounds, and provided that the judgment was not notified to him personally. This request must be made before the court within a period of between twenty days and four months. The only grounds that can justify such a request are the following:
To answer this question, it is necessary to look at the way in which the document was served.
Documents served by courts are free of charge.
Documents served by solicitors give rise to fees and charges (the scale of charges is regulated by Royal Decree 1372/2003 of 7 November 2003). In principle, these charges are paid by the party who granted power of attorney to the solicitor in question, unless he benefits from free legal aid. These charges may also be included in an order to pay costs, in which case the party who loses the case will, in general, pay them.
Last update: 01-02-2007