Legal aid

1 What costs are involved in legal proceedings and who normally has to bear them?

In Spain, the administration of justice is a public service generally provided free of charge, in the sense that it is not subject to prior payment of a tax or fee. However, private legal persons acting outside the scope of the Law on free legal aid, as a general rule, will have to pay a fee both to file an application and to appeal a decision before a higher body.

Expenses incurred directly and immediately as a result of such proceedings and those relating to the payment of the following items shall be regarded as costs of the proceedings:

1. fees for defence (lawyer) and technical representation (court representative) where these are mandatory;

2. the placing of notices or announcements that must be published during the course of the proceedings;

3. deposits required for lodging appeals;

4. experts’ fees and other payments due to persons who have been involved in the proceedings;

5. copies, certification, notes, testimonies and similar documents required by law, except those requested by the court from public registers and records, which shall be provided free of charge;

6. customs duties payable as a result of actions necessary for the conduct of the proceedings;

7. the fee for the exercise of judicial powers, where necessary.

In civil and commercial matters, and except in the cases set out in the Law on free legal aid, each party to proceedings will be required to bear the costs and expenses of the proceedings as they arise. At the conclusion of the proceedings, the Court will determine which party will bear these costs or whether each party will bear its own costs and share the common costs equally, in accordance with the ‘loser pays’ principle.

2 What exactly is legal aid?

In our legal system, legal aid is provided as a public service for those who lack the means to cover the costs of legal proceedings. It is expressly provided for in the Constitution (Article 119) and is linked to the fundamental right to effective judicial protection. (Spanish Constitution). Its aim is to ensure that all citizens have equal access to justice.

3 What are the requirements for legal aid to be granted?

On the one hand, WHEN IT IS ESTABLISHED THAT THERE ARE INSUFFICIENT RESOURCES TO PROCEED WITH A CASE, the following shall be entitled to legal aid:

1. Spanish citizens, nationals of other European Union Member States and any foreigners resident in Spain, where they can show that they lack sufficient means to proceed with a case;
2. charitable organisations and foundations;
3. in cross-border civil and commercial disputes, natural persons who are European Union citizens or third-country nationals legally residing in a Member State (in such cases, legal aid may be granted if it can be demonstrated that the costs of the proceedings cannot be met due to differences in the cost of living between the Member State of residence and Spain);
4. in the context of insolvency proceedings, and for all formalities relating to the special procedure, debtors who are natural or legal persons and who qualify as microenterprises.

On the other hand, this right is recognised WITHOUT the need to prove that there are insufficient resources to bring proceedings in the case of:

(a) victims of gender-based violence, terrorism and human trafficking in proceedings linked to, arising from or resulting from their status as victims;

(b) persons who, as a result of an accident, can demonstrate that they have permanent disabilities that completely prevent them from performing the duties of their usual occupation or profession and who require assistance from others to carry out the most basic daily living activities, where the subject matter of the dispute is a claim for compensation for personal injury and non-pecuniary damage suffered;

(c) associations whose purpose is to promote and defend the rights of victims of terrorism, as set out in Law 29/2011 of 22 September 2011 on the full recognition and protection of victims of terrorism;

(d) in the context of insolvency, trade unions shall be exempt from making deposits and payments in all their proceedings and shall be entitled to legal aid when acting in the collective interest to defend workers and social security beneficiaries.

4 Is legal aid granted for all types of proceedings?

Yes, this right applies to all types of legal proceedings, including appeals for constitutional protection before the Constitutional Court and mandatory administrative and civil procedures serving as a prerequisite for bringing a case before the courts. 

This applies not only to the procedural stages of the proceedings, but also, where the right to legal aid has been granted, throughout subsequent court proceedings and even during the enforcement of court decisions.

This right does not extend to legal proceedings other than those for which it has been granted, but within the same legal proceedings it applies to all its stages and related matters.

5 Are there special procedures in cases of need?

No, there is no specific procedure for granting legal aid in urgent cases. What is provided for is that, even before this right is recognised, the judicial authority before which the proceedings are pending may issue a reasoned decision, assessing the circumstances or urgency of the case, and to immediately safeguard the rights to defence and legal representation for those who demonstrate that they lack the financial means (provided that this is a requirement for obtaining the right to legal aid as explained in point 3), requesting that the professional bodies appoint a lawyer and court representative on a provisional basis, where such appointments have not already been made. The right will be recognised subsequently through the ordinary procedure.

6 Where can I obtain a legal aid application form?

The application must be submitted by means of a standard form that may be obtained at judicial premises, at the legal advice services of the Bar Associations and at the offices of the Legal Aid Commissions.

The General Bar Council (Consejo General de la Abogacía Española) provides citizens with a web portal for legal aid, Justicia Gratuita, where it is possible, among other things, to complete the legal aid application form or check whether the financial conditions required to benefit from legal aid are met, although it is always necessary to submit the documents and application in the manner indicated in Section 8.

7 Which documents need to be submitted with the legal aid application form?

The application must expressly state the services for which recognition of the right is sought, which may be some or all of those provided for in Article 6 of the Law on free legal aid (and indicated in Section 2 of this form), and must be supported by the documents specified by law for verification, the information enabling assessment of the financial and asset situation of the person concerned and the members of their household, their personal and family circumstances, the claim to be asserted and the opposing party or parties in the dispute, if any.

The standard forms provide an indicative list of the documentation that may need to be provided in each case:

- Photocopy of the applicant’s ID card, passport or residency card. 

- Individual income tax and wealth tax assessment certificate (for the entire household). 

- Certificate of corporation tax payment (Certificado de liquidación del Impuesto sobre Sociedades) (in the case of legal entities). 

- Declaration of public benefit or proof of registration in the Register of Foundations (Registro de Fundaciones) (in the case of legal entities).

- Photocopy of the vehicle registration certificate or a certificate from the provincial traffic authority (only in the case of offences against road safety). 

- Certificate of property and vehicle ownership (Certificado de signos externos) issued by the local authorities of the applicant’s domicile. 

- Photocopy of the family register.

- Certificate of residence (Certificado de empadronamiento). 

- Employer’s certificate of earnings. 

- SEPE certificate of periods of unemployment and receipt of benefits.

- Certificate of receipt of state pensions (Certificado de cobro de pensiones publicas).

- A photocopy of the tenancy agreement for the habitual place of residence or, where applicable, a copy of the monthly rent receipt. 

- Photocopies of property title deeds. Extract from the Land Registry. 

- If the applicant is not married or if their marriage has been dissolved or they are legally separated, they must confirm, by means of a sworn statement, that they do not have a civil partner.

- Other (any document used to prove the facts asserted).

When the application is submitted, the applicant shall be informed that the Legal Aid Commission is authorised to access the data referred to in Article 17, relating both to the applicant and, where applicable, to their spouse or civil partner; all those concerned must give their consent on the application form.

8 Where do I submit my application for legal aid?

As a general rule, the application must be submitted to the legal advisory services of the bar association (servicios de orientación jurídica – SOJ) in the place in which the court hearing the case is located. Applications may also be submitted to the courts, which will forward them to the SOJ with territorial jurisdiction. In many judicial buildings there is a legal advice office.

The Bar Associations will make the relevant forms available to citizens via their websites, so that they can download and complete them and then send them to the legal advisory services of those Bar Associations, either by email or by submitting them in person.

In cross-border disputes, the Bar Associations shall act as the issuing and receiving authorities for applications for legal aid sent to or received in Spain:

1.  applications for legal aid originating in another Member State of the European Union in a cross-border dispute shall be submitted to the Bar Association in the place in which the court or tribunal hearing the main proceedings for which the aid is sought is situated, or to the court or tribunal before which recognition or enforcement of a judgment is sought;
2. natural persons having their habitual place of residence or domicile in Spain who wish to benefit from legal aid in another Member State of the European Union for a cross-border dispute may apply to the Bar Association corresponding to their habitual place of residence or domicile.

9 How do I find out whether I am entitled to legal aid?

The provisional decision is adopted and communicated to the person concerned by the legal advisory service of the Bar Association after reviewing the application and documents submitted. There are three possibilities, as follows.

1. If it considers that the application contains rectifiable errors or that the documentation submitted is incomplete, it shall specify the errors or omissions identified and the consequences of failure to rectify them and require the applicant to rectify them within 10 business days. If this requirement is not met, the application will be closed.
2. If it considers that the application has been submitted correctly and that the applicant meets the requirements, it shall, within a maximum period of 15 days from receipt of the application by that Bar Association or from the date on which any errors have been rectified, proceed to make provisional appointment of a lawyer and immediately notify the Court Representatives’ Association so that, where required, within a maximum period of three days, a court representative may be appointed to represent them.
3. If the Bar Association considers that the petitioner does not meet the above conditions, or that the principal claim contained in the application is manifestly unsustainable or unfounded, it shall notify the applicant within five days that it has not made the provisional appointment of a lawyer provided for in the previous paragraph and forward the application to the Legal Aid Commission.

If the Bar Association is unable to reach a decision within 15 days, the applicant must send their application directly to the Legal Aid Commission, which must immediately decide to provisionally appoint a lawyer (abogado) and court representative (procurador) while verifying the information and documents.

In all cases, the file will be submitted to the Legal Aid Commission for verification and final decision. In order to verify the accuracy and authenticity of the financial data, the Commission will carry out checks and collect, electronically, all the information it deems necessary.

Once it has received the file, the Commission has a maximum period of 30 days to rule on the application, recognising or refusing the right to legal aid and determining which benefits apply to the application. If, upon expiry of that period, the Commission has not expressly ruled on the application, any decisions previously taken by the Bar Association or Court Representatives’ Association shall be ratified.

Within three days the ruling must be communicated to the applicant, the Bar Association, the Court Representatives’ Association and the court dealing with the proceedings, or to the Presidency of the Court of First Instance if the proceedings have not been initiated.

This communication shall preferably be made by electronic means and in all cases when it takes place between public administrations, judicial bodies, legal practitioners and professional associations.

10 What should I do, if I am entitled to legal aid?

If the applicant is applying for the benefit, they must submit the application, before the proceedings commence, to the legal advice service of the Bar Association of the place where the court dealing with the main proceedings is located, or to the court in the applicant’s place of residence, if the proceedings have not yet commenced. Where the person concerned is basing their claim on the exceptional circumstances provided for in Article 5 of Law 1/1996 of 10 January 1996 on free legal aid, in order to obtain recognition of the right, the application shall be submitted to the Legal Aid Commission.

If the applicant for the benefit is the respondent, they must submit the application before filing a defence. An application filed by a respondent does not suspend proceedings; however, the court may, of its own motion or at the request of the person concerned, order the suspension of proceedings pending the decision awarding or refusing legal aid.

In the case of cross-border disputes in which legal aid is sought in order to go to court in another Member State, the application may also be submitted to the Bar Association (in the case of residents in Spain affected by a dispute in another State) of the applicant’s habitual place of residence or domicile.

11 Who chooses my lawyer, if I am entitled to legal aid?

It is the professional associations processing the application that appoint a lawyer and court representative. They may do so on a provisional basis if, while the case is being processed, they consider that the necessary conditions are met, or at the request of the court or tribunal or the Legal Aid Commission.

A person receiving legal aid shall be entitled to request the appointment of new legal professionals to replace those already appointed, by means of a duly substantiated application to be submitted to the Bar Association that made the original appointment.

Those who believe they are entitled to legal aid may expressly renounce the appointment of legal practitioners or court representatives and may instead freely appoint legal professionals of their own choosing; they must state this clearly in their application. This renunciation will affect both parties and means that the State will no longer cover these fees, which will be paid by the client.

Renunciation subsequent to the appointment, which must also apply to both professionals, must be expressly communicated to the Legal Aid Commission and the professional associations and shall not result in the loss of any other benefits under the right to legal aid that have already been granted.

12 Does legal aid cover all the costs of the proceedings?

It covers the following areas:

1. free advice and guidance prior to the proceedings for those seeking judicial protection of their rights and interests, as well as information on the possibility of using mediation or other alternative dispute resolution methods;
2. free defence and representation by a lawyer and court representative in judicial proceedings, where the involvement of these professionals is legally required or where requested by the judge or court by reasoned order to ensure the equality of the parties to the proceedings;
3. free publication in the course of the proceedings of announcements and edicts that must be published in official gazettes;
4. exemption from the payment of judicial fees and from the payment of deposits required for lodging appeals;
5. free assistance from experts during the proceedings;
6. obtaining copies of notarial deeds or customs duties free of charge or reducing their cost by 80%;
7. free assistance by a legal professional in any of the appropriate means of dispute resolution permitted by law.

The right to legal aid is also granted to natural persons who are citizens of the European Union or third-country nationals legally resident in a Member State in cross-border disputes (those in which the party applying for legal aid is domiciled or habitually resident in a Member State other than Spain, where the Spanish courts have jurisdiction to hear them or in which the decision must be enforced) and only for such disputes (following reform of the Law on free legal aid through Law 16/2005 of 18 July 2005, which brought it into line with Directive 2002/8/EC). Other services additional to those already mentioned:

(a) interpretation services;

(b) translation of documents submitted by the beneficiary;

(c) travel costs where an appearance in person is required;

(d) defence by a lawyer and representation by a court representative even if not mandatory, if the court considers this necessary due to the complexity of the matter or to ensure the equality of the parties.

13 Who bears the other costs, if I am entitled only to limited legal aid?

Under our legal system, legal aid is granted to those who meet the financial eligibility criteria. There is a general rule (Article 3 of the Law on free legal aid) and the possibility of granting the benefit, by way of exception, to persons who, although they do not meet the financial criteria, have personal or social circumstances that justify it (Article 5 of the Law on free legal aid): 

- the applicant’s family circumstances, number of children or dependent family members, court fees and other costs arising from the initiation of proceedings, or other costs of a similar nature, objectively assessed and, in any event, where the applicant holds the status of relative in the ascending line of a special-category large family;

- on the basis of the applicant’s health situation and persons with disabilities referred to in Article 1(2) of Law 51/2003 of 2 December 2003 on equal opportunities, non-discrimination and universal accessibility for persons with disabilities, as well as persons on whom they are dependent when such persons are acting in proceedings on their behalf and in their interest, provided that these proceedings are related to the health or disability situation giving rise to this exceptional recognition.

In such cases, the Legal Aid Commission concerned must expressly determine which benefits referred to in Article 6 apply to the applicant (those explained in the previous section). 

In the case of citizens residing in another EU State, the above rule is applied in a prudential manner, taking into account the standard of living in the State of residence, in order to avoid causing damage to the applicant.

14 Does legal aid also cover appeals?

Legal aid does not cover any other judicial proceedings in which the applicant may be involved. A new application must be submitted for each judicial proceedings.

However, once the right to legal aid for judicial proceedings has been recognised, it extends to all related procedures and matters, including enforcement, and to all appeals against decisions made in the same case, without the need for a new application.

15 Can legal aid be withdrawn before the proceedings are concluded (or even revoked after the proceedings have terminated)?

Yes, there are two cases in which this right can be revoked once it has been granted to the person concerned.

1. It may be revoked by the Legal Aid Commission, including on its own initiative, in cases where applicants for legal aid have made false statements, provided misleading information or withheld information, where this was decisive in determining their entitlement. Before taking such a decision, the Commission shall hear the person concerned.
2. The judicial authority hearing the claim brought by the recipient of legal aid may set aside the claim if it finds that the recipient has acted in an abusive manner, recklessly, in bad faith or in circumvention of the law. In this case, the revocation will be ordered in the ruling bringing the proceedings to a close.

Furthermore, although this does not strictly constitute grounds for revocation, Article 36(2) of the Law on free legal aid provides that: Where, in the ruling bringing the proceedings to an end, the party who has been granted legal aid or who is legally entitled to it is ordered to pay costs, that person shall be obliged to pay the costs incurred in their defence and those of the opposing party if their financial circumstances improve within three years of conclusion of the proceedings, the limitation period under Article 1967 of the Civil Code being suspended in the meantime.

16 Can I contest a refusal to give legal aid?

Yes, an appeal may be lodged by submitting a written application to the Registrar of the Legal Aid Commission. The appeal must be substantiated and lodged within 10 days of notification of the decision denying the right.

Upon receipt of the letter contesting the decision, the Legal Aid Commission sends it, together with the complete file, to the court hearing the case (or to the presiding judge of the Court of First Instance for distribution among the various judicial seats in the civil or commercial section). Once the Court has received the documents, the parties and the State Attorney or the Legal Adviser of the relevant Autonomous Community are given five days to submit their arguments and evidence. The judge or magistrate may order a hearing if the appeal cannot be resolved by the documents and evidence provided.

Once the submissions have been received or the hearing has concluded, as the case may be, the judge or court shall, without further proceedings, issue a ruling within five days, either upholding or overturning the contested decision. This order settles the matter once and for all and is not subject to any further appeal.

17 Does the request for legal aid have the effect to suspend the limitation period?

As a general rule, it does not suspend proceedings. However, in order to prevent the right to an action being prescribed or either party being denied the right to a trial due to expiry of the time period, the clerk of the court, of their own motion or at the request of the parties, may order the period to be suspended until there is a decision on whether or not to grant legal aid, or there is a provisional appointment of a lawyer and court representative in cases where legal representation is either mandatory or required in the interests of justice, provided that the application was made within the time periods laid down in the civil procedure legislation. 

Where the application is lodged before the commencement of the proceedings and the action is liable to be prejudiced by the end of a limitation or expiry period, any such period shall be interrupted or suspended, respectively, until the provisional appointment of a lawyer and, if mandatory, a legal aid court representative acting on behalf of the applicant; and, if no such appointment can be made, until a definitive administrative decision is issued on whether or not to grant legal aid.

The limitation period will restart when the applicant is notified of the provisional appointment of a lawyer by the Bar Association or, where applicable, when the Legal Aid Commission issues its decision on whether to grant legal aid and, in any event, within two months of the application being made.