Why Justice needs a more horizontal study of Law, and may the Supreme Court forgive us. By Gustavo Martín.
Some time ago, Spain forswore anything resembling a “judicial policy”. Consequently, today, its Judicial Power structure and the Administration of Justice remain completely removed from the needs and capacities of Spanish society. Leaving us with judges who today feel that “their company” neither takes advantage of their potential nor recognises them adequately.
Well into the 21st century, the inertias of a 19th century structure and concept are maintained and the passing of the time, which waits for no man, has left it antiquated and obsolete.
Over the last 40 years, after the end of Franco’s dictatorship, Spain opened up to the world and to European and international law, thus undergoing a catharsis of almost biblical proportions.
I dare say that 80% of the legislation affecting us as Spanish citizens every day is directly or indirectly determined by Europe or by international treaties.
Areas that, in 1978, were summarised in a single chapter of a Law manual today account for entire subjects; subjects so essential that no jurist can be understood to be adequately trained without studying them.
But Judicial Power has not changed. Nor has its territorial organisation, the system of promotion or the system of remuneration.
The implosion of judicial power
The way in which the continuous training and extracurricular merits of judges are conceived also remains unchanged. The immediate results of this are clear: straitjacketed by provincial thinking, Judicial Power implodes on itself amidst the lack of recognition for the enormous and valuable work of judges today in the practical application of the Law.
The most evident illustration of this is how the study of Law is organised in the image and likeness of the system of legal recourse; vertically, with the Supreme Court at the top.
However, while it makes sense that the system of recourse is organised vertically, to ensure legal certainty and the purification of the system, the vertical organisation of the study of Law is simply absurd.
Despite the chronic overload of work we suffer at the level of initial proceedings, the primary and most immediate result of which is the low judge/inhabitant ratio, placing Spain at the bottom of the European table (22nd of 27 according to the EU Justice Scoreboard 2018), only 14.4% of verdicts dictated at first instance are appealed.
Of this 14.4%, 61.4% of verdicts are upheld in full, 20.5% are partially upheld and only 17.5% are overturned.
This means that, at first instance, only 2.5% of all verdicts dictated are overturned and only 2.95% are partially overturned.
In other cases, whether due to lack of resources or the confirmation of same, the decision at first instance is fully upheld in 94.4% of cases.
And what is the importance of appeal today?
Without prejudice to its function of closing the system, which can itself be questioned in the case of purely European questions, its importance must be looked at in relative terms.
Of all verdicts dictated by Provincial Courts, only 8.2% were appealed, with a confirmation rate of 84.4% and only 12.1% of those verdicts fully overturned.
That means that only 1.18% of all verdicts dictated at first instance are appealed and that only 0.14% are fully overturned. I would state therefore that first instance has the primary function in the application of the Law.
The image of the legal system as a pyramid of Kelsenian inspiration is totally removed from the reality and if there is any pyramid it is inverted.
Judges at first instance resolve matters that will never reach the Supreme Court.
Because judicial law is not the handful of rulings issued by the Supreme Court over the course of a year (as important as they undoubtedly are in the relevant areas) but the millions of judgements dictated by judges at lower instances.
Notwithstanding the many caveats that a merely numeric conclusion requires, there is a second important point: judges at first instance levels resolve many matters on a daily basis that are never subject to appeal. Matters that affect different areas and that, in many cases, require extensive specialisation.
But there is more. For some time now, Spanish judges have also become European judges. We resort to the Court of Justice of the European Union as part of our commitment to the citizens whose rights we are responsible for safeguarding, even where that puts the Supreme Court itself in question.
The most recent example of this is the Gutierrez Naranjo case  with a ruling on a number of preliminary questions was sought by the Commercial Court of Granada and the Provincial Court of Alicante against the verdict of the Supreme Court of 9 May 2013 limiting the retrospective application of the restitutive effects of the nullity of ground clauses.
The practical application of Law, today more than ever, requires intensive training, even in the country’s most remote villages.
Because Spain in 2018 cannot allow first and second class citizens: neither Article 24 of the Spanish Constitution nor Article 6 of the European Convention of Human Rights allow for any distinction based on place of residence within European territory.
Only a horizontal study of Law is coherent with our reality and with the capacity of our judges.
A system of courts of first instance with judges organised and remunerated based on experience and training, two parameters that cannot prejudice anyone.
Because there is life, and quality, beyond the Supreme Court.
*** Gustavo Martín is a Judge, Doctor of Laws and Castilla-La Mancha Regional Spokesperson for the Francisco de Vitoria Judges’ Association.
Source: Confilegal. com