“The speed and inevitability of penalties are more deterrent than their severity”

The recent roundtable discussion on justice reform in Spain, held during the XXVIII National Congress of Law Students (CONEDE) at Esade, highlighted the challenges and opportunities facing the judicial system in both criminal and civil spheres. Antonio del Moral, magistrate of the Second Chamber of the Supreme Court, and Antonio Recio, president of the Barcelona Provincial Court, discussed current shortcomings and possible solutions in a session moderated by Jorge Castiñeira, dean of Esade Law School. 

Diagnosis of the criminal justice system in Spain

Antonio del Moral pointed out that criminal justice has changed very little in recent decades. Based on his experience as a prosecutor and magistrate, the system works reasonably well for ordinary crimes, including homicides and kidnappings, but is "tremendously unsatisfactory" in cases of institutional crime, corruption, fraud, or organized crime. He believes the issue lies not so much in procedural legislation as in the lack of proper prioritization. 

One of the key points concerns the purpose of criminal law: its primary goal should be to prevent crimes. To achieve this, it is essential that penalties are inevitable and applied swiftly. "A two-year sentence perceived as unavoidable and quick is more of a deterrent than a ten-year sentence whose enforcement is uncertain and delayed," stated Del Moral. 

Therefore, the legislator’s strategy of toughening penalties is somewhat flawed. "Someone committing bribery will not pay attention to the increase in penalties," he remarked. However, transparency mechanisms—accountability that makes the detection of crime almost inevitable—and agility in legal processes—the certainty of swift imprisonment—create a much stronger deterrent effect. 

Regarding the reform of the Criminal Procedure Law, Del Moral expressed skepticism, noting that it has been a recurring debate for years with no concrete results. For the magistrate, the priority should be to accelerate proceedings and prevent case delays through strategies such as breaking down complex case files. 

Additionally, he argued that setting maximum investigation deadlines, after which the case expires, is counterproductive. "It not only creates interpretation issues but also gives lawyers another tool, turning procedural delays into a potential strategy," he explained. Furthermore, deadline restrictions make it nearly impossible for judges to comply. 

Regarding the breakdown of large case files, Del Moral explained that "in cases with multiple aspects and defendants, the larger the case, the longer it takes." His position is that when a part of the case is ready, it should be separated and sent to trial. "Once there is a conviction, everything becomes easier. The accused are more likely to confess to other crimes afterward and makes penalties effectively more deterrent," he added. 

Reform of the Spanish civil justice system

For his part, Antonio Recio analyzed the state of the civil jurisdiction, which he considered "enviable" in terms of the quality of judges, prosecutors, and lawyers, as well as the existence of strong substantive and procedural laws. "Where is the problem? Perhaps in having 'died of success'," he noted. "Lawyers trust the courts, and civil jurisdiction provides a good response, which leads to high litigation rates." Added to this is the lack of limits on appeals against judicial rulings. 

To address this issue, Recio outlined the two strategies of the new legal reform. The first is to boost efficiency: to be able to process even more appeals. However, this approach alone would be ineffective, as it would not reduce the number of cases reaching the courts. The second, more promising approach, is to offer alternative dispute resolution methods based on mediation, conciliation, or collaborative law. 

In this regard, one novelty of the new law is the introduction of a mandatory negotiation process before filing a lawsuit, with incentives and penalties to encourage good faith negotiations. This includes the possibility of imposing costs on the party that unreasonably refused to negotiate, even if they ultimately win the case. "This is a very significant change and will shape the good faith attitude of the parties during negotiations," he commented. 

The reform also aims to transform the court model without eliminating judicial districts, which has finally allowed its approval after previous failures in 2009 and 2013 due to opposition from municipalities fearing the loss of local courts. The main changes include converting courts into instance tribunals and the unification of judicial criteria. Recio welcomed both modifications, although he admitted that the depth of the reform will depend on how it is implemented in practice. 

The role of prosecutors and judicial training

Regarding criminal investigations, Del Moral expressed support for transferring this function to the Public Prosecutor's Office, although he acknowledged that this requires greater trust in the independence of prosecutors—something the current system does not guarantee, given that the Attorney General's Office is, in practice, hierarchically dependent on the executive branch. 

On judicial training and career access, both Del Moral and Recio defended the current competitive examination system, emphasizing that it ensures extensive legal knowledge and strengthens judicial independence. While they acknowledged the possibility of improvements, such as the introduction of practical tests, they considered the current system to have proven effective.