JUDICIAL ASSISTANCE SPAIN
PROVISO: This flyer seeks only to provide information; it is not an opinion on any aspect of US, foreign, or international law. The US Department of State does not intend by the contents of this flyer to take a position on any aspect of any pending litigation.
APPLICABLE TREATIES OR OTHER AGREEMENTS
- The Vienna Convention on Consular Relations, 21 UST 77; 596 UNTS 261; TIAS 6820 (Article 5).
- Extradition Treaty between the United States of America and Spain, signed 05/29/70 and entered into force 06/16/71 (TIAS 7136); Supplementary Extradition Treaty, signed 06/25/75 (TIAS 8938); Second Supplementary Extradition Treaty, signed 02/09/88; Senate Treaty Document 102-24; Third Supplementary Extradition Treaty, signed 03/12/96 and entered into force 07/25/99.
- US - Spain Mutual Legal Assistance in Criminal Matters Treaty, signed 11/20/90 and entered into force June 30, 1993: Senate Treaty Document 102-21.
- The Council of Europe Convention on the Transfer of Sentenced Persons. Signed in Strasbourg 3/21/83; entered into force 7/1/85: TIAS 10824.
- The Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters signed at the Hague on November 15, 1965: 28 USCA (Appendix following Rule 4 FRCvP); VIII Martindale-Hubbell Law Directory, Part VII; 20 UST 361; TIAS 6638; 658 UNTS 163.
- The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters: 23 UST 2555; TIAS 7444; 847 UNTS 231; 28 USCA 1782 (1975 Cum. Supp.); 28 USCA 1781 (Supp. 1979); 81 LM 37 (1969); Martindale-Hubbell Law Directory, Vol. VII, Selected International Conventions.
- The Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents: TIAS 10072; 527 UNTS 189, 20 Int''l Legal Materials 1405-1419 (1981).
SERVICE OF PROCESS
Spain and the United States are parties to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters (20 UST 361, TIAS 6638, 28 USCA (Appendix following Rule 4 FRCvP), 16 ILM 1339 (1977)). The Hague Service Convention provides for service by international registered mail, by agent and by formal request to the foreign central authority. (See Rule R (f) (1) FRCvP) For a detailed discussion of the operation of the Hague Service Convention consult our flyer on the Convention Service can be effected in Spain under the Convention through the Spanish Central Authority. An attorney can make a request for service to the Central Authority by submitting the documents to be served under cover of form USM-94 in duplicate. The Convention form (USM-94) is available at the office of any United States Marshal and is reprinted in the Martindale Hubbell Law Directory, Law Digest Volume, Selected International Conventions, after the text of the Hague Service Convention.SPANISH CENTRAL AUTHORITY:
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U.S. CENTRAL AUTHORITY:
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METHODS OF SERVICE: Article 5(b) - Personal Service: If personal service is required, strike out methods (a) and (c) on the Request for Service Form (USM -94) and indicate method (b) on the form, noting that the documents should be served personally upon the person or company to be served.
COMPLETING THE USM-94 FORM: To obtain guidance on completing form USM-94, consult our general flyer on the Hague Service Convention available via our home page on the Internet or via our automated fax service.
TRANSMITTING THE COMPLETED REQUEST: Requesting counsel as the "applicant" should mail the completed request form and documents to be served (two copies of each) directly to the foreign Central Authority as provided by Article 3 of the Convention. See our flyer, Hague Service Convention for details regarding completion and transmittal of the forms and accompanying documents.
OTHER METHODS OF SERVICE: Spain did not make any reservations with respect to service by international registered mail.
SERVICE BY MAIL: Spain did not object to service by postal channels (Article 10(a)) when it acceded to the Hague Service Convention. Therefore, service can be effected by international registered mail (return receipt requested) or any of the overnight or rapid delivery services which provide a returned receipt as proof of service. Information regarding service by international mail may be obtained from most US Post Offices.
TRANSLATIONS: The Spanish Central Authority has informed the Department of State that unless the party to be served accepts service voluntarily, the documents being served by mail must be translated into Spanish.
SERVICE BY AGENT: The Spanish Central Authority has not presented any objection to service by agent under Article 10 (b and c).
SERVICE IN CRIMINAL CASES: An American consular officer abroad may serve a Federal criminal subpoena (28 USC 1783). Requests for service of criminal subpoenas should be addressed to CA/OCS/ACS/EUR, Department of State, Washington, DC 20520-4817. Requests should include two certified copies of the court order and subpoena, instructions pertaining to airline tickets and cash advances, as well as complete fiscal data. Service of state criminal subpoenas is considered by the Department on a case by case basis. Contact CA/OCS/ACS/EUR for further information.
OBTAINING EVIDENCE
PROVISO: When evidence sought is in a foreign country, it is necessary to observe not only applicable state or federal rules, but also the laws and regulations of the foreign country where the evidence is located. Procedures may vary in civil, criminal, and administrative cases. Attempting to obtain evidence without following the requirements of the foreign country may result in the arrest, detention, deportation or imprisonment of participants, including American counsel.DEPOSITIONS OF WILLING WITNESSES: Voluntary depositions may be taken of willing witnesses. Such depositions may be taken on notice or pursuant to a commission or court order before any consular officer of the United States. Consular depositions may be conducted in certain cases governed by Articles 15 through 18 of the Convention. Article 15 permits a consular officer of the United States to take the voluntary testimony of a U.S. citizen in Spain. Article 16 pertains to the voluntary testimony of a Spaniard or third country national. The Spanish Central Authority has informed the Hague Conference for Private International Law that a U.S. consular officer in Spain need not secure permission to take a voluntary deposition within consular premises.
COMMISSIONER: Another procedure available to litigants under the Convention (Art. 17) permits a commissioner (for example, a private American attorney) appointed by an American court to take the voluntary testimony of a witness of any nationality. Commissioners do not need permission from Spanish authorities to take voluntary testimony. Commissioners may apply to the First Instance Court in Spain having jurisdiction over the deponent for the power to compel testimony, if necessary (Art. 18).
TELEPHONE DEPOSITIONS: In some cases, the commissioner may opt to take the testimony of a witness by telephone. A consular officer swears in the deponent who gives testimony in a conference call (the attorney will conduct questioning by phone).
SCHEDULING A DEPOSITION AT THE U.S. EMBASSY: Services of the U.S. consular officer in connection with oral depositions or depositions on written questions must be scheduled in advance directly with the U.S. Embassy/Consulate General. Contact the American Citizens Services section of the Consular Section of the U.S. Embassy/Consulate via phone or fax as provided below. If the services of a U.S. consular officer are required to administer oaths to the witnesses, stenographer and any interpreter outside the Embassy/Consulate General, additional fees are charged for such services. Consult the Office of American Citizens Services general flyer Obtaining Evidence Abroad .
STENOGRAPHERS/TRANSLATORS: Commercial stenographer and interpreter services are widely available in Spain. Consult the U.S. Embassy/Consulate for additional information. Court reporters are not easily available in Spain .
HOST COUNTRY CLEARANCE - PARTICIPATION OF LOCAL, STATE OR FEDERAL GOVERNMENT OFFICIALS FROM THE UNITED STATES: If a local, state, or federal government official from the United States intends to participate in the voluntary deposition of a willing witness abroad, formal host country and U.S. Embassy clearance is required. This can be obtained by contacting the Office of American Citizens Services. The request should be made at least ten days prior to the taking of the deposition to allow sufficient time for local authorities to make a determination about the official travel.
COMPULSION OF TESTIMONY, DOCUMENTARY OR PHYSICAL EVIDENCE: If compulsion of evidence is required, in civil, commercial, and some administrative cases (considered by foreign Central Authority on a case by case basis) the Hague Evidence Convention provides a "Model Letter of Request" which should be transmitted in duplicate directly from the court in the United States seeking assistance to the Spanish Central Authority. See Martindale-Hubbell Law Directory, Selected International Conventions, Vol. VII for the model letter of request form to compel evidence. The request should include any specific procedures desired by the requesting court, such as verbatim transcripts.
This procedure is completely under the control of the Spanish judiciary. If you wish to attend the hearing, you must state your wish to be notified of the date, time and place in your letter of request. Specify that you be notified of date, time, and place. If you desire, you may also request permission to appear before the court to ask additional questions. The court is under no obligation to allow your active participation in the hearing. If such permission is granted, the questions would normally be asked through the magistrate.
PRE-TRIAL DISCOVERY OF DOCUMENTS: The Spanish Central Authority has informed the Hague Conference for Private International Law that it will not grant requests for pre-trial discovery of documents (Article 23).
SPANISH CENTRAL AUTHORITY:
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Secretaría General Técnica |
TRANSMITTAL OF A REQUEST: The request should be transmitted to the Foreign Central Authority as explained in our general flyer on the operation of the Hague Evidence Convention.
CRIMINAL CASES: Requests for compulsion of evidence in criminal cases may be made in the form of a letter rogatory. See our general flyer regarding Preparation of Letters Rogatory. Defense counsel cannot utilize mechanisms provided for under MLAT agreements, and thus must follow the formal letter rogatory procedure.
LISTS OF FOREIGN ATTORNEYS: Lists of foreign attorneys prepared by the U.S. Embassy or Consulate General are available from the Office of American Citizens Services or directly from the U.S. Embassy or Consulate General.
AUTHENTICATION OF DOCUMENTS: Spain is a party to the Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents (TIAS 10072; 527 UNTS 189; 20 Int''l Legal Materials 1405 - 1419 (1981)). Following is a list of the competent authorities that issue certifications pursuant to the Convention (known as "apostille" certificates). Judicial and Civil Registry documents are issued in each Autonomous Community by the Secretaría de Gobierno de los Tribunales Superiores de Justicia (The Clerk of The Superior Court). Notarial documents are issued in each Autonomous Community by the Decano del Colegio Notarial (The Dean of the Notaries Association). For all other official documents, contact the Jefe de la Sección Central de la Subsecretaria del Ministerio de Justicia (The Ministry of Justice), c/ San Bernardo 45, 28014 Madrid, Spain. See also our general flyer on the Hague Legalization Convention available via our home page on the Internet. See the State Department Authentifications Office home page for more information. The Spanish Ministry of Justice also has a web site with information about how to obtain the Apostille in Spain .
U.S. EMBASSY/CONSULATE LOCATIONS:|
U.S. Embassy Madrid, Calle Serrano, 75, 28006 Madrid U.S. Consulate General Barcelona, Paseo Reina Elisenda de Moncada, 23, 08034 Barcelona |
- Preparation of Letters Rogatory
- Obtaining Evidence Abroad
- Service of Process Abroad
- Authentication of Documents
- Hague Legalization Convention
- Hague Evidence Convention
- Hague Service Convention
- Enforcement of Judgments
USING THE INTERNET:
Many of our judicial assistance flyers are also available on the Internet via the Department of State, Bureau of Consular Affairs home page under Judicial Assistance . See also the Department of State’s Office of the Legal Adviser for Private International Law home page .
TREATY DATABASES ON THE INTERNET:
- United States Department of State, Office of the Legal Adviser, Treaty Affairs, List of Treaties and Other International Agreements of the United States in Force
- United Nations (UN): Databases/Treaties
- Council of Europe (COE) under Texts/Treaties
ADDITIONAL QUESTIONS: If you have further questions, contact the Office of American Citizens Services, CA/OCS/ACS, Department of State, Room 4817 N.S., Washington D.C. 20520, Tel: (202) 647-5226.
