CMS Expert Guide to Digital Litigation in Spain

Digitalisation is increasingly present in Spain's judicial system. Any claim, writ or document to be filed before the court, and any communication or notification relating to the proceedings, must be submitted digitally via Lexnet.

Lexnet is a platform, launched in 2007 by the Spanish Ministry of Justice, for the secure exchange of information between judicial bodies and a wide range of legal operators who, in their daily work, exchange judicial documents. According to the Royal Decree 1065/2015, of 27 November 2015, on electronic communications in the Administration of Justice in the territorial scope of the Ministry of Justice and regulating the LexNET system (Real Decreto 1065/2015, de 27 de noviembre, sobre comunicaciones electrónicas en la Administración de Justicia en el ámbito territorial del Ministerio de Justicia y por el que se regula el sistema LexNET), from 1 January 2016 all legal professionals and judicial bodies are obliged to use this platform for the submission of pleadings and documents and the performance of procedural communication acts.

Thus, all court decisions and pleadings filed by each of the parties will be served to other parties in the proceedings through LexNet.

The Organic Law 13/2003, of 24 October, on the reform of the Criminal Procedure Law in matters of pre-trial detention (Ley Orgánica 13/2003, de 24 de octubre, de reforma de la Ley de Enjuiciamiento Criminal en materia de prisión provisional) added a new section on article 229 of the Organic Law 6/1985, of 1 July, on the Judiciary (Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial) allowing the option to hold court proceedings (statements, interregations, testimonies, confrontations, examinations, reports, ratification of expert opinions and hearings) by means of a videoconference, when so agreed by the court. Since the start of the COVID-19 pandemic, more and more pre-trial hearings and trials are being conducted digitally. In any case, those proceedings that are held in person are all digitally recorded.

For all litigation proceedings carried out in Spain, digital measures such as e-filing of claims, pleadings, documents, and appeals are handled through the digital platform Lexnet.

In certain cases, the courts also agree to hold pre-trial hearings and trials through videoconference.

In addition, in certain cases when necessary, the court may be requested to access the defendant's publicly available data for the purpose of locating the defendant or his or her assets.
For the time being, measures such as document automation, knowledge management, data analytics, or the use of AI have not yet been implemented in the public sector.

However, the approval of the current Draft Law on Digital Efficiency Measures for the Public Justice System (Proyecto de Ley de Medidas de Eficiencia Digital del Servicio Público de Justicia) is intended to ensure the implementation of the entry and processing of information through metadata to facilitate data searches and analysis. This Draft Law will also introduce the use of electronic judicial files (expediente judicial electrónico).

Regarding the frequency with which the courts adopt existing tools and technical capabilities, the use of e-filing is mandatory. Consequently, claims, documents, pleadings, and appeals must always be submitted through Lexnet.

However, it is infrequent to hold trials or pre-trial hearings by videoconference since it is necessary to offer a case-by-case justification as to why it must be held this way. Thus, this possibility depends on the approach taken by the judge on the relevant case at hand. In order to be authorised, they must be conducted by a system that allows two-way simultaneous communication of image and sound, as well as visual and verbal interaction between two geographically distant persons or groups of persons, ensuring the possibility of contradiction and safeguarding the right of defence. Some judges are proactively accepting videoconferencing whereas others may have strong reservations and thus refrain from using this option.

As it was explained in Questions 1 and 2, on the one hand, the use of e-filing is mandatory, so claims, documents, pleadings, and appeals must always be submitted this way. Depending on the type of procedure, they must be filed by lawyers or court representatives (procuradores).

On the other hand, the possibility to hold trials or pre-trial hearings by videoconference is optional and depends on the will of the court. 

Procedures in Spain are now increasingly digitalised, but not completely. With the new Draft Law on Digital Efficiency Measures for the Public Justice System, which is currently pending approval, the aim is to achieve greater jurisdictional agility, enhancing the digital engagement between citizens and the courts.

For litigation to become fully digitalised, the documentation aspect as well as other procedures need to be automated.

There are a number of rules governing the use of technology in litigation. These include:

• Organic Law 6/1985, of 1 July, on the Judiciary;
• Law 1/2000, of 7 January, on Civil Procedure;
• Royal Decree 203/2021, of 30 March, approving the Regulation on the action and operation of the public sector by digital means;
• Royal Decree 1065/2015, of 27 November, on digital communications in the Justice System in the territorial scope of the Ministry of Justice and regulating the Lexnet platform; and
• Law 3/2020, of 18 September, on procedural and logistical measures to deal with COVID-19 within the Justice system.

Additionally, the Draft Law on Digital Efficiency Measures for the Public Justice Service, which should be enacted this year, is currently up for legislative debate. This Draft Law was created to provide a coherent legal framework where the digital relationship becomes standard.

The digitalisation of the justice system in general and in litigation in particular is currently a “hot topic” in Spain. Given the need to follow up on the overall process of digital transformation, the Draft Law on Digital Efficiency Measures for the Public Justice Service is currently going through the parliamentary process.

This Draft Law aims to adapt the present Spanish judicial system to contemporary technological framework, promoting a digital relationship between citizens and the courts, as well as strengthening the transparency, efficiency and accountability of public authorities. One of the most anticipated new features in this Draft Law is the electronic judicial file, an ordered set of electronic data, documents, communications, and audio-visual recordings, which is intended to be a central tool for understanding digital justice in the upcoming years. 

There is currently no law regulating the use of AI in litigation, at least publicly.

However, the Draft Law on Digital Efficiency Measures for the Public Justice Service, when stating the general principle of justice based on data, expressly foresees the use of AI systems to support jurisdictional operation. It is important to highlight that AI is only contemplated as a tool to support jurisdictional work. In every case, judges, public prosecutors or court clerks will keep full control over the texts they write. It will not be possible for AI-generated draft text to be constituted as a resolution without the intervention of the legal operator.

Notwithstanding, it should be noted that the proposal for a regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (Artificial Intelligence Act) and amending certain EU legislative acts (COM/2021/206 final) specifically addresses the use of AI systems in the judiciary by classifying it as a high-risk system. According to Annex III (nº 8) of the draft regulation, AI systems that are intended to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts are considered to be high risk and are therefore subject to specific regulatory requirements under Articles 8 to 15 of the draft AI regulation. 

For the safeguarding of personal data and, in particular, for the security and confidentiality of data processed for the administration of justice, the following rules exist:

• Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). This norm applies to the activities of courts and other judicial authorities as well. However, in order to protect the independence of the judiciary and judicial proceedings, restrictions on the provisions of the GDPR are possible (Article 23 GDPR). EU or member state law could specify the operations and procedures in relation to the processing of personal data by courts and other judicial authorities. The competence of the supervisory authorities should not cover the processing of personal data when courts are acting in their judicial capacity, in order to safeguard the independence of the judiciary in the performance of its judicial tasks, including decision-making. It should be possible to entrust supervision of such data-processing operations to specific bodies within the judicial system of the member state, which should, in particular, ensure compliance with the rules of this regulation, enhance awareness among members of the judiciary of their obligations under this regulation and handle complaints in relation to such data processing operations. (Recital 20).
• Organic Law 3/2018, of 5 December 2018, on the protection of personal data and the guarantee of digital rights. Establishes that the blocking of data consists of its identification and reservation, adopting technical and organisational measures to prevent its processing, including its visualisation, except for making the data available to judges and courts, the Public Prosecutor's Office or the competent Public Administrations for the enforcement of possible liabilities arising from the processing and only for the prescription period of those liabilities.
• Law 7/2021, of 26 May, on the protection of personal data processed for the purposes of the prevention, detection, investigation and prosecution of criminal offences and the execution of criminal penalties; and
• Law 6/1985, of 1 July 1985, on the Judiciary (articles 236 bis to 236 docies).
  For the use of data, apart from the rules cited above, we will soon have the Draft Law on Digital Efficiency Measures for the Public Justice Service, which will also regulate the use of data generated and processed by the justice system.

With the rise of legal tech companies, there has been an increase in the use of automated systems to manage and process legal claims. These systems can help legal tech companies quickly and efficiently identify potential claims, gather and analyse relevant data, and pursue legal action on behalf of consumers. However, this can also create new risks for businesses since these automated systems may be less reliable or accurate than human review since they may not always consider the specific circumstances of each case. Moreover, the use of digital and automated processes can make it easier for legal tech companies to scale up operations, potentially resulting in a higher volume of legal claims being filed against businesses. This can create additional challenges and costs for businesses since they may need to devote more resources to defending themselves against these claims.

At the moment there are no specific tools to improve accessibility to legal services.

However, with the Draft Law to be enacted, the aim is to enhance digital access to justice with improvements such as the regulation of Electronic Judicial Offices (Sedes Judiciales Electrónicas), as well as their content and services to be provided, and the regulation of the General Access Point of the Administration of Justice (Punto de Acceso General de la Administración de Justicia), which includes the creation of the Justice Folder (Carpeta Justicia), which will facilitate access to the services and procedures offered by the administration in matters of justice.