Proceedings in Spain with a foreign element
In practically all proceedings in Spain with a foreign element (basically those in which one of the opponents is a national of a non-Spanish-speaking state) at least part of the written evidence to the lawsuit is written in a language other than Spanish (contracts, invoices, correspondence, etc.). In this sense, Article 144.1 of the Civil Procedure Act (CPA) states that Any document worded in a language other than Spanish or, as appropriate, the official language of the Regional Authority in question shall have a translation of such document attached thereto.
By applying the basic procedural standard under Article 265 of the CPA, documentation in a foreign language and its translation in Spanish must accompany the lawsuit (or protest): All claims and answers shall be accompanied by: 1) The documents on which the parties base their right to the judicial protection they claim (…)
However, in court practice it is surprisingly common that the actor – perhaps due to the inexperience of some professionals in proceedings with a foreign element – accompanies his demand with documents in another language without translating them into Spanish. It is possible that under a mistaken belief, the court presumes – unless there is evidence to the contrary from the other party – that the documents say what the demand indicates.
This is unacceptable, not only because it is a flagrant violation of the procedural norms mentioned above, but also because it may cause serious harm to the representation of the defendant who cannot understand the language in which the documents are written. It is true that the defendant could translate the untranslated documents, but giving rise to this possibility seems not only illegal, but also unfair under basic common sense.
Despite this, some courts allow subsequent rectification of this bad practice by allowing, even after the preliminary hearing (once the defendant challenges the untranslated documents), the other party to provide the translation that was previously nonexistent. In this way, the courts – as is the case of some Sections of the Provincial Court of Madrid – seem to care more about not harming the evidence of the neglectful plaintiff who did not accompany the translation ab initio (from the beginning) than the harm to the defendant who has been held to answer the demand without having the translation in question.
The incomprehensible acceptance of such courts should not, however, favor the defective procedural technique we have spoken of. Any diligent lawyer involved in a proceeding with a foreign element must not forget to bring proper translations with the petition, under penalty of ineligibility by the judge and subsequent ineffectiveness of the documentary evidence in question, at the risk of losing the case for lack of evidence.
Mariano Jiménez
