Spain is favorable to a broad development of international legal cooperation and allows collaboration in gathering and taking evidence in aid of foreign litigation.

The Spanish system of international legal cooperation does not formally require reciprocity. However, it does provide that the Spanish Government may decree that the Spanish authorities will not cooperate with the authorities of another jurisdiction when they repeatedly refuse to cooperate or their own laws prevent them from cooperating.

Spain is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). The instrument of ratification of this convention was published in the Spanish Official Gazette No. 203, of August 25, 1987.

Spain has signed other multilateral and bilateral international treaties and conventions regulating the obtaining of evidence for civil matters. Among them, the Inter-American Convention on exhorts or rogatory letters concluded on January 30, 1975, stands out. The instrument of ratification of this convention was published in the Spanish Official Gazette No. 195 of August 15, 1987.

At an EU level, the main piece of legislation is Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the Taking of Evidence in Civil or Commercial Matters. On July 1, 2022, it will be repealed and Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 will become applicable.

In the absence of international rules, the regulation of international legal cooperation in civil and commercial matters is concentrated in Law 29/2015 of 30 July on International Legal Cooperation (“Law 29/2015”), although there are specific provisions in multiple other statutes.

Gathering evidence in Spain in aid of foreign criminal litigation is governed by a patchwork of different pieces of legislation. Law 23/2014 of 20 November on Mutual Recognition of Criminal Decisions in the European Union is the relevant statute on cooperating with EU Member States. It covers instruments such as the European Investigation Order (“EIO”) set out in Directive 2014/41/EU of 3 April. For those Member States that have not yet transposed Directive 2014/41/EU into their national law (as well as Norway and Iceland as part of the Schengen Agreements), the 29 May 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union applies.

The Council of Europe’s 20 April 1959 European Convention on Mutual Assistance in Criminal Matters (and its two additional protocols) are the most important multilateral treaties to which Spain is a party. It applies to mutual legal assistance with European non-Member States and even with non-European countries that have ratified the convention (like Israel or South Korea).

Cooperation in criminal matters with other countries is mainly governed by bilateral mutual legal assistance treaties, such as the 20 November 1990 treaty between Spain and the United States of America.

This depends on the international treaties to which Spain and the other state involved are parties.

In relation to the gathering of evidence for civil and commercial matters in the EU, both Regulation (EC) No 1206/2001 and Regulation (EU) 2020/1783 (which will apply from July 1, 2022) make provision for the courts of the Member States to communicate with one another directly. The requested court must verify that the request from the requesting court contains certain information and fulfills other requirements.

In the absence of international rules, Law 29/2015 establishes that the request to gather evidence must be sent to the Spanish central authority (the Ministry of Justice), which must verify that it meets applicable requirements before passing it on to the competent Spanish authorities for execution. Spain also admits direct communication between courts, provided that this is also possible under the legal system of the requesting state.

In criminal litigation, the European Union’s framework for mutual legal assistance –Directive 2014/41/EU and Spanish Law 23/2014– establishes a judicial cooperation model that replaces the former model of communications between central or governmental authorities. An EIO to gather evidence in Spain for foreign criminal litigation can be directly issued by the competent authority of the Member State in which the criminal case is being heard by the competent Spanish judicial authority.

Outside the European Union, the Council of Europe’s 1959 Convention and most bilateral treaties set out the need for mutual legal assistance requests to be channeled through central authorities (like the Ministries of Justice of each country) before being passed on to the competent courts.

Pursuant to Law 29/2015, any evidence taken in Spain which is to be used in foreign proceedings must comply with Spanish law and, as a general rule, be taken in accordance with Spanish procedural rules. Spanish law also allows, exceptionally and at the request of the foreign authority, evidence to be taken in accordance with a procedure provided for in the legislation of the requesting state, but only if it is compatible with Spanish law.

Among other evidentiary measures for civil litigation, it is possible to request the taking of statements and the examination of witnesses, either orally or in written form, as well as the exhibition of documents or other objects, provided that this is for a proceeding that is ongoing or to is initiated. When evidence is requested prior to the commencement of the foreign judicial proceeding, it must be admissible to gather that evidence under Spanish law.

Requests for documents must clearly identify the documents and the reasons why the requesting party believes the other party has those documents. When ratifying the Hague Evidence Convention, Spain reserved the right not to accept letters rogatory derived from the pretrial discovery of documents known in common law countries.

For criminal matters, Law 23/2014 provides a comprehensive list of investigative measures that can be carried out in Spain to assist criminal litigation in other EU Member States. Among others: (i) an EIO for a hearing of a witness or an expert by videoconference or telephone conference (with no written questions); (ii) an EIO to request information on bank and other financial accounts or on banking and other financial operations; (iii) an EIO to gather evidence in real-time or over a specific period of time (e.g. controlled deliveries); (iv) an EIO to intercept communications; (v) an EIO to request the temporary transfer to the issuing state of a person held in custody in Spain for the purpose of carrying out an investigative measure; or (vi) an EIO to adopt provisional measures to prevent the destruction, transformation, removal, transfer or disposal of an item that may be used as evidence in the issuing state. EIOs are carried out almost automatically as there are very limited grounds for refusing to do so. Law 23/2014 also provides for the execution of European Arrest Warrants (“EAW”) and European Protection Orders (“EPO”).

The Council of Europe’s 1959 Convention also sets out that letters rogatory are means, for example, to procure records or documents as evidence or to request the deposition of witnesses or experts.

According to Article 31 of Law 29/2015, the foreign authority requesting that evidence be taken must indicate in the request if any of the named parties have the right not to testify or not to provide documentation in accordance with the legislation of the requesting state. The Spanish courts must determine if the person has such rights under Spanish law.

In any case, evidence will not be taken when the named party justifies his refusal on the grounds of an exemption or prohibition to testify or to provide documents, established or recognized by Spanish law or by the law of the requesting state. In these cases, the requesting court is informed of the reasons for the refusal.

The framework for mutual legal assistance applicable in Spain in criminal matters does not generally set out privileges as grounds for refusal of a foreign country’s request. There are however specific references to this; for instance, the EIO regulations (Directive 2014/41/EU and Spanish Law 23/2014) state that an issuing state’s request may be refused where “there is an immunity or a privilege under the law” of Spain.

Whereas 20 of the directive points out that “[t]here is no common definition of what constitutes an immunity or privilege in Union law; the precise definition of these terms is therefore left to national law, which may include protections which apply to medical and legal professions”. Spanish law does not specifically regulate immunities and privileges other than those of sovereign states and international organizations. From a practical perspective, and given how Spanish criminal investigation courts operate, it will be for the claimant to show that a privilege applies.

Pursuant to Article 31 of Law 29/2015, the request for evidence must detail if, under the legal system of the requesting state, there is a right of the person involved to (a) not provide evidence; (b) refuse to testify, or (c) not produce documents.

In accordance with Article 30(c) of Law 29/2015, the request for international cooperation to obtain and hear evidence may include a request for technological means to be used. This is consistent with the fact that Article 229 of the Basic Law on the Judiciary allows for depositions to be carried out remotely.

As regards criminal proceedings, the EIO regulations (Directive 2014/41/EU and Spanish Law 23/2014) establish remote depositions as standard procedure. This is also foreseen in other national statutes such as the Criminal Procedure Act (Articles 325 and 731 bis).

Major international treaties ratified by Spain also allow depositions to be conducted by videoconference, like the United Nations Convention Against Transnational Organized Crime of 15 November 2000, or the United Nations Convention Against Corruption of 31 October 2003.

Under Article 14 of Law 29/2015, Spanish courts must refuse a request for international legal cooperation when: (a) the object or purpose of the cooperation requested is contrary to public order, (b) Spain has exclusive jurisdiction over the proceedings from which the request for cooperation arises, (c) the Spanish judicial authority is not competent to carry out the request, in which case it may refer the request to the competent authority; (d) the request for international cooperation does not meet the Law 29/2015 requirements for it to be processed; or (e) the Spanish Government has decreed that the Spanish authorities will not cooperate with the authorities of the foreign jurisdiction.

Article 29.3 of Law 29/2015 provides that "When evidence is requested in Spain prior to the commencement of the foreign judicial proceeding, it will be required that the anticipated taking of evidence is admissible under Spanish law".

There should be no restrictions on the voluntary submission of evidence in a foreign proceeding. However, Article 29 in a fine of Law 29/2015 provides that “for evidence taken in Spain to be effective in a foreign proceeding, the guarantees provided by Spanish law must be respected and the evidence must be taken in accordance with Spanish procedural rules".

Therefore, Spanish procedural law will apply to the taking of evidence in Spain for a foreign proceeding.

The answers would not differ, since Article 33 of Law 60/2003 of 23 December on Arbitration provides that “the arbitrators or any party with their approval may request from the competent court assistance in taking evidence, in accordance with the rules applicable to the taking of evidence. This assistance may consist of the taking of evidence before the competent court or the adoption by the competent court of specific measures so that the evidence may be taken before arbitrators”.

Article 33 goes on to say that, if requested, “the Court shall take the evidence under its sole direction. Otherwise, the court shall limit itself to agreeing on the relevant measures. In both cases, the clerk of the court shall provide the applicant with a record of the proceedings”.