When Lawyers Refuse to See Abuse
Wilfully blind lawyer
Spain’s Blind Spot in Criminal Procedure and the Rise of Private-Prosecution SLAPPs
In most European democracies, the abusive use of courts to silence critics is now recognised as a serious threat to public participation. These cases, commonly known as SLAPPs—Strategic Lawsuits Against Public Participation—are increasingly condemned by EU institutions, human-rights bodies and civil-society organisations.
But Spain has a unique structural problem that makes it particularly vulnerable to SLAPPs lodged through the criminal courts. And the tragic irony is this: Spain already has the legal tools to stop abusive private prosecutions—yet the legal profession systematically refuses to use them.
The result is a justice system that unintentionally rewards the litigant with the deepest pockets, the closest local connections, or the greatest appetite for intimidation.
The “sacred cow” of Spain’s justice system: the private criminal prosecution
Sacred cow
Spain is one of the only countries in the world where private individuals, companies, community associations, and even their lawyers can bring a criminal prosecution without the support of the Public Prosecutor (Fiscalía).
This mechanism—the acusación particular—is defended as a democratic tool: a way for ordinary people to demand justice when the State fails them.
But in practice, it has become something else entirely:
a weapon in neighbourhood feuds,
a tool for local political intimidation,
a battering ram in community-property disputes,
and increasingly, a vehicle for SLAPPs.
In Spain, anyone with the resources and determination can drag another citizen through years of criminal procedure—even if the prosecutor has no interest in the case and even if the underlying allegations are flimsy or retaliatory.
This creates a structural vulnerability that does not exist in most European legal systems.
The legal tool that exists - and is almost universally ignored
Spain already has a mechanism to stop abusive private prosecutions in their tracks.
It is found in Article 11.2 of the Ley Orgánica del Poder Judicial (LOPJ):
“The Courts shall reject petitions and procedural acts that constitute a manifest abuse of right or involve fraud of law or procedure.”
This article:
has organic-law status (superior authority),
applies to all courts at all stages,
imposes a mandatory duty (“shall reject”),
and directly covers fraudulent or retaliatory litigation tactics.
In short, it gives judges the power—and the obligation—to dismiss SLAPP-type criminal prosecutions before they metastasise into a trial. And yet:
most Spanish criminal defence lawyers have never used it.
Many have never heard of it.
Some deny it exists.
Others insist it “cannot apply” in criminal cases.
This is not a minor oversight.
It is a systemic failure.
A profession trained to follow a script, not to recognise abuse
Spain’s legal education places enormous emphasis on procedural sequence:
Querella → Investigación → Escrito de Acusación → Conformidad → Juicio Oral
This sequence is treated as natural, inevitable, and almost sacred.
Students learn how to move through it; they are not taught how to challenge its misuse.
As a result:
abuse-of-process doctrine is almost unknown,
malicious prosecution is rarely identified,
procedural fraud is treated as “regrettable irregularity,”
SLAPP dynamics are invisible to practitioners.
When a client asks for dismissal based on abuse of process, the typical response is:
“That is not possible in Spain.
We must wait for trial.”
This is not the law.
It is the script.
The economic incentives work against early dismissal
It is uncomfortable to say, but true:
A trial generates thousands of euros in fees.
A dismissal motion generates only a fraction of that.
Criminal defence lawyers earn the most money when a case:
proceeds to oral trial,
requires witness preparation,
involves multiple court appearances,
or demands appeals.
A dismissal based on Article 11.2 LOPJ requires intellectual work, not billable labour.
It ends the case early.
It denies the possibility of lengthy proceedings.
The profession has quietly adjusted its incentives accordingly.
Fear and conformity reinforce the blindness
Challenging an abusive private prosecution means:
criticising a colleague who filed it,
questioning the conduct of a local court,
implying procedural manipulation or irregularity,
drawing attention to judicial inertia,
and breaking collegial norms of “don’t rock the boat.”
Spanish lawyers are deeply hierarchical, risk-averse, and socially interdependent within their local bar associations.
Using Article 11.2 LOPJ would mean confronting the system directly.
So most lawyers avoid it.
The result: SLAPPs thrive in Spain’s criminal courts
When the Public Prosecutor refuses to accuse, that should be a red flag.
When evidence is thin or contradictory, that should be a red flag.
When the alleged “crime” consists of raising concerns about financial irregularities or community governance, that should be a red flag.
But in Spain, these red flags are ignored.
Instead, private accusers—sometimes powerful local actors—are granted a clear path to trial simply because the script demands it.
SLAPP victims endure:
years of uncertainty,
legal fees,
reputational damage,
psychological pressure,
and the erosion of their rights.
And Spanish lawyers, consciously or not, facilitate this failure by refusing to use the tools the law already provides.
Spain does not have a legal problem; Spain has a cultural problem
The law is there.
The remedy exists.
The safeguards are written clearly.
But a legal culture built on:
institutional deference,
economic incentives for trials,
reverence for the private prosecution,
and a lack of training in abuse-of-process doctrine
has produced a profession incapable of perceiving SLAPP dynamics even when they are obvious.
This is why Spain is falling behind Europe in protecting freedom of expression and whistleblowers.
What needs to change
Legal education must teach abuse-of-process doctrine.
Bar associations must train lawyers to recognise SLAPPs.
Judges must enforce Article 11.2 LOPJ consistently.
The Fiscalía must intervene more actively when private prosecutions are abusive.
Spain must meaningfully implement the EU Anti-SLAPP Directive (2024/1069).
Civil society must expose cases where private prosecution is misused.
Most importantly:
Spanish lawyers must stop insisting that “nothing can be done” when the law clearly says otherwise.
The health of Spain’s democracy depends on it.