Country's recent history
Spain consists of most of the Iberian peninsula, plus the Balearic Islands, the Canary Islands and two North African enclaves.
Spain's modern history is marked by the Spanish Civil War of 1936-39, and the 36-year dictatorship of General Francisco Franco.
After Franco’s death in November 1975, a new Constitution was approved in 1978, the monarchy restored and political and social transition achieved. The peaceful transition from a highly centralized, dictatorial regime to a pluralistic, liberal democracy showed a remarkable political sophistication and a determination. With the approval of the Spanish Constitution of 1978 (Spanish Constitution or SC) Spain became a Social and Democratic State ruled by law and a Parliamentary Monarchy with King Juan Carlos I as Chief of State.
The Spanish Constitution enshrines respect for linguistic and cultural diversity within Spain. The country is divided into 17 regions which all have their own directly elected authorities. The level of autonomy afforded to each region is far from uniform. The country's regional picture is a complex and evolving one. Spain became part of the European Union (former European Economic Community) on 1 January 1986, at the same time as Portugal. This resulted in economic growth and Spain had the highest growth rate in the European Union for 5 consecutive years. One of Spain's most serious domestic issues has been tension in the northern Basque region. A violent campaign by the armed Basque separatist group ETA has led to nearly 850 deaths over the past four decades. After several stalled cease-fires, in 2012 it announced that it was ready to disband.
Until 2008, the Spanish economy was one of the most dynamic within the EU. However, the main pillars of the economy were tourism and a booming housing market and construction industry. That is why the global economic crisis of 2008-9 hit the country so hard.
The bursting of the housing bubble took Spain into a severe recession and by the end of 2011 the country had an unemployment rate of nearly 23%. By the spring of 2013 this had risen still further, to 27.2%. Austerity measures were imposed by the government in an effort to reduce the level of public debt.
Type of system
In the context of contemporary legal systems, the Spanish legal system belongs to the continental and civil law group.
This model has the following characteristics:
- (i) There is a separation between the public and private sector in the legal system. Inside these two groups, smaller areas of law can be found: constitutional, criminal, administrative, tax, civil, commercial, labor law and litigation.
- (ii) Supremacy of written law over customary or general principles of law.
- (iii) Hierarchical organization of courts due to the two-tier appeal system.
The courts and judiciary are regulated by Title VI of the Spanish Constitution.
- (i) Territorial organization
According to Organic Law 6/1985 1 July, which regulates the courts and the Judiciary, the Justice Administration is organized territorially in municipalities, judicial districts (partidos judiciales), provinces and autonomic regions. The following courts exercise their jurisdiction in this territorial manner: Court of Peace (Juzgados de Paz); Court of First Instance and Preliminary Investigations (Juzgados de Primera Instancia e Instrucción); Administrative Court (Juzgados de lo Contencioso-Administrativo); Labor Court (Juzgados de lo Social); Penitentiary surveillance and Minors Court (Juzgados de Vigilancia Penitenciaria y de Menores); Provincial Audience (Audiencias Provinciales); and Superior Court of Justice (Tribunales Superiores de Justicia). The following courts have national jurisdiction: the National Audience (Audiencia Nacional); the Supreme Court (Tribunal Supremo); the Central Court for Preliminary Investigation (Juzgados Centrales de Instrucción); and Central Administrative Court (Juzgados Centrales de los Contencioso-Administrativo).
- (ii) Single judge or a judicial panel
All the courts and judicial bodies are formed by a single judge except for the Supreme Court, National Audience, the Superior Courts of Justice and the Provincial Audiences which each have a judicial panel.
- (iii) Organization according to the matter in dispute
There are four jurisdictional areas according to the matter of the dispute at stake: civil, administrative, labor and criminal.
- (iv) Hierarchy
Where a matter is heard in a lower court, there is a right of appeal to a higher court.
State-sponsored legal aid is available to defendants in all areas of law (civil, criminal, administrative and employment law) who provide evidence of insufficient means to the meet the costs of proceedings.
Sources of Defendant's Rights
The main source of defendants´ rights are the Spanish Constitution and the European Convention on Human Rights.
The investigation stage of criminal proceedings can be initiated through the provision of information about a criminal act or the registration of a complaint. Anyone in whose presence a criminal offence was committed is obliged to inform the judicial or police authorities. Failure to provide such information is penalized with a fine.
In addition, apart from informing the authorities about the alleged crime, a complaint entails the complainant becoming a party to the process, requesting in the complaint a condemnation of the alleged offender.
Upon receipt of the information or the complaint, the judge is obliged to initiate an investigation, save where there appears to be no signs of a criminal offence having been committed.
Stop and Search
The police may under Spanish laws stop citizens and request them to identify themselves by showing their ID cards or passports, where such action aims to protect the security of the citizens.
Such searches may be carried out by the police where there is a reasonable suspicion that the individual may be committing a serious offence. Any searches must be performed in accordance with the principle of proportionality and cannot give rise to degrading or humiliating treatment.
The SC protects the right to personal freedom and foresees that nobody can be deprived of such freedom except where the provisions of the SC and the applicable laws are upheld.
Furthermore, the SC foresees that an individual may only be detained for the time necessary to clarify the incident and the detainee must be properly and sufficiently informed about the reasons for their detention. They must either be released after a maximum term of 72 hours, or be sent to a judge for further sentencing.
- (a) Apprehension in public for purposes of identification
When the identification of the individual referred to in paragraph 2.1.2(i) above cannot be achieved in public, the police officer may request the individual to go with him to the police station and to stay there until they are properly identified. Such apprehension by a police officer may only be carried out if there is a reasonable suspicion that the individual whose identification could not be verified has committed a criminal offense or an administrative infringement.
- (b) Preventive detention
When an individual is formally charged, first of all, he or she is requested to appear before the judge conducting the preliminary investigations so his or her interrogation may be carried out (if he or she has not been arrested already). If the individual does not appear, the judge will order his or her detention. In addition, preventive detention can be performed by any individual, a public authority or a police agent in the following cases (amongst others): (a) when the offender is about to commit a crime, (b) when the offender is caught in the act of committing the crime (infragant) or (c) where a convict has escaped from prison. If the arrest is performed by an individual, the detainee may request the arresting individual to justify that such individual acted because the detainee was actually in one of the situations mentioned in (a) to (c) above.
Following preventive detention, the individual, police agent or public authority must either release the arrested person if the grounds for the detention have not been satisfied within the allowable time frame, or deliver them to a judge. A detainee may only be detained for the time necessary to clarify the circumstances of the alleged offence, and, in any case, for the maximum term of 72 hours.
Once the detainee is delivered to a judge, the judge shall adopt one of the following decisions within a maximum term of an additional 72 hours from the delivery of the individual before the judge:
- (a) the individual shall be released if there is no evidence or sign from which it can reasonably be concluded that he or she committed the alleged offence;
- (b) the individual may be provisionally imprisoned, if (i) there are reasonable signs that the individual committed the alleged offence, (ii) the alleged offence is punishable with a prison sentence of more than two years, and (iii) there is a suspicion that the individual may escape future detention or destroy evidence if released.
However, even if the alleged offence is punishable with a prison sentence of less than two years, provisional imprisonment may be ordered, if, amongst others elements, there is a suspicion that the individual could reoffend, or he or she has an existing criminal record.
Provisional imprisonment can only be ordered by the judge upon request from the accusing party or the prosecutor and such imprisonment will continue for such time as the three circumstances described in (i) to (iii) above continue to be satisfied; or
- (c) where any of the circumstances described in (ii) and (iii) of paragraph 2.1.3.(iii)(b) above are not met, the individual may be provisionally released, either being obliged to pay a bail fee or not, as decided by the judge. The obligation to pay a bail fee and the amount of such fee is determined by the judge with the aim of “ensuring the results” of the trial.
According to the SC, an individual’s home is inviolable and no entry nor search of it may be done without the individual’s consent, or on the basis of a judicial resolution.
There are, however, cases when such judicial resolution is not necessary to enter and search a person’s home: (a) if the defendant consents to the entry and search by the police or judicial authority; (b) if an imprisonment order has been adopted by a judge; (c) if the defendant is accused of committing a “flagrant criminal offence” ; (d) if the defendant escapes and hides in such domicile; and (e) in pursuit of terrorists.
Enforcing the rules (Exclusionary Rule, Nullity and other procedure to protect against illegal police procedure)
The SC foresees that any person arrested in an illegal manner shall be immediately released. The procedure to file for such immediate release is called “habeas corpus”.
Under the Act which regulates the habeas corpus procedure, the following are cases of illegal detention:
- (a) If a defendant’s arrest has not been undertaken in accordance with the conditions and formalities foreseen for such arrest in the applicable laws;
- (b) If a defendant is apprehended or kept in any place in an unlawful manner;
- (c) If a defendant is detained for longer than permitted under the applicable laws (i.e. 24 or 72 hours) without being delivered to a judge or released; or
- (d) If the constitutional or procedural rights of a detainee are breached in any manner.
The habeas corpus procedure is resolved before the investigating judge of the place in which the detainee is kept.
Line-ups and other identification procedures
A lineup is one of the techniques used to identify or recognise the alleged offender. So it may be validly used in the judicial process which commences after the investigation, the following requirements must be satisfied: (a) it must have been carried out in a lawful manner, and (b) the results of the lineup must be confirmed during the trial by the individual who identified the alleged offender in the lineup.
In order for it to be lawful, it shall be performed with persons similar in appearance to each other and in the presence of a judge, a judicial secretary and a legal counsel.
Other identification procedures
Other identification procedures are: (a) declaration of the offender, (b) declaration of a witness, (c) use of audio records, (d) identification by means of fingerprints, (e) identification by means of handwriting, (f) DNA proofs, etc. The same two general rules must be observed as in the case of lineups: (a) the identification must have been carried out in a lawful manner, and (b) the results of such identification must be confirmed during the trial by the relevant individual.
Before formal charge in court
The SC proclaims that no alleged offender can be obliged to provide evidence about the circumstances of a criminal offence or to self-incriminate.
The first interrogation of the arrested person must be carried out within 24 hours of their arrest (although this period may be extended by a further 48 hours if there is a serious reason for such extension), and the arrested person may be interrogated as many times as the investigating judge, the prosecutor, the plaintiff or the offender himself deem appropriate.
After defendant is formally charged
First of all, the defendant shall be informed about the charges and accusations against him and his right not to provide evidence nor to self-incriminate.
The questions pronounced by the investigating judge within the interrogation must be direct and clear. The duration of the interrogation is not specifically restricted, but it shall be interrupted in case the offender becomes excessively agitated and for the time necessary for the individual to rest. If the offender does not speak Spanish, an interpreter will be assigned to the individual.
Once the interrogation is concluded, the defendant may read his or her declaration, and if he or she does not do so, the judicial secretary shall read it on his or her behalf.
Enforcing the Rules (procedures to protect against illegal interrogation)
As a general rule, if any of the fundamental rights have been violated in the course of the investigation stage of the process, it shall be re-started. The specific unlawful investigation measure (i.e. the illegal interrogation) shall be left without effect, or even the whole investigation stage may be declared null and void and the process may need to be re-started.
However, as an example, in case the interrogation is not carried out in presence of the attorney of the defendant, according to the case law of the Constitutional Court, the fundamental right of legal aid will only be violated if an effective helplessness of the defendant has occurred. In any event, such declaration shall not be used to incriminate the defendant.
Right to Counsel
The right to legal counsel is one of the fundamental rights proclaimed in the SC and it is guaranteed for the defendant during the investigation stage of the process carried out by the police or the judge, and during the trial itself. It shall be granted to the defendant from the time they are detained or formally charged and where the defendant fails to appoint legal counsel, state counsel will be appointed on their behalf (paid for by the defendant except where they qualify for legal aid). In most circumstances, the defendant may not waive this right and must be represented by counsel throughout the investigation and trial stages.
The defendant is entitled to meet privately with his legal counsel before and after the judicial declaration takes place. Furthermore, the defendant may at any time revoke the appointment of his legal counsel, appointing a new legal counsel instead.
Except where their appointment is revoked by the defendant, the same legal counsel is obliged to defend the offender during both stages of the Spanish criminal process: (a) the phase of investigation, and (b) the judicial process itself. The defendant may chose to waive their right to counsel only in the following two cases:
- (a) Commitment of faults (i.e. minor criminal offences); and
- (b) Commitment of crimes against motorway safety (i.e. exceeding the blood alcohol limits when driving).
Rights of the accused at all times
Criminal law system
Double jeopardy (non bis in idem)
Double jeopardy is a principle not expressly included in the SC but it has been recognized by the Constitutional Court as a necessary consequence of the legality principle established in article 25 SC (see paragraph 3.1.2).
The non bis in ídem principle forbids that within the same legal procedure one conduct could be punished twice. This is avoided by applying the following set of principles established in article 8 of the Spanish Criminal Code (SCrC) whose purpose is to decide which law should apply in cases where multiple laws appear applicable:
- (i) Specialty principle: "The special provision would be applied rather than the general one”;
- (ii) Subsidiary principle: "If that subsidiarity has been expressly declared or it could be implied, the subsidiary provision would only be applied when the principal provision could not be applied”. Under this principle, a secondary law which applies to a crime (through explicit reference or implication) will only be applied in cases where the primary provision cannot be applied;
- (iii) Absorption principle: "The wider or more complex criminal provision shall absorb the conducts contained thereof”; and
- (iv) Alternative principle: "Failing the above, the provision with stronger punishment will exclude the provisions that punish the conduct with a lighter punishment”.
In Spain’s legal system the legality principle is established in general in article 9 SC, but it is in article 25.1 SC where it is applied specifically to criminal law: “No one can be convicted or punished for an act or omission that was not a felony or an offence according to the law in force when that act or omission took place ”.
The Spanish Parliament is the only legitimate institution to legislate about felonies and their punishments.
In order to respect this principle the criminal law has to be:
- (i) written: customary principles are therefore excluded;
- (ii) pre-existing: it has to exist before the acts or omissions it deems to punish have occurred; and
- (iii) strict: it has clearly to define the characteristics of the acts or omissions that it will punish.
Presumption of innocence
The SC enshrines the presumption of innocence as a fundamental right in its article 24.2.
It is a iuris tantum presumption which means that every person must be treated as innocent until his or her guilt is proven. Therefore, the accusing party is the one who has to prove the guilt of the accused and it is not the accused who has to prove his or her innocence.
The presumption of innocence is based on two key principles. First, the free appraisal of evidence, that must be done by the judges and magistrates. Second, only evidence that has been obtained legally can be used in trial, giving the chance to the accused to defend him or herself.
Standards of proof and standards for conviction
According to article 741 of Spanish Procedural Criminal Law the judges are free in the way they appraise the evidence presented before them. The different evidential elements can be weighted freely by the lower court, which has to consider the evidence in reaching its verdict.
However, in order to overcome the presumption of innocence, a minimum level of evidence should exist in order to infer the guilt of the accused.
Procedure with witnesses
Article 24 SC establishes the right to use all the necessary evidence in order to prepare the defence of the accused party, including the use of witnesses. The evidence stage of the procedure is usually the most important stage. The judges have to guarantee that the evidence has been legally obtained and that is relevant to the case, i.e., related to the dispute, on one hand, and useful for its resolution, on the other.
If this right is not respected, the injured party would suffer helplessness.
Article 15 SC abolished the death penalty, regardless of what military laws could establish during war.
Fair trial rights
Freedom from prolonged pre-trial detention
According to article 17.2 SC pre-trial detention cannot be longer than the time strictly necessary to make the enquiries needed to clarify the contested facts, with a maximum detention of 72 hours. Spanish law specifies the following maximum detention periods:
- (i) the general limitation for pre-trial detention, under Spanish Procedural Criminal Law, is 24 hours, after which the person under arrest must be released or brought to trial; and
- (ii) subject to receiving judicial authorisation, this 72 hour maximum period may be extended for an additional 48 hours where the detainee is suspected of committing a terrorism felony (as described in Book II, Title XXII, Chapter VII of the Spanish Criminal Law). This extension is also applicable in cases where the European Framework Decision on the European arrest warrant applies, as implemented by Law 3/2003, of 14 March.
Freedom from punishment
Everyone has a right to life and to physical and moral integrity without being tortured, punished or suffer inhuman or degrading treatment.
This provision has been further developed by different laws like the Law 31/1978, 17 July, which regulates the felony of torture.
Right to habeas corpus
The Spanish Constitution recognizes in article 17.4 the right to habeas corpus. The Constitutional Court considers it an institutional guarantee.
Habeas corpus is a speedy, simple and limited constitutional process which provides an ex post legality control of a detention that was not decided by a judge. This guarantee is regulated in the Organic Law 6/1984, of 24 May.
The causes for an illegal detention could be: a) detention without the legal requirements to do so, as well as in violation of the rights and formalities established; b) an illegal detention, due to the lack or insufficient legal support, or when the person under arrest is kept in a facility or under an authority different from the one established by law; c) when the time established for pre-trial or provisional detention or prison has already lapsed; d) lack or insufficient reasoning of the provisional prison; e) violation of substantial or procedural rights of the detainee.
The following parties are allowed to question the legality of a detention: the detained person; his or her spouse or the person with an analogous relationship to the detainee; the detainee´s children; ancestors, siblings of the detainee; and, regarding minors and handicapped people, their legal guardians. The legality of a detention may also be questioned by the detainee´s lawyer.
When the right of freedom is violated, there is also another possible procedure before the Constitutional Court (recurso de amparo), as discussed in paragraph 2.3.1.
Right to a speedy trial
According to Article 24.2 of the Spanish Constitution, the judicial process has to be public and without undue delay. The concept of undue delay has been established by case-law. The Constitutional Court considers seven criteria when deciding whether an undue delay exists: (i) the circumstances of the process; (ii) its complexity; (iii) comparison of its length with the length of similar processes; (iv) the procedural attitude of the appellant; (v) the interest at stake of the appellant; (vi) the attitude of the judge; and (vii) the material and human resources available to the judge
Right to an impartial judge
This right is part of the right to a judicial process that respects all the guarantees established in article 24 SC. Those guarantees include those established in legal treaties according to art. 10.2 SC and the Constitutional Court has understood that an impartial judge is one of them too.
Right to a fair trial and due process of law
This right is recognized in article 24 SC. Violation of this right will only exist in circumstances where a specific procedural provision or right has been breached or refused.
The due process of law contains four different rights:
- (i) free access to justice: this means that the defendant must be allowed to address the relevant court, that any claim must be heard by the courts and that the cost of the trial cannot constitute an obstacle to the access to justice;
- (ii) the right to receive a final judgment that ends the dispute;
- (iii) the right to enforce that sentence; and
- (iv) the right to appeal, subject to the details set out in paragraph 3.2.7 below.
Right to appeal
The Constitution provides for the right of due process of law in all legal proceedings in Spain. The Constitutional Court (which is responsible for the interpretation of the SC) has interpreted this right of due process to include a right to appeal in principle in all areas of law. The extent and availability of a right to appeal in a particular criminal case will be determined by the procedural law of the relevant court and the facts of the case. In many cases there will be a right of appeal to a superior criminal court.
The reformatio in peius is forbidden, meaning that the judgment resulting from the appeal cannot be more burdensome for the appellant than the previous one.
Right to a trial by jury
Although article 125 SC establishes the right of Spanish citizens to participate in the Justice Administration through participation in juries, trial by jury only occurs in a limited number of Spanish courts. The majority of trials in the lower courts are conducted by single judges. Certain higher courts operate by judicial panel.
The jury institution is regulated by the Organic Law 5/1995, 22 May.
Right to notice of charges
The detainee has to be informed of the reasons for his or her detention as well as of his or her rights in an understandable way.
Right to non self-incrimination
No one can be obliged to enter a plea, meaning that a person under arrest has the right to remain silent, to submit a partial plea, or to decide that he or she will only submit their plea before the Judge. In addition, a plea or confession cannot result from any kind of force, intimidation or fraudulent inducement. Furthermore detainees have the right not to declare against him or herself and not to declare himself or herself guilty.
Right to counsel
The person under arrest has a right to the legal counsel of his or her choice or a court-appointed lawyer.
Right to inform others of detention
The detainee has the right to inform any relative or person they choose that he or she has been arrested and where he or she is being detained. If the person under arrest does not have Spanish nationality, they will have the right to communicate with the consular office of their country of residence.
Right to an interpreter
The person under arrest, regardless of their nationality, has the right to an interpreter in cases where he or she does not understand or speak Spanish.
Right to medical care
The detainee has the right to be examined and treated by a doctor employed by the Public Administration.
Ways to protect rights
Exclusionary rule or nullity of procedure
According to Article 53.2 of the Constitution any citizen can require the Court to protect his or her liberties and rights recognized by article 14 and by Section I of Chapter II of Title I of the Spanish Constitution by a preferential and summary procedure and, if necessary, by a special appeal before the Constitutional Court, called “recurso de amparo”.
However, before the right of “recurso de amparo” can exist, the legal remedies provided by ordinary justice must have been exhausted. The final stage of ordinary justice is the request before the court of final judgment to declare the judgment void and null (“incidente de nulidad”).
Chapter III of Title III of the Organic Law of Judiciary regulates the nullity of judicial procedures.
Spanish Civil Code establishes the possibility of claiming the compensation of damages under tort, when the obligation to compensate raises from a negligent or guilty act or omission that is not punished by law.
Rights in prison
The rights of prisoners
Rights to life and physical integrity
The following is set out in article 3.4 of the Spanish General Prisons Act 1979: “Prison authorities must protect the life, integrity and health of prisoners”. Article 6 goes on to prohibit maltreatment of prisoners. This protection must be not only against other prisoners, but also any potentially injurious action by the authorities. Protection is against actions that could affect integrity (for example, the use of dangerous methods of coercion and unlawful disciplinary measures) and also acts of omission that could affect prisoners’ health.
Right to equality
The right to equality is recognised in article 3 LOGP and article 4.1 of the Spanish Prison Regulations (Reglamento Penitenciario, RP). Under these articles, no differences can be established in prisons by reason of race, political views, religious beliefs, social status or any other similar factors.
Right to dignity and respect
The prisoner´s right to dignity and respect consists of the following elements:
- (i) the right to be addressed by their own name;
- (ii) the right to communicate in their own language;
- (iii) the right to dress in their own clothes; and
- (iv) minimum conditions for transfers, accompaniments to and searches of cells, with the least negative intervention possible, avoiding humiliating situations. On this point note that rules for full strip searches rules contained in article 68.2 to 4 RP under which the use of full strip searches is limited to truly exceptional situations. This article includes certain restrictions in connection with the seniority of the civil servant who may order the search, how it is carried out and oversight by the courts.
Right to privacy
- (i) Article 19.1 LOGP recognises the right of prisoners to be kept in individual cells although the Constitutional Court found that this right is not violated by the requirement to share a cell with another prisoner.
- (ii) Article 51.1 LOGP establishes the right to secrecy of communications.
- (iii) The LOGP lays down certain guidelines regarding the electronic processing of prisoners´ personal details. These guidelines relate to the creation of files, their restricted use, means of access, the content that can be stored and the ways of correcting data in those files.
Right to freedom of belief and religion
The Government must enable every prisoner to practice their faith and nobody can be forced to take part in any religious act. This principle is manifested in the right to communicate with the ministers of that religion; the right to a diet that respects prisoners’ personal, ideological and religious convictions; and the restriction on the use of this kind of information in prisoners’ records, which is subject to the express and written consent of the person involved.
Right to property
Article 3.1 LOGP recognises that prisoners may exercise their civil rights, except where such rights are incompatible with the purpose of their sentence, and part 3 of that same article says that prisoners will not be prevented from continuing any pending legal proceedings.
It is possible, however, to restrict the use of valuable objects, money or other belongings that are not considered suitable for the prisoner´s use.
Protection of the family
The LOGP upholds the following rights for prisoners:
- (i) the right of prisoners to marry;
- (ii) the prisoner´s right to the company of their children under three years of age;
- (iii) the right to maintain regular contact with family members to stop bonds from being lost or deteriorating ; and
- (iv) the right of prisoners to serve their sentence at a location close to their home, to avoid social uprooting.
The right to education and access to culture is recognised in articles 55 to 58 LOGP under which books and newspapers should be available to prisoners. The right to engage in paid work and receive Social Security benefits is also recognised.
In principle, prison legislation does not prevent the exercise of political rights, except where, as a secondary measure, those political rights are limited or prohibited in the sentence itself.
Rights with regard to the prison system
Prisoners have a right to be informed of the rules of the establishment, on duties and rights, and disciplinary rules, and means of making petitions, complaints and appeals  They also have a right to verbal communication with family members, friends, lawyers and professionals Prisoners also have a right to take part in educational, recreational, cultural or sporting activities, and to participate in organising the life of the centre 
Spanish criminal proceedings have two main phases: the investigation phase and the trial. However, at the end of the investigation phase there is a period in which a decision is taken regarding whether to take the case to trial or to dismiss it. This period is usually called the "intermediate phase".
Filing of complaint
Criminal proceedings begin with either a complaint (querella) or report (denuncia). It is necessary to file a complaint or report in order to become a party to the criminal proceedings.
Criminal proceedings can also commence ex officio through the public prosecutor as a result of a report (denuncia) or a police report (atestado policial).
Permission to proceed
Once the complaint has been filed, it must be granted permission to proceed by the court. Before taking a decision, the judge will consult with the public prosecutor. If the claim is not granted permission to proceed, this decision can be appealed before the court of appeal.
Type of legal proceedings
There are different kinds of legal proceedings which are followed depending on the nature of the accused crime and the defendant. If the claim is granted permission to proceed, the judge will decide which kind of legal proceedings must be pursued:
- (i) Abbreviated proceedings: for offences with a penalty of imprisonment up to 9 years.
- (ii) Ordinary proceedings: for offences with a penalty of imprisonment that could exceed 9 years.
- (iii) Fast trials (article 795 of the Criminal Proceedings Act): introduced by virtue of Law 38/2002, October 24, are applicable to certain offences with a penalty of imprisonment up to 5 years, when the accused has been caught in flagrante and it is likely that the investigation phase will be straightforward.
- (iv) Minors: introduced by Law 5/2000, January 12 in relation to criminal liability of those with ages between 14 and under 18 years. In certain cases it can also be applied to those older that 18 but under 21 years.
- (v) Jury trials: introduced by Law 5/1995, May 22, are only applicable to certain crimes against persons, honour, freedom and security, crimes committed by civil servants acting as such and arson attacks.
All the proceedings described above except for (v) will be conducted in front of a judge and not a jury.
Investigation of crime
During this phase the court will be in charge of investigating the crime, its circumstances, perpetrators and any other matters relating to the offence with the assistance of the judicial police. The most common investigation measures (“diligencias de investigación y comprobación”) that the court may order are the following:
- (i) judicial inspections (the judge makes a personal visit to the places concerned);
- (ii) the collection of statements from the accused person;
- (iii) the collection of witness statements;
- (iv) the commission of expert reports;
- (v) the use of search warrants; and
- (vi) the inspection of private communications
In addition, the parties can (i) ask the court to order that investigation measures be taken, (ii) produce their own evidence or (iii) do both of these things.
The investigating judge decides whether the evidence obtained during the investigation stage warrants bringing the case to trial. Before doing so, the judge must consult with the parties (including the public prosecutor). The judge does not need to be convinced that the accused is guilty, but only that the evidence gathered during the investigation stage justify bringing the case to trial. If the court decides not to bring the case to trial that would be the end of the proceedings, unless any party appeals such decision, it which case it may be eventually reversed.
In the simplified proceedings, the court hands down a decision setting out the charges made and the persons formally accused (this is the so called PA decision -"auto de PA"-), and grants the accusing parties 10 days to ask for the opening of the trial stage. The accused is not consulted at this stage and cannot oppose the opening of the trial stage.
If at least one of the parties to the prosecution (public or private prosecution) asks for the case to be brought to trial, the judge will only be able to refuse to do so if the events in question do not constitute a criminal offence or if there is no evidence that the accused person was involved in the events.
The nature of the trial will be determined by the severity of the crime and the length of a potential sentence:
- (i) where the relevant crime carries a sentence of less than 5 years, the trial will be heard before a single criminal judge; and
- (ii) in cases where the possible sentence exceeds 5 years, the trial will be heard in the court of appeal.
The proceedings are the same no matter which court hears the case. The judge responsible for the investigation and intermediate stages (the “examining judge”) cannot be involved in the trial stage.
The trial is public and takes place in one or several sessions (depending on the amount of evidence to be heard). After the hearing, the court takes a decision that can be appealed before the court of appeal if handed down by a single criminal judge, or by the Supreme Court if handed down by a court of appeal.
Since the accused is presumed innocent, an eventual judgment must be based upon solid evidence that he is guilty beyond reasonable doubt.
The judgment cannot be enforced until the decision is final, but injunctive relief may be granted if necessary.
As a general principle, any person declared guilty of a crime has the right to have the sentencing submitted to a higher court.
The decision taken by the court that can be appealed before the court of appeal if handed down by a single criminal judge or by the Supreme Court if handed down by a court of appeal.
- The laws are not clear in this regard. The Criminal Procedure Act establishes a 24-hour term for this release/delivery to judge, whilst the SC sets out a maximum term of 72 hours.
- Article 15, Spanish Constitution.
- Article 24, Spanish Constitution).
- Article 24, Spanish Constitution.
- Organic Law 14/1983, 12 December.
- Ley Orgánica 1/1979, de 26 de septiembre, General Penitenciaria, LOGP
- Article 3.5, LOGP.
- Article 51.1, LOGP.
- Article 20.1, LOGP.
- Constitutional Court Judgment 195, 19 December, 1995.
- Article 51.3, LOGP
- Article 21.1, LOGP
- Article 8, RP
- Article 22.1, LOGP.
- Article 47.1, LOGP
- Article 38.2, LOGP
- Articles 52 and 53, LOGP
- Article 12, LOGP
- Article 49, LOGP.
- Articles 51 to 53, LOGP.
- Article 24, LOGP.