Spain

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Introduction

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.

Courts’ organization

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.

Legal Aid

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.

Pre-trial Procedure

Police Procedures

Complaint/Information

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.

Arrest

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.

Pre-trial detention

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.[1]

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.

Searches

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.

Lineups and other identification procedures

Lineups

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.

Interrogation

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”.

Legality principle

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.

Capital punishment

Article 15 SC abolished the death penalty, regardless of what military laws could establish during war.

  1. 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.