This chapter is part of the publication

Pre-trial Detention in the European Union

An Analysis of Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU

A.M. van Kalmthout M.M. Knapen C. Morgenstern (eds.) ISBN: 978-90-5850-524-8

The publication Pre-Trial Detention in the European Union, An Analysis of Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU can be ordered via Tilburg University or Wolf Legal Publishers. Send your order to Tilburg University: c.dejongh@uvt.nl or to Wolf Legal Publishers: sales@wolfpublishers.nl. Price: 37,50 EURO or 55 USD (excluding shipment) Online orders are possible via www.wolfpublishers.nl. Also see this website for other books by these editors.

WLP 2009

This study was funded by the European Commission

Chapter 26 Spain

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1. Introduction1 The Spanish term for pre-trial detention is prisin provisional or prisin preventiva. Under Spanish law, pre-trial detention is regulated in Art. 502 to 527 of the Criminal Procedure Code of Spain (LECrim, Ley de Enjuiciamiento Criminal). The LECrim regulates the grounds for pre-trial detention, the (procedural) rights of the accused, the types of pre-trial detention, the authorities who are entitled to decree pre-trial detention, and the possibilities for (judicial) review of the decision to impose pre-trial detention. The latest modifications to the LECrim concerning pre-trial detention were made in 2003.2 Some specific regulations on pre-trial detention can also be found in, for example, the Spanish General Prison Act, the Ley Orgnica General Penitenciaria, which regulates the places of detention, and the Ley Orgnica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores, which regulates the liability of minors for criminal offences. 2. Empirical background information Statistics on the numbers involved in the prison population, pre-trial detention / remand imprisonment, etc. in Spain are provided by various sources. In this paragraph, attention will be paid to data from national as well as international sources; amongst others, national statistics from the Spanish National Statistic Institute (INE), the Council of Europes SPACE I and the International Centre for Prison Studies of Kings College London (ICPS). Tables 1 to 5 are based on SPACE I, Survey 20063 and 20074, from the Council of Europe. The numbers relate to the 1st of September 2006 and to the 1st of September 2007 (stock) respectively. The SPACE I 2007 Survey includes the data for Catalonia (on 31 December 2007), which is presented separately in the tables. According to a general statement in SPACE I, Survey 2007, the data (for Spain, State Administration) do not include juveniles. There is moreover a legislative measure which could directly influence trends in the number of prisoners for the figures concerning the State Administration as well as Catalonia, i.e. the reform of the Criminal Code by L.O. 7/2006 of 21 November on the Health safety and the fight against the doping in Sport adds Art. 361bis to the Criminal Code. This Article allows the use of the prison sentences from six months to two years.5

2 3 4 5

This chapter was written by P. Lambertina and finalized with contributions of Prof Dr Jos Luis de la Cuesta. Professor of Criminal Law. Director of the Basque Institute of Criminology (University of the Basque Country), President of the Internacional Association of Penal Law (AIDP-IAPL), Prof Dr Iaki Esparza Leibar. Catedrtico de Derecho Procesal, Universidad del Pas Vasco/Euskal Herriko Unibertsitatea, and Prof Dr Jos Francisco Etxeberria Guridi. Profesor Titular de Derecho Procesal, Universidad del Pas Vasco/Euskal Herriko Unibertsitatea. See Ley Orgnica 13/2003, de 24 de octubre, de reforma de la Ley de Enjuiciamiento Criminal en materia de prisin provisional. Aebi and Delgrande 2008. Aebi and Delgrande 2009. Ibid, p. 19

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Figures 1 to 3 are also based on SPACE I and provide information on the (broad) definition of pre-trial prisoners as it is being used in this study; the number of pre-trial prisoners is calculated as the sum of all prisoners who have not received their final sentence, namely besides untried prisoners, also prisoners who are convicted but not sentenced, and those who are sentenced but who have appealed or who are within the statutory time limit for doing so. The number does not include the other cases. In order to receive the percentage of pre-trial prisoners, this number is divided by the total prison population minus the other cases. The definition of pre-trial prisoners according to SPACE I differs: the number of pre-trial prisoners is calculated as the sum of all prisoners who have not received their final sentence plus other cases. This number is divided by the total prison population (incl. other cases). The statistics in tables 6 to 8 are derived from the International Centre for Prison Studies (ICPS). This centre published the World Pre-trial / Remand Imprisonment List.6 In 2006, it also published the World Female Imprisonment List7. Tables 9 to 19 and figures 4 and 5 show mainly national statistics, which will be discussed extensively. In table 20 to 22 specific attention will be paid to the Council of Europes SPACE I data, international statistics from the ICPS of Kings College London, the European Sourcebook of Crime and Criminal Justice and relevant national statistics. By way of comparison, the different sources of data will be presented together. 2.1. Data from the Council of Europe Annual Penal Statistics, SPACE I, Survey 2006 and 2007 Table 1: Situation of penal institutions
Survey 2006: Spain 43886.8 64,120 146.1 45,811 140 Survey 2007: Spain 45200.7 57,072 126.3 39,859* 143.2 Survey 2007: Spain (Catalonia) 7210.5 9,395 130.3 8,800 106.8

Population - annual estimates (thousands) Total number of prisoners (including pre-trial detainees) Prison population rate per 100,000 inhabitants Total capacity of penal institutions / prisons Prison density per 100 places

* The total capacity of penal institutions has been calculated by using surface area, which is 5.02m/prisoner.

6 7

Walmsley 2008. Walmsley 2006.

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Table 2: Structure of prison populations: minors, persons between 18 and 21 of age, female prisoners and foreign prisoners
Survey 2006: Spain 1,462* 2.3% 5,030 7.8% 20,018 31.2% 7,792 38.9% Survey 2007: Spain 1,308 2.3% 4,830 8.5% 1,818 37.6% 18,474 32.4% 7,151 38.7% Survey 2007: Spain (Catalonia) 238 2.5% 694 7.4% 281 40.5% 3,769 40.1% 1,343 35.6%

Number of prisoners under 18 years old (including pre-trial detainees) % of prisoners under 18 years old Number of prisoners from 18 to less than 21 years old (including pre-trial detainees) % of prisoners from 18 to less than 21 years old (including pre-trial detainees) Number of female prisoners (including pre-trial detainees) % of female prisoners in the total number of prisoners (including pre-trial detainees) Number of foreign female prisoners (including pre-trial detainees) % of foreign females in the total number of female prisoners (including pre-trial detainees) Number of foreign prisoners (including pre-trial detainees) % of foreign prisoners in the total number of prisoners Number of foreign pre-trial detainees % of foreign pre-trial detainees in the total number of foreign prisoners

*not included people placed under security measures, week-end arrests, and fine defaulters

Table 3: Legal status of prison population: numbers

Survey 2006: Spain Untried prisoners (no court decision yet reached) Convicted prisoners, but not yet sentenced Sentenced prisoners who have appealed or who are within the statutory time limit for doing so Sentenced prisoners (final sentence) Other cases Total 15,017 48,204 899* 64,120 Survey 2007: Spain 13,617 42,550 905** 57,072 Survey 2007: Spain (Catalonia) 2,134 7,261 9,395

* includes: mentally ill prisoners kept in detention for security reasons (619 detainees), week-end arrests (104 detainees), fine defaulters (95 detainees), and transits (81 detainees). ** includes: mentally ill prisoners kept in detention for security reasons (575 detainees), week-end arrests (54 detainees), fine defaulters (126 detainees), and transits (150 detainees).

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Table 4: Legal status of prison populations: percentages and rates

Survey 2006: Spain % of prisoners not serving a final sentence Rate of prisoners not serving a final sentence per 100,000 inhabitants % of untried prisoners (no court decision yet reached) Rate of untried prisoners (no court decision yet reached) per 100,000 inhabitants 24.8% 36.3 23.4% 34.2 Survey 2007: Spain 25.4% 32.1 23.9% 30.1 Survey 2007: Spain (Catalonia) 22.7% 29.6 22.7% 29.6

Table 5: Evolution of prison populations between 2000 and 2007

Year 2000 2001 2002 2003 2004 2005 2006 2007 Total number of prisoners (including pre-trial detainees) 45,044 46,962 50,994 55,244 59,224 61,269 64,120 57,0728 Prison population inhabitants 144 117 126.2 135.8 140.3 142.4 146.1 126.3 rate per 100,000

Figure 1
Total Number Pre-Trial Prisoners in Spain
Source: Council of Europe, SPACE (2009) 16000 13988 14000 11543 12000 10000 8000 6000 4000 2000 0 Year 1999 Year 2000 Year 2001 Year 2002 Year 2003 Year 2004 Year 2005 Year 2006 Year 2007 10781 10201 9084 12267 12688 15017 15751

The total prison population for Catalonia in 2007 is: 9,395. The prison population rate per 100.000: 130.3.

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Figure 2
Percentage Pre-Trial Prisoners in Spain
Source: Council of Europe, SPACE (2009) 24,0% 21,8% 21,5% 20,2% 20,0% 22,6% 21,8% 23,2% 23,8% 24,6% 23%

25,0%

15,0%

10,0%

5,0%

0,0% Year Year Year Year Year Year Year Year Year Aver. 1999 2000 2001 2002 2003 2004 2005 2006 2007 %

Figure 3
Pre-Trial Imprisonment Rate per 100,000 national population in Spain
Source: Council of Europe, SPACE (2009) 35 30 25 20 15 10 5 0 Year Year Year Year Year Year Year Year Year Aver. 1999 2000 2001 2002 2003 2004 2005 2006 2007 27 25,1 22,6 28,6 30,2 30,1 34,3 32,5 30,1 28,9

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2.2. Data from the International Centre for Prison Studies (ICPS, Kings College London) Table 6: Prison Brief for Spain9
Prison population total (including pre-trial detainees / remand prisoners) Prison population rate (per 100,000 of national population) Pre-trial detainees / remand prisoners (percentage of prison population) Female prisoners (percentage of prison population) Juveniles / minors / young prisoners (percentage of prison population) Foreign prisoners (percentage of prison population) Number of establishments / institutions Official capacity of prison system Occupancy level (based on official capacity) 76,174 At 29.05.2009 (national prison administration) 164 Based on an estimated national population of 46.43 million at end of May 2009 (from Eurostat figures) 22.5% (29.05.2009) 7.9% (29.05.2009) 0% (March 2009 - under 18; 2.4% under 21) 35.5% (March 2009) 77 (2007) 48,659 (2007 - Council of Europe Annual Penal Statistics) 136.3% (31.08.2007)

Table 7: World Pre-trial / Remand Imprisonment List

Prison population according to legal status Total number in pre-trial / remand imprisonment Date Percentage of total prison population Estimated national population (at date shown) Pre-trial / remand population rate (per 100,000 of national population) 15,956 26 October 2007 23.9% 45.07 million 35

Table 8: World Female Imprisonment List

Female prison population (number of women and 4,964 girls in penal institutions, including pre-trial detainees / remand prisoners) Date 21 April 2006 Female prisoners percentage of the total prison 7.9% population

International Center for Prison Studies 2009, London, Prison Brief for Spain. Available online at: http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_country.php?country=165.

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2.3. Data from the Spanish Ministry of Internal Affairs (Spanish National Statistic Institute: INE) and the European Sourcebook 2.3.1. Prison population according to legal status National statistics show that the total prison population in Spain has been increasing since 2002 (Table 9). Table 9: Prison population in Spain
2002 TOTAL 51,882 2003 56,096 2004 59,375 2005 61,054 2006 64,021

Source: Ministry of Internal Affairs /Copyright INE 2008

The total prison population registered by the INE consists of: a) the number of prisoners held in detention after being sentenced; b) the number of prisoners held in preventive/pre-trial detention; and c) a rest category consisting of prisoners held in weekend detention, prisoners in transit, and prisoners held in confinement as a substitute for not paying a fine or as a safety measure (Table 10). However, it should be noted that the number of prisoners registered by the INE does not include minors, i.e. persons younger than 18 years, held in detention. In 2000, a new legislation on juvenile offenders came into force. Since then, minors have not been included in the correctional statistics. The preventive detention of minors will be addressed in paragraph 2.3.4. Table 10: Prison population according to legal status
2002 Sentenced prisoners Prisoners detention in preventive 39,032 11,810 1,040 2003 42,744 12,276 1,076 2004 45,384 13,112 879 2005 46,426 13,720 908 2006 48,073 15,065 883

Rest category

Source: Ministry of Internal Affairs /Copyright INE 2008

The group of pre-trial detainees consists of prisoners retained without a final sentence. The question that may be posed is whether the increasing prison population of Spain can be attributed to an increasing number of pre-trial detainees. Table 10 shows that the number of prisoners held in pre-trial detention has been increasing since 2002. However, it should be noted that, although the number of pre-trial detainees has increased over the years, the use of pre-trial detention is not the main reason for the increasing prison population. Table 11 shows that the number of sentenced prisoners has increased more drastically compared to the number of pre-trial detainees and the number of prisoners of the rest category.

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Table 11: Increase and decrease of the prison population according to legal status
2002 Sentenced prisoners Prisoners in detention Rest category preventive 0 0 0 2003 + 3,712 + 466 + 36 2004 + 2,640 + 836 - 197 2005 + 1,042 + 608 - 29 2006 + 1,647 + 1,345 - 25

In conclusion, it can be stated that, despite the increasing number of pre-trial detainees, the increase of the Spanish prison population is mainly related to the rising number of sentenced prisoners. 2.3.2. Pre-trial detainees as a percentage of the prison population It is remarkable that, although the number of pre-trial detainees has been increasing since 2002, the number of pre-trial detainees as a percentage of the prison population remains stable (Figure 4). Figure 4: Pre-trial detainees as a percentage of the prison population
100.0% 80.0% 60.0% 40.0% 20.0% 0.0% 2002 2003 2004 2005 2006

Table 12 shows that the number of pre-trial detainees as a percentage of the prison population remains between 21.5 and 23.5%. However, it should be noted that since 2003, the percentage of pre-trial detainees has been increasing very slightly. The highest percentage, 23.5%, was reached in 2006.

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Table 12: Pre-trial detainees as a percentage of the prison population

2002 Prisoners in preventive detention Total prison population Percentage of pre-trial detainees 11,810 51,882 22.8% 2003 12,276 56,096 21.9% 2004 13,112 59,375 22.1% 2005 13,720 61,054 22.5% 2006 15,065 64,021 23.5%

Consequently, the question that may be posed is whether the percentage of pre-trial detainees will continue to increase. Statistical data on the prison population and the number of pre-trial detainees for 2007 and later have not yet been provided by the INE. According to the latest publication of the International Centre for Prison Studies (ICPS) on pre-trial detention around the world, the percentage of pre-trial detainees in Spain in 2007 has increased compared to 2006. The number of pre-trial detainees on 26 October 2007 amounted to 15,956 persons (Table 7). This is 23.9% of the total prison population.10 However, it should be noted that the statistical information provided by the ICPS only refers to the number of persons held in pre-trial detention on a given day, while the data provided by the INE refers to the number of persons submitted to pre-trial detention during the course of the year. It is for this reason that the information provided by the ICPS for the year 2007 cannot be seen as complementary to the information provided by the INE. Moreover, the question remains whether the term pre-trial detention is interpreted in the same way by both institutions. As already mentioned, according to the INE, pretrial detainees are prisoners retained without a final sentence. For the ICPS, prisoners held in pre-trial and other forms of remand imprisonment are those persons who, in connection with an alleged offence or offences, are deprived of their liberty following a judicial or other legal process but have not been definitively sentenced by a court for the offence(s).11 The legal process of these prisoners, in particular, will be in one of the stages mentioned hereinafter. The first stage is the investigation, i.e. the stage in which the detainee is interrogated to see if there is justification for bringing a court case against him/her. The second stage is the stage of awaiting trial, which is the stage after the investigation has ended and a decision has been made to bring a court case. The third stage, the trial stage, is the stage in which the trial actually takes place. The fourth stage is the stage of convicted but unsentenced, in which the accused has been convicted by the court, but not yet sentenced. The last stage is the stage of awaiting final sentence The accused who finds himself in this stage has been provisionally sentenced by the court, but is still waiting for the result of an appeal process.12 It is not clear whether the first stage, the investigation, also includes persons held in initial police custody. However, it should be noted that the information concerning Spain has been collected from the Ministry responsible for the prison administration, namely

10 11 12

Walmsley 2008, p. 5. Ibidem, p. 1. Ibidem, p. 1.

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the Ministry of Internal Affairs, which is the same source of data used by the INE. The data provided by the Ministry of Internal Affairs on pre-trial detention does not include persons held in initial custody. Therefore, it can be concluded that, in the case of Spain, the number of pre-trial detainees who find themselves in the investigation stage does not include prisoners held in initial (police) detention. Next to the ICPS, statistical information on pre-trial detainees in Spain can also be found in the European Sourcebook. The third (and last published) edition of the European Sourcebook contains information on the number of pre-trial detainees as a percentage of the total prison population in Spain over the years 2001 until 2003 (Tables 13 and 14) and of the pre-trial detention rate.13 The pre-trial detention rates will be addressed in paragraph 2.3.3. Table 13: Prison population: percentage of pre-trial detainees in the total stock
2000 Percentage of pretrial detainees 20 2001 22 2002 23 2003 22

Source: European Sourcebook 2006, 3rd edition

Table 14: Prison population: percentage of pre-trial detainees in the total flow
2000 Percentage of pretrial detainees 65 2001 66 2002 69 2003 -

Source: European Sourcebook 2006, 3rd edition, pp. 135

The term total stock refers to the number of persons who are actually held in prison, while the term total flow refers to the number of persons who are admitted to prison.14 It is for this reason that the total flow is higher than the total stock. A comparison of Tables 12 and 13 shows that the data provided by the European Sourcebook is consistent with the data provided by the INE, meaning that there are no differences between the two different sources as regards the percentage of pre-trial detainees over the years 2002 and 2003. With regard to the percentage of pre-trial detainees over the years 2004 until 2007, it should be noted that the fourth edition of the European Sourcebook, covering the years 2003-2007, is not yet available; it will be published in 2009.

13 14

Aebi et al. 2006, p. 5. Ibidem, p. 125.

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2.3.3. Pre-trial detention rates The pre-trial detention rate is the number of pre-trial detainees per 100,000 of the national population. Table 15 shows the pre-trial detention rates over the years 2002 until 2006. Table 15: Pre-trial detention rate: pre-trial detainees per 100,000 of the national population
2002 National population of Spain Prisoners in preventive detention Pre-trial detention rate 41,837,894 11,810 28 2003 42,717,064 12,276 29

2004 43,197,684 13,112 30

Source: INE

2005 44,108,530 13,720 31

2006 44,708,964 15,065 34

From Table 15, it can be deduced that, although the percentage of pre-trial detainees remained stable, the number of pre-trial detainees per 100,000 of the national population has been increasing since 2002. However, the pre-trial detention rate has not increased drastically over the past years (Figure 5). Figure 5: Development of the pre-trial detention rate

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It is most probable that the pre-trial detention rate in Spain will continue to increase. On 26 October 2007, the number of pre-trial detainees per 100,000 of the national population was 35. 15 However, it should be noted that the pre-trial detention rate in Spain, as is the case in the majority (namely 60%) of countries, is still below 40 pre-trial detainees per 100,000 of the national population.16 2.3.4. Pre-trial prison population according to different groups Within the category of prisoners held in pre-trial detention, it is also possible to make a distinction between different groups of pre-trial detainees. In this section, attention will be paid to the development of the following groups: juveniles, females and foreigners. a) Juveniles in pre-trial detention Juveniles are those who have reached the age of 14, but have yet not reached the age of 18. Persons who have yet not reached the age of 14 cannot be criminally prosecuted. As previously mentioned in paragraph 2.3.1, in 2000, a new special regulation on the criminal responsibility of minors (la Ley Orgnica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores) came into force. This new law also provides for the possibility of preventive detention of juveniles. However, since the enforcement of this new law, juveniles have not been included in correctional statistics registered by the Ministry of Internal Affairs. Table 16 presents the number of juveniles held in pretrial/preventive detention in 2000. Data regarding the number of juveniles held in pretrial/preventive detention in previous years are not available. Table 16: Juveniles in pre-trial detention
Male Age of 16-17 108 Female 5 Total 113

Source: Ministry of Internal Affairs (Anuario Estadstico del Ministerio del Interior 2000)

b) Females in pre-trial detention A second category of pre-trial detainees that can be distinguished is the female population. Table 17 shows that the number of female prisoners held in pre-trial detention has been increasing since 2002. Table 17: Pre-trial prison population according to gender
2002 Male prisoners Female prisoner Prisoners in preventive detention 10,824 986 11,810 2003 11,214 1,062 12,276 2004 11,963 1,149 13,112 2005 12,494 1,226 13,720 2006 13,567 1,498 15,065

Source: Ministry of Internal Affairs /Copyright INE 2008

15 16

Walmsley 2008, p. 5. Ibidem, p. 1.

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However, it should be noted that male prisoners are still dominant within the pre-trial prison population. Although the number of females held in pre-trial detention has been increasing, this category of pre-trial detainees forms less than 10% of the total pre-trial prison population (Table 18). Table 18: Females as a percentage of the pre-trial prison population
2002 Female prisoners Prisoners in preventive detention 986 11,810 2003 1,062 12,276 8.7% 2004 1,149 13,112 8.8% 2005 1,226 13,720 8.9% 2006 1,498 15,065 9.9%

Percentage of females in preventive detention 8.3%

Source: Ministry of Internal Affairs /Copyright INE 2008

c) Foreigners in pre-trial detention The foreign prison population of Spain is presented in table 19. Table 19: Foreign prison population
2000 8,990 2001 11,095 2002 13,413 2003 15,205 2004 17,302 2005 18,616 2006 20,643 2007 22,977
Source: Ministry of Internal Affairs (Anuario Estadstico del Ministerio del Interior 2007)

It is clear that the number of foreigners held in Spanish prisons has drastically increased over the years. However, it is not clear what percentage of this population consists of pretrial detainees, and whether the increased foreign prison population is also attributable to an increased number of foreigners held in pre-trial detention.

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2.4. The various sources compared Table 20

Source Date Total prison population Prison density per 100 places 143.2 106.8 Number of pretrial detainees Pre-trial detainees as a percentage of the total prison population 23.9% 25.4% 22.7% 22% 23.5% Total prison population rate per 100,000 148.1 126.3 130.3 137 146 (average 20052007) 143.2 Pre-trial detention rate per 100,000

ICPS SPACE I 2007: Spain SPACE I 2007: Catalonia European Sourcebook18 Eurostat19 National Statistics

26.10.200717 01.09.2007 31.12.2007 31.3.2003 2007 2006

66,761 57,072 9,395 67,100 64,021

15,956 14,522 2,134 15,065

35 32.1 29.6 34

Data in italics represents own calculations

Table 20 shows us that the total prison population in Spain (including Catalonia) is 66,761 on 26 October 2007 according to the ICPS. The SPACE I 2007 statistics draw a distinction between the Spanish and Catalan data: in Spain the total prison population is 57,072 on the 1st of September 2007 and in Catalonia it is 9,395 on the 1st of December 2007. When we look at the total prison population rate per 100,000 inhabitants, we can see that the ICPS provides us with a rate of 148.1 on 26 October 2007, which is calculated on the basis of an estimated national population of 45.07 million (Table 7). According to the SPACE 2007 survey, the total prison population rate is 126.3 for Spain and 130.3 for Catalonia. These rates are calculated on the basis of an estimated national population of 45.200.700 million for Spain and 7.210.500 million for Catalonia (Table 1). It seems that the total prison population rate, provided by the ICPS, rests on the total prison population in entire Spain (including Catalonia), but is calculated with the use of only the estimated national population for Spain (excluding Catalonia). The fact is that Spain (excluding Catalonia) has an estimated population of approximately 44.4 million

17

18 19

Instead of using the 2009 ICPS data, we preferred to use the 2007 numbers because this data allows us to compare the ICPS statistics with the SPACE I figures from 2007. The 2009 ICPS data has been presented in Table 6. Aebi et al. 2006. http://epp.eurostat.ec.europa.eu/portal/page/portal/crime/documents/prison.pdf.

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persons on 1 January 2007, while Catalonia has on the same date roughly 7 million inhabitants.20 Table 21
Source Date Pre-Trial detention (numbers) between Pre-trial detention (percentage) between Origin of foreigners in pre-trial detention (percentage) EU nationals Thirdcountry nationals -

Nationals ICPS SPACE I 2007: Spain SPACE I 2007: Catalonia European Sourcebook Eurostat National statistics 26.10.2007 01.09.2007 31.12.2007 31.3.2003 2007 2006 7,371 791 -

Foreigners 7,151 1,343 -

Nationals 50.8% 37.1% -

Foreigners 49.2% 62.9% -

Data in italics represents own calculations

Table 22
Source Date Females in pre-trial detention (numbers) Females as a percentage of the total number of pre-trial detainees 9.9% Juveniles in pre-trial detention (numbers) Juveniles as a percentage of the total number of pre-trial detainees -

ICPS SPACE I 2007: Spain SPACE I 2007: Catalonia European Sourcebook Eurostat National Statistics

26.10.2007 01.09.2007 31.12.2007 31.3.2003 2007 2006

1,498

20

Official statistics for Catalonia (2009) Total population as of 1st January. Available online at: www.idescat.cat/economia/inec?tc=3&id=8701&lang=en.

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3. Legal basis: scope and notion of pre-trial detention 3.1 Definition of pre-trial detention Prisin provisional, the Spanish term for pre-trial detention (in the broad sense), is not defined in the LECrim. However, a definition of this term can be deduced from Art. 5 of the Spanish General Prison Act (LOGP, Ley Orgnica General Penitenciaria), which states that the main purpose of the Spanish legal system of preventive detention is to keep the accused at the disposal of the judicial authorities. From this article, it is possible to deduce that pre-trial detention under Spanish law is a precautionary measure with the purpose of keeping the accused at the disposal of the judicial authorities. This definition of pre-trial detention corresponds with the definitions that can be found in literature. In literature, pre-trial detention is often defined as a precautionary measure that implies the deprivation of liberty of the accused by a judicial authority during the course of the criminal process, in order to guarantee effective enforcement of criminal law.21 The legal basis for pre-trial detention can be found in Art. 17 of the Spanish Constitution. In essence, paragraph 1 of this article explicitly states that every person has a right to freedom and security and that no one may be deprived of his or her freedom except in accordance with the provisions of this article and in the cases and in the manner provided by the law. An exception to the right of personal freedom, in the form of pre-trial detention, is provided for by the LECrim. 3.2 Initial (police) detention versus detention following a judicial decision In general, a distinction can be drawn between detention following initial (police) arrest (Art. 5(1)(c) ECHR) on the one hand, and detention following a judicial decision that a person should remain in custody (Art. 5(3 and 4) ECHR) on the other. Detention following initial police arrest, detencin, is regulated in Art. 489 to 501 of the LECrim. First of all, Art. 489 of the LECrim explicitly states that a person a Spanish national or a foreigner may be arrested only in situations prescribed by law. Art. 490 of the LECrim regulates in which situations a civilian may arrest a person. If a situation as prescribed in Art. 490 of the LECrim is not present, a person may be arrested only by a competent authority or a police officer, once a situation as prescribed in Art. 492 of the LECrim has taken place. From Art. 490 and 492, it can be deduced that the decision on initial arrest of a person can be taken by an authority or a police officer, and in the exceptional circumstances mentioned in Art. 490 of the LECrim, also by a civilian. According to Art. 17(2) of the Spanish Constitution, preventive arrest may not last longer than the time strictly necessary in order to carry out the investigations to ascertain the facts. The competent authority or the police officer who has arrested a person should, in any case, place this person at the disposal of the judicial authority or release him, within 72 hours after the arrest (Art. 17(2) Spanish Constitution and Art. 520 LECrim).22

21 22

See. e.g: Martnez Pardo 2001, p. 2 and Beses Miguel 2002, p. 7. A civilian who has arrested a person should immediately hand this person over to the police or the investigating judge.

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Art. 17(2) of the Constitution must be understood in such a way that, even if the maximum time limit of 72 hours has not yet been exceeded, the constitutional right to personal freedom (safeguarded in Art. 17(1)) will still be violated, should the initial detention last longer than the time required in order to carry out the necessary investigations aimed at establishing the facts. The competent judge (or court) to whom the arrested person has been handed over, should decide whether initial detention will be elevated to pre-trial detention (Art. 497 LECrim). This decision should be made within 72 hours, starting from the moment the arrested person has been handed over (Art. 497 LECrim). From the above-mentioned provisions, it can be deduced that detention following initial arrest has a maximum length of 144 hours, consisting of 72 hours of detention before the suspect is handed over to a judge, plus 72 hours of detention before the judge makes the decision to elevate the initial detention to pre-trial detention or to release the suspect. In conclusion, it can be stated that the LECrim explicitly distinguishes between detention following initial arrest (detencin) and detention following a judicial decision (prisin provisional). Under current Spanish law, the initial period of (police) detention does not fall under the notion of pre-trial detention. According to the LECrim, pre-trial detention, regulated in Art. 502 to 527 of the LECrim, only includes preventive detention following a judicial decision. 3.3 Start and end of pre-trial detention Pre-trial detention starts once the judge has made the decision to elevate the initial (police) detention to pre-trial detention (Art. 497 LECrim). Therefore, Art. 502 of the LECrim states that pre-trial detention may be decreed by an examining judge or magistrate, a judge of the preliminary proceedings, and a judge or criminal court competent to decide on the case. 23 According to Art. 504 of the LECrim, pre-trial detention may not last longer than the period necessary to achieve one of the goals listed in Art. 503 of the LECrim. Consequently, pre-trial detention shall end when the grounds for detention cease to exist, even if the maximum time limits for detention have not yet been exceeded (Art. 528 and 504(1) LECrim). However, pre-trial detention shall end if the maximum length of detention determined in Art. 504 of the LECrim has been exceeded (Art. 503 LECrim and 17(4) of the Spanish Constitution). The maximum length of pre-trial detention will be discussed in paragraph 6. Finally, pre-trial detention shall end when it has been proven that the accused is not guilty of the criminal charge(s) against him/her. To this end, Art. 528 of the LECrim states that, if during the course of process, notwithstanding its stage, it has been proven that the accused is innocent, he/she shall be released immediately.

23

The examining judge or magistrate is the judge (or magistrate) competent to direct the criminal investigation in a particular case. According to Art. 14(2) of the LECrim, the competent judge (or magistrate) to direct the criminal investigation is the judge who has jurisdiction over the place where the criminal offence was committed (forum delicti commissi). In case of urgency, a judge who has no jurisdiction over the particular case (the so-called judge of the preliminary proceedings) may apply one or more preliminary measures (primeras diligencias) pursuant to Art. 13 of the LECrim, until the competent judge has taken over the case. Such measures can also include preventive detention.

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3.4 Principles underlying pre-trial detention The Spanish legal system of preventive detention is based on a number of fundamental legal principles, namely: the presumption of innocence, the principle of last resort, and the principle of proportionality. These principles will be discussed hereinafter. a) Presumption of innocence Art. 24(2) of the Spanish Constitution explicitly states that every person has the right to (...) be presumed innocent. Presumption of innocence means that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law (Art. 6(2) ECHR). According to Art. 5 of LOGP, presumption of innocence is one of the leading principles underlying the Spanish legal system of preventive detention. The system of preventive detention refers to both the stage of initial police detention and the stage of pre-trial detention (Art. 8 LOGP). b) Principle of last resort The principle of last resort is laid down in Art. 502(2) of the LECrim. This provision explicitly states that pre-trial detention may not be imposed if other measures can be taken that are less far-reaching but equally effective in order to achieve the objectives pursued by pre-trial detention. Pre-trial detention is thus a last resort: a precautionary measure that may be applied only if there are no other measures available to achieve one of the goals listed in Art. 503 of the LECrim. c) Principle of proportionality The principle of proportionality is reflected in the fact that the goal(s) pursued by pre-trial detention may not be disproportional to the particular circumstances of the case, including the consequences that detention may have for the accused. Therefore, Art. 502(3) of the LECrim prescribes that, when deciding on whether or not pre-trial detention should be decreed, the judge must consider the particular circumstances of the case, the type of sentence that may be imposed, and the consequences that detention may have for the accused regarding his personal circumstances. Moreover, once pre-trial detention has been decreed, it should be carried out in a way that is the least damaging to the prisoner, his reputation and/or property (Art. 520(1) LECrim). In order to restrict the damage that may be caused to the prisoner, Art. 528 of the LECrim states that all authorities involved in the process have the obligation to ensure that pre-trial detention shall last as short as possible. 3.5 Procedural rights of the accused First of all, an accused held in pre-trial detention is entitled to the procedural rights listed in Art. 520 of the LECrim, namely: a. the right to be informed promptly and in a way that is understandable of the charges against him, and of the reasons for being deprived of his liberty (Art. 520(2) LECrim); b. the right to remain silent (Art. 520(2)(a) LECrim). The right to remain silent means that the accused is not obliged to give a statement or to answer the questions posed to

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him. He is also entitled to declare that he shall give a statement only in the presence of a judge; c. the right not to incriminate himself or to confess guilt (Art. 520(2)(b) LECrim); d. the right to legal assistance by a lawyer of his own choosing or, if he has not chosen one, to be assigned a counsel (Art. 520(2)(c) LECrim). The assisting lawyer should ensure that his client is informed of his procedural rights listed in Art. 520(2) of the LECrim, as well as of his right to medical examination laid down in Art. 520(2)(f) of the LECrim (Art. 502(6)(a) LECrim). Moreover, the right to legal assistance entails that the accused may request his lawyer to be present at interrogations by the police or judicial authorities, and to intervene with all investigations concerning his identification (Art. 502(2)(c) LECrim). Moreover, the right to legal assistance includes the right to consult ones lawyer in private (Art. 502(6)(c) LECrim); e. the right to inform his family or other persons of his detention and of the place were he is being held. In case the accused is a juvenile or a disabled person, these circumstances shall be notified to his parents or guardians. Moreover, if the accused is a foreigner, he also has the right to contact his national embassy or consulate (Art. 520(2)(d) LECrim); f. the right to free assistance of an interpreter, if the accused is a foreigner who does not understand or speak Spanish (Art. 520(2)(e) LECrim); g. the right to medical examination by a forensic doctor (Art. 520(2)(f) LECrim). As regards the procedural rights mentioned under b, c, d and e, it should be noted that the accused is not only entitled to these rights, but also to the right to be informed promptly and in an understandable manner of his entitlement to these rights (Art. 520 LECrim). Next to the procedural rights listed above, pre-trial detainees also have the right to appeal the decision to impose pre-trial detention. The right to appeal is attributed to the accused at two different moments during the process. The first moment is when initial detention is elevated to pre-trial detention. The second moment is when pre-trial detention is prolonged (Art. 507 LECrim). The right to appeal will be further discussed in paragraph 5. In addition, it should be noted that a person who is held in pre-trial detention may, on the basis of a judicial decision, be subjected to so-called prisin provisional incomunicada. This is a more severe type of deprivation of liberty compared to regular pre-trial detention (prisin provisional comunicada). According to Art. 527 of the LECrim, prisoners placed in prisin provisional incomunicada do not enjoy the rights that ordinary pre-trial detainees are entitled to, e.g. the right to receive visits (Art. 523 LECrim) and the right to correspond or communicate with the outside world (Art. 524 LECrim). These rights will be further discussed in paragraph 7. Prisoners held in incommunicado detention continue to enjoy the rights guaranteed by Art. 520 of the LECrim. However, Art. 527 of the LECrim imposes some restrictions: - A prisoner held in incommunicado detention is not entitled to choose his own lawyer; his lawyer shall in all cases be officially appointed. This restriction relates to Art. 520(2)(c); - A prisoner held in incommunicado detention is not entitled to the communication provided for in Art. 520(2)(d), i.e. to have the fact of his detention and the place in which he is being held made known to a relative or another person of his choice at any given time;

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- A prisoner held in incommunicado detention is not entitled to the interview with his lawyer provided for in Art. 520(6)(c), i.e. an interview in private upon completion of proceedings in which the lawyer has taken part. 4. Grounds for pre-trial detention 4.1 Grounds for detention The mere fact that a serious offence has been committed and that there is a reasonable suspicion against the accused is not enough to decree pre-trial detention. In addition, pretrial detention should always satisfy a goal, i.e. there should be a ground for pre-trial detention. The grounds for pre-trial detention are listed in Art. 503(1)(3) of the LECrim. First of all, pre-trial detention may be decreed in order to guarantee the presence of the accused at trial, if it is deemed that the accused presents a flight risk (Art. 503(1)(3)(a) LECrim). Whether such a risk is present, should be determined on the basis of: a) the nature of the committed offence, together with b) the severity of the sentence that may be imposed on the offender, c) the financial, familial and work-related circumstances of the accused, and d) the imminence of the court hearing, especially when it is presumable that the speedy proceeding regulated in Art. 795 to 803 of the LECrim will be initiated. There is one exceptional situation in which pre-trial detention can be decreed in order to prevent the accused from fleeing, even if the committed offence does not belong to the category of offences mentioned in Art. 503(1)(1) of the LECrim. This exceptional situation is regulated in Art. 503(1)(3)(a) of the LECrim, which states that pre-trial detention can be ordered if at least two warrants have been issued by a judicial authority for the search and summon of the accused person. Next to flight risk, pre-trial detention may also be decreed in order to avoid alteration, destruction or hiding of evidence which may be relevant to the case (Art. 503(1)(3)(b) LECrim). Pre-trial detention on this ground can be decreed only if there is a well-founded and concrete risk that one of the actions mentioned will be performed. That such a risk is present can, however, not be deduced from the mere fact that the accused person has actually exercised his right to defend himself or has failed to cooperate in the investigation process. In order to determine whether there is a danger that the investigation will be disrupted, it should be taken into account whether the accused by himself or through another person can access relevant evidence, and/or can influence (potential) witnesses, experts or other accused persons. A third ground for pre-trial detention is to prevent the accused from taking action against the (legal) interests of the victim; especially, if the victim is one of the persons referred to in Art. 173(2) of the Criminal Code (Art. 503(1)(3)(c) LECrim). If pre-trial detention is decreed on this ground, it is not required that the committed offence falls under one of the categories listed in Art. 503(1)(1) of the LECrim. Consequently, pre-trial detention in order to protect the interests of a victim may also be decreed if a less serious offence than those mentioned in Art. 503(1)(1) has been committed. The last ground for pre-trial detention is regulated in Art. 503(2) of the LECrim. According to this article, pre-trial detention may be decreed in order to avoid the risk that the accused will commit another offence. Whether this risk is present should be

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assessed by the particular circumstances of the case, such as the gravity of the offence that may be committed by the accused. Pre-trial detention on this ground is allowed only if the committed offence is an offence involving mens rea. Moreover, if from the criminal record of the accused, and/or from information provided by the police, and/or from the particular facts and circumstances of the case, it can be reasonably deduced that the accused has been cooperating with one or more persons who have organised themselves as a group for the purpose of committing criminal offences or performing criminal activities on a regular basis, it is not required that the committed offence falls under one of the categories listed in Art. 503(1)(1) of the LECrim. 4.2 Serious offences Not all offences are of such a serious nature that they may justify pre-trial detention. Art. 503(1)(1) of the LECrim makes it clear that pre-trial detention is justifiable only if the accused has committed an offence punishable by a maximum prison sentence of two years or more. If the maximum length of the custodial sentence that may be imposed is less than two years, pre-trial detention may only be decreed if the accused has a criminal record that has not yet been cancelled and will not be cancelled soon, and the criminal record was obtained for commissioning an offence involving mens rea. In addition, it should be noted that there are some exceptions to the rules of Art. 503(1)(1) of the LECrim. These exceptions are related to the grounds for pre-trial detention and have already been addressed above. 4.3 Reasonable suspicion In addition to the prerequisite of a serious offence, pre-trial detention may be decreed only if there are serious reasons to believe that the person concerned is criminally liable for the offence. This prerequisite is explicitly mentioned in Art. 503(1)(2) of the LECrim, and means (according to domestic case-law) that, based on the circumstances, one can rationally suppose that the person concerned is liable for the offence committed. 5. Grounds for review of pre-trial detention 5.1 Review procedure of Art. 539 Art. 539 states that a decision to impose pre-trial detention may be revised during the whole course of the procedure (Art. 539 LECrim). As a consequence, pre-trial detainees may be released whenever deemed appropriate. The decision to impose pre-trial detention may be revised by a judge or a court of first instance (Art. 539 LECrim). In addition, it should be noted that the judge or court is not entitled to decree pre-trial detention of free persons or to replace release on bail (libertad provisional) with pretrial detention without a petition of the public prosecutor or another prosecuting party. Such a petition shall be dealt with in a court hearing as prescribed in Art. 505 of the LECrim (Art. 539 LECrim). A petition of the public prosecutor is not required if the

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judge or court wants to release the pre-trial detainee. Such a decision can be made at any time and on the judges or courts own initiative (Art. 539 LECrim). 5.2 Right of appeal (Art. 507 and 766 LECrim) A decision to decree, dismiss or prolong pre-trial detention can be appealed within five days after the notification of the decision (Art. 507 and 766(3) LECrim). According to Art. 766(3) of the LECrim, the appeal must be lodged in writing and the grounds for appeal should be mentioned explicitly. Note that an appeal may be based on any reason. The competent authority to whom an appeal should be addressed is the Provincial Court (Art. 220 and 766 LECrim). Provincial Courts are entitled to hear appeals against judgments issued by Courts of Enquiry and Criminal Courts in the province concerned.24 Once the appeal has been allowed, a decision should be made within a maximum of thirty days (Art. 507 LECrim). Note that an appeal will not suspend the execution of the decision to apply pre-trial detention (or not), unless prescribed by law (Art. 518 and 766(1) LECrim). A prisoner who has lodged an appeal against the decision to impose pretrial detention has the right to legal assistance by a lawyer of his own choosing or, if he has not chosen one, to be assigned a counsel (Art. 767 and 768 LECrim). 6. Length of pre-trial detention 6.1 Legal provisions The maximum length of pre-trial detention that may be imposed varies depending on the type of pre-trial detention that has been decreed. The LECrim draws a distinction between three different types of pre-trial detention: prisin provisional comunicada, prisin atenuada and prisin provisional incomunicada. a) Prisin provisional comunicada Prisin provisional comunicada is the regular type of pre-trial detention; it may be imposed when there is no reason to impose one of the types of pre-trial detention that will be discussed below. The length of regular pre-trial detention is laid down in Art. 504 of the LECrim. According to this article, the duration of pre-trial detention may vary, depending on the type of offence that has been committed and the grounds on which detention has been decreed. If pre-trial detention has been decreed in order to guarantee the presence of the accused at trial (if it is deemed that the accused presents a flight risk) (Art. 503(1)(3)(a) LECrim), in order to avoid the accused taking action against the (legal) interests of the victim (Art. 503(1)(3)(c) LECrim), or in order to avoid the risk that the accused will commit more criminal acts (Art. 503(2) LECrim), detention may not last longer than: 1. one year, if the sentence that may be imposed involves deprivation of liberty for a maximum of three years. The period of one year may be extended by another six

24

See Art. 82(1)(2) of the Ley Orgnica 6/1985, de 1 de julio, del Poder Judicial (Organic Law on the Judiciary).

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months, if it is unlikely that the case can be brought to trial within one year (Art. 504(2) LECrim); 2. two years, if the sentence that may be imposed involves deprivation of liberty for more than three years. The period of two years may be extended by another two years, if it is unlikely that the case can be brought to trial within two years (Art. 504(2) LECrim). Furthermore, it should be mentioned that during the appeal phase after a conviction, pre-trial detention can be extended up to a maximum of half of the sentence that was effectively imposed, as long as such an extension is necessary (Art. 504(2) LECrim). If pretrial detention has been decreed in order to avoid alteration, destruction or hiding of evidence (Art. 503(1)(3)(b) LECrim), detention may not last longer than: 3. six months, regardless of the seriousness of the offence that has been committed. Contrary to the above-mentioned situations, pre-trial detention that has been decreed on this ground may not be prolonged (Art. 504(3) LECrim). In addition, it should be noted that when determining whether the maximum time limits mentioned above have been reached, the time spent in initial police custody and/or in previous pre-trial detention for the same cause must also be considered (Art. 504(5) LECrim). Once the maximum time limit for detention has been reached, the person concerned must be released immediately. Note that a person who has been released because of expiration of the maximum time limit for his/her detention can, once again, be placed in pre-trial detention if he/she, without a justifiable reason, fails to appear before the judge or the court when ordered to do so (Art. 504(4) LECrim). b) Prisin atenuada Prisin atenuada is regulated in Art. 508 of the LECrim. It is a type of pre-trial detention comparable to house arrest. Art. 508(1) of the LECrim prescribes that the judge or court may decree that pre-trial detention shall be carried out under surveillance at the domicile of the accused, if imprisonment will be of great danger to the accused, because of the illness or disease he/she is suffering from. However, the judge or court ordering prisin atenuada may grant the accused permission to leave his/her domicile for necessary medical treatment. Likewise, Art. 508(2) of the LECrim prescribes that pretrial detention may be carried out at a drug rehabilitation centre, if the accused is a drug addict undergoing a rehabilitation programme and detention in prison would endanger the outcome of this programme. Art. 508 shows that the medical condition of the accused should be taken into account when executing pre-trial detention. However, prisin atenuada is not shorter than regular pre-trial detention: The length of pre-trial detention determined in Art. 504 of the LECrim is also applicable to prisin atenuada. c) Prisin provisional incomunicada Current Spanish law allows for a maximum of thirteen days of unnotified pre-trial detention (prisin provisional incomunicada). Note that this maximum includes both the stage of initial detention and the stage of pre-trial detention. Initially, the incommunicado status may not exceed a maximum of five days (Art. 509(2) LECrim). However, if the offence has been committed by a terrorist, a rebel, or a person who is involved in or connected to arms trafficking (see Art. 384 LECrim), detention may be extended by another five days (Art. 509(2) LECrim). Extending detention by another five

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days is also allowed if the committed offence was a planned and organised action performed by two or more individuals (Art. 509(2) LECrim). Art. 509(2) of the LECrim also allows the judge to prolong the incommunicado status by three more days, even if the detention was already notified. This provision has apparently been designed to allow judges to re-impose the incommunicado status at a later stage during the investigation. A literal reading of Art. 509, however, suggests that, under current law, it is permissible to impose the three additional days immediately.25 Once the maximum length of the incommunicado status has been exceeded and the prisoner has not yet been released, prisin incomunicada should be replaced with the regular prisin comunicada. 7. Other relevant aspects 7.1 Pre-trial detention and outcome of the trial 7.1.1 Deduction from the sentence Art. 58 and 59 of the Spanish Criminal Code (Cdigo Penal) both regulate the possibilities to deduct pre-trial detention from the actual sentence. In particular, Art. 58(1) prescribes that the sentencing judge or court shall deduct the total period of pretrial detention suffered by the defendant from the sentence (or sentences) effectively imposed in the same proceeding. Moreover, Art. 58(2) prescribes that the penitentiary judge (Juez de Vigilancia Penitenciaria) may, on his own initiative or at the request of the convicted person, also deduct pre-trial detention suffered in a different proceeding than the proceeding leading to the imposition of the sentence.26 In such cases, deduction is only possible if the pre-trial detention suffered has not already been deducted from a sentence imposed in another proceeding, and only after hearing the public prosecutor. Furthermore, it should be noted that, according to Art. 58(3), pre-trial detention suffered in a different proceeding can only be deducted if the measure was applied prior to the commission of the offences leading to the imposition of the sentence. According to Art. 59 of the Criminal Code, pre-trial detention can also be deducted if the judge imposes a non-custodial sentence or a fine. In such cases, the judge or court shall order that (the part of) the sentence from which pre-trial is deducted, will be considered already executed. The LECrim does not contain any special provision as regards the possibilities to deduct pre-trial detention suffered abroad. Such a provision can nonetheless be found in the Act of 14 March 2003, implementing the Framework Decision on the European Arrest Warrant. According to Art. 5(4) of this Act, the Spanish judicial authorities who
25 26

Human Rights Watch 2005, p. 27. In Spain, the execution of sanctions is the competence of the judiciary authority. In the jurisdictional hierarchy, there is a specific judge, namely the penitentiary judge (Juez de Vigilancia Penitenciaria), who directs and supervises the execution of sanctions. His functions are to control the concrete duration of the prison term, to resolve issues pertaining to parole and other benefits, to control the suspension of the sentence for legal reasons, to pass resolutions concerning the specific basis for fulfilling the sanction etc.

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have issued a European warrant shall deduct all periods of detention arising from the execution of a European warrant from the total period of detention to be served in Spain as a result of a custodial sentence or detention order being passed. 7.1.2 Compensation for unjust detention The right to compensation for unjustifiable or unlawful pre-trial detention is regulated in Art. 121 of the Spanish Constitution and Art. 294(1) of the Organic Law on the Judiciary (Ley Orgnica 6/1985, de 1 de julio, del Poder Judicial). Art. 121 of the Constitution explicitly states that damages caused by judicial errors as well as those arising from irregularities in the administration of justice, shall be subject to compensation by the State, in accordance with the law. The right to compensation for damages caused by judicial errors or irregularities in the administration of justice is also guaranteed in Art. 292 of the Organic Law on the Judiciary. However, Art. 295 of the Organic law explicitly states that no right to compensation exists if the judicial errors or the irregularities in the administration of justice are caused by negligence or the former suspects own fault. Furthermore, Art. 294(1) of the Organic Law on the Judiciary prescribes that a person who has been subject to pre-trial detention is entitled to compensation for the harm caused to him/her due to his/her unnecessary stay in prison, if he/she is found not guilty of the offence, or if the proceedings against him/her are definitively dropped. In addition, it should be noted that compensation is only possible if the person concerned is acquitted or if the proceedings against him/her are definitively dropped on the ground that there is no case to answer. According to existing case-law of the Supreme Court, this means that it must be proved that the person concerned is not liable to the committed offence or that the act to which he/she is liable is not a criminal offence.27 As a consequence, the right to compensation according to Art. 294(1) does not apply if the person concerned is acquitted due to lack of evidence. If such is the case, the person concerned should ground his/her claim on Art. 121 of the Constitution and Art. 292 of the Organic Law, and argue that his/her detention was based on a judicial error or on irregularities in the administration of justice. Damages caused by unlawful or unjustifiable pre-trial detention may include both material and immaterial damage. The amount of compensation to which a person is entitled depends on the period of time he/she has spent in pre-trial detention, and on the consequences his/her detention has had for his/her personal and family situation (Art. 294(2)). According to Art. 293(2) and 294(3) of the Organic Law, a request for compensation should be filed within one year from the moment the judgment becomes executable.

27

See Decision no. 98/1992 of 22 July 1992 of the Constitutional Court (Sentencia del Tribunal Constitucional 92/1992, de 22 de Julio).

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7.1.3 Alternatives to pre-trial detention The LECrim provides for some precautionary measures that may be used as alternatives to pre-trial detention. Release on bail (libertad provisional), for instance, is one of these measures. An accused who has been bailed will preserve his/her liberty during the course of the criminal proceedings. Note that release on bail is always subject to the performance of certain accessory duties. The duty to appear before the court on specific days and as often as required by the judge or court shall, in any case, be imposed on an accused who has been released on bail (Art. 530 LECrim). Two types of bail can be distinguished: libertad provisional sin fianza and libertad provisional con fianza. Both types are regulated in Art. 529 to 544 of the LECrim. Libertad provisional con fianza is money bail. However, the imposition of surety as one of the conditions for release on bail is not mandatory, but rather at the discretion of the judge (Art. 529 LECrim). In the case of libertad provisional sin fianza, no surety is demanded by the judge. Next to bail, Art. 544bis of the LECrim also provides for the possibility to impose special interim measures on the accused. Such measures can be imposed only if the committed offence is one of the offences referred to in Art. 57 of the LECrim. In particular, the judge may order that the accused is prohibited to go to a certain place, district, town, province, island or autonomous region, or to reside there. Moreover, the judge may also issue an order prohibiting the accused from approaching or communicating with certain persons. In case of domestic violence, Art. 544ter of the LECrim also provides for the possibility to apply a so-called protection order for the victims of domestic violence. Other precautionary measures that may be applied by the judge in case of domestic violence can be found in Organic Law no. 1/2004 on the Integrated Protection Measures against Domestic Violence. In this Organic Law, inter alia, the following measures are laid down: mandatory expulsion from the family home, prohibition to approach the protected person, withdrawal of parental rights, guardianship or custody over children, suspension of access by the accused to his/her children, and suspension of the right to possess, bear or use arms. Finally, Art. 529bis and 764(4) of the LECrim provide for the possibility to suspend the accuseds driving licence, in case the committed offence is connected to driving a motor vehicle. 7.2 Execution of pre-trial detention; human rights aspects 7.2.1 Human rights provisions in the LECrim When executing pre-trial detention, there are a number of human rights aspects that should be taken into account. Pre-trial detention may not turn into inhuman and degrading treatment of the accused. It is therefore that the LECrim explicitly mentions the rights of persons held in pre-trial detention. These rights are: - The right to be held separately. Art. 521 of the LECrim states that all prisoners shall, if possible, be held separately. If separation is not possible, the examining judge or court should ensure that men and women are not held together, and moreover, that

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juveniles and first offenders are separated from adults and repeat offenders respectively. People accused of the same facts may neither be held together; - The right to comforts and possessions. Art. 522 of the LECrim states that a prisoner may, at his expense, obtain comforts or possessions that are compatible with the aim of his detention, and with the regime of the institution in which he is being held. Articles may be obtained as long as these do not compromise the security of the prisoner or the confidentiality of the investigation; - The right to be visited. The right to have visits is regulated in Art. 523 of the LECrim. A prisoner has the right to be visited by a priest of his religion, a doctor, a person with whom he has a common interest, his relatives, or by persons who can give him advice. Such visits should be allowed as long as the conditions prescribed in the prison regulations are met, and the outcome and the confidentiality of the case are not compromised. However, it should be noted that a prisoner may never be deprived from being visited by his lawyer; - The right to correspond and to communicate with the outside world. Art. 524 of the LECrim prescribes that the examining judge shall determine which means of correspondence and communication may be used by the prisoner. Correspondence and communication with the outside world are allowed as long as these do not compromise the outcome of the investigation. However, under no circumstances may a prisoner be deprived of the right to write to a civil servant of the judicial system; - The right not to be subjected to extraordinary security measures. A prisoner held in pre-trial detention may not be subjected to any extraordinary security measures, unless he has been disobedient, violent or rebellious, or has tried to, or prepared to, escape from his place of detention. Security measures can be imposed only temporarily, and may not last longer than strictly necessary (Art. 525 LECrim). Note that the rights listed in Art. 521 to 525 of the LECrim are attributed to prisoners held in prisin provisional comunicada, the regular type of pre-trial detention. Art. 527 of the LECrim explicitly states that prisoners held in prisin provisional incomunicada are not entitled to these rights, with the exception of the procedural rights listed in Art. 520 of the LECrim (see paragraph 3.5). In order to ensure that these rights are respected, Art. 526 of the LECrim prescribes that the examining judge shall visit the local prisons once a week, without determining a day and without prior warning. During his visit, the examining judge shall be accompanied by a public prosecutor. The aim of these visits is to establish under which conditions prisoners are being detained, and to adopt within the competence of the examining judge/public prosecutor the necessary measures to end any violations observed. 7.2.2 Violation of human rights in pre-trial detention In 2007, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) paid its last visit to the places of detention in Spain. The report on this visit has not yet been published. The CPTs previous visits to Spain were in 2005, 2003, 2001, 1998, 1994 and 1991. This section deals with the findings on the treatment of prisoners held in pre-trial detention gathered during the 2005 visit.

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During the previous visits to Spain, the CPT paid much attention to the situation of persons deprived of their liberty in connection with terrorist offences. However, during the 2005 visit, the CPT focused on the efficacy of safeguards against ill-treatment of persons detained in connection with ordinary criminal offences. In brief, it can be said that the CPT is concerned about the way prisoners held in custody are protected against ill-treatment by law enforcement officials. First of all, the CPT noted that it is most likely that prisoners at or following the moment of their detention are not informed of their rights properly, in particular of their right to legal assistance by a lawyer of their own choice, and of their right to be assigned a counsel free of charge if they cannot afford a lawyer. Therefore, prisoners may experience a lengthy delay before seeing a lawyer for the first time.28 It is common practice for detained persons to be granted access to a lawyer only at the moment their formal statement is taken by law enforcement officials. Such access is, in general, limited to the lawyers passive presence while the detained persons statement is taken and signed. 29 Also, there is no guarantee that suspects are brought before an investigating judge in person. Moreover, complaints lodged by prisoners held in custody about ill-treatment by law enforcement officials seem to be investigated in an unsatisfactory way. The CPT concluded that, although injuries to persons held in custody as a result of ill-treatment may be recorded by the prisons admissions or medical staff, an effective investigation does not necessarily follow. Such may also be the case even if prima facie evidence of ill-treatment is submitted in writing to an investigating judge.30 In short, the information gathered by the Committee concerning information on rights, access to a lawyer and the role of judges, indicate that the safeguards currently in place for persons deprived of their liberty by law enforcement agencies do not adequately protect them from ill-treatment. Consequently, it is imperative that the Spanish authorities review the existing framework and operation of safeguards against illtreatment for persons deprived of their liberty, from the very outset and up to, and including, the crucial stage of judicial oversight.31 8. Special groups 8.1 Juveniles As has been mentioned previously, Spain has a special regulation on the criminal responsibility of minors: the Ley Orgnica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores. Art. 1 of this Organic Law defines minors as persons older than 14 years of age but younger than 18 years. Persons under the age of 14 cannot be prosecuted for committing a criminal offence. In particular, the Organic Law also regulates the possibility of preventive detention of minors. The relevant provision, Art. 28, reads as follows: The public prosecutor may,

28 29 30 31

CPT 2007, p. 22. Ibidem, p. 13. Ibidem, p. 22. Ibidem, p. 22.

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when there are reasonable indications of the commission of a crime or there is a risk of obstruction of the investigation process due to actions taken by the minor, request the Juvenile Court Judge at any time, to adopt precautionary measures regarding the custody or defence of the minor. One of the measures that may be adopted is placement in an institution. Whether this precautionary measure shall be adopted depends on the gravity of the case, its consequences and the social order disturbance that has been caused. The personal and social circumstances of the minor should, however, always been taken into consideration by the judge (Art. 28(2)). Furthermore, it should be noted that placement in an institution, once adopted as a precautionary measure, may not last longer than six months (Art. 28(3)). However, at the request of the public prosecutor, this period may be extended by another three months. 8.2 Women In Spain, there is no special regulation for pre-trial detention of women. Nor does the LECrim provide for special provisions. Nonetheless, special provisions as regards the execution of pre-trial detention in the case of females can be found in the Spanish General Prison Act (Ley Orgnica General Penitenciaria) and the Royal Decree on the Adoption of the Prison Regulations (Real Decreto 190/1996, por el que se aprueba el Reglamento Penitenciario). In particular, Art. 16 of the Prison Act states that women shall be held separately from men. Moreover, Art. 29 of the Prison Act states that pregnant women held in detention are not obliged to work. Similar provisions can also be found in the Royal Decree on the Adoption of the Prison Regulations. Furthermore, both laws contain provisions governing the medical treatment of pregnant women and the possibilities for women to keep their children under the age of 3 with them in prison. 8.3 Foreigners In Spain, there is no special regulation for pre-trial detention of foreigners. Nor does the LECrim provide for special provisions. In general, foreigners detained in the Spanish penitentiary system have the right to the same treatment as Spanish prisoners. Nonetheless, there are a few specific provisions related to foreigners in order to make some of their rights effective or to facilitate the application of the expulsion measure.32 8.4 Alleged terrorists Art. 571 of the Criminal Code defines terrorists as those belonging, acting in the service of or collaborating with armed groups, organizations or groups whose objective is to subvert the constitutional order or seriously alter public peace and who commit the attacks described in Art. 346 (attacks on buildings or transportation or communications infrastructure with the use of explosive devices) or Art. 351 (arson, causing risk of injury or death). Note that this article does not criminalise the mere act of belonging to a

32

De la Cuesta 2007, pp. 759-760.

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terrorist group, but rather the commission of criminal acts by members of these groups with the above-mentioned goals. Spain does not have a special antiterrorism law. The penalisation and the prosecution of terrorist offences are regulated in the Criminal Code and the LECrim. In particular, the LECrim establishes the conditions for pre-trial detention of terrorist suspects and the rights of alleged terrorists held in pre-trial detention. However, it should be noted that there is no specific regulation in the LECrim concerning only this group of detainees. Prisin provisional incomunicada is the type of pre-trial detention mostly used for the preventive detention of alleged terrorists. It allows for terrorist suspects to be deprived of their liberty during the investigative stage, and to be deprived of those rights which persons held in regular pre-trial detention may not be deprived of (see paragraphs 3, 6 and 7).

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Montero Aroca, J. et al. (2008) Derecho Jurisdiccional III Proceso Penal (16 ed.). Valencia: Tirant Lo Blanch. Vogler, R. and B. Huber (eds.) (2008) Criminal procedure in Europe. Freiburg: Max-PlanckInstitut fr auslndisches und internationales Strafrecht. Walmsley, R. (2006) World Female Imprisonment List. London: International Centre for Prison Studies. Available online at: http://www.kcl.ac.uk/depsta/law/research/icps/downloads/women-prison-list2006.pdf (Accessed 1 June 2009). Walmsley, R. (2008) World Pre-trial / Remand Imprisonment List: Pre-trial detainees and other remand prisoners in all five continents. London: International Centre for Prison Studies. Available online at: www.kcl.ac.uk /depsta/law/research/icps/downloads/WPTRIL.pdf (Accessed 1 June 2009). Internet sources http://dialnet.unirioja.es http://sentencias.juridicas.com (Noticias Juridicas) http://www.cienciaspenales.net (Portal Iberoamericano de las Ciencias Penales) http://www.fiscal.es (Fiscala General del Estado) http://www.ine.es (Website Spanish National Statistic Institute) http://www.legislationline.org http://www.mir.es (Ministerio del Interior) http://www.mjusticia.es (Website Spanish Ministry of Justice) http://www.poderjudicial.es

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