The Right to a Fair Trial

by The Honorable Alberto Jarabo Calatayud

I. Structure of the Criminal Courts in Spain

A. Criminal Offences

Before an explanation of the types of criminal courts in our country with jurisdiction in criminal cases, we must point out that the Criminal Code clearly establishes the difference between felonies and minor offenses (misdemeanors). A brief explanation of felonies and misdemeanors follows.

Felonies are the more serious or grave infractions of the law and those which are assigned more severe or considerable punishment, generally speaking, imprisonment for a term exceeding 30 days, fines and other sanctions such as revocation of one's driving license for more than three months, confinement, exile (deportation), suspension of the right to vote (suffrage) or to hold elective office, etc. Felonies can be committed either intentionally or unintentionally, by a negligent or careless act. There exist, however, felonies which are only committed intentionally by the nature of the act.

Misdemeanors constitute minor offenses, and due to this are assigned only minor sanctions, such as detention for less than 30 days, small fines, suspension of one's driving license for less than 3 months, (private) reprimand. Misdemeanors are committed intentionally. They can be classified as the following type of acts: 1)against Public Order, 2)against the Public Interest, 3)against Persons (individuals) and 4)against Property. Those classified under numbers 1) and 2) can be considered as merely administrative infractions but because of Criminal Policy, they are listed as criminal offenses. Those included in number 4) could also be considered felonies (breaking and entering, theft, fraud) if it were not for the relatively unimportant quantity of money involved. The third group, misdemeanors against persons (individuals), refers not only to slight injuries inflicted upon others intentionally, but those committed by accident, that is to say by negligence (excluding more serious ones, which are considered felonies). This issue is especially relevant due to the fact that one must take into account those cases which refer to traffic accidents, hunting accidents and other similar activities involving risks.

A. The Procedure for Felonies

A felony, without reference to the way in which it was committed or its nature, is tried according to one of two procedures: 1) Brief Procedure or 2) Ordinary Procedure.

The Brief Procedure applies to felonies which carry a sentence of imprisonment of 1 month to 12 years and other sanctions, separate from or concurrent with prison such as revocation of one's driving license, suspension of the right to vote, deportation or confinement. Two courts have jurisdiction to handle the Brief Procedure. The Penal Court has jurisdiction for felonies which carry a prison sentence of 1 month to 6 years. The Provincial Audience has jurisdiction for felonies which carry prison terms of 6 to 12 years.

The Brief Procedure consists of three phases. The first is before the Judge of Instruction. The task is to gather all sorts of information and news about the act or acts committed, the alleged perpetrator, the victims and any other pertinent or important information. Previously, a police investigation must have taken place. The judicial investigation is supported by the first steps taken by police officials. During the police investigation, the suspect is entitled to the same rights as he would have during the judicial investigation; those being the rights described in Article 520 or the Code of Criminal Procedure, which will be referred to later.

The second phase begins upon conclusion of the judicial investigation, when the judge asks the parties to present their "Accusation Paper" (on the part of the prosecutor) and the "Defense Paper" (on the part of the counsel for the defense). In these papers, both parties describe the facts of the case, from their point of view, the points of law and the circumstances that lessen the suspect's responsibility or that make the suspect's responsibility greater in regards to the punishment that corresponds to the crime if any. The parties also announce evidence before the court during the public hearing and make motions for seizure of property or confiscation of assets, or the personal situation of the accused (is he to be released on personal recogniscence, to remain in preventive custody, to be released on bail). The instructing judge sends the results to the corresponding court for trial and the decision in the matter can be made, as we have said, by the Judge of the criminal court, or the provincial court.

The third phase is the trial and sentencing. The trial takes place publicly and with the presence of prosecution and defense. The evidence is presented along with the arguments of both sides in this phase of the trial. In the time required by law, after this trial phase, the court declares its verdict.

The Ordinary Procedure is very similar in structure to the Brief Procedure. It applies to felonies that carry a sentence of 12 to 20 or more years in prison. Jurisdiction exists only in the Provincial Court (Audiencia). Some differences between this procedure and the Brief Procedure can be seen in the three phases of the procedure. In the first phase, the responsible party is the Instructing Judge. In the second phase, the parties appear in the Provincial Court but not before the Instructing Judge, as in the Brief Procedure. The third phase, trial and decision, is the same as in Brief Procedure.

Another way the two procedures can be differentiated from each other is through the existence of the Judicial Decree of Indictment in the Ordinary Procedure. The indictment is made known in the period of instruction and is the basis upon which the suspect is formally accused. This comes before the accusation in writing and is only used in the Ordinary Procedure because in the Brief Procedure the accusation is implicit and this does not occur formally until the accusation in writing by the public prosecutor.

A different procedure applies to misdemeanors. The instructing judge has jurisdiction in these cases in the instruction as well as the trial and decision. Actually, this phase in the instruction is practically non-existent. In this way, (this "non-existent" instruction) the possible "partiality" of the instructing judge is eliminated with respect to the decision of the judge. In fact, as we have seen up to this point, in Spain the real instruction is the responsibility of the police in the initial stages. The police advise the judge of the existence of a possible infraction, and the facts, beginning in this way the judicial instruction before the Instructing Judge. This instruction is at all times assisted by the police instruction. That is to say, in our system it is not the district attorney who investigates. It is the instruction judge himself. To avoid the possibility of calling into question the impartiality of the judge who makes the decision and passes sentence, the judge who investigates and the judge who decides guilt or innocence are two different people. If there were an investigation in a misdemeanor case, there would be a violation of a person's right to an impartial judge if the judge whose jurisdiction it is to investigate is also the judge who makes the decision (a Judge of Instruction in both phases).

The Constitutional Court has decided that this does not occur in a misdemeanor case because of the brief inquiry which occurs in such a process prior to the public hearing and such an inquiry does not deserve to be called an "Instruction", unless the judge takes measures against the defendant (arrest or prison) or against his wealth or property (seizure). Nor is testimony heard out until the moment of the hearing.

B. Courts with Criminal (Penal) Jurisdiction

Several courts have criminal jurisdiction in Spain. Courts of Instruction have investigative jurisdiction in all types of felonies and misdemeanors, as discussed above. They also have jurisdiction over decisions (sentencias) for all misdemeanors, except the most trivial, which are handled by Justices of the Peace. These courts are presided over by only one judge, the "Judge of Instruction."

Criminal Courts have jurisdiction over decisions (sentences) felonies which incur sentences (penas) of one month to six years in prison and other types of sentences imposed along with prison or separately using the Brief Procedure. These courts have only one judge presiding, the "Penal Judge."

The Provincial Court (Audiencias) has jurisdiction over decisions with the Brief Procedure which involve felonies that incur a prison sentence of 6 to 12 years. The Provincial Court also has jurisdiction over decisions in the Ordinary Procedure which involve felonies incurring a prison sentence of more than 12 years.

The Provincial Court also has appellate jurisdiction. It handles appeals of decisions made in the first instance in the Courts of Instruction and those made by the judges in Criminal courts for felonies. The Provincial Court is presided over by three judges.

The Supreme Court has jurisdiction over decisions in the first instance that impose sentences on the President and other members of the government, important governing bodies of the nation, and in other matters in which the instruction is also conferred upon them

The Supreme Court has appellate jurisdiction to handle appeals of annulment (casación) against decisions made by the Provincial Courts. It also may hear a so called "Extraordinary Appeal" against decisions which lack other appeals and have been made under duress, fraud or falsehood.

Juvenile Courts have jurisdiction over felonies and misdemeanors committed by minors, under 16 years of age who are brought before the court. These courts impose punishments of confinement in Special Centers of Education, known at present as Farm Schools (Granja Escuela).

The National Audience (Audiencia Nacional) deserves special mention. Once known as the Court of Exception (formerly the Court of Public Order) it was "reconverted" once the Constitution was ratified in 1978. In the present day, its organization comes close to the function already mentioned of its predecessors, and in its jurisdiction lies felonies such as those involving commerce and business of national repercussion, terrorism, crimes against the Crown and against important governing bodies of the nation. The Constitutional Court has pointed out its legitimacy considering it not only as a Court of Exception, but a special court within the concept of the natural Ordinary Judge predetermined by law.

Its jurisdiction, already mentioned, is described by legal catalogue and justified given the special national importance of the felonies that it must try. In criminal matters, it has three roles. It may serve as the Central Judge of Instruction with jurisdiction and functions equivalent to the Ordinary Instruction Judge. It also may function as the Central Criminal (Penal) Judges with jurisdiction and duties corresponding to Ordinary Criminal (Penal) Judges. Lastly it may serve as the Penal Court of the National Audience with the same jurisdiction and functions as the Penal Courts of the Provincial Court System.Within the judicial structure of Spain, the National Audience is subordinate to the Supreme Court, as its decisions are subject to appeal according to the procedures already referred to before the Supreme Court.

Each Court also has a territorial jurisdiction. There are several Judicial Districts, (Partido Judicial), which are comprised of the areas of various municipalities. The Court of Instruction is situated in the most important municipality of the area. There are various districts in each province. The Criminal Courts and the Provincial Audience are located in the capital of each province. The Supreme Court and the National Audience have jurisdiction over the whole nation. There are regions formed by one or more provinces. This is known politically as an "Autonomous Community" and the Superior Regional Court is located in the Community's capital. The Constitutional Court operates outside of the national structure of courts. Constitutional Review exists to appeal against the unconstitutionality of laws and statutes. In addition, Appeal can be made for Amparo which allows appeal against judicial or administrative decisions, which have no other review and that violate fundamental rights.

II. Recent Legislative Innovations

We should call attention to two recent innovations in the area of Criminal Justice approved by Parliament which will be of great importance and will have far reaching consequences in the immediate future. The first is the Law of Trial by Jury. Starting in January 1996, not only professional judges will have the capacity to decide in criminal cases, but the decision may be by way of a mixed jury (judges and citizens). The Jury will be chosen from citizens by way of a lottery, every three years. One has the possibility of being excluded for reasons such as being involved in the case or persons implicated in it, or other justifiable causes in which the jury member can renounce his participation if it can be determined that the requirements for exclusion are in fact met. The felonies to be judged by a jury are basically these: murder, homicide, rape and other crimes against sexual freedom, crimes with economic motives, corruption, as well as crimes committed by civil servants in the exercise of their duties. The participation of the jury has not been foreseen in cases involving civil, labor, industrial or administrative jurisdiction, but is only contemplated in criminal matters. This law introduces a new article, number 504 BIS, in the Law of Criminal Trials,(Code of Criminal Procedure) according to which, in order to decide preventative prison, one of the parties for the accusation (prosecution) must request this of the Judge of Instruction.

The second innovation is the New Penal Code. The new Code will go into effect in March of 1996. It will reduce the length of many sentences and introduce new ones (weekend arrest). It also will raise the age of maturity, the age of criminal responsibility, from 16 to 18 years of age.

III. Rights and Guarantees

A. The Constitution of 1978

Due to the relative "youth" of our Magna Carta, a product of Spain's historical and political circumstances, the Constitution of 1978 was able to insert in its own text the majority of the proposals of international treaties and agreements on matters of guarantees and rights applicable in the criminal process. In addition, many laws have undergone reforms making them more adequate in terms of protecting these rights and guarantees. First, we will examine the constitutional proposals and their reflection in the Law of Criminal Trials (Code of Criminal Procedure).

There are several provisions of the Constitution of 1978 which ensure the protection of human rights. Spain is a state under law. Article 1,1 provides, "Spain constitutes a Social and Democratic State of Rights and protects such fundamental values such as liberty, justice, equality and political plurality." Citizens and Public officials are subject to the Constitution and the rest of the judicial ordinances under Article 9,1. Article 9,3 states, "The Constitution guarantees the right of legality, the hierarchy of rules, the publication of said rules, the non-retroactive nature of sanctions which are not favorable to or are restrictive of individual rights, judicial security, responsibility and the interdiction of the arbitrary acts of public officials."

Several provisions ensure that individuals' basic rights are guaranteed. Article 10, 1 recognizes that the dignity of the individual, and inalienable rights which are inherent in him/her, the free development of his/her personality, respect for the law and the rights of others are fundamental to political order and social peace. Article 10, 2 states that the norms relative to fundamental rights and freedoms the constitution recognizes are interpreted and conform to the Universal Declaration on Human Rights and International Agreements and Treaties ratified by Spain.

Equality among individuals is also guaranteed. Article 14 provides, "Spaniards are all equal before the law, and there shall exist no discrimination for reason of birth, race, sex, religion, opinion or other condition or circumstances of a personal or social nature."

The Fundamental Rights are incorporated into several Constitutional Provisions. Life and physical integrity is protected by Article 15, which prohibits torture, degrading or inhuman punishment, as well as the death penalty. Freedom of Ideology and Religion is ensured by Articles 16 and 17.

Honor, privacy, privacy in one's home and the secrecy of private communications is guaranteed in Article 18. The Constitution also protects the Freedom of Residency (Art. 19), and freedom of Expression and Speech (Art. 20), freedom of Assembly (Art. 21) and Freedom of Association (Art. 22) and the the Right to Vote (Art. 23).

Special protection of fundamental rights is afforded by the Right of Tutelage or Effective Judicial Protection. Article 24 states, "All persons have a right to obtain Effective Judicial Tutelage from judges and courts in the exercise of their rights and legitimate interests and in no instance shall their rights be unprotected." Article 24 also guarantees basic rights in the criminal proceedings. It provides, "Likewise, all citizens have the right to an ordinary judge predetermined by law, to the defense and assistance of an attorney, to be informed of the charges brought against them, to be tried without undue delay, and with all lawful guarantees, to use all means of evidence which pertain to their defense, not to testify against themselves, not to make a confession of guilt (the right to protection against self-incrimination) and the presumption of innocence."

Protection from ex post facto law is ensured in Article 25 which states, "No one shall be condemned or sanctioned for an act or omission that, at the time of its taking place, did not constitute a felony, misdemeanor or administrative infraction according to the applicable legislation at that moment." It also provides that the reforming and reinsertion in society of the convicted person are the end result of the sentence imposed, and it reaffirms the importance of protecting the aforementioned rights for all sentenced convicts while they are serving their prison term.

Based upon the Constitution's guarantees, several basic rights and procedures are ensured. One is the right to obtain the tutelage of the Courts in a real and effective form without any formal obstacles that impede a decision at the essence of the question. A second is the right to an ordinary judge predetermined by law. There shall exist no extraordinary tribunals, private courts or Courts of Honor.

There are several rights to protect persons accused of criminal offences. The accused has the right to the assistance and defense of an attorney from the moment of detention or arrest by police or the accusation of a felony or misdemeanor. He also has the right to a public defender, at state expense, when a private attorney cannot be provided at his own expense. The accused has the right to be informed of the charges brought against him from the moment of detention, arrest or accusation by police or members of the judiciary. The accused also has the right to not testify against himself to not confess guilt and to not answer any or all questions put to him. Any refusal cannot produce a negative effect upon the accused except that derived by the judge from the appreciation or evaluation of this silence in connection with other evidence.

There is a right to the presumption of innocence.Gathering relevant evidence goes against this presumed innocence, but it is required. There is nevertheless protection for the accused in this process by a principle implied in the jurisprudence (doctrine) of the Constitutional Court and the Supreme Court. The principle, "in dubio pro reo," is that, if it is possible to interpret the evidence from several perspectives, this interpretation must be in favor of the accused and not to his detriment.

There is also a right to be tried without undue delay. This is incarnate in the requirement of speed on the part of the State in its sanctioning response. "Slow justice is not justice but vengeance," is the guiding principle for decisions of the criminal courts in Spain and according to the circumstances of the case, an Appeal for Amparo can be filed with the Supreme Court to petition that the sentence not be carried out.

There is a right to a public trial. The public nature of the trial is a guarantee of fair play as is the requirement of subjecting evidence to challenge. The accused has the right to use all pertinent means of evidence in his defense. This has been broadly interpreted on the part of the courts. As a result, the judges are limited in their power to deny the presentation of evidence by the defense based on its being considered useless or redundant. Evidence whose presentation has been denied by the court in question, can be presented again (or a petition for it presentation can be made) when an appeal is substantiated in the highest court and if the presentation of such evidence is denied again, then eventually an Appeal for Amparo could be brought before the Constitutional Court.

As can be proved from what we have said, all of these rights are not mere declarations of intentions or will. Article 53 of the Constitution provides for several complete mechanisms which guarantee those rights. First, there is the Reserve of Law. The rights gathered in Chapter II, Title I of the Constitution can only be regulated by law (excluding therefore the regulation by dispositions coming from the Government or other authorities or governing bodies of the state). The law, in any case, shall respect the essential content of those rights. Second, an appeal of unconstitutionality can be brought before the Constitutional Court. Any law which violates these rights is susceptible to being declared null and void for reasons of unconstitutionality before the Constitutional Court. Third, allegation can be made in the ordinary courts. Any infraction on the part of a state body or authorities of the aforementioned rights shall be tried in ordinary courts by way of an urgent and preferential procedure regulated by the Law of Jurisdictional Protection of the Fundamental Rights of December 26, 1978. Fourth, an allegation can be made before the Constitutional Court. Any infraction of these rights committed by a decision, against which there can be no appeal or for acts or dispositions or simple acts by the those in public service can be brought before the Constitutional Court by means of an Appeal of Amparo.

B. The Law of Criminal Trials, the Code of Criminal Procedure

As was said before, the Constitution brought about the need for certain reforms in the law, reforms which introduced guarantees for the protection of fundamental rights. Of special significance is Article 520, which we will comment on here. Article 520, para. 1 governs the arrest and preventive custody that is ordered for a suspect who is not incarcerated. It provides that such detention cannot be detrimental in any way to the suspect and its duration shall be that which is strictly necessary to determine the facts. An arrest cannot exceed 72 hours and at the conclusion of that time, the authorities (the police) must let the suspect go or bring him before a judge.

On the other hand, Article 295 of the same Law of Criminal Trials (Code of Criminal Procedure) establishes a maximum length of time of 24 hours for the police to make the arrest known to the Judge, although (from the moment of the arrest) the authorities, as we have said before, can keep the suspect in custody up to 72 hours. The new Article 504 BIS, as it relates to preventive custody, requires for its adoption, the petition of said custody by the accusing party (party pressing charges), before the Judge of Instruction. This petition is effectuated in an extraordinary hearing directly after the appearance of the suspect before the Judge of Instruction.

Article 520, para. 2 establishes and broadens those rights articulated in Article 24 of the Constitution. It provides that every suspect or arrested person shall be informed immediately of the charges brought against him and the reason or reasons for the situation as well as the rights in his favor. These include the right not to make statements, not to answer questions or not to confess one's guilt; the right to appoint an attorney so that he can be present in the police headquarters or in court, and to assign a public defender if the suspect does not do so; the right to notify a family member (next of kin) or another person of the arrest and the place of detention; the right to be assisted by an interpreter at state expense; and the right to be examined by the forensic physician (medical doctor) or other physician (medical doctor).

IV. The Suspension of Guarantees: State of Emergency, Period of Alarm, Period of Siege

The Constitution allows for the possibility of limiting the fundamental rights such as those found in Article 55 for reasons of a State of Emergency, or Periods of Alarm and Siege, regulated by the Organic Law of 1 June 1981. This law, 4/1981, characterizes these three states of emergency as 1) temporary (transitory), 2) limited and 3) proportional to the circumstances which have led to their existence.

Periods of Alarm are declared by the Government in the event of natural disasters, health crises or problems in the supply of items of basic need (food, medicine). The effects are limits on the freedom of movement, temporary confiscation (commandeering) and use of goods, industries and private property.

A State of Emergency is declared by the Government with the authorization of the Parliament in the event of serious danger of the breakdown of public order. Among the effects are an increase in the maximum period of arrest to 10 days; interruption in the protection of secrecy in private communications; and limitations on the freedom of movement and residency.

A period of Siege is declared by the Parliament in the event of a threat against the sovereignty, independence, unity or constitutional order of Spain. The effects produced are, in addition to those aforementioned: the suspension of the right to be informed of the reasons of one's arrest or detention and the suspension of the right to the presence of an attorney during the period of arrest or detention by police or judiciary.

V. The Procedure of Habeas Corpus

The procedure of Habeas corpus is regulated by the Organic Law 6/1984 of May 24th. It applies that illegal arrest performed by authorities or agents not of the judiciary. Such an arrest may be challenged on three grounds. One is arrest without the legal requisites which justify an arrest. Article 490 of the Law of Criminal Trials (Code of Criminal Procedure) authorizes arrest when there is a realization or immediacy (presence in the environs) of the commission of a crime, or the flight from a premises or jail on the part of the convicted person or accused in a legal process.

A second ground is arrest in a non-legal way. The legal form requires respect for those rights and the information in Article 520 of the Law of Criminal Trials as discussed above.

A third ground is arrest for a length of time exceeding that which is permitted (72 hours).

The effect of the procedure is the immediate transfer of the suspect before a judge. The judge must study the information gathered and decide one of three things: (1) declare the suspect "Free to Go;" (2) order preventive custody; or (3) order that suspect remain under arrest either in the same location and under the same authority in which he was under arrest previously or in a new location or under new authorities.

The jurisdiction is that of the Judge of Instruction of the location in which the subject is under arrest or in the last location in which he was reported seen or his arrest was notified.

Neither the Constitution nor the Law of Habeas Corpus nor any law that regulates the State of Emergency, Periods of Alarm and Siege exclude the application of the Procedure of Habeas Corpus, although its application is not foreseen either. There exists no precedent or doctrine in the courts in this respect.