MINISTERIO DE JUSTICIA SECRETARÍA DE ESTADO DE JUSTICIA DIRECCIÓN GENERAL DE COOPERACIÓN JURÍDICA INTERNACIONAL Y RELACIONES CON LAS CONFESIONES

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1 SECRETARÍA DE ESTADO DIRECCIÓN GENERAL DE COOPERACIÓN JURÍDICA INTERNACIONAL Y RELACIONES CON LAS CONFESIONES REPLIES TO GREEN PAPER ON STRENGTHENING MUTUAL TRUST IN THE EUROPEAN JUDICIAL AREA APPLICATION OF EU CRIMINAL JUSTICE LEGISLATION IN THE FIELD OF DETENTION 1.- Pre-trial: what non-custodial alternatives to provisional detention are available? Do they work? Could alternatives to provisional detention be promoted at European Union level? If so, how? In criminal proceedings the judge, in addition to provisional detention, may order other types of precautionary measures to ensure that the offender is brought to trial and that the judgment is enforced. Precautionary measures should be adopted if a punishable act can reasonably be attributed to a particular person, and if there is a risk or danger that the defendant will evade trial or enforcement of the sentence. The measures that may be adopted are the following: a. Summons (Articles Code of Criminal Procedure): imposes on the accused the obligation to appear before the investigating judge for a hearing. b. Release on remand pending trial (Articles Code of Criminal Procedure): Precautionary measure limiting the freedom of the accused by imposing certain obligations (e.g. providing bail, regular appearances) in order to guarantee his/her appearance in the criminal proceedings. Release pending trial may be ordered in all cases in which provisional detention is not decided on. It may be ordered with or without provision of bail. In all cases, a defendant who is released pending trial must bind himself personally (apud acta) to appear before the court on the days indicated and whenever summoned. The defendant's passport may be held as a guarantee that this obligation will be met. If the defendant fails to appear when summoned by the court, the guarantor, if there is one, must ensure that the defendant appears within 10 days. If he fails to do so the bail will be forfeited and the defendant can be re-imprisoned. Provision of bail: Bail is the deposit of an amount of money, or a guarantee of payment thereof, in order to guarantee compliance with the defendant's obligation to appear before the judge. Release pending trial may be ordered with or without the obligation to provide bail, although bail is required in all cases in which the punishment for the crime in question is more than six years' imprisonment. It is the court decision that will determine the form and amount of the bail, having regard to the nature of the crime, the defendant's social status and record, and any other circumstances that may influence his desire to evade the court proceedings (Article 531 Code of Criminal Procedure). The judge may at any time order the final discharge of the accused or prisoner. He may also establish the conditions for granting provisional release or amend them to make them more favourable. dgcjirc@mjusticia.es San Bernardo, MADRID TLF: FAX:

2 In cases in which a defendant is released pending trial for crimes relating to the driving of motor vehicles, the judge may provisionally confiscate his driving licence (Article 529a Code of Criminal Procedure). c. Bail (Articles Code of Criminal Procedure): the aim of bail is to guarantee compliance with the financial liabilities that may be contained in a judgment in criminal proceedings and the costs of the legal proceedings. The competent court issues an order establishing the amount of bail, which must not be less than one third of the probable full amount of the financial liabilities (Article 589 Code of Criminal Procedure). Pursuant to Article 591 Code of Criminal Procedure, the bail may be personal security, collateral security or security provided in the form of cash, through an indefinite-term joint and several guarantee payable at first call issued by a credit institution or mutual guarantee association or any other means which, in the view of the judge or court, guarantees the immediate availability of the amount in question. Bail as an effective cautionary measure is governed by the same legal system as bail for release pending trial. d. Attachment (Articles Code of Criminal Procedure): if the defendant fails to provide bail to guarantee payment of financial liabilities arising from the committing of a crime, his assets will be seized up to a sufficient amount to cover these liabilities. In criminal proceedings it therefore has subsidiary status. The bail and the assets attached may be reduced or increased depending on the increase or decrease in the defendant's possible financial liabilities (Articles 611 and 612 Code of Criminal Procedure). e. Restraining order (Article 544a Code of Criminal Procedure): in investigations for the crimes referred to in Article 57 of the Criminal Code (homicide, abortion, bodily harm, deprivation of liberty, torture and offences against moral integrity, or of a sexual nature, privacy, the right to one's own image and the integrity of the home, honour, assets and socio-economic order), the judge or court, where strictly necessary in order to protect the victim, may impose an interim injunction against residing in a particular place, district, municipality, province or other locality or Autonomous Community, going to certain places, districts, municipalities, provinces or other localities or Autonomous Communities, or certain restrictions may be imposed on going near or communicating with certain persons. In the event of failure to comply with the measure in question, the defendant will be summoned in order to modify the order of provisional detention, protection order under Article 544b or other precautionary measure involving greater deprivation of personal liberty. f. Protection order (Article 544b Code of Criminal Procedure): in the case of a crime of domestic violence, the judge can issue a protection order for the victims in cases where there is evidence of a crime or offence against the life, physical or moral integrity, sexual freedom or the freedom or the safety of a victim of domestic violence giving rise to an objective risk for the victim requiring the adoption of one of the protection measures expressly provided for. The measure must be adopted by a reasoned decision after successive appearances of the defendant and the victim with their respective legal counsels, and the public prosecutor. Any of the measures provided for in criminal procedure legislation may be adopted as precautionary measures in criminal proceedings. Civil measures must be adopted where there are minor or disabled children and may consist of attribution of the use of the family home, determining the custodial regime, visits, communication and stays with children, payment of maintenance and any other measure deemed appropriate to keep the minor out of danger or prevent harm. The civil measures are in force for a period of 30 days during which the family civil proceedings can be initiated, extendible in this case by request by a further 30 days, within which period they must be amended, ratified or revoked. 2

3 The precautionary measures that can be applied as an alternative to provisional detention are in general effective for the purposes for which they are intended. In particular, restraining orders and protection orders, which usually take the form of bans on going near or communicating with the victims if the legal requirements for adoption of provisional detention are not met, since they provide safety for victims and compliance is monitored by law enforcement officers. They may also be accompanied by the placing of electronic devices that provide alerts if the measure is not complied with and enable appropriate protection to be provided. Under Article 508 of the Code of Criminal Procedure, the judge or court may order the provisional detention of the accused to be carried out in his home, using the necessary supervisory measures (including electronic surveillance) where imprisonment would put his health seriously at risk owing to illness. The judge or court may authorise the accused person to leave his home when necessary for treatment of his illness, with the necessary supervision. In cases where the accused person is undergoing treatment for drug addiction and imprisonment could interfere with the outcome of the treatment, provisional detention may be replaced with admission to an official treatment centre or a legally recognised organisation in order to continue the treatment, provided that the acts being tried took place prior to the start of the treatment. In this case the accused person may not leave the centre without authorisation from the judge or court which handed down the order. 2.- Post-trial: What are the most important alternative measures to custody (such as community service or probation) in your legal system? Do they work? Could probation and other alternative measures to detention be promoted at European Union level? If so, how? Alternative forms of enforcement of prison sentences and conditional release are regulated in Articles of the Criminal Code, which establishes three alternative sanctions: a) Suspension of enforcement of prison sentences Articles stipulate that the judges or courts may hand down a reasoned decision suspending enforcement of prison sentences of not more than two years. This decision will have regard chiefly to the degree of danger posed by the accused, and on the existence of previous criminal proceedings against him. Prison sentences of under two years will be suspended for two to five years and minor sentences by three months to one year. The time period will be decided by the judges or courts following a hearing of the parties concerned and will be based on the offender's personal circumstances, the circumstances of the crime and the length of the sentence. Suspension of the sentence does not extend to third-party liability arising from the crime or offence in question. The sentencing judges and courts may grant unconditional suspension of any sentence handed down if the convicted prisoner is suffering from a very serious and incurable illness, unless, at the time the crime was committed, the convicted prisoner had already had another sentence suspended for the same reason. The following are grounds for suspending enforcement of the sentence: 1. The convicted offender has no previous convictions. 2. The sentence(s) handed down, or the sum total of the sentences, does not exceed 3

4 two years, without counting the sentence imposed for failure to pay a fine. 3. Any third-party liabilities that have arisen have been met, unless the sentencing judge or court, after hearing the parties concerned and the prosecutor, declares it to be wholly or partially impossible for the convicted prisoner to meet these liabilities. If the convicted prisoner re-offends during the suspension period, the judge or court will revoke the suspension of the sentence. In addition, the convicted prisoner must comply with the obligations imposed by the judge or court, as laid down in Article 83 of the Criminal Code. b) Alternatives to prison sentences After hearing the parties concerned and before the start of enforcement of the sentence, judges or courts may, either when sentencing or in a subsequent reasoned order, replace prison sentences of not more than one year with a fine or community service. Prison sentences not exceeding 6 months may also be replaced with permanent tracking, even if this penalty is not provided for by law for the offence in question, where appropriate in view of the offender's personal circumstances, the nature of the crime, the offender's conduct and, in particular, the effort made to redress the damage caused, provided the offender is not a habitual offender. Each day of imprisonment may be replaced with two instalments of a fine or one day's work or one day of permanent tracking. In these cases the judge or court may also order fulfilment of one or more obligations or duties as laid down in Article 83 of the Criminal Code. Under Spanish law, community service does not replace a prison sentence but rather is an independent penalty restricting certain rights (Article 39). In addition, under Article 49 of the Criminal Code community service, which can be imposed only with the consent of the convicted person, obliges him to cooperate in certain activities of public utility without remuneration. These activities, related to offences of a similar nature to that committed by the convicted person, may consist of repairing the damage caused, supporting or assisting the victims, or taking part in workshops or programmes (training, rehabilitation, work, cultural, road safety, sexual education and others). These training activities must not last more than 8 hours per day and must be provided in accordance with the conditions laid down in Article 49. In exceptional cases, the judges or courts may replace prison sentences not exceeding two years handed down to non-habitual offenders with a fine or with a fine and community service where the circumstances of the crime and of the offender suggest that serving the prison sentence would not fulfil the purpose of prevention and social reintegration. If the offender has been convicted of a crime of gender violence, the prison sentence may be replaced with community service or permanent tracking only in a different place that is not close to the victim's home. In these cases, the judge or court may also, in addition to ordering the offender to attend specific rehabilitation and psychological treatment programmes, order him to carry out certain obligations or duties as laid down in Article 83(1). Prison sentences of less than 6 years handed down to a foreigner not legally resident in Spain will be replaced with expulsion from Spain unless the judge or court, after hearing the offender, the prosecutor and the parties concerned, considers that there are well-reasoned grounds for the offender to serve a prison sentence in Spain. 4

5 c) Conditional release Under Article 90 of the Criminal Code, conditional release in prison sentences may be granted where the following conditions are met: a. The sentenced person is a third-degree prisoner [translator's note: prisoner qualifying for certain benefits on basis of good conduct]. b. Three-quarters of the sentence has been served. c. The sentenced person has demonstrated good conduct and has received a positive, personal prognosis for rehabilitation into society. d. The above condition will not be deemed to be fulfilled if the sentenced person has not met the third-party liability arising from the crime. The period of conditional release lasts for the time remaining to serve the sentence. If, during that period, the offender re-offends or fails to fulfil the rules of conduct imposed, the judge with special duties in the matter of criminal sentences will revoke the release granted and the sentenced person will return to prison for the period and in the category applicable, without prejudice to the calculation of the period of conditional release that has elapsed. d) Permanent tracking Although permanent tracking is not formally laid down as an alternative to a prison sentence, but rather a form thereof, this penalty is provided for as follows in Article 37 of the Criminal Code: 1. Permanent tracking may be imposed for up to six months. The offender must remain in his home or in a place specified by the judge in the sentence or in a subsequent reasoned order. However, in cases in which permanent tracking is provided for as the principal penalty, when sentencing the judge may, if the offender re-offends and if expressly provided for in the specific provision applicable, order the permanent tracking to be complied with only on Saturdays, Sundays and public holidays in the prison closest to the offender's home. 2. Where appropriate, if the offender so requests, once the prosecutor has been heard, the sentencing judge or court may order the penalty to be complied with on Saturdays and Sundays or non-continuously. 3. If the sentenced person fails to comply with the penalty, the sentencing judge or court will take evidence in order to proceed in accordance with Article In order to guarantee effective compliance, the judge or court may grant the use of mechanical or electronic means enabling the offender to be tracked. Alternatives to prison sentences are certainly highly effective, in particular suspended prison sentences, since they impose a period during which the sentenced person cannot re-offend on pain of serving the suspended sentence. Furthermore, suspension can only be granted in the case of a first offender, and is therefore highly effective in preventing subsequent crimes. Imposing certain obligations or rules of conduct, usually related to the type of crime committed (e.g. attending training courses) or to the safety of the victim (e.g. ban of going near or communicating with the victim, which is obligatory in cases of suspended sentences for crimes of gender violence) strongly support social reintegration, which is the aim of these alternatives to prison sentences. 3) How do you think that detention conditions may have an effect on the proper 5

6 operation of the EAW? And what about the operation of the Transfer of Prisoners Framework Decision? Given the requirements of speed and flexibility determining the procedure for enforcement of the EAW, which is enforced practically automatically, to ensure that the EAW operates properly it is essential to have correct regulation of "detention" and the conditions for such detention. Under Article 13 of the Spanish Law 3/2002 transposing the Framework Decision, "Detention of a person affected by a European Arrest Warrant will be carried out in the manner and subject to the requirements and guarantees laid down in the Code of Criminal Procedure". The Framework Decision on the transfer of prisoners does not yet apply in the EU. In any case it will be an effective instrument to ensure compliance with the purpose of prison sentences, namely social reintegration, since it will enable the sentence to be served in the country of origin of the sentenced person. 4. There is an obligation to release an accused person unless there are overriding reasons for keeping them in custody. How is this principle applied in your legal system? Yes, it is obligatory to release the accused person if there are no overriding reasons for keeping them in custody. Our rules on provisional detention comply fully with the fundamental right to personal freedom. For this reason, provisional detention can be adopted only in cases in which the requirements are met and the purposes stipulated by law can be achieved. Article of the Code of Criminal Procedure states that: Provisional detention shall be adopted only when objectively necessary and where there are no other measures less invasive of the right to freedom than provisional detention by which the same ends can be achieved." Article 503 of the Code of Criminal Procedure states that provisional detention may only be ordered where the following circumstances occur: 1. There are one or more facts in the case constituting offences the maximum penalty for which is two years' imprisonment or more, or imprisonment for a shorter term if the accused person has an existing criminal record which has not been and cannot be annulled, resulting from a conviction for a malicious act. 2. There are sufficient grounds for believing that the person to be sentenced is criminally liable for the crime. 3. The purpose of the provisional detention is to: a) ensure that the accused person is present at the trial when it can be reasonably inferred that there is a risk of absconding. b) prevent the concealment, alteration or destruction of the sources of evidence relevant to the trial in cases where there is a well-founded and specific danger of this. c) prevent the defendant from acting to the detriment of the victim's legal rights, particularly in cases of domestic violence. If conditions 1 and 2 are met, provisional detention may also be ordered to avoid the risk that the defendant will commit other crimes. Article of the Code of Criminal Procedure states that the prison term will last for as long as necessary to achieve any of the purposes laid down in Article 503 and for as long as the reasons for which the measure was adopted still exist. Article 528 states that provisional 6

7 detention will last only as long as the reasons for which it was adopted subsist. The person who has been arrested or detained will be released in any case if his innocence is proved. The authorities involved in the process must ensure that the period of provisional detention of the accused or sentenced persons is kept to a minimum. 5. Different practices between Member States in relation to rules on (a) statutory maximum length of pre-trial detention and (b) regularity of review of pre-trial detention may constitute an obstacle to mutual trust. What is your view? What is the best way to reduce pre-trial detention? These different practices may constitute an obstacle to mutual trust. The best way of reducing pre-trial detention is to adopt alternative measures less invasive of the right to freedom. Alternative measures that should be taken where provisional detention is not strictly necessary are: bans on going near and communicating with victims, surveillance using electronic devices, confiscating certain identity documents, and strict surveillance of summonses to appear imposed on accused persons provisionally released. With regard to "cross-border" cases, the application of the EU's mutual recognition instruments should also be a means of preventing cases of provisional detention of foreigners owing to failure to provide bail. Regard should also be had to the possibility of review of pre-trial detention. In other words, it could be considered that the problem is not so much the duration of provisional detention (a question inextricably linked to the size of each Member States, its judicial system, crime rate, etc.) as the need to guarantee obligatory review of the penalty as a means of increasing mutual trust. This is because, independently of the maximum length of detention, what is important is that it can be reviewed at any time if there has been a change in the circumstances that gave rise to the prison sentence and if this sentence can be replaced by lighter and more proportionate measures ensuring that the person concerned will be present at the request of the court authority. 6. Courts can issue an EAW to ensure the return of someone wanted for trial who has been released and allowed to return to his home State instead of placing him in pre-trial detention. Is this possibility already used by judges? If so, how? As stated in the reply to Question 1, the court body may order provisional release rather than provisional detention provided there is no risk of absconding. In any case, a defendant on provisional release must bind himself personally (apud acta) to appear before the court on the days indicated and whenever summoned. If the accused person does not appear when summoned to court, a new EAW may be issued to return him to prison. We do not have specific information on the issue of EAW in cases of failure to appear once a European Supervision Order has been issued. 7. Would there be merit in having European Union minimum rules for maximum pre-trial detention periods and the regular review of such detention in order to strengthen mutual trust? If so, how could this be better achieved? What other measures would reduce pre-trial detention? For alternative measures to reduce pre-trial detention, see the reply to Question 5. However, as indicated in that reply, rather than harmonising maximum time periods it would be valuable to continue to explore the question of obligatory review of sentences. 8. Are there any specific alternative measures to detention that could be developed in respect of children? Organic Law 5/2000 of 12 January 2000 on the criminal responsibility of minors sets out the system of justice applicable to minors. Specifically, this law enforces the responsibility of 7

8 minors over fourteen and under eighteen years of age who have committed acts categorised as crimes or offences in the Criminal Code or the special criminal laws. In any case, as stipulated in Article 1 of that Law, persons coming under the Law have all the rights recognised in the Constitution and legislation, in particular Organic Law 1/1996 of 15 January 1996 on the legal protection of minors and the Convention on the Rights of the Child of 20 November 1989 and all the provisions on the protection of minors contained in the treaties legally entered into by Spain. The measures applicable to minors who are subject to this law because they have committed offences are laid down in Title II of the Law. The Law sets out alternative measures to imprisonment (all the measures other than imprisonment are laid down from Article 7(d)). We would add that even custodial measures (imprisonment) consist of two phases, first imprisonment and then probation, aimed at facilitating the social reintegration of the minor (Article 7.2). The measure imposed may at any time be replaced by another measure or reduced or annulled provided that alteration of the measure is in the interest of the minor and sufficiently conveys to him the condemnation his conduct deserves (Article 13.1). In addition, provision is made for early termination of the procedure without the need for a trial: - Article 18. The action is dropped because of modification of the minor's educational and family circumstances. - Article 19. Dismissal of case resulting from conciliation or reparation by the minor to the victim. These apply only to less serious offences where there has not been any violence or intimidation. 9. How could monitoring of detention conditions by the Member States be better promoted? How could the EU encourage prison administrations to network and establish best practice? - With financing from the European Commission, the Council of Europe could organise exchange trips and visits (or even longer stays or medium-term residence) between managerial and technical prison staff in the Member States with a view to visiting and comparing infrastructure, routine operations and activities in prisons. - Seminars, conferences and workshops could be held for prison experts to report on experience and best practices and exchange information. - Publication of a manual on comparative law relating to prisons, containing the conditions of detention in each Member State (capacity of its infrastructure, data on population, organisational structure of the prison service, human resources, treatment programmes, security measures, etc.). 10. How could the work of the Council of Europe and that of Member States be better promoted as they endeavour to put good detention standards into practice? - The European Commission could finance the organisation by the Council of Europe of bilateral meetings between prison administrations of States with shortcomings (negative detention conditions) and those of States where prison management and the treatment of prisoners is acceptable. These meetings would involve managerial and technical prison staff from both countries and would be used to demonstrate appropriate management methods using theoretical explanations and field work. Two meetings would have to be planned, one in each country, lasting at least one week each. The work carried out at the 8

9 meetings should be applied to specific cases of violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms, proposing appropriate solutions. - Another measure to achieve appropriate detention levels could be to circulate periodically among the Member States a classification of levels of detention quality, based on the statistical results of internal inspections (NPM) or external inspections (CPT), rewarding progress and efforts made in Member States by prizes or honorary certificates. 28/11/2011 9