These consist of the provision of a bond in order to avoid detention. Providing such a bond means that the person in question is on bail.

Transcription

1 RESPONSE FROM THE GENERAL COUNCIL OF SPANISH LAWYERS TO THE GREEN PAPER ON DETENTION CHAPTER I: QUESTIONS ON MUTUAL RECOGNITION INSTRUMENTS QUESTION 1 Pre-trial: What non-custodial alternatives to pre-trial detention are available? First of all, concerning the reference in the question to the pre-trial stage, we understand that this refers to the period in the proceedings from the start of the investigation up to the point where a final sentence is imposed. Consequently, pretrial detention is a well-defined concept and consists of the provisional deprivation of liberty whilst a case is being investigated and prepared, which may be altered at any time by the judge who ordered such detention. Within the Spanish legal system, the alternatives to pre-trial detention can be divided into three groups: a. Measures restricting liberty b. Financial or economic measures c. Measures involving the deprivation of rights. a. Within the measures classed as restricting liberty, we would include: The requirement to enter an appearance at court The requirement for the person against whom criminal proceedings are being brought to appear before the judicial body conducting those proceedings or the law enforcement agencies. The person may be required to appear at the times he/she is summoned for that purpose or on a regular basis, the most usual arrangement being on the 1 st and 15 th of every month. Together with the requirement to appear, in order to provide a further guarantee, the person concerned may be ordered to surrender his/her passport, although this should not be ordered in all cases. In fact, there are many occasions when this is ordered, both in respect of foreign nationals and Spanish citizens, since, as it is possible to travel within the EU using the DNI [National Identity Document], the risk of absconding to other countries would be greater. We understand that this restricts the liberty of the person upon whom it is imposed, since it limits his/her movements as he/she has to be available to the judicial body. In connection with this, the group of experts from our Council which participated in the European Grotius project in partnership with the Law Society of England and Wales and the Czech Bar Association pointed out that the conditions imposed on persons who are not in their native country should be realistic, proportionate and nondiscriminatory and should reflect their personal circumstances. With the application

2 of the mechanisms currently available, such as the European Arrest Warrant, which offer the possibility of expanding the scope of detention to other EU countries, the number of instances where pre-trial detention and the surrender of passports are necessary should be reduced. b. Financial or economic measures These consist of the provision of a bond in order to avoid detention. Providing such a bond means that the person in question is on bail. Spanish law allows the provision of a personal bond, collateral security and a mortgage, the personal bond being the most common. However, the bond is normally not the only measure imposed, since it is usually accompanied by the requirement to enter an appearance at court with or without the surrender of the passport, which we referred to above. c. Measures involving the deprivation of rights c.1. In the case of charges of accusations involving domestic violence, where they concern offences against the life, physical or moral integrity, sexual liberty, freedom or safety of any person and the victim is or has been the spouse of the accused, a person with whom he/she was in a similar intimate relationship, whether or not they were cohabiting, a relative in the descending or ascending line or a sibling by blood, adoption or affinity, a child of the spouse or the cohabitee, a minor or a legally incompetent person living with him/her or who are subject to the authority, guardianship, custody, protection or supervision or de facto care of the spouse or cohabitee, a person covered by any other relationship making him/her part of the family circle or a person who, because of his/her particular vulnerability is held or cared for in public or private establishments, there are grounds for adopting what is termed a protection order, which may include the following measures: a) Deprivation of the right to live in certain places or have access to them b) A ban on approaching the victim or those members of his/her family or other persons determined by the judge or the court c) A ban on communicating with the victim or those members of his/her family or other persons determined by the judge or the court. c.2. Where the relationships listed above do not exist between the alleged victim and the accused, the aforementioned measures may also be adopted but, in that case, it would not be a protection order, but simply precautionary measures. Although these measures are classed as the deprivation of rights, it is equally true that they involve a restriction on individual freedom. c.3. In cases involving the alleged commission of a road traffic offence, there are grounds for the requiring the precautionary surrender of the driving licence, which in the most serious cases could well mean that the accused avoids pre-trial detention.

3 With all the measures restricting rights and in the case of measures of a financial nature, their adoption is usually accompanied by the requirement to enter an appearance at court, with or without surrender of the passport. Do they work? First of all, we need to consider what is meant by do they work? In connection with this, it could be said that virtually any measure which avoids the need for detention works since, of all the options which are likely to secure the desired result (keeping the peace, preventing reoffending, removing the risk of absconding etc.) the restriction of fundamental rights such as liberty should be the last option considered. Indeed, the main risk is that there is an increased likelihood of reoffending. Consequently, this is one of the reasons for refusing bail and ordering pre-trial detention. In connection with this, we cannot disregard the possibility that the bail terms may be breached, which could give rise to the offence of breach of preventive measures. As already mentioned, there are instances where there is the possibility of providing bail in order to avoid pre-trial detention. However, either because of the amount demanded or poor financial circumstances, the accused may be unable to provide bail and so is then placed in pre-trial detention. Could alternatives to pre-trial detention be promoted at European Union level? If yes, how? As the Grotius report states, the case-law of the European Convention and the European Court of Human Rights and especially the Court s judgments provide a benchmark with which to compare the standards of practice in relation to release on bail in the various countries, as the European Commission is currently doing in its proposals for legislation on procedural safeguards. According to that report, a person may be detained pending trial only if there continue to be relevant and sufficient grounds, having regard to the legal criteria which justified the detention. The decision must be supported by specific rather than abstract evidence and by generally accepted rather than stereotypical reasons. The court must examine all the evidence for and against the existence of genuine public interest grounds, having due regard to the presumption of innocence, the unusual circumstances or the need to depart from the normal rules concerning respect for individual liberty, and set out that evidence in its decisions on applications for release. The reasons for refusing an application are based on a well-founded fear that, if the accused were to be released, he/she might fail to appear, might obstruct the course of justice, would be likely to commit further offences or that his/her release might result in breaches of the peace. The gravity of the potential sentence should not in itself lead to the inevitable conclusion that, if he/she were to be released, the accused would evade justice. The risk that he/she might obstruct the course of justice needs to be identifiable and be supported by appropriate evidence. It should not automatically be

4 assumed that there is a risk of further offending simply because the accused has a criminal record. The consequences of refusing bail are not limited to the deprivation of liberty. It may have other serious consequences for the accused. It may lead to the loss of his/her job, his/her accommodation and a breakdown in his/her relationships, in addition to making it more difficult for him/her to prepare his/her defence and undermining the court s impartiality when the accused is brought before it from prison. Generally speaking, it seems that the courts take more care and have better guidelines when they are sentencing an accused who has previous convictions. It is therefore our view that there is an overwhelming need to promote the use of alternatives to pre-trial detention, since the necessary precautions need to be taken when deciding to detain a person who has not even been tried and who enjoys the constitutional right to be presumed innocent. Nor should we forget the systematic use of pre-trial detention for particular offences solely on the basis of circumstantial evidence. There have been many occasions where, after a person has been subjected to lengthy pre-trial detention, he/she is subsequently found innocent. Regarding how alternatives to pre-trial detention could be promoted within the European Union, this could be done by establishing some common mandatory rules for the Member States, setting out an extensive list of alternatives and also the circumstances in which they could be used. At the same time, greater use should be made of new technologies in applying those alternatives, provided that the technology is also used with informed consent, has a proportionate impact on the right to privacy and fully respects fundamental rights such as health, physical and mental integrity and personal dignity. Similarly, specific criteria need to be adopted which must be satisfied if pre-trial detention is to be used, avoiding the use of woolly legal concepts and requiring judges and courts to provide exhaustive grounds and in all cases prohibiting recourse to stereotypical decisions, at the same time placing a limit on the period for which a person may be detained. QUESTION 2 Post-trial: 1 What are the most important alternative measures to custody (such as community service or probation) in your legal system? In the Spanish legal system, these measures are to be found in Articles 80 et seq. of the Código Penal [Penal Code]. In their turn, these alternative measures are divided into two major categories: 1. SUSPENSION OF CUSTODIAL SENTENCES Articles 80 et seq. provide for the suspension of a custodial sentence in the following cases:

5 General cases A custodial sentence of less than two years may be suspended by a duly reasoned decision, having regard to the risk presented by the convicted person and to whether there any other criminal proceedings pending against him/her. The period for which the sentence is suspended will be two to five years in the case of custodial sentences of less than two years and three months to one year for light sentences. The conditions necessary for permitting suspension are as follows: 1. The convicted person is a first offender. For this purpose, account will not be taken of previous convictions for offences committed without criminal intent or of previous convictions which have or should have been cancelled pursuant to Article 136 of the Penal Code. 2. The sentence(s) imposed or the total of those imposed does not exceed two years, not including any sentences resulting from failure to pay fines. 3. The convicted person has discharged any civil liabilities which he/she may have incurred unless, after hearing interested parties and the Public Prosecutor s Office, the judge or court passing sentence holds that it is either totally or partially impossible for the convicted person to discharge them. Suspension of the sentence will at all times be conditional upon the convicted person s not offending within the period set by the judge or the court. Where the suspended sentence is custodial, if they consider it necessary, the judge or court passing sentence may also make the suspension conditional upon the fulfilment of certain obligations or duties imposed upon the convicted person from amongst the following: 1. A ban on entering certain places 2. A ban on approaching or communicating with the victim or those members of his/her family or other persons determined by the judge or the court 3. A ban on leaving his/her place of residence without the permission of the judge or the court 4. A requirement to appear in person before the court or tribunal or government agency designated by them in order to report on and justify his/her activities 5. A requirement to take part in training, work, cultural, road safety, sex education, environmental protection, animal welfare and other similar programmes 6. Any other duties which the judge or court may deem appropriate for the social rehabilitation of the convicted person, with that person s consent, provided that they are not degrading to his/her personal dignity. In the case of offences involving gender violence, the judge or court will in all cases make suspension conditional upon fulfilment of the obligations or duties set out in sections 1, 2 and 5 above.

6 The appropriate agencies of the competent government authority will inform the judge or court which passed sentence at least every three months concerning compliance with the conduct orders imposed. If the convicted person reoffends during the period of suspension, the judge or court will revoke the suspension of the custodial sentence. If during the period of suspension the convicted person fails to fulfil the obligations or duties imposed, having heard the parties, the judge or court may, depending on the case: a. Replace the conduct order with another one b. Extend the period of suspension, although it may not under any circumstances exceed five years c. If there is repeated lack of compliance, revoke the suspension of the custodial sentence. If the suspension is revoked, the judge or court will order the sentence to be enforced. If the period of suspension is completed without the convicted person s reoffending and if he/she has, where appropriate, complied with the conduct orders imposed by the judge or court, the latter will remit the sentence. Exceptional cases. These are covered by Article 87 of the Penal Code, which provides that, even where conditions 1 and 2 laid down in Article 81 are not fulfilled (the convicted person is a first offender and the sentence or the total sentences imposed do not exceed two years), having heard the parties, the judge or court may suspend custodial sentences not exceeding five years imposed on convicted persons who committed their offences as a result of their dependency on the substances listed in Article 20(2), provided that sufficient evidence is produced by a duly accredited or approved public or private centre or service that the convicted person has overcome his/her addiction or is undergoing treatment for that purpose at the time of the decision concerning suspension. The judge or court will in all cases request a report from a forensic medical expert concerning the above matters. Where the convicted person is a repeat offender, the judge or court will assess, in a reasoned decision, whether or not it is appropriate to suspend the sentence, having regard to the circumstances of the offence and the perpetrator. Suspension of the sentence will always be conditional upon the convicted person s not offending during the period set, which will be three to five years. Where the convicted person is required to undergo treatment for substance addiction, the suspension of the sentence will also be conditional upon his/her continuing with that treatment until it is completed. The centres or services responsible for the treatment will be required to provide the sentencing judge

7 or court, at the intervals determined by them and never at intervals exceeding one year, with precise information showing that the treatment has started and also with regular reports on its progress, any changes which may have been occurred and also on its completion. The judge or court will revoke the suspension if the convicted person fails to fulfil any of the requirements imposed. If the period of suspension is completed without the convicted person s reoffending, the judge or court will remit the sentence if evidence has been provided that the person concerned has overcome his/her addiction or is continuing with treatment. If this is not the case, they will order the sentence to be enforced unless, after examining the relevant reports, they deem it necessary for treatment to be continued; in such case, they may give a reasoned decision extending the period of suspension for not more than two years. 2 ALTERNATIVES TO CUSTODIAL SENTENCES Article 88 of the Penal Code contains a list of circumstances in which a custodial sentence may be replaced by others, viz: A custodial sentence of less than one year may be replaced by a fine or community service A custodial sentence of less than six months may be replaced by an order to remain permanently in a specified place. These alternatives will be permitted where the convicted person s personal circumstances, the nature of the offence, his/her conduct and, in particular, any efforts made to repair the damage caused mean that these options are to be recommended, provided that the person concerned is not an habitual criminal. Each day of imprisonment will be replaced by two penalty payments, by one day s community service or by one day of remaining permanently in a specified place. In such cases, the judge or court may also require the convicted person to fulfil one or more obligations or duties, if these have not been imposed as part of the sentence, during a period which may not exceed the duration of the sentence which is being replaced. In exceptional cases, judges or courts may replace custodial sentences not exceeding two years imposed on non-habitual criminals with a fine or a fine plus community service where, from the circumstances of the offence and those of the offender, it may be concluded that serving the custodial sentence would frustrate its purpose of preventing further offending and assisting social reintegration. In such cases, the custodial sentence will be replaced subject to the same requirements, under the same terms and conditions and using the same conversion factors as set out in the previous paragraph in respect of fines.

8 Where the person concerned has been convicted of an offence connected with gender violence, a custodial sentence may only be replaced by community service or an order to remain permanently in a place other than and separate from the victim s place of residence. In such cases, in addition to ordering the convicted person to undergo specific re-education and psychiatric treatment programmes, the judge or court may also order him/her to fulfil the obligations or duties laid down in Article 83(1)(1) and (2) of the Penal Code (Ban on entering certain places and ban on approaching or communicating with the victim or those members of his/her family or other persons determined by the judge or the court). In the event of failure to comply with all or part of the alternative sentence, the custodial sentence initially imposed will be enforced, where appropriate deducting the period of time equivalent to the parts already fulfilled, in accordance with the rules for conversion laid down in the previous paragraph. Under no circumstances may alternative sentences be imposed to replace sentences which are themselves alternatives. 2 Do they work? In our view, the measures described above do work, although there are some problems and difficulties with their enforcement. Suspended sentences are highly effective and are widely used. Their effectiveness lies in the fact that they are imposed on convicted persons who are not habitual criminals and therefore not repeat offenders and also because they are not conditional upon the convicted person s financial resources since, although one of their requirements is that the convicted person has discharged his/her civil liabilities, if he/she can demonstrate that he/she lacks financial resources, this condition does not apply. However, although suspended sentences are widely used and are generally effective, we do encounter the following difficulties: Where the custodial sentence is replaced by a fine, owing to the fact that many convicted persons do not have the financial resources to pay it, they eventually end up in prison. With community service, the main difficulty is the limited involvement of the public authorities and civil society organisations in the creation of places where this work can be done. As a result of this, judges tend to be very reluctant to replace custodial sentences with community service. 3 Could probation and other alternative measures to detention be promoted at European Union level? If yes, how? They should be promoted because they could become highly effective measures both in dealing with prison overcrowding and in achieving the desired aim of reintegrating offenders into society. In order to do this, it would be necessary:

9 To create mechanisms for mutual recognition of the various alternatives to detention or measures replacing detention used by the Member States To introduce the necessary technology in all the Member States to enable the alternative sentences to be served To involve the European Union at the stage when Member States are asked to become involved in the creation of places for the fulfilment of measures such as community service To explore ways in which these sentences could be served in the convicted person s home State. It is our understanding that, since the idea behind this question is to obtain information about alternative measures to detention (imprisonment), disseminate that information and possibly standardise those measures, Article 89 is not relevant. In addition, we would point out that, as a result of the current economic crisis, prison establishments are endeavouring to send those convicted persons who could serve alternatives to custodial sentences outside prison to the Centros de Inserción Social [Social Reintegration Centres CIS] in order to reduce the overcrowding caused by abuse of pre-trial detention. QUESTION 3 How do you think that detention conditions may have an effect on the proper operation of the EAW? And what about the operation of the Transfer of Prisoners Framework Decision? How do you think that detention conditions may have an effect on the proper operation of the EAW? Firstly, we consider that it needs to be made clear that, when we refer to detention, we mean both the moment at which a person is physically arrested because he/she is suspected of involvement in some criminal activity and the situation that person is in until a verdict is reached in proceedings against him/her, in which he/she is either found innocent or guilty or the case is dismissed without prejudice. It should be borne in mind that it is of fundamental importance for the creation of mutual trust between all Member States of the Union that both the form of initial detention and the treatment of detainees at that time and their treatment from that point up to the time they are released without charge or convicted should be subject to similar regulations in all Member States because, if there are differences between these regulations, this could lead to suspicions that fundamental rights are being infringed. A Member States not only could not but has a duty to refuse to participate in cooperation in the administration of justice with countries which are suspected of such infringements. In reply to the first question How do you think that detention conditions may have an effect on the proper operation of the EAW?, the point at which a person whom it is

10 intended to charge with a criminal offence is detained and the form that detention takes are of fundamental importance. At this stage, we find a conflict within the law in the form of the anomaly represented by the anti-terrorist legislation, since this introduced more stringent rules allowing suspects to be detained under an exceptional regime. In this regard, Section 3 The relationship between mutual recognition instruments and detention states that the principle of mutual recognition rests on the idea of mutual trust between Member States and that, without mutual confidence, a Member State might be reluctant to recognise and enforce the decision taken by another Member States authorities. As a result, in order for there to be mutual trust and, consequently, for a common EAW to be accepted, the measures set out in the Road Map should be approved and the minimum procedural safeguards should be extended. All the Member States should introduce common rules which are the same in all their essential features and which are binding, which does not mean that they should be minimum safeguards but rather compatible with the standards established by the ECtHR and by the future European Union legislation now being developed. 1. Where a person has been found committing an offence in flagrante, the police should contact the competent authorities in order to inform them in due and proper form of the arrests made. 2. Where possible, the person should be detained in the presence of witnesses, in order to prevent possible abuses. 3. On arrival at the police station, a lawyer, either freely chosen by the detainee or a duty lawyer (wherever so requested by the detainee), should be present in order to examine the charges and be present during questioning. He/she should also have access to the police reports and be able to communicate with the detainee before and after he/she has made a statement at the police station. The General Council of Spanish Lawyers has on many occasions made the point that these rights, which form part of Measure C of the Road Map, and the measure concerning free legal assistance are essential if we wish to achieve the aims of the European Union as an entity governed by the rule of law and those of the Member States as States governed by the rule of law. 4. Along the same lines as established by the proposal contained in Measure C of the Road Map, access to a lawyer, either freely chosen by the detainee or a duty lawyer (wherever so requested by the detainee), is essential so that he/she may examine the charges, be present during questioning, play an active and participatory role in providing a defence and assist and cooperate with the police in ensuring that adequate safeguards are provided during the proceedings. Following criticism made by five Member States who are opposed to the proposals contained in Measure C, the Spanish legal profession has widely demonstrated (for example through its recent support for fast-track trials or the

11 signing of consent protocols) that it is a responsible profession which is committed to upholding the law and ensuring justice for citizens, which includes a commitment to the aim of ensuring that our public administration operates smoothly and effectively. In fact, the General Council of Spanish Lawyers every year organises major seminars in collaboration with the Cuerpo Nacional de Policía [National Police Service] on topics of mutual interest. 5. Before being taken to the police station, the detainee should have been examined by a doctor (of his/her choice, if he/she so wishes). Similarly, the detainee s health should be checked by a doctor, either daily or whenever he/she so requests. 6. The police should report on their actions on a daily basis to the competent judge so that, on the basis of the information supplied, he/she may order the end of the detainee s detention within police premises. 7. Interrogations, at which a lawyer must be present, should be recorded at all times. The measures recommended could be similar to those adopted when telephone calls are intercepted, where the police have to produce the results of the telephone taps to the judicial authorities in order to obtain permission to continue the surveillance. Consequently it is our view that, if there are deficient safeguards concerning the initial period of arrest and there is therefore no trust between Member States at this crucial point, the rest of the proceedings would be affected and would consequently relieve a State of the obligation to cooperate. For all these reasons, it is in respect of this period that we need to lay down rules which should be as similar as possible and which respect the fundamental rights protected by international law. Consequently, it is essential to provide safeguards at that initial point, so as to ensure cooperation during the subsequent stages. And what about the operation of the Transfer of Prisoners Framework Decision? This is a matter of fundamental importance in decisions on whether to transfer a prisoner, that is to say a convicted person with a final sentence, to his/her home State. As we have said before, if conditions are not equal in all Member States, and there are some which infringe fundamental rights, it could be said that it is unlikely that they would afford them to persons serving sentences. We have to accept that, in matters regarding imprisonment, any authorities in any country may have their idiosyncrasies. However, in Spain, convicts are considered to be subject to a special regime.

12 Stricto sensu, for official purposes convicts may be called internos [persons in custody] and, for administrative purposes, according to the case-law on prisons, they are considered, although they are not called, persons subject to a special regime since, apart from liberty, they enjoy all citizen s rights which are not restricted by their sentence. This is the case because, when they are punished by solitary confinement, it is understood that a person who has already been deprived of his/her liberty cannot be deprived of it again. The case-law resolved this problem by considering them as subject to a special security regime which could restrict their liberty even further, by holding them in isolation cells for a maximum of 42 days. Within these parameters, we may then consider the possibility that a convicted person could serve his/her sentence in his/her country of origin. In this regard, reality shows that there are a large number of prisoners within Spanish territory who do not wish to serve their sentence in their country of origin, for reasons connected with health, vengeance, more stringent legislation etc. This stage is therefore equally important as that discussed previously and is connected with the fact that authorisation should not be given for transfer where the prisoner would serve his/her sentence under worse prison conditions where his/her personal situation would also be worse. Member States should adopt a series of measures to enable/encourage the transfer of prisoners. For example, in order to achieve a minimum agreement, it should be based on a series of requirements to ensure equivalence between Member States prison regimes. If an agreement were secured concerning the form of initial pre-trial detention and treatment during it as we described above, Member States would have to give up their local powers regarding prison administration in order to comply not only with the EU regulations, but also with the provisions of international treaties accepted and signed by those States. For the purpose of transfers, two aspects need to be worked on: The country of destination should not have more stringent prison legislation, excluding the death penalty and life imprisonment The country of destination should have legislation offering reasonable benefits, since the principle of the greatest benefit must at all times be applied. Within the European Union, this means the citizen s right that if a person commits an offence and is convicted he/she may serve the custodial sentence or measure depriving him/her of liberty in his/her country of origin. This probably means that we are talking about something equivalent to an aspect of free movement, which could be seen as the freedom of movement of persons subject to a special regime, as described previously. It would be interesting to investigate whether, within the constantly evolving legal construct which is the European Union, changes could be taking place in the legal status of prisoners. In fact, as part of European civil rights and with the logical limits

13 inherent in his/her situation, a person serving a sentence could enjoy certain aspects of European citizenship in that he/she is entitled to transfer funds, vote in elections in his/her country of origin or even perform paid services in a foreign prison. In connection with this, our General Council has also received reliable reports concerning the working conditions within prisons for prisoners performing paid work, whose wages are much lower than those of other workers and who are systematically paid for fewer hours than they have actually worked. It is only rarely that they are paid the minimum wage. These conditions form a substantial part of the reasons which could influence decisions regarding possible transfers. In this regard in fact, the bilateral agreements concerning transfer and serving of sentences stipulate the means and forms whereby sentences imposed in one country are to be served, so that they may be served in the convicted person s country of origin or residence, for which purpose the person concerned must request transfer and consent to it. To conclude, despite the logical division of powers, it is possible that not only the Member States but also the European Union itself could become involved in providing solutions, provided that they do not affect higher-ranking matters of public order connected with Member States prison policies. CHAPTER 2: PRE-TRIAL DETENTION QUESTION 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? Within the Spanish legal system, Article 24 of the Constitution establishes the right to effective protection by the courts, to the presumption of innocence and to a public trial without undue delay: 1. All persons shall be entitled to the effective protection of judges and the courts in the exercise of their legitimate rights and interests and under no circumstances may they be deprived of a proper defence. 2. Similarly, all persons shall be entitled to access to the ordinary courts as determined by the law, to defend themselves and to the assistance of a lawyer, to be informed of the charges against them, to a public trial without undue delay and with all necessary safeguards, to use the means of evidence appropriate for their defence, not to testify against themselves, not to plead guilty and to be presumed innocent. The law shall govern those cases where, for reasons of relationship or professional secrecy, a person shall not be required to give evidence concerning alleged offences. These are the principles which should underpin decisions imposing pre-trial detention on accused persons. However, in many cases, the protection of the courts proves

14 ineffective and undue delays occur, which mean that accused persons spend longer in detention. The last reform of the Penal Code removed the possibility that time spent in pre-trial custody by a person already serving a sentence who is at the same time held in pretrial custody might be counted in both cases and, on the other hand, undue delay was accorded acceptance as a mitigating circumstance. However, very recent case-law has specifically been applying this principle, at least partially, with the effect that pre-trial detention in one case can be counted towards completion of the sentence which is already being served. Within this legal framework, Article 504 of the Ley de Enjuiciamiento Criminal [Law on Criminal Proceedings LECrim] provides that pre-trial detention shall last the time necessary to achieve one of the aims set out in Article 503 LECrim and for as long the grounds for its imposition continue to apply, provided that there is sufficient evidence in the case file to support the belief that the person against whom pre-trial detention is to be ordered is criminally responsible for the offence. These aims are as follows: To ensure that the accused appears at the trial where it could rationally be inferred that there is a risk of his/her absconding In order to assess the existence of that risk, regard shall be had to the nature of the offence, the severity of the sentence which could be imposed on the accused (two years or more), his/her family, employment and financial situation and also the imminence of the oral hearing, particularly in those cases where there are grounds for using the fast-track trial procedure provided for in Book IV, Title III of this Law. It shall be appropriate to place the accused in pre-trial detention on those grounds where, in the light of his/her background as ascertained by the investigations, at least two summonses or warrants have been issued against him/her by any judicial body within the previous two years. In such cases, the restriction that the sentence provided for the offence in question must be at least two years shall not apply. To prevent the concealment, alteration or destruction of sources of evidence relevant to the proceedings in cases where there is a justified and specific risk. Pre-trial detention shall not be imposed on those grounds where such a risk is inferred solely from the exercise of the right of defence or lack of cooperation on the part of the accused during the investigations. In order to assess the existence of such a risk, regard shall be had to the potential for the accused to gain access to sources of evidence either him/herself or via third parties or to influence other accused persons, witnesses or experts or any other persons likely to be involved in those capacities.

15 To prevent the accused from acting against the legal interests of the victim, especially where the victim is one of the following persons (Article 173(2) of the Penal Code): a person who is or has been the spouse of the accused or a person with whom he/she was in a similar intimate relationship with him, whether or not they were cohabiting, relatives in the descending or ascending line or siblings by blood, adoption or affinity, children of the spouse or cohabitee, or minors or persons lacking capacity living with him/her or who are subject to the authority, guardianship, custody, protection or supervision or de facto care of the spouse or cohabitee, a person covered by any other relationship making him/her part of the family circle or a person who, because of his/her particular vulnerability is held or cared for in public or private establishments. In such cases, the sentence limit shall not be applicable when the decision on pre-trial detention is taken. To prevent the risk that the accused may commit other serious criminal offences. To assess the existence of this risk, regard shall be had to the circumstances of the offence and also to the seriousness of the offences which he/she might commit. Pre-trial detention may be imposed on those grounds only where the alleged offence is of a serious nature. However, the stipulated limit of one year or two years as a maximum depending on the length of the sentence provided for the offence committed shall not apply where, from the accused s record and other information and circumstances presented by the Policía Judicial [Judicial Police] or which emerges from the investigation, it may reasonably be inferred that the accused had acted in collaboration with one or more other persons in an organised fashion in order to commit crimes or is an habitual criminal. Similarly, our legal system regulates the maximum duration of pre-trial detention: Duration not exceeding one or two years: where pre-trial detention has been imposed to ensure that the accused appears for the trial or to prevent the accused from acting against the legal interests of the victim, pre-trial detention may not exceed one year if the offence attracts a custodial sentence of three years or less, or may not exceed two years if the offence attracts a custodial sentence exceeding three years. Extension of pre-trial detention: However, where there are circumstances leading to the belief that the case could not be heard within those time limits, the judge or court may, on the terms laid down in Article 505, order a single extension of up to two years if the offence attracts a custodial sentence exceeding three years or of up to six months if the offence attracts a custodial sentence of three years or less.

16 If the accused is convicted, pre-trial detention may be extended for a period up to half the sentence actually imposed by the judgment, where it has been appealed. Duration not exceeding six months: Where pre-trial detention has been imposed to prevent the risk of the concealment, alteration or destruction of sources of evidence relevant to the case, it may not exceed six months. Comments: However, where orders have been given concerning solitary confinement and the confidentiality of judicial investigations if, before the term established in the previous paragraph expires, the solitary confinement or confidentiality order is lifted, the judge or court must justify the continued pre-trial detention. Release after maximum terms of pre-trial detention: once the maximum terms for pre-trial detention have expired, the accused shall be released, but this shall not prevent pre-trial detention from being reimposed should the accused without legitimate reasons fail to appear in response to any summons from the judge or the court. In calculating the maximum periods established for the purposes of release from provisional detention, account shall be taken of the length of time for which the accused may have been detained or subject to pre-trial detention in respect of the same case. However, any delays in the case which are not attributable to the judicial authorities shall be excluded from this calculation. Where the pre-trial detention imposed has already lasted two-thirds of its maximum duration, the judge or court hearing the case and the Public Prosecutor s Office shall notify this fact to the Presidente de la Sala de Gobierno [President of the Governing Chamber] and the Chief Prosecutor of the relevant Court respectively, so that they may take the measures necessary to speed up the proceedings. To that end, the proceedings in question shall enjoy priority over all other proceedings. Within our system, although it is claimed that pre-trial detention is an exceptional measure, the truth is that there is a wide margin of discretion when it comes to assessing the reasons for imposing it, since the judge has to contend with too many poorly-defined legal concepts. However, the fact that there are delays in the processing of cases and that the prisons are overcrowded are factors which mean that many accused at risk of absconding avoid going to prison. There is no specific provision in Spanish law for alternatives to pre-trial detention. The only provision is for entry to centres to continue treatment for narcotic abuse or rehabilitation where treatment has already commenced and was commenced prior to the offences giving rise to the decision concerning pre-trial detention. Amongst those who took part in preparing this document, there are differences of opinion on the following points. Some experts argue that it would be desirable that, in the same way that in the last reform of the Penal Code attempts were made to

17 encourage greater recourse to alternatives to prison following imposition of the final sentence, it should also be made possible to apply alternatives to pre-trial detention (electronic tagging, outpatient treatment, participation in educational programmes, fulfilment of certain duties etc.). However, other experts maintain that a large number of these measures are security measures, applied only after conviction and so are not really alternatives to pre-trial detention. In a recent case, the investigating magistrate requested reports from prison establishments, the Guardia Civil and the police concerning the effectiveness of tagging a remand prisoner in order to prevent absconding. The reports received stated that this was not advisable because only convicted persons may be tagged and, secondly, because the tags are not considered secure. From this it may be concluded that it could be a good idea to examine these matters further at national and supranational level and, in particular, within Europe before reaching any firm conclusions. Furthermore, it is the case that Spain, as mentioned in the Green Paper, is one of the European countries where pre-trial detention may last as long as four years since, even though the maximum limit is set at two years, there is the possibility of extending pre-trial detention by up to a further two years. Detention may even last more than four years where the accused is convicted at first instance, since the law permits pre-trial detention to be extended up to a maximum of half the sentence actually imposed in the judgment where it has been appealed and we could be looking at sentences of 12 years or more, where half the sentence (6 years) would considerably exceed four years. There is a system of appeals (reforma [appeal for amendment] and apelación [ordinary appeal]) designed to ensure that the decision imposing pre-trial detention is reviewed although, since the appeal for amendment must be lodged before the body which imposed the pre-trial detention, it is not likely to be successful. In many cases, the effect of the ordinary appeal is to delay the decision concerning release and, in the majority of cases, it is more effective not to go down the appeal route, but rather to apply for release once a reasonable period of time has elapsed since the pre-trial detention was imposed. QUESTION 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? Spain is one of the countries where, in recent years, the number of instances in which pre-trial detention may be ordered has increased and these have now exceeded the cases for which it was initially designed as an exceptional measure, that is to say where, as there is a risk of absconding, a risk of obstruction of the investigations or a risk to the victim, witnesses or other persons, there is no other less stringent preventive measure which could be imposed on the accused. To this should be added the extension of the maximum limits on pre-trial detention and the lack of alternative preventive measures to detention and the limited use made of them, with the exception of bail, which can only be used in the case of persons who are sufficiently solvent.

18 On the one hand, in the case of the offences for which it is applicable, in addition to the traditional cases involving conduct of major significance and relevance, pre-trial detention may be imposed on a person suspected of having committed minor criminal offences simply because he/she has a criminal record or it is suspected that that person acted in a group or is an habitual offender, whatever the gravity of the offence of which he/she is accused. As regards the aims which the preventive measure is intended to achieve, in addition to the aims mentioned above (preventing the risk of absconding, preventing the destruction or adulteration of evidence and other items and preventing the accused from acting against the victim s legal interests), pre-trial detention can be used by judicial bodies to prevent further offences, which implies prejudging the accused and thereby violating the primacy of the presumption of innocence. In this way, pre-trial detention has ceased to be an exceptional measure and can now be used in virtually any situation where criminal proceedings are being conducted in connection with a serious criminal offence. In addition, with regard to maximum terms, at present with the extension system, this stands at 4 years, and may even reach up to half the sentence imposed by a provisional judgment or a judgment which has been appealed. Nor should we fail to mention the highly criticised solitary confinement regime (detention and imprisonment) which demands the utmost safeguards regarding the detainee s situation. Pre-trial detention is the harshest measure which can be imposed on a person who is the subject of criminal proceedings and has terrible consequences for those who have to suffer it. It is not covered by the normal prison regime, the detainee is not eligible for the tercer grado [open regime towards the end of a sentence], parole or prison benefits, which are only available in full to convicted persons, as a result of which time spent in pre-trial detention is much harsher than time spent serving a custodial sentence. It is also important to remember that, on many occasions, the person is finally found innocent or receives a sentence other than or less than the pre-trial detention suffered, a situation which is difficult to redress. The current situation is not helping to restrain certain departures from the desirable standards which are occurring in some States. A clear example of this is the continuation of the solitary confinement regime in Spain. We are aware that this undermines confidence in Spain on the part of the other Member States of the European Union within the meaning used in the Green Paper. In order to prevent such situations and to ensure that pre-trial detention is a genuinely exceptional measure, we consider that, insofar as the division of powers permits, minimum standards should to be established within the European Union as a matter of urgency, by means of regulations, directives or other binding rules, in order to standardise the principles governing pre-trial detention applied by all the Member States. We also consider that minimum standards need to be established concerning the maximum limits on pre-trial detention and also criteria for its application, the right to challenge its legality and the right of access to remedies. In doing this, the

19 benchmark should be those regulations applied within the Member States which provide the greatest safeguards and respect for human rights. If so, how could this be better achieved? A European habeas corpus regulation could be an initial measure to improve this situation. Amongst other available options, once the habeas corpus process has been completed, the competent judge could issue the appropriate orders in order to obtain immediate information on the condition of the detainee, requiring the authority having custody of him/her to supply all necessary information. Within 72 hours of the application s being submitted, the detainee would be brought before the court, with no exceptions of any kind being permitted to the persons having custody of him/her and the necessary measures being taken to ensure his/her transfer. Once the person applying for habeas corpus has been examined by the judge having jurisdiction, the latter would give a decision ruling on the legality or otherwise of the deprivation of liberty and, in each case, ordering the detention to be continued or the immediate release of the detainee. This procedure could for example be requested by the detainee, his/her lawyer, Eurojust or the European Ombudsman or the Ombudsman in the country concerned. Set up a European Observatory on Remand/Pre-trial Detention which would examine the various legal systems and establish as a model the one which provides the greatest safeguards, obtaining a real commitment from the Member States to change their national legislation and adopt those minimum standards. Develop mandatory rules directly applicable by the Member States, so that failure to comply with them by any State would result in a series of penalties or economic sanctions and any citizen could complain of a breach of those rules. Those rules would as a minimum have to cover the following: - Exceptional cases where pre-trial detention could be imposed (only as a last resort, where there is no other less stringent measure and for serious offences involving specific matters and/or presenting a certain threat). - The aims it is desired to achieve: to prevent the risk of absconding, the destruction of evidence or obstruction of investigations and to protect victims and/or witnesses. - The requirement for an audi alteram partem procedure for its imposition, with the assistance of a lawyer for the accused. - The requirement for the regular automatic review of the grounds on which pre-trial detention was ordered. - A maximum limit: 2 years in the most serious cases.

20 - A ban on solitary confinement in detention or on remand. - The right to choose a lawyer in all cases. - The right to be examined by a forensic medical expert in all cases and the possibility of also being examined by another doctor at the accused s expense. - The right to be assisted by a lawyer before making a statement to the law enforcement agencies and before the court. - The other rights contained in Article 520 LECri, regarding which there is a certain international consensus. At a later stage, the European Observatory, which could for example come under the Agency for Fundamental Rights, would have monitoring functions regarding the correct implementation of all these measures and how each Member State is complying with them. What other measures would reduce pre-trial detention? In order to reduce the abuse of pre-trial detention, all that is necessary is to promote the use of non-custodial measures, as provided for in our Law on Criminal Proceedings, in the Council Framework Decision 2009/829/JHA of 23 October 2009 on the application of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (European Supervision Order). In general terms, expand the use of preventive measures, leaving pre-trial detention as a last resort. Develop a system of alternative measures similar to or even more extensive than that applicable to convicted persons, which include, in addition to a bond: The requirement for the judicial body to assess the accused s personal circumstances so that, where necessary, reports may be requested from or produced by public and/or private bodies which may possess such information. Treatment for drug addiction as an inpatient or an outpatient at an approved or accredited centre (voluntary). Participation in other therapeutic programmes (voluntary). Personalised monitoring by the appropriate government agencies with or without the imposition of conduct orders. The use of remote surveillance.