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Spain Criminal Justice and the Penal System
Spain's criminal justice system, which is based on
Roman law,
extends customary procedural safeguards to accused
persons.
Article 17 of the 1978 Constitution prohibits arbitrary
arrest
and imprisonment. It also provides that there be a maximum
period
of preventive detention (set by law at seventy-two hours),
and
that the arrested person be informed of his or her rights,
including the right to an attorney, the right to an
explanation
of the reason for the arrest, and the right to be present
at the
trial. The Constitution abolishes the death penalty,
except for
certain military crimes in wartime. Under the Socialist
government that took office in 1982, laws were passed
providing
for a limited right of habeas corpus for suspects to
appeal
against illegal detention or mistreatment. Defendants
unable to
afford counsel were assured of free legal assistance. A
Public
Defender's Office was formed that had authority to look
into
complaints by citizens and to initiate investigations.
Trial by
jury, which had been abolished by Franco, was part of the
Socialist electoral program, but its introduction was
delayed by
differences with the judiciary as to the precise role the
jury
would play.
A full-scale revision of the Penal Code was being
prepared in
the late 1980s, but a number of significant changes had
already
taken effect. The principle of suspended sentences was
introduced. Pollution of the environment was made a crime,
and
distinctions were introduced between hard and soft
narcotics in
sentencing illicit producers and dealers. Earlier
provisions of
law that had legalized the possession of small quantities
of soft
drugs were reaffirmed.
After the Civil War, crimes involving the security of
the
state were handled outside the regular court system. From
1941
until 1963, military courts had sole charge of all crimes
against
national security, in many cases through summary courts
martial.
Offenses ranging from treason and sabotage to the
fostering of
strikes and membership in illegal associations came under
the
jurisdiction of military courts. In 1963 Franco created
the
three-judge civilian Court for Public Order to deal with
all
nonterrorist internal security offenses, such as belonging
to
illegal parties and distributing antigovernment
propaganda. In
1968, however, and again in 1975, after intensified
terrorist
action, various crimes were added to the state security
category,
restoring them to military jurisdiction. In 1980 the
charging or
the trying of civilians by military courts was prohibited.
Antiterrorist laws adopted in 1980 and in 1981, in
response
to a wave of killings by Basque terrorists, had the effect
of
suspending certain constitutional guarantees. Anyone
charged with
supporting terrorism could be held virtually incommunicado
for up
to ten days (later reduced to three days). A suspect's
home could
be searched, his mail opened, and his telephone tapped. A
detainee in a terrorism case had the right to an appointed
attorney who could formally advise him of his rights, and
who
might be present during his interrogation, but who could
not
consult with the detainee until the interrogation was
completed.
The international human rights group, Amnesty
International,
Spanish civil rights organizations, and the Spanish press
have
drawn attention to abuses of these exceptional powers
given to
police under the antiterrorism laws. In several of its
annual
reports, Amnesty International has said that detainees
were not
accorded access to counsel while in custody, that few were
actually charged with crimes, that habeas corpus rights
were not
respected, and that insufficient judicial and medical
supervision
was exercised. The organization's claims of widespread
mistreatment and torture, mainly of alleged members of
Basque
terrorist organizations, were supported by the annual
reports on
human rights of the United States Department of State. The
Spanish government asserted, for its part, that detainees
under
the antiterrorist laws routinely lodged complaints of
police
brutality or torture, whether or not there was cause.
Nevertheless, in 1986 the courts sentenced thirty-nine
members of
security forces for mistreatment of prisoners, and an
estimated
150 additional cases were pending.
One of the most persistent problems of the judicial
system
was the delay in bringing cases to trial. As of 1986,
these
delays averaged eighteen months for minor offenses and
between
two and four years for serious crimes. In 1980, in an
effort to
curb the growing incidence of crime, bail was made
available only
for those accused of crimes for which the penalty was six
months
or less. By 1983 the large number of prisoners awaiting
trial
obliged the government to introduce a law raising to two
years
the maximum time that an accused could be held pending
trial on a
minor charge and to four years, on a serious charge.
Spanish statistics reflected increases of 5 to 10
percent
annually in the incidence of crime during the late 1970s
and the
1980s. Foreign tourists in particular were frequent
victims of
armed and violent robberies. The rise was attributed
largely to
the economic and social problems of urban areas where
recent high
school and college graduates faced unemployment rates
often in
excess of 20 percent
(see The Unemployment Problem
, ch.
3). The
growing problem of drug addiction also contributed to the
number
of robberies in cities and in resort areas.
Over 90 percent of all crimes reported in 1986 were
offenses
against property. The next most significant
crimes--against
persons and internal security as well as the abandonment
of
family and personal injury--each contributed only between
1 and 2
percent to the total. Despite liberal laws in this area,
the
number of persons arrested on narcotics charges rose from
about
9,000 in 1980 to nearly 22,000 in 1987. Nevertheless, in
Spain as
a whole, the official crime rate continued to be lower
than it
was in most other countries of Western Europe.
The prison population as of 1987 consisted of 17,643
individuals, of whom 1,486 were women. Of the total, about
7,700
were serving sentences, and nearly 9,000 were detained
pending
trial. An additional 7,200 were inmates of other
correctional
institutions and halfway houses. Many complaints of
overcrowding
and inadequate medical attention had in the past been
leveled
against prison conditions. A series of riots between 1976
and
1978 had been provoked in major part by the crowding and
by
delays in sentencing. Under the Franco government,
periodic
amnesties had helped to reduce pressures from the
expanding
prison population. The ban in the 1978 Constitution
against such
amnesties had led to a buildup that necessitated an
ambitious
construction and renovation program. As a result, by 1984,
one-third of existing prisons had been built in the
previous five
years, and many others had been modernized. Prisons, which
numbered forty-seven in 1987, were located in most of the
main
population centers. The largest prisons by far were in
Madrid and
in Barcelona, each of which had inmate populations of more
than
2,000. None of the others housed more than 800 prisoners.
Although in a 1978 report a committee of the Spanish
Senate
(upper chamber of the Cortes) had severely criticized the
treatment of inmates, subsequent evidence indicated
considerable
improvement. The International Red Cross was permitted to
inspect
prison conditions whenever it desired. It reported that
facilities were satisfactory in the majority of cases, and
it
described Yeserias Women's Prison in Madrid, where female
militants of the Basque movement were held, as a model for
the
rest of the world. There were several open prisons from
which
inmates were allowed to return to the community for
specified
periods. Conjugal visits were allowed on a limited basis.
Rehabilitation facilities were said to be almost
nonexistent,
however.
Data as of December 1988
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