The right to a defence in the criminal procedure of the young spanish democracy

• Author: Juan-Luis Gómez Colomer
• Position: Professor of Criminal Procedural Law, Jaume I University, Castellón, Spain
• Pages: 114-130

LESIJ NO. XX, VOL. 2/2013

THE RIGHT TO A DEFENCE IN THE CRIMINAL PROCEDURE

OF THE YOUNG SPANISH DEMOCRACY

Juan-Luis GÓMEZ COLOMER*

Abstract

Although the designated topic for discussion is the technical right to a defence in Spain, I consider it

opportune to give a brief overview of the curr ent criminal procedural situation in my country. Spain is a

young democracy of only 35 years in which sovereignty was returned to the people with the 1978 constitution,

the moment that marked the beginning of a period dur ing which we have enjoyed the full range of freedoms.

Keywords: right to a defence, criminal procedur al law, constitutional rights.

I. Spain, a constitutional monarchy

Allow me first to explain by way of introduction why it is that Spain is a democracy, not

just on paper but also in reality. Spain has ratified all internationally approved legislation with

respect to human rights, both at European and international and supranational levels. These

international treaties are in full vigour and can be placed on the second rung of the hierarchical

ladder, between the C onstitution and the organic and ordinary laws. Article 10, section 2, of the

Spanish Constitution clearly states that laws must be interpreted according to the principles of

basic rights and freedoms recognised therein, in line with the Universal Bill of Human Rights and

the international treaties and agreements ratified by Spain dealing with the same matters.

This means that, as these laws are in effect in Spain, an y suspect, whatever the crime

involved may be or his nationality, can appeal to these laws and the rights contained therein in

their defence, and the authorities are obliged to respect and enforce these. The same is true of

witnesses and insurance surveyors, as well as the victims of crime in such cases, as happens in

Spain, where they are both the accu sing party and the civil party in criminal procedure. And this

is exactly what happens on a daily basis due to the cosmopolitan nature of my country (according

to official statistics for 2011, there is a population of some 47 million Spanish residents and almost

57 million tourists visit annually, mainly from Germany, the UK, Italy, France and the US, with

almost 6 million legal foreign immigrants registered, mainly from Latin America, Northern and

Central Africa and Eastern Europe. The largest colony is made up of Rumanians with more than

9 hundred thousand people.

In order to understand the movement of criminal and criminal procedural legislative reform

in Spain it helps to refer to the aforementioned democratic transformation. Following this, most

major reforms of this nature since 1978 have essentially consisted of strengthening the range of

guarantees for the defendant and adapting our criminal procedure to suit the postulates of

accusatory criminal procedure, especiall y in the in struction stage. B ut these ch anges were no t

sufficient. A Law for Criminal Procedure was needed. La Ley de Enjuiciamento Criminal

(henceforth to be abbreviated to LECRIM), was totally n ew and replaced the relic from 1882, a

descendant of the Napoleonic Coded’instruction crimin elle from 1808, and therefore describes a

mixed accusatory system (or what the Germans call revised criminal procedure) and is worthy of

the 1995 Criminal Code. The government plans to present the corresponding b ill during the

current term of office (2011-2015). One specific problem will be how to regulate the criminal

* Professor of Criminal Procedural Law, Jaume I University, űastellón, Spain (e-mail: colomer@dpu.uji.es).

Juan-Luis G C 115

LESIJ NO. XX, VOL. 2/2013

procedural fight against terrorism within what remains an overall model of accusatory criminal

proceedings - this will not be at all easy, as will be seen in the forthcoming pages.

Criminal procedural reforms since the reinstatement of democracy in Spain, the most

important anyway, have affected not on ly the summary stage of Spanish criminal procedure, but

also the regular process and the right to a defence, the area we are primarily concerned with here.

Many of these reforms have not been brought about by procedural laws in the strict sense of the

words, but rather through, for example, major reforms in the Criminal code. I will offer a fairly

full list as some knowledge of the major reforms helps better understand our particular situation

and allows for comparison at this time of such significant legislative reform in Rumania:

1) Legislation:

A. Changes which affect ordinary and special processes

a) Jurisdictional conflicts: The Organic Law (henceforth abbreviated to OL) 2/1987, from

18th May, annulled articles 48 to 50 of the LECRIM pending new legislation on the matter.

b) The creation in Spain of a National High Court. Almost two years prior to the Constitution a

trial court was created specifically with the purpose of trying certain especially serious crimes such as

terrorism, the National High Court (henceforth abbreviated to NHC). Its existence is sanctioned under

articles 62 onwards in the Courts Act (henceforth abbreviated to CA).

c) Changes in jurisdictional authorities for the criminal courts. These were introd uced

following the LO 4/1988, from 25th May, relating to reform of the LECRIM, with the LO 7/1988,

from 28th December, relating to criminal trial courts which modified various precepts from the

LOPJ and the LECRIM, and with the Law 36/1998, from 10 th November, which modified article

14, sections 1 and 3, of the LECRIM. A law from 2009 gave certain certain functional judicial

authority to the court clerks.

d) New legislation was introduced to combat gender violence. The Law 27/2003, from 31st

July, brought in the restraining order for cases of domestic violence, but it was the LO 1/2004 Full

Protection against Gender Violence, from 28th December, which dealt in more detail with the civil

and criminal regulation in cases of gender violence involving a man, either the husband or the

sentimental partner, and a woman even when they do not cohabit. New criminal offences were

introduced and other existing ones were modified. The great novelty was the creation of a new

jurisdictional organ with specific responsibilities, the Trial Court for Violence against Women.

e) The demand for criminal accountability for corporations (Corporate Criminal Liability)

in a criminal trial: The regulation of criminal accountability for corporations came into being for

the first time in Spain th rough a 2010 law reforming the Criminal Code, which overlooked the

need to provide trial entities to make these hearings possible. These provisions were introduced

later in Law 37/2011, concerning Medidas de Agilización Procesal (Measures to Speed

Procedure), from 10th October, and had a profound impact on the fight against terrorism as the

front companies used by armed organisations, especially for financing their activities, could now

also be brought to trial meaning that, either by collective or individual criminal trial, the results

have been much better and more satisfactory for society.

f) New speedy criminal trials, hugely important as they are sufficient for less serious crimes

and misdemeanours, which are the most numerous, were introduced, one through the LO 7/1988,

from 28th December, and the other through Law 10/199 2, from 30th April. These were

subsequently reformed by the LO 2/1998, from 15th June, which meant modifications being made

to the Criminal Code and the LECRIM, and again by the LO7/2002, from 5th July, meaning partial

reform to the LECRIM amongst other laws.

g) Misdemeanor trials. Law 10/1992, from 30th April, made significant changes to this

ordinary process, one of those originally considered in the LECRIM.