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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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Spain Table of Contents