The Writ of Habeas Corpus & Criminal Proceedings in Spain
The Writ of Habeas Corpus
Law 6/1984 of May 24 provides a procedure to address alleged illegal detentions of citizens. This procedure ensures a swift judicial determination of the detention’s legality and conditions, accessible to all citizens. The process is summary and extraordinarily fast (24 hours) to address illegal or improperly conditioned detentions with utmost speed. The competent judge is typically from the location of detention. However, if this is unknown, jurisdiction falls to the judge where the detainee was last seen. Article 55.2 of the Spanish Constitution designates the Central Investigating Judge. In military cases, the Judge of the Military Tribunal heads the district court where the detention’s legality is determined. The detainee, spouse or similar, descendants, ascendants, siblings, and legal representatives of minors or disabled individuals can initiate the procedure. No formalisms are required; a verbal or written statement to the competent judge suffices without legal representation. The court’s unappealable order determines whether proceedings commence. If initiated, within 24 hours:
- The detainee’s remand is ordered.
- The detainee, lawyer, legal representative (if any), prosecutor, and arresting authority are heard.
- Evidence is examined, if applicable.
- A decision is issued, confirming or revoking the detention, without prejudice to potential criminal liability for those who ordered the illegal arrest.
Special Criminal Proceedings for Terrorist Acts
The National Court handles prosecutions for terrorism, with the Central Criminal Court addressing severe penalties and the Central Investigating Court leading investigations. Individuals detained for terrorism-related crimes are brought before a judge within 72 hours, potentially extended by 48 hours with reasoned justification to the judge within the initial 48 hours. Solitary confinement can be ordered. In exceptional or urgent cases involving alleged perpetrators of acts under Article 384 bis, police officers can act independently, including searching premises and seizing items. These actions must be reported to the competent judge, detailing individuals involved, reasons, results, and any arrests. Interception of communications related to terrorist crimes can be authorized by the Minister of Interior or the Director of State Security in emergencies, subject to judicial confirmation within 72 hours.
Article 384 bis of the Criminal Procedure Code: “An indictment and provisional detention are ordered for crimes committed by individuals linked to armed groups or individual terrorists or rebels. Accused individuals holding public office are automatically suspended for the pretrial duration.” This suspension occurs only after provisional detention is ordered and lasts for the detention’s duration.
Injurias and Slander
These crimes have a one-year statute of limitations and are handled through urgent and preferential summary proceedings. Key features include the impossibility of initiating private prosecution, the effectiveness of the offended party’s pardon in extinguishing criminal liability, and the possibility of resignation or withdrawal. Due process characterizes the judicial process, but prior authorization may restrict access to justice. Two key questions arise regarding the license ruling: 1) The alleged violation of the right to honor due to mandatory license denial cannot be used to justify self-harm. 2) The immediate result of complaints in civil defense is not a judicial act, and the court cannot adopt the defendant’s statements in civil or extrajudicial proceedings. The fundamental right to honor is not violated by a court denying a license application, as the right to effective judicial protection does not guarantee a conviction. Jurisdiction over crimes against fundamental rights and freedoms lies with the general jurisdiction courts, specifically the criminal courts.
State of Emergency and Siege
The government, by decree approved by the Council of Ministers and authorized by Congress, declares a state of emergency. Congress, solely upon government proposal, declares a state of siege. During a state of emergency, the government can arrest individuals reasonably suspected of seriously disturbing public order. Detention cannot exceed ten days, and detainees retain rights (to be informed of charges, rights, and counsel). Detention must be reported to the competent judicial authority within 24 hours, who may request information or contact the detainee. The state of emergency may involve entry and residence registration and communication intervention, authorized by Congress if necessary to clarify facts or maintain public order. The government must immediately report actions taken, reasons, and incidents to the competent judge in writing. The court can extend the state of emergency, and those convicted during this period may not be eligible for conditional remission benefits. During a state of siege, limitations on fundamental rights outlined for the state of emergency apply, including the temporary suspension of legal guarantees. Congress determines which offenses fall under military jurisdiction during this state.