5 major differences in Spanish – English criminal law

en español | Friday, June 19, 2009

Reader Jess has written in this week from the UK asking for a bit of help with her A-level project on Spanish and English criminal law.

5 major differences in Spanish - English criminal law

As luck would have it, I’ve been teaching a Spanish Judge English for the last two years and we’ve commented many of the major differences as they’ve come up. This is clearly not anywhere near a definitive list but interesting nonetheless.

Please feel free to add your learned comments, opinions and clarifications below.

  1. Sentencing: different systems apply different sentences for the same crime, and sometimes what’s considered a crime in one country is either a misdemeanour or not even a crime in another country. An interesting sentencing debate that is going on in Spain and the UK right now is that related to maximum sentences. While both countries reject the death penalty, maximum life sentences in the Spanish system run to no more than 20 years for a single crime, or up to 40 years for two or more crimes, depending on the type and combination of crimes (articles 40 and 76 of the Spanish Criminal Code). In Spain, this is currently being debated as whether Spain should adopt a ‘life means life’ approach, following several high-profile violent reoffender cases and particularly brutal murders, as well as ETA terrorists, who often get multiple concurrent life sentences and are released when they reach their maximum servable time (de Juana Chaos is probably the most famous case; he’s currently in Belfast trying to avoid extradition back to Spain for encouragement of terrorism). In the UK, on the other hand, in 2005 they introduced indeterminate sentences and out of 11,000 people sentenced to an indeterminate sentence, fewer than 100 have since been released and some have little hope because the prisons they’re in don’t have enough resources to run the mandatory rehabilitation courses necessary prior to release;
  2. Police detention without charge: huge differences. Look at what happened last year in the UK with the debates in Parliament over 28-,40- or 90-day terrorist detention, look back if you like to the idea of internment in Northern Ireland and also at Guantánamo and the different arguments in Spain and the UK over whether or not to accept prisoners from the US. In Spain, the police cannot detain you for more than 72 hours without charge (article 17.2 of the Spanish Constitution). The Guantánamo inmates that Spain will accept will be more or less immediately released upon arrival due to this type of provision in Spanish law, amongst other reasons.
  3. Prison systems: the running and maintenance of prisons, the way prisoners’ rights are dealt with (in each Spanish region there is a ‘Juez de Vigilancia Penitenciaria‘ which doesn’t seem to exist in the UK), bail, parole, home leaves, prison visits (vis-a-vis visits are permitted in Spanish prisons), etc;
  4. Judge-led criminal investigation vs. police-led criminal investigation: there are basically two types of criminal law judges in Spain: investigative judges and trial judges. The investigative judges investigate with the collaboration of the police and public prosecutor and then if the case is considered suitable for prosecution, they pass it on to the trial judge. In the UK, the police do all of the investigating and pass it on to the CPS, who decide if it’s going to trial and the judges don’t really intervene until the court case or pre-case hearings;
  5. Universal Justice: One aspect of Spanish criminal law which is globally very controversial right now is the idea of universal justice and jurisdiction which allows Spanish judges to investigate war crimes and crimes against humanity in other countries. This is causing all sorts of political and diplomatic headaches. The most cited examples seem to be:

    • Bush-era lawyers for Guantánamo and the use of torture, something which should in theory be done by Obama. I believe US law holds ratified international treaties to have constitutional status and the President is obliged in theory to ‘defend and protect the constitution of the United States’, etc. If the offending country doesn’t prosecute the crimes, other countries can;
    • Israel for their treatment of the Palestinians;
    • China for Tibet and the Falun Gong;
    • there was also the extradition of Pinochet a few years ago, which was more directly linked to the UK.

What do you think? What other ideas would you add for Jess?