Compensation for Wrongful Pre-Trial Detention: Legal Intervention before the Supreme Court of Spain

Fair Trials and the European Criminal Bar Association (ECBA) have intervened before the Supreme Court of Spain in a case that raises serious concerns about how compensation is awarded for wrongful pre-trial detention.

The case concerns an individual who spent 243 days in pre-trial detention before being fully acquitted, and was subsequently awarded €6,400 in compensation, approximately €26 per day.

In a written expert opinion submitted to the Court, Fair Trials and ECBA argued that such compensation risks falling short of European human rights standards and highlights broader structural issues in how compensation is calculated.

Intervention by Fair Trials and ECBA

In this case of LEAP and ECBA lawyer member Javier Blay, Fair Trials and the European Criminal Bar Association intervened before the Court by submitting a written expert opinion.

The intervention focused on the need for national compensation systems to comply with European standards, emphasizing that:

• Compensation must not be negligible or disproportionate.
• It should reflect both material and non-material harm.
• Systems should ensure consistency, transparency, and predictability.

A central concern raised was the absence of any objective methodology for calculating compensation, which can lead to inconsistent and potentially inadequate awards, as illustrated by the €26/day figure in this case.

Why compensation matters

Pre-trial detention represents one of the most severe interferences with fundamental rights. Even when lawfully imposed, it can have profound personal consequences — including loss of employment, disruption of family life, psychological harm, and lasting reputational damage.

Where a person is ultimately acquitted, compensation plays a critical role in ensuring that the right to liberty is practical and effective, rather than theoretical. Under European human rights standards, particularly those developed by the European Court of Human Rights, compensation must be adequate and proportionate to the harm suffered. Awards that are merely symbolic risk undermining this protection.

Comparative European perspective

To support its submissions, Fair Trials and ECBA also provided comparative information from across Europe, drawing on input from legal practitioners in multiple jurisdictions.

This comparative analysis showed that:

• Many countries apply fixed or benchmark daily rates (often significantly higher than those seen in Spain).
• Others use formula-based systems linked to objective indicators, such as average salary.
• Some retain judicial discretion but within a more structured framework.

While approaches vary, a common thread is the need to ensure that compensation is fair, proportionate, and grounded in clear criteria.

Looking forward

This case illustrates the urgent need for a more coherent and transparent compensation framework, one that balances consistency with individualized justice and aligns with European human rights obligations. Ensuring adequate compensation is not only about financial redress; it is about recognising the impact of unjust deprivation of liberty and upholding the fundamental right to a fair trial.