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Commentary: The impact of Spain’s COVID-19 measures on the criminal justice system

FairTrialsAdmin - March 30, 2020 - COVID-19 Updates, Commentary, Court closures, Remote Justice, European Arrest Warrant

This post was written by Dr. Jaime Campaner, managing partner at CAMPANER LAW, based in Spain. He can be contacted at [email protected]

Due to the Coronavirus pandemic, the Spanish government has taken a number of measures including a lockdown of the population with Spanish Royal Decree 463/2020, 14 of March, declaring a state of alarm (which is a preliminary stage to a state of emergency).

The most relevant decisions regarding criminal proceedings are the postponement of deadlines and the adjournment of judicial activities. Notwithstanding the above, these measures do not apply to habeas corpus proceedings, duty courts, proceedings in which the suspect is arrested or currently in pretrial detention, protection orders, and urgent matters related to inmates and violence against women or minors. 

With regard to the functioning of the criminal justice system, the judiciary has taken a series of successive resolutions (13, 14, 16, 18, 19 and 20 of March). In short and with some examples which should be considered my personal opinion:

- Only those judicial activities that are considered “essential services” continue.  These are activities whose adjournment could cause irreparable damage, such as injunctions (e.g. to challenge a freezing of assets) and other non-postponable judicial activities (e.g. search and seizure); and detention of suspects in pretrial detention or those arrested.

- Courts must remain open, except when the relevant health authority orders the contrary. 

- Lawyers, including prosecutors, are only allowed to file motions and appeals in the above-mentioned urgent proceedings and strictly online. In fact, ignoring these prohibitions and limitations would mean breaching the state of alarm, because the filing of a motion or appeal would lead to an obligation to process it.

- Although some regions of Spain have competences regarding human and material resources in the justice system, the judiciary warned that they must avoid taking measures which would hinder or obstruct compliance with the aforementioned “essential services”. 

Moreover, the President of the High National Court (which is the Spanish Extradition Court) declared on 18 March the withdrawal of the obligation to regularly appear before Court established for suspects and defendants released on bail. The Highest Court of Catalonia announced the same measure on its twitter account the same day. It seemed then, that the obligation to report regularly had been considered temporarily withdrawn. Following a query from the President of the High Court of Murcia, the judiciary passed on 20 March a resolution to provide certainty to every judge and suspect in Spain and has decided that the obligation to appear before the Court must be suspended due to the Coronavirus pandemic and that only in exceptional cases, when judges consider that there is a risk of the suspect going into hiding or fleeing, they may decide to maintain the obligation to appear before the court.  

Paradoxically, according to the judiciary´s resolution, whenever possible, suspects appearing physically must be avoided and alternative means, such as telephone or email, must be used instead.

Moreover, it should be highlighted that, in my experience, in practice, Spanish judges reject the withdrawal of European Arrest Warrants (EAW), and this tendency is continuing even during the state of alarm. In my experience, they typically disregard the possibility of issuing a European Investigation Order (EIO) to question the suspect without needing to arrest him. Again, it does not make sense that when we are trying to promote the use of new technologies in criminal proceedings, judges remain stuck in older times.  European and domestic law provides them with the tools to be more efficient by questioning suspects via video-link, which is more respectful of the rights of freedom and presumption of innocence, avoiding unnecessary detention.   

For example, last week, a Spanish judge issued an EAW against a British suspect located in the Netherlands. During the extradition proceedings, the suspect had been released on bail and, after a few months, the Dutch Court granted the EAW. The suspect had been summoned to voluntarily appear in the Police Station to be driven to the Airport and be sent to Spain. But due to the state of alarm, the suspect wasn’t able to board the flight and therefore was released again. In this instance, we requested that the Spanish judge withdraw the EAW and/or question the suspect by video-link. However, the judge rejected to withdraw the EAW and did not respond to the video-link request. We have since asked her again to respond to it. Unfortunately, the judge was not open to the idea of balancing the interests at stake and using alternative measures, even though the suspect is not a flight risk.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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