Preventive Measures in Criminal Proceedings
Lesson 13: Preventive Measures
1. Concept
Preventive measures are restrictions on rights or freedoms adopted during criminal proceedings before a final judgment. These measures affect the accused, third-party civil liability, and aim to ensure a normal oral hearing or the execution of resulting statements. They coexist with measures protecting the injured party or society by preventing further crimes, a practice sometimes criticized but constitutionally sound.
2. Characteristics
- Instrumentality: Directly linked to pending proceedings.
- Proportionality: Commensurate with the offense’s severity and imposed sacrifice.
- Provisionality: Reversible and time-limited (e.g., deprivation of liberty).
- Legality: Established by law, especially for freedom restrictions. Flexibility applies to property interests (similar to civil injunctions), with broader protection for the injured party (Art. 13 LEC).
3. Personal Preventive Measures – Freedom
A fundamental right (Art. 17.1 EC): Deprivation of liberty is permissible only under this article’s provisions and as legally prescribed. Other sources of deprivation of liberty related to criminal proceedings include placement of incapacitated individuals (Art. 763 LEC) and detention of foreigners for expulsion (Art. 57.1 of Law 4/2000). Police actions affecting freedom of movement but not constituting arrests include identification requirements (Art. 20.2 LO 1/92), alcohol tests, and body searches.
Detention
1. Concept
Deprivation of freedom of movement, time-limited but requiring subsequent judicial review. Implies imputation (belief in the prisoner’s responsibility for an offense). Proportionality requires the crime to be imprisonable; detention for misdemeanors is generally not applicable unless the offender lacks a known address or sufficient security (Art. 495). Legality principle (Art. 489 LEC): Arrests must adhere to legal provisions.
2. Classes
- A. By individuals: (Art. 490) Covers various scenarios, including attempting to commit a crime, being caught in the act, escaping prison, etc.
- B. By police officers: (Art. 492 LEC) Mandatory in specific cases, including those listed in Art. 490 and when prosecution is for a crime with a prison sentence exceeding ‘correccional’.
3. Term
(Art. 496, Art. 17.2 CE): 24 hours for judicial availability, but not exceeding 72 hours for investigation. Art. 520 LEC clarifies the 72-hour limit. Exceptions include a 48-hour extension for terrorism offenses (Art. 520 bis) and up to 10 days during states of alarm, exception, or siege.
4. Rights of the Detained
(Art. 17.3 EC, Art. 520 LEC): Includes the right to silence, to not self-incriminate, to legal counsel, to notify family, to an interpreter, and to a medical examination.
5. Incommunicado Detention
(Art. 509, Art. 520 bis.2 LEC): Allows for incommunicado detention in specific cases, including terrorism. Duration is strictly limited, generally not exceeding five days. Restricts certain rights but allows for legal counsel and medical examination.
6. Judicial Custody
The arrested individual must be brought before the nearest investigating judge within 24 hours (Art. 496 CPP). The judge decides on their situation within 72 hours. If detained by another judge, the individual’s information is forwarded to the relevant court (Art. 498 CPP).
7. Same-Judicial Detention
Occurs when the judge ordering detention is also handling the case. Justified by flight risk or severity of the offense.
4. Provisional Prison
1. Concept
A serious measure involving imprisonment before conviction. Criticized for potentially violating the presumption of innocence.
3. Grounds
Includes the existence of an offense punishable by at least two years imprisonment, sufficient evidence of criminal liability, and the need to ensure the accused’s presence or prevent evidence tampering.
4. Length
(Art. 504.1): Limited to the time necessary to fulfill its purposes.
6. Classes
- Provisional imprisonment: Standard internment in a prison facility.
- Incommunicado provisional prison: Similar to incommunicado detention, with limited duration and restrictions.
- Attenuated provisional prison (Art. 508): Allows for house arrest or treatment in specific cases.
7. Procedure
Involves a hearing before the competent judge, who decides on the detention. The decision can be appealed.
8. Compensation for Wrongful Detention
EC stated that “the damages caused by judicial error as well as those arising from irregularities in the administration of justice shall be entitled to compensation from the state, according to law ‘(Article 121) . LOPJ (articles 292 to 297) .292-1. Who are entitled to compensation, after having undergone preventive imprisonment, be acquitted for lack of the alleged offense or for the same reason has been given free stay of proceedings, provided that you have allegedly caused harm.
5 – FREEDOM PROVISIONALConcepto: Situation of freedom but with submission to interim measure that involves some kind of restriction of freedom beyond that of being available for going to the appeals process that is the subject. The procedure for adoption is the appearance of art. 505 lecro., Except where these make a positive change by decision of the judge of a previous situation.