Crime and constitution in Spain and Britain
| Published date | 01 June 2018 |
| Author | Scott Crosby |
| Date | 01 June 2018 |
| DOI | 10.1177/2032284418776386 |
| Subject Matter | Editorial |
Editorial
Crime and constitution
in Spain and Britain
The Spanish Constitution is, according to Article 2 thereof, ‘based on the indissoluble unity of the
Spanish nation, the common and indivisible country of all Spaniards; it recognises and guarantees
the right to autonomy of the nationalities and regions of which it is composed, and the solidarity
amongst them all’.
Relying on that clause the Spanish Constitutional Court ruled on 17 October 2017 that the
Catalonian independence referendum was unconstitutional, having suspended the Catalonian
referendum law before the referendum took place. It seems, then, that the Catalonian independence
referendum was illegal, although this is disputed by the Government of Catalonia.
1
The illegality ruling is also why some 28 Cata lonian politicians have been indicted , post-
referendum, their alleged crimes being, according to the perceived involvement of each, of rebel-
lion and misuse of public funds, or of contempt and misuse of public funds, or of rebellion alone, or
of contempt alone. Some of the accused risk up to 30 years in prison.
A number of the accused have been in pretrial detention since October 2017, while others have
fled the country. At the time of writing (mid-April 2018), Spain’s surrender requests to Belgium,
Germany and Scotland under the European Arrest Warrant (EAW) system have been unsuccessful.
Whether the charges will lead to convictions will depend on the application of domestic law to
the facts. Spain’s judicial system will come under the international spotlight, however, and this
may create some discomfort, especially if the European Court of Human Rights is eventually
seised.
The Spanish criminal law system has, namely, a few notorious defects.
One comprises the rules on pretrial detention which can be ordered whenever the maximum
penalty is over 2 years of prison, the Court considers that there is flight risk, risk of destruction of
evidence, or a risk to the well-being of the victims. The maximum limit is set at 2 years, but it can
be extended for another period of 2 years, provided this is less than 50%of the maximum prison
sentence available.
Another is the fact that persons in pretrial detention need not be indicted.
A third is the use of secrecy, or the ‘secreto de sumario’. Under this facility proceedings are
declared secret. Thus, if the Inspecting Magistrate considers that knowledge of the details of the
proceedings, or of certain investigative measures (such as wiretaps) and indeed disclosure of the
magistrate’s file in general, might derail or prejudice the investigation, he may decide to declare it
as secret during the pretrial investigative phase. Such a declaration is valid for 1 month. It may,
1. Generalitat de Catalunya: Spain’s misuse of the Judiciary as regards Catalonia. Available at: http://exteriors.gencat.cat/
web/.content/00_ACTUALITAT/notes_context/Spains-misuse-of-the-judiciary.pdf (accessed on 18 April 2018).
New Journal of European Criminal Law
2018, Vol. 9(2) 169–172
ªThe Author(s) 2018
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DOI: 10.1177/2032284418776386
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