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We have already seen in a previous post the requirements that were demanded in order to decree the remand in custody of a person.But for the case in which someone who has been in a prison situation is subsequently acquitted, it would seem logical that the time spent in this painful situation should be somehow compensated.
Thus, article 294 of our LOPJ provides that:
- "Those who, after having been remanded in custody, are acquitted on the grounds of non-existence of the act charged or for the same cause have been dismissed, shall be entitled to compensation, provided that they have suffered damages.
- 2. The amount of compensation shall be fixed according to the time of deprivation of liberty and the personal and family consequences that have occurred.
- 3. The claim for compensation shall be processed in accordance with the provisions of paragraph 2 of the preceding article."
Thus, according to this provision, compensation is provided for cases in which there is a dismissal or acquittal only for non-existence of the act for which the person who was imprisoned was accused (known as "objective non-existence" of the act), so that for cases in which the acquittal is due to lack of participation of the accused in the act (or "subjective non-existence"), this compensation would not be applicable.
In spite of the above, the Third Chamber (Administrative Disputes) of our Supreme Court maintained for years the possibility of paying compensation both in cases of "objective inexistence" and "subjective inexistence" (but in this case provided that the acquittal was based on a clear lack of participation, and not when the acquittal was based on the existence of doubts or lack of evidence (application of the "pro reo" principle) or the application of exonerating circumstances).
This doctrine was maintained until 2010, when, following a ruling by the Strasbourg Court of Human Rights, our Supreme Court modified its criteria, reducing the possibilities of compensation to cases of non-existence of facts established by the LOPJ.
The judgment of the ECtHR of 13 July 2010 considered it inadmissible to compensate prisoners who had been acquitted due to a clear lack of participation in the act and not prisoners who had been acquitted due to insufficient evidence, since in the latter case it then appeared that a doubt remained as to their absolute innocence, so it was decided that in order to determine whether or not the Administration of Justice was responsible for unjust provisional detention, arguments that directly or indirectly affected the presumption of innocence could not be used.
WHAT IS THE CURRENT SITUATION? DOCTRINE OF THE CONSTITUTIONAL COURT
Currently our jurisprudence has opted for the right to compensation strictly provided for in Article 294 LOPJ. The case of "OBJECTIVE NON-EXISTENCE" of the fact, although with the possibility in other cases to opt for compensation through the route of the 293 LOPJ of the "judicial error".
However, in the recent AUTO of the Plenary the Chamber of the Constitutional Court 79/2018, of July 17, and at the time of deciding on the appropriateness of compensation for a case in which the acquittal occurs for lack of evidence against the accused and despite the fact that the Court appreciated "well-founded suspicions", the Chamber agrees to raise an "internal question of constitutionality" with respect to the subparagraphs of Article 294.1 of the Organic Law of the Judiciary "for non-existence of the imputed fact" and "for this same reason" in opposition to articles 17, 14 and 24.2 CE, (rights to freedom, equality before the law and the presumption of innocence) so it seems that it will be considered unconstitutional, which in its case will determine that, if the aforementioned subparagraphs are eliminated EVERY person who is acquitted by a final judgment is entitled to compensation.
