Is improper pretrial detention compensable? - Sagué Abogados penalistas
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Is improper pretrial detention compensable?

Is improper pretrial detention compensable?

When a person is remanded in custody and subsequently acquitted or dismissed (the case is closed with respect to that person), it is clear that he has been deprived of his fundamental right to freedom, one of the most important fundamental rights protected by our Constitution, and something that will obviously never be restored to him again, but Are you entitled to financial compensation? is improper pretrial detention compensable?

Indeed, it seems logical that this damage caused to an innocent person should always and in any case be economically compensated as far as possible and in proportion to the time he has been deprived of this right. However, despite being such a blatantly coherent reasoning, until last June 19, 2019, our legislation did not take the same view, only allowing the right to be indemnified to “those who, after having been remanded in custody, are acquitted on the grounds of
inexistence of the imputed fact
or for the same cause has been ordered to be dismissed, provided that damages have been caused” (Article 294.1 LOPJ).

Thus, for Spanish judges to grant compensation, they required not only that the applicant had nothing to do with the crime charged, but also that the crime itself had not existed. Thus, for example, even if it were proven that the person had nothing to do with the crime of murder, but a violent death had still occurred, that person would never be compensated, since the crime existed. In other words, it was an absolutely restrictive criterion that prevented the receipt of any compensation for all those who had spent months in preventive detention and had finally been acquitted for reasons other than the“inexistence of the imputed act“.

Thus, we can affirm that thanks to the recent Judgment of the Constitutional Court of June 19, 2019.The Court of Appeals, which declared unconstitutional two paragraphs of Article 294.1 of the Organic Law of the Judiciary, abolished this unacceptable distinction between first-class innocents and second-class innocents and, consequently, allows all persons who have been wrongfully remanded in custody to be fully entitled to receive compensation from the Administration of Justice. for the damages caused by such an enormous restriction of their freedom.

All these persons will have a generic period of one year from the date of the finality of the resolution to claim the compensation to which they are entitled. In this regard, we would like to point out that in Spain there is a single online platform specialized exclusively in processing the claim for compensation for unjust pre-trial detention:
www.indemnizacionpresospreventivos.es

In recent years, the compensation offered by the European Court of Human Rights to acquitted pre-trial detainees The amount of the sentence for this type of “miscarriage of justice” has ranged from 40 to 300 euros per day, depending on a series of parameters: as it has been of painful stay in prison depending on the physical or mental ailments suffered by the inmate; if the stay in prison has meant some kind of physical or mental illness; in case a job on the outside had been lost; if he had to stop paying a mortgage and his apartment has been seized and foreclosed; if there were people on the outside in his care; when the inmate had minor children; in case of impossibility of relatives and friends to visit him among other things because of the remoteness of the prison, and so on.

From SAGUÉ CRIMINAL LAWYERS We applaud the recent ruling and hope that it is now the legislator who complies with the aforementioned constitutional mandate and, in particular, with the true application of the right to the presumption of innocenceand reform the legislation without establishing limitations to public liabilityThe effects that this may have on the State’s coffers are not prioritized over the right of any innocent citizen to be compensated for having suffered an undue restriction of his or her liberty.