In June 2019, the Constitutional Court established that a person acquitted in a judicial case after going through preventive detention has the right to be compensated. Since then, according to the resolutions that elDiario.es has been able to examine, the different courts have forced the Ministry of Justice to pay more than 887,000 euros to a total of 70 prisoners who were provisionally imprisoned for drug trafficking, rape or money laundering and who were finally acquitted or saw their case shelved.
The case that opened the ban was that of Mohammed SA who, between July 2008 and July 2009, spent almost a year in pretrial detention accused of attempted murder, of which he was eventually found guilty. He and other men sat on the bench of the Barcelona Court accused of beating and stabbing two people on the Rambla del Raval, but were acquitted. The judges suspected that the victims changed their statement in the trial for “a kind of pact of silence between them and the accused”, but the lack of evidence led to their acquittal.
His case reached the Constitutional Court a decade later and the magistrates decided to declare unconstitutional the article of the Law of the Judiciary that allowed compensation to preventive prisoners but only if they had been acquitted or exonerated due to “non-existence of the imputed act”. In other words, an acquittal for lack of evidence was not enough, but rather because the fact under investigation had never occurred, a much more restrictive criterion. The Constitutional Court established that this compensation was for those who have been acquitted or exonerated with a free dismissal order, without nuances, if there have been damages to the prisoner.
The case of this man of Pakistani origin provoked a first avalanche of estimated appeals in the Constitutional Court, with the plenary giving instructions to the National High Court to reconsider its refusal to compensate another 45 acquitted remand prisoners who, unsuccessfully, had claimed a repair of several thousand euros per head. Among them, several acquitted of participating in the 11-M attacks in Madrid and 11-S in New York, of various operations against jihadism such as Tigris or Nova, of a macro lottery ticket scam such as the Nilo operation or acquitted robbery, money laundering, drug trafficking, murder or assault.
The National Court and the Supreme Court also took note of the Constitutional resolution and, since then, have recognized compensation to 70 people who went through preventive detention and were later acquitted. Compensation that, without counting the interest generated over the years, adds up to more than 887,000 euros. Another 25 were denied for different reasons: their case was provisionally dismissed, not final, or there were errors throughout the claim.
Most were acquitted in the first instance and some had to wait for the Supreme Court, while a minority was exonerated by dismissal orders during the investigation phase. Some of them claimed for stays of a month and a half in pretrial detention and others spent more than three years in pretrial detention awaiting a favorable resolution. The lowest compensations established by the courts add up to 1,000 euros and, in some cases, exceed 50,000 euros.
The highest compensation was recognized by Justice and confirmed, with reservations, by the National Court. Romano van der Dussen, a Dutch citizen who spent more than a decade behind bars accused of raping and killing three women in Fuengirola, was acquitted due to the appearance of new DNA evidence and was compensated with almost 150,000 euros. Another compensation of 60,000 euros was awarded to a woman who spent 579 days in jail accused of murdering her newborn baby in Melilla, only to be later acquitted. The judges ordered to pay 69,000 euros to a man who spent more than 1,000 days in prison for abuse of his children of which he was acquitted. Another 50,000 more were recognized by one of the civil guards of Mollet del Vallès, acquitted after being tried for collaborating with drug traffickers and being part of what is known as the ‘port gang’.
The last case has been resolved a few days ago by the Supreme Court. The judges have recognized compensation of 5,000 euros to the heirs of a woman, now deceased, who at the time was imprisoned for nine months for a murder in which she had not participated. She did not even sit on the bench and the case was provisionally filed, a type of dismissal that the National Court has considered insufficient for compensation on at least half a dozen occasions.
“After examining the actions and analyzing the concurrent circumstances in the case, we verify the existence of reasons substantially equivalent to those that determine the free dismissal”, say the judges to recognize the compensation, thus developing a doctrine that is not fully established in the Court National. This has been said by up to three rulings of the high court: a provisional dismissal, susceptible to reopening, can also give rise to one of these compensations.
According to the latest data available from Penitentiary Institutions, in 2021 Spanish prisons housed 8,849 people in preventive detention. Data from the Ministry of Justice also reveals that, year after year, the majority of claims for judicial errors or wrongful imprisonment are rejected: in 2019, for example, 1,056 were rejected and 83 were administratively estimated, just over 7% of the total.
That year, two petitions related to preventive detention and six to the abnormal functioning of the Justice were estimated. The data does not break down how much money was paid for these concepts, but between 2019 and 2020 the Ministry of Justice recognized 3.6 million administratively in all types of claims and another 1.3 million more after a favorable court ruling. This includes concepts such as undue delays in judicial proceedings, embargoes, or evidence that has been lost, not only admission to preventive detention.
In these cases, the judges examine the consequences for each person of spending, sometimes, more than three years behind bars for a crime they had not committed. In 2020, for example, the National Court recognized compensation of 9,000 euros to a man who spent 1,012 days in prison in Asturias for a murder that he had not committed. His entry into prison, he said, “breaks my normal life” and that, when he was released three years later, he faced “the breakdown of his entire social environment.” A person charged with such a serious crime, even if acquitted, “has to work harder than any of us to have the same credibility as the average citizen,” he explained.
Another man was compensated with 10,600 euros for spending a year in prison for drug trafficking before being acquitted. When he was arrested and imprisoned, he worked in the agricultural sector in El Ejido and lost his job, in addition to being interned hundreds of kilometers away in the Burgos prison. “It is evident the moral damage and the suffering caused to a young man, with regular work and income who, knowing he is innocent and without deserving it, is arrested and imprisoned for more than a year and without knowing when he will be able to be released, taking into account that he lacked with a criminal record and who had never been in prison before,” states the claim.
He spent a year and a day in prison and the sentence that acquitted him reflects that he was in the wrong place at the worst possible time. He was arrested in the apartment of some friends in Miranda de Ebro during a police search but, according to the court, he was spending the night there because he had met a woman he had met online. The sentence, after a year in prison, explains that no witness placed him close to drug trafficking and his version, they said, was “solid and coherent.”
The jurisprudence on this matter, especially since the 2019 Constitutional resolution, has been experiencing changes and nuances. And it has not been something peaceful in the different contentious-administrative chambers of the National Court. One of the magistrates who has studied a good part of the cases, Francisco Díaz Fraile, has issued numerous private votes in which he questions the granting of these compensations as the legal panorama has remained after the Constitutional ruling.
The matter was also not peaceful in the halls of the Constitutional Court. The first sentence that marked the way for the rest of the cases had another individual vote, that of the then Vice President Encarnación Roca, and another signed by Antonio Narvárez and Ricardo Enríquez. The first, for example, understood that the annulled article was legal and that, furthermore, “it is the legislator and not the Constitutional Court who is entitled to agree on this type of compensation.” The other two dissenting magistrates ruled in the same sense: “There is no room for reproach of constitutionality to that precept.”
