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About how the Spanish Criminal Procedure must safeguard Fundamental Rights



The contemporary criminal process fulfills an important function of safeguarding the principle of legality in criminal matters and the other fundamental rights at stake, which, for these purposes, can be classified, into material fundamental rights of procedural law incidence, such as the right to life and physical integrity and not to suffer torture (article 15 of the Spanish Constitution, from now on CE), or the rights to individual liberty (art. 17 CE), inviolability of the home (art. 18.1 CE), secrecy of communications (art. 18.2 CE), etc., and fundamental procedural rights themselves.


The violation, in the course of the criminal process, of the fundamental rights of material content can give rise to a case of prohibited evaluation of the evidence (thus, the confession extracted with torture or the illegal telephone intervention), which must be asserted through the rights to the presumption of innocence and to a process with all the guarantees.


The fundamental procedural rights are located mainly in Article 24 CE, and are mostly the rights of the person under investigation as well as manifestations of human dignity. Finally, they are rights of defense or instrumental rights of the defense, such as the rights to be informed of the accusation, not to testify against oneself, not to confess guilt and to the presumption of innocence.


The consecration of these rights has been reinforced by Organic Law (from now on LO) 5/2015, of April 27th, transposing European Union Directives 2010/64 and 2012/13, which has developed two essential aspects of defense in criminal proceedings: the right to translation and interpretation and the right of the person investigated to be informed of the purpose of the process.


Along the same lines, mention should be made of the reform of articles 118, 520 and 527 LECrim carried out by LO 13/2015, of October 5th, modifying the Criminal Procedure Law for the strengthening of procedural guarantees and the regulation of technological research measures. Along with this, in our legal system, the victim, who appears in the process as offended or harmed, and, in general, the accusing parties, share with the investigated the rights to effective judicial protection, to a fair trial, to the judge legal and proof, also contemplated in article 24 CE.


Law 4/2015, of April 27th, regulates the Statute of the victim of crime, and recognizes all of them rights to protection, information, support, assistance and attention, active participation in the criminal process and to receive non-discriminatory treatment. Finally, Organic Law 8/2021, of June 4th, on the comprehensive protection of children and adolescents against violence, has introduced important modifications to the Criminal Procedure Law with the aim of reinforcing the procedural position of victims when they are minors.

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