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Constitutional Ruling Reshaped Pretrial Bail for Fines in Spain

In a groundbreaking decision on June 19, 2023, the Constitutional Court ruled against the practice of demanding pretrial bail to secure the payment of fine amounts sought in provisional conclusions by the prosecution. The ruling underscored the infringement on the fundamental right to the presumption of innocence, as enshrined in Article 24.2 of the Constitution.

Background: The Legal Framework

Article 589 of the Criminal Procedure Law stipulates that, upon indications of criminality against an individual, the judge shall order a sufficient bail to ensure pecuniary responsibilities that may be declared due. The crucial question arises: when do these "indications of criminality" emerge, prompting the judge to demand bail?

In the Spanish criminal procedure, this moment is generally considered to occur when the judge, deeming the investigation concluded, issues the order specified in Article 779.1.4th. Following this, the public or private prosecution, if involved, files an accusation. The judge then typically orders the opening of the oral trial, signifying the existence of sufficient indications of criminality against the formally accused.

Evolution of Pretrial Bail Practice

Traditionally, both civil liability ex delicto and fines sought by the prosecution have been perceived as pecuniary responsibilities, thus subject to pretrial bail. While there has been little dispute regarding civil liability, debates have arisen concerning fines. Critics argue that requiring bail before a trial amounts to preemptively imposing the penalty.

Despite such concerns, the practice persisted, with courts generally rejecting challenges on the basis that pretrial bail doesn't equate to paying a fine but serves as a means to ensure payment if a conviction occurs.

Constitutional Court's Departure

The Constitutional Court's ruling challenges this longstanding paradigm. It granted protection to an individual accused of disobedience in a summary proceeding. The accused was requested to post an €88,000 bail to secure potential payment of a fine following a conviction. The individual sought constitutional protection, claiming a violation of the right to the presumption of innocence.

The Court acknowledged the debate surrounding the interpretation of "pecuniary responsibilities" and rejected the prevailing notion. It distinguished fines from other pecuniary responsibilities outlined in Article 126 of the Penal Code, emphasizing the punitive nature of fines as penalties with retributive and deterrent purposes.

The Court emphasized that the concept of "periculum in mora" (danger in delay), a characteristic of precautionary measures, doesn't apply to fines due to alternative means of execution. Therefore, securing the payment of a fine before a trial represents an unjustifiable anticipation of the penalty, conflicting with the fundamental right to the presumption of innocence.

Ministry of Public Prosecution's Shift

Remarkably, the Ministry of Public Prosecution, traditionally aligning with the prevailing stance, took a different position in this case. While prior circulars supported pretrial bail for fines, the Constitutional Court's decision prompted a shift. The Ministry advocated against including potential fine amounts in pretrial bail, emphasizing the risk of prejudging guilt before a fair trial.

This landmark ruling challenges a deeply ingrained practice, signaling a shift in legal interpretation and a reevaluation of pretrial procedures concerning fines. The Court's emphasis on preserving the presumption of innocence sets a precedent that may influence future legal proceedings. The Ministry's altered stance suggests a potential realignment of legal perspectives on this matter.

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