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Law 13/2003 Of 24 October, Reform Of The Law Of Criminal Procedure In Respect Of PreTrial Detention.

Original Language Title: Ley Orgánica 13/2003, de 24 de octubre, de reforma de la Ley de Enjuiciamiento Criminal en materia de prisión provisional.

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TEXT

JUAN CARLOS I REY OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following organic law.

EXPLANATORY STATEMENT

I

This organic law aims to reform the regulation of the provisional prison. This is an institution which has been the subject of several amendments since the Constitution was adopted. Thus, reforms of greater or lesser calado of the provisional prison were operated by Law 16/1980, of April 22; the Organic Law 7/1983, of April 23; the Organic Law 10/1984, of December 26, and, finally, the Organic Law 5/1995, of 22 May. Despite these successive reforms, the provisional prison is in need of a new amendment, which must not wait for the global reform of our criminal prosecution.

Among the objectives of the State Pact for the Reform of Justice is to address "the reform of the provisional prison, in accordance with the case law of the Constitutional Court." The achievement of this objective is urgent, because the case law of the Constitutional Court has imposed requirements-with the time being increasingly clear and demanding-for the institution of the provisional prison to be respectful of the the essential content of the right to freedom, as enshrined in Article 17 of the Constitution, and the right to the presumption of innocence, as enshrined in Article 24.2. As the High Court has pointed out from one of its first sentences, the provisional prison is situated " ... between the state duty to effectively pursue the offence, on the one hand, and the state duty to secure the area of freedom of the citizen, on the other ... " (STC 41/1982).

On the provisional prison there is today-in effect-a body of constitutional jurisprudence that our courts have to apply daily and that in some respects does not find its due reflection in the regulation legal form of the institution. The best proof of the urgency with which the task of adapting the criminal procedural law to the candidates of the Constitutional Court in this matter must be undertaken is that the maximum interpreter of the Constitution, in the 47/2000 judgment, raised the issue of unconstitutionality on articles 503 and 504 of the Law on Criminal Procedure.

II

The Constitutional Court, in a gradual but univocal manner, has been establishing a series of characteristics that the provisional prison has to comply with in any case to suit the postulates of our Constitution.

Among them, the ones that impose greater demands and force this partial reform of the institution are their exceptionality and, above all, their proportionality.

The exceptionality of the provisional prison means that in our legal order the general rule must be the freedom of the accused or accused during the pendency of the criminal proceedings and, consequently, that the deprivation of freedom must be the exception. Therefore, there can be no more provisional prison assumptions than those that the law taxatively and reasonably detailed provides for.

Important are also the demands placed on the law by the so-called principle of proportionality.

This principle calls for the restrictive legal norms of fundamental rights-and, in what matters now, the provisional prison, as restrictive of the rights to liberty and the presumption of innocence-to have a content such that the limitation of the fundamental rights which this institution entails is proportionate to the aims which it is intended to achieve.

In the first place, proportionality-which constitutes a canon of legitimacy of the restrictions of every fundamental right or public liberty-requires the provisional imprisonment of certain purposes.

This means that not every purpose justifies the deprivation of liberty of the accused or accused during a criminal prosecution, but that this drastic measure is only admissible for the attainment of certain purposes constitutionally legitimate: these are not other, according to the Constitutional Court, than to ensure the normal development of the process and the execution of the judgment, as well as to avoid the risk of criminal reiteration (STC 47/2000).

In the second term, proportionality requires not only that the measure be appropriate to the fulfilment of a constitutionally legitimate purpose, but that the sacrifice which the person's freedom is imposed is reasonable in comparison with the importance of the end of the measure (proportionality in the strict sense).

This organic law seeks to respond to this imperative need to bring our criminal procedural law into line with the constitutional requirements that have just been laid out.

III

This reform makes a notable change in the regulation of budgets for the adoption of the provisional prison. First, a minimum limit is set for agreeing the provisional prison of a subject:

thus, the provisional prison is excluded if the maximum of the penalty provided for the imputed fact does not exceed two years of imprisonment, except in those exceptional cases that the law provides for.

Second, Article 503 states precisely what are the legitimate purposes justifying the provisional prison. In each specific case, one of these risks must be conjure: that the imputed be subtracted from the action of the justice; that the imputed conceals, alter or destroy evidence; or that the imputed commit new criminal acts. In the latter case, the principle of proportionality imposes that the provisional prison cannot be agreed by generic risks that the imputed can commit any criminal act.

By requiring the presumption of innocence, this measure should be limited to those cases where the risk is specific. The law contributes to objectifying this requirement, thus increasing the procedural guarantees of the imputed.

A profound reform of the regulation of the duration of the provisional prison is also being undertaken. It begins by stating the principle, derived from the exceptionality mentioned above and from the provisions of Article 17.4 of the Constitution, that the provisional prison cannot have an indefinite duration, but can only be maintained. While the constitutionally legitimate aims that justify it in a particular case remain. On the basis of that premise, Article 504 regulates the various cases of maximum duration and their calculation, taking into account the requirement of proportionality. In plain words, a subject cannot remain indefinitely deprived of liberty without having been declared guilty, even though the risks that Article 503 establishes. In this way, as has been the case so far, the maximum periods of duration of provisional deprivation impose, even in an indirect or mediata way, a burden on the Administration of Criminal Justice to act without undue delay. In this regard, the law gives an answer to the case-law of the European Court of Human Rights, which is received by our Constitutional Court, around the right of any person who is preemptively detained to be judged within a reasonable time or to be freedom of movement during the procedure, guaranteed by Article 5.3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

IV

In addition to the fundamental questions of the budgets and the duration of the provisional prison, which are undoubtedly the most deprived of reform in the light of the constitutional jurisprudence, this organic law also affects others important aspects of this institution.

As far as the procedure is concerned, the rule is maintained, introduced in the reform operated by the Organic Law 5/1995, of May 22, that the provisional prison can only be agreed upon at the request of the Prosecutor's Office or of a an accuser. The rule that the measure can only be agreed after a hearing in which the judge or tribunal has heard the arguments of the parties and has taken into account, where appropriate, the evidence provided, is maintained.

In relation to this, Article 505 introduces certain technical improvements and gives a response to specific problems that had been raised in practice.

With regard to the resolution to which the provisional prison is agreed, the need for their motivation is incited, in accordance with the constitutional requirements. Particular attention is given to the assumption in which the deprivation of liberty is agreed in cases where the summary has been declared secret: Article 506 seeks to provide a solution that will reach practical agreement between the right of the accused person. I would like to know the reasons why it is deprived of liberty and the state of the state to investigate the apparently criminal acts effectively.

With regard to appeals against prison or provisional freedom decisions, Article 507 seeks to simplify and speed up its processing, by providing that the appeal is in any case substantiated by the channels. of Article 766, that is, through the rules of the appeal of the abbreviated procedure. In addition, it is intended to make it clear in that article that, when the instruction is declared secret, the defendant has not had full knowledge of the prison order until such a secret has been lifted, he may have recourse to both the car that was initially notified as, subsequently, the entire car.

As far as the modalities of the provisional prison are concerned, the traditional attenuated prison is maintained, on the one hand, and, on the other hand, the incommunicado prison is greatly reformed. Thus, the budgets, duration and content of the incommunicado are precisely established, modernizing a clearly archaic and obsolete regulation.

Article first.

The following articles of Chapter III of Title VI of book II of the Law on Criminal Procedure are reworded:

" Article 502.

1. The provisional prison may be ordered by the judge or by the investigating magistrate, the judge who forms the first proceedings, as well as the judge of the criminal court or tribunal who is aware of the case.

2. The provisional imprisonment shall be adopted only where it is objectively necessary, in accordance with the provisions of the following Articles, and where there are no other less burdensome measures for the right to freedom through which they may to achieve the same ends as with the provisional prison.

3. The judge or tribunal shall take into account to take the provisional imprisonment the effect that this measure may have on the person concerned, considering his or her circumstances and those of the action taken, as well as the institution of the penalty which may be imposed.

4. In no case shall the provisional prison be adopted when the investigations carried out are rationally inferred that the fact is not a criminal offence or that the same was committed in the case of a cause of justification. ' " Article 503.

1. The provisional prison may only be suspended when the following conditions are met:

1. The existence of one or more acts that have a penalty of a penalty whose maximum is equal to or greater than two years of imprisonment, or with a custodial sentence of less than two years, is the cause of the case. if the person has a criminal record that is not cancelled or liable to be cancelled, resulting from a criminal offence.

If the facts are several, the special rules for the application of the penalties will be included, as provided for in Section 2.a of Chapter II of Title III of book I of the Penal Code.

2. The cause is enough to believe that the person against whom the prison order is to be handed is criminally responsible for the crime.

3. º that through the provisional prison one of the following purposes is pursued:

a) Ensure the presence of the imputed in the process when a risk of leakage can be rationally inferred.

In order to assess the existence of this danger, it will be taken together with the nature of the event, the seriousness of the penalty that could be imposed on the person, the family, employment and economic situation of the person, as well as the imminence of the the conclusion of the oral judgment, in particular in those cases where the procedure for the rapid procedure laid down in Title III of the Fourth Book of this Law should be initiated.

The interim prison of the accused person shall be agreed upon when, in the light of the background resulting from the proceedings, at least two requisitions have been issued for his appeal and seeks to any judicial body in the previous two years. In these cases, the limit on the penalty shall not apply to the ordinal 1.o of this paragraph.

b) Avoid the concealment, alteration or destruction of the evidence sources relevant to prosecution in cases where there is a well-founded and concrete danger.

It will not be possible to arrange the provisional prison for this cause when it is intended to infer that danger only from the exercise of the right of defense or the lack of collaboration of the accused in the course of the investigation.

In order to assess the existence of this danger, the capacity of the person to access the test sources or through third parties to the test sources or to influence other persons, witnesses or experts or those who may be, will be considered.

(c) Avoid that the accused can act against the legal assets of the victim, especially when it is one of the persons referred to in Article 153 of the Penal Code. In such cases, the limit on the penalty shall not apply to the ordinal 1.o of this paragraph.

2. The provisional prison may also be agreed, with the requirements set out in the 1.oy 2.o of the previous paragraph, in order to avoid the risk of other criminal acts being committed by the accused.

In order to assess the existence of this risk, it will be in the circumstances of the event, as well as the seriousness of the crimes that may be committed.

Only the provisional prison can be sealed for this cause when the criminal act imputed is painful. However, the limit laid down in the ordinal 1.o of the preceding paragraph shall not be applicable where the antecedent of the imputed and other data or circumstances provided by the Judicial Police or resulting from the actions can be rationally inferred that the defendant is acting in concert with another person or other persons in an organized manner for the commission of criminal acts or carries out his criminal activities with habituality. " " Article 504.

1. The provisional prison shall last for the time required to achieve any of the purposes referred to in the previous Article, while the reasons for its adoption remain.

2. Where the provisional imprisonment has been imposed pursuant to paragraph 1 (a) of the provisions of paragraph 1 or paragraph 2 of the preceding article, the duration of the prison may not exceed one year if the offence is punishable by a penalty.

deprivation of liberty equal to or less than three years, or two years if the custodial sentence for the offence was greater than three years. However, where there are circumstances which make it possible that the cause may not be judged within those time limits, the judge or tribunal may, in accordance with Article 505, agree by order of a single extension of up to two years, if the offence was punishable by a custodial sentence of more than three years, or up to six months, if the offence was punishable by a penalty of three years or less.

If the defendant is convicted, the provisional prison may be extended to the limit of half the sentence actually imposed in the judgment, where the sentence has been appealed.

3. Where the provisional imprisonment has been agreed pursuant to the provisions of paragraph 1.3. (b) of the preceding Article, its duration may not exceed six months.

However, where the incommunicado prison or the secret of the summary has been decreed, if, before the time limit laid down in the preceding paragraph, the incommunicado or the secret is raised, the judge or tribunal shall state the reasons for the subsistence of the budget of the provisional prison.

4. The granting of freedom in the course of the maximum time limits for the provisional prison shall not prevent it from being agreed in the event that the accused, without legitimate reason, shall cease to appear in any appeal of the judge or tribunal.

5. For the purposes of calculating the time limits laid down in this article, account shall be taken of the time taken by the person who has been detained or placed on a provisional basis for the same reason.

It will, however, be excluded from that computation the time when the cause will suffer dilations not attributable to the Administration of Justice. "

" Article 505.

1. Where the detainee is made available to the investigating judge or tribunal to be heard of the case, he shall, unless his provisional release is delayed without bail, convene a hearing in which the Prosecutor's Office or the accused parties may be interested in the provisional imprisonment of the accused or his provisional release on bail.

In the cases of the procedure laid down in Title III of book IV of this Law, this procedure shall be conducted in accordance with the provisions of Article 798, unless the hearing has been held before.

2. The hearing provided for in the preceding paragraph shall be held as soon as possible within 72 hours of the arrest and shall be referred to the defendant, who shall be assisted by the court of justice. elected or appointed on its own initiative, to the Prosecutor's Office and to the other parties. The hearing shall also be held in order to request and decree, where appropriate, the provisional imprisonment of the person not detained or his provisional release on bail.

3. In such a hearing, if the Prosecutor's Office or an accusing party requests that the provisional imprisonment of the imputed or his provisional bail be imposed, the persons concerned may make representations and propose the means of proof which may be performed on the spot or within 72 hours of the preceding paragraph.

4. The judge or tribunal shall decide on the provenance or not of the prison or the imposition of the bail. If neither party is urging them, it will necessarily agree to the immediate release of the accused who is being held.

5. If, for any reason, the hearing cannot be held, the judge or tribunal may agree to the provisional imprisonment, if the budgets of Article 503, or the provisional release with bail are present.

However, within the next 72 hours, the judge or tribunal shall convene a new hearing, taking the measures to be taken by the failure to hold the first hearing.

6. Where the detainee is placed at the disposal of a judge other than the judge or tribunal which he or she knew of the case, and the detainee is unable to be made available to the court within 72 hours, the first agreement shall be made as provided for in the preceding paragraphs.

However, once the judge or court of the case receives the proceedings, he or she will hear the defendant, assisted by his lawyer, as soon as possible and will dictate the resolution that proceeds. " " Article 506.

1. Resolutions on the personal situation of the accused shall take the form of order. The order of the provisional prison or its extension shall state the reasons why the measure is deemed necessary and proportionate in respect of the purposes justifying its adoption.

2. If the cause has been declared secret, in the order of imprisonment the individuals shall express themselves that, in order to preserve the purpose of the secret, they must be omitted from the copy to be notified. In no case shall a brief description of the imputed fact be omitted in the notification and of which or which of the purposes referred to in Article 503 is intended to be achieved with the prison.

When the secret of the summary is raised, the car will be immediately notified of the car.

3. The orders relating to the personal situation of the person shall be brought to the attention of those directly offended and harmed by the offence whose security may be affected by the decision. ' " Article 507.

1. The appeal may be exercised in accordance with the terms of Article 766, which shall be subject to preferential treatment, in respect of orders which have been declared, extended or refused on a provisional basis. The appeal against the prison order must be resolved within a maximum of 30 days.

2. Where, pursuant to the provisions of paragraph 2 of the foregoing Article, the order of imprisonment has not been fully notified to the person concerned, the latter may also use the entire order when notified to him, in accordance with the provisions of the previous paragraph. " " Article 508.

The judge or tribunal may agree to replace the temporary prison of the accused by his house arrest when, for reasons of illness, the internment is in serious danger to his health.

House arrest will be agreed with the necessary vigilance. The judge or tribunal may authorise the defendant to leave his home during the hours necessary for the treatment of his illness, always with precise surveillance. "

" Article 509.

1. The court of instruction or tribunal may agree to the arrest or imprisonment of persons who are allegedly involved in the facts under investigation, or who are hiding, altering or destroying evidence, in order to prevent the action of justice from being taken against them. related to their committee, or that new criminal acts are committed.

2. The incommunicado of the detainees or prisoners shall last the time strictly necessary for urgent action to avoid the dangers referred to in the preceding paragraph.

Incommunication may not extend beyond five days. In cases where the prison is agreed on account of any of the offences referred to in Article 384 bis or in the case of investigations affecting the activities of organised crime, the communication may be extended by a further period of time. period not exceeding five days.

However, the judge or tribunal that knows the cause may send the prisoner to be incommunicado, even after having been put in communication, whenever the cause offers merit. This second communication shall in no case exceed three days. " " Article 510.

1. The incommunicado may attend with the precautions due to the actions in which the act of intervention of this law may not detract from the object of the incommunicado.

2. The prisoner shall be permitted to have the effect that he is provided as long as the purposes of the incommunicado are not thwarted by a judge or tribunal.

3. The prisoner may not make or receive any communication. However, the judge or tribunal may authorise communications which do not frustrate the purpose of the incommunicado prison and shall, where appropriate, take appropriate measures. ' " Article 511.

1. In order to carry out the order of imprisonment, two commandments shall be issued: one to the Judicial Police or judicial agent, if any, to be executed, and another to the director of the establishment to receive the prisoner.

The order shall contain the personal data of the defendant, the offence which results in the proceedings and whether the prison must be in communication or without it.

2. The directors of the establishments shall not receive any person in prison without being given a prison term.

3. Once the order for the release of the prisoner is issued, the director of the establishment shall immediately be issued a warrant. "

Article 2.

New wording is given to the articles of the Criminal Procedure Act which are listed below:

One. Article 529 is worded as follows:

" Where the provisional imprisonment of the imputed has not been agreed, the judge or tribunal shall, in accordance with the provisions of Article 505, decide whether or not the imputed shall be granted bail to continue on provisional release.

In the same order, if the judge or tribunal delays the bond, it shall fix the quality and quantity of the security.

This order shall be notified to the defendant, the Prosecutor's Office and the other parties, and shall be subject to recourse in accordance with the provisions of Article 507. "

Two. Article 530 is worded as follows:

" The defendant who is on a provisional release, with or without bail, shall act as an obligation to appear on the days that are indicated in the respective order, and in addition to the number of times he is called before the judge or the court that knows the cause. In order to ensure compliance with this obligation, the judge or tribunal may give a reasoned agreement to the retention of his passport. '

Three. The third and fourth paragraphs of Article 539 of the Criminal Procedure Act are worded as follows:

" In order to agree to the imprisonment or the provisional release on bail of those who are at liberty or to aggravate the conditions of the provisional freedom already agreed to replace it with that of imprisonment or provisional freedom with bail, require a request from the Prosecutor's Office or from any accusing party, in order to resolve the appearance referred to in Article 505.

However, if, in the judgment of the judge or tribunal, the budgets of Article 503 are met, the judge or tribunal shall issue a self-order of reform of the precautionary measure, or even of imprisonment, if the defendant is at liberty, but must to convene, within 72 hours, at the indicated appearance. "

Article 3.

New wording is given to the last paragraph of Article 544a:

" In case of non-compliance by the defendant of the measure agreed upon by the judge or tribunal, the judge or tribunal shall call for the appearance of this law for the adoption of the provisional prison in the terms of the Article 503 or other precautionary measure involving a further limitation of his personal freedom, for which account shall be taken of the incidence of the non-compliance, his motives, gravity and circumstances, without prejudice to the responsibilities of the non-compliance could result. "

Article 4.

1. A new paragraph is added to Article 306 of the Criminal Prosecution Act with the following content:

" Where the precise technical means exist in the judicial bodies, the prosecutor may intervene in proceedings of any criminal proceedings, including the appearance of Article 505, by videoconference or other a similar system that allows two-way and simultaneous communication of the image and sound. "

2. Content is given to Article 325 of the Criminal Prosecution Act:

" Article 325.

The judge, on its own initiative or at the request of a party, for reasons of utility, security or public order, as well

as in those cases where the appearance of the person to intervene in any kind of criminal procedure as imputed, witness, expert, or in another condition is particularly burdensome or prejudicial, may be agreed the appearance is made through videoconferencing or other similar system that allows the two-way and simultaneous communication of the image and the sound, in accordance with the provisions of Article 229 (3) of the Organic Law of Power Judicial. '

3. A new Article 731 bis is added to the Criminal Prosecution Act:

" Article 731 bis.

The court, on its own initiative or at the request of a party, for reasons of utility, security or public order, as well as in those cases in which the appearance of who is to intervene in any kind of criminal procedure such as imputed, witness, expert, or otherwise burdensome or harmful, may agree that his/her performance is carried out via videoconferencing or other similar system which allows for the simultaneous and simultaneous communication of the image and sound, of the provisions of Article 229 (3) of the Organic Law of the Judiciary. "

4. New wording is given to the initial paragraph of Article 797 (1) of the Criminal Procedure Act:

" 1. The court of call, after receiving the attention of the police, together with the objects, instruments and evidence which, if any, accompany it, shall, if appropriate, initiate urgent proceedings. No recourse shall be brought against this order. Without prejudice to the other tasks entrusted to it, it shall, where appropriate, practice the following measures in the order it considers most appropriate or advisable, with the active participation of the Ministry of Public Health. " Single additional provision.

Added to Article 229 of the Organic Law 6/1985, of July 1, of the Judiciary, a new paragraph 3 with the following content:

" 3. These actions may be carried out via videoconferencing or other similar system that allows for the two-way and simultaneous communication of the image and sound and the visual, auditory and verbal interaction between two persons or groups of persons. geographically distant, assuring in any case the possibility of contradiction of the parties and the safeguarding of the right of defense, when the judge or tribunal agrees.

In these cases, the judicial secretary of the court or tribunal that has agreed the measure will accredit from the judicial headquarters the identity of the persons who intervene through the video conference through the previous referral or the direct display of documentation, by personal knowledge or by any other appropriate procedural means. "

Single repeal provision.

Articles 504 bis.2 and 517, as well as the second paragraph of Article 518 of the Criminal Procedure Act, are repealed.

Single end disposition.

This organic law shall enter into force on the day following that of its publication in the "Official State Gazette".

Therefore, I command all Spaniards, individuals and authorities, to keep and keep this organic law.

Madrid, 24 October 2003.

JOHN CARLOS R.

The President of the Government,

JOSÉ MARÍA AZNAR LÓPEZ