Interior of the Badajoz prison.ACAIP-UGT
How much is the time spent in pretrial detention worth to Spanish judges? This was the question asked by Gabriel Doménech (University of Valencia) and Juan Luis Jiménez (University of Las Palmas de Gran Canaria) and which has led them to compile and analyze all the compensation awarded by Spanish courts from 1990 to the present ( 333 cases) to those who suffered pretrial detention and were later not sentenced. The preliminary results, which have been published this Monday in the economics blog Nothing is free, show, according to the researchers, some “hardly justifiable” decision patterns on which factors affect the amount of compensation. For example, the median compensation is 24 euros a day, but police officers or public employees are compensated much more than other workers (despite the fact that they continue to receive part of their salary when they are in pretrial detention and what they recover everything with retroactive effect if they are acquitted).
The rules applied in Spain to decide who is entitled to be compensated for undue preventive detention have been changing in the last 30 years. In its original wording, article 294 of the Organic Law of the Judiciary (LOPJ) provided that they would have “the right to compensation who, after having suffered preventive detention, [fuesen] acquitted due to the non-existence of the accused act”. The Supreme Court interpreted this precept in the sense that the State should compensate when the innocence of the accused was proven, either because the crime charged had not existed or because he had not committed it; but there was no compensation when he had been acquitted under the principle of presumption of innocence because there was a reasonable doubt about his guilt. As of 2010, and after a “letting go” from the European Court of Human Rights, the law changed and began to compensate only those who had been accused of a non-existent crime (if the crime existed, even if innocence was proven, there was no right to compensation). But the Constitutional annulled part of the norm in 2019 and, since then, it is understood that practically all the people who have suffered preventive detention not followed by a conviction have the right to be compensated.
Compensation for undue preventive detention is granted by the Ministry of Justice, but on many occasions the case ends up in court because the defendant appeals either the decision not to compensate him for the time he was imprisoned or the amount set by the Administration. Professors Doménech and Jiménez have focused their study on these very common cases and in which the courts determine the compensation.
The law does not set figures for compensation, it only establishes that the amount “will be set based on the time of deprivation of liberty and the personal and family consequences that have occurred.” But the data, after digging into the resolutions issued by the courts, show a great margin for arbitrariness. One of the conclusions reached by the authors of the study is that the compensation has been reduced as the jurisprudence has changed and in a very substantial way since 2019: the median compensation has gone from being 210 euros per day, to 161 and 24 euros per day respectively in each period (1990-2010, 2010-2019 and 2019 onwards, respectively). The average daily compensation since 2019 is 87% lower than that received between 1990 and 2010.
Another of the data that the authors consider striking is that the greater the number of days in pretrial detention, the lower the daily compensation granted. Thus, their estimates find that a 1% increase in the number of days in pretrial detention implies a 0.15% reduction in the (deflated) daily compensation received.
The individual analysis of the cases leaves some results that are shocking. The lowest compensation, according to the analysis made by Doménech and Jiménez, was granted to a person who was compensated by the National Court with 4,500 euros for 1,121 days of undue imprisonment: in total, 4.01 euros per day. Somewhat more luck, although scarce as well, had another defendant who was granted compensation of 6,000 euros for 814 days in prison, that is, 7.37 euros for each day that he was unduly in jail.
What affects the most is what happens closer. To not miss anything, subscribe.
Those who work receive more compensation than those who do not (38% more on average), but there are notable differences by profession. The police (here the study includes civil and military guards) and other public employees receive a daily compensation “significantly higher” than that of other workers, according to the study. Specifically, the median value of daily compensation (deflated) for police officers and public employees is around 780 euros, while the self-employed receive 335, and workers in private companies, lower amounts. In global data, employees receive 38% more than those who do not prove employment, while police officers receive 171% more.
In order to establish possible relationships that could influence the amount of compensation, the study analyzed factors such as the nationality of the indemnified party, if they had children, the gender of the judge and the defendant, if psychological damage or illnesses caused by the prison were accredited, or if this had a media impact. The conclusions show that the gender of the defendant and that of the rapporteur judge do not affect compensation, nor does nationality; but yes, having suffered extraordinary psychological or reputational damage, since those who prove it obtain greater compensation; and that those accused of crimes against sexual freedom obtain higher daily compensation than those accused of drug trafficking (who constitute the reference).
Subscribe to continue reading
Read without limits