penal code

   Criminal legislation in Spain until 1996 was governed by the Penal Code of 1848. In 1995, the parliament approved a completely revised code, designed to bring together the various modifications enacted since 1848, and to adapt the criminal law to the realities of a modern democratic society, and to the provisions of the constitution of 1978, which, among other things, had abolished the death penalty and guaranteed certain basic civil rights such as habeas corpus. The new code came into force on 25 May 1996. In general, the thrust of the new code was to move from an approach to sentencing based on retribution to one based on rehabilition of the offender, to reduce the length of imprisonment, and to adopt a stricter approach towards corruption and "white-collar" crime. The maximum length of prison terms was reduced from thirty years to twenty, except in cases of multiple convictions leading to concurrent sentences. Prison sentences of less than two years could be suspended for periods of two to five years, and shorter sentences could be served by weekend detention or replaced by fines or community service. Alcohol or drug dependency was accepted as a ground for the defence of diminished responsibility, and a points system was introduced for traffic offences. On the other hand, more extensive prison terms and larger fines, as well as longer periods of disqualification from public office, were introduced for bribery and corruption, as a response to the prevalence of these offences during the preceding decades. Two important features of the code provided enhanced protection for civil rights. One was the provision that decisions on remission of prison terms in cases of persons serving concurrent sentences were transferred to judges, who were empowered to give the accused person the benefit of the total remission attaching to all the periods of imprisonment taken together. The other was that it was no longer necessary to prove individual criminal responsibility in cases where citizens had suffered loss or injury as the result of actions by agents of the state. Under the new code, it is sufficient to prove that the loss or injury resulted from the operation of a public service, the underlying principle being that the state and its administrative agencies could incur civil liability for actions carried out by individual agents. The new code, however, can only function effectively if a proper infrastructure is provided for its implementation. There is a shortage of, for example, detoxification centres for drug addicts, which are essential to the rehabilitation measures envisaged for those committing drugrelated offences. Though the age of adult criminal responsibility is now set at 18 years, the code makes no specific provision for young offenders, and in the absence of separate juvenile detention centres, persons over 16 years of age can find themselves incarcerated with hardened criminals. Many of those serving their sentences by means of weekend detention may in practice have to travel long distances, given the insufficiency of appropriate accommodation near their places of residence. Furthermore, as has become clear with regard to military service, inadequate resources will make it difficult to implement the articles referring to community service. Above all, by transferring responsibility for trying certain categories of criminal cases from the first-instance juzgados to the provincial courts, the new Penal Code will compound an already serious problem of overloading of the legal system, which has led to long delays.

   Further reading

   - de la Cuadra, B. (1995) "Nace el Código Penal del siglo XXI", El País, 13 November, pp. 14– 15 (a useful summary of the main provisions).

   —— (1996) "El nuevo Código Penal, ante la hora de la verdad", El País, 27 May, pp. 18–19 (an incisively critical view of the limitations of the new code).

   EAMONN RODGERS