Our judicial system accumulates too many problems: politicization, slowness, overload, lack of human and material resources, obsolescence of certain processes, poor selection of judges, poor internal promotion system, etc. It is increasingly necessary and urgent to start a discussion on a general reform of the judicial system in Spain. If we could do it in a mature and democratic way, without falling into partisanship and populism, listening to the experts and legal operators who make up the system, but also to the citizens affected by the failures of the system, it would be like a dream. But let’s get back to reality.
Following on from the latest scandal, the announcement of an agreement with eight child molesters in Murcia after 10 years of legal proceedings that appears to free them from prison, today I will address two issues that arise in this case: undue delays and compliance agreements. It is undeniable that the fact that confessed child molesters can escape prison is a tragic and incomprehensible fact. But let us look in detail at what led us to this result, and above all let us think about how to prevent such things from happening again.
Firstly, and from what we have read in the press, no sentence has yet been pronounced, only a resolution of the Court InvoiceWhat we have in the case of Murcia is a conspiracy of prostitution of minors (between 14 and 17 years old) in which the pimps and the clients confess to knowing the age of the girls. The prosecution requested sentences of 4 to 7 years for the pimps and 4 years for the clients for each minor abused. But the trial fails and the years go by. The minor victims grow up without justice being done (one of them does not know where she is). Among the accused, one is dead and another is incapacitated.
The continued delays are attributed to the overload of the Provincial Court of Murcia, which is apparently one of the slowest provincial courts in Spain, with longer average resolution times and in which mitigating sanctions for excessive delays are applied quite frequently. They attribute it to a dramatic lack of human and material resources. But in this specific case, the usual deadlines seem to have been greatly exceeded.
In this framework, a compliance agreement is reached between the prosecution, the court and the defense of the accused. The defendants admit to having committed some of the crimes with which they are charged and the prosecution agrees to reduce the request for sentence by applying the mitigating circumstance of excessive delay of article 21.6 of the Criminal Code, which would result in a sentence for each defendant of less than two years in prison plus compensation for the victims, which could avoid prison. It should be remembered that in Spain, the execution of sentences of less than 2 years in prison can be suspended if the convicts do not have a criminal record and other conditions are met. We will see what will happen in the final decision of the Court.
Is it logical that confessed criminals should benefit from a conviction because their trial suffered unjustified delays that were not their fault? Let us recall that this mitigating circumstance in Article 21.6 of the Criminal Code was introduced by the 2010 reform, that is to say that it did not exist before. But also that in many countries around us, the mitigating factors are similar. Is this acceptable or should it be removed? In my opinion, it is fully justified. The starting point here is that justice must operate within a reasonable time frame. Lawyers have always been convinced that justice that arrives late is, by definition, less fair. It is less justice for both victims and accused persons and, let us not forget, especially in criminal law, for the rest of society. Reducing unjustified delays has a dual objective: firstly, and above all, it attempts to encourage courts and tribunals to act more quickly; Second, it aims to compensate defendants, if they are eventually convicted, for the harm caused to them by a late conviction.
Let us give some examples. If an accused is unjustly convicted because he was actually innocent of the crimes he was accused of, he is obliged to compensate him for the damage caused. The same will happen with the accused whose fundamental right is violated during the judicial process. In this case, and depending on the right violated, for example if he is accused on the basis of illegal evidence, the accused could be acquitted even if it is known that he is guilty. It is true that this is an extreme case and much debated among jurists. But the important thing is to understand that if we cause unjustifiable harm to the accused, even if he is guilty and deserves a sentence, we have a duty to repair or compensate him for this harm. The same would be true in the event of excessive delays that are not attributable to the accused himself. The damage caused is undeniable.
To this one can respond that the victim is also harmed by the delay in the trial. Furthermore, the harm is doubled if a mitigating circumstance is subsequently applied to the convicted person and the sentence is less. This is undoubtedly what happened in the Murcia case. The victim should therefore also be compensated in some way for the delays in the process. That is why it is inconceivable in this case that the financial compensation for the victims (ranging from 500 to 2,000 euros) is so low, something that very few talk about. What happens is that the harm caused to the victim cannot erase the harm also caused to the accused. Both damages must be repaired or compensated, even if this is very difficult to achieve.
In my view, the focus should not be on the mitigating circumstance of undue delays per se, but on the real problem of origin, which is a double problem. First, it is objectively true that the Spanish judicial system is overburdened and does not have the necessary personnel and material resources. And our priority should be to provide it with the necessary funding to make it function as we wish. The administration of justice provides a fundamental and essential service in any minimally just society. It is not very popular to say it this way, but it must be understood that its importance is even greater than that of the health and education systems. I do not mean by this that resources should be withdrawn from these two systems, which are also heavily penalised by clearly insufficient public spending. I am simply trying to show that, although many do not realise it, the judicial system should be a major political and social priority, at least as much as health and education.
Added to this is another dimension of the problem. We all suspect that some of the excessive procedural delays that occur in Spain are caused not only by the objective lack of resources, but also by the inefficiency, ineptitude or perhaps even bad faith of some judges and magistrates. I have no reason to believe that this was the case in the Provincial Court of Murcia. But what I do know is that in Spain we do not have an adequate system of positive incentives, much less sanctions or punishments, to prevent this type of dysfunction in the judicial system. And we should have it. This does not change the previous point, which is fundamental: if we do not give judges the means they need to do their job well, we will not be able to demand efficiency, effectiveness and probity from them.
Let us move on to the last point: does Murcia’s problem not then come from the fact that an agreement has been reached with the accused, which in the vast majority of cases results in the imposition of a sentence significantly lower than that which could have been imposed? have imposed?
The phenomenon of the compliance agreement, which leaves judges, prosecutors and defence lawyers room to negotiate the sentence handed down, is also a highly debated topic in the legal field, and it has its lights and shadows. On the one hand, it is not something new in Spain, since the Code of Criminal Procedure has already authorised it since 1982, and even more so after the reform of 1988, although it is true that it has followed a clear upward trend in recent decades. On the other hand, this upward trend is occurring in many other countries, and especially in countries with an Anglo-Saxon tradition, and especially in the United States, which has a long and well-established tradition. According to a recent study from last year, 98% of criminal cases in the United States end with a compliance agreement, what is called there. plea bargaining.
On the one hand, the advantages of compliance agreements are obvious. If the accused pleads guilty and accepts the sentence demanded by the prosecution, the judicial proceedings are considerably shortened, there is a significant saving in human and economic resources, and the victim’s legitimate demand for justice is also satisfied earlier, which will perhaps also save her the undeniable cost of having to intervene in the oral trial, and allows a more consensual solution to a process of a deeply adversarial nature.
On the other hand, widespread use of compliance agreements could result in a significant proportion of criminal sanctions being lower than what would be fair (or at least what the law stipulates as fair), and could generate perverse strategic incentives for the parties to the conflict in the early stages of a criminal trial and, even worse, it could end up producing a grossly unfair dysfunction, as is all too common in the United States: that some defendants, in reality innocent, end up pleading guilty to avoid the risk of an unfair conviction and a disproportionate sentence.
The debate on compliance agreements is deep and complex, and we are not going to resolve it here. In my opinion, the institution itself is interesting and we must preserve it, but we must ensure that it is put into practice in a rigorous and adequate manner, avoiding the risks mentioned, avoiding a drift like the clearly abusive one in the United States and trying to preserve the fundamental justice of the decisions. But to achieve this, and even if it may seem paradoxical, we need more resources and more control mechanisms, which brings us back to the previous point.
What seems to me to be a mistake above all is to think that encouraging compliance agreements in criminal proceedings could lead to saving the material resources that we need to alleviate the problem of overload and saturation. In other words, let us not fall into the temptation of thinking that to avoid the overload that generates undue delays, we must encourage the rapid negotiation of agreements between the parties. If we see it that way, we will end up where we are: with cases like the one in Murcia, in which after 10 years of unjustified delays that harm everyone, the case is not resolved as it should be, but with an agreement in extremis that also harms everyone (except the aggressors, of course).
Let’s see if we seriously discuss reforming the justice system.
