Whoever gets caught by the judiciary in Spain usually has nothing to smile about. Law enforcement agencies are anything but gentle with suspected criminals. Pre-trial detention alone can last up to two years, and it may even take a while for court proceedings to begin four years!
Four years behind bars without the allegations being examined and evaluated by an independent court – unthinkable in Germany. With us the maximum duration of pre-trial detention is six months. Even in difficult cases and if there is a risk of recurrence, suspects may not be held in custody for longer than one year.
Up to four years in custody would be unthinkable in Germany
Suspects can literally break up in the long Spanish custody. Arno Meuser, a German lawyer who has been working in Mallorca for 27 years and mainly represents German-speaking clients, describes the sometimes drastic consequences: “It may be that someone is released after two months and is mentally and economically ruined,” Meuser said recently to the “Mallorca Newspaper”.
The lawyer further explained that in Spain a judge can only order pre-trial detention if the offense is subject to at least two years’ imprisonment. In addition, there must be clear evidence that the accused actually committed the crime. In addition, other valid reasons are required. These include the risk of absconding or someone destroying evidence, intimidating their victim, or becoming a repeat offender.
In Spain, as in Germany, pre-trial detention is later deducted from the prison sentence. Anyone who is acquitted can seek compensation from the Spanish state Sue.
Lawyer: Hardship “should probably act as a deterrent”
In Spain, the investigating judge plays a central role during the proceedings – a position that does not exist in the German legal system. The investigating judges on the Balearic Islands have the reputation of being particularly tough on the subject of pre-trial detention.
“Especially with the many tourists here, that should have a deterrent effect,” lawyer Arno Meuser told the “Mallorca Zeitung”. A long period of detention makes it clear to the public that you have to abide by the law on Mallorca – otherwise you will feel the full severity of the judiciary.
In the case of the alleged gang rape of an 18-year-old woman from Hanover, an investigating judge in Palma put five of the men from North Rhine-Westphalia in custody last Saturday, and a sixth was released without conditions. The accused men are between 21 and 23 years old and deny the allegations.
The presumption of innocence initially applies to the suspects, but they are likely to have a difficult time.
Spain introduced stricter sex criminal law in 2022
In autumn 2022, stricter sex criminal law came into force in Spain. Any sex without express consent is now considered rape. The principle “Only yes means yes” applies. Sexual assault is therefore regarded as rape – regardless of whether the victim defends himself or allows an action to happen out of fear.
Rape and sexual violence are punishable by up to 15 years in prison in Spain. In Germany, courts only impose such severe penalties if the rapist used a weapon or put the victim in danger of death.
Spain’s Equality Minister Irene Montero described the law as a “decisive step in changing her country’s sexual culture”. In the future, no woman will have to “prove that violence or intimidation was involved” in order for a sexual assault to be classified as such, Montero said.
The toughened law came in response to several high-profile gang rape cases in which perpetrators got off with light sentences in recent years.
Curiously, since last October, a technical error in the law has resulted in more than 720 sex offenders having their sentences reduced retrospectively and more than 74 being released early. The gap should be closed as soon as possible.
Convicts can serve their sentences in Germany
The lawyer and criminal law professor Dr. According to Jesús Becerra from Barcelona, the investigation phase of criminal proceedings in Spain can last a maximum of twelve months. “In my experience, in particularly complicated cases, the investigation phase in criminal proceedings can extend to a period of up to three or four years,” he told Stern.
Whether the alleged gang rape falls into that category remains to be seen. At first glance, the case seems opaque and confused. If they are convicted, the young men can hope to serve their sentences in Germany.
“The law provides for the possibility for a German citizen residing in Germany to serve a sentence imposed by a Spanish court in a prison in Germany,” said Attorney Becerra.