For a few years, any person who has spent pretrial detention and then has not been sentenced has the right to compensation. Since 2019, the courts have signed compensation for more than 70 innocent pre-trial prisoners and the amounts range between 1,500 euros and half a million. A study published by Nothing is free and signed by two experts in Economics and Law, analyzes more than 300 cases dating back to the 1990s and points to a common complaint among lawyers involved in these processes: the absence of fixed and objective legal criteria to establish these compensations . The results, they state, “show some decision patterns that are difficult to justify.”
Justice indemnifies a couple who spent several years in jail for jihadism with half a million and ended up acquitted
This is an analysis signed by Gabriel Doménech, professor of administrative law at the University of Valencia, and Juan Luis Jiménez, professor of the department of applied economic analysis at the University of Las Palmas de Gran Canaria. A study that analyzes 333 judicial decisions that, from 1990 to the present, have forced the State to indemnify people who went to prison preventively or even sentenced to be later acquitted.
The regulations on this matter have been changing at the stroke of a sentence in the last three decades. The researchers state that in a first stage, which spans from 1990 to 2010, the interpretation was that compensation had to be paid only when the crime for which they had been directly charged had not existed or because another person had committed it, not only if there had been doubts. about his guilt. In a second stage, between 2010 and 2019, the criteria narrowed and the courts only signed compensation if the crime had never existed.
Everything changed that year, when the Constitutional Court established that someone who had gone to jail and was later acquitted or exonerated due to dismissal of the case had the right to compensation. And an article 294 of the Organic Law of the Judiciary came into play that, far from acting as a calculator, leaves that amount open: “It will be set based on the time of deprivation of liberty and the personal and family consequences that have occurred ”.
In other words, a comparison between two cases can reveal that a prisoner who has spent a year in prison can earn less than another who has spent six months because the latter has been able to demonstrate that, because he was in pretrial detention, he lost his job and custody of their children. Or the option to buy a house. Or that his imprisonment led to mental health problems.
The problem, according to this study, is that there is no objective criterion to quantify it and that leads, he denounces, to “hardly justifiable” patterns. The first one that they state is that the average daily compensation for the period from 2019 to the present, since the Constitutional Court ruling, is “87% lower” than that of the first period, which was from 1990 to 2010. “The reason cannot be guessed for which the daily compensations that are granted today are 87% lower than those that were given two decades ago”, says the study.
“It could be hypothesized that judges do not like to compensate acquitted people whose innocence has not been proven with sufficient certainty. Perhaps for this reason they were not recognized during the first period the right to be compensated. And, perhaps for this reason, when they have been “forced” to admit it, they have drastically reduced the amount of compensation they are granted”, analyzes the study.
They also consider another of the factors detected in their study “striking”: that public workers -among them police officers and civil guards stand out- are usually compensated with more money for the salary they have stopped earning while in jail although, they point out , sometimes continue to collect “a large part of their salaries.” They also reach other conclusions: the more days there are to be compensated, the lower the daily compensation awarded, sex offenders have received higher compensation than those accused of drug trafficking, those who prove extraordinary psychological or reputational damage also obtain higher compensation and, finally, , that “the gender of the defendant and that of the rapporteur judge do not affect the compensation.”
The largest compensation: almost half a million
As published by elDiario.es, from 2019 to the present, the National Court has forced the Ministry of Justice to compensate more than 70 innocent pre-trial prisoners in amounts that, in total, exceed one million euros. Resolutions examined by this newspaper that draw the disparity of criteria reflected by this study and the difficulty of many affected to demonstrate before a court, with reports and documents, how their time in prison has affected them.
The highest compensation granted in this period was known a few months ago. The Court recognized almost half a million euros for a couple who spent, in the most serious case, more than a thousand days behind bars accused of radicalizing jihadists in the south of Madrid to finally be acquitted. Later they went to the State requesting compensation: they lost their house, their two small children had to return to Morocco, the woman almost lost her Spanish nationality, he became unemployed and suffered a suicide attempt and their names, to this day, remain in dozens of news items on the internet linked to jihadism.
In this case, their lawyers were able to justify a good part of their claims and of the 700,000 euros they requested, the National Court granted almost half a million. “The prison undoubtedly deprived him of maintaining his personal and family life, with the pain that this causes,” the judges acknowledged. This imprisonment, they added, “undoubtedly aggravated the situation, due to the isolation and the intervention of communications” generating “significant psychiatric and psychological damage” with “little hope of improvement.”
The data compiled by this newspaper shows, for example, that a former police officer in the Catalan town of Mollet del Vallès was compensated 50,000 euros for spending more than a year in prison accused of collaborating with a drug gang. The former anti-drug chief of the Civil Guard in Segovia, who spent just over two months behind bars accused of something similar before being exonerated, was compensated with 7,600 euros.
Another of the highest indemnities signed in recent years is that of almost 150,000 euros established by the National Court for roman van der dussen, a Dutch citizen who spent several years behind bars for a rape in Fuengirola that he did not commit. There is also that of 69,000 euros granted to a man who spent more than 1,000 days in prison accused of abusing his son until he was acquitted by the Supreme Court.
In that case, the judges agreed to compensate the chronic post-traumatic stress disorder and the chronic depression resulting from the imprisonment, the more than three years he spent in jail as there was “reliable evidence”, but not other aspects that, according to the judges, were not could prove. For example, the money he stopped earning because he was unable to work, “since it has not been proven that provisional detention interrupted any work activity.” The 69,000 euros established by the National Court, acknowledges the sentence itself, comes from a “discretionary” estimate.