La obligación del Estado de indemnizar los daños ocasionados por la privación de libertad de quien posteriormente no resulta condenado

Abstract

This paper addresses the State’s liability for damages caused to individuals, who having been initially imprisoned, are finally not convicted. The Spanish Council of State (Consejo de Estado), the case law and the legal doctrine have traditionally considered this to be a specific variant of the compensation for judicial error guaranteed by Section 121 of the Spanish Constitution (CE). The question of the State’s duty to compensate in these cases has grown in attention ever since the ECHR ruled, for a second time, that insofar as Section 294 of the Judicial Authority Organization Act (LOPJ) requires a positive proof of innocence to grant compensation, it violates the presumption of innocence. This paper argues that compensation owed for legitimate deprivation of liberty, far from constituting a case of compensation for judicial error, can be derived from the fundamental right to freedom and security of Section 17 CE, so that an improper refusal to compensate would entail a violation of this right. The interpretation given to Section 294 by the Spanish Supreme Court is inadequate in view of the ECHR’s case law. Limiting compensation to cases where innocence has been positively proven and considering the proof of non-involvement insufficient in this regard, leads to unequal treatment of identical situations and constitutes, therefore, a violation of the equality before the law of Section 14 CE.