The bench penalty and undue delay

What is the bench penalty?

Let’s take an example. There are 35 defendants (now called the investigated) in the Banco Popular case.

The investigation of the case began in June 2017. Today, in March 2019, 21 months later, none of the 35 accused has been heard. None of these 35 people has yet had the opportunity to be heard, to tell their version of the facts. It seems relevant, doesn’t it?

Meanwhile, the judge has just changed. Millions of documents will have to be analyzed by the new Judge who is completely unaware of the case. Is it possible for a new Judge to analyze millions of documents again, from the beginning?

It is possible that all of them are guilty and that they will have to be “shot at dawn” (this is a license, obviously). It is possible. But the Administration of Justice of a country that boasts of being a Social and Democratic State of Law, cannot afford to have 35 people in that situation of “social condemnation”. They are 35 “zombies”, socially and reputationally dead, who live together in a society, without even being heard.

And this only happens in the Banco Popular case?

This happens in an infinite number of judicial cases in Spain, especially in the Criminal Jurisdiction of the Spanish National Audience.

Being declared “investigated” by a judicial resolution of the Audiencia Nacional constitutes a conviction, whether you are a terrorist, drug trafficker or … innocent.

Is there a bench penalty in countries similar to Spain?

The Madoff case affected thousands of investors and involved a fraud of tens of billions of dollars. Madoff was sentenced to 150 years in prison in less than 9 months.

Skilling (Enron) was sentenced to 24 years in prison, Ebbers (Worldcom) was sentenced to 25 years in prison and Kozlowsky (Tyco International) was sentenced to 25 years in prison. But neither served “bench time”. Their sentences (fair or not) came in less than a year from the time their case was investigated.

Bench punishment is as cruel and unjust as it is tolerated by the Administration of Justice in Spain. The Judges of Instruction live with it as something inevitable, as part of the system.

And the blindness of the average citizen is even worse: Everything is summarized in one sentence: “Surely If they are in such predicament, it´s because of something they´ve done “. That is the penalty of the bench. The social and reputational condemnation, the vital uncertainty of those accused and thousands more who are investigated in Spain for years.

It´s a popular saying, that justice is slow, but it comes. And also, a  slow justice it is not justice at al. In this article, we will deal with both. When it arrives slowly and because of that delay it cannot longer be considered fair. It is what is legally known as the extenuating circumstance of undue delay.

And not only because a quick sentence avoids the accused suffering the social ostracism that comes with “bench punishment”.

Regulation

The extenuating circumstance of undue delay has been regulated in Article 21.6 of the criminal code since its reform in 2010. It is included in the catalog of extenuating circumstances for criminal liability. It is the normative manifestation of a longstanding jurisprudential interpretation.

It is defined as the extraordinary delay in the processing of the procedure, not attributable to the defendant, and disproportionate to its complexity.

Application:

Its assessment requires the concurrence of four constituent elements during the procedure, namely

a) there is an undue and extraordinary delay;

b) it occurs during the procedure;

c) that the unjustified delay or tardiness is not attributable to the defendant and,

(d) the delay is not proportionate to the complexity of the dispute.

Object:

The basis of the mitigation is the compensation of the damage caused by the delay, against a decrease of the penalty.

For its application, the person claiming it, even if it was not the person who caused it, cannot have been the beneficiary of those delays either. Otherwise, he would be doubly compensated.

The damage is caused by the submission to a criminal proceeding, which translates into, among other things

• The very uncertainty of the outcome,
• The subjection to possible precautionary measures,
• The biweekly presentations…

We must appreciate situations that lead to discomfort, which increase as the process is unduly prolonged.

And depending on the length of the delay, the extenuating circumstance may be, as we explain below, simple or very qualified.

The mitigation for undue delay Simple/Ordinary or Qualified/Very Qualified

The extension of the period of delay of the procedure, serves to qualify the undue delays as simple or very qualified.

In order to appreciate the extenuating circumstance as “highly qualified,” the jurisprudence points out that the period of time for the process must be especially extraordinary.

In other words, undue delay requires ex. art. 216  CP an extraordinary delay, which would be the simple undue delay. When the delay can be described as “disproportionate,” then we would be facing a qualified undue delay.

If the delay is considered highly qualified, the penalty is reduced from one (simple) degree to two. This is in application of Article 66 of the Criminal Code.

But let us see how our jurisprudence distinguishes between simple and qualified undue delay with a couple of recent examples:

Supreme Court Sentence 200/2018 (Criminal Chamber Section 1) of 25 April:

(…) Well, it should be noted that as we read in STS No. 941/2016, of 15 December (RJ 2016, 5986), “In our STS 578/2016 of 30 June (RJ 2016, 2888), citing STS No. 586/2014 of 23 July (RJ 2014, 3642) and No. 126/2014 of 21 February (RJ 2014, 2097), we recalled the doctrine of this Court according to which if the ordinary attenuator  requires extraordinary dilations, that is to say, that they  shall be “out of all normality”; for the qualified delay it will be necessary that for the dilations to be disproportionate. And in STS 357/2014 of 16 April (RJ 2014, 2634) we insisted: if the simple extenuating circumstance demands extraordinary delays, for its qualification, much more will have to be demanded: a real disproportion that cannot be explained. Ordinary attenuation requires extraordinary delay (“out of the ordinary”); extraordinary effectiveness of the attenuation can only appear in the face of “arch-extraordinary”, disproportionate, inexplicable delay.

And among the criteria that we must analyze in order to verify this disproportion, it is possible to resort not only to extraordinary time from the global perspective of the total procedure, but also to other more specific criteria: such as the plurality and dimension of the periods of paralysis or slowdown.(…)

And in the same sense,

STS (Criminal Chamber) 531/2018 of November 6:

(…) Well, it should be remembered that this Chamber of the Supreme Court has pointed out, in Ruling 416/2013 of 26 Apr. 2013 (RJ 2013, 3978), Rec. 10989/2012 among others,  that: “In cassation rulings, mitigating factors are usually applied as highly qualified in cases that take place over a period of approximately eight years between the indictment of the defendant and the oral hearing of the trial.

(…) Although case law has shown that the overall length of a trial must be especially extraordinary in order for the mitigation of undue delays to be appreciated as highly qualified, it has also established that in cases of trials that do not last seven years, the mitigation of undue delays can be applied as highly qualified when it is proven that there have been several stays of proceedings in the case, some of which have exceeded one year. Thus, the qualification of the extenuating circumstance is legitimated not only in terms of the total period of processing of a case (reasonable period criterion), but also when, although the duration of the case is not particularly extraordinary, there are specific delays that include a significant period of time as a result of the stoppage. (…)

We began this article by invoking the saying that, “justice is slow, but it comes”.

Unfortunately, that well-known phrase sometimes seems to mean little. There are those who even malice that, in the administrative litigation, incur in a slowness, “politically” interested … Values? Soil Qualifications?

But we believe that  it should be of interest, what happens with all those innocent people involved in criminal proceedings? There are those who, even being innocent, close deals, in the face of the uncertainty generated by endless proceedings.

Undue delays have become commonplace, and it is as regrettable as Justice does not work properly.

If this article has been of interest, we also suggest you to read the following article published on our website: How does Habeas Corpus work? Practical questions about Illegal Detention and Habeas Corpus.