There is no doubt that provisional imprisonment is an exceptional situation in a State of Law such as the one we enjoy in Spain that conflicts with the general principle that no one can be held as convicted if a final sentence has not been handed down that he affirms this and that his imprisonment will be the consequence of precisely that sentence that carries the custodial sentence. Another situation would lead us to arbitrariness, legal uncertainty and the impossibility of a social coexistence.
From a constitutional point of view, it reminds us of art. 17 of our Magna Carta that: “Everyone has the right to liberty and security. No one can be deprived of their liberty, except with the observance of the provisions of this article and in the cases and in the manner provided by law”.
Article 17 of the Constitution
Only in the fourth section of art. 17 Constitution, specifically stops in the provisional prison to establish that by law the maximum term of its duration will be determined. For the guarantor of our Constitution, this reading, isolated from the constitutional context, of the pertinent references of the International Treaties and Agreements ratified by our country on Fundamental Rights, and of the very significance of the institution, may engender the erroneous conception that we are before a Law of pure legal configuration, whose development does not find any constitutional restrictions other than the formal ones and whose limitation does not admit any other analysis of legitimacy than that of its mere legality. To remove this conclusion, so far removed from the transcendence of the content of the right to freedom and the very spirit of our Constitution, the Constitutional Court had the early opportunity to affirm in the STC of July 2, 1982, no. 41/1982 (Speaker: His Excellency Mr. Manuel Díez de Velasco Vallejo), rec. 196/1981 that
«The institution of provisional imprisonment, situated between the state duty to effectively prosecute the crime, on the one hand, and the state duty to ensure the scope of the citizen’s freedom, on the other, is delimited in the text of the Constitution by the statements contained in:
a) art. 1.1, consecrating the social and democratic state of law that “advocates freedom, justice, equality and political pluralism as superior values”;
b) in Sec. 1ª, Ch. II Tit. I, art. 17.1, which establishes that “everyone has the right to liberty and security. No one may be deprived of his liberty, except with observance of the provisions of this article and in the cases and in the manner provided for in the Law”, and
c) in art. 24.2, which provides that everyone has the right “to a public trial without undue delay … and to the presumption of innocence”.
At this time it is appropriate to recall the doctrine of the Constitutional Court according to which art. 17.4 The Constitution recognizes and enshrines the fundamental right of every person not to be preventively deprived of their liberty beyond the maximum period specified by law, or, in positive terms, to be released once said period has elapsed; recognition that specifies the provisions of art. 9.3 International Covenant on Civil and Political Rights of December 19, 1966, according to which “preventive detention of persons to be tried should not be the general rule” , and also by art. 5.3 European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, which guarantees the right of preventively detained persons to be tried within a reasonable period of time or to be released during the procedure.
Processing of the extraditional file
Indeed, the person involved in an extradition process has not lost his constitutional status as a subject in Law during the processing of the “Extraditional File” nor has he lost the quality of subject before the Public Powers in any situation in the constitutional State. From said condition of subject in Law it derives that the extraditurus has the right to oppose the extradition, which cannot mean that exercising a right entails imprisonment. Therefore, an expert lawyer in extraditions must assert the rights of the person sought before the Judge of the National High Court.
In line with what has been stated, nothing prevents the Judge of the Central Investigating Court of the National Court that hears the extradition from agreeing on the freedom of the person, contemplated by art. 8.3 Passive Extradition Law, and thus avoid the imposition of the most burdensome measure. Let’s not forget that provisional liberty itself implies a restriction of liberty.