Compensation for Wrongful Pre-Trial Detention

Compensation for wrongful pre-trial detention is the right of a person who has suffered pre-trial detention to be redressed by the State where the criminal proceedings end in acquittal or final dismissal. Its regime is not found in the Criminal Code but in Articles 293 and 294 of Organic Law 6/1985 of 1 July on the Judiciary (LOPJ), which develop the mandate of Article 121 of the Spanish Constitution on the State's financial liability for the functioning of the Administration of Justice. As criminal and administrative-law lawyers we handle this claim rigorously, with more than fifteen years' experience in the criminal jurisdiction.

What compensation for wrongful pre-trial detention is

Pre-trial detention is a precautionary measure that deprives a person of liberty before there is a final judgment, where the requirements of the Criminal Procedure Act are met. It is, by definition, a deprivation of liberty of someone still presumed innocent. Where the proceedings end without a conviction, that period of detention suffered may give rise to a right to compensation borne by the State.

This right is channelled through the State's financial liability for the functioning of the Administration of Justice. Article 294 LOPJ establishes a specific ground: compensation in favour of a person who, after suffering pre-trial detention, is ultimately acquitted or whose case is finally dismissed. It is not about punishing the judge who ordered the measure, which may have been sound given the information available, but about compensating the sacrifice of a fundamental right that was not in the end followed by a conviction.

Requirements of Article 294 LOPJ

Article 294.1 LOPJ recognises the right to compensation for those who, after suffering pre-trial detention, are acquitted or whose case is finally dismissed. The essential requirements are therefore two:

• Pre-trial detention actually suffered: a precautionary deprivation of liberty ordered within the criminal proceedings must have been endured.
• Favourable final resolution: the proceedings must end by a final acquittal or a final dismissal order. Final dismissal is materially equivalent to an early acquittal; provisional dismissal, by contrast, does not definitively close the case and does not on its own open this route.

The second paragraph of the provision requires the amount of compensation to be set in view of the time of deprivation of liberty and the personal and family consequences that have arisen. This framework introduces two basic parameters of quantification: the length of the detention and the actual extent of the harm.

The turn brought by STC 85/2019

For decades, the wording of Article 294.1 LOPJ limited compensation to cases of non-existence of the act charged, and case law added lack of participation as a further ground. This left out those acquitted for other reasons —for instance, by application of the presumption of innocence where the evidence was insufficient—, creating a difference in treatment that was hard to justify.

The Judgment of the Constitutional Court 85/2019 of 19 June declared unconstitutional and void the wording of Article 294.1 LOPJ that restricted compensation to cases of objective or subjective non-existence of the act. As a result, the scope of the provision was extended to any acquittal or final dismissal: it is no longer necessary to show that the act did not exist or that the claimant did not take part in it; an acquittal or final dismissal is enough to access the claim. This doctrine brought about a substantial change in the practice of these claims and significantly widened the range of compensable cases.

One-year time limit to claim

The time limit to claim is one year. Article 293.2 LOPJ, also applicable to the route of Article 294, provides that the action to claim compensation must be exercised within one year, starting from the day on which it could be exercised. In practice, that day is the day of finality of the acquittal or of the final dismissal order.

It is a time-bar (caducidad) period whose lapse extinguishes the right to claim by this route. It is therefore essential to compute it precisely from the notification of the finality of the resolution that closes the proceedings, avoiding a claim that arrives late and becomes inadmissible as out of time.

Procedure before the Ministry of Justice

The claim is first dealt with by the administrative route. The claim is addressed to the Ministry of Justice, which processes the financial-liability file. A report from the Council of State is mandatory before the decision. The claim must evidence the pre-trial detention suffered, provide the final acquittal or dismissal order, justify compliance with the one-year time limit and quantify the harm claimed in as much detail as possible.

The Administration may resolve expressly, upholding the claim in whole or in part or rejecting it. If it does not resolve within the legally provided period, administrative silence of a rejecting nature operates, opening access to the judicial route. Careful preparation of this initial claim is decisive, because it sets out the facts, the amount and the grounds on which any subsequent judicial appeal will be built.

Administrative-law appeal

Against the decision of the Ministry of Justice —an express rejection or a rejection by silence— an administrative-law appeal may be lodged. It is in this judicial forum that the competent body reviews whether the requirements of Article 294 LOPJ are met and, where appropriate, sets or corrects the amount of compensation. The appeal must be brought within the time limits proper to the administrative-law jurisdiction, distinct from the one-year time limit of the initial administrative claim.

The procedural strategy at this stage focuses on evidencing the reality and duration of the pre-trial detention, the finality of the acquittal or final dismissal order and, above all, the extent of the harm suffered. Quantification is often the most disputed ground, so producing solid evidence of the harm is decisive.

Relationship with judicial error (Art. 293 LOPJ)

Article 294 LOPJ coexists with a distinct route: that of judicial error under Article 293 LOPJ. Both are routes of the State's financial liability, but they have different requirements. The claim for wrongful pre-trial detention (Art. 294) is an autonomous ground: it is enough to have suffered pre-trial detention and to have been acquitted or finally dismissed, with no need to prove an error by the judicial body.

The judicial-error route (Art. 293), by contrast, requires the prior declaration of the error by the Supreme Court through a specific procedure, before compensation can be claimed from the Ministry of Justice. They are compatible routes: depending on the circumstances of the case one, the other or both may be appropriate. This pairing is analysed in detail in the article on compensation for judicial error and wrongful imprisonment (Arts. 293-294 LOPJ). Choosing the right route, and articulating it correctly, is one of the most important strategic decisions in these matters.

Quantifying the harm

Article 294.2 LOPJ requires the compensation to be set in view of the time of deprivation of liberty and the personal and family consequences for the claimant. The amount usually comprises the moral harm arising from the deprivation of liberty itself —which grows with its length and with the circumstances in which it was suffered— and the pecuniary harm evidenced, such as loss of income, of employment or of economic opportunities.

There is no fixed statutory scale for this ground, so the assessment is carried out case by case. It is therefore crucial to document precisely the exact length of the detention, the prior personal and employment situation, the family impact and any evidenced after-effects. A claim well founded on evidence has a far higher chance of success than one that merely invokes the time of confinement without further justification of the harm.

Strategy of the claim

The effective defence of these claims combines rigour in the time limits, evidential strength and the correct choice of route. We verify the finality of the resolution that closes the proceedings, compute the one-year time limit precisely, prepare a complete claim before the Ministry of Justice and, where necessary, articulate the subsequent administrative-law appeal.

We also assess whether, in addition to the route of Article 294, the judicial-error route of Article 293 is appropriate, and we coordinate both where the case so advises. The aim is to obtain redress that truly reflects the sacrifice of liberty endured and its consequences, within the framework of the State's financial liability enshrined in Article 121 of the Constitution.