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Spain / Criminal Chamber of the Supreme Court / Roj: STS 3146/2018

A drug trafficking criminal group consisting of seven Columbian citizens vs Administration of Justice and Public Prosecutor

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Criminal Chamber of the Supreme Court
Decision date:

Key facts of the case:

This sentence is the response to Cassation No. 10231/2017 presented by seven Columbian citizens who were members of a drug trafficking criminal group- before the Spanish High Court ruling (Chamber 8) of 13 February 2013 for crimes against public health, belonging to a criminal organisation, and public document fraud. Specifically, the defendants constituted a coordinated and dedicated operation to introduce a narcotic substance, cocaine, acquiring it from unknown suppliers in Colombia, for transport and final distribution in the area of L'Hospitalet de Llobregat in the autonomous community of Catalunya. One of the defendants appealed against the decision taken by the Spanish High Court on the grounds of the right to “a second criminal hearing” (“doble instancia penal”) within the appeal system for serious crimes, which was introduced into Spanish law in 2015 -in particular in Article 847 (1) b of the Criminal Procedure Law- as a result of the the opinion of 20 July 2000 of the Human Rights Committee on Case No. 701/1996. The right to “a second criminal hearing” offers the chance of a judicial remedy on the ruling delivered by the first judicial instance that ruled on the case. From that moment, judgments handed down at first instance by the Provincial High Courts may first be appealed against in the High Court of Justice and then in cassation. Finally, the Supreme Court referred to Article 49 (1) of the Charter when dismissing the allegations made by the defendant, stating that the current “doble instancia penal” is in full accordance with national and international law. 

Key legal question raised by the Court:

The key legal question raised by the Court is that the possible retroactivity of the regulation introduced by Law 41/2015, amending the Criminal Procedure Law on streamline criminal justice and the engagement of the procedural safeguards,[1] which introduced the right to “a second criminal hearing” into Article 847 (1) b of the Criminal Procedure Law. Thus, the Supreme Court stated that both

Article 9 (3) of the Spanish Constitution, or Article 49 (1) of the Charter only operate with respect to substantive rules and do not cover procedural rules. In this sense, according to the Court, the defendant´s legal defence sought to appeal against the decision of the Regional Court of Barcelona to the Regional Court of Catalonia, as the next judicial remedy prior to the Criminal Chamber of the Supreme Court. However, the legal basis for this prevents the Supreme Court from modifying all case laws prior to the entry into force of the law. Articles 9 (3) of the Spainish Constitution –containing the right to legal safeguards, and Article 49 (1) of the Charter, have been interpreted as if they were only applicable to substantive decisions, not procedural ones. It is not clear however how the retroactivity of the law could be beneficial to the defendant and, if, in the end, it is, it may be legally harmful to the other defendants who are also part of the same procedure. In any case, the above mentioned legal reasoning is in full accordance, as the Tribunal mentions, with ECHR and UNHRC doctrine.

[1] Spain, Ministry of the Presidency, Parliament Relations and Equality, (Ministerio de la Presidencia, Relaciones con la Cortes e Igualdad)  (2015), Ley 41/2015, de 5 de octubre, de modificación de la Ley de Enjuiciamiento Criminal para la agilización de la justicia penal y el fortalecimiento de las garantías procesales (Law 41/2015, amending the Criminal Procedure Law on streamline criminal justice and the engagement of the procedural safeguards),  Press release, 6 October 2018, available at:


Outcome of the case:

The Supreme Court dismisses all appeals brought by each of the memberos of the drug trafficking criminal group against the Decision of the Spanish High Court ruling (Chamber 8) of 13 February 2013 and the defendants are also ordered to pay the legal costs.