INTRODUCTION

The Spanish penal system is strongly established on the principle of legality and comes from a codification tradition, based on the classical liberal criminal law, which could be classified as a procedural justice system. As a fundamental principle of modern continental criminal law, the principle of legality implies that in our system both behaviours considered criminal and the punishments to be imposed (with minimum and maximum limits) are previously and explicitly set out in the law, including all facts to be taken into account when sentencing: degrees of participation and execution of crime, concurrent offences, mitigating and aggravating circumstances, exoneration of criminal liability, etc. Law also contains provisions on how imposed penalties are enforced, and under which conditions this enforcement can be suspended or a penalty can be replaced, as well as cases in which parole and open regime can be granted. Spanish judges are bound by some rules that limit the room for discretion in the imposition of sanctions, and their subsequent enforcement. In addition, in recent years there is a tendency to carry out penal reforms very often. During its twenty years of existence, the Spanish penal code has already been modified more than 30 times, on an average of more than one penal reform by year. Most of them have increased punitiveness by widening the categories of crimes, raising the penalties, and making the penitentiary system less flexible, especially for some criminal offences, all leading to a very high prison population.

The results of a recent thorough study of each stage of the Spanish penal system show that the model of law and order is displacing the procedural justice system. As a result, it is unlikely that decriminalization policies will be carried out in the immediate future. As it will be highlighted in this report, although there are no alarming crime figures in Spain and experts consider it appropriate to decrease punitive pressure in some areas, it seems that this could only happen for utilitarian reasons, within a context of economic crisis that makes it unsustainable to maintain such a high prison population.

The results of a recent thorough study of each stage of the Spanish penal system show that the model of law and order is displacing the procedural justice system. As a result, it is unlikely that decriminalization policies will be carried out in the immediate future.