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Spain: Local police forces’ activity grows in spite of scandals and lack of accountability by Guillerme Presa Suarez

01 July 2008

Concerns mount in Spain at growing police powers and a climate of impunity. The judiciary, far from limiting police practices, repeatedly express view validating their irregularities.

“To say that Law is the rule of force means, in other words, that the Law is the combination of norms that regulate the when, who, how and how much of the exercise of coercive power” (Norberto Bobbio, “Contribución a la Teoría del Derecho”)

The media has been gathering information about cases involving excesses and corruption by members of different police bodies, which are responsible for watching over the free exercise of fundamental rights and civil liberties and for maintaining citizens’ security and public order. As established in art. 104.2 of the Spanish Constitution which obviously in applying the principle of legality in Art. 9 of the Constitution, must act with absolute respect for the law. This applies to the State Security Bodies and Forces (an expression used in Spain to refer to the different police and security forces), which includes members of the various police forces created by local councils as they developed the municipal authorities’ autonomy that is constitutionally recognised.

The most recent case is one that took place in Sada (La Voz de Galicia, 17.08.08), in which the Guardia Civil came across a secret archive containing the personal data and photographs of dozens of citizens, including minors, gathered over the last ten years by members of the town’s local police force Unidade de Seguranza Cidadá (Citizens’ Security Unit). It is only the latest incident in a catalogue from which others can be highlighted, such as the conduct of the Crevillent (Alicante) local police force. There, advised by a private security firm, officers searched a bar wearing balaclavas, with green camaflague paint around their eyes and armed with guns. They fired into the roof of the establishment and sprayed customers with toxic gas, as the Asociación Unificada de Guardias Civiles (AUGC, Unified Guardia Civil Association) reported on 9 March 2006.

Another well-documented case is that of the Marbella (Málaga) police chief who was released on bail after being charged with failure to comply with his duty to pursue criminal offences, carrying weapons illegally, gerrymandering and a cover-up (Agencies, 09.05.07). Or the detention of 11 local police officers at Torrevieja (Alicante), among them the police chief, who are charged with torture, falsifying a public document and failure to comply with their duty to pursue criminal offences (Europa Press, 23.08.06). The paradigmatic case in Coslada (Madrid) saw the detention of 26 local police officers, including the chief of police, who were implicated in a corruption ring that involved extortion from prostitutes, bars and shops (rtve.es, 29.04.08).

These incidents confirm the experts’ diagnosis. During an inquiry into corruption and good governance, Transparency International’s Peter Eigen clearly stated that “the milieu in which there is most corruption in Spain is that of local government”. It is a conclusion that coincides with that reached in the 2002 report by the Defensor del Pueblo (ombudsman), which identifies municipal administrations, and more precisely the area of town planning, as being “one of the foci of permanent corruption”.

Gaining ground

As a consequence of the strengthening of local councils as basic bodies of the territorial organisation of the State (art. 1.1 of the Law on the Bases of Local Regimes), autonomous competencies have been granted to municipalities in some fields, which, among others, includes public security, civil protection and local traffic control. As a result, in accordance with art. 104 of the Constitution, the Organic Law on State Security Forces and Bodies (Ley Orgánica de Fuerzas y Cuerpos de Seguridad del Estado, LOFCSE) (art. 51.1), local institutions are allowed to create their own police bodies, an option that was enthusiastically taken up by councils.

Recently, some voices have sought the extension of local police forces competencies and promote moving beyond the limits imposed on their functions. These functions are basically carried out in the field of administrative policing (ensuring compliance with municipal edicts and orders, and protecting municipal authorities and buildings) and the direction of wheeled traffic in urban areas. Security police functions are at a different level and are carried out in co-operation with state and regional police bodies (institution of proceedings to certify traffic accidents in the town and conducting pre-emptive inquiries to prevent criminal acts), and the state security bodies and forces must immediately be informed (art. 53 of LOFCSE). This is in accordance with an organisational model that reflects the post-constitutional decentralisation of the state and makes the extension of competencies of regional police forces prevalent, subordinating local police forces. It is a choice that is explained by the “so-called Basque problem”, which caused the legislator to be very cautious when it came to expanding the range of competencies of local police bodies that, one must not forget, are under the command of the mayor of the municipality” (Martínez Pérez, “Policía judicial y Constitución”, Ed. Aranzadi, 2001).

Hence, the participation of local police in a criminal investigation is limited to co-operation with the State Security Forces and Bodies, without prejudice to their duty to intervene when they find out about the commission of a criminal act, and the undertaking of necessary preventive steps, such as the arrest of the people responsible, the protection of victims or the gathering of evidence. It has to report its intervention immediately to the competent police body.

In spite of the legal framework that limits their functions, and as a consequence of usng the concept of citizens’ security in the political discourse, there has recently been an extension in local police forces’ interventions in the field of judicial policing, that is, in investigating and pursuing criminal offences. Thus, since 2002, with the amendment of Royal Decree 769/1987 that regulates the judicial police, local police representatives participate in meetings of the provincial judicial police co-ordination commission.

The Framework Agreement for Co-operation and Co-ordination between the Interior Ministry and the Spanish Federation of Municipalities and Provinces in the Field of Citizens’ Security and Road Safety (20.02.07), in section III, on the “Participation of the Local Police in Judicial Police functions”, stipulates that such co-operation may be agreed, insofar as the receipt of accusations and the investigation of events are concerned, when they constitute a misdeed (falta) or less serious offence.

Encouraged by these legal concessions and by the securitarian trend that seeks to increase the numbers of officers in the fight against crime (including, for example, the port police or the customs surveillance service), local police forces are increasing their de facto functions in criminal investigations, with ever-increasing spaces appearing for police action. This has occurred without anyone appearing to notice the absence of training for local police officers, as well as the scant resources on which they depend which are proportional to the budget of their respective councils.

Practically all local police forces in large cities have set up “Information Services” (Servicios de Información, S.A.I.) and “Investigative Units” (Unidades de Investigación) that, with complete autonomy and without the oversight of the police station, carry out judicial police functions, using plainclothes and armed officers. These units are completely lacking in regulation and undertake investigative activities without limiting themselves to minor offences. They intervene in serious offences such as drug trafficking, they carry out monitoring and surveillance operations for months without informing a judge, prosecuting magistrate or the State security forces. This has become habitual practice. The mayor of Sada, for instance, claimed that with Pontevedera’s local SAI “what was happening, was that in practice there were two parallel police forces”.

Complicities

The judiciary, far from limiting such practices by exercising control as it is required to do by the Constitution, repeatedly expresses views validating their irregular activities. Thus, the Supreme Court accepted the intervention of the Valls (Tarragona) local police force in a judicial police role as proper in its ruling of 20 November 1989. It also deemed the actions of the Ponferrada local autonomous police investigation group as valid in its ruling of 14 November 1992, overlooking that, as Ballvé said “The question of police organisation is the crucial point in classifying a State as social and democratic under the rule of Law”.

Once the planned unification of the Polícia Nacional and the Guardia Civil, to which the PSOE had committed itself in its electoral programme, had been forgotten, it seems that we were heading towards a diametrically opposed concept, that of compartmentalising and diversifying police bodies. This is detrimental to the rationalisation of resources and their operativity, due to the difficulty of setting out boundaries between them in terms of competencies, giving rise to parallel actions that are free from any regulation and most of all, from any control.

[This article first appeared in Esculca bulletin, no. 22, September 2008]