PRESUMPTION OF INNOCENCE AND SUSPICION CRIMES: THE TURN OF THE SCREW TO THE CRIME OF ARTICLE 166 OF THE SPANISH PENAL CODE, IN THE CRIMINAL REFORM OF 2013?

Abstract

In this paper, the author analyses if, as a consequence of the reform of the Spanish Penal Code of 1995, established in the preliminary draft of 2012/13, it is included again, a suspicion crime in the article 166 of the Penal Code, concerning an aggravated illegal detention and kidnapping and, therefore, it causes a constitutional problem. This controversy is analyzed specially from the perspective of the principle of presumption of innocence, in its pre-procedural aspect, which also involves some other principles as, particularly, the culpability principle. For this purpose, it is not only reviewed the material field of application of the principle based on art. 24.2 of the Spanish Constitution, according to the jurisprudence of the Spanish Constitutional Court and of the European Court of Human Rights, but also it is tried to make clear the defining features of the suspicious crimes. This research will allow to conclude wheather the crime of the article 166 of the preliminary draft of 2012/13, fulfils the requirements of the suspicion crimes and, hence, whether it could be unconstitutional for the breach of the presumption of innocence.