Sunday, March 13, 2016

Spain's new Code of Military Justice enters into force

CódigoJMOn January 15, 2016, Spain’s new Military Criminal Code entered into force.  Law 14/2015 of October 14, 2015 was published in the Official Gazette three months earlier.  This law substitutes for the previous Military Criminal Code of 1985 and is justified in order to modernize the Armed Forces, the need to collect accumulated experience and because of Spain’s obligations overseas.  The 1985 Military Criminal Code replaced the old Military Criminal Code that was in force until the promulgation of the Constitution of 1978.  The Constitution sets forth the principle of “jurisdictional unity” in article 117(5), which converts military justice into a specialized jurisdiction for reasons of environment (military) and subject matter (specific norms).  Even though some have expressed doubt, Military Justice has been adjusted completely to the principles, rights and procedural guarantees of the Constitution, as the Supreme Court and the Constitutional Court have repeatedly guaranteed.  Constitutional doctrine, in interpreting article 117(5) of the Constitution, attempts to limit military jurisdiction to what is strictly indispensable.  This means that during normal times, military crimes are those that have a direct connection with the objectives, purposes and goals of the Armed Forces as well as with the need for a specific judicial path for their recognition and eventual repression.

The new Military Criminal Code is both shorter and simpler than its predecessor.  The fundamental idea is that this is a specialized Law that protects exclusively the legal interests of the military, according to the purposes and functions that have been conferred upon it.  The new Military Criminal Code formally proclaims itself an addition to the regular Criminal Code, especially as concerns the Preliminary Chapter and the guarantees that it contains. 

There are also some semantic novelties, the traditional term “in times of war” has been eliminated and “in situation of armed conflict” has been introduced.  The application of the Military Criminal Code has been extended to the Guardia Civil (Civil Guard), given that they are members of the military, although acts of service that are police in nature are excluded.

Typical military crimes are included such as those that attack security and national defense, discipline, the duties of service and against military patrimony, and others that include conduct that harms legal interests that are strictly military included in the ordinary criminal code. Also included are treason, the revelation of secrets and information about security and national defense, abuse of authority, disloyalty, etc.  Insults to Spain and its symbols (the flag, hymn), the Constitution or the King, are included, as well as insults to the military organization and the crime of raiding a military establishment which may also affect civilians if carried out.

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