El régimen de la responsabilidad patrimonial derivado de la prisión preventiva no seguida de condena tras la STC 85/2019

Abstract

The aim of this article is to analyse the evolution in Spain of the institution of the State’s financial liability derived from the adoption of the precautionary measure of deprivation of liberty: from the scope of its constitutional and legal regulation (article 294 of Organic Law 6/1985, of 1 July, of the Judiciary); to the first years of its restrictive application; to the doctrinal and jurisprudential debates on judicial error, the abnormal functioning of the Administration of Justice and the objective and subjective non-existence as criteria for compensating for pretrial detention; to the jurisprudence of the European Court of Human Rights in the Puig Panela and Tendam; to the self-question of unconstitutionality raised and to the Judgment of the Spanish Constitutional Court 85/2019, of June 19, by which it was considered that article 294.1 of the LOPJ contravened, in two of its paragraphs, the right to equality and the right to the presumption of innocence enshrined in articles 14 and 24 of our Constitution. Ultimately, and six years after the aforementioned declaration of unconstitutionality without even a reform of the legal regime having been initiated in Spain, I am determined to explain what is the regime that has been forged through administrative and jurisprudential practice.