Hastings Constitutional Law Quarterly


In the wake of the death of dictator Francisco Franco in 1975, Spain enacted a new Constitution containing extensive procedural rights for criminal defendants, thereby in theory moving its justice system closer to the adverserial model of criminal trials long established in common law countries. In the years immediately following the passage of the 1978 Constitution, however, criminal proceedings continued to be inquisitorial in nature, especially in cases involving politically-charged allegations of domestic terrorism.

In this article, the author tracks one such case that had a dramatic impact on the Spanish legal system. Following their conviction for participating in a politically-motivated kidnapping for ransom, the defendants pursued appeals unsuccessfully through the Spanish courts before turning to the European Court of Human Rights in Strasbourg for redress. In Barberd, Messegu6 and Jabardo v. Spain, the ECHR held that Spain had denied the defendants a fair trial, in part by convicting them on the basis of evidence not subject to cross-examination. The author argues that the Barberd decision has promoted recognition in Europe's civil law democracies of the common law right to confront adverse witnesses. The author then examines the subsequent decision of the Spanish Constitutional Tribunal accepting the ECHR ruling and awarding the defendants a new trial. He asserts that the ruling of the Tribunal confirmed the significance of Spain's international treaty obligations in domestic law and cemented a defendant's right to confront witnesses in its criminal justice system.