The legislative powers of the police to stop individuals
In Spain, police powers to stop and search individuals are regulated by the Organic Law No 4/2015 of 30 March 2015, on the protection of urban security (LOPSC, for its initials in Spanish). Article 16 specifies powers to stop and check identities. Reactive stop and checks can be conducted on suspected perpetrators of an offence (including administrative offences) by the checked individual. Police officers should have reasonable and specific indications that the given individual has actually either perpetrated or contributed to the perpetration of the investigated offence. Proactive police stop and checks should be based on the prevention of an eventual criminal offence (i.e. not an administrative offence) when officers may reasonably consider that the identity check is needed for these crime prevention purposes. Therefore, these proactive stop and check practices cannot be based on a vague and general goal to protect urban security.
Police officers can carry out identity checks in public or private places by any means available (i.e. by searching electronic databases, by making phone calls, etc.). If the identification is not feasible, officers can forcefully bring the individual to the closest police unit, to carry out the identity check there. According to the Spanish legislation, this police intervention, which cannot be extended more than 6 hours, is not considered as an arrest. Resisting this police intervention is a criminal offence. By contrast, not collaborating with an identity check is an administrative offence (Article 36.6 LOPSC). Police officers should abide by the principles of proportionality and of equal treatment before the law.
Police officers may stop and search individuals in order to the unlawful carrying and use of weapons. Body searches can only be carried out when police officers may have motives to suspect that instruments and objects that are relevant for urban security prevention purposes are being carried by the searched individual. These interventions should only be as intrusive as necessary and minimise the harm to the dignity of the searched individual. They should be performed by a police officer of the same sex and, if needed for privacy motives, should be carried out in a place out of sight of other people.
Individuals are legally obliged to collaborate with the interventions carried out by police officers. They can be forcefully carried out against the will of the searched individual, in accordance with the legal principles of necessity, suitability and proportionally.
The obligation to register stops
Spanish legal provisions do not set any obligation to register stop and search interventions in any official database. Legally speaking, only police interventions that entail the forced transportation of the checked individual to a police unit (which are not legally considered as arrests) should be registered. These registered data shall be reported to competent prosecutors on a monthly basis.
A number of local police corps, which have taken part in the Programme for Effective Police Identity Checks (PIPE for their initials in Spanish), have decided to register all stop and check and stop and search interventions. Officers should register the measures taken to check the identity of the stopped individual, as well as the motives, circumstances and duration of these measures (Article 16.4 LOPSC). In addition, the checked individual should be given a ticket containing information on the duration and causes of the intervention, and on the identity of the intervening police officers (Article 16.5 LOPSC). This is in response to criticism of the use of racial profiling by the police in efforts to police immigration offences.
Legislation procedures which protect citizens from police offences
Stop and search interventions conducted on individuals and their belongings in public places are considered to directly affect a number of fundamental rights acknowledged by the Spanish Constitution, such as the right to honour, to personal and family privacy and to the own image (Article 18.1 SC), and the right to dignity (Article 10.1 SC). This has been recognised by the Spanish Constitutional Court in its ruling No 37/1989, of 15 February 1989, which states that bodily privacy is a part of the right to personal privacy. Nonetheless, the Spanish legal order does not regulate any specific procedure to ensure the protection of individuals in this regard.
Individuals affected by stop and check and stop and search police interventions can only report these facts to the Spanish Ombudsperson, who should monitor the activities carried out by public bodies to safeguard individual rights and freedoms. The affected individuals can also report these facts to the police, either to the same police corps that carried out the given intervention or to a different one. Some police corps (e.g. the local police of Madrid) have set up specific police services to collect these complaints, but this is still highly uncommon. Some NGOs and human rights groups collect complaints on biased police interventions and launch public campaigns on this topic. In this regard, the NGO SOS Racismo (SOS Racism) and Rights International Spain should be specifically mentioned.
Annotated bibliography on Spain
Podcast Vos papiers s’il vous plait! – Police stop & search in Spain
Blog Understanding the Practice of Police Stops in Europe – Ethnic profiling and justice in Spain