Military Law in Spain

• Author: Brigadier General Eduardo de No Louis
• Pages: 04

F O

1. INTRODUCTION

   The general outline of Spanish miltiary law is akin to that of European continental law and is deeply rooted in the same broad factors which contributed to the formation of the laws of other European countries, in particular the Latin countries. Fundamentally it can be traced back to Roman law, with an admixture of Germanic law, to which were added the mutual influences of French and Italian law, especially with the advent of the House of Bourbon to the throne of Spain. Conversely it played a part in the formation of military law throughout Latin America, where it was in force at the time those countries achieved independence: some of the Latin American codes still preserve content and systematics almost identical to the Spanish Code of Military Justice.

   11. S O U R C E S

   Leaving aside medieval precedents, the direct antecedents of today's Spanish military law were the Ordinences, starting in the 16th Century, designed to regulate and organize standing armies.'

   LOUIS **

   Codifying trends in the 19th Century gave rise to the first military laws which deal separately with court organization, punishment and procedure. These \

   All this legislation was repealed upon the pramuigation of the Code of Xilitary Justice on July 17, 1946 which, with a number of later modifications, is the code in force today

   This is a very exten8ivt law consisting of 1072 articles jointly applicable to all the armed farces. It is divided into three parts or treatises : I-Organization and Attributions of &Iilitary Tribunals ; 11-Penal Law; and llI->lilitary Procedures.* Thus it is the type of Code which not only lays down punishments but also relates to discipline, the Organization of the courts and procedural standards, besides regulating such other queiians as Courts af Honor far the discharge of officer8 and methods of making and removing entries in soldiers' records.

   111. THE MILITARY LEGAL ORGANIZATIONS

   In order to clarify later remarks some reference should be made at this point to the military legal organization 3 xvhich, composed

   old Ordinances of 6mg Peter I i of liagon I" 1340, thole of 1633 rnoer Bourbon rule, general Ordinances aere issued ruch a3 the Tan 0rd.naneen of 1148 and 1703. and the Army Ordinances of 1768. which were of immense influenee on Spsnirh military law

   *The Code af Mditary Jwtice 16 hereafter cited by 1% mitials in Spanish, C.J.I.

   3 The institution of the Judge Adrocate. a law expert, takiae part in

   military iuatiee and givvlg legal counsel to rhe mnlirary command, 18 of ruch long tradition ~n Spain that LT ieernl to be connected iwth the first sfandmg 81m1es. There is mention of the Judge Advocate and hln funetms even in the Ordinances of Philip 11, dated Mas 8, 1587, and ~n the Navy there 1s B

   record af the name of one Dr. >lareare. appainred on June 26, 1571 aha %,as Judge Adweate To John of Austria in the squadron which won rhe battle of Lepanto against the Turka The Judge Adrocates General appomted by ihe King were chosen from lawyers who combined 8pecislized knorledge bath af *BI and law.

   Thus it was that the Judge Adrocafea of the Spanish Armies contributed, with their theoretical and praeiicsl knowledge, to the farmatm of the then.

   140 *oo l,MS

   SPANISH MILITARY LAW

   of legal experts, play a part in the operation of military justice and the counseling on legal matters of the military authorities and Ministries.

   These individuals are recruited from persons holding the degree of Master or Doctor at Law; there is a competitive examination for entry into the Academy or special school4 of each of the military Ministries (of Army, Navy or Air Force), where specialized instruction is given in military law and martial law. Candidates who pass this test go on to form part of the respectixw military legal organization, with military uniform and rank starting from Lieutenant Judge Advocate in the Navy and Air Force, and Captain Judge Advocate in the Army, rising to the rank of Counselor or Robed Minister, equivalent to Divisional General. As stated, each of the three military Ifinistries ha8 its own military legal organization.

   Apart from their judicial function referred to in this article, these organizations also give legal advice and interpret laws as regards administration and contracting of the military Ministries.

4. COMPETENCE OF MILITARY JUBISDICTION

   In principle, ordinary jurisdiction is competent to deal pith all criminal proceedings except those which are expressly attributed to Some other jurisdiction. Far this reason, in Spanish juridical language, ordinary jurisdiction is also termed enrnmnn jurisdic-tion.

   The exceptions which come under military jurisdiction are to be found in the Code of Military Justice.

   There are three reasons or grounds for ruling that criminal proceedings are attributable to military jurisdiction: it may be the type of crime, the place where it was committed, or the person who committed it.

   emergent militsry law, and many of them w r e the preiurim and founders of modern ~nrernari~nallax.. Especially famous are the Italian Pierina Belli. Judge Advocrfe to the Drke af Aiba and author of the work De i e rnilitwi et bello tracietrd, x-ntren m 1558 and dedicated to PhAyala, Judge Advocate General af Alexander Fameand aurtoi a i De mri ofieiu ksrlieia el disc;pl,,,oand later mentioned m his aork by Hugo Grotius.

   The orpnnlratior of rhe Juridical Carps ~n 11% present farm dare? for the Army, from the Decree of October 18, 1866; for the Navy, from the Decree of April 8, 18G7: and far the Air Force, from the Decree of Msreh 15, 1940.

   6 The training of the Army Judge Advocates and their prafeiaional develop. ment is undertaken in the School of Juridical Studies, dependent on the Army Mnnirtry and located in Madrid.

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   Thus it can be seen that, in the Spanish legal system, military jurisdiction is competent to deal not only with crimes committed by service personnel but also those crimes containing elements which make them harmful to the interests of the armed forces, whether this be due to the type of crime committed, to the place where it was committed, or to the person responsible.

   For this reason it is not unusual for civilians to be judged by military courts.

   A. COMPETEYCE OWING TO THE KATCREOF THE

   As far as the nature of the crime goes, military jurisdiction is

   competent to deal with those proceedings brought against anyone for damage to, destruction or appropriation of supplies, arms, munitions and effects belonging to the military: for violence or injury to military authorities in the execution of their command or to armed units: for insulting the flag or military emblems and insignia; falsification of military seals or documents; adulteration or fraud in connection with Army supplies: piracy: and a11 other crimes contained in the Code of Military Justice or attributed by special law to military jusisdiction.'

   In this respect it should be painted out that the Code of Military Justice does not contain common crimes such as theft, injuries or violation, which are only to be found in the ordinary Penal Code, but, on the other hand, it does contain strictly military crimes which can only be committed by military personnel, together with other crimes that may also be committed by civilians, such as insults to or assaults of sentries or armed guards...