Navy personnel, law enforcement officers and judicial police

When someone talks to us about the status of an agent of authority, the first image that comes to mind is that of a uniformed police officer or any member of the Security Forces and Corps. Possibly we identify these professionals as the only ones to whom the status of agent of authority is inherent. In the following paragraphs we will try to help the reader to identify the characteristic features of the agent of authority and its normative scope in the figure of the military.

An agent of the Authority is any civil servant who is entrusted with the execution of the decisions and powers of the Authority in the exercise of his functions.
Any official may be an officer of the Authority. In particular, members of the State Security Forces. But also judicial officers, members of parliament, notaries and registrars, environmental officers, etc.

What are the consequences of being an agent of authority?

The fact that a civil servant is considered to be an agent of the authority implies in practice:

• Inspection reports and complaints made in the exercise of their duties are authentic and are presumed to be true as to the facts stated therein. In the absence of evidence to the contrary.
• In the event that he/she cannot or may not exercise his/her functions to prevent the commission of offences or contraventions, he/she may request the assistance of the judicial or governmental authorities.

To answer this question, we must refer to Royal Decree 194/2010, of 26 February, approving the Rules on security in the Armed Forces. In this regulation, two groups of functions are established in which military personnel act as agents of authority:

Members of the Armed Forces shall have the status of agents of authority in the exercise of their functions when they intervene as part of the Military Emergency Unit, under its command or operational control, or in other units of the Armed Forces, in the operations described in Article 16.e) of Organic Law 5/2005, of 17 November, on National Defence, in the circumstances indicated below:

• Which have their origin in natural hazards, including floods, floods, earthquakes, landslides, heavy snowfalls and other adverse meteorological phenomena of great magnitude. Those resulting from forest fires and those arising from technological hazards, including chemical, nuclear, radiological and biological hazards.
• The same consideration shall be given to members of the crews of Navy ships in the exercise of maritime surveillance and security functions attributed by law or by international agreements signed by Spain, which shall be carried out without prejudice to those attributed to members of the State Security Forces and Corps and to members of public bodies with maritime surveillance functions in the exercise of their powers.
• Group made up of military personnel who carry out Military, Naval or Air Police functions.

As we have just explained, the 1st Additional Provision of Royal Decree 194/2010, of 26 February, which approves the "Armed Forces Security Regulations", establishes that "the crew members of military vessels have the status of institutional representatives in the performance of the maritime surveillance and security functions assigned to them by law or by international conventions to which Spain is a party, which shall be carried out without prejudice to the functions assigned to the members of the national security forces and corps". In our national legislation, crimes such as terrorism, piracy, drug trafficking and trafficking in human beings are considered crimes of general criminal responsibility. 

Although they are declared offences of general criminal liability, they cannot be executed without restrictions when involving foreign-flagged vessels in maritime areas where the principle of freedom of navigation applies, but only in accordance with international treaties signed by Spain. It is therefore necessary to analyse the specific powers of a warship in relation to the main "maritime security crimes", namely piracy, trafficking at sea, drug trafficking at sea, arms trafficking at sea and terrorism at sea. 

In this context, we are going to analyse the consideration as Judicial Police of the members of the Navy's ships' crews when they carry out the functions we have just described:

According to Article 283(1) of the Criminal Procedure Act, approved by Royal Decree of 14 September 188210 , "the administrative authorities in charge of public security According to Article 283(1) of the Criminal Procedure Act, approved by Royal Decree of 14 September 188210 , "the administrative authorities in charge of public security and the prosecution of all or some offences" are defined as judicial police in criminal matters; and as such, they can make arrests at sea and bring the detainees before the competent Spanish judicial authority for the investigation of criminal proceedings. However, Article 282 of the same legal text limits the activities of the judicial police to the investigation of "public crimes committed in its territory or at its borders", i.e. in Spain. 

An example of this is the collaboration with the State Security Forces and the Control Corps in the fight against drug trafficking in our territorial waters, as set out in the Interministerial Agreement between the Ministry of Defence and the Ministry of the Interior for the fight against drug trafficking, signed on 14 February 2006. Therefore, maritime surveillance or security missions carried out by military vessels with the rank of judicial police will be carried out in support of national security.

In this context, and following the entry into force of Organic Law 1/2014, which amended the Organic Law on Justice, on 2 July 2015, the Spanish Navy and the State Attorney General's Office signed a protocol for action by warships in crimes of universal criminal prosecution, to define the criteria for action and the relationship between the naval authorities and the competent prosecutors when Spanish Navy vessels intervene in acts prosecutable by the Spanish courts

Reference should be made once again to the Operational Protocol between the Spanish Navy and the Public Prosecutor's Office on crimes that can be prosecuted in general, which covers the possible intervention of warships in alleged crimes that do not fall within the jurisdiction of the Spanish Public Prosecutor's Office, either because the rules that legitimise the intervention of a particular warship do not coincide in international treaties with the jurisdictional rules for the prosecution of such crimes" or because these actions are carried out under the mandate of an International Organisation. 

In view of the above, it seems clear to us that the Navy's intervention in these cases is not based either on its status as judicial police or on its status as an agent of authority in the legal terms already established. And although, by virtue of the aforementioned protocol, these vessels would not be exempt from reporting to the competent prosecuting authority as if they were judicial police, the fact is that their activities correspond rather to a "new" classification, subject to operational command, compliance with national and international legislation and the guarantees that must be offered to persons who may be detained for crimes at sea.

This implies that the maritime surveillance or security functions carried out by the Navy's warships under the condition of Judicial Police, will take place when they are carried out in aid of national Judges and Courts competent to hear public crimes, not being able to act on their own initiative.

Similarly, the presence of the Guardia Civil throughout the national territory means that the members of the Armed Institute - the general judicial police - and the organic units of the judicial police are generally in the vicinity of a unit of the Armed Forces. On the other hand, in case of exercises or manoeuvres of the Armed Forces, or in case of navigation or deployment abroad, nothing prohibits the inclusion in military missions of Guardia Civil personnel, who, among other things, can also perform judicial police functions, in accordance with article 4 of Royal Decree 1438/2010.

The military enjoy the status of agents of the authority whenever they carry out the functions described above. This means that their acts are not only endorsed by law, but, unless there is proof to the contrary, they are presumed to be true, with the legal certainty that this entails. 

On the other hand, in addition to their status as agents of authority, we have addressed the situation in which members of warships can perform judicial police functions as provided for in the Criminal Procedure Act. The role of the Navy in our maritime areas is in line with the function of judicial police, being residual on the high seas, as it must only act at the request of the Spanish judicial authorities.   

We therefore consider that they should be fully and effectively empowered as judicial police, as we must remember that one of the objectives of international missions is to prevent or eliminate illegal activities that are widespread at the international level, thus guaranteeing maritime security. For this reason, we stress that, if this status is granted and following the approval of a legal framework that regulates the fact of being able to act beyond our borders as judicial police and, therefore, as an agent of authority, aspects such as the detention of possible suspects, with the corresponding specificities and coordination with the security and judicial authorities of the Member States of the European Union, the Navy's work in the prevention of crimes committed outside our jurisdictional waters would be much more effective. 

DAVID ROBLES RAMOS

Graduate in Law from the International University of La Rioja
Master's Degree in Access to the Legal Profession from the UOC
Collaborator of the National Defence Area of Sec2Crime

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