After the articles concerned with the General Dispositions, the Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) has a chapter regulating the intervention of the Judicial Police and the Public Prosecutor´s Office.
This chapter begins with an article akin to the article 758 that is at the onset of the chapter containing the General Dispositions which affect the Abbreviated Procedure, such article 758 states that the Abbreviated Procedure is regulated by the norms of the Ordinary Procedure but with the modifications specifically provided for the Abbreviated Procedure in the Title II of the Book IV of the LECrim, where are the articles concerned with it. For the article 769 states that, without prejudice of the established in the Title III of the Book II of the LECrim, that is the Title in which the Judicial Police is regulated for the Ordinary Procedure, as soon as the Judicial Police has notice of a fact which may be regarded as a crime, the Judicial Police will observe the rules established in this chapter. This can be seen as a reiteration, the LECrim is repeating the same in two places, but due to the importance that have the rules of the Ordinary Procedure to the Abbreviated Procedure, this is a flaw understandable.
Therefore, the first we need to know is what is said in such Title III of the Book II of the LECrim, what are the Ordinary Procedure´s general rules which will apply to the Abbreviated Procedure. Our point of departure, is the article 282, in which the functions of the Judicial Police are gathered, we can sum up them as follows:
To find out the crimes committed in its territory.
To practice the proofs necessaries in order to check the existence of a crime and to find out the persons liable of it.
To pick up the tools or evidences of the crime, putting them at judicial disposition.
To inform the victim of his rights, mainly the right to be a party of the criminal procedure and to have a lawyer free of charge.
But how does the Judicial Police take notice of the existence of a crime? The Judicial Police can initiate an investigation chiefly by two motives, when a victim or a witness of a crime reports its commission (art. 264 LECrim) or when the Judicial Police has started an investigation on account of the evidences gathered during its labour finding out the crimes committed in its territory (art. 282 LECrim). Nevertheless, despite the functions we have seen above and which the LECrim attributes to it, the Judicial Police carried out a labour auxiliary, since who has the authority for directing the investigation of a crime is the Examining Magistrate (art. 308 LECrim). Hence, we have to distinguish two moments during the investigation of a crime, a moment which is prior to the commencement of the criminal procedure in which the Judicial Police gathers solid evidences of what was reported can be true, or which transform its suspicions in proofs, and a second moment in which the Judicial Police once has gathered such solid evidences, shares them with the Examining Magistrate, who will initiate the criminal procedure (art. 308 LECrim). Because, although the article 284 and the article 295 impose upon the Judicial Police the obligation of communicating to the Examining Magistrate, the existence of a crime immediately after taking notice of it and of the proofs carried out within twenty-four hours, respectively, these obligations have been modulated by the Spanish jurisprudence, only when after a previous investigation the Judicial Police has obtained enough evidences of the existence of a crime, it is obliged to share this information with the judicial authority.
Now we know the functions and how the Judicial Police has to work in collaboration with the Examining Magistrate, but what is the value of the proofs gathered by the Judicial Police? The Judicial Police has to communicate the possible existence of a crime to the judicial authority by means of a report, which is worth the same that a report brought by any other citizen (art. 297 LECrim). Thus, a Judicial Police´s report cannot be utilized to destroy the presumption of innocence of an accused, unless the police officers who elaborated it appear in court in order to confirm its content, through their attendance the more important rule of the criminal procedure is fulfilled, the only proofs capable of destroying the presumption of innocence of the accused are the proofs practiced during a public, oral trial, in front of the Tribunal or Judge which is will dictate sentence, and subjected to contradiction by all the parties. However, a Judicial Police´s report may contain objective data and proofs of impossible repetition during the oral trial, as maps, pictures, or fingerprints, in these cases these objective data and proofs of impossible repetition are regarded by the Spanish jurisprudence as preconstituted proofs, which means that there is no necessary the attendance of the police officers who elaborated the report for regarding this content of the report as a proof capable of destroying the presumption of innocence of the accused, by means of the article 726 the Judge or Tribunal can taking into account the documentary proofs to destroy the presumption of innocence of the accused without practicing them during the Oral Trial, save when these objective data and proofs of impossible repetition are impugned by any of the parties in their provisional writings of qualification (art. 650 LECrim), because the impugning will make mandatory the appearing in court of the police officers in charge of the investigation reflected on the report.
Part of the proofs which may be practiced by the Judicial Police during the investigation of a crime, are the testimony of its witnesses. Here the general rule we have seen above is also applicable, they don not have value as a proof, the testimony of the witnesses has to be repeated during the Oral Trial. Regarding this matter, the Agreement no jurisdictional of the Second Chamber of the Spanish Supreme Tribunal of June, 3, 2015, affirms that: The testimony in front of the police officers has not value as a proof. It cannot corroborate other means of proofs. Nor be introduced into the Oral Trial by means of the art. 714. Nor be utilized as preconstituted proofs according to the art. 730.2. Nor be regarded as proof through the appearing in court of the police officers who were present during the testimony. Notwithstanding the above, this general rule has exceptions too, but for these exceptions to be applicable the testimony of a witness first has to comply with three very important requisites, it has to be given in front of the Examining Magistrate, recorded by a means which allows the recording of audio and image, and subjected to contradiction through the presence of at least the defendant´s lawyer (art. 449 bis). If these three requisites are met, there are two ways of introducing the testimony of a witness given during the stage of investigation into the Oral Trial, by means of the article 714, which serves to contrast what was said by a witness during the investigation with what is being said during the Oral Trial, and by means of the article 730.2 which serves to introduce into the Oral Trial the testimony of a witness given during the stage of investigation and who during this stage warns that it will have to leave the country, or when it is in risk of suffering an incapacitating physical or mental illness (art. 448 LECrim), or when the witness has less than fourteen years (art. 449 ter) or the witness has less than eighteen years and there is a report of an Expert which advise that is better for the metal health of the minor if it does not appear in court.
Another important thing we need to take into account when we think on the labour of the Judicial Police, is the chain of custody (art. 770.3º LECrim). The chain of custody is the mechanism which assures that the evidences gathered during the investigation of the crime (art. 326 regarding the ocular inspection, art. 334 regarding the body of the crime…) are the same upon which the practicing of the proof will be carried out during the Oral Trial. According to the Spanish jurisprudence, there exists the presumption that what was gathered during the investigation by the Judicial Police, the Examining Magistrate or an Expert, is the same which later will serve as proof during the Oral Trial, save when there exist reasonable suspicions that the proof may have been manipulated. In these cases, when there exist these well founded suspicions, the validity of the proof will not be affected, what will be affected is its reliability, in other words, the Judge or Tribunal at the hour of motivating its sentence using the proofs practiced during the Oral Trial, will have to take into account the flaws in the chain of custody which may have altered the proofs and with them their reliability.
Víctor López Camacho.
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