The preliminary proceedings are the proofs carried out during the stage of investigation of a crime, and which have as aim to find out the commission of a crime, the persons liable of it and to assure the pecuniary liabilities arisen from it, or in short, to prepare the Oral Trial.
This definition is valid for both, the Ordinary Procedure and the Abbreviated Procedure, and we can find the two different versions of it in the article 299 for the Ordinary Procedure and in the art. 777.1 for the Abbreviated Procedure, of the Spanish Criminal Procedure Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim). The starting of the preliminary proceedings implies the commencement of the criminal procedure, until that moment we can have a police investigation, or even the bringing of a report or lawsuit, but only when an Examining Magistrate assumes the control of the investigation by initiating preliminary proceedings, we can understand that the proper criminal procedure has started.
The preliminary proceedings (art. 777.1 LECrim) have become the ordinary way of initiating a criminal procedure by the Spanish Examine Magistrates, but we have to distinguish them from the summary (art. 299 LECrim) which is used to refer to the investigation of a crime which has to be tried according to the rules of the Ordinary Procedure. Now that we have cleared this point let’s start to explain the story from the onset.
That a crime has been committed, is being committed, or will be committed, can be put into the knowledge of the judicial authority by three different ways. It can be reported by any citizen who has knowledge of it (art. 259 and art. 264 LECrim), a lawsuit can be brought into court (art. 297 LECrim), or the judicial police can finally share with an Examining Magistrate its report (art. 297 LECrim), which can be the product of a previous citizen´s report or of a previous investigation carried out by its own on account of the tasks attributed to it by the LECrim (art. 282 LECrim), in any case a judicial police report´s report, as a general rule, has the same value as a report of any other citizen (art. 297 LECrim). After receiving the report or lawsuit the Examining Magistrate has to asses if the facts recounted by any of them may be classified as a crime in accordance with any of the precepts of the Spanish Criminal Code (in Spanish Código Penal, henceforth CP), otherwise the report or lawsuit has to be rejected “ad limine” (art. 269 and art. 313 LECrim), although the Spanish jurisprudence has established a second requisite, the report or lawsuit has to be accompanied by a proof of its veracity in order to avoid groundless accusations.
Once the report or lawsuit is admitted, an Examining Magistrate is in charge of the investigation (art. 308 LECrim), an investigation that is initiated through the initiation of preliminary proceedings (art. 777.1 LECrim), which, as I have stated above, have become the common method of initiating a criminal procedure by the Spanish Examining Magistrates. If lastly, the crime or crimes which are being investigated have to be tried according to the rules of the Ordinary Procedure, on account of the evidences discovered during this investigation, the criminal procedure will continue under the rules of the Ordinary Procedure without the necessity of changing of Examining Magistrate or of going back into the investigation, save when the latter is mandatory to comply with some rule of the Ordinary Procedure (art. 760 LECrim). Remember that the boundaries between both procedures is established by the article 757, which states that, without prejudice of the specific rules applicable to the special procedures, the Abbreviated Procedure will be apply to the trial of the crimes punished with no more than nine years of imprisonment, or with any others punishment of different nature, and of any amount or duration.
In our case we will continue in accordance with the rules of the Abbreviated Procedure, because the LECrim´s chapter concerned with the preliminary proceedings is the object of the present writing and not the summary. Though, either the summary for the Ordinary Procedure or the preliminary diligences for the Abbreviated Procedure, are limited by the term of the article 324, in both cases the investigation has to conclude within twelve months from its initiation, without prejudice of the successive extensions of up to six months which may be accorded before the end of the initial period. During the investigation will be gathered the evidences which may justify the opening of an Oral Trial (art. 777.1 LECrim), being allowed the parties of the criminal procedure to propose to the Examining Magistrate the practice of those proofs which may help to sustain their claims (art. 311 LECrim), but this right although is a fundamental right according to the article 24.2 of the Spanish Constitution (CE), is not absolute, it is limited to the proofs that are pertinent, using the terms used by the own Spanish Constitution, what means that they have to have relation with the object of the criminal procedure, and besides they have to be necessaries, being capable of providing with information to the Examining Magistrate which has not been obtained yet by other means of proof, otherwise the proofs can be rejected by the Examining Magistrate without violating such right. The proofs practiced during the stage of investigation of the crime, thus, are limited be a temporal ambit, by their pertinency and necessity, and by their goal, which is only to justify the continuation of the criminal procedure by opening an Oral Trial, or in other words, without surpassing the term of the article 324, and being pertinent and necessary according to the article 24.2 CE and 311 LECrim, a proof or proofs can be rejected if the proofs practiced up to that moment of the investigation are enough to provoke the continuation of the criminal procedure by means of the Oral Trial. The above connect with the general rule established by the jurisprudence of the Spanish Supreme Court and Constitutional Court, according to which the only proofs capable of destroying the presumption of innocence of an accused are the proofs practiced during a public, oral trial, in front of the Judge or Tribunal trying the case, and subjected to contraction by all the parties of the criminal procedure. Nevertheless there is an exception to this rule, the preconstituted proofs, which, in a broad sense, can be divided between the documentary proofs and the personal proofs. The former group, is formed by the part of the judicial police´s reports which contains objective data and proofs of impossible repetition, like fingerprints, pictures, or sketches, and the Expert´s reports, when neither of them has been impugned by any of the parties of the criminal procedure in their writings of provisional qualification of the crime (art. 650 LECrim), because in those cases the Judge or Tribunal trying the case can regard them as proofs, without their practice during the Oral Trial, by means of the article 726 LECrim, and not with the testimony of the police officers or experts who have elaborated the reports, which is the way used when these reports have been impugned in order to comply with the general rule above stated. The latter group, the personal proofs, is formed by the testimonies of the witnesses of a crime, included its victims, and they can be regarded as preconstituted proofs by Judge or Tribunal, when the requisites of the article 449 bis LECrim are fulfilled: 1) The testimony has to be given in front of an Examining Magistrate, it is not valid if it is given only in the presence of police officers, 2) The testimony has to be subjected to contradiction at least by the presence during it of the accused´s lawyer and 3) The testimony has to be recorded using a means which allows the reproduction of video and audio. Besides the fulfillment of the requisites of the article 449 bis, the testimony has to be given in accordance with any of these motives: 1) The witness has to leave the national territory during the Oral Trial, or there exists an imminent threat to its physical or mental health that will impede its appearing in court (art. 448 LECrim), 2) The witness is a minor with less than fourteen years (art. 449 ter), 3) The witness is a minor with less than eighteen years and there exists an Expert´s report advising that the minor must to be absent during the Oral Trial. Otherwise, the a witness of a crime has to comply with its obligation of appearing in court (art. 446 LECrim), even when after complying with the requisites of the article 449 bis, the motives which provoked the preconstituting of the proof, according to the article 448, are not met.
When the preliminary proceedings are exhausted (art. 324 LECrim), the Examining Magistrate has to choose any of the options given by the art. 779, mainly it has to decide whether to dismiss the cause (art. 779.1.1º LECrim), or to continue with the criminal procedure because the facts investigated constitute a crime or crimes within the frame of the art. 757 and can be attributed to a determined person (art. 779.1.4º LECrim). The former option is compound at the same time by two possibilities, the acquittal on all charges (art. 637 LECrim) or the stay of execution (art. 641 LECrim). Between these two options there is a big difference, the acquittal on all charges has the effect of res judicata, what means that the criminal procedure cannot be open for the same charges against the same persons, whereas the stay of execution supposes the provisional dismissal of the cause until new proofs appear motivating a new assessment of the Examining Magistrate on whether is necessary the opening of an Oral Trial.
The acquittal on all charges may be agreed when (art. 637 LECrim):
-There are not enough rational evidences of the commission of the crime which has motivated the initiation of the criminal procedure.
-The crimes cannot be classified as a crime according to the CP.
-The persons liable of the crime are exempt of criminal liability, as authors, accomplices or accessories to the crime.
The stay of execution may be agreed when (art. 641 LECrim):
-The commission of the crime which motivated the initiation of the criminal procedure is not enough justified.
– From the investigation results the commission of a crime, but there are not enough motives to accuse a person or persons, as authors, accomplices or accessories to the crime.
We can see that the difference between both is almost imperceptible when we are choosing between their first option, but the jurisprudence has tried to solve this problem saying that, the acquittal on all charges is referring to the absolute lack of evidences, while the stay of execution is referring to the lack of enough evidences.
Either when the report or the lawsuit are rejected because they don not recount a crime according to the CP or are not accompanied of any proof of its commission (art. 269 and art. 313 LECrim), or when are dismissed at the end of the investigation (art. 637 and art. 641 LECrim), the right to effective legal protection (art. 24.1 CE) is not infringed by the Examining Magistrate, because what this right is granting to the person who brings a report or lawsuit, is the right to obtain a motivated resolution from a judicial organ based on the law, it is indifferent whether this resolution is a sentence which treats about the subject matter which motivated the report or lawsuit, or ends the criminal procedure before on account of encountering with a procedural obstacle. The only owner of the “ius puniendi” is still the State, who brings a report or lawsuit is not entitled to obtain a conviction, only to initiate a criminal procedure that has to finish by means of a motivated judicial resolution.
On the other hand, when the Examining Magistrate decides that there are enough evidences to justify the continuation of the criminal procedure and the opening of the Oral Trial (art. 779.1.4º LECrim), it has to motivate in its resolution the facts which can be classified as a crime according to the CP, and the persons who a liable of them. This judicial resolution complies with the same function which is fulfilled by the committal for trial in the Ordinary Procedure (art. 384 LECrim), since the Examining Magistrate is in charge of fixing the facts and the persons to whom are attributed, being this the frame which later has to be respected by the parties in their provisional writings of qualification of the crime (art. 650 LECrim), therefore the Examining Magistrate has to follow the same path in both cases, in order to take this decision, it has to be as sure of the commission of a crime by determined person as of the contrary. Nevertheless, the Examining Magistrate is obliged to fulfill one requisite before taking this decision, previously the investigated has to give its version of the facts which are attributed to it, and be allowed to exercise its rights of defense (art. 775 LECrim), chiefly the right to be informed of the state of the investigation and to take part in it through its lawyer (art. 118 LECrim), at least ten days before the conclusion of the preliminary proceedings when the investigation has been declared secret by the Examining Magistrate (art. 302 LECrim).
Víctor López Camacho.
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