What is termed “The preparation of the Oral Trial” by the Spanish Criminal Procedure Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), is known by those who study procedural law as “the intermediate stage”. We can divide a criminal procedure in three stages: the preliminary proceedings, where are gathered the evidences which will determine whether an Oral Trial is necessary; the intermediate stage, where the prosecution solicit the opening of the Oral Trial, the dismissal of the cause or complementary, preliminary proceedings, where the defendant opposes to the prosecution, and where an judicial organ decides on the opening of the Oral Trial according to such allegations; and the Oral Trial, where is practiced the proofs gathered during the preliminary proceedings and after which the prosecution and defendant fix their stand regarding their claims. Therefore, we are explaining what happens in the middle of the criminal procedure, how the parties make for the first time their allegations, and how a judicial organ taking them into consideration decides whether to open the Oral Trial.
To begin with, we will part from the end of the previous stage, the preliminary proceedings end when the Examining Magistrate in charge of heading them decides that they are exhausted (art. 324 LECrim), then it has to choose mainly between two different options, the dismissal of the cause (art. 779.1.1º LECrim) or the opening of the Oral Trial (art. 779.1.4º LECrim), remember that previously during the investigation of the crime, during the preliminary proceedings which have as aim the finding out of the existence of the crime and its authors (art. 777.1 LECrim), the Examining Magistrate has to have decided to continue with the criminal procedure under the norms regulating the Abbreviated Procedure because the crime investigated is within the framework of the art. 757 LECrim. When the Examining Magistrate chooses to continue the criminal procedure because there exist enough evidences in order to sustain a prosecution during an Oral Trial, the intermediate stage of the criminal procedure commences (art. 779.1.4º and art. 780 LECrim).
There is a big difference between the intermediate stage of the Abbreviated Procedure and the intermediate stage of the Ordinary Procedure, whereas in the Abbreviated Procedure who is in charge of opening the Oral Trial is the Examining Magistrate (art. 783 LECrim), in the Ordinary Procedure this function is attributed to the Tribunal in charge of trying the case (art. 632 LECrim), and how the intermediate stage is structured differs completely between the two procedures. At the beginning of the intermediate stage of the Abbreviated Procedure, the Examining Magistrate shares with the prosecution all the information derived from the preliminary proceedings carried out during the previous investigation (art. 780 LECrim), then the prosecution with such information has to choose between asking for the opening of the Oral Trial, the dismissal of the cause, or the practice of complementary preliminary proceedings when with the proofs available it deems that are not enough to sustain its claims during the Oral Trial. Regarding the latter option, the LECrim treats in a really different way the Public Prosecution and the Private Prosecution, because when the complementary proceedings are asked for by the Public Prosecution the Examining Magistrate is obliged to accept them, on the contrary, when the preliminary proceedings are asked for by the Private Prosecution the Examining Magistrate can choose whether to accepts this request (art. 780.2 LECrim).
Therefore after finishing with the preliminary proceedings, whether it has been complementary preliminary proceedings or not, the prosecution, public and private, has the option of asking for the dismissal of the case or the opening of the Oral Trial, and this is precisely the two options which are given by the LECrim, because in accordance with these two options the cause can be dismissed at this stage of the criminal procedure when the public and private prosecution agree to solicit the dismissal of the cause (art. 782 LECrim), or the criminal procedure can continue when at least one of them solicit the opening of the Oral Trial (art. 783 LECrim). Let´s see deeper each of these two options.
In the case that, the public and private prosecution solicit the dismissal of the cause, the Examining Magistrate has to dismiss the cause unless the crime investigated has been committed under: a psychic alteration which impeded the criminal to understand the consequences of its action, the effects of the drugs, a mental illness from its birth, a state of necessity, or the effects of unsurmountable fear (all of them are causes of exemption of criminal liability stated by the article 20 of the Spanish Criminal Code). In the above cases, the criminal procedure must continue with the opening of the Oral Trial which will end with the imposition of a measure of security upon the criminal and the establishment of the pecuniary liabilities derived from the crime (art. 782 LECrim). But besides there is another possibility, it is possible that the only prosecution who has been a party of the criminal procedure until this juncture is the public prosecution, and that this public prosecution is the only who has asked for the dismissal of the cause, in such cases, the Examining Magistrate may: decide to put into the knowledge of the victim or harmed by the crime the decision taken by the Public Prosecution of dismissing the cause, in order to allow to it its participation in the criminal procedure as a party or, communicate the decisión of the Public Prosecution to its hierarchical superior in order to confirm this decision or reject it. Here we have to mention that, the victim or the harmed by a crime has the possibility of being a party of the criminal procedure until the qualification of the crime, which in the Abbreviated Procedure corresponds with the closing of the preliminary proceedings (art. 779.1.4º LECrim), otherwise the victim and the harmed by the crime can be a party of the criminal procedure only if it adheres to the accusation made by the public prosecution or another private prosecution, which means that the case cannot be dismissed during this stage of the criminal procedure, but in this case it has the possibility of adhering till the proper oral trial (art. 109 bis LECrim).
The other option is, when any of the prosecutions asks for the opening of the Oral Trial (art. 783 LECrim). Having been solicited the opening of the Oral Trial by any of the prosecutions, the Examining Magistrate is obliged to open it, unless the facts object of accusation cannot be regarded as a crime (art. 637.2º LECrim), or the evidences sustaining the claims of the prosecution are not enough to justify the opening of the Oral Trial (art. 637.1º or art. 641.1º LECrim). In the latter case, we see that the two options has two really different effects, the acquittal on all charges (art. 637.1º LECrim) has the effect of res judicata, while the stay of execution (art. 641.1º LECrim) supposes the dismissal of the cause until the appearance of new proofs which may provoke the opening of the Oral Trial, and despite these really two different effects the boundaries of both of them are diffuse, the Spanish jurisprudence has try to solve this problem arguing that, the acquittal on all charges is due to the absolute lack of all evidences, whereas the stay of execution is due to the lack of enough evidences. Perhaps it may seem strange, that again during this stage of the criminal procedure, the Examining Magistrate has the possibility of dismissing the cause, but if we think a little on the cause of this duplicity, we will find a reason. At the end of the preliminary proceedings the Examining Magistrate takes a decision based on the proofs obtained with them, this decision is reflected in the judicial resolution which states the continuation of the criminal procedure, and which has as requisites the stating of the facts and the persons liable of them, and besides that the investigated has to be previously and formally accused (art. 775 and art. 779.1.4º LECrim). But the Examining Magistrate has not attributed by the LECrim the labour of prosecution, this labour is exercised by the Public and Private Prosecution through their writings of accusation (art. 781 LECrim), which at the same time has to respect the framework previously established by the Examining Magistrate in the judicial resolution in which it states the facts and the persons liable of them (art. 779.1.4º), and which are the object of the criminal procedure. Nevertheless, the Public and Private Prosecution may differ from what was established by the Examining Magistrate as the object of the criminal procedure, accusing of facts which are not well supported by the evidences gathered by the investigation or ever are not a crime, thus provoking the dismissal of the case in accordance with the art. 637.2º, or 637.1º or 641.1º.
The judicial resolution stating the opening of the Oral Trial cannot be appealed, except regarding the preventive personal measures (provisional prison or provisional liberty) adopted during the previous proceedings and confirmed through this resolution, or adopted directly in it (art. 783.3 LECrim). This expressly excludes of the possibility of appealing the preventive pecuniary measures (bail and seizure). We can connect this idea, with the moment in which are informed the subsidiary civil liable of the crime, for they appear for the first time in the writings of accusation of the prosecution (art. 781 LECrim) and are confirmed in the judicial resolution stating the opening of the Oral Trial (art. 783 LECrim), confirmation which gives rise to their right of making allegations against this liability (art. 784 LECrim).
Now is the turn of the writings of accusation (art. 781 LECrim). They have to establish the facts, the persons liable of them, and their classification according to the Spanish Criminal Code (art. 650 LECrim), besides like we have hinted above, they have to contain the civil liability derived from the crime and those who are subsidiary liable of it. Such writings of accusation are also used to ask for the proofs which will be practiced during the Oral Trial, although the prosecution will have another opportunity before its commencement (art. 786.2 LECrim), in this case limited, to the proofs which can be practiced during it. Besides, the prosecution can ask for the practice of the proofs which are threaten by some cause which may impede its practice during the Oral Trial, these proofs in the case of being approved, will be practiced in the presence of the Tribunal or Judge trying the case, so they don’t need to be introduce by means of the art. 730.2 in order to be regarded as proofs capable of destroying the presumption of innocence of the accused.
Once the prosecutions, public or private, accuse through their writings of accusation (art. 781 LECrim) and the Examining Magistrate has stated the opening of the Oral Trial (art. 783 LECrim), the defendant and those subsidiary liable of the civil liabilities derived from the crime have the opportunity of replying to the prosecution, making the allegations which may favour their stand during the Oral Trial and also proposing the proofs which may help to sustain it (art. 784 LECrim). In order to be regarded as party of the criminal procedure from the opening of the Oral Trial onward, the defendant has to be represented by a solicitor, and this is mandatory, so in case the defendant does no choose one, it will be assigned by the judicial organ. Until this moment, the lawyer of the defendant was allowed to represent it (art. 768 LECrim).
Through its reply to the writing of accusation, the defendant can agree with the punishment and the civil liability asked for, or it can achieve a new agreement with the prosecution on the facts and its legal classification, but only if such facts are within the framework of the article 787, in other words, they should be able to be punished with less than six years in prison (784.3 LECrim).
Víctor López Camacho.
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