The criminal procedure can be divided in accordance with three stages: the preliminary proceedings, where an Examining Magistrate leads an investigation of a crime with the aim of obtaining enough evidences in order to justify the opening of the Oral Trial (art. 299 and art. 777 of the Spanish Criminal Procedure Act, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim); the intermediate stage, exhausted the preliminary proceedings according to the Examining Magistrate, the prosecution and defendant can ask for complementary preliminary proceedings, the dismissal of the cause or the opening of the Oral Trial, and according to these proposals an Examining Magistrate or a Tribunal decides; and the Oral Trial and the Sentence, decided the opening of the Oral Trial by the Examining Magistrate or Tribunal, is practiced the proof in an oral, public trial, in front of the Judge or Tribunal judging the case and subject to contradiction by all the parties.
Hence, we are situated at the end of the criminal procedure, in its last stage, more concretely at the end of the Abbreviated Procedure. Remember that, the Abbreviated Procedure is utilized to try the crimes punished with until nine years of prison, or whatever other punishments of different nature, either unique, joint or alternative, of any duration and amount (art. 757 LECrim). But let us start from the end of the previous stage.
Once the Examining Magistrate has decided at the end of the preliminary proceedings that the correct option is the continuation of the criminal procedure according to the rules of the Abbreviated Procedure (art. 779.1.4º LECrim), the prosecution has three options, to ask for complementary preliminary proceedings, the dismissal of the cause or it can accuse through the provisional writing of accusation (art. 780 and art. 781 LECrim). Evidently, if we are talking on the last stage of the criminal procedure, it is because there has been a prosecution with the intention of accusing (art. 783 LECrim), either public, private or popular, since the Examining Magistrate is obliged to declare the opening of the Oral Trial when at least one prosecution accuses, unless the accusation is based on facts which are not regarded as a crime (art. 637.2 LECrim) by the Spanish Criminal Code (in Spanish Código Penal, henceforth CP), or there are not evidences to sustain an accusation during the Oral Trial, either for the absolute lack of evidences (art. 637.1º LECrim), or of enough evidences (art. 641.1º LECrim). The prosecution’s provisional writing of accusation has to contain between other things, the facts, the persons liable of them, at its legal classification in accordance with the CP (art. 650 LECrim), but it serves also to solicit the proofs which should be practiced during the Oral Trial, included the anticipated proof, and to choose the judicial organ in charge of trying the case in accordance with the competence rules of the article 14.3 LECrim, for basically if the crime is punished with until five years in prison the judicial organ with competence to try the case will be the Judge of the Criminal, and if the crime surpasses the above limit, it will be tried by a Provincial Court.
The stage of the Oral Trial commences when the Judge or Tribunal chosen by the prosecution receives the proceedings (art. 785 LECrim), a competence which cannot be rejected, therefore, if the prosecution chooses the Provincial Court on account of the legal classification of the facts, the Provincial Court will be obliged to try the case even when at the end of the trial the prosecution diminishes the amount of the punishment asked for and it is under the threshold of the article 14.4 LECrim (788.5 LECrim). On the Contrary, if the prosecution chooses the Judge of the Criminal, the competence should be attributed to the Provincial Court when the legal classification of the crime made by the prosecution surpasses the threshold of the article 14.3 LECrim (art. 788.6 LECrim).
The first thing which will be made by the Tribunal of Judge in charge of trying the case, is to approve or to reject the proofs (art. 785 LECrim) asked by both the prosecution (art. 781 LECrim) and the defendant (art. 784 LECrim), since the right to utilize the pertinent means of proof established by the Spanish Constitution (CE), is not absolute, the own CE talks about the pertinent means of proofs, that means that the proofs which are not pertinent, in other words, related with the object of the criminal procedure previously marked by the Examining Magistrate in its decision opening the Oral Trial (art. 779.1.4º LECrim), can be rejected without infringing this constitutional right.
Admitted or rejected the proofs by the Judge or Tribunal according to the criteria of pertinence, the date and hour of the trial is settled. Such date and hour, has to be shared with the victim and harmed of the crime when any of them has asked for it (art. 785.3 LECrim), this right of the victim and harmed by the crime has given rise to a broad interpretation of the right to exercise the criminal action by them (art. 110, art. 109 and art. 109 bis), allowing the Spanish jurisprudence its exercise through appearance apud acta until the commencement of the Oral Trial, but with the limitation of adhering to the prosecution’s provisional writing of accusation (art. 109 bis LECrim), since the private and public prosecutions can accuse by their own provisional writings of accusation only until the end of this stage (art. 650 LECrim), which on the Abbreviated Procedure corresponds with the moment just before the judicial resolution which ends the preliminary proceedings (art. 779.1.4º and art. 780.1 LECrim).
The accused must assist to the Oral Trial defended by its lawyer, otherwise the Oral Trial must be suspended until its appearance, unless the accused has been personally summoned or at the address or person indicated in accordance with the art. 775 and the Judge or Tribunal, previous audience of the parties, decides not to suspend the Oral Trial on the grounds that there are enough evidences to continue with the trial and the punishment asked for by the prosecution does not exceed the two years in prison, or of any other nature when its duration does not surpass the six years (art. 786.1 LECrim). The presence of the accused during the Oral Trial, is part of the fundamental right to effective judicial protection (art. 24.2 LECrim), since without it, the accused cannot defend itself of the accusations for example exercising a right as important as the right to the last word (art. 739 LECrim), such faculty of the accused, is an authentic right of which the Judge or Tribunal cannot dispose, being obliged to grant it always at the end of the Oral Trial. It is a particular manifestation of the right to defense of the accused (art. 24.2 CE) which is not limited to the assistance of a lawyer, because the right to the last word supposes recognizig to the accuse the right to self-defence, in other words, of directly defending itself before the Tribunal of the charges presented against it without the necessity of the intervention of its lawyer.
Likewise, the Oral Trial may continue in those cases where there are more than one accused, and any of them do not appear to court. We should understand that, in order for this to happen, there must exist enough evidences against those who have appear in court, making unnecessary the testimony of those who have not appear.
Although the stage of the Oral Trial commences when the Judge or Tribunal in charge of trying the case receives the proceedings, the proper Oral Trial starts with a previous audience where the parties of the criminal procedure have the opportunity of alleging procedural issues which may impede the Judge or Tribunal to end the procedure by a sentence, as for example the prescription of the legal action. Besides, the parties have the opportunity of proposing new proofs, although in this case it is limited by one requisite, they should be able to be practiced at the act (art. 786.2 LECrim), a possibility which has been extended to the Ordinary Procedure by the Spanish jurisprudence.
Finished the previous audience of the art. 786.2 LECrim, the Tribunal or Judge will give another opportunity to the parties of reaching to an agreement with regard the punishment and the civil liability derived from it, for the defendant may ask for to the Judge or Tribunal the termination of the criminal procedure by sentence of conformity (art. 787.1 LECrim). Remember that this possibility already existed during two previous phases of the criminal procedure: before the commencement of the intermediate stage of the criminal procedure, the investigated may confess its liability in the presence of the Examining Magistrate if it is within the boundaries of the article 801 LECrim (art. 779.1.5º LECrim); and during the intermediate stage of the criminal procedure, the defendant can reply to the writing of accusation of the prosecution accepting both the facts and the civil liability arising from them according to the terms of the art. 787 LECrim, or the prosecution and the defendant may agree a joint writing of accusation in any of the moments before the beginning of the Oral Trial (art. 784.3 LECrim). In any of the cases, the aim is to avoid an unnecessary Oral Trial in which the parties and the public administration of justice will waste money and time. Nevertheless, in order that this transaction takes place, the agreement between the prosecution and the defendant has to be within the boundaries marked by the LECrim, up to six years in prison, and besides the conformity has to be given with regard the writing of accusation which contains the gravest punishment, or with the writing of accusation presented in such act, which cannot be referred to different facts, nor contain gravest classification of the crimes than the previous writing of accusation (art. 787.1 LECrim).
When the parties have not reached to an agreement, or when this agreement is impossible because it surpasses the limits marked by the LECrim, the practice of the proof will begin, its practice will be concentrated and during consecutive sessions except when concurs any of the causes of the art. 746, which enumerates the motives according to which the Oral Trial may be suspended (art. 788.1 LECrim). Here we have to take into account that, there exist yet the possibility of an agreement between the prosecution and the defendant even when it surpasses the legal limit of six years in prison, both parties may pact to reduce the practice of the proof during the Oral Trial to its maximum expression, being enough with the testimony of the accused confessing its liability, afterward the prosecution and defendant will coincide in their definitive writings of classification of the crime (art. 788.4 LECrim).
After the practice of the proof during the Oral Trial, remember that the only proof capable of destroying the presumption of innocence of the accused is the proof practiced during a public, oral trial, in front of the Tribunal trying the case, and subject to contradiction by all the parties, except when there are preconstituted proofs or anticipated proofs, the parties will have the possibility of modifying their writings of accusation (art. 781 LECrim) and defense (art. 784 LECrim). Here the doubts have arisen regarding the extent of such modifications, and almost everything is valid, if the parties respect the boundaries of the object of the criminal procedure previously marked by the Examining Magistrate (art. 779.1.4º LECrim), in other words, maintaining the facts and the persons liable of them, the parties may modify their writings of definitive classification of the crime (art. 788.4 LECrim) with regard to their writings of provisional classification of the crime (art. 781 and art. 784 LECrim), including, the legal classification of the crime, because without allowing this modification all the practice of the proof carried on during the Oral Trial would lose its sense. With regard to the above, the Spanish jurisprudence has stated that, the only writings which able to bind the sentence of the Tribunal or Judge are the writings of definitive classification of the crime, and that the accusatory principle, which demands to inform the accused of the facts attributed to it and its legal classification, is satisfied with this correlation between the sentence and the definitive writings of classification of the crime.
In fact, the article 788.5 LECrim expressly allows such changes in the definitive writings of classification of the crime, giving the opportunity to the defense of asking for the suspension of the Oral Trial for properly preparing its allegations or proposing new proofs.
It is also true, that the identity between the definitive writings of classification of the crime and the sentence has not to be absolute, the Judge or Tribunal can change the legal classification of the crime in its sentence but it has to be homogeneous regarding to the legal classification asked for by the prosecution, and the Judge or Tribunal cannot impose a graver punishment than the solicited by the prosecution but the LECrim does not forbid a sentence more lenient (art. 789.3 LECrim).
Víctor López Camacho.
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