Probably all the countries in the world have the same problem, a criminal procedure too fast may diminish the guarantees which protect the accused against an arbitrary justice, and a criminal procedure too slow may spoil the effectiveness of such justice. Therefore, a proper judicial system is always playing with these two sides of the balance, trying to find the equilibrium between them, a play which is not easy and some times not understood by all the players.
The Procedure for the Fast Trying of Determined Crimes was born with the aim of putting more weight on the side of the balance which seeks to make the criminal procedure faster, but without forgetting such equilibrium which is so important. According to the Exposition of Motives of the Law 38/2002, by means of which was reformed the Spanish Criminal Procedure Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), the Spanish system of justice was giving an image of lack of efficacy, a system too slow which allowed the criminals to escape the punishment consequence of their acts. Such Law 38/2002 was accompanied by an organic law, the Organic Law 8/2002, which reformed the LECrim in order to allow a reduction of one third of the punishment asked for by the prosecutions (art. 801 LECrim), such reform was an indirect amendment of the Spanish Criminal Code (in Spanish Código Penal, henceforth CP), and also the Organic Law 8/2002 introduced a modification on the Spanish Organic Law of the Judiciary (in Spanish Ley Orgánica del Poder Judicial, henceforth LOPJ), attributing the competence of ending the criminal procedure by a sentence to the Examining Magistrates, although only when there exist agreement between the prosecution and defendant with respect to the punishment. In Spain, a law which affects to the development of the fundamental rights established in the Spanish Constitution (in Spanish Constitución Española, henceforth CE) which are those contained in its article fourteenth to the article twenty-ninth, must always has the form of an organic law, which needs to be approved by an absolute majority of the Spanish Parliament (art. 81.2 CE), and in the aforementioned two cases the right to effective judicial protection (art. 24 CE) was affected.
What characterizes the Procedure for the Fast Trying of Determined Crimes is the brevity of the period given to the Examining Magistrate for investigating the crime, the preliminary proceedings has to be completed during his on-call service, although is some cases this initial period can be extended seventy-two hours more (art. 799 LECrim).
– Chapter I. Ambit of application:
The boundaries of the Procedure for the Fast Trying of Determined Crimes are marked by the article 795, which uses different criteria. First, it takes into account the gravity of the crimes investigated, this special procedure will be applied to the investigation and trying of the crimes punished with until fives years of imprisonment, or with whatever other punishments, whose duration do not exceed of ten years, of any amount. This limit coincides with the competence of the Criminal Judge (art. 14.3 LECrim), who will be in charge of trying the cause when the parties do not achieve an agreement regarding the punishment (art. 801 LECrim). In order to determine the crimes which are within the range of the art. 795 we have to attend to the punishment in abstract established by the CP, with independence to the punishment asked for by the prosecution according to the concurrent circumstances (punishment in concrete). Those crimes whose inferior tracts are within the limits of the article 795, but whose superior tracts are not, are excluded from the application of this procedure.
Secondly, the criminal procedure has to be initiated by a police report. This requisite shows the importance of the Judicial Police in the initiation of this special procedure, they are who first have to assess whether the crime discovered can be tried according to its rules, complying with the duties attributed to them by the article 796 LECrim, chiefly the notification to the supposed criminal and the witnesses of the date in which they have to appear at the Duty Court. Besides, this requisite expressly excludes from the application of this special procedure, the criminal procedures which have been initiated by means of a lawsuit, or a report by a citizen to the police, the public prosecution or the Investigation Court.
Thirdly, the Judicial Police has to have detained a person and putted him at the disposition of the Duty Court, or without detaining him, he has to have been notified in order to appear at the Duty Court for having been denounced in the police report. That a person has to have been detained or at least notified, is in accordance with the spirit of this special procedure, this requisite presupposes the existence of an simple investigation.
And fourthly, with the above requisites has to concur at least one of the followings:
1) It has to be a flagrant crime: The article 795.1.1º has included a definition of what has to be understood as a flagrant crime, a definition which transcends the ambit of the special procedure where it appears, because it is utilized as a reference to establish the scope of the same concept when it is used in other laws. For example, the definition of flagrant crime of the article 795.1.1º should help us to understand one of the cases in which the Police can enter into the home of a citizen without a judicial order or his consent (art. 18.2 CE). According to the article 795.1.1º, a flagrant crime is, the crime which is being committed or has been just committed when the criminal is surprised in the act. A criminal will be surprised in the act not only when the criminal is arrested in the moment of being committing the crime, but also when he is arrested or chased soon after the commission of the crime, if the persecution lasts or is not suspended while the criminal is not out of reach of those who are chasing him. It is also regarded as a criminal in fraganti, who is surprised immediately after the commission of a crime, with tools or evidences which allow the presumption of his participation in it.
2) It has to be one of the crimes enumerated in the article 795.1.2º:
a) Crimes of injury, coercion, threats or physical or habitual psychological
violence, committed against the persons referred to in article 173.2 of the
Criminal Code.
b) Crimes of theft.
c) Crimes of robbery.
d) Crimes of theft and robbery of vehicles.
e) Crimes against traffic safety.
f) Crimes of the damages referred to in article 263 of the Criminal Code.
g) Crimes against public health provided for in article 368, second paragraph,
of the Criminal Code.
f) Flagrante delicto relating to intellectual and industrial property provided for
in articles 270, 273, 274 and 275 of the Criminal Code.
3) It has to be a crime whose investigation supposedly is simple: The preliminary proceedings have to be exhausted within the period granted by the article 799, otherwise the crime will no be suited to follow the rules of this special procedure, in those cases, the criminal procedure chosen will be the Abbreviated Procedure.
– Chapter II: Of the actuations of the Judicial Police:
As we have previously mentioned, the Judicial Police plays an important role in this special procedure, since its report is an essential requisite to the its initiation.
Of those functions expressly attributed to the Judicial Police by the article 796, we can stress the notification to the person denounced and to the witnesses of the date in which they have to appear at the Duty Court.
Here the doubt may arise of, what happens if the Judicial Police does not properly comply with its functions and does not make a report which fulfills the requisites of the article 796, for instance not notifying the person denounced or the witnesses? To solve this doubt we can attend to the Circular 1/2002 of April 7th, on the procedure to the fast and immediate trying of determined crimes and the modification of the abbreviated procedure, of the Spanish public prosecutor´s office (in Spanish, Circular 1/2003, de 7 de abril, sobre procedimiento para el enjuiciamiento rápido e inmediato de determinados delitos y faltas y de modificación del procedimiento abreviado, henceforth Circular 1/2003). The Circular 1/2003 says: “In every case, the assessment on the pertinence of initiating preliminary proceedings according to the rules of the Procedure for the Fast Trying of Determined Crimes, which at the end corresponds to the Examining Magistrate, cannot be hindered for the fact that the Judicial Police has understood that the facts do not suit the ambit of such special procedure, and consequently has not elaborated the report according to the rules of the articule 796. In such cases, will be possible to initiate preliminary proceedings according to the rules of this special procedure, when they are possible, despite the possible deficiencies of the police report.”
Therefore, the final decision of initiating preliminary proceedings according to the rules of this special procedure will be always of the Examining Magistrate, regardless the initial assessment of the facts by the Judicial Police.
– Chapter III. Of the preliminary proceedings in front of the Duty Court:
Once the police report has arrived to its destiny, the Duty Court, the Examining Magistrate on-call service should analyze the facts reported and the proofs which accompany the report. The Examining Magistrate is not oblige to initiate this special procedure despite that the Judicial Police has complied the requisites to its initiation according to the rules of the article 796, it has the last decision. It may happen that what at first glance may look a simple investigation due to the lack of relevant proofs cannot be carried on during the limited period granted by the article 799, or that in spite of being the crime reported one of those enumerated by the article 795.1.2º its investigation is complex, and instead is preferable to initiate preliminary proceedings according to the rules of the Abbreviated Procedure. Without waiting to later this will be proper moment to decide whether to follow the rules of this special procedure or instead the rules of the Abbreviated Procedure which does not have such a limited period of time to carry on the preliminary proceedings.
If the Examining Magistrate decides to follow the rules of this special procedure, the preliminary proceedings which he has to carry on, differ from those carried on by any other Examining Magistrate in the limited period which is given by the LECrim to its completion. The article 797 after enumerating a list of preliminary proceedings, ends this own list with an open clause which allows the Examining Magistrate to practice all the proofs which can be made during the period granted by the article 799 LECrim. But there is one which is particularly important, although the Procedure for the Fast Trying of Determined Crimes looks to reduce the times in trying a cause, it has not abolished the guarantees which protects all accused, one of the most important he has to have the opportunity of being informed of the facts attributed to him, and of giving his own account of his participation on those facts (art. 775 LECrim), in other words, before the commencement of the oral trial he has to testify in front of the Examining Magistrate and during this testimony he has to be assisted by a lawyer, without complying with this guarantee an oral trial cannot commence.
Perhaps this is the most important rule of all criminal procedure and it is not in the LECrim, the only proofs capable of destroying the presumption of innocence of the accused are those practiced in a public, oral trial, in front of the judge or tribunal trying the case and subjected to contradiction by all the parties. Notwithstanding the above, such an important rule has exceptions, we talk chiefly about the preconstituted proofs, which in this special procedure are gathered in the article 797.2. The witnesses who for reasons of their residence cannot assist to the oral trial can testify before its commencement in front of the Examining Magistrate but complying with some requisites: the testimony has to be given in front of an Examining Magistrate (it is not valid if it is given only in front of police officers), the testimony has to be recorded by a means which allows the reproduction of image and audio or at least there must be gathered in the minutes which records the testimony, and the testimony has to be given in the presence of the lawyer of the accused (art. 449 bis and art. 797.2 LECrim). The article 797.2 leaves open the door to other causes which may justify the taking as preconstituted proof the testimony of a witness, if we take into account that the general rules of the Ordinary Procedure are also applicable, due to their character as supplementary law of the Abbreviated Procedure (art. 758 LECrim) which at the same time is supplementary law of the Procedure for the Fast Trying of Determined Crimes (art. 795.4), this reasons can be only: when the witness must leave the national territory or there exist a threat on its body or mental health (art. 448 LECrim), or when the witness is a minor of fourteen years or a handicapped person and he is a witness of any of the crimes enumerated in the article 449 ter (art. 449 ter).
In order to be regarded these testimonies as proofs, besides the requisites aforementioned, the party who is interested in them has to propose its reproduction during the oral trial by means of the article 730.2 LECrim.
To the testimony of a witness is not the only sort of reconstituted proof admitted in a criminal procedure, those parts of a police report which contain objective data and proofs of impossible repetition and an expert report may be regarded also as preconstituted proofs if the parties do not impugn their content in their writings of provisional classification of the crime (art. 650 LECrim), otherwise the police officers or the expert who have elaborated the report must appear in court to defend its content. When any of these reports have not been impugned the judge or tribunal trying the case may use its content as a proof by the application of the article 726 LECrim.
Exhausted the preliminary proceedings necessaries to prepare the opening of the oral trial within the period granted by the article 799, the Examining Magistrate, after hearing the parties, has to choose between any of the options of the article 798, which in essence are the dismissal of the cause or the continuation of the criminal procedure. The dismissal of the cause, may be agreed when the facts cannot be regarded as a crime (art. 637.2 LECrim), or when there are not enough proofs of its commission, in these last case may be agreed the acquittal on all charges (art. 637.1º LECrim), when there is an absolute lack of evidences, or the stay of execution (art. 641.1 LECrim), when there are not enough proofs to justify the opening of the oral trial. Though in the latter case, the logical thing would be the practice of new proofs, but in this occasion according to the rules of the Abbreviated Procedure (art. 798.2.2º LECrim). In spite of the silence of the LECrim until this precise moment of the procedure on the possibility of transforming the Procedure for the Fast Trying of Determined Crimes into another which is more suited with regard the proofs obtained during the investigation of the cause, we should understand that there exist no inconvenience which may impede the Examining Magistrate to adopt this decision in an earlier moment and without the necessity of hearing the parties, this is what is contemplated in the article 760 LECrim for the Abbreviated Procedure and which is of supplementary application (art. 795.4 LECrim).
– Chapter IV. The preparation of the oral trial:
The on-call Examining Magistrate after agreeing the continuation of the procedure (art. 798.2.1º LECrim), has to hear again the parties regarding the convenience of the opening the oral trial (art. 800 LECrim). If all the prosecutions ask for the dismissal of the cause, the Examining Magistrate has to agree it (art. 800.1 LECrim), unless: the crime was committed by a person who at the time of committing the crime cannot understand that his action was illicit or act according this apprehension, the crime was committed by a person who at the time of committing the crime was under the effect of the drugs, the crime was committed by a person who has altered the conscience of the reality since he was born, the crimen was committed by a person who at the time of committing the crime was in a state of necessity, the crime was committed by a person who at the time of committing the crime was under the effect of an insurmountable fear (causes 1º,2º,3º,5º and 6º of the article 20 CP). In such cases, the Examining Magistrate will return the actuations to the parties, who will have to classify the crimen, and the criminal procedure will continue until its sentence, with the goal of imposing a measure of security and the trying of the civil liability (art. 782.1 LECrim).
On the contrary, when any of the prosecutions solicit the opening of the oral trial, the Examining Magistrate has to agree it, except when he regards that the facts cannot be deemed as a crime (art. 637.2 LECrim), or there exist no rational evidences against the accused in which case he can agree the acquittal on all charges (art. 637.1º LECrim), when there is an absolute lack of evidences, or the stay of execution (art. 641.1 LECrim), when there are not enough proofs to justify the opening of the oral trial (art. 800.1 LECrim).
Agreed by the on-call Examining Magistrate the opening of the oral trial, the art. 800 offers two possibilities. If the only prosecution is the public prosecution, such public prosecution immediately has to submit its writing of accusation or make it orally (art. 800.2 LECrim), on the contrary, when there is private prosecution and public prosecution, both, the public and private prosecution, have two days to submit their writings of accusation (art. 800.4 LECrim). In either of the two cases the defendant can either agree with the gravest of the punishments asked for by the prosecutions or oppose to accusation agains him. The writings of provisional classification of the crime of the parties must follow the rules of the articles 781, 784, 650, and 656 of the LECrim.
If the defendant agrees with the gravest of the punishment asked for by the prosecutions, he will have the right of a diminution of a third of such punishment when it is not more than three years of imprisonment, even when this diminution supposes the surpassing of the inferior tract of the CP for that sort of crimes. In order to asses when this limit is fulfilled we have to attend to the punishment in concrete, which is the punishment asked for by the prosecution according to the concurrent circumstances of the crime, as an aggravating factor. In these cases, the on-call Examining Magistrate will be in charge of concluding the criminal procedure by a sentence.
When the diminution of a third of the punishment is applied on a fine with a daily installment (art. 50 CP), such diminution can only be applied upon the months of fine but not upon the daily installments.
If after diminishing the punishment, it is within the boundaries of the art. 80 CP (two years of imprisonment), the defendant can have access to the benefit of the suspension of the punishment, when are fulfilled the rest of the requisites of this article. The same will happen when the diminution of the punishment is within the limits of the article 71.1 CP, which substitutes, in every case, the punishments of less than three months of prison for a fine, works for the benefit of the community or permanent localization.
– Chapter V. The oral trial and the sentence:
If the on-call Examining Magistrate has agreed the opening of the oral trial (art. 800.1 LECrim), and the defendant has opposed to the prosecutions (art. 800.2 LECrim), inevitably the oral trial has to commence, and with it the practice of the proof.
Nevertheless, the parties have another opportunity of reaching an agreement before the practice of the proof commences, although in this case, if the agreement is reached the defendant will not have the right of a diminution of a third of the punishment (art. 802 and art. 787 LECrim).
Chapter VI. The challenge of the sentence:
According to the article 803, against the sentences of this criminal procedure the parties can lodge an appeal, which will follow the rules of the article 790 to 792, with some specialities.
Such specialities consist in reducing the periods for submitting the writings of allegation, which will be of five days, and the period for dictating sentence, which will be of three days (or of 5 if there is no hearing).
Víctor López Camacho.
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