The Procedure for acceptance of decree is another of the special criminal procedures which the Spanish Criminal Procedure Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) contains. Its aim, is to reduce the burden of the administration of justice by shortening the period of investigation of those crimes punished more leniently by the Spanish Criminal Code (in Spanish Código Penal, henceforth CP).
This special procedure was introduced by the Law 41/2015, of October 5, of modification of the Criminal Procedure Act for the streamlining of the criminal justice and the strengthening of the procedural guarantees (henceforth 41/2015), according to such law: “It is a special procedure which allows the transformation of the Public Prosecutor´s punishing proposal in unappealable judgment when are met the objective and subjective requisites envisaged and the investigated agreed, with the mandatory assistance of his lawyer. Following a model of proved success in the comparative Law, is established a mechanism of acceleration of the criminal justice which is very effective for clearing the judicial organs and for applying a fast punishing reply before crimes scarce gravity whose sanction may be transformed in a fine or community service, totally respectful with the right of defense”. As always, the goal is to shorten the periods of prosecution in order to maximize the public resources.
In reality, the Procedure for acceptance of decree, is an agreement between the prosecution and the accused which takes place during the stage of investigation of the crime, a case already regulated in the article 779.1.5º LECrim for the Abbreviated Procedure, which is transformed into the Procedure for the Fast Trying of Determined Crimes when the investigated acknowledges the facts during the investigation in the presence of the Examining Magistrate and these facts are within the scope of the article 801 LECrim. The novelty resides, in the faculty of the Public Prosecutor of proposing the agreement during this stage of the criminal procedure, without the necessity of being acknowledged the facts previously by the accused.
– Article 803 bis a. Requisites for the procedure for acceptance of decree:
The requisites which must previously be fulfilled for following the rules of this special procedure, are gathered in the article 803 bis a:
1) The Public Prosecutor has to have initiated an investigation, which are the regulated in the art. 773.2 LECrim or the art. 5 of the Organic Statute of the Public Prosecution Service (in Spanish Estatuto Orgánico del Ministerio Fiscal, henceforth EOMF), or a criminal procedure has to have been initiated, in this case the usual will be the initiation of the preliminary proceedings of the Abbreviated Procedure, though there exists the possibility that the initiation of the procedure has been by means of the urgent preliminary proceedings of the Procedure for the Fast Trying of Determined Crimes, when the period granted by the article 799 has been exhausted but the investigation could have not been concluded, this special procedure can be transformed into the Abbreviated Procedure in order to end the investigation of the crime as preliminary proceedings of the Abbreviated Procedure which are nor limited by such a strict and short period of time (art. 798.2.2º LECrim). Here we have to take into account that, it should not be necessary to exhaust the urgent preliminary proceedings and to hear the parties of the procedure in order that the Examining Magistrate may transform the Procedure for the Fast Trying of Determined Crimes into Abbreviated Procedure, following the rule established in the article 760, the Examining Magistrate should be able to transform the urgent preliminary proceeding into preliminary proceedings as soon as from the investigation results such necessity.
2) Besides, the following requisites must be fulfilled:
1º The crime is punished with a fine, or with community service, or a term in prison not exceeding one year, which may be suspended in accordance with the provisions of article 80 of the Criminal Code, with or without disqualification from driving motor vehicles and motorcycles.
2º The Public Prosecutor understands that the specific applicable punishment is a fine, or community service and, as appropriate, the penalty of a disqualification from driving motor vehicles and motorcycles.
3º That there is no private prosecutor appearing in the case.
We can observe that the requisites mentioned are not as exacting as those demanded by the art. 795 for the Procedure for the Fast Trying of Determined Crimes, though the limit for the prison punishment is much lower, one year compared with five years, in both cases, we must attend to the punishment in abstract to identify the crimes which are within the range, in other words, it is the maximum tract envisaged by the Spanish Criminal Code (in Spanish Código Penal, henceforth CP) to punish such crime, without taking into account the concurring circumstances like the aggravating factors or mitigating factors that may concur, which would be the punishment in concrete asked for by the prosecutions. The criminal procedure must not be initiated by a police report (art 297 LECrim), the supposed criminal must not have been detained or notified, the crime must not be a flagrant crime, there is not a limited list of crimes, or the investigation of the crime must not be simple. Therefore, this special procedure, the Procedure for the acceptance of decree, in the practice has served to relax the demands of the Procedure for the Fast Trying of Determined Crimes, for those crimes which has a lighter punishment.
To the above we have to add one important requisite which is not demanded by the Procedure for the Fast Trying of Determined Crimes, there must not exist private or popular prosecution in the cause. This requisite inevitably leaves out all those criminal procedures which has been initiated by a lawsuit, and above all those sorts of crimes which can only be reported by means of a lawsuit, the slander and the calumny. But, putting aside these limitations, this criminal procedure can be initiated by the report of any citizen, the police, or as an investigation of the Public Prosecutor.
– Article 803 bis b. Object:
The object of the Procedure for acceptance of decree is the exercising of a criminal action in order to impose a fine, community services or the privation of the right to drive vehicles with a motor or mopeds, this expressly excludes the possibility of imposing a custodial sentence. Besides, by means of this special procedure can be obtained the redress of the damages caused to the victim of a crime o to the third harmed by it.
– Article 803 bis c. Content of the decree of proposal of punishment:
This article enumerates the content of the Public Prosecution´s proposal. We can stress the possibility of diminishing the punishment envisaged by the CP for the crime until one third, even when this supposes its reduction below the minimum tract established by the CP for the punishment of such crime.
If we compare again this special procedure with the Procedure for the Fast Trying of Determined Crimes, in this case the reduction of one third of the punishment is not automatic once the accused agreed with punishment proposed by the prosecutions, the Public Prosecution can propose this reduction having as a limit the one third of the punishment. Thereby, the Public Prosecution can propose the reduction of one fourth or of one fifth, or even cannot propose any reduction of the punishment. The reduction of the punishment has a limit, but in no case this limit is of automatic application, it can be modulated.
– Article 803 bis d. The dispatching to the Examining Court:
The Public Prosecution has the capacity of proposing the ending of the criminal procedure initiated by means of this special procedure, but it is only this, a proposal which considers that the requisites of the article 803 bis a are met and which is also motivated and accompanied with the content of the possible sentence if the this proposal is accepted by the defendant. But the Examining Magistrate is who still has the competence of authorizing such proposal made by the Public Prosecution.
– Article 803 bis e. Judicial resolution of authorization:
Upon receiving the proposal of the Public Prosecution, the Examining Magistrate should assess if the conditions of the article 803 bis a are met. If such requisites are fulfilled, it cannot deny the approval of the Public Prosecution´s proposal.
– Article 803 bis f. Notification of the judicial resolution and the subpoena of appearance in court:
Approved the Public Prosection´s decree by the Examining Magistrate, this must be notified to the investigated, in order to appear in court the appointed date and hour.
The investigated cannot appear in court, without the assistance of his lawyer, which is always mandatory to safeguard his right of defense consecrated in the art. 24 of the Spanish Constitution (in Spanish Constitución Española, henceforth CE).
– Article 803 bis g. The request of a lawyer:
In any case, if the investigated lacks financial means for being assisted by a lawyer of his confidence, he can access to the benefits of a public defender.
The request must be done at least five working days before the appointed date, otherwise, the investigated will not be beneficiary of a public defender and will lose the possibility of accepting the Public Prosecutor´s decree, and with it, the possible reduction of the punishment.
According to the article 182 of the Organic Law of the Judiciary (in Spanish Ley Orgánica del Poder Judicial, henceforth LOPJ), to the effects of a criminal procedure, are not working days, the Saturdays and Sundays, the days 24 and 31 of December, and the public holidays, either national, regionals or locals.
– Article 803 bis h. Appearance in court:
The appearance in court of the investigated assisted by a lawyer, is a mandatory requisite which must be fulfilled for the acceptance of the Public Prosecution´s decree. If the investigated does not appear in court or rejects the Public Prosecution´s decree, such decree will lose all its effectiveness.
If the investigated appears in court, but not his lawyer, the trial will be suspended according to the article 746 LECrim.
– Article 803 bis i. Transformation of the decree in a conviction:
If the investigated accepts the Public Prosecution´s proposal of punishment, the Examining Magistrate will dictate a conviction, which will not be appealable.
This competence of the Examining Magistrate of dictating a sentence in cases in which the defendant agrees with the punishment proposed by the prosecution, was attributed to the Examining Magistrates by the Organic Law 8/2002, therefore the reform of the LECrim by the Law 41/2015, did not need of another organic law in order to modify the competences of such judicial organ in the LOPJ.
El artículo 803 bis i says expressly that, against the sentence of the Examining Magistrate embodying the agreement between the prosecution and the defendant there is no appeal. We should understand that, this prohibition may be modulated in accordance with the art. 787.7 LECrim: “The sentences which express an agreement between the prosecution and the defendant only are appealable when have not respected the terms of such agreement.”
– Article 803 bis j. Ineffectiveness of the decree of proposal of punishment:
If the decree is not approved by the Examining Magistrate, or it is not accepted by the investigated, or the investigated does not appear in court the date which was notified to him, such decree will lose all his efficacy, and the Public Prosecution will not be bound by it. The criminal procedure will continue according to the rules of the Abbreviated Procedure, and the Public Prosecution will have the opportunity of classifying the crime again (art. 781 LECrim), after the decision of the Examining Magistrate of opening the intermediate stage of the criminal procedure (art. 779.1.4º LECrim).
Víctor López Camacho.
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