After practicing all the relevant proofs which may sustain the opening of the oral trial phase, in the ordinary procedure we arrive to the named intermediary phase of the procedure, the event which marks this transition is the decision of termination of the summary. But, how we have achieved this point of the procedure? and what are the consequences of this achievement? These two questions are what I will try to answer through the following lines.
The first thing we have to take into account is how was initiated the procedure. There exist three possibilities: 1) It can be begun through a report to the police, a judge, or a public prosecutor
fiscal (art. 264 of the Spanish Criminal Procedural Law, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), 2) I can be started through a suit (art. 270 LECrim), or 3) The procedure can be commenced by the police, when it is who denounces a fact to a judge. In the two first cases, the procedure will be always under the control of the Examining Magistrate (art. 308 LECrim), while in the latter, there will be a phase of the investigation where the police will make its own investigation and, once the it have enough proofs to believe in the existence of a crime, it must communicate it to the judicial authority or to the Attorney General´s office, as soon as possible (art. 284 and art. 295 LECrim).
Either of these options would provoke the commencement of the criminal procedure, but no always a report or a suit will suppose the beginning of a criminal procedure. When a Examining Magistrate is informed of the commission of a crime through a report or a suit, he peruses carefully the facts which it contains to assess if the facts constitute a crime punished according to the Spanish Criminal Code (in Spanish Código Penal, henceforth CP), if they are regarded as crimes he will admit the report or suit (art. 269 and art. 313 LECrim). There is another question that he has to solve before continuing, the Examining Magistrate has to decide what will be the procedure chosen to try the crimes reported (though his decision can be changed during the summary if from the proofs gathered, has resulted that the appropriate procedure is other), here he has a broad range of courses, the three most important: 1) The ordinary procedure (crimes which surpass the threshold provided by the art. 757 LECrim), which is the procedure to try the gravest crimes, 2) The abbreviate procedure, which tries the crimes included in the scope of the art. 757 LECrim, and 3) The procedure to try minor crimes (art. 962 – art. 977 LECrim). Here we are talking of the ordinary procedure, the intermediary phase which is regulated from the art. 622 to the art. 633 is aimed only to such procedure. But, before starting to talk about it let’s see more how is this previous phase, the summary, where the proofs supporting the accusation are gathered.
Therefore up to this point, the judge knows two things, the report or suit contains facts which are crimes, and that they are tried according to the ordinary procedure. At this moment he takes the reigns of the investigation, and proceeds to authorize or to order the practice of the investigations he deems appropriate to find out the responsibility of the crime, here are also possibilities: 1) The report or crime points out the possible author or authors, or 2) The report or suit, only stated facts without assigning its responsibility to anyone. In the former case, the judge can choose between communicate to him the report or suit, giving to him the opportunity to exercise his rights of defense (art. 118, and art. 384 LECrim), or to carry out the investigation in secrecy (art. 302 LECrim) which will avoid the interference of the suspect in the investigation. In the latter case, the judge will carry out the investigation with the aim to find the suspect, and as in the former case, once the suspect is found he will have to decide if to communicate to him the investigation which is carried out against him, or not. In any case, the secret of the summary must end ten days before the ending of the investigation, to allow the suspect the exercise of his rights of defense, which are fundamental rights according to the Spanish Constitution (art. 24.2 of the Spanish Constitution, henceforth CE). Of these rights of defense, we can highlight the right to be assisted by a lawyer from the beginning of the investigation, or the right to know the proofs gathered against him during the investigation. The moment the investigation is known by the suspect are some decisions which should be taken by the judge, he has to decide if any preventive measure must be applied on the suspect (provisional prison, provisional liberty, bail or seizure of his goods) and he has to announce the committal for trial. The former binds the suspect and its goods to the result of the procedure, and the latter is essential, it delimits the ambit of the procedure, aiming it against a determined person or persons and for concrete facts. To end with the summary, we cannot forget to mention the limit stablished in the art. 324 LECrim, according to it, the investigation cannot last more than 12 months from its beginning (though are allowed successive extensions of up to six months of this period), and also this article in its section 4 states that the summary will end once has been gathered enough proofs to open the oral phase of the trial, or once the its maximum period or extensions have ended. This is the moment when the intermediary phase of the procedure starts.
In the intermediary phase, the Tribunal to which corresponds to try (to know and to sentence) the matter, decides if to open the trial or to dismiss the case (art. 632 LECrim). Through this decision, the Tribunal revises the provisional and formal accusation expressed in the committal for trial pronounced by the Examining Magistrate. Such Tribunal has to listen to the parties about the completion of the summary, and about the dismissal or the opening of the trial (art. 627 LECrim).
We can summarize the intermediary phase of the article 622 and following, according to these points:
1.- Ended the summary (art. 324.4 LECrim), the Examining Magistrate will pronounce a resolution which states the completion of the summary (art. 622 LECrim).
2.- The parties of the process could present a writing being satisfied with the resolution ending the summary, or ask the practicing of more proofs during the summary (art. 627 LECrim). If the parties are satisfied with the resolution ending the summary, they can ask what they consider with respect the opening of the oral phase of the trial, or the dismissal of the case (art. 627 LECrim).
3.- The Tribunal which will try the case, will pronounce a resolution revoking or confirming the resolution which states the completion of the summary (art. 630 LECrim).
4.- If it is revoked, the Tribunal will return the process to the Examining Magistrate, pointing out the proofs which have to be practiced.
5.- If it is confirmed, the Tribunal will resolve about the request of opening of the oral trial or the dismissal of the case (art. 632 LECrim)
Although the last summary might have been a good end, we haven’t talked yet about the possibility opened by the art. 624 and art. 625 LECrim. Theses article say that, if from the proofs obtained the crime is considered a fault, the process should be remitted by the Examining Magistrate to other judge who will be the competent to try this fault. This exception now has no sense. First, now the CP doesn’t distinguish between crimes and faults, the distinction is between crimes and minor crimes (art. 13 CP). Second, now who has the competence to try minor crimes is the Examining Magistrate (art. 14.1 LECrim). And third, is difficult to confound a crime which has to be tried according to the ordinary procedure (used for the gravest crimes), with a crime which has to be tried according to the procedure for minor crimes. Nevertheless, it is true that the LECrim also establishes a procedure to change the abbreviate procedure for the procedure to try minor crimes in its article 779.1.2º, although the procedure to try minor crimes is characterized by the absence of a summary.
Hence the intermediary phase of the ordinary procedure has the aim of concluding the summary, although the parties has the possibility of asking for new proofs. Nevertheless, the end of the summary doesn’t suppose the opening of the oral trial, because the Tribunal which should try the case, may opt for his dismissal before it happens. And as an important feature, we can stress the participation of two organs in this phase, the Examining Magistrate who completed the summary, and the Tribunal which will try the case. The former has the key to close the summary, the latter has the key to open the trial.