When a procedure is opened as consequence of a report or a suit, it may end before a sentence declares the accused guilty or acquitted, since the Criminal Procedure has different phases and in each of these phases are causes which may provoke its ending. The dismissal of the procedure, is a judicial resolution based in one of such causes, and which may be adopted during a concrete moment of the procedure, through it, the procedure is closed, though not all the dismissals are the same and have the same effects.
Let´s try to explain how we can arrive to the dismissal of a case. A procedure starts through a report or a suit, which previously to the commencement of the procedure should be studied by the examining magistrate, who will assess if the facts recounted in the suit or report are crimes according to the Spanish Penal Code (in Spanish Código Penal, henceforth CP). If such facts may constitute a crime or crimes the examining magistrate is obliged to start a investigation (art. 308 of the Spanish Criminal Procedural Law, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), on the contrary when the facts recounted are not a crime, he must automatically end the procedure (art. 269 and art. 313 LECrim). Therefore, in the former case, a procedure is initiated, while in the latter it really never begins, as we will see later with more detail, this is the reason of why we can’t talk of a dismissal in this part of the procedure. Once the report or suit passes this first filter an investigation begins, which has the aim of obtaining the proofs of the crime and the evidences which assign its commission to a determined person (art. 299 and art. 777.1 LECrim), during this investigation both parties, the prosecution and the defendant, may solicit to the examining magistrate the practice of all the proofs which may help to sustain their pretensions, and the examining magistrate should admit the practice of these proofs, unless he considers them useless or harmful to the procedure (art. 311 LECrim). This phase where the proofs and evidences are gathered cannot last forever, the examining magistrate must conclude the investigation within 12 months from its beginning (art. 324.1 LECrim), it means that the investigation can last less but in no case more, although is also true, that this initial period of 12 months may be extended by periods of up to 6 months if such extensions are agreed before the original period of 12 months has concluded. At the end of the 12 months or its extensions, the examining magistrate must close the investigation (art. 324.4 LECrim), nevertheless, the examining magistrate is not obliged by the law to exhaust the 12 months, he can decide the closing of the investigation as soon as from the proofs and evidences gathered from the investigation are enough to take the following decision, the opening of the oral trial.
Who has the keys to open the oral trial depends on the sort of procedure, which will be determined by the kind of crimes investigated. Two are the most important procedures because according to them are tried the majority of crimes contained in the CP, the Ordinary Procedure which is the procedure to try the gravest crimes, and the Abbreviated Procedure which is the procedure to try those crimes which are not considered minor crimes (art. 13 CP), the boundary dividing both procedures is established in the art. 757 LECrim, the Abbreviated Procedure will be applied to the indictment of the crimes punished with a penalty of privation of liberty not superior to 9 years, or to the kind of penalties, whatever its nature, of any amount or duration. In the Ordinary Procedure who has the keys to open the oral trial is the Tribunal which will try the case (art. 630 and art. 632 LECrim), but who has the keys to close the investigation is the examining magistrate (art. 622 LECrim), once the examining magistrate closes the investigation the Tribunal should decide whether the investigation was properly closed or instead should be open again to the practice of more proofs, and if was properly closed, whether the dismissal of the case or the opening of the oral trial. On the contrary, in the Abbreviated Procedure who has the keys to close the investigation and to open the trial is the same, both keys are in the possession of the examining magistrate. He is who will close the summary and who will decide between one of the options of the art. 779.1 LECrim, the most important, the opening of the oral trial (art. 779.1.4º LECrim) or the dismissal of the case (art. 779.1.1º LECrim), and again he will have the opportunity of dismissing the case if the prosecution and the Attorney General´s office solicit its dismissal (art. 782 LECrim), or if the prosecution and the Attorney General´s office solicit the opening of the oral trial when he considers at the view of the charges presented by them that the investigation finally has had as result the event described in the art. 637.2 LECrim (a kind of dismissal we will in a moment), or that the investigation has not produce enough evidences against the accused (art. 783 LECrim).
Now we know, how we arrive to the dismissal of a case, but we haven’t see yet what kinds of dismissal we have according to the Spanish Law. There are two kinds of dismissal, the acquittal on all charges and the stay of execution. The former is regulated in the article 637 LECrim, it has the same effects of a verdict of not guilty, it has effects of res judicata, it means that there cannot be now or in the future other Criminal Procedure about the same facts and with respect the same persons. As we see, it has very important effects over the procedure, and the decision declaring the acquittal on all charges should be carefully and duly motivated. The latter is regulated in the art. 641 LECrim, and its effects over the procedure are more limited. The stay of execution has no effects of res judicata, it supposes the early termination of the procedure as consequence of the lack of enough evidences which may sustain the prosecution during the phase of the oral trial. Notwithstanding the above, it does not mean that it has no effects over the procedure, since the procedure cannot be open again unless new proofs or evidences arise supporting the necessity of a trial.
A question which may arise is, can we report or sue again for the same facts that before were dismissed? And the answer is no, if the judicial decision was the stay of execution, what we have to do is to communicate to the Tribunal or examining magistrate the new proofs or evidences in our possessions which may support the prosecution. And if the judicial decision was the acquittal on all charges, we already know, that it has effects of res judicata.
Therefore, the dismissal of a case is a decision which only can be made once the procedure have been before initiated through the admission of a report or a suit, and after the practice of the essential proofs have been carried out. There are two kinds of dismissal, the acquittal on all charges and the stay of execution, the former with the effect of res judicata, the latter closes the case unless new proofs or evidences appear.