According to the Spanish Constitution (henceforth CE), there are three sorts of prosecution: 1) the Attorney\’s General Office (art. 124 CE), 2) the Public Prosecution (art. 125 CE), and 3) the Private Prosecution (art. 24.1 CE). The Attorney’s General Office is who has in reality the burden of the prosecution, he is obliged by the art. 124 CE to promote the action of the justice in defense of the legality, the rights fo the citizens and the public interest protected by the law. The other two parties, the Public Prosecution and the Private Prosecution, are not obliged by any article of any law to exercise the prosecution, for them it is not an obligation, but a right. This has to be connected with another idea, there are: 1) Public Crimes, which can be prosecuted by the three parties we have seen above, 2) Semi-Public Crimes, which can only be reported by those who have suffered the crime, but once the report have been submitted can be prosecuted by the Attorney’s General Office, and 3) Private Crimes, which only allow the Private Prosecution (the slander and the defamation). Until this point we have learned who may be the prosecution in a criminal process.
Now we will learn what is the qualification of the crime, and why I have felt compelled to start telling you the possible parties which may be the prosecution. A criminal process starts with a report or a suit, if it is admitted (art. 269 and art. 313 of the Spanish Criminal Procedural Law, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) because the facts recounted are regarded as crimes according to the Spanish Criminal Code (in Spanish Código Penal, henceforth CP), an investigation is opened. The crimes investigated mainly can be of two kinds: 1) A crime which must be tried following the rules of the Ordinary Procedure, or 2) A crime which must be tried following the rules of the Abbreviated Procedure. The former is the procedure used to try the gravest crimes, and the latter those crimes not included in the Ordinary Procedure and which are not tried according to any of the special procedures of the LECrim, the boundary between the two procedures is found in the art. 757 LECrim, which establishes that the Abbreviated Procedure will be applied to try those crimes punished with a prison sentence of no more of 9 years, or to whatever other penalties of different nature with any amount or duration. This difference is important because previous to the qualification of the crime, there is an intermediary phase, and who has the keys to open the oral trial depends on the procedure. In the Ordinary Procedure, who opens the oral trial is the Tribunal in charge of trying the case (art. 633 LECrim), and in the Abbreviate Procedure is the examining magistrate (art. 779.4 and art. 783 LECrim), who in both procedures is in charge of carrying out the investigation. The Tribunal and the examining magistrate, before deciding the opening of the oral trial must consider the dismissal of the case, or to continue with the investigation, once these two options are dismissed is when the opening of the oral trial takes place.
The qualification of the crime which I am going to explain now, is part of the Ordinary Procedure, this is why I have explained the distinction between both procedures before starting with the proper explanation. Then the Tribunal orders the opening of the oral trial at the end of the investigation when the dismissal of the case or the continuation of the investigation are dismissed (art. 633 LECrim), this decisión marks the opening of the phase of the oral trial. Notwithstanding, the phase of the oral trial properly starts with the qualification of the crime, which is carry out by the parties of the procedure (art. 650 LECrim). This is because the Tribunal which try the crime has a neutral position, on the contrary the parties qualifying the crime are who sustain the prosecution through the delimitation of the objet of the procedure, an object which is compounded by the facts tried, and the persons to whom are attributed. Nevertheless we cannot forget that, in the Ordinary Procedure the facts and the suspects, are fixed before with the committal for trial (art. 384 LECrim), as soon as the examining magistrate has evidences pointing out to a person he has to assign to him the status of accused, and as accused he automatically will have, between other rights, the right to choose a lawyer and to know the charges against him. This, the committal for trial, in reality is the judicial decision which fixes the object of the trial, because the parties in their writings qualifying the crime tried will have to adjust their qualification to the prior committal for trial. The parties can decide not to accuse a person who appear in the committal for trial, or exclude from their provisional writings of qualification some facts included in the committal for trial, but they cannot accuse a person who previously has not been accused by the examining magistrate or to include facts in their provisional writings of qualification which has not been previously included in the committal for trial. Besides, we have to take into account that the committal for trial is a provisional judicial decision, it can vary with the course of the investigation, being definitive only the moment in which the investigation is closed and is opened the oral trial (art. 633 LECrim) or dismissed the case (art. 632 LECrim). Here we can link what we have seen at the beginning, the Attorney´s General office always will have to be the prosecution in a procedure, it is obliged by the law (art. 124 CE), but the Public Prosecution (art. 101 LECrim) and the Private Prosecution (art. 109 bis and art. 110) should be constituted as parties before the stage of the qualification of the crime.
With the provisional writing of qualification of the crime, the parties should also propose the proofs which they regard as necessaries to supports their claims during the oral trial (art. 656 LECrim), because the only proofs with the capacity of destroying the presumption of innocence of the accused (art. 24.2 CE), are those practiced during the ora trial. Notwithstanding, the above affirmation has an exception, the proofs practiced during the investigation which justify the opening of the oral trial, and which are of impossible repetition during it, for example a test measuring the level of alcohol in the blood of someone who has committed a crime with his car. Indeed, the Spanish jurisprudence distinguishes two kind of proofs of impossible repetition during the trial, those which are practiced before the examining magistrate like the testimonies of the art. 448 LECrim, and those which are practiced before the Tribunal trying the case as the included in the art. 657.3, the former needs to be repeated during the oral trial through the mechanism of the art. 730 LECrim, the latter not, because it has already been practiced before the Tribunal trying the case. The Tribunal is not obliged to admit all the proofs proposed by the parties, although the right to use the appropriate means of proof is a fundamental right according to the CE, is may be limited, the art. 659 following the line marked by the art. 24.2 of the CE, authorize the Tribunal to dismiss those proofs which are not linked with the object of the process, and therefore are deemed by the Tribunal useless (the same happens during the summary in the art. 311). The proofs dismissed by the Tribunal can be solicited again by the parties during the appeal in accordance with the article 846 bis a). and following, but to have access to this recourse they previously have to have formulated a complaint with respect to the proof dismissed (art. 659 LECrim). Now we should ask to ourselves, is possible to solicit a proof out of the provisional writing of qualification? And the answers is yes, although the mechanism is established in the art. 786 LECrim only to the Abbreviated Procedure, the Spanish jurisprudence has understood it applicable also to the Ordinary Procedure, hence in the audience preceding to the oral trial the parties should have the opportunity to ask for new proofs to the Tribunal, though complying with some requisites: 1) it has to be motivated, 2) it cannot be considered a procedural fraud, and 3) it cannot be an obstacle to the principles of contradiction and equality, in guarantee of the prohibition of all defenselessness.
As we have seen, after the provisional writing of qualification is when the practicing of the proofs takes place during the oral trial. The results of the practice of these proofs may altere, probably will alter, some of the conclusions contained in the provisional writing of qualification, this is remedied by the art. 732 which regulates the definitive writing of qualification. The latter links its content with the content of the Tribunal´s sentence, thus the sentence cannot contain facts or accused which are not previously contained in the definitive writing of qualification, indeed the sentence can only condemn by a crime different from the solicited from the prosecution, if they are homogeneous and the crime used by the sentence has a punishment less harsh than the solicited by the prosecution. But, how profound can be the changes in the definitive writing of qualification? The can altere the provisional writing respecting the essence of the prosecution, we come back again to the same, the definitive writing of qualification cannot contain facts or accused which previously were not facts or accused in the provisional writing of qualification, which at the same time, have to have been facts of accused contained in the committal for trial. In any case, the LECrim to avoid any defenselessness of the defendant, has regulated in its art. 788.5 the possibility of suspending the trial if it is asked by the defendant to the Tribunal as consequence of the changes made by the prosecution in its definitive writing of accusation, it opens to the defendant the door to the practice of new proofs or the adequate preparation of its statements.
Summing up, after the opening of the phase of the oral trial the parties should qualify the crime object of the trial, this provisional writing of qualification has to be within the object previously delimitated by the committal for trial. Besides, the provisional writing of qualification, will serve as the basic of the definitive writing of qualification, which at the end is the writing sustaining the prosecution and links its content with the content of the Tribunal´s sentence. The provisional writing of qualification also serves to the parties to propose the proofs which will be practiced during the oral trial, though the Spanish jurisprudence also admits proofs proposed according to the article 786 LECrim, in the preliminary audience preceding the oral trial.