A judge, as all human beings, may be the object of blackmail or extortion, a judge, as all human beings, may be biased, a racist, a fascist, a misogynist. In these cases, the procedure established in the the Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) to change a judge when he is linked with the object or a party of the process (art. 52 to art. 83 LECrim) is not enough to assure his impartiality, because the reasons according to which he is being biased against one of the parties are hidden, no one can know what a judge is thinking, on the contrary a paper manifesting an interest of the judge with the object of the cause can always be showed, at least if you have access to this document. Thereby, in the former cases, the only way to assure the fair application of the justice will be an oral trial where third parties alien to the criminal procedure, as the media, can observe from a neutral point of view the development of the practice of the proof, which will serve as the basis of the future sentence (art. 741 LECrim).
The publicity of the procedure is a fundamental right according to the Spanish Constitution (CE), it is a right which forms part of a more general right, the right to a process with all the guarantees (art. 24.2 CE). Nevertheless, as the own CE recognized in its art. 120.1, such a right may have exceptions established in the law. The first exception, is regarding the moment when the publicity of the procedure starts, since the art. 301 LECrim explicitly establishes that the investigation previous to the oral trial has not a public character, although is also true, that the parties of the procedure have the right of knowing the advances of the investigation and of intervening in it, however, this right is limited to the parties of the process, and the art. 302 has a special provision foreseeing the limiting of this right too, if the putting into the knowledge of the parties the investigation may contravene the efficacy of it. Therefore, during the summary the general rule is that the investigation is not public, except for the parties of the process, and only if this information cannot altere the investigation. This limitation ends when the Tribunal orders the opening of the oral trial (art. 301, art. 649 and art. 680 LECrim), reached this moment of the process the general rule changes, and the process is public, though in this case we have also exceptions.
The point where the process becomes public is when, the Tribunal opens the phase of the oral trial and orders the parties to provisionally qualify the crime object of investigation (art. 649 LECrim). This has a clear purpose, giving access to the oral trial to the media and all those who have and interest in the outcome of the trial, the practice of the proof which will serve as the basis of the future sentence is rendered public, this allow to third parties alien to the process (the parties and its object) to assess the result of such proofs along the Judge or Tribunal. In other words, if the Judge or Tribunal dictates a sentence contrary to all reason or logic, he or it will not be the only one who may be aware of the mistake, because more eyes and ears will have surrounded the practice of the proof. A public oral trial, has the aim of protecting the parties of a justice alien to the public control, and of maintaining the confidence of the people in the Tribunals and its smooth running. This principle is essential for achieving a process with all the guarantees, the essence of a democratic State
Nevertheless, as other rights which appear in the CE, the right to a public process is not an absolute right, it may be limited by the law (art. 53.1 and art. 81.1 CE) when it enters into conflict with other rights recognized by the CE. Mainly, the right to a public process will affect to the right to the intimacy of the victim (art. 18.1 CE), since during the oral trial may arise questions related with the deeper of his personality, as his sexual orientation or practices. Now let’s turn our attention to the articles of the LECrim which regulate the publicity of the oral trial. The art. 680 contained the general rule we have seen above, the oral trial is an act public, and the articles 681 and 682 state limitations to that general rule.
That the oral trial has to be public (art. 680 LECrim), is one of the requisites which the practice of the proof during the oral trial has to comply for making it capable of destroying the presumption of innocence of the accused. The other three are: 1) The Tribunal which will dictate the sentence has to be present during the practice, 2) The practice of the proof has to be oral, and 3) The prosecution and the defendant has to have the same opportunities of practicing the proof. We cannot forget that the only proof which can destroy the presumption of innocence of the accused is the proof practiced during the oral trial, except some cases, as the interrogation of a witness during the phase of investigation when is foreseen that he would not attend the oral trial (art. 448 and art. 449 LECrim).
The art. 681 established limitations to the right of a public process and this are aimed to all those who may attend the oral trial, chiefly that the oral trial should take place without public when the interests of the victim of the crime predominate. Here the Tribunal should ponder the right to a process with all the guarantees (art. 24.2 CE) of the defendant, putted in relation to the right of the intimacy of the victim of the crime (art. 18.1 CE).
The limitations of the art. 682 have the particularity of affecting not only to the right to a process with all the guarantees (art. 24.2 CE) of the defendant, but also to the right to communicate and to receive freely information (art. 20.1 CE), of the media, since the art. 682 is exclusively dedicated to regulate the presence of the media during the oral trial. Notwithstanding, the terms are similar to those used by the art. 681, the media will be excluded of the sessions of the oral trial, when the right to the intimacy of the victim of the crime is considered more important by the Tribunal than the right to a free press.
Therefore, we can conclude that the right to a public process is not an absolute right, it only starts once the oral trial is opened, and even during these phase it may suffer restrictions when above all it enters into collision with the right to the intimacy of the victim of the crime. Nevertheless, the general rule should be a public oral trial and the exceptions to this general rule should be carefully applied, since a public trial guarantees the unbiased application of the justice through making accessible the practicing of the proof to all those who have an interest in it, and not only to the judge or Tribunal which will try the case.