Section 1ª. The confession of the accused and the civil liable persons (art. 688 – 700 LECrim)
The object of a criminal process is the obtaining of a material truth, and the parties cannot transact with this truth. Thereby, each party can only contribute with the proofs in their possession to form such procedural reality, which at the end of the process will constitute the sentence condemning or acquitting the accused. However, despite this prohibition the prosecution and the defendant have some margin to bargain during the criminal process, what is this margin?, and when can such a bargain be settled? These are the questions which I am committed to respond through the following lines.
To understand first why we say that the parties of a criminal process cannot transact with its object, we have to start from the beginning of the process. It usually begins with a lawsuit or a report where the victim of a crime gives an account of some facts, though is possible that the process may commences by a report submitted by the police which has the same legal effects of a report submitted by any citizen (art. 297 of the Spanish Criminal Procedural Law, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim). In each of these cases, an Examining Magistrate will analyze the facts stated with the aim of assessing if the can be regarded as a crime according to the Spanish Penal Code (in Spanish Código Penal, henceforth CP). If the Examining Magistrate deems them as a crime, he will open an investigation, on the contrary, if the Examining Magistrate doesn’t consider them as a crime, he will not open an investigation (art. 269 and art. 313 LECrim). Once the investigation is opened the Examining Magistrate with the help of the judicial police, will try to gather all the proofs which may justify the opening of the oral trial, these proofs have to be enough as to sustain the prosecution, but the investigation cannot last forever, the LECrim has limited it to 12 months, although if the Examining Magistrate may accord successive extensions of this period up to six months if he or the parties consider that the investigation cannot be terminated within the original period granted by the law. At the end of the 12 months and its extensions, or before if the Examining Magistrate has deemed concluded the investigation, the investigation has to be closed by the Examining Magistrate (art. 324.4 LECrim). The closing of the investigation opens the intermediary phase of the criminal process, here I have to stress that I am taking for granted that the investigation has discovered evidences of a crime which has to be prosecuted according to the rules of the Ordinary Procedure, thus, all this explanation is referring to the Ordinary Procedure, although is possible that the evidences may point to a crime which has to be prosecuted according to the Abbreviated Procedure, the boundaries between both procedures are established in the art. 757 LECrim, which states that without prejudice of what is established by the special procedures the Abbreviated Procedure is to be used when the crimes prosecuted have not a punishment of more than 9 years of prison, or whatever other punishments of different nature of any amount of duration. Coming back to the intermediary phase of the Ordinary Procedure, once the Examining Magistrate closes the investigation (art. 622 LECrim), the responsibility of analyzing if the oral trial should be open passes to the Tribunal which is going to try the case, it has three different options: 1) To contradict the Examining Magistrate, and ordering the reopening of the investigation (art. 630 and 631 LECrim), 2) To dismiss the case, usually because the proofs are not enough to sustain the prosecution (art. 641 LECrim), or 3) To declare the opening of the oral trial (art. 633 LECrim).
With the declaration of the Tribunal opening of the oral trial the intermediary phase concludes, and the phase of the oral trial commences, here is given by the LECrim to the parties of the process the first opportunity to reach an agreement. The phase of the oral trial begins with the Tribunal requiring to the parties to qualify the crime, the first who has to fulfill this obligation is the prosecution (art. 649 and art. 651 LECrim) and after is the defendant who has to qualify the crime, but instead of qualifying it, the defendant has the opportunity of accepting the qualification given by the prosecution, this would end the process in such moment (art. 655 LECrim), with a sentence of conformity.
Before continuing, I have to open a parenthesis and explain something which, I think is the key to understand this limited power of disposition upon the object of the process granted to the parties. The oral trial cannot be open against an accused, if before he has not been committed for trial (art. 384 LECrim). The committal for trial is the judicial decision which states who is liable for a crime, and what are the facts committed by such person which constitutes the crime prosecuted. One of the functions of the committal for trial is guarantee the right of defense of the accused, it informs him of the facts attributed to him, and according to this, it gives the opportunity to him of proposing the practicing of the proofs during the investigation which may sustain his defense (art. 311 LECrim). To not harm the right of defense of the accused, the qualifying of the crime given by the prosecution, which we have seen in the previous paragraph, has to be within the frame established by the Examining Magistrate´s committal for trial. The prosecution in its provisional qualifying of the crime, may not include all the facts previously included by the Examining Magistrate in its committal for trial, or may not accuse all the suspects previously committed for trial by the Examining Magistrate, but never can add facts or accused in its provisional qualifying of the crime which previously has not been included in the Examining Magistrate´s committal for trial. Therefore, the parties may bargain with the object of the process, but always within the limits which has been marked the Examining Magistrate, the facts and suspects included in the committal for trial (art. 384 LECrim).
Let´s go back again to the first moment where the parties have the opportunity of achieving an agreement, the moment the defendant may accept the qualifying of the crime given by the prosecution (art. 655 LECrim). There are another limits the parties have to respect, but this time they are expressly stated in the law, for me two are the most important, the crime has to be punishable with a punishment of six years of prison by the CP, and all the defendants has to agree with the qualifying of the crime given by the prosecution. About the latter requisite we will say more later.
Nevertheless, due to the transactional nature of the agreement between the parties, is possible that the agreement between them is achieved later, once the door opened by the qualifying of the crime has been closed. The legislator mindful of the difficulties of a transaction of this nature, gives in the law a second chance to the parties to achieve an agreement, this is the opportunity given just at the beginning of the session of the oral trial (art. 688 LECrim). Although the process has ripened more, and the parties have wasted more time and efforts, the period between the qualifying of the crime and the opening of the oral trial may have served to the parties to achieve an agreement that before seemed impossible, and above all, they have yet the chance of avoiding an oral trial where more resources will be wasted and, where the practicing of the proof may be troublesome to both parties, harmful to their reputation making public aspects of their life which neither want to reveal. This is why at the beginning of the oral trial, in its first session the judge will ask the defendants if they confess liable of the crimes attributed to them by the prosecution (art. 688 LECrim). Here the principal problem arises when are more than one the accused, because the LECrim expressly exiges that in those cases all the accused have to agree with the qualifying of the crime given by the prosecution to avoid at the last moment the oral trial (art. 697 LECrim), a requisite which is not new because they are also obliged to comply with it during the qualifying of the crime (art. 655 LECrim), as we have seen above. However, in spite of the literal meaning of both articles (art. 655 and art. 697 LECrim), the practice has been lenient with their application, the tribunals seeking a simplification of the oral trial, has accepted the conformity of only part of the defendants with the prosecution, in these cases such conformity will not have an effect on the process because the oral trial still have to take place, but it will be simplified as I have hinted before. The defendants who has accepted the qualifying of the crime given by the prosecution can exercise its right to not declare, and the rest of the proof will be practiced during the oral trial without taking into account the conformity of part of the defendants. At the end of the process the tribunal would have dictated sentences in separated pieces, at the beginning of the oral trial to those who have conformed with the prosecution, and as is normal at the end of the oral trial to those defendants who have not conformed with the prosecution. The Spanish Supreme Tribunal has permitted this practice because, it doesn’t generate defenselessness to the defendants who have not conformed with the prosecution when, acting in this way the tribunal has only took into account the proof practiced during the oral trial to condemn them and not what has been admitted previously by the other defendants.
Until this point we have seen the two conformities expressly stated by the LECrim, but does it means that out of these two moments, the qualifying of the crime (art. 655 LECrim) and at the onset of the oral trial (art. 688 LECrim), the parties cannot achieve an agreement? No, because the parties can continue to bargain during the oral trial, and at the moment they achieve an agreement to renounce to the practice of more proofs. In these cases, the agreement between the parties will be expressed in their definitive qualifying of the crime (art. 732 LECrim). This method is specially interesting, when the crime prosecuted is not within the limit of the six years marked by the law, but the parties have the intention of achieving to an agreement, since in this cases the practicing of the proof during the oral trial may be reduced to the confession of the defendant and to the corroboration of such confession of a witness.
Therefore, we can conclude that the conformity of the articles 655 and 688 are not in reality a confession despite the title used by the law, they are a bargain, an agreement, since the defendant doesn’t confess anything, he just accepts a qualifying of the crime given by the prosecution with the aim of obtaining an advantage, the most visible and immediate, the sparing of the oral trial where an important amount of resources are wasted.