“In a state where the law rules, the sentences claim for being fulfilled as an implicit demand a the efficacy of the judicial protection”, this phrase is a fragment of a resolution coming from the Spanish Constitutional Court (in Spanish Tribunal Constitucional, henceforth TC), and I have chosen it, because I think it embodies all what will be said through the following lines. What would be the sense of a system of justices where the sentences were not fulfilled? None, therefore the criminal procedure is just a compound of guarantees with the aim of reaching the right decision, but such decision is what can be properly called justice, the justice is made when the sentence is executed.
The Chapter concerning the execution of the sentence, is other innovation, along the challenge of the sentence, of the Abbreviated Procedure´s regulation in comparison with that of the Ordinary Procedure. While the regulation of the latter ends commenting the cases in which the Oral Trial may be suspended, the former ends with a chapter which altogether and definitively closes the cicle of the criminal procedure, the execution of the sentence. Due to the fact that the Ordinary Procedure lacks this chapter, which is the criminal procedure supposedly destined to complete the regulation of the Abbreviated Procedure (art. 758 of the Spanish Criminal Procedure Act, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), the doubt which all of us should have is whether it will be applicable to the Ordinary Procedure as happens with the chapter concerning the challenge of the sentence. In my opinion the answer to the above question is yes, although the reason is not the same that allows the application of the chapter concerning the challenge of the sentence, for in this case there exists an article, the article 846 ter, which expressly remits to the articles 790, 791 and 792 for challenging the sentences of first instance coming from Provincial Courts, while the article which regulates the execution of the sentence for the Abbreviated Procedure, is applicable for the same reason that is applicable the art. 786.2 LECrim, which grants to the parties the right to ask for the practice of proofs during the previous audience of the oral trial, or the art. 788.5 LECrim, which bestows upon the defense the right to solicit the suspension of the oral trial when the definitive conclusions of the accusation (at. 784 LECrim), have substantial changes with respect to its provisional conclusions (art. 781 LECrim) on which was based the oral trial, simply for analogy.
After the conclusion of the oral trial, the criminal procedure ends by means of a sentence (art. 789.1 LECrim, which can be definitive if all the parties of the criminal procedure manifest its intention of not challenging it (art. 789.2 LECrim), otherwise it can be challenged according to the articles 790, 791, 792 and 846 ter LECrim. Besides, exhausted such challenge, the parties will have another opportunity of challenging the sentence, this time the sentence coming from second instance, if they comply with the requisites of the art. 847, which allows the challenge of a sentence before the Spanish Supreme Court (in Spanish Tribunal Supremo, henceforth TS). Therefore, we should understand that a sentence is definitive only, when all the parties has manifested their intention of not challenging it, when the legal period for challenging the sentence has elapsed, or when the parties has exhausted the legal appeals against a sentence. It is when, once a sentence is definitive, when the article 794 starts to be applied, article which begins stating “As soon as the sentence is definitive…”.
Does the above mean that while a sentence is not definitive a convicted in first instance cannot be jailed? No, because having not been condemned yet by a firm sentence, an investigated can be subjected to personal preventive measures as the provisional prison, and pecuniary preventive measures, either by an Examining Magistrate, or the Judge or Tribunal trying the case (art. 502 LECrim), although with the limits of the article 504 LECrim. In other words, a convicted in first instance can go to prison but for different reasons.
Notwithstanding the above, we have to take into account other circumstances which can be favorable to the convicted by firm sentence. Pronounced the sentence and having the parties manifested their intention of not challenging it, the Judge or Tribunal which has tried the case, may agree the suspension of the execution if the requisites of the article 80 of the Spanish Criminal Code (in Spanish Código Penal, henceforth CP) are fulfilled, the most important, that is reasonable to hope that the execution of the punishment is not necessary for avoiding the commission of future crimes by the convicted.
Although being definitive the sentence and being rejected the suspensión of the execution by the Judge or Tribunal which tried the case, the general rule is that a firm sentence must be complied. This is what we can draw from different norms, as the art. 117.3 of the Spanish Constitution (in Spanish Constitución Española, henceforth CE), which grants to the Judges and Tribunals the faculty of trying and executing the tried, the article 18.2 of the Organic Law of the Judicial Branch (in Spanish Ley Orgánica del Poder Judicial, henceforth LOPJ), which establishes that “the sentences will be executed in their just terms”, o the own article 794 LECrim “As soon as the sentence is definitive, it will be executed”. Although here are not exhausted the possibilities of the convicted, because ended the ordinary appeals, it has two ways to obtain the suspension of the execution of the sentence: 1) The application for amparo before the Constitutional Court, for the infringement by the Judge or Tribunal of a fundamental right (art. 14 – art. 29 CE), a scenario regulated by the Organic Law 2/1979, of October 3, of the Constitucional Court, or; 2) The application for pardon, according to the Law of June 18, 1870. Although in both cases is still ruling the general principle, for the art. 56.1 of the LO 2/1979 states that, “The application for amparo will not suspend the effects of the act or sentence challenged”, and the art. 32 of the Law of June 18, 1870, that “The application for pardon will not suspend the fulfillment of the sentence”, there exist exceptions, as the established in the art. 56.2 LO 2/1979 for the application for amparo, and the established in the art. 4.4 CP for the application for pardon.
The article 56.2 LO 2/1979 states that, “when the execution of the act or sentence may produce a harm to the appellant which may make to the amparo to lose its goal, the Court Chamber, or the Section in the case of the art. 52.2, the Court or in consequence of the request of the appellant, may agree the suspension, total or partial, of its effects, if the suspension provoke neither a grave perturbation to protected constitutional interests, nor to the fundamental rights or liberties of other person.”
On the other hand, the article 4 of the CP states that, “if there exists the application for pardon, and the Judge or Tribunal has appreciated in a motivated resolution that on account of the fulfillment of the punishment may result violated the right to a procedure without wrongful delays, it will suspend the execution of the punishment until is not resolved the application for pardon”. It continues, “Also the Judge or Tribunal may suspend the execution of the punishment, while the application for pardon is not resolve, if the sentence when executed, the goal of the pardon may be frustrated.”
Despite the existence of these two exceptions, the Judges and Tribunal have been reluctant at the hour of applying them, and have established additional requisites, for example, the resolution of the Constitutional Court 35/2017 of February, 27, regarding the application of amparo, stated that the suspension of the punishment is only possible when it consists in a privation of liberty, no when it is of pecuniary character and that prior to the suspension of the punishment the Constitutional Court has to take into account the gravity of the facts tried, the duration of the punishment or risk of eluding the action of the justice. An the resolution of the Madrid Provincial Court 5578/2021, regarding the application for pardon, stated that, the Judge or Tribunal can only agree the suspension if the report elaborated by them with the aim of informing the Government, who is in reality who has the power of granting the pardon (art. 27 of the Law of June 18, 1870), is in favour of it.
At last, talking about the article 794, it offers for the execution of the sentence two rules:
- The first: when the sentence has not fixed a compensation, any of the parties may claim, during the execution of the sentence, the practice of the proofs which may help to its determination. This case, should not be confounded with which is stablished in the article 219 of the Spanish Civil Procedure Act (in Spanish Ley de Enjuiciamiento Civil, henceforth LEC), which expressly obliges to the sentences to establish the exact amount of the compensation or at least to fix the basis for its liquidation. The LEC is only applicable in the criminal procedure when there is not an article in the LECrim regulating an issue (art. 4 LEC), and this case the article 788.1 and the art. 794.1 expressly regulate how the compensation can be determined in the sentence.
- The second: In the cases where the sentence has established the punishment of privation of the right to drive vehicles with motor, the Tribunal will proceed to the immediate withdrawal of the driving licence. This expressly excludes the possibility of asking for the suspension of this kind of punishments.
Víctor López Camacho.
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