The oral trial supposes the practice of the proof, and depending of the result of this practice of the proof the Tribunal will consider the accused guilty or acquit him. Then, during the oral trial the Tribunal will take knowledge of the object of the process, in a trial where the parties will spend money, time, and all the resources they have to win. But, imagine that after all this effort, the tribunal was not the competent to trial the case, or the crime tried has prescribed, or the Tribunal forgot to solicit an authorization to try a special person. All the resources invested would have been wasted. To avoid all these undesirable inconveniences, the legislator has regulated the articles of previos pronouncement.
First of all, let’s see in what process we are, and why. The articles which I will comment are part of the Ordinary Procedure, a procedure used to try the gravest crimes. When a procedure begins through a report or a lawsuit, an investigation starts (art. 308 and art. 299 LECrim of the Spanish Criminal Procedural Law, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) if the facts recounted in them may be considered a crime according to the Spanish Criminal Code (in Spanish Código Penal, henceforth CP), if not they will be dismissed (art. 269 and art. 313). The judge at first glance will assess whether the crimes recounted may be tried following the rules of the Ordinary Procedure, nevertheless will be the development of the investigation what will confirm this first assessment. Therefore, if as result of the investigation the crimes are graver than those included in the scope of the art. 757 LECrim, the procedure chosen by the Examining Magistrate will be the Ordinary Procedure. The art. 757 is important, because establishes the boundaries between the Ordinary Procedure and the Abbreviated Procedure, it stated that without prejudice of the regulated for the special process, the Abbreviated Procedure will be applied to try the crimes punished with up to 9 years of imprisonment, or to whatever another punishments of different nature and of any amount or duration. At the conclusion of the investigation (art. 324.4 LECrim), the Tribunal in charge of trying the crime investigated should decide whether the evidences gathered during the investigation are enough to open the oral trial, because it has three options:
1) If the maximum period granted by the LECrim to carry out the investigation has not been exhausted, it can order the continuation of the investigation when it deems that there are necessaries proofs which has not been practiced yet (art. 631 LECrim).
2) If the proofs gathered are not enough, and the investigation has been exhausted, the Tribunal has to dismiss the cause (art. 637 and art. 641 LECrim).
3) The Tribunal must order the opening of the oral trial, when it regards that there are enough proofs to sustain the accusation during the oral trial (633 LECrim).
Thereby, the oral trial is opened. The next step is to give the opportunity to the parties of the process of qualifying the crime investigated (art. 650 LECrim), since the Tribunal has a neutral role, although the qualification of the parties should be within the boundaries of the committal for trial (art. 384 LECrim), previously dictated by the Examining Magistrate, in it mainly is established the facts and the persons liable as consequence of them, this is the content which should be respected by the parties in their writings qualifying the crime. Nevertheless, the parties may choose another path, and within the first three days given to them to qualify the crime, to propose to the Tribunal some of the exceptions contained in the art. 666 LECrim. These exceptions are known also as articles of previous pronouncement, which are aimed to dispel the doubts about the existence of any cause which may prevent the Tribunal from trying the case.
The exceptions are five:
1) The lack of competence of the Tribunal.
2) Res judicata.
3) The prescription of the crime.
4) The amnesty and pardon.
5) The lack of administrative authorization to try when is necessary according to the Constitution or the special laws.
Until this point we have seen how we have arrived to the Ordinary Procedure, and the moment when the exceptions of the art. 666 LECrim may be propose to the Tribunal. Let’s see know the scope of each of these exceptions.
1.- The lack of competence of the Tribunal:
All the doubts concerning this lack of competence must be cleared up before the commencement of the oral trial. This is deduced from the art. 678, which stated that the exceptions of the art. 666 LECrim can be repeated during the oral trial, as means of defense, except the lack of competence of the Tribunal. The Spanish jurisprudence has supported this restriction too.
The decision admitting the lack of competence can be appealed (art. 217 LECrim), on the contrary against the decision dismissing it, there is no recourse, except the recourse against the sentence which ended the procedure (art. 846 bis a y ss.).
2.- Res judicata:
The res judicata has to be linked with the principle non bis in idem, by which a person cannot be tried two times for the same facts. The principle non bis in idem is not expressly established in any of the articles of the Spanish Constitution (henceforth CE), despite this absence, the Spanish jurisprudence has understood it included in the principle of legality (art. 25 CE), and in the right to the effective protection of the Tribunals (art. 24.1 CE), both of them fundamental rights.
The principle non bis in idem in the Criminal Procedure is delimited by two aspects, the facts and the persons previously tried. The facts will be fixed by the historic account given in the previous process and the persons, the individual who was accused and condemned (or acquitted) in the previous process too.
The effect of res judicata arises from firm sentences, which are those which has no recourse, and the acquittal on all charges (art. 637 LECrim). Therefore, the procedures which has finished by firm sentence or acquittal on all charges, cannot be tried again as consequence the principle non bis in idem, which we have seen above.
3) The prescription of the crime:
The prescription of the crime is a policy which try to avoid the use of the justice to ends not expressly stated in the Constitution, as the extortion or blackmailing. After passing the time established in the art. 131 CP, the legislator has considered that the punishment is not necessary to reeducate the criminal and reintegrate him into society.
The prescription starts to run, when the crime has been completed, although in a chain of crimes linked between them by the same goal, the prescription will start to run when the last crime forming the chain has been completed (art. 132 CP). For example, if a dealer is everyday selling drug in the street, the prescription would start to run, when he has sold drug for the last time. Nevertheless, the prescription of a crime will be interrupted the moment the procedure is directed against the suspect of the crime, leaving the time elapsed without effect, and starting from the beginning when the procedure is interrupted or ended without a sentence. The procedure will be deemed as directed against a suspect, when the committal for trial (art. 384 LECrim) has been dictated by the Examining Magistrate, or previously when in the report or lawsuit appears the name of a person or some feature which can serve to identify him.
The prescription of the crime may be appreciated by the Tribunal or the Examining Magistrate in any moment of the procedure (art. 19 LECrim) too.
4) The amnesty and pardon:
The amnesty is a pardon, but anticipated and general, completely extinguishing the punishment and all its effects. Nowadays it is forbidden by the article 62.i) of the Spanish Constitution, although previously in Spain there are examples related with political crimes, like the granted on October 31, 1968, on September 23, 1971, or on November 25, 1975.
And the pardon, is regulated in the Law of pardon. It has two phases, one in which is the Government who decides to whom and how is granted, and another in which the Tribunal trying the case, applies it.
5.- The lack of administrative authorization to try when is necessary according to the Constitution or the special laws:
The art. 71 of the Spanish Constitution grants two special right to the members of parliament, the inviolability which supposes their irresponsibility for the opinions or votes emitted during their parliamentary function. And the immunity, a mechanism of protection against any detention or prosecution. The administrative authorization is referring to the latter.
According to the article 71.2 of the Spanish Constitution before committing for trial a parliamentary, the Examining Magistrate will need the authorization the parliament.
This authorization is only required when the process has started after the parliamentary has acquired this condition of member of the parliament. If the process has started before, and he has already been committed for trial, the Examining Magistrate only has to inform the parliament of this circumstance (art. 751 LECrim).
Therefore, to conclude this writing, we can regard the articles of precious pronouncement, as the last obstacles which the parties and the Tribunal will have to solve for obtaining a sentence which knows about the object of the process.