The Abbreviated Procedure was created at the end of the eighties, in order to adapt the Spanish legislation to the European and Spanish jurisprudence. More concretely, the Spanish Constitutional Tribunal´s sentence of July, 12, 1988, established the principle “who conducts the preliminary investigation cannot try”, this supposed the reform of the criminal procedures whose trying was the Examining Magistrates´ competence. Such reform was carried out through the Organic Law 7/1988, of December, 28, whose preamble commences stating that the Spanish Constitutional Tribunal and the European Court of Human Rights have regarded that the impartiality of the judge is incompatible or is compromised with its actuation as Examining Magistrate. Besides the fulfillment of the requisites coming from the European and Spanish tribunals, the Abbreviated Procedure owes its name to the aim of simplifying the Ordinary Procedure when the crimes tried are within a range, which is established by the article 757 of the Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), this is clearly noticeable during the intermediary stage of the Abbreviated Procedure, where the Examining Magistrate assumes the functions of closing the investigation and opening the oral trial or dismissing the cause, when in the Ordinary Procedure the former is carried out by the Examining Magistrate, but the latter by Tribunal which will try the cause.
Although, it is situated along the rest of the special procedures in the Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), in reality it does not deserve this classification since the Abbreviated Procedure is utilized to try the majority of crimes committed. If we read the Office of the Public Prosecutor´s Circular nº 1/1989 on the Abbreviated Procedure of December, 28, (henceforth, the Circular nº 1/1989) it states that “although the new procedure is included in the Book IV of the LECrim, dedicated to the special procedures, it cannot be properly classified as special, for it is a procedure which will be the procedure of more general application, since the majority of the crimes will be tried according to its rules. It is rather a variety of the Ordinary Procedure…”
The article 757:
As we have stated above, the article which establishes the scope of the Abbreviated Procedure is the art. 757, it states that without prejudice to which is established to the special procedures, the Abbreviated Procedure will be applied to the trial of the crimes punished with no more than nine years of imprisonment, or any other punishments of different nature, and of any amount or duration. Therefore, the crimes punished with more than nine years in prison will be tried according to the rules of the Ordinary Procedure, a procedure which does not have an article as the article 757 defining its scope. On the other hand, there are two special procedures which serve to try crimes punished less severely, the Procedure to the Fast Trial of Determined Crimes, which serve to try crimes punished with less than fives years in prison when are fulfilled the rest of the requisites of the article 795 LECrim, and the Procedure to the Trial of Offences to try facts which may be regarded as offences of simple bodily injuries or ill-treatment by deed, flagrant theft, threats, blackmails or slanders (art. 962 LECrim) or as is any other sort of offence (art. 964 LECrim). Besides there exist two special procedures for the crimes of slander and defamation (art. 804 LECrim) and for the crimes committed by means of the printing press, the engraving or other mechanic means of publication (art. 816 LECrim). In order to determine the sort of procedure, we have to take into account what is stated in the Circular nº 1/1989, “the determination of the punishment which establishes the competence must be attending to the punishment of the type and not to the result of the rules of application of the punishment, either for criminal imperfection, or degree of participation, or the nature of the concurring circumstances”.
If we interpret the article 757 LECrim along with the article 14, we can determine the judicial organ with competence to investigate and try the facts. The Examining Magistrate with competence in the territory where the crime was committed will be in charge of the investigation, while to try the crime there are two judicial organs with competence, the Judge of the Criminal when the crime is punished with no more than five years of imprisonment or of any other nature when they does not exceed of ten years (art. 14.3 LECrim), and the Provincial Court when the above limits are surpassed (art. 14.4 LECrim).
The article 758 LECrim:
The article 758 evidences el supplementary character of the rules which regulate the Ordinary Procedure regarding the Abbreviated Procedure. In other words, the Abbreviated Procedure is ruled by those rules which specifically concern with its regulation, and for those which regulate the Ordinary Procedure when in the Abbreviated Procedure there is no special regulation applicable.
Although the LECrim does not expressly envisage it, the contrary case of what we have seen above is possible too. For example, the Spanish jurisprudence has admitted the proposition of proofs during the previous audience to the Oral Trial in the Ordinary Procedure, when the LECrim envisages it only for the Abbreviated Procedure (art. 786.2 LECrim), or the possibility that the defendant may ask for the suspension of the Oral Trial in the Ordinary Procedure, when the prosecution changes the criminal classification of the facts or a bigger degree of participation in them or in their execution or the circumstances of aggravation of the punishment, a case which also is only envisaged for the Abbreviated Procedure (art. 788.5 LECrim).
The article 759 LECrim:
In order to determine the competence of the Examining Magistrate we have to attend to the article 14 LECrim, which states that the preferential jurisdiction in criminal matter is the place where the crime was committed («forum delicti comissi”). The LECrim establishes subsidiary rules too in its art. 15, when is impossible to determine the place where the crime has been committed.
To understand the article 14, we shall mention the principle of ubiquity established in the no jurisdictional agreement of the Second Chamber of the Supreme Tribunal of February 3, 2005: “The crime is committed in all the jurisdictions in which have been made some element of the type (the crime described by an article of the Spanish Criminal Code). Thereby, the judge of any of this jurisdictions who first has initiated the investigation will have the competence to the investigation of the cause”. In other words, the crime is regarded committed in all the places in which is developed the action, and where a result has been obtained.
Notwithstanding the above, we have to attend also to the peculiarities of each crime. For example, in the crimes committed through computer means, the principle of ubiquity is displaced by the principle of efficacy in the investigation.
To the above we have to add that, during the investigation may appear new evidences which may provoke a change in the territorial, objective or material competence, therefore all the decisions on competence during the stage of investigation have a provisional character.
Article 760 LECrim:
The article 760 guarantees the continuity of the procedure and confirms what we have already said in the previous article, that the decisions on territorial, objective and material competence have a provisional character, and may change according the proofs obtained during the investigation.
Besides, the article 760 LECrim confirms the competence of the Examining Magistrate (art. 14.2 LECrim), regardless the crime investigated has to be tried according to the rules of the Ordinary Procedure or the Abbreviated Procedure.
Article 761 LECrim:
We shall distinguish two cases, the exercise of the criminal action as private prosecution which is restricted to the offended and harmed by the crime (art. 109, art. 109 bis, art. 110 and art. 761 LECrim), and the exercise of the popular criminal action (art. 101 LECrim), which does not requiere being the offended or the harmed by the crime. The former, derives directly from the art. 24.1 of the Spanish Constitution (in Spanish Constitución Española, henceforth CE) where is established the fundamental right to legal proper protection, on the other hand, the latter derives from the article 125 CE, an article which legitimates the exercise of the criminal action to any Spanish citizen, included associations as political parties. Furthermore, the popular prosecution has to fulfill two requisites which the private prosecution is exempted of complying, the bringing of lawsuit (art. 270 LECrim) and the offering of a bail (art. 280 LECrim), and the offended and harmed by the crime may be a party of the criminal procedure until the qualification of the crime (art. 110 and art. 109 bis LECrim), at the beginning of the Oral Trial (art. 650 LECrim), without the necessity of bringing a lawsuit (art. 761 LECrim).
In the article 761 is also stated the obligation of the judicial organ of informing the victim of the crime of its rights, its infringement may suppose the declaration of null and void of all the actuated with the reposition of the procedure to the moment which allows the amending of such infringement.
Article 762 LECrim:
From this article we have to stress the importance of its ninth point. The Spanish jurisprudence has pointed out that there no exist legal reasons which, impede to Tribunal to admit as a proof of the preexistence of a thing object of a robbery the own declaration of the victim. This conclusion is also obtained from the art. 364 LECrim which does not impose limits to the measures with which may be proved the possession of a thing by the victim of a crime.
Otherwise, it would be imposed on the victim of the crime an obligation which is impossible to fulfill, as when the robbery is of cash.
Article 763 LECrim:
As soon as a person is committed for trial or charged, and it does not attend to the requirements of the judicial organ, the Examine Magistrate may order its detention (art. 494 LECrim) if the punishment is more than 3 years of imprisonment (art. 492 LECrim), and this detention may be transformed into a provisional prison or a provisional liberty with or without bail (art. 505 LECrim). The same may happen to those who have been committed for trial and have attended to the requirements of the judicial organ.
The three measures, the detention (art. 489 – art. 501 LECrim), the provisional prison (art. 502 – art. 519 LECrim) and the provisional liberty (art. 528 – art. 544 quinquies LECrim), are provisional personal measures which try to guaranty the subjection of the investigated to the criminal procedure.
Article 764 LECrim:
This is another kind of provisional measure, but in these case is not the investigated who is been subjected to the criminal procedure, it is its patrimony. As soon as from the investigation arise evidences which point out to determined person as the author of a crime, the Examining Magistrate may order a bail which has the object of guaranteeing of the pecuniary liabilities which may result from the criminal procedure. When the investigated does not fulfill with such bail, it will be transformed into a seizure, the Examining Magistrate will order the seizure of the goods pertaining to the investigated which may comply with the bail (art. 589 – art. 614 bis LECrim).
Article 766 LECrim:
Contrary to the Ordinary Procedure (art. 222 LECrim), the article 766.2 allows that the appeal may be directly brought without the necessity of previously bringing an appeal for amendment.
The five days period given to bring the appeal (art. 766.3 LECrim), according to the article 185.1 LOPJ and article 5 of the Civil Code, must be counted from the next day of the reception of the notification, and there are excluded the nonworking days (Saturdays, Sundays, and and festive days, either national or local), it is also possibly by the effect of the article 135.5 LEC, the presentation of any writing until the 15:00 hours of the next day to the conclusion of the five days period.
Article 767 LECrim:
Article which is in line with what is established in the article 118 LECrim and the article 520 LECrim, where are stated the right of the investigated and the arrested.
Article 768 LECrim:
Be careful with this exemption, is only for the defendant, the private prosecution and the popular prosecution must be represented by an attorney from the moment they are a party in the cause. Concretely, the offended and the harmed by the crime, may be a party until the provisional qualification of the crime at the beginning of the oral trial (art. 109 bis, art. 110 and art. 650 LECrim).
Here you have a link to the LECrim in English .
Víctor López Camacho.
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