The Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) attributes to a judge some faculties which allow him to lead the debate during the oral trial. Chiefly a judge can:
1) To lead the debate (art. 683 LECrim).
2) To preserve or to re-establish the order of the sessions of the oral trial (art. 684 LECrim).
3) To eject the accused of the sessions when his behavior is causing troubles to the normal development of the oral trial (art. 687 LECrim).
All these faculties has to be exercised by a judge taking care of respecting the right to a impartial judge, which is not expressly established in the Spanish Constitution (CE), though the Spanish tribunals has understood it included in the right to a process with all the guarantees (art. 24.2 CE). Thus, when a judge controls the debate has to do it from a position of neutrality, guaranteeing to the parties of the process the fulfillment of such a fundamental right. To see the importance of an impartial judge, we can attend to what have been said by the Spanish Constitutional Tribunal, which has proclaimed that the right to a impartial judge constitutes a fundamental guarantee of the Administration of Justice in State ruled by the rule of the law, determining its own existence, since without an impartial judge there cannot be properly a jurisdictional process ( STC 178/2014, of Noviembre, 3). Therefore, during the trial the judge has to adopt a neutral attitude regarding the positions of the parties in the process, as a third party alien to the interests of the trial. This is a great difference with respect to the Examining Magistrate, who plays a paper similar to the prosecution during the previous phase where the crime is investigated, asking questions to the committed for trial (art. 384 LECrim), assessing if the proofs gathered are enough for opening the oral trial (art. 622 and art. 779 LECrim), or leading the investigation (art. 308 LECrim). Although as we have seen above, it doesn’t mean that the judge cannot intervene during the debate, he has to fulfill his obligations attributed to him by the law without losing from sight the neutrality with which he has been invested by the CE.
We have to be careful distinguishing this obligation of all the judges of acting with neutrality, from the mechanism established by the LECrim (art. 52 and following) to exclude a judge from knowing a case. The former is aimed to serve as a rule of behavior during the trial, a judge cannot show preferences for any of the parties in dispute, while the latter is based in objetives causes which linked a judge with the object of the trial or with its parties. Hence, a judge may not be affected for any of the causes of the article 219 of the Organic Law of the Judicial Power (in Spanish Ley Orgánica del Poder Judicial, henceforth LOPJ), as an direct or indirect interesest with the outcome of the cause (art. 219.10º LOPJ) or a bond of friendship or enmity with any of the parties (art. 219. 9º LOPJ), but his performance leading the case may be reprehensible from the point of view of the right to an impartial judge, provoking the nullity of the trial and its repetition, this time in front of an impartial judge (art. 238.3º LOPJ).
Of the three faculties which I have mention at the beginning of this writing, the last (art. 687 LECrim) deserves a special consideration, because it may have an important effect on the right of defense of the accused. Imagine that, due to the nature of the crime tried the accused doesn’t have the obligation to be defended by lawyer, this is the case of the special process to try minor crimes (art. 962 and following LECrim), which in its article 967 allows to the parties to assist to the oral trial alone and to defend themselves. But as consequence of his behavior the accused is ejected from where is taking place the trial and the judge never call him back, this impedes the accused the exercising of his right of defense, since he is forbidden to contradict the proof practiced by the prosecution during the trial. Therefore, the faculty of ejecting the accused from the sessions to be legal has to be temporal, being compelled the judge to allow, after a prudent period of time, the accused to return to the oral trial, this is the only way which will guarantee the exercising of his right of defense to the accused.
Although the right which I am going to comment now, it not included in the chapter of the LECrim object of this writing, I feel obliged, at least, to mention it for its importance. The art. 708 LECrim grants to a judge the right to make questions to those witnesses who are participating in the trial. This is a faculty which has to be exercised with moderation, because if the judge assumes the paper of the accusation due to the nature of the questions, he would have lost his impartiality. Thus, all the questions made by the judge to a witness have to have only the goal of clarifying those aspects of its declaration which has not been well resolved by the questions of the prosecution or the defendant.
We cannot end without mentioning, that the impartiality of the judge is not only guaranteed by the right to an impartial judge, it is guaranteed too by the right to a public process, which, on the contrary that the right to an impartial judge, is expressly established by the article 24.2 CE. A judge who is observed by third parties, as the media, alien to the process, is going to be more cautious and is not going to unleash its emotions, prejudices, leading the debate during the oral trial.