– Introduction:
The title embodies a doubt which has haunted me since I know that there exist two different criminal procedures, and when I finished of commenting the articles concerning the Abbreviated Procedure I committed myself to solve this doubt. Doing my undertaking I want to be as objective as possible, I just want to compere what is said by an article with what is said in other, and with this information to try to draw my own conclusions. Without more preambles, let’s move on.
– The territorial and objective competence:
In the first article which starts regulating the Abbreviated Procedure, we find the key to understand the reason of the existence of two different procedures. The article 757 of the Spanish Criminal Procedure Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) establishes the boundaries of the Abbreviated Procedure, and indirectly between the the Ordinary and the Abbreviated procedure, an article that has a function which no other article has between those regulating the Ordinary Procedure, one of the reasons of its importance. It states that, without prejudice of what is established for the special procedures, the Abbreviated Procedure will be applied to the trying of the crimes either punished with an imprisonment of no more of nine years, or whatever other punishments of different nature, single, joint or alternatives, of any amount or duration. Thereby, the Ordinary Procedure will be applied to the crimes which are punished with more than nine years of imprisonment.
For the determination of the type of procedure, we have to take into account the punishment established for that crime without being affected by the rules of application of the such punishment, either for criminal imperfection, or grade of participation, or the nature of the concurring circumstances. The abstract punishment is that which punish the crime, while the concrete punishment is that which punish the author of a crime according to the concurring circumstances, therefore it must be the former and not the latter the one which determines the criminal procedure.
Now we have to connect what is said by the article 757 LECrim, with what is said by the article 14 LECrim that is the article which attributes the competence of the investigation and trying of a crime depending upon its gravity, without forgetting the art. 15 which distributes the knowledge of a case when the general rules of the article 14 cannot be applied. According to the article 14.2 the investigation of the causes has to be carried out by of the Examining Magistrate with competence in the territory where the crime has been committed, for both procedures this article is applicable without any distinction. This is clearly visible in the article 760 which states that, when during the investigation of a crime initiated according with the norms of the Abbreviated Procedure, the evidences obtained show facts which must be tried according to the rules of the Ordinary Procedure, the investigation will continue according to the general rules (the rules applicable to the Ordinary Procedure), without going back in the procedure but in the cases which are necessary in order to follow such rules, on the contrary, when a criminal procedure has been initiated according to the general rules and the evidences show facts which must be tried according to the rules of the Abbreviated Procedure, the investigation will continue without any interruption. And the end the the article 760 adds, the change of procedure will not imply the change of Examining Magistrate. Thereby, the Examining Magistrate will be the same for both procedures, with independence of the gravite of the crimes investigated. This connection of the two criminal procedures by means of the article 760, is probably the reason for what the Abbreviated Procedure has become the common way of initiated the criminal procedure by an Examining Magistrate, initiating preliminary proceedings which is the way in which is known the stage of the investigation of a crime in order to prepare the oral trial in the Abbreviated Procedure (art. 774 LECrim) and not a summary, the way in which is known the same stage but referred to the Ordinary Procedure (art. 308 LECrim).
The things change once the stage of investigation of the crime ends, because using again as reference the article 757 a case which has to be tried according to the rules of the Abbreviated Procedure can be try either by the Criminal Judge with competence where the crime was committed (art. 14.3 LECrim) or by the Provincial Court with competence where the crime was committed (art. 14.4 LECrim). All depends upon the provisional classification of the crime made by the prosecution during the intermediary stage of the Abbreviated Procedure, because the gravest of the accusations (public, private or popular), taking into account the punishment in abstract and ,thus, including the aggravated subtypes, will be which will determine if the trying of a case is attributed to the Criminal Judge or the Provincial Court. To the above we have to add somethings, who has to chose between the two judicial organs is the prosecutions in their writings of provisional classification of the crime (art. 781 LECrim), and once any of these accusations has been approved by the Examining Magistrate (art. 783.1 LECrim), the own Examining Magistrate is who determines the judicial organ with competence to try the case (art. 783.2 LECrim). The competence agreed by the Examining Magistrate will be definitive (art. 783.2 LECrim), unless the competence to try the case has been attributed to the Criminal Judge but at the end of the Oral Trial any of the prosecutions changes its classification of the crime by means of their definitive writings of classification of the crime (art. 788.4 LECrim) and this new classification of the crime surpasses the boundaries marked by the article 14.3 LECrim, in such cases, the Criminal Judge has to transfer the knowledge of the case to the Provincial Court with competence (art 14.4 LECrim), on the contrary, if the case was initially attributed to a Provincial Court (art. 783.2 LECrim), such Provincial Court can continue knowing it until the end, finishing the criminal procedure by a sentence, even when after the definitive classification of the crime by the prosecutions (art. 788.4 LECrim) the competence of the case could have been attributed to a Criminal Judge.
This is not a problem which can be found on the Ordinary Procedure, since the the competence for knowing a case will be always attributed to a Provincial Court according to the rules of the article 14.4 LECrim.
– The necessity of being assisted by a lawyer and a legal representative:
In the Ordinary Procedure as soon as from the investigation arises proofs which attribute a crime to determined person, this person must be assisted by a lawyer and a legal representative (art. 118.3 and art. 384). But this obligation, has been softened by the legislator in the Abbreviated Procedure, having been dispensed the defendant of the obligation of being assisted by a legal representative until the opening of the oral trial (art. 768 and 784.1 LECrim).
The challenge of the judicial resolutions coming from the Examining Magistrate:
The judicial resolutions coming from an Examining Magistrate can be challenged by lodging two sorts of appeals, the remedy of reconsideration and the appeal. The former is solved by the Examining Magistrate which dictated the judicial resolution appealed and the latter by its superior.
In the Ordinary Procedure is necessary to exercise the remedy of reconsideration before the lodging of the appeal (art. 222 LECrim), while in the Abbreviated Procedure it is possible to lodge the latter without necessity of exercising first a remedy of reconsideration (art. 766.2 LECrim).
– The intermediate stage:
If there are a part where the two criminal procedures are really different, this is the intermediate stage.
We can divide a criminal procedure in three stages, the investigation stage, the intermediate stage and the oral trial stage which ends by a sentence. The first is a competence of the Examining Magistrate in both, the third is a competence of judicial organ with competence to try the case in both (the Criminal Judge or the Provincial Court), but in the second the Examining Magistrate and the judicial organ trying the case play a different role depending upon the criminal procedure. The investigation stage ends when from the summary or the preliminary proceedings has been obtained enough evidences to support an accusation during the oral trial, when all the proofs during the investigation stage has been exhausted, or when the period of twelve months, including its extensions, granted by the LECrim is over (art. 324.4 LECrim), this is the same for the Ordinary and the Abbreviated Procedure, as well as who has to take such decision, always is the Examining Magistrate, but from then onward the intermediate stage in altogether different.
Let us start with the Ordinary Procedure. During the stage of investigation of the Ordinary Procedure there is a judicial resolution which grants to the investigated all its rights of defense, and this is the committal for trial (art. 384 LECrim). By means of this judicial resolution, the investigated is for the first time accused by an judicial organ, the Examining Magistrate, of the facts, with criminal appearance which are attributed to him, furthermore, through the committal for trial, the Examining Magistrate fixes for the first time object of the criminal procedure, the facts and the persons liable of them. Besides, the importance of the committal for trial resides in the prohibition of being accused in an oral trial without previously have been committed for trial, this a guarantee of the accused who has right of participating during the investigation stage giving its version of the facts (art. 385 LECrim), asking for proofs (art. 311 LECrim), being assisted by a lawyer (art. 384 and art. 118.3 LECrim), being informed of the state of the investigation (art. 118.1.b), in other words, of exercising its right of defense (art. 24 of the Spanish Constitution). Despite of its importance, the committal for trial is not unchangeable, it can be modified by the Examining Magistrate until the moment it declares the summary concluded, it means that, those who have been committed for trial can at the end of the investigation being acquitted and vice versa, or that the facts attributed to a committed for trial may vary at the end of the investigation. Either way, at the end of the investigation with or without being someone committed for trial, the Examining Magistrate has to dictate the judicial resolution which declares the summary concluded (art. 622 LECrim). Once this has happened, the parties of the criminal procedure, the prosecution and the defendant, may conform to the decision of the Examining Magistrate or solicit the practice of more proofs (art. 627 LECrim), the former will suppose that the parties coincides with the Examining Magistrate and in that case, they can be in favor of the opening of the oral trial or the dismissal of the case. Here is when the tribunal trying the case appear into scene, because it is who has to choose between the continuation of the summary or the confirmation of the decision of the Examining Magistrate concluding the summary (art. 630 LECrim), the continuation of the summary will return the criminal procedure to is previous stage, the stage of the investigation, but the confirmation of the decision taken by the Examining Magistrate will definitely conclude the summary because is has to be dismissed or because the oral trial has to begins (art. 632 and art. 633 LECrim). Therefore in the Ordinary Procedure the Examining Magistrate has the keys to close the summary and the tribunal trying the case those to open the oral trial.
Now is the turn of the Abbreviated Procedure. In the Abbreviated Procedure there is not a committal for trial in the midst of the investigation, but the same guarantees which protect the investigated during the Ordinary Procedure exist for to the Abbreviated Procedure. The investigated has to be informed of the facts with criminal appearance of whom it is supposedly liable (art. 775 LECrim), and at the same time be informed of the rights of defense which it posses by virtue of the article 118. But this act which serves to inform the investigated is not the judicial resolution which fixes the object of the criminal procedure, it will be done later when the Examining Magistrate declares the preliminary proceedings concluded and the opening of the intermediate stage (art. 779.1.4 LECrim), but for this, previously the Examining Magistrate has to have comply with the art. 775 LECrim informing to the investigated and giving to it the possibility of exercising its rights of defense. Having been declared the conclusion of the summary, having been rejected the possibility of declaring the dismissal of the cause (art. 779.1.1º LECrim), and having been opened the intermediate stage, the prosecution has three options (art. 780 LECrim): to solicit the practice of complementary proofs; to solicit the dismissal of the cause or; to accuse according to the rules of the article 781 LECrim. If is the public prosecution who solicit the practice of more proofs, the Examining Magistrate is oblige to agree then, if is the private or popular prosecution who solicits the practice of new proofs for the Examining Magistrate it is an option. When all the prosecutions exercising the criminal action solicit the dismissal of the cause, the Examining Magistrate is obliged to agree it according to any of the motives of the articles 637 and 641, unless the crime investigated has been committed under: a psychic alteration which impeded the criminal to understand the consequences of its action, the effects of the drugs, a mental illness from its birth, a state of necessity, or the effects of unsurmountable fear (all of them are causes of exemption of criminal liability stated by the article 20 of the Spanish Criminal Code). In the above cases, the criminal procedure must continue with the opening of the oral trial which will end with the imposition of a measure of security upon the criminal and the establishment of the pecuniary liabilities derived from the crime (art. 782 LECrim). When at least one prosecution (public, private or popular) solicits the opening of the oral trial, the Examining Magistrate has to agree the opening of the oral trial, except when according to the accusation made by the prosecution the facts cannot be classified as a crime (art. 637.2 LECrim) or when the evidences sustaining the claims of the prosecution are not enough to justify the opening of the Oral Trial (art. 637.1o or art. 641.1o LECrim). In the latter case, we see that the two options has two really different effects, the acquittal on all charges (art. 637.1o LECrim) has the effect of res judicata, while the stay of execution (art. 641.1o LECrim) supposes the dismissal of the cause until the appearance of new proofs which may provoke the opening of the Oral Trial, and despite these really two different effects the boundaries of both of them are diffuse, the Spanish jurisprudence has try to solve this problem arguing that, the acquittal on all charges is due to the absolute lack of all evidences, whereas the stay of execution is due to the lack of enough evidences. Only when the prosecution has accused, and the Examining Magistrate has agreed the opening of the oral trial, is when the defendant can oppose to such accusation (art. 784 LECrim).
The main differences are clear:
1) During the intermediate stage of the Abbreviated Procedure the Examining Magistrate has the keys to close the investigation and to opening the oral trial (art. 779.1.4º and art. 783 LECrim), on the contrary, during the intermediate stage of the Ordinary Procedure the keys to close the investigation are in possession of the Examining Magistrate, while the keys to open the oral trial are in the hand of the tribunal trying the case.
2) In the Abbreviated Procedure the defendant only has the option of apposing to the prosecution once the Examining Magistrate has declared the opening of the oral trial (art. 784 LECrim), while in the Ordinary Procedure, the defendant can solicit either the practice of complementary proofs or the dismissal of the cause in the same conditions that the prosecution (art. 627 LECrim).
– The exercise of the criminal action by the private or popular prosecution:
According to the art. 109 bis LECrim and the art. 110 LECrim, the victim and the harmed by a crime can exercise the criminal action, in any moment before the classification of the crime. Having been surpassed the above period, they can exercise the criminal action until de commencement of the oral trial if they adhere to the writing of provisional classification of the crime of any of the prosecutions.
Both articles apply to both criminal procedures, but the Abbreviated Procedure due to its “compressed character” has incorporated the provisional classification of the crime, which in the Ordinary Procedure starts once the tribunal trying the case has declared the opening of the oral trial (art. 633 and art. 649 LECrim), to the intermediate stage. Therefore, on account of this modification the articles 109 bis and 110 has to be interpreted, and the Spanish jurisprudence has understood that in the Abbreviated Procedure the provisional classification of the crime corresponds with the moment just before the judicial resolution which ends the preliminary proceedings, in other words, the judicial resolution which fixes the object of the criminal procedure and opens the intermediate stage (art. 779.1.4º and art. 780.1 LECrim). Therefore, while in the Ordinary Procedure is possible the exercise of the criminal action by the private or popular prosecution after ending the intermediate stage (art. 650 LECrim) without the necessity of adhering to provisional writing of classification of the crime of the public prosecution, in the Abbreviated Procedure, this moment corresponds with the end of the preliminary proceedings, with the end of the investigation stage.
The Spanish jurisprudence has gone even further and has stated that, due to the obligation, in the Abbreviated Procedure, of the judicial organ of informing the victim of a crime of the date of the trial (art. 785.3 LECrim), it is possible for it, to exercise the criminal action even at the commencement of the oral trial, by means of appearance apud acta. Does this also apply to the Ordinary Procedure? In my opinion, it should, since both criminal procedures should have the same guarantees as has shown the application of the article 788.5, which grants the opportunity of asking for the suspension of the oral trial to the defendant when the prosecution substantially changes its classification of the crime (art. 788.4 LECrim) with respect to its before provisional classification (art. 781 LECrim), or the article 786.2, which allows to the parties of the Ordinary Procedure the proposing of proofs at the previous audience of the oral trial, despite being articles in theory reserved for the Abbreviated Procedure.
– The presence of the accused during the oral trial:
The accused must to be present during the oral trial which will end acquitting or convicting it. This obligation, is also a guarantee since its allows to the accused the exercise of its right to the last word (art. 739 LECrim) which is a particular manifestation of its right to defense (art. 24 LECrim).
The Ordinary Procedure cannot have a trial without the accused, but in the Abbreviated Procedure is possible when the punishment asked for by the prosecution does not exceed the two years of imprisonment, or when it is of another nature, if it does not exceed the six years (art. 786.1 LECrim).
– The preparation of the oral trial:
Before the commencement of the oral trial, and having been declared the opening of he oral trial (art. 633 LECrim), in the Ordinary Procedure the parties have to classify the crime (art. 650 LECrim) and besides they have the possibility of alleging some questions (art. 667 LECrim), the called articles of previous pronouncement (art. 666 LECrim), that are aimed to solve any obstacle which may impede the tribunal to try the case. These exceptions are five (art. 666 LECrim):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. Although the oral trial has been opened (art. 633 LECrim), it has not begun.
On the contrary, in the Abbreviated Procedure, the parties have classified the crime during the intermediate stage (art. 781 and art. 784 LECrim) and these exceptions have to be claimed in the previous audience to the oral trial (art 786.2 LECrim).
– The execution of the sentence:
Although the Ordinary Procedure does not have a chapter titled the execution of the sentence like the Abbreviated Procedure, we have to understand that the provisions of the article 794 are applicable to it in so far as they can be affect to the Ordinary Procedure.
Víctor López Camacho.
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