Inevitably, the commencement of a criminal procedure has some consequences for those who are bound to it. Almost everyone is dispensable, the offended by the crime or a witness can testify before the beginning of the oral trial, a judge or a magistrate can be replaced by another, but the alleged criminal always has to be there since onset of the investigation, he is in reality the only one really tied to the procedure. None the less, there will be cases in which these ties will be broken, because all human beings always try to escape a punishment, and more if such punishment consists in years of imprisonment. When an alleged criminal cannot be found, or after being found he flees, the criminal procedure has to be interrupted and the alleged criminal being putted at the disposition of the justice again, this is the object of the procedure against an absent accused or convicted offender regulated in the Spanish Criminal Procedure Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim).
– The subjection of the investigated, the committed for trial, charged or accused to the procedure:
The condition of a subject subjected to a criminal procedure varies along its different stages. The first thing which will exist is a report, coming either from a citizen or the judicial police (art. 259, art. 262, art. 264 LECrim and art. 297 LECrim), or a lawsuit (art. 270 LECrim), in which will be recounted some facts, that must be assessed by the Examining Magistrate who recibes them in order to determine whether these facts can be classified according to any of the crimes gathered in the Spanish Criminal Code (in Spanish Código Penal, henceforth CP) (art. 269 and art. 313 LECrim). Till that precise moment, the person to whom are attributed the alleged crime does not know, or should not know, that the notice of the possible existence of a crime where he has participated has been given.
All changes when the Examining Magistrate admits the report or lawsuit because the facts related in them, at least at first glance, have the appearance of being a crime (art. 118.5 LECrim). From that moment onward, a compound of rights and duties arise around the investigated, for example, he has the right of being informed of the facts attributed to him, the right of examining the preliminary proceedings with the proper anticipation or the right of freely appointing a lawyer (art. 118.1 LECrim). But, on the other hand, he also has the duty of appearing when the Examining Magistrate determines, otherwise he could be compelled to comply with his obligations by being arrested (art. 486 and art. 487 LECrim).
Although it is not always as easy as it looks. It is possible that the report or lawsuit contains facts which at first glance can be regarded as crimes, but there is no clue of whom is responsible, it is possible that due to the character of the facts the Examining Magistrate agrees the secret of the investigation (art. 302 LECrim). In the former case, as soon as from the investigation (art. 299 and art. 777 LECrim) arise enough evidences signaling determined person as the alleged criminal, he has to be informed of the facts and the rest of the rights that assist to him, as we have seen above (art. 118 LECrim), save when the Examining Magistrate deems that he should agree the secret of the investigation (art. 302 LECrim). In the latter case, the secret of the investigation must be lifted at least ten days before the ending of the investigation.
Therefore, we see how in this first stage the investigated is already a party of the criminal procedure, with right and duties, both forming the heads and tails of the same coin, the coin of the criminal procedure to which he is subjected. Indeed, in accordance with reiterated jurisprudence of the Spanish Constitutional Court and the Spanish Supreme Court, the phase of investigation cannot be concluded without giving the opportunity to the investigated of participating in it, it is not possible to conclude the investigation altogether at the back of the investigated, in line with the own art. 302 LECrim, which as we have mentioned before, demands the lifting of the secret of the investigation at least ten days before the end of it. Otherwise, the investigated will see harmed one of his fundamental rights, the right to effective judicial protection recognized in the article 24 of the Spanish Constitution (CE).
Then, what happens if the investigated can not be notified in order to testify?, or after being notified and testifying the investigated does not appear? Let us see both questions one by one and in order. If the investigated is not located during all the phase of investigation, all will depends upon the kind of procedure followed to investigate and to try the crime. First the easy one, if the crime has to be investigated and tried according to the rules of the Abbreviated Procedure for being within the boundaries of the article 757 LECrim, the investigation cannot conclude because it is expressly forbidden by the LECrim in its article 779.1.4º, without the investigated´s testimony the Examining Magistrate cannot agree the opening of the criminal procedure´s intermediate stage. But the case of the Ordinary Procedure is more complicated, along the investigation the Examining Magistrate must have agreed the committal for trial against determined person (art. 384 LECrim), from then onwards the investigated can testify as a committed for trial (art. 385 LECrim). This is important, because from the moment the Examining Magistrates agrees the committal for trial, those who appear in it has some guarantees which could have not assist to them if previously they have testified just as witnesses. Whereas, the committed for trial has right to remain silent, the right not to be compelled to testify against oneself or to confess guilt, even the right to lie without having damaging consequences to his defense (at least in theory, for if a lie is contrary to evidences already proved, this lie can serve to underpin its guilt), a witness is obliged to testify and to say the truth if he does not want to incur in a crime of disobedience to the justice (art. 420 LECrim). But, in the Ordinary Procedure the LECrim is not opposed to the opening of the criminal procedure´s intermediate stage without the investigated´s testimony, furthermore, the article 840 LECrim seems to corroborate this theory by saying that the Judge or Tribunal competent, it should be understood to try the case and therefore once the intermediate stage is overcome, will suspend the procedure when the investigation is completed. But then, what happens in the Ordinary Procedure with what we have just seen above, that it is impossible to conclude the stage of investigation altogether at the investigated´s back? For we should understand that, it is indifferent that the LECrim remains silent, that the investigation should not be ended without the participation of the investigated in it, and more if we take into account, that the Abbreviated Procedure came to complete some voids of the Ordinary Procedure.
Let us continue with the second question, what happens if after being notified and testifying afterwards the investigated does not appear? In the Ordinary Procedure, the oral trial must be suspended (art. 841 LECrim). But in the case of the Abbreviated Procedure there exists an exception to that general rule, because the art. 786.1 LECrim establishes that the oral trial will not be suspended for unjustified absence of the accused, if the Judge or Tribunal esteems that there exist enough elements to try and the punishment solicited does not exceed the tow years of deprivation of liberty, or if it is of different nature when it does not exceed the six years of duration.
Another of the possibilities is that, only some of the investigated or accused are declared absent, what consequences does it have for those who have comply with their obligations? According to the article 842 LECrim, the cause has to continue for those who have appeared. But the answer, if it is brooded is not as easy as it may look at first sight. The general rule for the connected crimes is found in the article 17 LECrim, they should be investigated and tried in the same cause, except when this supposes an excessive complexity or a delay in the procedure. Therefore, here we find something that corroborates what is said in the article 842, the connected crimes may be investigated and tried when the investigation or the trial can be delayed as consequence of them. Being still inside the Ordinary Procedure, the article 746 says that, the oral trial will not be suspended for the absence of any of the committed for trial when there existe enough elements to try them with independence, hence, although limited to the oral trial, we should understand that when there are enough proofs to determine the guilt or innocence of those who have appeared in court, the oral trial should continue, despite the lack of a relevant proof, the testimony of one of the accused. Finally the article 766.2 LECrim, for the Abbreviated Procedure, confirms with other words what we have seen in the article 17 LECrim, the connected crimes may be independently tried when it is convenient to simplify and to activate the procedure. Summing up, the absence of one or more than one of the investigated or accused does not suspend the procedure for the rest, save we are in the oral trial stage and there are no enough elements to try them separate, for example, because the testimony of the absent accused is relevant for determining the guilt or innocence of the rest.
– The procedure against an absent accused or convicted offender:
As we have seen above, a person subjected to a criminal procedure has to fulfill some duties, although to compensate these obligations he is also granted some rights.
The exercise of the rights in most cases is a faculty of the investigated or convicted, on the contrary the obligations must always be fulfilled, this determines that the procedure against an absent or convicted offender has precisely as motive the failure to comply with one of those obligations. We find them enumerated in the article 835:
1º The committed for trial who is absent of its domicile when a judicial resolution is notified to him.
2º Who has escaped from the prison where he is arrested or fulfilling a definitive sentence.
3º Who being in provisional liberty, does not appear either the signaled days or when is called.
In any of such cases, the Judge or Tribunal must by summons to solicit his call and search (art. 836 LECrim). The summons must contain the circumstances of the article 513 LECrim, name and surname, charge, profession or employment, how he can be identified, the crime for which he is being committed for trial, territory where supposedly he is located and the jail to where he has to be brought. The latter will be excepted when there has not been agreed the imprisonment or arrest of the committed for trial, besides, the summons must mention the cause according to the article 835 which has given place to the summons and the term within which the committed for trial has to appear, warning him that otherwise he will be declared absent (article 837 LECrim). The summons will be remitted to judges, published in newspapers and fixed in the public places mentioned in the article 512 LECrim.
Exhausted the term granted by the summons without appearing or being arrested the absent, he will be declared absent (art. 839 LECrim). This will suppose that the scenarios of the article 840 and following will be of application, mainly the continuation of the investigation until its end after which the procedure has to be suspended (art. 840 LECrim), or if he is declared absent before the commencement of the oral trial, this has to be suspended (art. 841 LECrim). In both cases, the criminal procedure will only be resumed either when the declared absent appears or is found (art. 846 LECrim).
– Preventive measures:
It is complicated to end this writing on the procedure against an absent accused or convicted offender without mentioning them. The preventive measures are the way of assuring the subjection of the investigated or accused in every moment to the criminal procedure.
The preventive measures are of two kinds, the personal and the real. The former has the goal of avoiding that the investigated, accused or convicted eludes the foreseeable conviction and with it the fulfillment of the punishment. The latter guarantees the pecuniary liabilities derived from the criminal procedure. The arrest, the preventive detention and the provisional liberty are personal preventive measures and the bail and freezing are real preventive measures.
Let us start from the beginning again. Once the Examining Magistrate takes notice of the notitia criminis, and after assessing that the facts recounted are classified as a crime, he starts a criminal procedure, usually by means of preliminary proceedings. The existence of the investigation has to be communicated to the person to whom the crime is attributed if he is identified in the report or lawsuit (art. 118.5 LECrim), save when the secret of the investigation is agreed, in this cases the investigated has to be informed with the results of the investigation at least ten days before its end (art. 302 LECrim). In this moment, when the report or lawsuit is admitted, the Examining Magistrate has to adopt another decision, if from the report or lawsuit are derived enough evidences against determined person which foresee a really possible conviction, he must agree preventive measures, otherwise, he must agree them as soon as from the investigation arise such evidences. First, the Examining Magistrate has to agree the arrest of the alleged criminal if any of the circumstances of the article 492 are met, if the Examining Magistrate believes that the facts recounted in the report or lawsuit are a crime and that the investigated has participated in it, it will be enough. From the arrest by the judicial police of the alleged criminal, a term of 72 hours is granted by the LECrim in order that the detainee appears before the Examining Magistrate assisted by a lawyer, to such hearing will also assist the Public Prosecution and the rest of the parties of the criminal procedure (art. 505.2 LECrim). This hearing has to take place too, to solicit or agree, the preventive detention of the investigated not arrested or his provisional liberty with bail.
The only possibility to avoid that this hearing takes place is that, the Examining Magistrate directly agrees the provisional liberty without bail (art. 505.1 LECrim). In this hearing, the Public Prosecution and the rest of the prosecutions (private and public) will solicit that the provisional detention or provisional liberty with bail of the detainee should be agreed (art. 505.3 LECrim).
As all the preventive measures, their application presupposes an affectation to the right to the presumption of innocence of whom suffers it, perhaps he has not been convicted yet, but he is already suffering the consequences. For avoid, thus, that the adoption of such preventive measures may affect legal goods worthy of protection too, the Spanish jurisprudence has developed some requisites which must be fulfilled previous to their adoption:
a) Appearance of good law (fumus boni iuris): it implies the necessity of formulating a probabilistic reasoning regarding the intervention of the investigated in the facts which will be tried, thereby, due to the relevance of the preventive measures which will be adopted against the person investigated, its rights must not be restrained without a high probability of its conviction.
b) Risk for delay (periculum in mora): it supposes a risk of damaging a legal good derived from a delay in the proceedings of the criminal procedure, since the delay until the oral trial and a firm sentence may frustrate the finality of it.
c) The fulfillment of the principle of proportionality: it has three conditions: the measure has to be suitable to fulfill its objetive (suitability judgment); the measure has to be necessary, there cannot be another measure more lenient for the fulfillment of the objective with the same efficacy (necessity judgment); and, finally, the measure has to be equilibrated and balanced, from it must derive more benefits or advantages for the general interest than prejudices upon other goods or values in conflict (judgment of proportionality in strict sense).
Therefore, from the beginning there exist means to avoid that the investigated eludes the justice.
The other question which has to leave solved before ending is that, it is not necessary to declare absent the investigated or accused in order to proceed to his arrest, it is not necessary to exhaust the period granted in the summons, the Judge or Tribunal may agree his detention when any of the circumstances of the article 492 is met.
Víctor López Camacho.
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