At the end of the articles regulating the Ordinary Procedure, which serves to try those crimes graver than what is established on the article 757 LECrim for the Abbreviated Procedure, we find something new, something which the Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) has not mentioned until this juncture, when the oral trial may be suspended, under which circumstances the general principle according to what the oral trial will take place in unity of act (art. 744 LECrim) can be breach.
A oral trial without proofs is like a book without letters, thereby the first and most important condition which may suppose the suspension of the oral trial is when the parties, for independent motives to their will, have not got prepared the proofs offered in their writings of provisional qualification of the crime (art. 745 LECrim and art. 656 LECrim). Here, there may arise two doubts, and the proofs proposed in the previous audience to the oral trial (art. 786.2 LECrim), are they subjected to the same rule?, can a proof proposed during the proper oral trial in order to sway what has been testified by a witness (art. 729 LECrim) suppose the suspension of the oral trial? The former question must be replied doubtless with a yes, although we are under the rules of the Ordinary Procedure, the Spanish jurisprudence has understood applicable to it this possibility expressly established by the LECrim for the Abbreviated Procedure. The latter question is more difficult to answer, for a Tribunal without the intention of suspending an oral trial will not admit a proof which needs its suspension in order to be practiced, nevertheless in both cases will be infringed the same right, the right to utilize the pertinent means of proof to its defense established in the art. 24.2 of the Spanish Constitution (in Spanish Constitución Española, henceforth CE). We have to take into account, that this right, the right to utilize the pertinent means of proof to its defense, is not an absolute right which guarantees to the parties always the admission of all the proofs they propose, on the contrary, the same CE talks about the pertinent means of proofs, which are those related with the object of the procedure, which are capable of determining the innocence or guilt of the accused, which are necessary to find out the truth on the facts related in the report or lawsuit which initiated the procedure. Therefore the Tribunal can dismiss those proofs which are not pertinent, and likewise reject the suspension of the oral trial when although the proof was admitted, it is no longer necessary on account of the proofs already practiced. This is the criteria followed, if the party who has been denied a proof or the suspension of the oral trial, appeals the result of the lawsuit (art. 850.1 LECrim), the Tribunal reviewing the case will not attend to the pertinence of the proof, will regard if the proofs denied, now, after all the proofs practiced and the final sentence, may be necessary, may be important to change the outcome of the lawsuit, because if the appeal succeeded, the consequence will be the declaration of null and void of the sentence and the repetition of the lawsuit from the moment the proof was not admitted or the oral trial was not suspended to allow its practice.
But above motive, is not the only one which may suppose the suspension of the oral trial, the LECrim established more in its article 746:
- When the Tribunal has to resolve during the debates some incidental question which for any cause cannot be decided in the act.
- When according to the LECrim the Tribunal or any of its members has to practice some proof out of the place of the session and cannot be verified in the intermediary lapse between one and another session.
- When the prosecution´s or denfendant´s witnesses don’t appear in court and the Tribunal regards necessary their testimony.
- When some member of the Tribunal or the defendant of any of the parties suddenly gets ill until the point it cannot be anymore part in the oral trial, nor can be replaced without grave inconvenient to the defense of the accused. The established to the defendant of the parties is applicable to the district attorney too.
- When some of the committed for trial is in the case of the above number, and cannot appear in court.
- When unexpected revelations or retractions produce substantial alterations in the oral trial, making necessary new elements of proof or some new investigation.
And this article has a final statement which is of great transcendence: The oral trial will not be suspended on account of the illness or the failure to appear of some of the accused personally summoned by the Tribunal, if the Tribunal deems, with audience of the parties and stating the reasons on the oral trial´s minutes, that there exists enough elements to independently try them.
These reasons to suspend the oral trial, although appear in the same article, are classified according to who can bring them to application (art. 747 LECrim). In the case of the first, the second, the fourth and the fifth motive, the Tribunal can declare itself the suspension of the oral trial. On the other hand, in the rest of cases the Tribunal can only declare the suspension of the oral trial when has been previously solicited by a party.
Between all these motives which suppose the suspension of the oral trial, there is one specially relevant, we refer to the sixth. The defendant is obliged to solicit the suspension of the oral trial when the prosecution has made important changes in their definitive writings of qualification of the crime (art. 732 LECrim), regarding what was stated in their provisional writings of qualification of the crime (art. 650 LECrim). In other words, the defendant is obliged to solicit the suspension of the oral trial invoking the application of the art. 746.6º and art. 747, based on the changes made by the prosecution in its writing of definitive qualification of the crime, if later it wants to appeal the sentence on account of an infringement of its rights of defense. For the provisional writings of qualification of the crime serve to delimit the discussion of the oral trial, on the other hand, the definitive writings of qualification of the crime are linked with the accusatory principle which suppose that no one can be condemn for a crime of which has not been previously duly accused and informed. Therefore, changes on the writings of definitive qualification of the crime may infringe the right of defense of the accused insofar as they are relevant to its defense, when the changes altere the essential facts discussed during the oral trial and its legal classification, making the labour of defense of the defendant during the oral trial irrelevant.
The suspension of the oral trial according to the article 746.6º and art. 747, may be demanded also by the parties when the accused making use of its right to the last word (art. 739 LECrim) has made important revelations which need to be confirmed by new proofs or investigations.
Finally, we shall comment the last paragraph appearing at the end of the article 746. It tries to avoid the defenselessness of those accused who have appeared in court on account of the lack of the testimony of the accused who has not attended to the oral trial. There must be enough proofs to try them separately, making irrelevant the testimony of the absent accused for those who may be condemned, otherwise, the Tribunal must suspend the oral trial.
Víctor López Camacho.