The Minister of Justice, Pilar Llop, has concluded the work of the inter-institutional group that has reviewed the reform of the Criminal Procedure Law (LECrim), created in October 2021 after the report of the Fiscal Council that pointed out that the text of the draft bill did not meet the needs of the Public Ministry.
The creation of the group took place after it became known that the Fiscal Council had unanimously approved the draft report in July, and that, nevertheless, it requested some adjustments to the norm, such as limiting the intervention of the guarantee judge.
The experts also considered that the LECrim draft is a text with good intentions, but that .
The Professor of Procedural Law at the University of Valencia, Silvia Barona, has highlighted that “essential issues such as the paradigm shift of the procedural model have been discussed for months and highly satisfactory agreements have been reached”.
Division of the procedure
The Council of Ministers approved this bill in November last year, together with that of the European Public Prosecutor’s Office (EPPO), to modify a Law that is 138 years old and has undergone up to 77 reforms, 54 of them only since 1978.
This is a norm that divides the criminal procedure into three main stages: the investigation, the accusation trial and the oral trial.
The first phase will be carried out under the direction of the Public Prosecutor and will have the figure of the Guarantee Judge, who will guarantee fundamental rights, the rights of the parties and will generally act as an impartial third party called upon to control the legality of the proceedings.
Once it is determined who the suspect is, the real investigation procedure begins, which entails very important formal guarantees for the benefit of the person who becomes “a passive subject of that state activity”, such as the fact that a Judge of Guarantees automatically.
The draft emphasizes that the immediate determination of that judge of Guarantees must take place whatever the decision that the prosecutor adopts before the ‘notitia criminis’, whether he decides to investigate or whether he considers it inadmissible. In that case, the complainants and offended parties can challenge the decision before that judge.
According to the draft of the Draft Law, with the intermediate phase, which corresponds to the accusation trial, the actions already acquire a fully jurisdictional imprint, and the judge of the Preliminary Hearing will be the one who decides “on the sufficiency of the accusation and the purification of illicit evidence”.
In the third phase, that of the oral trial before the plenary, the true evidence suitable to enervate the presumption of innocence will be practiced before an impartial court that has not participated in the previous phases.
Functions of the Prosecutor’s Office
The future norm follows what is established in the Community Regulation of 2017, which grants prosecutors instruction, as is done in all neighboring countries, except in France and Austria, for which the new figure of the court judge will be created. guarantee. Together with them, the figure of the preliminary hearing judge arises, who will be the one who decides if an oral trial is opened and expels from the process the people and the evidence he deems appropriate.
In the draft approved by the Council of Ministers, the prosecutor will control the information on criminal proceedings in the investigation phase to limit it from the point of view of informative interest and avoid possible ‘bench penalties’. The delay in the investigation of the criminal proceedings by the prosecutor is
The new configuration of popular prosecution, which can no longer be exercised by public legal persons, political parties and unions, although a catalog of crimes is established that are suitable for citizens to defend an alternative vision of criminal legality to the of the Public Prosecutor, as in the case of crimes of political corruption.
Pre-trial detention
A second form of lighter preventive detention is also created, with a maximum duration of 24 hours compared to the current 72, intended to facilitate procedural actions that require the presence of the arrested person; a national monitoring commission for pretrial detention is created; and an automatic dismissal of public officials investigated for crimes of rebellion and terrorism is contemplated. As for deputies and senators, it will only be necessary to process the request if a specific precautionary activity is requested from the judge or if criminal action is actually brought.
During the first phase, the draft includes several novelties regarding the figure of the complaint. The first is that, although until now there was an exemption from the duty to report in the case of family or affective ties, now this exception is not valid for alleged crimes committed against the personal property of minors, because the duty to protect and guarantee the integrity and indemnity of the minor.
A second novelty is that, to the classic verbal or written presentation formulas, the possibility of reporting electronically is added. For this, the signature or digital certificate can be used, but also the official channels established for this purpose by the authority or any other official means that guarantees verification of the identity of the complainant.
As a third novelty, the filing of a complaint is adapted to the European directive, and in particular, it includes the possibility that it can be filed by the person in charge of the complaint channel, without it being necessary to reveal the identity of the person who issued the alert. internal, unless an express requirement is made to that effect.
Regarding the role of the judicial police, which acts under the baton of the prosecutor, the bill tries to reinforce the mechanisms of functional dependency that, in the articulated text of 2011, characterized the relationship of the Public Prosecutor with the Judicial Police. In this regard, it contemplates the possibility that particular instructions and orders are issued by the prosecutor, not just general ones, before the formal initiation of the investigation procedure.
In addition, the general instructions go beyond mere coordination and constitute the appropriate channel for the prosecutor to establish precise procedural guidelines for the investigative action of the police. In fact, these preliminary actions can only cover acts of null or minimal interference and must cease with the identification of the subject considered responsible because preliminary investigations by the police will only be justified when there is no person clearly identified as possibly responsible for the infringement. criminal.
Once the investigation begins, the prosecutor develops it by giving it the address he deems appropriate without being subjected in any way to the guardianship of the judge and in any case he can resort to him if acts of interference subject to judicial authorization are necessary.
You should also contact him if you understand that the declaration of total or partial secrecy of the proceedings is appropriate, and the new LeCrim highlights that the declaration of secrecy corresponds to the Public Prosecutor but it is the Judge of Guarantees who will confirm or lift the decision of secrecy in the within 48 hours and set its duration. As up to now, the prosecutor’s request to extend the secrecy of the proceedings must be made before the expiration of the established term.
The Draft also explains that the first appearance of the person is the initial moment of control of the undue delay of the investigation procedure. And it points out that, once the times established as standard duration of the procedures have elapsed, the law establishes an incident available to the defense so that it can denounce before the judge of guarantees that the investigation extends beyond what is required by the circumstances.
The guarantee judge also hears challenges to the prosecutor’s decisions, and the new law indicates that of the resolutions of this judge, only dismissal orders and those that decide on precautionary measures are appealable.
first appearance
Given that in that first appearance of the investigated person the charges are communicated, with the objective that the prosecutor scrupulously complies with the deadlines, a strict judicial sanction mechanism is established for unjustified delay in the intermediate phase of the procedure.
Thus, the judge of the Preliminary Hearing -in the second phase of the process- will have to verify that the first appearance has not been unduly delayed, in such a way that it has prevented the defense from alleging, proposing or providing defense elements that are relevant or irreproducible. subsequently, and if so, it will proceed to the dismissal.
As for the defense, the new LeCrim indicates that during the investigation they have the right to know the full content, to provide elements, to propose the practice of proceedings and to participate in the practice of investigative acts.
The investigation closes with the prosecutor’s accusation and will then move on to the intermediate phase with the presentation of the alternative indictments and the referral of the entire file to the Judge of the Preliminary Hearing, who will be the one who proceeds to purify the charges filed.
seizure incident
In the event that the prosecutor believes that there are no grounds to proceed, there is the figure of the incident called ‘judicial authorization of non-public prosecution’. There, the parties or victims can present to the Judge of Guarantees the reasons why they consider the exercise of their own criminal action viable.
For cases in which there is a reasonable prognosis of loss of evidence, an insurance incident is regulated, which is a legal mechanism of reaction to the risk of loss of the source and which gives prominence to the guarantee judge so that it can be complied with. a certain substitute function of the test disabled.
The draft indicates that the seizure incident also accommodates cases of urgent judicial confession of the investigated person and the declaration of vulnerable persons.
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