Criminal Procedure: Understanding Legal Processes and Rights
Presenting a Complaint in an Ordinary Action
B) To present a complaint in an ordinary action, is it necessary to sign an advocate? True, also an attorney.
The complaint can only be made in writing.
False, it can be made in writing or verbally, either personally or through an agent with special powers.
Appealing a Trial Sentence
3. What are the faults in appealing a trial sentence?
An appeal may be lodged within five days of notification. The appeal follows the prosecution of the appeal by summary procedure.
Judgement Rendered by the Supreme Court of Castilla-Leon
a) Judgement rendered by the Supreme Court of Castilla-Leon
Cassation Court II of the Supreme Court, the supreme institution in all aspects of the judicial hierarchy.
Judgement of the High Court in an Appeal
b) Judgement of the High Court resolved an appeal against the Judgement of the Central Criminal Court
Appeal before the Supreme Court
Judgement Rendered by the Chamber of the Supreme Court
c) Judgement rendered by the Chamber of the Supreme Court.
No appeal
Judgement in the Scope of the Provincial Court
d) Judgement in the scope of the Provincial Court by the Jury Court.
Cassation Court II of the Supreme Court.
Judgement in a Trial of Errors
e) Judgement in a trial of errors by the trial judge.
Appeal, and it shall be presented before the Provincial Court.
Communication in a Fraud Case
In the Magistrate’s Court No. 7 of Barcelona, proceedings continue against Almudena García Pérez for an alleged crime of fraud punishable by 6 to 9 years imprisonment.
If the Court wants Almudena to appear from March 25th of this year, what kind of act of communication will take place?
A citation.
Would there be any reason why this act of communication may be written in Catalan? Brief explanation.
Yes, because procedural acts can also be conducted in the official language of the Autonomous Community, provided that Ms. Almudena does not claim ignorance of the language, which could make her defenseless.
Judge’s Act for Process Conduct
How would you call the act of the judge whose declaration is intended simply for the conduct of the process?
Providence. Article 245 LOPJ. In practice, it is a complex issue.
Can an act performed without the assistance of the clerk, when it is mandatory, be automatically declared invalid?
Yes, if it was before a final decision was reached. In the last reform of the LOPJ, the importance of the presence in oral proceedings of an official who has the role of public faith and documentation of the proceedings is explicit.
What is the Judge’s Act whose simple act is intended for the conduct of the process? Page 152
Providence, where his statement is intended simply for the conduct of the process. Article 245.1 LOPJ.
Procedures for Crimes
How many procedures are there for crimes?
Standard procedure common for serious crimes. Short Criminal Procedure and as a specialty of the same: rapid and immediate prosecution. Proceedings before the Tribunal of the Jury. Trial of Misdemeanors and as a specialty: quick and immediate prosecution.
Counsel’s Intervention in a Trial of Misdemeanors
Is the intervention of counsel mandatory in a trial of misdemeanors?
Intervention of a lawyer or a solicitor is not necessary for the Trial of Misdemeanors. In cases of self-defense of the accused, the LEC shows various manifestations of this self-defense.
Protecting the Impartial Judge
How can the impartial Judge be protected?
Applying fairness guarantees established in the articles 217 to 228 of the LOPJ. Also, apply within the “scope of the right to a trial with all guarantees, the right to a fair trial,” this impartiality is implicitly recognized in article 24.2 CE and, in particular, the right to a trial with all guarantees.
Courts with Jurisdiction Throughout the Territory
Four courts with jurisdiction throughout the territory.
Supreme Court, National Court, Central Criminal Courts, Central Instruction Courts, Central Penitentiary Surveillance Courts.
On-Call Service in Courts
In which court is the on-call service set up? Examples
It is set up for trial courts since it means that issues related to instruction, as in their first steps, need to act swiftly and effectively. These are the ones who guard service has to attend to, so it is prevalent.
Examples of actions: entries and records, wiretaps, removal of the bodies, coordinate and direct the judicial police with the joint action by police and Civil Guard in attacks, violent deaths, drug trafficking.
Recusal of the Public Prosecutor
If the Public Prosecutor acts in a specific process and is impartial, can he be recused? Explain.
He cannot be recused. If the Public Prosecutor is acting with full objectivity in defending the interests entrusted to him. The law does not provide or permit the disqualification of the Public Prosecutor because he is a party to the proceedings, but it does require the abstention by the official to whom one of the causes leading to the same decision in the judiciary applies. If the officer in question did not refrain, the parties may apply to his superior, ordering him the interested non-intervention in the process.
Competent Court for Forgery of Money
Which is the competent court to instruct the forgery of money and to judge whether the penalty is increased to 5 years?
The Audiencia Nacional.
Which town is the court if committed in Murcia?
Madrid.
Crime of counterfeiting at the request of the Audiencia Nacional
The court is the High Court
Public Offense and Private Prosecutor
In a public offense, who is part of the quota, the private prosecutor?
In public offenses (prosecutable), a necessary part is the Public Prosecutor, part of the quota is the accuser, and the particular accuser is popular.
The only way to establish itself as a private prosecutor is through a grievance, true or false?
False, you have two ways: Formulating a lawsuit that prompted the initiation of the process and the constitution as a party to it. And in an ongoing process, when the shares are offered, article 109 of the LEC refers to what is called the offering of shares.
Example of an application that is not required by law.
The Public Prosecutor does not need to bid, as it is a State organ, with technical rights, and appears and acts for himself.
Indictment
What’s an indictment?
It is an instrument that is regulated by LEC to try to get the accused to appear in the appeal court when absent.
From what time is the presence of a prosecutor necessary in an open process?
………………………………………….. ………………………………………….. ………………………………………….. ……………
Recusal Due to Marriage
1.- In a criminal trial, the representative of the prosecution has been married for 20 years to one of the judges who will judge the case. Despite this, the official belonging to the career prosecutor decides not to refrain. What can be done? Explain your answer.
In the absence of restraint of trade and once called the lack of impartiality (LOPJ Article 219), due to the link between the judge and the Public Prosecutor, a recusal is proposed. This gives rise to an incident, with its own processing. We distinguish phases of initiation, instruction, and decision (Articles 223 to 228 LOPJ).
Jurisdiction in a Murder Case
2.- D. Ernesto commits a murder against Ms. Carmen in Barcelona. Later he moved the body to Zaragoza, where it is finally found by the authorities, who do not know where the crime was committed, the alleged perpetrator being apprehended in Guadalajara. What would be the judicial body that would hear the case?
In a first step, considering that no one knows the place of commission of the offense, the subsidiary privileges are applicable. In this case, in the first place, the place of occurrence of physical evidence of the crime, i.e., the body: Zaragoza.
3.- If later the place where the crime was actually committed is found, will the proceedings continue in the same organ or be referred to the latter?
If it is found the place where the crime was actually committed, the proceedings will not continue in Zaragoza but will be referred to the place of commission, or Barcelona.
Jurisdiction Over a Spanish Citizen Convicted Abroad
A Spaniard was arrested in Rabat, not pardoned or acquitted, but condemned.
1.- Do the Spanish courts have jurisdiction, according to article 23 LOPJ, to hear the case?
Without prejudice to what could be established in international treaties and agreements, in accordance with current regulations of Article 23.4 of the Judicial Power Organization Act, introduced by Law 1/2009 of 3 November, the Spanish courts have no jurisdiction unless the suspect is in Spain, there are victims of Spanish nationality, or a significant nexus with Spain is found, and if no process has been initiated for those events in the International Tribunal or any other State that would have jurisdiction.
2.- Jurisdiction features?
Unity, independence, security of tenure, impartiality.
3.- What or who settles the punitive objective element of the process? The facts.
4.- Can other actions be exercised? (The original) Yes? What? Civil redress could be exercised according to article 100 LEC, but while the punitive action is pending, the civil redress will not be exercised.
5.- What principle is it that you must know the material evidence? Principle of contribution by a party.
Definitions and Differences in Legal Terms
Indicate with an “x” the correct solution
Crime is:
- Active behavior that disrupts the social order.
- It is unlawful conduct
- An act punishable under the Penal Code, Book Two
The prosecution:
- Represents, assists, defends, and accuses.
- Trains and practices calls Proceedings
- Practices Order the Proceedings of Investigation
1.- Set differences:
Claim Action
– The action is a fundamental right that all people have to access the courts: it is therefore a subjective public right constitutional directed at the state to launch such bodies to get them protection. But the claim is about something much more concrete: the claim or specific request is directed to those bodies with respect to the other side: it is therefore a declaration of intent based on the law by requesting the court responsible for action against one or more specific persons. This request will only be effective if properly justified and if it asks who is entitled to do so.
Complainant and defendant
The complainant is the one who brings the “news criminis” to possible criminal investigations. The defendant is the person against whom criminal action is directed, i.e., the person against whom there are some pieces of evidence that relate to the commission of a crime.
Barrister and Solicitor
A lawyer assists, defends, and directs the activities of the party to the proceedings.
An attorney is the legal representative of the injured party or the defendant.
3.- Write down three differences:
Complaint and grievance
1 The complaint may be an obligation, duty, or right. The lawsuit “always” is a right.
2 The complaint may be made in writing or verbally. The lawsuit, always in writing.
3 The complaint does not require identifying the accused; in the complaint, it is necessary to identify the defendant.
4 The content of the complaint is not determined by the LEC, but that of the complaint is, in article 277.
4.- Refer a right to the Judge/Magistrate instructed the defendant prior to hearing him in a statement:
Defense law and the existence of counsel, right to choose a trusted lawyer.
5.- What ordered the Judge/Magistrate Court Clerk if it was not clear that the injured would have understood the information received on the signing of the complaint he made in the police station?
6.- State two restrictive measures of Rights.
Detention: an injunction is a limitation on the right of freedom.
Prohibiting residence in one location.
7.- Two types of judgments.
Agreements: they have no judicial status.
Orders: they involve the exercise of judicial power.
8.- The particular accusation is made:
Only by the lawyer, only by the prosecutor, or by counsel and solicitor of the injured.
9.- What characterizes the exercise of the professional activity of the Prosecutor:
A law graduate is required to exercise the profession, to be chartered, and represents who empowers apud acta. An attorney is the representative of the party before the court, who calls on behalf of the party and therefore receives the judge’s acts on behalf of the party. Thus, the solicitor is the technical representative of the party in the process.
Procedures Handled by Different Punishable Acts
1.- Indicate what procedures are handled by the following punishable acts:
A.- Crime of robbery brought author identified and arrested by police report.
Speedy Trial.
B.- Crime of burglary article 202 CP imprisonment for 6 months to 2 years.
Jury Court
C.- Crime of breach of trust of a public official article 404 CP, special disqualification from public office from 7 to 10 years.
Simplified procedure for judging the Provincial Court.
D.- No theft article 623 of the CP.
Trial of Misdemeanors
E.- Crime of trespass possible sentence between 5 and 10 years.
Provincial Court (Abbreviated Procedure)
F.- Crime of kidnapping sentence between 6 and 10 years.
Normal Procedure
True or False Statements
6.- Indicate whether the following statements are true or false. Explain.
– The complaint must be filed with the Judicial Police.
FALSE The complaint must be brought before the competent court.
– The complaint can be verbal.
TRUE It can occur orally, the authority will proceed to verify the identity (ID or similar).
The complaint must be filed only before the court.
FALSE If the complaint is brought before a court without jurisdiction, it will have to practice the first steps immediately, informing the Coroner responsible, and once completed, will forward them to the competent judge.