Spanish Criminal Procedure: Key Concepts and Case Studies

Posted on Oct 28, 2024 in Law & Jurisprudence

ITEM 8

7. Please provide an example in which the Judicial Police can proceed on their own authority to conduct an entry and search.

Before committing a flagrant crime. For example, an agent who hears a cry for help in a home and enters by knocking down the door to prevent the rape of a woman.

9. What is the name of the first statement presented by the defendant before the court?

The first statement of the accused is called an “inquiry.” This diligence serves to inform the accused of the charges against them and their rights, ensuring they understand their position and can exercise their legal guarantees.

10. According to the jurisprudence of the Supreme Court (TS), in cases where it is not possible to enter and search with the owner’s consent, is court authorization required for the Judicial Police to enter a caravan where a family has lived for five years? Explain your answer.

Yes, court authorization is required. As stated by the Supreme Court, a caravan or a tent is considered a dwelling for these purposes. An exception would be in the case of a flagrant crime.

Criminal Procedure Types

1. When is a case handled through the normal procedure?

Felonies punishable by imprisonment for more than nine years should be processed through the standard procedure.

2. What assumptions have followed the steps of the simplified procedure?

The simplified procedure “applies to the prosecution of offenses punishable with imprisonment not exceeding nine years, or with any other penalties of a different nature, whether single, joint, or alternative, regardless of their amount or duration.”

3. Indicate the type of procedure by which the processes should be conducted for the following criminal offenses:

  • Lack against the estate of Art. 623 of the Criminal Code. Fine of 1 to 2 months. Trial of offenses.
  • Homicide, consummated Art. 138 of the Criminal Code. Imprisonment of 10 to 15 years. Standard procedure.
  • Crimes against sexual freedom of Art. 182 of the Criminal Code. Imprisonment of 4 to 10 years. Standard procedure.
  • Crimes of undermining Spain’s Art. 543 of the Criminal Code. Fine of 7 to 12 months. Expedited Procedure.
  • Crime transgression of official public Art. 404 of the Criminal Code. Special disqualification from 7 to 10 years. Expedited Procedure.
  • Crime of robbery with the author identified and arrested, initiated by crowded. Speedy Trial
  • Crime of burglary Art. 202 of the Criminal Code, imprisonment of 6 months to 2 years. Court Jury
  • Crime of malfeasance of a public official Art. 404 of the Criminal Code, special disqualification from public office from 7 to 10 years. Simplified procedure for the Provincial Court judge
  • Lack of theft Art. 623 of the Criminal Code. Trial of offenses.
  • Crime of kidnapping, sentence between 6 and 10 years. Standard procedure.
  • Crime of violation of public authority of Article 551.2 of the Penal Code (imprisonment of 4 to 6 years), if the suspect was arrested at the time of committing, initiating the proceedings by police investigation and the prisoner being put to justice during the same call service. Speedy Trial.

4. What methods of initiating the process are there?

There are two modes of initiation of a process:

  • Initiation ex officio, for public crimes or semi-public crimes in which the Public Prosecutor (MF) has to intervene if any of the legitimate causes are present (minors, incapacitated individuals, etc.).
  • Initiation by complaint, which can be done through two different institutions: reporting and filing a lawsuit.

5. List three differences between reporting a crime and filing a lawsuit.

  • Reporting is a statement of knowledge (informing authorities).
    • A lawsuit is a statement of will (seeking prosecution).
    • Reporting may be filed before any judicial authority.
    • A lawsuit must be lodged with the competent court.
    • Reporting does not require bail.
    • A lawsuit, to be admitted, requires bail.
    • In reporting, the complainant is not necessarily a party to the proceedings.
    • In a lawsuit, the intent is to become a prosecutor.

6. Discuss at least two measures to be taken for the protection of witnesses and experts.

Scope: Witnesses or experts whose person or property, or those of their relatives, are at serious risk (assessment by the court).

Measures during the investigation:

  • No record of their personal data (using a number or password).
    • Appear in the proceedings by any means that makes them unfit for normal visual identification.
    • Fixation of the court’s headquarters as the address for subpoenas.
    • Prevent the taking of pictures or likeness in any media.
    • Police protection during and after completion if necessary.
    • In exceptional cases, new identity and economic means to change their residence or workplace.

Trial: If either party requests a reasoned understanding of identity, the names will be provided, respecting the other guarantees. In any case, it is necessary for the judge to rule again on the maintenance or not of the measures.

7. List the duties of the experts.

  • Appearance (unless legitimately unable to be present).
  • Take an oath to proceed well and faithfully.
  • Object recognition of the expertise and issuance of the report.

8. In what circumstances can the police enter and search on their own authority?

In the cases provided for in Art. 55 of the Spanish Constitution (EC) and Art. 553 of the Criminal Procedure Law (LEC).

  • When a state of emergency or siege is declared, under the terms of the Constitution (Article 55 EC).
  • When there is an arrest warrant against a person inside, when they are caught in flagrante delicto, when an offender immediately pursued by agents of authority hides or takes shelter in a house, or in exceptional or urgent cases of need, in the case of alleged members or persons associated with armed groups or individual terrorists or rebels (Art. 553 Criminal Procedure Act).

9. What prerequisite does Supreme Court jurisprudence require for consent for entry and search of an arrested person to be considered valid?

Regarding possible consent if the person providing it is in detention, legal aid is required for such consent to be valid.

False Statements about Complaints

  • The complaint must be brought only before the court. FALSE. The complaint may be filed with any State body authorized to do so: Police, Courts, etc.
  • For a complaint in an ordinary signature is required of Attorney. FALSE. It requires no requirement.
  • The complaint can only be made in writing. FALSE. It may be stated verbally.

Item 10. The Indictment

1. What budget has necessarily to attend may be issued an indictment?

The budget required for the processing to take place is essentially subjective and legally translates into the estimate, by a wide margin of discretion by the instructor, of the existence of “prima facie” evidence.

2. Can the AP issue an indictment? Explain.

The indictment made by the party who has been refused can be presented before the court to evacuate the transfer of instruction, within the period for which it has been given (Art. 627 Criminal Procedure Act). The hearing in such cases will reasonably decide that it can proceed without leaving it to the discretion of the instructor to deem appropriate the resolution when processing the statements requested so that they are sent to the judge, if applicable, that they remember.

3. What appeal can be filed against an indictment issued in summary proceedings? How is an indictment used in the Speedy Trial of crimes?

A reform appeal can be filed within 3 days of having been notified of the resolution, and against orders rejecting the amendment, an appeal may be brought within 5 days of notification of the order refusing recurrent representation.

4. What are the principles underlying the Constitutional Court (TC) to determine the procedure in Art. 627 of the LEC? That is, the period of instruction set for the Public Prosecutor and the complainant has also been granted to the accused?

It is based on the constitutional requirement arising from the right of defense and the principle of equality of arms between the parties.

Item 14. Termination of the Procedure: The Sentence

8. What is a Final Judgment?

Those that terminate an instance, are subject to appeal, and the judge decides on the main case, condemning or absolving the defendant.

4. Indicate in a reasoned manner whether the following sentences respected or not the correlation between conviction and sentence:

  • A. Judgment that automatically applies the mitigation of spontaneous repentance. Correct correlation because the sentence is not contradictory or inconclusive. The accused does not contradict the court’s decision, and it is important that they are not convicted of a separate offense.
  • B. Judgment condemning a subject to induce, initially charged as an accomplice, after the sentencing court has raised the thesis and this has been accepted by the accusers. Correct correlation because the judge posed the thesis, and the prosecutors accepted it.
  • C. Judgment in which the court officially accused of kidnapping convicts the defendant for unlawful detention. No correlation is respected. Kidnapping is different from the initially charged unlawful detention, and they have different penalties.

1. What is an acquittal of the instance?

It is one that acquits for lack of evidence, leaving the process open indefinitely when the judge had any suspicion about the defendant. The defendant was acquitted in the particular process but not with respect to the subject process and remained unjudged. Charges could again be brought against the same defendant in a subsequent process.

2. Are such statements valid in our current criminal proceedings?

They are prohibited in our current criminal process because we cannot afford to leave a criminal proceeding pending against a person indefinitely.

3. What sort of resolution currently replaces the acquittals of the instance?

Today, acquittals are based on the merits, relative to the object of the process.

4. What is a Final Judgment? And an unappealable judgment?

Regarding appeals, we must distinguish between final judgments, which are appealable, and unappealable judgments, which are not, either because the law does not grant a direct appeal against them or because the deadline for an appeal has passed without an appeal being lodged. Based on this, we could also speak of judgments under appeal, which are those against which an appeal has been pursued and admitted.

5. Indicate in a reasoned manner if the following statements comply or not with the correlation between conviction and sentence:

  • a) A statement that absolves an accused person by the Public Prosecutor of a crime of genocide. They are not relevant for the purposes of inconsistency, the court decisions that benefit the accused. This section includes the acquittal, the imposition of a sentence that is less than requested by the prosecution, and the appreciation of circumstances that reduce the penalty. The reason is that the weight of the system is the right of defense and not the obsession with imposing punishment. The court can rule in favor of the defendant.
  • b) Judgment of imprisonment imposed on a grade lower than that requested by the accusers. Like the previous case.
  • c) Judgment of murder conviction of a person who has not figured as a defendant or accused in the proceedings. It violates the correlation between conviction and sentence by excess if it decides on what is not subject to resolution, if it resolves issues that have not been raised in the process by the parties. The basis for this correlation as a limit to the power to resolve lies in the adversarial and contradictory principles. The Court cannot resolve more than the facts of the case proposed by the accuser and the accused or raised by it, and in no case can it be admitted that the court automatically introduces a change in those two elements. On the other hand, there can be no ruling on issues that have not been previously debated by the parties.
  • d) Judgment is silent on the mitigating circumstance of intoxication by alcohol as alleged by the defense. Inconsistency occurs by default when the sentence does not resolve all the points that have been subject to prosecution and defense.
  • e) A statement that officially accused a person guilty of complicity as the perpetrator of a crime. Excess incongruence exists when the penalty is for a more serious crime than has been the subject of prosecution if the court had not previously acted as determined by Art. 733 of the LEC. Without the use of the thesis, the ruling would be inconsistent for not respecting the principle of correlation between the charge and the statement.
  • f) A statement that convicts the defendant of kidnapping for illegal detention following the approach of the thesis by the Court. Where the court wants to aggravate the situation of the accused (more serious crime, increased participation, application of aggravating circumstances, greater performance, etc.) to avoid an inconsistent statement, it should raise the argument in accordance with Art. 733 of the LEC.