Compensation Claims, Court Procedures & Judicial Impartiality
Claiming Compensation After a Murder
A claim arising from a crime or offense that initiates public prosecution is not extinguished by the waiver of the offended person.
However, in private crimes where the offended party has dispositional power over the offense, the action can be extinguished by their waiver.
The civil claim for damages is extinguished by the waiver of the injured party. This is considered a waiver of the right to restitution, compensation, or reparation, rather than merely a waiver of the right to exercise the claim.
The punitive (criminal) claim is extinguished by the death of the offender. However, a claim for civil damages against the heirs remains, although it may only be pursued in civil courts.
Criminal liability is extinguished by:
- 1. The death of the accused.
- 2. The fulfillment of the sentence (enforcement order).
- 3. Pardon granted by the competent authority.
- 4. Forgiveness by the offended party, when specifically provided for by law.
- 5. The statute of limitations for the crime or sentence (prescription).
Finally, regarding the extinction of the civil claim for damages, refer to the provisions of Articles 115 and 116 of the CPP (Code of Penal Procedure or relevant code).
Judicial Order for Process Conduct
When a judge’s statement aims simply to manage the conduct of the process, it is called:
Providence.
Summons to Appear Before Court
When the addressee is summoned to appear before the court within a specified time, it is called:
Citation.
Invalidity of Procedural Acts (On Request)
Mechanisms for assessing invalidity involve comparing the specific procedural act with the legal rules governing it. The court is responsible for this assessment. Only after finding a contradiction between the act and the norm, following adversarial proceedings, will the act be deprived of its procedural effects.
Invalidity is typically raised on request.
The primary means for reporting invalidity while the process is pending is through appeals (resources). Other means include, for example:
- Questions of jurisdiction
- Motions for disqualification
- Preliminary hearings in summary procedures
Abstention vs. Recusal: Key Differences
Guarantees of judicial fairness (impartiality) are established, for example, in Articles 217 to 228 of the LOPJ (Organic Law of the Judiciary or similar). These articles provide an exhaustive list (numerus clausus) of causes that may improperly influence a court’s decision.
If any of these legal grounds exist, the judge is required to abstain from hearing the case.
If the judge does not abstain motu proprio (on their own initiative), a party (ex parte) can raise an objection through recusal. Parties who may request recusal include:
- The Public Prosecutor (MF)
- Popular, individual, or private accusers
- The civil party
- The defendant or accused
- Third parties potentially liable
The Recusal Procedure (Challenge)
Abstention should occur as soon as the judge becomes aware of the case’s existence and the presence of a cause requiring abstention. It is considered a genuine obligation of the judge.
A judge’s impartiality can be controlled by the parties through the recusal mechanism (also referred to as a challenge). The recusal request must be proposed immediately upon becoming aware of the grounds for it.
If the grounds are known before the process begins, the recusal must be requested at the very start; otherwise, it will generally not be admissible.
The recusal request initiates an incidental proceeding with distinct phases, typically including:
- Initiation: Filing the recusal request.
- Processing: Submission of arguments and evidence.
- Decision: The court rules on the recusal request.