Criminal Procedure in Spain: A Guide

Posted on Oct 13, 2024 in Law & Jurisprudence

Criminal Procedure in Spain

6 – When is the Attorney Required?

A. Ordinary Process

If the appointment or assignment of counsel is required, the same applies to the attorney, except in juvenile detention or jail.

B. Abbreviated Process

Here the distinction after serving there as a lawyer appointed by the party itself or assigned counsel, in the first instance by the attorney will be appointed by the attorney, the second the public defender initially assumed the defense and representation not requiring the intervention of attorney until the stage of opening of the trial. Attorney involvement is always mandatory after the order for opening of the trial.

7 – Examples of Self-Defense

Secondly, in some cases one can speak of self-defense of the accused, that is, direct personal involvement of the accused in the process by efforts to preserve their freedom, or what is the same, as the STC 37/1988 of 3 March, to prevent the conviction or get the minimum penalty possible, ultimately, the right to defend himself. The CPP. shows various manifestations of this self-defense: thus, propose the disqualification verbally while being held incommunicado (art. 58), appoint expert (Article 356), attendance of the accused to measures of visual inspection with personal statement of observations (s. . 333), stating how often you want (art. 400), right to the last word (art. 739), etc. ,…, be the clearest evidence of misconduct trial, which is not required intervention of a lawyer or attorney.

8 – Objective Elements of Exemplary Damages

Secondly, we must determine the objective element of exemplary damages. The narrative of facts made by the accuser is important to identify the claim. This fragment of the factual reality is supposed to be on trial, and checking if things actually happened. This object is part of the process and would constitute the offense, (the events that allegedly occurred in reality at a particular time and that can be derived criminal consequences).

What can be considered as identifying elements of the offense? Two opposing theories:

  • Fixed solely on the mere happening without any assessment (naturalistic theory)
  • Identify the facts fit in any penal provision applicable to the case (normativist theory).

At present it is necessary to combine them properly.

  • The offense is a historical fact, a piece of real life as narrated in the indictment, but these events should not be removed from their account through the perspective of the rules.
  • To discriminate which are the essential elements must also take into account the applicable criminal laws, they’re going to say what are the specific events that constitute a particular offense. The nucleus is typical implementing acts under criminal law.
  • Be treated the same fact when there is identity, at least in part, implementing acts typical and, when that identity even inadvertently, in cases of complicity, which have in common is legally injured right or interest, ie , called the material content of the unjust. It requires, therefore, that crimes are involved homogeneous, ie where the legally protected interest is qualitatively the same or next: p.eg. a crime of theft and other theft (private property), but injuries and attempted murder (physical and human life) …
  • Additional issue is if, apart from the factual foundation also constitute the subject of criminal prosecution, the legal foundation of the offense score. The Court is not bound by the legal classification made by the parties, applying the facts to understand the relevant legal rules, therefore the court may change the legal classification supported by the prosecution, provided the new legal subsumption corresponds to the fact juridical rules. The legal classification, except as regards uniformity should not influence the determination of the object of the process.

The TS has said, to the common standard procedure for serious crimes, linking the title of court affirmed the conviction by the prosecution. That is, when the court from the result of evidence notes that the fact has been rated justiciable manifest error, and therefore want to impose a higher penalty should suggest to the charging parties that claim on this new legal classification, case law supports also cases where it appears the combination of aggravating or changes in the forms of participation and levels of implementation: (if the prosecution rejects the argument, the Tribunal can not assume the status proposal).

In doing this it gives the excessive charges to dispose of the legal status of the claim.

  • For the abbreviated procedure allows the court to impose a heavier penalty from that requested by the allegations, but explicitly only if one of them had taken the approach that the judge or the Court was able to expose.
  • As regards the specific request of punishment, nor should serve as an identifying element of the claim. In the regular process for serious crimes, the judge is not bound by the specific penalty applied. But in summary proceedings, there was actually a link on sentence requested: the sentence may impose penalty not exceeding the most serious of the charges.

9 – If You Give Up “Claim for Compensation”, Can It Be Claimed Later by the Civil Procedure?

Compensation Claim

Of all felony or misdemeanor criminal action arises for the punishment of the guilty, and can also blossom civil action for restitution of the thing, the reparation and compensation for damage caused by the offense. , any person responsible for a crime or misdemeanor is also civilly liable if the damages done.

  • Interest of judicial economy to facilitate that, while a claim is resolved and can debug punitive civil liability
  • The civil claim for compensation brought in a criminal proceeding has a contingent or accessory, in the sense that the criminal proceedings may follow its course perfectly even if this claim is not exercised, which does not occur with respect to exemplary damages. This contingent is due to the injured by the unlawful act, in exercising its power of disposal, can waive the compensation, or may reserve the right to that claim for a subsequent civil proceeding, if there be ground.
  • Rules governing the coexistence of both claims:
    • The civil claim must be brought together with the criminal prosecution, whether or not the process private prosecutor, but if the injured party expressly waives his right to restitution, reparation or compensation, the prosecution is limited to demand the punishment of perpetrators. If the claim is exercised only criminal, to be understood that the civil exercise as well, unless expressly waive the damaged or harmed her or Reserve.
    • The criminal proceedings take precedence, while still pending a punitive claim can not bringing civil damages separately to which it has been resolved in a final ruling., once promoted criminal trial investigation of a felony or misdemeanor, you can not follow suit on the same act must be suspended if he had begun earlier.
    • If be exercisable only a civil claim for damages resulting from slander or libel, unless the offense is directed against a public official, authority or agent of the same facts concerning the exercise of their office, will be considered terminated the claim punitive, given that for these offenses deprived the latter is also governed by the principle device.
    • Extinguished claim punitive death of the accused, the aggrieved may bring a civil claim against his heirs, through the civil proceedings before the competent bodies of the civil courts.
    • Although end of the trial without the declaration of condemnation of the accused, who has been declared criminal responsibility does not mean you can not proceed civilly against the same person, except that the criminal court has declared that res judicata There was not the fact which might have been born civil claim for damages.
    • There are cases where the defendant’s acquittal does not prevent the declaration of civil liability in the same proceeding. (concurrency assumptions of the defenses of criminal responsibility)
  • The content of the claim for compensation is prescribed in Articles 100 and 110 COP CPP : return of the thing, reparations or compensation for material and moral damage.
    • The refund is the replenishment of the state of affairs that existed at the time just prior to the commission of offenses (crimes against private property.)
    • Repairing the damage: personal services which tends to mitigate or remedy the impairment to the thing (an obligation to give, do or not do), as determined by the court according to the nature of damage and personal and financial conditions of the offender, determining whether they should be performed by himself or by another person at his expense. compensation occurs through a compensation for the damage caused, both economic and moral.