Criminal Proceedings: Initiation Through Third Parties
Acts of Initiation in Criminal Proceedings
Initiation of Preliminary Notice by Third Parties
There are two distinct possibilities for initiating preliminary criminal proceedings through third parties: the complaint and the lawsuit, governed by articles 259 to 281 of the Code of Criminal Procedure (CPP).
The Complaint
A complaint can be defined as a statement of knowledge communicated to the judiciary, the prosecution, or the police regarding facts that may constitute a crime or misdemeanor. While a complaint is a right of all people, it is also a duty for those who witness or have knowledge of the perpetration of any public offense to be pursued on its own motion. Therefore, we distinguish between public offenses, where that obligation exists, and semi-public offenses, where it is permissive.
A complaint can be made before the courts, prosecutors, and members of the police. There is no specific territorial criterion determining the body to which the complaint must be submitted, although the CPP itself refers to the nearest place. Regarding the ability to complain, there is no limitation, since the complaint is merely an act to inform, excluding only those who have deficiencies that absolutely alter their perceptual capacity.
The complaint does not require any special formality; only the identity of the complainant is sufficient. It may be made in writing or orally, in person or by proxy, although in the latter case, special authorization is required. If written, it does not require more formality than that of the plaintiff. When made orally, the receiver will take minutes as a statement of the complainant, to be signed at the end by both parties.
The Lawsuit
While a complaint is a statement of knowledge, a lawsuit is a statement of will manifested formally before a court, expressing the intention to become a prosecutor in a criminal trial for the prosecution of certain facts that are deemed to constitute a crime or misdemeanor.
In public offenses, it is not necessary for the prosecution or a complaint or grievance to be possible to proceed on its own; however, the victim can sue for prosecution. If the complainant in the prosecution of public offenses is not the offended party, they must be a Spanish citizen. Foreigners can only sue in public and private prosecution cases when they are the offended party.
In semi-public offenses, a lawsuit is not required, but a complaint from the victim is, with certain exceptions, thus legitimizing the prosecutor to prosecute the crime. In private crimes or misdemeanors, i.e., those of private libel or slander, the only way to pursue them is through a lawsuit by the aggrieved party; the prosecution will not intervene.
The requirements of a lawsuit are:
- It must be brought before the investigating magistrate who has jurisdiction according to territorial criteria.
- It must always be made in writing, requiring legal representation in crimes but not in misdemeanors.
- It should contain the data of the complainant and defendants, a statement of the facts, evidence for the audit practice, and the measures deemed appropriate to ensure the person or property of the alleged perpetrator.
- In certain cases, it will be required to produce certain documents as prerequisites for due process and admissibility.
- The complainant will be required to provide security in a sufficient amount.
Upon acceptance of the lawsuit by the court, the complainant shall be constituted as a plaintiff in the process. However, given its optional character, they may leave it at any time they see fit, without interfering with the prosecution by the prosecutor in public and semi-public offenses.
Initiation of Proceedings in the Preliminary Procedure
The initiation of proceedings in the preliminary procedure occurs when the instructor becomes aware of facts that may constitute a criminal offense. If the judge has knowledge of these facts, and as a result of our formal adversarial system, which does not allow them to exercise the class action or prosecution of alleged criminal conduct, they should bring the matter to the attention of the prosecution, who will decide whether to make the accusation. Regarding the summary procedure, Article 773.2 of the Code of Criminal Procedure should be taken into account.