Preliminary Criminal Proceedings and Parties Involved
Preliminary Criminal Proceedings
Concept
Preliminary criminal proceedings comprise actions taken to prepare for trial, ascertain the circumstances leading to it, and determine the guilt of the accused. It involves three phases:
- Declaration Phase (Investigation): A person is judged.
- Performance Phase: Court proceedings are conducted.
- Precautionary Phase: Ensures the safety of individuals and property, enabling sentence execution. This phase is not explicitly mentioned in the European Convention but is considered necessary.
A post-2002 reform added a Police Phase prior to the others, focusing on crime investigation.
Procedure names:
- Preliminary Summary: For more severe crimes.
- Abbreviated Preliminary Investigation: For less severe crimes.
- Urgent/Quick Trial: For expedited cases.
Functions (Article 200 of CPP)
- Prepare the trial, supporting both prosecution and defense.
- Prevent unnecessary trials by ensuring sufficient evidence before proceeding.
Legal Nature
Several theories exist regarding the nature of preliminary proceedings:
- Administrative activity instructed by the Prosecutor.
- Jurisdictional activity instructed by the Court.
- A mixed approach.
Parties to the Criminal Process
Concept
A party is an individual acting within the legal process, seeking a court decision through arguments and evidence.
Types of Parties
- Active Party: The accuser (victim of the crime).
- Passive Party: The accused.
- Accusers: Have the power to initiate court action but only the state holds the jus puniendi (right to punish).
Classification of Parties
Multiple Parties
Two theories explain multiple parties:
- Two opposing positions: accuser (active) and defendant (passive). In Spain, the active position can be held by:
- Public Prosecutor
- Popular Prosecution
- Private Prosecutor
- Prosecutor: Public and quasi-offenses (requiring prior complaint).
- Popular Prosecution: Public offenses.
- Private Prosecutor: Public and semi-public crimes.
- Private Prosecution: Private offenses (e.g., libel).
In public offenses, all three accusers may participate, while in semi-public crimes, only the Prosecutor and Private Prosecutor are involved.
The Accusers
Ministry Fiscal (Public Prosecutor)
The Public Prosecutor’s allegation occurs in the second phase of the trial. Functions include:
- Promoting action in criminal and semi-public offenses.
- Inspecting case files for judicial training.
- Forming a preliminary procedure (only in abbreviated processes).
Exercise of Criminal Proceedings
The Prosecutor can oppose actions brought by others and request acquittal. The law dictates the consequences of the Prosecutor’s requests.
Popular Accuser
Article 125 of the EC grants all citizens the right to bring popular actions, promoting justice and legality. Exclusions include foreigners without full civil rights, judges, magistrates, and close family members of the accused. Denial of this right is not subject to habeas corpus protection. A complaint is required for public offenses.
Private Prosecutor
Recognized by the EC (Article 24.1), the Private Prosecutor is typically the victim of the crime. Requirements:
- Open to Spanish citizens and foreigners.
- Legal persons are also entitled.
- Applicable to public and semi-public crimes.
Participation options:
- Filing a complaint and joining the process as a party.
- Appearing in an ongoing process with a lawyer’s signature.
Private Prosecutor (Private Offenses)
Specific to private crimes (e.g., libel, slander), the aggrieved party files the complaint. The Private Prosecutor has sole ownership of the criminal action; the Public Prosecutor cannot initiate or participate.
Conclusion of the Process
:
“Pardon the offense does not require any approval except in cases of minors or disabled.
“By renunciation of action by the offended.
ITEM 3: I-charged parts: A) Concept, B) Capacity and legitimacy. C) Application procedure. III .- The absence of the accused-defendant: A) In the regular process, B) Short, C) process failures.
The defendant:
A) Concept
Is that person or party against whom it runs a process. Depending on the situation or stage that is, may be called:
Charged-charged ·: A taxable person, the proceedings brought against him as a person and determined. He is accused or defendant if:
“There’s subpoena.
-Judicial detention
-Pre-trial detention
“Allegations or complaints
· Process: well defined in the regular process since there is an indictment. (in the abbreviated process is not well defined).
· Defendant: already in the second phase of the process when it has made the provisional classification (regular procedure) or the indictment (summary procedure) it was accused when the trial takes place.
· Condemned: against which it has issued a conviction, if the sentence is told acquittal acquitted.
· Reo: when serving a sentence imposed in the sentence.
The start of the preliminary procedure can be followed without any accused (except in private crimes), because some of the features of this procedure is to find the perpetrators, but by the end of the procedure should be a possible perpetrator, not If so, the criminal process can not continue and will be archived for provisional dismissal ..
B) Capacity and legitimacy:
– To be part: living individuals, excluding things, animals, dead and legal.
Capacity – standing: Everyone can participate consciously and have the capacity to exercise the procedural rights the law grants the accused.
Attributed to the fact that someone does become part of the process and
Therefore legitimization from that time is entitled.
C) Application procedure:
It is the need for an attorney to represent and counsel to defend him. This rule allows for such acts as:
“Statements of the accused and the accused.
-Care.
-Fixation of the criminal acts.
-Hearing and others.
Exceptions:
-self-defense.
-Process for lack (in this process is not required attorney)
III.-THE ABSENCE OF IMPUTED DEFENDANT:
A) In the regular process:
The exercise of the ius puniendi by the state in principle can not be exercised in the absence of the accused defendant. The accused is not compelled to testify but if you are obliged to appear before the judicial appeal so much so that the subpoena can become a detention order to the appearance unjustified.
The absence in the summary may reach completion in each of the phases:
1 .- Declaration of rebellion: it happens when the accused be not found at his home to notify, no registered or on parole was not presented in court or fugare the establishment. The judge sent requisition to issue its call and searches. This statement means:
“A site to the accused to appear before the court.
“An order directed the police to search for the missing.
If within a period not present the absent, proceed with the order for the declaration of default.
Effects of revolt:
If the default is:
• In summary or preliminary phase of this will continue until it is finished, suspended after their course and closed with the cars.
• In phase trial when the defendant declared in default, suspended the trial and is archived here since no trial without the accused.
If the police find the rebel or appears, will reopen the case.
B) In the process Abbreviations:
In certain conditions it is possible that the law governing a process which allowed the completion of the trial in absentia. This is what has made the LO 7 / 1988 regarding the abbreviated process. In the articles of the CPP there are two possibilities:
1) If the penalty is applied for> 2 years in prison or being of a different nature beyond 6 years, and classes and call for indictment of the accused, if it is not declared rebels and entails the suspension of JO and archiving.
2) If the penalty applied is equal to or lower than those before it is conducting the trial in absentia. But these requirements must be:
The accused · designate an address for notifications (citations) to get trial.
· Always will require the presence of the absent attorney or trust or office.
· There must be some applications of the prosecution and defense counsel hearing.
• The absence of the accused to be unjustified.
The court must consider that there is sufficient evidence to try in absentia.
C) In the process for Failure:
The CPP allows prosecutions for offenses in the absence of the accused. This possibility always exists showing that the defendant has been quoted with the formalities. Be distinguished as follows:
“If the defendant resides outside the municipality has no obligation to attend the acts of the trial,
“If the defendant resides at the headquarters location of the court can not attend the trial, but it is necessary that the judge considers his statement and ordered to appear in person and it has two means of coercion, imposition of a fine and do lead to their presence by the public force.
“If the accused has no known address, met the requirements of the summons, the trial must be made in his absence and sentencing.