Spanish Criminal Procedure: Key Concepts and FAQs
1. Courts and Jurisdiction
What are the courts with constitutional power to judge and execute judgments?
These are the Courts.
What is the tenure of judges and magistrates?
Once appointed, judges and magistrates can only be removed for just cause, determined through a legally established procedure.
What principle ensures the legislature and executive cannot interfere in judicial matters?
Independence.
Explain the difference between acción (action) and pretensión (claim).
Acción is the fundamental right to access the courts and initiate proceedings. Pretensión is the specific claim brought before the court.
Why is the legal process public and not private?
The legal process is public because it is established by the legislature and connects a public authority (the court) with an individual’s constitutional right (the right to legal action).
Name two essential aspects of the adversarial principle.
- Decisions should not go beyond the claim presented.
- There should be a distinction between the investigation phase and the decision phase, with different bodies responsible for each.
When is a process considered essentially oral?
A process is essentially oral when the judicial decision is primarily based on oral arguments and evidence presented during the trial.
What are the courts with criminal jurisdiction beyond the provincial level?
- Supreme Court (Criminal Chamber)
- National High Court (Criminal Division)
- Central Court of Penitentiary Surveillance
- Central Criminal Courts
- Central Instruction Court (heard by the Criminal Division of the National High Court)
- Central Juvenile Court
What is impartiality?
Impartiality means the absence of any interest in the outcome of a dispute other than the strict application of the law.
What two basic institutions control judicial bias?
Guarantees of impartiality are outlined in Articles 217 to 228 of the Organic Law of Judicial Power (LOPJ) and are controlled through abstención (recusal) and recusación (challenge).
In which courts is the duty service configured?
Duty service is configured in Duty Courts.
What is the purpose of the duty service?
For procedural efficiency, Duty Courts handle tasks such as receiving complaints, conducting preliminary investigations, immediate judgments of minor offenses, emergency measures related to minors, and other actions assigned by law.
What are the organizing principles of the Public Prosecutor’s Office (MF)?
- Unity: It is a single entity for the entire state.
- Two-way dependence: External dependence on the government, which appoints the Attorney General, and internal dependence, as the MF is hierarchically organized.
What are the operating principles of the MF?
- Legality: It is subordinate to the Constitution and the legal system.
- Impartiality: It must act impartially and objectively in defending the interests assigned to it.
2. Competence and Types of Offenses
What is objective competence?
Objective competence determines which court has jurisdiction based on:
- Quantitative factors (e.g., classifying offenses as felonies or misdemeanors)
- Qualitative factors (e.g., the defendant’s status as a minor or the type of offense)
What is functional competence?
Functional competence determines which court is responsible for specific activities, procedures, and procedural steps.
What is territorial jurisdiction?
Territorial jurisdiction allocates jurisdiction to a specific court among those of the same level within a geographical area (e.g., among different provinces).
Which courts handle minor offenses (faltas)?
- Justice of the Peace Courts
- Criminal Courts
- Courts of Violence against Women (in specific cases)
What criteria determine whether a crime is handled by the Justice of the Peace Court (JPE) or the Provincial Court (AP)?
The severity of the penalty determines the court. Crimes with penalties up to 5 years are handled by Criminal Courts, while those with higher penalties are handled by the AP.
List two types of offenses handled by the National High Court (NA).
- Drug trafficking by organized groups
- Terrorism
- Crimes against the Crown
List two types of crimes handled by the Provincial Court (TJ).
- Threats
- Burglary
- Bribery
- Misappropriation of public funds
Which body investigates whether the Supreme Court (TS) has jurisdiction?
An investigating judge is appointed from among the members of the TS, following a pre-established rotation. This judge cannot be part of the prosecution team.
Which body investigates a crime of habitual physical abuse by a husband against his wife? What if it’s by a wife against her husband? What approach determines territorial jurisdiction in each case?
Cases of abuse by a husband against his wife are handled by the Courts of Violence against Women. If the abuse is by a wife against her husband, it would be treated as an ordinary assault and handled by a Magistrate’s Court.
In the first case, territorial jurisdiction is determined by the victim’s address. In the second case, the traditional approach is followed, and the court in the location where the crime was committed has jurisdiction.
Which body hears appeals against decisions by the Central Instruction Court (JCI)?
The Criminal Division of the National High Court (AN).
Give two examples of related crimes and identify the competent court for the trial (decision phase).
- Example 1: Theft of a vehicle used in a subsequent robbery. The competent court would be the corresponding Criminal Court.
- Example 2: Organized armed gangs involved in arms trafficking and money laundering. The competent authority would be the National High Court.
3. Parties in the Process
Depending on their position in the process, what types of parties are there?
- Accusing or active parties: Public Prosecutor, private prosecutor, popular prosecutor, and the injured party as a civil plaintiff.
- Accused or passive parties: Defendant and, alongside them, the civilly liable party.
Who can be active parties in a public offense? A semi-public offense? A private offense?
- Public offense: The Public Prosecutor is obligated to act. Private and popular prosecution may also be possible.
- Semi-public offense: A complaint from the victim is required. The Public Prosecutor can also act.
- Private offense: Only the victim can initiate the prosecution.
In what types of crimes can private prosecution be pursued?
Private prosecution can be pursued in public and semi-public crimes.
Does a 15-year-old have legal standing?
Yes, a 15-year-old has the capacity to be a party in a legal process, regardless of their age, as long as they have the capacity to understand the proceedings.
What is the orden de busca y captura (search and arrest warrant)?
It is a tool used to compel the appearance of an absent defendant. It ensures the presence of the accused.
What are the requirements for holding a trial in absentia in the procedimiento abreviado (summary procedure)?
- The requested sentence must be 2 years or less of imprisonment, or 6 years if it’s a different type of penalty.
- The accused must have been summoned to their first appearance or a designated person must have been notified.
- Legal counsel must be present.
- It must have been requested by one of the accusing parties.
- The absence of the accused must be unjustified.
- If the above requirements are met, the court must believe there is sufficient evidence for prosecution.
What is the European Arrest Warrant (EAW)?
The EAW (Law 3/2003 of March 14) is a judicial decision issued by an EU Member State for the arrest and surrender of a person by another Member State for prosecution or the execution of a sentence involving deprivation of liberty. It aims to replace extradition between Member States.
What is the executing authority for the EAW in Spain? What about the issuing authority?
- Executing authority: The Criminal Chamber of the National High Court.
- Issuing authority: The judge or court handling the case.
4. Legal Representation and Defense
What is legal representation (postulación)?
It refers to the requirement for parties to be assisted and represented by legal professionals: a lawyer and a procurador (court agent).
Are there any cases where legal representation is not required?
In proceedings for minor offenses (faltas), a lawyer or procurador is not required. In crimes against road safety, the assistance of a lawyer is mandatory.
What is a broad or full legal defense?
It refers to actions favorable to the defendant carried out by public authorities during the legal process.
Give two examples of the exercise of self-defense by the accused.
- The right to remain silent.
- The right to the last word.
- The right to propose an expert witness.
Can the accused be deprived of their chosen lawyer?
In cases of incommunicado detention, the detainee must be assisted by a court-appointed lawyer.
5. Claims and Compensation
What are the essential elements of a punitive claim?
- Subjective element: The person accused.
- Objective element: The statement of facts on which the claim is based.
What claims are usually pursued in criminal proceedings? Why does one of them have a contingent character?
The punitive claim (for the offense) and the claim for compensation are usually pursued. The claim for compensation is contingent because it may or may not be exercised, while the punitive claim is mandatory except in private offenses.
What identifies the subjective element of a claim for a terrorist offense?
The subjective element is determined by the individual’s actions and intent, rather than simply by membership in a terrorist group.
What is the objective element of a claim for theft?
The objective element is the unlawful appropriation of someone else’s property using violence or intimidation.
List two examples of overlapping punitive claims.
- When multiple defendants have participated in an offense but with different degrees of involvement (e.g., perpetrator, accomplice, accessory).
- When the same defendant is charged with multiple offenses related to the same event (e.g., burglary and assault during the burglary).
What are three possibilities regarding the content of a claim for compensation?
- Restitution: Restoring the situation to how it was before the offense.
- Reparation: Repairing the damage caused to property.
- Compensation: Monetary compensation for the damages suffered.
What is the effect of the victim withdrawing the punitive claim in private prosecutions?
It leads to the extinction of criminal responsibility.
6. Procedural Requirements and Acts
Give three examples of procedural requirements and explain why they are considered as such.
Procedural requirements are preconditions that must be met for procedural acts to be valid. Examples include:
- Visual inspection: Ensures the court has jurisdiction and is properly constituted.
- Exhumation of a body: Requires proper authorization and adherence to legal procedures.
- Issuing a summons: Must comply with legal requirements regarding form and notification.
If you are summoned to court on May 24th at 11:00 AM, are you being given a plazo (time limit) or a término (deadline)?
You are being given a término (deadline).
What are the working hours for the initial phase of a criminal investigation?
The initial phase can take place any day of the year and at any time.
Who is responsible for the material aspects of the process beyond the mere processing established by law?
The court clerk is responsible for the material aspects of the process, but decisions that go beyond mere processing are the responsibility of the judge.
What are the acts of conclusion (actos de conclusión)?
These are the acts in which the parties present a summary of their arguments, evidence, and the legal consequences they believe should arise.
Is it possible to challenge the validity of a final decision? Explain your answer.
Yes, but only through the process of revisión (review) as outlined in Article 241 of the LOPJ. This is only possible if there has been a violation of fundamental rights (Article 53.2 of the Spanish Constitution) that could not be addressed earlier and if there is no other ordinary or extraordinary appeal available. The challenge must be filed within 20 days of becoming aware of the violation and within five years of the decision being issued.