The Instruction Phase in Criminal Proceedings

Posted on Nov 7, 2024 in Law & Jurisprudence

Lesson 9: The Instruction Phase

1. Introduction

1A. Run-on Instruction

A run-on instruction is part of a criminal appearance of the facts known to the judge. Steps are performed to accurately assess all relevant legal aspects. Its result allows us to assess whether the case should proceed to the second phase (trial) if there is still evidence of an offense and it can be attributed to an individual.

Article 299 of the Criminal Procedure Code (CPP) summarizes the actions to prepare for trial:

• Preliminary and Different Phase of Trial: To investigate and document the perpetration of crimes, including circumstances that may influence their assessment, and the guilt of the offenders. The aim is to provide data for the prosecution, not to initiate the trial of the crime.
• Securing Persons and Monetary Liabilities: Interim measures also play a role, extending to protect victims and prevent further criminal activity.
• Abbreviated Process (Article 777): Determining the nature and circumstances of the act, the individuals involved, and the authority responsible for prosecution.

1B. Divergent Characteristics from Trial

The instruction phase often differs from the actual trial in several aspects, including:

• Orality, Concentration, and Immediacy: It qualifies the principle of orality of the trial itself, as raw documentation of each step taken serves as the basis for further decisions or actions.
• Succession of Acts: It involves a series of acts that can extend over time, unless expedited through concentrated speedy trials.
• Judge’s Presence: It requires the presence of the judge at some events, but this should occur during the investigation with targeted judges, whereas in the trial only those who can present evidence for sentencing are present.

Steps: Investigation and Evidence

Acts of evidence are developed exclusively in the trial, with exceptions:

• Proof in Advance: Conducted before the judge with the involvement of the parties when evidence cannot be presented at trial (Article 777.2 of the Criminal Procedure Law).
• Preconstituted Proof: Investigative acts conducted during the investigation or preliminary phase with unique and irreproducible content (e.g., recognition conference, entry and registration, wiretapping, alcohol monitoring) can also serve as evidence.
• Introduction of Evidence from the Investigation or Pretrial Phase: (Article 714: in case of discrepancy between statements made in court and during instruction; Article 730: presenting evidence during the reading of the instruction in case of failure to hear evidence at trial).

The general principle is that evidence should be presented at trial, in a contradictory manner, orally, and with the immediacy of the judge or court responsible for sentencing. However, this principle is often bypassed through the introduction of evidence obtained during the instruction phase.

The instruction phase applies the principle of official investigation. The judge does not act solely at the request of the parties, although they may propose measures or decisions they deem fit, or the judge can grant a hearing to urge pertinent measures (Article 777 of the Criminal Procedure Law). The judge can order the Judicial Police to act or act directly (Article 315).

Ex Parte Proceedings vs. Ex Officio Proceedings: Article 315 distinguishes between proceedings initiated by a party or by the court. The second paragraph mentions that the summary should only contain information relevant to the object of the proceedings, as determined by law. Therefore, data obtained cannot be excluded from the investigation, however irrelevant it may seem, without hearing the parties.

2. Confidentiality of the Investigation

The proceedings are generally secret against third parties not involved in the case (Articles 301, 302, and related articles of the Criminal Procedure Code). This is to ensure the effectiveness of the investigation and prevent secondary victimization.

However, the principle of confidentiality does not apply to the parties involved (Article 302, first paragraph, and Article 776.3), who have the right to knowledge and involvement in the proceedings.

Exception: Confidentiality for Specific Individuals: Confidentiality can be applied to specific individuals, excluding the Attorney General, who can never be affected (Article 302, second paragraph). This requires a reasoned order, which can be extended for a maximum of one month at a time, with no limit on extensions. Confidentiality must be lifted at least ten days before the conclusion of the instruction. It can apply to the entire case or only part of it.

Confidentiality should only be imposed to ensure the effectiveness of the investigation and limit the rights of the parties when strictly necessary.

3. Principle of Duality or of Parties

The instruction phase may blur the distinction between the prosecution and the defense. There can be no charge or trial without defense, with almost complete equality of participation for both sides. There can be no valid statement against a charged individual until their identity is determined and they are called to participate in the proceedings.

The prosecution remains dormant during the instruction phase, only becoming actively involved upon its conclusion to carry out the prosecution and completion of the process by the judge.

4. Nature of the Instruction Phase

The instruction phase has a mixed nature:

• Management: The investigation is not a judgment.
• Judicial: It determines and governs the law, initiates the judicial process, adopts measures restricting rights, and judicially establishes the viability of prosecution.

5. The Body Responsible for Instruction

5A. Preliminary Investigation

The preliminary investigation is the responsibility of the judge (Article 14.2a).

Proposal for Allocation to the Public Prosecutor’s Office: This proposal is viable under the Constitution, as it ensures that a judge decides on the requested measures limiting rights. It could lead to greater consistency in the judicial system, as judges would not perform functions that are not strictly judicial. It could also prevent procedural errors, as it allows for differentiating between judicial imputation (processing order) and the prosecution’s role.

This model could potentially be generalized to instruction under the Jury Law, where the initiative for investigation lies with the parties, not the judge.

5B. Judicial Instruction Bodies

• Ordinary Investigating Judge:
• Central Investigating Judge for Violence Against Women:
• Special Investigating Judge (appointed in cases of special jurisdiction): Article 304 is unconstitutional or repealed by the Organic Law of the Judiciary. Its potential usefulness should be considered, but under regulated criteria regarding organizational skills and integration.

6. Instruction as a Procedure

6A. Common Features

• Article 300 of the Criminal Procedure Code: Each offense is investigated in a separate summary, except for related crimes.
• The Organic Law of the Judiciary (Article 184) and the Criminal Procedure Code (Article 201): Investigations are conducted every day. This is qualified in terms of deadlines for appeals, as they are not acts of investigation subject to the same exceptional principle.
• The law provides a set of investigative tools: There is a numerus clausus, meaning that any means used must not violate rights and must be capable of providing relevant data. This is strongly related to technological progress (e.g., mobile phones, IP addresses, DNA). However, under the European Convention on Human Rights and the European Court of Human Rights case law, there must be prior legal provision for interference with fundamental rights. This makes it problematic to use evidence obtained without proper judicial authorization, even when there is judicial control over interference with constitutional guarantees. In practice, its constitutional legitimacy has been admitted when there has been proper judicial control of interference, particularly in the case of wiretaps. The unconstitutionality of the regulatory standard in the previous legislature has been declared, but inaction causes dangerous legal uncertainty.