What does the new reform of the Criminal Procedure Law consist of?

Reform of the Criminal Procedure Law by Royal Decree-Law 5/2023

On June 28, 2023, Royal Decree-Law 5/2023, dated June 28, 2023, was published in the Official State Gazette (BOE), which regulates various procedural measures that modify the regulations governing the process in the different jurisdictional orders.

Specifically, it includes a reform of the Criminal Procedure Law, which will enter into force within 30 days, and includes the following novelties:

1. Modification of article 746 LECrim.

A series of measures are introduced to allow for a better reconciliation of personal and family life with the professional performance of the legal profession, the procuracy and the graduates before the Courts. In this sense, article 746 LECrim is modified, adding to section 4 of the precept a new paragraph relating to the suspension of the oral trial in cases of sudden illness, death, hospitalization or surgery for serious reasons of a relative up to the second degree by blood or affinity of the lawyer of any of the parties. Thus, paragraph 4 is worded as follows:

“The suspension of the trial shall also be applicable when a member of the Tribunal, the Prosecutor or the defense counsel for any of the parties suddenly falls ill to such an extent that he or she can no longer take part in the trial and cannot be replaced without serious inconvenience to the parties, or when he or she is unable to continue to take part in the trial.The same shall apply in the case of the defense counsel for the interested party. The same shall apply, in the case of the defender of any of the parties, in the event of death or hospitalization or surgical intervention for serious reasons, of a relative up to the second degree by blood or affinity”.

Likewise, a new section is added to the same precept that provides for the suspension of appointments due to appointment by the public defender’s office and in the event that the childbirth has occurred or started suddenly or without sufficient time for another lawyer to take charge of the matter and prepare it. In this sense, the new section establishes the following:

“7. If it is a process in which the professional lawyer has been appointed by the public defender’s office, the procedure shall only be suspended for the time that the corresponding professional association delays in providing the appointment of a new professional in order to avoid causing defencelessness to the party. If the suspension is requested because the birth has occurred or started suddenly, or without sufficient time for another lawyer to take charge of the matter and prepare it, the appointment shall be suspended for the minimum time necessary in view of its complexity.”

On the other hand, it should be noted that article 179 of the LEC (of supplementary application to the LECrim) regulates the leave of absence due to birth and care of a minor as a cause for suspension of the course of the proceedings and not only of the hearings or other appointments.

2. Modification of articles 855 and 858 LECrim.

In view of the existing situation in the Second Chamber of the Supreme Court, the regulation of the criminal cassation appeal is modified, introducing a series of filters consisting of:

1.To require that the brief include a brief extract of the ground or grounds for cassation that the appellant intends to present, as well as citing the precept of the Criminal Code of a substantive nature that is considered to have been violated. Thus, a new formal burden is introduced for potential appellants in cassation. To this end, article 855 LECrim is modified, adding the following paragraph:

“When it is intended to file an appeal in cassation against a judgment issued on appeal by a Provincial Court or the Criminal Chamber of the National Court for infringement of the law, the appellant must file a brief stating, in separate paragraphs, as clearly and concisely as possible, the concurrence of the requirements demanded, identifying the substantive precept or precepts that are considered infringed and succinctly explaining the reasons for such infringement.”

2. To expressly provide that the Provincial Court or the Criminal Chamber of the National Court may consider the appeal unprepared, in the event that the motive or motives are alleged in a manner other than that provided for in Article 849.1 of the LECrim (error of law) or the substantive precept of the Criminal Code that is considered to have been violated is not cited. The following paragraph is added to Article 858 LECrim:

“In the case of an appeal in cassation against a judgment handed down on appeal by a Provincial Court or the Criminal Chamber of the National High Court, the Court shall refuse, by reasoned order, to prepare the appeal when grounds other than those provided for in Article 849.1 are alleged, a substantive precept allegedly infringed is not identified, the required brief extract is not provided, or its content departs from the scope of Article 849.1.º.”

3. Modification of article 882 LECrim.

Article 882 LECrim eliminates the possibility of challenging the cassation challenge, which previously only occurred when the party was an appellant. Thus, the precept is worded as follows:

“Within the term indicated for the formation of the note by Article 880, the public prosecutor and the parties shall be instructed and may challenge the admission of the appeal or the adhesion to the same. If they challenge it, they shall accompany with the written notice of challenge as many copies of the same as there are other parties to whom the counsel for the Administration of Justice shall immediately hand it over.”

4. Modification of article 889 LECrim

Finally, a new section is introduced in Article 889 LECrim regarding the inadmissibility in certain cases of the cassation appeal provided for in Article 847.1 a) LECrim, that is, the cassation appeal for violation of the law and for breach of form against judgments handed down in sole instance or on appeal by the Civil and Criminal Chamber of the High Courts of Justice, and against judgments handed down by the Appeals Chamber of the National High Court. Specifically, the following paragraph is added to the precept:

“The dismissal of the cassation appeal in the case provided for in Article 847.1.a) may be agreed by a succinctly reasoned order provided that there is unanimity due to lack of relevance for appeal and the custodial sentence imposed, or the sum of the custodial sentences imposed, does not exceed five years, or any other sentence of a different nature has been imposed, whether single, joint or alternative, regardless of its amount or duration“.

Therefore, the powers of the Second Chamber of the Supreme Court to dismiss appeals on the grounds of expediency are extended, even in cases that are objectively serious according to the claims made by the parties. It should be recalled that the amendments relating to cassation appeals will only apply to those appeals filed after the entry into force of Royal Decree-Law 5/2023. Appeals filed prior to its entry into force will continue to be heard in accordance with the previous procedural legislation.

As usual, this law has been modified again, you can read our article on the new update of the Reform of the Criminal Procedure Law by Royal Decree-Law 6/2023.