TYPES OF CRIMINAL PROCEEDINGS

The criminal process is the set of actions carried out by the Judge or Court and the rest of the participants in the process, which are legally regulated, and whose purpose is to ascertain the circumstances of the crime and the identification of the possible offenders, and to determine the criminal liabilities derived from the criminal acts committed, imposing, as the case may be, the corresponding penalty or security measure.

Depending on the seriousness of the facts, their investigation and prosecution follows one procedure or another. Below, we will look at the different criminal procedures currently in existence.

Ordinary summary

The ordinary summary proceeding is used to investigate and prosecute those crimes punishable by a prison sentence of more than 9 years, except those that must be tried by the Jury Court. The norms that regulate this procedure are found in articles 259 and following of the LECrim and are of supplementary application for the rest of the criminal procedures.

The falsehoods of the summary process are:

• Summary: this is the instruction or investigation phase of the procedure, during which the examining magistrate carries out a series of diligences in order to clarify what happened and identify those possibly responsible for the crime. Throughout this phase, among others, the statement of the investigated, the statement of witnesses, the practice of entries and searches in homes…
• Intermediate phase: in this phase it is decided whether or not to open an oral trial against a specific person for the commission of a crime. This phase begins when the examining magistrate issues the order of conclusion of the preliminary investigation and transfers the proceedings to the Provincial Court, which must decide whether to reopen the preliminary investigation phase to carry out any additional investigation, whether to dismiss the proceedings (on the grounds that the facts do not constitute a crime or because it has not been possible to identify those responsible) or whether to open an oral trial (on the grounds that the facts apparently constitute a crime).
• Oral trial: if the Court agrees to open an oral trial, the parties must present their provisional conclusions, which are known as the prosecution and defense briefs, and then the oral trial is held, during which the evidence proposed by the parties and admitted by the Court is examined and the reports of both the prosecution and the defense are presented.

Abbreviated procedure

The abbreviated procedure is regulated in articles 757 and following of the LECrim and is used for the investigation and prosecution of crimes punishable by a custodial sentence of less than 9 years or other types of penalties (such as a fine or disqualification).

The phases of this procedure are very similar to those of the summary procedure, but with the following differences:

1. The investigation or instruction phase is called preliminary proceedings, but its content is very similar to that of the summary proceedings. Once the necessary investigative procedures have been carried out, the examining magistrate must decide whether to dismiss the case (on the grounds that the facts are not criminal or that the perpetrator has not been identified), or whether to issue an order for abbreviated proceedings (on the grounds that the facts do constitute a crime).
2. Intermediate phase: this phase begins with the issuance of the Order of abbreviated procedure and it is then when the Judge of Instruction transfers all the proceedings to the parties involved (both the prosecution and the defense) and the prosecution is summoned to present its provisional conclusions or indictment. Once the latter has been presented, the Judge must decide whether to open an oral trial against the person under investigation and, if he decides to open it, he will summon the defense to present its provisional conclusions or defense brief.
3. Oral trial: at this point, the examining magistrate transfers all the proceedings to the judge or court in charge of the trial of the facts (which may be the Criminal Court or the Provincial Court). The latter then decides whether to admit or deny the evidence proposed by the prosecution and the defense in their briefs of provisional conclusions and, subsequently, the oral trial is held.

Speedy trial

The speedy trial regulation is provided for in articles 795 and following of the LECrim and is used for the investigation and prosecution of crimes punishable by a prison sentence of no more than 5 years or any other sentence of no more than 10 years, provided that the criminal proceeding has been initiated as a result of a police report. In addition, one of the following circumstances must be present:

• The crime was committed in flagrante delicto, i.e., it was being committed or had just been committed when the perpetrator was discovered.
• That it is, among others, a crime of injury, coercion, threats, habitual violence against family members, theft, robbery, crimes against traffic safety, crimes of damage, crimes against public health in its attenuated modality…
• That the investigation of the crime is expected to be simple.

As a result of the police report, a first phase of investigation of the facts is initiated, a phase known as Urgent Proceedings, during which the necessary steps are taken to clarify what happened, such as the statement of the investigated person, and his criminal record is compiled.

There is the possibility of reaching an agreement with the Public Prosecutor’s Office, an agreement known as a plea bargain, which consists of an acknowledgement of facts and which allows the reduction of the sentence requested by the Public Prosecutor’s Office by one third. When is it possible to reach a plea bargain? Provided that there is no private prosecution, that the facts subject of the accusation constitute a crime punished with a penalty of up to 3 years of imprisonment or any other penalty not exceeding 10 years, and that the penalty requested by the Public Prosecutor’s Office does not exceed 2 years of imprisonment once the reduction of one third has been applied. In case of failure to reach an agreement, the oral trial will be held.

Misdemeanor trials

The trial of misdemeanors is regulated in articles 962 and following of the LECrim and is applicable to the prosecution of misdemeanors, i.e., those crimes that carry a minor penalty (for example, a fine of up to 3 months or community service of up to 30 days).

One of the main characteristics of this procedure is that there is no investigation or investigation phase, but rather the case proceeds directly to the oral trial. In addition, the competence for the prosecution of the facts corresponds to the Judge of Instruction (who, in the rest of the procedures, is in charge of the investigation phase and not of the prosecution of the facts).

This is a procedure in which it is only mandatory to be represented by a lawyer if the crime is punishable by a fine of 6 months or more, although it is advisable to be assisted by a lawyer in any case, to ensure a better defense.

Jury Procedure

The Jury procedure is regulated by a specific law, the Organic Law 5/1995 of the Jury Court, and is applicable to the investigation and prosecution of certain crimes, such as homicide, threats, omission of the duty to assist, breaking and entering, bribery, influence peddling, embezzlement…

The main characteristic of this criminal procedure is that the oral trial takes place before a Jury, formed by nine persons who have no legal knowledge, and the Presiding Magistrate, who is a Magistrate of the Provincial Court. The jurors are in charge of deciding whether or not the criminal acts attributed to the accused are proven or not, also deciding on the guilt of the accused. For his part, the Presiding Magistrate is in charge of deciding the penalty to be imposed on the accused and of drafting the sentence, which must reflect the verdict of the Jury.