Stronger Public Prosecutor's Office and parties banned from prosecuting: the keys to the new procedural Criminal Law

MadridThe council of ministers will today give the green light to the new criminal prosecution law, one of the promises of the minister of justice, Juan Carlos Campo, who already announced at the beginning of his mandate that he wanted to introduce important changes in the legislation regulating judicial procedures. Among the most important of these is the strengthening of the role of the Public Prosecutor's Office, which will now be in charge of the pre-trial phase, the first stage of criminal proceedings: an intermediate phase is created in which a so-called "preliminary hearing" judge, unconnected with the investigation, will be able to decide whether to open an oral trial or to close the case. A relevant modification is also introduced: political parties and unions will no longer be able to exercise the popular accusation. Furthermore, the judicialisation of the Catalan independence bid also leaves its mark on the new law.

Pre-trial detention

The judge will have to argue further the deprivation of liberty against those holding public office, as three judges of the TC warned about a Junqueras appeal

The law on criminal prosecution that the Spanish government wants to amend stipulates that the adoption of provisional detention for persons holding public office must be specially argued. This is reflected in a demand made by three Constitutional Court judges in a separate vote against a sentence that overturned an appeal by ERC leader Oriol Junqueras on his provisional detention issued by Judge Pablo Llarena and ratified by the appeals chamber of the Supreme Court. An expert who participated in the preparation of the text consulted by ARA has emphasised the need to "incorporate this guarantee", which is that it is necessary to "reinforce the motivation and justification of the measure when one is a public official".

Still on the subject of this conflict, the new rule provides that anyone who has a final decision on provisional detention and is being investigated for rebellion or terrorism may be automatically suspended as a public official. This is justified by "the exceptional threat that this criminal activity poses to the democratic state and the rule of law," the law states. Beyond such serious charges, the spirit of the law is to advocate finding alternatives to provisional detention. That is why a monitoring commission will be set up "to ensure that the courts and the public prosecutor's offices have adequate means to use less serious measures than pre-trial detention".

Pre-trial detention of up to 24 hours

A lighter arrest is introduced and the figure of a police officer outside the investigation responsible for custody

An important novelty introduced by the rule relates to pre-trial detention: the already existing modality allows for the detention of a person for 72 hours before being brought before a court or released, and now creates a parallel of a maximum of 24 hours for actions that require the presence of the person concerned - and it is not possible to achieve this with less severe measures - for specific acts or resolutions.

In the case of pre-trial detention, the prosecutor now has the power to release the detainee or bring him before the courts. In addition, the figure of a police officer outside the investigation is incorporated, who is responsible for the custody of the person involved, with the aim of ensuring that fundamental rights are respected.

Investigation phase

The investigation is led by the Public Prosecutor's Office, while a judge of guarantees ensures respect for fundamental rights

The reform of the Lecrim seeks to reinforce the presumption of innocence, according to the Ministry of Justice, and it is with this objective that a change in the role of the Public Prosecutor's Office and the judges takes place. Three stages in the criminal procedure are created: the first is led by the Public Prosecutor's Office, which will carry out the task of investigation - now by an investigating judge - always seeking to maintain a position of impartiality, but there will be a guarantee judge above him who will ensure that the fundamental rights of those under investigation are respected - now called "defendants" whatever the stage of the proceedings - and who may also authorise proceedings.

While at present the investigating judge decided what charges could be requested by the Public Prosecutor's Office, it will now be the Public Prosecutor's Office that will adopt them, although the judge of guarantees will have the power to resolve possible challenges by other parties. The decisions of this judge may not be appealed, except in the case of orders to close the case or orders for precautionary measures. However, the Public Prosecutor's Office will have to ask for permission for proceedings that require the violation of fundamental rights, as well as to order the secrecy of the proceedings, which the judge of guarantees will have to confirm or revoke within 48 hours of the order of the Public Prosecutor's Office. Extension of this period will require judicial authorisation. In addition, this judge will be responsible for ensuring that the party under investigation can also request proceedings and will check that a procedure is not unduly delayed.

This initial phase is closed with the indictment of the Prosecutor's Office, which may request that the proceedings be brought forward or that they be dismissed. In this second case, there is a possibility that another party or victim may expose to the judge of guarantees the need for the criminal proceedings to be pursued through an incident of judicial authorization of the non-public accusation.

Intermediate phase: prosecution trial

The preliminary hearing judge studies the prosecution and defence briefs and decides whether to open an oral trial

Once the investigation is closed, the "indictment trial" is opened, in which a so-called "preliminary hearing" judge will have to decide whether or not to hold an oral trial after receiving the provisional indictment and defence briefs. His task is also to analyse the investigation carried out by the Prosecutor's Office and to agree on a dismissal if he does not see sufficient grounds for the charges to go to trial. He can agree to proceedings requested by the defence which have not been conducted and review that no material has been illegally obtained during the investigation so as to prevent it from reaching the trial. This is a procedure that is now done in the just before the oral trial and it is the same court that judges the case: with the change it will be a judge who will study it and this will allow the court to have no prior contact with the case until the oral trial. His intervention starts with the admission of the evidence.

Oral trial and sentence

The defendants will not be required to testify first and a reference witness will not be used to convict

The last phase of the criminal procedure, the oral trial, also has some novelties. One of the most notable is that the defendant's statement will not necessarily have to be made at the beginning, but can be expected "at the time deemed appropriate", such as when presenting the evidence for the defence. In addition, the defendant may be absent from sessions that do not directly affect him or her. The preliminary draft also provides that the evidence developed during the plenary session will have a "higher value" than the proceedings carried out during the investigation. With regard to sentencing, the text stipulates that sufficient corroborative elements will be required to convict when the only accusatory evidence is based on a reference witness, the mere visual identification of the accused or a single statement by a co-accused.

Parties and trade unions may not file popular accusations

The new law wants to avoid the "risk of instrumentalisation"

The law reform addresses the controversial possibility of political parties and trade unions exercising popular accusation. The ministry's decision is that it will be banned. "Their exclusion derives from their peculiar insertion in the constitutional order as organisations of public relevance and from the special risk of instrumentalisation of the process that their active intervention in the public debate provokes," the text says. In addition, the new law establishes some crimes that are suitable for the exercise of this alternative accusation to that of the Public Prosecutor's Office, such as infractions that protect diffuse interests or crimes of corruption.