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Ley de Enjuiciamiento Criminal


The adaptation of our criminal procedural system to the EU Regulation 2017/1939 of the European Public Prosecutor's Office brings with it the opportunity to perform a structural reform of the criminal procedural model: the full adaptation of the criminal process to the model of the 1978 Spanish Constitution, which assigns public action to the Public Prosecutor's Office, and the function of judging and enforcing what is judged to judges and magistrates, together with the protection of rights and freedoms.

By assigning the direction of the investigation to the Public Prosecutor's Office, Spain will harmonize its criminal prosecution system with European Law, bringing it into line with a model of investigation that is widely established among the European Union's Member States. It should be noted that the current Criminal Procedure Act was passed in 1882.

Regarding domestic issues, the new model of criminal procedure strengthens the role of the judge and the prosecutor: judging and enforcing what has been judged and promoting justice, respectively.

Regarding the European field, the new figure of the European Public Prosecutor is incorporated into our legislation. In this regard, the approval of the Regulation on the European Public Prosecutor's Office in 2017 constitutes the definitive boost to the structural reform of the Spanish criminal procedure, since the Community institution, as a body with its own legal personality, is attributed - as stated in paragraph 11 of its Regulation - the functions of "investigating, prosecuting and bringing to trial the perpetrators of crimes against the financial interests of the Union".

Content-wise, the reform project that the new Criminal Procedure Act entails is structured around three axes:

  • Updating the criminal prosecution model.
  • Incorporating new tools for the fight against crime. 
  • Strengthening of guarantees.

With regard to the updating of the criminal prosecution model, a new system that is fully consistent with the architecture of the Rule of Law established by our Constitution is being designed through the Draft Bill on Criminal Prosecution.

Specifically, the roles are reassigned among the new figures of:

  • The investigating prosecutor, who will be the one to conduct the investigations and, when necessary, prosecute. However, the authorization of the Magistrate must be obtained before any rights-restricting measure can be taken.
  • The Magistrate, whose main function will be to protect the rights of the participants in the process, deciding on any aspect that may affect them.
  • The Preliminary Hearing Judge, whose main function will be to carry out the accusation trial during the intermediate phase and to purge the evidence of illegality. That is to say, to decide, without being affected beforehand, on the need to open an oral trial and, if necessary, to decide which evidence should be used in the trial and which should be expelled from the proceedings because it was obtained through the violation of fundamental rights. 

By including these figures, it is possible to clearly distinguish within the process the functions of:

A. Research.

B. Protection of the rights of those under investigation.

C. Decision-making regarding the appropriateness of opening an oral trial and identifying the evidence.

With regard to the incorporation of new tools for the fight against crime, the regulation represents a qualitative leap in the updating of our criminal legal system, as it regulates the most advanced investigation techniques against crime, such as scientific evidence, automated data processing and intelligent searches, undercover investigations conducted in digital environments or telematic reporting, as well as improving the regulation of DNA.

Finally, with regard to the extension of guarantees in criminal proceedings, the need to grant a central role to victims during the process should be emphasized. The regulatory text grants the victims their own statute, contemplating a broad catalog of measures to avoid re-victimization and incorporating restorative justice into the procedural norm. In the same vein, the new law provides for new protection mechanisms for minors and persons with disabilities.

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