Criminal court procedures in Spain

1. The Habeas Corpus procedure

This is an easy and quick procedure for which arrested persons seek release. They, or someone acting on their behalf (their spouse, relatives, legal representatives, public prosecutor;) may apply by written petition for the detaining person to be brought before the court in order that the legality of the detention can be examined.

Where the arrest is lawful the detained will be returned to custody; otherwise the judge will order release.

Maximum duration of this procedure will be 24 hours.

2. Procedure for misdemeanors

This is an easy and quick criminal procedure involving the prosecution of misdemeanors.

A misdemeanor case usually proceeds to trial on a report or a criminal complaint. Neither local Procurator, nor the lawyer intervention is required.

The trial shall be held at the Court of Instruction (Juzgado de Instrucción) or before the Justice of Peace (Juzgado de Paz) of the district where the misdemeanor has been committed.

The parties usually submit their statements and outline of what they intend to prove in the same hearing.

The aggrieved party is entitled to claim for public liability or injuries suffered (responsabilidad civil) during the criminal process, so they may request to receive the payment of a compensation.

The Public Prosecutor (“Fiscal”) will be involved in those cases that he must act ex officio or on report. He could not act in cases where the misdemeanor may only be prosecuted when the aggrieved party had reported it.

In the event the defendant fails to appear at court upon being summoned, the trial will usually continue, as far as the defendant were legally summoned. A decision may nonetheless be entered against him as he is considered to agree with the facts the claimant state. Where it is the claimant who does not attend the court on the day scheduled, the case will then be filed.

You may submit your appeal to the original court that passed the sentence, it will be the higher court which shall reconsider the case.

3. The Abbreviated procedure

This criminal procedure is used in Spain to try offences punishable by a term of imprisonment for up to 9 years.

The procedure begins with the  criminal complaint  reported by the victim, it  may also begin with a police report or the diligences taken by the Public Prosecutor.

The defendant shall appoint an address in Spain in order that official notices can be sent there. He is entitled to be represented during prosecution by a private Lawyer.

The process has three stages:

  • Previous diligences
  • Preparing the oral trial
  • The oral trial

The first two stages will be held at the Instruction Court (Juzgado de Instrucción).

The oral trial will take place at the court which legally corresponds according to the offence committed:

  • at the Local Criminal Court (Juzgado de lo Penal), for those crimes which prescribed sentence could be imprisonment for 5 years or less, or
  • at the Provincial Court (Audiencia Provincial), for those crimes which punishment could be 5 to 9 years imprisonment.

The Instruction Court is in charge of investigating the crime, its circumstances, perpetrators and any other matters relating to the offence. The Public Prosecutor shall ensure that the defendant’s rights are respected and the victim’s rights are protected.

Defendants shall appear to the oral trial with their lawyer and their attorney at court. Do they fail to appear at the trial, it will be held over and a search order issued against them.

The parties’ evidences, which have been already submitted by the plaintiff and defendant’s lawyer in their respective writs of accusation, will be covered in the last stage of the process.

The trial will be completed with the sentence, which may be appealed either before the Provincial Court (Audiencia Provincial), when it was determined by the Local Criminal Court (Juzgado de lo Penal), or before the National Court, when it was determined by the Provincial

4. The Ordinary criminal procedure

Those persons charged with crimes punishable by a term of imprisonment that could exceed 9 years, are tried through the ordinary criminal proceeding.

As in the criminal abbreviated proceeding, the process has three different stages:

  • The Investigation stage
  • Preparing for the oral trial
  • The oral trial

a) The Investigation stage involves the preparation of the trial and further investigation to ascertain that an offence was committed, and determine the liability of the accused persons. It will be held before the Instruction Court (Juez de Instrucción) and the Provincial Audience (Audiencia Provincial). The prosecution during this phase will be secret to third parties. The defendant ‘s civil liability will be also determined during this stage.

b) The second stage, preparing to oral trial, will take place at the Provincial Audience (Audiencia Provincial). Additional proceedings will be carried out, either to confirm the prosecution or to order the case to be filed when it is been considered that the offence has not been committed, or that the accused person had not perpetrated such crime.

c) In the oral trial, the parties may submit their written statements containing the offence, the liability of the accused persons, their evidence and the punishment which they consider that must be imposed.

The evidence of the parties will be practiced during the oral trial. In this stage of the process the parties shall present their final written statements.

Before the judge passes sentence, the parties have the right to declare their last statement.

The sentence the Judge determines may be appealed before the Supreme Court (Tribunal Supremo).

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