LESSON 7

Question 1

External Structure of a trial

Answer 1

The external structure of a trial is related to the technical principles on which the trial is based.

Question 2

Adversarial system

Answer 2

Nowadays in Spain, trials mainly have an adversarial structure: this means that they have the same triangular shape -> there are 2 parties that face each other and an impartial Court above them.

Question 3

Inquisitorial system and characteristics of the trials

Answer 3

For centuries, criminal proceedings were conducted following an inquisitorial system that have a linear structure: only one party (the defendant), and a judge who stands over them investigating, accusing and judging:

• These trials were kept secret and mainly written.
• The evidence had to be evaluated pursuant to fixed legal rules, instead of an appraisal in a discretionary manner.
• As a guarantee the final judgment could always be appealed, and doing so opened the door to a higher court and a secondary plenary instance.

Question 4

Judge in the inquisitorial system

Answer 4

investigates, accuses and judges.
- they make an investigation to gather incriminating and exculpatory evidence.
- they are in charge of accusing the person under suspicion.
- they are in charge of issuing the final judgment.

Question 5

The differences between adversarial and inquisitorial system (inquisitorial vs. adversarial)

Answer 5

• In the adversarial system, the judge doesn’t seek evidence, neither does he accuse. In the inquisitorial system the judge investigates, accuses and judges.
• In the adversarial system the roles of prosecuting and investigating are assumed by the accusing party.
• The proceedings in the adversarial system are mainly oral and public, with only one instance. The proceedings in the inquisitorial system are mainly written and secret.

Question 6

Party disposition principle and adversarial

Answer 6

A trial that is inspired by the principles of party disposition and the production of evidence by the parties CANNOT be structured in any other way than in the adversarial system, it would be a severe violation to both principles if a Court were able to start and develop a trial on its own initiative.

Question 7

Combination of principles and formal structure in criminal proceedings

Answer 7

“Ex-officio” and inquisitorial technical principles are NOT strictly bound to the inquisitorial system for the whole procedure, they can also be structured according to the adversarial system in order to ensure fairness of the final judgment of the trial.

According to what is said, the Spanish criminal proceeding is divided into two stages: pre-trial and trial.

Question 8

Pre-trial

Answer 8

In this phase, the court (juzgado de instrucción) takes an investigative role, jointly with the prosecuting party in order to know all the facts of the case.

Question 9

Trial

Answer 9

In this phase, the case is under the jurisdiction of a different court (mainly “juzgados de lo penal” and “audiencias provinciales”).
The accusing party plays an important role, since only by their own initiative can the proceedings continue until the end.
If during the trial the accusing party withdraws the indictment (i.e: retira los cargos) the Court cannot continue the trial.
In these cases, the court would have to finish in that moment with a judgment of acquittal (sentencia absolutoria).

Question 10

We say that in Spain, the criminal procedure is structured under…

Answer 10

formal or mixed adversarial system.

Question 11

Written procedure features

Answer 11

claim preclusion and joinder of actions (preclusión de pretensiones y acumulación de acciones)

Question 12

Written procedures

Answer 12

A procedure should be considered in written form when most of its procedural steps adopt this form.

Question 13

Advantages of the written procedures

Answer 13

• It contributes to keep order in the composition between parties.
• It can help to prepare accurate and truthful decisions on the merits of the case.
• It can save time in complex cases.
• It can be the best in form of efficiency when it comes to cases on which the evidence is based solely on the presentation of documents.
• It can also be the best form in transnational cases.

Question 14

Preclusion

Answer 14

• Written proceedings are based in the rule of preclusion (estoppel) which is legally stated in the LEC.
• Once an issue has been brought up in court, the possibility of bringing it up again with new pleas and evidence in another proceeding is NON-existent.
• Parties must provide the court with every fact, legal grounds and evidence in favor of their interest.

Question 15

Orality features

Answer 15

concentration and immediacy

Question 16

Oral proceedings

Answer 16

A proceeding will be considered oral when most of its procedural steps adopt this form. There must always be written or audio-visual records of every oral proceeding.

• nowadays, there is NO entirely oral proceeding. At least the beggining must be written, the claimant always files a written lawsuit.

Question 17

Art. 120.2 CE “Oral proceedings”

Answer 17

According to art. 120.2 CE it is stated that proceedings shall be predominantly oral, specially in criminal cases.

Question 18

Concentration

Answer 18

This principle directly derives from the principles of orality and immediacy.
It entails that all oral proceedings should be concentrated in just one session, and in case that it is NOT possible, in several succesive sessions.

Question 19

Immediacy

Answer 19

This principle tells us that the judge who examined the evidence, heard the allegations and final conclusions, should be the same one carrying out the final judgment.

• The judge must have had contact with the parties, the witnesses, the experts and the subject of the trial in such a way that enables him/her to form a personal opinion on the case.
• This principle helps to avoid judges from basing their ruling upon factors that are NOT relevant to the case at hand. As such, this principle can only be fully applicated in oral proceedings.

Question 20

Public trials

Answer 20

As a general rule, oral and procedural steps shall be publics, pursuant to art. 120.1 CE.
This means that parties and everyone who so wishes can attend all hearings and audiences.

Question 21

Witnesses in public trials

Answer 21

Those who have to declare as witnesses must be set aside from the hearings until declarations. Afterwards they can stay if they want to.

Question 22

Public trials: written proceedings

Answer 22

Written elements of the proceedings are public ONLY to the parties, NOT to everyone.
Exceptions to this rule are stated in art. 232.2 LOPJ: in order to protect the public order and to ensure protection of freedoms and rights.

Question 23

Public trials: criminal proceedings

Answer 23

The pre-trial will be secret to everyone EXCEPT the parties (Art. 301 LECrim.) and it could even be kept secret from the accusing party if needed to achieve a successful investigation.

Nevertheless, this extraordinary measure shall be removed at least 10 days before the end of the pre-trial. This is done so that the accused party has access to the investigation and can prepare his/her statement of defense with all the info they need.

Question 24

Procedural development driven by court registrar

Answer 24

Unless otherwise stipulated, the Court Clerk shall give the proceedings the corresponding progression without being asked to (Ex-officio) and shall issue the decisions required for this purpose:
- Parties don’t have to ask the court clerk for this progression.
- Once the lawsuit has been filed, the development of the proceedings does NOT depend on the parties.

Question 25

Suspension (Stay) in proceedings developed by court clerks

Answer 25

The course of the legal procedure may be stayed (suspenderse) in accordance to legal provisions if the parties request so.

• Once the limit of time for the stay of proceedings has elapsed, if no one requests the resumption of the proceedings within the following 5 days, the Court Clerk shall agree to temporarily file the proceedings and shall remind filed until the continuation of the proceedings is required OR the case expires.