The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
There is only one prosecution service for the whole of Spain, it falls under the Ministry of Justice, and it is run by the Fiscal General del Estado (Attorney General) (Sect. 22, Estatuto Orgánico del Ministerio Fiscal, hereinafter Prosecution Service Act). The chief prosecutor of each department acts in representation and the other members by delegation of their respective chiefs (Sects. 22.3 and 23 prosecution service act).
The prosecution service has a hierarchic organisation, and the Attorney General may give orders and instructions to his subordinates, thus issuing orders to the chief prosecutor of each prosecution office whilst he in turn may issue orders to his immediate subordinates. In this sense, Sect. 2 Prosecution Service Act stipulates that the prosecution service exercises its function by virtue of the principles of unity of acts and hierarchic dependence.
In Sect. 12 of the Prosecution Service Act we find a list of these offices, which are:
1. Attorney General (Fiscal General);
2. Prosecution board (Consejo Fiscal ) The tasks of the board are included in Sect. 14.1 of the Prosecution Service Act. This Section grants the board power to elaborate general criteria to guarantee uniform acts of the prosecution service, to advice the Attorney General on those subjects he may consider, to advice in the nomination of public prosecutors, to propose reforms considered necessary. The board is composed of the Attorney General (acting as chairman), the Vice-Prosecutor of the Supreme Court of Justice (Teniente Fiscal del Tribunal Supremo de Justicia), the chief prosecutor of inspection (Fiscal Inspector Jefe) and 9 prosecutors of different levels;
3. Committee of court sections prosecutors (Junta de Fiscales de Sala). The tasks of the Committee (Sect. 14.2 Prosecution Service Act) is to assist the Attorney General in order to state uniform criteria of interpretation and legal acts, answer legal questions, elaborate the annual reports and opinions and to prepare projects to be sent to the Government.
The Committee is composed of the Vice-Prosecutor of the Supreme Court of Justice acting as chairman, the court section prosecutors (Fiscales de Sala), the chief prosecutor of inspection and the chief prosecutor of the assistance secretariat (Fiscal Jefe de la Secretaría Técnica), acting as secretary;
4. Prosecutors of the Supreme Court of Justice (Fiscalía del Tribunal Supremo);
5. Prosecutors of the Constitutional Court (Fiscalía ante el Tribunal Constitutional);
6. Prosecutors of the National Court (Fiscalías de la Audiencia Nacional);
7. Special prosecutors for the prevention and repression of illegal drug dealing (Fiscalía especial para la prevención y represión del tráfico ilegal de drogas);
8. Special prosecutors for the repression of corruption-linked economic offences (Fiscalía especial para la represión de los delitos económicos relacionados con la corrupción);
9. Prosecutors of the Supreme Courts of Justice of the Autonomous Communities (Fiscalías de los tribunales Superiores de Justicia de las Comunidades Autónomas); and
10. Prosecutors of provincial high courts (Fiscalías de las audiencias provinciales).
They are currently regulated by Sect. 124 of the Spanish Constitution, Sect. 541 Judicial Organisation Act and especially by the Prosecution Service Act (which was passed by Law 50/1981, and amended by Law 14/2003, and also by Royal Decree 572/2003, establishing the staff of the prosecution service (Ley de establecimiento de la plantilla orgánica del Ministerio Fiscal).
Public prosecutors are organised in one corps, but divided hierarchically in three categories (Sect. 34 Prosecution Service Act):
1. prosecutors of the Supreme Court (fiscales de sala del Tribunal Supremo);
2. public prosecutors (fiscales); and
3. prosecuting attorneys (abogados fiscales).
There is only one way to enter the corps: by public examination, to sit this exam one must be Spanish, of legal age, with a law degree and free from all causes of disqualification (such as not having sufficient physical and intellectual capacity, having been found guilty of a crime without having obtained rehabilitation and having been declared bankrupt).
Another matter is the person who appoints the members of the different offices of the prosecution service. The most polemic figure is that of the Attorney General, who is appointed by the King on the Government’s proposal, on the advice of the Consejo general del poder judicial (General council of the judiciary), from among attorneys of recognised prestige with over 25 years’ professional practice (Sect. 124.5 Constitution and Sect. 29 Prosecution Service Act).
In recent years, a phenomenon of specialisation has taken place in some offices, with the appearance of a Special department for the prevention and repression of illegal drug dealing and the Special department for the represssion of corruption-linked economic offences.
The Special department for the prevention and repression of illegal drug dealing was created by virtue of Law 5/1988, which covers all national territory. Its tasks are:
- to intervene directly in criminal trials for offences related to dealing in drugs, narcotics and psychoactive substances committed by organised gangs or groups, and which produce effects in places pertaining to different provincial high courts and any other that falls under the authority of the criminal court of the national high court (Audiencia Nacional) and central magistrates’ courts (juzgados centrales de instrucción), in accordance with Sects. 65.1d and 88 Judicial Organisation Act;
- to intervene directly in criminal proceedings for offences related to dealing in drugs, narcotics and psychoactive substances ordered by the Attorney General;
- to co-ordinate the actions of the different prosecuting departments for the prevention and repression of illegal drug dealing;
- to investigate the economic situation, wealth and financial or business dealings of all sorts of people where there are indications that they carry out, or participate in, acts of illegal drug dealing or belong to or help organisations that carry out the said dealing, with authority to request whatever information they think fit from the public administration, institutions, companies and private persons;
- to collaborate with judicial authorities in controlling the treatment of drug addicts or people who have been given conditional remission of the penal sanction, receiving data from accredited centres that participate in the said treatment; and
- to promote or, where applicable, to furnish international judicial aid envisaged in international laws, treaties and agreements for the prevention and repression of illegal drug dealing (Sect. 18b Prosecution Service Act).
The Special department for the repression of corruption-linked economic offences, created by the Law of April 24, 1995, intervenes directly in criminal procedures of special transcendence, detected by the Attorney General, in relation to:
- crimes against the Department of the Treasury, smuggling and issues related with exchange control;
- offences related to breaches of official duties;
- offences related to abuse or improper use of privileged information;
- misappropriation of public funds;
- fraud and illegal charges;
- influence peddling;
- bribery offences;
- negotiation forbidden to civil servants;
- offences included in Chapters IV and V of Title XIII of Book II of the Penal Code, such on robbery of vehicles and usurpation; and
- offences connected with the above (Sect. 18 Prosecution Service Act).
The head of the prosecution service is the Attorney General, to whom Sect. 22.2 Prosecution Service Act attributes ‘full command of the public prosecution service and the faculty to represent it in all Spanish territory’ and whose functions are as follows:
- to propose to the Government the appointments to the different posts, pursuant to a report by the prosecution board;
- to propose to the Government promotions pursuant to a report by the prosecution board; and
- to issue the licences for which he is authorised, according to the provisions of this statute and their regulations (Sect. 13 Prosecution Service Act).
The tasks that he must carry out may be classified, then, in three groups:
- those related to his position as head of the service: he is the direct head of the Prosecutors of the Supreme Court of Justice; he directs the service before the Constitutional Court and the Special department for the prevention and repression of illegal drug dealing (Sect. 18 Prosecution Service Act), is chairman of the prosecution committee (Sect. 14 Prosecution Service Act), chairman of the board of court prosecutors (Sect. 14.2 Prosecution Service Act), in charge of inspecting the Public prosecution service (Sect. 15 Prosecution Service Act), and so forth; and
- those arising from managing the prosecution service: to issue reports once known by the prosecution board about the number of prosecution offices that should exist and the determination of their staff by Royal Decree; to propose the Government appointments for the different posts (Sect. 13 Prosecution Service Act), to designate prosecutors for the assistance secretariat (Secretaría Técnica de la Fiscalía) (Sect. 36.2 Prosecution Service Act), to grant the licences for which he is authorised (Sect. 13), and so forth; and
- those arising from the relationship of the prosecution service with other institutions: to resolve matters concerned with the viability or convenience of actions requested by the government once known by the board of court prosecutors for the Supreme Court (Sect. 8.2 Prosecution Service Act), to inform the government when requested and when there is no legal impediment about any of the matters in which the prosecution service intervenes and about the general operation of the administration of justice (Sect. 9.2 Prosecution Service Act), and regarding the Parliament, he will collaborate with it at its request, provided that there is no legal impediment (Sect. 10 Prosecution Service Act), etc.
Although there are several internal devices to monitor the activities the prosecution service within, there is no external control. It is the Attorney General who supervises the prosecution service in a permanent way (Sect. 15 Prosecution Service Act). The purpose of this supervision is:
- to ascertain that the prosecution service is functioning properly;
- to oversee the general practice followed in prosecution departments to deal with the matters to be attended to;
- to control the conditions, capacity and conduct of the prosecutors; and
- to examine any complaints received about the procedure followed by the prosecutors.
It is interesting to determine whether priorities can be established in the prosecution of offences from the top down, in the form of orders about which acts should be prosecuted and which not. In this sense, we must note that in Spain there can be no priorities relating to the nature of the criminal offence. Another issue is the possibility of issuing a list of priorities relating to the procedural situation of the person charged due to a deprivation of liberty. This is contemplated in Sect. 504 CCP (drafted pursuant to Judicial Organisation Act 15/2003), which states that the accused held in pre-trial detention is entitled to have priority and special diligence in having his case heard.
The Attorney General lays down guidelines to be followed by the prosecution service in all the matters that concern it. He has the authority to issue suitable orders and instructions both in a general sense and in specific cases (Sect. 25 Prosecution Service Act). For example:
- in the preparation of the abbreviated procedure, Sect. 773 CCP says that the Attorney General shall issue whatever orders and instructions he sees fit regarding the prosecutor’s action;
- Sect. 26 Prosecution Service Act indicates that the Attorney General may summon any member of the prosecution service to present himself in order to receive his reports first hand and give him the instructions he considers necessary, in this case, instructions to the appropriate Chief Prosecutor;
- in trials for a minor offence, the Attorney General shall issue instructions regarding those cases where, in the public interest, the prosecutors may fail to attend trial, when the prosecution of the offence requires an accusation by the offended or injured party (Sect. 969.2 CCP); and
- in matters relating to foreign citizens, the Attorney General shall lay down the guidelines to follow for the expulsion of foreigners, in applying the Penal Code (Circular No. 3/2001, about the steps to be followed by the prosecution service regarding foreign citizens).
As regards the duties of the prosecution service, it must be taken into account, in the first place, that its mission is to further the cause of justice in defense of legality, citizens’ rights and public interest protected by the Law, by virtue of its office or at the request of the interested parties, and safeguard the independence of the courts and strive for the satisfaction of social interest in the courts. Thus the prosecutor's specific duties are:
- to see that the jurisdictional function is carried out effectively, in accordance with the laws and in the periods and terms set out in them, performing, where applicable, the appropriate actions, remedies and steps;
- to carry out all the functions attributed to him by law in defense of the independence of judges and courts;
- to enforce respect of constitutional institutions and fundamental rights and public freedom by whatever means required to defend them;
- to put into practice penal and civil actions arising from crimes and misdemeanours or object to those put into practice by others, where applicable;
- to intervene in the penal process, urging the judiciary to implement the appropriate precautionary measures and take the necessary steps to clear up the facts;
- to take part in procedures relative to marital status and other conditions provided by law in defense of legality and public or social interest;
- to intervene in civil procedures stipulated by law where social interest is at stake of juveniles, the handicapped or the defenseless may be affected until the ordinary representation mechanisms can be provided;
- to maintain the integrity of the jurisdiction and authority of judges and courts, filing jurisdictional disputes and, where applicable, issues of authority that may be applicable, and to intervene in those filed by others;
- to guarantee that court orders that affect public and social interest be carried out;
- to safeguard the procedural protection of victims, activating the mechanisms contemplated to provide them with effective help and assistance;
- to intervene in judicial proceedings concerning protection;
- to bring an action of constitutional protection and intervene in proceedings before the Constitutional Court in defense of legality, in the manner established by law;
- as regards the criminal responsibility of juveniles, to perform the functions entrusted to him by specific legislation, orienting his intervention towards the greater interest of the minor juvenile;
- to intervene in the cases and in the manner provided by law in proceedings before the Audit Office. To defend, furthermore, the legality of contentious-administrative and labour proceedings where his intervention is required;
- to promote or, where applicable, to provide international judicial aid contemplated in international laws, treaties and agreements; and
- to perform all the other functions contemplated in the provisions of the legal system.
To carry out the functions entrusted to it in the Sect. above, the prosecution service is given a series of powers as set out below (Sect. 4 Prosecution Service Act):
- to control the notification of any judicial decision and information about the state of proceedings, and it may request to see the proceedings whatever their state, or to be shown a copy of any step to ensure that the laws, periods and terms are fulfilled exactly, making, where applicable, any necessary changes. Furthermore, it may request information about the facts that gave rise to a procedure, of whatever kind, where there are reasonable motives to believe that it should the competence of a different agency from the one acting;
- to visit remand houses and prisons of any kind in its respective territory at any time, examine the files on inmates and obtain whatever information it deems fit;
- to request the aid of any kind of authority and its agents;
- to issue appropriate orders in each case to the members of the criminal investigation department; and
- to inform public opinion about the events that have taken place, within the scope of its competence and respecting the sub-judice-rule and, in general, the responsibilities of caution and discretion inherent in the post and in the rights of those involved.
One of the most striking features of the Spanish prosecution system is precisely the fact that there is no monopoly over criminal prosecution by the prosecution service. By establishing a specific authority to deal with prosecution of crime, the prosecution service, the State certainly does not leave the fight against crime in the hands of private people, which could involve a risk of impunity. On the other hand, this service does not have the exclusive responsibility for these actions, citizens are also allowed to intervene. Thus, whereas the practice of prosecuting crimes is a duty for the public prosecutor, it is a right for the citizens. In Spain, therefore, alongside the institution of the public prosecutor, we also have the institutions of acusador popular (people’s prosecutor) and private prosecutor.
The people’s prosecutor is contemplated in Sect. 125 of the Constitution. It involves the acknowledgement that all (Spanish) citizens can take part in criminal procedures also when they are not victims of the offence, so that in fact citizens can take on a similar role to that of the prosecution service, by furthering justice in defense of legality and by defending the public interest in the face of deeds that apparently constitute a public crime.
A private prosecutor takes part in criminal procedures as a victim. The legal grounds for this can be found in Sect. 24.1 of the Constitution. Unlike the people’s prosecutor, this role is not limited to Spanish citizens but can be practised by foreigners also.
In theory, the prosecution service has to prosecute all crimes. Spain does not contemplate the opportunity principle like some other countries. In exceptional cases, plea bargaining may take place, but on the conditions laid down by law. This does not stop the public prosecutor from abandoning the prosecution of a crime in specific circumstances. Thus:
1. Sect. 5 Prosecution Service Act provides that the prosecutor may receive accusations, forwarding them to the judiciary or ordering them to be filed. In general, and as a point of departure, a prosecutor may decide to abandon prosecution if he does not find grounds for taking action, in which case he shall notify the accuser;
2. in the abbreviated procedure, according to the provisions of Sect. 773 CCP, the public prosecutor shall order the procedures to be filed when the acts do not constitute a crime; and
3. in the ordinary procedure, the prosecution service may request dismissal, pursuant to Sect. 637 CCP:
1. where there are no rational signs that a offence was done that might have given rise to the trial being brought;
2. where the deed is not a crime; and
3. where the defendants are found to be free from criminal liability as authors, accomplices or accessories after the fact; and provisional dismissal where committing the crime that gave rise to the trial being brought is not duly proven, or where records of process and inquiries show that a crime was committed and there is not sufficient cause to accuse any particular person as the author, accomplice or accessory after the fact (Sect. 641 CCP).
In spite of the fact that the position of the prosecution service in criminal proceedings has been strengthened, it has still not reached the degree of involvement in prosecution as in other countries around us. It is the Ministry of Justice that determines the policy to be followed by the prosecution service, always through the Attorney General. The Government may request the Attorney General to take the appropriate steps for a defense of public interest before the courts. Parliament monitors prosecution policy and specific decisions regarding prosecution. This parliamentary control of government action is stipulated in Sect. 22.2 of the Constitution.
Communication between the Government and the prosecution service takes place through the Ministry of Justice and the Attorney General (Sect. 8 Prosecution Service Act). Furthermore, the Attorney General shall provide the government with an annual report about its activity, the evolution of crime, crime prevention and any advice on reforms to enhance the efficiency of justice (Sect. 8 Prosecution Service Act).
The tasks for the Ministry of Justice in the Organic Rules on the organisation of the prosecution service, passed by Decree on February 27, 1969, are, among others: to propose to the government the appointment the posts of prosecuting attorney of the Supreme Court and chief prosecuting attorney for the Provincial High Courts by free designation; to order the provisional suspension of prosecuting attorneys in the cases contemplated in the Regulations; to arrange compulsory re-entry to posts as prosecutor from a situation of temporary retirement when the service so requires; to arrange the dismissal of any member of the prosecution service on the proposal of an honorary tribunal of the Prosecution Board; to grant or postpone the concession of resignation requested by a member of the prosecution service and a request for transfer; to address a written or verbal order to the prosecutor for the Supreme Court regarding generic or especially determined matters, which must be obeyed by the latter; to authorise the presentation of an action requesting purported criminal liability to the prosecutor for the Supreme Court, and so forth.
In spite of all the above, it must be taken into account that the prosecution service acts in observance of the Constitution, the laws and other rules that comprise the legal system in force. Thus, even where the prosecution service depends on the Ministry of Justice, the latter cannot issue general or specific instructions regarding the functions and powers of the prosecution service or issue instructions concerning the investigation and prosecution of concrete cases. Prosecuting attorneys are under no obligation to obey orders in this respect. In addition, these type of instructions are not at all common in the Spanish legal system.
All of this has repercussions on the role of the prosecution service when carrying out criminal prosecution. In order to apply the above rules, the prosecution service must initiate the prosecution of crimes of which it has knowledge. This provided that they are public crimes or prosecutable ex officio or semi-public offences, where the offended party must report it. In the latter case, once the offence has been reported the prosecutor may also decide to continue the prosecution in the absence of the accuser.
This prosecution may be discontinued when the crime is private in nature. This is laid down in Sect. 105 CCP, which states that the prosecution service shall be obliged to carry out all penal actions it considers appropriate, except those reserved exclusively for private prosecution by the criminal code, that is, they may only be prosecuted at the request of the offended party or the victim of the crime.
Having complied with the above, the opening of an investigation on the part of the prosecution service when it hears of an apparent crime is established as an obligation in Sect. 773 CCP.
In any case, the opportunity of acting in a more free and discretionary manner is limited by law, so that it has even been said that Spain is governed by a principle of oportunidad reglada (regulated opportunity), which is really a contradiction in terms. This reflects the possibility of freedom of action on the part of the prosecutor, but this is freedom of action regulated by law, specifically the CCP. In this way, the law stipulates that a crime cannot be prosecuted in cases where the crime has not been reported by the offended party.
In view of this possibility, the law has not taken into account the exigencies of motivation in the decision of the prosecution service not to prosecute. Nonetheless, Sect. 773.2 CCP leaves the prosecutor room to decide that a case be filed because the facts as established do not constitute a crime. The prosecutor is required to communicate the reasoning behind the decision to the person who has claimed to be the injured or offended party so that the latter may repeat the accusation before the investigating judge.
In this line of possible free interventions of the prosecution service, the role played by the service in the development of plea bargaining procedures must be taken into account. In these procedures the defendant, within certain limits, accepts the penalty requested by the prosecution service, which is followed by an immediate passing of the sentence, making the hearing unnecessary. Plea bargaining has been reinforced recently in the most recent procedural reforms of 2002 and 2003, and play a crucial role in abbreviated procedures, and those procedures known as speedy or immediate trials.
Plea bargaining can take place at different moments: during the preparatory stage of the hearing with the bill of indictment of the prosecution service, at the hearing, before the examination of evidence, etc. Perhaps the most significant situation is when it takes place at the duty magistrate’s court, after the detainee has been taken before the magistrate, provided it is within the context of a speedy trial, since in such cases the process is completed in forty eight hours with the consent of both parties. The prosecution service undertakes to reduce the penalty in exchange for the defendant’s acceptance of the most serious charge. The advantages and efficiency of this system have become evident in recent times. More and more procedures end with a sentence of agreement, and it is especially important to note here that there may be no appeal. Indeed, this stems from the general principle that nobody can go against his own deeds and someone who accepts guilt cannot express his wish to contest what he has accepted voluntarily afterwards, except in cases of serious lack of consent.
Plea bargaining is governed by abbreviated procedures in Sects. 779.1.5th and 781 CCP, in the ordinary proceedings for serious offences, in Sects. 655 and 688 CCP, and in special criminal proceedings for the speedy trial of certain crimes in Sects. 800.2 and 801 CCP.
The possibility of reaching a pact is theoretically reserved for minor offences, that is, those that involve less than 9 years’ imprisonment (abbreviated). In the special case of speedy or immediate trial, the crime cannot involve a prison sentence of less than three years. In the latter case, the sentence is automatically reduced to two years’ imprisonment, which permits the application of penitentiary benefits and therefore the possibility of not entering a penitentiary establishment, provided the defendant promises to compensate the victim for damages caused, as well as accepting specific treatment if necessary and where applicable, a detoxification programme for example.
The Relation between the Public Prosecutor and the Minister of Justice
There is only one prosecution service for the whole of Spain, it falls under the Ministry of Justice, and it is run by the Fiscal General del Estado (Attorney General) (Sect. 22, Estatuto Orgánico del Ministerio Fiscal, hereinafter Prosecution Service Act). The chief prosecutor of each department acts in representation and the other members by delegation of their respective chiefs (Sects. 22.3 and 23 prosecution service act).
The prosecution service has a hierarchic organisation, and the Attorney General may give orders and instructions to his subordinates, thus issuing orders to the chief prosecutor of each prosecution office whilst he in turn may issue orders to his immediate subordinates. In this sense, Sect. 2 Prosecution Service Act stipulates that the prosecution service exercises its function by virtue of the principles of unity of acts and hierarchic dependence.
In Sect. 12 of the Prosecution Service Act we find a list of these offices, which are:
1. Attorney General (Fiscal General);
2. Prosecution board (Consejo Fiscal ) The tasks of the board are included in Sect. 14.1 of the Prosecution Service Act. This Section grants the board power to elaborate general criteria to guarantee uniform acts of the prosecution service, to advice the Attorney General on those subjects he may consider, to advice in the nomination of public prosecutors, to propose reforms considered necessary. The board is composed of the Attorney General (acting as chairman), the Vice-Prosecutor of the Supreme Court of Justice (Teniente Fiscal del Tribunal Supremo de Justicia), the chief prosecutor of inspection (Fiscal Inspector Jefe) and 9 prosecutors of different levels;
3. Committee of court sections prosecutors (Junta de Fiscales de Sala). The tasks of the Committee (Sect. 14.2 Prosecution Service Act) is to assist the Attorney General in order to state uniform criteria of interpretation and legal acts, answer legal questions, elaborate the annual reports and opinions and to prepare projects to be sent to the Government.
The Committee is composed of the Vice-Prosecutor of the Supreme Court of Justice acting as chairman, the court section prosecutors (Fiscales de Sala), the chief prosecutor of inspection and the chief prosecutor of the assistance secretariat (Fiscal Jefe de la Secretaría Técnica), acting as secretary;
4. Prosecutors of the Supreme Court of Justice (Fiscalía del Tribunal Supremo);
5. Prosecutors of the Constitutional Court (Fiscalía ante el Tribunal Constitutional);
6. Prosecutors of the National Court (Fiscalías de la Audiencia Nacional);
7. Special prosecutors for the prevention and repression of illegal drug dealing (Fiscalía especial para la prevención y represión del tráfico ilegal de drogas);
8. Special prosecutors for the repression of corruption-linked economic offences (Fiscalía especial para la represión de los delitos económicos relacionados con la corrupción);
9. Prosecutors of the Supreme Courts of Justice of the Autonomous Communities (Fiscalías de los tribunales Superiores de Justicia de las Comunidades Autónomas); and
10. Prosecutors of provincial high courts (Fiscalías de las audiencias provinciales).
They are currently regulated by Sect. 124 of the Spanish Constitution, Sect. 541 Judicial Organisation Act and especially by the Prosecution Service Act (which was passed by Law 50/1981, and amended by Law 14/2003, and also by Royal Decree 572/2003, establishing the staff of the prosecution service (Ley de establecimiento de la plantilla orgánica del Ministerio Fiscal).
Public prosecutors are organised in one corps, but divided hierarchically in three categories (Sect. 34 Prosecution Service Act):
1. prosecutors of the Supreme Court (fiscales de sala del Tribunal Supremo);
2. public prosecutors (fiscales); and
3. prosecuting attorneys (abogados fiscales).
There is only one way to enter the corps: by public examination, to sit this exam one must be Spanish, of legal age, with a law degree and free from all causes of disqualification (such as not having sufficient physical and intellectual capacity, having been found guilty of a crime without having obtained rehabilitation and having been declared bankrupt).
Another matter is the person who appoints the members of the different offices of the prosecution service. The most polemic figure is that of the Attorney General, who is appointed by the King on the Government’s proposal, on the advice of the Consejo general del poder judicial (General council of the judiciary), from among attorneys of recognised prestige with over 25 years’ professional practice (Sect. 124.5 Constitution and Sect. 29 Prosecution Service Act).
In recent years, a phenomenon of specialisation has taken place in some offices, with the appearance of a Special department for the prevention and repression of illegal drug dealing and the Special department for the represssion of corruption-linked economic offences.
The Special department for the prevention and repression of illegal drug dealing was created by virtue of Law 5/1988, which covers all national territory. Its tasks are:
- to intervene directly in criminal trials for offences related to dealing in drugs, narcotics and psychoactive substances committed by organised gangs or groups, and which produce effects in places pertaining to different provincial high courts and any other that falls under the authority of the criminal court of the national high court (Audiencia Nacional) and central magistrates’ courts (juzgados centrales de instrucción), in accordance with Sects. 65.1d and 88 Judicial Organisation Act;
- to intervene directly in criminal proceedings for offences related to dealing in drugs, narcotics and psychoactive substances ordered by the Attorney General;
- to co-ordinate the actions of the different prosecuting departments for the prevention and repression of illegal drug dealing;
- to investigate the economic situation, wealth and financial or business dealings of all sorts of people where there are indications that they carry out, or participate in, acts of illegal drug dealing or belong to or help organisations that carry out the said dealing, with authority to request whatever information they think fit from the public administration, institutions, companies and private persons;
- to collaborate with judicial authorities in controlling the treatment of drug addicts or people who have been given conditional remission of the penal sanction, receiving data from accredited centres that participate in the said treatment; and
- to promote or, where applicable, to furnish international judicial aid envisaged in international laws, treaties and agreements for the prevention and repression of illegal drug dealing (Sect. 18b Prosecution Service Act).
The Special department for the repression of corruption-linked economic offences, created by the Law of April 24, 1995, intervenes directly in criminal procedures of special transcendence, detected by the Attorney General, in relation to:
- crimes against the Department of the Treasury, smuggling and issues related with exchange control;
- offences related to breaches of official duties;
- offences related to abuse or improper use of privileged information;
- misappropriation of public funds;
- fraud and illegal charges;
- influence peddling;
- bribery offences;
- negotiation forbidden to civil servants;
- offences included in Chapters IV and V of Title XIII of Book II of the Penal Code, such on robbery of vehicles and usurpation; and
- offences connected with the above (Sect. 18 Prosecution Service Act).
The head of the prosecution service is the Attorney General, to whom Sect. 22.2 Prosecution Service Act attributes ‘full command of the public prosecution service and the faculty to represent it in all Spanish territory’ and whose functions are as follows:
- to propose to the Government the appointments to the different posts, pursuant to a report by the prosecution board;
- to propose to the Government promotions pursuant to a report by the prosecution board; and
- to issue the licences for which he is authorised, according to the provisions of this statute and their regulations (Sect. 13 Prosecution Service Act).
The tasks that he must carry out may be classified, then, in three groups:
- those related to his position as head of the service: he is the direct head of the Prosecutors of the Supreme Court of Justice; he directs the service before the Constitutional Court and the Special department for the prevention and repression of illegal drug dealing (Sect. 18 Prosecution Service Act), is chairman of the prosecution committee (Sect. 14 Prosecution Service Act), chairman of the board of court prosecutors (Sect. 14.2 Prosecution Service Act), in charge of inspecting the Public prosecution service (Sect. 15 Prosecution Service Act), and so forth; and
- those arising from managing the prosecution service: to issue reports once known by the prosecution board about the number of prosecution offices that should exist and the determination of their staff by Royal Decree; to propose the Government appointments for the different posts (Sect. 13 Prosecution Service Act), to designate prosecutors for the assistance secretariat (Secretaría Técnica de la Fiscalía) (Sect. 36.2 Prosecution Service Act), to grant the licences for which he is authorised (Sect. 13), and so forth; and
- those arising from the relationship of the prosecution service with other institutions: to resolve matters concerned with the viability or convenience of actions requested by the government once known by the board of court prosecutors for the Supreme Court (Sect. 8.2 Prosecution Service Act), to inform the government when requested and when there is no legal impediment about any of the matters in which the prosecution service intervenes and about the general operation of the administration of justice (Sect. 9.2 Prosecution Service Act), and regarding the Parliament, he will collaborate with it at its request, provided that there is no legal impediment (Sect. 10 Prosecution Service Act), etc.
Although there are several internal devices to monitor the activities the prosecution service within, there is no external control. It is the Attorney General who supervises the prosecution service in a permanent way (Sect. 15 Prosecution Service Act). The purpose of this supervision is:
- to ascertain that the prosecution service is functioning properly;
- to oversee the general practice followed in prosecution departments to deal with the matters to be attended to;
- to control the conditions, capacity and conduct of the prosecutors; and
- to examine any complaints received about the procedure followed by the prosecutors.
It is interesting to determine whether priorities can be established in the prosecution of offences from the top down, in the form of orders about which acts should be prosecuted and which not. In this sense, we must note that in Spain there can be no priorities relating to the nature of the criminal offence. Another issue is the possibility of issuing a list of priorities relating to the procedural situation of the person charged due to a deprivation of liberty. This is contemplated in Sect. 504 CCP (drafted pursuant to Judicial Organisation Act 15/2003), which states that the accused held in pre-trial detention is entitled to have priority and special diligence in having his case heard.
The Attorney General lays down guidelines to be followed by the prosecution service in all the matters that concern it. He has the authority to issue suitable orders and instructions both in a general sense and in specific cases (Sect. 25 Prosecution Service Act). For example:
- in the preparation of the abbreviated procedure, Sect. 773 CCP says that the Attorney General shall issue whatever orders and instructions he sees fit regarding the prosecutor’s action;
- Sect. 26 Prosecution Service Act indicates that the Attorney General may summon any member of the prosecution service to present himself in order to receive his reports first hand and give him the instructions he considers necessary, in this case, instructions to the appropriate Chief Prosecutor;
- in trials for a minor offence, the Attorney General shall issue instructions regarding those cases where, in the public interest, the prosecutors may fail to attend trial, when the prosecution of the offence requires an accusation by the offended or injured party (Sect. 969.2 CCP); and
- in matters relating to foreign citizens, the Attorney General shall lay down the guidelines to follow for the expulsion of foreigners, in applying the Penal Code (Circular No. 3/2001, about the steps to be followed by the prosecution service regarding foreign citizens).
As regards the duties of the prosecution service, it must be taken into account, in the first place, that its mission is to further the cause of justice in defense of legality, citizens’ rights and public interest protected by the Law, by virtue of its office or at the request of the interested parties, and safeguard the independence of the courts and strive for the satisfaction of social interest in the courts. Thus the prosecutor's specific duties are:
- to see that the jurisdictional function is carried out effectively, in accordance with the laws and in the periods and terms set out in them, performing, where applicable, the appropriate actions, remedies and steps;
- to carry out all the functions attributed to him by law in defense of the independence of judges and courts;
- to enforce respect of constitutional institutions and fundamental rights and public freedom by whatever means required to defend them;
- to put into practice penal and civil actions arising from crimes and misdemeanours or object to those put into practice by others, where applicable;
- to intervene in the penal process, urging the judiciary to implement the appropriate precautionary measures and take the necessary steps to clear up the facts;
- to take part in procedures relative to marital status and other conditions provided by law in defense of legality and public or social interest;
- to intervene in civil procedures stipulated by law where social interest is at stake of juveniles, the handicapped or the defenseless may be affected until the ordinary representation mechanisms can be provided;
- to maintain the integrity of the jurisdiction and authority of judges and courts, filing jurisdictional disputes and, where applicable, issues of authority that may be applicable, and to intervene in those filed by others;
- to guarantee that court orders that affect public and social interest be carried out;
- to safeguard the procedural protection of victims, activating the mechanisms contemplated to provide them with effective help and assistance;
- to intervene in judicial proceedings concerning protection;
- to bring an action of constitutional protection and intervene in proceedings before the Constitutional Court in defense of legality, in the manner established by law;
- as regards the criminal responsibility of juveniles, to perform the functions entrusted to him by specific legislation, orienting his intervention towards the greater interest of the minor juvenile;
- to intervene in the cases and in the manner provided by law in proceedings before the Audit Office. To defend, furthermore, the legality of contentious-administrative and labour proceedings where his intervention is required;
- to promote or, where applicable, to provide international judicial aid contemplated in international laws, treaties and agreements; and
- to perform all the other functions contemplated in the provisions of the legal system.
To carry out the functions entrusted to it in the Sect. above, the prosecution service is given a series of powers as set out below (Sect. 4 Prosecution Service Act):
- to control the notification of any judicial decision and information about the state of proceedings, and it may request to see the proceedings whatever their state, or to be shown a copy of any step to ensure that the laws, periods and terms are fulfilled exactly, making, where applicable, any necessary changes. Furthermore, it may request information about the facts that gave rise to a procedure, of whatever kind, where there are reasonable motives to believe that it should the competence of a different agency from the one acting;
- to visit remand houses and prisons of any kind in its respective territory at any time, examine the files on inmates and obtain whatever information it deems fit;
- to request the aid of any kind of authority and its agents;
- to issue appropriate orders in each case to the members of the criminal investigation department; and
- to inform public opinion about the events that have taken place, within the scope of its competence and respecting the sub-judice-rule and, in general, the responsibilities of caution and discretion inherent in the post and in the rights of those involved.
One of the most striking features of the Spanish prosecution system is precisely the fact that there is no monopoly over criminal prosecution by the prosecution service. By establishing a specific authority to deal with prosecution of crime, the prosecution service, the State certainly does not leave the fight against crime in the hands of private people, which could involve a risk of impunity. On the other hand, this service does not have the exclusive responsibility for these actions, citizens are also allowed to intervene. Thus, whereas the practice of prosecuting crimes is a duty for the public prosecutor, it is a right for the citizens. In Spain, therefore, alongside the institution of the public prosecutor, we also have the institutions of acusador popular (people’s prosecutor) and private prosecutor.
The people’s prosecutor is contemplated in Sect. 125 of the Constitution. It involves the acknowledgement that all (Spanish) citizens can take part in criminal procedures also when they are not victims of the offence, so that in fact citizens can take on a similar role to that of the prosecution service, by furthering justice in defense of legality and by defending the public interest in the face of deeds that apparently constitute a public crime.
A private prosecutor takes part in criminal procedures as a victim. The legal grounds for this can be found in Sect. 24.1 of the Constitution. Unlike the people’s prosecutor, this role is not limited to Spanish citizens but can be practised by foreigners also.
In theory, the prosecution service has to prosecute all crimes. Spain does not contemplate the opportunity principle like some other countries. In exceptional cases, plea bargaining may take place, but on the conditions laid down by law. This does not stop the public prosecutor from abandoning the prosecution of a crime in specific circumstances. Thus:
1. Sect. 5 Prosecution Service Act provides that the prosecutor may receive accusations, forwarding them to the judiciary or ordering them to be filed. In general, and as a point of departure, a prosecutor may decide to abandon prosecution if he does not find grounds for taking action, in which case he shall notify the accuser;
2. in the abbreviated procedure, according to the provisions of Sect. 773 CCP, the public prosecutor shall order the procedures to be filed when the acts do not constitute a crime; and
3. in the ordinary procedure, the prosecution service may request dismissal, pursuant to Sect. 637 CCP:
1. where there are no rational signs that a offence was done that might have given rise to the trial being brought;
2. where the deed is not a crime; and
3. where the defendants are found to be free from criminal liability as authors, accomplices or accessories after the fact; and provisional dismissal where committing the crime that gave rise to the trial being brought is not duly proven, or where records of process and inquiries show that a crime was committed and there is not sufficient cause to accuse any particular person as the author, accomplice or accessory after the fact (Sect. 641 CCP).
In spite of the fact that the position of the prosecution service in criminal proceedings has been strengthened, it has still not reached the degree of involvement in prosecution as in other countries around us. It is the Ministry of Justice that determines the policy to be followed by the prosecution service, always through the Attorney General. The Government may request the Attorney General to take the appropriate steps for a defense of public interest before the courts. Parliament monitors prosecution policy and specific decisions regarding prosecution. This parliamentary control of government action is stipulated in Sect. 22.2 of the Constitution.
Communication between the Government and the prosecution service takes place through the Ministry of Justice and the Attorney General (Sect. 8 Prosecution Service Act). Furthermore, the Attorney General shall provide the government with an annual report about its activity, the evolution of crime, crime prevention and any advice on reforms to enhance the efficiency of justice (Sect. 8 Prosecution Service Act).
The tasks for the Ministry of Justice in the Organic Rules on the organisation of the prosecution service, passed by Decree on February 27, 1969, are, among others: to propose to the government the appointment the posts of prosecuting attorney of the Supreme Court and chief prosecuting attorney for the Provincial High Courts by free designation; to order the provisional suspension of prosecuting attorneys in the cases contemplated in the Regulations; to arrange compulsory re-entry to posts as prosecutor from a situation of temporary retirement when the service so requires; to arrange the dismissal of any member of the prosecution service on the proposal of an honorary tribunal of the Prosecution Board; to grant or postpone the concession of resignation requested by a member of the prosecution service and a request for transfer; to address a written or verbal order to the prosecutor for the Supreme Court regarding generic or especially determined matters, which must be obeyed by the latter; to authorise the presentation of an action requesting purported criminal liability to the prosecutor for the Supreme Court, and so forth.
In spite of all the above, it must be taken into account that the prosecution service acts in observance of the Constitution, the laws and other rules that comprise the legal system in force. Thus, even where the prosecution service depends on the Ministry of Justice, the latter cannot issue general or specific instructions regarding the functions and powers of the prosecution service or issue instructions concerning the investigation and prosecution of concrete cases. Prosecuting attorneys are under no obligation to obey orders in this respect. In addition, these type of instructions are not at all common in the Spanish legal system.
All of this has repercussions on the role of the prosecution service when carrying out criminal prosecution. In order to apply the above rules, the prosecution service must initiate the prosecution of crimes of which it has knowledge. This provided that they are public crimes or prosecutable ex officio or semi-public offences, where the offended party must report it. In the latter case, once the offence has been reported the prosecutor may also decide to continue the prosecution in the absence of the accuser.
This prosecution may be discontinued when the crime is private in nature. This is laid down in Sect. 105 CCP, which states that the prosecution service shall be obliged to carry out all penal actions it considers appropriate, except those reserved exclusively for private prosecution by the criminal code, that is, they may only be prosecuted at the request of the offended party or the victim of the crime.
Having complied with the above, the opening of an investigation on the part of the prosecution service when it hears of an apparent crime is established as an obligation in Sect. 773 CCP.
In any case, the opportunity of acting in a more free and discretionary manner is limited by law, so that it has even been said that Spain is governed by a principle of oportunidad reglada (regulated opportunity), which is really a contradiction in terms. This reflects the possibility of freedom of action on the part of the prosecutor, but this is freedom of action regulated by law, specifically the CCP. In this way, the law stipulates that a crime cannot be prosecuted in cases where the crime has not been reported by the offended party.
In view of this possibility, the law has not taken into account the exigencies of motivation in the decision of the prosecution service not to prosecute. Nonetheless, Sect. 773.2 CCP leaves the prosecutor room to decide that a case be filed because the facts as established do not constitute a crime. The prosecutor is required to communicate the reasoning behind the decision to the person who has claimed to be the injured or offended party so that the latter may repeat the accusation before the investigating judge.
In this line of possible free interventions of the prosecution service, the role played by the service in the development of plea bargaining procedures must be taken into account. In these procedures the defendant, within certain limits, accepts the penalty requested by the prosecution service, which is followed by an immediate passing of the sentence, making the hearing unnecessary. Plea bargaining has been reinforced recently in the most recent procedural reforms of 2002 and 2003, and play a crucial role in abbreviated procedures, and those procedures known as speedy or immediate trials.
Plea bargaining can take place at different moments: during the preparatory stage of the hearing with the bill of indictment of the prosecution service, at the hearing, before the examination of evidence, etc. Perhaps the most significant situation is when it takes place at the duty magistrate’s court, after the detainee has been taken before the magistrate, provided it is within the context of a speedy trial, since in such cases the process is completed in forty eight hours with the consent of both parties. The prosecution service undertakes to reduce the penalty in exchange for the defendant’s acceptance of the most serious charge. The advantages and efficiency of this system have become evident in recent times. More and more procedures end with a sentence of agreement, and it is especially important to note here that there may be no appeal. Indeed, this stems from the general principle that nobody can go against his own deeds and someone who accepts guilt cannot express his wish to contest what he has accepted voluntarily afterwards, except in cases of serious lack of consent.
Plea bargaining is governed by abbreviated procedures in Sects. 779.1.5th and 781 CCP, in the ordinary proceedings for serious offences, in Sects. 655 and 688 CCP, and in special criminal proceedings for the speedy trial of certain crimes in Sects. 800.2 and 801 CCP.
The possibility of reaching a pact is theoretically reserved for minor offences, that is, those that involve less than 9 years’ imprisonment (abbreviated). In the special case of speedy or immediate trial, the crime cannot involve a prison sentence of less than three years. In the latter case, the sentence is automatically reduced to two years’ imprisonment, which permits the application of penitentiary benefits and therefore the possibility of not entering a penitentiary establishment, provided the defendant promises to compensate the victim for damages caused, as well as accepting specific treatment if necessary and where applicable, a detoxification programme for example.
