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Complaints and Private Prosecutions

Complaints in criminal matters

The accuser which is the person who files the complaint does not form a part in the penal process. From the moment he files the complaint a process starts in which the competent bodies if they consider it convenient will carry out the work. The complaint does not oblige the authorities to start a legal process but they can incur in administrative sanctions if they don’t investigate the complaint thoroughly without a valid reason.

On the other hand, not taking part in the process excuses the accuser in helping with any evidence he may have. But while filing the complaint he may contribute with any support of evidence with the objective of helping the respective bodies decide that there is sufficient evidence to continue investigating the matter. With the complaint no bail assistance is demanded.

On the contrary in a private prosecution the accuser is part of the process and has to prove in court with evidence.

Regulations by Country
Spain
According to article 259 of the Law of Criminal Procedures anyone who witnesses the perpetration of any public crime will have the obligation to denounce it or will receive a fine of 25 to 250 pesetas (.15 to 1.50 euros).
The following do not have an obligation to denounce:

Children who have not reached puberty or the ones that do not enjoy plain use of reason.

The delinquent’s spouse.

Blood ascendants, descendants or similar until 2nd degree.

Natural born offspring.

Certain jobs (lawyers or solicitors with their clients, clergymen or ministries of cults).

When the complaint is anonymous it is called an accusation.
The complaint may be written or oral. The written complaint must be signed by the accuser, ratified and sealed on all its pages by the authority or functionary. The oral complaint requires a record extended by the authority or functionary and must be signed by the authority and accuser.
The Private Prosecution is an act in the process that consists in a declaration of will directed to a jurisdictional an competent body. So the accuser besides telling the authorities about the "notitia criminis", exercises a penal action, regulated nowadays in the Code of the Penal Process.

A complaint can be formulated before any judicial authority, functionary of the Fiscal Ministry or Police. A private prosecution on the other hand, has to be interposed before the competent jurisdictional body, this means before the district attorney so the attorney can channel the prosecution to the judge for a sentence.

A complaint is a duty while a private prosecution is a right.

a) A complaint is an obligation, generally imposed by the State to obtain citizen cooperation in the fight against crime.
b) A private prosecution constitutes as a general rule, a right. Every Spanish citizen, offended or not by a crime, may carry out a private prosecution when it comes to a public offense, using the popular action; and also the foreigners may carry out a private prosecution for against committed to their personas and possessions, or the people and possessions of their representatives.

The Organic Law of the Judicial Power states that regarding Spanish citizens ‘’ they may exercise popular action, in the cases and forms established by law’’. On the contrary, in private crimes ( pursued by instance of parts ), a private prosecution may only be filed by legitimate persons, according the case, to act in the process as a private accuser.


The formal requisites of a private prosecution are:
1.- Will always be presented by a prosecutor with sufficient power and a written inscription.

2.- It must contain:
1) The Judge or Court to whom it’s presented

2) The name, last name, and whereabouts of the accuser.

3) The name, last name and whereabouts of the accused. In case of ignoring some of the information, a description has to be provided by the accuser in order to identify the accused.

4) The circumstanced relationship of the fact, expressing place, year, month, day and hour in which was executed, if known.

5) The diligences that must be done in order to prove this fact.

6)The petition that the prosecution be admitted, the diligences done, the procedure to capture the accused that will lead to the detention, and prison time or fine of the supposed guilty accused, and the entire impound of the possessions necessary of the asked quantity, if this applies to the case.

7)The accuser’s signature or of somebody else in its behalf, in case the accuser cannot sign or does not know how, when the prosecutor does not have the special power to file the prosecution.
El querellante prestará fianza de la clase y cuantía que fije el órgano jurisdiccional, para responder de las resultas del proceso.

The accuser will post bail of the class and quantity that the jurisdictional body determines to answer for the results of the process.

But these are exempted of posting bail:
1) The accused and its heirs as well as their legal representatives

2) In crimes of homicide, the widow or widower, the blood ascendants and descendants, blood or uterine collaterals until 2nd degree, the victim’s heirs and the parents, and offspring out of marriage linked with the mother, and to the father if they are known to him.
The extension of the bail does not apply to foreigners, if it does not correspond to them in virtue of the international treaties or in the principal of reciprocity.

On the other hand, when this is about certain private crimes (pursued on instance of the part), the admission of the private prosecution is related with certain previous requisites or assumptions:
a) If the private prosecution’s objective is a fact that carries in itself characters of a crime pursued only on instance of the part, the same certification will be joined to credit this being celebrated or the intention of celebrating it as a conciliatory act between accuser and accused.

b) In relative private prosecutions of defamation or slandering crimes caused in court, there will be a need to present apart from the referred certification, the license of the Judge or Court that knew the parts.

The Private Prosecution is a declaration of will in which the one who formulates it not only puts to the judge’s knowledge some possible facts that carry criminal connotations but it expresses the will to exercise penal actions, constituting in part in the current process.

In a Private Prosecution the competent jurisdictional body, after admitting if it proceeds, will send to practice the necessary diligences, as long as they are inside the law, necessary and that they do not affect the objective of the prosecution, if not they will be denied in a motivated resolution. The prosecution will be rejected if the facts on which it is based do not constitute a crime or it is not considered competent to carry out the object in itself.

On the other hand one cannot talk of desisting the complaint (because once it has been filed the accuser has no other obligation).

In a private prosecution the accuser can be obliged to take part in posterior activities, in case of a negative answer, the accuser will be considered abandonment; this can be expressed in a tacit or express way, understanding that it will be tacit in private prosecutions for private crimes: If the prosecution is about a crime not pursued by the instance of parts, it will be considered abandonment from the accuser if it does not exercise any action in the following 10 days of the notification to the judge or court if it was agreed upon.

Another cause for abandonment would be death or a handicap from the accuser to continue pressing charges, and not followed through by any of its heirs, or legal representatives to sustain its demands in the following 30 days of the citation, which will be done immediately after knowing the situation.