Los Servicios de "Granda & Asociados"

Preliminary Diligences

They are regulated in article 13 in the law of Criminal Trials. They will be considered as such the tasks directed to protect the victims, protect the evidence that may disappear, bring into custody what leads to them being verified and the identification of the criminal or author of the crime, and detention of the suspects.

The first diligences are named this way by the Law of Criminal Trials. Every task meant to protect the victims, protect the evidence that may disappear, bring into custody what leads to them being verified and the identification of the criminal or author of the crime, and detention of the suspects.

The judge closer to the place of the commission of the crime will order their fulfillment even if he is not competent to order this, but as soon as he can he will transfer these orders to someone who is competent.

Investigation and Assurance Diligences

Tasks that are done in the preliminary phase to prepare for trial ( the first diligences ) and to assure the evidence and effects that can only be obtained initially ( the second diligences ). They will be issued by a judge that will decide about which diligences will be applicable on behalf of the state or the victim. They will be started with the order to commence the proceedings and may be of various classes:

1. Criminal Lineup:

Regulated in articles 369 and 370 in the Law of Criminal Trials. This Diligence has a special importance because when done with the formalities established by law it may have access to a full trial and serve to distort the presumption of innocence.

This piece of evidence consists in the recognition and identification of the supposed author of the crime, and will be done by lining up in plain view to the one who may identify the supposed author of the crime amongst others with the same external circumstances.

2. Photographic Recognition

The procedure consists in the identification of the author through an album of pictures of suspects. The attorney’s attendance is not required, but a later ratification is. These type of diligences ease the process but are not as efficient as a lineup.

3. Body of the Crime

Regulated in article 334 and ss Law of Criminal Procedures. And it consists on the gathering of effects of any kind that may be linked with the crime.

The autopsy will have to be done whenever a violent death is produced or suspect of criminality, although by an exterior inspection the cause of death may be recognized.

It will consist on an expert’s test done by a forensic doctor with the objective of discovering the cause of death.

4. Declaration of the Accused :

This is the most important diligence of the investigation, because the possible author of the crime is questioned, that must be summoned to be heard. The judge can call for the possible author to declare all the times he considers necessary, being of absolute importance that in every citation must be specified in which status is the accused being called, because if he is being called as the accused, then he can ask for a rightful defense from that very moment.

Amongst these declaration the arraignment hearings (articles 386 and 388 Law of Criminal Procedures) has a special importance. It is the first declaration taken of the accused. If the accused is detained these hearings must be done in the next 24 hours of the detention. If not, they will be done in the moment of the formal imputation.

5. Ocular Inspection:

Articles 336 and ss Law of Criminal Procedures. This diligence holds a tight relation with the body of the crime, because it is usually done of it.

The principal characteristic is that it is done outside the courts. It consists on a personal inspection by the judge at the place where the crime was committed.

6. Providing Documents

The LAW OF CRIMINAL PROCEDURES only mentions documents that play a part as proof in an oral trial; but even so it is evident that amongst other diligences of investigation the incorporation of documents of various types is found (letters, contracts, receipts). They may be incorporated to the trial by the judge or the parts.

7. Declaration of the Witness

Regulated in articles 410 ss LAW OF CRIMINAL PROCEDURES. We are referring here of investigation diligences, and because of this we must not confuse these type of declarations with the ones of a witness in an oral trial.

A witness can be any person and the testified declarations are taken as an obligation, and may even be considered as an accomplice if there is a refusal to declare, may even be summoned to declare by public force, and even processed as refusal to help (art. 420 LAW OF CRIMINAL PROCEDURES).

This is the general rule, but there are certain people that are exempt of their obligation to testify:

  • The King, Queen, and their spouses, the heir to the throne and the rulers of the Kingdom (art. 411 Law of Criminal Procedures).
  • The ascendants, descendants, spouse and brothers or sisters of the prosecuted (art. 416.1 LAW OF CRIMINAL PROCEDURES). These do not have an obligation to declare but may do if they wish.
  • The defender of the prosecuted because of client confidentiality.
  • Clergymen, cult ministries, and public functionaries that know the facts in virtue of professional secret. (art. 417 Law of Criminal Procedures).

8. Confrontation of Witnesses with the Accused

It consists of a confrontation between declarations, when the witness and the accused between them refute the other’s testimonies about the same fact.

It will be done in the presence of the judge and the Secretary, which will read the past declarations (and remind them of the sworn oath and the penalties for false testimonies) and will ask them if they ratify them or if any of them have a variation in the testimony. A record will be typed of everything that happens.

9. Expert Reports

Arts. 456-458 Law of Criminal Procedures. The judge will agree in the elaboration of an expert report when to understand or appreciate some important fact or circumstance scientific or artistic knowledge is required.

It consists in a third party comes before the judge to inform about some of the facts that thanks to the technical or professional (on the contrary with the witness that knows about the facts prior to the start of the trial just because of different circumstances) knowledge possessed.

All these diligences in the majority of the cases, will be practiced once again as evidence in an oral trial

From these other diligences of investigation and assurance that consist in restrictive measures of rights, and this raise problems.

These are tasks that have a general characteristic in common, that are:

  • They affect fundamental rights
  • A development is required by LO. This requisite is not always respected, because of residence registries, for example, there has been reforms that did not cover Lo’s ways and this has caused accusations of unconstitutional actions.
  • Require motivated judicial authorization to be done
  • They must respect the proportionality principle.

In these types of diligences we can find:

Entering and Searching in a closed environment

The Law of Criminal Procedures states entering in articles 545-567 and searching in articles 568-578. They are two different assumptions but usually go together.

The article 18.2 CE indicates that "The home residence is inviolable". No entry or register may be done without the owner’s consent or judicial resolution, but in case of a flagrant crime.

The CE establishes that the assumptions in which the inviolability of the home residence is allowed:

The search will be practiced in the presence of the Secretary of the Court ( or whom may substitute him ) and the interested party or the person who legally represents him, and will extend a report of the procedure.

The interested parties’ resistance will produce responsibility established in the Penal Code for the crimes of serious disobedience of the authority.

Wire Tapping

Article 18.3 recognizes the DF to the secret of communication. It can be from postal communications to telegraphic and telephonic. Nowadays it can also include email. It is regulated in articles 579 and ss Law of Criminal Procedures.

Also, regarding telephone conversations, if the requisites are not met then the conversation will not be valid.

Corporal Tapping

These types of diligences are not regulated in the Law of Criminal Procedures. They may affect article 15 CE (that recognizes the right to live, physical integrity and prohibits torture).

Article 380 of the Penal Code establishes that the negative to take breath tests constitutes a serious disobedience crime against authority. This was very criticized but the TC considered it constitutional in its STC October 2nd 1997.

Video surveillance

Regulated in the LO 4 / 87 on August 4th and in the decree 596/99 on April 16th.

This was a subject that caused much controversy because it faces the obligation of the Police to pursue prevention tasks against crime using the right of intimacy. But a STS on July 17th of 1998 established that this does not threaten the citizens’ df because it is a preprocess police activity, even if it is just for the complaint’s effects.

In any case a judge must authorize it.

Circulation and monitored delivery of toxic drugs and stupefying or psychotropic substances

Regulated in article 263 bis of the Law of Criminal Procedures that is written defectively.

It consists in allowing that illicit quantities of drug to circle around national territory (without the authorities intervening but keeping an eye on the drugs) with the objective of discovering or identifying the people involved or helping out another foreign authority on the same way and manner.

A motivated authorization is required by a Judge, unless urgency does not allow it.

Cover Agent

Regulated in article 282 bis Law of Criminal Procedures. Consists in an agent of the police infiltrating in an organized band with the objective of acting under a false identity and acquiring and transporting objects, effects or instruments of crime and differ its possible seizure.

Any relevant information the agent obtains will be made known immediately to its superiors or the people that organized the investigation.

The agent will be exempt of any criminal responsibility by any actions that are a necessary consequence for the investigation.