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Procedures before a Jury in Trial

We can arrange them.

Their regulation is contemplated in the L.O. 5/1995 the 22nd of May. It is a law that was born due to controversy and in the same year it was started it was reformed twice.

Certainly the jury is a new figure in our legislation, but it has a certain historical presence, socially it was not considered a renowned figure. In the 19th century this figure suffered the movement of the pendulum based upon the color of the power (liberal or conservative)being the last period with the II Republic.

Article 125 CE contains a mandate that bestows a certain level of participation for the citizens in the Justice Department. Such law states that the citizens may exercise the popular action and participate in the Administration of Justice through a jury in the form and penal processes the law determines, as well as in the Common Law trials.

Then a 2 way street is opened in terms of participation: by popular action or by the Institution of the Jury. For this figure a pure system has been chosen by a Jury formed by legal persons in Rights.

Competence Range

In Spain this has proceeded with an established criteria of prudence over the matters that this figure can handle, so a progressive attribution of matters are given, the following crimes that the Court can handle according to the first article of the LOTJ are:

  • Crimes Against People
  • Crimes committed by Public Functionaries in duty
  • Crimes Against Honor
  • Crimes Against Freedom and Security
  • Crimes for starting a fire

And in these categories:

  • Of Homicide ( arts. 138 to 142 Penal Code ), except the imperfect forms ( art.5)
  • Of Threats ( art. 169 .1 Penal Code )
  • The omission of the duty to assist (art. 195,196, Penal Code )
  • Forest Fires ( Arts. 352 to 354 Penal Code )
  • Infidelity in the Custody of Documents ( arts. 413 to 415 Penal Code )
  • Bribery ( Art. 419 to 426 Penal Code )
  • Influence Peddling ( Art. 428 to 430 Penal Code )
  • Embezzlement of Funds (Art. 432 to 434 Penal Code )
  • Illegal Frauds ( Art. 436 to 438 Penal Code )
  • Forbidden Negotiations with Functionaries ( Art. 439 to 440 Penal Code )
  • Infidelity in the Custody of Prisoners ( Art. 471 Penal Code )

There are assumptions in which the Trial by Jury cannot be formed: when the crime in matter must be known exclusively by the National Audience.

Exception Assumptions:

About connected crimes, article 5.2 establishes that as a general rule the Trial by Jury’s competence will extend to the judgment of the connected crimes, as long as the connection was born in the following ways:

  • That 2 or more people gathered commit simultaneously different crimes
  • That 2 or more people commit more than one crime in different places and times, but not arranged
  • That one of the crimes was done to perpetrate another, facilitate the execution or to try and obtain impunity (instrumental or medial character).

Of the connection the crimes of corruption, and the connected crimes that may be judged separately without breaking the facts of the cause will be excluded.

Also in article 5 in its third section, it states that only just one action constitutes two or more crimes, the trial by jury will be competent for judgment if one of them is attributed to the jury’s knowledge.

Likewise, when several actions or omissions constitute a continued crime the trial by jury will be competent if it were attributed to the jury’s knowledge.

Regarding territorial competence , the law refers the article 5.4 to the general rules, which finally makes us conclude that the Trial by Jury will be formed in a provincial way, and with relation to the place where the actions were committed.

In accordance with article 24, the competent organ for the instruction is the Instruction Court. Of the judgment the one in charge will be the Provincial Audience except in gauging assumptions. In functional competence, the sentences dictated by the Trial by Jury in range of the Provisional Audience will be allowed to appeal before the corresponding Superior Tribunal of Justice.

In jurisdiction sentences in the Superior Tribunal of Justice there will only be a high appeal before the Supreme Court.

The trial by jury will be formed by 9 jury and a Magistrate President (belonging to the Provincial Audience in every case but jurisdictional cases).

Functions of the Jury

  • Emit a verdict from the fact or action that has been submitted to them.
  • Decide if the accused is guilty or not guilty

The length of the sentence as well as the civic responsibility in case of guilt will be determined by the Magistrate President.

Being a jury is a right, but it is also a duty, non excusable for the citizen.

The law establishes some requisites, incapacities, incompatibilities, prohibitions and excuses (arts. 8 to 12).

Requisites:

  • Spanish of legal age (this may clash with the idea of European citizenship).
  • In full exercise of its political rights.
  • To know how to read and write.
  • Form part, in the time of designation to any of the regions in which the crime was committed.
  • Free of physical, psychic or sensorial impediments to function as a member of the jury.

Lack of Capacity

  • The condemned for a crime with intention that have not obtained rehabilitation.
  • The processed and those accused who have had an oral case opened and the ones who are in detention, provisional prison or doing time for a crime.
  • The suspended, in a penal process, in their jobs or public charge, while such suspension lasts.

Incompatibilities

  • The king and the rest of the members of the Spanish crown as well as their spouses.
  • The President of Government, the Vice-presidents, Ministers, Secretaries of State, Sub-secretaries, General Directors and similar positions. The Director and Provincial Delegates of the Electoral Register, the Governor and Sub-governor of the Bank of Spain.
  • The President of autonomous communities, the council of government, vice-counselors, general directors and other positions alike.
  • Senators and member of the European Parliament, members of the Legislative Assemblies of the Autonomous Communities and the elected members of the local Corporations.
  • The President and Magistrates of the Constitutional Courts. The Presidents and Members of the General Council of the Judicial Power and the Fiscal General of the State. The President and Members of the Account Courts and the Council of the State and the organs and institutions of analogue nature of the Autonomous Communities.
  • The defender of the People and its assistants, as well as similar positions in autonomous communities.
  • Active members of the Judicial and Fiscal class, Bodies of Judicial Secretaries and medics.
  • Forensic Scientists, Officials, Agents, assistants, and other personnel of the Administration of Justice Services, as well as active members of organic units of the Judicial Police.
  • Members of the Military Judicial corps of the Defense and the assistants of the Jurisdiction and Fiscal Military, in active.
  • Government Delegates of the Autonomous Communities, in the autonomies of Ceuta and Melilla, the insular Delegates of Government and Civil Governors.
  • Lawyers in service of the constitutional organs and public administrations or any court, and prosecutors in service. College professors of legal medicine and legal disciplines.
  • Active members of Security Forces.
  • Penitentiary Institution functionaries.
  • Chief of diplomatic missions credited in foreign countries. Chiefs of Consular Offices, and of Permanent Representations of International Organizations.

Prohibition

When:

  • It is about a private accuser, civil author accused or third party responsible civically.
  • Maintains with anyone a relationship that determines the duty of the judges and magistrates to abstain themselves.
  • When there is a link of blood of kinship with the Magistrate President of the Court, a member of the Fiscal Ministry, or the Judicial Secretary that intervene in the cause or between the lawyers or prosecutors.
  • Having intervened with the cause as a witness, expert, interpreter or guarantor.
  • Have a direct or indirect interest in the cause.

Excused

  • People over 65 years of age
  • The ones who have already been part of a jury in a 4 year range till the date of the new designation.
  • The ones suffering from a great family struggle.
  • The ones that have a job of relevant general interest so its substitution would cause important damage on the person.
  • Residents in foreign countries.
  • Professional Active Military when reasons of service concur.
  • The ones who have sufficient justifiable reasons that seriously hurts their ability to perform as a jury.