The extra-procedural activity of the Public Prosecutor in the criminal investigation : Circular 2/2022 20th December
On the 20th of December 2022, was published the Circular 2/2022, of the 20th of…
Article 416 of the Criminal Procedure Law (hereinafter, LECrim) establishes an exception to the obligation to testify that all witnesses have, known as “dispensation of the right to testify”. This article establishes, in summary, that ascendants, descendants, spouses, or those with a relationship equivalent to marriage, siblings, and collaterals up to the second civil degree are not required to declare when any of these ties join them with the person under investigation/accused.
This exemption has sparked debate, particularly in cases of gender violence where the victim, who is often the only or main evidence, may use this right, leading to the acquittal of the accused for lack of evidence. Consequently, there has always been an extensive discussion about the scope of this exemption. This discussion has also occurred in jurisprudence, which has changed over time.
The 2013 Supreme Court plenary session Agreement established that anyone who had or had had one of the ties included in the precept could benefit from the exception. Still, this exception would not apply when they had to declare for events that occurred after the dissolution of the mentioned ties (for example, due to separation or divorce) or when the witness appeared in the case as a private accuser.
In another way, the 2018 Supreme Court plenary session Agreement nuance that of 2013, establishing that if they used the exception at the time of the oral trial, the declarations made in previous procedural phases could not be rescued or appreciated and also that those who have been constituted as private accuser could use this exemption if they have ceased in this condition.
In this changing jurisprudence, it is necessary to highlight the Sentence of the Plenary Session of the Second Chamber of the Supreme Court of July 10, 2020, n. 389/2020, rapporteur Julián Sánchez Melgar, which has a particular vote that modified the 2018 Plenary Agreement. The new sentence sets that dispensation of Art. 416 of the LECrim is a right of the witness, not of the accused. This derives from the guarantees of Art. 24 of the Constitution and has its reason to be in the will to protect the solidarity bonds between the witness and accused, and the family relations proclaimed in Art. 39 the Constitution and also protecting privacy in the family environment. However, and this is the main point, the sentence sets that in cases in which the witness (the one who has the right not to testify) is also the victim of the crime and has filed a complaint, such exception is not applicable, especially when the witness is constituted as a private accuser. Furthermore, even if it leaves this position, it will still not regain this right of exemption. See the following paragraph:
“When the woman denounces her partner, she cannot be exempted from the obligation to declare since this position is incompatible with the denunciation. The complaint is already an accusation against the defendant”.
Another important aspect of this sentence is that the moment to determine if the ties that support the dispensation concur is the moment in which the first declaration of the witness is made. In any case, whoever has held the position of the private accuser, cannot use the dispense. Therefore, that modifies the Plenary Agreement of the year 2018.
To clarify this discussion, the Organic Law 8/2021 of June 4 reformed article 416 of the LECrim. Now, the first section of the article includes five exceptions in which there is no exemption from the obligation to declare. The fourth and fifth sections collect the exceptions made by the Supreme Court, to which we referred. In other words, neither the witness who has been a private accuser nor the witness who has already testified during the procedure, despite being informed he had the right not to do so, are exempt from testifying.
In that way, the Supreme Court Sentence of June 29, 2022, n. 656/2022, has maintained that in the cases of a victim constituted as a private accuser, it is indifferent that at the time to declare the marriage bond is still maintained. Moreover, the Supreme Court Sentence of November 30, 2022, n. 927/2022, has established that when it is the witness who, on her own initiative, goes to the police stations or the judicial court to file the complaint, the witness does not have to be warned of this exemption because, according to the Court, this witness has already resolved the conflict of interest in favour of filing the complaint. That changes in the cases in which the judicial court requires the witness to appear to testify. In these cases, the witness must be warned.
The new regulation of article 416.1 of the LECrim does not clarify what happens in those cases in which the witness has previously filed a police report and later is summoned to testify and ratify by the Court: at that time, it has not yet been constituted as a private accuser, therefore, the Art. 416.1.4 of the LECrim does not apply to him. Unless we understand that the police report is part of the procedure, we cannot apply article 416.1.5. However, applying the criteria of the Second Chamber of the Supreme Court, it seems reasonable to conclude that it is not mandatory to warn of the dispensation, considering that the victim would have gone to the police station on his/her own initiative, taking an active decision that resolves the conflict of interest that tries to save this dispensation.