Article 416 of the Criminal Procedure Law (hereinafter, LECrim) establishes an exception to the obligation…
On the 20th of December 2022, was published the Circular 2/2022, of the 20th of December, of the Attorney General of the State, on the extra-procedural activity of the Prosecutor in the criminal investigation. The circular aims to define, offer and unify criteria for the actions of prosecutors in the field of criminal investigation when it is carried out outside criminal judicial procedure. The introduction of the circular explains that its objective is to systematise and unify the multitude of circulars that had been published on this subject, which are based on the powers granted to them by article 5 of the Organic Statute of the Public Prosecutor and article 773 of the LECrim.
The Circular considers that it is an advance of the much-discussed change of the actual model of instruction, if the reforms were approved, putting the Prosecutor’s Office as the director of the instruction phase of the judicial procedure and the instruction Court as a strict Court of guarantees, with functions of protecting the fundamental rights of the parties to the process. It is therefore intended to be the compendium in which this possible future figure of the Public Prosecutor Instructor is admired. The fact is that, up to now and still today, the investigative measures of the Public Prosecutor’s office have been instrumental in nature; in other words, they prepare the judicial procedure that will be initiated later, verifying whether the criminal news justifies the instigation of criminal proceedings. It will always be up to the Court to decide in each case what value these proceedings carried out by the Public Prosecutor’s Office will have as evidence, whether they comply with the procedural guarantees of any investigation and how they are incorporated into the judicial procedure.
We highlight from the text the structure it draws on the procedural moments in which the Public Prosecutor may intervene. The Circular emphasizes that the investigative activity of the Public Prosecutor’s Office is not only limited to the preliminary phase, before the initiation of the corresponding judicial dossier, but can also be developed during the judicial process itself and even after the provisional dismissal has been decreed, in order to achieve its reopening. The circular proposes to call “pre-procedural investigation diligences” those performed prior to the initiation of the judicial procedure; “ancillary investigation diligences” those performed during the procedure; and “post-procedural investigation diligences” those performed after the provisional dismissal of the judicial proceedings. The Prosecutor who carries them out will be called the “Investigator Prosecutor”.
In terms of “pre-procedural investigation diligences”, the Prosecutor may carry out investigations of any crime, except private offences, and the Prosecutor may practice any proceedings that he considers necessary, settling them by decree, as long as they are relevant and useful, except those that limit fundamental rights. Including the statement of the investigated persona, always guaranteeing all the procedural rights of article 118 of the LECrim and strictly respecting the principle of contradiction and defence, transferring all the diligences practiced to the defence. As we said, the purpose of these investigation diligences is not to prepare the oral trial, but to carry out the necessary investigations for the Prosecutor to be able to take a well-founded decision regarding the exercise of criminal action. For this reason, a double limit is set: they will not be able to initiate pre-procedural investigation diligences if a Court already knows the same facts and they will have to cease their pre-procedural investigation diligences when there are rational and relevant indications of criminality that justify the exercise of criminal action in front the Court.
The so-called “post-procedural proceedings” should be the most limited, being aimed only at searching for new sources of evidence that could not be presented during criminal proceedings or at searching for possible authors of the facts. Because, under no circumstances can they mean a repetition of the procedure that has already been practised before the Court. In the same sense, although the “ancillary investigation diligences”, which are carried out during the judicial procedure, and which are legally and jurisprudentially accepted, their object must be limited to specific diligences relating to specific aspects that allow the judicial investigation to be supplemented. Because, again, the Public Prosecutor’s Office cannot conduct a general investigation in parallel to the judicial one.