Excerpt:
The pre-trial investigation proceedings of the Public Prosecutor’s Office are a key mechanism in the criminal justice system. They allow the Prosecutor to examine facts and determine whether there is sufficient evidence to initiate criminal proceedings. However, since they take place outside the formal judicial process, they raise several legal issues, particularly regarding the rights of the suspect and the principle of proportionality.
Nature of Pre-trial Investigation Proceedings
These proceedings occur before the formal initiation of a criminal trial and are designed to assess the criminal relevance of certain facts. They are primarily regulated by Article 5 of the Organic Statute of the Public Prosecutor’s Office and Article 773.2 of the Criminal Procedure Act, and they do not constitute a formal judicial process. This means they are not governed by the principle of contradiction nor by the procedural guarantees typically found in a trial. As a result, the Prosecutor has some discretion, but this also limits the rights of the suspect during this preliminary phase.
Rights of the Suspect during the Pre-trial Investigation
The right of the suspect to be informed about the investigation is regulated by the Criminal Procedure Act and the reform of Organic Law 5/2015. However, this right does not automatically apply; it is triggered only when there are reasonable indications of criminal conduct, not merely upon receiving a complaint. This filter is necessary to protect the investigative phase, although it may lead to situations of material defenselessness if the investigation is prolonged without providing the suspect with sufficient information.
Legal Assistance and Taking the Suspect’s Statement
During the pre-trial phase, the suspect has the right to legal assistance. Case law allows, in certain circumstances, for this right to be waived, particularly in preliminary actions without formal charges. However, the absence of legal assistance can undermine the right to a fair defense if the statement made by the suspect is significant. Minimum guarantees such as prior notice of the alleged facts and the ability to amend statements are crucial to prevent violations of the right to defense.
Access to the Investigation File
A notable feature of pre-trial investigation proceedings is the restriction on the suspect’s access to the case file. This limitation is intended to prevent the investigation from being hindered but can also obstruct the defense, particularly when the investigation progresses and focuses on a specific individual. Although the law provides exceptions, the lack of access to information creates an imbalance between the parties, requiring strict control when the investigation is extended.
Prohibited Actions and the Need for Judicialization
The Public Prosecutor lacks the authority to carry out actions that restrict fundamental rights, such as house searches, without judicial authorization. Regarding precautionary measures, their adoption also falls solely under judicial authority, except in exceptional cases such as preventive detention. It is critical that, when pre-trial investigations involve precautionary measures or the preservation of evidence, they be immediately judicialized.
Duration and Control of Pre-trial Investigation Proceedings
Pre-trial investigation proceedings must respect the principle of proportionality and cannot be extended indefinitely. The standard duration is six months, with the possibility of extending it up to 12 months in exceptional cases. This time limit is essential to prevent the pre-trial phase from becoming a de facto criminal trial, affecting the rights of the suspect without proper judicial oversight.
Conclusion
Pre-trial investigation proceedings are essential for preparing a criminal case, but their preliminary nature requires a restrictive interpretation of the Public Prosecutor’s powers. The absence of the principle of contradiction and limited access to information can affect the suspect’s rights, especially if the proceedings are prolonged without judicial control. Judicializing certain actions and adhering to time limits is crucial to maintaining the balance between effective investigation and procedural guarantees.
For further details on this topic, we have written an article for the Law and Trends newspaper. You can read it at the following link.
