Two months ago, the technical office of the General Council of the Judiciary (CGPJ) delivered the most anticipated report on the Government’s project to reform the Organic Law of Criminal Procedure —in force since 1882 and with 77 subsequent modifications— so that the instruction of the cases pass from judges to prosecutors.
The report, to which EL PAÍS has had access, defends that the legal change in the crime investigation system is constitutional. But the implementation of this new criminal investigation system in Spain, whose draft law has been blocked for two years, must have the guarantee of the independence of the Prosecutor’s Office, warns the report that the 18 members of the CGPJ have pending approval. The draft law establishes that judges will limit themselves in criminal proceedings to acting as arbitrators to guarantee that the rights of those who participate in the cause are respected.
The report indicates that important steps have been taken in recent years to increase the degree of autonomy of prosecutors, but considers that the implementation of a new crime investigation model requires strengthening it. “The criminal investigation model in the hands of the public prosecutor’s office,” states the opinion, “has to be built from the institutional guarantee of independence.”
With this premise, the main conclusion of the report is that “the attribution to the prosecutor of the direction of the criminal investigation, establishing mechanisms of judicial control and guarantee of fundamental rights, falls within what is constitutionally possible and does not conflict with the principle of exclusivity established in article 117.3 of the Constitution”. This precept determines that the exercise of jurisdictional power in all types of proceedings, judging and enforcing what has been judged, “corresponds exclusively to the courts and tribunals determined by law.”
The need for Spain to change its current system of distribution of functions between judges and prosecutors so that the former focus their work on guaranteeing the rights of the parties involved in the procedure, and the latter on the investigation of the crimes themselves, It has been present in the programs of the different governments for 20 years, but none of them came to approve the necessary legal reform. On this occasion, months from the end of the legislature, it is taken for granted that it will not go ahead either, but the debate will come up again sooner or later because it is a pending issue.
The report has not yet been brought to plenary session by the rapporteurs in charge of doing so. The CGPJ has had its mandate expired for four years, waiting for a renewal that has not arrived. Although with limited functions —it cannot make appointments to judicial positions in the different courts— it still has powers to inform the Government’s legislative projects.
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The draft that the CGPJ has analyzed is the one prepared at the end of 2020 by the then Minister of Justice Juan Carlos Campo (today a magistrate of the Constitutional Court). His successor, Minister Pilar Llop, decided at first to reflect on that text before asking the advisory bodies to report on it. Less than a year ago, she began studying at the CGPJ.
This legal reform is a promise broken by all governments for two decades. There is a common criterion between the two majority political forces in Spain in favor of standardizing its penal system with that of most European countries, in which the investigation of crimes is carried out by prosecutors and not judges. To prepare the report, the technical cabinet has had the external advice of a Supreme Court magistrate, another of the National Court, and one of the authors of the draft, the professor of Criminal Law Juan José López Ortega.
The main problem raised by the report is how to guarantee the independence of the public prosecutor’s office, which from now on would be in charge of directing criminal investigations into, for example, corrupt politicians; while its main authority, the State Attorney General, is handpicked by the Government.
The report is based on the jurisprudence of the European Court of Human Rights (ECHR) which establishes that, in order to determine whether a body can be considered independent, in particular from the Executive, factors such as “the manner of designation of the members of the body, the duration of their mandate, the existence of guarantees against external pressures” and, also, “if the body presents an appearance of independence”. The report specifies that the Constitution “does not predicate the trait of independence of the public prosecutor’s office”, for which reason, it adds, it must be understood as linked to the concepts of “functional and organic autonomy of the institution”.
The opinion considers it “unavoidable” to refer to the observations contained in the reports of the European Commission on the situation of the rule of law relating to Spain, in response to the “concerns raised” regarding “relations between the Government and the Attorney General”. . Such concerns are attributed not only to the Commission, but also to the Group of States against Corruption (GRECO). The opinion cites the report on the Rule of Law corresponding to 2022, in which it is appreciated that “a broader reform of the statute of the attorney general continues to be necessary”, especially “with regard to the coincidence in the mandate of the attorney general and the Government”, because this characteristic “can affect the perception of independence”.
Hence, the drafters of the opinion emphasize that the CGPJ stresses the need for the implementation of the new criminal process model to be accompanied by “an in-depth reform of the legal regime that configures the organic statute of the public prosecutor’s office.” This reform “will have to be carried out (…) abounding in the functional and organic autonomy of the institution and in the guarantee of impartiality, within the respect of the constitutional principles of legality, unity of action and hierarchical dependency”, which are the classic of the Prosecutor’s Office
The report that the plenary session of the CGPJ will have to vote underlines the interest of “matching” the revision of the Statute of prosecutors with the legal reform to put the criminal investigation in their hands. In any case, it assesses that the draft “does not ignore, nor does it ignore, therefore, the need to undertake profound organic and functional changes in the institution.”
The opinion insists that the model proposed by the draft “requires introducing institutional improvements in the regime” of the head of the Prosecutor’s Office, “especially in its appointment system and in its tenure status.” The technical cabinet cites the GRECO reports to claim “guarantees of autonomy, functional and organic, in such a way that the specific performance of each prosecutor in the exercise of criminal action can be perceived as purely objective and scrupulous, far from partisan decisions ” .
The opinion values the reform of the Public Prosecutor’s Statute that was made in 2007, but considers that, although it “increased the guarantees of autonomy in the figure of the State Attorney General, it did not do so sufficiently”, because the forecasts that the The attorney general’s mandate coincides with the legislature and his dismissal with that of the government that appointed him, “still overshadow the guarantee of independence”.
The example of the German model
The report on which the members of the Council for the Judiciary are working contains a section dedicated to comparative law, in which it refers to the German model of criminal investigation “as the paradigm of tax investigation that can be extrapolated to our legal system”. The opinion considers this criterion as the majority among the experts, because the Prosecutor’s Offices of both countries “are governed by the same organic principles, unity of action and hierarchical dependence, and functional (legality and impartiality).” But he adds that the government dependence on the German Prosecutor’s Office is “significant”, because “the appointment of the general prosecutor and all federal prosecutors corresponds to the federal president, always at the proposal of the Ministry of Justice.”
In this model, the prosecutor initiates and directs the investigation with the support of the magistrate as guarantee judge. In this model, the intervention of the defense in police investigations is very limited, so that they can only attend the actions agreed upon by the judge, such as visual inspection or examination of witnesses. In certain cases of urgency, the prosecutor may even order the practice of proceedings, such as entries and searches or kidnappings, reserved for the judicial authority. On the other hand, also in specific cases, the prosecutor can agree to file a case.
In Italy, the guarantee judge, as judge of the preliminary investigation, guarantees respect for fundamental rights and, unlike what happens in Germany, is the one who agrees, if applicable, to close the case. He also decides, where appropriate, the adoption of precautionary measures, telephone or telematic interception or the anticipated practice of evidence, at the request of the Public Ministry. The defense, for its part, can carry out its own investigation with the support of the guarantee judge.
In Anglo-Saxon countries, the investigation corresponds to the Police and the intervention of the crown rosette The Crown Prosecutor —in the United Kingdom— agrees to review the merits of the case in order to request the opening of the oral trial. In Portugal, the preliminary investigation is entrusted to the prosecutor, while the investigation is entrusted to the judge, to which we must add that this is only opened at the request of the accused or the offended party.
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