A first letter in February 2021 and a second, as an ultimatum, in March 2024. The Ministry of Justice had been waiting for almost four years for the report of the General Council of the Judiciary (CGPJ) on the draft Prosecution Law Criminal (Lecrim), approved by the Government in November 2020. And it is now, in December 2024 and with the CGPJ already renewed, when the plenary session of the governing body of the judges meeting this Wednesday has finally approved the opinion on the comprehensive reform of the criminal process, which contemplates, among other changes, that the investigation of criminal cases be left in the hands of prosecutors. It has done so unanimously, with a 43-page annex to the 580-page report to which elDiario.es has had access and which was prepared by the previous Council – with a conservative majority –, but it was never sent to the Government, despite having been requested. on several occasions by the Minister of Justice, Félix Bolaños.
The reform of the Lecrim to attribute the investigation of crimes to prosecutors is an old demand of the majority of the prosecutor’s career and that never saw the light of day, although the Government plans that the bill, after the report of the CGPJ, leaves the Council of Ministers in the first quarter of 2025. It will mean a structural change in the criminal process so that it is the prosecutor who investigates during the investigation time and a guarantee judge, who ensures that the investigation does not violate no constitutional endorsement, as happens in all EU countries. Spain was the exception in Europe in this matter.
The new Lecrim will in any case put an end to the validity of a law that was approved in 1882, 142 years ago, and that has been modified more than 70 times. It will, however, force us to modify other regulations, such as the Organic Statute of the Public Prosecutor’s Office and the Organic Law of the Judiciary, to, among other aspects, create the figure of the so-called guarantee judges who will oversee the process.
Although the tax investigation model is the big change introduced by the reform, the draft that the Government approved more than four years ago included other modifications pending for years, such as the veto for political parties and unions to exercise accusations. popular, a practice that has spread in recent years, particularly in cases of corruption or involving politicians. However, the Executive intends to open the debate on the extension of this prohibition to far-right associations in order “not to pervert the citizen objective with which the popular accusation was conceived.”
The text also provided for the creation of a national commission to monitor provisional detention to guarantee compensation to those who have been acquitted or whose proceedings have been dismissed. And the General Council of the Judiciary now recommends undertaking other reforms, including that of the Penal Code “in order to determine whether a new wording will be offered to crimes against the administration of justice that accommodates its current tenor to the new design. procedural”, in addition to that of the Judicial Power, the Fiscal Statute, that of Demarcation and Judicial Plant and the Organic Law of the Jury Court.
The CGPJ, whose report is mandatory, but not binding, now endorses the main objective of the reform, after a review of comparative law: “In general terms (…), it can be stated that in most of the countries of Our environment reserves to judges the function of guaranteeing fundamental rights within criminal investigations and in the criminal procedural framework, as well as the work of prosecution, with the issuance of the sentence, while prosecutors are attributed the direction of criminal investigation and the exercise of criminal action,” reads the opinion.
The governing body of the judges cites as a paradigm of the fiscal instruction that can be extrapolated to the Spanish system the model of the Federal Republic of Germany, where it is the public ministry that “initiates the investigation with the support of a judge of guarantees” and the private accusation of very few crimes.” Even so, he maintains that the new model of criminal proceedings “in which the institution of the Public Prosecutor’s Office is the key to the investigation phase can only be launched if an ambitious reform of the Organic Statute of the Public Prosecutor’s Office is addressed beforehand.” that emphasizes and strengthens the guarantee of independence of the public ministry.”
“Within the framework of the constitutional principles enshrined in article 124 CE – adds the report – and in accordance with European standards, this General Council of the Judiciary considers it imperative to influence the need for the implementation of the new criminal process model , erected from the guarantee of constitutional principles and rights, is preceded by a reform
“in depth of the legal regime that makes up the organic statute of the Public Prosecutor’s Office, incorporating effective guarantees of independence.” And this both in its external dimension, “so that it is not subject to orders or instructions given by third parties and is protected from external interference or pressure”, and in its internal dimension, “introducing appropriate counterweights to the organic principles of hierarchy and unit of action. It also suggests institutional improvements in the regime of the State Attorney General, “especially in its appointment system and its status of immovability.”
However, the CGPJ understands that in the model proposed in the investigation procedure “judicial intervention (…) is reasonably broad to guarantee the protection of fundamental rights and to assess the basis of the accusatory claim”: And that the The performance of the guarantee judge “is conceived in a sufficiently diversified manner, within a concentrated model, to provide due virtuality to the principle of objective independence.” Even clearer: “The projected model does not in any way imply a dejudicialization of the process (…) and leaves untouched, as it could not be otherwise, the strict jurisdictional function, already in the investigation phase, already, of course, in the prosecution phase.”
The draft law in its article 282 only allowed the Public Prosecutor’s Office to adopt precautionary measures of a real nature in exceptional cases that it classifies as urgent, but always transferring it to the judge, who will be the one who decides what is appropriate, after hearing the parties. The CGPJ understands this limitation of the public ministry’s jurisdiction as appropriate, although it considers that, “except for detention, all personal and property precautionary measures must be adopted by a judge or court.”
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