Two months ago, the Technical Office of the General Council of the Judiciary (CGPJ) delivered the most awaited report on the government’s project to reform organic criminal procedural law – in force since 1882 and with 77 subsequent amendments – so that the direction of the cases goes from judges to prosecutors about.
The report, to which EL PAÍS had access, defends that the legislative change in the criminal 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 guarantees of the independence of the public prosecutor, warns the report, which the 18 members of the CGPJ have yet to agree to. Under the draft law, judges in criminal cases will limit themselves to acting as arbitrators to ensure that the rights of those involved in the case are respected.
The report notes 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 its strengthening. “The criminal investigation model in the hands of the public prosecutor’s office,” says the report, “must be based on the institutional guarantee of independence.”
Under this premise, the main conclusion of the report is that “the assignment of the direction of criminal investigations to the prosecutor, the establishment of mechanisms of judicial control and the guarantee of fundamental rights fall within what is constitutionally possible and does not conflict with the principle of Article 117.3 of the Constitution stipulated exclusivity”. This commandment stipulates that the exercise of jurisdiction in all types of proceedings, the assessment and enforcement of what has happened “is the exclusive responsibility of the courts and tribunals determined by law”.
The need for Spain to change its current system of division of tasks between judges and prosecutors so that the former focus their work on guaranteeing the rights of the parties involved in the proceedings and the latter on investigating the crimes themselves has been present in the programs of the various governments for 20 years , but none of them approved the necessary legislative reform. On this occasion, months before the end of the legislature, it is understood that it will not go ahead either, but the debate will resurface sooner or later because it is a pending issue.
The report has not yet been tabled in the plenary session by the responsible rapporteurs. The CGPJ’s mandate expired four years ago and is awaiting an extension, which has not materialized. Although it has limited functions – it cannot make appointments to judges’ posts in the various courts – it still has the power to inform the government’s legislative projects.
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The draft that the CGPJ analyzed is the one drawn up at the end of 2020 by the then Minister of Justice Juan Carlos Campo (now a judge at the Constitutional Court). His successor, Minister Pilar Llop, decided to first reflect on this text before asking the advisory bodies to report on it. Less than a year ago it started studying at the CGPJ.
This legislative reform is a promise that has been broken by every government for two decades. There is a common criterion between the two political majority forces in Spain in favor of aligning the penal system with that of most European countries, where investigations into crimes are carried out by prosecutors rather than judges. In preparing the report, the technical cabinet consulted a judge from the Supreme Court, another judge from the National Court and one of the authors of the draft, professor of criminal law Juan José López Ortega.
The main problem raised by the report is how to ensure the independence of the public prosecutor’s office, which would henceforth be responsible for conducting criminal investigations into, for example, corrupt politicians; while its main authority, the Attorney General, is handpicked by the government.
The report draws on the case law of the European Court of Human Rights (ECtHR), which states that in determining whether a body can be considered independent, particularly by the executive, factors such as “the manner in which the members of the body are appointed, the length of their mandate, the existence of safeguards against outside pressure” and also “when the body gives the appearance of independence”. The report specifies that the Constitution “does not preach the characteristic of the independence of the public prosecutor’s office”, which is why it should be understood in the context of the concepts of “the functional and organic autonomy of the institution”.
The Opinion considers it “inevitable” to refer to the remarks made in the European Commission’s rule of law reports on Spain in response to the “concerns expressed” regarding the “relationship 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 Rule of Law Report for 2022, which acknowledges that “a broader reform of the Attorney General’s statute remains necessary”, in particular “in view of the coincidence of the mandate of the Attorney General” and the Government” because this feature “can affect the perception of independence”.
Therefore, the authors of the opinion emphasize that the CGPJ emphasizes the need for the implementation of the new model of criminal procedure to be accompanied by “a profound reform of the legal system that shapes the organic statute of the prosecutor’s office”. This reform “must be carried out (…) full of functional and organic autonomy of the institution and the guarantee of impartiality, respecting the constitutional principles of legality, unity of action and hierarchical dependency” are the classics of the prosecution
The report, to be voted on by the CGPJ’s plenary session, underscores the interest in “coordinating” the revision of the prosecutors’ statute with legal reform in order to place criminal investigations in their hands. In any case, he notes that the draft “does not ignore, and therefore does not ignore, the need to make profound organic and functional changes in the institution”.
The Opinion insists that the model proposed in the draft requires “the introduction of institutional improvements in the regulation” of the Chief Prosecutor’s Office, “particularly in his appointment system and in his tenure”. The technical cabinet cites the GRECO reports to claim “guarantees of autonomy, functional and organic, so that the specific performance of each prosecutor in the exercise of criminal measures can be perceived as purely objective and conscientious, far removed from partisan decisions”.
The Opinion acknowledges the reform of the Prosecutor’s Statute carried out in 2007, but considers that while it has “increased the guarantees of autonomy in the figure of the Attorney General, it has not done enough” because the projections that the Attorney General’s mandate will coincide with that of the legislature and his dismissal coincides with that of the government that appointed him “still overshadows the guarantee of independence”.
The example of the German model
The report, which the members of the Council for Justice are working on, contains a comparative law section, which refers to the German model of the criminal police “as the paradigm of tax investigation that can be transferred to our legal system”. The Opinion considers this criterion the majority among experts because the prosecutor’s offices of both countries “are guided by the same organic principles, unity of action and hierarchical dependence and functional (legitimacy and impartiality)”. However, the state’s dependence on the federal prosecutor’s office is “considerable,” he adds, because “the appointment of the general public prosecutor and all federal prosecutors is made by the federal president, always at the suggestion of the Ministry of Justice.”
In this model, the prosecutor initiates and directs the investigations with the support of the prosecutor as the guarantor judge. In this model, the defense’s intervention in police investigations is very limited, so that they can only attend actions agreed by the judge, such as inspection or questioning of witnesses. In certain urgent cases, the public prosecutor can even order that procedures such as entry and searches or kidnappings are reserved for the judicial authorities. On the other hand, the public prosecutor can also agree to the filing of a lawsuit in certain cases.
In Italy, the guarantor judge, as judge of the preliminary proceedings, guarantees respect for fundamental rights and, unlike in Germany, is the one who, if necessary, agrees to the termination of the proceedings. At the request of the public prosecutor’s office, it may also decide on the adoption of security measures, telephone or telematic surveillance or the provision of evidence in advance. The defense, for its part, can conduct its own investigations with the support of the surety judge.
In Anglo-Saxon countries, the investigation falls to the police and the intervention of the Crown Prosecutor or Crown Prosecutor – in the United Kingdom – is mandated to examine the merits of the case in order to request the opening of the hearing. In Portugal, the preliminary investigation is entrusted to the prosecutor, while the investigation is entrusted to the judge, adding that it is only opened at the request of the accused or the offended party.
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