Congress begins processing the draft Organic Law on Criminal Procedure

According to the Government, the proposal introduces a renewed procedural model, designed to adapt the Spanish penal system to current European standards.

The bill consists of 1023 articles, 9 transitional provisions, 1 derogatory provision and 10 final provisions. The Executive argues that the renewal is essential given the age of the Criminal Procedure Act of 1882, which has already undergone more than 80 reforms. In addition, the text incorporates elements of previous proposals promoted in 2011 and 2013, which were not approved by their respective governments.

The main axes of the project include:

1. criminal investigation by the Public Prosecutor's Office: the direction of the investigation is attributed to the Public Prosecutor's Office, replacing the Examining Magistrate, with supervision by the Judge of Guarantees in decisions that affect Fundamental Rights.

2. Structure of the process: One of the most relevant changes introduced by this new law is the unification of the summary and abbreviated procedure into a single general procedure. On the other hand, the LECRIM dedicates its BOOK VIII to regulating a series of special procedures.

• The general procedure is structured in three distinct phases: investigation - formerly the pre-trial phase -, intermediate and trial.
  • The investigation phase is a common, non-jurisdictional period aimed exclusively at clarifying the offence and identifying those possibly responsible for it. It comprises a preliminary investigation, aimed at gathering data and elements that make it possible to attribute a punishable act to a specific person when their identity is not yet known or there is insufficient evidence to direct the investigation against a specific person, and a main phase that begins with the so-called "first appearance". Although initially there is no fixed time limit, the first appearance triggers a 12-month period, after which the defence can request the Judge of Guarantees to terminate the investigation if it considers that it is being unjustifiably prolonged. This period is extended to 18 months when the case is investigated by the Public Prosecutor's Office of the Audiencia Nacional or by the Special Prosecutor's Offices.
  • The intermediate phase constitutes the first jurisdictional stage of the procedure and begins with the presentation of the indictment. At this procedural stage, the evidence is examined, excluding evidence that is unlawful; decisions on its admissibility may be appealed against with suspensive effect. It is also possible to challenge the charges - indictment -, resolve preliminary questions and decide whether the case should continue or be closed. This phase is conducted by the Preliminary Hearing Judge, a judge of the trial division of the competent Court of First Instance, who does not subsequently participate in the trial. If the continuation of the proceedings is agreed, the oral trial file will be formed, which will include the opening order, the parties' qualifications and proposals for evidence, as well as - at the request of a party - certain material from the investigation: acts of securing personal evidence, irreproducible measures that require ratification at the trial and documents incorporated as documentary evidence, but not everything that has been acted upon.
  • The trial phase begins when the parties appear before the Court of First Instance, which prepares the oral trial and admits the proposed evidence, which can only be challenged on grounds of irrelevance or futility. These Courts of First Instance, created as a result of LO 1/2025, will concentrate jurisdiction for all prosecutions, displacing the Provincial Courts, and may act as collegiate bodies in serious crimes or as a single judge in all other cases.
• With regard to the special procedures, regulated in Book VIII, the following are distinguished:
  • Fast-track trial procedure
  • Proceedings for private offences
  • Proceedings before the Jury Court, which will no longer be regulated in a separate law and, as a novelty, will exclude from its jurisdiction the offences of breaking and entering.
  • Proceedings against persons with a privileged status
  • Trial for minor offences
  • Autonomous confiscation proceedings

3. Victims' rights: Their participation is strengthened, even if they are not involved, in cases of conformity and execution of sentence. Repetition of statements is limited to avoid re-victimisation and restorative justice is promoted.

4. Popular accusation: The draft introduces a double limitation.

• Subjective: public institutions, political parties and trade unions are excluded.
• Objective: a closed catalogue of crimes affecting collective interests is established, including violence against women, and a legitimate link between the accusing organisation and the object of the process is required.

5. Technological investigation measures: DNA tests with phenotypic traits, remote biometric identification and tools based on artificial intelligence and robotisation for data analysis are incorporated, subject to proportionality criteria and applicable to serious crimes.

6. Criminal compliance: Mechanisms are foreseen to speed up the process through compliance agreements.

7. Autonomy of the Public Prosecutor's Office: Its independence is reinforced through the approval of the organic statute and measures to avoid interference, such as the obligation of written communications and the dissociation of the mandate of the State Prosecutor General from the Government.

The entry into force is scheduled for 1 January 2028, applying to cases initiated as of that date. It will also apply to proceedings initiated prior to that date, by virtue of its second to ninth transitional provisions.

However, the bill still has to go through the reinforced legislative procedure foreseen for Organic Laws in the Constitution: processing in Congress and the Senate, approval by absolute majority, royal sanction and publication in the BOE, so that this date could be modified.

It should also be borne in mind that the current text is not definitive and may be subject to modifications during its parliamentary processing. It will be necessary to follow the development of the legislative debate in order to know the wording that will finally be approved and published.

Information note prepared by the Compliance team of ECIJA Madrid.