SPECIAL REPORT
The New Code of Criminal Procedures A histotric turning point on criminal proceedings with an impact on reputation management
Madrid, December 2013
BARCELONA BOGOTÁ BUENOS AIRES LIMA LISBOA MADRID MÉXICO PANAMÁ QUITO RIO J SÃO PAULO SANTIAGO STO DOMINGO THE NEW CODE OF CRIMINAL PROCEDURES, A HISTOTRIC TURNING POINT ON CRIMINAL PROCEEDINGS
1. INTRODUCTION 1.INTRODUCTION 2. THE CODE OF CRIMINAL PROCEDURES: MAIN CHANGES AND Managing reputation along criminal proceedings is currently a tough IMPLICATIONS task which is going to be affected by the changes on the current Code of Criminal Procedures (LEC). Some of these changes will directly 3. IMPACT ON REPUTATION’S MAN- affect reputation. AGEMENT AUTHORS The changes of the new regulation will not change the substance of LLORENTE & CUENCA the matter but probably the forms, especially regarding the changes on the management of a case’s publicity.
The keys for success are still the same. However, there are three aspects regarding reputation management we need to pay attention to.
• Preparation: global (of the case) and specific (regarding each aspect of the case).
• Permanent coordination with the legal team.
• Legal decisions taking into account the reputation variables.
2 THE NEW CODE OF CRIMINAL PROCEDURES, A HISTOTRIC TURNING POINT ON CRIMINAL PROCEEDINGS
2. THE CODE OF institution making the most CRIMINAL PROCEDURES: sensitive decisions —such as MAIN CHANGES AND precautionary measures or permission for test running—. IMPLICATIONS Moreover, in order to enable the public prosecutor to develop Through the Ministry of Justice, the new tasks, there has to be the Government intends to pass a a change on the Statute of the bill called “the Code of Criminal Public Prosecution Ministry. “Should the mention Procedures” which has been bill be passed, it will elaborated by an Institutional 2. Popular action is significantly replace the current Commission of experts. Should reduced although it is still Code of Criminal the mention bill be passed, it allowed in cases of crimes Procedures and will will replace the current Code committed by public officials, of Criminal Procedures and will corruption, electoral mean a historical mean a historical turning point on and offenses against the turning point on the the Spanish Criminal Code due to “collective interest”. Again, Spanish Criminal the changes it presents. The bill a major change since there Code” could be passed by the Council are currently many processes of Ministers before the end of that have started because of the year. Remains to be decided the popular action. whether the law denomination will be the same as the current 3. According to the Explanatory one (LEC) or it will go for a more Memorandum, the publicity ambitious denomination such as of the cases will now be the Code of Criminal Procedures. regulated in order to “achieve a balance between the right Here we present the main to be informed and the need changes based on the new Code: to guarantee a fair process and to properly protect the 1. The examining magistrates of privacy of the parts”. It is the Criminal Court disappear well known —and criticized— and become supervisory that processes are completely judges. Criminal cases would go open to the public: the now to the Public Prosecution record of the proceeding Ministry with new deadlines is being constantly and and to which the judiciary illegally revealed without any police belongs. This major punishment. This weakness is change goes in accordance favoring parallel trials. with a) comparative law which assigns to prosecutors The Spanish Federation of Press the inquiries and b) the Associations has complaint to imperative need to change the the Ministry of Justice about the inquisitorial principle by the possibility of a judge or a jury accusing part. We are talking silencing the Media in specific about a “protectionist” change cases in order to preserve since the public prosecutor is the rights of one of the parts. controlled by a judge as the However, the target of the
3 THE NEW CODE OF CRIMINAL PROCEDURES, A HISTOTRIC TURNING POINT ON CRIMINAL PROCEEDINGS
project is to meet the external regulated as a protective facts of the process and avoid measure and it is part of the a hasty and sometimes even law of the Habeas Corpus arbitrary social judgment. This procedure (a legal institution change —regulated according which aims to avoid arbitrary to the Public Prosecution arrests and detentions). Ministry— will be the most controversial one. We also 5. Se regulan con grandes have to bear in mind that novedades las medidas there will be a change on cautelares, manteniéndose terminology: the “charged” is los plazos de prisión now the “accused” (the Spanish provisional (cuatro años), terms are “imputado” and reduciéndose el plazo “encausado”) as a strategy to máximo de detención hasta avoid the negative connotations la puesta a disposición de of the word “accused”. la autoridad judicial (24 horas). Asimismo, se regula 4. There are new regulated como medida cautelar el ways to close a criminal internamiento en un centro proceeding avoiding an oral psiquiátrico y quedando trial. These ways are: a) integrada dentro de la ley agreeing with the penalty el procedimiento de habeas can sometimes lead to corpus (institución jurídica its reduction and b) the que persigue evitar arrestos discretionary principle, y detenciones arbitrarias). which is when a prosecutor does not issue an indictment 6. There are also great changes for certain offences (for regarding the regulation example, avoiding an oral of criminal investigations: trial when the sentence to be inspections and field applied cannot change the one interventions, gathering and imposed and also for minor using DNA data, interception offences which may lead to of communications, the suspension of the oral incorporation to the trial on condition that certain data process of the duties are fulfilled). There communications and are big changes regarding regulating the police the regulation of protective systematic monitoring. measures: there are no We can also find some changes on the preventive innovations regarding the detention’s length (remains use of technical devices for in four years) but there is a tracking and localization reduction in the deadline and the inclusion on the before being handed over automated process and to the competent judicial treatment of personal data. authority, which drops to 24 hours. The confinement 7. There is a new regulation in a mental hospital is now for special processes:
4 THE NEW CODE OF CRIMINAL PROCEDURES, A HISTOTRIC TURNING POINT ON CRIMINAL PROCEEDINGS
»» rapid resolution processes Big changes are also observed (processes by acceptance regarding the cassation of the Public Prosecutor’s before the Supreme Court: decree and direct suit). in order to set a case law That means a process for all crimes it is planned without any previous the general cassation for investigation’s stage due criminal offences; as for to its obvious nature; serious offences, it will only be applied when there »» autonomous confiscation is a breach of procedure or process; and precept. The key point is the cause of the cassation. “The Public Prosecution »» there is a deep change The sentences established Ministry states the need regarding the jury’s by the European Court of to extend its personnel competences. It will only Human Rights are eventually to be able to accomplish be part of the process on considered a reason to those cases of completed review a sentence. its new tasks’” offence of homicide and murder. We must highlight The above mentioned are the the limited action of the main changes on the Code of jury during the criminal Criminal Procedures or the new procedure since there Criminal law which: is empirical prove their functioning has failed. • Has to work together with the Organic Law which sets a new 8. We can also find a new judicial system and which so appeals’ system: direct far, has been welcomed with appellation procedures are reluctance. The reason for this now allowed. However, the mistrust can be found in the judge who established the fact that the new law intents sentence is also allowed to to condense different judicial annul the appeal in order offices (that means that to reevaluate it. The right important rural areas would lose to appeal is also regulated their judicial headquarters). in a different way according to the following system. • On the other hand, the Public The right to appeal is only Prosecution Ministry states the possible when presented need to extend its personnel against a condemnatory to be able to accomplish its sentence. That means it new tasks. However, there cannot be applied to a will be processes for current judgment of acquittal. investigating judges to If the tribunal observes become part of the Public a completely arbitrary Prosecution Ministry. decision, the sentence, as an exception, can be sent • Moreover, the Budget for back to the previous tribunal tribunals and the judicial to be reconsidered. police will have to be
5 THE NEW CODE OF CRIMINAL PROCEDURES, A HISTOTRIC TURNING POINT ON CRIMINAL PROCEEDINGS
updated together with the 1. There is a change on improvement of the criminal terminology: the “charged” investigations which rely on is now the “accused”. Thus, technology and material and the new Code tries to avoid the personal resources. social stigma coming from the word “charged” and chooses a As for communication during neutral term. This change on the criminal procedures, the terminology was adopted due draft bill sets a new framework to the duration of criminal which does not exist yet and proceedings, the media which will have a difficult and exposure, parallel judgments controversial implementation if and the importance of some the judges are not completely of the characters involved in aware of the need to protect certain cases. “Four main measures the privacy of the actionable that could directly and to avoid parallel judgments A big part of the judicial sector affect the reputation’s in the media. They should also considers this measure just a management of the bear in mind that the new “disguise”. Regarding the point different parts of the communication technologies of view of reputation, the are instant and viral, so we intention is clearly positive, process” need different policies from the but it is hard to imagine how ones been applied so far. the new term will avoid social stigmatization in the long term. A priori, it does not seem 3. IMPACT ON REPUTATION’S that a change on terminology MANAGEMENT would be enough.
The new document introduces 1. Regulating the publicity of four main measures that could the case. The information’s directly affect the reputation’s dismissal of a case is now management of the different parts legal, and there are limits of the process: concerning the images taken (and spread) at the beginning 1. New deadlines for of a public hearing. The Press investigations. The Association of Madrid has prosecutor sets 6 months categorically refused this for the investigations with measure due to the limitations a possible extension of a on the right to information maximum of 36 months for “according to the judges’ especially complex cases and prosecutors’ wills instead (for example, cases related of being limited to those to organized crime). The cases of secrecy in summary impact of this measure on the proceedings (as it used to reputation’s management is be)”. As the Association positive. The sooner a case highlights, it is the first time is solved, the smaller is the judges and tribunals have possible impact on reputation the right to veto the news during the process. media in a process when the
6 THE NEW CODE OF CRIMINAL PROCEDURES, A HISTOTRIC TURNING POINT ON CRIMINAL PROCEEDINGS
information could undermine the parts at any time during the right to a fair trial, or the process and for all crimes the fundamental rights of the regardless the sentence. parts involved. When managing reputation during a judicial process, all The Minister Alberto Ruiz- the possible situations need to Gallardón expresses his be taken into account. concern about the possible influence of the public The new measures require “The possible influence opinion on a judge’s decision a higher preparation of the of the public opinion during the investigation or reputation’s management and on a judge’s decision the trial. The relationship the communication strategy during the investigation between any measure limiting before the proceeding starts. or the trial” the publicity of a process and It will be especially important the reputation’s management during the first months of the of a company seems logical. new Law’s implementation and Whether if it has a positive or a for those companies working on negative effect will depend on the sectors with a higher rate of the communication strategy judicial proceedings. implemented. If one of the parts is highly interested Based on the companies’ and on the case’s publicity, its individual’s experiences on strategy will probably be reputation management during limited. When the objective judicial proceedings, we can is a low media repercussion, state that the strategy on limiting or forbidding the reputation’s management is publicity will probably help to more efficient when it starts achieve the goal. before the beginning of the judicial proceeding. Moreover, Compliance. The new Code of the measures here explained Criminal Procedures enables will also have an impact on compliance agreements the daily’s management of the between the prosecutor and process regarding reputation.
7 THE NEW CODE OF CRIMINAL PROCEDURES, A HISTOTRIC TURNING POINT ON CRIMINAL PROCEEDINGS
AUTHORS
José Antonio Zarzalejos has a Degree in Law from the University of Deusto and is a journalist as well. He was Director of El correo de Bilbao, Secretary-General of Vocento and Director of ABC in Spain. He is linked to LLORENTE & CUENCA as a permanent external consultant and has been Director General of the enterprise in Spain. He has received several professional awards such as the Prize Mariano de Cavia, the Prize of the Federation of Press Associations of Spain as well as the Javier Godó and the Luca de Tena Prizes. [email protected]
Luis Miguel Peña Director of the Area of Communications and Litigations of LLORENTE & CUENCA with 12 years of experience in communication. He has worked developing strategic plans for corporate communications, public affairs, institutional relations and management of crisis and judicial processes for clients from several sectors: food, consumer, technology and financial and public institutions. He has received two awards in recognition of projects led by his team: an International Stevie Award and a European Excellence Award. [email protected]
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