Article 757 LECrim: the scope of the abbreviated procedure in Spain

When someone is summoned in a criminal case, the first thing worth knowing is not the penalty being sought but which procedural track the case will follow. Steps, deadlines, the moment when a plea agreement can be raised and, in part, the court that will hear the trial all depend on it. The rule that makes that allocation is Article 757 of the Spanish Criminal Procedure Act (LECrim).

If you are summoned in an abbreviated procedure: what Article 757 LECrim says

Article 757 LECrim is the first of the general provisions of the abbreviated procedure. Without prejudice to what is laid down for special proceedings, the procedure regulated in that Title applies to the trial of offences punishable by a custodial penalty of no more than nine years, or by any other penalties of a different nature, whether single, joint or alternative, whatever their amount or duration.

One sentence, with enormous consequences: it divides the whole of criminal procedure into two tracks. Article 758 LECrim completes the idea by providing that the trial of those offences follows the common rules of the Act with the modifications set out in that Title. The abbreviated procedure is not a different process: it is the common process with special features.

The nine-year rule and penalties of a different nature

• Offences carrying a custodial penalty of no more than nine years. Under Article 35 CP, custodial penalties are reviewable permanent imprisonment, imprisonment, permanent location and subsidiary personal liability for non-payment of a fine. The test is the penalty the statute attaches to the offence, not the one finally imposed or the one each prosecution requests.
• Offences carrying any other penalties of a different nature. Fines, disqualification, driving bans, community service. The Act specifies that it makes no difference whether they are single, joint or alternative, and whatever their amount or duration: an offence punishable only with twelve years of disqualification follows the abbreviated track.

Together, the two limbs explain why the abbreviated procedure is in practice the ordinary track: offences carrying more than nine years of imprisonment are a minority within the Criminal Code.

What falls outside

• The ordinary procedure. The track for offences punishable by a custodial penalty of more than nine years.
• Special proceedings. Article 757 LECrim reserves them from its opening words. The most significant is the jury trial, governed by its own statute: Article 309 bis LECrim requires the judge to open those proceedings as soon as a specific person is charged with an offence falling to the jury.
• Trials for minor offences, which have their own track, with the immediate summons regulated by Article 962 LECrim.

Within the abbreviated procedure there is also an accelerated form: the fast-track trial of Article 795 LECrim, reserved for offences carrying custodial penalties not exceeding five years, provided proceedings are opened on a police report with an arrest or a summons and one of the listed circumstances applies.

Switching track during the case (Article 760 LECrim)

Article 760 LECrim addresses the obvious problem: the classification of the facts changes as the investigation advances. If a case begun under the abbreviated rules ceases to fall within Article 757 LECrim, it continues under the general provisions of the Act; conversely, a case begun under the common rules continues under the abbreviated rules as soon as it appears that the facts fall within Article 757.

Two clarifications in the same article prevent sterile disputes: there is no step back beyond what is necessary to carry out the steps required by the new rules, and in neither case does the change of procedure entail a change of investigating judge. If an offence falling to the jury appears, Article 309 bis LECrim applies.

How a case enters: the order under Article 779.1.4 LECrim

The formal gateway to the abbreviated procedure is one of the decisions that Article 779 LECrim offers the investigating judge when closing the preliminary proceedings. Its rule 4 provides that, if the facts amount to an offence covered by Article 757, the case follows the procedure ordered in the next chapter, and adds two requirements: the decision must contain the determination of the punishable facts and the identification of the person to whom they are attributed, and it cannot be adopted without having taken that person's statement under Article 775 LECrim.

The order therefore fixes the scope of the case: facts and persons. Everything that follows moves within that perimeter.

Who investigates and who tries the case

The investigation falls to the Investigating Section of the Court of First Instance of the district where the offence was committed, or to the Central Investigating Judge for the offences the law determines (Article 14.2 LECrim).

• Up to five years of custodial penalty, or a fine of any amount, or other penalties of a different nature not exceeding ten years: the Criminal Section of the Court of First Instance of the district where the offence was committed, or the Central Criminal Judge in his own sphere (Article 14.3 LECrim).
• In all other cases: the Provincial Court of the district where the offence was committed, or the Criminal Chamber of the National High Court (Article 14.4 LECrim). Where the offence falls to the jury, the jury hears and decides it.

Hence the consequence that most surprises anyone facing a first case: between five and nine years, the procedure remains abbreviated but the trial is held before the Provincial Court. Track and court are separate decisions governed by separate rules.

The stages of the abbreviated procedure

• Preliminary proceedings. The investigation itself, ending in one of the decisions listed in Article 779.1 LECrim.
• Preparation of the trial. The case file is passed to the public prosecutor and any private prosecutors so that, within a common ten-day period, they request the opening of the trial by filing an indictment, request dismissal, or exceptionally request further investigative steps (Article 780 LECrim).
• Opening of the trial. Article 783.1 LECrim requires the investigating judge to order it unless the situation in Article 637.2 LECrim applies or there are no reasonable indications of criminal conduct against the accused, in which case dismissal is ordered.
• Defence statement of case. Once the trial is opened the accused is served and given a common ten-day period to file the defence case (Article 784.1 LECrim).
• Preliminary hearing. Article 785 LECrim places it before the trial: it covers a possible plea agreement, jurisdiction, breach of fundamental rights, preliminary pleas, nullity of proceedings and the content, purpose or nullity of the evidence proposed.
• Trial and judgment, with the special features of the Title.

Orders of the investigating judge may, save where the law provides otherwise, be challenged by way of reconsideration and appeal; Article 766 LECrim allows the appeal to be lodged in the alternative or separately and makes clear that a prior application for reconsideration is never required.

Why the track matters

• Timing. The abbreviated procedure concentrates the steps and gets the case to trial considerably sooner than an ordinary one.
• Plea agreements. Article 785 LECrim opens the door to a judgment by agreement at the preliminary hearing. In the fast-track trial, Article 801 LECrim adds the possibility of pleading before the duty court with a one-third reduction, provided the penalty sought, or the sum of the penalties sought, does not exceed two years of imprisonment once reduced by that third.
• The trial court. As explained, it is set by the penalty rather than by the track, and that shapes the evidential strategy and the appeal regime.

What the defence looks at

• The provisional classification. An inflated classification changes both the track and the court. Challenging it early is more effective than challenging it at trial.
• The content of the transformation order. Facts and persons: if it goes beyond what was investigated, or includes facts on which no statement was taken, correction must be sought.
• Investigation deadlines. Article 324 LECrim sets the time limit for preliminary proceedings, and monitoring it is also a defence task.
• Access to the case file. The right of defence under Article 118 LECrim is exercised from the very first moment, not from the transformation order.
• The preliminary hearing. This is where nullity, jurisdiction and the admission of evidence are decided. Arriving unprepared wastes the best moment of the procedure.
• The route to dismissal. Article 783.1 LECrim allows it where there are no reasonable indications of criminal conduct; asking for it on reasoned grounds is not a formality.

If you have been summoned in preliminary proceedings or have just received the transformation order, the track is already fixed and the deadlines are running. You can call us on +34 91 078 65 74, read our page on criminal defence in Spain or our step-by-step guide to the abbreviated criminal procedure.