Free and Provisional Dismissal: Articles 637 and 641 LECrim

Saying that a criminal case "has been closed" tells you very little on its own. The Spanish Criminal Procedure Act (Ley de Enjuiciamiento Criminal, LECrim) draws a line between two rulings that share a name and have very different consequences: the free dismissal of Article 637 LECrim and the provisional dismissal of Article 641 LECrim. One closes the matter; the other leaves it dormant. Knowing which one has been issued — and fighting for the first where it is available — is one of the most profitable decisions of the whole investigation.

You Are Under Investigation and the Case Is Closed: What That Actually Means

A dismissal (sobreseimiento) is the ruling that ends the proceedings without a trial. It is not an acquittal handed down after a trial, but in its free form it produces equivalent effects, because it states that the act did not happen, that the act is not an offence, or that whoever committed it is exempt from liability.

That nuance explains why the defence should not settle for a closure of any kind. A provisional dismissal leaves the person under investigation in a legally open situation for years; a free dismissal closes it.

The Categories in Article 634 LECrim

Article 634 LECrim maps the whole field in a single sentence: "dismissal may be free or provisional, total or partial". They are two independent axes that combine with one another.

The same article governs their effects: "if the dismissal is partial, the trial shall be opened in respect of those accused whom it does not benefit. If it is total, the case file and any exhibits without a known owner shall be archived".

The Three Grounds for Free Dismissal (Article 637 LECrim)

Article 637 LECrim lists three situations with precision:

• 1st "Where there are no reasonable indications that the act giving rise to the proceedings was committed". The act did not happen.
• 2nd "Where the act does not constitute an offence". The act happened, but it falls outside the criminal law: a breach of contract, an argument without injury, conduct that gives rise only to civil or administrative liability.
• 3rd "Where those indicted appear to be exempt from criminal liability as principals, accomplices or accessories". A ground of exemption applies, such as self-defence or necessity.

All three are statements about the substance, not assessments of how solid the evidence is. That is why a free dismissal calls for a legal judgement rather than a finding that material is lacking.

The Two Grounds for Provisional Dismissal (Article 641 LECrim)

Article 641 LECrim contains only two situations, and both speak of insufficiency:

• 1st "Where the commission of the offence giving rise to the proceedings is not duly established".
• 2nd "Where it appears from the investigation that an offence has been committed and there are no sufficient grounds to charge a particular person or persons as principals, accomplices or accessories".

The second is closure because the offender is unknown, very common in thefts, criminal damage and computer offences. The first is closure for want of evidence of the act itself, frequent where the only source is an uncorroborated complaint.

The Difference, Article by Article

Set side by side, the contrast is sharp. Article 637 LECrim uses absolute negatives — "there are no reasonable indications that the act was committed", "the act does not constitute an offence" — while Article 641 LECrim uses the language of insufficiency: "is not duly established", "there are no sufficient grounds".

Every practical consequence flows from that difference in wording. A closure under Article 637 LECrim cannot be reopened because new evidence appears, since what has been declared is that there is no offence or that whoever committed it is exempt. A closure under Article 641 LECrim can be, so long as the offence has not become time-barred, because all that has been found is that there is not enough material today.

There is also a hybrid situation worth knowing: Article 640 LECrim provides that, in the third case of Article 637 LECrim, "the dismissal shall be limited to the principals, accomplices or accessories who appear beyond doubt to be exempt from criminal liability, and the proceedings shall continue in respect of the others".

Partial Dismissal: Where the Case Continues for Others

A partial dismissal is one issued in respect of some of those under investigation, or of some of the acts, rather than the whole case. It is a very useful route in proceedings with several defendants or with charges stacked together, because it defuses the weakest allegations without waiting for trial.

Its effect is described by Article 634 LECrim itself: as regards those the dismissal does not benefit, "the trial shall be opened". In other words, the proceedings do not stop for the rest.

Dismissal in Abbreviated Proceedings

Most cases are not handled through the ordinary sumario but through abbreviated proceedings. There the decision comes earlier and through a different door: Article 779.1, rule 1, LECrim provides that, "if the Judge considers that the act does not constitute a criminal offence or that its commission is not sufficiently established", the judge "shall order the appropriate form of dismissal".

That reference to "the appropriate form of dismissal" is what sends the reader back to Articles 637 and 641 LECrim. The provision adds a rule of its own: "if, even considering that the act may constitute an offence, there is no known perpetrator, the Judge shall order provisional dismissal and close the file".

A second opportunity comes later: Article 783.1 LECrim allows the judge to refuse to open the trial and to order dismissal "where they consider that the situation in Article 637.2 applies or that there are no reasonable indications of criminal conduct against the accused".

How It Is Appealed

Here it is important not to mix up procedures. In the ordinary sumario, Article 636 LECrim is categorical: "against dismissal orders only an appeal in cassation shall lie, where applicable", a route we have examined in detail in our piece on the cassation appeal against a free dismissal.

In abbreviated proceedings the general rule of Article 766 LECrim applies: "against orders of the Investigating Judge and of the Criminal Court Judge that are not excluded from appeal, an application for reconsideration and an appeal may be brought", within five days of notification and with no need to seek reconsideration first.

Articles 636 and 779.1, rule 1, LECrim also contain an identical provision in favour of victims: "victims may appeal against the dismissal order within twenty days even if they have not entered an appearance as a party in the proceedings".

The Effects That Have to Be Asked For

Article 638 LECrim adds two rulings to the first and second cases of Article 637 LECrim that are not automatic. The first: "on ordering the dismissal, it may be declared that the bringing of the proceedings does not harm the reputation of those indicted". The second: "at the request of the person indicted, their right to pursue the private prosecutor for false accusation may also be reserved".

That second ruling is the gateway to a possible later claim for a false report against whoever set the case in motion. Asking for it in the submission requesting dismissal costs one paragraph and saves having to reconstruct it afterwards.

What the Defence Looks At

• Which of the two dismissals can be sought. They are not interchangeable: where the act falls outside the criminal law, asking for the provisional one gives up a definitive closure.
• The reasoning in the order. A closure that invokes Article 641 LECrim but reasons in terms of conduct falling outside the criminal law can be appealed on exactly that basis.
• Whether the investigation was exhausted. Before closure it is worth checking that the steps requested were taken: a provisional dismissal issued with steps outstanding is more fragile.
• The investigation time limits of Article 324 LECrim. How they have run affects what material could support a future reopening.
• The rulings under Article 638 LECrim. Reputation and the reservation of claims against the private prosecutor, always at the party's request.
• Precautionary measures still in force. Closure should come with the lifting of any security, attachment or prohibition still in place.

If your case is heading for closure, the difference between Articles 637 and 641 LECrim is decided in the submission filed before the order, not afterwards. You can speak to us on +34 91 078 65 74 or read our criminal defence page.