Preliminary Questions in Spanish Criminal Proceedings (Arts. 3-7 LECrim, Art. 10 LOPJ)

Many criminal cases turn on a question that is not criminal at all: whether a contract was valid, whether a property belonged to the person occupying it, whether a licence was in force. The Spanish Criminal Procedure Act devotes the chapter on preliminary questions of its opening title — Articles 3 to 7 — to deciding who resolves them and with what effect. It is a technical area with very concrete consequences: it can stall proceedings for months or, conversely, prevent them from being stalled. Because of where it sits in the statute, it applies to every route: the abbreviated procedure, ordinary committal proceedings, fast-track trials and the jury court.

You have been reported and have a civil case open on the same facts

The situation is common: a dispute already before a civil court — a claim for payment, an argument over ownership, the reading of a contract — also gives rise to a criminal complaint. Or the other way round: a criminal case for fraud, misappropriation or forgery requires deciding first whether the title the charges rest on was valid.

That prior issue, civil or administrative in nature, is a preliminary question. The statute distinguishes two regimes: the non-devolutive one, where the criminal court resolves it itself, and the devolutive one, where the matter must be referred to the competent jurisdiction and the case waits.

The difference is not theoretical. Three concrete things depend on it: whether the criminal case moves on or is stayed, who decides a point that may be the backbone of the charge, and under which rules it is decided. Raising it properly is a defence step; raising it as a delaying manoeuvre usually ends in a decision refusing the stay and an argument spent before trial.

The general rule of Art. 3 LECrim

Art. 3 LECrim sets out the principle: as a rule, the jurisdiction of criminal courts extends to resolving, for the purposes of the criminal case alone, the civil and administrative preliminary questions raised in connection with the facts prosecuted, where those questions appear so closely bound up with the punishable act that separating them is rationally impossible.

Three elements in that sentence deserve emphasis:

• «For the purposes of the criminal case alone». What the criminal court decides about the civil or administrative question counts within those proceedings and in order to rule on the offence. It does not replace a declaration by the civil courts and has no effect outside the case.
• «Rationally impossible to separate». It is not enough that the question be related: it must be inseparable from the punishable act. If the offence can be decided without ruling on it, there is no true preliminary question.
• «As a rule». The criminal court's power is the principle and the stay is the exception. Whoever seeks to halt the case carries the burden of justifying it.

Devolutive questions: when criminal proceedings are stayed

Art. 4 LECrim contains the main exception: where the preliminary question determines guilt or innocence, the criminal court stays the proceedings until it is resolved by whoever is competent to do so.

The provision does not leave the stay open-ended. A period may be set, not exceeding two months, for the parties to bring the matter before the competent civil or administrative court. If that period passes without the interested party showing that it was used, the court clerk lifts the stay by formal note and the proceedings continue. The article adds that the public prosecutor is a party to those preliminary proceedings.

The threshold is high, which explains why most applications to stay fail: it is not enough that the question affect civil liability, the amount of compensation or the classification of a contract. It must decide guilt or innocence.

The two special rules of Arts. 5 and 6

• Art. 5 LECrim. Civil preliminary questions concerning the validity of a marriage or the removal of civil status are always referred to the court that must hear them, and its decision forms the basis of the criminal court ruling. There is no room for assessment here: the referral is mandatory, whether or not the question determines guilt.
• Art. 6 LECrim. Where the civil preliminary question concerns ownership of real property or another right in rem, the criminal court may decide it where those rights appear to be based on an authentic title or on indisputable acts of possession. It is a conditional power: if the title is not authentic and possession is not indisputable, the court may no longer decide it itself.

The distinction matters in offences where title is the core of the definition, such as unlawful occupation or trespass, and also in property offences where the question is who owned the thing.

Which law the criminal court applies (Art. 7 LECrim)

When a criminal court resolves a preliminary question, it does not do so by criminal-law criteria. Art. 7 LECrim is explicit: the court shall follow, as the case may be, the rules of civil or administrative law in the preliminary questions it must resolve under the preceding articles.

The practical consequence is twofold. On the one hand, the defence can and should argue civil or administrative rules inside the criminal case, as seriously as it would before the corresponding jurisdiction. On the other, a criminal ruling that resolves the question by criteria alien to that branch of the law can be challenged through Art. 849.1 LECrim, which covers the infringement of «another rule of the same nature to be observed in applying criminal law»; the reach of that ground is discussed in the article on cassation interest.

Art. 10 LOPJ and the priority of the criminal jurisdiction

The Judiciary Act governs the same matter from above. Its Art. 10.1 generalises the non-devolutive rule: for preliminary purposes alone, each jurisdiction may hear matters not exclusively assigned to it.

And Art. 10.2 introduces the exception in the opposite direction: the existence of a criminal preliminary question that cannot be dispensed with for a proper decision, or that directly conditions its content, requires the proceedings to be stayed until it is resolved by the criminal courts, save for the exceptions established by law.

This is the statutory expression of the priority of the criminal jurisdiction: where the preliminary issue is criminal, the other jurisdictions wait; where it is civil or administrative, the criminal court as a rule decides.

Staying the civil case (Art. 40 LEC)

The «exceptions established by law» referred to in Art. 10.2 LOPJ are mainly in Art. 40 of the Civil Procedure Act, which sets out precisely when a civil case is halted because of criminal proceedings:

• Where a fact with the appearance of a publicly prosecutable offence emerges in the civil case, the court notifies the public prosecutor (Art. 40.1).
• A stay is ordered only where two circumstances are met (Art. 40.2): proof that criminal proceedings are under way investigating, as facts with the appearance of an offence, some of those underpinning the parties' claims in the civil case; and that the criminal ruling may have a decisive influence on the outcome of the civil case.
• It is ordered by a reasoned decision and once the case is ready for judgment (Art. 40.3). It does not halt the earlier stages of the civil case.
• Exception: where the criminal case concerns the forgery of a document produced in the civil case that could be decisive on the merits, the stay is ordered without waiting for the case to be ready (Art. 40.4); and it is lifted, or not ordered, if the party the document would favour waives reliance on it, in which case the document is removed from the file (Art. 40.5).
• Stays are lifted once it is shown that the criminal case has ended or is halted for a reason preventing its normal continuation (Art. 40.6).

What the defence looks at

• Whether the question really is inseparable. Art. 3 LECrim requires that separating it from the punishable act be rationally impossible; without that there is no preliminary question, only a related issue.
• Whether it determines guilt or innocence. That is the only criterion opening the stay of Art. 4, and it must be reasoned, not merely asserted.
• The two-month period. If a stay is obtained, the matter must actually be taken to the civil or administrative courts and that must be evidenced: otherwise the stay is lifted without further steps.
• The applicable law. Arguing the civil or administrative rules precisely, because Art. 7 LECrim requires the criminal court to apply them and failing to do so is a ground of cassation for infringement of law.

If you have criminal and civil proceedings open on the same facts and want to assess whether a preliminary question or an application to stay is appropriate, it is worth analysing before trial. You can contact us at +34 91 078 65 74.