Private Prosecution: Active Victim Defense

What is Private Prosecution

Private prosecution is active victim intervention in criminal process as accusing party. Not same as complaining: complainant limits themselves to communicating facts and stays outside process. Private prosecution, instead, appears as party, accesses case file, proposes diligences, appeals dismissal, formulates own qualification, requests sentence and claims compensation.

Difference with Complaint and Lawsuit

• Complaint: Act communicating criminal facts to authorities.
• Lawsuit: Solemn procedural act activating process and implying party appearance.
• Private prosecution: Subsequent appearance in already initiated process, at any time before oral trial.

Appearance and Access

Appearance through writ with lawyer and procurator. Once admitted, victim accesses entire case file, receives notifications, participates in diligences and may propose new ones.

Procedural Strategy

We design strategy in three planes: tactical — which diligences to propose and when; legal — which qualification to articulate and which sentence to request; economic — which civil liability to claim and with which expert evidence.

Criminal and Civil Claims

In accusation writ we articulate both aspects: sentence — qualification, degree, aggravations, specific request; ex delicto civil liability — damnum emergens, lucrum cessans, moral damage, medical and psychological expenses, costs. Quantification supported by specific expert evidence.

Procedural steps and deadlines to appear as private prosecutor

The process begins with the offer of actions that the investigating court addresses to the offended or injured party once their identity is known (Arts. 109 and 110 LECrim, and Art. 776 LECrim in the abbreviated procedure). At that point the party is informed of the right to take part in the proceedings and to claim civil liability, without having to waive compensation in order to do so. Formal appearance is made through a written submission signed by a lawyer and court representative, except in the cases where the law allows appearance by other means.

Article 110 LECrim allows a party to appear at any time before the indictment stage, taking up the case in its current state, without rolling back earlier steps. Once a party, the private prosecutor has access to the investigation, may propose evidence-gathering measures, take part in statements and, in due course, file its accusation (provisional charges) setting out the facts, their legal classification, the degree of participation and the civil liability. Each of these milestones carries specific deadlines that should be tracked closely to avoid losing the chance to submit evidence or to appeal.

Standing requirements: offended party, injured party and the limit of private offences

Standing to act as private prosecutor requires being the offended party (the holder of the harmed legal interest) or the injured party (the person who suffers the resulting damage), a condition delimited by Art. 109 bis LECrim and consistently interpreted by constitutional case law on the right to effective judicial protection under Art. 24 of the Constitution. This position differs from the popular action of Art. 125 of the Constitution and Art. 101 LECrim, open to any citizen even if not directly harmed, and from the public prosecution exercised solely by the Public Prosecutor in defence of legality.

There are relevant substantive limits. In offences prosecutable only at the instance of a party (private offences, such as slander and libel against individuals), prosecution belongs exclusively to the offended party by way of a criminal complaint, without the Prosecutor's involvement; in semi-public offences a prior complaint by the aggrieved party is required. It is also important to watch for a plurality of injured parties and possible joint representation, as well as documentary proof of the link to the facts. A defect of standing or representation spotted in time prevents the prosecution from collapsing at advanced stages of the proceedings.

Practical strategy: active prosecution versus defending the accused

From the standpoint of the party exercising the private prosecution, strategy is built during the investigation: requesting useful measures, securing evidence at risk of being lost, seeking civil interim measures to safeguard future compensation, and defining the claimed harm precisely. A well-grounded set of charges, consistent with the evidence and respectful of the accusatory principle, is stronger than a maximal accusation that is hard to sustain at trial. Coordinating with the Prosecutor's position, while keeping an independent stance, usually reinforces the prosecution.

From the defence perspective, scrutinising the private prosecution is essential. One may object to late or unfounded appearances, challenge unnecessary measures or those that infringe fundamental rights, and ensure the claim does not introduce facts outside the object of the proceedings. The accusatory principle bars conviction for facts or charges not set out in the accusation submissions, which opens avenues to narrow the debate. We work to ensure that every step respects the guarantees of Art. 24 of the Constitution and the balance between the parties.

Appeals, competent body and rights at stake

As a full party, the private prosecutor may appeal decisions that are unfavourable to it. Against those of the investigating judge, motions for reconsideration and appeal lie under the terms of the LECrim; dismissals and other decisions that bring the case to an early end are especially sensitive, as they affect the right of access to justice. Competence to try the case is set according to the general rules of procedural law (criminal courts or the Provincial Court depending on the procedure), and standing to appeal also extends to the judgment, including, where applicable, cassation before the Supreme Court.

The rights at stake connect with the victim's statute, which recognises information, participation, protection and respectful treatment throughout the proceedings, complementing the classic procedural guarantees. The private prosecution gives effect to the right to effective judicial protection without defencelessness under Art. 24 of the Constitution, allowing the victim to drive the case forward, be heard and obtain a reasoned decision. Early advice on deadlines, standing and avenues of appeal is decisive for that participation to be effective rather than merely formal.