Dismissal of a criminal case in Spain: final, provisional and reopening

Receiving an order dismissing the case (auto de sobreseimiento) is usually good news for the person under investigation: the criminal proceedings end without going to trial. Not all dismissals have the same effect, however. The law distinguishes between a final dismissal (sobreseimiento libre) and a provisional one (sobreseimiento provisional), and the difference matters: the first closes the matter for good; the second leaves it open to be reopened. That difference can be just as important for the victim of the offence.

What is a dismissal?

It is a court decision, in the form of an order (auto), ordering the closure — final or provisional — of the case or part of it before trial. Its grounds and effects vary: among others, it may rest on the facts not amounting to an offence, on an exemption from liability, or on there being insufficient material to sustain a charge. It may be ordered at the end of the investigation, where the judge finds that the facts are not criminal or are not sufficiently established (article 779.1.1 of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal, LECrim), or later, where the prosecuting parties ask for it (article 782 LECrim).

The LECrim provides that a dismissal may be final or provisional, total or partial (article 634 LECrim). It is partial where it benefits only some of those under investigation; the case then continues towards trial against the others.

Final dismissal

Article 637 LECrim provides:

"A final dismissal shall be ordered:

• 1. Where there are no reasonable indications that the act giving rise to the case was committed.
• 2. Where the act does not amount to an offence.
• 3. Where those charged as perpetrators, accomplices or accessories appear to be exempt from criminal liability."

A final dismissal amounts, in practice, to an early acquittal. Once it is final it has the effect of res judicata as regards the person and the facts covered by the decision, so the same case cannot be reopened against them on those facts.

Provisional dismissal

Article 641 LECrim provides:

"A provisional dismissal shall be ordered:

• 1. Where the commission of the offence giving rise to the case is not duly established.
• 2. Where it appears from the file that an offence has been committed but there are not sufficient grounds to charge a particular person or persons as perpetrators, accomplices or accessories."

Unlike a final dismissal, a provisional one does not declare that no offence occurred or that the person under investigation had nothing to do with it. It records that, on what has been investigated so far, there is not enough to bring charges. It therefore has no res judicata effect.

Where the investigation does not allow a person to be identified as the likely offender, a provisional dismissal and closure of the file may be ordered, without prejudice to the case being reopened if new material appears and the offence has not become time-barred (articles 641 and 779.1.1 LECrim). This is what is colloquially called "archiving" the complaint.

Can a provisional dismissal be reopened?

Yes, but not on any basis. Reopening requires new evidence or significant new indications that were not in the file when it was closed. Simply re-examining what was already investigated is not enough.

There is also a time limit: the limitation period for the offence. Once it has expired, the case can no longer be reopened.

What if the prosecutor asks for a dismissal?

Once the investigation is complete, the Public Prosecutor and, where applicable, the private prosecution may ask for a dismissal. If both do, the judge will order it, except in certain cases of exemption from liability where the case continues for the purposes of security measures or civil liability (article 782.1 LECrim). The order lifts any detention and other precautionary measures in force.

If only the prosecutor asks for it and no private prosecution has joined the case, the judge may first notify the injured parties so that, within fifteen days, they may appear to pursue their claim. The judge may also refer the case to the prosecutor's superior to decide whether the charges are maintained (article 782.2 LECrim).

Can the dismissal order be appealed?

Yes. Orders of the investigating judge that are not excluded from appeal may be challenged by way of reforma and appeal (article 766.1 LECrim):

• *Application for review (recurso de reforma)*: before the same judge, within three days of notification (article 211 LECrim).
• *Appeal (recurso de apelación)*: before the Provincial Court, within five days of notification of the order or of the decision on the application for review (article 766.3 LECrim). It may be filed directly or in the alternative together with the application for review.

Victims may appeal a dismissal order within twenty days, even if they had not joined the proceedings (article 779.1.1 LECrim).

This should not be confused with an appeal against the judgment, which arises where the case has gone to trial and ended with a decision on the merits.

Does a dismissal create a criminal record?

No. A criminal record arises only from a final conviction. A dismissal, whether final or provisional, ends the proceedings without a conviction.

What to do if you receive a dismissal order

• Check whether the dismissal is final or provisional, and whether it is total or partial.
• Bear in mind that the time limits for appeal are short: contacting your lawyer quickly can be decisive.
• If you are under investigation and the dismissal is provisional, consider with your lawyer whether there are grounds to ask for it to be declared final.
• If you are the victim and disagree with the closure, consult a lawyer promptly about appealing it.
• Keep the decision and the case documents, particularly if the case may be reopened.