Article 641 Spanish Criminal Procedure Act: Provisional Discontinuance of Proceedings

Article 641 of the Criminal Procedure Act provides for provisional discontinuance in two situations: where the commission of the offence that gave rise to the proceedings is not duly established, and where the investigation shows that an offence was committed but there are insufficient grounds to accuse any determinate person as principal, accomplice or accessory. Provisional discontinuance closes the file without acquitting, so the proceedings may be reopened if new evidence appears, which distinguishes it from the definitive discontinuance of article 637.

Wording of Article 641 of the Spanish Criminal Procedure Act

Requirements and procedure

1. For the first ground, the absence of due proof of the commission of the offence, which is a lower threshold than proof that no offence occurred.
2. For the second ground, proof that an offence occurred together with insufficient grounds to attribute it to a determinate person.
3. A reasoned decision, which must state which ground is applied, since the consequences differ.
4. Notification to the victims, who may appeal within the period provided in article 636.

Defence strategy

Seeking definitive rather than provisional discontinuance. Where the material establishes that the conduct was not an offence, that the accused did not participate, or that a ground of exemption applies, the correct order is definitive discontinuance under article 637, which produces the effect of an acquittal. The defence therefore does not simply accept a provisional order: it identifies which of the grounds of article 637 is available and asks for that instead, because a provisional order leaves the client exposed for the whole limitation period.

The consequences of a provisional order for a foreign client. A provisional discontinuance leaves the proceedings capable of being reopened, and in practice it may leave entries in police and judicial systems that affect residence applications and border checks. The defence therefore applies expressly for the release of any bail, the lifting of any freezing order or restraining measure, and the cancellation of any alert, since those consequences do not fall away automatically with the order.

Reopening and the passage of time. Reopening requires new evidence, not a fresh assessment of the same material. Where a case is reopened, the defence examines what is said to be new and whether it was already available, and computes the limitation period under articles 131 and 132 of the Criminal Code, since the interruption of that period requires proceedings directed against the person by a reasoned decision.

Appeal by the victim. The order is appealable by the victim within the period provided in article 636, and by the parties in the ordinary way. Where the firm acts for the injured party, the appeal must identify the specific investigative step not taken which could establish the offence or the participation, because an appeal that merely disputes the assessment will not succeed.

• Article 779: decisions closing the preliminary investigation
• Spanish Criminal Procedure Act by article
• Article 131: limitation periods
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.