Article 302 Spanish Criminal Procedure Act: Secrecy of the Investigation

Article 302 of the Criminal Procedure Act states the rule and its exception. The rule is that parties who have appeared may examine the file and take part in every step of the procedure. The exception is that, in public offences, the investigating judge may declare the file wholly or partly secret for all parties, by a reasoned decision, for no more than one month, and only where necessary to avoid a serious risk to a person’s life, liberty or physical integrity, or to prevent a situation seriously compromising the investigation. Secrecy must be lifted at least ten days before the investigation is closed.

Wording of Article 302 of the Spanish Criminal Procedure Act

Requirements and procedure

1. A public offence, since the exception is unavailable in offences prosecutable only on complaint.
2. A reasoned decision identifying which of the two grounds applies and why, and stating whether the secrecy is total or partial.
3. A maximum duration of one month for each declaration, which the case law admits may be extended by successive reasoned decisions while the ground subsists.
4. The lifting of secrecy at least ten days before the investigation is concluded.

Defence strategy

Scrutiny of the reasons and of the scope. Secrecy is an exception and must be justified by reference to the concrete situation, not by the classification of the offence. A decision that recites the statutory formula, or that declares the whole file secret where only one line of enquiry required protection, is challengeable. The defence requests the decision at once and, where it is defective, appeals, because everything that follows is conducted without the defence being able to intervene.

The ten-day rule. The lifting of secrecy at least ten days before the conclusion of the investigation is a guarantee with teeth: it is what allows the defence to examine what was done and to request further steps before the file is closed. Where secrecy was lifted later, or where the closure followed immediately, the defence applies for the reopening of the period and records the objection, since this defect affects the right to a defence and is reviewable.

Contesting the steps taken during secrecy. Once secrecy is lifted, the defence has a real but brief opportunity: to examine each step taken, to challenge those carried out without the safeguards, and to request the evidence that the secrecy prevented it from seeking. That work must be done immediately, because objections not raised at that moment are treated as waived at trial.

Secrecy and the custody hearing. The final paragraph preserves article 505(3), and article 527(1)(d) preserves access to the material essential to challenge a deprivation of liberty. Secrecy therefore never justifies refusing the defence the material needed to contest pre-trial detention, and where that access is denied the objection is recorded at the hearing itself.

• Article 505: the custody hearing
• Article 118: rights of the accused
• Article 527: rights under incommunicado detention
• 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.