Article 636 Spanish Criminal Procedure Act: Challenge to orders of dismissal and communication to victims

Article 636 provides that only an appeal in cassation lies against orders of dismissal, and it regulates the communication of the order to the victims, the deemed validity of that communication after five days and the period of twenty days within which the victim may appeal even without having appeared as a party.

Wording of Article 636 of the Spanish Criminal Procedure Act

Requirements and procedure

1. An order of dismissal, whether free or provisional, handed down in the proceedings.
2. Communication to the victims at the address designated in the request under Article 5.1(m) of the Statute of the Victim.
3. The expiry of five days from that communication, at which point it is deemed validly effected and the period for appeal begins to run.
4. A period of twenty days available to the victim, even where the victim has not appeared as a party in the proceedings.

Defence strategy

Free dismissal as against provisional dismissal. A free dismissal produces the effect of res judicata, whereas a provisional dismissal permits the reopening of the case upon fresh evidence. Securing the former is therefore the objective of any application, and the reasons stated in the order determine which of the two has been granted.

Calculation of the period for appeal. The period runs from the fifth day following the communication. Where the victim relies upon just cause for not having accessed the communication, that cause must be established, and its absence sustains the objection that the appeal has been lodged out of time.

Standing of the victim who is not a party. The final subparagraph permits the victim to appeal without having appeared as a party. That standing does not extend beyond the challenge to the dismissal and does not confer the position of a party for the remainder of the proceedings.

Communications addressed abroad. Where the victim resides outside the European Union and no address is available, the communication is made through the diplomatic or consular office. Verifying that step is essential, since the whole calculation of the period for appeal rests upon it.

• Article 641 LECrim: provisional dismissal
• Dismissal of criminal proceedings in Spain
• Criminal appeals in Spain
• Cassation before the Supreme Court

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.