Article 746 Spanish Criminal Procedure Act: Grounds for suspending the trial hearing

Article 746 lists the grounds on which the trial hearing is to be suspended, among them the non appearance of necessary witnesses, the sudden illness of a member of the court, of the prosecutor or of counsel, and unexpected disclosures or retractions which substantially alter the trial.

Also cited as: article 746 Spanish Criminal Procedure Act · art. 746 LECrim · LECrim article 746 · artículo 746 de la Ley de Enjuiciamiento Criminal.

Wording of Article 746 of the Spanish Criminal Procedure Act

The suspension of the trial hearing shall in addition be appropriate in the following cases:

1. Where the court has to determine during the argument an incidental question which for any well founded reason cannot be decided at once.

2. Where, in accordance with this Code, the court or one of its members has to carry out some step outside the place of the sessions and it cannot be effected in the interval between one session and another.

3. Where the witnesses for the prosecution and for the defence offered by the parties do not appear and the court considers their statements necessary.

The court may, however, in that case order the continuation of the trial and the taking of the remaining evidence; and after that has been done, suspend it until the absent witnesses appear.

If the non appearance of the witness is for the reason set out in Article 718, the course determined in that article and in the two following articles shall be followed.

4. Where a member of the court, the prosecutor or the defence counsel of any of the parties falls suddenly ill to the point of being unable to continue taking part in the trial, and in the case of counsel where that person cannot be replaced without serious inconvenience to the defence of the party concerned.

The same shall apply, in the case of the counsel of any of the parties, in cases of the death, hospitalisation or surgical intervention for a serious cause of a relative up to the second degree by consanguinity or affinity.

5. Where one of the accused persons is in the case of the preceding number, in such terms that the person cannot be present at the trial.

The suspension shall not be ordered on this ground except after hearing the medical practitioners appointed by the court for the examination of the sick person.

6. Where unexpected disclosures or retractions produce substantial alterations in the trial, making new items of evidence or some supplementary summary investigation necessary.

The trial shall not be suspended by reason of the illness or non appearance of one of the accused persons who have been personally summoned, provided that the court considers, after hearing the parties and recording in the minutes of the trial the reasons for the decision, that there are sufficient elements to try them independently.

Where the accused is a legal person, the provisions of Article 786 bis of this Act shall apply.

7. Where the proceedings are ones in which the professional of the legal profession has been designated through the duty roster, the proceedings shall be suspended only for the time which the corresponding professional association takes to provide the designation of a new professional, in order to avoid causing a denial of defence to the party. If the suspension is sought because childbirth has occurred or begun suddenly, or without sufficient time for another lawyer to take charge of the matter and to prepare it, the listing shall be suspended for the minimum indispensable time having regard to its complexity.

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Royal Decree of 14 September 1882 approving the Spanish Criminal Procedure Act.

Effect. The provision imposes no penalty. The wrongful refusal of a suspension which is legally due amounts to a denial of defence under Article 24 of the Constitution and is a ground of appeal, whereas an unjustified suspension may give rise to the loss of the evidence already taken where the periods of Article 749 are exceeded.

Requirements and procedure

  1. That one of the grounds listed in the provision be present, since the list governs the suspension of the hearing already commenced.
  2. In the case of number 3, that the court consider the statement of the absent witness necessary, which requires a ruling upon its relevance.
  3. In the case of number 5, the prior hearing of the medical practitioners appointed by the court.
  4. In the case of the non appearance of an accused person who has been personally summoned, a reasoned decision, recorded in the minutes, that there are sufficient elements to try the remaining accused persons independently.

Defence strategy

Necessity of the absent witness. The refusal to suspend under number 3 must be reasoned upon the relevance of the statement. Recording in the minutes the specific relevance of the evidence which is lost, and the objection to its refusal, is the step which preserves the ground of appeal.

Denial of defence through the refusal of a suspension. Where counsel is prevented from attending for one of the causes of number 4, the refusal of the suspension causes a material denial of defence. The documentary evidence of the cause must be produced immediately and the objection recorded, since the case law requires the harm to be shown to be real.

Unexpected disclosures and supplementary evidence. Number 6 permits the suspension where the trial is substantially altered. It is the ordinary route for obtaining new items of evidence when a witness retracts, and it must be requested at the moment at which the alteration occurs.

Effect of the periods of Article 749. Where the suspension exceeds the statutory periods, the hearing must be commenced afresh. Monitoring those periods is relevant, since the evidence already taken loses its value and the position of the defence may improve substantially.

Defence in this area

If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.

Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.

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.

Frequently asked questions

What effect does the application of Article 746 of the Spanish Criminal Procedure Act produce?

The provision imposes no penalty. The wrongful refusal of a suspension which is legally due amounts to a denial of defence under Article 24 of the Constitution and is a ground of appeal, whereas an unjustified suspension may give rise to the loss of the evidence already taken where the periods of Article 749 are exceeded.

What requirements and procedure does Article 746 of the Spanish Criminal Procedure Act lay down?

That one of the grounds listed in the provision be present, since the list governs the suspension of the hearing already commenced. In the case of number 3, that the court consider the statement of the absent witness necessary, which requires a ruling upon its relevance. In the case of number 5, the prior hearing of the medical practitioners appointed by the court. In the case of the non appearance of an accused person who has been personally summoned, a reasoned decision, recorded in the minutes, that there are sufficient elements to try the remaining accused persons independently.

How does the defence make use of Article 746 of the Spanish Criminal Procedure Act?

Necessity of the absent witness. The refusal to suspend under number 3 must be reasoned upon the relevance of the statement. Recording in the minutes the specific relevance of the evidence which is lost, and the objection to its refusal, is the step which preserves the ground of appeal. Denial of defence through the refusal of a suspension. Where counsel is prevented from attending for one of the causes of number 4, the refusal of the suspension causes a material denial of defence. The documentary evidence of the cause must be produced immediately and the objection recorded, since the case law requires the harm to be shown to be real. Unexpected disclosures and supplementary evidence. Number 6 permits the suspension where the trial is substantially altered.

Is the English text of Article 746 of the Spanish Criminal Procedure Act official?

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Royal Decree of 14 September 1882 approving the Spanish Criminal Procedure Act.

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