Article 779 Spanish Criminal Procedure Act: Decisions Closing the Preliminary Investigation

1. Once the appropriate steps have been taken without delay, the judge shall adopt by order one of the following decisions:

1.ª If he considers that the act does not constitute a criminal offence, or that its commission does not appear sufficiently established, he shall order the appropriate discontinuance. If, even considering that the act may constitute an offence, there is no known perpetrator, he shall order provisional discontinuance and direct that the file be closed.

The order of discontinuance shall be communicated to the victims of the offence, at the electronic mail address and, failing that, the postal address or domicile they have designated in the application provided for in article 5.1.m) of the Act on the Statute of the Victim of Crime.

In cases of death or disappearance caused by an offence, the order of discontinuance shall be communicated in the same manner to the persons referred to in the second paragraph of article 109 bis(1), whose identity and electronic or postal address are known.

Exceptionally, in the case of citizens resident outside the European Union, if no electronic or postal address is available at which to make the communication, it shall be sent to the Spanish diplomatic or consular office in the country of residence for publication.

Once five days have elapsed from the communication, it shall be understood to have been validly made and shall produce all its effects. Excepted from this regime are cases in which the victim establishes just cause for the impossibility of accessing the content of the communication.

Victims may appeal against the order of discontinuance within twenty days, even if they have not appeared as a party in the proceedings.

2.ª If he considers the act which gave rise to the proceedings to be a minor offence, he shall direct that the file be sent to the competent judge, where its trial does not fall to him.

3.ª If the act is attributed to the military jurisdiction, he shall decline in favour of the competent body. If all those under investigation are below the age of criminal responsibility, the file shall be transmitted to the Juvenile Prosecutor so that the procedures of the Act on the Criminal Liability of Minors may be commenced.

4.ª If the act constitutes an offence falling within article 757, the procedure laid down in the following chapter shall be followed. That decision, which shall contain the determination of the punishable acts and the identification of the person to whom they are attributed, may not be adopted without having taken that person’s statement in the terms provided for in article 775.

5.ª If, at any earlier moment, the person under investigation, assisted by his lawyer, has admitted the facts before the judge, and those facts constitute an offence punishable by a penalty within the limits provided for in article 801, the judge shall order the immediate summoning of the Public Prosecution Service and of the parties who have appeared, so that they may state whether they will file an indictment with the consent of the accused. If so, he shall commence urgent proceedings and direct that the case continue in accordance with the procedures provided for in articles 800 and 801.

2. In the first three cases, if there is no member of the Public Prosecution Service present at the court, and the parties have not lodged an appeal, the file shall be sent to the Prosecutor of the Provincial Court, who shall, within the three days following its receipt, return it to the court either with the pleading lodging an appeal or with the formula “seen”, whereupon the decision shall be executed.

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.