From judge to prosecutor

The prosecutor investigates the crime, and the judge looks after the rights of the accused. This, in essence, is the aim of the new trial procedure proposed by the government, in the most extensive reform of the Criminal Procedure Law undertaken since the death of Franco. Putting the investigation of the crime into the hands of the prosecutor means giving greater relevance to the accusatory principle that underlies criminal procedure, while enhancing the immediate, oral features that the Constitution demands — so far only partially and circumstantially implemented, chiefly in trial procedures for minor offenses, such as the so-called "quick trials."

It is surprising that so far-reaching a reform should be proposed in the final stretch of a legislature that may not even extend to its normal end. Its passage will require previous reports from the General Council of the Judiciary and of the Prosecutor's Council, before debating the bill, first in parliamentary committee and then in a plenary session of Congress. It seems likely that there will not be time. Its merit, in any case, will be that of having set before the Congress the text of a reform that has been in the air for years but has never emerged from the ministerial offices. It may be this government's last move — a beneficial legacy to the next one, of whatever party.

The principal argument against putting criminal investigation in the prosecutor's hands has been the attorney-general's dependence on the government: an argument that has lost weight. The state prosecutor is still proposed by the government, but for some time now he can only be dismissed for causes defined by the law, one of these being the resignation of the government that proposed him. His appointment, too, is subject to some parliamentary oversight: the candidate must appear before Congress for an assessment of his merits and suitability. His autonomy and independence of the government now have a greater legal underpinning. It is absurd when the PP goes on referring to the present anti-corruption prosecutor, in connection with the Gürtel case, as "the government's prosecutor." If this were so, he would be, rather, the prosecutor of the last Aznar government, which proposed him.

We should not underestimate the opposition of the judges to this exchange of roles with the prosecutors. And not because they particularly appreciate their investigative role (their essential function being to judge), but because it may be seen to diminish the judiciary's power. Yet if the judge's function is to judge and to guarantee fundamental rights, this power is strengthened in the new procedure. The judge is specifically charged with overseeing the rights of the accused, particularly when actions necessary for discovering a crime — phone taps, DNA tests, home searches — may violate them. In this task they will have a chance to dispel the image of the investigating judge as an arrogant, all-powerful master of procedure that the public has seen in them on some occasions.