12 March 2018

Article 783.3 of the Spanish Criminal Procedure Law states that an order to proceed to trial cannot be appealed in any way except with regard to the defendant's personal circumstances.

It is therefore indisputable that the decision to begin oral proceedings may not be questioned in any way pertaining to the core of the matter. In contrast, however, the admission of an appeal to do with accessory issues established in an order to proceed to trial is more debatable - in particular when it concerns the establishment of the bail the defendants and vicariously liable parties will be obliged to pay as a precautionary measure to ensure coverage of any future pecuniary liabilities.  

This question has been analysed extensively by the different provincial courts. Despite the existence of one or two discrepant opinions, some progress seems to have been made towards consolidating a widely accepted doctrine: that pronouncements contained in orders to proceed to trial affecting real precautionary measures - and specifically bail amounts – are in fact appealable.

One example of this doctrine can be seen in the ruling delivered by the Provincial Court of Barcelona on 20 September 2004, which very illustratively affirmed the following:

«According to the provisions set forth in Article 33 of the LOTJ (Organic Law of the Jury Court), the establishment of the bail amount does not in fact constitute an essential part of the order to proceed to trial. This means that the order determining bail, or, if applicable, asset attachment, precedes and is to a certain extent independent of the order to proceed to trial, and should be adopted separately in its own corresponding record.

As a result, the adoption of the aforementioned measure may be appealed in the same manner as all other decisions dictated by the examining magistrates’ court. The fact that it is adopted in the order to proceed to trial cannot "protect" it or make it unappealable simply by virtue of the moment when it was decided and its form rather than its nature or content.»

The reasoning exercised by the Provincial Court of Barcelona seems sensible, because the precautionary measures of bail or, if applicable, asset attachment can indeed be adopted by the court at an earlier stage in the proceedings if there are sufficient indications of criminal activity, in which case the corresponding civil liability record would be created separately.

A similar opinion was expressed by the Provincial Court of Castellón in its ruling 88/2012 (10th February), pointing out that three of its sections had analysed the issue and reached the unanimous conclusion that the only definitive, incontestable decision is the specific order to proceed to trial - not the decision to impose real precautionary measures (bail and attachment).  This ruling also affirmed that even when pronouncements concerning real measures are contained in resolutions of a different nature, they should be subject to the general rules of appeal (Art. 766, Spanish Criminal Procedure Law).

The Provincial Court of Zaragoza, in its rulings of 8 July 2011 and 24 April 2002, also resolved appeals, in both cases ordering the examining magistrates’ court to admit and decide on the merits of the appeal challenging the amount of the bail, in a separate pecuniary liability record.

Admittedly, there does exist another, more restrictive, position based on a strictly literal interpretation of Art. 783.3 of the Spanish Criminal Procedure Law, according to which appeals are only admitted against pronouncements pertaining exclusively to the defendant’s personal circumstances (preventive custody, confiscation of passport, obligation to appear periodically before a public authority, etc.). This would seem to exclude real precautionary measures such as bail (see ruling 233/2011 of the Criminal Chamber of the Provincial Court of Huelva).

In our opinion, however, the most widely accepted doctrine is correct, because the imposition of measures like setting bail does not constitute an essential part of the order to proceed to trial and could have been decided earlier, in a separate record, in which case it would have been appealable just like any other decision made by the examining magistrate.

The more restrictive interpretation could lead to absurd situations. For example, the defendant or the vicariously liable party may be obliged to pay an absolutely arbitrary, disproportionate amount of bail, under threat of asset attachment in the case of non-compliance and with no possibility of appealing, while at the same time being allowed to appeal much less important issues throughout the whole criminal proceedings.

We are therefore clearly inclined to concede the possibility of appealing bail amounts, even when those amounts are set in an order to proceed to trial. Undoubtedly, this position better safeguards the rights of the person under investigation and is more coherent with the principles enshrined in the Spanish legal system and with the constitutional right to effective judicial protection set out in Art. 24 of the Spanish Constitution.

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