The Attorney General of the State, Teresa Peramato, has urged to promote a thorough reform of the criminal process in Spain so that the investigation of crimes corresponds to the Public Prosecutor's Office. She has defended a fully accusatory system with a judge of guarantees, emphasizing that prosecutors have a state perspective without "territorial limitations" and with "a specialization that judges lack."
In her speech at the forum "Justice: The Reform of the Prosecutor's Office" held at the Ateneo de Madrid, Peramato has stressed that this change is "fundamental" to ensure a clear separation between the functions of investigating and judging. At the same time, she has described the current Criminal Procedure Law (LECrim), in force since 1882, as an "obsolete" and "nineteenth-century" model, incapable of adequately responding to organized, transnational, and digital crime, as well as to the challenges posed by artificial intelligence.
Relying on Article 117 of the Spanish Constitution, she has recalled that this assigns to judges the mission of "judging and executing what has been judged," specifying that "investigating is not judging or executing what has been judged." Therefore, she has argued that the direction of investigations and the monitoring of criminal cases should fall to the Prosecutor's Office.
A judge of guarantees to reinforce impartiality
Peramato has described as "absolutely incompatible and unjustifiable" that the same judge assumes the direction of the investigation and, at the same time, is the one who authorizes measures that affect fundamental rights —such as entries and searches, telephone or email interceptions— or agrees to precautionary measures that restrict freedom, including provisional imprisonment or restraining orders.
In her view, this dual function compromises the impartiality of the judicial body. For this reason, she has proposed replacing the instruction led by the judge with the figure of a "judge of guarantees" or preliminary hearing, responsible for supervising the legality and proportionality of the actions carried out during the investigation.
He specified, moreover, that this proposal does not obey a "corporate claim" nor the intention to "take power away from judges to give it to prosecutors," but rather responds to a process of reflection aimed at "strengthening the rule of law." He has also emphasized that, while the other procedural laws —Civil, Labor, and Administrative-Contentious— have been adapted after the approval of the Constitution, the LECrim remains the only one that has not undergone a comprehensive reform.
The Attorney General has lamented that the reform project promoted by the Government in this legislature —which had a "brilliant" report from the Fiscal Council, with consultations from the entire prosecutorial career and contacts with prosecutors from Europe and Ibero-America— has been rendered ineffective in Parliament due to the early elections.
International cooperation and the fight against organized crime
Peramato has highlighted that Spain constitutes a "rare bird" by maintaining the scheme of an investigating judge, a model that in Europe it only shares with Andorra. He has recalled that, both in the European Prosecutor's Office and in the majority of European and Ibero-American countries, criminal investigation is in the hands of prosecutors.
As he explained, when other States request judicial assistance from Spain, the obligation to channel the request through the investigating judge "slows down the response." This delay is particularly problematic in the prosecution of large criminal organizations, as it allows them to "take to their heels" or "safeguard their assets" before seizures or confiscations materialize.
Finally, Peramato has pointed out that the transfer of the investigation to the Public Prosecutor's Office must be linked to a reform of the Organic Statute of the Public Prosecutor's Office that strengthens its institutional autonomy. Among the measures he mentioned is unlinking the mandate of the Attorney General from the political calendar, extending it to 5 years, one more than the duration of the legislature.