5 March 2018
Article 783.3 of the Criminal Procedure Act stipulates that there is no right of appeal against the order to open a trial, except in relation to the personal situation of the accused.
It is therefore undisputed that there is no appeal on the merits of the case against the decision to open the case. More doubtful, however, is the admissibility of appeals on ancillary issues that are decided in the same decision, particularly on the setting of the amount of the bail ordered to be provided to the defendants and those vicariously liable in that order, as a precautionary measure to ensure their possible pecuniary liabilities.
This issue has been extensively analysed by the different Provincial Courts. Despite the existence of some dissenting opinions, the consolidation of a majority doctrine can be glimpsed, which considers that the pronouncements contained in the order to open a trial relating to the actual precautionary measures, particularly the amount of bail, are subject to appeal.
By way of example, it is worth mentioning the Order of the Barcelona Provincial Court of 20 September 2004, which very illustratively establishes the following:
‘In effect, the setting of bail is not an essential part of the order opening the oral trial in accordance with the provisions of article 33 of the LOTJ… This means that the order agreeing the provision of bail and, where appropriate, the seizure of assets, is prior to and, to a certain extent, independent of the order opening the oral trial, and must be adopted in the corresponding separate piece.
Consequently, the adoption of this measure can be appealed in the same way as the rest of the orders issued by the investigating court, without the fact that it has been adopted in the order opening the oral trial being able to ‘shield’ it in such a way that it cannot be appealed, not because of its nature or content, but simply because of the moment at which it is adopted and the form it takes’.
The reasoning used by the Barcelona Provincial Court seems sensible, as the precautionary measures of providing bail and, where appropriate, seizure of assets, can be agreed at an earlier stage of the proceedings, as soon as there is sufficient evidence of criminality, opening the corresponding separate civil liability case.
In the same sense, the Provincial Court of Castellón, which recalls that three sections of the aforementioned court have analysed this issue and unanimously consider that only the specific agreement to open an oral trial is final, but not the imposition of real precautionary measures (bail and seizures) and concludes that, with regard to the pronouncements on real measures contained in resolutions of another nature – such as the order to open an oral trial – the general rules of appeals must be applied (art. 766 LECrim.).
The Provincial Court of Zaragoza, in its Orders of 8 July 2011 and 24 April 2002, also resolved different appeals and, with both appeals upheld, ordered the investigating court to form a separate piece on pecuniary liability and to admit and resolve the appeal for reconsideration lodged therein.
Certainly, there is another more restrictive position based on a rigorous literal interpretation of article 783.3 LECrim, which only admits appeals against pronouncements that strictly refer to the personal situation of the accused (pre-trial detention, withdrawal of passport, obligation to appear periodically, or others) and it seems that this would not include precautionary measures of a real nature such as bail (vid. Auto 233/2011 of the Huelva Public Prosecutor’s Office, of 9 November).
In our opinion, the majority doctrine is more correct, since the imposition of measures of a real nature, such as the setting of bail, does not form an essential part of the order to open the trial and could have been adopted at an earlier time, in a separate piece, in which case it would have been subject to appeal like any other relevant decision of the investigating judge.
A restrictive interpretation could lead to absurd situations, such as the obligation on the part of the accused or the person liable under civil law to provide a bond of an absolutely disproportionate and arbitrary amount, with the threat of seizure of their assets if they do not provide it and without the possibility of any appeal, when throughout the proceedings the defendants are offered the possibility of appealing much less important issues.
Thus, we are clearly in favour of the possibility of appealing the setting of the amount of bail, even if this decision has been adopted in the order opening the oral trial, a position that is undoubtedly more protective of the rights of the person under investigation, more coherent with the principles of our legal system and with the fundamental right to effective judicial protection enshrined in Article 24 of our Constitution.
