About the Investigating Judge ("Juez Instructor") and the Prosecutor in Spain
Updated: Jan 19, 2022
The Investigation Phase ("Fase de Instrucción" in Spanish) is the first stage of the Spanish Criminal Process, in which all necessary investigative steps are carried out in order to clarify the facts and circumstances that have surrounded it, purge them through study and resolve according to law. Thus, the conclusions of the investigation can lead both to preparing the holding of a trial or oral hearing; or to avoid it, because the conditions for it might not be considered to exist eventually by the Investigating Judge leading this initial phase.
Spanish Criminal Procedure has a model of judicial investigation in which the Investigating Judge is the body in charge of initiating the process, directing the investigation and resolving diligences by written judicial decisions, not the Prosecutor (like in many other Countries).
The functions of the Investigating Judge have traditionally been linked to the search for clues about the reality of the facts under investigation, their possible criminal nature and the identification of possible responsible subjects, as established in articles 299 and 777.1 of the Criminal Procedure Law (LECrim).
The investigating Judge is the director of the investigation phase and conducts the investigation for the parties (prosecutor's office, private accusations, and defense) who have access to the proceedings (only if they are personated with lawyer and procurator* in case of the private accusation and the investigated or accused), except when secrecy has been decreed.
Essentially, if we analyze how this phase of the procedure is handled in most countries, the Public Prosecutor has a fundamental role and, in many, the investigation itself is entrusted to him and not to the Investigating Judge or "Juez Instructor" as it is stablished in Spanish Law.
*Do not confuse Procurator with Prosecutor: the procurator is basically the representative of the party and nothing has to do with the Public Prosecution. The figure of the Procurator ("Procurador" in Spanish) is explained here: